LexGIRIJA SHANKAR versus STATE OF U.P.
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,, GIRIJA SHANKAR A v. STATE OF U.P. FEBRUARY 4, 2004 [DORAISWAMY RAJU AND ARIJIT PASA YAT, JJ.] B Penal Code, 1860: Section 302 rlw section 34-Deceased shot dead by one of the accused other than the appellant-No evidence to show that other accused persons C were aware that one of them was canying a gun or that he intended to use it-No role ascribed Lo appellant so far as death of deceased was concerned- Appellant convicted with other accused for offence under Section 302 read with Section 34-Held, the evidence on record does not show that the accused persons shared the common intention to kill the deceased-Neither the trial D court nor the High Court assigned any reason for applying Section 34- Appellant cannot be convicted in terms of Section 302 read with Section 34 !PC Section 34-Applicability of Section 307 read with Section 34-Conviction under-Victim assaulted by appellant and other accused persons-Injuries attributed to appellant not of very serious nature-Held, appellant has been rightly convicted under Section 307 read with Section 34-To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Section 394-Snatching of gun and other articles not attributed to appellant-Held, conviction of appellant under Section 394 not maintainable. E F Deceased along with PWs 1 and 3 was going back to his village after seeing a fair. On the way when it became dark and started raining, they decided not to go further to their village; and decided to stay at the house G of PW5 in another village en route. In the meantime, accused persons saw them and thinking them to be criminals, shouted that they being notorious, they should be beaten. The deceased and PWs 1, 3, and 5 replied that they were innocent villagers and had decided to stay in the house of PW-5 73 H 74 SUPREME COURT REPORTS [2004) 2 S.C.R. A because of rain. After they had gone few steps, A-1 fired t'wo shots one of which hit the deceased and other hit PW 3. When PWs 1 and 3 and the deceased shouted, many villagers came there. Then: was exchange of hot words and A-2, the appellant, A-3 and A-4 assaulted PW-3. A-3 removed the gold ring and watch of the deceased. The gun of PW3 was snatched B away by A-1 and it was deposited next day in the police station. Trial Court convicted all the four accused persons for the offences punishable under Sections 302 and 307 IPC read with Section 34; and Section 394 JPC. All the four accused persons preferred appeal before the High Court. During pendency of the appeal, A-3 and A-4 died and the appeal stood abated so far as they were concerned. High Court dismissed the appeals of A-1 and C A-2. Hence, the present appeal filed by A-2. S.L.P. filed by A·l before this Court was already dismissed. On behalf of the appellant, it was contended that no role had been ascribed to the appellant so far as death of deceased was concerned; that it was the prosecution case itself that the appellant, A-3 and A-4 assaulted D only PW-3 with lathies; that so far as accusations under Section 394 IPC were concerned there was no evidence that th~ appellant snatched gun of PW-3 or in any manner faciliated snatching; and that Section 34 had no application to the case at hand. E F Allowing the appeal in part, the Court HELD: 1.1. The appellant cannot be convicted in terms of Section 302 read with Section 34 I PC. The evidence on record does not show that the accused persons shared common intention to kill the deceased. It is accepted that the first reaction after questioning the deceased and PWs 1 and 2 was that they were criminals, notorious and should be beaten. No further act is attributed. They even did not chase them. It is also accepted that after they had gone some distance A-1 fired the gun twice. It appears from the evidence of PWs 1 and 3 that A-1 was also armed with lathi. There is no evidence to show that other accusedpersons were aware that he was also carrying a gun or that he intended to use it. Neither the Trial G Court nor the High Court assigned any reason for applying Section 34 IPC. On surmises and conjectures, it was observed by the Trial Court that though there was no direct evidence showing pre-concert or earlier \.._. meeting of mind, the possibility of it having developed at the spot cannot be ruled out. For coming to such conclusion, there was neither any direct H no~ circumstant
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