HARIJAN DHANA BADHA AND ORS. ETC. ETC. versus STATE OF GUJARAT

Citation: [1996] SUPP. 2 S.C.R. 36 · Decided: 26-04-1996 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Dismissed
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Judgment (excerpt)

A 
HARIJAN DHANA BADHA AND ORS. ETC. ETC. 
v. 
STATE OF GUJARAT 
APRIL 26, 1996 
B 
[M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.] 
cn·minal Law : 
Indian Penal Code 186()--Sections 148, 149 & 302:--Rioting with deadly 
C 
wcapom~ommon object-Two eye witnesse;-All accused amied with 
deadly weapons-Attack resulting in the death of one person-Held, there was 
a conunon intention to conunit Murder and hence all accused liable. 
Accused Al to All were tried for rioting with deadly weapons and 
committing the murder of D in prosecution of their common object. The 
D Trial Court acquitted eight of them and convicted A2, A6 and A7 under 
section 302 !PC. The Trial Court relied upon the evidence of two eye 
witnesses namely P.Ws. 1 & 3 and the medical evidence. The Trial Court 
held that the P.Ws. 1 and 3 were partly reliable and PW S was wholly 
unreliable. The Trial Court, though held that the incident occurred at the 
E 
time and place alleged by the prosecution, concluded that there was no 
common intention and proceeded to find out the individual roles played 
by the accused. Two Appeals were preferred on the one hand by A2, A6 and 
A7 and on the other hand by the Respondent against the acquittal of Al, 
A3 to A5 and AS to AHl. The High Court while upholding the convictions 
of A2, A6 and A7 under section 302 IPC, reversed the acquittal of Al, A3 
F 
to A5 and AS. The High Court held that the entire approach of the Trial 
Court in dealing \\ith the case was patently wrong for it confused "Common 
Intention" with "Common Object" and applied the test of former instead 
of the latter. The High Court reappraised the evidence to ascertain whether 
the accused persons formed an unlawful assembly with the "Common 
G Object" of committing the murder of D and concluded that the eight 
Appellants did share such a common object. Two sets of Appeals were filed 
by the accused - Appellants in this Court. 
Dismissing both the Appeals, this Court 
H 
HELD : 1 The Judgment of the Trial Court is the outcome of its 
36 
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HARIJANDHANABADHA v. STATE[M.K. MUKHERJEE,J.] 
37 
failure tu distinguish between common object and common intention and A 
of giving undue importance to ignorable contradictions. Instead r:f decid-
ing the case in the light of the principles of law laid down in this regard, 
the Trial Court decided it confining its attention to the individual acts of 
the accused persons only. [43-B, HJ 
Sukhe v. State of Rajasthan, AIR (1956) SC 513; Masalti v. State of B 
Uttar Pradesh, AIR (1963) SC 202 and Muthu Naicker v. State of Tamil 
Nadu, AIR (1978) SC 1647, relied on. 
2. This Court is in complete agreement with the nature of contradic-
tion noticed and relied upon and the comments of the High Court thereon. C 
from the evidence of the eye witnesses P.Ws. l & 3, it is found that even 
though both of them were subjected to a lengthy cross examination nothing 
could be elicited by the accused persons in their favour to impair their 
credibility. The evidence of the above two eye witnesses unmistakably 
proved that the Appellants came together from the Deli of Gova Daya 
armed with sharp cutting weapon like Dharia pointed weapon like pie-axe D 
and blunt weapons like sticks and pipes and started assaulting D which 
resulted in his instantaneous death. It is manifestly clear therefore, that 
their common object was to commit the murder of D. [ 44-B-D] 
3. The judgment of High Court is upheld. The appellants who are E 
on bail will surrender to their bail bonds to serve out the remaining 
sentence. [44-E] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
592 of 1987 Etc. 
From the Judgment and Order dated 7/8.7.87 of the Gujarat High 
Court in Crl.A. No. 634 of 1983. 
R.N. Keshwani, N.N. Keshwani and Sanjay Kumar for the Appel-
lants. 
S.C. Patel for the Respondent. 
The Judgment of the Court was delivered by 
F 
G 
M.K. MUKHERJEE, J. 11 persons (hereinafter referred to as Al to 
All respectively) were tried by the Additional Sessions .Judge, Gonda! for H 
38 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A 
rioting with deadly weapons and committing the murder of Dana Pitha in 
prosecution of their common object. The trial Court acquitted eight of 
them and convicted and sentenced A2, A 6 and A 7 under Section 302 !PC. 
Against the judgment of the trial Court two appeals were preferred : one 
by the three convicts and the other by the Stale challenging the acquittal 
B 
c 
D 
of Al, A3 tu AS and AS to AlO, but not of All. I
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