HETHUBHA ALIAS JITHUBA MADHUBA & ORS. versus THESTATE OF GUJARAT

Citation: [1971] 1 S.C.R. 31 · Decided: 13-03-1970 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
HETHUBHA ALIAS JITHUBA MADHUBA & ORS. 
B 
c 
D 
E 
F 
G 
H 
v. 
THE·STATE OF GUJARAT 
March 13, 1970 
[A. N. RAY AND I. D. DUA, JJ.] 
Code of Crilninal Procedure, 1898, s. 429-Di/jerence of opinion 
a111ong two Judges-If third Judge cGn deal with whole case. 
lndan Penal Code, 1860-S. 34-Scope of-Accused acting pu;·suant 
to pre-arranged plan to attack two persons-Killing one person h,v n1istake 
instead of the other-If 'co1n1non intention' can be inferred. 
The three appellants were charged with offences under ss. 302 and 323 
read with s. 34 of the Penal Code and appellants 1 and 2 were charged 
with the individual offences under ss. 302 and 323 for intentionally caus-
ing the death of A, mistaking him for V and for causing simple hurt to 
V. 
The .Sessions Judge acquitted all the three accused under s. 302 read 
with s. 34 but convicted them under s. 304 Part II read with s. 34 and 
sentenced them to suffer rigorous imprisonment for five years. 
App~llants 
1 and 2 were also convicted for the offence under s. 3 23 and appellant 3 
was convicted for the offence under s. 323 read with s. 34. 
All three 
were sentenced for these convictions to rigorous imprisonment for terms 
to run concurrently. 
On· appeal to a Division Bench· af the High Court one learned Judge 
held that the first appellant alone was responsible for the fatal injury on 
A and found him guilty under s. 302; while the second and third appel-
lants were found guilty under s. 324 read with s. 34. The second learned 
Judge was of the view that all the accused must be acquitted as he was 
not satisfied w:th the evidence and proof of the identity of the accused. 
The case was then placed before a third learned Judge under s. 429 Cr. 
P.C. who held that the first appdlant must be convicted under s. 302 
while the second and third appellants must he convicted under s. 302 
read with s. 34 and all of them must be sentenced to .suffer rigorous im~ 
prisonment for life. The conviction of the first and second appellants under 
s. 323 and of the third appellant under s. 323 read with s. 34 was upheld. 
In apoeal to this Court it was contended (i) that the third learned 
Judge under s. 429 Cr. P.C. could only deal with the differences between 
the two learned Judges and not with the whole case: and (ii) that there 
was no common intention \vithin the meaning of s. 34 I.P.C. on the part 
of the three appellants to kill A as he was attacked by mistake. 
HELD : Dismissing the appeal. 
(i) Section 429 of the Criminal Procedure Code states "that when 
the Judges comprising the Court of Appeal are equally divided in opinion, 
the case with their opinion thereon. shall be laid before another Judge 
of the same Court and such Judge. after such hearing. if any. as he thinks 
fit shall dcli\'er his opinion. and the judgment or order shall fol!ow such 
opinion". 
Two things are noticeable: first. that the case shall be laid 
before another Judge. and. secondly, the judgment and order will follow 
the opinion of the third 
learned Judge. It is. therefore. manifest that 
the tliird learned Judge Can or will deal with the "hole caso. [35 D-FJ 
31 
32 
SUPREME COURT REPORTS 
(1971] l S.C.R. 
Babu and Ors. v. State of Uttar Pradesh, 11965] 2 S.C.R. 
771; 
A 
referred to. 
(ii) The plea that A was mistaken for V would not take away the 
common intention established by a pre-arranged plan and participation 
of all the accused in furtherance of common 'intention. 
The act might 
be done by one of the several persons in furtherance of the common 
intention of them all without each one of them having intended to do the 
particular act in exactly the same way as an act might be done by 
one 
B 
member of an unlav..·ful assembly in prosecution o'f the common intention 
IYhich the other members of the unla\vful assembly Jid not each intend to· 
oe done. [36 H] 
On the l acts 
it \Vas clear that the attack took place in pursuan~e 
of a pre-arranged pion. 
The attack by appellants I and 2 on A and the 
C\ iLlcnc~ .',ht)\VJng that appellant 3 held back P during the attack all 
proved common intention. participation and united criminal behaviour of 
C 
all: appclh:tnt 3 \Vas therefore equally responsible and guilty \Vith appel-
lunts I and 2 who had attacked A. 
Shankar/al Kac/zrabbhai and Ors. v. St~te of Gujarat, [19651 I S.C.R. 
287; referred to. 
The dominant feature of s. 34 is the element of participation in 
actions. 
This participation need not in all cases be by physical prese

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