LexLAXMANJI AND ANR. versus STATE OF GUJARAT
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[2008] 17 $.C.R. 171 • LAXMANJI AND ANR. A -~ v. STATE OF GUJARAT (Criminal Appeal No.1972 of 2008) DECEMBER 5, 2008 B [DR. ARiJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] \ Penal Code, 1860: c s.302 rlw s.34 and s.326 rlw s.34 - Four accused - ~ Accused nos. 2 and 3, who were unarmed, caught hold of the victim while accused no.1, who was carrying a knife, inflicted knife blows on right abdomen and thigh of the victim - Victim taken to hospital where he died - Conviction of accused D nos. 2 and 3 u/s.302 rlw s.34 - Justification of - Held: Not justified - Accused nos. 2 and 3 cannot· be attributed any common intention to cause the murder of the victim - Hence, appropriate conviction would be under s.326 rlw s.34 and not uls.302 rlw s.34. E s.34 - Applicability of - Held: In order to bring a case under s.34 it is not necessary that there must be prior conspiracy or pre-meditation - Common intention can be formed in the course of occurrence - To apply s.34, apart from the fact that there should be two or more accused, two F i factors must be established:(i) common intention and (ii) 4- participation of accused in commission of offence - If common intention is proved, but no overt act is attributed to the individual accused, s.34 will be attracted as essentially it involves vicarious liability - But if participation of the .. G accused in the crime is proved and common intention is .. absent, s.34 cannot be invoked. "-1 The prosecution case was that the four accused went ~ --t 171 H e 172 SUPREME COURT REPORTS [2008] 17 S.C.R. ,.,. A to the house of the victim whereafter accused no.2 and 3, who were unarmed, caught hold of the victim While -r accused no.1, who was carrying a knife, inflicted knife ~ blows on the right abdomen as also the thigh of the victim. The victim was taken to the hospital where he B succumbed to his injuries. ,...,, ~ The trial court convicted accused nos.1, 2 and 3 under s.302 r/w 34 IPC but acquitted accused no.4. The -1 conviction of accused nos.1 to 3 was upheld by High c Court. The present appeal has been filed by accused nos. 2 and 3. Allowing the appeal, the Court ~ HELD: 1.1. In order to bring a case under s.34 it is D not necessary that there must be a prior conspiracy or pre-meditation. The common intention can be formed in the course of occurrence. To apply s.34 apart from the fact that there should be two or more accused, two ·)- factors must be established:(i) common intention and (ii) E participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, s.34 will be attracted ·. • as essentially it involves vicarious liabili,ty. But if ~ participation of the accused in the crime· is proved and ·- common intention is absent, s.34 cannot be invoked. ~ F [Para 1 O] [175-D-F] I -+- 1.2. The factual scenario goes to show that the appellants cannot be attributed any common intention to cause the murder of the deceased. In the background ~.- G facts, the appropriate conviction would be s.326 read with s.34 IPC. Custodial sentence of three years would meet the ends of justice. [Paras 10 and 11] [175-D-Gl r· Jai Bhagwan v. State of Haryana AIR 1999 SC 1083, ' )- relied on. ;--, H LAXMANJI AND ANR. v. STATE OF GUJARAT 173 Case Law Reference: A -r AIR 1999 SC 1083 relied on ·Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1972 of 2008. From the Judgment and final Order dated 17 .1.2008 of the B High Court of Gujarat at Ahmadabad in Criminal Appeal Nos. 259 of 301 of 1999. \ Shankar Divate for the Appellants. Hemantika Wahi and Mamta Tushir for the Respondent. c _.., The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of the D Division Bench of the Gujarat High Court upholding the conviction of the accused appellant nos. 1 to 3. Four persons ...; faced trial and the trial court directed acquittal of accused No . 4. All the accused persons were charged for commission of offence punishabJe under Section 302 read with Section 34 of E the Indian Penal Code, 1860 ( in short 'IPC'). Three appeals were filed before the High Court. Two of them were by accused No. 1 (Criminal Appeal No. 259/99) and the other Criminal Appeal No. 301 of 1999 by accused nos. 2 and 3. Criminal Appeal 380/1999 was preferred by the
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