RAJESH KUMAR versus STATE OF H.P.

Citation: [2008] 14 S.C.R. 234 · Decided: 03-10-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

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

Judgment (excerpt)

[2008] 14 S.C.R. 234 
A 
RAJESH KUMAR 
r---
v. 
STATE OF H.P. 
(Criminal Appeal No.639 of 2001) 
B 
OCTOBER 3, 2008 
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
)---
Penal Code, 1860 - s. 302 rlw s. 34 and s. 326: 
r-
c 
Common intention - One accused assaulted deceased 
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on head with 'darat' (a sharp edged tool) which caused incised 
injury - Appellant, the other accused, assaulted deceased on 
non-vital parts of body with 'danda' (thick stick) - Incised injury 
on head proved fatal - Conviction of Appellant by Courts be-
D low uls. 302 rlw s. 34 with life imprisonment- Propriety of.:... Held: 
Not proper - Only the injuries on non-vital parts attributed to 
~· 
Appellant - Besides, after a PW snatched away the 'danda' 
from Appellant and threw it, Appellant did not pick it up and 
instead ran away from the place of occurrence - s. 34 thus had 
r 
I-
E no application so far as s. 302 was concerned - Appellant Ii-
' 
able to be convicted on basis of injuries inflicted by him -
Appropriate conviction would thus be under s. 326 - Custodial 
~ 
sentence of 3 years would meet the ends of justice. 
I 
F 
Penal Code, 1860 - s. 34 - Applicability of - Discussed. 
Evidence - Witness - Related witness - Appreciation of 
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- Held: No proposition in Jaw that relatives are to be treated as 
untruthful witnesses -Reason to be shown when a plea of par-
tiality is raised to show that the witnesses had reason to shield 
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actual culprit and falsely implicate the accused. 
. 
G 
I 
According to the prosecution, Appellant and another 
I 
accused 'S' assaulted the deceased resulting in his death. 
r~ 
While 'S' hit deceased on his head with a 'darat' (a sharp 
edged tool); Appellant, the other accused, assaulted de-
H 
234 
RAJESH KUMAR v. STATE OF H.P. 
235 
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ceased on other parts of his body with a 'danda'. The de-
A 
ceased received an incised injury on his scalp and five 
injuries on non-vital parts of his body. The incised injury 
proved fatal. 
The Trial Court held that common intention to cause 
death of the deceased was clearly established and ac-
B 
-i 
cordingly convicted appellant and the other accused un-
der ss.302 r/w s.34 IPC and sentenced them to life impris-
onment. Hence the present appeal. 
Partly allowing the appeal, the Court 
c 
HELD:1.1. S.34 IPC has been enacted on the prin-
ciple of joint liability in the doing of a criminal act. The 
Section is only a rule of evidence and does not create a 
.. 
substantive offence. The distinctive feature of the Sec-
tion is the element of participation in action. The liability D 
.._,, 
of one person for an offence committed by another in the 
course of criminal act perpetrated by several persons 
arises under s.34 if such criminal act is done in further-
ance of a common intention of the persons who join in 
committing the crime. Direct proof of common intention 
E 
is seldom available and, therefore, such intention can only 
be inferred from the circumstances appearing from the 
proved facts of the case and the proved circumstances. 
In order to bring home the charge of common intention, 
- j 
the prosecution has to establish by evidence, whether 
j 
F 
direct or circumstantial, that there was plan or meeting of 
mind of all the accused persons to commit the offence 
for which they are charged with the aid of s.34, be it pre-
arranged or on the spur of moment; but it must necessar-
ily be before the commission of the crime. The true con-
G 
.,__.1 
tents of the Section are that if two or more persons inten-
tionally do an act jointly, the position in law is just the same 
as if each of them has done it individually by himself. [Para 
6] [242,G-H; 243,A-C] 
1.2. The existence of a common intention amongst H 
236 
SUPREME COURT REPORTS 
[2008] 14 S.C.R. 
A the participants in a crime is the essential element for ap-
plication of this Section. It is not necessary that the acts 
of the several persons charged with commission of an 
offence jointly must be the same or identically similar. The 
acts may be different in character, but must have been 
B actuated by one and the same common intention in order 
to attract the provision. [Para 6] [243,D'.'E] 
1.3. S. 34 IPC does not say "the common intention of 
all", nor does it say "and intention common to all". Under 
the provisions of Section. 34 the essence of the liability is 
C to be found in the existence of a common intention ani-
mating the accused leading to the doing of a criminal act 
in furtheranc

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