SURESH AND ANR. versus STATE OF UP

Citation: [2001] 2 S.C.R. 263 · Decided: 02-03-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

, 
SURESH AND ANR. 
A 
v. 
STATEOFU.P. 
MARCH2,2001 
[K.T. THOMAS, R.P. SETHI AND B.N. AGRAWAL, JJ.] 
B 
Pen al Code, 1860 : 
Section 34 : 
Applicability of-Murde1~Conviction of husband, wife and herbmther-
C 
Husband and brother killing members of a family while wife was standing in 
front of tlze house of the deceased-Held, by her mere presence near the place 
of occurrence at or about thP time of crime in the absence of other evidence, 
direct or circu111sta1itial, ~he cannot be held guilty V»ith the aid of Section 34-
lt is not a necessary conclusion that she too ivould have accompanied the other 
D 
accused in fiu1herance of the common intention of all thP- three-Her inaction 
in preventing the other llvo accusf!d from co1nmitting the crilne not conclusive 
to il~fer that she shared a common intention \Vith others-Hence her acquittal, 
upheld. 
• 
Ambit and scope of-Explained-Participation in the crime in further-
E 
ance of the common intention being sine qua non for Section 34, whether the 
act done is overt or coven-Existence of a co1nmon intention being a question 
of fact in each case to be pmved mainly as ma/fer of inference fivm the 
circumstances of the case-Presence of the co-accused at the scene of crhne not 
a necessary requirement-Vicarious L;ability-Principle of-Sections 32, 33, 
35, 37, 38 and 302. 
Common intention and si1nilar intention-Distinction be1111een-Ex-
plained. 
Evidence Act, 1872-A child o.f7 years tt-'as the sole su111ivor of a ghas1ly 
incident-Deposition that wife of the 1st accused caught hold of his mother's 
hair, pulled it up and thereafter went ourside and exhorted that e\'e/)'body 
should be killed-Deposition by uncle of the deceased and l st aci:u:<ed und a 
neighbour that the wife of the 1st accused was merely standing infirm! of rhe 
house of the deceased while her husband and brother were inside tlw house 
inflicting blows on the victims-Deposition by the little child el'aluured irith 
263 
F 
G 
H 
264 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
A 
greater care-Acceptance of his evidence only to the extent it secured convbo-
ration f1vm the teslimony o,f the other tlvu ivitnesses-No infinnity in the 
findings recorded. 
B 
c 
Animosity over a piece of land led A-1 to kill his brother, his broth-
er's wife and three children along with his brother-in-law A-2. One of the 
children, PW3, however escaped only \\ith injuries. A-3, "ife of A-1 and 
sister of A-2, was also present at the scene of crime. 
In his evidence, PW3 a child of 7 years and the sole survivor of the 
ghastly incident, deposed that A-1 and A-2 inflicted blows on other mem· 
hers of his family. According to his deposition, A-3 caught hold of his 
mother's hair and pulled it up, thereafter she went outside and exhorted 
that everybody should he killed. On the other hand, PWl, uncle of the 
deceased & also of A 1 and PW2, a neighbour, deposed that when they 
reached the scene of occurrence, A-3 was standing in front of the house of 
·the deceased while A-1 and A-2 were inside the house engaged in the acts 
D 
of inflicting blows on the victims. 
E 
F 
On the aforesaid evidence, the trial court imposed death penalty on 
all the accused which was confirmed by a Division Bench of the High 
Court qua only A-1 and A-2. A-3 was ordered to he acquitted. Hence the 
present appeal by A·l and A-2. The other appeal bas been preferred by 
State against the acquittal of A-3. 
On behalf of the appellants, it was contended that if Section 34 !PC 
was to be invoked as against A-3, the prosecution should have established 
that she had done some overt act in furtherance of the common intention. 
On behalf of the State, it was contended that the presence of A-3 was 
in furtherance of the common intention of the three accused to commit the 
murders; that if she remained at the scene without sharing the common 
intention, she would have prevented the other two accused from doing the 
ghastly acts because both of them were her husband and brother respec-
G 
lively. 
Dismissing the appeals, the Court 
HELD : (Per Thomas, J.) : 
H 
1. It is difficult to conclude that a person, merely because he was 
... 
-
SURESH v. STATE 
265 
present at or near the scene, Y.ithout doing anything more, without even 
carrying a weapon and "ithout even marching along mth the other assail-
ants, could also be convicted mth the aid of Section 34 of the Indian Penal 
Code for the offence committed by the other accused. In the present case, the 
FIR shows th

Excerpt shown. Read the full judgment & AI analysis in Lexace.