THE STATE OF RAJASTHAN versus GURBACHAN SINGH & OTHERS

Citation: [2022] 16 S.C.R. 73 · Decided: 07-12-2022 · Supreme Court of India · Bench: SANJIV KHANNA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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THE STATE OF RAJASTHAN
v.
GURBACHAN SINGH & OTHERS
(Criminal Appeal No. 2201 of 2011)
DECEMBER 07, 2022
[SANJIV KHANNA AND SUDHANSHU DHULIA, JJ.]
Penal Code, 1860 – Murder – Common intention – Dispute
w.r.t partition of land– Victim was beaten resulting in his death,
PW1 (his brother) also suffered injuries – Respondent convicted
along with 5 others – Respondent’s appeal partly allowed by High
Court, holding that he did not share common intention to cause
death of deceased as he only inflicted wounds on his feet with a
‘lathi’, was directed to be released having suffered the maximum
punishment provided for the offence – Conviction of other 3 co-
convicts (‘DS’, ‘BS’, ‘MS’), not challenged herein – Two others
(‘MK’, ‘JK’) were acquitted, acquittal w.r.t ‘MK’ has become final –
Held: Challenge to the acquittal of ‘JK’ dismissed – In case of
respondent, common intention to inflict injuries and cause the death
of deceased can be gathered from his action – PW-1 and his wife-
PW-2 saw the deceased coming from a flour mill which was near
the Gurudwara when they were going to the Gurudwara in the village
– Respondent and the co-convicts accosted the deceased –
Respondent had come with ‘lathi’, while others were seen with an
axe, toka and gandasi – They surrounded the deceased – Respondent
then struck the feet of the deceased with ‘lathi’, who fell-down –
Thereupon, respondent and the co-convicts had beaten and inflicted
injuries and wounds to deceased – Respondent shared common
intention to cause injuries with other co-convicts – Crime was
committed in furtherance of common intention leading to the death
of deceased – Therefore, all of them, including respondent, would
be responsible for offence u/s.302, irrespective of the part played
by them – Impugned judgment acquitting respondent u/s.302 set
aside – Convicted u/s.302 r/w s.34 – Conviction u/s.324 for injuries
inflicted on PW-1, maintained – Conviction u/s.149 r/w s.148 not
sustainable – Respondent to surrender – Code of Criminal
Procedure, 1973 – s.428.
[2022] 16 S.C.R. 73
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
Penal Code, 1860 – s.34 – Application of – Discussed.
Penal Code, 1860– s.34 – Common intention – Evidence–
Held: Common intention can be formed at the spur of the moment
and during the occurrence itself – It is a psychological fact and as
such, direct evidence normally will not be available – In most cases,
whether or not there exists a common intention, has to be determined
by drawing inference from the facts proved – Constructive intention
can be arrived at only when the court can hold that the accused
must have preconceived the result that ensued in furtherance of the
common intention.
Allowing the appeal, the Court
HELD: Challenge to the acquittal of ‘JK’ is dismissed.
Respondent was present at the place of the occurrence with ‘BS’,
‘MS’, and ‘DS’ when the violence took place, which resulted in
death of deceased. PW-1, the brother of Teja Singh, along with
his wife-PW-2, who were going to the Gurudwara in the village,
had seen deceased coming from the flour mill, which was near
the Gurudwara. Respondent, ‘DS’, ‘BS’, ‘MS’ had then accosted
deceased. PW-1 and PW-2 deposed that deceased had come with
a ‘lathi’, whereas ‘DS’ were seen with an axe, ‘BS’ with a ‘toka’
and ‘MS’ with a ‘gandasi’. They had surrounded deceased.
Respondent had then struck the feet of deceased with ‘lathi’,
who then fell-down. Thereupon, respondent and the co-convicts
had beaten and inflicted injuries and wounds to deceased. ‘BS’ in
particular had used a ‘toka’, a sharp-edged weapon, to inflict
incised wounds on the head of deceased. The motive and cause
was the land dispute between the brothers, and the occurrence
at 5 P.M on 06.11.2000, when deceased had objected to
respondent and ‘BS’ ploughing the plot of the water works
department, and the village meeting where tempers got flared
with respondent and ‘BS’ leaving the meeting in anger. Section
34 of the IPC i.e., common intention, is attracted in the case of
respondent, whose case cannot be distinguished, so as to exclude
him as one who did not share common intention with ‘DS’, ‘BS’,
and ‘MS’. Section 34 of the IPC makes a co-perpetrator, who
had participated in the offence, equally liable on the principle of
joint liability. For Section 34 of the IPC to apply, there should be
common intention among the co-perpetrators, which means that
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there should be community of purpose a

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