VIJENDRA SINGH versus STATE OF UTTAR PRADESH

Citation: [2017] 1 S.C.R. 108 · Decided: 04-01-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Disposed off

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Judgment (excerpt)

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(2017] I S.C.R. I 08 
VIJENDRA SINGH 
v. 
STATE OF UTTAR PRADESH 
(Criminal Appeal No. 1448 of20 I 0) 
JANUARY 04, 2017 
[DIPAK MISRA AND R. F. NARIMAN, JJ.] 
PENAL CODE, 1860: ss. 302 rlw s. 34 - Murder - Common 
intenlion - Enmity between accused and his family and the 
prosecution witnesses - On the fateful day, murder of nephew of 
PW I, at his tube well - PW 2, NS and PW 3 heard sound of gun fire 
from inside the shed of the tube well - On reaching the place of 
incident, they saw appellant accused along with others, ar111ed with 
weapons comilig out of the shed - Thereafter, accused fled away -
FIR lodged by PW I - Medical evidence that death of deceased 
due to gunshot injury - Conviction uls. 302134 and sentenced to 
rigorous imprisonment for life, by courts below - Thereafter, death 
of two accused - On appeal, held: Evidence in its entirety clearly 
shows that the accused persons armed with weapons were present 
in the shed, they were seen going away and the deceased was found 
lying in a pool of blood - Accused-appellants had accompanied 
other accused persons who were arnled with gun and they themselves 
carried lat hi and ha/lam respectively - Carrying of weapons, arrival 
at a particular place and at the same 'lime, entering into the shed 
and murder of the deceased attract constructive liability uls .. 34 -
No blackening or scorching around .tlie wound, would noi belie 
that the injury was not inflicted by the firing from the gun - Further, 
the testimony of PWs 1-3 about the incident cannot be discredited -
They satisfy the test of scrutiny and cautious approach - Non-
exa111ination of certain witnesses would not effect the prosecution 
case - Thus, order passed by the courts below as regards appellant 
M upheld - As regards appellant V, he having remained in custody 
for 111ore than the maximum period, is released from the custody -
Juvenile Justice (Care and Protection of Children) Act, 2000 - ss. 
7-A, 20(amended) - Juvenile Justice (Care and Protection of · 
Children) Rules, 2007. 
s. 34 - Co111111on intention - Applicability of s. 34 - Held: 
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V!JENDRA SINGH v. STATE OF UTTAR PRADESH 
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Applicability of s. 3./ is a question of fact and is to be ascertained 
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from the evidence brought on record - Common intention can be 
conceived immediately or at the time of offence and is determined 
on the facts. 
Evidence - Medical evidence that one gun shot injury 
attributed to pistol - However, no blackening or scorching around·-. B. 
the gunshot wound - Credibility of the prosecution case - Held: 
Doctor stated that there is no blackening or scorching around the 
wound, but that would not belie that the injury was not inflicted by 
the firing from the gun - Doctor opined that the death of the deceased 
was caused by gunshot injury. 
Dismissing Criminal Appeal No.1452 of 2010 and disposing 
of Criminal Appeal No. 1448 of 2010, the Court 
HELD: 1.1 The accused-appellants have been convicted 
with the aid of Section 34 IPC. It has come in evidence of PW-2 
that the accused M was armed with lathi and accused VS was 
•1rmed with a ballam and they were in the company of other 
accused. When the evidence in its entirety is studiedly scrutinized, 
it clearly shows that the accused persons were present in the 
shed, they were seen going away and the deceased was found 
lying in a pool of blood. The witnesses specifically stated about 
the weapons being carried by the accused persons. It was 
submitted that the prosecution story rests on the gun shot injury 
but there is no evidence with regard to injury caused by the lathi 
or ballam. It is relevant to state that cartridges from the spot 
were recovered arid PW-6 Doctor who conducted the post mortem 
found gunshot wound. There was no blackening or scorching 
around the wound. True it is that the doctor stated that there was 
no blackening or scorching around the wound, but that would not 
belie that the injury was not inflicted by the firing from the gun. 
He, opined that the. death of the deceased was caused by gunshot 
in.iury. [Para 13] [120-F-G; 121-AI 
1.2 Whether the crime ·is committed in furtherance of 
common intention or not, would depend upon the material brought 
on record and the appreciation thereof in proper perspective. 
Facts of two cases cannot be regarded as similar. Common 
intention can be gathered from the-circumstances that are brought 
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on record by the prosecution. Common intention can be conceiv

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