Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 469 OF 2009
(Arising out of S.L.P (Crl.) No.352 of 2008)
Chimanbhai Jagabhai Patel ..Appellant
versus
State of Gujarat & Anr. ..Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal by accused no.2 is to the judgment of a
learned Single Judge of the Gujarat High Court upholding the conviction of
the appellant for offences punishable under Section 307 read with Section
34 and Section 120 B of the Indian Penal Code, 1860 (in short the ‘IPC’).
Learned Additional Sessions Judge, Valsad, had recorded the judgment of
conviction and had imposed sentence of five years for the first offence and
no separate sentence was imposed for latter offence. Fine of Rs.500/- with
default stipulation was also imposed.
3. Background facts in a nutshell are as follows:
On 26.11.1987 around 07:30 p.m. in village Kaanjan
Ranchhod, Tal in Dist. Valsad, the appellant-accused no.1 called the
complainant Kalaben Jagabhai Patel at Khadi to take money and also told
her that he had some work with her. The accused no.2 also reached at the
same place from where both the accused took the complainant in Vadi of
Chamarbhai Revlabhai, where for about half an hour, they were talking and
thereafter with an intention to kill the complainant they, forcibly made the
complainant drink an insecticide used in Chilly Crop named as ‘Eka Laxys
EC.25’. The accused no. 2 caught hold of the complainant and thus,
committed offence of an attempt to murder the complainant.
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The complainant was residing at Village ‘Kaanjan Ranchhod’ of
Taluka Valsad along with her mother and brothers. The father of the
complainant had expired about 6-7 years ago. She had studied upto 8th
Standard. On 26.11.1987, the complainant had gone to Khadi for washing
the clothes at about 12 noon. At that time, her aunt had also come to wash
the clothes and after completing the work of washing clothes, she (the aunt)
went away. Thereafter, around 2 noon, Satishbhai Nichhabhai and
Ishwarbhai Khusalbhai, residents of the same Faliya as that of the
complainant, had come to wash their clothes. The complainant, after getting
her clothes dried around 3 O’clock, started to go to her house. On the way,
the accused no.1 Jayantibhai Gulabbhai met her near his field and asked the
complainant to come at Khadi in the evening to collect money. He (accused
no.1) also told that he has some personal work with her. The complainant
told him (accused no.1) that she will come in the evening and went to her
home. Thereafter around 7:00 p.m., the complainant went to ‘Khadi’ where
the accused no.1 was present. While she was talking with the accused no.1,
the appellant-accused no.2 Chimanbhai Jagabhai reached there. Thereafter,
both the accused took the complainant to Vadi of Chamarbhai. There they
talked for about an hour. Thereafter, all of a sudden accused No.2
Chimanbhai Jagabhai caught hold of the complainant and accused No.1
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Jayantibhai took out a bottle of poisonous medicine used as insecticide in
chilly crop forcibly poured the same in the mouth of the complainant. As the
complainant was caught hold of by the accused no.2 Chimanbhai Jagabhai,
she could not shout. On medicine being administered to the complainant,
she fainted and the accused ran away from the place. After sometime the
complainant regained consciousness and she shouted for help. On hearing
shouts of the complainant, her brother Nahhubhai, Ishwarbhai and Ukadbhai
came running there and they brought the complainant to the house of
Ishwar. There she was administered juice of Neem tree, where after the
complainant vomited. The complainant was then admitted, in the hospital at
Valsad. On the next day, Mamlatdar, Valsad, recorded the statement of the
complainant. The real cause of the incident was the love affair between the
complainant Kalaben and accused no.1 Jayantibhai as a result of which the
complainant became pregnant. The accused Jayanatibhai advised the
complainant and also gave some tablets to her to get the child aborted, but
as it was not possible, the complainant asked the accused Jayantibhai to
marry her. Initially, he agreed for the same, but then he turned around and
did not marry the complainant. The brother of the complainant Nabhubhai
then talked to Hirkabhai and meeting of ‘Caste Panch’ was called. There it
was agreed that Jayantibhai and complainant be married. But as the accused
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Jayantibhai was not willing to marry the complainant, he tried to kill the
complainant by administering the poison forcibly.
The investigation was undertaken and charge sheet was filed. The
trial court placed reliance on the evidence of the witnesses and found the
appellant guilty. Emphasis was laid on the evidence of the complainant (PW
5), Nabhubhai Jagabhai (PW8), Balubhai Maganbhai (PW5) and Dr. Ram
Ratan (PW2).
Before the High Court the primary stand in appeal was that offence
under Section 307 is not made out. It was also submitted that Section 34 has
no application. The High Court did not accept this plea and found the
appellant, who was A2 before the trial court, guilty. The High Court held
that the present appellant rightly been convicted by application of Section
34 IPC.
4. The stand taken before the High Court was reiterated by learned
counsel for the appellant. Additionally, it was submitted that out of the
sentence of five years imposed, the appellant had already undergone
sentence of more than 40 months and is entitled to certain remissions.
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5. Learned counsel for the respondent-State on the other hand supported
the judgment of the trial court as affirmed by the High Court.
6. The essential ingredients required to be proved in the case of an
offence under Section 307 are:
(i) that the death of a human being was attempted;
( ii ) that such death was attempted to be caused by, or in consequence
of the act of the accused; and
( iii ) that such act was done with the intention of causing death; or that
it was done with the intention of causing such bodily injury as: ( a ) the
accused knew to be likely to cause death; or ( b ) was sufficient in the
ordinary course of nature to cause death, or that the accused attempted to
cause death by doing an act known to him to be so imminently dangerous
that it must in all probability cause ( a ) death, or ( b ) such bodily injury as
is likely to cause death, the accused having no excuse for incurring the
risk of causing such death or injury.
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7. Section 34 has been enacted on the principle of joint liability in the
commission of a criminal act. The Section is only a rule of evidence and
does not create a substantive offence. The distinctive feature of the Section
is the element of participation in action. The liability of one person for an
offence committed by another in the course of criminal act perpetrated by
several persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in committing
the crime. Direct proof of common intention 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, the prosecution has
to establish by evidence, whether 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 Section 34, be it pre-arranged or on
the spur of moment; but it must necessarily be before the commission of the
crime. The true contents of the Section are that if two or more persons
intentionally do an act jointly, the position in law is just the same as if each
of them has done it individually by himself. As observed in Ashok Kumar
v. State of Punjab (AIR 1977 SC 109), the existence of a common intention
amongst the participants in a crime is the essential element for application
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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 actuated by one and the same common intention in order to attract the
provision.
8. The Section 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 to be found in the existence of a common intention
animating the accused leading to the commission of a criminal act in
furtherance of such intention. As a result of the application of principles
enunciated in Section 34, when an accused is convicted under Section 302
read with Section 34, in law it means that the accused is liable for the act
which caused death of the deceased in the same manner as if it was done by
him alone. The provision is intended to meet a case in which it may be
difficult to distinguish between acts of individual members of a party who
act in furtherance of the common intention of all or to prove exactly what
part was taken by each of them. As was observed in Ch. Pulla Reddy and
Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is
applicable even if no injury has been caused by the particular accused
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himself. For applying Section 34 it is not necessary to show some overt act
on the part of the accused.
9. In the background of the aforesaid provisions the trial court and the
High Court was justified in holding that the appellant was guilty of offence
punishable under Section 307 read with Section 34 IPC.
10. Coming to the question of sentence considering the nature of the
accusations, the role played by the appellant and the period of custodial
sentence already undergone without remission, the same is restricted to the
period already undergone. The appellant shall be released from custody
forthwith unless required to be in custody in any other case.
11. The appeal is disposed of accordingly.
……..……....................................J.
(Dr. ARIJIT PASAYAT)
……..…
…....................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
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March 16, 2009
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