Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1954 Supreme(SC) 29

SUPREME COURT OF INDIA
25th February, 1954.
BHAGWATI, JAGANNADHA DAS AND VENKTARAMA AYYAR, JJ.
Kripal and others, Appellants
Versus
State of U.P., Respondent.
Criminal Appeal Nos. 37 and 77 of 1953
Advocates appeared
Shri B.B. Tawakley, Senior Advocate (Shri K.P. Gupta, Shri N. C. Sen and Shri S.S. Shukla, Advocates) (in No. 37) and Shri S.N. Mulla and Shri S. S. Shukla, Advocates (in No. 77), for Appellants; Shri Gopal Singh and Shri C.P. Lal, Advocates, for Respondents.

Advocates:
B.B.TAVAKLEY, C.P.LAL, Gopal Singh, K.P.GUPTA, N.C.Sen, S.N.Mulla, S.S.SHUKLA

Headnote:Sections 34, 302 and 326-Applicability and scope.
       The three appellants were working the well (Milakwala well) that morning. When they saw Man Singh and Sher Singh going past the well they asked them where they were going. On being told that they were going to harvest Jirajs sugarcane field they abused them and told them not to go there but to work for them. Man Singh and Sher Singh did not listen to them and walked on.
       When they had gone 30-40 paces, the three appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in Sheorajs hand. Jira arrived at the spot and asked the appellants why they were beating his: labourers and stopped them from beating them. Sheoraj hit him on the legs with his lathi and he fell down. Kripal stabbed him with his spear near the ear. Bhopal then stabbed him with his spear on the left jaw, put his legs on his chest and extracted the spear blade from his jaw. Just as the blade come off, Jiraj died.
       Held: (1) The learned Judges of the High Court quite rightly pointed out that a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between the number of persons, with reference to the facts of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result
       1.This as, was "explained and distinguished in Willie, (William) Slaney v. State of Madhay Pradesh, A.I.R. 1956 S, C. 116. See also under "Criminal Procedure Code" at P. 760 ante.
       2.For facta of the case, see pp •. 724, 725 ante.
       can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts.
       (2) On the facts of the case the common intention to kill the deceased could not be attributed to the three accused. The only common intention that can be attributed to. all the three appellants in so far as the assault on Jiraj is concerned is the common intention to beat Jiraj also with the weapons in their hands, which were likely to produce grievous injuries. In this view therefore, all the three would be guilty in respect of their assault on Jiraj for an offence under section 326 I.P.C. while Bhdpal alone would be guilty in respect of the offence under section 302 I.P.C. It follows that the conviction of both Kripal and Sheoraj under section 302 I.P.C. must be set aside but that of Bhopal has to be maintained.

Judgement Key Points

Key Points: - The Court discusses whether a preconcerted plan is required to convict multiple accused under section 34 IPC in a murder/assault context and the role of common intention developing on the spot (!) (!) - It analyzes whether all three appellants shared a common intention to kill Jiraj or only to beat him and the labourers, affecting liability under sections 326 and 302 IPC; ultimately holds that only Bhopal had the intention to kill and convicts him under 302 while Kripal and Sheoraj are convicted under 326 and 323, with 302 convictions for them set aside (!) (!) - It affirms the trial and High Court findings rejecting the defence that two separate incidents occurred, accepting Milakwala well as the locus of the principal assault and supporting the common intention to beat with potential grievous injury (!) (!) - It discusses the sufficiency and reliability of prosecution evidence, including witnesses’ accounts and medical evidence, in establishing the assault pattern and intent (!) (!) (!) (!) - It concludes with modification of sentences: Bhopal is sentenced to death for the murder; Kripal and Sheoraj receive 5 years and 3 years for 326 IPC; 302 IPC convictions for Kripal and Sheoraj set aside; fines related to 323 IPC affirmed; Bhopal’s fine for 323 IPC cancelled; appeals dismissed subject to these modifications (!) (!) (!) (!) (!)

What is the scope and applicability of common intention under sections 34 and 326 of the Indian Penal Code as it relates to multiple accused in a scenario involving murder?

What is the appropriate appellate correction of convictions under sections 302 and 326 IPC for the three appellants given the trial and High Court findings on common intention and premeditation?

Judgment

JAGANNADHADAS, J. : THese two appeals are against a judgment of the High Court of Allahabad dated 8th May, 1953, and arise out of a trial before the Sessions Judge of Muzaffarnagar of the three appellants herein along with ten others in respect of charges under section 148, and section 302, as well as 323 read with 149 of the Indian Penal Code. The Sessions Judge acquitted these ten persons of all the charges. But so far as the three appellants are concerned, though acquitted in respect of the charge under section 302, I.P.C., they were convicted under section 304 (1) as well as under section 323, I.P.C. read with section 34, I.P.C.

The appellants in Cr. A. 37 of 1953, Kripal and Bhopal, were sentenced to five years rigorous imprisonment and a fine of Rs. 100 and the appellant in Cr. A. 77 of 1953, Sheoraj, was sentenced to four years rigorous imprisonment and a fine of Rs. 100. The three appellants files appeals to the High Court in respect of their convictions and sentences, while the State filed an appeal as against these three appellants alone in respect of their acquittal under section 302, I.P.C. In the High Court, the appeal filed by the three appellants was dismissed but on the appeal filed by the State, the acquittal of these three appellants under section 302, I.P.C. was set aside and they were convicted of the said offence.

The two appellants in Cr. A 37 of 1953 were sentenced to death while the appellant in Cr. A 77 of 1953 was sentenced to transportation for life. So far as the appellants in Cr. A 37 of 1953 are concerned, the appeal to this Court is under Art. 134(1)(a) of the Constitution which provides for a right of appeal from a judgment of a High Court in criminal proceedings where, on appeal, the High Court reverses an order of acquittal and sentences an accused to death. So far as the appellant in Cr. A 77 of 1953 is concerned, his appeal which arises out of the same judgment is before us on special leave granted under Article 136 of the Constitution.

2. The prosecution case which has given rise to these appeals is as follows. In the village of Kakrala, police station Khatauli, District Muzzaffarnagar, there were two incidents at about the same time, viz., 7 o clock in the morning of the 16th May, 1949, one at a spot called Milakwala well and the other at a place called Dhakolas. At the Milakwala well incident one Jiraj was murdered and at the Dhakolas incident one Indraj was murdered. These two murdered persons were brothers and the sons of Chandan, who gave the First Information Report. It would appear that the two murdered persons as well as the three appellants are all related to each other as decendants from a common ancestor through different branches and that there were serious disputes between them relating to partition of certain properties.

The specific case of the prosecution with reference to the incidents which brought about the death of the two persons, Jiraj and Indraj, was that on the morning of the 16th May, 1949, at about 7 A.M. the three appellants of whom Bhopal and Sheoraj were brothers and Kripal their cousin, were working in a field in which was situated a well called Milakwala well. The deceased Jiraj had a field somewhat lower down the Milakwala well where sugarcane was grown. For that morning s work of digging canes from the field, he had fixed up two labourers by name Man Singh and Sher Singh.

All the three of them were proceeding towards Jiraj s field, the two labourers being somewhat ahead of Jiraj. On their way the two labourers had to pass by the side of the Milakwala well where the three appellants were working. They were accosted by the accused and on getting to know that they were going to work for Jiraj in his field lower down, they abused them and told them not to go there but to work for themselves. The two labourers proceeded forward without heeding them. When they had gone about 30 or 40 paces, the three appellants rushed at them and began to beat them with the wit

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