The main legal point established in the judgment is that for the application of Section 34 of the Indian Penal Code, it is not necessary for a co-accused to have actually done something to incur criminal liability. The judgment also emphasizes the distinction between 'common intention' and 'similar intention', and the requirement of physical presence at the scene of the crime for the purposes of facilitating the criminal act.

Judgment

THOMAS, J.

( 1 ) SECTION 34 of the Indian Penal Code is a very commonly invoked provision in criminal cases. With a plethora of judicial decisions rendered on the subject the contours of its ambit seem well neigh delineated. Nonetheless, when these appeals were heard a two-judge Bench felt the need to make a re-look at the provision as to whether and if so to what extent it can be invoked as an aid in this case. Hence these appeals were heard by a larger Bench.

( 2 ) IN one of the appeals A-1 Suresh and his brother-in-law A-2 Ramji are fighting their last chance to get extricated from the death penalty imposed on them by a Sessions Court which was confirmed by a Division Bench of the High Court. In the other appeal Pavitri Devi, the wife of A-1 Suresh (also sister of A-2 Ramji) is struggling to sustain the acquittal secured by her from the High Court in reversal of the conviction for murder ordered by the Sessions Court with the aid of Section 34, IPC.

( 3 ) ON the night of 5-10-1996 when Ramesh (brother of appellant Suresh) and his wife and children went to bed as usual they would have had no foreboding that it was going to be the last night they were sleeping on this terrestrial terrain. But after they, in their sleep, crossed the midnight line and when the half crescent moon appeared with its waned glow above their house the night turned red by the bloodiest killing spree befallen on the entire family. The motely population of that small house were whacked to pieces by armed assailants, leaving none, but a single tiny tot, alive. The sole survivor of the gory carnage could have seen what happened inside his sweet home only in the light which itself turned carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds he sustained on his person.

( 4 ) THAT infant witness (PW-3 Jitendra) told the trial Court that he saw his uncle (A-1 Suresh) in the company of his brother-in-law (A-2 Ramji) acting like demons, cutting the sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri Devi) clutched the tuft of his mothers hair and yelled like a demoness in thirst for the blood of the entire family.

( 5 ) LALJI (PW-1), the uncle of the deceased Ramesh (who is uncle of A-1 Suresh also) and Amar Singh (PW-2) a neighbour gave evidence supporting the version of PW-3 Jitendra. But the said two witnesses did not attribute any overt act to Pavitri Devi except saying that she too was present near the scene of occurrence. The house of the accused was situated not far away from the scene of occurrence but across the road which abuts the house of the deceased.

( 6 ) THE doctor (PW 5-C. M. Tiwari) who conducted the autopsy on the dead bodies of all the deceased described the horrifying picture of the mauled bodies. The youngest of the victims was a one year old child whose skull was cut into two and the brain was torn asunder. The next was a three year old male child who was killed with his neck axed and the spinal cord, trachea and the larynx were snipped. The next in line was PW-3 Jitendra - a seven year old child. (His injuries can be separately stated ). His immediate next elder was Monisha - a nine year old female child, who too was axed on the neck, mouth and chest with her spinal cord cut into two.

( 7 ) THE mother of those little children Ganga Devi was inflicted with six injuries which resulted in her skull being broken into pieces. The last was Ramesh - the bread winner of the family, who was the father of the children. Four wounds were inflicted on him. All of them were on neck and above that. The injuries on Ramesh, when put together, had neared just short of decapitation.

( 8 ) PW-3 Jitendra had three incised wounds on the scapular region, but the doctor who attended on him (PW-6 S. K. Verma) did not probe into the depth of one of them, presumably because of the fear that he might require an immediate surgical intervention. However, he was not destined to die and hence the