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Rajesh Kumar v. State Of Himachal Pradesh .
Factual and Procedural Background
Rajesh Kumar (appellant) and his brother Surjit Singh, all residents of Village Nangal Jarialan, District Una, allegedly assaulted Ravinder Kumar (“the deceased”) on 17-1-1998. Surjit Singh struck the deceased on the head with a “drat” (sickle-like weapon) while the appellant used a danda/lathi on other parts of the body. The deceased managed to run a few feet before collapsing; he later died in hospital the same day. The police registered an FIR on the statement of eyewitness Adesh Kumar (PW-14), conducted investigation, and filed a charge-sheet.
The Sessions Court convicted both brothers under Section 302 read with Section 34 of the Indian Penal Code (IPC) and sentenced them to life imprisonment with a fine. A Division Bench of the Himachal Pradesh High Court affirmed the conviction. Special Leave Petitions followed; the petition of Surjit Singh was dismissed on 19-2-2001. The present appeal concerns only Rajesh Kumar.
Legal Issues Presented
- Whether the appellant’s liability for murder could be sustained under Section 302 read with Section 34 IPC when the fatal blow was inflicted by the co-accused.
- Whether, on the proved facts, the appellant could instead be convicted of a lesser offence such as voluntarily causing grievous hurt under Section 326 IPC.
Arguments of the Parties
Appellant's Arguments
- Even if the prosecution evidence is accepted in toto, it does not establish the requisite “common intention” for invoking Section 34 alongside Section 302 IPC.
- The appellant only wielded a danda and struck non-vital parts; the single fatal injury was caused solely by Surjit Singh with a “drat”.
State's Arguments
- The manner in which both brothers appeared together, assaulted the deceased, and fled establishes a shared intention to commit murder, attracting Section 34 IPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ashok Kumar v. State of Punjab (1977) 1 SCC 746 | Common intention is the essential element for Section 34 IPC; identical acts by co-accused are unnecessary. | Reiterated to outline the doctrinal foundation of joint liability before examining its applicability to the appellant. |
| Mahbub Shah v. King Emperor, AIR 1945 PC 118 | Historical explanation of the 1870 amendment adding the words “in furtherance of the common intention of all” to Section 34. | Cited to emphasize that liability turns on the existence of a common intention, not merely simultaneous acts. |
| Chinta Pulla Reddy v. State of A.P., 1993 Supp (3) SCC 134 | Section 34 can apply even where a particular accused causes no injury personally. | Referenced to show the breadth of Section 34 before distinguishing the present facts. |
| Anil Sharma v. State of Jharkhand (2004) 5 SCC 679 | Restatement of principles governing common intention. | Used illustratively while summarising settled law on Section 34 IPC. |
| Harbans Kaur v. State of Haryana (2005) 9 SCC 195 | Same as above—affirmation of Section 34 jurisprudence. | Cited as recent authority supporting the court’s analysis. |
| Amitsingh Bhikamsingh Thakur v. State of Maharashtra (2007) 2 SCC 310 | Continued reiteration of the legal position on joint liability. | Referenced to underline consistency of precedent. |
Court's Reasoning and Analysis
The Court reviewed the eyewitness testimony and medical evidence. It accepted that:
- Surjit Singh delivered the sole fatal blow—a deep incised head wound—using a “drat”.
- The appellant carried a danda/lathi and inflicted only non-fatal, non-vital injuries.
- Witness PW-14 disarmed the appellant, who thereafter merely ran from the scene and did not renew the assault.
Applying the principles of Section 34 IPC, the Court held that common intention must be inferred from pre-concert or coordinated conduct. Although joint liability does not require identical acts, the surrounding circumstances here did not show a pre-formed or shared intention to kill. The appellant’s limited participation, the nature of the injuries he caused, and his cessation of action once disarmed all undermined the prosecution’s theory of common intention to commit murder.
Consequently, Section 34 could not be invoked to sustain a conviction for murder against the appellant. Given the grievous though non-fatal injuries he admittedly caused, the Court found him liable under Section 326 IPC (voluntarily causing grievous hurt by dangerous weapon or means). The Court also rejected an argument questioning the credibility of related eyewitnesses, noting that kinship alone does not render a witness unreliable in the absence of evidence of motive to falsely implicate.
Holding and Implications
ALLOWED IN PART – The appellant’s conviction under Section 302/34 IPC is set aside and altered to a conviction under Section 326 IPC with a custodial sentence of three years. The appellant, presently on bail, is directed to surrender to serve the remainder of the sentence, if any.
Implications: The decision narrows the use of Section 34 IPC where evidence of shared murderous intent is lacking, affirming that mere presence and participation with a different, non-fatal weapon may attract liability for grievous hurt rather than murder. No broader legal precedent is announced beyond the fact-specific application of settled principles.
Dr. Arijit Pasayat, J.— The challenge in this appeal is to the judgment of the Division Bench of the Himachal Pradesh High Court holding the appellant and one Surjit Singh guilty of offence punishable under Section 302 read with Section 34 of the Penal Code, 1860 (in short “IPC”) and sentenced each to imprisonment for life and to pay a fine of Rs 5000 with default stipulation. By order dated 19-2-2001, the special leave petition was dismissed qua Surjit Singh.
2. Prosecution version leading to the trial is as follows:
Both the accused are brothers. They and Ravinder Kumar (hereinafter referred to as “the deceased”) were the residents of Village Nangal Jarialan, Tehsil Amb, District Una. On 17-1-1998 the deceased had gone to Nangal Jarialan market for purchasing some articles where he met Adesh Kumar (PW 14) and Raghubir Singh (PW 15). PW 14 told them that he wanted to go to some secluded place away from the market for excreting. PW 15 and the deceased accompanied PW 14 on his scooter who drove it towards the rivulet. He stopped the scooter at the roadside and went towards the shrubs in the nallah. The deceased and PW 15 remained standing near the scooter waiting for the arrival of PW 14 who returned after some time.
3. In the meanwhile, both the accused happened to pass through the place on a tractor bearing Registration No. PB 07 D 6173. They saw the deceased standing on the roadside. They stopped the tractor and pounced upon the deceased by wielding a “drat” and “danda”. Surjit Singh hit the deceased on the head with the “drat” and Rajesh Kumar assaulted with “danda” and gave blows on other parts of the body. The deceased started wailing whereas PWs 14 and 15 were bewildered. PW 14 was able to overpower Rajesh Kumar and in the process the deceased managed to get himself freed from the clutches of the accused. He ran towards the field in order to save his life with bleeding injuries. But he could manage to go up to a distance of few feet only, and fell down and became unconscious. Both the accused fled away from the scene of the occurrence on the tractor before other persons could reach at the scene of occurrence.
4. On hearing about the incident Shri Harnam Singh (PW 16), President, Gram Panchayat, Nangal Jarialan, came at the spot with numerous other persons. PW 14 informed the police at Police Station Gagret about the incident. He also brought Dr. Baldev (PW 20), a private medical practitioner from the village who examined the deceased and advised that the deceased be immediately taken to the hospital. The deceased was thereafter taken to Civil Hospital, Gagret. The mother of the deceased Smt Jamna Devi (PW 1) after being informed about the incident, reached at Civil Hospital, Gagret at about midnight.
5. The deceased succumbed to his injuries on the same day. Dr. Bhardwaj (PW 11) medically examined the deceased on the same day at about 8.40 p.m, in Primary Health Centre, Gagret. He noticed that the deceased was unconscious and was not responding. He found the following injuries on the person of the deceased:
“1. An incised wound on the scalp present on the occipital and parietal area 5 cm long. The margins were regular and smooth. There was no fresh blood oozing out of the wound. This wound was 2 cm deep.
2. Bruise mark 2 cm × 2 cm present on the mastoid area of right pinna.
3. Lacerated wound on left hand between the index finger and fourth finger. It was not bleeding.
4. Two lacerated injuries on the right leg. One injury was 1 cm × 1/2 cm with irregular margins. It was irregular margins (sic). It was present 8 cm below patella of right leg. Second injury was 1 cm × 2 cm with irregular margins present 6 cm below the first one.
5. Lacerated wound 2cm long skin-deep present on the left forearm on the dorsal aspect of the hand.”
6. Dr. N.K Bhardwaj advised shifting of the deceased to District Hospital, Una for x-ray and further treatment. He had stitched the wound on the head of the deceased and due to stitching the margins of the wound had become irregular. He issued medico-legal certificate, Ext. PF-1. According to the opinion of Dr. Bhardwaj the injury on the head of the deceased was sufficient to cause his death in the ordinary course of nature. Dr. Bhardwaj also opined that the injury on the head of the deceased could be caused by “drat” and other injuries found on the body of the deceased could have been inflicted by bamboo stick.
7. Shri Kailash Chand (PW 22) who at the relevant time was posted as Station House Officer, Police Station Gagret recorded the information received by him from PW 11 Dr. N.K Bhardwaj in daily diary register, a copy of which was marked Ext. PQ. He immediately rushed to the hospital and recorded the statement (Ext. PJ) of PW 14 which was sent to Police Station Gagret for registration of the case, on the basis of which First Information Report No. 12 of 1998 came to be registered. The FIR was later on transferred to Police Station Amb marked Ext. PT because during the investigation the place where the occurrence took place was found within the jurisdiction of Police Station Amb.
8. The post-mortem of the dead body of Ravinder Kumar was conducted by Dr. S.P Kanwar (PW 13), Medical Officer, District Hospital, Una who found the following injuries on his body:
1. There was a lacerated wound 6 cm × 2 cm × bone-deep on the vault of the skull. It was on the occipitoparietal region transversely placed. It was situated 6″ from the left pinna and 5½″ from the right pinna and 9½″ posterior to the root of the nose. Underlying bone of the skull had sustained depressed fracture of the wound.
2. There was contused lacerated wound 2 cm × 1 cm × 1.5 cm on anterior aspect of the right leg, 6″ above the medial malleolus.
3. An abrasion 3 cm × 1 cm on the middle of the right leg on the anteromedial aspect. It was reddish-brown in colour.
4. A contused lacerated wound 3 cm × 2 cm × 1 cm on the cleft between the 4th and 5th fingers of the left hand.
5. There were multiple abrasions on the medial aspect of the left forearm and wrist, which were reddish in colour.
6. There was contused lacerated wound 1 cm × 0.5 cm × 0.5 cm on the proximal 1/3rd of the right forearm on the medial aspect.
9. After investigation charge-sheet was placed. Since the accused persons denied their involvement in the offence, trial was held. Twenty-three witnesses were produced to further the prosecution version. The trial court held that the evidence of the eyewitnesses, more particularly PWs 14 and 15, clearly established that common intention of the accused persons was to cause death of the accused (sic deceased). Accordingly, conviction was recorded. Before the High Court it was submitted that the evidence of PWs 14 and 15 does not inspire confidence. In any event so far as the present appellant is concerned Section 34 IPC has no application. The High Court did not find any substance in the aforesaid stand and dismissed the appeal. Both Surjit Singh and the present appellant filed special leave petition. Special leave petition was dismissed so far as Surjit Singh is concerned, as noted above.
10. In support of the appeal Mr Shiva Pujan Singh, learned counsel for the appellant submitted that the prosecution version even if accepted in its totality does not make out a case for application of Section 302 IPC read with Section 34 IPC.
11. Learned counsel for the State on the other hand submitted that the conduct of the accused before and after the occurrence clearly shows the existence of common intention for the murder of the deceased.
12. It is to be noted that according to the prosecution case Surjit Singh was armed with drat and the appellant with danda and Surjit Singh hit the deceased with the drat. So far as the appellant is concerned he was carrying a lathi and had assaulted on non-vital parts of the body. The doctor had noticed five injuries except the incised wound on the scalp which are attributable to the assault done by danda on non-vital parts. The doctor's evidence was to the effect that Injury 1 was the fatal one. Though the aforesaid aspect cannot always be the determinative of the question as to whether Section 34 IPC has application, yet in the present case we find that PW 14 took away the lathi from the appellant and threw it out. Thereafter the only role played by him, according to the prosecution witnesses is that he was running. He did not pick up the lathi which had been thrown up by PW 14 and the prosecution witnesses have accepted that he did nothing thereafter except running. In that view of the matter there is substance in the plea of learned counsel for the appellant that Section 34 has no application so far as Section 302 is concerned.
13. “17. Section 34 has been enacted on the principle of joint liability in the doing 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 minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged 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 (1977) 1 SCC 746, AIR 1977 SC 109 the existence of a common intention amongst the participants in a crime is the essential element for application 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.
18. As it originally stood, Section 34 was in the following terms:
‘34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.’
19. In 1870, it was amended by the insertion of the words ‘in furtherance of the common intention of all’ after the word ‘persons’ and before the word ‘each’, so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. King Emperor (1944-45) 72 IA 148, AIR 1945 PC 118.
20. The section does not say ‘the common intentions of all’, nor does it say ‘an 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 doing 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 Chinta Pulla Reddy v. State of A.P 1993 Supp (3) SCC 134, AIR 1993 SC 1899 Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”
The above position was highlighted recently in Anil Sharma v. State of Jharkhand (2004) 5 SCC 679, in Harbans Kaur v. State of Haryana (2005) 9 SCC 195 and Amitsingh Bhikamsingh Thakur v. State of Maharashtra (2007) 2 SCC 310.
14. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard. The appellant has to be convicted on the basis of injuries inflicted by him. According to us the appropriate conviction would be under Section 326 IPC and custodial sentence of three years would meet the ends of justice.
15. The appellant who has been released on bail shall surrender to custody forthwith to serve the remainder of sentence, if any.
16. The appeal is allowed to the aforesaid extent.
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