Ram Naresh vs The State Of U.P.

2023 INSC 1037 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3577 OF 2023

RAM NARESH …APPELLANT

VERSUS

STATE OF U.P. …RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. Heard learned counsel for the parties.

2. Leave was granted while reserving the judgment.

3. The correctness of the judgment and order of the trial court

convicting and sentencing the appellant for life imprisonment for an

offence under Section 302 read with 34 of the Indian Penal Code

(“IPC” for short) and that of the High Court affirming the same is the

subject-matter of examination in this appeal. Signature Not Verified Digitally signed by Anita Malhotra Date: 2023.12.01 17:09:34 IST Reason: Page 1 of 8

4. The notice on this appeal was issued to the respondent-State of

U.P. on 17.04.2023 limited to the applicability of Section 34 of the

IPC. Therefore, the only issue for consideration in this appeal is

whether the appellant shared common intention along with other co-

accused to kill the deceased Ram Kishore. Since the notice was

confined to the applicability of Section 34 of the IPC, with the consent

of the parties, we consider it appropriate to deal with the above aspect

only in this appeal.

5. The facts as unfolded reveal that the First Information Report

was lodged at the instance of one Balram at about 7:15 a.m. on

18.10.1982 at Police Station Ramnagar, District Varanasi alleging

that when at 5:30 am on the same day he along with his brother Ram

Kishore were going to attend the nature’s call and had reached

Babulal’s Dhaba, he saw Virender armed with iron rod (Rambha),

Rajaram, Jogendra and Ram Naresh holding lathis in their hands.

All these four persons came out of the Dhaba and shouted to kill Ram

Kishore. Upon seeing the said four persons, he and his brother Ram

Kishore shouted for help but before any help could arrive, the above

four persons gheraoed Ram Kishore and gave brutal blows to him

Page 2 of 8 from lathis and iron rod. As a consequence, Ram Kishore fell down

and succumbed to the injuries inflicted upon him.

6. On the basis of the aforesaid FIR, a case under Section 302/34

IPC was registered and was investigated upon. In the light of the

documentary and ocular evidence including the eyewitnesses, the

trial court held all the four accused guilty and convicted them for the

commission of offence under Section 302 read with Section 34 IPC

which was affirmed by the High Court.

7. Learned counsel for the appellant had submitted that the trial

court has not considered any evidence to record finding with regard

to “common intention” on part of the appellant and, therefore,

Section 34 IPC cannot be applied so as to convict him. He further

submitted that even the High Court has not discussed the evidence

on the above aspect.

8. A reading of Section 34 of the IPC reveals that when a criminal

act is done by several persons with a common intention each of the

person is liable for that act as it has been done by him alone.

Therefore, where participation of the accused in a crime is proved

and the common intention is also established, Section 34 IPC would

Page 3 of 8 come into play. To attract Section 34 IPC, it is not necessary that

there must be a prior conspiracy or premeditated mind. The common

intention can be formed even in the course of the incident i.e. during

the occurrence of the crime.

9. In the case at hand, it is clearly stated in the FIR and also

categorically stated by Balram (PW-1) that Rajaram, Ram Naresh and

Jogendra had lathis in their hands and Virender had iron rod in his

hands. Rajaram by shouting instigated all of them to kill Ram

Kishore. The accused persons having cornered/gheraoed Ram

Kishore assaulted him with lathis and iron rod. Rajaram, Jogendra

and Ram Naresh armed with lathis and Virender armed with iron rod

assaulted Ram Kishore to death. The witness (PW-1) could not be

shaken in cross examination and consistently stated that all the

accused persons surrounded his brother Ram Kishore and assaulted

him together. Thereafter, all of them left together.

10. The trial court recorded a finding that all accused persons

belonged to village Chaurahat and that the evidence on record

establishes beyond doubt that the accused persons attacked the

deceased Ram Kishore with the intention to kill him. The intention to

Page 4 of 8 kill him is discernible from the very fact that all of them are related

to each other and were armed when they came to the place of

occurrence. All the accused persons, on the instigation of Rajaram

simultaneously attacked the deceased Ram Kishore and thereafter

left together. Thus, according to the findings of the trial court all the

four accused persons had come to the place of occurrence together

armed with weapons, assaulted the deceased Ram Kishore

simultaneously and left the place together.

11. The High Court while dealing with the submission that there

was no material available on record to establish common intention

on part of the appellant-Ram Naresh and hence the appellant is not

liable to be convicted with the aid of Section 34 IPC held that the

argument has no substance inasmuch as the accused persons had

come on the spot collectively and gave serious vital blows to the

deceased with the weapons they were armed wit+h causing his death.

The collective action of all the accused persons indicated sharing of

common intention.

Page 5 of 8

12. Assistance has been taken of paragraph 26 of the decision of

this Court in Krishnamurthy alias Gunodu and Ors. vs. State of

Karnataka1, which is reproduced herein below.

“26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-

assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final

1 (2022) 7 SCC 521

Page 6 of 8 perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.”

13. A plain reading of the above paragraph reveals that for applying

Section 34 IPC there should be a common intention of all the co-

accused persons which means community of purpose and common

design. Common intention does not mean that the co-accused

persons should have engaged in any discussion or agreement so as

to prepare a plan or hatch a conspiracy for committing the offence.

Common intention is a psychological fact and it can be formed a

minute before the actual happening of the incidence or as stated

earlier even during the occurrence of the incidence.

14. The aforesaid decision instead of helping the appellant rather

supports the prosecution that the appellant was rightly convicted

with the aid of Section 34 IPC for the offence of killing the deceased

as they all had come armed, assaulted him together and thereafter

left the place of occurrence together.

Page 7 of 8

15. The decision in Jasdeep Singh alias Jassu vs. State of

Punjab2 to the effect that a mere common intention per se may not

attract Section 34 IPC unless the present accused has done some act

in furtherance thereof is of no assistance to the appellant as it is writ

large on record as per the evidence that the appellant not only had

common intention to kill the deceased Ram Kishore but also actively

participated in assaulting and giving blows to the deceased Ram

Kishore together with the other accused persons.

16. In view of the evidence on record and the findings of the trial

court and the High Court as narrated above, the submission that the

appellant cannot be convicted with the aid of Section 34 IPC is bereft

of merit and cannot be sustained. Accordingly, appeal sans merit and

is dismissed.

……………………….. J.

(ABHAY S. OKA)

……………………….. J.

(PANKAJ MITHAL) NEW DELHI;

DECEMBER 1, 2023.

2 (2022) 2 SCC 545

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