Supreme Court: In the present case, appellant was prosecuted with two others, Buta Singh and Sohan Singh, for the murder of three persons and for attempt to murder another person. The Sessions Judge convicted appellant under Sections 3021 and 3072 read with Section 343 of the Penal Code, 1860 (‘IPC’) and imposed sentence of death under Sections 302/34 of IPC and ten years’ rigorous imprisonment under Sections 307/34 of IPC.
The 4-Judges Bench of B.K. Mukherjea, S.R. Das*, Ghulam Hasan, and N.H. Bhagwati, JJ., opined that if there was doubt about the presence of very persons with whom the common intention was said to have been shared by the accused, then there must be doubt about the common intention itself, as without a person or persons to share with it, there could be no “common intention”. Thus, the Supreme Court set aside appellant’s conviction for murder in all three cases and also set aside his conviction under Sections 307/34 of IPC but convicted him under Section 3254 of IPC for grievous hurt and was sentenced to seven years’ rigorous imprisonment.
Background
In the present case, Bakshish, Karnal, and Surendra were sitting on a cot outside their house and Buta Singh and Sohan Singh, who were armed with a gun and a sword and appellant, who was armed with a sword only, arrived at the house and fired at them. Bakshish and Surendra were hit and fell and on hearing the firing, Piritu, their servant, rushed out with another person and raised an alarm, after which appellant inflicted injuries with sword on Piritu. Thereafter, Buta Singh, Sohan Singh, and appellant assaulted Karnal, Bakshish and Surendra, because of which Karnal and Bakshish died on the spot; Piritu died after ten/eleven days; and Surendra was still alive.
The Sessions Judge acquitted Buta Singh and Sohan Singh and convicted appellant and on appeal, the High Court upheld the convictions and sentences and dismissed the appeal.
It was thus submitted that the three accused attacked Karnal, Bakshish and Surendra and killed two of them, i.e, Karnal and Bakshish and tried to kill Surendra, therefore each one was vicariously responsible for the murders and the attempt to murder, having shared a common intention to kill.
Analysis, Law, and Decision
The Supreme Court stated that except in Piritu’s case, no particular injury could be ascribed to any one person, and appellant could not be held directly responsible for the gunshot wounds because he had no gun. The Supreme Court noted that Karnal had nine injuries, all inflicted by a sharp-edged weapon, and he had no gunshot wounds and doctor said that his death was caused by shock and haemorrhage and on the other hand, Bakshish had seven gunshot wounds, one contusion, one abrasion, and two incised wounds and his death was due to the gunshot wounds as the other wounds were not serious enough to cause death.
The Supreme Court noted that the Sessions Judge gave Buta Singh and Sohan Singh benefit of the doubt and acquitted them and thus opined that the moment the two accused were acquitted, the case against appellant also collapsed as far as Karnal, Bakshish and Surendra were concerned.
The Supreme Court opined that the common intention was said to have been shared with Buta Singh and Sohan Singh, and a common intention pre-supposes previous consort. Accordingly, if there was a doubt about the presence of the only two persons with whom the common intention was said to have been shared, there must be a doubt about the common intention itself, for without a person or persons to share it with there could be no “common intention”.
The Supreme Court stated that appellant was alleged to have committed murders and attempt to murder in furtherance of the common intention. The Supreme Court relied on Mahbub Shah v. King Emperor, 1945 SCC OnLine PC 5; Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 and Mamand v. Emperor, 1945 SCC OnLine PC 46, wherein the Privy Council held that the words in Section 34 of IPC “in furtherance of the common intention of all”, import of necessity a pre-arranged plan. A pre-arranged plan imports a prior meeting of minds. There must, therefore, be evidence from which a prior meeting of the minds to agree upon and arrange the plan could be deduced.
The Supreme Court noted that a suit in relation to a share purchased in the village was pending between Karnal, Bachan and appellant and opined that the bitterness might have been caused by the said litigation which became the cause of murders. The Supreme Court stated that if Section 34 was excluded, then only appellant’s individual actions were left against the four persons with whom the Court was concerned.
The Supreme Court, in case of Bakshish’s death noted that he died of the gunshot wounds and thus stated that the only wounds which appellant could have inflicted were two cuts on the right hand. No intention to kill could be inferred from that, thus, the utmost for which appellant could be convicted would be for simple hurt. Further, in case of Karnal’s death, some of the injuries were serious and were aimed at vital parts of the body but others were not, so in the absence of anything to indicate prior association, an intention to kill on appellant’s part could not be deduced.
The Supreme Court stated that though the lower courts consider all the witnesses reliable, they were not prepared to believe them about the identity of Buta Singh and Sohan Singh. Therefore, the witnesses were either extremely careless or were not reliable and there were small but material differences in their stories. The Supreme Court further stated if they were considered wholly reliable these discrepancies could have been dismissed as trivial but if they were not believed in the case of the two who played the principal part and did most of the damage, and if the courts of fact did not inform which of these varying versions they believed and why, it was impossible for this Court to determine the part that appellant played, without re-assessing the evidences.
The Supreme Court stated that from the evidence, it could not assume that appellant caused any of the serious injuries to Karnal and in case of Bakshish’s death, the witnesses were proved to be inaccurate in their observation and even if they were believed, then appellant caused nothing more than simple hurt to Bakshish. In the case of attack on Surendra, the Supreme Court stated that there were not enough details to prove that the attack by appellant was in furtherance of an intention by him to kill especially when it was clear that the witnesses were not telling the whole truth.
In Piritu’s case, the Supreme Court noted that the findings revealed that he was attacked by appellant alone and thus the question arose as to whether there was an intention to kill or to inflict such bodily injury as would be sufficient to cause death in the ordinary course of nature, or at least to inflict such bodily injury as he knew would be likely to cause death. The Supreme Court noted that when Piritu was examined, the doctor found only four injuries, out of which there was only one grievous wound which was on his head. The Civil Surgeon said that death was due to lobar pneumonia, the one on the head, acting as a predisposing cause. The Supreme Court opined that this means that the injury on the head rendered the deceased susceptible to lobar pneumonia, but merely to cause susceptibility to an infection which might end in death, for even lobar pneumonia did not necessarily cause death in the ordinary course of nature, was not enough to bring the matter within the purview of Section 300 of IPC nor did it fall under Section 304 of IPC and the utmost for which appellant could be convicted in this case was for grievous hurt under Section 325 of IPC.
The Supreme Court thus set aside appellant’s conviction for murder in all three cases and also set aside his conviction under Sections 307/34 of IPC but convicted him under Section 325 of IPC for grievous hurt on Piritu and was sentenced to seven years’ rigorous imprisonment.
[Darshan Singh v. State of U.P., (1953) 2 SCC 610, decided on 01-12-1953]
*Judgment authored by: Justice Vivian Bose
Advocates who appeared in this case :
For the Appellant: M.L. Sethi, Advocate
For the Respondent: Jagadish Chandra, Advocate
**Note: Common Intention
In Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646, the Supreme Court opined that Section 34 of the Penal Code, 1860 (‘IPC’) applies where two or more accused are present, and the common intention of those accused to commit crime in question is established. Common intention means a pre-oriented plan and acting in pursuance of the plan; thus, common intention must exist prior to commission of act in a point of time. Further, in Vijendra Singh v. State of U.P., (2017) 11 SCC 129, the Supreme Court summarized the principles for inferring common intention and opined that Section 34 of IPC lays down a principle of joint and vicarious liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention and before a man can be vicariously convicted for criminal act of another, the act must have been done in furtherance of common intention of them all.
1. Corresponding Section 103(1) of Nyaya Sanhita, 2023 (BNS, 2023)
