Holding

Section 34 cannot be invoked where the accused lack a common intention to cause murder; the conviction should be under Section 326 read with Section 34.

Summary

Four accused went to the victim's house; the unarmed accused No.2 and No.3 restrained the victim while accused No.1, armed with a knife, inflicted fatal blows. The victim died, leading to conviction of accused Nos.1,2,3 under Section 302 read with Section 34 of the IPC, while No.4 was acquitted. The appellants, Nos.2 and 3, challenged the applicability of Section 34, arguing lack of common intention to murder. The Supreme Court held that Section 34 requires both a common intention and participation in the offence; since the unarmed accused did not share a common intention to kill, Section 34 could not be invoked for murder. Accordingly, the appropriate conviction is under Section 326 read with Section 34, with a three‑year custodial sentence, and the appeal was allowed.

Issues considered

Whether Section 34 of the IPC can be applied to the unarmed accused for a murder charge under Section 302 read with Section 34.
Whether a common intention to cause murder existed among the accused.

Legislation cited

Indian Penal Code, 1860s. 302, s. 326, s. 34

Subjects

murdercommon intentionSection 34 IPCculpable homicideappellate jurisdictionvicarious liabilityconviction

Judgment

[2008] 17 $.C.R. 171
• A
LAXMANJI AND ANR.
-~ v.
STATE OF GUJARAT
(Criminal Appeal No.1972 of 2008)
DECEMBER 5, 2008
B
[DR. ARiJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
\
Penal Code, 1860:
c
s.302 rlw s.34 and s.326 rlw s.34 - Four accused -
~ Accused nos. 2 and 3, who were unarmed, caught hold of the
victim while accused no.1, who was carrying a knife, inflicted
knife blows on right abdomen and thigh of the victim - Victim
taken to hospital where he died - Conviction of accused D
nos. 2 and 3 u/s.302 rlw s.34 - Justification of - Held: Not
justified - Accused nos. 2 and 3 cannot· be attributed any
common intention to cause the murder of the victim - Hence,
appropriate conviction would be under s.326 rlw s.34 and not
uls.302 rlw s.34.
E
s.34 - Applicability of - Held: In order to bring a case
under s.34 it is not necessary that there must be prior
conspiracy or pre-meditation - Common intention can be
formed in the course of occurrence - To apply s.34, apart
from the fact that there should be two or more accused, two F
i
4- factors must be established:(i) common intention and (ii)
participation of accused in commission of offence - If
common intention is proved, but no overt act is attributed to
the individual accused, s.34 will be attracted as essentially
it involves vicarious liability - But if participation of the .. G
accused in the crime is proved and common intention is
..
absent, s.34 cannot be invoked.
"-1

The prosecution case was that the four accused went
~
--t 171 H
172 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
,.,.
A to the house of the victim whereafter accused no.2 and
3, who were unarmed, caught hold of the victim While -r
accused no.1, who was carrying a knife, inflicted knife ~

blows on the right abdomen as also the thigh of the
victim. The victim was taken to the hospital where he
B succumbed to his injuries. ,...,,
~

The trial court convicted accused nos.1, 2 and 3
under s.302 r/w 34 IPC but acquitted accused no.4. The
conviction of accused nos.1 to 3 was upheld by High
-1
Court. The present appeal has been filed by accused nos.
c 2 and 3.

Allowing the appeal, the Court ~

HELD: 1.1. In order to bring a case under s.34 it is
D not necessary that there must be a prior conspiracy or
pre-meditation. The common intention can be formed in
the course of occurrence. To apply s.34 apart from the
·)-
fact that there should be two or more accused, two
factors must be established:(i) common intention and (ii)
participation of accused in the commission of an offence.
E
If common intention is proved but no overt act is
·.•
attributed to the individual accused, s.34 will be attracted
as essentially it involves vicarious liabili,ty. But if ~

participation of the accused in the crime· is proved and ·-
~
common intention is absent, s.34 cannot be invoked.
F [Para 1O] [175-D-F]
I
-+-
1.2. The factual scenario goes to show that the
appellants cannot be attributed any common intention to
cause the murder of the deceased. In the background ~.-

G facts, the appropriate conviction would be s.326 read with
s.34 IPC. Custodial sentence of three years would meet
the ends of justice. [Paras 10 and 11] [175-D-Gl
r·
Jai Bhagwan v. State of Haryana AIR 1999 SC 1083, ') -
;--,
relied on.
H
LAXMANJI AND ANR. v. STATE OF GUJARAT 173

Case Law Reference: A
-r AIR 1999 SC 1083 relied on ·Para 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1972 of 2008.
From the Judgment and final Order dated 17.1.2008 of the B
High Court of Gujarat at Ahmadabad in Criminal Appeal Nos.
259 of 301 of 1999.
\ Shankar Divate for the Appellants.
Hemantika Wahi and Mamta Tushir for the Respondent. c
_.., The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of the
D
Division Bench of the Gujarat High Court upholding the
conviction of the accused appellant nos. 1 to 3. Four persons
...; faced trial and the trial court directed acquittal of accused No .
4. All the accused persons were charged for commission of
offence punishabJe under Section 302 read with Section 34 of
the Indian Penal Code, 1860 ( in short 'IPC'). Three appeals E
were filed before the High Court. Two of them were by accused
No. 1 (Criminal Appeal No. 259/99) and the other Criminal
Appeal No. 301 of 1999 by accused nos. 2 and 3. Criminal
Appeal 380/1999 was preferred by the State questioning
acquittal of original accused No. 4. F
\
4- 3. The prosecution version as unfolded during trial is as
follows:
4. On 26/10/1997, at around 15.30 hours, Nainaben,
daughter of deceased -Bhamraji, had gone to fetch water from G
a nearby public tap. As there was no supply of water in the said
tap at the relevant point of time, Nianaben went to the house
-< original accused No. 3, which was situated in the
neighbourhood of her house, to fetch the same. While Naina~n
• '"""
was fetching water, original accused Nos. 1,2 and 3 and some H
174 SUPREME COURT REPORTS (2008] 17 S.C.R.
e
A other persons began to tease Nainaben. Therefore, Nainaben
returned to her house. --t-

5. After returning to her house, Nainaben informed about
the said incident to her father deceased Bhamarji. As a result
thereof, the deceased-Bhamraji went to the house of original
B accused No. 3 and warned them not to re.peat such thing in
future. Thereafter, the deceased left the house of original
accused No. 3.
-1
6. Sometime later, all the four accused 'pe·rsons went to the
c house of deceased-Bhamraji and during that time, original.
accused No. 1 was having a "Rampuri" -knife, original accused
No. 4 was having a stick while the tWo other' accused persons,
.
~
i.e. original accused Nos. 2 and 3, were unarmed. Original
accused Nos. 2 and 3 caught hold of the deceased while
original accused No. 1, who was having a knife, Inflicted knife
D
blows on 'the right hand side region of the abdomen as also
the thigh 'region of the deceased. As a result thereof, the
deeeased·fell down and alltlie accused persons fled· the scene
of offence. ,- · ""
E 7; Thereafter, the deceased was taken to $ardarnagar
Police Station in an Auto-rickshaaw. At that time, the P.S.I. of
Sardarnagar Police Station, Kanaksing .Bhulabhai Rathod,
advis~d that the deceased be taken to the Civil Hospital,
Ahmedabad for necessary treatment.- Accordingly, the
F deceased was taken to Civil Hospital, Ahmadabad, where he
was given riecessary tr~atment. --~-
j

8. ·On the basis of information given case was registered
for offence punishable under Section 326 read with Section 34
IPC. Subsequen.tly the dying declaration of the ~eceased was
G sought to be·recorded. But before the dying declaration could
be· recorded the decEiased succumbed to injuries on
27.10.1997. Therefore Section 302 IPC was added to the y· !
complaint. After investigation, charge sheet was filed. Since the
accused persons abjurd guilt, trial was held. The trial c.ourt. y

H believed 'the .evidence "placed on record and convicted the
"""'""
,>
LAXMANJI AND ANR. v. STATE OF GUJARAT 175
[DR. ARIJIT PASAYAT, J.]

accused nos. 1, 2 and 3 while directed acquittal of accused A
_,_ No. 4. As noted above three appeals were filed before the High
Court.
9. The High Court dismissed all .the appeals. When the
matter was placed for grant of leave to file appeal, the petition
8
was dismissed qua Chandan singh accused No. 1. Therefore
present appeal relates to other two accused persons. Learned
counsel for the appellants submitted that A 2 was not armed. It
is therefore submitted that the appellant cannot be held guilty
of offence punishable under Section 302 read with Section 34
IPC. Learned counsel for the State on the other supported the C

- judgment.
10. The basic question arises for consideration is whether
Section 34 can be applied so far as the appellants are
concerned. The factual scenario as noted above goes to show 0
that the appellant cannot be attributed any common intention
to cause the murder of the deceased. In order to bring a case
under Section 34 it is not necessary that there must be a prior
conspiracy or pre-meditation. The common intention can be
formed in the course of occurrence. To apply Section 34 apart E
from the fact that there should be two or more accused, two
factors must be established :(i) common intention and (ii)
participation .of accused in the commission of an offence. If
common intention is proved but no overt act is attributed to the
individual accused, section 34 will be attracted as essentially
, it involves vicarious liability. But if participation of the accused F
_.. - in the crime is proved and common intention is absent, section
34 cannot be invoked. (See Jai Bhagwan VS. State of
Haryana, AIR 1999 SC 1083).
11. In the background facts, the appropriate conviction G
would be Section 326 read with Section 34 IPC. Custodial
sentence of three years would meet the ends of justice.
12. The appeal is allowed with the above observation.
B.B.B. Appeal allowed.
H