Holding

The appellant is guilty only of the offence under Section 324 IPC; Section 34 IPC does not apply and the conviction under Section 304 Part I read with Section 34 is set aside.

Summary

The appellant, Nooruddin, was charged along with six others for offences including assault, grievous hurt and the death of Udaya Kumar. The trial court convicted him under Sections 143, 148, 341, 326, 302 read with Section 149 IPC, while acquitting the co‑accused on the ground that they were not named in the FIR. On appeal, the High Court upheld the conviction under Section 324 read with Section 34 and added a conviction under Section 304 Part I read with Section 34. The Supreme Court held that the evidence did not establish a common intention between the appellant and the other accused, especially since the co‑accused were acquitted and their names were absent from the FIR; consequently Section 34 could not be invoked. The Court therefore set aside the conviction under Section 304 Part I read with Section 34 and affirmed only the conviction under Section 324 IPC, ordering the appellant’s release as he had already served the sentence.

Issues considered

Whether the appellant can be held liable under Section 304 Part I read with Section 34 IPC for the death of the deceased.
Whether Section 34 IPC, which requires a common intention among the accused, is attracted in the present facts.
Whether the conviction under Section 324 read with Section 34 can be sustained in view of the lack of specific evidence linking the appellant to the fatal injuries.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 143, s. 148, s. 149, s. 302, s. 304(Part I), s. 324, s. 326, s. 34, s. 341

Subjects

common intentionSection 34 IPCculpable homicide not amounting to murdervoluntarily causing hurtFIReye‑witness testimonyacquittal of co‑accusedconviction under Section 324

Judgment

A NOOR@ NOORDHIN
-..r -~

v.
STATEOFKARNATAKA

MAY 11,2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Penal Code, 1860-ss. 324 and 34-Death caused of one person-By
several accused including appellant-accused-Evidence of eye-witnesses ~
revealing that deceased was chased and assaulted by all the accused-
c Specific role played by the appellant not disclosed-Trial Court acquitting
other accused persons in view of absence of their names in FIR and convicting
the appellant u/ss 143, 148, 341, 326 and 302 rlw 149 /PC-In appeal
against conviction, conviction of appellant only u!s 324 rlw s. 34 and 304
part I rlw s.34-0n appeal, held: Appellant is guilty only u/s 324 and not
D u/s 304, Part I rlw s.34-Appellant cannot be said to have common intention
with the other accused-Hence s.34 would not be attracted

Appellant-accused alongwith other accused persons were charged u/ss >-
143, 148, 341, 326, 302, 1208 r/w s.149 IPC for causing death of one person.
Prosecution case was that when the deceased and PW-4 (an injured eye- ---
E witness) were going on a motorcycle., they were stopped by the accused persons.
Appellant attacked the deceased. While warding off the attack, PW 4 got
inured. When the deceased tried to escape, all the accused chased him and
assaulted him. Statement of PW-4 was treated as FIR. In FIR 4 accused
including the appellant-accused had been named. But in his deposition PW-
4 stated that the names of the accused other than the appellant, were taken
F
wrongly. During trial PW-4 (first informant) and PW-5 (eye witness) proved
the prosecution case only to the extent of FIR. Trial Court convicted the
y ..,_
appellant-accused u/ss 143, 148, 341, 326, 302 r/w s.149 IPC' and acquitted
the other accused on the ground that out of the seven accused, apart from the
appellant, nobody was named in the FIR. State did not prefer any appeal against
G acquittal. In appeal against conviction, High Court acquitted the appellant
u/s 143, 148 and 341 and convicted him u/s 324 r/w s.34 IPC and also under
s. 304, Part I r/w s. 34 IPC. Hence the present cross appeals.

Partly allowing the appeal of the accused and dismissing that of the
State, the Court
H 400
NOOR@NOORDHIN 1·. STATE OF KARNATAKA 401
'<y HELD: 1. Appellant cannot be held to be guilty of commission of an A
offence under Section 304, Part I read with Section 34 IPC. His conviction
can be upheld only under Section 324 IPC. (Para 19( (408-D-E(

Harshadsingh fqhelvansingh Thakore v. Slate ofGujarat, (1976) 4 SCC
640; Golla Pullanna and Anr. v. State of A.P., (1996) 10 SCC 223; State of
U.P. v. Jhinkoo Nai. (2001 ( 6 SCC 503, distinguished B
Baul and Anr. v. The SJa/e of U.P .. (1968) 2 SCR 450 and Sukhram s!o
Ramralan v. State of M.P., 1989 Supp 1 SCC 214, relied on
., .(__I
2. A common intention may be developed on the spot. Although a person
may not be held guilty for having a common object, in a given situation, he c
may be held guilty for having a common intention, but such common intention
must be shared with others. The recital made in the first information report
clearly goes to show that the appellant had sought to attack the deceased while
he was on his motorcycle. The attack was warded off by PW-4. He suffered
an injury. The deceased thereafter ran to the school building which according
D
to the sketch map drawn by the investigating officer was at a distance of about
120 feet from the main road. The dead body of the deceased was found only
- ,.-'i'
on the stair case of the school The first information report as also the evidence .
of PWs 4 and 5 reveals that the deceased was chased by all the accused. He
was assaulted by all the accused. The specific role played by the appellant
has not been disclosed. Whether the appellant alone was responsible for E
causing the death has also not been stated. (Para 13] (405-G-H; 406-A-B(

3. The deceased suffered as many as 19 injuries. Some injuries were
inflicted on vital parts of the body and some were only on the hands and legs.
There is nothing on record to show that the appellant inflicted any injury on F
a vital part of the body of the deceased. In the aforementioned situation, Section
34IPC would not be attracted. (Para 14) [406-C)

4. The very fact that the appellants have been convicted only under
Section 304 Part I IPC, itself suggests that they had no intention to commit
the murder of the deceased and, thus, the question of common intention in G
this case does not arise. (Para 15) (406-E-F)

5. All the accused, other than the appellant, have been acquitted by the
Trial Judge. The State did not prefer any appeal thereagainst. The
prosecution, therefore, cannoi say that the appellant had any common intention
with any other accused persons who were named in the First Information H
402 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Report. The matter might be different where a person is said to have formed Y"
common intention with other persons. The prosecution may succeed in
obtaining a conviction against the appellant for commission of an offence under
Section 34 IPC if the names of the other accused persons and the roles played
by them are known. Specific overt act of the accused is not only known but
B is proved. In this case the first information report was against unknown
persons. PW-4, however, retracted his statement raising a plea of mistake
on his part in taking the names of three persons. He had also accepted his
mistake in naming the assailant. !Para 161 (406-F-H; 407-A-B(
.....
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 734 of
c 2006.
From the Final Judgment and Order dated 13.09.2005 of the High Court
of Kamataka at Bangalore in Criminal Appeal No. 359 of 2005.

WITH
D Criminal Appeal No. 733 of2006.

S.N. Bhat, N.P. S. Panwar and D.P. Chaturvedi for the Appeliant.

Anil Kr. Mishra, Sanjay R. Hedge, Vikrant Yadav and Amit Kumar
-
E Chawala for the Respondent.
The Judgment of the Comt was delivered by

S.B. SINHA, J. !. These appeals arise out of a judgment and order
dated 13.09.2005 passed by a Division Bench of the High Court ofKamataka
F at Bangalore in Criminal Appeal No. 359 of2005.

2. Appellant with six others was charged for commission of offences
i
under Sections 143, 148, 341, 326, 302, 120B read with Section 149 of the
Indian Penal Code for causing death of one Udaya Kumar (deceased) on
--
19.I 0.2003.
G 3. The case of prosecution is as under.

19.10.2003 was a Sunday. The deceased and Sudhakar Bollaje (PW-4)
were going on a motorcycle from Krishnapura to Ganeshpur. Allegedly, the
motorcycle was stopped near Block No. II of village Kattipalla by a boy aged
H about 20 years. Appellant herein together with Siraj, Jubaid and Iqbal
NOOR@NOORDHIN v. ST ATE OF KARNA TAKA [S.B. SINHA. J.) 403
accompanied by 2-3 persons surrounded the motorcycle. They were armed A
with swords and cricket bats. Nooruddin. appellant herein, attacked the
deceased with a sword, which he was carrying. PW-4 attempted to prevent
it and in the process sustained an injury on his left hand. Udaya jumped from
the motorcycle and ran towards the playground of the school. While he was
climbing on the steps of the school, the appellant and his associates chased B
him and attaci-:ed him with swords and bats. PW-4 was also hit by a sword
on his leg. He escaped and ran away.

4. PW-4 allegedly met one Ashok Shetty (PW-11) who examined himself
as PW- I I. They went to Suratkal Padmavathi Hospital wherein he was
admitted. An information was sent to the police station. Statement of PW- C
4 was recorded. It was treated to be a First Information Report. However,

. a tense situation came into being. Even an inquest could not be conducted
immediately.

5. In his statement before the police, PW-4 took the names of Siraj,
Jubaid and Iqbal. However, in his deposition, he stated that he had taken D
their names wrongly. Accorc.ing to him, the real culprits are the appellant
herein and Accused Nos. 2 to 7. All the accused were arrested on 21.10.2003.
Some weapons were allegedly recovered.

6. In view of the question involved herein, it is not necessary for us to
notice the evidence of the prosecution witnesses examined on behalf of the E
State. It is suffice to say that the learned Trial Judge inter alia on the premise
that out of seven accused, apart from the appellant, nobody was named in
the First Information Report, recorded a judgment of acquittal. Appellant
herein was convicted under Sections 143, 148, 341, 326, 302 read with Section
149 of the Indian Penal Code. The State did not prefer any appeal against F
the said judgment of acquittal. An appeal was preferred against the judgment
of his conviction before the High Court by the appellant. By reason of the
impugned judgment, the High Court allowed the said appeal. The High Court
found the appellant guilty under Section 324 read with Section 34 of the
Indian Penal Code and sentenced him to rigorous imprisonment for one year G
and also under Section 304, Part I read with Section 34 sentenced him to
undergo rigorous imprisonment for eight years.

7. Both the appellant and the State are before us.

8. With a view to appreciate the question involved, we may notice the H
first information report.
404 SUPREME COURT REPORTS (2007] 6 S.C.R.

A PW-4, the first informant and PW-5, Balakrishan who was also an eye-
witness proved the prosecution case only to the extent of the First Information
Report. The State in their respective examinations in chief only proved the
contents of the first information report.

9. It is also relevant to mention that there were two cricket playgrounds.
B The incident occurred when a cricket match was being played on one of the
grounds. Appellant was, however, said to be on the other ground. According
to PWs 4 and 5, a quarrel ensued resulting in injury being caused to Jmthiyaz
by the deceased and PW-4, whereafter they were assaulted by others. It has
not been disputed that Imthiyaz suffered an injury. It was proved by PW-
C 17 Dr. Hemalatha and the following injuries were noticed:

"Obliquely running lateral cut lacerated wound measuring 14 x 5 ems.,
over the right scapula skin deep exposing the muscle underneath.
Wound covered with prulent discharge. Edges of the wound show
granulation. Age of the injury is 50 to 58 hours and that he was
D referred to major hospital for further treatment."

10. Admittedly, injuries on the person of lmthiyaz were not explained.
A plea was taken in that behalf, in their respective examinations, under
Section 313 of the Code of Criminal Procedure, by the appellant and Imthiyaz.
Whereas presence of the appellant is disputed, presence of lmthiyaz is, thus,
E not disputed. Despite the same, lmthiyaz has been acquitted.

11. The High Court acquitted the appellant under Sections 143 and 148
of the Indian Penal Code. He has also been acquitted for commission of an
offence under Section 341 of the Indian Penal Code.
F The High Court while agreeing with the findings of the learned Trial
Judge opined that the appellant was one of the persons who had participated
in the attack on Udaya and Sudhakar Bollaje and that the blow was given by
Accused No. I with a sword. It, however, was observed that he had no
intention to kill. PW-10 categorically stated that the quarrel arose while
G playing the game. Although PW-10 was declared hostile, the High Court
opined:

"As regards the alleged murder of Sri Udaya, it is submitted by the
learned counsel for the appellant that the circumstances as disclosed
by P.W.10 and as could be deduced indicate the possibility of a
H quarrel between the deceased and P.W.4 on the one side and the
NOOR@NOORDHIN v. STATE OF KARNAT AKA [S.B. SINHA, J.] 405
alleged culprits on the other side and since the deceased and P.W.4 A
could have been anned, it would be an incident where in a sudden
fight in the heat of moment, fatal injury could have been caused to
Udaya. If it is so, the murder would fall either under section 326 of
the !PC, or under exception (4) of section 300 of the !PC. As we
observed above. particularly, considering the evidence of P.W. l 0, the B
possibility of Udaya and P.W.4 coming on the ground is more and in
all probability a quarrel started between Udaya and P. W.4 on the one
side and the accused No. I and others on the other side. The injuries
suffered by accused No. 2 indicate that possibility, and the injuries
sustained by Udaya and P.W.4 can be considered as injuries caused
by the appellant/ accused No. I and his companions in a sudden fight C
and in the heat of moment. The circumstances do not show that
undue advantage was taken by accused No. I. The act though rash
was in the heat of the moment and it squarely falls under Exception
(4) of Section 300 of the !PC, and consequently the death of Udaya
by the act of accused No. 1 and others would amount to culpable
homicide not amounting to murder. Having regard to the circumstances · D
disclosed and the fact that the accused No. 1 and his companions
used swords, it cannot be said that the attack was not with the
intention of killing Udaya. Consequently, the act falls under Part I
of Section 304 of !PC and not under section 302 of the !PC."

Offences under Sections 120-B, 143, 148 and 341 of the Indian Penal
E
Code have not been proved.

12. Section 34 of the Indian Penal Code reads as under:

"34. Acts done by several persons in furtherance of common intention F
When a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in
the same manner as if it were done by him alone."

13. A common intention may be developed on the spot. Although a
person may not be held guilty for having a common object, in a given G
situation, he may be held guilty for having a common intention, but such
common intention must be shared with others. The recital made in the first
infonnation report which has been noticed by us herein clearly goes to show
that the appellant had sought to attack the deceased while he was on his
motorcycle. The attack was warded off by PW-4. He suffered an injury. The H
406 SUPREME COURT REPORTS [2007] 6 S.C.R.

A deceased thereafter ran to the school building which according to the sketch
map drawn by the investigating officer was at a distance of about 120 feet
from the main road. The dead body of Udaya was found only on the stair
case of the school. The first information report as also the evidence of PWs
4 and 5 reveals that the deceased was chased by all the accused. He was
assaulted by all the accused. The specific role played by the appellant has
B not been disclosed. Whether the appellant alone was responsible for causing
the death has also not been stated.

14. The deceased suffered as many as 19 injuries. Some injuries were
inflicted on vital parts of the body and some were only on the hands and legs.
C There is nothing on record to show that the appellant inflicted any injury on
a vital part of the body of the deceased. In the aforementioned situation, in
our opinion, Section 34 of the Indian Penal Code would not be attracted.

15. Reliance has been placed by Mr. Hegde on Harshadsingh
Pahelvansingh Thakore v. State ofGujarat, [1976] 4 SCC 640 which has also
D been noticed by this Court in Golla Pu/lanna and Anr. v. State ofA.P., (1996]
10 SCC 223 and State of U.P. v. Jhinkoo Nai, (2001] 6 SCC 503. The said
decisions are not attracted in this case. In the said cases, common intention
had been held to have been proved. Therein, this Court was dealing with the
offence of murder. As the common intention to commit the said offence was
established, individual roles played by each of the accused were held to be
E of not much significance. The very fact that the appellants have been
convicted only under Section 304 Part I of the Indian Penal Code itself
suggests that they had no intention to commit the murder of the deceased
and, thus, the question of common intention in this case does not arise.

F 16. We have noticed hereinbefore that all the accused, other than the
appellant, have been acquitted by the learned Trial Judge. The State did not
prefer any appeal thereagainst. The prosecution, therefore, cannot say that
the appellant had any common intention with any other accused persons who
were named in the First Information Report. The matter might be different
'-
where a person is said to have formed common intention with other persons.
G The prosecution may succeed in obtaining a conviction against the appellant
for commission of an offence under Section 34 of the Indian Penal Code if
the names of the other accused persons and the roles played by them are
known. Specific overt act of the accused is not only known but is proved.
In this case the first information report was against unknown persons. PW-
H 4, however, retracted his statement raising a plea of mistake on his part in
NOOR@NOORDHIN v. STATE OF KARNATAKA [S.B. SlNHA. J.] 407

taking the names of three persons. He had also accepted his mistake in A
naming his assailant. Whereas in the first information report, he named Siraj,
in a subsequent statement, he named one Imran.

17. In BaulandAnrv. TheStateofU.P., [1968] 2 SCR450: AIR(l968)
SC 728, it was held:
B
"7. No doubt the original prosecution case showed that Sadhai and
Ramdeo both hit the deceased on the head with their lathies . One is
tempted to divide the two fatal injuries between the two assailants
... I
.J..
and to hold that one each was caused by them. If there was common
intention established in the case the prosecution would not have been
required to prove which of the injuries was caused by which assailant. c
But when common intention is not proved the prosecution must
establish the exact nature of the injury caused by each accused and
more so in this case when one of the accused has got the benefit of
the doubt and has been acquitted. It cannot, therefore, be postulated
that Sadhai alone caused all the injuries on the head of the deceased. D

..
Once that position arises the doubt remains as to whether the injuries
caused by Sadhai were of the character which would bring his case
---f'" within Section 302. It may be that the effect of the first blow became
} more prominent because another blow landing immediately after it
caused more fractures to the skull than the first blow had caused.
These doubts prompt us to give the benefit of doubt to Sadhai. We E
think that his conviction can be safely rested under Section 325 of the
Indian Penal Code, but it is difficult to hold in a case of this type that
his guilt amounts to murder simpliciter because he must be held
responsible for all the injuries that were caused to the deceased. We
convict him instead of Section 302 for an offence under Section 325 F
of the Indian Penal Code and set aside the sentence of imprisonment
for life and instead sentence him to rigorous imprisonment for seven
~ l"
years."

18. Yet again in Sukhram slo Ramratan v. State of MP., [1989] Supp 1
sec 214, the law has been stated in the following terms: G
"10. There is another aspect of the matter which has also escaped the
notice of the High Court when it sustained the conviction of the
appellant under Section 302 read with Section 34 and Section 436 read
with Section 34 !PC while acquitting accused Gokul of those charges.
H
408 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Though the accused Gokul and the appellant were individually charged
under Sections 302 and 436 !PC they were convicted only under the
alternative charges under Section 302 read with Section 34 and Section
436 read with Section 34 !PC by the Sessions Judge. Consequently,
the appellant's convictions can be sustained only if the High Court
had sustained the convictions awarded to accused Gokul also.
B Inasmuch as the High Court has given the benefit of doubt to accused
Gokul and acquitted him, it follows that the appellant's convictions for
the two substantive offences read with Section 34 !PC cannot be
sustained because this is a case where the co-accused is a named
person and he has been acquitted and by reason of it the appellant
c cannot be held to have acted conjointly with anyone in the commission
of the offences. This position of law is well settled by this Court and
we may only refer to a few decisions in this behalf vide Prabhu
Babaji v. State of Bombay, Krishna Govind Patil, v. State of
Maharashtra and Baul v. State of U.P. "

D 19. Appellant, therefore, cannot be held to be guilty of commission of
an offence under Section 304, Part I read with Section 34 of the Indian Penal
Code. His conviction can be upheld only under Section 324 of the Indian
Penal Code.

20. The appeal filed by the appellant is allowed to the aforementioned
E extent and that of the State is dismissed. While setting aside the conviction
under Section 304, Part I read with Section 34 of the Indian Penal Code, his
conviction under Section 324 of the Indian Penal Code is upheld. As the
appellant has already undergone the sentence imposed upon him by the High
Court, he is directed to be set at liberty, unless wanted in connection with
F any other case.
KKT. Appeal No. 734/2006 partly allowed and
Appeal No. 733'12006 dismissed.