RAGHBIR CHAND & ORS.versusSTATE OF PUNJAB

                        [2013] 11 S.C.R. 744


A                    RAGHBIR CHAND & ORS.
                                   v.
                        STATE OF PUNJAB
                (Criminal Appeal No. 2028 of 2009)
                         AUGUST 05, 2013
B
        [P. SATHASIVAM, CJI. AND RANJAN GOGOi, JJ.J

        Penal Code, 1860:

C       ss. 302, 324 and 323 rlw. s. 34 - Prosecution under - Of
  4 accused - 3 injured eye-witnesses to the incident -
  Conviction by courts below - On appeal, held: The
  prosecution case is established by the evidence of injured
  eye-witnesses which was corroborated by medical evidence
  - Conviction of all the accused ulss. 324 and 323 r/w. s. 34
D is affirmed - But as regards conviction uls. 302134, in the facts
  of the case, accused No.4 alone can be held responsible for
  the death of the deceased and not accused Nos. 1, 2 and 3
  - Hence, conviction of accused No. 4 u/s. 302 is affirmed and
  conviction of accused Nos. 1, 2 and 3 is set aside.
E
        s. 34 - Liability under - Invocation of - Held: Liability ul
  s. 34 is a matter of inference to be drawn from the facts and
  circumstances of each case.

F     Appellants-accused (accused Nos. 1, 2, 3 and 4) were
  charged u/ss. 302, 324 and 323 r/w. s. 34 IPC. The
  prosecution case was that the accused assaulted PWs
  2 and 4 (brothers) and when during the assault, their
  brothers (PW 5 and the deceased) came to their rescue,
  they were also assaulted. The deceased, the eye-
G witnesses (PWs 2, 4 and 5) as well as the accused Nos.
  1, 2 and 3 were medically examined. The trial court
  convicted the accused u/ss. 302, 324 and 323 r/w. s. 34
  IPC and sentenced them to life imprisonment for the
                            744
H
      RAGHBIR CHAND v STATE OF PUNJAB                  745


offence u/s. 302 and for 2 years and 1 year RI for the        A
offences u/ss. 324 and 323 respectively. High Court
confirmed their conviction. Hence the present appeal.

    Partly allowing the appeal, the Court

     HELD: 1. The evidence of PWs 2, 4 and 5, i.e. the        B
injured eye-witnesses, appear to be consistent and have
remained largely unshaken in cross-examination. The
aforesaid 3 witnesses have clearly and categorically
narrated the sequence of events alleged by the
prosecution and the assault committed by the accused          C
persons on them as well as on the deceased with the
weapons that they were armed with. The evidence of
PWs 2, 4 and 5 stands fully corroborated by the evidence
of PW-1 who found as many as 4 punctured injuries in
the abdomen of the deceased and also lacerated and            D
incised injuries on PWs 2, 4 and 5. Taking into account
the consistency in the version of the injured witnesses
and the corroboration of their testimonies by the medical
evidence of PW-1, it can be safely held that the incident
as narrated by the prosecution had taken place and the        E
involvement of the accused persons, as alleged, have
been duly proved. [Para 4) [750-D-G]

     2. Common intention which is the gist of the principle
of vicarious liability enshrined by Section 34 of the Penal
                                                              F
Code can be the result of a premeditated decision
between several co-accused or in a given case such
common intention can very well develop on the spur of
the moment or at the scene of the crime. What is of
importance and, therefore, must be ascertained is the
meeting of minds of the co-accused that the particular        G
criminal act should be committed. Once the court can
consider it safe to come to such a conclusion only then
apportionment of liability amongst the co-accused would
be permissible with the aid of Section 34 of the Penal
Code. Liability of an accused under Section 34, therefore,    H
   746      SUPREME COURT REPORTS             [2013] 11 S.C.R.


A is a matter of inference to be drawn from the facts and
  circumstances of each case. [Para 8] [752-D-F]

       Sripathi vs. State of Karnataka (2009) 11 SCC 660: 2009
  (5) SCR 309; Abdul Mannan vs. State of Assam (2010) 3
B SCC 381: 2010 (2) SCR 1030; Abdul Sayeed vs. State of
  M.P. (2010) 10 sec 259: 2010 (13) SCR 311- relied on.

       3. The facts of the case cannot constitute a safe and
  sufficient basis to come to the conclusion that an
  inference of common intention of all the four accused to
C cause the death of the deceased can be safely made so
  as to hold the accused 1, 2 and 3 vicariously liable for the .
  death of the deceased. Therefore, the conviction of the
  accused-appellants 1, 2 and 3 under Section 302 read
  with section 34 requires interference. Accordingly, the
D said conviction and sentence imposed on the accused-
  appellants No. 1, 2 and 3 is set aside. However, the
  evidence of PWs 2, 4 and 5 having established the assault
  on the injured eye-witnesses by the aforesaid accused-
  appellants 1, 2 and 3 hence the conviction ,of the said
E appellants under Section 324 read with Section 34 and
  Section 323 should be maintained. Therefore, the said part
  of the judgment of the High Court along with the
  sentences imposed is affirmed. [Para 9] [759-D-G]

       4. There can be no manner of doubt that the death
F of the deceased was occasioned by the assault
  committed by the accused-appellant No.4 in the
  abdominal region of the deceased with a knife. A person
  inflicting 4-5 knife blows on a vital part of the body i.e.
  abdomen cannot but be attributed with the requisite
G intention to cause death or alternatively with the intention
  of causing such bodily injury as is likely to cause the
  death of the victim. [Para 12] (762-D-H]

      5. While there can be no doubt that the assault on the
H deceased was committed without any pre-meditation and
      RAGHBIR CHAND v STATE OF PUNJAB                     747

also in a sudden fight and even if it is assumed that the        A
said act was in the heat of passion, what cannot be lost
sight of is the infliction of 4-5 knife blows in the abdominal
region of the deceased. Had the appellant No. 4 dealt a
single blow on the deceased, perhaps, it would have
been open for this Court to seriously consider the               B
applicability of the latter part of the 4th exception to
Section 300 to the present case, namely, that the
appellant had not taken undue advantage or had not
acted in a cruel or unusual manner. In the present case,
no such conclusion can be reasonably reached in view             c
of the repeated blows inflicted by accused-appellant No.
4 on a vital part of the body of the deceased. In the facts
and circumstances of the case, the correct conclusion
would be that the accused-appellant No. 4 had the
requisite intention if not of causing death, at least, of        0
causing such bodily injury which was likely to cause
death. The acts attributable to the accused-appellant No.4
do not also attract any of the exceptions enumerated
under Section 300 IPC. Therefore, the conviction and the
sentence of the accused-appellant No. 4 under ~ection
                                                                 E
302 is affirmed. Insofar as the conviction of the said
accused-appellant for the offences under Sections 324
and 323 read with Section 34 is concerned, the same is
also affirmed. [Para 12] [763-B-G]

    State of Andhra Pradesh vs. Rayavarapu Punnayya and          F
Anr. (1976) 4 SCC 382: 1977 (1) SCR 601; Ghelabhai
Jagma/bhai Bhawad and Ors. vs. State of Gujarat (2008) 17
sec 651 - relied on.
                     Case Law Reference:
                                                                 G
    2009 (5) SCR 309          relied on            Para 8
    2010 (2) SCR 1030         relied on            Para 8
    2010 (13) SCR 311         relied on            Para 8
                                                                 H
        748      SUPREME COURT REPORTS             [2013] 11 S.C.R.


A             1977 (1) SCR 601        relied on            Para 11
              (2008) 11 sec 651       relied on            Para 11
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
        No. 2028 of 2009.
B
            From the Judgment & Order dated 28.03.2008 of the High
        Court of Punjab & Haryana at Chandigarh in Criminal Appeal
        No. 35-DB of 1999.

C           K.L. Janjani, Raj Singh Rana, Pankaj Kumar Singh, Ankit
        Gaur, Avinash Jain for the Appellants.

              V. Madhukar AAG, Kuldip Singh for the Respondent.

              The Judgment of the Court was delivered by
D
       RANJAN GOGOi, J. 1. Aggrieved by the affirmation of the
  conviction and sentence of the appellants made by the High
  Court of Punjab & Haryana this appeal has been filed upon
  grant of special leave under Article 136 of the Constitution.
E Specifically, the appellant No. 4 Kamal Kumar has been
  convicted under Section 302, Section 324 and Section 323
  read with Section 34 of the Indian Penal Code. He has been
  sentenced to undergo RI for life for the offence under Section
  302 IPC whereas for the offences under Sections 324 and 323/
  34 IPC he has been sentenced to undergo RI for 2 years and
F 1 year respectively. Insofar as appellants 1, 2 and 3 are
  concerned, they have been found guilty of the offence under
  Section 302 read with Section 34 of the Indian Penal Code and
  sentenced to undergo RI for life. The aforesaid accused
  appellants have also been found guilty of the offences under
G Section 324 read with Section 34 and Section 323 of the Indian
  Penal Code and have been sentenced to undergo RI for 2
  years and 1 year respectively.

      2. The prosecution case, which has been held to be
H established by the learned courts below, is to the effect that on
    •
       RAGHBIR CHAND v STATE OF PUNJAB                      749
               [RANJAN GOGOi, J.]
 14.1.1991 at about 7.00 a.m. when PW-2 Ram Singh and PW- A
 4 Surinder Kumar (brothers) had gone to the fields to answer
 the call of nature, in front of the house of the appellant No. 1
  Raghbir Chand, the four accused persons had assembled.
 According to the prosecution, while the appellant No.1, Raghbir
 Chand, was armed with a Dang, appellant No.2, Varinder B
  Kumar, was armed with an iron rod whereas appellants 3 and
 4, Vijay Kumar and Kamal Kumar, were armed with an iron fork
  a~d a knife respectively. According to the prosecution, appellant
  No. 1 Raghbir Chand exhorted the other accused that PW-2
  Ram Singh and PW-4 Surinder Kumar should be taught a C
  lesson for having abused the appellant Raghbir Chand the
 previous evening. Thereupon, according to the prosecution,
 appellant No. 2 Varinder Kumar gave a blow from the iron rod
  in his hand which was aimed at the head of PW-4 Surinder
  Kumar. Appellant No. 4 Kamal Kumar is alleged to have given D
 a knife blow on the left flank of PW-4 whereas appellant No. 1
  Raghbir Chand, it is alleged, gave a dang blow on the right
 elbow of PW-2 Ram Singh. It is further alleged that appellant
  No. 4 Kamal Kumar gave a knife blow on the head of PW-2
  Ram Singh. The further case of the prosecution is that at this E
 stage deceased Rajinder Kumar and PW-5 Sushil Kumar
  (brothers of PW-2 and PW-4) came to the place of occurrence
  whereupon the appellant No. 4 gave 4-5 knife blows in the
  abdomen of deceased Rajinder Kumar who fell down on the
  ground. The prosecution had further alleged that appellant No. F
  3 Vijay Kumar gave blows from the iron fork on the forehead
  of PW-5 Sushi! Kumar whereas appellant no.1 Raghbir Chand
· gave fist blow on the left eye of PW-5. Appellant No. 2 Varinder
  Kumar is alleged to have assaulted PW-5 Sushil Kumar on the
  left leg with the iron rod. Thereafter, according to the G
  prosecution, the appellants left the spot alongwith their
  weapons. The injured were reportedly taken to the Civil
  Hospital, Pathankot from where Rajinder Kumar was referred
  to S.G.T.B. Hospital Amritsar. However, Rajinder Kumar died
  on the way to the hospital at Amritsar on 14.1.1991.              H
    760        SUPREME COURT REPORTS                [2013] 11 S.C.R.
                                             . .                            ,/
                                                                     ---/

A           aceeptable. We will, therefore, have to proceed on the ·
            basis that the said appellant had inflicted 4-5 knife blows
                             ,    .                          .   I

            on the abdomen of the deceased. Learned counsel for the
            appellant has contended that even if the said evidence is
            accepted in its entirety no offence under Section 302 IPC
B    .... is made out against the 4th accused-appellant. In this
          · regard, learned counsel for the appellants has tried to
            persuade us that in the totality of the facts of the present
            case, the 4th exception to Section 300 IPC would come
            into operation so as to make the said appellant liable to
c          ·the lesser offence under Section 304 IPC. The,4th
            exception to Section 300 IPC is in the following terms:

          "Exception 4- Culpable homicide is notmurder if it is
          committed without premeditation in a sudden fight in the
          heat of passion upon. a sudden quarrel and without the
D
          offender having taken undue advantage or acted in a cruel
          or unusual manner..

       Explanation - It is immaterial in such cases which party
       offers the provocation or commits the first assault." ;
E                                                       ,. '
       11. A decision of this Court of somewhat old vintage (State
  of Andhra Pradesh Vs. Rayavarapu Punna}tya & Anr. 4 ) may
  be re-noticed to remember what would be the correct approach
  in dealing with the question whether an offence is-murder or
F culpable homicide not amounting to murder, The following
  passages from the aforesaid decision may be usefully noticed
  hereunder:
          --                                            ..
          "21. Frbm the above conspectus, ii emerges that whenever
          a court is confronted with the question whe.ther the offence
G
          is 'murder' or 'culpable homicide not amounting to murder,'
          on the facts of a case, it will be convenient for it to
          approach the problem in three stages. The question to be
          considered at the first stage would be, whether the
H   4.   (1976) 4 sec 382.
         RAGHBIR CHAND v STATE OF PUNJAB                       751
                 [RANJAN GOGOi, J.]
 34 of the Indian Penal Code is legally unsustainable. Insofar as A
 appellant No. 4 Kamal Kumar is concerned, learned counsel ·
 has urged that the facts proved and established, at best, would
 go to show the commission of the offence under Section 304
 Part I and not the offence under Section 302 IPC. The injllries
 suffered by the accused-appellants 1, 2 and 3 as proved by PW- B
 1 have also been highlighted by the learned counsel to contend
 that a mutual fight between the parties had occurred. Learned
 counsel has further pointed out that while the appellant No.1,
 Raghbir Chand, had served a period of nearly 2-1/2 years in
 custody, the appellants 2 and 3 have undergone over 7 years C
 of custody whereas appellant No. 4 is in jail for more than 10
 years.

      6. Mr. V. Madhukar, learned Addi. Advocate General
 appearing for the State of Punjab on the other hand submits
                                                                      0
 that the evidence of PWs 2, 4 and 5 clearly establishes that
 the accused-appellants were acting in concert and one of the
 victims of the crime Rajinder Kumar had died in the course of
 the incident. According to learned counsel, there is no way as
 to how the appellants can escape their liability under Section       E
 34 of the Indian Penal Code. Learned counsel has also pointed
 out that the injuries suffered by the accused-appellants, as
 evident from the deposition of PW-1, are superficial and the
 same being capable of being self-inflicted, the Court has to
 understand the said injuries in the above manner.
                                                                      F
       7. A close reading of the evidence of the injured eye
  witnesses makes it clear that on the day of occurrence while
. PW-2 Ram Singh and PW-4 Surinder Kumar were going to the
  fields to answer the call of nature they were accosted by the
  four accused-appellants who assaulted them with the different       G
  weapons in their possession. While the aforesaid assault was
  being committed the deceased and PW-5 Sushil Kumar came
  to the spot to rescue their brothers PW-2 Ram Singh and PW-
  4 Surinder Kumar. It was at this point of time that the appellant
  No. 4 Kamal Kumar inflicted 4-5 knife blows in the abdomen          H
    752     SUPREME COURT REPORTS               [2013] 11 S.C.R.

A of the deceased which eventually led to his death. The evidence
  of prosecution witnesses would go to show that after the
  deceased had fallen to the ground while the other appellants
  had assaulted PW-5 Sushil Kumar none of them had committed
  any assault on Rajinder Kumar, i.e., the deceased who was lying
B on the ground. The evidence on record would also go to show
  that the deceased was initially treated in the Civil Hospital at
  Pathankot by PW-1 Dr. R.K. Khanna and was thereafter
  referred to the S.G.T.B. Hospital, Amritsar on the same day.
  The evidence of Dr. N.K. Aggarwal PW-6 indicate that in the
C course of postmortem stitch wounds were found on the person
  of the deceased. The said fact would show that the deceased
  had received surgical treatment while he was in the Civil
  Hospital, Pathankot.

D       8. Common intention which is the gist of the principle of
  vicarious liability enshrined by Section 34 of the Indian Penal
  Code can be the result of a premeditated decision between
  several co-accused or in a given case such common intention
  can very well develop on the spur of the moment or at the scene
E of the crime. What is of importance and, therefore, must be
  ascertained is the meeting of minds of the co-accused that the
  particular criminal act should be committed. Once the court can
  consider it safe to come to such a conclusion only then
  apportionment of liability amongst the co-accused would be
F permissible with the aid of Section 34 of the Indian Penal Code.
  Liability of an accused under Section 34, therefore, is a matter
  of inference to be drawn from the facts and circumstances of
  each case. The above are the principles that have been laid
  down in a long line of decisions of this Court, few of which can
G be illustratively referred to hereinbelow.

        This Court in the case of Sripathi v. State of Kamataka 1
    observed as under:


H 1. (2009) 11 sec 660.
  RAGHBIR CHAND v STATE OF PUNJAB                       753
          [RANJAN GOGOi, J.]
9. "5. Section 34 has been enacted on the principle of joint A
liability in the [commission] of a criminal ac~. 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 B
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 ·c
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 a plan or meeting of minds of ail the D
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 the 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 E
them has done it individually by himself. As observed in
Ashok Kumarv. State of Punjab [1977 (1) SCC 746] 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 F
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.                                                      G

        6. 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             H
    754         SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A         animating the accused leading to the [commission] 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
B         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
c         prove exactly what part was taken by each of them. As was
          observed in Chinta Pul/a Reddy v. State of A.P. [1993
          (Supp 3)      sec 134] 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
D         overt act on the part of the accused." [AsobservedlnSla(eofM.P v.
          Deshrai c2004> 13 sec 1991


        In Abdul Mannan v. State of Assam2 in paragraphs 19
    and 20 this Court made the following observations :
E                 "19. The High Court placed reliance on Sheoram
          Singh v. State of U.P.((1973) 3 SCC 110] in which this
          Court observed as under: (SCC p. 114, para 6)

                "6. ... It is undeniable that common intention can
F         develop during the course of an occurrence, but there has
          to be cogent material on the basis of which the court can
          arrive at that finding and hold an accused vicariously liable
          for the act of the other accused by invoking Section 34 of
          the Penal Code."
G
                20. Reliance was also placed on Joginder Singh v.
          State of Haryana [AIR 1994 Supreme Court 461] in which
          this Court has observed:


H 2. c201 O) 3 sec 381.
         RAGHBIR CHAND v STATE OF PUNJAB                       755
                 [RANJAN GOGOi, J.]
            "7. It is one of the settled principles of law that the   A
      common intention must be anterior in time to the
      commission of the crime. It is also equally settled law that
      the intention of the individual has to be inferred from the
      overt act or conduct or from other relevant circumstances.
      Therefore, the totality of the circumstances must be taken      B
      into consideration in order to arrive at a conclusion whether
      the accused had a common intention to commit the offence
      under which they could be convicted. The prearranged
      plan may develop on the spot. In other words, during the
      course of commission of the offence, all that is necessary      c
      in law is, the said plan must proceed to act constituting the
      offence."

     Taking into consideration all the previous decisions, this
Court in Abdul Sayeed v. State of M.P. 3 summed up the law
                                                                      0
in the following terms:

      "48. The aforesaid conclusion takes us to the issue raised
      by the appellants as to whether the appellants could be
      convicted with the aid of Section 34 IPC.
                                                                      E
      49. Section 34 IPC carves out an exception from general
      law that a person is responsible for his own act, as it
      provides that a person can also be held vicariously
      responsible for the act of others if he has the "common
      intention" to commit the offence. The phrase "common            F
      intention" implies a prearranged plan and acting in concert
      pursuant to the plan. Thus, the common intention must be
      there prior to the commission of the offence in point of
      time. The common intention to bring about a particular
      result may also well develop on the spot as between a           G
      number of persons, with reference to the facts of the case
      and circumstances existing thereto. The common intention
      under Section 34 IPC is to be understood in a different

3.   c2010) 10 sec 259.                                               H
    756       SUPREME COURT REPORTS                   [2013] 11 S.C.R.


A         sense from the "same intention" or "similar intention" or
          "common object". The persons having similar intention
          which is not the result of the prearranged plan cannot be
          held guilty of the criminal act with the aid of Section 34 IPC.
          (See Mohan Singh v. State of Punjab [AIR 1963 SC 174.)
B
          50. The establishment of an overt act is not a requirement
          of law to allow Section 34 to operate inasmuch this section
          gets attracted when a criminal act is done by several
          persons in furtherance of the common intention of all. What
          has, therefore, to be established by the prosecution is that
c
          all the persons concerned had shared a common intention.
          (Vide Krishnan v. State of Kera/a [1996 (10) SCC 508]
          and Harbans Kaur v. State of Haryana [2005 (9) SCC
          195)
D         51. Undoubtedly, the ingredients of Section 34 i.e. that the
          accused had acted in furtherance of their common
          intention is required to be proved specifically or by
          inference, in the facts and circumstances of the case. (Vide
          Hamlet v. State of Kera/a [2003 (10) SCC 108), Pichai
E         v. State of T.N. [2005 (10) SCC 505] and Bishna v. State
          of wa.   [2005 (12)   sec   657)

          52. In Gopi Nath v. State of U.P. [2001 (6) SCC 620] this
          Court observed as under:
F
                "8. ... Even the doing of separate, similar or diverse
          acts by several persons, so long as they are done in
          furtherance of a common intention, render each of such
          persons liable for the result of them all, as if he had done
          them himself, for the whole of the criminal action-be it that
G
          it was not overt or was only a covert act or merely an
          omission cbnstituting an illegal omission. The section,
          therefore, has been held to be attracted even where the
          acts committed by the different confederates are different
          when it is established in one way or the other that all of
H
  RAGHBIR CHAND v STATE OF PUNJAB                        757
          [RANJAN GOGOi, J.]
them participated and engaged themselves in furtherance          A
of the common intention which might be of a preconcerted
or prearranged plan or one manifested or developed on
the spur of the moment in the course of the commission
of the offence. The common intention or the intention of the
individual concerned in furtherance of the common intention      B
could be proved either from direct evidence or by inference
from the acts or attending circumstances of the case and
conduct of the parties. The ultimate decision, at any rate,
would invariably depend upon the inferences deducible
from the circumstances of each case."                            C

53. In Krishnan v. State [2003 (7) SCC 56] this Court
observed that applicability of Section 34 is dependent on
the facts and circumstances of each case. No hard-and-
fast rule can be made out regarding applicability or non-        0
applicability of Section 34.

54. In Girija Shankar v. State of U.P. [2004 (3) SCC 793]
it is observed that Section 34 has been enacted to
elucidate the principle of joint liability of a criminal act:
                                                                 E
      "9. 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         F
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            G
available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances."

55. In Virendra Singh v. State of M.P. [2010 (8) SCC 407]        H
    758       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A         this Court observed that:

                  "42. Section 34 IPC does not create any distinct
          offence, but it lays down the principle of constructive
          liability. Section 34 IPC stipulates that the act must have
8         been done in furtherance of the common intention. In order
          to incur joint liability for an offence there must be a
          prearranged and premeditated concert between the
          accused persons for doing the act actually done, though
          there might not be long interval between the act and the
c         premeditation and though the plan may be formed
          suddenly. In order that Section 34 IPC may apply; it is not
          necessary that the prosecution must prove that the act was
          done by a particular or a specified person. In fact, the
          section is intended to cover a case where a number of
          persons act together and on the facts of the case it is not
D
          possible for the prosecution to prove as to which of the
          persons who acted together actually committed the crime.
          Little or no distinction exists between a charge for an
          offence under a particular section and a charge under that
          section read with Section 34."
E
          56. Section 34 can be invoked even in those cases where
          some of the co-accused may be acquitted, provided it can
          be proved either by direct evidence or inference that the
          accused and the others have committed an offence in
F         pursuance of the common intention of the group. (Vide
          Prabhu Babaji Navle v. State of Bombay [AIR 1956',SC
          51])

       57. Section 34 intends to meet a case in which it is not
G      possible to distinguish between the criminal acts of the
       individual members of a party, who act in furtherance of
       the common intention of all the members of the party or it
       is not possible to prove exactly what part was played by
      .each of them. In the absence of common intention, the
H      criminal liability of a member of the group might differ
  RAGHBIR CHAND v STATE OF PUNJAB                      759
          [RANJAN GOGOi, J.]
according to the mode of the individual's participation in     A
the act. Common intention means that each member of the
group is aware of the act to be committed."

9. In the present case, as already noticed, deceased
Rajinder Kumar had arrived at the spot after the incident      B
of assault by the accused on PW-2 and PW-4 had
commenced. Immediately on arrival of Rajinder Kumar,
appellant No. 4 Kamal Kumar, according to the
prosecution, gave 4-5 blows in the abdomen of the
deceased as a result of which he fell down. The                c
prosecution evidence also demonstrates that after the
deceased had fallen down on the ground none of the other
accused-appellants had assaulted him. The above facts,
in our considered view, cannot constitute a safe and
sufficient basis for us to come to the conClusion that an      D
inference of common intention of all the four accused to
cause the death of Rajinder Kumar can be safely made
so as to hold the accused 1, 2 and 3 vicariously liable for
the death of Rajinder Kumar. We, therefore, are of the
opinion that the conviction of the accused-appellants 1, 2
                                                               E
and 3 under Section 302 read with section 34 requires
interference. We, accordingly, set aside the said conviction
and sentence imposed on the accused-appellants No. 1,
2 and 3. However, the evidence of PWs 2, 4 and 5 having
established the assault on the injured eye witnesses by the
                                                               F
aforesaid accused-appellants 1, 2 and 3 we are of the
view that the conviction of the said appellants under
Section 324 read with Section 34 and Section 323 should
be maintained. We, therefore, affirm the said part of the
judgment of the High Court along with the sentences            G
imposed.

10. This will take us to a consideration of the case of the
appellant No. 4 Kamal Kumar. The evidence of PWs 2, 4
and 5 has already been held by us to be credible and
                                                               H
    760      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A         acceptable. We will, therefore, have to proceed on the
          basis that the said appellant had inflicted 4-5 knife blows
          on the abdomen of the deceased. Learned counsel for the
          appellant has contended that even if the said evidence is
          accepted in its entirety no offence under Section 302 IPC
B         is made out against the 4th accused-appellant. In this
          regard, learned counsel for the appellants has tried to
          persuade us that in the totality of the facts of the present
          case, the 4th exception to Section 300 IPC would come
          into operation so as to make the said appellant liable to
c         the lesser offence under Section 304 IPC. The 4th
          exception to Section 300 IPC is in the following terms:

          "Exception 4- Culpable homicide is not murder if it is
          committed without premeditation in a sudden fight in the
          heat of passion upon a sudden quarrel and without the
D
          offender having taken undue advantage or acted in a cruel
          or unusual manner.

          Explanation - It is immaterial in such cases which party
          offers the provocation or commits the first assault."
E
         11. A decision of this Court of somewhat old vintage (State
    of Andhra Pradesh Vs. Rayavarapu Punnayya & Anr. 4 ) may
    be re-noticed to remember what would be the correct approach
    in dealing with the question whether an offence is-murder or
F   culpable homicide not amounting to murder. The following
    passages from the aforesaid decision may be usefully noticed
    hereunder:

          "21. From the above conspectus, it emerges that whenever
          a court is confronted with the question whether the offence
G
          is 'murder' or 'culpable homicide not amounting to murder,'
          on the facts of a case, it will be convenient for it to
          approach the problem in three stages. The question to be
          considered at the first stage would be, whether the

H 4.   (1976) 4 sec 382.
        RAGHBIR CHAND v STATE OF PUNJAB                        761
                [RANJAN GOGOi, J.]
      accused has done an act by doing which he has caused             A
      the death of another. Proof of such causal connection
      between the act of the accused and the death, leads to
      the second stage for considering whether that act of the
      accused amounts to "culpable homicide" as defined in
      Section 299. If the answer to this question is prima facie       B
      found in the affirmative, the stage for considering the
      operation of Section 300, Penal Code is reached. This is
      [the stage at which the Court should determine whether the
      facts proved by the prosecution bring the case within the
      ambit of any of the four Clauses of the definition of murder'    c
      contained in Section 300. If the answer to this question is
      in the negative the offence would be 'culpable homicide
      not amounting to murder', punishable under the first or the
      second part of Section 304, depending, respectively, on
      whether the second or the third Clause of Section 299 is         D
      applicable. If this question is found in the positive, but the
      case comes, within any of the Exceptions enumerated in
      Section 300, the offence would still be 'culpable homicide
      not amounting to murder', punishable under the First Part
      of Section 304, Penal Code.
                                                                       E
      22. The above are only broad guidelines and not cast-iron
      imperatives. In most cases, their observance will facilitate
      the task of the court. But sometimes the facts are so inter-
      twined and the second and the third stages so telescoped
      into each other, that it may not be convenient to give a         F
      separate treatment to the matters involved in the second
      and third stages.•

    It appears that the aforesaid view in Rayavarapu
Punnayya (supra) has been reiterated in Ghelabhai                      G
Jagma/bhai Bhawad & Ors. Vs. State of Gujarai6 wherein it is
observed thus:

      "6. Murder is considered to be an aggravated form of

5.   c2ooa> 11 sec 651.                                                H
    762       SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A         culpable homicide and to render it a murder the case must
          come within the four clauses of Section 300. Consequently,
          it needs consideration at the threshold as to whether any
          of the accused has done any act by which he has caused
          the death of another person. Incidentally, it requires a
B         consideration as to whether such act(s) amounted to
          culpable homicide, as envisaged under Section 299. If the
          evidence on record could evoke a positive answer in
          affirmation, the stage for consideration of the applicability
          or otherwise of Section 300 in the light of the clauses
c         elucidating the offence as well as the exceptions engrafted
          therein arise. If the facts proved by the prosecution do not
          satisfy any one of the clauses contained in Section 300, it
          would only be a case of culpable homicide not amounting
          to murder, punishable under Section 304, the further
          question as to under which part of the said provision
D
          depending upon the nature of evidence and the necessary
          ingredients proved to attract one or the other clauses of
          Section 300 is satisfied, yet if the evidenee couJd establish
          that the case falls under any one of the exceptions still the
          offence said to have been committed would only be
E         culpable homicide not amounting to murder punishable
          under Section 304 of the Penal code. Thus, culpable
          homicide will not also amount to murder if the case falls
          within any of the exceptions in Section 300 and only by
          such process of reasoning and elimination, a case for
F         murder can be held proved."

       12. We have given our anxious consideration to the
  contention raised on behalf of the accused-appellant. There can
  be no manner of doubt that the death of Rajinder Kumar was
G occasioned by the assault committed by the accused-appellant
  No.4 in the abdominal region of the deceased with a knife. A
  person inflicting 4-5 knife blows on a vital part of the body i.e.
  abdomen cannot but be attributed with the requisite intention
  to cause death or alternatively with the intention of causing such
H bodily injury as is likely to cause the death of the victim. Having
       RAGHBIR CHAND v STATE OF PUNJAB                        763
               [RANJAN GOGOi, J.]
reached the aforesaid conclusion, the next question that has A
to be determined is whether the act of the accused-appellant .
will come under any of the exceptions enumerated under
Section 300, particularly the 4th exception, as contended by the
learned counsel for the appellant. While there can be no doubt
that the assault on the deceased was committed without any B
premeditation and also in a sudden fight and even if it is
assumed that the said act was in the heat of passion, what
cannot be lost sight of is the infliction of 4-5 knife blows in the
abdominal region of the deceased. Had the appellant No. 4
dealt a single blow on the deceased, perhaps, it would have C
been open for us to seriously consider the applicability of the
latter part of the 4th exception to Section 300 to the present
case, namely, that the appellant had not taken undue advantage
or had not acted in a cruel or unusual manner. In the present
case, no such conclusion can be reasonably reached in view o
of the repeated blows inflicted by accused-appellant No. 4 on
a vital part of the body of the deceased. Having carefully
weighed the facts and circumstances of the case and the
options and conclusions that the said facts would reasonably
admit, we are of the opinion that the correct conclusion in the E
pr~sent case would be that the accused-appellant No. 4 had
the requisite intention if not of causing death, at least, of causing
such bodily injury which was likely to cause death. The acts
attributable to the accused-appellant No.4 do not also attract
any of the exceptions enumerated under Section 300 IPC. We, F
therefore, affirm the conviction and the sentence of the
accused-appellant No. 4 under Section 302. Insofar as the
conviction of the said accused-appellant for the offences under
Sections 324 and 323 read with Section 34 is concerned, we
will have no hesitation in affirming the same.                        G

     13. Consequently, the appeal is partly allowed. The
conviction of appellants No. 1, 2 and 3 under Section 302 read
with Section 34 IPC is set aside while their conviction under
Section 324 with the aid of Section 34 IPC and Section 323
                                                                     H
    764      SUPREME COURT REPORTS             [2013] 11 S.C.R.

A and the sentences imposed upon them are maintained. The
  conviction of the appellant No. 4 under Sections 302 and 324
  and 323/34 IPC as well as the sentences imposed are
  maintained. If the accused-appellants 1, 2 and 3 have already
  undergone the sentence imposed on them for the offences
B under Section 324 read with Section 34 IPC and Section 323
  IPC they be set at liberty unless their custody is required in
  connection with any other case.

    K.K.T.                               Appeal Partly allowed.