Holding

The Court held that the voluntary dying declaration was reliable and could form the sole basis of conviction, Section 34 did not apply, and the principal accused was to be convicted under Section 304 Part I IPC with a ten‑year rigorous imprisonment, while the Section 302 r/w 34 convictions of the other accused were set aside.

Summary

The deceased Vijay was tied to a cot and brutally assaulted with an iron pipe and wooden stick by six accused, leading to his death. While on his deathbed he gave a dying declaration to his brother (PW9) and mother (PW10) identifying all six assailants. The trial court convicted the principal accused under Section 304 Part II IPC and the others under Section 325 r/w 34, with all six also convicted under Section 342 r/w 34. The High Court enhanced the convictions to Section 302 r/w 34 for all accused. The Supreme Court held the dying declaration voluntary and trustworthy, requiring no corroboration, and found no common intention under Section 34. Consequently, it altered the principal accused's conviction to Section 304 Part I IPC with ten years rigorous imprisonment, upheld the Section 342 conviction, set aside the Section 302 r/w 34 convictions of the other accused, and maintained the remaining convictions and sentences.

Issues considered

The admissibility and sufficiency of the dying declaration as sole evidence for conviction.
Whether Section 34 IPC (common intention) applies to the offences charged.
The appropriate charge under IPC for the principal accused (Section 302 vs Section 304).
The propriety of enhancing sentences and convictions on appeal.

Legislation cited

Bombay Police Act, 1951s. 135
Indian Evidence Act, 1872s. 32, s. 60
Indian Penal Code, 1860s. 302, s. 304 Part I, s. 304 Part II, s. 325, s. 34, s. 342

Subjects

dying declarationSection 34 IPCcommon intentionmurderculpable homicide not amounting to murderevidenceIndian Penal CodeappealBombay Police Act

Judgment

SHAM SHANKAR KANKARIA A
v.
ST ATE OF MAHARASHTRA

SEPTEMBER I, 2006

[ARIJIT PASA YAT ANDC.K. THAKKER, JJ.] B

Penal Code, 1860-Sections 34, 302, 304, 325, and 342-Evidence
Act, 1872-Sections 32 and 60-Bombay Police Act, 1951-Section 135-
Dying declaration by deceased that he was assaulted by six accused-Trial C
Court convicted the main accused under sections 304 Part II and 342 r/w
34 /PC and other accused under sections 325 and 342 r!w 34 /PC-High
Court, in appeals by the State, convicted the main accused under section 302
!PC and other accused under Section 302 r/w 34 !PC and confirmed the
other convictions and sentences-Correctness of-Held, on facts, dying
declaration has been made by the deceased voluntarily-Conviction of the D
main accused is altered to one under section 304 Part I !PC with sentence
of JO years rigorous imprisonment-Conviction of other accused under section
302 rlw 34 /PC is set aside-Convictions and sentences of the accused under
other sections, upheld.

Deceased left his house along with accused nos. 3 and 5. On the next E
day, accused no. 5 informed PW 9--brother of the deceased-that the deceased
had been assaulted. PW 9 accompanied accused no. 5 to the spot where he
found the deceased in injured condition and bis hands and legs tied to a cot.
PW 9 untied the deceased and asked him as to how it had happened. The
deceased replied that all the six accused, after tying to the cot, assaulted him F
severely with instruments like iron pipe and wooden stick on the allegat!on
that he had stolen a bicycle. PW 9 carried the deceased to his house and the
deceased once again narrated the same to his mother in the presence of PW
9. The deceased was then taken to a hospital, where he was declared dead.

The trial court convicted accused no. I for offence punishable under G
section 304 Part II IPC and sentenced him to six years rigorous imprisonment
with fine and default stipulations. The other five accused were convicted for
offence punishable under section 325 r/w IPC and sentenced to four years
rigorous imprisonment with fine and default stipulations. All the six accused

709 H
710 SUPREME COURT REPORTS 12006] SUPP. 5 S.C.R.

A were also convicted for offence punishable under section 342 r/w 34 IPC and
sentenced to six months rigorous imprisonment with fine and default
stipulations. Appeals were filed before High Court by accused challenging
their conviction and sentence. State also filed appeals for enhancement of
sentence and for conviction under section 302 IPC of the first accused and
under section 302 r/w 34 IPC in respect of other accused. The High Court
B dismissed the appeals of the accused and allowed the appeals of the State.
..
Partly allowing the appeals, the Court

HELD: I. I. The situation in which a person is on deathbed is so solemn
and serene when he is dying that the grave position in which he is placed, is
C the reason in law to accept veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Besides,
should the dying declaration be excluded it will result in miscarriage of justice
because the victim being generally the only eye-witness in a serious crime,
the exclusion of the statement would leave the Court without a scrap of
D evidence. The dying declaration is only piece of untested evidence and must
like any other evidence, satisfy the Court that what is stated therein is the
unalloyed truth and that it is absolutely safe to act upon it. If after careful
scrutiny, the Court is satisfied that it is true and free from any effort to induce
the decea~ed to make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it b::isis of conviction, even if there
E is no corroboration.1716-C-D; 718-B-CI

Smt. Paniben v. State of Gujarat, AIR (1992) SC 1817; Munnu Raja
and Anr. v. The State of Madhya Pradesh, 119761 2 SCR 764; State of Uttar
Pradesh v. Ram Sagar Yadav and Ors., AIR (1985) SC 416; Ramavati Deviv.
F State of Bihar, AIR (1983) SC 164; K. Ramachandran Reddy and Anr. v. The
Public Prosecutor, AIR (1976) SC 1994; Rasheed Beg v. State of Madhya
Pradesh, [1974] 4 SCC 264; Kaka Singh v. State of M.P., AIR (1982) SC 1021;
Ram Manorath and Ors. v. State of UP .. 11981] 2 SCC 654; State of .
Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617; Surajdeo
O::.a and Ors. v. State of Bihar, AIR (I 979) SC 1505; Nanashau Ram and Anr.
G v. State of Madhya Pradesh, AIR (1988) SC 912; State of UP. v. Madan Mohan
and Ors., AIR (1989) SC 1519 and Mohan/al Gangaram Gehani v. State of
Maharashtra, AIR (1982) SC 839, referred to.

R. v. Wood Cock, (1789) I Leach 500, referred to.

H 1.2. There is no material to show that dying declaration was result of
SHAM SHAN KAR KANKARIAi-. STATE OF MAHARASHTRA 7J J

product of imagination, tutoring or promoting. On the contrary, the same A
appears to have been made by the deceased voluntarily. It is trustworthy and
has credibility. Cristicism that PWs 9 and 10 being relatives have falsely
implicated the accused persons needs rejection for the simple reason that no
material has been brought on record to show as to why they would falsely
implicate the accused and shield actual culprit.1718-D, El
B
Gangotri Singh v. State ofU.P., JT (1992) 2 SC 417; Goverdhan Raoji
Ghyare v. State of Maharashtra, JT (1993) 5 SC 87; Meesala Ramakrishan v.
State of Andhra Pradesh, JT (1994) 3 SC 232 and State of Rajasthan v.
Kishore, JT (1996) 2 SC 595, referred to.

1.3. The prosecution has clearly established that the vital blow was given C
by the accused NoJ. Taking into account the surrounding facts and the nature
of the weapon allegedly used, the correct provision for conviction would be
Section 304 Part I IPC and custodial sentence of 10 years would meet the
ends of justice. His conviction under Section 342 IPC as well as the sentence
are maintained. The sentences shall run concurrently. On facts of the case, D
Section 34 IPC has no application for the offence punishable under Section
304 Part I IPC. There is no material to show that the accused persons shared
common object of causing any injury to the deceased or to cause his death.
That being so, Section 34 IPC has no application. It is the prosecution case
that the accused persons wanted to extract a confession from the deceased of
his having committed theft of a cycle. So far as accused persons 2, 4 and 6 E
are concerned considering their role they have to be convicted under Section
342 read with Section 34 IPC, as also Section 325 read with Section 34 IPC.
The corresponding sentences imposed by the trial Court and maintained by
the High Court need no interference. (719-A, B, DJ

Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC
F
1899, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 661 of
2005.
G-
From the Judgment and Order dated 14.9.2004 of the High Court of
Judicature at Bombay in Criminal Appeal No. 34/1993.
WITH
Cr!. A. Nos. 358 of2005, 634-636 of2005 and 700-702 of2005.
Sremik Singhvi, Mohd. Faisal, Indra Sawhney, Rekha Palli (N.P.) and H
712 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A A.S. Bhasme (N.P.) for the Appellant. • ...
A.P. Mayee and V.N. Raghupathuy for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. These appeals are directed against a common
B
judgment of the Division Bench of the Bombay High Court by which eight
appeals were disposed of. Six of them were by the accused persons while two
•
were by the State. Out of the two Criminal Appeals filed by the State, one
was against the acquittal of the accused persons of the charge under Section
302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC')
c and of Section 135 of the Bombay Police Act, 1951 (in short the 'Bombay
Act'). The other was for enhancement of sentence. The two appeals filed by
the State were allowed, except in respect of two who had died, while the six
appeals filed by the accused persons were dismissed. ~-

The appeals were directed against the judgment and order dated 6th
D February, I993 passed by the learned Third Additional Sessions Judge, Nasik
whereby accused No. I Sham Shankar Kankaria was convicted for offence
punishable under Section 304 Part II IPC. The other five accused persons
were convicted for offence punishable under Section 325 read with Section
34 IPC. All the six accused persons were convicted for offence punishable
E under Section 342 read with Section 34 IPC. For the first offence accused No. I
Sham Shankar Kankaria was sentenced to undergo rigorous imprisonment for
six years and to pay fine of Rs.3,000/- with default stipulation. For the second
offence each of accused Nos. 2 to 6 were sentenced to undergo rigorous
imprisonment for four years and to pay fine of Rs.2,000/- with default
stipulation. For the third offence, all the six were sentenced to undergo
F rigorous imprisonment for six months and to pay a fine of Rs.3,000/- each with
default stipulation. The accused Nos. I to 6 were acquitted of the charge
under Section 302 read with Section 34 !PC and Section 135 of Bombay Act. '
While the accused persons challenged their conviction and sentence, the ~

State questioned correctness of the judgment of the trial court and prayed for
G enhancement of sentence and for conviction under Section 302 of the first
accused and under Section 302 read with Section 34 IPC in respect of each
of the accused persons.

Prosecution version in a nutshell is as follows:

H On 13th January, 1992 one Vijay@ Bablu, the son ofKashinath Kedare,
7J3
•. SHAM SHAN KAR KAN KARIA 1•. STATE OF MAHARASHTRA [PASAYA T, J.]

who was residing with his parents and other members of the family in House A
No.1342, situated at Khadkali area of Nasik City, was called by the accused
No.3 Sanjay and the accused No.5 Khandu and, therefore, he left his house
at about 8 p.m. along with the said accused persons. He did not return till
late night. At about 2'o clock in the night between the 13th and 14th January,
1992, accused Khandu went to the house of Vijay and knocked the door of
his house. On opening the door by Sanjay Kedare (P.W.9), accused Khandu B
• informed Sanjay that his brother Vijay had been assaulted and was lying at
some place. Sanjay thereupon accompanied Khandu who took him to the top
floor of Bharti Lodge, where Sanjay found his brother Vijay in injured condition
tied to the cot with his hands and legs tied. Sanjay also saw some blood
oozing out from the head ofVijay. Sanjay released the hands and legs ofVijay C
and asked him as to how it had happened, whereupon he was told by Vijay
that all the six accused after tying him to the cot, assaulted him severely with
'. instruments like iron pipe and wooden stick on the allegation that he had
stolen a bicycle. Sanjay thereupon carried Vijay to his residence and Vijay
once again narrated the said incident to his mother in the presence of Sanjay
and from there, he was taken in a rickshaw to the Civil Hospital, Nasik. On D
the way to the hospital, Vijay became unconscious and on being admitted to
the hospital, he was declared to have been dead. Sanjay lodged complaint in
writing at Bhadrakali Police Station where the FIR was registered relating to
offences under Sections 302, 342, 143, 147 and 149 IPC read with Section 37(1)
read with Section 135 of the Bombay Act. On commencement of the E
investigation, all the six accused were arrested, their clothes were seized
under the panchnama. The body of the deceased Vijay was subjected to the
inquest panchnama as well as post mortem examination. The medical officer
opined that the death of Vijay was due to shock, intracranial haemorrhage and
due to fracture of skull. After carrying out the spot panchnama, the articles
at the spot of the incident including the blood scrapping were collected from F
the scene of offence. The iron pipe was recovered at the instance of the
accused No. I Sham Kankaria, Coir Cord and pieces of wooden pegs having
blood stains were seized from the spot of the incident. The seized articles
were sent for examination by the Chemical Analyser. The blood samrle of the
deceased was also collected and sent for medical analysis along with the G
clothes on the body of the deceased. On conclusion of the investigation, all
the six accused were charge-sheeted. They were tried before learned Additional
Sessions Judge and were convicted and sentenced by the judgment and order
dated 6th February, 1993. Challenge was made to the same before the High
Court, as noted above.
H
714 Sl!PREME COURT REPORTS [2006] SUPP. 5 S.C.R.
'{

A The High Coutt analysed the evidence and was of the view that the trial ""
court was not justified in acquitting the accused persons of the charge of
offence punishable under Section 302 read with Section 34 IPC and by only
convicting accused No. I Sham Shankar Kankaria in terms of Section 304 Part .,
ii !PC. During the pendency of the appeals, accused No.3 Sanjay and accused
No.5 Khandu Deoram Abhang expired. Therefore, the two appeals filed by
B them were held to have abated. Similar was the case in the appeals filed by
the State. so far as they were concerned. For rest of the accused the appeal ~

filed by the State was allowed and the appeals filed by the accused persons
were dismissed.

c under Each of the accused persons were held guilty for offence punishable
Section 302 read with Section 34 !PC. Accordingly, conviction was
recorded and sentence imposed as noted earlier.

In support of the appeals, learned counsel for the appellants submitted
that the High Court has not kept in view the correct principles of law. Ramesh
D and Mustaq (PWs. I and 3) were stated to be eye witnesses. Their evidence
does not inspire confidence and in fact they contradict each other in many
material aspects. So-called dying declaration before Sanjay and Hirabai (PWs.
9 and I 0) also lack credibility. In any event, the High Court should not have
interfered with the well reasoned and well discussed judgment of the trial
court without indicating any reason or basis therefor. Even according to the
E prosecution, there was only one injury inflicted on the head of the deceased. ..
There was no eye witness as to who had assaulted on the head. A presumption
has been made that the head injury was caused by the accused No. I Sham
Shankar Kankaria because the witnesses stated to have seen a small iron pipe
in his hand. Even according to the prosecution version, the accused No.4
F Raju was holding a small stick of about one fo0t long length and is supposed
to have given blow on the legs and the hand. No role has been ascribed to
~
the other appellants i.e. respondents 2 and 6. There is no question of applying
Section 34 !PC because the prosecution itself is to the effect that the accused ..
persons wanted to extract confession from the deceased that he had stolen
a bicycle. There is no material brought on record that the accused persons
G shared any common object to either cause injury to the deceased or kill him.
Residuary plea submitted is that the trial court found that Section 304 Part
II !PC was the correct provision to be applied. The High Court attached undue
importance to certain factors which had no relevance for deciding the question
as to the nature of offence.
H
SHAM SHANKAR KANKARIA 1·. STATE OF MAHARASHTRA[PASA YAT. l] 715
,.
Learned counsel for the respondent-State on the other hand supported A
the judgment of the High Court.

At this juncture, it is relevant to take note of Section 32 of the Indian
Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which
statement of relevant fact by person who is dead or cannot be found, etc. is
relevant. The general rule is that all oral evidence must be direct viz., if it B
refers to a fact which could be seen it must be the evidence of the witness
who says he saw it, if it refers to a fact which could be heard, it must be the
evidence of the witness who says he heard it, if it refers to a fact which could
be perceived by any other sense, it must be the evidence of the witness who
says he perceived it by that sense. Similar is the case with opinion. These C
aspects are elaborated in Section. 60. The eight clauses of Section 32 are
exceptions to the general rule against hearsay just stated. Clause (I) of ·
Section 32 makes relevant what is generally described as dying declaration,
though such an expression has not been used in any Statute. It essentially
means statements made by a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death. The grounds of D
admission are: firstly, necessity for the victim being generally the only principal
eye-witness to the crime, the exclusion of the statement might deflect the ends
of justice; and secondly, the sense of impending death, which creates a
sanction equal to the obligation of an oath. The general principle on which
this species of evidence is admitted is that they are declarations made in E
extremity, when the party is at the point of death and when every hope of
this world is gone, when every motive to falsehood is silenced, and the mind
is induced by the most powerful considerations to speak the truth; a situation
so solemn and so lawful is considered by the law as creating an obligation
equal to that which is imposed by a positive oath administered in a Court of
justice. These aspects have been eloquently stated by lyre LCR in R. v. F
Wood Cock, (1789) I Leach 500. Shakespeare makes the wounded Melun,
finding himself disbelieved while announcing the intended treachery of the
Dauphin Lewis explain:

"Have I met hideous death within my view -
Retaining but a quantity of life, G
Which bleeds away even as a form of wax,

Resolveth from his figure 'gainst the fire?

What is the world should m_ake me now deceive,
H
716 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.
.,
A Since I must lose the use of all deceit?

Why should I then be false since it is true

That I must die here and live hence by truth?"

(See King John, Act 5, Sect. 4)
B
The principle on which dying declaration is admitted in evidence is
indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not
meet his maker with a lie in his mouth."

This is a case where the basis of conviction of the accused is the dying
C declaration. The situation in which a person is on deathbed is so solemn and
serene when he is dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Besides,
should the dying declaration be excluded it will result in miscarriage of justice
D because the victim being generally the only eye-witness in a serious crime,
the exclusion of the statement would leave the Court without a scrap of
evidence.

Though a dying declaration is entitled to great weight, it is worthwhile
to note that the accused has no power of cross-examination. Such a power
E is essential for eliciting the truth as an obligation of oath could be. This is
the reason the Court also insists that the dying declaration should be of such
a nature as to inspire full confidence of the Court in its correctness. The Court
has to be on guard that the statement of deceased was not as a result of either
tutoring, or prompting or a product of imagination. The Court must be further
F satisfied that the deceased was in a fit state of mind after a clear opportunity
to observe and identify the assailant. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is merely a rule of
G prudence. This Court has laid down in several judgments the principles
governing dying declaration, which could be summed up as under as indicated
in Smt. Paniben v. State a/Gujarat, AIR (1992) SC 1817:

"(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. [See Mzmnu
H Raja & Anr. v. The Stale of Madhya Pradesh, [1976] 2 SCR 764]
SHAM SHANKAR KANKARIA r. STATEOFMAHARASHTRA [PASA YAT,J.] 717
,.
(ii) If the Court is satisfied that the dying declaration is true and A
voluntary it can base conviction on it, without corroboration. [See
State of Uttar Pradesh v. Ram Sagar Yadav and Ors .. AIR (1985) SC
416 and Ramavati Devi v. State of Bihar, AIR (1983) SC 164)

(iii) The Court has to scrutinize the dying declaration carefully and
must ensure that the declaration is not the result of tutoring, prompting B
or imagination. The deceased had an opportunity to observe and
identify the assailants and was in a fit state to make the declaration.
[See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR
(1976) SC 1994)

(iv) Where dying declaration is suspicious, it should not be acted C
upon without corroborative evidence. [See Rasheed Beg v. State of
Madhya Pradesh, [1974] 4 SCC 264]

(v) Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to be rejected.
[See Kaka Singh v. State of M.P. AIR ( 1982) SC I 021] D
(vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction. [See Ram Manorath and Ors. v. State of U.P.,
[198IJ 2 sec 6541

(vii) Merely because a dying declaration does contain the details . E
as to the occurrence, it is not to be rejected. [See State of Maharashtra
v. Krishnamurthi Laxmipati Naidu, AIR (1981) SC 617]

(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar, AIR F
(1979) SC 1505]

(ix) Normally the Court in order to satisfy whether deceased was
in a fit mental condition to make the dying declaration look up to the
medical opinion. But where the eye-witness said that the deceased
was in a fit and conscious state to make the dying declaration, the G
medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State
of Madhya Pradesh, AIR (1988) SC 912]

(x) Where the prosecution version differs from the version as given
in the dying declaration, the said declaration cannot be acted upon.
[See State of U.P. v. Madan Mohan and Ors., AIR (1989) SC 1519] H
718 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A (xi) Where there are more than one statement in the nature of
dying declaration, one first in point of time must be preferred. Of
course, if the plurality of dying declaration could be held to be
trustworthy and reliable. it has to be accepted. [See Mohan/al
Gangarant Gehani v. State of Maharashtra, AIR ( 1982) SC 839]."

B In the light of the above principles, the acceptability of alleged dying
declaration in the instant case has to be considered. The dying declaration
is only a piece of untested evidence and must like any other evidence, satisfy
the Court that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny the Court is satisfied
C that it is true and free from any effort to induce the deceased to make a false
statement and if it is coherent and consistent, there shall be no legal impediment
to make it basis of conviction, even if there is no corroboration. [See Gangotri
Singh v. State of U.P., JT (1992) 2 SC 417, Goverdhan Raoji Ghyare v. State
of Maharashtra, JT (1993) 5 SC 87, Meesala Ramakrishan v. State ofAndhra
Pradesh, JT (1994) 3 SC 232 and State of Rajasthan v. Kishore, JT (1996) 2
D SC595].
There is no material to show that dying declaration was result of
product of imagination, tutoring or prompting. On the contrary, the same
appears to have been made by the deceased voluntarily. It is trustworthy and
has credibility.
E
Criticism that PWs 9 and 10 being relatives have falsely implicated the
accused persons needs rejection for the simple reasons that no material has
been brought on record to show as to why they would falsely implicate the
accused and shield actual culprit.

F Under the provisions of Section 34 the essence of the liability is to be
found in the existence of a common intention animating the accused leading
to the doing 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
G accused is liable for 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 prove exactly what part was taken by each of them. As was observed in
Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR (1993) SC 1899,
H Section 34 is applicable even if no injury has been caused by the particular
SHAMSHANKARKANKARIA v STATE OF MAHARASHTRA[PASA YAT,J.] 719
•
accused himself. For applying Section 34 it is not necessary to show some A
overt act on the part of the accused.

Judged in the backgroun.d and the principle set out above, the inevitable
conclusion is that the prosecution has clearly established that the vital blow
was given by the accused No.1 Sham Shankar Kankaria. The question is what
is the appropriate provision for his conviction. Taking into account the B
surrounding facts and the nature of the weapon allegedly used, in our
considered view the correct provision for conviction wou Id be Section 304
Part I, IPC and custodial sentence of 10 years would meet the ends of justice.
His conviction under Section 342 lPC as well as the sentence are maintained.
The sentences shall run concurrently. On the facts of the case Section 34 IPC C
has no application for the offence punishable under Section 304 Part-I IPC.
There is no material to show that the accused persons shared common object
of causing any injury to the deceased or to cause his death. That being so
Section 34 IPC has no application. It is the prosecution case that the accused
persons wanted to extract a confession from the deceased of his having
committed theft of a cycle. So far as accused persons 2, 4 and 6 are concerned D
considering their role they have to be convicted under Section 342 read with
Section 34 !PC, as also Section 325 read with·Section 34 If'C. The corresponding
sentences imposed by the trial Court and maintained by the High Court need
no interference. Jn the ultimate result the appeals are partly allowed to the
extent indicated above.

B.S. Appeals partly allowed.