Holding

The Supreme Court held that Section 34 IPC applies, establishing common intention among the accused, and convicted Gurbachan Singh of murder under Section 302 read with Section 34.

Summary

The State of Rajasthan appealed the conviction of Gurbachan Singh for murder arising out of a land‑dispute in which Teja Singh was killed. The High Court had acquitted Singh of the murder charge, holding that he only struck the victim's feet with a lathi and therefore lacked common intention to cause death. The Supreme Court examined whether Section 34 of the IPC, which imposes joint liability for a common intention, applied despite Singh's limited role. Relying on eyewitness testimony, the recovery of a blood‑stained lathi, and the coordinated assault by the accused, the Court held that a common intention to inflict injuries and cause death was evident. Consequently, Singh’s acquittal under Section 302 was set aside and he was convicted of murder under Section 302 read with Section 34, with his conviction under Section 324 for injuries upheld, while the conviction under Sections 149/148 was dismissed. The appeal was allowed and the life sentence originally imposed was restored, with the benefit of Section 428 CrPC granted.

Issues considered

Whether the conduct of Gurbachan Singh, who struck the victim only on the feet with a lathi, satisfies the requirement of common intention under Section 34 IPC for the murder of Teja Singh.
Whether the conviction under Sections 149 and 148 IPC can be sustained in the absence of an unlawful assembly.
Whether the acquittal of co‑accused Jangir Kaur can be challenged.

Legislation cited

Code of Criminal Procedure, 1973s. 428
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 323, s. 324, s. 34

Subjects

murdercommon intentionSection 34 IPCjoint liabilityland disputeappealcriminal law

Judgment

[2022] 16 S.C.R. 73 73

THE STATE OF RAJASTHAN A
v.
GURBACHAN SINGH & OTHERS
(Criminal Appeal No. 2201 of 2011)
DECEMBER 07, 2022 B
[SANJIV KHANNA AND SUDHANSHU DHULIA, JJ.]
Penal Code, 1860 – Murder – Common intention – Dispute
w.r.t partition of land– Victim was beaten resulting in his death,
PW1 (his brother) also suffered injuries – Respondent convicted
C
along with 5 others – Respondent’s appeal partly allowed by High
Court, holding that he did not share common intention to cause
death of deceased as he only inflicted wounds on his feet with a
‘lathi’, was directed to be released having suffered the maximum
punishment provided for the offence – Conviction of other 3 co-
convicts (‘DS’, ‘BS’, ‘MS’), not challenged herein – Two others D
(‘MK’, ‘JK’) were acquitted, acquittal w.r.t ‘MK’ has become final –
Held: Challenge to the acquittal of ‘JK’ dismissed – In case of
respondent, common intention to inflict injuries and cause the death
of deceased can be gathered from his action – PW-1 and his wife-
PW-2 saw the deceased coming from a flour mill which was near
E
the Gurudwara when they were going to the Gurudwara in the village
– Respondent and the co-convicts accosted the deceased –
Respondent had come with ‘lathi’, while others were seen with an
axe, toka and gandasi – They surrounded the deceased – Respondent
then struck the feet of the deceased with ‘lathi’, who fell-down –
Thereupon, respondent and the co-convicts had beaten and inflicted F
injuries and wounds to deceased – Respondent shared common
intention to cause injuries with other co-convicts – Crime was
committed in furtherance of common intention leading to the death
of deceased – Therefore, all of them, including respondent, would
be responsible for offence u/s.302, irrespective of the part played
G
by them – Impugned judgment acquitting respondent u/s.302 set
aside – Convicted u/s.302 r/w s.34 – Conviction u/s.324 for injuries
inflicted on PW-1, maintained – Conviction u/s.149 r/w s.148 not
sustainable – Respondent to surrender – Code of Criminal
Procedure, 1973 – s.428.
H
73
74 SUPREME COURT REPORTS [2022] 16 S.C.R.

A Penal Code, 1860 – s.34 – Application of – Discussed.
Penal Code, 1860– s.34 – Common intention – Evidence–
Held: Common intention can be formed at the spur of the moment
and during the occurrence itself – It is a psychological fact and as
such, direct evidence normally will not be available – In most cases,
B whether or not there exists a common intention, has to be determined
by drawing inference from the facts proved – Constructive intention
can be arrived at only when the court can hold that the accused
must have preconceived the result that ensued in furtherance of the
common intention.
C Allowing the appeal, the Court
HELD: Challenge to the acquittal of ‘JK’ is dismissed.
Respondent was present at the place of the occurrence with ‘BS’,
‘MS’, and ‘DS’ when the violence took place, which resulted in
death of deceased. PW-1, the brother of Teja Singh, along with
D his wife-PW-2, who were going to the Gurudwara in the village,
had seen deceased coming from the flour mill, which was near
the Gurudwara. Respondent, ‘DS’, ‘BS’, ‘MS’ had then accosted
deceased. PW-1 and PW-2 deposed that deceased had come with
a ‘lathi’, whereas ‘DS’ were seen with an axe, ‘BS’ with a ‘toka’
and ‘MS’ with a ‘gandasi’. They had surrounded deceased.
E Respondent had then struck the feet of deceased with ‘lathi’,
who then fell-down. Thereupon, respondent and the co-convicts
had beaten and inflicted injuries and wounds to deceased. ‘BS’ in
particular had used a ‘toka’, a sharp-edged weapon, to inflict
incised wounds on the head of deceased. The motive and cause
F was the land dispute between the brothers, and the occurrence
at 5 P.M on 06.11.2000, when deceased had objected to
respondent and ‘BS’ ploughing the plot of the water works
department, and the village meeting where tempers got flared
with respondent and ‘BS’ leaving the meeting in anger. Section
34 of the IPC i.e., common intention, is attracted in the case of
G respondent, whose case cannot be distinguished, so as to exclude
him as one who did not share common intention with ‘DS’, ‘BS’,
and ‘MS’. Section 34 of the IPC makes a co-perpetrator, who
had participated in the offence, equally liable on the principle of
joint liability. For Section 34 of the IPC to apply, there should be
H common intention among the co-perpetrators, which means that
THE STATE OF RAJASTHAN v. GURBACHAN SINGH & 75
OTHERS

there should be community of purpose and common design. A
Common intention can be formed at the spur of the moment and
during the occurrence itself. Common intention is necessarily a
psychological fact and as such, direct evidence normally will not
be available. Therefore, in most cases, whether or not there
exists a common intention, has to be determined by drawing
B
inference from the facts proved. Constructive intention can be
arrived at only when the court can hold that the accused must
have preconceived the result that ensued in furtherance of the
common intention. Common intention to inflict injuries and cause
the death of dececased, can be gathered from the conduct and
action of respondent. First, the impugned judgment read with C
the depositions of PW-1 and PW-2, that respondent had come
prepared with ‘lathi’ along with others who had carried ‘toka’,
axe and ‘gandasi’. This is corroborated by the fact that blood-
smeared ‘lathi’ was recovered from the possession of respondent.
The evidence establishes the participation of respondent, in
D
commission of the offence with co-participants/co-convicts.
Secondly, respondent was the first one to attack and inflict injury
on deceased, by hitting him on the feet with a ‘lathi’, who had
then fallen down. Lastly, respondent along with co-convicts, had
inflicted 8 incised wounds on head and other injuries on vital and
other parts on the person of deceased, as recorded in the post- E
mortem report (Ex.P.14). The statement of eye witnesses clearly
reveal that respondent did not give just one ‘lathi’ blow, but he
continued to give ‘lathi’ blows to the deceased, even when he
fell down. This he did along with the other co-convicts, ‘BS’, ‘MS’
and ‘DS’, who had inflicted injuries with ‘toka’, axe and ‘gandasi’.
F
Respondent had shared the common intention to cause injuries
with other co-convicts, and the crime was committed in
furtherance of the common intention, which led to the death of
deceased. Therefore, all of them, including respondent, would
be responsible for the criminal act i.e., the offence under Section
302 of the IPC, irrespective of the part played by them. The G
impugned judgment passed by the High Court acquitting
respondent under Section 302 of the IPC is set aside, and he is
convicted for murder of deceased under Section 302 read with
Section 34 IPC. Respondent’s conviction under Section 324 of
the IPC for the injuries inflicted on PW-1 is also maintained. The
H
76 SUPREME COURT REPORTS [2022] 16 S.C.R.

A order of sentence passed by the trial court imposing punishment
of life imprisonment on respondent, for the offence under Section
302 of the IPC is restored albeit read with Section 34 of the IPC,
along with a fine of Rs. 1,000/-. In case of non-payment, he would
undergo sentence of simple imprisonment for two months. Benefit
of Section 428 of the CrPC, 1973 will be given. However, the
B
conviction under Section 149 read with Section 148 of the IPC
cannot be sustained as the requirement of unlawful assembly to
attract these provisions of the IPC, is not satisfied. Respondent
will surrender. [Paras 1, 9, 11-14][76-G; 79-D-G; 80-B-H; 81-A-
F]
C CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2201 of 2011.
From the Judgment and Order dated 04.04.2008 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 880
of 2001.
D
Dr. Manish Singhvi, Sr. Adv., Arpit Prakash, Vikalp Sharma, Milind
Kumar, Advs. for the Appellant.
Shailesh Madiyal, Ms. Asha Upadhyay, Anantha Narayana M.
G., Vinayaka Pandit, Tarun Gulia, Sushant Bajaj, Siddharth Relan, M. L.
E Gopalakrishna, Venkata Krishna Kunduru, Rajan Parmar, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
By the order dated 01.05.2009, notice in the special leave petition
F
was confined to the first respondent - Gurbachan Singh. The special
leave petition against other respondents was dismissed. Our attention is
drawn to the order dated 17.12.2008, whereby Criminal Miscellaneous
Petition No. 19754/2008 preferred against the acquittal of Manjeet Kaur,
stands dismissed. The case and evidence relied by the prosecution against
G Manjeet Kaur and Jangir Kaur is identical. We are of the opinion and
reiterate that the prosecution has not been able to establish its case
against Jangir Kaur. Challenge to the acquittal of Jangir Kaur is
dismissed.
2. The prosecution’s case as per the charge sheet is that Teja
H Singh along with his brother Harbhajan Singh (PW-1) on one side, and
THE STATE OF RAJASTHAN v. GURBACHAN SINGH & 77
OTHERS [SANJIV KHANNA, J.]

Gurbachan Singh along with the co-convicts and brothers Darshan Singh, A
Balvir Singh, and Manjeet Singh, on the other side were embroiled in a
dispute regarding partition of land. On 06.11.2000 at about 5 P.M.,
Gurbachan Singh and Balvir Singh were ploughing the plot which
belonged to water works department. Teja Singh had objected to this,
post which, a village meeting was held, in which both Gurbachan Singh
B
and Balvir Singh had left for their home in anger. At about 7:30 P.M. on
the same day, Harbhajan Singh (PW-1), and Jasveer Kaur (PW-2) were
going to the Gurudwara in the village. At that time, Teja Singh was seen
coming from the flour mill of Sohan Lal, which was near the Gurudwara.
Thereupon, Gurbachan Singh and Balvir Singh, Manjeet Singh, and
Darshan Singh, who hand come armed with ‘lathi’, ‘toka’, axe, and C
‘gandasi’ respectively, had beaten and inflicted injuries on Teja Singh,
which resulted in his death on the spot. Harbhajan Singh (PW-1) had
also suffered injuries in the incident.
3. First Information Report1 was filed on the same day, mentions
the names of Gurbachan Singh, Darshan Singh, Balvir Singh and Manjit D
Singh, and also the names of Jangir Kaur and Manjeet Kaur, who were
statedly present at the place of occurrence. However, as per the FIR,
no specific acts, verbal or physical in nature, were attributed to Jangir
Kaur and Manjeet Kaur.
4. The trial court, vide judgment dated 07.11.2001 had tried and E
convicted Gurbachan Singh along with others namely, Balvir Singh,
Manjeet Singh, Darshan Singh, and Jangir Kaur under the following
provisions of the Indian Penal Code, 18602:
(a) Section 302 read with Section 149 of the IPC- Life
imprisonment and fine of Rs. l000/- each, with default F
stipulation of 2 months simple imprisonment;
(b) Section 324 read with Section 149 of the IPC- One and half
years’ rigorous imprisonment and fine of Rs.500/- each, with
default stipulation of one-month simple imprisonment;
(c) Section 323 read with Section 149 of the IPC- 3 months G
rigorous imprisonment and fine of Rs. l00, with default
stipulation of 7 days simple imprisonment; and

1
For short, “FIR”
2
For short, “IPC”. H
78 SUPREME COURT REPORTS [2022] 16 S.C.R.

A (d) Section 148 of the IPC - one year rigorous imprisonment and
fine of Rs.100/- each, with default stipulation of 7 days simple
imprisonment.
Manjeet Kaur was tried separately in the year 2004, as she had
absconded. She was convicted by the trial court, which conviction was
B set aside by the High Court. The judgment of acquittal in her case has
become final.
5. On appeal preferred by Gurbachan Singh, Balvir Singh, Manjeet
Singh, Darshan Singh, and Jangir Kaur, the Division Bench of High Court
of Judicature for Rajasthan at Jodhpur, vide judgment dated 04.04.2008,
C allowed the appeal filed by Jangir Kaur and has acquitted her. The appeal
of Gurbachan Singh was partly allowed as his conviction under Section
302 read with 149, Section 147, Section 148, Section 324 read with 149,
and Section 323 read with 149 of the IPC was set aside, and he has
been convicted under Section 323 of the IPC for the injuries caused to
Teja Singh, and was directed to be released, as he had suffered the
D maximum punishment provided for the offence. Conviction of Balvir
Singh, Manjeet Singh and Darshan Singh under Sections 149 and 148 of
the IPC was set aside, albeit, their conviction under Section 302 was
maintained with the aid of Section 34 of the IPC. Their conviction and
sentence under Section 324 read with Section 34 of the IPC for injuries
E caused to Harbhajan Singh (PW-1) was maintained.
6. It appears that Balvir Singh, Manjeet Singh, and Darshan Singh
have not challenged their conviction and sentence imposed, which has
attained finality.
7. As such, the question before us, in this appeal by the State of
F Rajasthan is whether the High Court was justified in setting aside the
conviction and sentence awarded to Gurbachan Singh under Section
302 read with other provisions of the IPC, by convicting him only under
Section 323 of the IPC, in view of the finding that he did not share
common intention with Balvir Singh, Manjeet Singh, and Darshan Singh
G to cause the death of Teja Singh, as he only inflicted wounds on his feet
with a ‘lathi’.
8. Pertinently, the High Court while partly accepting the appeal
preferred by Gurbachan Singh, has held as under:
“Now the question remains about accused Gurbachan who as
H per ocular testimony was armed with ‘lathi’ and the same was
THE STATE OF RAJASTHAN v. GURBACHAN SINGH & 79
OTHERS [SANJIV KHANNA, J.]

recovered also. After he gave an information through Ex. P/41 A
and the same was covered through Ex.P/23 and the same was
also smeared with human blood. Harbhajan Singh himself is injured
whose injury report Ex. P/15 was prepared by Dr. Mohan Lal
Gupta. As per injury report he has received as many as eight
injuries on his person, out of which one is from sharp edged weapon
B
and as per statement of Harbhajan Singh said injury was inflicted
by accused Balvir Singh with ‘toka’, when he reached on the spot
to save his brother. Gurbachan Singh gave ‘lathi’ blows on his
person. From the testimony of ocular witnesses it can safely be
inferred that accused Gurbachan Singh was not sharing the
common intention as he was armed only with ‘lathi’ and whatever C
injuries on the person of the deceased which were given on vital
part of the body of the deceased.”
9. The aforesaid reasoning, accepts and in our opinion rightly that
Gurbachan Singh was present at the place of the occurrence with Balvir
Singh, Manjeet Singh, and Darshan Singh when the violence took place, D
which resulted in death of Teja Singh on 06.11.2000 at about 7:30 P.M.
Harbhajan Singh (PW-1), the brother of Teja Singh, along with his wife,
Jasveer Kaur (PW-2), who were going to the Gurudwara in the village,
had seen Teja Singh coming from the flour mill of Sohan Lal, which was
near the Gurudwara. Gurbachan Singh, Darshan Singh, Balvir Singh,
and Manjit Singh had then accosted Teja Singh. Harbhajan Singh (PW- E
1) and his wife Jasveer Kaur (PW-2) have deposed that Gurbachan
Singh had come with a ‘lathi’, whereas Darshan Singh were seen with
an axe, Balvir Singh with a ‘toka’ and Manjeet Singh with a ‘gandasi’.
They had surrounded Teja Singh. Gurbachan Singh had then struck the
feet of Teja Singh with ‘lathi’, who then fell-down. Thereupon, Gurbachan F
Singh and the co-convicts had beaten and inflicted injuries and wounds
to Teja Singh. Balvir Singh in particular had used a ‘toka’, a sharp-edged
weapon, to inflict incised wounds on the head of Teja Singh. The motive
and cause was the land dispute between the brothers, and the occurrence
at 5 P.M on 06.11.2000, when Teja Singh had objected to Gurbachan
Singh and Balvir Singh ploughing the plot of the water works department, G
and the village meeting where tempers got flared with Gurbachan Singh
and Balvir Singh leaving the meeting in anger. It is pertinent that
Harbhajan Singh (PW-1) was also injured during the violence.
10. The post-mortem report marked as exhibit P-14 proved by
Dr. Mohan Lal Gupta, (PW-9) had referred to 8 bone-deep injuries of H
80 SUPREME COURT REPORTS [2022] 16 S.C.R.

A different sizes on the head of Teja Singh. He had also deposed that
these injuries could have been caused by sharp- edged weapons such as
axe, ‘toka’, ‘gandasi’, ‘lathi’, and, etc., which were sufficient to cause
death in ordinary course.
11. Given the aforesaid position, we are of the view that Section
B 34 of the IPC i.e., common intention, is clearly attracted in the case of
Gurbachan Singh, whose case cannot be distinguished, so as to exclude
him as one who did not share common intention with Darshan Singh,
Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a co-
perpetrator, who had participated in the offence, equally liable on the
principle of joint liability. For Section 34 of the IPC to apply, there should
C be common intention among the co-perpetrators, which means that there
should be community of purpose and common design. Common intention
can be formed at the spur of the moment and during the occurrence
itself. Common intention is necessarily a psychological fact and as such,
direct evidence normally will not be available. Therefore, in most cases,
D whether or not there exists a common intention, has to be determined by
drawing inference from the facts proved. Constructive intention, can be
arrived at only when the court can hold that the accused must have
preconceived the result that ensued in furtherance of the common
intention.
E 12. The impugned judgment observes that common intention cannot
be inferred from the conduct of Gurbachan Singh, as he was only armed
with ‘lathi’ and had struck only on the feet of Teja Singh. However, we
are of the opinion that common intention to inflict injuries and cause the
death of Teja Singh, can be gathered from the conduct and action of
Gurbachan Singh. First, it is deductible from the quoted paragraph of the
F impugned judgment read with the depositions of Harbhajan Singh
(PW-1) and Jasveer Kaur (PW-2), that Gurbachan Singh had come
prepared with ‘lathi’ along with others who had carried ‘toka’, axe and
‘gandasi’. This is corroborated by the fact that blood-smeared ‘lathi’
was recovered from the possession of Gurbachan Singh. The evidence
G establishes the participation of Gurbachan Singh, in commission of the
offence with co-participants/co-convicts. Secondly, Gurbachan Singh,
was the first one to attack and inflict injury on Teja Singh, by hitting him
on the feet with a ‘lathi’, who had then fallen down. Lastly, Gurbachan
Singh along with co-convicts, had inflicted 8 incised wounds on head
and other injuries on vital and other parts on the person of Teja Singh, as
H
THE STATE OF RAJASTHAN v. GURBACHAN SINGH & 81
OTHERS [SANJIV KHANNA, J.]

recorded in the post-mortem report (Ex.P.14). The statement of eye A
witnesses clearly reveal that Gurbachan Singh did not give just one ‘lathi’
blow, as it is being said by the defence, but he continued to give ‘lathi’
blows to the deceased, even when he fell down. This he did along with
the other co-convicts, Balvir Singh, Manjeet Singh and Darshan Singh,
who had inflicted injuries with ‘toka’, axe and ‘gandasi’. These facts
B
establish that Gurbachan Singh had shared the common intention to cause
injuries with other co-convicts, and the crime was committed in
furtherance of the common intention, which led to the death of Teja
Singh. Therefore, all of them, including Gurbachan Singh, would be
responsible for the criminal act i.e., the offence under Section 302 of the
IPC, irrespective of the part played by them. C
13. Recording the aforesaid, we set aside the impugned judgment
passed by the High Court acquitting Gurbachan Singh under Section 302
of the IPC, and he is convicted for murder of Teja Singh under Section
302 read with Section 34 IPC. Gurbachan Singh’s conviction under Section
324 of the IPC for the injuries inflicted on Harbhajan Singh (PW-1) is D
also maintained. We restore the order of sentence passed by the trial
court imposing punishment of life imprisonment on Gurbachan Singh, for
the offence under Section 302 of the IPC albeit read with Section 34 of
the IPC, along with a fine of Rs. 1,000/-, with the stipulation that in case
of non-payment, he would undergo sentence of simple imprisonment for
a period of two months. Benefit of Section 428 of the Code of Criminal E
Procedure, 1973 will be given. We, however, accept the view taken by
the High Court that the conviction under Section 149 read with Section
148 of the IPC cannot be sustained as the requirement of unlawful
assembly to attract these provisions of the IPC, is not satisfied.
14. Gurbachan Singh will surrender within 21 days to undergo the F
remaining sentence. In case, Gurbachan Singh does not surrender within
the said period, the authorities/court will take action in accordance with
law to detain Gurbachan Singh, so as to undergo remaining sentence.
15. The appeal is allowed in the aforesaid terms.
G
16. Pending application(s), if any, shall stand disposed of.

Divya Pandey Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)

H