Shankarlal Kachrabhai And Others vs State Of Gujarat on 21 September, 1964

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 191 of 1962

Decision Date: 21 September, 1964

Coram: J.C. Shah, S.M. Sikri, Subba Rao

In the case titled Shankarlal Kachrabhai and Others versus the State of Gujarat, the judgment was delivered on 21 September 1964 by the Supreme Court of India. The bench that heard the matter comprised Justice J. C. Shah and Justice S. M. Sikri, who were recorded as the authors of the opinion. The petition was filed by Shankarlal Kachrabhai together with several co‑accused, identified as the petitioners, and it was directed against the State of Gujarat, identified as the respondent. The judgment was recorded on the twenty‑first day of September 1964 and the bench was listed as Subbarao K., with Justices Shah and Sikri also noted as members of the bench. The case is reported in 1965 AIR 1260 and 1965 SCR (1) 287, and citator reference is given as R 1970 SC1266 (13,15). The statutory provisions under consideration were Sections 34, 301 and 302 of the Indian Penal Code (Act 45 of 1860), and the Court examined the scope of the term “criminal act” in Section 34 as well as the meaning of that provision. The headnote summarised that where four persons shot at a deceased individual with the intention of killing him but under the mistaken belief that he was somebody else, they could be found guilty of an offence under Section 302 read with Section 34, without the need to invoke Section 301, which is applicable only where there is no intention to cause death or knowledge that death is likely. The Court referred to the authorities Barendra Kumar Ghosh v. Emperor, L.R. 52 I.A. 40 and Mahbub Shah v. King Emperor, L.R. 72 I.A. 148. The matter arose as Criminal Appeal No. 191 of 1962, taken by special leave from the Gujarat High Court orders dated 9, 10 and 12 April 1962 in Criminal Appeal No. 426 of 1961. Counsel appeared for the appellants and for the respondent, though the parties were identified only by their roles. The judgment of the Court was delivered by Justice Subbarao J. This appeal by special leave raised a question concerning the construction of Section 34 read together with Section 301 of the Indian Penal Code. The appellants, numbered eleven in total, were identified as accused numbers 1 to 10 and 12 in the Sessions Court at Mehsana. The prosecution case was outlined as follows: the village of Aithor contained approximately three hundred houses belonging to Kadva Patidars and about fifteen to twenty houses belonging to Leva Patidars. On 16 January 1961 at about eight p.m., seven persons identified as Leva Patidars arrived at the chowk where a pan‑shop cabin owned by Girdhar Shanker was situated. Those seven persons were named as Rama Bhupta, Lakha Madha, Hira Punja, Jetha Nagar, Parshottam Prabhuva, Manor Madha and Gova Shiva. At the same time the twelve accused also came to that place. Accused 1 to 6 each carried a muzzle‑loading gun; accused 7, 8, 11 and 12 each carried a stick; and accused 9 and 10 each carried a dharia. Accused 1 to 4 discharged their guns, causing Rama Bhupta to fall down and die near the door of Girdhar’s cabin, while accused 5 and 6 also fired their weapons.

After the first volley of gunfire, Lakha Madha sustained injuries. Subsequently, the individual identified as Accused I discharged his weapon a second time, causing injuries to Jetha Nagar. Thereafter, Accused 5 and Accused 6 again opened fire, resulting in injuries to Hira Punja. The persons identified as Accused 7 through Accused 12 were said to have encouraged Accused 1 through Accused 6 to kill all of the persons present at the scene. In addition, particular acts were attributed to various of the accused beyond the shootings.

The learned Sessions Judge found that the death of Rama Bhupta was caused by the firing of Accused 1, Accused 2, Accused 3 and Accused 4. The Judge also concluded that the injuries to Lakha Madha were caused by the firing of Accused 5 and Accused 6, that the injuries to Jetha Nagar resulted from the firing of Accused 1, and that the injuries to Hira Punja were caused by the firing of Accused 5 and Accused 6. Further, the Judge held that Accused 12 inflicted stick injuries on Lakha Madha and that Accused 8 caused a tongue injury to Parshottam Prabhuva. The Judge determined that the twelve accused together formed an unlawful assembly; however, the Judge said that their common intention was not to kill Rama Bhupta but rather to kill Madha, who was not actually present at the chowk.

Accordingly, the Sessions Judge acquitted all of the accused of the charge under Section 302 read with Section 149 of the Indian Penal Code. The Judge convicted Accused 1 through Accused 4 of the offence under Section 302 read with Section 34 of the Indian Penal Code, sentencing each of them to life imprisonment and imposing a fine of Rs 2,000 on each. The Judge also convicted all of the accused of the offence under Section 324 read with Section 149 of the Indian Penal Code for the injuries caused to Hira Punja and other persons. In addition, Accused 5 through Accused 12 were convicted under Section 326 read with Section 34, as well as under Section 324 read with Sections 149 and 148 of the Indian Penal Code, and each was sentenced to various terms of imprisonment together with appropriate fines.

All of the accused filed separate appeals against their convictions and sentences. The State of Gujarat filed appeals challenging the acquittals of Accused 5 through Accused 12 under Section 302 read with Section 149 of the Indian Penal Code, and also filed a criminal revision seeking to increase the sentences imposed on every accused. The State did not appeal the acquittal of Accused 1 through Accused 4 on the charge under Section 302 read with Section 149.

The High Court affirmed the conviction of Accused 1 through Accused 4 under Section 302 read with Sections 301 and 34 of the Indian Penal Code and upheld the life‑imprisonment sentences, but it set aside the monetary fine that had been imposed on them. Regarding the remaining accused, identified as Accused 5 through Accused 12, the High Court convicted them under Section 302 read with Sections 301 and 34 of the Indian Penal Code as well as under Section 302 read with Section 149 of the same Code. Consequently, the High Court sentenced every accused, whether Accused 1 through Accused 4 or Accused 5 through Accused 12, to life imprisonment for the offences charged.

In the earlier decision, the court set aside the conviction that was based on section 302 read together with sections 34 and 301 of the Indian Penal Code; consequently, if that conviction were nullified, every accused would have to be acquitted of the principal offences. The parties also agreed that, had the conviction of accused 1 to 4 under those provisions been upheld, the appeal filed by the remaining accused would have failed. Thus, the sole issue for determination was whether the conviction of accused 1 to 4 under section 302 read with sections 34 and 301 of the Indian Penal Code was legally correct. In the present appeal, counsel for the appellants argued that accused 1 to 4 could not be found guilty under section 302 read with section 34 because there was no shared intention to kill the victim named Rama; instead, Rama was killed by mistake on the belief that he was a person named Madha. The counsel further maintained that a mistake made by any of the accused could not be described as being “in furtherance of the common intention” of the group, and that section 301 of the Indian Penal Code could not be applied to the facts of the case. To understand this line of argument, it is necessary to recall the finding of the High Court. The High Court held that the accused shared a common intention to kill Madha and that accused 1 to 4 mistakenly fired at Rama, thinking him to be Madha, because Rama was dressed in attire similar to that habitually worn by Madha. Accordingly, the accused shot at Rama under the mistaken belief that he was Madha. Section 34 of the Indian Penal Code states: “When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” This provision has been examined in numerous judicial decisions. The words “in furtherance of the common intention of all” were not part of the original wording of the section; they were added by Section 1 of Act XXVII of 1870. The Judicial Committee, in Barendra Kumar Ghosh v. Emperor, defined “criminal act” for the purpose of this section as “that united criminal behaviour which results in something for which an individual would be punishable if it were done by him alone, that is, a criminal offence.” The Judicial Committee, in Mahbub Shah v. King‑Emperor, set out the conditions for applying section 34, observing that to invoke the section successfully, it must be shown that the criminal act complained of was committed by one of the accused in the furtherance of the common intention of all; once that is established, liability for the offence may be placed on any one of the persons involved.

The Court explained that, under section 34, each participant is treated as if he had performed the act himself. It therefore held that the term “common intention” as used in the provision requires a pre‑arranged plan, and that a conviction under the section is possible only when it can be shown that the criminal act was carried out in concert with that pre‑arranged plan. The Court noted that obtaining direct evidence of an individual’s intention is often extremely difficult, if not impossible; consequently, intention must usually be inferred from the person’s conduct, actions, or other relevant circumstances surrounding the case. From this, the Court concluded that the criminal act described in section 34 of the Indian Penal Code results from the combined actions of more than one person and that, when the result is achieved in furtherance of the common intention, each participant is liable for the result as though he had caused it himself. The Court then turned to the meaning of the expression “in furtherance of the common intention”. It observed that the dictionary definition of “furtherance” is “advancement or promotion”. Accordingly, if four individuals share the intention to kill a person identified as A, they must each perform various acts that advance or promote that design in order to accomplish it. To illustrate this principle, the Court described several hypothetical situations. In the first illustration, four persons intend to kill A, who is expected to be inside a house. Each individual contributes in a different manner; one person tries to enter the house but is stopped by a sentry and shoots the sentry. Although the original common intention was to kill A, the act of shooting the sentry is regarded as being in furtherance of that common intention, and therefore section 34 applies. In a second illustration, one of the accused enters the room where the intended victim usually sleeps, but an unintended person is sleeping there, and the accused, acting on a mistaken impression, shoots the wrong individual. The Court held that this shooting, though directed at the wrong person, is still in furtherance of the common intention and therefore attracts liability under section 34. A third variation involves a victim who has an identical twin; the accused assigned to fire the fatal shot mistakenly shoots the twin, believing him to be the intended victim. The Court considered this act likewise to be in furtherance of the common intention, bringing it within the scope of section 34. Having accepted these illustrations, the Court found no reason to differentiate a killing that results from a mistaken identity from a killing carried out according to the common intention to kill the intended victim. Accordingly, when the accused shot at Rama believing him to be Madha, they were committing a criminal act in furtherance of the common intention to kill Madha, and the fatal shooting of Rama was consequently covered by section 34. The Court noted that counsel for the petitioner questioned how a mistake made by one accused could be regarded as being in furtherance of the common intention.

The Court considered the question of whether a mistake could be regarded as being in furtherance of a common intention, observing that the issue was not whether the mistake formed part of the shared intent, but whether the act was carried out in furtherance of that intent. It explained that if the common intention was to kill person A and one participant killed person B out of personal revenge, such a killing could not be said to be in furtherance of the common intention that would render the other participants liable. Conversely, the Court held that when a participant killed person B while honestly believing that B was the intended victim A, there was no inconsistency in treating that killing as being in furtherance of the common intention to kill A. Accordingly, the Court concluded that, without relying on section 301 of the Indian Penal Code, it could be affirmed that accused persons I to IV, when they fired at Rama, did so in furtherance of their common intention to kill Madha. The Court then turned to examine the effect of section 301 on the operation of section 34. It reproduced the wording of section 301, which provides that if a person, by doing anything he intends or knows is likely to cause death, commits culpable homicide by causing the death of a person whose death he neither intends nor knows to be likely, the culpable homicide is treated as the description it would have been had the offender caused the death of the person he actually intended or thought likely to die. The Court observed that this provision addresses a different factual situation, embodying the doctrine known as the transfer of malice or the transmutation of motive. Under section 301, when A intends to kill B but unintentionally kills C, the law attributes to A the intention to kill C. The Court stressed that to invoke section 301, A must have no intention to cause C’s death and must not know that his act is likely to cause C’s death. In the present case, the Court found that this condition was not satisfied because the accused aimed at a specific individual, albeit under a mistaken belief about that person’s identity. Consequently, the Court determined that all the elements of sections 299 and 300 of the Indian Penal Code were fulfilled, and that the assistance of section 301 was unnecessary. The Court therefore held that section 301 did not apply to the facts of this case.

In the judgment the Court explained that Section 301 of the Indian Penal Code could not be applied to the facts of the case that were before it. Accordingly the Court expressed the view that the statutory provision dealing with the offence of causing death by a reckless act without any intention to kill was not relevant to the matter under consideration. On the basis of that conclusion, and after reviewing the material that had been placed before it, the Court held that each of the persons who had been charged was guilty of the offence of murder as defined in Section 302, and that the liability was to be read together with Section 34, which provides for common intention among participants in the crime.

The Court further stated that, having arrived at that legal conclusion, there were no further issues or points of law that remained to be decided on the appeal. Consequently the Court found that the appeal did not succeed and ordered that it be dismissed. The final order of the Court therefore dismissed the appeal and left the conviction and sentence of the accused under the provisions of Section 302 read with Section 34 intact.