# Babu and Ors v. State of Uttar Pradesh, 11965] 2 S.C.R

- **Citation:** [1971] 1 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 1970-03-13
- **Case number:** Criminal Appeal No. 100 of 1967
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babu-and-ors-v-state-of-uttar-pradesh-11965-2-s-c-r-5034
- **Pages:** 7

## Headnote

Code of Crilninal Procedure, 1898, s. 429-Di/jerence of opinion
a111ong two Judges-If third Judge cGn deal with whole case.
lndan Penal Code, 1860-S. 34-Scope of-Accused acting pu;·suant
to pre-arranged plan to attack two persons-Killing one person h,v n1istake
instead of the other-If 'co1n1non intention' can be inferred.
The three appellants were charged with offences under ss. 302 and 323
read with s. 34 of the Penal Code and appellants 1 and 2 were charged
with the individual offences under ss. 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to
V.
The .Sessions Judge acquitted all the three accused under s. 302 read
with s. 34 but convicted them under s. 304 Part II read with s. 34 and
sentenced them to suffer rigorous imprisonment for five years.
App~llants
1 and 2 were also convicted for the offence under s. 3 23 and appellant 3
was convicted for the offence under s. 323 read with s. 34.
All three
were sentenced for these convictions to rigorous imprisonment for terms
to run concurrently.
On· appeal to a Division Bench· af the High Court one learned Judge
held that the first appellant alone was responsible for the fatal injury on
A and found him guilty under s. 302; while the second and third appellants were found guilty under s. 324 read with s. 34. The second learned
Judge was of the view that all the accused must be acquitted as he was
not satisfied w:th the evidence and proof of the identity of the accused.
The case was then placed before a third learned Judge under s. 429 Cr.
P.C. who held that the first appdlant must be convicted under s. 302
while the second and third appellants must he convicted under s. 302
read with s. 34 and all of them must be sentenced to .suffer rigorous im~
prisonment for life. The conviction of the first and second appellants under
s. 323 and of the third appellant under s. 323 read with s. 34 was upheld.
In apoeal to this Court it was contended (i) that the third learned
Judge under s. 429 Cr. P.C. could only deal with the differences between
the two learned Judges and not with the whole case: and (ii) that there
was no common intention \vithin the meaning of s. 34 I.P.C. on the part
of the three appellants to kill A as he was attacked by mistake.
HELD : Dismissing the appeal.
(i) Section 429 of the Criminal Procedure Code states "that when
the Judges comprising the Court of Appeal are equally divided in opinion,
the case with their opinion thereon. shall be laid before another Judge
of the same Court and such Judge. after such hearing. if any. as he thinks
fit shall dcli\'er his opinion. and the judgment or order shall fol!ow such
opinion".
Two things are noticeable: first. that the case shall be laid
before another Judge. and. secondly, the judgment and order will follow
the opinion of the third
learned Judge. It is. therefore. manifest that
the tliird learned Judge Can or will deal with the "hole caso. [35 D-FJ
31
32
SUPREME COURT REPORTS
(1971] l S.C.R.
Babu and Ors. v. State of Uttar Pradesh, 11965] 2 S.C.R.
771;
A
referred to.
(ii) The plea that A was mistaken for V would not take away the
common intention established by a pre-arranged plan and participation
of all the accused in furtherance of common 'intention.
The act might
be done by one of the several persons in furtherance of the common
intention of them all without each one of them having intended to do the
particular act in exactly the same way as an act might be done by
one
B
member of an unlav..·ful assembly in prosecution o'f the common intention
IYhich the other members of the unla\vful assembly Jid not each intend to·
oe done. [36 H]
On the l acts
it \Vas clear that the attack took place in pursuan~e
of a pre-arranged pion.
The attack by appellants I and 2 on A and the
C\ iLlcnc~ .',ht)\VJng that appellant 3 held back P during the attack all
proved common intention. participation and united criminal behaviour of
C
all: appclh:tnt 3 \Vas therefore equally responsible

## Text

A
HETHUBHA ALIAS JITHUBA MADHUBA & ORS.
B
c
D
E
F
G
H
v.
THE·STATE OF GUJARAT
March 13, 1970
[A. N. RAY AND I. D. DUA, JJ.]
Code of Crilninal Procedure, 1898, s. 429-Di/jerence of opinion
a111ong two Judges-If third Judge cGn deal with whole case.
lndan Penal Code, 1860-S. 34-Scope of-Accused acting pu;·suant
to pre-arranged plan to attack two persons-Killing one person h,v n1istake
instead of the other-If 'co1n1non intention' can be inferred.
The three appellants were charged with offences under ss. 302 and 323
read with s. 34 of the Penal Code and appellants 1 and 2 were charged
with the individual offences under ss. 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to
V.
The .Sessions Judge acquitted all the three accused under s. 302 read
with s. 34 but convicted them under s. 304 Part II read with s. 34 and
sentenced them to suffer rigorous imprisonment for five years.
App~llants
1 and 2 were also convicted for the offence under s. 3 23 and appellant 3
was convicted for the offence under s. 323 read with s. 34.
All three
were sentenced for these convictions to rigorous imprisonment for terms
to run concurrently.
On· appeal to a Division Bench· af the High Court one learned Judge
held that the first appellant alone was responsible for the fatal injury on
A and found him guilty under s. 302; while the second and third appellants were found guilty under s. 324 read with s. 34. The second learned
Judge was of the view that all the accused must be acquitted as he was
not satisfied w:th the evidence and proof of the identity of the accused.
The case was then placed before a third learned Judge under s. 429 Cr.
P.C. who held that the first appdlant must be convicted under s. 302
while the second and third appellants must he convicted under s. 302
read with s. 34 and all of them must be sentenced to .suffer rigorous im~
prisonment for life. The conviction of the first and second appellants under
s. 323 and of the third appellant under s. 323 read with s. 34 was upheld.
In apoeal to this Court it was contended (i) that the third learned
Judge under s. 429 Cr. P.C. could only deal with the differences between
the two learned Judges and not with the whole case: and (ii) that there
was no common intention \vithin the meaning of s. 34 I.P.C. on the part
of the three appellants to kill A as he was attacked by mistake.
HELD : Dismissing the appeal.
(i) Section 429 of the Criminal Procedure Code states "that when
the Judges comprising the Court of Appeal are equally divided in opinion,
the case with their opinion thereon. shall be laid before another Judge
of the same Court and such Judge. after such hearing. if any. as he thinks
fit shall dcli\'er his opinion. and the judgment or order shall fol!ow such
opinion".
Two things are noticeable: first. that the case shall be laid
before another Judge. and. secondly, the judgment and order will follow
the opinion of the third
learned Judge. It is. therefore. manifest that
the tliird learned Judge Can or will deal with the "hole caso. [35 D-FJ
31
32
SUPREME COURT REPORTS
(1971] l S.C.R.
Babu and Ors. v. State of Uttar Pradesh, 11965] 2 S.C.R.
771;
A
referred to.
(ii) The plea that A was mistaken for V would not take away the
common intention established by a pre-arranged plan and participation
of all the accused in furtherance of common 'intention.
The act might
be done by one of the several persons in furtherance of the common
intention of them all without each one of them having intended to do the
particular act in exactly the same way as an act might be done by
one
B
member of an unlav..·ful assembly in prosecution o'f the common intention
IYhich the other members of the unla\vful assembly Jid not each intend to·
oe done. [36 H]
On the l acts
it \Vas clear that the attack took place in pursuan~e
of a pre-arranged pion.
The attack by appellants I and 2 on A and the
C\ iLlcnc~ .',ht)\VJng that appellant 3 held back P during the attack all
proved common intention. participation and united criminal behaviour of
C
all: appclh:tnt 3 \Vas therefore equally responsible and guilty \Vith appellunts I and 2 who had attacked A.
Shankar/al Kac/zrabbhai and Ors. v. St~te of Gujarat, [19651 I S.C.R.
287; referred to.
The dominant feature of s. 34 is the element of participation in
actions.
This participation need not in all cases be by physical presence.
Common, intention implies acting in concert.
There is a pre-arranged
D
plan \vhich is proved either from conduct or from circumstances or from
incriminating facts.
The principle of joint liability in the doing of a
criminal act is embodied in s. 34 of the Indian Fenal Code. The existence
of common intention is to be the basis of liability. That is \Vhy the prior
concert and the ore-arranged plan is the foundation of common intention
to establish liability and guilt. [36 E]
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No.
100 of 1967.
Appeal from the judgment and order dated March 13, 1967
of the Gujarat High Court in Criminal Appeal No. 566 of 1965.
J. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant.
S. K. Dholakia, Badri Das Sharma and S. P. Nayar, for the
respo1ndent.
The Judgment of the Court was delivered by
Ray, J.-This is an appeal from the judgment of the High
Court of Gujarat.
The appellants were charged with offences under sections
302 and 323 read with section· 34 of the Indian Penal Code.
Accused Nos. 1 and 2 were charged for the individual offences
under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to
Vaghji Mansangji.
The deceased Amarji was the brother-inlaw (sister's husband) of Vaghji Mansangji. Two important ey~:
witnesses were Pab;,ji Dajibha and Pachanji Kesarji.
AmarJI
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A
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G
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HETHUBHA v. GUJARAT (Ray, /.)
33
was Pabaji's mother's sister's son. Pachanji is the first cousin of
Vaghji Mansangji.
•
Accused No. 3 Mulubha is the maternal uncle (mother's brother) of accused No. 2 Ranubha Naranji and -occused No. 1
Hethubha alias Jitubha is the son of another maternal uncle of
accused No. 2.
Accused No. 2 was residing at Bhalot.
Vaghji also resided
there. About two months prior to the date of the occurrence
on 26 January, 1965 at 8 p.m. there was a quarrel between the
children of the house of accused No. 2 Ranubha and the children
of the house of Vagh ji. There was exchange of words between
the members of the two families.
Accused No. 2 Ranubha and
his father Naranji assaulted the wife of Vaghji.
Vaghji then
filed a complaint.
Ultimately, the complaint was compounded
on the intervention oi accused No. 3 Mulubha.
The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own
village of Bhalot and had to go to reside-with his maternal uncles
at Bhuvad.
The further prosecution case ls that the relations of
Ranubha thereafter went t_o village Bhalot for fetching the goods
of Ranubha and at that 'time they had threatened Vaghji and
others that Ranubha had to leave the village and Vaghji and
others would not be able to continue to reside in the village;
On 26 January, 1965 Amarji, Pabaji Vaghji and Pacha"1ji
took their carts of fuel wood for selling it in the , village Khedoi
which is about 7 miles from Bhalot.
They left Bhalot at about
10 a.m. and reached Khedoi at about 1 p.m.
The cart loads of
fuel wood were sold in Khadoi by about 5 p.m.
They made
some purchases and then left Khedoi at about 7 p.m. -While
returning home Amarji's ~art was in the front and Pahaji, Pachanji and Vagh ji followed him in that order.
There was not much
distance between each cart. When the carts had gone about 2
miles from Khedoi and they were about to enter vilh1ge · Mathda,
the three accused persons were noticed waiting on the roads.
All of them caught hold of Amarji and attacked him who was in
the first cart.
In the meantime, accused No. 3, Mulubha, caught
hold of the hand of ·Pahaji and prevented him from going near
Amarji.
Mulubha was armed with an axe.
Accused Nos. 1 and
2 dealt knife blows to Amarji.
The prosecution suggested that
the accused persons realised their mistake that instead of Vaghji
they hact attacked Amarji, and so, both the accused Nos. 1 and 2
left Amarji and went to '!he cart of Vaghji and gave blows with
sticks to Vaghji.
On seeil],g the attack on Vaghji '?abaji intervened and asked the accuseu to desist from attacking Vaghji any
'
.
.
34
SUPREME COURT REPORTS
[1971] l S.C.R.
longer as they had already killed Amarjl.
Thereupon the accused stopped attacking Vaghji.
By this time Amarji had come staggering to the spot where Pabaji was standing. Then Amarji was
placed in one of the carts and Vaghji was made to sit in that cart.
Pachanji drove his cart first and the two carts without any drivers
which had been formerly driven by Vaghji and Amarji, were kept
in the middle and Pabaji with the two.injured men in his cart was
driving his cart last·
The carts were taken to village Khedoi.
It is the prosecution
case that the three accused persons followed these carts up to a
certain distance and then accused Nos. I and 2 left while accused
No 3 disappeared near Khari Vadi.
Pabaji took the carts to
Moti Khedoi and saw police head constable .3anesing who had
come to Khedoi for patrolling work.
Banesing was attached to
the police outpost at Bhuvad.
Banesing directed these persons
to take Amarji to the Khedoi hospital.
By that time Amarji had
dkd.
Banesing left Khedoi with Pahaji for Anjar police station
which is about 8 miles from Khedoi.
They reached An jar at
about 11 p.m. and Pabaji's F.I.R. was recoraed before police
sub-inspector Khambholja.
The police sub-inspector then proceded to Khedoi hos;Jital.
Amar.ii was declared to be dead.
The
police sub-inspector recorded the statements of Vaghji and Pachanji and then took steps in the investigation of the case.
At the trial all the three accused denied having committed the
offence.
The Sessions Judge acquitted all the three persons under
section 302 read with section 34.
He however convicted all the
accused for the offence punishable under section 304 Part II read
with section 34 and sentenced them to suffer rigorous imprisonment for five years. Accused Nos. I and 2 were convicted for the
offence under section 323 and accused No. 3 was convicted for
the offence under section 323 read with section 34 of the Indian
Penal Code.
Accused Nos. I and 2 were sentenced to suffer
rigorous imprisonment for three months while accused No. 3 was
sentenced to suffer rigotous imprisonment for two months.
All
the sentences were to run concurrently.
All the accused filed appeals against their convictions.
Before
the Division Bench in the High Court of Gujarat Divan, J. heh!
that accused No. I alone was responsible for the fatal injury on
Amarji and he was found guilty for the offence under section 302
while accused Nos. 2 and 3 were found guilty for the offence under
section 324 read with section 34.
Shelat, J. was of the view that
all the accused must be acquiHed because he was not satisfied
with the evidence and proof of the identity of the accused.-
The case was then placed under section 429 of the Criminal
Procedure Code before Mehta, J. who held that accused No. I
A
.
B
c
D
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B
c
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HETHUBHA v. GUJARAT (Ray, J.)
35·
must be convicted for the offence under section 302 while accus-·
ed Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34. and all of them should be sentenced to suffer rigorous imprisonment for life.
The conviction
of accused Nos. 1 and 2 under section 323 and of accused No.
3 under section 323 read with section 34 was upheld. The con-
·viction of all the accused under section 304 Part Il was altered·
by convicting accused No. 1 under section 302 and accused Nos.
2 and 3 under section 302 read with section 34 of the Indian.
Penal Code.
Counsel for the appellants contended first that the third
learned Judge under section 429 of the Criminal Procedure Code
could only deal with the differences between the two learned
Judges and not with the whole case.
The same contention had
been advanced before Mehta, J. in the High Court who rightly
held that under scetion 429 of the Criminal Procedure Code the·
whole case was to be dealt with by him.
This Court in Babu
and Ors. v. State of Uttar Pradesh(') held that it was for the
third learned Judge to decide on what points the arguments would
be heard and therefore he was free to resolve the differences' as
he thought fit.
Mehta, J. here dealt with the wilole case. Sectiop 429 of the Criminal Procedure Code states "that W]len the·
Judges comprising the Court of Appeal are equally divided in
opinion, the case with their opinion t)Weon, shall be laid.before·
another Judge of the same Court ana such Judge, after such
hearing., i.f any,
as he thinks fit, shall deliver his opinion, and
the judgment or order shall follow such opinion". Two things
are noticeable; first, that the case shall be Ia"id before another
Judge, and, secondly, the judgment and order will follow the
opinion of the third learned Judge. It is, therefore, manifest
that the third learned Judge can or will deal with_the whole_
case.
The second and the main contention of counsel for the appellants was that th.ere was no common intention to kill Amarji.
The finding of fact is that the attack by the three accused was
a concerted one undtr pre-arranged plan. Amarji was auacked
by mistake but whosoever inflicted mjury in the region of the
collar-bone of Amarji must be held guilty of murder under section 302.
Amarji was further found to have been attacked by
accused Nos. 1 and 2 and accused No. 3 who was armed with
an axe caught hold of the hand of Pabaji. The injury on Amarji
was an incised wound
l i" x i"
over the left side of the neck
just above the left ":Ollar-bone.
The direction. ~f the wou~ :was
towards right and downwards.
The other tn)uty was mc1sed
(I) [1965[2 S.C.R. 771.
36
SUPREME COURT REPORTS
[ 1971 J l S.C.R.
wound l" x t" x t" over the ches't (right side) near the middle
line between the 6th and 7 ribs.
The evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at
tbe relevant time; thirdly, all the three. accused made sudden
appearance on the scene of the occurrence; fourthly, they started assault as soqn as the carts arrivep at the .scene of the offence;
fifthly, the way in which Amarji was attacked by accused Nos.
1 and 2 and stab wounds were infficted on him and the manner
in which accused No. 3 held up Pabaji would show that the three
accused were lying in wait under some pre-arranged plan to attack
these persons when they were returning to Bhalot.
It therefore
follows that the attack took place in pursuance of the pre-arranged
plan and the rapidity with which the atacks were made also shows
the pre-concerted plan.
The attack by accused Nos. 1 and 2 on
Amarji and the holding-.uR of Pabaji by accused No. 3 all prove
common intention, participation and united criminal behaviour of
all and therefore accuseclNo. 3 would be equally responsible with
accused Nos,, 1 and 2 who had attacked Amarji.
This Court in the case of Shankarlal Kachrabhai and Ors. v.
Stnte of Gujarat(') said that a mistake by one of the accused as
to killing?' in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of
pre-arranged plan.
The dominant feature of section 34 is the
element of participation in actions.
This participation need not in
all cases be by physical presence.
Common intention implies acting in concert. There is a pre-arranged plan which is proved either
from conduct qr from circumstances or from incriminating facts.
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code.
The exis(fnce of
·common intention is to be the basis of liability.
That is why the
prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt.
Applying these principles to the evidence in the present case it
appears that there was pre-arranged plan of the accused to commit
offences.
All the accused were lying in wait to attack the party
of Amar.ii, Vaghji, Pabaji and 'Pachanji.
Amarji was· in the
forefront.
The accused attacked him.
Vaghji was also attacked
and prevented from going to the relief of Amarji. The plea that
Amarji wa~ mistaken for Vaghji would not take away the common
intention established by pr!)-arranged plan and participation of all
the accused in furtherance of common intention.
The act might be
done by one of the several perSQIIS -in furtherance of the common
intention of them all without each one of them having intended
(I) [1965] l S.C.R. 2~7.
A
B
c
D
E
F
G
h
A
B
c
D
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HETHUBHA V. GUJARAT (Ray, J.)
37
to do the paritcular act in exactly the sw.ne way as an act might
be done by one member of an unlawful assembly in prosecution
of the common intention which the other members of the unlawful assembly did not each intend to be done.
In view of the evidence that Amarji was killed in furtherance
of the common intention of all the accused the appellants are
guilty of murder.
Tn Shankarla/'s case(') this Court said that if
the common intention was to kill A and if one of the accused
killed B to wreck his ·private vengeance, it could not be possibly
in furtherance of the common intention for which others can
be liable.
But if on the other hand he killed B bona fide believing
that he was A and the common intention was to kill A the killing
of B was in furtherance of the common intention.
All the three
accused in the present case were lying in wait and assaulted the
driver of the first cart and stabbed him in pursuance of their prearranged plan. Therefore, all the three accused i,ncluding the ap·
pellant must share the liability of murder under section 302 read
with section 34 of the Indian Penal Code.
Further, in view of
the finding that the pre-concerted plan was to cause injuries to the
int.ended victim with dangerous weapons with which the assailants
were lying in wait, the liability o.f the appellant is established.
The conclusion of Mehta, J. is correct.
The appeal, therefore, fails and is dismissed.
The accused must surrender to the
ball and serve out the sentences.
R.K.P.S.
Appeal dismissed.
(1) [1965] I S.C.R. 287.