# SHANKARLAL KACHRABHAI AND OTHERS v. STATE OF GUJARAT

- **Citation:** [1965] 1 S.C.R. 287
- **Court:** Supreme Court of India
- **Decided:** 1964-09-21
- **Case number:** Criminal Appeal No. 191 of 1962
- **Bench:** K. SUBBA RAo, J. C. Shah Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankarlal-kachrabhai-and-others-v-state-of-gujarat-3306
- **Pages:** 6

## Headnote

Indian Penal Code (Act 45 of
01860), ss. 34, 301 and 302-Scope
of-"Criminal act" in s. 34, meaning of.
Where four persons shot at the deceased with the intention of kill·
ing him but under a misapprehension that he .was >Ome one else they
oould be found guilty of an offence under s.
302 of the Indian Penal
C
Code, read with s. 34 of the Code. It would be a case of killing the
deceased in furtherance of their common intention to kill the other, and
there would not be any necessity to invoke s. 301 of the Code to find them
guilty. In fact that section would apply only to cases where there was
no intention to cause the death, or knowledge that death was likely to
be caused, of the deceased. £2910-E, H; 292A-B].
Barendra Kumar Ghosh
v. Emperor, L.R. 52 I.A. 40 and Mahbub
D
Shah v. King Emperor, L.R. 72 I.A. 148 referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal Appeal
No. 191 of 1962.
Appeal by special leave from the judgment and order dated
April 9, 10 and 12 of 1962 of the Gujarat High Court in Criminal
E Appeal No. 426 of 1961.
F
G
H
A. S. R. Chari, and R. A. {Jagrat, for the appellants.
H. R. Khanna, R. H. DheblJ.r and B. R. G. K. Achar, for the
respondent.

## Text

287
A
SHANKARLAL KACHRABHAI AND OTHERS
B
v.
STATE OF GUJARAT
September 21, 1964
(K. SUBBA RAo, J. C. SHAH ANDS. M. SIKRI JJ.)
Indian Penal Code (Act 45 of
01860), ss. 34, 301 and 302-Scope
of-"Criminal act" in s. 34, meaning of.
Where four persons shot at the deceased with the intention of kill·
ing him but under a misapprehension that he .was >Ome one else they
oould be found guilty of an offence under s.
302 of the Indian Penal
C
Code, read with s. 34 of the Code. It would be a case of killing the
deceased in furtherance of their common intention to kill the other, and
there would not be any necessity to invoke s. 301 of the Code to find them
guilty. In fact that section would apply only to cases where there was
no intention to cause the death, or knowledge that death was likely to
be caused, of the deceased. £2910-E, H; 292A-B].
Barendra Kumar Ghosh
v. Emperor, L.R. 52 I.A. 40 and Mahbub
D
Shah v. King Emperor, L.R. 72 I.A. 148 referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal Appeal
No. 191 of 1962.
Appeal by special leave from the judgment and order dated
April 9, 10 and 12 of 1962 of the Gujarat High Court in Criminal
E Appeal No. 426 of 1961.
F
G
H
A. S. R. Chari, and R. A. {Jagrat, for the appellants.
H. R. Khanna, R. H. DheblJ.r and B. R. G. K. Achar, for the
respondent.
The Judgment of the Court was delivered by
Sobba Rao J. This appeal by special leave raises an interesting question involving the construction of s. 34, read with s. 301
of the Indian Penal Code.
The appellants who are 11 iu number were accused Nos. 1 to
10 and 12 in the Sessions Court. Mehsana.
The case of the
prosecution may be stated thus : In the village of Aithor there
are about 300 houses of Kadva Patidars and about 15 to 20
houses of Leva Patidars. On January 16, 1961. at about~ P.M.
seven persons, who are Leva Patidars, came to the chowk where
there is a pan shop cabin of Girdhar Shanker.
These seven
persons were, Rama Bhupta, Lakha Madha, Hira Punja, Jetha
Nagar, Parshottam Prabhuva, Mlnor Madha and Gova Shiva.
At the same time the 12 accused also came to that place. Accused
1 to 6 were each armed with a muzzle loading gun; accused 7,
238
SUPREME COURT REPORTS
[1965] 1 S.C.R.
8, 11 and 12 were armed with sticks; accused 9 and 10 were
A
armed with dharias.
Accused I to 4 fired their guns and Rama
Bhupta fell down and died near the door of the cabin of Girdhar.
Accused 5 and 6 fired their guns and Lakha Madha was injured.
Accused 1 fired his gun again and Jetha N agar received injuries.
Accused 5 and 6 fired again and Hira Punja was injured. Accused
8
7 to 12 were inciting accused
I to 6 to kill all these persons.
Other specific acts were attributed to some of the accused. The
learned Sessions Judge held that Rama Bhupta was killed as a
result of the firing by accused 1 to 4. that Lakha Madha was
injured by the firing by accused 5 and 6, that Jetha Nagar was
injured hy the firing by accused I, that Hira Punja was injured c
by the firing by accused 5 and 6, that accused 12 caused stick
injuries to Lakha and that accused 8 caused injury on the tongue
of Parshcttam Prabhuva. "The Sessions Judge also held that the
12 accused constituted an unlawful assemblv, but their common
intention was not to kill Rama Bhupta but ~nly Madha who was
not present in the chowk.
He acquitted all the accused under
D
s. 302, read with s. 149, of the Jndian Penal Code, but convicted
accused I to 4 under s. 302, read with s. 34, of the Jndian Penal
Code and sentenced them to imprisonment for life and to a fine
of Rs. 2,000 each; he convicted all the accused under s. 324,
read with s. 149, of the Indian Penal Code for causing injuries
to Hira Punja and others.
Accused 5 to 12 were also convicted
E
under s. 326, read with s. 34, and s. 324, read with s. 149 and
s. 148, of the Indian Penal Code and they were sentenced to
various periods of imprisonment and fine.
The accused preferred different apreals against their convictions and sentencei; and
the State of Gujarat filCd appeals against the acquittal of accused
5 to 12 anders. 302, read with s. 149, of the Indian Penal Code.
F
Tho State of Gujarat also filed a criminal revision for enhancing
sentences passed against all the accused, but it did not file any
appeal against the acquittal of accused 1 to 4 on the charge under
s. 302, read withs. 149. of the Indian Penal Code. The High Court
convic!ed accused I to 4 under s. 302, read with ss. 301 and
G
34, of the Indian Penal Code and confirmed the sentence of life
imprisonment pa~sed on them, but set aside the fine imposed on
them.
So far as the other accused i.e .. accused 5 to I 2. arc
concerned, they were convicted under s. 302, read with ss. 30 I
and 34, of the Indian Penal Code and also under s. 302, read
with a. 149, of the said Code.
In the result, the High Coun
H
sentenced all the accused to imprisonment for life for the said
oil~.
-
\
< •
SHANKARLAL v. STATE (Subha Rao!.)
289
A
It is common case that if the conviction of accused 1 to 4
under s. 302, read with s. 34 and s. 301, of the Indian Penal
Code, was set aside, all the accused would have to be acquitted
in regard to the major offences. It is also not disputed that if
the conviction of accused 1 to 4 under the said sections was
confirmed, the appeal filed by the other accused would fail. The
B only question, therefore, is whether the conviction of accused
i to 4 under s. 302, read with ss. 34 and 301, of the Indian Penal
Code, was correct.
In the appeal Mr. Chari, learned counsel for the appellants.
contends that accused 1 to 4 could not be convicted under
C s. 302, read with s. 34, of the Indian Penal Code, as there was no
common intention to kill Rama, but Rama was killed under the
mistake that he was Madha.
A mistake by one or other of the
accused, the argument proceeds, cannot possibly be "in furtherance of the common intention" of the accused.
He
further
argues
that the provis~ons of s. 301 of the Indian Pena?
D
Code cannot be invoked in the circumstances of the case.
To appreciate the' argument of the learned counsel it would
be convenient at this stage to note exactly the finding given by
the High Court. The High Court found that the common intention of the accused was to kill Madha, that accu.ed 1 to 4 shot
E
at Rama mistaking him for Madha, as Rama had dressed
himself in the habiliments similar to those in which Madha used
to dress himself and, the11efore, the accused shot at Rama under
the mistaken belief that he was Madha. Section 34 of the lndian
Penal Code reads:
F
"When a criminal act is done by several persons, in
furtherance of the c0mmon intentjon of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone."
Section 34 was subject of judiciaJ scrutiny _in innumerable cases.
G The expression 'fa furtherance of the common intention of all,.
was not in the original section, but was inserted in the section bys. 1
of Act XXVIl of 1870.
The Judicial Committee in Bamulra
KQUIT Ghosh v. Emperor(') defined the expression "crialhlal
act" in the said section thus:
·"A criminal act means that united criminal behaviour
H
which results in something for which an individual
---··------
{I) (1924) I.LR. S2 Cal. 197 (P.C.) : LR. S2 I.A. 40
290
SUPREME COURT REPORTS
(1965] I S.C.R.
would be punishable if it were all done by himself alone,
A
that is, in a criminal offence."
The Judicial Committee in Mahbub Shah v. King-Emperor(1)
laid down the following conditions for its application:
"To invoke the aid of s. 34 successfully, it must be
shown that the criminal act complained against was done
by one of the accused persons in th"e furtherance of the
common intention of all; if this is shown, then liability
for the crime may be imposed on any one of the persons
in the same manner as if the act we'e don~ by him alone.
This being the principle, i~ is clear to their Lordships that
common intention within the meaning of the section
implies ·a pro-arranged plan, and to convict the accused
of an offence applying the section it should be proved
that the criminal act was done in concert pursuant to
the pre-arranged plan. As has been often observed, it
is difficult,. if not impossible, to procure direct evidence
to prove the intention of an individual; in most cases
it has to be inferred from his act or conduct or other
relevant circumstances of the case."
It is, therefore, clear that the criminal act mentioned in s. 34
B
c
D
of the Indian Penal Code is the result of the concerted action of
more than one person; if the said result was reached in furtherE
ance of the common intention, each person is liable for the result
as if he had done it himself.
The question is what is the meaning of the expression "in furtherance of the common intention".
The dictionary meaning of the word "furtherance" is "advancement or promotion". If four persons have a common intention
to kill A, they will have to do many acts in promotion or prosecution of that design in order to fulfil it.
Some illustrations will
clarify the point Four persons intend to kill A, who is expected
to be found in a house.
All of them participate in different
ways.
One of them attempts to enter the house, but is stopped
F
by the sentry and he shoots the sentry.
Though the common
G
intention was to kill A, the shooting of the sentry is in furtherance
of the said common intention.
So s. 34 applies.
Take another
illustration. If one of the said accused enters the room where
the intended victim usually sleeps, but somebody other than the
intended victim is sleeping in the room, and on a mistaken impression he shoots him.
The shooting of the wrong man is in
H
.furtherance of the common intention and so s. 34 applies.
Take
(I} L.R. 72 I.A. 148. J 53.
l •
SHANKARLAL v. STATE (Subba Rao J.)
291
A
a third variation of the illustration.
The intended victim has a
twin brother who exactly resembles him and the accused who is
entrusted with the part of shooting the intended victim, on a
mistaken impression, shoots the twin brother.
The shooting of
the twin brother is also in furtherance of the common intention.
Here also s. 34 applies. If that much is conceded we do not see
B
any justification why the killing of another under a mistaken
impression of identity is not in furtherance of the common intention to kill the intended victim.
When the accused were shooting
at Rama believing him to be Madha, they were certainly doing a
criminal act in furtherance of the common intention which was to
kill Madha.
They killed Rama because they believed that they
C
were shooting at Madha,. Mr. Chari '~rgues, how. can a mistake
committed by one of the accused be in· furtherance of a common
intention ? For it is said that to commit a mistake was not a part
of the common intention of the accused.
But the question is not,
as we have pointed out, whether fue corrimitting of a mistake was
D
a part of the common intention, but whether it was done in furtherance of the common intention. 1f the common intention was to
kill A and if one Of the accused kills B to wreak out bis private
vengeance, it canilot possibly be in furtherance of the common
intention for. which others can be constructively made liable. But,
on the other hand if he kills B bona fide believing that he is A,
E
we do not Sjle any incongruity in holding that the killing of B is
in furtherance of the common intention.
We, therefore, hold that
without the aid of s. 301 of the Indian Penal Code it can be held
that when accused 1 to 4 shot at Rama they shot at him in furtherance of their common intention to kill Madha.
Now Jet us see the impact of s. 301 of the Indian Penal Code
F
on s. 34 thereof.
Section 301 reads:
"If a person, by doing anything which he intends or
knows to be likely to cause death, commits culpable
homicide by causing the death of any person, whose
death he neither intends nor knows himself to be likely
G
to cause, the culpable homicide committed by the offender is of the description of which it would have been if
he had caused the death of the person whose death he
intended or knew himself to be likely to cause."
This section deals with a different situation. It embodies what
the English authors describe as the doctrine of transfer of malice
H
or the transmigration of motive.
Under the section if A intends
to kill B, but kills C whose death be neither intends nor knows
himself to be likely to cause, the intention to kill C is by law
292
SUPREME
COURT
REPORTS
(I 96S] I S.C.lt.
attributed to him. If A aims his shot at B, but it misses B either
A
because B moves out of the range of the shot or because the
shot misses the mark and hits some other person C, whether
within sight or out of sight, under s. 301, A is deemed to have
hit C with the intention to kill him.
What is to be noticed is
that to invoke s. 301 of the indian Penal Code A shall not have
any intention to cause the death or the knowledge that he IS
B
likely to cause the death of C.
In the· instant case this condition
is not complied with.
The accused shot at a particular person
with the intention of killing him though under a misapprehension
.of his identity.
In that CMe, all the ingredients of ss. 299 and
300 of the Indian Penal Code are complied with.
The aid of
s. 301 of the Indian Penal Code is not called for. We arc, there·
C
fore, of the opinion that s. 301 of the Indian Penal Code has no
application to the present case.
For the foregoing reasons we hold that all the.accused are
liable under s. 302, read with s. 34, of the Indian Penal Code.
If we reach this conclusion, it is conceded that no other point
D
arises in this appeal. The appeal fails and is dismissed.
Appeal dismissed.