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Showing contexts for: common intention to commit murder in Bhanwar Singh & Ors vs State Of M.P on 16 May, 2008Matching Fragments
45. It would also be instructive to look at the following observations made in Gurdatta Mal v. State of UP [AIR 1965 SC 257], in the context of Sections 34 and 149 IPC:-
"It is well settled that Section 34 of the Indian Penal Code does not create a distinct offence: it only lays down the principle of joint criminal liability. The necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence... In that situation Section 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence. To illustrate, if a person was guilty of murder by doing an act in furtherance of a common intention with others to commit murder, he could sustain the plea of the right of private defence only by establishing that he had the right to cause death of that person. It is true that, in ascertaining whether a group of persons had common intention to murder, the evidence adduced by the defence that they had common intention only to cause hurt is relevant. But once it is established that the common intention was to commit murder and/or culpable homicide the question of separate individual liability in the context of private defence would be out of place. Under Section 103 of the Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99 thereof, to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasions the exercise of the right falls in one of the categories mentioned therein. That is to say, if it was not one of the offences enumerated therein, the person had no right of private defence extending to the voluntary causing of death. If in the instant case the accused were not able to establish that the offence fell in one of the categories enumerated therein, they would be liable for murder, as all of them participated in the offence pursuant to the common intention to commit murder. In most of the cases, the discussion of the evidence in compartments - one relating to the offence and the other to the right of private defence - may not be possible, for almost always the evidence relating to one part will have impact on the other part, and the court in considering whether the accused are liable constructively for murder will have to consider also the evidence of the defence that their common intention was not to commit murder but only to protect their right and to cause hurt, if necessary."
In an earlier case, Gurditta Mal & Ors. v. State of Uttar Pradesh [AIR 1965 SC 257], it was held :
45
"...if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder. In that situation Section 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence. To illustrate, if a person was guilty of murder by doing an act in furtherance of a common intention with others to commit murder, he could sustain the plea of the right of private defence only by establishing that he had the right to cause death of that person. It is true that, in ascertaining whether a group of persons had common intention to murder, the evidence adduced by the defence that they had common intention only to cause hurt is relevant. But once it is established that the common intention was to commit murder, the question of separate individual liability in the context of private defence would be out of place. Under Section 103 of the Indian Penal Code, the right of private defence of property extends, under the restrictions mentioned in Section 99 thereof, to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasions the exercise of the right falls in one of the categories mentioned therein. That is to say, if it was not one of the offences enumerated therein, the person had no right of private defence extending to the voluntary causing of death."
In that case, it was found that the right of private defence did not exist and common intention to commit murder was indeed found.
55. On a broad conspectus of the event, we are of the opinion that Kripal Singh (A-16), Bhupinder Singh @ Bhopal Singh (A-17) and Kuber Singh must be held to be guilty of Section 304 Part I of the Indian Penal Code.
56. Jurisprudentially, in the light of the dicta of the above two cases, in the situation that occurs before us, the situation is that, if the voluntary causing of death is not permissible under the right of private defence under Section 96, then the common intention thereto will lead to the result that the accused persons must be held guilty under Section 304 Part I of the Indian Penal Code. If, however, the common intention was only to commit an act which was permissible within the confines of Section 96 read with Section 98, then constructive liability under Section 34 cannot be said to have been accrued to the accused. In that case then, if the right of private defence had been exceeded by some persons, the guilt of each of the accused proved to have exceeded the right of private defence would have to be dealt with separately. The instant case, however, falls under the former situation, and hence we have held Kripal Singh (A-16), Bhupinder Singh @ Bhopal Singh (A-17) and Kuber Singh Guilty under Section 304 Part I of the Indian Penal Code.