{"id":141908,"date":"1970-03-13T00:00:00","date_gmt":"1970-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hethubha-alias-jithuba-madhuba-vs-the-state-of-gujarat-on-13-march-1970"},"modified":"2017-06-28T03:02:55","modified_gmt":"2017-06-27T21:32:55","slug":"hethubha-alias-jithuba-madhuba-vs-the-state-of-gujarat-on-13-march-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hethubha-alias-jithuba-madhuba-vs-the-state-of-gujarat-on-13-march-1970","title":{"rendered":"Hethubha Alias Jithuba Madhuba & … vs The State Of Gujarat on 13 March, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hethubha Alias Jithuba Madhuba & … vs The State Of Gujarat on 13 March, 1970<\/div>\n
Equivalent citations: 1970 AIR 1266, \t\t 1971 SCR (1)\t 31<\/div>\n
Author: A Ray<\/div>\n
Bench: Ray, A.N.<\/div>\n
           PETITIONER:\nHETHUBHA ALIAS JITHUBA MADHUBA & ORS.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT\n\nDATE OF JUDGMENT:\n13\/03\/1970\n\nBENCH:\nRAY, A.N.\nBENCH:\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n 1970 AIR 1266\t\t  1971 SCR  (1)\t 31\n 1970 SCC  (1) 720\n CITATOR INFO :\n F\t    1971 SC1836\t (6)\n E\t    1981 SC 365\t (2,3)\n\n\nACT:\nCode  of  Criminal Procedure, 1898,  s.\t 429--Difference  of\nopinion among two Judges--If third Judge can deal with whole\ncase.\nIndian\tPenal  Code, 1860--S. 34--Scope\t of--Accused  acting\npursuant to pre-arranged plan to attack two persons--Killing\none  person  by\t mistake instead of  the  other--If  'common\nintention' can be inferred.\n\n\n\nHEADNOTE:\nThe  three appellants were charged with offences  under\t ss.\n302  and  323  read  with  s. 34,  of  the  Penal  Code\t and\nappellants 1 and 2 were charged with the individual offences\nunder ss. 302 and 323 for intentionally causing the death of\nA, mistaking him for V and for causing simple hurt to V. The\nSessions Judge acquitted all the three accused under s.\t 302\nread with s. 34 but convicted them under s. 304 Part 11 read\nwith   s.   34\tand  sentenced\tthem  to   suffer   rigorous\nimprisonment  for five years.  Appellants 1 and 2 were\talso\nconvicted  for the offence under s. 323 and appellant 3\t was\nconvicted for the offence under s. 323 read with s. 34.\t All\nthree  were  sentenced\tfor these  convictions\tto  rigorous\nimprisonment for terms. to run concurrently.\nOn appeal to a Division Bench of the High Court one  learned\nJudge  held, that the first appellant alone was\t responsible\nfor  the  fatal\t injury\t on A and  found  him  guilty  under\ns.  .302, while the second and third appellants\t were  found\nguilty\tunder s. 324 read with s.. 34.\tThe  second  learned\nJudge was of the view that all the accused must be acquitted\nas he was not satisfied with, the evidence and proof of.-the\nidentity. of the accused.  The case was then placed-  before\n,  a,  third learned Judge under s. 429 Cr.  P.C.  who\theld\nthat  the  first appellant must 'be convicted under  s.\t 302\nwhile  the  second and third appellants must  be  convicted,\nunder  s.  302\tread  with s. 34 and all  of  them  must  be\nsentenced  to  suffer  rigorous prisonment  for\t life.\t The\nconviction of the first and second appellants under s.\t 323\nand of the third appellant under s. 323 read with s. 34\t was\nupheld.\nIn appeal to this Court it was contended (i) that the  third\nlearned\t Judge under s. 429 Cr.\t P.C. could only,.deal\twith\nthe differences between the two learned Judges and not\twith\nthe whole case; and (ii) that there was no comnmittee intend\non  within  the meaning of supp I.P.C. on the  part  of\t the\nthree appellants to kill A as he was attacked by, mistake.\nHELD : Dismissing the appeal.\n(i) Section on of the Criminal\tProcedure Code.states  \"that\nwhen  the judges comprising the Court of Appeal are  equally\ndivided in opinion the case with their opinion thereon shall\nbe  laid  before another Judge of the same  Court  and\tsuch\nJudge,\tafter  hearing,if  any, as  he\tthinks\t fit,  shall\ndeliver his opinion, and  the judgment or order shall follow\nsuch  before another Judge, and, secondly, the Judgment\t and\norder  will follow the, opinion of the third learned  Judge.\nIt is, therefore, manifest that the third learned Judge\t can\nor will deal with the whole case. [35 D-F]\n32\nBabu  and  Ors. v. State of Uttar Pradesh,<\/a> [1965]  2  S.C.R.\n771; referred to.\n(ii) The plea that A was mistaken for V would not take\taway\nthe common intention established by a pre-arranged plan\t and\nparticipation  of all the accused in furtherance  of  common\nintention.   The  act might be done by one  of\tthe  several\npersons\t in furtherance of the common intention of them\t all\nwithout\t each  one  of\tthem  having  intended\tto  do\t the\nparticular  act in exactly the same way as an act  might  be\ndone by one member of an unlawful assembly in prosecution of\nthe common intention which the other members of the unlawful\nassembly did not each intend to be don.-. [36 H]\nOn  the\t facts, it was clear that the attack took  place  in\npursuance of a pre-arranged plan., The attack by  appellants\n1 and 2 on A and the evidence showing that appellant 3\theld\nback  P\t during\t the attack  all  proved  common  intention,\nparticipation\tand  united  criminal  behaviour   of\tall;\nappellant  3  was therefore equally responsible\t and  guilty\nwith appellants 1 and 2 who had attacked A.\nShankarlal Kachrabbhai and Ors. v. State of Gujarat,  [1965]\n1 S.C.R. 287; referred to.\nThe   dominant\t feature  of  s.  34  is  the\telement\t  of\nparticipation  in actions.  This participation need  not  in\nall cases be by physical presence.  Common intention implies\nacting\tin concert.  There is a pre-arranged plan  which  is\nproved\teither\tfrom conduct or from circumstances  or\tfrom\nincriminating  facts.  The principle of joint  liability  in\nthe  doing  of a criminal act is embodied in s.\t 34  of\t the\nIndian Penal Code.  The existence of common intention is  to\nbe  the basis of liability.  That is why the  prior  concert\nand  the  pre-arranged\tplan is\t the  foundation  of  common\nintention to establish liability and guilt. [36 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.100  of
\n1967.\n<\/p>\n
Appeal\tfrom the judgment and order dated March\t 13,1967  of
\nthe Gujarat High Court in Criminal Appeal No. 566 of 1965.
\nJ. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant.
\nS. K. Dholakia, Badri Das Sharma and S. P. Nayar, for the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nRay,  J.-This  is an appeal from the judgment  of  the\tHigh
\nCourt of Gujarat.\n<\/p>\n
The appellants were charged with offences under sections 302
\nand  323  read\twith section 34 of the\tIndian\tPenal  Code.
\nAccused\t Nos.  1  and  2 were  charged\tfor  the  individual
\noffences under sections 302 and 323 of the Indian Penal Code
\nfor  intentionally causing death of Amarji and\tfor  causing
\nsimple\thurt to Vaghji Mansangji.  The deceased\t Amarji\t was
\nthe brother-in-. law (sister’s husband) of Vaghji Mansangji.
\nTwo important eyewitnesses were Pabaji Dajibha and  Pachanji
\nKesarji.  Amarji
\n33<\/span>
\nwas  Pabaji’s mother’s sister’s son.  Pachanji is the  first
\ncousin of Vaghji Mansangji.\n<\/p>\n
Accused\t No. 3 Mulubha is the maternal uncle (mother’s\tbro-
\nther)  of  accused No. 2 Ranubha Naranji and accused  No.  1
\nHethubha alias Jitubha is the son of another maternal  uncle
\nof accused No. 2.\n<\/p>\n
Accused\t No. 2 was residing at Bhalot.\tVaghji also  resided
\nthere.\tAbout two months prior to the date of the occurrence
\non  26 January, 1965 at 8 p.m. there was a  quarrel  between
\nthe  children of the house of accused No. 2 Ranubha and\t the
\nchildren  of  the house of Vaghji.  There  was\texchange  of
\nwords between the members of the two families.\tAccused\t No.
\n2  Ranubha  and\t his father Naranji assaulted  the  wife  of
\nVaghji.\t  Vaghji  then filed a complaint.   Ultimately,\t the
\ncomplaint was compounded on the intervention of accused\t No.
\n3  Mulubha.   The prosecution case is that  because  of\t the
\nbehaviour  of  accused\tNo. 2 Ranubha towards  the  wife  of
\nVaghji,\t Ranubha had to leave his own village of Bhalot\t and
\nhad to go to reside with his maternal uncles at Bhuvad.\t The
\nfurther\t prosecution case is that the relations\t of  Ranubha
\nthereafter went to village Bhalot for fetching the goods  of
\nRanubha\t and  at that time they had  threatened\t Vaghji\t and
\nothers that Ranubha had to leave the village and Vaghji\t and
\nothers\twould  not  be able to continue to,  reside  in\t the
\nvillage.\n<\/p>\n
On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji\ttook
\ntheir  carts  of  fuel wood for selling it  in\tthe  village
\nKhedoi which is about 7 miles from Bhalot.  They left Bhalot
\nat about 10 a.m. and reached Khedoi at about 1 p.m. The cart
\nloads of fuel wood were sold in Khadoi by about 5 p.m.\tThey
\nmade  some  purchases and then left Khedoi at about  7\tp.m.
\nWhile  returning  home\tAmarjis cart was in  the  front\t and
\nPabaji,\t Pachanji  and Vaghji followed him in.\tthat  order.
\nThere  was  not much distance between each cart.   When\t the
\ncarts had gone about 2 miles from Khedoi and they were about
\nto  enter  village Mathda, the three  accused  persons\twere
\nnoticed\t waiting on the roads.\tAll of them caught  hold  of
\nAmarji\tand attacked him who was in the first cart.  In\t the
\nmeantime, accused No. 3, Mulubha, caught hold of the hand of
\nPabaji\tand prevented him from going near  Amarji.   Mulubha
\nwas  armed with an axe.\t Accused Nos.  1 and 2\tdealt  knife
\nblows to Amarji.  The prosecution suggested that the accused
\npersons\t realised their mistake that instead of Vaghji\tthey
\nhad  attacked Amarji, and so both the accused Nos. 1  and  2
\nleft  Amarji and went to the cart of Vaghji and\t gave  blows
\nwith  sticks  to  Vaghji.  On seeing the  attack  on  vaghji
\nPabaji\tintervened  and\t asked the accused  to\tdesist\tfrom
\nattacking Vaghji any
\n34<\/span>
\nlonger\tas  they had already killed Amarji.   Thereupon\t the
\naccused\t stopped attacking Vaghji.  By this time Amarji\t had
\ncome staggering to the spot where Pabaji was standing.\tThen
\nAmarji was placed in one of the carts and Vaghji was made to
\nsit in that cart.  Pachanji drove his cart first and the two
\ncarts without any drivers which had been formerly driven  by
\nVaghji\tand Amarji, were kept in the middle and Pabaji\twith
\nthe two injured men in his cart was driving his cart last.
\nThe  carts  were  taken\t to  village  Khedoi.\tIt  is\t the
\nprosecution  case  that the three accused  persons  followed
\nthese carts up to a certain distance and then accused  Nos’.
\n1  and\t2 left while accused No. 3  disappeared\t near  Khari
\nVadi.\tPabaji took the carts to Moti khedoi and saw  police
\nhead   constable  Banesing  who\t had  come  to\tKhedoi\t for
\npatrolling  work.   Banesing  was  attached  to\t the  police
\noutpost at Bhuvad.  Banesing directed these persons to\ttake
\nAmarji\tto  the Khedoi hospital.  By that  time\t Amarji\t had
\ndied.\tBanesing  left Khedoi with Pabaji for  Anjar  police
\nstation\t which is about 8 miles from Khedoi.  They  reached,
\nAnjar  at  about 11 p.m. and Pabaji’s  F.I.R.  was  recorded
\nbefore\tpolice\tsub-inspector Khambholja.  The\tpolice\tsub-
\ninspector  then\t preceded to, Khedoi hospital.\t Amarji\t was
\ndeclared to be dead.  The police sub-inspector recorded\t the
\nstatements  of Vaghji and Pachanji and :then took  steps  in
\nthe investigation of the case.\n<\/p>\n
At the trial all the three’ accused denied having  committed
\nthe  offence.,., The Sessions Judge acquitted all the  three
\npersons under section 302 read with section 34.\t He  however
\nconvicted  all the accused for the offence punishable  under
\nsection 304 Part II read,with section 34 and sentenced\tthem
\nto  suffer  rigorous imprisonment for five  years.   Accused
\nNos.   1 and 2 were convicted for the offence under  section
\n323  and accused No. 3 was convicted for the  offence  under
\nsection\t 323 read with section 34 of the Indian Penal  Code.
\nAccused\t Nos..\t1 and 2 were sentenced\tto  suffer  rigorous
\nimprisonment  for  three  months while\taccused\t No.  3\t was
\nsentenced  to suffer rigorous imprisonment for\ttwo  months.
\nAll the sentences were to run concurrent
\nAll   the accused filed appeals against\t their\tconvictions.
\nBefore\tthe  Division’ Bench in the High  Court\t of  Gujarat
\nDivan, J. held that accused No. 1 alone was responsible\t for
\nthe  fatal injury on Amarji and he was found guilty for\t the
\noffence\t under section 302 while accused Nos. 2 and  3\twere
\nfound,\tguilty for the offence under section 324  read\twith
\nsection 34.  Shelat, J. was of the view that all the accused
\nmust  acquitted\t because  he’ was  not\tsatisfied  with\t the
\nevidence and proof of the identity of the accused.
\nThe  case  was then placed under Section  429  of  Criminal’
\nProcedure Code before Mehta, J. who held that accused No. 1
\n35<\/span>
\nmust  be Convicted for the offence under section  302  while
\naccused Nos. 2 and 3 must be convicted for the offence under
\nsection\t 302 read with section 34 and all of them should  be
\nsentenced  to  suffer rigorous imprisonment for\t life.\t The
\nconviction of accused Nos.  1 and 2 under section 323 and of
\naccused\t No.  3 under section 323 read with section  34\t was
\nupheld.\t The conviction of all the accused under section 304
\nPart  11  was  altered by convicting  accused  No.  1  under
\nsection 302 and accused Nos. 2 and 3 under section 302\tread
\nwith section 34 of the Indian Penal Code.\n<\/p>\n
Counsel\t for the appellants contended first that  the  third
\nlearned\t Judge under section 429 of the\t Criminal  Procedure
\nCode  could only deal with the differences between  the\t two
\nlearned\t Judges\t and  not with the  whole  case.   The\tsame
\ncontention  had been advanced before Mehta, J. in  the\tHigh
\nCourt  who  rightly  held  that under  section\t429  of\t the
\nCriminal Procedure Code the whole case was to be dealt\twith
\nby  him.   This\t Court in Babu and Ors. v.  State  of  Uttar
\nPeadesh<\/a> (1) held that it was for tic third learned Judge  to
\ndecide\ton  what  points the arguments would  be  heard\t and
\ntherefore  he  was  free to resolve the\t differences  as  he
\nthought\t fit.\tMehta, J. here dealt with  the\twhole  case.
\nSection\t 429  of the, Criminal Procedure Code  states  “that
\nwhen  the Judges comprising the Court of Appeal are  equally
\ndivided\t in  opinion, the case with their  opinion  thereon,
\nshall  be  laid before another Judge of the same  Court\t and
\nsuch  Judge,  after such hearing, if any, as he\t thinks\t fit
\nshall  deliver his opinion, and the judgment or order  shall
\nfollow\tsuch  opinion”.\t Two things are\t noticeable;  first,
\nthat  the,  case shall be laid before  another\tJudge,\tand,
\nsecondly, the judgment and order will follow the opinion  of
\nthe  third learned Judge.  It is, therefore,  manifest\tthat
\nthe  third  learned Judge can or will deal  with  the  whole
\ncase.\n<\/p>\n
The  second and the main contention of counsel for  the\t ap-
\npellants  was  that there was no common\t intention  to\tkill
\nAmarji.\t The finding of fact is, ,that the attack the  three
\naccused was a concerted one under prearranged plan.   Amarji
\nWas attacked by mistake :but whosoever inflicted, injury  in
\nthe region of the collar-bone of Amarji must be held  guilty
\nof  murder. under section 302.\tAmarji was further found  to
\nhave been attacked by accused Nos. 1 and 2 and accused No. 3
\nwho was armed with an axe caught hold of the hand of Pabaji.
\nThe injury on Amarji was an incised wound 1-3\/4″ *3\/4″\tover
\nthe  left side of the neck neck just above the left  collar-
\nbone.  The direction of the wound was was towards right\t and
\ndownwards.The other injury was incised
\n(1) [1965] 2 S.C.R. 771.\n<\/p>\n
36<\/span><\/p>\n
wound 1″ * 1\/2″ * 1\/2″ over the chest (right side) near\t the
\nmiddle line between the 6th and 7 ribs.\n<\/p>\n
The-  evidence establishes these features; first,  that\t all
\nthe  accused were related; secondly, they were\tresiding  at
\nBhuvad at the relevant time; thirdly, all the three  accused
\nmade  sudden  appearance  on the scene\tof  the\t occurrence;
\nfourthly, they started assault as soon as the carts  arrived
\nat  the\t scene\tof the offence; fifthly, the  way  in  which
\nAmarji was attacked by accused Nos.  1 and 2 and stab wounds
\nwere infficted on him and the manner in which accused No.  3
\nheld up Pabaji would show that the three accused were  lying
\nin wait under some pre-arranged plan to attack these persons
\nwhen  they were returning to Bhalot.  It  therefore  follows
\nthat the attack took place in pursuance of the\tpre-arranged
\nplan and the rapidity with which the attacks Were made\talso
\nshows the pre-concerted plan.  The attack by accused Nos.  1
\nand 2 on Amarji and the holding up, of Pabaji by accused No.
\n3  all\tprove ,common intention,  participation\t and  united
\ncriminal behaviour of all and therefore accused No. 3  would
\nbe  equally responsible with ,accused Nos.  1 and 2 who\t had
\nattacked Amarji.\n<\/p>\n
This Court in the case of Shankarlal Kachrabhai and Ors.  v.
\nState  of  Gujarat<\/a>(1)  said that a mistake  by\tone  of\t the
\naccused as to killing X in place of Y would not displace the
\ncommon intention if the evidence showed the concerted action
\nin  furtherance of pre-arranged plan.  The dominant  feature
\nof  section 34 is the ,element of participation in  actions.
\nThis  participation  need not in all cases  be\tby  physical
\npresence.   Common  intention  implies\tacting\tin  concert.
\nThere  is  a pre-arranged plan which is proved\teither\tfrom
\nconduct\t or from circumstances of from incriminating  facts.
\nThe principle of joint liability in the doing of a  criminal
\nact is embodied in section 34 of the Indian Penal Code.\t The
\nexistence  of  common  intention  is  to  be  the  basis  of
\nliability.   That  is  why the prior concert  and  the\tpre-
\narranged  plan\tis  the foundation of  common  intention  to
\nestablish liability and guilt.\n<\/p>\n
Applying  these\t principles to the evidence in\tthe  present
\ncase  it  appears that there was pre-arranged  plan  of\t the
\naccused\t to commit offences.  All the accused were lying  in
\nwait  to  attack  the party of Amarji,\tVaghji,\t Pabaji\t and
\nPachanji.   Amarji  was\t in  the  forefront.   The   accused
\nattacked  him.\tVaghji was also attacked and prevented\tfrom
\ngoing  to  the relief of Amarji.  The plea that\t Amarji\t was
\nmistaken for Vaghji would not take away the common intention
\nestablished  by pre-arranged plan and participation  of\t all
\nthe  accused  in furtherance of common intention.   The\t act
\nmight be ,done by one of the several persons in\t furtherance
\nof  the\t common intention of them all, without each  one  of
\nthem having intended
\n(1) [1965] 1 S.C.R. 287.\n<\/p>\n
37<\/span><\/p>\n
to  do the particular act in exactly the same way as an\t act
\nmight  be  done\t by one member of an  unlawful\tassembly  in
\nprosecution of the common intention which the other  members
\nof the unlawful assembly did not each intend to be done.
\nIn   view  of  the  evidence  that  Amarji  was\t killed\t  in
\nfurtherance  of the common intention of all the accused\t the
\nappellants  are guilty of murder.  ‘In Shankarlal’s  case(1)
\nthis  Court said that if the common intention was to kill  A
\nand  if\t one of the accused killed B to\t wreck\this  private
\nvengeance,  it could not be possibly in furtherance  of\t the
\ncommon intention for which others can be liable.  But if  on
\nthe other hand he killed B bona fide believing that he was A
\nand the common intention was to kill A the killing of B\t was
\nin  furtherance\t of  the common intention.   All  the  three
\naccused in the present case were lying in wait and assaulted
\nthe driver of the first cart and stabbed him in pursuance of
\ntheir  prearranged  plan- Therefore, all the  three  accused
\nincluding  the appellant must share the liability of  murder
\nunder  section 302 read with section 34 of the Indian  Penal
\nCode.\tFurther,  in  view  of the  finding  that  the\tthe-
\nconcerted plan was to cause injuries to the intended  victim
\nwith dangerous weapons with which the assailants were  lying
\nin wait, the liability of the appellant is established.
\nThe conclusion of Mehta, J. is correct.\t The appeal,  there-
\nfore, fails and is dismissed.  The accused must surrender to
\nthe bail and serve out the sentences.\n<\/p>\n
R.K.P.S.\t\t\t   Appeal dismissed..\n(1) [1965] 1 S.C.R. 287.\n38<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hethubha Alias Jithuba Madhuba & … vs The State Of Gujarat on 13 March, 1970 Equivalent citations: 1970 AIR 1266, 1971 SCR (1) 31 Author: A Ray Bench: Ray, A.N. PETITIONER: HETHUBHA ALIAS JITHUBA MADHUBA & ORS. Vs. RESPONDENT: THE STATE OF GUJARAT DATE OF JUDGMENT: 13\/03\/1970 BENCH: RAY, A.N. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-141908","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHethubha Alias Jithuba Madhuba & ... vs The State Of Gujarat on 13 March, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hethubha-alias-jithuba-madhuba-vs-the-state-of-gujarat-on-13-march-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hethubha Alias Jithuba Madhuba & ... vs The State Of Gujarat on 13 March, 1970 - 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