important point
Existence of a common intention amongst the participants in a crime is the essential element for application of section 34, IPC.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of Calcutta High Court which confirmed conviction of the appellants while directing acquittal of twelve co-accused persons. Originally, 20 persons including the present appellants faced trial for offence punishable under Sections 148, 323, 324 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short IPC). After recording evidence the Trial Court acquitted six persons under Section 232 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and the rest 14 were convicted.

3.Prosecution version in a nutshell is as follows:

First information report was lodged by one Hrishikesh Jana on 17.1.1992, stating that on 17.1.1992 in the morning when said Hrishikesh Jana was busy in the field for cultivation of his land, the appellants under the leadership of appellant Sachin Jana forming an unlawful assembly and being armed with different weapons like bombs, sticks, knives, iron rods and bottle of acid threatened Hrishikesh Jana with dire consequences and when Hrishikesh Jana did not oblige them by leaving the work of cultivation, the accused persons started assaulting him with blows, kicks, iron rods etc. and acid was also poured on his face and body. Hrishikesh Jana alleged in his written complaint that the appellants also poured acid on one Amulya Giri and Kartick Maity and also assaulted one Sabitri Giri who came forward to save Hrishikesh Jana. After completion of investigation charge sheet was filed. Accused persons pleaded false implication.

4.In order to further its version the prosecution examined 11 witnesses including the informant Hrishikesh Jana and injured persons Amulya Giri, Kalipada Maity. The accused persons examined three persons to contend that the prosecution was not projecting the correct scenario. The Trial Court after considering the evidence came to the conclusion that on 17th January, 1992 Sachin Jana and remaining appellants, after forming an unlawful assembly assaulted him when Amulya (PW2), Kartick (PW3) and Sachin came to rescue Hrishikesh. The accused persons shared common intention and also poured acid on the person of Amulya and assaulted.

5.Fourteen persons were found guilty of offence punishable under Section 307 IPC and each was sentenced to ten years imprisonment and fine of Rs.2,000/- with default stipulation. Different sentences were also imposed for the other offences.

6.The Trial Court primarily relied on the evidence of PWs. 1, 2 and 3 who were claimed to be victims of acid pouring. The High Court in appeal found that the evidence of PWs. 1, 2 and 3 clearly established the guilt of the appellants, but was not sufficient to convict the 12 co-accused persons. Accordingly, the appeal so far it relates to the present appellants was dismissed. But the conviction was altered to Section 307/34 IPC.

7.In support of the appeal, learned counsel for the appellants submitted that the case was one of false implication. In any event, offence under Section 307 IPC is not made out and the sentence as imposed is clearly excessive.

8.It is also submitted that Section 34 IPC has no application.

9.It is to be noted that three persons suffered injuries on account of acid poured on them. The doctor had indicated that each of the injured persons suffered more than 50% burn injury which was caused due to acid and the same was sufficient to cause death if not attended by medical aid at appropriate time.

10.Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who j