2008 Supreme(SC) 980

2008(4) Supreme 570
Supreme Court of india
Dr. Arijit Pasayat and P.P. Naolekar, JJ.
Hemchand Jha — Petitioner
versus
State of Bihar — Respondent
Criminal Appeal No. 7 of 2002
Decided on : 13-06-08

Important Point
Existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

Headnote:Indian Penal Code, 1860 – Section 302 read with Section 34 – Prosecution of accused persons three in number for causing death of deceased by firing at him from a pistol – Prosecution case that deceased along with two others was proceeding to village Nawadih in a jeep to attend marriage of his nephew when accused persons came on a black Rajdoot motor cycle and fired at deceased – Trial Court relying upon evidence of three eye witnesses, convicted appellant and “K’ while acquitting third accused person – Appeal – Dismissed by High Court – Appeal – Plea of appellant that since no definite role had been ascribed to him and it was K who had fired gun and killed deceased, Section 34 IPC had no application – Section 34 is applicable even if no injury has been caused by the particular accused himself – For applying Section 34 it is not necessary to show some overt act on the part of the accused – Evidence of PWs 1, 2 & 3 that appellant was driving motor cycle – The assailant K and appellant got down from Motor cycle and went towards petrol pump – The deceased was capping the petrol tanks – The accused K came close to deceased and took out a pistol and fired near the ear of the deceased – When the three eye witnesses tried to apprehend the accused persons, they were threatened of dire consequences – The three accused persons ran away towards west on the bye pass road on the motor cycle which was being driven by the accused – In view of facts and circumstances of case Section 34 IPC held to have clear application – The trial court and the High Court were justified in holding the appellant guilty and he had been rightly convicted for offence punishable under Section 302 read with Section 34 IPC – Appeal having no merit, dismissed. (Para 4, 6, 7, 8)

       AIR 1993 SC 1899 – Relied upon.

       Indian Penal Code, 1860 – Section 34 – Scope and ambit of – Section 34 has been enacted on 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 join in committing the crime – Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances-In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime – The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself- Existence of a common intention amongst the participants in a crime is the essential element for application of this Section – It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar – The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. (Para 5)

       (AIR 1977 SC 109) – Relied upon.

       Facts of the Case :

       1.Accused persons three in number were prosecuted herein in the instant case for causing death of deceased by firing at him from a pistol. As per Prosecution case deceased along with two others was proceeding to village Nawadih in a jeep to attend marriage of his nephew when accused persons came on a black Rajdoot motor cycle and fired at deceased. Trial Court relying upon evidence of three eye witnesses, convicted appellant and “K’ while acquitting third accused person. Appeal thereagainst were dismissed by High Court.

       2.Present appeal has been filed against said order of conviction.

       Findings of the Court :

       Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. Evidence of PWs 1, 2 & 3 showed that appellant was driving motor cycle. The assailant K and appellant got down from Motor cycle and went towards petrol pump. The deceased was capping the petrol tanks. The accused K came close to deceased and took out a pistol and fired near the ear of the deceased. When the three eye witnesses tried to apprehend the accused persons, they were threatened of dire consequences. The three accused persons ran away towards west on the bye pass road on the motor cycle which was being driven by the accused. In view of facts and circumstances of case Section 34 IPC held to have clear application. The trial court and the High Court were justified in holding the appellant guilty and he had been rightly convicted for offence punishable under Section 302 read with Section 34 IPC. Appeal having no merit, was dismissed.

       Result : Appeal dismissed.