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2009 Supreme(SC) 70

2009(1) Supreme 298
SUPREME COURT OF INDIA
Arijit Pasayat and Asok Kumar Ganguly, JJ.
Daya Shankar — Appellant
versus
State of M.P. — Respondent
Criminal Appeal No. 105 of 2009
Decided on : 20-01-2009

Counsel for the parties :
For the Appellant :Mulkh Raj Vij, Advocate.
For the Respondent:Siddhartha Dave, Ms. Jemtiben and Ms. Vibha Datta Makhija, Advocates.

IMPORTANT POINT
For applying section 34 it is not necessary to show some overt act on part of accused.

Headnote:Indian Penal Code, 1860 – Section 302 r/w 34 – Prosecution of appellant along with co-accused persons for causing death of deceased by assaulting him with deadly weapons like sword and axe – Prosecution case that A3 was armed with axe and A2 was armed with sword while A1 and A4 were barehanded – Allegation that A1 and A4 pulled legs of deceased and threw him on ground while A2 and A3 assaulted deceased – Conviction by Trial Court – Appeal – Dismissed by High Court – Appeal – Plea of appellant that merely because appellant had accompanied other accused persons, was not sufficient to warrant presumption of common intention – Evidence of Pws 2 and 3 not attributed any overt act to appellant – Mere fact that he was in company of accused who were armed held not sufficient to attract section 34 IPC – No dispute that appellant was not armed and he had no animosity with deceased – Additionally, the stand that appellant had pulled leg of deceased had not been established – Hence held that appellant could not be held guilty by application of Section 34 IPC – Conviction of appellant could not be sustained – Appeal allowed. (Paras 9 to 11)
       Indian Penal Code, 1860 – Section 34 – Common intention – The existence of a common intention amongst participants in a crime is the essential element for application of Section 34 – It is not necessary that the acts of 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 7)
       AIR 1977 SC 109 – Relied upon.
       Indian Penal Code, 1860 – Section 34 – Applicability of – 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 part of accused. (Para 8)
       AIR 1993 SC 1899 – Referred to.
       Facts of the case :
       1.Appellant was convicted herein in the instant case alongwith coaccused persons for causing death of deceased by assaulting him with deadly weapons like sword and axe. On appeal, High court affirmed conviction u/s 302 r/w 34 IPC.
       2.Present appeal has been filed against said order of High Court by appellant on plea that section 34 was not applicable to facts of case.
       Findings of the court :
       Held evidence of Pws 2 and 3 did not attribute any overt act to appellant. The mere fact that appellant was in company of accused who were armed held not sufficient to attract section 34 IPC. No dispute that appellant was not armed. Additionally the stand that appellant pulled leg of deceased had not been established. Hence held that appellant could not be held guilty by application of Section 34 IPC. Conviction of appellant could not be sustained.
       Result : Appeal allowed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court upholding the conviction of the appellant for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) as was awarded by learned Additional Sessions Judge, Panna, in Sessions Trial No.15/1992.

2.Prosecution version as unfolded during trial is as follows:

On 30th November, 1991 at about 5.00 p.m. Ram Kishore (hereinafter referred to as the ‘deceased’) was murdered in an agricultural field. First Information Report was lodged by Manik Lal at Police Station, Pawal in the evening at about 7.00 p.m. Offence was registered as Crime No.124/91 under Section 302/34 IPC. Deceased had eloped with Lalli, sister of Ramcharan (A-2) and both of them had performed court marriage. The court marriage was registered and Lalli was living with Ramkishore. The appellant was having enmity with deceased on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal, the co-accused pulled the legs of deceased and threw him on the ground. Ram Kishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted.

Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention.

3.Learned counsel for the State submitted that the eye witnesses PWs 2 and 3 had described the act of each of the appellants and the role ascribed to the appellant was that he pulled the leg of the deceased as a result of which deceased fell in the field of Masur crop and thereafter he was assaulted by other accused persons. The appeal was dismissed accepting the stand of the State.

4.Learned counsel for the appellant re-iterated the stand taken before the High Court and submitted that Section 34 IPC has no application.

5.Learned counsel for the State on the other hand supported the judgment.

6.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 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 prove

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2009 Supreme(SC) 70

2009(1) Supreme 298SUPREME COURT OF INDIAArijit Pasayat and Asok Kumar Ganguly, JJ.Daya Shankar — AppellantversusState of M.P. — RespondentCriminal Appeal No. 105 of 2009Decided on : 20-01-2009

IMPORTANT POINTFor applying section 34 it is not necessary to show some overt act on part of accused.

Cases Referred (2)

2009(1) Supreme 298
SUPREME COURT OF INDIA
Arijit Pasayat and Asok Kumar Ganguly, JJ.
Daya Shankar — Appellant
versus
State of M.P. — Respondent
Criminal Appeal No. 105 of 2009
Decided on : 20-01-2009

IMPORTANT POINT
For applying section 34 it is not necessary to show some overt act on part of accused.