2010 Supreme(SC) 694

Supreme Court of India
THE HONOURABLE MR. JUSTICE DALVEER BHANDARI & THE HONOURABLE MR. JUSTICE A.K. PATNAIK
Virendra Singh
Versus
State of Madhya Pradesh
CRIMINAL APPEAL NO.1316 OF 2002
Decided on : 09-08-2010

Headnote:(a) Indian Penal Code, 1860 – Section 34 – Section 34 is not a substantive offence – "Common intention" implies a pre-arranged plan and acting in concert pursuant to the plan – Common intention is the essence of section 34 – In order to incur joint liability for an offence u/s 34 there must be a pre-arranged and pre-meditated concert between the accused persons for doing the act actually done – It does not matter if the plan was formed suddenly – Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34. (Para 18, 19, 21, 47)

       1972 CrLJ 465 (SC); AIR 1925 PC 1; AIR 1945 PC 148; (1955) 1 SCR 1083; AIR 1963 SC 174; (1973) 1 SCC 512; (1976) 3 SCC 779; (1989) 3 SCC 605; (1996) 10 SCC 508; (2000) 4 SCC 110; (2001) 3 SCC 673; (2001) 6 SCC 620; (2003) 7 SCC 56; (2004) 3 SCC 793; (2004) 11 SCC 305 – Relied upon

       (1866) 5 South WR (Cri) 45 – Referred

       (b) Indian Penal Code, 1860 – Section 34 and 149 – In both these sections, accused persons are vicariously responsible for the acts of others – Basically they resemble one another and to some extent they also overlap – However distinction between the two is important – Section 149 IPC is of wider scope than section 34 IPC – Under section 149 a constructive liability arises in respect of those persons who do not actually commit the offence – Section 149 applies where at least five persons are involved – There no requirement of any minimum number of accused under section 34. (Para 50, 51)

       (c) Indian Penal Code, 1860 – Section 302 r/w section 34 – The three accused persons, father and his two sons, armed with weapons going to house of the deceased to eliminate him – One son on exhortation of his father firing a pistol shot and killing deceased – Section 34 rightly invoked – Appellant held guilty u/s 302/34 along with two others – Courts below correctly applied the law. (Para 52)

       Facts of the case:

       Hakim Singh and his two sons Virendra Singh and Kamlesh Singh went to the house of the deceased Bhagirath and asked him to reap their crop the next day. Bhagirath informed that he would not be able to reap their crop as he had to reap the crop grown in his own field. He also informed the accused persons that apart from reaping his crop he would also be busy in `lagan ceremony’ of his son Satyanarain and Tilak ceremony of his grandson, Lakhan which was going to be performed after two days. In spite of his clear explanation for not being able to reap the crop of the accused persons, they pressurized the deceased Bhagirath to reap the crop standing on their field. The accused persons got annoyed on deceased’s refusal to reap their crop. Accused Hakim Singh, Kamlesh and Virendra Singh armed with weapons went to the house of Bhagirath the next day at 7.00 a.m. to take revenge for declining to carry out the order of the accused persons. Virendra Singh and Hakim Singh were armed with lathis and Kamlesh was armed with a rifle. They asked Bhagirath why he had not gone to reap their crop. The deceased replied that he had already informed them that he would not be in a position to reap their crop for the aforementioned reasons. On getting this response, accused persons, namely, Hakim Singh and Virendra Singh got infuriated and started hurling filthy abuses and beating Baburam, son of the deceased. When Hakim Singh and Virendra Singh were assaulting Baburam with lathis, then Lakhan, Rakesh, Satyanarain, son of the deceased, Ramshri, mother of Baburam and Rajkumari, sister of Baburam rushed to save Baburam. Hakim Singh and Virendra Singh also assaulted Lakhan with lathis on the head, shoulder and back. The accused persons also caused injuries to Ramshri and Satyanarain.

       The deceased Bhagirath intervened. At that point of time Hakim Singh exhorted Kamlesh to shoot Bhagirath. Kamlesh shot at Bhagirath in the stomach, which resulted in his death. Kamlesh also fired at Baburam but the bullets missed him. After commission of the offence the accused persons ran away towards the canal.

       The trial court, after scrutinizing the entire evidence on record, convicted Hakim Singh, Kamlesh and Virendra Singh under section 302 read with section 34 of the Indian Penal Code. Hakim Singh died during pendency of appeal.

       The High Court came to a definite conclusion that the appellant Virendra Singh is guilty under section 302 read with section 34 of the Indian Penal Code.

       Finding of the Court:

       Courts below correctly applied the law.

       Result;

       Appeal dismissed.