2020 Supreme(SC) 385

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
SONU @ SUNIL – APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH – RESPONDENT(S)
CRIMINAL APPEAL NO. 57 OF 2013
Decided on : 29-05-2020

IMPORTANT POINTS
(1) Soul of Section 34 of IPC and principle which underlies criminal liability for acts of another therein, is shared intention or common intention to commit offence.
(2) In case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, first thing to be established is that theft and murder forms part of one transaction.

Headnote:

(A) Indian Penal Code, 1860 – Sections 394, 460 and 302 read with Section 34 – Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,1981 – Sections 11 and 13 – Dacoity, lurking house trespass and murder – Common intention – Circumstantial evidence – Life sentence and fine of Rs. 25,000/- awarded by High Court – In case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, first thing to be established is that theft and murder forms part of one transaction – Circumstances may indicate that theft and murder must have been committed at same time – But it is not safe to draw inference that person in possession of stolen property was murderer – Other tests are, manner of its acquisition by owner; nature of evidence about its identification; manner in which it was dealt with by accused; place and the circumstances of its recovery; length of intervening period and ability or otherwise of accused to explain its possession – In this case, though there is a charge of causing death by strangulation, finding is that death was caused as a result of injuries inflicted with knife – Appellant has not given any explanation as to how he came by possession of mobile – He has no explanation in his questioning under Section 313 of Cr.P.C. – Knife was, apparently, carried and wielded by co-accused – From him, recovery of knife was also effected which becomes all the more reason to conclude that it will be totally unsafe to convict appellant of charges of which he is found guilty including Section 302 of IPC based only on recovery of mobile phone where recovery itself suffers from suspicion and doubt – Appellant is not mentioned as one of persons who used to visit deceased’s father though three of other accused were named – There is complaint from appellant that no Test Identification Parade was conducted for accused – It would not be safe to uphold conviction of appellant – He would be entitled to benefit of doubt – Impugned judgment in so far as it relates to appellant, set aside and he will stand acquitted. (Paras 28, 29, 30, 34 and 35)

(B) Indian Penal Code, 1860 – Section 34 – Common intention – Section 34 proclaims principle of vicarious criminal liability – Soul of the Section and principle which underlies criminal liability for acts of another therein, is shared intention or common intention to commit offence – Common intention must be for the very offence which the accused is charged with. (Para 30)

Facts of the Case:

Appellant was tried with 4 others and was convicted under Sections 394, 460 and 302 read with Section 34 of the Indian Penal Code, 1860. He was also found guilty of offences under Sections 11 and 13 of Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,1981 and awarded death penalty. By the impugned judgment, the High Court answered the death reference by holding that in the circumstances, death penalty was not warranted. In place of death penalty, High Court sentenced the appellant and two other accused to life imprisonment and enhanced the fine to Rs. 25,000/-. The appeal filed by the appellant was dismissed otherwise.

Findings of the Court:

Knife was, apparently, carried and wielded by the co-accused-Kalli. From him, in fact, the recovery of the knife was also effected which becomes all the more reason for us to conclude that it will be totally unsafe to convict the appellant of the charges of which he is found guilty including Section 302 of the IPC based only on the recovery of the mobile phone where the recovery itself suffers from suspicion and doubt.

Result : Appeal allowed.(A) Indian Penal Code, 1860 – Sections 394, 460 and 302 read with Section 34 – Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,1981 – Sections 11 and 13 – Dacoity, lurking house trespass and murder – Common intention – Circumstantial evidence – Life sentence and fine of Rs. 25,000/- awarded by High Court – In case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, first thing to be established is that theft and murder forms part of one transaction – Circumstances may indicate that theft and murder must have been committed at same time – But it is not safe to draw inference that person in possession of stolen property was murderer – Other tests are, manner of its acquisition by owner; nature of evidence about its identification; manner in which it was dealt with by accused; place and the circumstances of its recovery; length of intervening period and ability or otherwise of accused to explain its possession – In this case, though there is a charge of causing death by strangulation, finding is that death was caused as a result of injuries inflicted with knife – Appellant has not given any explanation as to how he came by possession of mobile – He has no explanation in his questioning under Section 313 of Cr.P.C. – Knife was, apparently, carried and wielded by co-accused – From him, recovery of knife was also effected which becomes all the more reason to conclude that it will be totally unsafe to convict appellant of charges of which he is found guilty including Section 302 of IPC based only on recovery of mobile phone where recovery itself suffers from suspicion and doubt – Appellant is not mentioned as one of persons who used to visit deceased’s father though three of other accused were named – There is complaint from appellant that no Test Identification Parade was conducted for accused – It would not be safe to uphold conviction of appellant – He would be entitled to benefit of doubt – Impugned judgment in so far as it relates to appellant, set aside and he will stand acquitted. (Paras 28, 29, 30, 34 and 35)

(B) Indian Penal Code, 1860 – Section 34 – Common intention – Section 34 proclaims principle of vicarious criminal liability – Soul of the Section and principle which underlies criminal liability for acts of another therein, is shared intention or common intention to commit offence – Common intention must be for the very offence which the accused is charged with. (Para 30)

Facts of the Case:

Appellant was tried with 4 others and was convicted under Sections 394, 460 and 302 read with Section 34 of the Indian Penal Code, 1860. He was also found guilty of offences under Sections 11 and 13 of Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,1981 and awarded death penalty. By the impugned judgment, the High Court answered the death reference by holding that in the circumstances, death penalty was not warranted. In place of death penalty, High Court sentenced the appellant and two other accused to life imprisonment and enhanced the fine to Rs. 25,000/-. The appeal filed by the appellant was dismissed otherwise.

Findings of the Court:

Knife was, apparently, carried and wielded by the co-accused-Kalli. From him, in fact, the recovery of the knife was also effected which becomes all the more reason for us to conclude that it will be totally unsafe to convict the appellant of the charges of which he is found guilty including Section 302 of the IPC based only on the recovery of the mobile phone where the recovery itself suffers from suspicion and doubt.

Result : Appeal allowed.