IMPORTANT POINT
Common intention – Common intention contemplated by Section 34 of IPC presupposes prior concert – It requires meeting of minds – It requires a prearranged plan before a man can be vicariously convicted for criminal act of another.

JUDGMENT

Abhay S. Oka, J.

The Sessions Court has convicted the appellant-accused for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short 'IPC'). The appellant has been sentenced to undergo rigorous imprisonment for life. The appeal preferred by the appellant against the judgment of the Sessions Court has been dismissed by the impugned judgment of the Calcutta High Court dated 23rd December 2008.

FACTUAL ASPECTS

2. The incident is of 2nd August 1976. PW1 Shri Khiroda Mohan Paul, Head Master of a High School, and the deceased Purna Chandra Ghosh, assistant teacher in the said school, were returning home from the school at about 5.30 pm. Though the deceased was having a bicycle, both were proceeding to their village on foot. When they came near the railway gate, they noticed that the accused (the appellant and Arjun Mondal, a juvenile) were sitting along with Susanta Kr. Chandra and Rabu. The appellant and the said Arjun came running from behind and caught hold of the bicycle of deceased Purna Chandra Ghosh. The appellant questioned the deceased as to why he had assaulted his elder brother. Words were exchanged between the appellant, Arjun and PW1 as well as the deceased. The appellant and Arjun took out knives. When PW1 tried to prevent the assault, the appellant brandished his knife and threatened to assault PW1 in case he obstructs. There was a scuffle between Arjun and the deceased. The deceased tried to defend himself by using his bicycle and umbrella. In the scuffle, Arjun stabbed the deceased with his knife. Thereafter, both the appellant and Arjun left the place.

3. On the earlier date, this Court directed the learned counsel appearing for the respondent-State of West Bengal to take instructions on the progress of the trial against Arjun before the Juvenile Justice Board. The learned counsel appearing for respondent stated that the record of the Juvenile Justice Board has been destroyed in the floods of 2000. Hence, the case against Arjun has not progressed.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS

4. Shri Siddhartha Dave, the learned senior counsel appearing for the appellant firstly submitted that Section 34 of IPC was not attracted in the present case. He urged that prior concert and pre-arranged plan to kill the deceased has not been established. He submitted that the only overt act alleged against the appellant is of brandishing a knife and threatening to assault PW1. There was a scuffle between Arjun and the deceased. It was Arjun who stabbed the deceased which led to his death. He submitted that though the knife allegedly used by Arjun was recovered, the knife allegedly used by the appellant was admittedly not recovered. He urged that as Section 34 of IPC will not apply to this case, the conviction of the appellant will have to be set aside. He stated that the appellant has undergone incarceration for approximately seven years and six months.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT

5. Shri Nikhil Parikshith, the learned counsel appearing for the respondent-State, submitted that the testimony of PW1, PW6, PW11 and PW13 shows that there was prior a enmity between the appellant and the deceased, which establishes the motive. He submitted that the statement of Arjun recorded under Section 164 of the Criminal Procedure Code, 1973 (for short 'CrPC') corroborates the role played by the appellant of brandishing his knife. He urged that the non-recovery of the knife used by the appellant is of no consequence as there is a cogent evidence against the appellant. He submitted that there was a meeting of minds and prior concert on the part of the appellant and Arjun. He submitted that the statements made by PW1 in his cross-examination show that blows were exchanged between the appellant and the deceased. He submitted that the appellant actively assisted Arjun by holding the shirt's collar of the deceased. He pointed out that the appellant made no effort to prevent