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MADHYA PRADESH HIGH COURT
G.S. Ahluwalia and Rajeev Kumar Shrivastava, JJ.
State of Madhya Pradesh – Appellant
versus
Ram Outar and Anr. – Respondents
Criminal Appeal No.542 of 2003
Decided on 30.4.2021
(A) Indian Penal Code, 1860 – Section 34 – Vicarious liability – Ingredients – Mainly two elements are necessary to fulfill the requirements of Section 34 of IPC – One is that person must be present on scene of occurrence and second is that there must be a prior concert or a pre-arranged plan – Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by operation of Section 34 of IPC – Section 34 is intended to meet a situation wherein all co-accused have also done something to constitute commission of a criminal act – Even concept of presence of co-accused at scene is not a necessary requirement to attract Section 34 e.g., co-accused can remain a little away and supply weapons to participating accused can inflict injuries on targeted person – Every individual member of entire group charged with aid of Section 34 must be a participant in joint act which is result of their combined activity – Section does not envisage a separate act by all of accused persons for becoming responsible for ultimate criminal act – If such an interpretation is accepted, purpose of Section 34 shall be rendered infructuous. (Paras 10, 11 and 16)
(B) Indian Penal Code, 1860 – Section 34 – Common intention – Before a person can be convicted by following provisions of Section 34, that person must have done something along with other persons – Some individual participation in commission of criminal act would be the requirement – An act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with liability under the Section – But if no such act is done by a person, even if he has common intention with others for accomplishment of crime, Section 34 I.P.C., cannot be invoked for convicting that person. (Paras 10 and 11)
(C) Indian Penal Code, 1860 – Sections 302, 148 and 149 – Criminal Procedure Code, 1973 – Section 378 – Murder and rioting – Common object – Appeal against acquittal – Eye-witness lodged FIR immediately after incident – From statement of eye-witness it is not reflected that accused had participated in incident – There is lack of evidence requiring to make accused liable with aid of Section 34 I.P.C. – Prosecution has failed to prove any overt act on part of present respondents – Appeal dismissed. (Paras 25, 26 and 27)
Result: Appeal dismissed.
JUDGMENT
Rajeev Kumar Shrivastava, J.—Challenge in this appeal filed by the State/appellant under Section 378 of the CrPC is to the judgement dated 4.2.2003 passed by Sixth Additional Sessions Judge (Fast Track Court), Bhind in Sessions Trial No.347/2000, whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148, 302, 149 of the IPC.
2. Vide the judgement impugned in the present appeal, the trial Court has acquitted accused Subhash and Ramavtar from the offences under Sections 148 and 302 read with Section 149 of IPC but has convicted the accused/appellant Ashok under Section 302 read with Section 34 of IPC for the murder of Mataprasad and under Section 302 read with Section 34 of IPC for the murder of Tejraj, considering the fact that there was common intention. Against conviction and sentence, accused Murari and Ashok has filed separate Criminal Appeal No. 196/2003. As per the request of learned counsel for the parties, both the appeals (Criminal Appeal No.196/2003 and Criminal Appeal No. 542/2003) are being decided simultaneously by passing separate judgment in each appeal. It is further pertinent to note that the appeal filed by Kishan Dutt, Ramvaran and Ramkishore against their conviction has been delinked from the present appeal as the aforesaid accused persons were absonder and they were separately tried and judgment was passed on 23.1.2019.
3. The facts necessary to be stated for disposal of the instant appeal are that as per prosecution version, on 16.10.1999 deceased Mataprasad and Tejram left their house at about 5-6 am for the purpose of ploughing the field asking the family members to bring breakfast at the field itself. Harendra Kumar (PW-4) and Shailendra (PW-9), son and daughter of deceased Tejram respectively, and Dharmendra, son of deceased Mataprasad reached at the field in order to serve the breakfast. At that time, the deceased Mataprasad and Tejram were cutting grass. In the meantime, accused persons reached there by their tractor-trolley. Accused Subhash was driving the tractor and other accused persons were armed with guns etc. Seeing them, Tejram and Mataprasad tried to run away. When they started their tractor, all the accused persons surrounded them and Murari fired a gunshot which hit Mataprasad and Mataprasad fell down from the tractor. Harendra, Shailendri and Dharmendra being afraid of that hide themselves in the field of Bajra. All the accused persons were beating Mataprasad and Tejram. Shriprakash, Ramkumar, Jaiprakash and Sitaram working in their adjoining fields reached there. After the incident, accused persons went away. In the incident, Mataprasad and Tejram died on the spot.
4. First Information Report was lodged on 16.10.1999 at Police Station Pawai, District Bhind by Harendra Kumar (PW-4). Thereafter, Lash Panchnama was prepared and map was also prepared. Statements under Section 161 of CrPC were recorded and after completion of investigation charge sheet was filed.
5. The grounds raised are that on the date of incident accused Subhash was driving the tractor by which all the accused persons reached at the placed of incident and after commission of offence accused persons returned back by the same tractor. The aforesaid act was in furtherance of common object and presence of accused Ram Outar at the place of incident has been proved. Harendra Kumar (PW-4) and Shriprakash (PW-2) have stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co-accused persons and they were saying “maaro bachne na paaye” (“Kill them, do not leave them alive”). In First Information Report Subhash and Ram Outar are implicated as accused. The FIR was lodged just immediately after the incident. The trial Court had convicted the co-accused Murari and Ashok on the basis of same set of evidence and has acquitted Ram Outar and Subhash. Therefore, considering the fact that there was common object and t
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