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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI
Bhavsing Chhaganbhai – Appellant
Versus
State of Gujarat – Respondent
JUDGMENT :
GITA GOPI, J.
1. The trial of custodial death was against seven accused, in Sessions Case no.37 of 1990 before the learned Additional Sessions Judge, Bhavnagar Camp, Mahuva. The learned Additional Sessions Judge, Bhavnagar on 30.11.2000 convicted accused no.1-Bhavsingbhai Chhaganbhai Bilval, PSI, Savarkundla Town Police Station for the offence under Section 304-II of IPC, sentencing him to seven years rigorous imprisonment and fine of Rs.15,000/- with the default clause on non-payment, to further suffer one year simple imprisonment.
1.1 For the offence under Section 330 IPC, accused no.1 was sentenced for three years rigorous imprisonment and Rs.10,000/- fine, in default of payment of fine, six months simple imprisonment.
1.2 Both the sentences to run concurrently. The benefit of set off under Section 428 of the Criminal Procedure Code (Cr.P.C.) was granted. The amount of compensation of Rs.25,000/- was ordered to be given to the legal heirs of the victim, deceased Kanudo @ Bhoplo Vallabhbhana Waghri of Maninagar Vaghrivas, Savarkundla.
1.3 Aggrieved by the judgment and order of conviction, accused no.1 as appellant filed the present Criminal Appeal no.1138 of 2000 under Sect
In custodial death cases, all involved in the torture share liability under Section 34 IPC regardless of direct participation, as joint culpability is established by shared common intention.
Common intention requires proof of a prior agreement to commit an offense, with liability under Section 34 based on shared intent and concerted action among accused.
(1) Common intention – To attract applicability of Section 34, IPC, prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted ....
The prosecution must prove common intention for vicarious liability under Section 34 IPC; mere presence is insufficient for conviction.
Section 34 of IPC does not constitute an offence by itself, but creates a constructive liability – Foundational facts will have to be proved by prosecution – Not only occurrence, but common intention....
(1) Every individual member of entire group charged with aid of Section 34, IPC must be a participant in joint act which is result of their combined activity.(2) If no overt act is done by a person, ....
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