Conviction under Section 34 of the IPC requires evidence of an overt act; mere presence at the crime scene is insufficient.

JUDGMENT :

I.A. No.1039 of 2025

1. The instant interlocutory application has been filed for suspension of sentence dated 19.04.2023 passed by Additional Sessions Judge-I, Latehar in connection with Sessions Trial No. 93 of 2019 arising out of Chhipadohar P.S. Case No. 26/2015 (G.R. Case No. 766 of 2015) whereby and whereunder the appellant has been convicted for the offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs.25,000/- and in default of payment of fine, further S.I. for three months.

2. It has been contended on behalf of the appellant that it is a case where the conviction is based merely on the basis of presence of the present appellant on the spot, which is said to be outside the house.

3. It has been contended that the conviction is with the aid of Section 34 of the Indian Penal Code but underlying principle for applicability of Section 34 of the Indian Penal Code has completely been ignored. In absence of any overt act in the commission of the offence by the present appellant which would be evident from the entire material that has been surfaced in course of the trial, the appellant has been convicted.

4. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that it is a fit case for suspension of sentence.

5. On the other hand, Mr. Abhay Kumar Tiwari, learned Additional Public Prosecutor appearing for the State has vehemently opposed the prayer for suspension of sentence.

6. It has been contended that the present appellant was also present at the place of occurrence and as such the conviction order with the aid of Section 34 of the Indian Penal Code has been passed which cannot be said to be suffered from any error, as such, it is not a fit case for suspension of sentence.

7. We have heard the learned counsel for the parties and gone through the findings recorded by the learned trial court in the impugned judgment as also the testimony of witnesses and the exhibits available in the lower court record.

8. While going through the judgment passed by the learned trial court, we found that specific overt act, as per the P.W.2, the eye-witness, wife of the deceased, is not against the appellant, since, it is a specific deposition of P.W.-2 that the present appellant was outside the house while the killing of her husband in the presence of this witness was committed inside the house.

9. It is evident from the judgment impugned that the present appellant has been convicted with the aid of Section 34 of the Indian Penal Code .

10.The law is settled that there can be conviction of the accused by taking aid of Section 34 of the Indian Penal Code , but merely on the ground of presence without any overt act said to be committed by the concerned individual, the requirement of Section 34 of the I.P.C. cannot be said to be meted out.

11. This Court, in view of the above and considering the testimony of P.W.2 itself, is of the view that in absence of any overt act said to be there against present appellant, it is a case where the sentence of the appellant should be suspended.

12. Accordingly, the instant interlocutory application i.e. I.A. No.1039 of 2025 stands allowed.

13. In consequence thereof, the appellant, above named is directed to be released on bail during pendency of the instant appeal on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-I, Latehar in Sessions Trial No. 93 of 2019 arising out of Chhipadohar P.S. Case No. 26 of 2015 (G.R. No. 766 of 2015).

14. It is made clear that any observation made herein will not prejudice the issue on merit as the appeal is lying pending for its consideration.