Point of Law : Section 34 does not create a substantive offence. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.

JUDGMENT :

BRIJ RAJ SINGH, J.

1. Appeal No. 1339 of 2018 has been filed by accused-appellants Tefa Ram and Basant Ram against the judgement and order dated 16.2.2018 passed by the learned Additional District and Sessions Judge, Court No. 5 Ballia, in ST No. 111 of 2014, arising out of Case Crime No. 103 of 2012 (State vs. Tefa Ram and another), whereby, the learned Trial Court has convicted and sentenced the appellants Tefa Ram and Basant Ram to ten years rigorous imprisonment and a fine of Rs. 30,000/-each under Sections 304/34 IPC and in default of payment of fine, the appellants were further directed to undergo one year imprisonment; six months’ RI under Section 323/34 IPC; one year RI under Section 504 IPC and three years RI and a fine of Rs. 5000/-under Section 506 IPC and in case of default in payment of fine, the appellants were further directed to undergo two months’ imprisonment. However, all the sentences were directed to run concurrently.

2. The informant/victim has not filed any appeal seeking enhancement of sentence.

3. The complainant Parvesh Yadav has filed appeal (Appeal No. 40 of 2020), against the same judgement and order dated 16.2.2018, in Sessions Trial No. 105 of 2015, under Sections 147, 114, 323/34, 304/34, 504, 506 IPC, whereby, accused-respondents, therein, viz. Hira Lal, Chottey Lal and Sunil Kumar have been acquitted.

4. Since, both the afore-captioned criminal appeals have been filed against the common judgement and order dated 16.2.2018, the appeals are being heard together on consent of the learned counsels for the parties.

5. In short compass, the facts giving rise to the present appeals is that Pavnesh Yadav (PW-1), informant, complained that on 26.02.2012, at about 14:30 hours, while he was levelling the naad charan with soil, accused Shintu, Rajesh Kumar, Tefa, Basant came on the spot and assaulted with lathi, danda, kicks and fists. On hearing hue and cry, Tulsi (deceased), grandfather of the informant, rushed to the spot to save him. The deceased was beaten with lathi, danda, kicks & fists. The deceased succumbed to the injuries during treatment. Non Cognizable Report (NCR) came to be lodged at 15:45 hours. The informant and the deceased were medically examined at 17:00 hours and 18:08 hours respectively. The injuries received by the injured Tulsi Yadav (deceased), aged about 80 years, s/o Late Bandhu Yadav, are as follows:

1-Contused swelling 10 cm x 5 cm on the left side of the head just above the left ear. The injury was kept under observation and x-ray was advised.

2-Abraded contusion 5 cm x 3.5 cm, 2 cm above of injury no.

1. This injury was also kept under observation and x-ray was advised.

3-Contused swelling 5 cm x 3.5 cm towards the left side on the forehead just above the left eye-brow. The injury was kept under observation and x-ray was advised.

4-Contused swelling 5 cm x 3.5 cm all around the left eye on the upper and lower side around the eyelid. The injury was kept under observation and x-ray advised.

5-Red swelling in the conjunctiva of the left eye. The injury was kept under observation and the injured was referred to the eye surgeon for better treatment.

6-Abraded contusion 4.5 cm x 3.5 cm on the posterior of the left elbow. The injury was kept under observation and X-ray was advised.

6. The injuries on the person of the injured Pawnesh Yadav (PW-1), aged about 23 years, s/o Sadanand Yadav, are as follows:

1-Lacerated wound 3.5 cm x 0.5 cm on the left side of the head, injury 7.5 cm above the right eye. The injury was kept under observation and X-ray advised.

2-Contused swelling 5 cm x 3 cm, 5 cm above the left hand thumb. The injury was kept under observation and and X-ray was advised.

7. On 28.8.2012 at 17:20 hours postmortem of the deceased Tulsi was conducted. The following injuries are noted in the report:

1-Lacerated wound 4 x 3 cm just above the left elbow the muscles were found lacerated.

2-Lacerated wound 3 x 2 cm found in the pinna of the left ear; the wound was present length-wise