Part-3

22/01/2017

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1448 OF 2010
Vijendra Singh …Appellant(s)
Versus
State of Uttar Pradesh …Respondent(s)
WITH
CRIMINAL APPEAL NO. 1452 OF 2010
Mahendra Singh …Appellant(s)
Versus
State of Uttar Pradesh …Respondent(s)
JUDGMENT
(Continued from previous issue)……
13. As is evincible, the accused-appellants have been convicted with the aid of Section 34 IPC. It has come in evidence of PW-2 that the accused Mahendra was armed with lathi and accused Vijendra Singh was armed with a ballam and they were in the company of other accused. When the evidence in its entirety is studiedly scrutinized, it clearly shows that the accused persons were present in the shed, they were seen going away and the deceased was found lying in a pool of blood. The witnesses specifically stated about the weapons being carried by the accused persons. The submission is that the prosecution story rests on the gun shot injury but there is no evidence with regard to injury caused by the lathi or ballam. It is relevant to state here that cartridges from the spot have been recovered and PW-6 Doctor who conducted the post mortem had found gunshot wound of entry eight in number in an area of 6 cm x 5 cm on the right side of neck just above the clavicle and lower part of neck. The dimensions of the wound ranged from 1 cm x 0.15 cm to 0.5 cm x 0.5 cm x bone deep. There was no blackening or scorching around the wound. True it is that the doctor has stated that there is no blackening or scorching around the wound, but that will not belie that the injury was not inflicted by the firing from the gun. He has opined that the death of the deceased was caused by gunshot injury.
14. The heart of the matter is whether Section 34 IPC would be attracted to such a case or not. In this regard, we may refer to certain authorities as to how this Court has viewed the concept of “common intention” and thereafter reflect upon how it is applicable to the case at hand.
15. Mr. Giri has drawn our attention to paragraph 10 of the authority in Jai Bhagwan (supra). It reads as follows:-
“10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”
16. He has also relied on the decision in Suresh Sakharam Nangare (supra). In the said case, the Court after referring to Section 34 IPC opined that a reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.
17. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.
18. In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad9. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-
“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor10. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor11 and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice”.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.”
19. And, again:-
“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, “the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”. (Sarkar’s Evidence, 8th Edn., p. 30).”
20. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.

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