LexCHAMAN & ANR. versus STATE OF UTTARANCHAL
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.,.-- [2008] 16 s.c. R. 882 L"' • A CHAMAN & ANR. ., .. v. -· . srAtE 'oF UTTARANCHAL , .·: (CrirpirJ~I ApP,eal ·Na.· 409. of 2,007) · . . ~ ~ . .;~ ' B DECEMBER· t, 2008 · ~ [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860 - s. 34 - Common intention :--- c Applicability of - Held: s. 34 is enacted on the principle of joint liability in the doing of a criminal act - Existence of a common intention amongst the participants in a crime is the essential element - It is applicable even if no injury has been caused by the particular accused himself - Some overt act D on the part of accused is not necessary- On facts and in view of the legal position, s. 34 applicable and offence made out in respect of accused persons - Thus, conviction u/s. 302 rlw s. 34 by courts below justified. •• lo; According to the prosecution case, appellant C E hurled abuses at JS over a petty matter. During night appellant C along with appellant V, N and KR armed with deadly weapons entered the house of JS. Father of JS- PW 2 raised alarm. N pointed out the gun at him and PW 2 caught hold of the barrel of the gun. V gave him blows c- ' F with· the Khukri. Appellant struck a blow on the person I . of JS. PW 5, 6, 7 and others reached there. They saw that .... V struck a blow with Khukri on JS. Thereafter, the appellants ran away from the place of occurrence. JS ..... succumbed to his injuries. Trial court relying on the r I evidence of PW 1, 2, 5 and 7, convicted the appellants for I G I offence punishable u/s.302 r/w s. 34 IPC and awarded life ' ,- impri~onment. V was also convicted for offence punishable u/s.323 IPC and sentenced to imprisonment for six months. KR died during pendency of appeal. High ~ H 882 .• )( CHAMAN & ANR v. STATE OF UTTARANCHAL 883. Court upheld the conviction of appellant C, V a.nd N. A Hence the present appeal. Dismissing the appeal, the Court HELD: 1.1. Section 34 IPC has been enacted on the principle ofjoint liability in-the doing of a criminal act. The. 8 Section is· only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an· offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in C furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the o- proved circumstances . .In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the t aid of Section' 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of F them has done it individually by himself. [Para 6] (888-A- E] 1.2. The existence of a common intention amongst the participants in a crime is the essential element for ~ppfication of this Section. It is not necessary thatthe acts G' of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. [Para 6] (888-E-F] H 884 SUPREME COURT REPOtns [2008] 16 S.C.R. A 1.3. The Section does not say "the common intention of .all", nor. doe!:l it _say "and intentie>n ,common to. all''. Under the ·pfovisions:of·$e·ctiC>,,11,:34 ... ~he -es.sence of the lial;)ili~y )s. ~9. ~e. foun_d. in ft.I~ existe.nce of a common int~ri*ion! ariJmati11g th.~ accused leading to the doing of B a crimin.al ad frl furtherance of such intention. As a result oft~~ appiication of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section·34, in law it means that ttm ~ccused is. liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The C provision
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