LexLALA RAM versus STATE OF RAJASTHAN
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LALA RAM A ' --< v. ST A TE OF RAJASTHAN JUNE 20, 2007 [DR. ARIJIT PASA YAT AND D.K. JAIN, JJ.] B ,-...,. Penal Code, 1860: ~ s.34-App/icability of-Held: Applicable even when no injury is caused c by particular accused himself-It is not necessary to show overt act on the part of accused. s.302 r!w. s.34.-Murder-One of the prosecution witnesses gave water to the deceased when he was gasping for breath and was told by the deceased about the incident and the assailants-Conviction by Courts below- D Held: Evidence of the witness is relevant-Hence conviction justified. -/ .. Evidence: Evidence of relative-Held: There is no proposition in law that relative to be treated as untruthfitl witness. E Prosecution case was that deceased was attacked by group of persons including appellants on account of personal enmity. Trial Court ordered conviction of appellant and others under s.302 r.w. s.34 IPC on the basis of evidence of PW-3 and 4. The High Court found that the evidence of PW 3 was relevant as he had seen the person who saw the deceased persons in F .... ~ :njured condition and had given water to them while they were gasping for breath. PW-4 was related to the deceased persons and, therefore, the Court -- analysed his evidence in detail and found it to be credible. In appeal to this Court, appellant contended that s.34 IPC has no application; that the evidence of PWs 3 and 4 cannot be called credible and G cogent as PW 4 was related to the deceased and there was no reason as to why the deceased would make any disclosure to PW 3 about the assailants. -· ,( Dismissing the appeal, the Court 1095 H ~ 1096 SUPREME COURT REPORTS [2007) 7 S.C.R. A HELD: I.I. S.34 has been enacted on the principle of joint liability in the doing of a criminal act The 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 s.34 if such criminal act is done in furtherance ofa B 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 proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether C 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 aid of s.34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. [Para 71 [1099-D-FJ 1.2. The existence of a common intention amongst the participants in D a crime is the essential clement for application of this Section. It is not necessary that the acts 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. E [Para 71 (1099-G-H; 1100-AI Ashok Kumar v. State of Punjab, AIR (1977) SC 109, relied on. Mahbub Shah v. Emperor, AIR (1945) Privy Council 118, referred to. 1.3. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of s.34 the essence F of the liability is to be found in the existence ofa common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in s. 34, when an accused is convicted under s.302 read with s.34, in law it means that the accused is liable for the act which caused death of the deceased in the G same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish bdween acts of individual. members of a party who act in furtherance of the common intention of all or - to prove exactly what part was taken by eac~ of them. S.34 is applicable even if no injury has been caused by the particular accused himself. For applying s.34 it is not necessary to show some overt act on the part of the accused. If H the factual scenario as noted above i
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