CRIMINAL APPEAL NO. 50 OF 2019

2nd July 2019

Petitioner Counsel: Shri R. D. Hajare
Respondent Counsel: Shri T. A. Mirza
Act Name: Indian Penal Code, 1860

Section :
Section 32 Indian Penal Code, 1860 Section 33 Indian Penal Code, 1860 Section 34 Indian Penal Code, 1860 Section 35 Indian Penal Code, 1860 Section 37 Indian Penal Code, 1860 Section 38 Indian Penal Code, 1860 Section 109 Indian Penal Code, 1860 Section 120-B Indian Penal Code, 1860 Section 302 Indian Penal Code, 1860 Section 304-I Indian Penal Code, 1860

Cases Cited :
Paras 7, 13, 14: Suresh and another Vs. State of U.P. reported in (2001) 3 SCC 673
Para 13: Shatrughan Patar Vs. Emperor,
Para 13: Surender Chauhan Vs. State of M.P.
Para 13: Ramaswami Ayyangar Vs. State of T.N.
Para 13: Rajesh Govind Jagesha Vs. State of Maharashtra
Para 15: Sunita Sharma Vs. State of Delhi reported in 2015(7) SCALE 84
Para 15: Nana s/o Shriram Wankhade Vs. State of Maharashtra reported in 2018 ALL MR (Cri) 174
Para 15: Ramashish Yadav and others Vs. State of Bihar reported in 1999 (8) SCC 555

JUDGEMENT

Heard Shri R.D. Hajare, the learned counsel for the appellant and Shri T.A. Mirza, the learned Additional Public Prosecutor for the respondent/State. With consent the appeal is finally heard.

2. The appellant Ramesh Sahare and three other accused faced trial for offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

3. All the accused are convicted for offence punishable under Section 304 Part-I of the IPC and are sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.2000/- and in default to suffer further rigorous imprisonment for six months.

4. Accused Ramesh Sahare is assailing the judgment of conviction dated 29.11.2017 rendered by the learned Sessions Judge, Chandrapur.

5. The prosecution case is that deceased Rajendra Thakre was residing at village Sawargata. The incident took place at 07:30 p.m. on 24.10.2014. The deceased had his dinner and went to the pan shop of Mukesh Manohar Nagose to purchase kharra (betel nut and tobacco mixture). While the deceased was at the pan shop, the accused came there and there was an altercation. The backdrop of the altercation was that the grandson of accused 1 died prior to one month of the incident and the deceased was suspected to have practiced black magic and caused the death. The accused 1 was armed with spear, accused 2 and 3 were armed with ubharis (wooden sticks) and the accused Ramesh Sahare was present. The prosecution case is that the accused Ramesh Sahare held the hands of the deceased and accused 1 Wasudeo Mule assaulted the deceased by spear and accused 2 Homraj Mule and accused 3 Ishwar Mule assaulted the deceased by ubhari.

6. I have heard the learned counsel Shri Hajare for the accused and the learned APP Shri T.A. Mirza for the respondent/State and with their able assistance, I have scrutinized the evidence on record and the reasons recorded by the learned Sessions Judge.

7. The thrust of the submissions of the learned counsel Shri Hajare is that even if the entire evidence is taken at face value, the conviction of the accused with the aid of Section 34 of the IPC is illegal. Shri Hajare would submit that there is no role attributed to the accused Ramesh Sahare in the assault. The only role attributed to accuse Ramesh Sahare is that he pulled the deceased by the hands. Shri Hajare submits that it is not even the case of the prosecution that the accused Ramesh Sahare held the hands of the deceased to immobilize him and to facilitate the assault. Shri Hajare would submit that even according to the prosecution the deceased was assaulted from behind by accused 1 Wasudeo Mule. In rebuttal, the learned APP Shri Mirza would submit, relying on the decision of the Apex Court in Suresh and another v. State of U.P. reported in (2001) 3 SCC 673 that the role attributed to the accused, and which is established by the prosecution, is sufficient to infer that the accused Ramesh Sahare shared common intention with the other accused.

8. A perusal of the judgment impugned would reveal that the learned Sessions Judge, while presumably invoking Section 34 of the IPC to convict the accused Ramesh Sahare, has given no reason whatsoever to invoke Section 34 of the IPC. In the entire judgment, there is not even whisper indicating the thought process of the learned Sessions Judge. I am impelled to observe that the judgment impugned leaves a lot to be desired. It would have been appropriate if the learned Sessions Judge considered whether on the evidence on record an inference can be drawn that there was a prior concert or meeting of minds as would attract Section 34 of the IPC.

9. The evidence may now be considered. PW 2 Jayendra Thakare, who is the brother of the deceased, is examined as eye witness to the incident. PW 2 has deposed that on hearing commotion he went to the square and saw accused 1 Wasudeo Mule hurling abuses and accusing the accused of killing his grand child by performing black magic. PW 2 states that accused Ramesh Sahare caught both hands of the deceased and dragged him forward and then from behind accused 1 Wasudeo Mule struck blow on the waist with a barchi (akin to spear). PW 2 states that when the deceased collapsed accused 2 Homraj Mule and accused 3 Ishwar Mule assaulted him by ubhari.

The other eye witness is PW 8 Sumitra Thakre who is the mother of the deceased who has deposed that the deceased was seating and the accused Ramesh Sahare pulled him by his hand.

10. The seminal question is whether the principle of joint liability in the doing of a criminal act is attracted in the teeth of the evidence on record. Preconcert and meeting of minds is a necessary ingredient of Section 34 of the IPC. Direct evidence of preconcert or meeting of mind is rarely available. The conduct of the accused, the element of participation in the offence and the other circumstances would ordinarily assist the Court in drawing the inference of preconcert or meeting of mind. It is well settled that common intention may develop at the spur of the moment, but then preconcert or meeting of mind is nonetheless a prerequisite to draw the inference that the accused shared a common intention to commit the offence.

11. The learned counsel Shri Hajare invites my attention to the decision of the Apex Court in Ramashish Yadav and others State of Bihar reported in (1999) 8 SCC 555. The role attributed to the accused was that they caught hold of the deceased and the other accused came with gandasa and dealt blows on the head of the deceased. In these facts, the Apex Court observes thus:

Coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of the three eye witnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died. Section 34 lays down a principle of joint liability in the doing of a criminal act. The absence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeashwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav.

12. The learned Sessions Judge records that no evidence is adduced to show that the accused arrived at the scene armed with weapons. The two eye witnesses who are examined state that they arrived at the scene when the altercation was on going. The only consistent version as regards the role of the accused Ramesh Sahare is that he was present at the scene. While PW 2 Jayendra Thakare states that accused Ramesh Sahare dragged the deceased by holding both the hands of the deceased, PW 8 Sumita Thakre states that the deceased was seating and the accused Ramesh Sahare pulled him by his hand. This evidence is not sufficient to infer that the accused Ramesh Sahare shared a common intention with the other accused. It is not even the version of the two eye witnesses that the accused Ramesh Sahare restrained the deceased in order to enable or facilitate the other accused to assault him.

13. The learned APP Shri T.A. Mirza invites my attention to the decision in Suresh and another v. State of U.P. and in particularly to the opinion penned by His Lordship Justice Sethi and His Lordship Justice Agrawal who while agreeing with the conclusions arrived at by His Lordship Justice Thomas chose to express their views on interpretation of Section 34 of the IPC.

It would be necessary to notice briefly the factual matrix in Suresh and another v. State of U.P. Accused 1 Suresh and his brother-in-law accused 2 Ramji were sentenced to death. The charge which the prosecution succeeded in bringing home was that the accused mercilessly murdered the entire family of Ramesh (brother of accused Suresh) except a child who survived the macabre dance of death. Accused 3 Pavitri Devi the wife of accused 1 Suresh was convicted with the aid of Section 34 of IPC. However, while the High Court sustained the conviction and sentence of accused Suresh and accused Ramji, the conviction of accused Pavitri Devi was set aside.
His Lordship Justice Thomas explained the ingredients of Section 34 thus:
15. Section 34 reads thus:
“34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
16. As the section speaks of doing “a criminal act by several persons” we have to look at Section 33 IPC which defines the “act”. As per it, the word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts. How can a criminal act be done by several persons?
17. In this context, a reference to Sections 35, 37 and 38 IPC, in juxtaposition with Section 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated. Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”. The section differs from Section 34 only regarding one postulate. In the place of common intention of all such persons (in furtherance of which the criminal act is done), as is required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required men rea.
18. Section 37 deals with the commission of an offence “by means of several acts”. The section renders anyone who intentionally cooperates in the commission of that offence “by doing any one of those acts” to be liable for that offence. Section 38 also shows another facet of one criminal act being done by several persons without connecting the common bond i.e., “in furtherance of the common intention of all”. In such a case, they would be guilty of different offence or offences but not for the same offence. Among the above four provisions the common denominator is the participation of several persons (more than one person) in the commission of a criminal act. The special feature of Section 34 is only that such participation by several persons should be “in furtherance of the common intention of all”.
19. Hence, under Section 34 one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.
20. To understand the section better it is useful to recast it in a different form by way of an illustration. This would highlight the difference when several persons do not participate in the crime committed by only one person even though there was common intention of all the several persons. Suppose a section was drafted like this: “When a criminal act is done by one person in furtherance of the common intention of several persons each of such several persons is liable for that act in the same manner as if it were done by all such persons.”
21. Obviously Section 34 is not meant to cover a situation which may fall within the fictitiously concocted section caricatured above. In that concocted provision the co-accused need not do anything because the act done by the principal accused would nail the co-accused also on the ground that such act was done by that single person in furtherance of the common intention of all the several persons. But Section 34 is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act.
22. Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g. the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused either by injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this: One of such persons, in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations.
23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
25. There may be other provisions in the IPC like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus participation in the crime in furtherance of the common intention is a sine qua non Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act.
Their Lordships Justice Sethi and Justice Agrawal articulated thus:
38. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such a preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as “the Code”) is the element of participation in absence resulting in the ultimate “criminal act”. The “act” referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar v. Emperor held that it is only when a court with some certainty hold that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.
It would be apposite to also notice the observations of their Lordships Justice Sethi and Justice Agrawal in paragraphs 52 and 53 which read thus:
52. In Surender Chauhan v. State of M.P. this Court held that 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 the 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. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)
“11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar v. State of T.N.). The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra). 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.
53. For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the “act” to mean as well a series of acts as a single act and the word “omission” denotes as well a series of omissions as a single omission. The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a prearranged plan but in a given case it may develop on the spur of the moment in the course of the commission of the offence. Such common intention which developed on the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.

14. Shri T.A. Mirza, the learned APP, relying on the decision in Suresh and another v. State of U.P., would submit that accused Ramesh Sahare was present at the scene of the crime and the evidence, notwithstanding the slightly different versions of PW 2 and PW 8, is that he pulled or dragged the deceased by holding the hand or both the hands of the deceased. Shri Mirza would submit that it is not necessary for the prosecution to prove or establish an overt act in every case and that the common intention may be inferred from the attending circumstances and conduct of the accused. As a principle, the submission is unexceptionable. However, no circumstance is established to infer that there was a simultaneous consensus of the mind of accused Ramesh Sahare and the other three accused who actually assaulted the deceased to bring about a particular reason.

15. In Sunita Sharma v. State of Delhi reported in 2015(7) SCALE 84 the accused allegedly held the victim by clinging to his hair while her husband inflicted the blow with a sharp edged weapon. Common intention to commit the offence of murder with her husband was held not established beyond reasonable doubt. The Apex Court notes that the act of stabbing by the husband did not appear to be premeditated and there was no occasion for the accused wife to develop or share a common intention. The Division Bench of this Court in Nana s/o Shriram Wankhade v. State of Maharashtra reported in 2018 ALL MR (Cri) 174 relying on the decision of Ramashish Yadav and others v. State of Bihar reported in 1999 (8) SCC 555 observes thus:

20. Section 34 of the Indian Penal Code, lays down a principle of joint liability in doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert, is the law laid down by the Hon'ble Apex Court, time and again and it could be noticed in a reported judgment in the case of Ramashish Yadav And Ors vs State Of Bihar, reported in 1999 (8) SCC 555.
By applying the aforesaid principles in the said case, the Hon'ble Apex Court ruled in that case that, “from the mere fact that two accused persons came and caught hold of the deceased, whereafter the other two accused came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused who had held the deceased, shared the common intention with other two accused, who had inflicted the blows, which resulted in the death of the deceased.”
21. In view of the aforesaid evaluation of the evidence and in the absence of any other positive evidence available on record, we are not able to reach to the conclusion that the accused no.3Uttam and accused no.4-Nana shared any common intention with accused no.1-Raju. In the present case, the prosecution has not filed any Chemical Analyzer's report to show that the clothes of these two accused persons were stained with blood. Thus, there is no corroboration by scientific evidence to prove the charge of holding by them.

16. I am satisfied that the prosecution failed to establish that the accused Ramesh Sahare shared common intention with the other three accused to assault the deceased. It is not proved that there was any preconcert or meeting of mind. It is not possible to infer that there was a consensus of mind to do any illegal act to achieve a particular result. I am satisfied that the prosecution has not proved the offence punishable under Section 304 Part-I read with Section 34 of the IPC against the accused Ramesh Sahare beyond reasonable doubt and that the judgment of conviction impugned is unsustainable.

17. The judgment impugned is set aside.

18. The accused Ramesh Sahare is acquitted for the offence punishable under Section 304 Part-I read with Section 34 of IPC.

19. The fine paid by the accused Ramesh Sahare, if any, shall be refunded.

20. The accused Ramesh Sahare shall be released from jail custody forthwith unless his custody is required in connection with any other crime.

21. The appeal is allowed.

22. Fees of the appointed counsel are quantified at Rs.5000/-.

Decision : Appeal allowed.