Penal Code, 1860: ss.307/34 – Attempt to murder with common intent – Applicability of s.34 – Prosecution case was that PW-3-complainant, the accused appellant and the main accused were related to each other – There was previous enmity between them over land dispute – On the fateful day, when PW-3 was on his way, he was stopped by accused appellant and told not to cultivate his land – Quarrel started between PW-3 and accused appellant – The main accused also came and intervened, whereupon PW-3 told him, not to interfere and to go home, as he was in no way concerned with the dispute – Thereafter, the main accused took out a pistol from the right pocket of his pants and pointed it at him – PW-3 told the main accused not to open fire, whereupon the accused appellant urged the main accused to kill PW-3 – Thereafter, the main accused fired the pistol, causing injury to PW-3 with the splinters – Trial court convicted the accused appellant under ss. 307/34 and main accused under s.307 – High Court upheld the same – On appeal, held: To attract s.34, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention – Common intention implies acting in concert – Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts – Prosecution was not able to establish a prearranged common intention between the accused appellant and the main accused to kill PW-3 in pursuance of which the main accused open fired from his pistol – The circumstances established suggested that intervention by the main accused was by chance – There were some notable discrepancies between the evidence of PW-3 and PW-4 which raised serious doubts with regard to the truth and/or accuracy of their evidence particularly in view of the enmity and pre-existing family disputes between the parties – Prosecution miserably failed to establish any common, premeditated or prearranged intention jointly of the accused appellant and the main accused to kill PW-3, on the spot or otherwise – Prosecution also failed to prove that the pistol was fired at the exhortation of the accused appellant – Trial court and High Court both fell in error in convicting the accused appellant – Accused appellant entitled to acquittal.
Penal Code, 1860: s.34 – Common intention – It is a settled principle of criminal law that only the person who actually commits the offence can be held guilty and sentenced in accordance with law – However, s.34 lays down a principle of joint liability in a criminal act, the essence of which is to be found in the existence of common intention, instigating the main accused to do the criminal act, in furtherance of such intention – Even when separate acts are done by two or more persons in furtherance of a common intention, each person is liable for the result of all the acts as if all the acts had been done by all of these persons.
Allowing the appeal, the Court
Held: 1. It is not in dispute that the accused appellant neither carried arms nor opened fire. In cross-examination PW-3 admitted that he had not in his statement to the police under Section 161, Cr.PC stated anything about any instigation by the accused appellant to the main accused. The Sessions Court overlooked certain serious discrepancies between the evidence of PW-4 and the evidence of PW-3 with regard to the alleged role of the accused appellant. While PW-3, himself the injured witness, deposed that the accused appellant exhorted the main accused to kill him, after the main accused had pointed the pistol at PW-3, PW-4 had deposed that on being told by the accused appellant to beat PW-3, the main accused took out the pistol from the right pocket of his pant and fired. [Paras 16, 17][784 A-F]
2.1 It is a settled principle of criminal law that only the person who actually commits the offence can be held guilty and sentenced in accordance with law. However, Section 34 lays down a principle of joint liability in a criminal act, the essence of which is to be found in the existence of common intention, instigating the main accused to do the criminal act, in furtherance of such intention. Section 34 is only a rule of evidence which attracts the principle of joint criminal liability and does not create any distinct, substantive offence. [Paras 21, 22][785 D-F]
B.N. Srikantiah v. Siddiah AIR 1958 SC 672 : [1959] SCR 496; Bharwad Mepa Dana and Anr. v. State of Bombay AIR 1960 SC 289 : [1960] 2 SCR 172;
Harbans Kaur and Another v. State of Haryana (2005)
9 SCC 195 : [2005] 2 SCR 450 – relied on.
2.2 Common intention can only be inferred from proved facts and circumstances. Of course, the common intention can develop during the course of an occurrence. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other. [Paras 23-24, 27][785-G-H; 786 B-C, G-H]
Manik Das & Ors. v. State of Assam AIR 2007 SC 2274 : [2007] 7 SCR 863; Abdul Mannan v. State of Assam (2010) 3 SCC 381 : [2010] 2 SCR 1030; Lallan Rai & Ors. v. State of Bihar (2003) 1 SCC 268 : [2002]
4 Suppl. SCR 188; Ashok Basho (2010) SCC 660 (669); Barendra Kumar Ghosh AIR 1925 Privy Council 1 – relied on.
3. The Prosecution was not able to establish a pre-arranged common intention between the accused appellant and the main accused to kill the complainant in pursuance of which the accused open fired from his pistol. The circumstances established suggest that intervention by the main accused was by chance. The main accused chanced to stop as he was passing by the place of occurrence when the accused appellant and the complainant were quarrelling. As per the evidence of the complainant, who is a injured witness, when the complainant told the main accused not to intervene and to go home, reacted by taking out the pistol from his right pant pocket and pointing it at the complainant. The pistol was taken out by the main accused and pointed at complainant without any instigation from the accused appellant. Even if it is accepted that the accused appellant uttered the words attributed to him by the complainant (PW-3) in his evidence, this seems to have been done on the spur of the moment. Pre-arrangement is not established. There are some notable discrepancies between the evidence of the complainant (PW-3) and PW-4 which raise serious doubts with regard to the truth and/or accuracy of their evidence particularly in view of the enmity and pre-existing family disputes between the parties. Even though PW-5 may have been declared hostile, his evidence is not to be rejected with in its entirely. This witness also confirmed that there was an altercation between the accused appellant and the complainant, in which the main accused intervened, took out his pistol and aimed it at the complainant. These facts are corroborated by PW-3 and PW-4. This witness however stated that the main accused took out his pistol and threatened to kill the complainant. He did not say that the accused appellant urged the main accused to shoot. [Para 28][787 A-H; 788 A-B]
4. Even though there may be some evidence that the main accused took out a pistol and opened fire, the prosecution miserably failed to establish any common, premeditated or prearranged intention jointly of the accused appellant and the main accused to kill the complainant, on the spot or otherwise. The Prosecution also failed to prove that the pistol was fired at the exhortation of the accused appellant. The accused appellant is acquitted and directed to be set free forthwith. [Paras 2930][788 B-C; D-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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