Penal Code, 1860 – ss.302, 323 and 324 r/w 34 – Murder consequent to armed assault – Common intention – Vicarious liability – Three accused – ‘S’ and ‘N’, maternal uncles of PW1 (informant), were the principal accused – Accused-appellant was their driver – ‘N’ allegedly nursed ill-will against PW1 – PW1 had visited residence of his maternal grandmother alongwith his friends – ‘S’ and ‘N’, who were present there, abused PW1 and his friends leading to a quarrel and scuffle – PW1 and his friends hurriedly left the spot but stopped near a school – ‘S’ and ‘N’ accompanied by appellant, came there on a motorcycle and started assaulting PW1 and his friends – ‘S’ had a danda and ‘N’ had a sickle (darat) – PW1 and one of his friends received injuries and ran away – The other friend died – Trial court convicted all the three accused – Conviction affirmed by High Court – Whether appellant could be said to be guilty with the aid of s.34 IPC – Held: Ocular testimony in support of the prosecution was only by way of the testimony of PW1 – PW1 did not attribute any specific overt act to the appellant insofar assault on the deceased was concerned; nor was the appellant stated to be armed with any weapon – It was not even the case that the appellant had exhorted or had facilitated, in any manner, the assault on the deceased – The only attribution to the appellant was regarding common or collective act where “three persons got down from the motorcycle and started assaulting with Danda and fist blows” – Appellant was also not attributed presence and participation in the quarrel or scuffle between PW1, and ‘S’ and ‘N’ – No certainty that the appellant shared the common intention with ‘S’ and ‘N’ to commit the murder of the deceased or that the appellant had done something ‘in furtherance’ of the common intention of all – Benefit of doubt granted to appellant and he is absolved of the liability u/s.34 IPC insofar as the charges u/ss.302 and 324 IPC are concerned – He is, however, found guilty of the offence punishable u/s.323 r/w s.34 IPC.
Penal Code, 1860 – s.34 – Principle of vicarious liability under – Outlined.
Partly allowing the appeal, the Court
HELD: 1.1. The principle of vicarious liability under Section
34 of the IPC states, “when a criminal act is done by several persons in furtherance of the common intention of all”, each of those persons would be liable for ‘that act’ in the same manner as if it were done by him alone. [Para 13][902-D-E]
1.2. In the facts and circumstances of this case, first and foremost, the ocular testimony in support of the prosecution is only by way of the testimony of PW1. That witness did not attribute any specific overt act to the appellant insofar assault on the deceased was concerned; nor was the appellant stated to be armed with any weapon. It was not even the case that the appellant had exhorted or had facilitated, in any manner, the assault on the deceased. The only attribution to the appellant was regarding common or collective act where “three persons got down from the motorcycle and started assaulting with Danda and fist blows”. [Para 13][902-E-F]
1.3. Going by the narration of PW1, ‘S’ and ‘N’ had abused him and his friends at the residence of his maternal uncle leading to a quarrel and scuffle. The appellant was not attributed presence and participation in such quarrel or scuffle. [Para 14][902-F-G]
1.4. Having considered the entire material on record, it cannot be said with certainty that the appellant shared the common intention with ‘S’ and ‘N’ to commit the murder of the deceased or that the appellant had done something ‘in furtherance’ of the common intention of all. Giving him benefit of doubt, he is absolved of the liability under Section 34 of IPC insofar as the charges under Sections 302 and 324 of IPC are concerned. He is, however, found guilty of the offence punishable under Section 323 read with Section 34 of IPC. [Para 16][904-D-F]
Dharam Pal and others v. State of Haryana (1978) 4 SCC 440; Vithal Laxman Chalawadi and others v. State of Karnataka (2010) 14 SCC 739 : [2010] 12 SCR
574; and Bishu Sarkarand others v State of West Bengal (2017) 11 SCC 105 – relied on.
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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