Penal Code, 1860: s.302 r/w s.34 – Conviction and life imprisonment – Prosecution case was that on the fateful day, appellant no.1 armed with farsa (axe) along with five other accused persons including appellant no.2 armed with rifles and danda came near the house of the victim-deceased – Appellant no.1 attacked the deceased with farsa and exhorted others to kill the deceased – Deceased ran out of the courtyard – Four co-accused standing at the door of adjacent house caught hold of the deceased – Mother of deceased tried to save the deceased and in the process received injuries near her ear – Appellant no.2 fired gun shot at the deceased which hit his back – Appellant no.1 took gun from accused no.3 and fired at the deceased – When villagers came, all the accused fled away from the spot – Trial court convicted appellant no.1 and
2 under s.302 r/w s.34 while it acquitted all the other co-accused – High Court affirmed the conviction and sentence of life imprisonment holding that even though there were contradictions in the statement of PW-1-complainant (wife of deceased) recorded in the court and her statement in the FIR, however, since the prosecution was able to prove that the appellants shared the common intention to commit the murder of the deceased, the court can invoke s.34 and in such a situation, it was not necessary for the prosecution to prove that the gun shot injuries which resulted in the death of the deceased was caused by which of the two appellants – On appeal, held: To invoke s.34, it must be established that the criminal act was done by more than one person in furtherance of common intention of all – It must, therefore, be provided that there was common intention on the part of several persons to commit a particular crime; and in furtherance of that common intention, the crime was actually committed by them – The presence of appellant No.2 was established by consistent evidence of the eye-witnesses – Admittedly, appellant No.2 was armed with rifle and, thus, shared the common intention acting in concert with appellant No. 1 – When appellant No.2 has been proved to have acted in furtherance of the common intention, his conviction under s.302 was rightly affirmed by the High Court by invoking the aid of s.34 – Since appellant No.1 passed away during pendency of the appeal, and, therefore, appeal against him is dismissed as abated.
Dismissing the appeal, the Court
HELD : 1.As per the post-mortem certificate, the deceased sustained one gun shot injury, that is, circular hole of 1.5 cm on his back. PW-15-the Investigating Officer had seized one .12 bore cartridge and one .12 bore empty cartridge from the spot. PW-15 also seized two plastic pieces which were emitting the smell of gun power and these material objects were seized under seizure memo. Insofar as accused No.3 (since acquitted) who is said to have fired a gun shot, none of the witnesses have stated as to which part of the body of the deceased the said gun-shot was hit. Considering the fact that there was no cogent evidence against accused No. 3, the trial court granted benefit of doubt and acquitted him. As rightly held by the High Court, the evidence against the appellants-accused is not identical as against the coaccused No. 3 who was acquitted. [Para 11] [368-G-H; 369-A-B]
2. As held by the High Court, even assuming that appellant No.1 has fired gun shot, the conviction of appellant No.2 can be sustained with the aid of Section 34 IPC. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be provided that (i) there was common intention on the part of several persons to commit a particular crime; and (ii) in furtherance of that common intention, the crime was actually committed by them. In the instant case, the presence of appellant No.2 was established by consistent evidence of the eye-witnesses viz. PWs 1, 2, 6 and 7. Admittedly, appellant No.2 was armed with rifle and thus shared the common intention acting in concert with accused-appellant No. 1. When appellant No.2 has been proved to have acted in furtherance of the common intention, his conviction under Section 302 IPC was rightly affirmed by the High Court by invoking the aid of Section 34 IPC. There is no reason for warranting interference with the impugned judgment. The conviction of appellant No.2 under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon him is affirmed. Since the appellant No.1 has passed away, the appeal against him is dismissed as abated. [Paras 12-13] [369-B-F]
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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