Penal Code, 1860 – ss.498A, 302 and 504 rw s.34 – Common intention – Individual liability – Appellants-husband and mother-in-law of the deceased-wife charged for causing her death by setting her on fire – Dying declaration made – Acquittal by the trial court of the offence punishable u/ss. 498A, 302 and 504 rw s.34 and ss.3 and 4 of the 1961 Act – However, the High Court reversed the acquittal and held both of them guilty of the offences – Correctness:
Held: Although s.34 deals with a criminal act which is joint and an intention which is common, it cannot be said that it completely ignores or eliminates the element of personal contribution of the individual offender in both these respects – Condition precedent of s.34 that the individual offender must have participated in the offence in both these respects – He must have done something, however slight, or conduct himself in some manner, however nebulous whether by doing an act or by omitting to do an act so as to indicate that he was a participant in the offence and a guilty associate in it – He must also be individually a party to an intention which he must share in common with others – He must be a sharer both in the ‘criminal act’ as well as in the ‘common intention’ which are the twin aspects of s.34 – No cogent and reliable evidence to hold the husband-appellant guilty of the alleged offence even with the aid of s.34 – It is difficult for the accused to urge that owing to the mention of s.34, in the charge, he was misled or prejudiced in his defence by being persuaded to presume that all consideration of his individual liability was completely shut out as a result thereof – To implicate the husband also in the alleged crime, u/s.106 Evidence Act, the prosecution has to as a condition precedent lay the foundational facts prima facie indicating his involvement or participation in the alleged crime – His sudden disappearance after the incident not sufficient to infer common intention – Furthermore, it cannot be said that the deceased was not in a fit state of mind to give a dying declaration – Nothing to disbelieve the oral dying declaration made by the deceased before the doctor – Also pertinent to note that only the motherin-law, figures in the dying declaration as well as oral evidence of the doctor and the tehsildar – Thus, the High Court rightly held the mother-in-law-appellant no.2 guilty of the alleged crime but erred in holding the husband-appellant no.1 guilty of the offence of murder with the aid of s.34 – Conviction of appellant no.2 affirmed – Appellant no.1 acquitted of all charges – Evidence Act, 1872 – s.106 – Dowry Prohibition Act, 1961 – ss.3, 4. [Paras 37, 39, 41, 58, 63, 87-89, 91-93 ]
Penal Code, 1860 – ss.34 and 149 – Common intention vis-a-vis Common object – Difference between ss.34 and
149 – Explained. [Paras 41-50 ]
Penal Code, 1860 – s.34 – Common intention – Criminal act – Meaning – Explained. [52-76]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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