CHAMAN & ANR. v. STATE OF UTTARANCHAL

Citation: [2008] 16 S.C.R. 882

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

CHAMAN & ANR. v. STATE OF UTTARANCHAL.pdf

Judgment text

,. -- L"' [2008] 16 s. c. R. 882 • . , .. CHAMAN & ANR. v. -· . srAtE 'oF UTTARANCHAL , . ·: (CrirpirJ~I ApP,eal ·Na. · 409. of 2,007) ·. . ~ ~ . . ;~ ' DECEMBER· t, 2008 ·~ [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ. ] Penal Code, 1860 - s. 34 - Common intention :--- Applicability of- Held: s. 34 is enacted on the principle ofjoint liability in the doing of a criminal act - Existence of a common intention amongst the participants in a crime is the essential element - It is applicable even if no injury has been caused by the particular accused himself - Some overt act on the part ofaccused is not necessary- On facts and in view of the legal position, s. 34 applicable and offence made out in respect of accused persons - Thus, conviction u/s. 302 rlw s. 34 by courts below justified. •• lo; According to the prosecution case, appellant C hurled abuses at JS over a petty matter.

During night appellant C along with appellant V, N and KR armed with deadly weapons entered the house of JS. Father of JS- PW 2 raised alarm. N pointed out the gun at him and PW c- 2 caught hold of the barrel of the gun. V gave him blows ' with· the Khukri. Appellant struck a blow on the person . I of JS. PW 5, 6, 7 and others reached there. They saw that .... V struck a blow with Khukri on JS. Thereafter, the ..... appellants ran away from the place of occurrence. JS r succumbed to his injuries. Trial court relying on the I I evidence of PW 1, 2, 5 and 7, convicted the appellants for I ,-' offence punishable u/s. 302 r/w s. 34 IPC and awarded life impri~onment. V was also convicted for offence punishable u/s. 323 IPC and sentenced to imprisonment for six months. KR died during pendency of appeal. High ~ . • Court upheld the conviction of appellant C, V a. nd N. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. 1.

Section 34 IPC has been enacted on the principle ofjoint liability in-the doing of a criminal act. The. 8 Section is· only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section )( is the element of participation in action. The liability of one person for an· offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the oproved circumstances..

In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the t aid of Section' 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. [Para 6] (888-A- E] 1. 2. The existence of a common intention amongst the participants in a crime is the essential element for ~ppfication of this Section. It is not necessary thatthe acts G' of the several persons charged with commission of an offence jointly must be the same or identically similar.

The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. [Para 6] (888-E-F] 884 SUPREME COURT REPOtns [2008] 16 S. C. R. 1. 3. The Section does not say "the common intention of . all", nor. doe! :l it _say "and intentie>n ,common to. all''. Under the ·pfovisions:of·$e·ctiC>,,11,:34... ~he -es. sence of the lial;)ili~y )s. ~9. ~e. foun_d. in ft. I~ existe. nce of a common int~ri*ion! ariJmati11g th. ~ accused leading to the doing of crimin. al ad frl furtherance of such intention. As a result oft~~ appiication of principles enunciated in Section 34, when an accused is convicted under Section 302 read ... with Section·34, in law it means that ttm ~ccused is. liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to -distinguish between acts of individual members.

of a_,party who act in furtherance of the common intention of all or to prove exactly what part was . taken . by each of therri. Section 34 is applicable· even if no, injury. ha~ been c. aused by the particular ·accused \ himself. For a. pplying Se_ction 34 it is not necessary to show some overt act. on the part of the accused.. [Para . 9] .. [889-A-E. J .. · 1. 4. When the· factual scenario is considered in the background of legal position; ther~ is no merit in the instant appeal. [Para· 11] [889-G] . ~ Ashok Kumar v: State of Punjab AIR 1977 SC 109; Ch. PuilaReddy and Ors. v. State. of Andhra Pradesh AIR 1993. SC 1899; Anil Sharma and Ors. v. State of Jharkhand 2004 (5) SCC 679; Harbans Kaur v. State of. Haryana 2005(9) '- SCC 195 and Amit Singh Bhikamsingh Thakur v. State of Maharashtra 2007(2) SCC 310,. relied on. Mahbub Shah v_ Emperor AIR 1945 Privy Council 118, ''I referred to. · . , :. ~ : Case. Law.. Reference: l r ) AIR 1977 SC 109 ,Relied on. Para 6 · AIR.

1945 Privy Council 118 Referred to. Para 8 AIR 1993 SC 1899 Relied on. Para 9 ! 2004 (5) sec 679 Relied on. Para 10 2005(9) sec 195 Relied on. Para 10 2001(2) sec 310 Relied on. Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 409 of 2007. From the Judgment and final Order dated 20. 7. 2006 of the High Court of Uttaranchal at Nainital in Crl. Appeal No. 1275 of 2001 (Old No. 991 of 1987). Mahinder Singh Dahiya and A. Rama Devi for the Appellants. Jatinder Kumar Bhatia for the Respondent. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT,,J. 1. Challenge in this appeal is to the judgment of the Division Bench of the Hon'ble High Court of Uttaranchal at Nainital upholding the conviction of four appellants who had filed Criminal Appeal no. 1275 of 2001. One of the appellants Khushi Ram died during the pendency of the appeal. By the impugned judgment, the High Court upheld the conviction so far as other appellants Chaman, Vinod Kumar and Naresh are concerned.

The first two are appellants in the present appeal. No appeal has been preferred by accused Naresh. Each of the accused was convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and sentenced to imprisonment for life. Appellant Vinod was additionally convicted for offence punishable under Section 323 IPC and sentenced to imprisonment for six months. 2. Prosecution version in a nutshell is as follows: ~ On 09. 07. 1985, at about 5:00 P. M. , Jaswant Singh (hereinafter referred to as the 'deceased') was returning to his home, when he met Rani, daughter of Onkar Das and they started talking to each other. Appellant Chaman, brother of Rani, came from his house hurling abuses at Jaswant Singh, saying 886 SUPREME CQ_URT. REPORTS. [20R~J 16 S. C. R. _ "TU 13AHUT BADAS~ND BANTA HAI; RUf - When a criminal act is done by several persons, .

·~ each of such persons is liable for that act in the same ~ manner as if the act was done by him alone. " . .... · 8. In 1870, it was amended by the insertion of the words "in furtherance of. the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118). 9. The Section does not say "the common intention of all", _, nor does it say "and intention common to all". Under the .. provisions of Section 34 the essence of the liability is to be found ~ •I in the existence of a common intention animating the accused ' leading to the doing of a criminal act in furtherance of such intention.

As a result of the application of principles enLlnciatetl in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is I intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 10. The above position was highlighted recently in Anil Sharma and Others v. State ofJharkhand [2004 (5) SCC 679], ) ~ in Harbans Kaur v.

State of Haryana [2005(9) SCC 195] and Amit Singh Bhikamsingh Thakur v. State of Maharashtra r2001(2) sec 31 OJ. 11. When the factual scenario is considered in the background of legal position, there is no merit in this appeal. Looked from any angle the appeal is without merit, deserves ~ dismissal, which we direct. N. J. Appeal dismissed.