Full Judgment Text
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CASE NO.:
Appeal (crl.) 1116 of 2006
PETITIONER:
Lala Ram
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 20/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Three appellants before the Rajasthan High Court
alongwith one Giluda faced trial for alleged offence under
Section 302 read with Section 34 of the Indian Penal Code (in
short the ’IPC’). A Division Bench of the Rajasthan High Court
Jaipur Bench directed acquittal of the Giluda and upheld the
conviction so far as the appellants before it are concerned.
Each one of them was found guilty of offence punishable
under Section 302 read with Section 34 IPC and was
sentenced to undergo imprisonment for life. 23 persons were
named in the First Information Report (in short the ’FIR’) but
after investigation police filed charge sheet against seven of
them. The appellants before High Court along with three
others, namely, Babu Ram, Raghuveer and Kailash faced trial.
Said Babu Ram, Raghuveer and Kailash were acquitted by the
trial court. Each of the appellants was sentenced to undergo
imprisonment for life each to pay fine about Rs.1,000/- with
default stipulation. Only the present appellant has questioned
legality of the judgment of the High Court.
2. Background facts in a nutshell are as follows:
On 1.4.2000 at 4.30 p.m. First Information Report (in
short the ’FIR’) with regard to the incident came to be lodged
on the same day at 7.30 p.m. by Bhonr Singh, brother of
deceased Prabhu and Reghuveer. It was a written report on
the basis of which formal FIR came into being. Bhonr Singh in
the FIR lodged by him stated that between 4 to 5 in the
evening on 1.4.2000, his brother Prabhu and Raghuveer were
coming back from Thanagazhi after attending hearing of a
case. When they were going from Mandawara to Talvriksha,
on the outskirts of the village, because of personal enmity,
Girdhari son of Dola Ram Rebari, Hanuman, Lala and their
younger brother’s sons of Girdhari Rebari, Tulsa wife of
Girdhari, Hardeva, Giluda, Gopal, Shimbhu sons of Hardeva,
Santi wife of Hardeva and Hardeva himself, Ramjilal,
Manaram, Pancha, Yada sons of Bhora Jat, Prabhu, Maharam
sons of Shankar and relations of Girdhari Rebari whose names
he did not know, Dholi wife of Sunda Ram, Sundaram and his
four sons started beating Prabhu and Raghuveer with lathis,
farsi, Jell etc. and injured them. At the spot, the occurrence
was witnesses by Ranveer, son of Dilip Singh, Hanuman, son
of Gangaram, Girvar Singh, son of Mukhram Singh, Bhima,
son of Mukhram, Harinarain Gujar and Ramniwas, sons of
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Phoola Gujar. He was taking bath in Talviksha when the
occurrence had taken place. He was told about this
occurrence by Sugla Dhankar who told him that above named
persons had beaten his brothers. He then straightway went to
lodge the report.
3. After completion of investigation charge sheet was filed.
Accused persons pleaded innocence.
4. Placing reliance on the evidence of PWs. 3 & 4 the trial
court recorded conviction of the appellant and others, while
directing acquittal of Giluda. It is to be noted that before PW
3- the deceased persons purportedly made dying declaration
while PW4 was stated to be an eye witness. The High Court
found that the evidence of PW 3 to be relevant as he is the
person who saw the deceased persons in injured condition and
gave water to them while they were gasping for breath. So far
as PW 4 is concerned he was related to the deceased persons
and, therefore, the Court analysed his evidence in detail and
found it to be credible.
5. In support of the appeal, learned counsel for the
appellant submitted that the evidence of PWs 3 & 4 cannot be
called credible and cogent. PW 4 was related to the deceased.
There was no reason as to why the deceased would make any
disclosure to PW 3 about the assailants. Further, Section 34
has no application. Learned counsel for the State supported
the judgment.
6. There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has
to be shown when a plea of partiality is raised to show that the
witnesses had reason to shield actual culprit and falsely
implicate the accused. No evidence has been led in this regard.
7. Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The 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 proved 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 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. As observed in Ashok Kumar v. State of Punjab
(AIR 1977 SC 109), the existence of a common intention
amongst the participants in a crime is the essential element
for application of this Section. It is not necessary that the acts
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.
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8. As it originally stood, Section 34 was in the following
terms:
"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."
9. 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).
10. 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 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
enunciated 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 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. Pulla 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.
11. The above position was highlighted recently in Anil
Sharma and Others v. State of Jharkhand [2004 (5) SCC
679], in Harbans Kaur v. State of Haryana [2005(9) SCC 195]
and Amit Singh Bhikamsingh Thakur v. State of Maharashtra
[2007(2) SCC 310].
12. If the factual scenario as noted above is considered in the
background of legal principles set out above, the inevitable
conclusion is that Section 34 has been rightly applied.
13. So far as PW 3 is concerned he was the person who gave
water to the deceased while he was gasping for breath and
only he lent helping hand and tried to find out how the
injuries were sustained. The deceased persons told the witness
that they were given beatings near the temple of Peerji on the
road. He was also told who the assailants were. In that view
of the matter the judgment and conviction of the High Court
does not suffer from any infirmity to warrant interference.
14. We record our appreciation for the able manner in which
Mr. Shakeel Ahmed, learned Amicus Curiae assisted the
Court.
15. Appeal stands dismissed.