HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 10.04.2015 Delivered on 16.10.2015 Court No. - 34 Case :- CRIMINAL REVISION No. - 1126 of 1992 Revisionist :- Nankau Singh And Another Opposite Party :- State Of U.P. Counsel for Revisionist :- R.K. Saxena Counsel for Opposite Party :- A.G.A. Hon'ble Sudhir Agarwal,J.
1. The two revisionists Nankau and Pappu Singh are aggrieved by judgment and order dated 26.02.1991 passed by Sri D.K.Srivastava, IVth Assistant Sessions Judge, Kanpur Dehat convicting them under Section 307 read with 34 IPC sentencing each of them to undergo rigorous imprisonment for 5 years and fine of Rs.1,000/-. In case of non payment of fine, both the accused have to further undergo simple imprisonment of one year. The aforesaid judgment has been confirmed by Appellate Court vide judgment dated 23.6.1992 passed by Sri A.K.Roopanwal, Special Judge, (D.A.A.), Kanpur Dehat dismissing revisionists' criminal appeal no.10 of 1991.
2. The prosecution story, in brief, was that on 24.8.1988, complainant Sheo Ratan Singh was sitting at his door of the house near about 7 P.M. along with Devendra Singh, Suresh Singh and Jai Singh. The two revisionists came alongwith one Sughar Singh. The revisionists were armed with Pharsa while Sughar Singh was armed with a country-made pistol. They started hurling abuses on the complainant and his brother Narayan Singh Pradhan and said that they would kill them. The complainant's nephew Saroj Singh son of Ram Pal Singh came out of his residence and attempted to stop accused from abusing, whereupon Sughar Singh with an intention to kill, fired from his country-made pistol upon the nephew of complainant as a result whereof he sustained injury on the face. Hearing the gunshot sound, people from nearby area rushed to the spot and in the meantime all the three accused ran away from the site. The report of incident was lodged at 2 A.M. at P.S. Sheorajpur on 25.8.1998. The case was registered and investigation was entrusted to S.I. Ranvir Singh, who visited the spot, prepared site plan and recorded statement of witnesses under Section 161 Cr.P.C. The Charge sheet was filed against Sughar Singh on 6.9.1988 and against the two revisionists on 28.10.1988. The revisionists accused were charged under Section 307 read with 34 IPC. The trial of Sughar Singh was separated from trial of the two revisionists. The prosecution examined five witnesses i.e. Sheo Ratan Singh PW1, Saroj Singh PW2; Devendra Sinch PW 3; Ram Shiromani Shukla PW 4 and S.I. Ranvir Singh PW5.
3. The accused-revisionists, besides denying the charge, contended that they have been implicated falsely, did not adduce any other evidence. The Trial Court held them guilty and convicted vide judgment dated 26.02.1991 sentencing them with rigorous imprisonment for a period of five years under Section 307 IPC and also a fine of Rs.1,000/- each. The appeal preferred by revisionists was dismissed on 23.6.1992.
4. Sri R.K.Saxena, learned counsel appearing for accused revisionists contended that Section 34 IPC has no application in the case in hand and therefore, implicating accused-revisionists under Section 307 IPC read with Section 34 IPC is clearly illegal and illogical. He said that complainant's own case was that the two revisionists came armed with Pharsa but no injury is reported to be caused from Pharsa. Only Sughar Singh is stated to have fired with country-made pistol which, as alleged, he carried, and therefore, implication of revisionists is illegal.
5. The only question up for consideration "whether Section 34 is attracted in the case in hand and has rightly been applied by the Courts below".
6. Section 34 IPC reads as under :
"34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone.
7. As initially enacted, the words "in furtherance of the common intention of all" were not part of Section 34 but came to be introduced by Section 1 of Act XXVII of 1970. The reason for inserting such amendment was the observations made by Sir Barnes Peacock, CJ, in Queen Vs. Gora Chand, (1866) 5 Suth WR 45 (FB), holding that mere presence of a person at the scene of crime would not be sufficient to hold him liable to be implicated under section 34 IPC as it stood then, unless such presence was an act in furtherance of a common design.
8. Ordinary rule of criminal liability is that a person who actually commits an offence has the primary responsibility to suffer punishment for the same. Section 34 IPC, however, brings within the ambit of penal liability even those person(s) who have not actually committed crime but there existed a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Thus to attract Section 34, which infact enumerates one of the principle of constructive liability, two conditions must be satisfied : (i) There must be common intention to commit a criminal act; and (ii) There must be participation by all the persons in doing such act in furtherance of that intention.
9. In Gurdatta Mal Vs. State of Punjab, AIR 1965 SC 257 = (1965) 1 Cri LJ 242 (SC), it was held that criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34 IPC.
10. Joel Prentiss Bishop in "Commentaries on the Criminal Law", an American Jurist said that every person is responsible criminally for what wrong flows directly from his corrupt intentions; but no man, intending wrong, is responsible for an independent act of wrong committed by another. If one person sets in motion the physical power of another person the former is criminally guilty for its results. If he contemplated the result, he is answerable, though it is produced in a manner he does not contemplate. If he does not contemplate the result in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into action an indiscriminate power he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what might be presumed to have been his understanding of them, he is responsible. But, if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because, when it was done, he was intending to be a partaker with the doer in a different wrong.
11. Now the question would be what is 'common intention'. In Harjit Singh & Anr. Vs. State of Punjab, (2002) 6 SCC 739, the Court said that "common intention" is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute "common intention" to one or others involved in the crime. The subjective element in "common intention" therefore should be proved by objective test.
12. In order to attract Section 34 IPC, the Court should be able to draw an inference that result reached was concerted action of the person said to have been liable.
13. In Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SC 1413, the court construed Section 34 IPC and held that common intention within the meaning of section implied a prearranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of commission of the offence; but crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 34 read with specific provision under which the person is charged, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence.
14. A similar observation was also made in Shankarlal Kachrabhai & Ors. Vs. State of Gujarat, AIR 1965 SC 1260 by referring to a decision of Judicial Committee in Mahbub Shah Vs. King-Emperor, L.R. 72 I.A. 148. The Court said that the criminal act mentioned, in Section 34 IPC is the result of the concerted action of more than one person; if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself. The Court also explained the meaning of word "in furtherance of the common intention" and said as under :
"The Dictionary meaning of the word "furtherance" is "advancement or promotion". If four persons have a common intention to kill A, they will have to many acts in promotion or prosecution of that design in order to fulfill it. Some illustrations will clarify the point. Four persons intend to kill A, who is expected to be found in a house. All of them participate in different ways. One of them attempts to enter the house, but is stopped by the sentry and he shoots the sentry. Though the common intention was to kill A, the shooting of the sentry is in furtherance of the said common intention. So Section 34 applies. Take another illustration. If one of the said accused enters the room where the intended victim usually sleeps, but somebody other than the intended victim is sleeping in the room, and on a mistaken impression he shoots him. The shooting of the wrong man is in furtherance of the common intention and so, Section 34 applies. Take a third variation of the illustration. The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim, on a mistaken impression, shoots the twin brother. The shooting of the twin brother is also in furtherance of the common intention. Here also Section 34 applies. If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim. When the accused were shooting at Rama believing him to be Madha, they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha. They killed Rama because they believed that they were shooting at Madha. Mr. Chari argues, how can a mistake committed by one of the accused be in furtherance of a common intention ? For it is said that to commit a mistake was not a part of the common intention of the accused. But the question is not, as we have pointed out, whether the committing of a mistake was a part of the common intention, but whether it was done in furtherance of the common intention. If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance, it cannot possibly be in furtherance of the common intention for which others can be constructively made liable. But, on the other hand, if he kills B bona fide believing that he is A, we do not see any incongruity in holding that the killing of B is in furtherance of the common intention."
15. In this decision, the Court also referred to the Judicial Committee decision in Barendra Kumar Ghosh Vs. Emperor (1924) I.L.R. 52 Cal. 197 explaining the expression "criminal act" as under :
"A criminal act means that united criminal behavior which results in something for which an individual would be punishable if it were all done by himself alone that is, in a criminal offence."
16. In Hethubha alias Jithuba Madhuba and Ors. Vs. State of Gujarat, AIR 1970 SC 1266, the Court observed that dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. Prior concert and pre-arranged plan is the foundation of common intention to establish liability and guilt.
17. In Jai Bhagwan and others Vs. State of Haryana, AIR 1999 SC 1083, the Court said that to apply Section 34 IPC, apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.
18. The "common object" is different from "common intention". However, I do not propose to deal into this distinction for the reason that there is no application of Section 149 and therefore this Court is confined only to examine whether Section 34 IPC has rightly been applied or not and there was evidence of common intention or not. However, dealing with the said distinction in Dani Singh & Ors. Vs. State of Bihar, 2004 (13) SCC 203, the Court explained the term "common intention" and said that "common intention" to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert.
19. One should not be confused with the word "same or similar intention" with "common intention". To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. The prosecution has to lead evidence to show common intention from the act, conduct or other relevant circumstances of the case. In Bhaba Barma and Ors. Vs. The State of Assam, 1977 Cri.L.J. 1930, the Court observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him. The Court also observed that some of the accused persons did not commit any overt act would really be of no consequence.
20. Section 34 does not say "the common intention of all", nor does it say "and intention common to all". Under Section 34 the essence of 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. In Ch. Pulla Reddy & Ors. Vs. State of Andhra Pradesh, 1993 Cri.L.J. 2246, it was observed that 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. This decision has been followed in Anil Sharma & Ors. Vs. State of Jharkhand, AIR 2004 SC 2294.
21. To the same effect is the view taken in Mangu Khan & Ors. Vs. State of Rajasthan, AIR 2005 SC 1912 and Sunny Kapoor Vs. State (UT of Chandigarh), AIR 2006 SC 2242.
22. Now, in the light of the aforesaid exposition of law with respect to Section 34, this Court may examine, whether the necessary ingredients to constitute 'common intention' have been proved by the prosecution or not?
23. It is admitted position that both the accused accompanied Sughar Singh. The accused-revisionists were armed with Pharsa while Sughar Singh was armed with country-made pistol. They came to the residence of complainant Sheo Ratan Singh in the evening at around 7 PM on 24.8.1988. They all started abusing the complainant and his brother and also threatened that they would kill them. To restrain this process of abusing on the part of the accused and Sughar Singh, complainant's nephew Saroj Singh came out from inside the house and when tried to stop accused from abusing, Sughar Singh fired from his country-made pistol upon Saroj Singh, as a result whereof, he sustained injury on the face.
24. The accused-revisionists came to the residence of complainant with Sughar Singh, duly armed. It shows that there was a pre-concerted plan to threat and cause injury or otherwise to the complainant and his brother. They all started hurling abuses on the complainant and his brother, just reaching the complainant's residence. In my view, these facts clearly show a pre-concerted plan between the revisionists-accused and Sughar Singh but ultimately the actual injury was inflicted by Sughar Singh by firing from his country-made pistol. The accused-revisionists could not get any occasion to use their Pharsa. The factum that all were duly armed at the time when reached the house of complainant and offended the complainant and his brother, jointly shows an anterior plan between them. In furtherance thereof, all subsequent act have taken place. The Courts below have rightly held that mere fact that no injury from Pharsa was inflicted which was carried by the accused-revisionists, by itself, would not absolve them of attracting Section 34 IPC, and I find myself in agreement therewith.
25. The decision in Diwan Singh & Ors. Vs. State of U.P., ACC 1991 Suppl. 166, relied by counsel for the revisionists would not help the revisionists for the reason that the case was decided on its own facts, inasmuch as, there was no evidence to show a prior concerted, pre-planned action on the part of the accused. In para 9 of the judgment, the Court said :
"The role of following a few steps after the alleged incitement by Darshan Singh and that too without using the lathi with which they were armed excludes the possibility of sharing the common intention of killing Kikkar Singh."
26. No other point has been argued.
27. Criminal revision has therefore, no merit. Dismissed.
28. The accused-revisionist namely Nankau Singh and Pappu Singh are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodged in jail to serve out the sentence passed against them. Compliance shall be reported within two months.
29. Certify this judgment to the lower court immediately.
Order Date :- 16.10.2015 KA