The single judge bench of the Jharkhand High Court held that unless there is an element of participation, mere presence at the place of occurrence will not be sufficient for applying Section 34 of the Indian Penal Code. Common intention requires prior consent or preplanning. Evidence regarding the common intention to commit an offense should be clear and cogent.
Brief facts
The factual matrix of the case is that the dispute between the Appellant and the informant arose on a trivial issue during the distribution of Prasad. It was alleged that Appellant Santosh Mahto shot Bhagirath Mahto and Appellant Banmali Mahto was also present along with him at the time of the incident. The case was registered for the offenses under Sections 307/34 and Section 27 of the Arms Act against both appellants. The trial court convicted the Appellants and aggrieved by this, the present appeal is filed.
Contentions of the Appellant
The Appellant contended that there exists no evidence against Bhagirath Mahto that he participated in the incident. Furthermore, It was contended that section 34 of the IPC can’t be invoked by mere presence. Also, the testimonies of these two eyewitnesses are not corroborated by the medical evidence that in the injury report, no exit wound was found on the body of Bhagirath Mahto.
Observations of the court
The Hon’ble Court observed that the injured stated the name of the appellant is the assailant who had fired at him and it is well settled that the testimony of an injured witness deserves a higher degree of credence because normally the injured will not falsely implicate any other person by exonerating the main accused.
It was furthermore observed that merely being present at the scene of the incident would not be enough to invoke Section 34 of the Indian Penal Code unless there is evidence of involvement. Prior consent or planning is necessary for common intention. Evidence of common intention to conduct an offense must be convincing and unambiguous. A shared purpose is a psychological reality that must be established, and it is possible to ascertain its existence by deriving conclusions from the proven facts. Determining whether the accused had the same purpose as the primary accused requires taking into account the entirety of the facts.
The court noted that Section 38 of the Indian Penal Code is the converse of Section 34 of the IPC. It stipulates distinct punishments for various offenses in situations when many individuals are involved in the conduct of a criminal act, regardless of their intentions. When many people join to commit a crime and each person has a distinct intention or level of knowledge when doing the joint act, Section 38 is applicable. The section states that the degree of culpability for the completed crime may vary depending on the part that each accused person contributed to the commission of the criminal conduct; it makes no mention of knowledge or common or other intentions.
Based on these considerations, the court set aside the judgment of conviction against Bhagirath Mahto.
The decision of the court
With the above direction, the court allowed the appeal.
Case title: Santosh Mahto V. The State of Jharkhand
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No: Cr. Appeal (SJ) No.903 of 2012
Advocate for the Appellant: Mr. Shekhar Pd. Sinha, Advocate
Advocate for the State: Mr. Santosh Kr. Shukla, APP Mr. Abhay Kr. Tiwari, APP
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