Chaman &Amp; Anr vs State Of Uttaranchal on 1 December, 2008

       IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 409 OF 2007

  Chaman & Anr. ....Appellants    Versus

  State of Uttaranchal ....Respondent    JUDGMENT

  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 "TU BAHUT BADA SAAND BANTA HAI,
RUK TUJHE  MAJAA CHAKHATAA HUN" (You think yourself to be a big bull, wait
I  will teach you a lesson). Thereafter, on the same day, at about 1:30 A.M. in
the intervening night of 9th/10th of July, 1985, when Jaswant-deceased, his
father Chamela Ram (P.W. 2), brother Data Ram (P.W. 1), were sleeping in  the
verandah of their house, they woke up on hearing the barking of their    2

 dog and flashed their torches and saw that appellants Naresh, (armed with a
gun), Vinod, (armed with a KHUKRI-a sharp edged weapon), Chaman,  (armed with
SAINTA-a sharp edged weapon) and Khushi Ram, (armed with  a country made
pistol), entered their house. Appellant Chaman, asked  Jaswant to stand up. On
which, Jaswant along with Data Ram, got up from  their cots. Meanwhile, Chamela
Ram (P.W.2) raised an alarm "BACHAO!  BACHAO!! (Save! Save!!). Naresh
pointed the gun at him. Chamela Ram  caught hold the barrel of the gun to save
himself. On this, appellant Vinod  gave him blows with the butt of Khukri.
Meanwhile, appellant Chaman  struck a blow with SAINTA (a sharp edged weapon) on
the person of  Jaswant, who ran to save his life. However, Jaswant could not go
far and  fell down near the house of Nain Singh. By then, witnesses Bhuru
(P.W.5),  Ramu, Isam (P.W.6), Nakli (P.W.7) and Nain Singh had reached there.
They  also flashed their torches and saw that appellant Vinod, struck a blow
with  the Khukri on injured Jaswant. Thereafter, all the four appellants ran
away  from the place of occurrence. Jaswant Singh, succumbed to the injuries on
the spot, near the house of Nain Singh. A written report (Ext. A-1) of the
incident was got scribed by Raj Kumar (P.W. 4) by Chamela Ram (P.W. 2),  which
was lodged against all the four accused persons with the police  station Doiwala
on 10.07.1985, at about 5:30 A.M. The distance between    3

 the place of occurrence (Chandi Plantation) and the police station is 15 kms.
On the basis of said report (Ext. A-1), its check report (Ext. A-18) was
prepared at the police station and necessary entry was made in the general
diary, a copy of which is Ext. A-17. Crime No.117 of 1985 was registered
against all the four accused persons, for the offence allegedly committed by
them under Section 302 of I.P.C. P. W. 8 H.C. Panda, Sub Inspector, after
aforesaid report was lodged with the police station, proceeded to the place  of
occurrence on 10.07.1985 and took the dead body of Jaswant in his  possession
and prepared the inquest report (Ext. A-4). He also prepared site  plan (Ext.
A-5), filled police form No.13 (Ext. A-6), prepared letter (Ext. A-  7)
addressed to Chief Medical Officer, requesting for post mortem  examination of
the dead body. H.C. Pandey, Sub-Inspector (P.W.8) also  took blood stained
`BANIYAN' (undershirt) Ext.8 in his possession and  prepared memo (Ext. A-9). He
further took into his possession simple soil  (Ext. 12) and blood stained- soil
(Ext. 13) and prepared memo (Ext. A-10).  Autopsy was conducted by Dr. A.S.
Khanuja (P.W. 11) on the very day i.e.  on 10.07.1985 at 4:00 P.M, on the dead
body of the deceased, prepared  post-mortem examination report (Ext. A-26) and
opined that the death has  been caused due to shock and haemorrhage, resulting
from injury over the  lung. Investigating Officer also recovered the torches, in
the light of which    4

 the crime was witnessed by the witnesses. After recording the statements of
the witnesses and on completion of the investigation, the Investigating  Officer
submitted charge sheet (Ext. A25) before the Magistrate concerned.  Since
accused persons pleaded innocence, trial was held.

3. Relying on the evidence of eye witnesses PWs 1, 2, 5 and 7 the Trial  Court
found the accused persons guilty and sentenced them as aforesaid.

4. In appeal, the main ground was that the offence has not been made  out in
respect of the accused persons. It was further stated that one of the  accused
persons was a juvenile. It was also submitted that Section 34 has no
application.



5. Reliance is placed on a certificate dated 20.8.2008 to contend that one  of
the accused persons was a juvenile. The same has not been brought on  record
earlier. In any event, the certificate came into the existence much  after the
completion of the trial and disposal of the appeal by the High  Court. We,
therefore, are not inclined to take note of the certificate which is  pressed
into service.

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 6. 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    6

 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.

7. 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."



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 in the existence of a common
intention  animating the accused leading to the doing of a criminal act in
furtherance  7

 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.



10. 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].

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 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.
.................................................J. (Dr. ARIJIT PASAYAT)

 ...............................................J.

                                (Dr. MUKUNDAKAM SHARMA)

New Delhi,

December 1, 2008

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