Under Section 34 of the IPC a person must be physically present at the actual commission of the crime
Subed Ali and Ors Vs State of Assam
CRIMINAL APPEAL NO.1401 OF 2012
About/from the judgment:
The Supreme Court held that Under Section 34 of the IPC a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.
The conviction of the appellants under Section 302/34 of the Indian Penal Code (for short, “I.P.C.”) by the Sessions Judge, North Lakhimpur, has been affirmed by the High Court, sentencing them to life imprisonment along with fine and a default stipulation. Thus, the present appeal by the appellants. The prosecution alleged that the two deceased were assaulted while they were returning from the market on bicycles along with others. 1st deceased died on the spot. The 2nd deceased died in the hospital during the course of treatment the same night. Originally there were five named accused persons. Accused nos.3 and 5 have been acquitted giving them the benefit of doubt. We are not informed of any appeal preferred against their acquittals.
Submissions on behalf of the Appellant
The counsel for the appellants submitted that if two of the accused have been acquitted giving them the benefit of doubt on basis of the same evidence, the conviction of the appellants is unjustified and they too are entitled to acquittal on the benefit of the doubt. There are several inconsistencies in the evidence of the eyewitnesses P.Ws. 5, 6, 7, and 9. The occurrence had taken place after darkness had engulfed, making identification doubtful relying on the cross-examination of P.W.6. P.W.1 deposed that he had been informed by Babulal and Asgar Ali that the appellants were the assailants. The prosecution has not examined either of them. The eyewitnesses have deposed of assault upon the two deceased by appellants nos.2 and 3 only. There is no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. Thus, there is no material to infer common intention with regard to appellant no.1. Appellants nos.2 and 3 are therefore individually liable for their respective assault upon the two deceased. The recoveries attributed to the appellants have been disbelieved. It was lastly submitted that no charge had been framed under Section 34 IPC.
Submissions on behalf of the respondent
The counsel for the State submitted that the eyewitnesses P.Ws. 5, 6, 7, and 9 are consistent with regard to the participation of the appellants in the assault. The acquittal of the two co-accused on the benefit of the doubt can be of no avail to the appellants in view of the nature of the evidence available with regard to them. Common intention is clearly established by the fact that the appellants were armed and lay in wait for the two deceased who were accosted while returning from the market and the assault followed leading to the death of the two.
In the case of Surender Chauhan vs. State of Madhya Pradesh, (2000) 4 SCC 110, it was noticed that the absence of a positive act of assault was not a necessary ingredient to establish common intention observing:¬
“Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is the simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them….”
Coming to the facts of the present case, the appellant no.1 lay in wait along with the other two appellants who were armed. Appellant no.1 stopped the two deceased who was returning from the market. The assault commenced after the deceased had halted. That there was some dispute with regard to money is apparent from the evidence of the witnesses. Abdul Barek died on the spot as a result of the brutal assault. Abdul Motin was injured in the first assault upon him by appellant no.3, after which he tried to flee. Appellant no 1 along with the other accused chased him, caught hold of him near the house of Mamud Ali where he was brutally assaulted. Abdul Motin was then dragged by the accused persons to the place where Abdul Barek lay motionless. To our mind, no further evidence is required with regard to the existence of common intention in appellant no.1 to commit the offence in question. We, therefore, find no reason to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.
Resultantly, The Court found no reason to interfere with the conviction and sentence of the appellants. The appeal is dismissed.
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