IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.686 of 2002 [Against the judgment and order dated 25.7.2002 passed by the learned Additional Sessions Judge, FTC-1, Sitamarhi in Cr. Appeal No. 44 of 2001/ 1 of 2002] ======================================================= Tarannum Ara, daughter of Md. Jamshed Ali, resident of village- Mehsaul Got, Police Station and District- Sitamarhi. …Informant. Petitioner. Versus 1. The State Of Bihar 2. Md. Azimullah, son of Md. Shadique 3. Md. Tamijuddin, son of Md. Shadique 4. Md. Tabarak, son of Md. Jan Opposite party nos. 2 to 4 are resident of village- Mehsaul Got, Police Station and District- Sitamarhi. .. Accused-Opposite Parties. ======================================================= Appearance : For the Petitioner : Mr.V.R.P. Singh, Adv. :Mr. Neelam Prasad. For the State :Mrs. Indu Bala Pandey, APP. For O. Parties :Mr. Ravindra Nath Dubey, Adv. :Mr. Sanjay Kumar Singh, Adv. :Mr. Sanjeet Kumar Tiwary, Adv. ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The informant-petitioner has preferred this revision application against the judgment and order dated 25.7.2002 passed by the learned Additional Sessions Judge, FTC- 1, Sitamarhi in Cr. Appeal No. 44 of 2001/ 1 of 2002 by which the judgment of conviction Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 2 and order of sentence dated 21.7.2001 passed by the learned Judicial Magistrate, 1st Class, Sitamarhi in G. R. No. 279 of 1991, Trial No. 276 of 2001 has been set aside and the appeal has been allowed. 2. The prosecution case, in brief, is that on 15.3.1991 at about 7.30 p.m. all the accused including O. P. No. 2 , 3 and 4 came to the door of the informant and they were abusing. At that time, the informant was reading and after hearing the filthy language she opened the window of her house and told them that no one was present in the house. Thereafter, the accused Tamijuddin abused her and asked the co-accused to drag her out from the house and kill her. When the persons of her family would come, they would also be seen. Thereafter, Kamrul caught hold of the hair locks of the informant and accused Kamare Alam snatched her gold chain from her neck and the accused Rafi Ahmad threw acid on her face causing injury. When she raised alarm, her mother Hamira Khatoon, Master Uvais, Md. Abbas and others came there, thereafter the accused fled away. She was taken to the Sadar Hospital Sitamarhi for treatment where her fard beyan Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 3 was recorded by the police at 11.45 pm.. Accordingly, Sitamarhi P. S. Case No. 66 of 1991 was instituted for the offence punishable under Sections 341,324,379,307/34 I.P.C. After investigation charge-sheet was submitted under those sections but the cognizance was taken against all the six accused under Sections 326/34 I.P.C. During trial accused Kamare Alam died. The trial of Md. Kamarul and his son Rafi Ahamad was separated. The remaining accused Md. Azimullah, Md. Tamijuddin and Md. Tabarak opposite party nos. 2 to 4 faced trial and they were convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.2000/- each under Section 326/34 I.P.C. and in case of non- payment of fine further three months simple imprisonment each vide judgment and order dated 21.7.2001 passed by the learned Judicial Magistrate, 1st Class. Thereafter, against that order opposite party nos. 2 to 4 filed Cr. Appeal No. 44 of 2001 which has been allowed and the conviction and sentence passed by the learned trial court has been set aside. 3. The main contention of learned counsel for the petitioner is that all the Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 4 accused named in the FIR came to the house of the informant with common intention and they were abusing. The informant was reading in her house she opened window and told them that no one was present in the house. Thereafter, accused Tajimuddin asked the co-accused to drag her out from the house and kill her and they would also see the other members, if they come. Thereafter, other accused have committed overtact as stated in the prosecution case. Certainly, there was common intention and as such all the accused had rightly been convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.2000/- each under Sections 326/34 I.P.C. He has further submitted that 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 support of his contention he has referred to the decision in the case of Rangnath Sharma vs. Satendra Sharma & Ors., reported in AIR 2009 SC (Supp) 822 wherein in paragraph 12 it has been held as follows:- “12. The next question which arises for our consideration is Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 5 whether Pankaj Sharma and Ramakant Sharma can be held to be jointly liable for the above- mentioned offences. Section, 34 I.P.C. 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 minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is 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. 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 Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 6 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 pervading amongst all accused in order to attract the provision. 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 specific overt act on the part of the accused, when it is shown that there was common intention and meeting of mind.” 4. Learned counsel for the petitioner further submits that in view of the aforesaid decision the order passed by the learned appellate court is unwarranted and not in accordance with law. 5. Learned counsel for opposite party nos. 2 to 4 has submitted that there is no specific allegation against the opposite parties to have committed any overtact. The persons who have committed overtact have not been tried in this case their trial has been separated. He has further submitted that there is no application of Section 34 I.P.C. in this case. In support of his contention, he has relied upon the decisions in the case of Hare Krishna Singh & Ors. vs. State of Bihar; Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 7 reported in (1988) 2 SCC 95 and in the case of Ramashish Yadav & Ors. vs. State of Bihar, reported in 2000 Cri. L. J. 12. In these decisions it has been held that common intention requires pre arranged plan and presupposes prior concerned. In this case it has been found that there was no prior concern as such the accused who had not given the blow to the deceased were not held guilty as they had not shared common intention. With great respect in my opinion these two decisions are not helpful to accused. 6. It appears from the material on the record that in this case all the accused have come to the place of occurrence by meeting their mind having common intention and thereafter at the instance of co-accused Tajimuddin the further overtact has been done by other accused. All the time accused opposite parties were there. Since the criminal act has been done in furtherance of a common intention of the persons who joined in committing the crime will also be held liable for the overtact committed by any one of them. The true concept of Section 34 I.P.C. is that if two or more persons intentionally do an act Patna High Court CR. REV. No.686 of 2002 dt.23-11-2011 8 jointly, the position in law is just the same as if each of them had done it individually by himself. It is not necessary that the acts of the several persons charged with the commission of an offence jointly must be the same or identically similar. The acts may be different in character but, must be actuated by one and the same common intention pervaded amongst all accused which has been found in this case. 7. Considering the facts and circumstances stated above, in my opinion, the impugned order passed by the learned Additional Sessions Judge, FTC-1 is not fit to be sustained. It is set aside and the mater is remanded to the learned appellate court for fresh consideration and to pass the order in accordance with law. 8. In the result, this application is allowed. Patna High Court Dated 23rd of November 2011 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)