IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Sapat & Another Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.499/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 31-3-2004 in Sessions Case No.150/2003 passed by Shri Iduddin, RHJS, Additional Sessions Judge (Fast Track) No.1, Bharatpur Camp Deeg. Date of Judgment: February 18, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Mr. Biri Singh Sinsinwar] for the appellants. Mr. Kamlednra Sihag ] Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Sapat and Mehboob, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) No.1 Bharatpur Camp Deeg, who vide judgment dated March 31, 2004, convicted and sentenced them as under:- Sapat u/s.302 and Mehboob U/s.302/34 IPC: Both to undergo imprisonment for life and fine of Rs.1000/- in default to further suffer one month simple imprisonment. 2. The prosecution case is scripted like this:- On October 8, 1996 informant Muveen (Pw.1) submitted a written report (Ex.P-2) at Police Station Sikari to the effect that on October 6, 1996 around 10 AM while his brother Ramzan was tying buffaloes Sapat and Mehboob came over there and started hurling abuses. Sapat inflicted Pharsi- blow on the head of Ramzan and Mehboob gave lathi- blow on his abdomen. Ramzan became unconscious. He was referred for treatment to Jaipur where he died on October 7, 1996. On that report case under sections 302 and 34 IPC was registered and investigation commenced. Statements of witnesses under section 161 CrPC were recorded accused were arrested necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1, Bharatpur Camp Deeg. Charges under sections 302 and 34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 14 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. Four witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record. 4. As per Post Mortem report (Ex.P-17) following ante mortem injuries were found on the dead body:- 1. Lacerated wound 5cm x 1cm x bone deep with dry clotted blood present on Lt. parietal region near mid line. It is parallel to sagital sutur. 2. Abrasion 2.5cm x 1.5cm (Lt.) hypochonobia region. 3. Multiple abrasion of size 1 x 1cm to ½ x ½ cm on arm & forearm Rt. elbow dorsum. 4. Abrasion ½ x ¼cm (Rt.)hand dorsum unla aspect. In the opinion of Dr. D.K. Sharma (Pw.12) the cause of death was injuries to brain & skull. 5. Muveen (Pw.1) in his deposition stated that on October 6, 1996 around 10 AM while his brother Ramzan was tying buffaloes Sapat and Mehboob armed with Pharsa and lathi came over there and started hurling abuses and asked Ramzan as to why he tilted the Med (boundary). Sapat then inflicted blow with Pharsi from the reverse side on the head of Ramzan, as a result of which he fell down and Mehboob inflicted blows with on his ribs and then both fled away. Ramzan became unconscious and removed to hospital at Nagar from where he was referred to Alwar and then to Jaipur where he died on October 7, 1996. In cross examination his testimony could not be shattered. 6. Having analysed the material on record, we notice that injury on head of the deceased from the blunt side of Pharsi has been attributed to appellant Sapat and the fact that appellant Mehboob inflicted lathi blows on the ribs of the deceased does not find corroboration from the post mortem report since no injury on the rib-cage of the deceased was found. 7. We have therefore to adjudge as to whether the appellant Mehboob can be held vicariously liable with the aid of section 34 IPC. Section 34 IPC recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. A common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. 8. In Gopi Nath v. State of UP (2001)6 SCC 620, the Apex Court indicated that:- “Section 34 IPC lays down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action – be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section is, therefore, attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre- concerted or prearranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inference deducible from the circumstances of each case.” 9. In Suresh v. State of UP (2001)3 SCC 673, the Apex Court had occasion to consider section 34 IPC and it was held thus:- “The dominant feature for attracting Section 34 IPC is the element of participation in absence resulting in the ultimate “criminal act”. For appreciating the ambit and scope of S.34, the preceding Sections 32 and 33 have always to be kept in mind. Under S.32 acts include illegal omissions. Section 33 defines the “act” to mean as well a series of acts as a single act and the word “omission” denotes as well a series of omissions as a single omission. The “act” referred to in the later part of S.34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of S.34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under S.34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention.” 10. It could not be established by the prosecution beyond reasonable doubt that appellant Mehboob shared common intention with appellant Sapat in making assault on Ramzan. 11. Since Pharsi was used from reverse side by Sapat in inflicting single injury, it can be presumed that Sapat had knowledge that the blow inflicted by him is likely to cause death of Ramzan, even though he had no intention of causing death or such bodily injury as is likely to cause death. Since Sapat did not behave in cruel and unusual manner we find him guilty of the offence punishable under Part II of Section 304 IPC. The charge under section 302/34 IPC is not found established against appellant Mehboob. 12. For these reasons, we dispose of the instant appeal in the following terms:- (i) We allow the appeal of appellant Mehboob and acquit him of the charge under section 302/34 IPC. The appellant Mehboob is on bail, he need not surrender and his bail bonds stand cancelled. (ii) We partly allow the appeal of appellant Sapat and instead of section 302 we convict him under section 304 part II IPC and looking to the fact that the appellant has already undergone confinement for a period of more than five years and seven months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Sapat, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. (Guman Singh),J. (Shiv Kumar Sharma)J. arn/