An act, whether overt or covert, is indispensable to be done by a co-accused to be liable under Section 34 of IPC: Madhya Pradesh High Court

 CRA No. 542 2003 State of MP vs. Ram Outar and another HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR RAJEEV KUMAR SHRIVASTAVA JJ Criminal Appeal No. 542 2003 State of Madhya Pradesh Ram Outar and Subhash Shri B.P.S.Chouhan learned Public Prosecutor for the appellant Shri R.K.Singh Kushwaha learned counsel for the respondents J U D G E M E N T Per Rajeev Kumar Shrivastava J Challenge in this appeal filed by the State appellant under Section 378 of the CrPC is to the judgement dated 4.2.2003 passed by Sixth Additional Sessions Judge Bhind in Sessions Trial No.347 2000 whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148 302 149 of the IPC. Vide the judgement impugned in the present appeal the trial Court has acquitted accused Subhash and Ramavtar from the offences under Sections 148 and 302 read with Section 149 of IPC but has convicted the accused appellant Ashok under Section 302 read with Section 34 of IPC for the murder of Mataprasad and under Section 302 read with Section 34 of IPC for the murder of Tejraj considering the fact that there was common intention Against conviction and sentence accused Murari and Ashok has CRA No. 542 2003 State of MP vs. Ram Outar and another filed separate Criminal Appeal No. 196 2003. As per the request of learned counsel for the parties both the appealsare being decided simultaneously by passing separate judgment in each appeal. It is further pertinent to note that the appeal filed by Kishan Dutt Ramvaran and Ramkishore against their conviction has been delinked from the present appeal as the aforesaid accused persons were absonder and they were separately tried and judgment was passed on 23.1.2019. The facts necessary to be stated for disposal of the instant appeal are that as per prosecution version on 16.10.1999 deceased Mataprasad and Tejram left their house at about 5 6 am for the purpose of ploughing the field asking the family members to bring breakfast at the field itself. Harendra Kumarand Shailendra son and daughter of deceased Tejram respectively and Dharmendra son of deceased Mataprasad reached at the field in order to serve the breakfast. At that time the deceased Mataprasad and Tejram were cutting grass. In the meantime accused persons reached there by their tractor trolley Accused Subhash was driving the tractor and other accused persons were armed with guns etc. Seeing them Tejram and Mataprasad tried to run away. When they started their tractor all the accused persons surrounded them and Murari fired a gunshot which hit Mataprasad and Mataprasad fell down from the tractor Harendra Shailendri and Dharmendra being afraid of that hide themselves in the field of Bajra. All the accused persons were beating Mataprasad and Tejram. Shriprakash Ramkumar Jaiprakash and Sitaram working in their adjoining fields reached there. After the incident accused persons went away. In the incident Mataprasad and Tejram died on the spot. CRA No. 542 2003 State of MP vs. Ram Outar and another First Information Report was lodged on 16.10.1999 at Police Station Pawai District Bhind by Harendra Kumarand Shriprakashhave stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co accused persons and they were saying “maaro bachne na paaye” CRA No. 542 2003 State of MP vs. Ram Outar and another On perusal of trial Court s judgment it is apparent that the trial Court has acquitted co accused Murari and Ashok from the charges of section 148 of IPC. As per prosecution PW 4 Harendra Kumar who lodged the FIR Ex. 9 was eye witness and immediately after incident Harendra Kumar had lodged the report hence supported the story of prosecution but from the statement of Harendra Kumar it is not reflected that the accused Subhas had participated in the incident. There was no overt act on the part of Subhash and Ram Outar. The trial Court has convicted accused Ashok with the help of Section 34 of IPC Section 34 of Indian Penal Code runs as under : “34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone.” Section 34 of the Indian Penal Code recognises the principle of vacarious liability in criminal jurisprudence. A bare reading of this Section shows that the Section could be dissected as follows Criminal act is done by several persons Such act is done in furtherance of the common intention of all and Each of such persons is liable for that act in the same manner as if it were done by him In other words these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused the third is the consequence. Once the criminal act and common CRA No. 542 2003 State of MP vs. Ram Outar and another intention are proved then by fiction of law criminal liability of having done that act by each person individually would arise. The criminal act according to Section 34 I.P.C. Must be done by several persons. The emphasis in this part of the Section is on the word done . It only flows from this that before a person can be convicted by following the provisions of Section 34 that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must therefore be a participant in the joint act which is the result of their combined activity. The Section does not envisage a separate act by all of the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted the purpose of Section 34 shall be rendered infructuous Section 34 is intended to meet a situation wherein all the co accused have also done something to constitute the commission of a criminal act. Even the concept of presence of the co accused at the scene is not a necessary requirement to attract Section 34 e.g. the co accused can remain a little away and supply weapons to the participating accused can inflict injuries on the targeted person. Another illustration with advancement of electronic equipment can be etched like this One of such persons in furtherance of the common intention overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. The act mentioned in Section 34 I.P.C. need not be an overt act even an illegal omission to do a certain act in a certain situation can amount to an act e.g. a co accused standing near the victim face to face saw an CRA No. 542 2003 State of MP vs. Ram Outar and another armed assailant nearing the victim from behind with a weapon to inflict a blow. The co accused who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim Such omission can also be termed as an act in a given situation Hence an act whether overt or covert is indispensable to be done by a co accused to be fastened with the liability under the Section But if no such act is done by a person even if he has common intention with the others for the accomplishment of the crime Section 34 I.P.C. cannot be invoked for convicting that person This Section deals with the doing of separate acts similar or diverse by several persons if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself for that act and the act in the latter part of the Section must include the whole action covered by a criminal act in the first part because they refer to it. This Section refers to cases in which several persons both intend to do and do an act. It does not refer to cases where several persons intended to an act and some one or more of them do an entirely different act. In the latter class of cases Section 149 may be applicable if the number of the persons be five or more and the other act was done in prosecution of the common object of all. In Suresh Sankharam Nangare vs. State of MaharashtraSCALE 345] it has been held that “if common intention is proved but no overt act is attributed to the individual accused section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent section 34 cannot be involved. In other words it requires a pre arranged plan and pre supposes prior concert therefore there must CRA No. 542 2003 State of MP vs. Ram Outar and another be prior meeting of minds.” In Shyamal Ghosh vs. State of West Bengalit is observed that “ Common intention means a pre oriented plan and acting in pursuance to the plan thus common intention must exist prior to the commission of the act in a point of time.” In Mrinal Das vs. State of Tripurait is held that “the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a In Ramashish Yadav v. State of Biharit is observed that “it requires a pre arranged plan and pre supposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concert.” Mainly two elements are necessary to fulfill the requirements of Section 34 of IPC. One is that the person must be present on the scene of occurrence and second is that there must be a prior concert or a pre arranged plan. Unless these two conditions are fulfilled a person cannot be held guilty of an offence by the operation of Section 34 of IPC. Kindly see Bijay Singh v. State of M.B.CRA No. 542 2003 State of MP vs. Ram Outar and another Administration)it has been observed that “by merely accompanying the accused one does not become liable for the crime committed by the accused within the meaning of Section 34 I.P.C.” There was land dispute between the members of a family as a result of which deceased persons were attacked by the accused persons in which one accused stabbed both the deceased persons and other caused simple injuries with a stick. It was held that the conviction of both the accused under Section 34 read with Section 302 IPC was not proper. Other accused was convicted under Section 324 of IPC. Kindly see Rajagopalswamy Konar vs. State of Tamil Naduit is observed that “the overtact on the part of accused could not be proved and it was held that the order of the conviction was not proper.” From perusal of the record it is evident that Dr O.P.Kashtwar has stated that on 16.10.1999 Constable No.3 Vishambhar Dayal of Police Station Pawai had brought the body of deceased Mata Prasad S o Dashrath R o Birgawa. Post mortem of body of Mataprasad was done and vide post mortem report following injuries were found on the body of deceased Mataprasad : Lacerated wound 4cm x 4cm x muscle deep on left side of neck below lobule of left ear blackening around wound present Lacerated wound 4cm x 4cm x muscle deep margin everted blunt probang could be passed through injury No.(i) to injury No.(ii) iii) Lacerated wound 2.5cm x 2cm. Oval in shape over right side of chest at right steno CRA No. 542 2003 State of MP vs. Ram Outar and another clavicle joint margin invert blackening present over the wound Lacerated wound 15cm x 12cm x muscle deep on right side upper scapula region muscle tissues coming out ribs No.4 5 6 were fractured. Thoracic cavity was filled Lacerated wound 2.5cm x 2cm posterior over rear of neck blackening around wound Lacerated wound 3cm x 2cm over right side back of chest margin everted vii) Lacerated wound 12cm x 12cm x muscle deep over middle of left forearm and one third part of muscle absent. The aforesaid injuries were anti mortem injuries and were caused prior to 18 hours of death. The cause of death was shock due to excessive external and internal bleeding owing to injuries over the body. On the same day Dr. O.P.Kashtwarhas also conducted post mortem of deceased Tejram S o Dashrath R o Village Birgawa and found following injuries on the body of deceased Tejraj vide post mortem reportand wound banks The aforesaid injuries were anti mortem and were caused prior to 18 hours of death of deceased. The cause of death was shock due to excessive external and internal bleeding owing to injuries over the body Dr. Kashtwarhas also stated that on 8.3.2000 CRA No. 542 2003 State of MP vs. Ram Outar and another S.O. Police Station Pawai sent a query report wherein he informed the police that the injuries found over bodies of deceased Mataprasad and Tejram were caused by firearm. Injuries No.(i) iii) andwere entry wounds and injuries No.(iv) andandwere entry wounds and injury No.(iii) was exit wound found over the body of deceased Tejram. The foreign bodies found in the body of Mataprasad and Tejram were sealed by him and handed over to the Police Constable. The death of deceased Mataprasad and Tejram was due to gunshot injury. During trial prosecution witnessNo.1 Ramlal Constable who is the witness to seizure memoproved the recovery of metal particles extracted from the body of the deceased Mataprasad and Tejram. Shriprakashthe Eye witness Rampujanand Sukhdev Sharmaare the witnesses of Ex.P 6 spot map Ex.P 7 and P 8 seizure memos whereby soil stained with blood two covers of 12 bore cartridge and 2 brass cover of 315 bore cartridges. Harendra Kumar Sharma PW 4) eye witness Dr. O.P.Kashtwar who did postmortem of the bodies of deceased Mataprasad and Tejram Ram Kumar Jaiprakash Sharma and Shailendri PW 9) who are the eye witnesses were examined P.K.ChaturvediStation Officer Police Station Surpura who investigated the matter Keshav Singh TomarHead Constable who lodged FIR J.D.Verma who recorded statements under Section 161 of CrPC of witnesses Shriprakash Ramkumar Jaiprakash Mahesh Shrivastava the then S.O. Police Station Pawai were examined. On the basis of statements given by the aforesaid witnesses the trial Court convicted and sentenced Murari and Ashok as CRA No. 542 2003 State of MP vs. Ram Outar and another aforesaid. Eye witnesses of this case namely Shriprakash Ramkumar Jaiprakash and Sitaram are the independent witnesses and Harendra Kumarand Shailendriare son and daughter of deceased Tejram. Another witness Dharmendra who is the son of deceased Mataprasad has not been examined ShriprakashRamkumarJaiprakashhave specifically stated that Murari caused gun shot injury on the chest of Mataprasad and also caused gunshot injury on the head of deceased Tejram and accused Ashok was also having 12 bore double barrel gun. Sitaram who is also said to be the eye witness has not been examined by the prosecution and the statements given by the aforesaid prosecution witnesses remained unrebutted in cross examination The Eye witness Harendra lodged the FIR Ex.P 9). Immediately after the incident FIR has been lodged but from the statement of PW 4 Harendra it is not reflected that the accused Subhash had participated in the incident. Besides above from the prosecution evidence itself it is apparent that there is lack of evidence requiring to make the accused Ram Outar and Subhash liable with the aid of Section 34 I.P.C. Furthermore prosecution has failed to prove any overt act on the part of present respondents Ram Outar and Subhash In the light of above annunciation of law it is clear that in the case in hand the trial Court has acquitted the other co accused from the charges of Section 148 of IPC. Therefore with the aid of Section 34 the co accused who are respondents in this case namely Ram Outar and Subhash have been acquitted and as discussed above no overt act on the part of the present respondents is proved. Therefore in the light of aforesaid observations we find no merit in the present appeal against CRA No. 542 2003 State of MP vs. Ram Outar and another acquittal. 27. Consequently the appeal filed by appellant State u s. 378 of the Cr.P.C against acquittal of present respondent Ram Outar and Subhash is dismissed and impugned judgment of trial court regarding aforesaid respondents is affirmed. Respondents are on bail. Their bail bonds are discharged and in future they need not to appear before Registry of this court in connection to this appeal 28. With a copy of this judgment the record of the trial court be sent back immediately Judge Judge (Rajeev Kumar Shrivastava

Summary: From the prosecution evidence itself it is apparent that there is lack of evidence requiring to make the accused liable with the aid of Section 34 I.P.C. Furthermore, prosecution has failed to prove any overt act on the part of present respondents. This was said in the case of The State Of Madhya Pradesh Thr vs Ram Autar [Criminal Appeal No. 542/2003] by Justice G.S.Ahluwalia and Justice Rajeev Kumar Shrivastava in the High Court of Madhya Pradesh The facts of the case date back to 4.2.2003 when the Sixth Additional Sessions Judge passed a judgment, whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148, 302, 149 of the IPC. Assailing the judgment of the Trial Judge, an appeal is filed by State/appellant under Section 378 of the CrPC The grounds raised are that on the date of incident accused Subhash was driving the tractor by which all the accused persons reached at the placed of incident and after commission of offence accused persons returned back by the same tractor. The aforesaid act was in furtherance of common object and presence of accused Ram Outar at the place of incident has been proved. The prosecution witness 2 and 4 have stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co-accused persons and they were saying “maaro bachne na paaye” (“Kill them, do not leave them alive”). In First Information Report, Subhash and Ram Outar are implicated as accused. The FIR was lodged just immediately after the incident. The trial Court had convicted the co-accused Murari and Ashok on the basis of same set of evidence and has acquitted Ram Outar and Subhash.  Per Contra, learned counsel for the respondents opposed the submissions and submitted that the trial Court after appreciation of evidence available on record has rightly acquitted the respondents and no interference is called for by this Court in the findings of acquittal arrived at by the trial Court. The Court referred to the case of Suresh Sankharam Nangare vs. State of Maharashtra [2012 (9) SCALE 345], wherein it has been held that “if common intention is proved but no overt act is attributed to the individual accused, section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be involved. In other words, it requires a prearranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds.”