Suresh vs State of UP case involved an appeal before the High Court against the judgment of Sessions Court. The concept of criminal law is based on the intention and knowledge of the offender. This case deals with Section 34 of IPC which defines that when an act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that such act in the same manner as it was done by him alone.
Criminal Appeal No. 160 of 2001
2001 3 SCC 673
Hon’ble Justice R.P. Sethi
Hon’ble Justice B.N. Aggarwal
Hon’ble Justice Brother Thomas
DATE OF JUDGEMENT
2nd March 2001
Section 34, 149, and 302 of Indian Penal Code, 1860
FACTS OF THE CASE
- That on 5.10.1996 the two accused, i.e. Suresh and Ramji, murdered the Ramesh, his wife and his children.
- That the Ramesh was a brother of accused Suresh and there was a land issue going between two brothers i.e. Ramesh and Suresh. Therefore, regarding this issue, Suresh, along with his wife, Pavitri Devi, and his brother-in-law, Ramji, planned for the murder of Ramesh’s entire family.
- That the Ramesh and his family were killed brutally and severely cut their bodies into the pieces by the both accused.
- They attack them with the dangerous weapons, i.e. axes and choppers on their neck, spinal cord, and on the other parts of the body too. Later on it was found that one son of Ramesh, i.e. Jitendra, did not die in that night.
- That before the court, Jitendra(PW-3) told that while he was sleeping in that night and he woke up by sensing that his father’s blood reaching his mouth.
- He also added, Pavitri Devi pulled his mother’s hair and thereafter went outside to encourage her husband to kill everyone.
- That the two neighbors, i.e. Lalji and Amarsingh, of the accused gave evidence that when they reached the deceased house, Pavitri Devi was standing outside the house of victim i.e. Ramesh and the other two accused were busy with cruelty act inside the house.
Whether the case belongs to the death penalty for this brutal act?
Whether the Pavitri Devi convicted with the aid of Section 34 of IPC?
RATIO OF THE CASE
The Honorable Justice Sethi and Aggarwal agreed with the conclusions made by the Trial Judge. They further stated that in the interpretation of Section 34 of IPC is concerned, they observed to choose their views considering consistent legal approach through the precedents.
For applying Section 34 to co-accused for proving common intention, there is no requirement of law that he should have done something to incur the criminal liability with the aid of this section.
That Section 34 of IPC recognizes the principle of vicarious liability under Criminal Law. It makes the person liable for the offence committed not by him but by the other person with whom he shared a common intention. It is rather the rule of evidence and does not create substantive offence.
The common intention can be formed previously or in the course of occurrence or on the spot of the moment. The existence of common intention is a question of fact in each case to prove mainly from the circumstance of each case.
That Division Bench of Patna High Court in Shatrughan Patar vs Emperor (AIR 1919 Patna 111) held that only when a court has some certainty holding that the particular accused have pre-conceived or pre-meditated the result which acted in concert with the others in order to bring about that result, then Section 34 may apply.
After the Court referring the case of Mahboob Shah’s, the court in Mohan Singh vs State of Punjab (AIR 1963 4174) observed that it is now well settled that common intention required as by Section 34 differed from the same intention. That the persons having similar intention but which is not the result of a pre-concerted plan cannot be held guilty for the criminal act with the aid of Section 34 of IPC.
Another case was referred, i.e. State of UP vs Iftikhar Khan (1973(1) SCC 512). The three Judges Bench of this court held that for attracting Section 34 of IPC it is unnecessary a particular accused must do that overt act. It will only attract the section when it is established that the criminal act has been done by any of the accused with the furtherance of the common intention of all.
Therefore, High Court concluded a person shall not be convicted with the aid of Section 34 of IPC only because he is present at the scene of occurrence doing no act or carrying any weapons.
However, in this case on facts, the prosecution has failed in proving that (A3) Pavitri Devi shared the common intention with the other two accused persons, one of whom was her husband and the other her brother. It has come in evidence that when the witnesses reached on the spot; they found the said accused standing on the road whereas the other accused were busy committing the crime inside the house.
The appeal of the State filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas, J.
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