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INDIAN PENAL CODE
Section 1 Title and extent
- This Act shall be called the Indian Penal Code
- and shall extend to the whole of India except Jammu and Kashmir
Section 2 Offences committed within India
- Every person shall be liable to punishment under this Code
- and not otherwise
- for every act or omission contrary to its provisions
- of which he shall be guilty within India
Section 3 Offences committed beyond, but triable within, India
- Any person liable by any Indian law to be tried
- for an offence committed beyond India
- shall be dealt with under this Code
- for any act committed beyond India
- as if such act had been committed within India
Section 4 Extension of Code to extra-territorial offences
- Provisions of this Code apply also to any offence committed by
- any citizen of India in any place without and beyond India
- any person on any ship or aircraft registered in India wherever it may be
- “offence” includes every act committed outside India
- which, if committed in India would be punishable under this Code
- A, who is a citizen of India
- commits a murder in Uganda
- He can be tried and convicted of murder
- in any place in India in which he may be found
Section 5 Certain laws not to be affected by this Act
- Nothing in this Act shall affect
- provisions of any Act for punishing mutiny and desertion
- Nothing in this Act shall affect
- provisions of any special or local law
CHAPTER II GENERAL EXPLANATIONS
Section 6 Definitions to be understood subject to exceptions
- Throughout this Code
- every definition of an offence
- every penal provision
- every illustration of every such definition or penal provision
- shall be understood subject to the “General Exceptions”
- though these exceptions are not repeated in such definition, penal provision, or illustration
- Sections in this Code which contain definitions of offences
- do not express that a child under seven years of age cannot commit such offences
- but the definitions are to be understood subject to the general exception
- which provides that nothing shall be an offence which is done by a child under seven years of age
Section 7 Sense of expression once explained
- Every expression which is explained in any part of this Code
- is used in every part of this Code in conformity with the explanation
Section 8 Gender
- Pronoun “he” and its derivatives
- are used of any person, whether male or female
Section 9 Number
- Unless the contrary appears from the context
- words importing the singular number include the plural number
- and words importing the plural number include the singular number
Section 10 “Man”, “Woman”
- The word “man” denotes a male human being of any age
- The word “woman” denotes a female human being of any age
Section 11 “Person”
- “Person“ includes
- any Company or Association or body of persons
- whether incorporated or not
Section 19 “Judge”
- “Judge” denotes not only every person who is officially designated as a Judge
- but also every person who is empowered by law
- to give, in any legal proceeding, civil or criminal
- a definitive judgment
- A Magistrate exercising jurisdiction in respect of a charge
- on which he has power to sentence to fine or imprisonment
- is a Judge
- A Magistrate exercising jurisdiction in respect of a charge
- on which he has power only to commit for trial to another court
- is not a Judge
Section 21 “Public Servant”
Words “public servant’ denote a person falling under any of these descriptions:
- Every Commissioned Officer in Military, Naval or Air Forces of India
- Every Judge including any person empowered by law to discharge any adjudicatory functions
- Every person in service or pay of Govt or
- remunerated by fees or commission for performance of public duty by Govt
- Every person in service or pay of
- a local authority
- a corporation established under a Central or State Act
- or a Government company
- Persons falling under any of the above descriptions are public servants
- whether appointed by Govt or not
Section 22 “Movable property
Words “movable property” are intended to include
- corporeal property of every description except
- things attached to earth
- things permanently fastened to anything which is attached to earth
Section 23 Wrongful gain and loss
- “Wrongful gain”
- is gain by unlawful means of property
- which the person gaining is not legally entitled
- “Wrongful loss“
- is loss by unlawful means of property
- to which the person losing it is legally entitled
Gaining wrongfully, losing wrongfully
- A person is said to gain wrongfully
- when such person retains wrongfully
- as well as when such person acquires wrongfully
- A person is said to lose wrongfully
- when such person is wrongfully kept out of any property
- as well as when such person is wrongfully deprived of property
Section 24 “Dishonestly”
- Whoever does anything
- with the intention of causing
- wrongful gain to one person or
- wrongful loss to another person
- is said to do that thing “dishonestly”
Section 25 “Fraudulently”
- A person is said to do a thing fraudulently
- if he does that thing with intent to defraud
- but not otherwise
Section 26 “Reason to believe”
- A person is said to have “reason to believe” a thing
- if he has sufficient cause to believe that thing
- but not otherwise
Section 27 Property in possession of wife, clerk or servant
- When property is in possession of
- a person’s wife, clerk or servant
- on account of that person
- it is in that person’s possession
Section 32 Acts include illegal omissions
Except where contrary intention appears from context
- words which refer to acts done
- extend also to illegal omissions
Section 33 “Act”, “Omission “
- The word “act” denotes
- as well a series of acts as a single act
- The word “omission” denotes
- as well a series of omissions as a single omission
Section 34 Acts done 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 35 Act done with a criminal knowledge or intention
- Whenever an act which is criminal only by reason of
- it being done with criminal knowledge or intention
- is done by several persons
- each of such persons who joins in the act with such knowledge or intention
- is liable for the act
- as if the act were done by him alone with that knowledge or intention
Section 37 Co-operation by doing one of several acts
- When an offence is committed by means of several acts
- whoever intentionally co-operates in commission of that offence
- by doing any one of those acts
- either singly or jointly with any other person
- commits that offence
- A and B agree to murder Z
- by severally and at different times giving him small doses of poison
- A and B administer the poison
- with intent to murder Z
- Z dies from the effects of the several doses of poison so administered to him…
- Here A and B intentionally co-operate in commission of murder
- As each of them does an act by which the death is caused
- they are both guilty of the offence
- though their acts are separate
Section 39 “Voluntarily”
- A person is said to cause an effect “voluntarily“
- when he causes it
- by means whereby he intended to cause it
- or by means which he knew or had reason to believe likely to cause it
- A sets fire to an inhabited house in a large town
- for facilitating a robbery
- and thus causes the death of a person
- Here, A may not have intended to cause death
- and may even be sorry that death has been caused by his act
- yet, if he knew that he was likely to cause death
- he has caused death voluntarily
Section 40 “Offence”
Except as mentioned in clauses 2 and 3 below
- the word “offence” denotes a thing
- made punishable by this Code
In Chapter IV and VA
- and in sections 64-67, 71, 109-110, 112, 114-117, 194-195, 203, 211, 213-214, 221-225, 327-331, 347-348, 388-389 and 445
- the word “offence” denotes a thing punishable
- under this Code
- or under any special or local law
In sections 141, 176-177, 201-202, 212, 216 and 441
- the word “offence” has the same meaning when the thing punishable under the special or local law
- is punishable under such law
- with imprisonment for six months or upwards
Section 41 “Special law”
- A “special law”
- is a law applicable to a particular subject
Section 42 “Local law”
- A “local law”
- is a law applicable only to a particular part of India
Section 43 “Illegal”, “Legally bound to do”
- The word “illegal“ is applicable to every thing
- which is an offence
- which is prohibited by law
- which furnishes ground for a civil action
- A person is said to be “legally bound to do“
- whatever it is illegal in him to omit
Section 44 “Injury
- “injury” denotes any harm whatever
- illegally caused to any person
- in body, mind, reputation or property
Section 45 “Life”
- “life” denotes the life of a human being
- unless the contrary appears from context
Section 46 “Death”
- “death” denotes the death of a human being
- unless the contrary appears from context
Section 47 “Animal”
- The word “animal” denotes any living creature
- other than a human being
Section 52 “Good faith“
- Nothing is said to be done or believed in “good faith”
- which is done or believed without due care and attention
CHAPTER III PUNISHMENTS
Section 53 Punishment
Presently there are five types of punishments to which offenders are liable under this Code:
- Imprisonment for life
- Imprisonment, which is of two descriptions:
- Rigorous, that is, with hard labor
- Forfeiture of property
Section 54 Commutation of sentence of death
- In every case in which sentence of deathis passed
- appropriate Govt may, without consent of the offender
- commute the punishment for any other punishment
Section 55 Commutation of imprisonment for life
- In every case in which sentence of imprisonment for life is passed
- appropriate Govt may, without consent of the offender
- commute the punishment for imprisonment not exceeding 14 years
Section 55A Definition of “appropriate Government”
- “appropriate Government” means
- in cases where sentence is
- a sentence of death or
- for an offence against any law on a matter to which executive power of Union extends
- Central Government…
- in cases where sentence (whether of death or not) is
- for an offence against any law to which executive power of State extends
- Govt of the State within which the offender is sentenced
Section 63 Amount of fine
- Where no sum is expressed to which a fine may extend
- amount of fine to which the offender is liable
- is unlimited but shall not be excessive
Section 64 Sentence for non-payment of fine
- In every case in which the offender is sentenced to a fine
- it shall be competent to Court
- to direct that in default of payment of fine
- the offender shall suffer additional imprisonment
Section 65 Limit to imprisonment for non-payment of fine
- The term for which offender may be ordered to be imprisoned
- in default of payment of a fine
- shall not exceed one-fourth of the maximum imprisonment for the offence
- if offence be punishable with imprisonment as well as fine
Section 67 Non-payment of fine in fine only case
- If the offence be punishable with fine only
- imprisonment for default of payment of fine
- shall be simple
- This imprisonment shall not exceed…
- two months when fine is upto fifty rupees
- four months when fine is upto 100 rupees
- six months in any other case
Section 68 Imprisonment to terminate on payment of fine
- The imprisonment which is imposed
- in default of payment of a fine
- shall terminate whenever that fine
- is either paid or levied by process of law
Section 72 Punishment for one of several offences
- Where judgment is given that a person is guilty of one of several offences
- but that it is doubtful of which of these offences he is guilty
- offender shall be punished for the offence which entails the lowest punishment
Section 73 Solitary confinement
- When a person is convicted of an offence which entails rigorous imprisonment
- Court may, by its sentence, order
- that the offender shall be kept in solitary confinement
- for a period not exceeding three months in the whole:
- not exceeding one month if imprisonment is upto six months
- not exceeding two months if imprisonment is upto one year
- not exceeding three months if imprisonment shall exceed one year
Section 74 Limit of solitary confinement
- In executing a sentence of solitary confinement
- such confinement shall in no case exceed fourteen days at a time
- with intervals between the periods of solitary confinement of not less duration than such periods
- When the imprisonment awarded shall exceed three months
- solitary confinement shall not exceed seven daysin any one month of the whole imprisonment awarded
- with intervals between the periods of solitary confinement of not less duration than such periods
Section 75 Enhanced punishment for certain offences
- Whoever having been convicted of an offence
- punishable under Chapters XII or XVII
- with imprisonment of three years or upwards
- shall be guilty of any offence punishable
- under either of those Chapters with like imprisonment
- shall be subject for every such subsequent offence
- to imprisonment for life or to imprisonment of upto ten years
IMPORTANT CASE LAW: IPC Sections 1-75:
- Mahbub Shah v. Emperor [1945 PC] 4 Pages
- Maina Singh v. State of Rajasthan [1976 SC] 5 Pages
- Suresh v. State of U.P. [2001 SC] 8 Pages
Mahbub Shah v. Emperor [1945 PC]
This is an appeal by special leave against judgement of the High Court of Judicature at Lahore, confirming on appeal the conviction of the appellant of the murder of one Allah Dad and the sentence of death passed on him by the Sessions Judge.
The main question raised in this appeal is whether the appellant has been rightly convicted of murder upon the true construction of Section 34, Penal Code. Section 34 runs as follows:
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.
The prosecution case is that on 25th August, 1943, at sunrise, Allah Dad, deceased, with a few others left their village by boat for cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile downstream, they saw Mohammad Shah, father of Wali Shah (absconder) bathing on the bank of the river. On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging to him. Ignoring his warning, they collected about 16 bundles of reeds, and then started for the return journey. While the boat was being pulled upstream by means of a rope, Ghulam Quasim Shah, nephew of Mohammad Hussain Shah- acquitted by the High Court-who was standing on the bank of the river asked Allah Dad to give him the reeds that had been collected from his uncle’s land. He refused.
What happened subsequently was spoken to by boys Nur Hussain P.W. 10 and Nur Mohammad P.W. 11, whose version of the story has been accepted as true by the High Court and summarised as follows:
Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick but it was warded off on the rope. Allah Dad then picked up the lari from the boat and struck Quasim Shah. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up. They had guns in their hands. When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing injuries to him. [Lari is a bamboo pole for propelling the boat, about ten feet long and six inches thick.]
The appellant Mahbub Shah has been convicted of murder under Section 302, read with Section 34, Penal Code. He was also convicted of the attempted murder of one Hamidullah Khan and sentenced to seven years’ rigorous imprisonment: but that conviction has not been brought before the Board.
Along with the appellant, his cousin Ghulam Quasim Shah, was also convicted under S. 302/34, Penal Code, and sentenced to transportation for life, but his conviction and sentence have been set aside by the High Court. One Wali Shah, who is said to have fired the shot that killed the deceased, is a fugitive from justice and has not been so far arrested.
Learned Judges of the High Court came to the conclusion that Ghulam Quasim was wrongly convicted of murder under Section 302/34, Penal Code, on the following reasoning. Bhandari J., with whom Teja Singh J. concurred, first held that Ghulam Quasim had no common intention of killing any member of the complainant party when he went to the bank of the river in order to demand the bundles of reeds which had been collected from his uncle’s lands. Then the learned Judge addressed himself to the question “whether a common intention to commit the crime which was eventually committed by Mahbub Shah and Wali Shah came into being when Ghulam Quasim Shah shouted to his companions to come to his rescue and both of them emerged from behind the bushes and fired their respective guns, and this he answered in the negative, holding that “so far as Quasim Shah was concerned, he did no more than ask his companions to come to his assistance when he was knocked with a pole by the deceased” and that “he could not have been aware of the manner in which assistance was likely to be rendered to him or his friends were likely to shoot at and kill one man or injure another.” In the result, he was acquitted of all offences.
The learned Judge then proceeded to examine the case of the appellant and Wali Shah. He stated that the case of Mahbub Shah, who was armed with a single barreled gun, and of Wali Shah, who had a double barreled gun, however, stood on a different footing. He distinguished their case on the following ground:
As soon as they ran to the assistance of Ghulam Quasim Shah, they fired simultaneously in the direction of the complainants killing Allah Dad on the spot and causing injuries on the person of Hamidullah Khan. It is difficult to believe that when they fired the shots they did not have the common intention of killing one or more of the complainant party. If so, both of them are guilty of murder notwithstanding the fact that the fatal shot was fired by only one of them, namely, Wali Shah, absconder.
It will be observed that according to the learned Judge a common intention to commit the crime came into being when appellant and Wali Shah fired the shots. Their Lordships will now proceed to consider whether the above reasoning is correct, and Section 34, Penal Code, has been rightly applied to the facts of the case.
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intention of all” nor does it say “an intention common to all”. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.
This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.
On careful consideration, it appears to their Lordships that in the present case, there was no evidence and there were no circumstances from which it might be inferred that the appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue of Ghulam Quasim. There was no evidence to indicate that Ghulam Quasim was aware that the complainant party had been cutting reeds from his uncle’s lands, or that the appellant and Wali Shah had been kept behind the bush to come and help him when called upon to do so.
Evidence shows that Wali Shah “happened to be out shooting game” and when he and the appellant heard Ghulam’s shouts for help they came up with their guns; the former shot the deceased, killing him outright and the appellant shot at Hamidullah Khan inflicting injuries on his person. Indeed, the High Court negatived the existence of a “common intention” at the commencement in the sense in which their Lordships have explained the term by stating –in considering the application of Section 34, Penal Code, to the case of Ghulam-what has been already quoted, viz:
that the sole point which requires consideration now is whether a common intention to commit the crime came into being when Ghulam shouted to his companions to come to his rescue and both of them emerged from behind the bushes and fired their respective guns.
Having answered the above question in the negative as regards Ghulam Quasim, the learned Judges thought, as Bhandari J. has expressly stated, that with respect to the appellant and Wali Shah, it must be held that the common intention of killing one or more of the members of the complainant party came into being later, when they fired the shots.
Their Lordships cannot agree with this view. Their Lordships are prepared to accept that the appellant and Wali Shah had the same intention, viz., the intention to rescue Quasim if need be by using the guns and that, in carrying out this intention the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, but where is the evidence of common intention to commit the criminal act complained against, in furtherance of such intention? Their Lordships find none. Evidence falls far short of showing that the appellant and Wali Shah ever entered into a premeditated concert to bring about the murder of Allah Dad in carrying out their intention of rescuing Quasim Shah.
Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. In their Lordships’ view, the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.
In the circumstances, their Lordships are not satisfied that the appellant was rightly convicted of the offence of murder u/s 302, Penal Code, read with Section 34. His conviction for murder and the sentence of death passed on him should, therefore, be quashed.
* * * * *
Maina Singh v. State of Rajasthan [1976 SC]
This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court dated April 21, 1971 upholding the trial Court’s judgment convicting him of an offence under Section 302 read with Section 34 I.P.C. for causing the death of Amar Singh and of an offence u/s 326 I.P.C. for causing grievous injuries to Amar Singh’s son Ajeet Singh.
The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh used to live in ‘chak’ No. 77 GB, in Ganganagar district of Rajasthan. It was alleged that the relations between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving information about his smuggling activities. Amar Singh was having some construction work done in his house and had engaged Isar Ram (PW 3) as a mason. On June 29, 1967, at about sunset, the deceased Amar Singh, his son Ajeet Singh and Isar Ram went to the ‘diggi’ in ‘murabba’ 35 for bath. Ajeet Singh took his bath, and was changing his clothes and Isar Ram was nearby. Amar Singh was cleaning his ‘lota’ after attending the call of nature. It is alleged that at that time Maina Singh and his three sons Hardeep Singli, Jeel Singh and Puran Singh came to the ‘diggi’ along with Narain Singh.
Maina “Singh was armed with a 12 bore gun, Puran Singh with a ‘takua’ and the other three with ‘gandasis’. Maina Singh fired at Amar Singh, but could not hit him. The gunshots however hit Ajeet Singh on his legs and he jumped into a dry watercourse which was nearby to take cover. Maina Singh fired again, but without success. Amar Singh ran towards the sugarcane field crying for help but was chased by the accused. Ajeet Singh thereupon ran and ultimately went and lodged a report at police station Anoopgarh at 10 p.m. after covering a distance of about six miles. The five accused however followed Amar Singh. Maina Singh fired his gun at Amar Singh and he fell down. The other accused went near him and gave ‘gandasi’ blows, and Maina Singh gave a blow or two with the butt end of his gun which broke and the broken pieces fell down. Amar Singh succumbed to his injuries on the spot, and the accused ran away.
It was found that there were several gunshot injuries, incised wounds and lacerated wounds on the body of the deceased, and there were as many as 12 gunshot wounds on the person of Ajeet Singh. All the five accused were found absconding. Maina Singh held a licence for gun Ex. 23 and led to its recovery during the course of the investigation vide memorandum Ex. P-43. At that time, its butt was found to be missing. Its broken pieces had however been recovered by the investigating officer earlier, along with empty cartridges.
The prosecution examined Ajeet Singh, Isar Ram (PW 3) and Smt. Jangir Kaur (PW 7) the wife of the deceased as eyewitnesses of the incident. The accused denied the allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to him and he held a licence for it. The Sessions Judge took the view that the statements of Ajeet Singh (PW 2) and Isar Ram (PW 3) were inconsistent regarding the part played by Hardeep Singh, Jeet Singh, Narain Singh and Puran Singh accused, and although he held that one or more of the accused persons, besides Maina Singh, might be responsible for causing injuries to the deceased, along with Maina Singh, he held further that it could not be ascertained which one of the accused was with him. He also took the view that “someone else might have been with him” and he therefore gave the benefit of doubt to accused Hardeep Singh, Jeet Singh, Puran Singh and Narain Singh and acquitted them.
As the statements of Ajeet Singh (PW 2) and Isar Ram (PW 3) were found to be consistent against appellant Maina Singh, and as there was circumstantial evidence in the shape of the recovery of empty cartridges near the dead body and gun (Ex. 23), as well as the medical evidence, and the fact that the accused had absconded, the learned Sessions Judge convicted and sentenced him as aforesaid.
Mr. Harbans Singh appearing on behalf of appellant has raised the substantial argument that he could not have been convicted of the offence of murder under Section 302 read with Section 34 I.P.C. when the four co-accused had been acquitted. It has been argued that when the other four accused were given the benefit of doubt and were acquitted, it could not be held, in law, that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly.
Relevant portion of the judgment of the trial Court, which bears on the controversy and has been extracted with approval in the impugned judgment of the High Court, is as follows:
Injuries found on the person of deceased Amar Singh were with firearm, blunt as well as sharp weapon. The firearm injuries and the blunt weapon injuries have been assigned to Maina Singh and so there must have been other person also along with Maina Singh in causing injuries to the deceased. It can be so inferred from the statements of Isar Ram and Ajeet Singh also. These facts could no doubt create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in causing injuries to the deceased. In view of the statement of Isar Ram and Ajeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that someone else might have been with him. In such a case the prosecution version against these four accused persons are not proved beyond doubt. They are therefore not guilty of the offence with which they have been charged.
The finding therefore is that the other person might have been one of the other accused or someone else, and not that the other associate in the crime was a person other than the accused. Thus the finding is not categorical and does not exclude the possibility of infliction of the injuries in furtherance of the common intention of one of the acquitted accused and the appellant.
Another significant fact which bears on the argument of Mr. Harbans Singh is that while in the original charge-sheet the Sessions Judge specifically named appellant Maina Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same time, the charge that Maina Singh formed an unlawful assembly along with the “other accused” with the common object of murdering Amar Singh and intentionally caused injuries to him along with “the other accused” in prosecution of that common object. In this case therefore Maina Singh and the other four accused were alleged, all along, to have participated in the crime and were named in the chargesheet as the perpetrators of the crime without there being an allegation that some other person (besides the accused) took part in it in any manner whatsoever. It was in fact the case from the very beginning, including the first information report, that the offence was committed by all the five named accused, and even the evidence of the prosecution was confined to them all through and to no other person. The question is whether the High Court was right in upholding the conviction of the appellant with reference to Section 34 I.P.C. in these circumstances?
A similar point came up for consideration in Mohan Singh v. State of Punjab [1963 SC]. There two of the five persons who were tried together were acquitted while two were convicted under Section 302 read with Section 149 and Section 147 I.P.C. In the charge those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led in the case was confined to them. The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intention of fatally assaulting the deceased. While examining the question of their liability, it was observed as follows:
Cases may also arise where in the charge the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then Section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial Court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under Section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under Section 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.
The other case to which we may make a reference is Krishna Patil v. State of Maharashtra [1963 SC]. It was held as follows:
It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence.
It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.
As has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co-accused, and with no other person. The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four co-accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to invoke Section 149 or Section 34 I.P.C. Maina Singh would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.
The High Court has held that there could be no room for doubt that the firearm and the blunt weapon injuries which were found on the person of Amar Singh were caused by appellant Maina Singh. Dr Shanker Lal (PW 5) who performed the post-mortem examination stated that while all those injuries were collectively sufficient in the ordinary course of nature to cause death, he could not say whether any of them was individually sufficient to cause death in the ordinary course of nature. It is not therefore possible to hold that the death of Amar Singh was caused by the gunshot or the blunt weapon injuries which were inflicted by appellant Maina Singh. Dr Shanker Lal has stated that the fracture of the frontal bone of the deceased could have been caused by external injuries Nos. 8, 10 and 12, and that he could die of that injury also but of those three injuries injury No. 12 was inflicted by a sharp-edged weapon and could not possibly be imputed to the appellant.
The evidence on record therefore does not go to show that he was responsible for any such injury as could have resulted in Amar Singh’s death. The evidence however proves that he inflicted gunshot injuries on the deceased, and Dr Shanker Lal has stated that one of those injuries was grievous. Maina Singh was therefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting, and was guilty of an offence under Section 326 I.P.C. In the circumstances of the case, we think it proper to sentence him to rigorous imprisonment for 10 years for that offence.
The appeal is therefore allowed to the extent that the conviction or Maina Singh under Section 302/34 I.P.C. is altered to one under Section 326 I.P.C. and the sentence is reduced to rigorous imprisonment for ten years thereunder.
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Suresh v. State of U.P. [2001 SC]
THOMAS, J. – Section 34 of the Indian Penal Code is a very commonly invoked provision in criminal cases. With a plethora of judicial decisions rendered on the subject the contours of bits ambit seem well-nigh delineated. Nonetheless, when these appeals were heard a two-Judge Bench felt the need to take a re-look at the provision as to whether and if so to what extent it can be invoked as an aid in this case. Hence these appeals were heard by a larger Bench.
In one of the appeals A-1 Suresh and his brother-in-law, A-2 Ramji, are fighting their last chance to get extricated from the death penalty imposed on them by a Session Court which was confirmed by a Division Bench of the High Court. In the other appeal Pavitri Devi, the wife of Suresh (also sister of Ramji) is struggling to sustain the acquittal secured by her from the High Court in reversal of the conviction for murder ordered by the Sessions Court with the aid of Section 34 IPC.
On the night of 5-10-1996 when Ramesh (brother of Suresh) and his wife and children went to bed as usual, they would have had no foreboding that it was going to be the last night they were sleeping on this terrestrial terrain. But after they, in their sleep, crossed the midnight line and when the half crescent moon appeared with its waned glow above their house, the night turned red by the bloodiest killing spree befallen on the entire family. The motley population of that small house was hacked to pieces by armed assailants, leaving none, but a single tiny tot, alive. The sole survivor of the gory carnage could have seen what happened inside his sweet home only in the night which itself turned carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds he sustained on his person.
That infant witness (PW 3 Jitendra) told the trial court that he saw his uncle (A-1 Suresh) in the company of his brother-in-law (Ramji) acting like demons, cutting the sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri Devi) clutched the tuft of his mother’s hair and yelled like a demoness in thirst for the blood of the entire family.
Lalji (PW 1), the uncle of the decreased Ramesh (who is uncle of Suresh also) and Amar Singh (PW 2) a neighbour gave evidence supporting the version of PW 3 Jitendra. But the said two witnesses did not attribute any overt act to Pavitri Devi except saying that she too was present near the scene of occurrence. The house of the accused was situated not for away from the scene of occurrence, but across the road which abuts the house of the decreased.
The doctor who conducted the autopsy on the dead bodies of all the deceased described the horrifying picture of the mauled bodies. The youngest of the victims was one-year-old child whose skull was cut into two and the brain was torn as under. The next was a three-year-old male child who was killed with his neck axed and the spinal cord, trachea and the larynx were snipped. The next in line was Jitendra – a seven year old child. His immediate next elder was Monisha-a nine-year-old female child, who too was axed on neck, mouth and chest with her spinal cord cut into two.
The mother of those little children, Ganga Devi, was inflicted six injuries which resulted in her skull being broken into pieces. The last was Ramesh – the bread-winner of the family, who was the father of the children. Four wounds were inflicted on him. All of them were on the neck and above that. The injuries on Ramesh, when put together, neared just short of decapitation.
PW 3 Jitendra had three incised wounds on the scapular region, but the doctor who attended on him (PW 6) did not probe into the depth of one of them, presumably because of the fear that he might require an immediate surgical intervention. However, he was not destined to die and hence the injuries on him did not turn fatal.
The motive for the above dastardly massacre was the greed for a bit of land lying adjacent to the house compound of the deceased which A-I Suresh claimed to be his. But the deceased Ramesh clung to that land and it resulted in burgeoning animosity in the mind of Suresh which eventually grew alarmingly wild.
Evidence of PW 1 Lalji and PW 2 Amar Singh was considered by the Sessions Court in the light of various contentions raised by the counsel for the accused. The trial Judge found the said evidence reliable. The Division bench of the High Court considered the said evidence over again and they did not see any reason to dissent from the finding made by the trail court: Evidence of PW 3 Jitendra, the sole survivor of the carnage, was evaluated with greater care as he was an infant of seven years. Learned Judges of the Division Bench of the High Court accepted the evidence of PW 3 only to the extent it secured corroboration from the testimony of P.Ws 1 and 2.
Learned Senior Counsel focused on two aspects. First is that acquittal of Pavitri Devi does not warrant interference from this court. Second is that this is not a case belonging to the category which compels the Court to award death penalty to the two appellants, Suresh and Ramji.
We will now deal with the role played by Pavitri Devi to see whether the Court can interfere with the acquittal order passed in her favour by the High Court. P.W. 3 said that Pavitri Devi caught hold of his mother’s hair and pulled her up, thereafter she went outside and exhorted that everybody should be killed. But P.Ws 1 and 2 did not support the aforesaid version pertaining to Pavitri Devi. According to them, when they reached the scene of occurrence Pavitri Devi was standing in front of the house of the deceased while the other two were inside the house engaged in the act of inflicting blows on the victims.
The position which the prosecution succeeded in establishing against A-3 Pavitri Devi is that she was also present at the scene of occurrence. Learned counsel for the State contended that such presence was in furtherance of the common intention of the three accused to commit the murders and hence she can as well be convicted for the murders under Section 302 IPC with the aid of Section 34 IPC. Learned counsel contended that if Section 34 IPC is to be invoked against Pavitri Devi the prosecution should have established that she had done some overt act in furtherance of the common intention.
We heard arguments at length on the ambit of Section 34 IPC. We have to consider whether the accused who is sought to be convicted with the aid of that section, should have done some act, even assuming that the said accused also shared the common intention with the other accused.
Section 34 reads thus:
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.
As the section speaks of doing “a criminal act by several persons” we have to look at Section 33 IPC which defines the “Act”. The word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be conglomeration of a series of acts. How can a criminal act be done by several persons?
In this context, a reference to Sections 35, 37 and 38 IPC, in juxtaposition with Section 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated. Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”. The section differs from Section 34 only regarding one postulate. In the place of common intention of all such person (in furtherance of which the criminal act is done), as is required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required men rea.
Section 37 deals with the commission of an offence “by means of several acts”. It renders anyone who intentionally co-operates in the commission of that offence “by doing any one of those acts” to be liable for that offence. Section 38 also shows another facet of one criminal act being done by several persons without connecting the common bond i.e., “in furtherance of the common intention of all”. In such case, they would be guilty of different offence or offences but not for the same offence.
Hence, under Section 34, one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.
To understand the section better, it is useful to recast it in a different form by way of an illustration. This would highlight the difference when several persons do not participate in the crime committed by only one person even though there was common intention of all the several persons. Suppose, a section was drafted like this: “When a criminal act is done by one person in furtherance of the common intention of several persons, each of such several persons is liable for that act in the same manner as if it were done by all such persons.”
Obviously Section 34 is not meant to cover a situation which may fall within the fictiously concocted section caricatured above. In that concocted provision, the co-accused need not do anything because the act done by the principal accused would nail the co-accused also on the ground that such act was done by that single person in furtherance of the common intention of all the several persons. But 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 either by throwing or by catapulting them so that they can be used to 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. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations.
Thus to attract Section 34 IPC two postulates are indispensable:
(1) The criminal act (consisting of a series of acts) should have been done, not by one person.
(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessary be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC 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 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 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 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
There may be other provisions in the IPC like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus participation in the crime in furtherance of the common intention is a sine qua non Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act.
A Division Bench of the Madras High Court had said as early as in 1923 that “evidence of some distinct act by the accused, which can be regarded as part of the criminal act in question, must be required to justify the application on Section 34 IPC.” (vide Aydroos v. Emperor 1923 Mad).
In Barendra Kumar Ghosh v. King Emperor the Judicial Committee after referring to the cognate provision adverted to above, held thus:
Section 34 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.
It is difficult to conclude that a person, merely because he was present at or near the scene, without doing anything more, without even carrying a weapon and without even marching along with the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused. In the present case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident happened. Either she would have reached on the road on hearing the sound of the commotion because her house is situated very close to the scene, or she would have merely followed her husband and brother out of curiosity since they were going armed with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too would have accompanied the other accused in furtherance of the common intention of all the three.
Thus we are unable to hold that Pavitri Devi shared common intention with other accused and hence her remaining passively on the road is too insufficient for reversing the order of acquittal passed by High Court in order to convict her with the aid of Section 34.
Learned Senior Counsel made an all out effort to save the convicted appellants from death penalty. The trial court and the High Court have given very cogent reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that death penalty is now restricted to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed as held by the Constitution Bench in Bachan Singh v. State of Punjab [1980 SC] we could not persuade ourselves in holding that the acts committed by A-1 Suresh and A-2 Ramji should be pulled out of contours of the extremely limited sphere. Even after bestowing our anxious consideration, we cannot persuade ourselves to hold that this is not a rarest of rare cases in which the lesser alternative is unquestionably foreclosed.
Accordingly, we dismiss both the appeals.
SETHI, J. (for himself and Agrawal, J.)(Concurring)-
We agree with the conclusions arrived at by Thomas, J. in his lucid judgment.
However, in view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused having such intention.
Section 34 recognises the principle of vicarious liability in the 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. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning 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 a spur of moment. Existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from circumstances of the case.
The dominant feature for attracting Section 34 is the element of participation in action resulting in the ultimate “criminal act”. The “act” referred to in latter part of Section 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 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 done criminal act. If such an interpretation is accepted, the purpose of Section 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. The word “act” used in Section 34 denotes a series of acts as a single act. 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 to not have dissuaded themselves from the intended criminal act for which they shared the common intention.
In Barendra Kumar Ghosh v. King Emperor [1925 PC] the Judicial Committee dealt with scope of Section 34 dealing with acts done in furtherance of common intention, making all equally liable for the results of all the acts of others. It was observed:
By Section 33 a criminal act in Section 34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence.
In Ramaswami Ayyangar v. State of Tamil Nadu [1976 SC] this Court declared that Section 34 is to be read along with preceding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. Acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section.
The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.
However, in this case on facts, the prosecution has not succeeded in proving that 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 exaggerated version of PW3 regarding the participation of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as P.Ws 1 and 2 have not supported the aforesaid version. High Court was, therefore, justified in holding that Pavitri Devi did not share the common intention with other accused. By her mere presence near the place of occurrence at or about the time of crime in the absence of other evidence, direct or circumstantial, cannot hold her guilty with the aid of Section 34. But in case prosecution had succeeded in proving on facts of her sharing of common intention with A1 and A2, she could not be acquitted of the charge framed against her only on ground that she had actually not done any overt act.
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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