Professional Documents
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v.
EMPEROR
{Citation:- (1945) 47 BOMLR 941 }
B.A.L.L.B (Hons.)
Section: - A
My greatest debt, however, is reserved for THE ALMIGHTY for providing me with
everything in life.
DEVANSHU GOYAL
Roll No.- 12/14
***
LIST OF ABBREVIATIONS
Object Of Section 34:- Section 34 lays down only a rule of evidence and
does not create a substantive offence. This section is intended to meet cases
in which it may be difficult to distinguish between the acts of the individual
members of a party or to prove exactly what part was taken by each of them
in furtherance of the common intention of all. This section really means
that if two or more persons intentionally do a thing jointly, it is just the
same as if each of them has done it individually. The reason why all are
deemed guilty in such cases is that the presence of accomplices gives
encouragement, support and protection to the person actually committing
1
(1869) 3 Beng LR (PC) 44, 45
2
AIR 1945 PC 118
3
AIR 1944 Cal. 339
4
AIR 1951 All 21 (F.B.)
5
1970 Cr.L.J. 653
6
AIR 1954 SC 706
Participation In The Criminal Act:- The participation in a criminal act
of a group is a condition precedent in order to fix joint liability and there
must be some overt act indicative of a common intention to commit an
offence. The law requires that the accused must be present on the spot
during the occurrence of the crime and take part in its commission; it is
enough if he is present somewhere nearby. The Supreme Court has held
that it is the essence of the section that the person must be physically
present at the actual commission of the crime. He need not be present in
the actual room; he can for instance, stand guard by a gate outside ready to
warn his companions about any approach of danger or wait in a car on a
nearby road ready to facilitate their escape, but he must be physically
present at the scene of the occurrence and must participate in the
commission of the offence some way or other at the time crime is being
committed.
The first leading case on the point is Barendra Kumar Ghosh v. King
Emperor7, (also known as Shankari Tola Post Office Murder Case). In
this case several persons appeared before the sub-post master who was
counting the money on the table and demanded the money. In the mean
time they opened fire killed the sub-post master and ran away without
taking any money. Barendra Kumar was, however, caught with a pistol in
his hand and was handed over to the police.
The accused was tried under sections 302/34 as according to the
prosecution he was one of the three men who fired at the sub-post master.
The accused denied his charge on the ground that he was simply standing
outside and had not fired at the deceased. The trial court, on being satisfied
that the sub-post master was killed in furtherance of the common intention
of all, convicted the accused even if he had not fired the fatal shot.
The High Court of Calcutta and the Privy Council both agreed with the
findings of the trial court and held the accused guilty of murder. Giving his
judgment LORD SUMNER quoting a line from Milton’s famous poem,
“ON HIS BLINDNESS” said. “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….. Section 34 deals with doing of
separate act, similar or diverse by several persons; if all are done in
furtherance of a common intention, each person is liable for the result of
7
AIR 1925 PC 1
Common Object:- Section 149, like Section 34, is the other instance of
constructive joint liability. Section 149 creates a specific offence. It runs
as
“If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members
of that assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of that offence, is
a member of the assembly, is guilty of that offence.”
Elements Of Section 149:- The essence of offence under Section 149 is
assembly of several (five or more) persons having one or more of the
common objects mentioned in Section 141 and it could be gathered from
the nature of the0 assembly, arms used by them and the behaviour of the
assembly at or before scene of occurrence. Section 149 creates joint
liability of all members of an unlawful assembly for criminal act done by
any member in prosecution of the common object of the said assembly. So
the essential ingredients of Section 149 are:
1. There must be an unlawful assembly, as defined in Section 141;
2. Criminal act must be done by any member of such assembly;
8
11 BLR 347
ommon intention also may develop suddenly on the spot and such common
intention may be inferred from the facts and circumstances of the case and
conduct of the accused persons. Following cases are illustrative -
In Kripal Singh v. State of U.P9; the Supreme Court held that a common
intention may develop on the spot after the offenders have gathered there.
A previous plan is not necessary. Common intention may be inferred from
the conduct of the accused and the circumstances of the case.
In Rishi Deo Pandey v. State of U.P10; ‘A’ and ‘B’ two brothers were seen
standing near the cot of the victim who was sleeping. One of them was
0armed with a ‘gandasa’ and another with a ‘lathi’, when a hue and cry was
raised by the two brothers ran together, and both of them were seen running
from the bed room of the victim. The victim died of an incised wound on
the neck, which according to medical evidence was necessarily fatal. The
court found that the two brothers shared the common intention to cause
death. It was held that common intention may develop on the spot also.
9
AIR 1954 SC 706
10
AIR 1955 SC 331
11
AIR 1956 SC 546
12
AIR 1972 SC 2555
LATEST JUDGEMENT REGARDING SECTION 34 OF INDIAN
PENAL CODE
FACT OF CASE
Six persons were accused of conspiring with each other and committing
murder of one Ramesh Masta with common intention. FIR No. 414 dated
November 06, 2004 was registered against these six accused persons at
Police Station City Bhiwani, Haryana, under Sections 302, 120-B and 34
of the Indian Penal Code, 1860 (for short ‘IPC’).
Charge under Section 25 of the Arms Act, 1959 was also foisted upon
them. Names of these accused persons are – Rahul @ Shashi Partap,
Satender, Bharat, Karambir, Manjit Singh and Banti @ Yogender Singh.
The Court of Additional Sessions Judge, Bhiwani, on the conclusion of the
trial, vide judgment dated February 22, 2007 returned the findings to the
effect that the prosecution had successfully proved the allegations
contained in the charge sheet that accused Rahul @ Shashi Partap, Satender
and Bharat, in furtherance of their common intention committed the
murder of Ramesh Masta and thereby committed an offence punishable
under Section 302 read with Section 34 of the IPC.
It also held that other three accused persons, namely, Karambir, Manjit
Singh and Banti @ Yogender Singh, had abetted the aforesaid accused
persons in the said offence and thereby committed an offence punishable
under Section 109 read with Section 302 of the IPC.
It was also held that all the six accused persons, prior to the date of
occurrence, hatched the conspiracy in order to commit the murder of
Ramesh Masta and thereby committed an offence punishable under Section
120-B of the IPC. Rahul @ Shashi Partap was found guilty of offence
punishable
As is clear from the above, as per the prosecution, three persons took active
part in killing R0amesh Masta, who had come at the place of occurrence
on a motorcycle. Specific role is attributed to Rahul @ Shashi Partap, who
had fired the shot from his pistol, which hit on the head of Ramesh Masta.
13
(2014) 7 SCC 29
The motorcycle was being driven by Bharat. As per the prosecution,
Satender had also fired a shot from his pistol, though it did not hit the
victim (as noted hereinafter, this act attributed to him has not been proved).
Insofar as other three accused persons, namely, Karambir, Manjit Singh
and Banti @ Yogender Singh, are concerned, charge against them was of
conspiracy and abetment
Satender, Karambir and Manjit Singh. Since Karambir has died and
the special leave petition against Manjit Singh was also dismissed, in
the appeal filed by the State as well as the complainant Pawan Kumar
Masta, no doubt, charge of conspiracy was also levelled against
Satender. But it was in respect of all others and other three against
whom only charge of conspiracy under Section 120-B IPC was framed
they have been acquitted of thsi charge.
Still we have gone through the judgment of the High Court and evidence
on this charge. The only witness examined in respect of this charge was
Ghanshayam Dass (PW-3). He deposed that he was a neighbour of Ramesh
Masta as well as of Karambir’s family. He knew both the families.
Two days prior to the death of Ramesh Masta, he had gone to the house of
Karambir along with Satish. They heard the talk through window of the
house of Karambir. Karambir was telling Bharat, Rahul, Satender, Banti
and Manjit that he was having old enmity with Ramesh Masta, who had
been saved in previous
Trial convicted three persons for murder and three another person for
abetment of crime. High court has acquited four person and convicted
two persons.
However, the reason for acquittal of Satender was that no overt act
had been attributed to him by any of the eye witnesses. person.
Appeal is dismissed by the supreme against acquittal of satender.
In DURGA PRASAD@BABLU V. STATE14
It was held that all four accused are guilty for the murder of victim
(Amit Gupta) under section 302 r/w section 34 of Indian Penal Code,
1860.
Fact of the case
On 10.1.97 an information was received from RML Hospital which was
recorded as DD No. 29A in P.S. Parsad Nagar.
Information was regarding admission of one Amit Gupta in the hospital in
injured condition. On the basis of this information SI Babbar Bhan along
with Constable Manohar Lal reached in the hospital and collected the MLC
of injured Amit Gupta but the injured Amit was declared unfit for statement
by the doctor and the nature of injuries were opined as sharp.
In these circumstances statement of injured could not be recorded by SI
Babbar Bhan but the statement of his father Sat Sagar Gupta was recorded
who was found present in the hospital.
He had stated that he was staying in H.NO. 16/918 E, Khalsa Nagar, Tank
Road, Karol Bagh, New Delhi along with his family members and was
doing the business of readymade garments and that on that date he was
present in his house along with his family members and had taken the
dinner, when at about 10.30 PM someone called his son Amit and
thereafter Amit went out.
After some time noise was heard fromoutside the house and on hearing this
noise he along with his son Parveen came out and saw four boys beating
Amit.
14
Date of Decision: 28th August, 2009
He had further stated that Rajinder and Bablu were holding the hands of
Amit and one boy whose name he did not know but whom he could
identify, was holding Amit from the neck and Biloo who was staying in
Karol Bagh hit Amit with knife on his chest and left thigh. Amit fell down
and seeing them, all the boys ran away.
He with the help of his son Parveen removed Amit to RML Hospital. On
this statement SI Babbar Bhan made an endorsement and send rukka for
the registration of the case to police station. Thereafter FIR u/s
307/34 IPC in this case was registered. SI Babbar Bhan returned at the spot
along with Sat Sagar Gupta and continued his investigation.
It was held in this case all the persons in this case are
guilty of murder r/w with section 34 of Indian Penal
Code.