Supreme Court of India
HEMCHAND JHAversusSTATE OF BIHAR
- Citation
- 2008 INSC 755
- Decided
- 13 June 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Section 34 IPC is applicable to all participants acting with a common intention, even if a particular accused did not personally cause the injury or perform an overt act, thus upholding the conviction under Section 302 read with Section 34.
Summary
The appellant Hemchand Jha and two co‑accused approached a jeep at a petrol pump; Kripal Singh fired a pistol, killing Krishna Singh. Hemchand Jha was driving the motorcycle and was present at the scene but did not fire the weapon. He was convicted under Section 302 read with Section 34 of the IPC. On appeal, he contended that Section 34 should not apply because he did not personally cause the injury and no overt act on his part was shown. The Supreme Court held that Section 34 imposes joint liability for a criminal act done in furtherance of a common intention, even if a particular accused does not cause the injury or perform an overt act, and that common intention can be inferred from the facts. Consequently, the conviction under Section 302 read with Section 34 was upheld and the appeal dismissed.
Issues considered
- Whether Section 34 of the Indian Penal Code applies when the accused did not personally inflict the injury or fire the weapon.
- Whether an overt act by each participant is required for liability under Section 34.
- Whether a common intention can be inferred from the surrounding circumstances to attract Section 34.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 34
Subjects
Section 34 IPCcommon intentionjoint liabilitymurdercriminal lawevidentiary ruleconvictionappellate review
Judgment
(2008] 9 S.C.R. 1171
HEMCHAND JHA A
II.
STATE OF BIHAR
... (Crimir:ial Appeal No. 7 of 2002)
JUNE 13, 2008
B
[DR. ARIJIT PASAYAT AND P.P.NAOLEKAR, JJ.]
Penal Code, 1860 - s. 34 - Common intention - Appli-
cability of - Requirement for - Held: s. 34 is applicable even
if no injury has been caused by the particular accused him- c
self - Some overt act on the part of accused not necessary -
In the instant case, plea of accused that no definite role as-
cribed to him and co-accused fired the gun and killed the de-
ceased, thus, s. 34 not applicable, not tenable- On facts, s.34
,.. clearly applicable - Thus, conviction of accused u/s. 302 rlw
D
s.34 by courts below justified.
According to the prosecution case, on the fateful day,
appellant-accused and co-accused along with one other
came on a motor cycle and stopped next to the jeep of
KKS. Appellant was driving the motor cycle. They got E
down from the motor cycle and went towards KKS who
was capping the petrol tanks. The co-accused went near
KKS, took out pistol and fired near the ear of KK\, ~he
accused persons threatened the eye witnesses. Accused
persons ran away. KKS succumbed to t;iis injuries. FIR F
was lodged. Investigation was carried out.· Appellant was
convicted and sentenced u/s.302 r/w s.34 IPC. High Court
upheld the order. Hence the present appeal.
-I
Dismissing the appeal, the Court
G
HELD: 1.1 Section 34 has been enacted on the prin~
•
ciple of joint liability in the doing of, a crimin~J. act. The
Section is only a rule of eviden~~ and doe;t,pot crE!ate a
substantive offence. Th~ d.istin~tive fen-tuw of the Sec-
. ist• .r ...i e · ·
1171 H
11 ~
1172 SUPREME COURT REPORTS (2008] 9 S.C.R.
•
A tion is the element of participation in action. The liability
of one person for an offence committed by another in the
course of criminal act perpetrated by several persons
arises u/s 34 if such criminal act is done in furtherance of
a common intention of the persons who join in commit-
s ting the crime. Direct proof of common intention is sel-
dom available and, therefore, such intention can only be
inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances.
In order to bring home the charge of common intention,
c the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of
mind of all the accused persons to commit the offence
for which they are charged with the aid of Section 34, be
it pre-arranged or on the spur of moment; but it must nec-
D essarily be before the commission of the crime. The true
contents of the Section is that if two or more persons in-
tentionally do an act jointly, the position in law is just the
same as if each of them has done it individually by him-
self. [Para 5) [1175-G & H; 1176-A,B & CJ
E 1.2 The existence of a common intention amongst
the participants in a crime is the essential element for
application of this Section. It is not necessary that the acts
of the several persons charged with commission of an
offence jointly must be the same or identically similar. The
F acts may be different in character, but must have been
actuated by one and the same common intention in or-
der to attract the provision. [Para 5] [1176-D & E]
Ashok Kumar v. State of Punjab AIR 1977 SC 1094 -
relied on.
G
1.3 The Section does not say "the common inten-
tion of all", nor does it say "and intention common to all".
Under the provisions of Section 34 the essence of the
liability is to be found in the existence of a common inten-
tion animating the accused leading to the doing of a crimi-
H
HEMCHAND JHA v. STATE OF BIHAR 1173
[Dr. ARIJIT PASAYAT, J.]
nal act in furtherance of such intention. As a result of the A
application of principles enunciated in s. 34, when an ac-
cused is convicted u/s. 302 read with s.34, in law it means
that the accused is liable for the act which caused death
of the deceased in the same manner as if it was done by
him alone. The provision is intended to meet a case in B
r which it may be difficult to distinguish between acts of
individual members of a party who act in furtherance of
the common intention of all or to prove exactly what part
was taken by each of them. Section 34 is applicable even
if no injury has been caused by the particular accused c
himself. For applying Section 34 it is not necessary to
show some overt act on the part of the accused. [Para 6]
[1176-E,F,G & H; 1177-A]
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh
,. AIR 1993 SC 1899 - relied on. D
2. In view of the facts, s. 34 IPC has clear application.
The trial court and the High Court were justified in holding
the appellant guilty and he has been rightly convicted for
offence punishable u/s 302 rw s. 34 IPC. [Para 7] [1177-B]
"•. E
CRIMINALAP?ELLATE JURISDICTION: CriminalAppeai
No. 7 of 2002
~ .. From the Judgment dated 22.6.2001 of the High Court of
Judicature at Patna in Crl. Appeal No. 400 of 1993
F
Vikas Rojipura (A.C.) for the Appellant.
Gopal Singh and Manish Kumar for the Respgndent.
The Judgment of the Court was delivered by
Dr. Ai!IJIT PASAYAT, J. 1. Appellant questions the legal- G
ity of the judgment rendered by a Division Bench of the Patna
High Court dismissing the appeals filed by the appellant and
one Kripal Singh. Latter was convicted fo1 offences pun;shabre
under Section 302 of the Indian P11nal Code, 1860 (in short the
'IPC') and sentenced to rigorous imprisonment for life and was H
1174 SUPREME COURT REPORTS [2008] 9 S.C.R.
•
A further convicted for offences punishable under the Arms Act.
The present appellant was convicted for offence punishable
under Section 302 read with Section 34 IPC. He was sentenced
to undergo imprisonment for life.
2. The trial court directed acquittal of the accused Sanjay
B Singh who faced trial with them while finding the appellants
before the High Court to be guilty.
3. Prosecution version in a nutshell is as follows:
Gyaneshwar Prasad Singh, the informant, gave a written
c report to the police on 5.6.1991 at 4.15 pm. that Mithilesh Kumar
Singh, Krishna Kumar Singh (hereinafter referred to as the 'de-
ceased') and .Krishna Dubey proceeded to village Nawadih in
a jeep bearing No. ORC 9827 to attend the marriage of his
nephew. At about 2.30 pm the jeep was stopped at Rabindra
D Petrol Pump for taking petrol. Petrol was taken. In the mean-
time accused Kripal Singh, Hemchand Jha and one person
whom he identified by face came on a black Rajdoot motor
cycle and stopped the motor cycle on the right side of the jeep.
Appellant Hemchand Jha was driving the motor cycle. They got
E down from the motor cycle and went behind the petrol pump.
Krishna Singh was capping the petrol tanki. The aforesaid three
persons came near him. Kripal Singh came close to Krishna
-
......
Singh, took out a pistol and fired near the ear of Krishna Singh. ~
Krishna Singh felll down on the ground and started shaking be- •
F cause of unbearable pain. Mithilesh Singh and Krishna Dubey
tried to apprehend them but the third person whom he identi-
tied by face took out a pistol from the waist and threatened to
kill if they proceeded further. All the three accused persons ran
away towards west on the bye pass road on the motor cycle.
The witnesses took Krishna Singh on the said jeep to
G
Aurangabad hospital for treatment where he died. Many per-
sons had seen the occurrence.
On the basis of the aforesaid written report a formal first
information report was drawn, investigation was taken up and ,... -
H on completion of investigation charg~ sh~et was submitted in
HEMCHAND JHA v, STATE OF BIHAR 1175
[Dr. ARIJIT PASAYAT, J.]
the court against three persons. The court where same was A
filed, took cognizance and committed the case to the Court of
Sessions for trial. The defence of the appellants was that they
were innocent and were falsely implicated in the case.
Ten witnesses were examined to further the prosecution
case, out of them PWs. 1,2&3 claimed to be eye witnesses. 8
Placing reliance on the statement of the aforesaid three eye
witnesses, the trial court found the accused appellant guilty and
sentenced them. But Sanjay Singh was acquitted.
' The appeals filed by Kripal Singh and the present appel- c
lant, before the High Court, were dismissed.
In support of the appeal learned counsel for the Appellant
submitted that no definite role has been ascribed to the appel-
lant. According to the prosecution, it was Kripal Singh who had
fired the gun and killed the deceased. According to him Sec- D
tion 34 IPC has no application.
Learned counsel for the State on the other hand supported
the judgment.
4. According to PWs 1, 2 & 3 the present appellant was E
driving the motor cycle. The assailant Kripal Singh and the ap-
pellant got down from the Motor cycle and went towards the
petrol pump. The deceased was capping the petrol tanks. The
accused Kripal Singh C?lme close to the deceased and took 1p1e o
out a pistol and fired near the ear of the deceased. When the F ·. ·v
three eye witnesses tried to apprehend the accused persons,
they were threatened of dire consequences. The three accUSE;!~ , ;. . v•
persons ran away towards west on the bye pass road on t~eiiCe com
motor cycle which was being driven by the accused. · .. ated hy s
. 5. Section 34 has been enacted on the principle of joint G
liability in the doing of a criminal act. The Section is only a rule
of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation
in action. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by several H
1176 SUPREME COURT REPORTS [2008] 9 S.C.R.
A persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in
committing the crime. Direct proof of common intention is sel-
dom available and, therefore, such intention can only be inferred
from the circumstances appearing from the proved facts of the
B case and the proved circumstances. In order to bring home the
charge of common intention, the prosecution has to establish
by evidence, whether direct or circumstantial, that there was
plan or meeting of mind of all the accused persons to commit
the offence for which they are charged with the aid of Section ,
C 34, be it pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. The true
contents of the Section is that if two or more persons intention-
ally do an act jointly, the position in law is just the same as if
each of them has done it individually by himself. As observed
in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the
0
existence of a common intention amongst the participants in a
crime is the essential element for application of this Section. It
is not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or iden-
tically similar. The acts may be different in character, but must
E have been actuated by one and the same common intention in
order to attract the provision.
6. The Section does not say "the common intention of all",
nor does it say "and intention common to all". Under the provi-
F sions of Section 34 the essence of the liability is to be found in
the existence of a common intention animating the accused lead-
ing to the doing of a criminal act in furtherance of such intention.
As a result of the application of principles enunciated in Sec-
tion 34, when an accused is convicted under Section 302 read
G with Section 34, in law it means that the accused is liable for
the act which caused death of the deceased in the same man-
ner as if it was done by him alone. The provision is intended to
meet a case in which it may be difficult to distinguish between
acts of individual members of a party who act in furtherance of
H
the common intention of all or to prove exactly what part was
--
HEMCHAND JHA v. STATE OF BIHAR 1177
[Dr. ARIJIT PASAYAT, J.]
taken by each of them. As was observed in Ch. Pu/la Reddy .A
and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Sec-
tion 34 is applicable even if no injury has been caused by the
particular accused himself. For applying Section 34 it is not
necessary to show some overt act on the part of the accused.
7. In view of the background facts as noted above Section 8
34 IPC has clear application. The trial court and the High Court
were justified in holding the appellant guilty and he has been
rightly convicted for offence punishable under Se~tion 302 read
with Section 34 IPC. ·
c
8. Appeal is without merit, deserves dismissal, which we
direct.
9. We record our appreciation for the able manner in which
Mr. Vikas Rojipura, learned Amicus Curiae assisted the Court.
N.J. Appeal dismissed
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