SUPREME COURT OF INDIA
Surinder Singh Alias Chhinda and Another
Vs
State of Punjab
Appeal (Crl.) 903 of 2006 (Arising Out of Slp (Crl.) No.729 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
31.08.2006
ARIJIT PASAYAT, J.
Leave granted.
Appellants call in question legality of the judgment rendered by a Division
Bench of the Punjab and Haryana High Court dismissing the appeal filed by the
appellants and thereby confirming the judgment of conviction and sentence
passed by learned Sessions Judge, Rupnagar. The appellants were convicted for
offences punishable under Section 302/323 read with Section 34 of Indian Penal Code, 1860 (in short the 'IPC' ). Accused
appellant-Narinder Singh was sentenced to undergo imprisonment for life for
commission of offence punishable under Section 302 Indian
Penal Code, 1860
Prosecution case as unfolded during trial is as follows:
Statement was given by lnderjit (PW 8) to ASI Sukhjit Singh in Civil Hospital,
Morinda on 10.4.1996 at 11.50 P.M. lnderjit stated that he along with his son
Pawan Kumar (hereinafter referred to as 'deceased'), Amarjit Singh son of Ram
Singh and Ved Parkash were coming from their house and going towards the market
for some domestic work. When they reached near the house of one Khushal Singh,
at about 9.00 P.M., accused Narinder Singh @ Nita armed with a knife like a
dagger, Amarjit Singh @ Amba armed with a lathi, Surinder Singh @ Chhinda and
Raja Singh son of Gurmukh Singh who were not armed met them. Accused persons
stopped them and stated that they wanted to talk to them. As complainant
Inderjit went forward, accused Amarjit Singh gave a lathi blow on his head.
Pawan Kumar, the son of the complainant, came forward to rescue him. Raja Singh
and Surinder Singh caught hold of Pawan Kumar and Narinder Singh @ Nita thrust
a knife in the chest of deceased who fell down. On this, Inderjit fell upon his
son to save him. Thereafter, accused Raja Singh, Surinder Singh and Amarjit
Singh gave fist and slap blows to the complainant. Complainant raised a hue and
cry. Accused persons fled away from there. Amarjit Singh son of Ram Singh, Ved
Parkash and the complainant then took deceased to Civil Hopsital, Morinda, but
his life could not be saved.
The motive for the commission of the offence was that some days earlier,
Narinder Singh @ Nita had teased the complainant's daughter Nirmla Devi.
Complainant had reprimanded him and hot words were exchanged between them. Due
to this, appellants committed the murder of the deceased. On the basis of this
statement, formal FIR, Ex. PJ, was registered on 11.4.1996 at 12.05 A.M. in
Police Station Morinda. Special report reached the Additional Chief Judicial
Magistrate, Rup Nagar on 11.4.1996 at 3.00 A.M.
In order to further its case, prosecution examined thirteen witnesses. PWs 8
and 9 were stated to be eye- witnesses. Though PW-9 partially departed from his
statement made during investigation, the residue was considered relevant. The
trial Court on analysis of the evidence found the accused guilty and convicted
the accused persons and sentenced them.
Accused persons filed appeal before the High Court and questioned correctness
of trial Court's judgment.
The High Court did not find any substance in the appeal and dismissed the same.
Stand before the High Court was that there is no material to find the accused
guilty.
Accused Amarjit and Narinder have not preferred any appeal against High Court's
judgment. This appeal is by Surinder and Raja.
Learned counsel for the appellants submitted that Section 34 has no application
so far as the appellants are concerned. The prosecution has not brought any
cogent evidence to show that the appellants had shared any common intention for
the murder of the deceased.
Learned counsel for the respondent-State, on the other hand supported the
judgment of the courts below. With reference to the FIR registered in Police
station, Rup Nagar it was submitted that same clearly discloses that the
presence of the accused persons at the time of assault has been established.
Section 34 has been enacted on the principle of joint 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 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 seldom 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, 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
necessarily be before the commission of the crime. The true contents of the
Section are that if two or more persons intentionally 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 , 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 acts may be different in character, but must have
been actuated by one and the same common intention in order to attract the
provision.
As it originally stood the Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons
is liable for that act in the same manner as if the act was done by him
alone."
In 1870, it was amended by the insertion of the words "in furtherance of
the common intention of all" after the word "persons" and before
the word "each", so as to make the object of Section 34 clear. This
position was noted in Mahbub Shah v. Emperor 1945 AIR(PC) 118.
Under the provisions of Section 34 the essence of the 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. As a result of the
application of principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 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 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. As was observed in Ch. Pulla
Reddy and Ors. v. State of Andhra Pradesh 0,
Section 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. These aspects have been highlighted in Harbans
Kaur v. State of Haryana .
When the factual scenario is seen the application of Section 34 of the Indian Penal Code, 1860
Appeal is allowed to the aforesaid extent.