The High Court of Madhya Pradesh recently comprising of a bench of Justice G.S.Ahluwalia and Justice Rajeev Kumar Shrivastava observed that an act, whether overt or covert, is indispensable to be done by a co-accused to be liable under Section 34 of IPC. (The State Of Madhya Pradesh Thr vs Ram Autar)
The bench observed that from the prosecution evidence itself it is apparent that there is a lack of evidence requiring to make the accused liable with the aid of Section 34 I.P.C. Furthermore, the prosecution has failed to prove any overt act on the part of present respondents.
Facts of the Case
The facts of the case date back to 4.2.2003 when the Sixth Additional Sessions Judge passed a judgment, whereby the present respondents Ram Outar and Subhash Sharma were acquitted from the charge of Sections 148, 302, 149 of the IPC. Assailing the judgment of the Trial Judge, an appeal is filed by State/appellant under Section 378 of the CrPC
The grounds raised are that on the date of the incident accused Subhash was driving the tractor by which all the accused persons reached the placed of incident and after the commission of offence accused persons returned back by the same tractor. The aforesaid act was in furtherance of common object and presence of accused Ram Outar at the place of the incident has been proved. The prosecution witnesses 2 and 4 have stated in their statement that Subhash and Ram Outar had also surrounded deceased Mataprasad and Tejram along with other co-accused persons and they were saying “maaro bachne na paaye” (“Kill them, do not leave them alive”). In First Information Report, Subhash and Ram Outar are implicated as accused. The FIR was lodged just immediately after the incident. The Trial Court had convicted the co-accused Murari and Ashok on the basis of the same set of evidence and has acquitted Ram Outar and Subhash. Hence, the present appeal has been filed.
Contention of the Parties
The learned counsel for the respondents opposed the submissions and submitted that the trial Court after appreciation of evidence available on record has rightly acquitted the respondents and no interference is called for by this Court in the findings of acquittal arrived at by the trial Court.
Courts Observation & Judgment
The bench noted that 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 the 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 can 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.
The bench noted that the act mentioned in Section 34 I.P.C., 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 Court referred to the case of Suresh Sankharam Nangare vs. State of Maharashtra [2012 (9) SCALE 345], wherein it has been held that “if the common intention is proved but no overt act is attributed to the individual accused, section 34 of the Code will be attracted as essentially it involves vicarious liability but if the participation of the accused in the crime is proved and common intention is absent, section 34 cannot be involved. In other words, it requires a prearranged plan and pre-supposes a prior concert, therefore, there must be prior meeting of minds.”
The bench noted that the eye-witness, Harendra (PW-4), lodged the FIR (Ex.P/9). Immediately after the incident, FIR has been lodged, but from the statement of PW-4 Harendra it is not reflected that the accused Subhash had participated in the incident. Besides the above, from the prosecution evidence itself, it is apparent that there is a lack of evidence requiring to make the accused Ram Outar and Subhash liable with the aid of Section 34 I.P.C. Furthermore, prosecution has failed to prove any overt act on the part of present respondents Ram Outar and Subhash.
The Court dismissed the appeal and remarked, “In the light of above annunciation of law, it is clear that in the case in hand the trial Court has acquitted the other co-accused from the charges of Section 148 of IPC. Therefore, with the aid of Section 34, the co-accused, who are respondents in this case namely, Ram Outar and Subhash, have been acquitted and as discussed above, no overt act on the part of the present respondents is proved. Therefore, in the light of aforesaid observations, we find no merit in the present appeal against acquittal.
Consequently, the appeal was filed by appellant/State u/s. 378 of the Cr.P.C against the acquittal of present respondent Ram Outar and Subhash is dismissed and impugned judgment of trial court regarding aforesaid respondents is affirmed. Respondents are on bail. Their bail bonds are discharged and in future they need not appear before Registry of this court in connection to this appeal.”
Read Judgment;
SOURCE ; .latestlaws.com
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