Hem Chand Jha @ Hemchandra Jha vs State Of Bihar

Hemchand Jha .........Appellant

Versus

State of Bihar ........Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J

1

1. Appellant questions the legality 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 for offences punishable under Section 302 of

the Indian Penal Code, 1860 (in short the `IPC') and sentenced

to rigorous imprisonment for life and was 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

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

report to the police on 5.6.1991 at 4.15 pm. that Mithilesh

Kumar Singh, Krishna Kumar Singh (hereinafter referred to as

the `deceased') and Krishna Dubey proceeded to village

2 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 Petrol Pump for taking petrol. Petrol was

taken. In the meantime 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 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 because of

unbearable pain. Mithilesh Singh and Krishna Dubey tried to

apprehend them but the third person whom he identified 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

Aurangabad hospital for treatment where he died. Many

3 persons had seen the occurrence.

On the basis of the aforesaid written report a formal first

information report was drawn, investigation was taken up and

on completion of investigation charge sheet was submitted in

the court against three persons. The court where same was

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.

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

appellant, 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

4 the appellant. According to the prosecution, it was Kripal

Singh who had fired the gun and killed the deceased.

According to him Section 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

driving the motor cycle. The assailant Kripal Singh and the

appellant got down from the Motor cycle and went towards the

petrol pump. The deceased was capping the petrol tanks.

The accused Kripal Singh came close to the deceased and took

out a pistol and fired near the ear of the deceased. When the

three eye witnesses tried to apprehend the accused persons,

they were threatened of dire consequences. The three accused

persons ran away towards west on the bye pass road on the

motor cycle which was being driven by the accused.

5. 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

5 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 is 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

(AIR 1977 SC 109), the existence of a common intention

6 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.

6. The Section does not say "the common intention 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 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

7 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 (AIR 1993 SC 1899), 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.

7. In view of the background facts as noted above Section

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 Section

302 read with Section 34 IPC.

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.

8 ...........................J. (Dr. ARIJIT PASAYAT)

...........................J. (P.P.NAOLEKAR)

New Delhi June 13, 2008

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