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Synopsis

The Supreme Court has said that in order to invoke offence of common intention under Section 34 of the IPC, corresponding to Section 3(5) of the Bharatiya Naya Sanhita, the accused must have done something, howsoever slight it may be, or omitted to do act, which indicated he was a participant and a guilty associate in the crime.

A bench of Justices J B Pardiwala and R Mahadevan acquitted a man of the charges of murdering his wife but confirmed conviction and sentence of a life term handed down to his mother for pouring kerosene oil on the victim and burning her to death.

The court allowed the appeal by Vasant alias Girish Akbarasab Sanavale against the Karnataka High Court's October 6, 2020 judgment, relying upon dying declaration of the woman who had said that the mother-in-law had poured the kerosene oil and lit the match box.

The high court, however, had held the husband also guilty by the aid of Section 34, by observing he never bothered even to take the victim to treatment as he wanted to ensure that she died.

The FIR in the case was lodged on January 3, 2013, at the Mudalagi Police Station, District Belagavi, Karnataka, alleging commission of murder and other offences against the husband and family members of Geetha, mother of three children. It was alleged that the victim was harassed for dowry demands after her marriage in 2005.

After examining the evidence, the bench, on its part, found there was no cogent and reliable evidence to hold the husband-appellant guilty of the alleged offence, even with the aid of Section 34 of the IPC.

"Although Section 34 IPC deals with a criminal act which is joint and an intention which is common, but it cannot be said that it completely ignores or eliminates the element of personal contribution of the individual offender in both these respects," the bench said.

On the other hand, the court pointed out, it is a condition precedent of Section 34 IPC that the individual offender must have participated in the offence in both these respects. He must have done something, however slight, or conduct himself in some manner, however nebulous, whether by doing an act or by omitting to do an act so as to indicate that he was a participant in the offence and a guilty associate in it. He must also be individually a party to an intention which he must share in common with others. He must be a sharer both in the ‘criminal act’ as well as in the ‘common intention’ which are the twin aspects of Section 34, IPC, the bench added.

Allowing appeal, the bench said, when the mother-in-law poured kerosene on the deceased and set her on fire, it is possible that the husband, out of sheer frigh,t might have run away from his house after trying to extinguish the fire by pouring water on the burning body of his wife.

"For applicability of Section 106 of the Evidence Act so as to implicate the husband also in the alleged crime the prosecution has to lay the foundational facts first prima facie indicating his involvement or participation in the alleged crime. His sudden disappearance after the incident is not sufficient to infer common intention," the bench said.

The court emphasised that under Section 34 every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally. That is, he is a sharer not only in what has been described as a common act but also in what is termed as the common intention, and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different.

"Participation of the individual offender in the criminal act in some form or the other which is the leading feature of Section 34, IPC differentiates it not only from Section 149, IPC, but also from other affiliated offences like criminal conspiracy and abetment. A bare agreement between two or more persons to do or cause to be done an illegal act might make a person liable for the offence of criminal conspiracy as defined in Section 120, IPC. If the said agreement is to commit offence, then such an agreement is by itself enough to make a man guilty and no overt act apart from the agreement would be necessary," the court said.

Under Section 34, IPC, a mere agreement, although it might be a sufficient proof of the common intention, would be wholly insufficient to sustain a conviction with the application of Section 34, IPC, unless some criminal act is done in furtherance of the said common intention and the accused himself has in some way or the other participated in the commission of the said act, the bench added.

"A person present on the scene might or might not be guilty by the application of Section 34, IPC. If he is present on the scene for the purpose of participating in the offence, he would certainly be guilty as a participator in the offence. On the other hand, if he is present there merely as a spectator, he would not be guilty," the bench said.

The court further explained that the word ‘criminal act’ is used in Section 34, IPC, in the broadest possible sense. It would cover any word, gesture, deed or conduct of any kind on the part of a person whether active or passive, which tends to support the common design, court said.

"A ‘criminal act’ in Section 34, IPC consists of the entire bundle of acts or omissions tied together with the chain of common intention that have combined to constitute the offence. The acts that it might comprise within itself may be similar or diverse. Such acts may be performed simultaneously, successively or at intervals. Instances to illustrate such acts are of a multifarious type. For example, two persons may beat a man at the same time, and if their acts are in furtherance of a common end, Section 34 IPC, would be attracted. The acts here are simultaneous," the bench said.

It pointed out that every person charged with the aid of Section 34, must, in some form or the other,r participate in the offence in order to make him liable thereunder.

"The element of participation in the commission of the offence is the chief feature that distinguishes Section 34, IPC from Section 149, IPC and other kindred sections," the bench said.

Referring to Suresh Sakharam Nangare Vs The State of Maharashtra, (2012), the bench said, if 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 participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre supposes prior concert therefore there must be meeting of mind, the court added.

The court thus said the high court rightly held the mother-in-law guilty of the alleged crime. However, the high court at the same time committed an error in holding the husband-appellant guilty of the offence of murder with the aid of Section 34 IPC. It ordered forthwith release of the husband, if not required in any other case.

Case Title: Vasant alias Girish Akbarasab Sanavale & Anr Vs The State of Karnataka