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Penal Code, 1860: ss. 302 and 34 – Murder – Common intention – Three accused – Conviction of appellants-accused (K, T, G) for murder of victim-deceased u/s. 302 r/w s.34 and for offences u/ss. 447, 504, 506, 341 – Division Bench of High Court affirmed their conviction – Hence instant appeal – Held: The assault on victim-deceased by appellant-K was fearsome, brutal and cruel – He had pinned down and tromped the deceased using his legs and hands fracturing four ribs, contusing and injuring the spinal cord, the chest and neck of the deceased – The injuries were sufficient in ordinary course of nature to cause death – Since the death of the victim-deceased was homicidal as a result and direct consequence of the injuries inflicted by appellant-K, he was rightly convicted under the aforesaid sections including s.302 – As regards, appellant and appellant-G, their acts cannot be primarily connected with the violence perpetuated by appellant-K – Appellants-T and G had not assaulted the deceased after he had fallen down and were not responsible for the injuries suffered by the deceased resulting in his death – The assault by appellant-K and the result outcome were unexpected to them – Appellants-T and G are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention – Therefore, they cannot be held guilty u/s.300 or even s.299 IPC – Their conviction is converted to u/ s.323 r/w s.34, however their conviction for individual offences u/ ss.447, 504, 506 and 341 is sustained. Penal Code, 1860: s.34 – Applicability of – Common intention – To attract applicability of s.34, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another – The ultimate act should be done in furtherance of common intention – Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack – For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference – However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. Penal Code, 1860: s.34 – Common intention – Principles – For s.34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed – Common intention can be formed just a minute before the actual act happens – Common intention is necessarily a psychological fact as it requires prior meeting of minds – In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved – This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence – The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of s.34 are satisfied. Penal Code, 1860: s.34 – Liability of co-perpetrator – A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act – If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable – This test obviously is fact and circumstance specific and no strait jacket universal formula can be applied – s.34 makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability – For s.34 to apply, there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. |
