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Section 34 of IPC is usually a order of justification and does not emanate a concrete offence.

Supreme Court of India

Bench: Doraiswamy Raju, Arijit Pasayat.
CASE NO.:Appeal (crl.) 622-624 of 2003

PETITIONER:Anil Sharma & Ors.

RESPONDENT:State of Jharkhand

DATE OF JUDGMENT: 30/04/2004

BENCH:DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:J U D G M E N T With Crl.A. No. 798 of 2003

ARIJIT PASAYAT, J.

Six persons faced hearing for purported elect of offences punishable underneath Sections 147, 148, 149, 326, 307 review with Section 34, 452 review with Section 34 and 302 review with Section 34 of a Indian Penal Code, 1860 (in brief a ‘IPC’). Appellant-Anil Sharma was condemned to death. The others were condemned to bear seizure for life underneath Section 302 review with Section 34 IPC. Each was condemned to bear severe seizure for 10 years and to compensate a excellent of Rs.2,000/- any with default chapter for a corruption punishable underneath Section 307 review with Section 34 IPC.

The assign chronicle in a nutshell is as follows:

Hare Ram Singh @ Manoj Singh (PW-6) who was a cousin of Sudhir Singh @ Bhoma (hereinafter referred to as a ‘deceased’) lodged fardbayan. He claimed to be an harmed in a occurrence in doubt that took place on 22.1.1999. The occurrence is pronounced to have taken place during 6.45 A.M. on that day in Ward No. 2 of Jail Hospital in Birsa Munda Central Jail, Ranchi and on a basement of fardbayan, Lower Bazar P.S. Case No. 12/99 was purebred during 11.00 A.M. on that day and grave F.I.R. (Ext. 8/1) was drawn up. The pronounced Fardbayan (Ext.8) along with a grave F.I.R. (Ext.8/1) was perceived in a probity of C.J.M., Ranchi on 23.01.1999.

Recital in a fardbayan was that PW-6 had left to Ward No. 2 of a Jail Hospital during 6.45 A.M. on 22.01.1999 as common to his cousin defunct Sudhir Singh @ Bhoma from his Ward No. 6 of a Jail and he used to lay with Sudhir for a whole day and he also used to keep his garments etc. there. Soon thereafter, when he was articulate with defunct Sudhir Singh, accused- appellants Anil Sharma, Sushil Srivastava, Niranjan Kumar Singh, Md. Hasim @ Madhu Mian all armed with Chhura, Bablu Srivastava and Gopal Das armed with belt and iron rod respectively along with 10 or 12 other persons came nearby defunct Sudhir Singh and appellant Anil Sharma reason reason of his collar and during this theatre defunct asked as to “what has happened, brother” and in a meantime appellant Anil Sharma assaulted him by Chhura and appellant Sushil Srivastava, Niranjan Kumar Singh and Md. Hasim @ Madhu Mian finished conflict on him by Chhura with that they were armed and appellant Bablu Srivastava and Gopal Das also assaulted him by belt and iron rod respectively, besides 10 or 12 other persons aforesaid who had surrounded and assaulted him. The adviser (PW-6) requested appellant Anil Sharma to let off and leave defunct Sudhir Singh and also enquired as to what is a matter, yet no relief and a defunct fell on a belligerent as a outcome of injuries sustained. Appellant Anil Sharma afterward mounted conflict on a adviser and inflicted a blow on his neck by Chhura and appellant Sushil Srivastava and Niranjan Kumar Singh assaulted him by Chhura causing draining damage on his conduct and left palm respectively. The adviser (PW-6) also fell down being harmed and other persons aforesaid also assaulted him by kicks and fists. There was afterwards a toll of alarm bell. After few mins a Jail constables came there floating whistles and during that duration there was a good bolt and defunct Sudhir Singh in an comatose state along with a harmed adviser was shifted to R.M.C.H. Ranchi for diagnosis where a adviser was undergoing treatment. But Sudhir Singh died on his approach to a Hospital.

The hearing Court found a indicted persons guilty on care of a justification led by a assign by examining 18 witnesses. Twelve witnesses were examined on interest of a indicted persons who pleaded ignorance and fake implication. They took a specific mount that they were in their wards inside a jail and, therefore, a doubt of committing any murder was totally improbable. There was no news finished by Hare Ram Singh (PW-6) as claimed. The Trial Court accessible self-assurance and awarded sentences as afore-noted. For a conclusions Trial Court essentially relied on justification of PWs 5 and 6, who claimed to be eye witnesses.

In perspective of a genocide visualisation imposed on indicted Anil Sharma a anxiety was finished to a Jharkhand High Court underneath Section 366 of a Code of Criminal Procedure, 1973(in brief a ‘Code’). The High Court inspected a self-assurance as accessible by a hearing Court yet altered a visualisation of genocide imposed on a indicted appellant-Anil Sharma to one of life imprisonment. In substance, solely a alteration of visualisation so distant as indicted appellant Anil Sharma is concerned, a interest was dismissed. Evidence of witnesses was analysed in perspective of a mount that a supposed eye witnesses chronicle is clearly not able of acceptance.

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In support of a appeals, it has been submitted that there was check in recording a FIR. There was non-examination of many critical witnesses. Evidence of a counterclaim witnesses was not delicately analysed. PW-6 after on finished a matter underneath Section 164 of a Code that his justification was accessible underneath pressure. There were exaggerations in honour of what had been indicated in a Fardbayan as recorded. Non prolongation of a sanatorium register and non hearing of a Warden and Head Warden, expel critical doubts on a sincerity of a assign chronicle and a Courts next should not have brushed aside those infirmities lightly. The prolongation of a register and a hearing of a supervisor and conduct supervisor would have determined that place of occurrence as indicated is rarely improbable. The citus has not been proved. No blood stains have been found or seized. PW-6 is not a proprietor of a jail. He claimed to be an invalid of Ward No.6 and yet he settled that he was inside a stay of a jail, zero component in that courtesy has been established. As shortly as PW-6 came out of a jail in May 2001, he filed an confirmation saying as to how a statements finished by him during hearing were wrong. It has been erroneously reason that no influence was caused by not removing him re-examined. Different yardsticks have been adopted for a assign and a counterclaim witnesses. PW-5’s appearance during a mark of occurrence as claimed is rarely doubtful. The canteen manager himself has improbabilised a appearance of a witnesses. Even if it is supposed that PW-5 was benefaction his justification does not pledge truthfulness. There was no confirmatory material. After carrying deserted a justification of PWs 1, 2 and 4 there was no justification to act on a justification of PWs 5 and

6. The FIR has been despatched after substantial check and there has been behind hearing of PW-5. So distant as PW-5 is concerned, he was examined underneath Section 164 of a Code. He has not named Sushil Srivastava in a matter accessible before a Magistrate yet in a cranky hearing he supposed that what was settled before a Magistrate was correct. The conflict partial as indicated by PW-6 in a supposed FIR was given a go by in Court. Though in a FIR it was settled that a conflict was finished by sold weapons a Court has come to a unreserved end that no earthy conflict was finished yet by holding a conduct a murdering by indicted Anil Sharma was facilitated.

Section 34 IPC has been poorly applied. There was no specific purpose attributed to any of a indicted persons solely a indicted Anil Sharma. The craziness between a justification of PWs 5 and 6 probabilises a counterclaim version. Even if it is supposed that a indicted persons solely indicted Anil Sharma were benefaction if there was no appearance a self-assurance as finished is not maintainable.

In response, schooled warn for a State submitted that in serve to a justification of a aforesaid witnesses, a justification of other PWs some-more particularly, PW-12 shows that a occurrence took place inside a jail. The indicate views of a hearing Court and a High Court should not be interfered with. The justification of PWs 5 and 6 shows that they are arguable and believable. Merely since some papers have not been constructed that does not in any approach intermix a assign chronicle or describe a justification of a eye-witnesses doubtful. No influence has been caused to a indicted in any demeanour by not usurpation a prevaricating mount of PW-6.

The justification of PWs 5 and 6 has been pounded by a accused-appellants on a belligerent that their appearance during a purported mark of occurrence is not believable. Non-production of certain papers and non-examination of some of a central witnesses were pulpy into service. It is loyal that PW-6 finished an focus for removing examined new and a same was incited down. Again a counterclaim filed a identical application. The Court deliberate a same and found it to be yet substance. PW-6 was examined in Court on 22.1.2000, 25.1.2000 and 27.1.2000. He finished an focus before Trial Court on 17.7.2001 about purported vigour on him to overthrow falsely. A unclothed reading of a same shows that a same is intensely deceptive and bereft of substance. Though it was settled vigour was put on him and he was subjected to third grade treatment, he has not privately named anybody and finished deceptive discuss about “some military officials”.

Further, a indicted during opposite stages prayed to remember PWs 5 and 6 that a Trial Court rejected. The orders had achieved finality. The petition of PW-6 was deliberate in fact by a Trial Court and was deserted by sequence antiquated 8.8.2001. It appears that indicted persons had filed an focus on 3.7.2001 with a ask to inspect PW-6. Same was also deserted by sequence antiquated 5.9.2001. Both a orders antiquated 8.8.2001 and 5.9.2001 achieved finality and also do not humour from any infirmity.

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So distant as one of a points that was highlighted was that no reasoning reasons have been given to drop a ask finished by PW-6 for his uninformed examination. This aspect was privately urged before a High Court and has been considered. It was reason that a counterclaim seemed to be after suspicion and there was no reasoning reason for usurpation a prayer. It is loyal that in a given box a indicted can make an focus for adducing additional justification to justify his explain of innocence. Whenever any such focus is filed before a Court, acceptability of a ask in doubt is to be objectively considered. The High Court has elaborately dealt with this emanate and resolved as to how a ask was righteously reason to be not tenable.

It is not that in any box where a declare who had given justification before Court wants to change his mind and is prepared to pronounce differently, that a Court endangered should straightforwardly permit to such ask by lending a assistance. If a declare who deposed one approach progressing comes before a appellate Court with a ask that he is prepared to give justification that is materially opposite from what he has given progressing during a hearing with a reasons for a progressing lapse, a Court can cruise a genuineness of a ask in a context as to either a celebration endangered had a satisfactory event to pronounce a law progressing and in an suitable box accept it. It is not that a energy is to be exercised in a slight or arrogant manner, yet being an difference to a typical sequence of ordering of interest on a basement of annals perceived in well-developed cases or unusual conditions a Court can conjunction feel unable nor surrender a avocation to arrive during a law and infer a ends of justice. The Court eventually can positively be guided by a metaphor, apart a pellet from a chaff, and in a box that has revealing impress of discretion and genuineness in a prayer, a same has to be accepted, during slightest to cruise a worth, credit and a acceptability of a same on merits of a component sought to be brought in.

Non-production of papers that a appellants explain would have strengthened a explain of deficiency of PW-5 can't in any approach intermix a evidentiary value of a verbal testimony. Even yet a witnesses have been cross-examined during length, no component craziness has been elicited to drop a justification of PWs 5 and 6. One of a pleas that was pulpy into use is purported attribute of PWs 5 and 6 with defunct and their rapist antecedents. As righteously beheld by a High Court on a aforesaid basement a justification that is found guileless and convincing differently should not be discarded. The Courts have to keep in perspective that in such matters low inspection is necessary. After carrying kept these beliefs in perspective a Trial Court and a High Court have found that a justification when delicately analysed on a whole was credible. After low inspection a Courts next have found that there is ring of law in a justification of PWs 5 and 6.

So distant as a check in despatch of a FIR is concerned, it was remarkable by a High Court that a informant’s Fardbayan was accessible during 10.00 a.m. on 22.1.1999. The inquisition news was prepared on 22.1.1999 during 1925 hours. The inquisition news was prepared by Executive Magistrate and a box series is also mentioned. That being so, counterclaim that a Fardbayan being ante timed has not been established. Post mortem was conducted on 22.1.1999 during 2200 hours. Above being a position, there can be no pellet of doubt that a Fardbayan was accessible on a date of occurrence and filed during a indicated time and a box has been instituted on a basement of a pronounced Fardbayan. Finding accessible by a High Court that Fardbayan was not ante timed is abundantly upheld by justification on record and no inauspicious perspective as claimed by a accused-appellants can be taken.

So distant as a doubt as to either equal diagnosis being given to a justification of assign and counterclaim witnesses is concerned, there can be no argue with a tender in law. In a benefaction box it is not that a Courts next glossed over a justification of counterclaim witnesses. In fact minute research has been finished to interpretation as to because no significance can be trustworthy to their evidence. After delicately analysing a assign justification and that tendered by a accused, a hearing Court accessible a conviction. The High Court in interest finished serve minute research of a justification and came to reason that there was no feebleness in a conclusions of a hearing Court. The conclusions are not shown to humour from any feebleness whatsoever to aver interference.

Another indicate stressed by schooled warn for appellant relates to qualification of Section 34IPC.

Section 34 has been enacted on a component of corner guilt in a doing of a rapist act. The Section is usually a sequence of justification and does not emanate a concrete offence. The sold underline of a Section is a component of appearance in action. The guilt of one chairman for an corruption committed by another in a march of rapist act perpetrated by several persons arises underneath Section 34 if such rapist act is finished in avail of a common goal of a persons who join in committing a crime. Direct explanation of common goal is occasionally accessible and, therefore, such goal can usually be unspoken from a resources appearing from a valid contribution of a box and a valid circumstances. In sequence to move home a assign of common intention, a assign has to settle by evidence, either approach or circumstantial, that there was devise or assembly of mind of all a indicted persons to dedicate a corruption for that they are charged with a assist of Section 34, be it pre-arranged or on a coax of moment; yet it contingency indispensably be before a elect of a crime. The loyal hint of a Section is that if dual or some-more persons intentionally do an act jointly, a position in law is only a same as if any of them has finished it away by himself. As celebrated in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), a existence of a common goal among a participants in a crime is a essential component for focus of this Section. It is not required that a acts of a several persons charged with elect of an corruption jointly contingency be a same or equally similar. The acts might be opposite in character, yet contingency have been actuated by one and a same common goal in sequence to attract a provision.

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As it creatively stood a Section 34 was in a following terms:

“When a rapist act is finished by several persons, any of such persons is probable for that act in a same demeanour as if a act was finished by him alone.”

In 1870, it was nice by a insertion of a difference “in avail of a common goal of all” after a word “persons” and before a word “each”, so as to make a intent of Section 34 clear. This position was remarkable in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).

The Section does not contend “the common goal of all”, nor does it contend “and goal common to all”. Under a supplies of Section 34 a hint of a guilt is to be found in a existence of a common goal animating a indicted heading to a doing of a rapist act in avail of such intention. As a outcome of a focus of beliefs enunciated in Section 34, when an indicted is convicted underneath Section 302 review with Section 34, in law it means that a indicted is probable for a act that caused genocide of a defunct in a same demeanour as if it was finished by him alone. The sustenance is dictated to accommodate a box in that it might be formidable to heed between acts of sold members of a celebration who act in avail of a common goal of all or to infer accurately what partial was taken by any of them. As was celebrated in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is germane even if no damage has been caused by a sold indicted himself. For requesting Section 34 it is not required to uncover some sincere act on a partial of a accused.

The legality of self-assurance by requesting Section 34 IPC in a deficiency of such assign was examined in several cases. In Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) it was reason as follows:

“Sections 34, 114 and 149 of a Indian Penal Code yield for rapist guilt noticed from opposite angles as regards tangible participants, accessories and group actuated by a common intent or a common intention; and a assign is a rolled adult one involving a approach guilt and a constructive guilt yet naming who are directly probable and who are sought to be finished constructively liable.

In such a situation, a deficiency of a assign underneath one or other of a several heads of rapist guilt for a corruption can't be pronounced to be deadly by itself, and before a self-assurance for a concrete offence, yet a charge, can be set aside, influence will have to be finished out. In many of a cases of this kind, justification is routinely given from a opening as to who was essentially obliged for a act that brought about a corruption and such justification is of march relevant”.

The above position was re-iterated in Dhanna etc. v. State of Madhya Pradesh (AIR 1996 SC 2478).

Section 34 IPC has transparent focus to a contribution of a box on all fours, and seems to have been righteously and scrupulously practical also.

Looked during from any angle, visualisation of a High Court does not humour from any feebleness to aver interference. The appeals destroy and are dismissed.

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