An act, whether overt or covert, is indispensable to be done by a co-accused to be liable under Section 34 of IPC: Madhya Pradesh High Court

From the prosecution evidence itself it is apparent that there is lack of evidence requiring to make the accused 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. This was said in the case of The State Of Madhya Pradesh Thr vs Ram Autar [Criminal Appeal No. 542/2003] by Justice G.S.Ahluwalia and Justice Rajeev Kumar Shrivastava in the High Court of Madhya Pradesh

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 incident accused Subhash was driving the tractor by which all the accused persons reached at the placed of incident and after 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 incident has been proved. The prosecution witness 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 same set of evidence and has acquitted Ram Outar and Subhash.

 Per Contra, 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.

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 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 involved. In other words, it requires a prearranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds.”

The Court after perusing the findings of the Trial Court in the light of the above judgment said that, “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”. Hence, the appeal was dismissed and impugned judgment of the Trial Court was affirmed.

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