If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 is not permitted: Madhya Pradesh High Court

The Madhya Pradesh High Court in the case of Depu @ Depak vs State Of M.P. on 6 May, 2022 (CRIMINAL APPEAL No. 1052/2009) upheld that if the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 is not permitted.

Facts of the case: On 06.08.2007 near about 07:00 PM, the complainant Ashish was going to Paan shop from his house. He found that the accused persons were quarreling with Rupesh (the injured) and Manish (the deceased). Jogu Mali, Depu Meena, and Ajay Rathore were carrying a knife and assaulting Rupesh. His brother Manish came forward to save Rupesh, Ashok threatened Manish, and then Manish ran away from there. Ashok inflicted the injury to Manish by means of a knife. Accused Jagdish and Depak have instigated Ashok that Manish used to interfere with their business let finish him today. Ravi was carrying a stick. All accused persons have assaulted Manish and Rupesh. The incident was witnessed by localities. Manish and Rupesh were taken to Hospital by Ashish and Sanjay, on the day Manish died. 

Information was given to the Police on which Dehati Nalish was registered, followed by an FIR No180/2007 for the offence punishable under Section 302, 307, 119 read with Section 34 of I.P.C. Learned counsel for the appellants has argued that the learned Additional Session Judge has wrongly convicted the appellants when the prosecution had failed to establish the charges beyond reasonable doubts. It was further submitted by the learned counsel that as per evidence that came on record, the appellants had no intention to commit the murder of Manish. The quarrel of appellants was going on with Rupesh, Manish was trying to save Rupesh and sustained injuries on his chest, and back and died, therefore, the offense will not travel more than 304 (Part-I) of I.P.C. The allegation of causing the injury by means of the knife is only against Ashok, who has undergone 14 years of incarceration. Jagdish, Deepak S/o Jagdish and Ravi have been acquitted by the trial court on the same set of evidence by disbelieving testimony of ocular witnesses. Vishal is said to have caused injury on the back of Manish, others have caused minor injuries hence, they have wrongly been convicted u/s 302 with the aid of section 34 of I.P.C that after acquitting them under section 147,148 and 148 I.P.C. It is further submitted that once all the accused persons have been acquitted for the offence punishable under Section 147, 148 and 149 of I.P.C, as it is not a case of unlawful assemble with common object to commit the murder of Manish. The appellants were not charged under section 34 of I.P.C. therefore, they have been wrongly convicted u/s 302 and 307 I.P.C. with the aid of section 34 of I.P.C.

Judgment: The question before the court was that whether the High Court was justified in convicting Appellants 2 and 3 for commission of offence of murder with the aid of Section 34 IPC which was initially not the charge framed against the appellants by the Sessions Judge.

The court while examining the evidence was of the opinion that had there been the intention to kill Rupesh the appellants would have stabbed his vital part of the body, therefore, they have wrongly been convicted under Section 302 and 307 with the aid of section 34 of I.P.C.So far as section 34 of I.P.C. is concerned, there is no material that appellants shared a common intention to attack Manish (the deceased) and Rupesh (the injured).

If several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter.

The High Court though had the jurisdiction to alter the charge from Section 149 IPC to Section 34 IPC qua the three appellants, in judges view, in the absence of any evidence of common intention qua the three appellants so as to bring their case within the net of Section 34 IPC, their conviction under Sections 302/34 IPC was not legally sustainable.

The evidence led by the prosecution in support of charge under Section 149 IPC was not sufficient to prove the charge of common intention of three appellants under Section 34 IPC though, as mentioned above, on principle of law, the High Court in its appellate jurisdiction could alter the charge from Section 149 to Section 34 IPC. Section 34 IPC does not, by itself, create any offense whereas it has been held that Section 149 IPC does. As mentioned above, the prosecution pressed their case since inception and accordingly adduced evidence against all the accused alleging that all were the members of unlawful assembly under Section 149 IPC and not beyond it. 

The High Court failed to give any reasons in support of altered conviction except saying in one line that conviction is upheld under Sections 302/34 IPC in place of Sections 302/149 IPC, the invoking of Section 34 IPC at the appellate stage by the High Court, could not be upheld.


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