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2010 DIGILAW 60 (CHH)

STATE OF C. G. v. SHIVPRASAD

2010-02-22

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2010
ORDER As per Hon'ble Shri Rajeev Gupta, C.J. :-- 1. Shri Kishore Bhaduri, learned Additional Advocate General, for the State/ petitioner is heard on I.A.No.01/2009, an application for condo-nation of the delay in filing the petition under Section 378(3) of Code of Criminal Procedure (for short 'Cr.P.C. '). 2. On due consideration of the submissions of learned Additional Advocate General and the grounds taken in the application, we are satisfied that the petitioner/State has succeeded in showing sufficient cause for the delay in filing the petition under Section 378 (3) of Cr.P.C. 3. I.A.No.01/2009, therefore, is allowed and the delay in filing the petition under Section 378 (3) of Cr.P.C. is hereby condoned. 4. Shri Kishore Bhaduri, learned Additional Advocate General is heard on the question of grant of leave to appeal against the acquittal of respondent/accused Shivprasad. 5. Police Charcha, District Korea charge-sheeted respondent/accused Shivprasad and his co-accused Bagarsai for the alleged commission of offence punishable under Section 307 read with Section 34 of Indian Penal Code (for short' I.P.C.') on the accusation of their having attempted at the life of complainant Sachidanand on 09.11.2006. 6. The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial held that the prosecution though could establish the charge punishable under Section 307 of the I.P.C. against accused Bagarsai, the prosecution evidence fell short of establishing the charge under Section 307 read with Section 34 of the I.P.C. against respondent/accused Shivprasad. The trial Court, therefore, while convicting accused Bagarsai under Section 307 of the I.P.C. vide impugned judgment dated 18.08.2008, acquitted respondent/ accused Shivprasad of the charge under Section 307 read with Section 34 of the I.P.C. 7. Shri Kishore Bhaduri, learned Additional Advocate General vehemently argued that the trial Court has erred in recording the acquittal of respondent accused Shivprasad though the evidence led by the prosecution at the trial was more than sufficient to establish the charge punishable under Section 307 read with Section 34 of the LP.C. against respondent/accused Shivprasad. 8. In the First Information Report lodged by injured/ complainant Sachidanand, name of respondent/ accused Shivprasad was not mentioned at all. The prosecution case itself is that accused Bagarsai was driving the Jeep and he dashed the Jeep against complainant - Sachidanand in an attempt to kill him. 8. In the First Information Report lodged by injured/ complainant Sachidanand, name of respondent/ accused Shivprasad was not mentioned at all. The prosecution case itself is that accused Bagarsai was driving the Jeep and he dashed the Jeep against complainant - Sachidanand in an attempt to kill him. The prosecution case against respondent/ accused Shivprasad was that he was also present in the said Jeep when his co-accused Bagarsai dashed the Jeep against complainant - Sachidanand. The complainant has not offered any explanation for omission of the name of respondent/accused Shivprasad in the First Information Report. Even assuming that respondent! accused Shivprasad was accompanying accused Bagarsai in the said Jeep at the time of the incident, his participation with the aid of Section 34 of the I.P.C. cannot be held to have been proved by the prosecution in view of the dictum of the Apex Court in the case of Javed Alam Vs. State of Chhattisgarh and another-1, wherein it was observed in paras 21 to 23 : 1. (2009) 6 SCC 450 "21. The other question is the applicability of Section 34 IPC. "5. Section 34 has been enacted on the principle of joint liability in the (commission) of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab (1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109, the existence of a common intention amongst the pm1icipants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of n offence jointly must be he same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 6. The section does not say 'the common intentions of all' nor does it say 'an intention common to all Under the provisions of Section 34 the essence of the liability is to be founded in the existence of a common intention animating the accused leading to the (commission) of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P 1993 Supp.(3) SCC 134: 1993 SCC (Cri) 875; AIR 1993 SC 1899 Section 34 is applicable even if no injury has been caused by the particular accused himself: For applying Section 34 it is not necessary to show some overt act on the part of the accused." The above position has been highlighted in Chimanbhai Jagabhai Patel Vs. State of Gujarat, (2009) 11 SCC 273. 22. There is no evidence, much less credible, which has been salvaged from the onslaught on the witnesses which suggests that there was any meeting of minds, because everything appears to have happened suddenly. State of Gujarat, (2009) 11 SCC 273. 22. There is no evidence, much less credible, which has been salvaged from the onslaught on the witnesses which suggests that there was any meeting of minds, because everything appears to have happened suddenly. The evidence of PW 8 on which the prosecution has placed strong reliance for the purpose of attracting Section 34 IPC gave prevaricating statements so far as others are concerned, though her statement is sufficient to fasten guilt on Samar Vijav Singh. 23. Considering the background facts it is clear that Section 34 has no application. That being so, while dismissing the appeal filed by Samar Vijay Singh, the conviction recorded qua other accused persons has to be set aside which we direct. They shall be released from custody forthwith unless required to be in custody in connection with any other case." 9. On due consideration of the submissions of learned Additional Advocate General; the findings recorded by the trial Court leading to acquittal of respondent/accused Shivprasad; the nature of the overt-act attributed to respondent! accused Shivprasad; the fact that the complainant in his First Information Report did not even mention the presence of Shivprasad at the time of the incident; and in view of the above quoted dictum of the Apex Court in the case Javed Alam Vs. State of Chhattisgarh-1 (supra) we do not find any infirmity in the findings recorded by the trial Court leading to acquittal of respondent/ accused Shivprasad, which may warrant interference by this Court in this appeal against acquittal. 10. For the foregoing reasons, the petition filed under Section 378(3) of Cr.P.C. against the acquittal of respondent/accused Shivprasad fails and is hereby dismissed summarily. Petition Dismissed.