Omission Of S.34 IPC In Judgment Not Fatal Where Common Intention Is Established: Allahabad High Court Upholds Murder Conviction

The Allahabad High Court has observed that the omission of Section 34 IPC in the operative portion of a judgment is not fatal to a case if the prosecution has successfully established the common intention. A bench of Justice Salil Kumar Rai and Justice Ajay Kumar-II clarified that Section 34 IPC is not a substantive offence and does not create an offence by itself; instead, it is merely a rule of evidence that recognizes principle of constructive liability. The Court made these observations while hearing a criminal appeal filed by four individuals challenging a July 2013 judgment passed by the Additional District and Sessions Judge, Fatehpur. The trial court had convicted and sentenced the appellants to life imprisonment for a 2008 murder under Section 302 IPC. Before the High Court, the appellants argued that the trial court erred in convicting them under Section 302 IPC without the aid of Section 34 IPC. They contended that since no specific individual role was assigned to them regarding who fired the fatal shot, their conviction was bad in law. Examining the case records to address this technical argument, the High Court noted that the FIR, the charge sheet, and the charges framed by the trial court were all originally instituted under Section 302 read with Section 34 IPC. The bench further noted that even in the statements recorded under Section 313 CrPC, the accused were explicitly questioned regarding their common intention to murder the deceased. Furthermore, the trial court, in its conclusion at page 24 of the judgment, had clearly held that the accused, in a pre-planned manner with common intention, used firearms to kill the deceased. However, the bench noted that while passing the order of conviction and sentence, the Judge inadvertently convicted the appellants under Section 302 IPC alone. Terming this omission of the trial as a "mere irregularity," the bench rejected the technical objections raised by the accused. It remarked thus: "It is seems to be mere an irregularity. Learned trial Court has concluded that accused were sharing common intention. Law is well settled that section 34 IPC is not a substantive offence in the present case, not only FIR was registered under Section 302/34 IPC but after investigation, the charge sheet was also submitted under the same section. The charges were also framed under Section 302 35 CRLA No. - 3107 of 2013 read with section 34 IPC and even under Section 313 Cr.P.C., they were specifically asked regarding their common intention to murder". The bench reiterated that "even when the charge under Section 34 IPC is not framed, but the prosecution has led the evidence regarding common intention of the assailants and the witnesses have also been cross-examined with respect to such evidence being led by the prosecution, then the assailants can be convicted with the aid of Section 34 IPC". The High Court further observed that direct proof of a common intention is generally difficult to obtain. Instead, the existence of a common intention is a question of fact that can be objectively inferred from the surrounding circumstances and the continuous conduct of the parties. "Even where there is no evidence of prior meeting of minds, but when sequence of events which unfolded during course of occurrence clearly indicates the pre-determination of mind of the accused persons not to cause injury alone but to kill the deceased, their common intention can be inferred from such circumstance", the bench observed. The bench noted that it had come on record that the appellants arrived on the spot, armed with deadly weapons and surrounded the deceased and his family members, and they exhorted them to kill them.Thereafter, they climbed onto the roof of a house and started indiscriminate firing, causing the deceased to sustain fatal injuries and fall on the spot, after which all the appellants ran away together with their deadly weapons. "Therefore, the above chain of events and surrounding circumstances, clearly establishes that the appellants arrived on spot with their common intention to murder the deceased and his family members and in furtherance of this common intention…the appellants' conduct starting from their arrival on the spot and lastly their leaving from the place of incident after commission of crime, clearly establishes their pre-arranged plan and common intention to murder", the bench observed. Therefore, it concluded that the prosecution had successfully proved common intention to murder the deceased on the part of the appellants and even the trial Court reached this conclusion in its judgment. In view of this, finding the omission of Section 34 IPC to be a "minor irregularity", the bench upheld the conviction and dismissed the appeal and upheld the life imprisonment sentence. However, it modified the order to reflect the proper application of law, altering the...

Omission Of S.34 IPC In Judgment Not Fatal Where Common Intention Is Established: Allahabad High Court Upholds Murder Conviction

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Omission Of S.34 IPC In Judgment Not Fatal Where Common Intention Is Established: Allahabad High Court Upholds Murder Conviction

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