'No Overt Act' : Supreme Court Set Aside Conviction Under Section 323 r/w 34 IPC

The Supreme Court recently set aside the conviction under section 323 read with section 34 IPC(joint liability) on the ground that the appellants themselves did not do any act which can be attributed to them in the incident. The case related to the assault of a woman who was beaten to death. However, the specific role played by appellants in the crime was not proved.The Supreme Court bench comprising Justices S. Ravindra Bhat and Aravind Kumar held : “In the absence of any incriminating material or other corroborative evidence pointing the participation of appellants in the incident, the conviction of appellants under Section 323 read with Section 34 of IPC cannot be sustained.”Moreover, the court observed that “there was no cogent and positive evidence available to prove or establish the fact that appellants had assaulted the deceased. The witnesses have nowhere whispered about any overt acts of appellants”.BACKGROUND OF THE CASEIt was alleged that 6 persons went to the home of Smt. Anjamma (deceased) where she was assaulted, kicked in the stomach, and eventually died. A complaint was registered against all of them. In 2012, Sessions Judge acquitted them for the offence under Section 302 IPC but found all of them guilty under section 323 read with section 34 IPC. Two of them filed an appeal which was dismissed by High Court in January 2023.Aggrieved by the same, they filed a criminal appeal before the Supreme Court. ARGUMENTSMere presence at the crime scene does not establish a common intention for Joint Liability contended appellantsThe appellants argued that as far as they are concerned, they did not assault or kick the woman in her stomach. The prosecution had failed to attribute any specific acts to them. The appellants contended that mere presence at the crime scene does not establish a common intention to constitute joint liability under section 34, IPCFurther, they submitted that the no-injury certificates were produced by the relatives of the deceased who claim to have been assaulted.They contended that there’s no incriminating material, there are just vague statements. As such the ingredients of section 34 are not fulfilled and therefore their conviction must be set aside.SUPREME COURT’S ANALYSISThe Supreme Court took note of the appreciation of evidence by Sessions judge where it was observed that “we cannot say that appellants too had participated in assaulting the deceased.” The Court observed that there was no evidence at all linking the appellants to the crime. The relatives of the deceased who claim to have been beaten have not produced any injury certificate.The court also observed, “Nowhere they have whispered about any overt acts of appellants herein.”The court held that appellants cannot be convicted since there’s no incriminating material against them to show that they participated in assaulting the deceased.Therefore, their conviction cannot be sustained in law and the appellants were ordered to be released immediately.Case title: Boini Mahipal v State of TelanganaCitation: 2023 LiveLaw (SC) 546 Head NoteIndian Penal Code. Section 34-In the absence of any incriminating material or other corroborative evidence pointing to the participation of appellants in the incident, the conviction of appellants under Section 323 read with Section 34 of IPC cannot be sustained (para 12)Click Here To Read/Download Judgment

'No Overt Act' : Supreme Court Set Aside Conviction Under Section 323 r/w 34 IPC

Suraj Kumar

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