Section 34 IPC : Prior Concert & Pre­arranged Plan Has To Be Established For Conviction Invoking 'Common Intention' : Supreme Court

The Supreme Court observed that existence of a prior concert and pre­arranged plan has to be established for convicting accused by invoking Section 34 of the Indian Penal Code.

In this case, the appellant was concurrently convicted under Section 302 read with Section 34 of the Indian Penal Code. The prosecution case was that one Arjun stabbed the deceased with his knife and the appellant was also involved in this crime as he brandished his knife and threatened to assault a person who was accompanying the deceased.

Before the Apex Court, the appellant contended that the Section 34 of IPC was not attracted in the present case as the prior concert and pre­arranged plan to kill the deceased has not been established. He submitted that the only overt act alleged against the appellant is of brandishing a knife and threatening to assault the victim. The State, on the other hand, contended there was a meeting of minds and prior concert on the part of the appellant and Arjun.

Referring to the evidence on record, the bench noted that the prosecution did not examine two crucial witnesses, who apart from being eye witnesses, were sitting along with the appellant  just before the incident near the place of incident.

"The prosecution has not explained its failure to examine these two crucial witnesses, who apart from being eye witnesses, were sitting along with the appellant and Arjun just before the incident near the place of incident. The prosecution has withheld the evidence of two material witnesses who could have thrown light on the incident. Hence, this is a 8 case for drawing an adverse inference against the prosecution. Moreover, the knife allegedly used by the appellant has not been recovered. According to the prosecution, the appellant questioned the deceased why he had beaten Subhas Chandra, the appellant's elder brother. After that, there was an exchange of words. The exchange of blows was between the deceased and Arjun. The scuffle was between the deceased and Arjun. Ultimately, it was Arjun who stabbed the deceased", the bench observed.

Referring to Section 34 of IPC, the bench, while allowing the appeal, observed:

Common intention contemplated by Section 34 of IPC pre­supposes prior concert. It requires meeting of minds. It requires a pre­arranged plan before a man can be vicariously convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused. In a given case, the plan can be formed suddenly. In the present case, the non ­examination of two crucial eye witnesses makes the prosecution case about the existence of a prior concert and pre­arranged plan extremely doubtful.

Headnotes

Indian Penal Code, 1860 ; Section 34 -  Common intention pre­supposes prior concert. It requires meeting of minds, a pre­arranged plan before a man can be vicariously convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused. In a given case, the plan can be formed suddenly. (Para 9)

Summary: Appeal against concurrent conviction of appellant by invoking Section 34 IPC - Allowed - The prosecution has failed to prove ingredients of Section 34 of IPC in this case - non­ examination of two crucial eye witnesses makes the prosecution case about the existence of a prior concert and pre­arranged plan extremely doubtful. 

Case details

Gadadhar Chandra vs State of West Bengal | 2022 LiveLaw (SC) 287 | CrA 1661 OF 2009 | 15 March 2022

Coram: Justices Ajay Rastogi and Abhay S. Oka

Counsel: Sr. Adv Siddhartha Dave for appellant, Adv Nikhil Parikshith for respondent State