Case Note & Summary
The appellant Syed Iqbal, along with three others, was charge-sheeted for offences under Sections 307 and 333 read with Section 34 of the Indian Penal Code. The case arose when police constables apprehended four persons, including the appellant, for involvement in suspicious activities. During the apprehension, co-accused Salim whipped out a knife and stabbed one of the constables (PW3). The appellant’s trial was separated as he had been declared absconder. While two co-accused were acquitted, Salim was convicted. Subsequently, the appellant was tried and convicted under Section 307 read with Section 34 IPC by the Additional Sessions Judge, Achalpur, and sentenced to three years’ rigorous imprisonment. The appellant challenged his conviction before the Bombay High Court, Nagpur Bench. The primary legal issue was whether common intention under Section 34 IPC could be attributed to the appellant when the stabbing was a spur-of-the-moment act by another accused. The appellant’s counsel argued that there was no evidence of premeditation, prior concert, or any role of the appellant in the stabbing; the act was solely to escape custody and the appellant was unarmed. The prosecution contended that the appellant’s presence among the miscreants sufficed to infer common intention. The High Court, after reviewing the evidence and citing the Supreme Court’s decision in Pandurang v. State of Hyderabad, held that common intention requires a prearranged plan and prior meeting of minds; it cannot be inferred merely from simultaneous presence or identical intention. The evidence only showed that the stabbing was an impulsive act by Salim, and there was no material to suggest that the appellant shared that intention. The court thus set aside the conviction, allowed the appeal, discharged the bail bond, and ordered refund of fine, if paid. Counsel fees were fixed at Rs. 5,000.
Headnote
A) Criminal Law - Common Intention - Vicarious Liability - Indian Penal Code, 1860, Section 34 - The conviction under Section 307 with the aid of Section 34 IPC was assailed on the ground that no common intention was established between the appellant and the co-accused who stabbed a constable. The court, after scrutinising the evidence, found that the stabbing was a spontaneous act by the co-accused Salim to escape custody, and there was no prior meeting of minds or prearranged plan. It was held that the prosecution failed to prove beyond reasonable doubt that the appellant shared a common intention with Salim to commit the offence. Consequently, the conviction was set aside as it had occasioned a miscarriage of justice (Paras 6-8).
Issue of Consideration
Whether the appellant can be convicted under Section 307 read with Section 34 IPC when there is no evidence of common intention with the co-accused who inflicted the stab injury
Final Decision
The appeal was allowed. The conviction and sentence were set aside. The appellant was acquitted. Bail bond discharged, fine refunded if paid. Counsel's fees fixed at Rs. 5,000.
Law Points
- Common intention under section 34 IPC requires prior concert or prearranged plan
- it cannot be inferred unless the incriminating facts are incompatible with innocence
- the distinction between common intention and same intention is real and substantial
- a premeditated plan may be formed suddenly but there must be a meeting of minds
- not independent intention to achieve the same object
- mere presence at the scene without evidence of shared plan does not suffice for vicarious liability
Case Details
2017 LawText (BOM) (09) 189
Criminal Appeal No. 246 of 2012
F.N. Haidari, N.B. Jawade
Syed Iqbal s/o. Syed Aziz
The State of Maharashtra, through Police Station Officer, Police Station Paratwada, Tahsil Achalpur District Amravati
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Nature of Litigation
Criminal appeal against conviction under Sections 307 and 34 IPC for attempt to murder.
Remedy Sought
Appellant sought setting aside of conviction and sentence.
Filing Reason
The appellant was convicted by the trial court; he challenged the judgment and order dated 14.3.2012 in Sessions Trial 55 of 2002.
Previous Decisions
The Additional Sessions Judge, Achalpur convicted the appellant under Section 307 read with 34 IPC and sentenced him to three years RI and fine. Three co-accused were tried earlier; one convicted, two acquitted. This appeal is against that conviction.
Issues
Whether common intention under Section 34 IPC can be attributed to the appellant when there is no evidence of premeditation or prior concert, and the stabbing was a spontaneous act by a co-accused in an attempt to escape.
Whether the conviction under Section 307 with aid of Section 34 IPC is sustainable on the evidence that the appellant was merely present and apprehended along with the co-accused.
Submissions/Arguments
Appellant's counsel argued that there was neither direct nor circumstantial evidence of common intention; the stabbing was on the spur of the moment to escape custody; the appellant was unarmed and no premeditation; thus recourse to Section 34 IPC was unwarranted.
Prosecution argued that the appellant was among the miscreants involved in criminal activities, and that was sufficient to attribute common intention and knowledge.
Ratio Decidendi
Common intention under Section 34 IPC cannot be inferred merely from simultaneous presence or identical intention; it requires a prearranged plan and prior concert, either proved directly or by necessary inference from circumstances that are incompatible with innocence. A spontaneous act by one person without evidence of meeting of minds does not make others vicariously liable.
Judgment Excerpts
I am afraid that the conviction of the appellant with the aid of section 34 of IPC is a serious error and has occasioned a serious miscarriage of justice.
there is absolutely nothing on record to even suggest much less prove beyond reasonable doubt that the appellant – accused shared a common intention with co accused Salim of committing an offence under section 307 of IPC.
Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all.
Procedural History
The appellant and three others were charge-sheeted under Sections 307, 333 read with Section 34 IPC. The case was committed to the Sessions Court. The appellant was declared absconder and his trial was separated from the others. Two co-accused were acquitted and one (Salim) was convicted under Section 307/34 IPC. The appellant was later apprehended, tried, and convicted under Section 307/34 IPC by the Additional Sessions Judge, Achalpur, who sentenced him to three years RI. The appellant filed Criminal Appeal No. 246 of 2012 before the Bombay High Court, which heard and allowed the appeal on 11.08.2017.
Acts & Sections
- Indian Penal Code, 1860: 307, 34, 333
- Code of Criminal Procedure, 1973: 313
