Ram Khilawan Kushwah vs State of Madhya Pradesh

U.L. Bhat, C.J.

The second accused in the charge sheet filed before the Sessions Court Jahlapur, has filed this petition to quash the charge framed against him (along with the first accused), u/s 302/34 of the I.P.C.

According to the prosecution, there was a monetary transaction between  the second accused and the deceased which led to misunderstanding and ill-feeling. On two occasions, the two accused went to the deceased''s house and in his absence and in the presence of his mother, uttered threats against the deceased. A day before the occurrence, the two accused were heard discussing about doing away with the deceased. On the day of occurrence, viz. 4.6.92, when the deceased was going on his cycle, the first accused hit him from behind with a Farsa as a result of which he died instantaneously. A person who came across the dead boby, informed the police who registered a case. First accused was arrested and the weapon of offence was recovered on the basis of information furnished by him. Second accused was also implicated and final charge sheet was tiled against him. In due course, the Court trained charges against both the accused u.s 302/34 I.P.C..

The only contention urged by learned counsel for the petitioner is that it is not the prosecution case that the assault on the deceased was made in the immediate or proximate presence of the second accused and, therefore, second accused could not have been roped in by virtue of section 34 of the I.P.C.

The leading case on section 34 of the I.P.C. is of Barendra Kumar Ghosh v.s King Emperor (1). The decision speaks of ''participation in action'' which expression has been discussed elaborately and explained in several decisions of the Supreme Court.

Strong reliance has been placed by the petitioner on the decision in Shreekantiah Ramayya Munipalli and another vs. State of Bombay (2). This was a case of criminal mis-appropriation. The Court, relying on Barendra Kumar''s case, observed :

It is the essence of section 34 that the person must be physically present at the actual commission of the crime. He need not be present in the actual room: he can for instance, stand guard by a gale out side ready to warn his companions about any approach of danger or wail in a car on a nearby road ready to facilitate their escape, but he must be physically present at the time of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being commited. The antithesis is between the preliminary atages, the agreement, the preparation, the planning, which is covered by section 109 and the stage of commission when the plans are put into effect and carried out: section 34 is concerned with the latter. It is true there must be some sort of preliminary planning which may or may not be at the scene of crime and which may have taken place long beforehand, but there must be added to the element of physical presence at the scene of occurrence coupled with actual participation which of course can be of a passive Character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readyness to play his part in the pre-arranged plan when the time comes for him to act.

This decision has been followed in Shivprasad Chunilal Jain vs. State of Maharashtra (3). Sec also Ramaswami Ayyangar and others vs. State of Tamil Nadu (4).

In this connection it would be instructive to refer to two other decisions of the Supreme Court. The first is Jaikrishnadas Manohardas Desai and another vs. State of Bombay (5) which is also a case of misappropriation. The Court, after referring to Barendrakumars case distinguished the decision in Jaikrishnadas Manobardas Desai in the following words.

To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be doing the act, not merely in its planning. A common intention a meeting of minds - to committ an offence and participation in the ommission of the offence in furtherance of that common intention invites the application of section 34. But this participation need not, in all cases, be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability, may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. In Shreekantiah''s case, misappropriation was committed by removing goods from Govt. Depot and on the occasion of removal of goods, the first accused was not present. It was, therefore, doubtful whether he had participated in the commission of offence and this Court, in those circumstances, held that participation of the first accused was not established. The observations made is Shreekantiah Ramayya Munipalli and another vs. State of Bombay (1), in so far as they deal with section 34 I. P. C, must, in our judgment, be read in the light of the facts established and are not intended to lay down the principle of universal application.

(Emphasis supplied).

In Tukaram Ganpat Pandare vs. State of Maharashtra (2), the Supreme Court dealt with a case of house-breaking and removal of copper wire from the godown broken into. The appellant before the Supreme Court was not physically present at the scene, though he was present far away and had custody of the keys. The Court observed :

mere distance from the scene of the crime cannot, exclude culpability u/s 34 which lays down the rule of joint responsibility for a criminal act performed by a plurality of persons. In Barendra Kumar Ghosh vs. King Emperor (3), the Judicial Committee drew into the criminal not those "who only stand and wait". This does not mean that some form of presence, near or remote, is not necessary, or that mere presence, without more, at the spot of crime, spells culpability. Criminal sharing overt or covert by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34. Even assuming that presence at the scene is a prerequisite to attract section 34 and that such propinquity is absent, section 107 which is different in one sense, still comes into play to rope in the accused.

It is manifest that the learned Sessions Judge had not applied his mind to all the relevant principles referred to above in deciding whether a charge could he framed against the second accused u/s 302/34 I.P.C. This would require a careful examination of the materials relied on by the prosecution and if on a proper understanding of section 34, it is found inapplicable, the Sessions Judge would have to consider the applicability of section 107 I.P.C.

In the above view, I do not propose to quash the charges. It is sufficient to direct the learned Sessions Judge to examine the charge against the second accused fife novo and pass appropriate orders in accordance with law and in the light of the observations in this order.

The criminal revision is accordingly disposed of.