CASE TITLE: VASANT @ GIRISH AKBARASAB SANAVALE & ANR VERSUS THE STATE OF KARNATAKA
“A person present on the scene might or might not be guilty by the application of Section 34, IPC. If he is present on the scene for the purpose of participating in the offence, he would certainly be guilty as a participator in the offence. On the other hand, if he is present there merely as a spectator, he would not be guilty.”, the Court explained.
The Court stated that “every person charged with the aid of Section 34, must in some form or the other participate in the offence in order to make him liable thereunder.”
Because the husband was merely present at the crime scene and didn’t commit an overt act to establish the common intention, the Court held that the husband cannot be held guilty as the prosecution failed to bring direct evidence proving that the husband actively participated or shared his mother’s intention.
A bench of Justices JB Pardiwala and R. Mahadevan heard the case in which the appellant-husband challenged his conviction by the Karnataka High Court. His conviction was based solely on his presence at the crime scene, despite the prosecution failing to prove any overt act on his part.
Setting aside the High Court’s decision, the Court observed that the prosecution’s failure to prove the overt act by the Appellant would not secure his conviction upon being present at the crime scene.
“As held by this Court in Suresh Sakharam Nangare v. The State of Maharashtra, 2012 (9) Judgements Today 116, if common intention is proved but no overt act is attributed to the individual accused, Section 34 of the code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert therefore there must be meeting of mind.”, the court added.
The appellant’s act of pouring water on his burning wife contradicts the allegation that he, along with his mother, set her on fire. Therefore, the Court rejected the argument that the appellant had participated in the commission of an offence with his mother.
“The element of participation in the commission of the offence is the chief feature that distinguishes Section 34, IPC from Section 149, IPC and other kindred sections. This has been emphasised in a large number of decided cases.”, the Court observed.
“Although Section 34 deals with a criminal act which is joint and an intention which is common, it cannot be said that it completely ignores or eliminates the element of personal contribution of the individual offender in both these respects,” the Court stated.
“In the overall view of the matter, we have reached the conclusion that the High Court rightly held the mother-in-law guilty of the alleged crime. However, the High Court at the same time committed an error in holding the husband-appellant no.1 guilty of the offence of murder with the aid of Section 34 IPC.”, the Court held.
Accordingly, the Appeal was partly allowed, acquitting the husband, and maintaining the conviction of the mother-in-law.
