Case – Suresh v. State of U.P., 2001
Fact
Ramesh and Suresh were brothers. Ramesh was living in his house along with his wife and four children. There was some land disputes between Ramesh and Suresh. Suresh along with his brother-in-law made plan for killing of all members of family of Ramesh. In midnight Suresh along with his brother-in-law Ramji attacked over family of Ramesh and killed all members except Jitendra (Seven Years) who also suffered injuries but fortunately survived. Pavitri Devi w/o Suresh was also charged for exhortation. Suresh, Ramji and Pavitri were charged under sections 302 r/w 34.
Issue
Whether Section 34 will be applicable in this case?
Contentions & Judgement:
- According to Section 32 ‘act’ includes omission and according to Section 33 ‘act’ denotes as well as series of acts as single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts.
- There are two types of vicarious liability namely; (a) vicarious liability in the criminal jurisprudence (b) vicarious liability in the civil jurisprudence (Law of Torts). Section 34 of IPC recognizes the principle of vicarious liability in the criminal jurisprudence.
- It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention.
- It is a rule of evidence and does not create a substantive offence. It means this Section itself does not constitute any offence. The only use of this Section is to prove the liability of the co-accused. So, if there is only one person who has committed crime this Section will not be applicable.
- Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
- Participation of all is necessary. If there is only common intention but there is no participation, person may be liable under Section 109 or 120B but his matter will not cover under Section 34. Even exhortation to another accused would amount to participation.
- No need of substantial act. It is enough that the act is only for guarding the scene. Here covert act means illegal omission. According to Section 32 act includes illegal omission. The act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do certain act in certain situation can amount an act.
- Hence an act, whether overt or covert is indispensable to be done by the co-accused to be fastened with the liability.
