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Gadadhar Chandra vs. The State of West Bengal - (Supreme Court) (15 Mar 2022)

Common intention contemplated by Section 34 of IPC pre¬supposes prior concert requires a pre-arranged plan before a man can be vicariously convicted for the criminal act of another



In facts of present case, the Sessions Court has convicted the Appellant¬-accused for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 ( ‘IPC’). The Appellant has been sentenced to undergo rigorous imprisonment for life. The appeal preferred by the Appellant against the judgment of the Sessions Court has been dismissed by the impugned judgment of the High Court.

The prosecution has withheld the evidence of two material witnesses who could have thrown light on the incident. Hence, this is a case for drawing an adverse inference against the prosecution. Moreover, the knife allegedly used by the Appellant has not been recovered. The exchange of blows was between the deceased and another person. The scuffle was between the deceased and another person.

As consistently held by this Court, common intention contemplated by Section 34 of IPC pre-supposes prior concert. It requires meeting of minds. It requires a pre¬arranged 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 pre¬arranged plan extremely doubtful.

Hence, the prosecution has failed to prove ingredients of Section 34 of IPC in this case. The Appellant has been implicated only with the aid of Section 34. Accordingly, the impugned judgments and orders of the High Court and Sessions Court are set aside. The Appellant is acquitted of the charges against him. Appeal allowed.


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