Vicarious Liability With Reference to Section 34 and Section 149 of IPC

The Indian Penal Code, 1860

Joint Liability An overview of the principle of Joint Criminal Liability under IPC, with special reference to Sections 34 & 149

Submitted to:Dr. Pushpinder Kaur Gill Assistant Professor in Laws University Institute of Legal Studies Panjab University Chandigarh

Submitted by:Iti Jhanji B. A. LL.B. (Hons.) 5th Semester Section B Roll No.-46/09

Acknowledgement Upon the successful completion of this project, I would wish to thank everyone who has been a part of it. First and the foremost I thank Prof. Sangita Bhalla, Director, University Institute of Legal Studies, Panjab University, Chandigarh for providing me with the esteemed opportunity of presenting a project report on The Indian Penal Code, 1860 and Dr. Pushpinder Kaur Gill, Assistant Professor in Laws from the same department for the clear concepts which she provided us about the principles of IPC,1860, which rendered great support during the drafting of this submission. And lastly, my heartiest gratitude towards all the respected authors of the numerous books I referred to, during the research process for this submission. It is truly said, Books are our best friends.

Table of Contents 1. 2. 3. 4. 5. 6. 7. 8.

The Concept of Vicarious Liability Principle of Liability Joint Criminal Liability Section 34 and its Ingrediets Section 35 Section 149 and its Ingredients Difference between Section 34 and Section 149 Bibliography

The Concept of Vicarious Liability The law of tort has been used for many centuries to protect personal interests such as property, reputation, body etc. It ensures justice is done by looking into the claimant's need for compensation, which is paid by the defendant who has

committed a breach of duty. The general rule in tort law is that liability is personal, i.e., liability is generally linked to a breach of one’s own duty and a person is liable for the wrongs committed by him only. However, in certain scenarios, the law makes one person being liable for the harm caused by another, because of some legally relevant relationship between the two. This is known as the doctrine of Vicarious Liability. The word 'vicarious' is derived from the Latin word for 'change' or ‘alteration’. Vicarious Liability is an aberration from the norm of holding the tortfeasor liable for damage caused by their own tortuous liability. It is also referred to as imputed negligence. Legal relationships that can lead to imputed negligence include the relationship between parent and child, husband and wife, owner of a vehicle and driver, and employer and employee etc. The persons who are held vicariously liable need not be personally connected to the tort or be in anyway responsible. Thus Vicarious Liability is a form of strict liability. Many reasons have been advanced to justify this departure from the fault principle. It is commonly said that the reasons behind the doctrine of Vicarious Liability are first, that the employer is in a better position to absorb the legal costs either by purchasing insurance or increasing his prices. Secondly, that the imposition of liability should encourage the employer to ensure the highest possible safety standards in running his business. The Latin maxim ‘qui facit per alium facit per se’ that means he who acts through another shall deemed to have acted on his own and ‘respondeat superior’ (“let the master answer”) is commonly used in employer employee relationships.

Notwithstanding these exceptions, it is now generally regarded as a compelling principle of justice that a man should not be penalised for the wrong of another. The principle of Vicarious Liability, which plays an important part in torts and civil law generally, should not be extended to criminal law. But to this rule of non-liability, two exceptions have been recognised in English common law: 1. A master is vicariously liable for libel published by his servant. However, it is open to a master-proprietor to show in defence that the libel was published without his authority and with no lack of care on his part. 2. A master is vicariously responsible for a public nuisance committed by his servant1. It would very often be difficult to check effectively acts of public nuisance by menial servants, unless their masters are made responsible. Under Indian Penal Code, 1860, Vicarious Liability is incorporated under section(s) 34, 35, 36, 37, 114, 141, 146, 149 and under many other sections. It generally means when the ‘actus reus’ and the resultant consequences thereof are attributed to another person and he is made to answer for those consequences.

1 A public nuisance is an act which causes obstruction, inconvenience or damage to the public. In the case of a private nuisance, a master will be held civilly liable and the same principle is applied to public nuisance also.

Joint Criminal Liability: An Overview Definition of Liability Liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfil that duty, and the connection (proximate cause) of that failure to some injury or harm to the plaintiff. Liability also applies to alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a crime, thus making him/her subject to conviction and punishment. Example: Jack Jumpstart runs a stop sign in his car and hits Sarah Stepforth as she is crossing in the cross-walk. Jack has a duty of care to Sarah (and the public) which he breaches by his negligence, and therefore has liability for Sarah's injuries, and gives her the right to bring a lawsuit against him. However, Jack's father owns the automobile and he, too, may have liability to Sarah based on a statute which makes a car owner liable for any damages caused by the vehicle he owns. The father's responsibility is based on "statutory liability" even though he personally breached no duty. A signer of promissory note has liability for money due if it is not paid, and so would a co-signer who guarantees it. A contractor who has agreed to complete a building has liability to the owner if he fails to complete on time.

Joint Criminal Liability Joint Criminal Liability or Joint Criminal Enterprise (hereinafter referred to as JCE) is an important concept in international criminal law. The development of JCE has been controversial from the beginning, and many scholars have called for limited and cautious application of a principle that could lead to “guilt by association.” Indeed, one scholar argues that the JCE doctrine has the potential “to stretch criminal liability to a point where the legitimacy of international criminal law will be threatened.” Before stepping in deep, it is important to understand the basics of JCE liability. A “Joint Criminal Enterprise” is not an element of a crime. Rather, Joint Criminal Enterprise is a mode of liability whereby members are attributed with criminal culpability for crimes committed in furtherance of a common purpose, or crimes that are a foreseeable result of undertaking a common purpose. There are several provisions in the Indian Penal Code which determine the liability of a person committing a crime in combination of some others. In these cases, the persons committing it either have common intention or common object. In IPC, the criminal liability is determined by the in which the person is associated with the crime. There are several ways in which a person becomes a participant in a crime1. He himself commits it. 2. He shares in the commission of the crime. 3. When he sets a third party to commit the crime. 4. Helps the offender, in screening him from Law. The second point is what joint liability is.

Basically, sections 34-38 and 149 of IPC deals with situations where Joint Criminal Liability is formed but to understand Joint Criminal Liability, sections 34 and 149 are important to be understood.

Section 34 Acts done by several persons in furtherance of common intentionWhen a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 34 has been enacted on principle of joint liability in the doing of a criminal act; the section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action 2. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the person who join in committing the crime. Direct proof of common intension is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be its pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The section does not say “the common intentions of all” nor does it say “an intention common to all”. Under the provisions 2 Sewa Ram vs. State of Uttar Pradesh, 2008 I Cri. LJ 802 (S. C.)

of Section 34 the essence of the liability is to found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Persons acting in furtherance to common intention to commit a crime would all be liable to the whole crime, even if they were not present at the scene of crime or did not participate in the commission of the crime, the Supreme Court has stated that "even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them by himself.....," a bench of Justice M.B. Shah and Justice Doraiswamy Raju said. Common intention implies a pre arranged plan, which means prior meeting up of minds. Common intent comes into light before the commission of the crime. Merely seeing two accused at the same spot does not account to the common intention, but it is necessary to prove the meeting up of minds prior to the actual commission of crime.

Ingredients of Section 34 There are three main ingredients of this section: 1. A criminal act must be done by several persons. 2. The criminal act must be done to further the common intention of all, and

3. There must be participation of all persons in furthering the common intention3. Criminal act done by several persons- The term ‘act’ in the section refers to a series of acts as a single act, so also the coverage of the provision is attracted only when there are more than one person involved in committing the criminal act. This is based on the common sense principle that when several persons are alleged to have committed a criminal act, then there is every possibility that different members would have actively given encouragement, help, protection and support, as also actively participated or otherwise engaged in the commission of the criminal act itself. Thus, even though a particular act may have been committed by an individual, where common intention exists, and they had all acted in furtherance of that common intention, then all of them are held liable for that offence. Act done in furtherance of common intention of all- The essence of joint liability under section 34 lies in the existence of a common intention to do a criminal act in furtherance of the common objective of all the members of the group. The word ‘common intention’ implies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in the execution of that plan 4. The acts done by each of the participants may differ and may vary in character, but they must be actuated by the same common intention. In the absence of common intention the criminal liability of the members of the group might differ according to the degree and mode of the individual’s participation in the act. The plan to execute a crime need not be elaborate, nor is a particular interval of time required for the purpose. The scheme may be chalked out suddenly, but all the members must consent to it. In other words, there must be a prior concert among the 3 Girija Shankar vs. State of Uttar Pradesh, AIR 2004 SC 1308. 4 Pandurang Tukia and Bhilia vs. State of Hyderabad, AIR 1955 SC 331.

members of the group in regard to the design in question, so that each of them is aware of the act to be committed.

Guiding Principle of Common Intention The principle of common intention came to be enunciated in what has come to be known as the ‘Indus River Case’ or the case of Mahboob Shah vs. Emperor5. In this case, the deceased Allah Dad and few others were going in a native boat down the river Indus to cut and collect reeds growing on the bank of the river. A mile from the place where they started, they were warned by Mohammad Shah, father of Wali Shah (who absconded and never apprehended), not to cut reeds from the land belonging to him. However, when they continued to cut and load reeds into their boat, they were accosted by Quasim Shah, nephew of Mohammad Shah, who tried to remove the reeds from them and prevent them from moving. When he pushed Allah Dad, the latter struck him with a thick bamboo pole used for rowing and steering the boat. This made Quasim Shah cry out for help. Hearing this, Wali Shah and Mahboob Shah appeared on the scene carrying loaded guns. On seeing them, Allah Dad and his friend Hamidullah tried to escape by fleeing from the place. They were prevented from running by Wali Shah and Mahboob Shah who stood in front of them obstructing their path. Wali Shah shot at Allah Dad killing him instantaneously. Mahboob Shah fired at Hamidullah causing him slight injuries. Wali Shah was never caught thereafter. The trial court sentenced Mahboob Shah to seven years’ rigorous imprisonment for attempting to commit murder. The Lahore High Court, however, convicted him also for murder under Section 302 read with Section 34, IPC, and sentenced him to death. Mahboob Shah went on appeal to the Privy

5 AIR 1945 PC 118.

Council against the conviction for murder and the death sentence awarded to him. Very interestingly, the Privy Council set aside his conviction for murder and allowed Mahboob Shah’s appeal on the ground that there was no evidence to prove that there was a common intention between Mahboob Shah and absconding Wali Shah. The following principles were laid down by the Privy Council: 1. Under Section 34 of IPC, essence of liability is to be found in the existence of a common intention, animating the accused, leading to doing of a criminal act in furtherance of such intention. 2. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention; if it is so then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone. 3. Common intention within the meaning of Section 34 implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal acts were done pursuant to the prearranged plan. 4. It is difficult, if not impossible to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. 5. Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice.

6. The inference of common intention within the meaning of the term under section 34 should never be reached unless it is a necessary inference deductable from the circumstances of the case. Concluding that at best the evidence showed that there was only a common intention to protect Quasim Shah when Mahboob Shah and Wali Shah heard his shouts for help and appeared at the site carrying their guns. They were probably ready to use the same to defend Quasim Shah. In this context, Mahboob Shah accosted, held, and shot at Hamidullah, whereas Wali Shah confronted Allah Dad and shot at him, killing him intantly. The judges of the Privy Council, however, concluded that there was no evidence to show that they shared a common intention to commit the criminal act that resulted in Allah Dad’s death.

Common Intention should be Prior to the Occurrence In Pandurang vs. State of Hyderabad6, the Hon’ble Supreme Court observed that’ it is well established that a common intention presupposes prior concert. It requires pre-arranged plan because before a person 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. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstance of the case. The incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

Intention on the Spot In certain cases, an intention can be formed on the spot. It is not always necessary that all the accused have meditated the 6 AIR 1955 SC 331.

crime, well in advance. In cases, the intention can be formed on the spot. In a fight, all the accused may at a point decide to take out their revolvers and shoot the people of the other party, in order to kill them. Here the decision of killing the people of the other party was taken on the spot. ‘Common’ intention is different from ‘same’ or ‘similar’ intention. The partition that divides same or similar intention and common intention is often very thin, but nevertheless the distinction is very real and substantial. To constitute common intention it is necessary that the intention of each person be known to all the others and be shared by them, whereas this is not so in the case of same or similar intention.

Joint Liability in context of Free Fight The issue of liability of different members of a group of people divided into mutually antagonistic or hostile groups, especially when there is a free fight between them, is one of the most difficult aspects of joint liability. In Balbir Singh vs. State of Punjab 7, a similar question was raised, wherein four persons each belonging to two different groups attacked each other and in the result, one person died. Both, the trial court and the High Court had held that there was a free fight and every assailant was accountable for his own acts committed. However, the Supreme Court held that, in a free fight, there was a movement of body of the victims and assailants and in such a situation it will be difficult to specifically ascribe to one accused the intention to cause injuries sufficient to cause death. Participation of all in Furthering the Common IntentionParticipation is a necessary element or condition precedent to finding of joint liability. The Supreme Court in the case of Kantiah Ramayya Munipally vs. State of Bombay 8 observed that, it is the essence of Section 34 that the person must be 7 AIR 1995 SC 1956.

physically present at the actual commission of crime. He need not be present on the actual spot. He can, for instance, stand outside to warn his companions about any approach of danger.

Section 35 Section 35 of the IPC is in furtherance of the preceding section 34. It reads that When such an act is criminal by reason of its being done with a criminal knowledge or intentionWhenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. If several persons, having the same criminal intention or knowledge jointly murder, each one would be liable for the offence as if he had done the act alone; but if several persons join in the act, each with different intention or knowledge from the others, each is liable according to his own intention or knowledge. Reference can be made to the case of Adam Ali Taluqdar9, where A and B beat C who died. A had an intention to murder C, and knew that his act would cause his death. B on the other hand intended to cause grievous hurt and did not know that his act will cause C’s death. Hence, A was held guilty for murder whereas B was charged with grievous hurt.

8 AIR 1955 SC 287. 9 AIR 1927 Cal. 324.

Section 149 Every member of unlawful assembly guilty of offence committed in prosecution of common objectIf an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Essential Elements To invoke section 149 IPC, the following ingredients must be present1. There must be an unlawful assembly 10. There must be at least five people in such an assembly. 2. There must be some common object of such an unlawful assembly. Here the word “common” must be distinguished from “similar”; it means “common to all and known to the rest of them and also shared by them”. 3. There must be a commission of offence by anyone or more members of such unlawful assembly. 4. The commission of such offence must be in prosecution of the common object shared by all and each of the members of such unlawful assembly. 5. The offence committed in prosecution of a common object must be such that each one of the members of such unlawful assembly knew was likely to be committed. 10 Section 141 of Indian Penal Code, 1860.

In Mizaji vs. State of Uttar Pradesh11, it was held that section 149 IPC has two parts. The liability of a member of an unlawful assembly may arise for an offence committed by any member of the assembly in two ways. The first is where the other members commit an offence, which was in fact the common object of the assembly. The second is where the common object to commit an offence was different from the offence, which was actually committed. For example, the accused X, Y, Z, J and K were alleged to have entered into A’s house in order forcible possession of the house. With the lathis they were carrying, grave injuries were inflicted on A’s limb and he was dragged out of the house to some distance where either J or K shot him with a hidden pistol. In such a case, the member not actually committing the offence will be liable for that offence only if he knew that such offence was likely to be committed in the course of prosecution of the common object to commit the offence originally thought of. The expression “know” does not mean a mere possibility, such as might or might not happen, it imports a higher degree of probability. Further, it indicates a state of mind at the time of commission of the offence and not the knowledge acquired in the light of subsequent events. Under section 149, the liability of the other members for the offence committed during the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may be reasonably collected from the nature of the assembly, arms or behaviour at or before the scene of action12.

11 AIR 1959 SC 572. 12Gajanand vs. State of Uttar Pradesh AIR 1954 SC 695.

Common Intention13 Common Object14

distinct

from

(Difference between Section 34 and Section 149) Both Section 34 and 149, IPC, deal with issues of constructive liability. In other words, a situation when criminal liability attaches to persons for acts not necessarily done by them. There are, however, differences in the scope and nature of operation of the two offences. The difference comes crucial when a charge under Section 149, IPC, is sought to be substituted at a later stage for a charge under Section 34 of the IPC, especially when some accused are acquitted and the number of accused falls below five. In such contexts, the courts would have to carefully examine the evidence to see whether some element of common intention exists which makes the accused persons criminally liable. 1. Section 34 only lays down a principle of joint criminal liability and does not create a separate offence 15 whereas Section 149 creates a specific offence. Thus, membership in an unlawful assembly itself is specifically made liable to punishment. While Section 34 creates joint criminal liability, in which if individuals share a common intention and do acts furthering the same, then all of them are held liable for all acts committed. On the other hand, Section 149 creates ‘constructive criminal liability’ for acts done in prosecution of the common object of the assembly, provided the essential conditions for being an unlawful assembly are fulfilled. 2. ‘Common intention’ in Section 34 is undefined and therefore unlimited in its operation, while ‘common object’ 13 Section 34, Indian Penal Code, 1860. 14 Ibid, Section 149. 15 Dhansai vs. State of Orissa AIR 1969 Ori 105.

in Section 149 cannot go beyond the five objects specifically indicated in Section 141 of the IPC16. 3. The crucial difference between common intention and common object is that while common intention requires prior meeting of mind and unity of intention, common object may be formed without these ingredients 17. 4. While in Section 34, the crucial factor is that of ‘participation’ in Section 149, membership of the unlawful assembly is a sufficient precondition. Thus, in Section 149 there is no need for active participation or contribution for attaining the common intention18. 5. For invoking Section 34, it is sufficient if there are more than two persons involved; however, in Section 149, there have to be a minimum of five persons and more to attract coverage of the provision. 6. For offence under Section 34, some overt act, however small, is a pre-requisite for being made liable. However, in Section 149, the mere fact of being an unlawful assembly itself is sufficient to fix liability.

Girija Shankar Pradesh

vs.

State

of

Uttar

(AIR 2004 SC 1308) In this case Girija Shankar along with three other persons were charge sheeted, tried and convicted for commission of offences under Section 302 and 307 read with Section 34 and 394 of IPC 16 Dani Singh and Ors. vs. State of Bihar 2004 CrLJ 3328 (SC). 17 Chittarmal with Moti vs. State of Rajasthan AIR 2003 SC 796. 18 Jaswant Singh vs. State of Haryana AIR 2000 SC 1833.

by the trial court. Their appeal before the Hon’ble High Court met with the fate of dismissal. During the pendency of the appeal two persons namely, Iqbal Shankar and Junglee died and the appeal stood abated. Girija Shankar preferred the appeal and questioned the legality of his conviction under Section 302 read with Section 34, and Section 307 read with 34. According to the prosecution version, Arun Singh, H.P. Tiwari (PWs) and the deceased decided to stay in village Bhawalia when they were on the way to their village after seeing a village fair at Bhuvreshwar as they wanted to purchase ‘beedi’. It had become dark and was raining. They decided to stay at the house of Raj Bahadur Singh whom H.P. Tiwari claimed to know. In the meantime, the accused persons saw them and thought them as criminals. They shouted at them being notorious and should be beaten. The (PWs) however, resisted their allegations and disclosed their purpose of staying in the village. They were proceeding towards Raj Bahadur Singh’s house when they were attacked upon. Suddenly one of the accused Devi Shankar fired two shots, one of which hit the deceased and the other hit H.P. Tiwari. It was also alleged that the gold ring and watch of deceased were removed by Junglee and H.P. Tiwari’s gun was snatched by Devi Shankar. To prove the prosecution case seven witnesses were examined and the Trial Court observed that there was no direct evidence showing pre-concert or meeting of minds amongst the accused and the possibility of it having developed on the spot cannot be ruled out. The Hon’ble Supreme Court of India observed that on reaching at the said conclusion the Trial Court and the High Court did not appreciate the fact that there was neither any direct nor any circumstantial evidence showing pre-concert of the minds of the accused persons in causing the death of the deceased. Dilating on the provisions of Section 34 the observation of the Hon’ble Supreme Court of India quoted-

“Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them”. The Hon’ble Supreme Court of India took into consideration these

observations made in the cases of Ashok Kumar vs. State of Punjab (AIR 1977 SC 109) and Ch. Pulla Reddy and Ors. vs. State of Andhra Pradesh (AIR 1993 SC 1899). The Hon’ble Supreme Court of India held that the evidence on record does not show that the accused persons shared common intention to kill the deceased. They did not chase the injured and the deceased after they reacted that the deceased and injured are criminals and notorious and should be beaten. They further observed that there was no evidence to show that Devi Shankar had any gun and an intention to use the same and set aside the conviction under Section 302 read with Section 34 but observed that the accused assaulted the injured having shared the common intention to cause the death and maintained the conviction under Section 307 read with Section 34, IPC. The Court also set aside the conviction under Section 394, IPC qua the appellant Girija Shankar on account of no evidence against him.

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