Factual aspects
- This is an appeal preferred by the accused nos.1 and 2. The learned Trial Court convicted accused no.3 – Paro Yadav, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’). The appellants were convicted for the offences punishable under Section 302 read with Section 34 of the IPC and Section 325 read with Section 34 of the IPC. The appellants were sentenced to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 of the IPC. They were also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 325 read with Section 34 of the IPC. Separate appeals were preferred by the appellants and accused no.3 before the Patna High Court. By the impugned judgment and order dated 7th October 2005, the appeals have been dismissed. The accused no.3 – Paro Yadav filed a Petition for Special Leave to Appeal (Criminal) no.4802 of 2006, which this Court dismissed vide its order dated 11th December 2006.
Consideration of submissions
- We may note here that the accused no.3 was charged only under Section 302 of the IPC and Section 34 was not applied. Section 34 of the IPC has been applied only to the present appellants. One of the questions is when the main accused, who is the author of the fatal injuries sustained by the deceased, was not charged with Section 34 of the IPC, whether conviction of the appellants can be sustained. Section 34 of the IPC reads thus:
“34. Acts done by several persons in furtherance of common intention.—
When 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 IPC – vicarious liability – Example:
7. Section 34 essentially introduces vicarious liability. In a given case, where the offence is punishable under Section 302 of IPC, when the common intention is proved, but no overt act of assaulting the deceased is attributed to the accused who have been implicated based on Section 34, vicarious liability under Section 34 will be attracted. In this case, the bullet was fired by the accused no.3, as a result of which, the deceased lost his life. Even without the applicability of Section 34, the accused no.3 could have been convicted for the offence punishable under Section 302 of the IPC. To punish him under Section 302, it was not necessary to apply Section 34 of the IPC. Section 34 was applied to the appellants as they were sought to be roped in by alleging that they shared common intention with accused no.3. To bring a case within Section 34, it is not necessary to prove prior conspiracy or premeditation. It is possible to form a common intention just before or during the occurrence.
Not in every case adverse inference can be taken for withholding the witness
- One of the grounds of challenge is the failure to examine other eyewitnesses. However, in the facts of the case, a total of five eyewitnesses were examined. It is not axiomatic that in every case where the eyewitnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances must be considered for concluding whether an adverse inference could be drawn. We have perused the notes of evidence of the material witnesses.
Merely no attempt to save the deceased cannot be said unnatural conduct
- Merely because they made no attempt to save the deceased or resist the accused is no ground by itself to disbelieve their case. The accused were carrying sticks and a gun. Therefore, the conduct of the appellants cannot be said to be unnatural.
Appellants were together hence there was time available for meeting of minds
- The appellants were together and were in the company of the accused no.3. Obviously, they acted in concert. The appellants were carrying lathi, and the accused no.3, was moving with a musket. There was time available for the meeting of minds. Thus, the existence of common intention will have to be accepted.
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Hence, we find every justification for convicting the appellants by both the Courts. Accordingly, we find no merit in the case, and the appeal is dismissed. As the appellants are on bail, we direct the appellants to surrender before the Trial Court within one month from today to undergo the remaining sentence.
Maheshwari Yadav & Anr. … Appellants versus The State of Bihar … Respondent – CRIMINAL APPEAL NO.1515 OF 2011 – 2023 INSC 1068 – December 13, 2023.
https://main.sci.gov.in/supremecourt/2011/9126/9126_2011_8_1501_49045_Judgement_13-Dec-2023.pdf
Maheshwari Yadav case – 9126_2011_8_1501_49045_Judgement_13-Dec-2023
Further study on the subject
Concept of vicarious liability on section 34 IPC
Dauwalal @ Ganesh vs. State of M.P – Criminal Appeal Nos. 478-479 of 2019 (Arising Out of Special Leave Petition (Criminal) Nos. 457-458 of 2016) – 15-03-2019.
Concept of vicarious liability on section 149 IPC
Krishnappa vs State – (2012) 7 Scale 91
Concept of vicarious liability is unknown to criminal law
The penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Director of the company when the accused is the company. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicariously liabilities [Maksud Saiyed Vs. State Of Gujarat And Others – (2008)5 SCC 668 Followed M/S. Ghcl Employer Stock Option Trust Vs. M/S India Infoline Ltd – AIR 2013 SC 1433].
It is to be noted that the concept of ‘vicarious liability’ is unknown to criminal law [M/Sthermax Ltd V. K.M.Johny – (2012)1 L.W (Cri) 367 (SC)=2011 (4) Crimes 179 (SC)=2011(11) SCALE 128=2011 AIR SCW 5952 Followed In Maksud Saiyed Vs. State Of Gujarat And Others – (2008)5 SCC 668 Followed M/S. Ghcl Employer Stock Option Trust Vs. M/S India Infoline Ltd – AIR 2013 SC 1433].
There is no vicarious liability in criminal law unless statute specifically provides for such fastening of liability. No one can be fastened with criminal liability for act of others except as expressly provided by law. The normal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an act of another. [Mrs. Aparna A.Shah vs. Sheth Developers – 2013(8) SCALE 140=2013-2-L.W (Crl) 454(SC)=(2013)8 SCC 71].
No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. Thus, an individual who has perpetrated the commission of an offence on behalf of company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision [Sunil Bharti Mittal vs. Central Bureau of Investigation – 2015(1) MLJ (Crl) 231 (SC-3Judge Bench)].
Concept of Joint liability
Section 34 IPC: Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, section 34 of the Penal Code makes an exception to his principle. It lays down a principle of joint liability in the doing of criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act shared, common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration [Goudappa And Others Vs. State Of Karnataka – (2013)2 SCC (Cri) 8=(2013)3 SCC 675].
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intentions of all’, nor does it say ‘an intention common to all’. Under the section, the essence of that 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. 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 the furtherance of the common intention of all’ if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone[Mahbub Shah Vs. King Emperor – (1944-45) 72 IA 148=(1945)58 LW 368=Air 1945 PC 118 Followed In Syed Yousuf Hussain Vs. State Of A.P – (2013)2 SCC (Cri) 497=(2013)4 SCC 517].
Concept of constructive liability for section 34 IPC and section 149 IPC
- Both Sections 34 and 149 IPC deal with combinations of persons who become punishable as sharers in an offence. In both these sections, the persons are vicariously responsible for the acts of others. Simultaneously, there is a basic resemblance in both these sections and to some extent they also overlap. 51. There is a substantial difference between these two sections with which we would deal in the later part of this judgment. When several persons, numbering five or more, do an act or intend to do it, both Sections 34 and 149 IPC may apply. Section 149 IPC is of wider scope than Section 34 IPC and in a case where Section 149 applies, a constructive liability arises in respect of those persons who do not actually commit the offence [Virendra Singh vs. State of Madhya Pradesh – (2010) 8 SCC 407=[2010] 9 SCR 772 – Criminal Appeal No. 1316 of 2002 – Decided On: 09.08.2010.
Extra study on the subject
Vicarious liability in section 138 N.I cases and its impact if firm not added an accused
Common object, common intention, unlawful assembly and overtact
common intention (section 34 IPC) & Appreciation of eye-witness – explained
