Charge Under Section 149 IPC Can Be Altered To Section 34 IPC If Common Intention Among Accused Is Proved : Supreme Court

The Supreme Court has held that it is permissible to alter a charge under Section 149 of the Indian Penal Code(IPC) to a charge under Section 34 IPC if the facts prove that the crime has been committed in furtherance of a common intention.

Section 149 IPC provides for vicarious liability of members of an unlawful assembly for the crime committed by any member of the assembly in furtherance of the common object and makes them liable for the same punishment. The condition for invoking this Section is that there should be five or more persons in the assembly.

The Supreme Court was dealing with a situation where three out of the seven persons accused of the offence under Section 307 IPC(attempt to murder) were acquitted. Therefore, the number of convicts under the assembly became less than five. So the application of Section 149 IPC was not possible in the case. The issue before the court was whether it was lawful to use the aid of Section 34 IPC(common intention) to attribute criminal liability to the members of the group.

Referring to various precedents, the Supreme Court held that Section 34 IPC can be used in such a situation if common intention has been proved.

The bench comprising Justices N V Ramana, Surya Kant and Aniruddha Bose observed that Sections 211 to 224 of CrPC, which deal with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges.

"The only controlling objective while deciding on alteration is whether the new charge would cause prejudice to the accused, say if he were to be taken by surprise or if the belated change would affect his defence strategy. The emphasis of Chapter XVII of the CrPC is thus to give a full and proper opportunity to the defence but at the same time to ensure that justice is not defeated by mere technicalities", the judgment authored by Justice Surya Kant obseved.

The bench quoted the dictum laid down by a coordinate bench in the case Karnail Singh v. State of Punjab(1953) as follows :

"..if the facts to be proved and the evidence to be adduced with reference to the charge under section 149would be the same if the charge were under section 34,then the failure to charge the accused under section 34could not result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter".

The bench also quoted from another precedent Nallabothu Venkaiah v. State of AndhraPradesh(2002) as follows :

"...charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."

The bench also observed :

"Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group,there exist a few important differences between these two provisions.Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such 'common intention' is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence".

The Supreme Court observed that the appellants did not suffere any adverse effect when the Punjab and Haryana High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC.

On facts, the SC noted that "the requirements of Section 34 of IPC are well established as the attack was apparently pre­meditated".

"The incident was not in a spur­ of­ the­ moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields. Their attack on 25.01.1998 was thus pre­planned and calculated.There is nothing on record to suggest that the complainant caused any provocation. Specific roles have been attributed to each of the appellants by the injured and the solitary eye­witness, establishing their individual active participation in the crime", the Court observed.

The conviction of the appellants under Section 307 IPC was thus upheld.

Case Details

Title : Rohtas and Another v State of Haryana (Criminal Appeal No.38/2011)

Bench : Justices N V Ramana, Surya Kant and Aniruddha Bose

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