Case Brief : Chittarmal Moti vs. State of Rajasthan

Deciding Authority: Supreme Court of India
Date of Judgement: 8th January, 2003
Bench: Justice Santosh Hegde and Justice B P Singh
Facts of the Case: The deceased Bhura and Ram Narain and Lal Chand, were sleeping in their house in village Joshian Ki Dhani when the appellants herein alongwith five other persons entered the house at about 10 or 11 p.m. and brutally assaulted Bhura and Ram Narain as also Lal Chand, Bhura and Ram Narain succumbed to their injuries but Lal Chand, PW.1, who suffered as many as 24 injuries survived the assault. The first information report was lodged by Bhenru. It may be noticed at this stage that Chittarmal was not named as one of the accused in the first information report. On the basis of the first information report a case was registered under sections 147, 148, 302, 307 and 447 IPC at P.S. Sanganer. In the course of investigation blood stained clothes and the weapons of offence are said to have been recovered at the instance of accused persons. The post-mortem examination of the bodies of Bhura and Ram Narin was conducted which discloses that Lal Chand, had suffered as many as 24 injuries, most of them incised wounds which, in the opinion of the doctor, could have been caused by a heavy long sharp edged weapon. Out of all the injuries two of them were of grievous nature.
Judgement: The Supreme Court held that It is well settled by a catena of decisions that section 34 as well as section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both sections 34 and section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of section 34 for section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non applicability of section 149 is, therefore, no bar in convicting the appellants under section 302 read with section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all.
Applying the principles to the facts, the Supreme Court held that no difficulty in convicting the appellants under section 302 read with section 34 IPC, even though the charge framed was one under section 302 read with section 149 IPC. On the facts proved, it must be held that the appellants came together armed with lethal weapons and simultaneously started the assault on Ram Narain and Bhura, who succumbed to their injuries. When Lal Chand, PW.1 woke up, he was also mercilessly assaulted by both of them inflicting as many as 24 injuries. The remaining accused, apart from the appellants, have been acquitted on a finding that they did not come with the appellants duly armed, they did not share the common object, nor did they take part in the assault on the two deceased or PW.1. Thus the charge under section 302 read with section 149 could not stand, the number of participants in the crime being less than five.
Accordingly the conviction of the appellants is altered under section 302 read with section 34 IPC instead of one under section 302 IPC and the sentence of life imprisonment is maintained. Subject to the above, the appeals are dismissed.