By Vivek Punia
Section 34 of the Indian Penal Code, 1860 (IPC) states that 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. When several accused are charged with conspiring to commit an offence, some of them may not have actively taken part in the conspiracy by doing an overt act, but if it is proved that they had conspired with those who had done the overt act, they will be punishable as if they had committed the crime. Two deductions can be made from the language of Section 34; first, if the accused who committed the overt act are acquitted, then the other accused who did no overt act will necessarily have to be acquitted, and second, if all except one accused are acquitted, then the remaining accused will also have to be acquitted as a single person cannot conspire with himself. However, this is not always the outcome, as doing so would allow an accused to get acquitted because of a technicality and defeat the purpose of having a criminal justice machinery, thus allowing criminals to continue in their deviant ways.
THE CHARGE
To understand how and when a single accused can be convicted using Section 34, we have to analyze the way a charge is framed. The Supreme Court in Chandra Prakash v. State of Rajasthan, while explaining the purpose of framing a charge, held that, “the accused should be informed with certainty and accuracy of the charge brought against him, there should not be vagueness and the accused must know the scope and particulars in detail.” Trial Courts, while framing charges, generally adopt a precautionary approach and frame individual charges against all co-conspirators. Thus, in a situation where the charge for conspiring and committing an offence fails, the Court can proceed to fix individual liability by analyzing the individual acts done by the accused in accordance with the charges framed against them individually. This approach is in line with Section 218 of the Code of Criminal Procedure, 1973 (CrPC) which states that there shall be a separate charge for every distinct offence. Since the framing of a charge is only the beginning of a trial, the Court can come to an opinion after recording evidence that the charge needs to be altered or new offences need to be added to the charge for which the Court will utilize the power given under Section 216 of the CrPC. In certain situations an accused might be misled about the offence he is being tried for in case of any omission of error in the charge. Illustration (e) under Section 215 of the CrPC elaborates such a situation, it says, “A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1882 . When charged for the murder of Haider Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.” To take care of such contingencies and to decide in what situation such an error or omission would lead to an acquittal, the Legislature had inserted Section 464 in the CrPC which states that no order or judgment by a Court can be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge, unless, in the opinion of the Court, a failure of justice has in fact taken place. Section 464 clothes a Court with residual powers. We’ll get back to Section 464 at an appropriate stage; for now, let’s take an example as a reference point to understand how a charge is framed:
A and B conspire to murder C due to previous enmity. A waits in a car while B goes inside C’s house, fires at him and then both of them flee. The charge framed against A and B would be for committing the offence of Murder under Section 302 read with Section 34 jointly and against B for the offence under Section 302 individually. The individual charge against B under Section 302 would be framed because A did not do any overt act to murder C, so even if conspiracy on A’s part is not proven, B can still be found guilty for his overt act of shooting C without the aid of Section 34.
This example conveys the purpose behind this precautionary approach which is to make sure that an accused is punished for his individual acts if the evidence is found to be reliable and cogent in case the other accused’s are found not guilty. The question of convicting a single accused with the aid of section 34 will not arise in this situation, but what if an individual charge against B is not framed? Will B be entitled to be acquitted by default if the other accused is acquitted? Two scenarios need to be analyzed to answer this question.
SCENARIO NO.1
What would be the outcome if in the above given example a separate charge is not framed against B? Would he also be acquitted if A is acquitted, as a single person cannot conspire with himself? A similar situation arose before the Supreme Court in Hari Shanker v. State of U.P where the High Court had acquitted three of the four accused for an offence under Section 302 read with Section 34 of the IPC but maintained the conviction of the sole convict under Section 302 read with Section 34. The Supreme Court held that “since the acquittal of all co-accused has become final, the conviction of the appellant under Section 34 becomes unsustainable” but this does not mean that an accused cannot be punished for any individual offence which can be attributed to him as the Court held that the crucial test to be determined in such a case was that the Court will have to “determine the individual role of the accused and accordingly find out if he is guilty of any offence”. In this case, the deceased had died due to gunshot injuries and there was ocular and medical evidence which proved that the remaining accused had fired a gunshot which had hit the right wrist of the deceased. The Court set aside the conviction under Section 302 read with Section 34 as it came to the conclusion that this injury could not have been the cause of death and convicted the accused under Section 326 of the IPC for voluntarily causing grievous hurt by dangerous weapons.
The power to convict a person for an offence for which a charge was not framed flows from Section 222 of the CrPC, which states that if a person is charged with an offence consisting of several particulars and only a combination of such particulars is proved which constitutes a complete minor offence, then the accused can be convicted of the minor offence even though he was not charged with it. The Supreme Court in Rafiq Ahmad v. State of U.P., while explaining the parallel between major and minor offences held that “such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree”. In Hari Shankar’s case, the offence under Section 326 could be said to be a minor offence in relation to the offence under Section 302 as the bullet fired by the appellant hit the deceased’s wrist thereby causing grievous hurt, but if the bullet would have hit a vital part of the body, then this act would have been punishable with either under Section 302 or under Section 304 (culpable homicide not amounting to murder).
SCENARIO NO.2
The second scenario which answers the question whether a single accused can be convicted with the help of Section 34 played out in Brathi v. State of Punjab, where two accused were tried for the offences under Section 302 read with Section 34 of the IPC. While one of them was acquitted, the other accused was convicted for the offence under Section 302. The acquittal of one of the accused was not challenged but the other accused challenged his conviction and the High Court observed that since the appellant had not inflicted the fatal blow, he could not have been convicted under Section 302 simpliciter and hence his conviction was altered to one under Section 302 read with Section 34. The Supreme Court upheld the decision of the High Court as the Court observed that “Section 34 can be invoked if the court is in a position to find that two or more persons were actually concerned in the criminal offence sharing a common object. Where the evidence examined by the appellate court unmistakenly proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding”. The Court could not reverse the acquittal of the co-accused in the absence of an appeal against his acquittal by the State, but the Supreme Court held that “the High Court had the entire evidence before it and it was free to reach its own conclusions so as to examine the infirmities for the limited purpose of assessing the impact thereof on the case of the appellant”. The outcome would have been different if the appellate Courts would have come to the conclusion that the acquittal of the co-accused was not bad in law as then the single accused could have only been convicted for his individual role as spelled out in Hari Shanker’s case.
Another contentious issue that can be put to rest here is whether a lone accused can be convicted of murder simpliciter in the absence of a separate charge under Section 302 without the aid of Section 34? The Supreme Court in Willie (William) Slaney v. State of M.P. dealt with a case where two accused were charged under Section 302 read with Section 34. While the co-accused was acquitted, the Supreme Court negated the contention that the single accused cannot be convicted for murder simpliciter in the absence of a charge to that effect and held that “if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter, he cannot escape liability because of the charge unless he can show prejudice”. What would constitute prejudice would depend entirely on the facts and circumstances of a case, but if it is clear throughout the trial that the accused had understood the incriminating circumstances proved against him during the recording of evidence, had been given a fair opportunity to cross-examine the witnesses on all aspects of their testimony and had been given the opportunity to examine the witnesses in his defence, then an error in framing the charge would be of no consequence.
BALANCING THE RIGHTS OF THE ACCUSED WITH THAT OF THE PROSECUTION
Former Supreme Court Judge K T Thomas J. had once said; “I am of the view that ‘unmerited acquittals’ are on account of inefficiency or lapse or even connivance on the part of the Public Prosecutor.” This statement was in reaction to the judgment of the Supreme Court in State of Gujarat v. Kishanbhai, where after acquitting a man accused of raping and murdering a six year old child and stealing her anklets after chopping off her ankles due to serious defects and laxity on the investigating agency’s part.The Supreme Court observed that, “every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice”. Cases like Kishanbhai’s constitute a bulk of the criminal trials where the doctrine of proving the guilt of an accused beyond reasonable doubt comes to the aid of an accused due to the inefficiency and lackadaisical approach of the investigating authorities and not because there is an inherent lack of credibility in the evidence despite the best efforts of the investigating agency. Even though the Judiciary and the Legislature cannot do much to affect the working of the investigating agencies, to avoid adding insult to injury to the victims in a situation where an accused might be acquitted on a mere technicality, Section 464 comes to the Courts aid. The intent behind this section is clear; it is to make sure that an accused is not acquitted on mere technicalities if his guilt has been established beyond reasonable doubt unless it is shown that the accused was indeed misled about the charge brought against him.The scope of this section was elaborated on by the Supreme Court in Willie (William) Slaney’s case where the court held that “in adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand.”
The Supreme Court’s observation in Kammari Brahmaiah v. Public Prosecutor, High Court of A.P. summed up the entire purpose of having codified criminal laws and why mere technicalities cannot defeat the purpose of the criminal justice machinery: “the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. The Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities.” This observation in Kammari Brahmaiah’s case underlines the philosophy behind Sections 464 and 222 which were the reasons why the accused were convicted in Hari Shanker’s case, Brathi’s case and William Stanley’s case, thereby avoiding any miscarriage of justice and punishing an accused whose guilt was established beyond reasonable doubt.
[The author is currently working as a Judicial Clerk to Hon’ble Justice Vinod Goel at the Delhi High Court.]
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