This article is authored by Mohd Atif Zakir. In this exhausted piece of writing he has discussed the case demonstrating common intention and common object in furtherance of committing an offence. Furthermore, this case provides an observation stated by the Apex Court in order to re-examine whether the death penalty can be reversed if the offence is perpetual in nature. Additionally, The article is quite expressive in elaborating some of the Sections of the Indian Penal Code that deal with conspiracy and murder.

Introduction

The case of Suresh and Anr v. Union of India (2001) is all about witnessing a brutal murder committed in a family where the children were also the victims. The barbarity was done by the other members of the family over a dispute of land. This case gives an overview about the intricacies of criminal trial, whereas a heinous offence committed and afterwards how the prosecution presented their contention to prove the guilt of the accused, on the other hand the defence counsel defended the accused against serious charges which have been framed against him.

The Court in this case shed a light on the insights of the Section 34, 300, 302 and other Sections of the Indian Penal Code,1860 and expressed the opinion over the applicability of the doctrine of rarest of the rare, explained in the earlier judgement pronounced by the Apex Court. In this case the Court refers to the landmark case of Bachchan Singh v. State of Punjab,1980 while awarding the death penalty to the accused. This case further emphasised the crucial aspects of common intention and common object shared by one of the accused at the moment of the occurrence of such perpetual offence.

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Details of the case

  1. Case Name: Suresh and Anr vs State of U.P. (2001)
  2. Equivalent Citations: (2001) 3 SCC 673
  3. Court: Hon’ble Supreme Court of India
  4. Bench: Justice K.T. Thomas, Justice R.P. Sethi and Justice B.N. Agrawal
  5. Appellants: Suresh and Anr
  6. Respondent: State of U.P.
  7. Date of the judgement: March 2, 2001

Facts of Suresh and Anr vs. State of U.P (2001)

Ramesh and his wife and their children were sleeping at their home. During the sleeping hours, when half of the night was about to go, all the family members were killed. But one of the children remained alive with several injuries. The surviving child was the only one who had witnessed the entire incident of brutal killings of his parents and other siblings, at that night.

The surviving child witness (Jitendra) summarised the whole brutal incident to the trial court that he saw his uncle (Accused 1 Suresh) hereinafter referred to as A-1, accompanied with his brother-in-law, (Accused 2 Ramji) referred to as A-2, was seen cutting the body of sleeping children into pieces with axe and chopper.

The witness of prosecution named Lalji (PW-1), the uncle of the deceased Ramesh (who’s also the uncle of Suresh) and Amar Singh (PW-2) who is the neighbour of the deceased, gave evidence which was testified by PW-3 Jitendra. Although, the said two witnesses couldn’t assign any strong evidence before the court which can testify the involvement of Pavitri devi except narrating that she also was present at the spot where the incident occurred. She lived in the house which was just next to the house of the deceased.

The mother of those little children, Ganga Devi, got serious injuries due to which her skull was broken into pieces. The last victim was Ramesh, the father of the children. He got many injuries on his neck and above that. The horrific incident took place because of the rivalry that was happening between them for a piece of land which was just next to the house of the deceased and  A-1 Suresh used to claim his ownership over the piece of land. However, the deceased Ramesh took back possession of the land.

The Session Court considered the evidence presented by the PW-1 Lalji and PW-2 Amar Singh in the presence of various contention raised by the counsel for the accused. Further, the trial judge found the said evidence reliable enough and convicted the said accused except Pavitri Devi, who was acquitted by the Court due to lack of evidence of her being present at the incident.

The division bench of the High Court also considered the said evidence, and they didn’t find any reason to contradict the decision made by the trial Court. Additionally, the Court awarded the death penalty to the two appellants, Suresh and Ramji. Afterwards, The case was heard by a bench of the Apex Court to determine whether Section 34 (common intention) of the Indian Penal Code could be invoked in this case. Subsequently, the prosecution also raised an appeal to get the acquittal reversed of Pavitri Devi.

Issues raised

  • Whether the acquittal of Pavitri Devi justified the interference of her, from the Court?
  • Whether Pavitri devi shared the common intention with Accused-1 and Accused-2?
  • Whether Section 34 of the Indian Penal Code 1860 can be applied in this case?
  • Whether an obvious act is necessary to establish common intention under Section 34?
  •  Whether common intention and similar intention can be considered equally?

Contentions made by both the parties

Appellants

The appellant presented several aspects of the case, which are discussed below:

  • The acquittal of Pavitri Devi does not warrant interference from this Court, i.e, the Court shouldn’t interfere in the acquittal of Pavitri Devi. 
  • This is not a case of demonstrating the “rarest of the rare” category, which obliges the Court to award the death penalty to the two appellants, Suresh and Ramji. In the case of Bachchan Singh v. State of Punjab the doctrine of rarest of the rare was introduced by the Apex Court where the court discussed the nature of crime and before awarding the death penalty it must look into the perpetuity of the act due to which an offence comes under the rarest of the rare circumference. Further, the appellant contended that this case has lack of evidence and witness who can testify it.
  • Additionally, the learned counsel further argued that if Section 34 of the Indian Penal Code which prosecutor seek to be invoked against Pavitri Devi, the prosecutor needs to prove the commission of an overt act that has been done by the accused Pavitri Devi in furtherance of sharing common intention with other co-accused. Mere presence of an accused at the spot of crime doesn’t amount to holding the accused guilty.
  • The senior learned Counsel K.B Sinha further cited the decision of Panchhi and ors. v. State of U.P. (1998) where the Court decided to award an alternative punishment instead of the death penalty. Even considering the fact that the offence was heinous in nature.

Respondent

The respondent presented their contentions which have been pointed out below:

  • The respondent prosecutor begins with the accountability that both the accused were rewarded the death penalty lawfully for such heinous offence which they have committed.
  • Additionally, he argued that this incident completely falls under the category of “rarest of the rare ” cases which has been introduced in the Bachchan Singh vs State of Punjab case by the Apex Court. 
  • The other argument was to raise a question about the acquittal of Pavitri Devi seeking to be reversed, as she has shared the common intention with both the other accused which comes under the Section 34 of the Indian Penal Code, 1860.
  • Further, the learned counsel for the State contended that Pavitri Devi was present at the place of occurrence and being present at the spot speaks itself that she had shared the common intention with other accused to commit the brutal murders. Therefore, she can be held liable for the murder under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code.

Legal provision involved in Suresh and Anr vs. State of U.P (2001)

Section 300 IPC

Section 300 of IPC defines murder, which is an act committed with an intention of causing death. This Section simplifies that culpable homicide is murder, if the act is committed with an intention of killing a person or the conditions that strongly indicate the willingness to kill a person. These conditions are discussed below:

A) If the act done with an intention of causing such bodily injury to such an extent that the person causing the injury knows that his act is enough for killing the person to whom the injury is caused. 

B) If an act which is done with an intention of causing bodily injury to any person and such bodily injury is marked to be imposed to the extent which can cause death of the person who is injured.

C) If a person knows well that his act can be life-threatening to some other person or can cause a serious bodily injury, which can be a reason to cause the death of that person. And such an act has been committed without having a possibility of being alive amounts to murder.

Section 302 IPC

This Section mentions the punishment for murder. When a person is found guilty of killing someone, he shall be punished with death, or imprisonment for life and also a fine shall be imposed on him. Killing a person with a guilty mind is considered as a perpetual offence, but if the act is committed in a cruel manner, the act becomes heinous in nature. Therefore, a strict punishment will be imposed.

Section 34 IPC

When several persons do an act collectively having common intention behind commission of an act, all the persons shall be liable equally. This principle is described under the codified law as joint liability. Where all the persons would be liable for the offence as it was committed jointly by having the same intention to commit the act.

Section 149 IPC

This particular Section emphasises that if an unlawful assembly commits an act having common object, then every individual of that assembly is guilty. Therefore, the object must be common while committing the act.

Section 120(A)

When two or more than two people made an agreement to commit an illegal act or accomplish a legal act by using the illegal methods, then they fall in the definition of Criminal Conspiracy. However, the mere agreement is not enough to hold any person liable for criminal conspiracy unless any commission of the act is done in order to commit the agreed act.

Section 120(B) IPC

This Section talks about the punishment for the offence of criminal conspiracy, which has two elements:

  • If the offence is punishable by death, life imprisonment or rigorous imprisonment for the term of two years or more, if the punishment isn’t described in the code for the offence, then the person committing that offence will be considered as he has aided or abetted the offence.
  • If the party is involved in conspiracy, they shall be punished with six months of imprisonment, fine or both. If the planned conspiracy fails, the party involved shall be liable for fine.

Judgement of the case

After referring to several judgments, In Suresh v. State of U.P., the Court emphasised by saying that Section 34 of the Indian Penal Code is generally applied in criminal cases, but this case has a different vision to acquire. When the appeal of this case is raised and heard by a two judges bench, it’s clear to think and reconsider the provision and to look at what extent the provision can be invoked in this case. As a consequence, the appeals were heard by the larger bench.

In one of the appeals A-1 Suresh and his brother in law, A-2 Ramji, struggled with their final chance to get free from the death penalty charged on them by a session Court and upheld later by the division bench of the High Court. The another appeal where Pavitri Devi,  wife of Suresh (sister of Ramji) is battling to sustain the acquittal awarded to her from the High Court in turnaround of the conviction for murder awarded by the session Court with assistance of Section 34 of IPC.

The Court recognised Section 34 of the Indian Penal Code which talks about the principle of vicarious liability in criminal jurisprudence where a person is liable for the act which is not committed by him but by the other person with whom he shared the common malicious intention. It doesn’t mean to be a substantive offence but a rule of evidence. And the same principle was laid down in Goudappa and Ors. v. State of Karnataka (2013), the Court has reiterated the principle by suggesting that Section 34 Indian Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. Furthermore, the Court emphasised that a pre common intention pre-supposes prior consent or planning may be developed at the time of the commencement of the offence, but here it’s crucial to consider that such plan must indicate the act establishing an offence. 

In Mehboob Shah v. Emperor (1945), the court emphasised that to convict the accused of an offence while applying Section 34, it must be proved that the criminal act was done in concert pursuant to the prearranged plan. There must have been prior meeting of minds. Further, it is difficult to prove the intention of an individual if there’s no direct evidence or relevant circumstances which can conclude that the intention was made by doing a prior planning.

Here, It is not to be well cleared that Pavitri Devi shared her common intention with the other co accused because there is no strong evidence presented before the court which can prove the engagement and commission of any act done by Pavitri Devi.

Conclusively, the court stated that the common intention can be formed on the prior basis or at the time of occurrence of the moment. Section 34 of IPC doesn’t mean to imply a situation where a fictitious act may fall within a descriptive Section stated above. However, Section 34 is required to meet a circumstance wherein all the co accused must have done something in the furtherance of commission of a criminal act. While in Emperor vs Barendra Kumar Ghosh, (1924), the court observed that the common intention does not have to do anything with committing an act separately, it is a enough to accompany the other accused by keeping the same intention in order to achieve an object, to accept that the accused had shared the common intention while the offence being occurred. 

Hence, the acquittal of Pavitri Devi is justified on the basis of the above detailed observation given by the court. Moreover, Section 34 of the Indian Penal code is not implied in this case because of not doing any physical act which can prove the assistance and aiding done by the accused Pavitri Devi. To imply the Section 34 in a case the prosecution must have to prove the involvement of the accused on the basis of evidence and witnesses.

As the apex court referred to the previous landmark judgement which emphasised that an overt act is not necessary to be done in every case. It varies from case to case and it depends on the severity of the offence to determine whether an overt act is required to be considered. Therefore, it can not be determined that an overt act will be a necessity before analysing the facts and the circumstances of the case.

The SC stated that both the trial court and the high court have provided detailed justifications for their decision to impose the harsh punishment. It is not possible to hold that the acts committed by A-1 Suresh and A-2 Ramji, should be removed from the boundaries set to determining whether the crime belongs to rarest of rare cases in which the lesser alternative is unquestionably foreclosed, knowing well that the death penalty is now limited to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed. After observing the degree of the horrific offence the case does not have any alternatives to go with to putting out this case from the circumference of rarest of the rare.

Therefore, it is not easy to decide that a person who was just present at the time of the commission of the offence, without carrying any weapons or without aiding other accused, can also be convicted within Section 34 of the IPC. In the present case, the accused-3 Pavitri Devi was just there standing outside the house of the deceased person where the incident happened doesn’t necessarily conclude that she would also have the involvement in this entire incident in furtherance of the common intention.

The difference between a common intention and a similar intention which is real and substantial is also not to be lost sight of. The common intention indicates a prepared strategy, but in some cases it can emerge spontaneously during the performance of the act. Such a common desire formed on the fly of the moment differs from a similar goal acted upon by multiple people at the same time. The distinction between common and similar purposes may be fine, but it is a real one that, if ignored, may result in a miscarriage of justice. Therefore, The common intention and similar intention are simply distinguished.

Hence, the court upheld the acquittal of accused Pavitri Devi and held that the appeal raised by the convicted appellants seeking reversal of the death penalty, rewarded by the High Court, the Court doesn’t have any strong rationale where it may be considered that the incident doesn’t come under the rarest of the rare instance. Hence, the Court upheld the decision of the High Court and therefore both the appeals were dismissed.

Rationale behind the judgement

After the trial court and the High Court, the Supreme Court delivered a well established rationale behind the judgement. The Apex Court elaborated and decided to go with the death penalty for such heinous crimes. Knowingly, said that the death penalty can only be imposed for the rarest of the rare cases where the lesser punishment will not be justified as held in the case of Bachchan Singh vs State of Punjab. 

Further, the Apex Court said that it can’t be considered that the case could be taken out of the category of extremely heinous offence. 

In Shatrughan Patar v. Emperor (1919), the Supreme Court acquitted one of the accused because of not having reliable evidence to prove his shared common Intention under Section 34 of the Indian Penal Code with other co-accused involved in commission of murder. The prosecution failed in convincing the court that the accused had shared common intention while occurring at the incident. In the case of the State of U.P. v. Iftikhar khan,(1973), The court emphasised the reliable principle of Section 34 of the Indian Penal Code that the participation is essential to apply this Section to convict a person, mere presence of an accused is not adequate to hold him guilty for sharing common Intention with the other co-accused. Although, no other facts can be compared with the facts stated in this case. 

Eventually, the court couldn’t deny the circumstance that the brutality committed in this case, should not be categorised in the sphere of rarest of the rare in which an alternative punishment can be rewarded.

Analysis of Suresh and Anr vs. State of U.P (2001)

The case of Suresh v. State of Uttar Pradesh gave an overview about the joint liability of an accused who has been framed under the charges of joint liability by sharing common intention in commission of an act. The ambiguity resolved in this case by analysing a brief interpretation of joint liability, with regard to the involvement while committing an offence.

The court interpreted the broader meaning of Section 34 of the Indian Penal Code in reference to the intention of a person who has been accused of committing a crime. The court analysed that for considering the common intention, it is not only to prove the conspiracy which has been committed by prior meeting of minds, but there must be evidence to prove the participation while committing an illegal act. An eyewitness is also required to testify the involvement of an accused, i.e. he or she has done something wrong.

In this case, the importance of common intention which needs to be shared with other accused has been demonstrated by giving the reference of several cases In which the importance of participation has been expressed.

While analysing this case, Section 33 of the Indian Penal Code is also needed to discuss where the word “act” describes in the form of a series of acts as a single act. This elucidates that a criminal act can be a single act, or it can be a series of acts. Further, the issue of how can a criminal act be done by several persons is also justified by explaining Sections 35 (When an act is criminal by reason of its being done with a criminal knowledge or intention), Section 37 (cooperation in the commission of an offence where several acts means to commit by doing one act) and Section 38 (when several persons are engaged in commission of a criminal act, they can be liable of committing different acts on the basis of the act they committed first) of the Indian Penal Code in relation to Section 34.

Resulting from the detailed analysis, the court upheld the acquittal of (Pavitri Devi) one of the accused in this case. The doctrine of “rarest of the rare” has been interpreted in such a lucid manner. The court analysed the applicability of the death penalty to the convict if the crime is as brutal as it can be classified in the frame of rare incidents which are not witnessed in ordinary circumstances. Furthermore, the respondent doesn’t have any strong argument which can impact the judges to reconsider the capital punishment. The case of Bachchan Singh v. State of Punjab already established the factors where the judges have to take into consideration while awarding the capital punishment. These described observations became the subject matter for dismissal of appeal.

Conclusion

The greed for a piece of land or personal favours among people in this society has become a major factor in seeing that the criminal cases such as murder and rape have been increasing in day to day life. Every single day, when we come across the daily highlights, we find ourselves witnessing masses of incidents which are committed between family members.

The case of Suresh Anr. v. State of U.P. gives a strong indication of how far a person can go for his greedy pockets by killing his own family members brutally.

This case shed a light on the pivotal role of sharing common intention by the accused who may have the participation in committing a criminal act. This case also highlights the intensity of a heinous crime where the accused seems to be ambiguous about what has been committed. The case of Suresh and Anr. v. state of U.P. developed an issue that how a crime can be categorised in a mould of rare circumstances, and this question has been answered by the court in the most comprehensive manner by elucidating the Sections which are relevant to the case.

The court established a different approach while explaining about the overt act, The court said an overt act must have been committed to consider the common intention which is shared by the accused. However, it doesn’t necessary in every case to consider that an overt act must be done to prove the participation of an accused in a criminal act. The court said It varies from case to case, and the facts may be different depending upon the degree of the offence, which is heinous in nature. The ambiguity of awarding the capital punishment has been resolved by the court in this case. This case put an instance of exhaustive interpretation for the cases that will come in future before the court where the facts and issues would be similar to this case.

Frequently Asked Questions (FAQs)

What do you mean by the burden of proof?

When the prosecution claims the act has been committed by the accused, he has to present such facts, on the basis of which his claim can be considered by the court. The burden of proof always lies upon the prosecution (According to the Section 101 of the Indian Evidence Act) to prove the guilt on the basis of facts, in all criminal cases. The prosecution has the liability to prove conflicted charges, allegations that the accused has committed the offence and if he succeeds in proving this on the grounds of facts, the court may find the accused guilty for committing the offence.

What is the difference between common intention and common object?

Common intention indicates the mutual agreement made between two or more than two people in order to commit a criminal offence. On the other hand, the common object is identified as the target or goal which has a purpose to be accomplished by a group of people, collectively by doing some actions. The liability in common intention would be imposed by looking at that all the number of persons accused of committing an offence, shall be liable equally. While in a matter of common object, it is sufficient to be a member of the group which has an aim to achieve.

What is the doctrine of “rarest of the rare” case?

There is no statutory provision that defines this doctrine in any of the substantial laws. It is solely a principle used to justify whether a convicted person in an horrific crime should be awarded the death penalty. The doctrine was first introduced by the Apex Court in the case of Bachchan Singh v. State of Punjab to elaborate a clear-cut guideline for the offences punishable by death. The court interpreted this doctrine in order to reduce the ambiguity for courts to decide when to award the death penalty, which is the highest punishment in the criminal justice system of India.

What are heinous offences, and how can it be identified?

The offences, considered severe in nature and carry stricter punishment than any other offences, come under the category of heinous offences. The substantial law, Indian Penal Code interprets certain offences as heinous in nature depending upon the minimum standards of punishment given. In India, some offences that come under the sphere of heinous offences are: Murder, Rape, Kidnapping for ransom, Dowry death, gang rape and Acid attacks.

How is the death penalty executed In India?

The execution for the death penalty is done by hanging the convicted person till death and the procedure for hanging is described under Section 354(5) of the Criminal Procedure Code, 1973. Although, the death penalty is not awarded for committing every heinous crime but in the case of the rarest category only where the offence is horrific in nature. It is the court to decide it.

Difference between Section 120B and Section 34 of the Indian Penal Code, 1860

  • Section 120B of the Indian Penal Code, describes the punishment for planning and the agreement made between the parties to commit an act which is illegal or a legal act committed by using illegal means. While Section 34 of the IPC deals with the commission of an offence by multiple persons having shared a common intention in committing the offence. 
  • Therefore, Section 120(B) indicates a conspiracy that cooked among the persons who have planned to achieve an object by committing an offence; however, the conspired act must be done in order to make them guilty, mere planning without taking an initiative, would not be held such persons accountable. Section 34 demonstrates the joint liability of persons who have accomplished an act jointly.
  • Conspiracy has a resemblance with commission of an act, because only an act which is committed after planning, is punishable under substantial law, not a malicious thinking can lead anyone to be liable.

References

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