IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPELATE JURISDICTION Criminal Bail Application No. __ Of 2014 [APPLICATION FILED UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE, 1973] IN THE MATTER OF: SIDDHARTH RAJENDRA RUNWAL …..APPLICANT VERSUS STATE OF MAHARASHTRA …..RESPONDENT
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAY
Before a man can be held liable for acts done by another, under the provision of this section, it
must be established that (i) there was common intention in the sense of a pre-arranged plan
between the two and (ii) the person sought to be held so liable had participated in some manner
in the act constituting the offence. Unless common intention and participation are both present,
this section cannot apply.11
It is the essence of S.34 that the person must be physically present at the actual commission of
the crime. He need not be present in the actual room, he can, for instance, stand guard by the gate
outside ready to warn his companions about any approach of danger or wait in a car on a nearby
road ready to facilitate their escape but he must be physically present at the scene of the
occurrence and must actually participate in the commission of the offence in some way or the
other at the time the crime is actually being committed. If several persons have the common
intention of doing a particular criminal act and in furtherance with that common intention all of
them join together and aid or abet each other in the commission of the act, then although one of
these persons may not actually with his own hands do the act, but if he helps by his presence or
by other acts in the commission of the act, he would be held to have done that act within the
meaning of S. 34.
Section 34 will not be attracted unless, first, it is established that a crime has been committed by
several persons, second, that there was a common intention and a pre-arranged plan to commit an
offence and, third, that there was a participation in the commission of the offence in furtherance
of that common intention.12 The common intention must be anterior in point of time to the
commission of crime. It means a pre-arranged plan.13When there is neither pre-concert nor
meeting of minds, S. 34 is not attracted as in the instant case.14
11 Chandrakant v. Murgyappa Umrani v. State of Madhya Pradesh AIR 1999 SC 1557: 1998 SSC (Cri) 698.
12 Parichhat v. State of M.P., AIR 1972 SC 535: 1971 SCD 1158: (1977) 4 SSC 694: 1972 CrLJ 322.
13 Devilal v. State of Rajasthan, AIR 1971 SC 1444:1971 CrLJ 1132.
14 Jarnail Singh V. State of Punjab, 1982 CrLJ 386 (SC): (1982) 3 SCC 672: AIR 2001 SC 1344.
MEMORIAL ON BEHALF OF THE APPLICANT Page 17 of 43
COMMON INTENTION:
‘Common intention’ implies a pre- concerted plan and acting in concert pursuant to the plan.
Common intention comes into being prior to the commission of the act in point of time, which
need not be a long gap.15Though establishing common intention is difficult for the prosecution,
yet, however difficult it may be, the prosecution has to establish by evidence, whether direct or
circumstantial that there was a plan or meeting of mind of all the assailants to commit the
offence, be it pre-arranged or the spur of the moment, but it must necessarily be before the
commission of the crime.
IN FURTHERANCE OF COMMON INTENTION:
In view of the phraseology of S. 34 existence of common intention is not enough, the criminal
act impugned to attract S.34 must be committed in furtherance of common intention. The words
‘in furtherance of the common intention of all’ in S.34, I.P.C. do not require that in order that the
section may apply, all participants in the joint acts must either have common intention of
committing the same offence or the common intention of producing the same result by their joint
act be performed.16
Before the Court can convict the person vicariously for the act of another, it must satisfy itself of
the existence of a prior concert between them or a pre-arranged plan. No hard and fast rules must
be laid down, and each case has to decided on its own merits, but it is essential for the Court to
arrive at a definite finding on whether or not the accused before it had acted in furtherance of a
common intention and it is a part of the Court’s duty while examining witnesses to ensure that
appropriate questions are put to them in order to elicit from them necessary evidence in this
behalf.17
The aforementioned two essential conditions have not been met with in the present case and
therefore Section 34 of the IPC is not applicable.
15 Sharif Ahmad Alias Achhan, (1956) 2 All 188; Ramchander, 1970 CrLJ 653.
16 Ibra Akanda v. Emperor AIR 1994 Cal 339: 48 CWN 366:45 CrLJ 771.
17 1957 ALL WR (HC) 149: 1957 ALL LJ 308.
MEMORIAL ON BEHALF OF THE APPLICANT Page 18 of 43
Section 323: Whoever, except in the case provided for by section 334, voluntarily causes
hurt, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both.
This is a general section for the punishment of voluntarily causing hurt. Section 324, 327, 328,
329 and 330 deal with the same offence committed under certain aggravating circumstances: and
ss. 334, 336 and 337 provide for punishment when there are certain mitigating circumstances.
Where death is caused as a result of simple injuries and where it is shown that the accused person
had no knowledge that the deceased’s spleen was diseased, he could only be convicted of
causing simple hurt. 18When victim receives two abrasions on her chest by the beating of the
accused, but victim dies afterwards by reason of rupture of enlarged spleen there being no
evidence that the accused was aware of the ruptured spleen, the accused is guilty of causing
simple hurt.19 When accused throws stones at the chest of the deceased who falls down and dies
in a short time-medical examination revealing that heart of the deceased was ruptured and he
died of heart failure- there being no mark of external or internal injury, the accused cannot be
convicted under section 304, part II, nor even under I.P.C.20
No charge possible u/s. 323-
The charge under section 323, I.P.C. could not be brought home to the accused in the following
cases.
It was in the evidence that soon after the alleged incident, the complainant and his brother went
to the police and immediately lodged information which was treated as N.C. complaint and
which was registered with the N.C. register. On perusal of the same, it emerges that the presence
of the appellant on the spot is not mentioned at all. The substantial part of the prosecution
evidence has been discharged as not only as being unavailable but also false. No conviction
could have ever been recorded under Section 323, I.P.C.21In another case, there was unexplained
delay in lodging the F.I.R for eight days. Delay in itself is not fatal in such cases. But when there
18 Bhajan Das v. Emperor AIR 1924 Lah 218:24 CrLJ 421:72 IC 533.
19 State v. Babur Ali, AIR 1952 Ass 110:1952 CrLJ 997.
20 Karim Khan v. State of Rajasthan, 1971 CrLJ 1654 (Raj).
MEMORIAL ON BEHALF OF THE APPLICANT Page 19 of 43
are other surrounding circumstances like the person being examined twice and the injury finding
place in the first report missing in the second report and instead of one, three injuries finding
place in the second report it gives rise to suspicion in the matter. It cannot be said with certainty
that the injury or injuries concerned might have been caused by the accused only. The
prosecution failed to establish the guilt of the accused beyond reasonable doubt. Accordingly, the
conviction of the accused was set aside. 22
In appeal against conviction under section 323 IPC, it was found that prosecution witnesses were
silent as to causing hurt on the victim. Medical report in absence of oral testimony as to causing
hurt was meaningless.
In a Supreme Court case there were two serious dents in the prosecution case. In that case two of
the four persons were unarmed, the third accused had a knife but he was not brandishing it, as it
was in his pocket and there was no reason to believe that the other accused knew about the knife
with him, the 4th accused was carrying a danda and the High Court did not accept his
participation as established beyond reasonable doubt. In that case, first, the evidence showed that
accused party sustained injuries in the same transactions. These injuries were not explained.
Secondly, it was difficult to see how any common intention could be attributed to the appellant
to cause simple hurt to the victim R. The only part attributed by the prosecution witness to the
appellants was that they assaulted R with kicks and fists. But this was no born out with medical
evidence on record, one did not find from medical evidence any injuries received by R from
kicks and fist blows. It was, therefore, extremely doubtful. Whether the appellants gave any
kicks or fist blows to R, the conviction of the appellants for the affairs under section 323 r/w sec
34, could not in the circumstances be sustained.23
But at the same time it is to be borne in mind, that conviction under sec 323 would not be barred
for the reason that charge under section 34 is not proved.24 When the complainant and the
21 Yusuf Sardar v. State of Maharashtra, 1979 Bom Cr 125 (132).
22 Govind Lal v. State of Rajasthan, 1978 Cr LJ (Raj) 729 (731).
23 Mittar Sen v. State of U.P., AIR 1976 SC 1156
24 Jinappa Kallappa v. State of Maharashtra, 1979 Cr LR (Mah) 481.
MEMORIAL ON BEHALF OF THE APPLICANT Page 20 of 43
accused have sustained injuries and the case of the complainant is based entirely on the oral
evidence of the complainant himself, conviction under section 323 cannot be sustained. Where,
in a case of dacoity, the court disbelieves the evidence of the prosecution as regards the dacoity,
the case must fail and the court cannot convict the accused under section 323 and 324 merely on
the ground that the complainants party had received injuries and the injuries might have been
caused by some of the accused.25
In a case where the accused was not a proclaimed offender was rescued from custody of village
chaukidaar who, in the course therefore, received slight injuries. Rescuers were held neither
guilty under section 224, nor under section 323. Where in a prosecution under section 323, IPC,
the Judge disbelieved the entire prosecution evidence and convicted the accused simply because
they bore a number of injuries on their persons. If the judge wanted to maintain the conviction of
the accused, it was incumbent upon him to base the conviction on some evidence apart from the
presence of injuries on the persons of accused.26
Benefit of Doubt – It was held that in view of discrepancies and infirmities in evidence of
witnesses guilt of accused persons was not proved beyond reasonable doubt and conviction was
not proper.27 Benefit of doubt must therefore be awarded to the accused in the instant case.
Section 406 – Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years, or with
fine, or with both.
To constitute this offence, there must be dishonest misappropriation by a person in whom
confidence is placed as to the custody or management of the property in respect of which the
criminal breach of trust is charged. The ownership or beneficial interest in the property in respect
of which the criminal breach of trust is alleged to have been committed must be in some person
25 Jinappa Kallappa v. State of Maharashtra, 1979 Cr LR (Mah) 481.
26 Hakam Khan v. Emperor, 169 IC 453 : 38 CrLJ 797 (1)
27 Ashok Somalal Thakkar v. State, 2007 CrLJ 3579 (Guj)
MEMORIAL ON BEHALF OF THE APPLICANT Page 21 of 43
other than the accused and the latter must hold it on account of some person or in some way for
his benefit.28
Scope and Object –
The offence consists of any of the four positive acts- 1) Misappropriation, 2) Conversion, 3)
User,4) Disposal of property. Neither failure to account nor breach of contract, however
dishonest, is actually and by itself the offence of criminal breach of trust.29
The ingredients of the offence of criminal breach of trust are-
1- The accused must have been entrusted with the property or dominion over it
2- The accused must have misappropriated the property or disposed of the property in
violation of such trust.
Offence under sec 405 of IPC can be said to have been committed only when all the ingredients
of that offence as defined in the statute are found to have been satisfied.
Essentials of offence of criminal breach of trust –
An offence of criminal breach of trust necessarily involves the facts of –
A – Entrustment of property, B – a dishonest misappropriation or conversion of property by
agent to his own use or C – dishonest use or disposal of the property in violation of mandate of
the law prescribing the mode in which the entrustment has to be discharged or D – Dishonest use
or disposal of the property in violation of the terms of any legal contracts either expressed or
implied regarding the discharge of the entrustment or willfully allowing some other person to do
so.
It must however be kept in mind that mere suspicion can’t take the place of proof and as long as
the accused has offered a plausible explanation which in the background of the circumstances
28 C.N. Narayan AIR 1953 SC 478
29 Daityari, Tripatti v. Subodh Chandra Choudhury, (1942) 2 Cal 507
MEMORIAL ON BEHALF OF THE APPLICANT Page 22 of 43
appears to be better probable then he has discharged the onus upon him, the preponderance of
probability being that his explanation might be true.
Once the explanation of the accused appears to be so possible, the prosecution can’t be said to
have established the case beyond all reasonable doubt since the accused has succeeded in raising
a doubt through his explanation. When such is the case, there is no offence under section 409, of
the IPC, even if entrustment is proved since in the absence of intention of conversion by the
accused, a mere failure to account for the property wouldn’t be criminal breach of trust even
though it might be otherwise a breach of trust. It is therefore, for the prosecution to prove the
explanation as false, if at all.30
Being in any manner entrusted with property – One of the essential conditions of the offence of
criminal breach of trust is that the property which is the subject matter must have been entrusted
to a person; a trust of some kind is necessary, and the property in respect of which criminal
breach of trust can be committed must be either the property of some person other than the
person accused, or the beneficial interest in or ownership of it must be in some other person and
offender must hold such property on trust for such other person or in some way for his benefit.31
In every case when offence of criminal breach of trust is alleged, what must be established
initially is the fact of entrustment of money or property. The word “entrusted” in section 405 is
not necessarily a term of law and may have different implications in different context.32 The
words “in any manner” don’t enlarge the term “entrustment” itself and, unless there is
entrustment, the transaction in question cannot be affected by the terms of that section.33 The
word entrustment is not a term of law. In its most general significance, all it imports is a handing
over of the possessions for some purpose which may not imply the conferring of any property
30 Iswar Prosad v. State of Orissa, 1988 3 Crimes 516 (Ori) The basis of complaint is devoid of essential ingredients of offences alleged against the accused person, no case is made out and cognizance for the same taken by the magistrate can be quashed, Manoranjan Tripathy v. Ganesh Prasad Singh, 1994 Cr LJ 204 (Ori). Where prima facie case of offence relating to misappropriation and breach of trust is made out, the FIR lodged against the accused can’t be quashed, Jahangir Joiya v. State, 1999 CrLJ 154 (Raj).
31 Sheo Narayayan Jaiswal v. State of Bihar, AIR 1953 PAT 225
32 Thakarsi Damjee v. Crown AIR 1952 NAG 253
33 Satyendra Nath Mukherji (1947) Cal 97. This case was approved by the supreme court in Jaswant Lal, AIR 1968 Sc 700; Dani Singh, AIR 1963 PAT 52; Ramn Niranjan, (1964) 1 Cr LJ 614
MEMORIAL ON BEHALF OF THE APPLICANT Page 23 of 43
right at all.34 The natural meaning of entrusted involves that the assured should by some real and
conscious volition have imposed on the person, to whom he delivers the goods, some species of
fiduciary duty.35 The expression “entrustment” carries with it, the implication that the person
handing over any property or on whose behalf the property is handed over to another, continues
to be its owner. Further, the person handing over property must have confidence in the person
taking the property so as to create a fiduciary relationship between them.36
Criminal Breach of Trust by a spouse of property of another-
Under the old concept a woman had a joint possession of her husband’s property and could not
normally allege committing breach of trust against husband. Possession over the ornaments and
other articles of traditional presents would be regarded as joint possession and would exclude
theory of entrustment of property, but this presumption can be repelled by a written agreement to
the contrary. If such a presumption can be excluded by a written agreement, there is no reason
why even oral agreement or evidence, if convincing and acceptable to court, should not be
regarded as a legal equivalent of the written agreement. The emphasis on the written agreement
perhaps is because of the fact that oral agreement can be easily set up to show entrustment and
thereby perhaps the process of court can be abused by instituting false criminal complaints under
Section 406 of the IPC but, apparently, there does not appear to be any reason why an oral
agreement to the contrary, if established by reliable evidence, should not exclude the
presumption of jointness or establish entrustment within the meaning of Section 405 and 406 or
the IPC.37
As to criminal breach of trust of a spouse, it may, apposite that mere allegation in a complaint
either concerning entrustment of articles of dowry constituting streedhan to all the accused, or
their refusal to return such articles of dowry to the complainant (wife) at a later stage, would not
per se be sufficient to make out a prima facie case for commission of offences punishable under
34 Per Lord HALDANE in Lake v. Simmons, (1927) 487
35 Per Lord SUMMER in ibid
36 State of Gujarat v. Jaswant Lal, AIR 1968 SC 700
37 Hazi Badal v. Abid Hussain, 1984 All Cr R 51
MEMORIAL ON BEHALF OF THE APPLICANT Page 24 of 43
section 406 of IPC against any particular accused. In the absence of clear, specific and
unambiguous allegations concerning entrustment or specific articles of dowry to any particular
accused and in the absence of further allegations against him that he had dishonestly or with any
mala fide intentions retain the same and had refused to return those articles to the wife for whose
exclusive use such articles were allegedly entrusted to him, no prima facie case for commission
of such offence would be made out against the particular accused. Normally in the cases relating
to the commission of offence of criminal breach of trust punishable under Sec 406 of the IPC, a
particular accused can be prima facie said to be responsible only for his individual acts and
cannot be fastened with joint or vicarious liabilities.38
In the present case, the complainant has alleged that her in-laws, and not the applicant, are
currently in possession of her property i.e. her stridhan. The in-laws have been granted
anticipatory bails but the applicant has been left in a fix even though the said charge isn’t
applicable to him.
Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty --
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation - For the purposes of this section," cruelty" means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.
In a case where the accused was charged to have administered the insecticide into the mouth of
the victim as she could not bring the dowry from her parents and the trial court convicted them
38 Vinod Kumal Goyal v. Union Territory, 1991 CrLJ 2333 (Punj)
u/s 302 , 34 and 498-A. However it was found that there was no abrasion on any part of the body
of deceased and delay in filing the FIR was not explained by the victim, nor were statements
recorded of the neighbors by the investigating officer. It was held that the prosecution had failed
to prove the guilt of the accused beyond reasonable doubt and they were acquitted of all
charges.39
The accused were charged of harassing the deceased who as a result of which has committed
suicide. It was held that accused were liable to be convicted u/s 306, 498-A. However conviction
of accused was not held proper where there was no evidence regarding the ill treatment given to
the deceased by husband or regarding the fact that deceased had died because of self-
immolation.40
Mother-in-law was accused of having forced her to use hand driven flour mills but there are no
direct evidence of harassment neither were there any medical reports that corroborated to
harassment of the deceased wife by the mother-in-law. She was acquitted of charges under Sec
498-A and 30641
The accused were charged for harassing the victim for bringing inadequate amount of money but
demand for dowry was not proved and hearsay evidence of the witnesses could not be proved
beyond reasonable doubt. It was held that offence u/s 498-A was not made out and accused was
entitled to acquittal.42
Cruelty –
The cruelty within the meaning of sec 498-A, IPC had been explained to establish that
harassment or cruelty to wife was to force her to cause grave bodily injury to herself or to
39 Hardeep Singh v. State, 1996 Cr LJ 2733 (P&H). No conviction was ordered where evidence established the simple case of suicide, Baljit Singh v. State, 1996 Cr LJ 2574 (P&H)