A Person Must Be Physically Present At The Time Of Commencement Of An Offence: Reiterates SC - Synopsis
Karandeep Singh 26 Oct 2020

In Subed and Others vs. State of Assam, Criminal Appeal No.1401 of 2012, 5 accused were tried under the charge of murder in the Session Court, North Lakhimpur. Abdul Barek and Abdul Motin were returning back from market in evening, when they got brutally assaulted by the accused. Abdul Barek died on the spot and other died in the hospital. Originally, 5 names of accused have been recorded and convicted under Section 302 and Section 34 of The Indian Penal Code, in which accused no. 3 and 5 accused were acquitted on the ground of benefit of doubt by The Session Court, affirmed by the High Court.

An issue was raised by the learned counsel of the convict in an appeal that his and his co-accused’s conviction were unjustified and entitled for acquittal on the ground of parity because other 2 have been acquitted on the same evidences. Also, there was no allegation recorded at first stage of trial against accused no. 1 for having common intention for committing the offence. In response it was submitted that no benefit of doubt can be awarded to appellants for their acquittal and common intention as it was generated at the time when he stop the deceased so the rest can do their job.

Court observed the facts, issues, evidences, and rely upon the prior judgments of Ramaswami Avyangar vs. State of Tamil Nadu (1976) 3 SCC 779, Nandu Rastogi vs, State of Bihar (2002) 8 SCC 9, and Surender Chauhan vs. State of Madhya Pradesh (2000) 4 SCC 110 stating that under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence.

Taking cognizance of the above stated contentions, and dismissing the appeal, Bench of Justice R. F. Nariman, Justice Navin Sinha, and Justice Indira Banerjee held that “there is no reason to interfere with the conviction and sentence of the appellants”.

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