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CASE NO.:

Appeal (crl.) 821 of 2000

Appeal (crl.) 160 of 2001

PETITIONER:

SURESH AND ANR.

Vs.

RESPONDENT:

STATE OF U.P

DATE OF JUDGMENT: 02/03/2001

BENCH:

R.P. Sethi & B.N. Agrawal

JUDGMENT:

SETHI, J. for himself and Agrawal,J.

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We agree with the conclusions arrived at by Brother

Thomas,J. in his lucid judgment.@@

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However, in view of the importance of the matter, in so

far as the interpretation of Section 34 of the Indian Penal

Code is concerned, we have chosen to express our views in

the light of consistent legal approach on the subject

throughout the period of judicial pronouncements. For the

applicability of Section 34 to a co-accused, who is proved

to have common intention, it is not the requirement of law

that he should have actually done something to incur the

criminal liability with the aid of this section. It is now

well settled that no overt act is necessary to attract the

applicability of Section 34 for a co-accused who is

otherwise proved to be sharing common intention with the

ultimate act done by any one of the accused sharing such

intention.

Section 34 of the Indian Penal Code recognises the

principle of vicarious liability in the criminal

jurisprudence. It makes a person liable for action of an

offence not committed by him but by another person with whom

he shared the common intention. It is a rule of evidence

and does not create a substantive offence. The section

gives statutory recognition to the commonsense principle

that if more than two persons intentionally do a thing

jointly, it is just the same as if each of them had done it

individually. There is no gainsaying that a common

intention pre-supposes prior concert, which requires a pre-

arranged plan of the accused participating in an offence.

Such a pre- concert or pre-planning may develop on the spot

or during the course of commission of the offence but the

crucial test is that such plan must precede the act

constituting an offence. Common intention can be formed

previously or in the course of occurrence and on a spur of

moment. The existence of a common intention is a question

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of fact in each case to be proved mainly as a matter of

inference from the circumstances of the case.

Dominant feature for attracting Section 34 of the Indian

Penal Code (hereinafter referred to as "the Code") is the@@

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element of participation in absence resulting in the@@

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ultimate "criminal act". The "act" referred to in latter

part of Section 34 means the ultimate criminal act with

which the accused is charged of sharing the common

intention. The accused is, therefore, made responsible for

the ultimate criminal act done by several persons in

furtherance of the common intention of all. The section

does not envisage the separate act by all the accused

persons for becoming responsible for the ultimate criminal

act. If such an interpretation is accepted, the purpose of

Section 34 shall be rendered infructuous. Participation in

the crime in furtherance of the common intention cannot

conceive of some independent criminal act by all accused

persons, besides the ultimate criminal act because for that

individual act law takes care of making such accused

responsible under the other provisions of the Code. The

word "act" used in Section 34 denotes a series of acts as a

single act. What is required under law is that the accused

persons sharing the common intention must be physically

present at the scene of occurrence and be shown to not have

dissauded themselves from the intended criminal act for

which they shared the common intention. Culpability under

Section 34 cannot be excluded by mere distance from the

scene of occurrence. The presumption of constructive

intention, however, has to be arrived at only when the court

can, with judicial servitude, hold that the accused must

have pre-conceived result that ensued in furtherance of the

common intention. A Division Bench of the Patna High Court

in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111]

held that it is only when a court with some certainty hold

that a particular accused must have pre-conceived or

pre-meditated the result which ensued or acted in concert

with others in order to bring about that result, that

Section 34 may be applied.

In Barendra Kumar Ghosh vs. King Emperor [AIR 1925 PC

1] the Judicial Committee dealt with the scope of Section 34

dealing with the acts done in furtherance of the common

intention, making all equally liable for the results of all

the acts of others. It was observed:

".......the words of S.34 are not to be eviscerated by

reading them in this exceedingly limited sense. By S.33 a

criminal act in S.34 includes a series of acts and, further,

"act" includes omissions to act, for example, an omission to

interfere in order to prevent a murder being done before

one's very eyes. By S.37, when any offence is committed by

means of several acts whoever intentionally co-operates in

the commission of that offence by doing any one of those

acts, either singly or jointly with any other person,

commits that offence. Even if the appellant did nothing as

he stood outside the door, it is to be remembered that in

crimes as in other things 'they also serve who only stand

and wait'. By S.38, when several persons are engaged or

concerned in the commission of a criminal act, they may be

guilty of different offences by means of that act. Read

together, these sections are reasonably plain. S.34 deals

with the doing of separate acts, similar of diverse, by

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several persons; if all are done in furtherance of a common

intention, each person is liable for the result of them all,

as if he had done them himself, for 'that act' and 'the act'

in the latter part of the section must include the whole

action covered by 'a criminal act' in the first part,

because they refer to it. S.37 provides that, when several

acts are done so as to result together in the commission of

an offence, the doing of any one of them, with an intention

to co-operate in the offence (which may not be the same as

an intention common to all), makes the actor liable to be

punished for the commission of the offence. S.38 provides

for different punishments for different offences as an

alternative to one punishment for one offence, whether the

persons engaged or concerned in the commission of a criminal

act are set in motion by the one intention or by the other."

(Emphasis supplied)

Referring to the presumption arising out of Section 114

of the Evidence Act, the Privy Council further held:

"As to S.114, it is a provision which is only brought

into operation when circumstances amounting to abetment of a

particular crime have first been proved, and then the

presence of the accused at the commission of that crime is

proved in addition; Abhi Misser v. Lachmi Narain [1900

(27) Cal.566]. Abetment does not in itself involve the

actual commission of the crime abetted. It is a crime

apart. S.114 deals with the case where there has been the

crime of abetment, but where also there has been actual

commission of the crime abetted and the abettor has been

present thereat, and the way in which it deals with such a

case is this. Instead of the crime being still abetment

with circumstances of aggravation, the crime becomes the

very crime abetted. The section is evidentiary not

punitory. Because participation de facto(as this case

shows) may sometimes be obscure in detail, it is established

by the presumption juris et de jure that actual presence

plus prior abetment can mean nothing else but participation.

The presumption raised by S.114 brings the case within the

ambit of S.34.

"(Emphasis supplied)

The classic case on the subject is the judgment of the

Privy Council in Mahboob Shah vs. Emperor [AIR 1945 PC

118]. Referring to Section 34 prior to its amendment in

1870 wherein it was provided:

"When a criminal act is done by several persons, each of

such persons is liable for that act in the same manner as if

the act was done by him alone."

it was noticed that by amendment, the words "in

furtherance of common intention of all" were inserted after

the word "persons" and before the word "each" so as to make

the object of Section clear. Dealing with the scope of

Section, as it exists today, it was held:

"Section 34 lays down a principle of joint liability in

the doing of a criminal act. The section does not say 'the

common intention of all' nor does it say 'an intention

common to all'. Under the section, the essence of that

liability is to be found in the existence of a common

intention animating the accused leading to the doing of a

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criminal act in furtherance of such intention. To provide

the aid of S.34 successfully, it must be shown that the

criminal act complained against was done by one of the

accused persons in the furtherance of the common intention

of all; if this is shown, then liability for the crime may

be imposed on any one of the persons in the same manner as

if the act were done by him alone. This being the

principle, it is clear to their Lordships that common

intention within the meaning of the section implies a pre-

arranged plan, and to convict the accused of an offence

applying the section it should be proved that the criminal

act was done in concert pursuant to the pre-arranged plan.

As has been often observed, it is difficult if not

impossible to procure direct evidence to prove the intention

of an individual; in most cases it has to be inferred from

this act or conduct or other relevant circumstances of the

case."

(Emphasis supplied)

A Full Bench of the Patna High Court in The King Emperor

vs. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was

later approved by the Privy Council dealt with the scope of

Section 34 in extenso and noted its effects from all

possible interpretations put by various High Courts in the

country and the distinguished authors on the subject. The

Court did not agree with the limited construction given by

Stephen,J. in Emperor v. Nirmal Kanta Roy [1914 (41)

Cal.1072] and held that such an interpretation, if accepted,

would lead to disastrous results. Concurring with

Mookerjee,J. and giving the section wider view

Richardson,J. observed:

"It appears to me that section 34 regards the act done

as the united act of the immediate perpetrator and his

confederates present at the time and that the language used

is susceptible of that meaning. The language follows a

common mode of speech. In R. v. Salmon [1880 (6) QBD 79]

three men had been negligently firing at a mark. One of

them - it was not known which - had unfortunately killed a

boy in the rear of the mark. They were all held guilty of

manslaughter. Lord Coleridge, C.J. said: -'The death

resulted from the action of the three and they are all

liable'. Stephen,J. said:- 'Firing a rifle' under such

circumstances 'is a highly dangerous act, and all are

responsible; for they unite to fire at the spot in question

and they all omit to take any precautions whatever to

prevent danger.

Moreover, sections 34, 35 and 37 must be read together,

and the use in section 35 of the phrase 'each of such

persons who joins in the act' and in section 37 of the

phrase, 'doing any one of those acts, either singly or

jointly with any other person' indicates the true meaning of

section 34. So section 38 speaks of 'several persons

engaged or concerned in a criminal act'. The different mode

of expression may be puzzling but the sections must, I

think, be construed as enunciating a consistent principle of

liability. Otherwise the result would be chaotic.

To put it differently, an act is done by several persons

when all are principals in the doing of it, and it is

immaterial whether they are principals in the first degree

or principals in the second degree, no distinction between

the two categories being recognised.

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This view of section 34 gives it an intelligible content

in conformity with general notions. The opposing view

involves a distinction dependent on identity or similarity

of act which, if admissible at all, is wholly foreign to the

law, both civil and criminal, and leads nowhere."

Approving the judgments of the Privy Council in Barendra

Kumar Ghose and Mahboob Shah's cases (supra) a three Judge@@

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Bench of this Court in Pandurang & Ors. v. State of@@

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Hyderabad [AIR 1955 SC 216] held that to attract the

applicability of Section 34 of the Code the prosecution is

under an obligation to establish that there existed a common

intention which requires a pre-arranged plan because before

a man can be vicariously convicted for the criminal act of

another, the act must have been done in furtherance of the

common intention of all. This Court had in mind the

ultimate act done in furtherance of the common intention.

In the absence of a pre-arranged plan and thus a common

intention even if several persons simultaneously attack a

man and each one of them by having his individual intention,

namely, the intention to kill and each can individually

inflict a separate fatal blow and yet none would have the

common intention required by the section. In a case like

that each would be individually liable for whatever injury

he caused but none could be vicariously convicted for the

act of any or the other. The Court emphasised the sharing

of the common intention and not the individual acts of the

persons constituting the crime. Even at the cost of

repetition it has to be emphasised that for proving the

common intention it is necessary either to have direct proof

of prior concert or proof of circumstances which necessarily

lead to that inference and "incriminating facts must be

incompatible with the innocence of the accused and incapable

of explanation or any other reasonable hypothesis". Common

intention, arising at any time prior to the criminal act, as

contemplated under Section 34 of the Code, can thus be

proved by circumstantial evidence.

In Shreekantiah Ramayya Munipalli & Anr. v. State of

Bombay [AIR 1955 SC 287] this Court held:@@

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"It is true there must be some sort of preliminary

planning which may or may not be at the scene of the crime

and which may have taken place long beforehand, but there

must be added to it the element of physical presence at the

scene of occurrence coupled with actual participation which,

of course, can be of a passive character such as standing by

a door, provided that is done with the intention of

assisting in furtherance of the common intention of them all

and there is a readiness to play his part in the

pre-arranged plan when the time comes for him to act."

(Emphasis supplied)

This Court again in Takaram Ganapat Pandare v. State of

Maharashtra [AIR 1974 SC 514] reiterated that Section 34

lays down the rule of joint responsibility for criminal act

performed by a plurality of persons and even mere distance

from the scene of crime cannot exclude the culpability of

the offence. "Criminal sharing, overt or covert, by active

presence or by distant direction making out a certain

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measure of jointness in the commission of the act is the

essence of Section 34".

In a case where the deceased was murdered by one of the

two accused with a sharp edged weapon at 10.30 p.m. while

he was sleeping on a cot in his house while the other

accused, his brother, without taking part stood by with a

spear in his hand to overcome any outside interference with

the attainment of the criminal act and both the accused ran

away together after the murder, this Court in Lalai alias

Dindoo & Anr. v. State of U.P. [AIR 1974 SC 2118] held

that these facts had a sufficient bearing on the existence

of a common intention to murder.

In Ramaswami Ayyangar & Ors. v. State of Tamil Nadu

[AIR 1976 SC 2027] this Court declared that Section 34 is to@@

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be read along with preceding Section 33 which makes it clear@@

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that the "act" mentioned in Section 34 includes a series of

acts as a single act. The acts committed by different

confederates in the criminal action may be different but all

must in one way or the other participate and engage in the

criminal enterprise. Even a person not doing any particular

act but only standing guard to prevent any prospective aid

to the victims may be guilty of common intention. However,

it is essential that in case of an offence involving

physical violence it is essential for the application of

Section 34 that such accused must be physically present at

the actual commission of crime for the purposes of

facilitating accomplishment of "criminal act" as mentioned

in that section. In Ramaswami's case (supra) it was

contended that A2 could not be held vicariously liable with

the aid of Section 34 for the act of other accused on the

grounds: firstly he did not physically participate in the

fatal beating administered by co-accused to the deceased and

thus the "criminal act" of murder was not done by all the

accused within the contemplation of Section 34; and

secondly the prosecution had not shown that the act of A2 in

beating PW was committed in furtherance of the common

intention of all the three pursuant to a pre-arranged plan.

Repelling such an argument this Court held that such a

contention was fallacious which could not be accepted. The

presence of those who in one way or the other facilitate the

execution of the common design itself tantamounts to actual

participation in the "criminal act". The essence of Section

34 is simultaneously consensus of the minds of persons

participating in the criminal action to bring about a

particular result. Conviction of A2 under Section 302/34 of

the Code in that case was upheld.

In Rambilas Singh & Ors. v. State of Bihar [AIR 1989

SC 1593] this Court held:

"It is true that in order to convict persons vicariously

under S.34 or S.149 IPC, it is not necessary to prove that

each and everyone of them had indulged in over acts. Even

so, there must be material to show that the overt act or

acts of one or more of the accused was or were done in

furtherance of the common intention of all the accused or in

prosecution of the common object of the members of the

unlawful assembly." (Emphasis supplied)

Again a three Judge Bench of this Court in State of U.P.

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v. Iftikhar Khan & Ors. [1973 (1) SCC 512] after relying

upon the host of judgments of Privy Council and this Court,

held that for attracting Section 34 it is not necessary that

any overt act must be done by a particular accused. The

section will be attracted if it is established that the

criminal act has been done by one of the accused persons in

furtherance of the common intention. If this is shown, the

liability for the crime may be imposed on any one of the

person in the same manner as if the act was done by him

alone. In that case on proof of the facts that all the four

accused persons were residents of the same village and

accused Nos.1 and 3 were brothers who were bitterly inimical

to the deceased and accused Nos.2 and 4 were their close

friends, accused Nos.3 and 4 had accompanied the other two

accused who were armed with pistols; all the four came

together in a body and ran away in a body after the crime

coupled with no explanation being given for their presence

at the scene, the Court held that the circumstances led to

the necessary inference of a prior concert and

pre-arrangement which proved that the "criminal act" was

done by all the accused persons in furtherance of their

common intention.

In Krishnan & Anr. v. State of Kerala [JT 1996 (7) SC

612] this Court even assuming that one of the appellants had@@

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not caused the injury to the deceased, upheld his conviction@@

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under Section 302/34 of the Penal Code holding:

"Question is whether it is obligatory on the part of the

prosecution to establish commission of overt act to press

into service section 34 of the Penal Code. It is no doubt

true that court likes to know about overt act to decide

whether the concerned person had shared the common intention

in question. Question is whether overt act has always to be

established? I am of the view that establishment of a overt

act is not a requirement of law to allow section 34 to

operate inasmuch this section gets attracted when "a

criminal act is done by several persons in furtherance of

common intention of all". What has to be, therefore,

established by the prosecution is that all the concerned

persons had shared the common intention. Court's mind

regarding the sharing of common intention gets satisfied

when overt act is established qua each of the accused. But

then, there may be a case where the proved facts would

themselves speak of sharing of common intention: res ipsa

loquitur."

In Surender Chauhan v. State of M.P. [2000 (4) SCC

110] this Court held that apart from the fact that there

should be two or more accused, two factors must be

established - (i) common intention and (ii) participation of

the accused in the commission of the offence. If a common

intention is proved but no overt act is attributed to the

individual accused, Section 34 will be attracted as

essentially it involves vicarious liability. Referring to

its earlier judgment this Court held:

"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, the commission of

which is the aim of the joint criminal venture. Such

presence of those who in one way or the other facilitate the

execution of the common design is itself tantamount to

actual participation in the criminal act. The essence of

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Section 34 is simultaneous consensus of the minds of persons

participating in the criminal action to bring about a

particular result. Such consensus can be developed at the

spot and thereby intended by all of them (Ramaswami Ayyangar

v. State of T.N. 1976 (3) SCC 779]. The existence of a

common intention can be inferred from the attending

circumstances of the case and the conduct of the parties.

No direct evidence of common intention is necessary. For

the purpose of common intention even the participation in

the commission of the offence need not be proved in all

cases. The common intention can develop even during the

course of an occurrence. (Rajesh Govind Jagesha v. State

of Maharashtra 1999 (8) SCC 428). To apply Section 34 IPC

apart from the fact that there should be two or more

accused, two factors must be established" (i) common

intention, and (ii) participation of the accused in the

commission of an offence. If a common intention is proved

but no overt act is attributed to the individual accused,

Section 34 will be attracted as essentially it involves

vicarious liability but if participation of the accused in

the crime is proved and a common intention is absent,

Section 34 cannot be invoked. In every case, it is not

possible to have direct evidence of a common intention. It

has to be inferred from the facts and circumstances of each

case." For appreciating the ambit and scope of Section 34,

the preceding Sections 32 and 33 have always to be kept in@@

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mind. Under Section 32 acts include illegal omissions.@@

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Section 33 defines the "act" to mean as well a series of

acts as a single act and the word "omission" denotes as well

a series of omissions as a single omission. The distinction

between a "common intention" and a "similar intention" which

is real and substantial is also not to be lost sight of.

The common intention implies a pre-arranged plan but in a

given case it may develop at the spur of the moment in the

course of the commission of the offence. Such common

intention which developed at the spur of the moment is

different from the similar intention actuated by a number of

persons at the same time. The distinction between "common

intention" and "similar intention" may be fine but is

nonetheless a real one and if overlooked may lead to

miscarriage of justice.

After referring to Mahboob Shah's case (supra) this

Court in Mohan Singh & anr. vs. State of Punjab [AIR 1963

174] observed, it is now well settled that the common

intention required by Section 34 is different from the same

intention or similar intention. The persons having similar

intention which is not the result of pre-concerted plan

cannot be held guilty for the "criminal act" with the aid of

Section 34. Similarly the distinction of the words used in

Section 10 of the Indian Evidence Act "in reference to their

common intention" and the words used in Section 34 "in

furtherance of the common intention" is significant.

Whereas Section 10 of the Indian Evidence Act deals with the

actions done by conspirators in reference to the common

object, Section 34 of the Code deals with persons having

common intention to do a criminal act.

In State through Superintendent of Police, CBI/SIT vs.

Nalini & Ors. [1995 (5) SCC 253] Brother Thomas,J. in his

judgment dealt with such a proposition in paras 107 and 108.

However, in this case on facts, the prosecution has not

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succeeded in proving that A3 Pavitri Devi shared the common

intention with the other two accused persons, one of whom

was her husband and the other her brother. It has come in

evidence that when the witnesses reached on the spot, they

found the said accused standing on the road whereas the

other accused were busy committing the crime inside the

house. The exaggerated version of PW3 regarding the

participation of Pavitri Devi by allegedly catching hold of

his mother's hair cannot be accepted as PWs 1 and 2 have not

supported the aforesaid version. The High Court was,

therefore, justified in holding that Pavitri Devi, A3 did

not share the common intention with the other accused

persons. By her mere presence near the place of occurrence

at or about the time of crime in the absence of other

evidence, direct or circumstantial, cannot hold her guilty

with the aid of Section 34. But in case the prosecution had

succeeded in proving on facts of her sharing of common

intention with A1 and A2, she could not be acquitted of the

charge framed against her only on the ground that she had

actually not done any overt act. The appeal of the State

filed against Pavitri Devi has no merit and has thus rightly

been dismissed by Brother Thomas,J.

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