JASDEEP SINGH @ JASSU versus STATE OF PUNJAB

JASDEEP SINGH @ JASSU

STATE OF PUNJAB

(Criminal Appeal No. 1584 of 2021)

JANUARY 07, 2022

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Penal Code, 1860 – s. 304 part I and s.34 – Allegation thatvictim-deceased was shot dead by the accused persons (A1 to A4)during the night time – A3 and A4 (appellants) were present at thescene of occurrence and made statement saying “what are youseeing now”, thereafter, A1 took out gun from his pocket and shotthe deceased – In complaint, father of the deceased (Complainant/PW6) did not make any statement that A3 and A4 exhorted A1 toshoot – However, in his additional statement u/s. 161 Cr.P.C. heimproved his statement stating that A3 and A4 instigated A1 to fire –Trial Court convicted all the accused persons u/s 304 part I of IPCby holding that the there was no premeditation and the occurrencetook place in pursuance to sudden fight – The High Court concurredwith the view of the trial Court – Before the Supreme Court, A1 andA2 did not filed their appeals – Only, A3 and A4 filed appeals –Held: Though the evidence of PW6 was not rejected, both Courtsfound exaggeration on his part – On many occasions PW6 made aconcerted effort to improve the case of prosecution – As far asstatement made by A3 and A4 is concerned, if A3 and A4 had madesuch statement, they should have addressed A2 instead of A1because A2 was already having gun and A1 was stated to havetaken his gun out only on the statement made by A3 and A4 – Thereis no evidence at all on record to hold that A3 and A4 were aware ofthe fact that A1 was having gun with him – Common intention canbe formed at the time of the occurrence, however, the evidenceavailable is not sufficient enough to hold that s.34 IPC is attractedas against A3 and A4 – Prosecution has not proved its case beyondreasonable doubt as against A3 and A4 taking umbrage u/s.34 IPC– Therefore, judgment of the High Court confirming judgment ofthe trial Court set aside.

APenal Code, 1860 – s. 34 – Intendment of – The intendmentof Section 34 IPC is to remove the difficulties in distinguishing theacts of individual members of party, acting in furtherance of acommon intention – There has to be simultaneous conscious mindof the persons participating in the criminal action of bringing abouta particular result - common intention qua its existence is questionBof fact and also requires an act “in furtherance of the said intention”– One need not search for concrete evidence, as it is for the courtto come to conclusion on cumulative assessment – It is only arule of evidence and thus does not create any substantive offense.

Disposing of the appeals, the CourtC

HELD: 1.1 Section 34 IPC creates deeming fiction byinfusing and importing criminal act constituting an offencecommitted by one, into others, in pursuance to commonintention. Onus is on the prosecution to prove the commonintention to the satisfaction of the court. The quality of evidenceDwill have to be substantial, concrete, definite and clear. When apart of evidence produced by the prosecution to bring the accusedwithin the fold of Section 34 IPC is disbelieved, the remainingpart will have to be examined with adequate care and caution, asthe Court is dealing with case of vicarious liability fastened onEthe accused by treating him at par with the one who actuallycommitted the offence. What is required is the proof of commonintention. Thus, there may be an offence without commonintention, in which case Section 34 IPC does not get attracted.[Paras 21 & 22][658-C-F]1.2. The intendment of Section 34 IPC is to remove theFdifficulties in distinguishing the acts of individual members of aparty, acting in furtherance of common intention. There has tobe simultaneous conscious mind of the persons participatingin the criminal action of bringing about particular result. Acommon intention qua its existence is question of fact andGalso requires an act “in furtherance of the said intention”. Oneneed not search for concrete evidence, as it is for the court tocome to conclusion on cumulative assessment. It is only ruleof evidence and thus does not create any substantive offense.Normally, in an offense committed physically, the presence of an

accused charged under Section 34 IPC is required, especially ina case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, whenan offense consists of diverse acts done at different times andplaces. Therefore, it has to be seen on case to case basis. Theword “furtherance” indicates the existence of aid or assistance inproducing an effect in future. Thus, it has to be construed as anadvancement or promotion. There may be cases where all acts, ingeneral, would not come under the purview of Section 34 IPC, butonly those done in furtherance of the common intention havingadequate connectivity. When the Court speaks of intention it hasto be one of criminality with adequacy of knowledge of any existingfact necessary for the proposed offense. Such an intention is meantto assist, encourage, promote and facilitate the commission of acrime with the requisite knowledge as aforesaid. The existence ofcommon intention is obviously the duty of the prosecution to prove.However, court has to analyse and assess the evidence beforeimplicating person under Section 34 IPC. mere commonintention per se may not attract Section 34 IPC, sans an action infurtherance. There may also be cases where person despite beingan active participant in forming common intention to commit acrime, may actually withdraw from it later. Of course, this is alsoone of the facts for the consideration of the court. Further, the factthat all accused charged with an offence read with Section 34 IPCare present at the commission of the crime, without dissuadingthemselves or others might well be relevant circumstance,provided prior common intention is duly proved. Once again,this is an aspect which is required to be looked into by the courton the evidence placed before it. It may not be required on thepart of the defence to specifically raise such plea in case whereadequate evidence is available before the court. [Paras 24-28][658-H; 659-A-H]

2. The evidence of PW13 did not find favour with the courts.The trial court which had the advantage of noting the depositionof the witnesses, chose to disbelieve the evidence adduced, bygiving cogent reasons. This evidence was rightly eschewed bythe trial court and also by the High Court. There are too manyimprobabilities in the testimony of PW13. person who was living

A50 kms away remembered the accused and their names andoverheard their plot to commit the murder. His evidence wasbelied by the evidence of DW1 who was none other than his owncousin with whom he was said to be residing at the relevant pointof time. The other material witnesses are PW6 and PW10. PW10had given prior statements. Though he turned hostile despite beingBa friend of the deceased, the trial court did take into considerationhis earlier statement, while coming to the conclusion that therewas no premeditation and thus the case would fall under culpablehomicide not murder. Though the evidence of PW6 was notrejected, both the courts did find clear exaggeration on his part.COn many occasions PW6 made concerted effort to improve thecase of prosecution. The testimony given by him on the dyingdeclaration, case inserted by him in his supplementary statement,made subsequently, was also rightly rejected by the courts. Thiswas also supported by the medical evidence. The other part of theevidence with respect to the fight was also dealt with by the courtsDas evidence available would suggest that it is the deceased whowent nearer, and the accused were not stationing themselveswaiting for his arrival. Therefore, the aforesaid findings of both thecourts in coming to the conclusion that it is not case which wouldattract punishment under Section 301 Part I IPC does not sufferEfrom any perversity. In view of the above Crl. A. No.1586 of 2021stands dismissed. At this stage the Court also hasten to add thatthe overt act of A2 being different and in the absence of any appealfiled by him, the Court does not wish to make any remark for thepurpose of acquitting him. [Paras 32 & 33][670-E-H; 671-A-C]F3. The only other issue for consideration is the applicationof Section 34 IPC to the case of the Appellants. The occurrencewas admittedly during the nighttime. It happened on the street.If A3 and A4 had made such statement in the same voice, theyshould have addressed A2 instead of A1. A2 was already having

gun and A1 was stated to have taken his gun out only on theGstatement made by A3 and A4. The reasoning of the trial court indisbelieving the evidence of PW6 as he improved on his casesubsequently, ought to be applied for the statement made thatA3 and A4 had asked A1 to fire. Admittedly, this was an

improvement to the earlier statement made as could be seenfrom the evidence of PW6 on more than one occasion. Thus, inour considered view both the courts ought to have disbelievedthe evidence of PW6 insofar as Section 34 IPC is concerned. Thereis no evidence at all on record to hold that A3 and A4 were awareof the fact that A1 was having gun with him. The prosecutionwanted to implicate A3 and A4 mainly on the evidence of PW13.Once the said evidence was not accepted, more care ought to havebeen taken before convicting A3 and A4 under Section 34 IPC.The Court has no difficulty in holding that common intention canbe formed at the time of the occurrence. However, the evidenceavailable is not sufficient enough to hold that Section 34 IPC isattracted as against A3 and A4, especially when the testimony ofPW13 did not find favour with the courts. It is to be noted thatexcept the statement said to have been made by A3 and A4, therewas no other material to implicate them. Now, the statement madeby A3 and A4 is as follows: “what are you seeing now”. Thequestion is as to whether the said statement would constitute anoffense punishable under Section 304 Part I IPC. This Court hasalready noted the fact that had A2 fired at the deceased inpursuance to the statement made by A3 and A4 the situation wouldhave been different. It is possible that the said statement hasbeen made only to attack otherwise the deceased. Suffice it is tohold that the prosecution has not proved its case beyondreasonable doubt as against A3 and A4 by reflecting the offencecommitted by A1, taking umbrage under Section 34 IPC. [Paras34 & 35][671-D-H; 672-A-C]

Suresh v State of U.P. (2001) 3 SCC 673 : [2001] 2SCR 263; Lallan Rai v. State of Bihar (2003) 1 SCC268 : [2002] 4 Suppl. SCR 188; Chhota Ahirwar v.State of M.P. (2020) 4 SCC 126; Rambilas Singh &Ors. v. State of Bihar (1989) 3 SCC 605; Krishnan &Another v. State of Kerala (1996) 10 SCC 508 : [1996]5 Suppl. SCR 405; Surendra Chauhan v. State of M.P.(2000) 4 SCC110 : [2000] 2 SCR 515; Gopi Nath @Jhallar v. State of U.P. (2001) 6 SCC 620 : [2001] 1Suppl. SCR 72; Ramesh Singh @ Photti v. State of A.P.(2004) 11 SCC 305; Nand Kishore v. State Of Madhya

APradesh (2011) 12 SCC 120 : [2011] 7 SCR 1152;Shyamal Ghosh v. State of West Bengal (2012) 7 SCC646 : [2012] 10SCR 95; Virendra Singh v. State ofMadhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR772 – relied on.

BBarendra Kumar Ghosh v. King Emperor AIR 1925 PC1; Shah v. Emperor AIR 1945 PC 148 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1584 of 2021.

FFrom the Judgment and Order dated 16.10.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRA-D-1325-DB-2015.

With

Criminal Appeal Nos. 1585 and 1586 of 2021.

GShekhar Naphade, Siddharth Luthra, Vikram Chaudhri, Sr. Advs.,Rajat Bali, Shivram, Gaurav Agrawal, Ms. Aishwarya Dash, Ms. SupriyaJuneja, Ms. Shubhangi Jain, Ms. Sonali Sharma, Pankaj Singhal, YashGiri, Nikhil Jain, Rishi Sehgal, Keshavam Chaudhari, Ms. Ria Khanna,Ms. Jaspreet Gogia, Karanvir Gogia, Ms. Shivangi Singhal, Ms. VamikaGupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. Heard learned counsel appearing for the parties.

2. Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filedby convicted Appellants/Accused 3 and 4 respectively against convictionBunder Section 304 Part I of the Indian Penal Code (IPC) with lifesentence, while Crl. A. No.1586 of 2021 is filed by the de factocomplainant seeking modification of the conviction to the sentencepunishable under Section 302 IPC. Thus, we shall deal with all the appealsby our common order, particularly, when they emanate and emerge fromCa common impugned order.

BRIEF FACTS

3. Four accused persons were charged, convicted, and sentencedin the following manner:

A4. The occurrence took place at about 12:45 a.m. on 21.04.2011in the area of Baba Rasoi Dhaba, Jalandhar. The motive for theoccurrence was that the deceased felt that raid conducted in the hotelbelonging to him and his father (PW6), the Appellant in Crl. A. No.1586of 2021, was done at the instance of the accused. All the accused arefriends of each other.B

5. PW6 went in search of the deceased on finding that he had notreturned home, though he was in habit of coming late. On particularstreet, he saw the accused grappling with the deceased. It was seen byhim in the street light. The occurrence was also witnessed by PW10who incidentally was friend of the deceased. PW13 spoke about theCcommon intention on the part of the accused on the previous night to doaway with the deceased.

6. In pursuance to the statement made by A3 and A4, saying“what are you seeing now”, A1 took out gun from his pocket and shotthe deceased. A2 took his gun and brandished it against the deceased,Dprior to the aforesaid statement made by A3 and A4, followed by theshooting by A1. A3 and A4 made the statement pointing to A1, thoughA2 was already having the gun out. It is only thereafter that A1 took outhis gun and shot the deceased.

7. The deceased was taken to the hospital situated about 3 kmsEfrom the place of occurrence, notwithstanding the other hospitals nearby.PW23 helped PW6 and PW10 to carry the deceased into the car ofPW6. Thereafter PW6 gave the complaint under Exhibit PL. In thecomplaint, he did not make any statement that A3 and A4 exhorted A1to shoot, except the statement as referred earlier. However, in hisFadditional statement given under Section 161 CrPC, he improved hisversion by stating that A3 and A4 instigated A1 to fire. We may note, A6is legally qualified person.

8. PW24 took up the investigation and completed the formalities.Recoveries have been made, including of the weapons.

9. Before the trial court, the prosecution examined 27 witnessesand marked documents in support of its case. On behalf of the defense,16 witnesses have been examined along with the documents.

10. Before the trial court, PW10 and PW23 turned hostile. Uponhearing the counsel appearing for the parties conviction has beenHrendered against all the accused for the offences punishable under Section

304 Part I IPC along with life sentence. The trial court reasoned that itis not as if the accused were waiting for the deceased. The deceasedwent nearer to the accused, as could be seen from the evidence ofPW10 under Exhibit PF/1 and PQ. There was only one single shot.Though the deceased fell down the accused did not shoot him thereafter.There was indeed quarrel preceding the occurrence. The evidence ofPW13 was disbelieved with respect to prior concert. It was noted thathe was resident of place 50 kms away from Jalandhar. The evidenceadduced by his cousin (DW1) showed that he was not present at hishouse at Jalandhar and there was no reason for going to Jalandhar on20.04.2011. The prosecution did not prove that that day was his birthdayand there were other places available nearer to his residence. Therewas absolutely no material to hold that he knew the accused at any priorpoint of time. It would be improbable that the accused would make aplan to commit murder in public, by addressing themselves by nameswhile flaunting their weapons. Further, he did not make any complaint.The statement that he visited days thereafter to seek tires for his jeepwas not believed as such tires could be obtained otherwise in nearerplace.

11. Accordingly, holding that there was no premeditation, and theoccurrence took place in pursuance to sudden fight, in heat of passion,the case was brought under Exception 4 to Section 300 IPC.

12. Appeals were filed by all the parties. The High Court concurredwith the views of the trial court. However, it did not specifically dealwith the scope of Section 34 IPC as against A3 and A4 which wasaccordingly done by the trial court. We may also note that the trial courtdid an in-depth, exhaustive assessment, by considering almost all thematerial placed before it, including the statements made by the witnesses.

13. A3 and A4 are before us by filing their respective appealsseeking to overturn the judgment rendered by the High Court confirmingthe one by the trial court. Thus, A1 and A2 have not filed their appeals.We have been informed at the Bar, by the learned Senior Counselappearing for the de facto complainant/Appellant in Crl. A. No.1586 of2021 that A1 has since been let out on pre-mature release by the State.We do not wish to state anything on the role of A1 and A2 except to theextent of testing the decision of the High Court and the trial court as towhether the case would fall under Section 304 Part I or Section 302IPC.

AArguments on behalf of the Appellants

14. Since appeals have been filed both by the convicted Appellantsand the de facto complainant, we would like to note the arguments of A3and A4 first and thus the other appeal filed by de facto complainantwould be taken along with the arguments of the State.

15. It is submitted by the learned counsel that the evidence ofPW13 having been disbelieved, the courts have committed an error inapplying Section 34 IPC. There is an improvement with respect to thestatement made by PW6. mere statement per se would not be sufficientto attract Section 34 IPC. It is strange that both of them made the sameCstatement. The presence of PW6 is very doubtful. He had deposed thatthe deceased used to come late and there was no complaint whatsoever.If A2 brandished the gun before the deceased was shot by A1, it is onlylogical that A3 and A4 would have asked A2 to shoot first. Even theother eyewitness in PW10 has turned hostile and so also another materialwitness in PW23. Under those circumstances it is fit case where theDconviction rendered against A3 and A4 are to be set aside.Submission of the Respondents

16. The learned Senior Counsel appearing for the de factocomplainant submitted that the accused are influential persons. The caseEwould come under offense punishable under Section 302 IPC. The trialcourt has committed an error as confirmed by the High Court in bringingit under Section 299 IPC and therefore wrongly applied Section 304Part I IPC. It is not necessary that an accused will have to do physicalact in order to attract Section 34 IPC. Thus, mere presence of theaccused would suffice. Hence, the appeal filed by the de factoFcomplainant be allowed while dismissing the appeal filed by the Accused-Appellants.

17. The counsel appearing for the State submitted that cogentreasoning was given by the High Court. The trial court considered theentire material available on record. Recoveries made have been proved.GUnder those circumstances there is no need to interfere with theconviction and sentence.

Section 34 IPC

18. We shall first go back into the history to understand Section34 IPC as it stood at the inception and as it exists now.H

19. On comparison, one could decipher that the phrase “infurtherance of the common intention” was added into the statute booksubsequently. It was first coined by Chief Justice Barnes Peacockpresiding over Bench of the Calcutta High Court, while delivering itsdecision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) whichwould have probably inspired and hastened the amendment to Section34 IPC, made in 1870. The following passage may lend credence to theaforesaid possible view:

“It does not follow that, because they were present with the intentionof taking him away, that they assisted by their presence in thebeating of him to such an extent as to cause death. If the objectand design of those who seized Amordi was merely to take him tothe thannah on charge of theft, and it was no part of the commondesign to beat him, they would not all be liable for the consequenceof the beating merely because they were present. It is laid downthat, when several persons are in company together engaged inone common purpose, lawful or unlawful, and one of them, withoutthe knowledge or consent of the others, commits an offence, theothers will not be involved in the guilt, unless the act done was insome manner in furtherance of the common intention. It is alsosaid, although man is present when felony is committed, if hetake no part in it, and do not act in concert with those who commitit, he will not be principal merely because he did not endeavourto prevent it or to apprehend the felon. But if several persons goout together for the purpose of apprehending man and takinghim to the thannah on charge of theft, and some of the party inthe presence of the others beat and ill-treat the man in cruel andviolent manner, and the others stand by and look on withoutendeavouring to dissuade them from their cruel and violent conduct,it appears to me that those who have to deal with the facts mightvery properly infer that they were all assenting parties and actingin concert, and that the beating was in furtherance of commondesign. I do not know what the evidence was, all that I wish to

DEFGH

Apoint out is, that all who are present do not necessarily assist bytheir presence every act that is done in their presence, nor areconsequently liable to be punished as principals.”

20. Before we deal further with Section 34 IPC, peep at Section33 IPC may give better understanding. Section 33 IPC brings into itsBfold series of acts as that of single one. Therefore, in order to attractSection 34 to 39 IPC, series of acts done by several persons would berelated to single act which constitutes criminal offense. similarmeaning is also given to the word ‘omission’, meaning thereby, seriesof omissions would also mean single omission. This provision wouldthus make it clear that an act would mean and include other acts alongCwith it.21. Section 34 IPC creates deeming fiction by infusing andimporting criminal act constituting an offence committed by one, intoothers, in pursuance to common intention. Onus is on the prosecutionto prove the common intention to the satisfaction of the court. The qualityDof evidence will have to be substantial, concrete, definite and clear. Whena part of evidence produced by the prosecution to bring the accusedwithin the fold of Section 34 IPC is disbelieved, the remaining part willhave to be examined with adequate care and caution, as we are dealingwith case of vicarious liability fastened on the accused by treating himEat par with the one who actually committed the offence.

22. What is required is the proof of common intention. Thus, theremay be an offence without common intention, in which case Section 34IPC does not get attracted.

23. It is team effort akin to game of football involving severalFpositions manned by many, such as defender, mid-fielder, striker, and akeeper. striker may hit the target, while keeper may stop an attack.The consequence of the match, either win or loss, is borne by all theplayers, though they may have their distinct roles. goal scored or savedmay be the final act, but the result is what matters. As against the specificGindividuals who had impacted more, the result is shared between theplayers. The same logic is the foundation of Section 34 IPC which createsshared liability on those who shared the common intention to commit thecrime.

24. The intendment of Section 34 IPC is to remove the difficultiesin distinguishing the acts of individual members of party, acting inH

furtherance of common intention. There has to be simultaneousconscious mind of the persons participating in the criminal action ofbringing about particular result. common intention qua its existenceis question of fact and also requires an act “in furtherance of the saidintention”. One need not search for concrete evidence, as it is for thecourt to come to conclusion on cumulative assessment. It is only arule of evidence and thus does not create any substantive offense.

25. Normally, in an offense committed physically, the presence ofan accused charged under Section 34 IPC is required, especially in acase where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offenseconsists of diverse acts done at different times and places. Therefore, ithas to be seen on case to case basis.

26. The word “furtherance” indicates the existence of aid orassistance in producing an effect in future. Thus, it has to be construedas an advancement or promotion.

27. There may be cases where all acts, in general, would notcome under the purview of Section 34 IPC, but only those done infurtherance of the common intention having adequate connectivity. Whenwe speak of intention it has to be one of criminality with adequacy ofknowledge of any existing fact necessary for the proposed offense. Suchan intention is meant to assist, encourage, promote and facilitate thecommission of crime with the requisite knowledge as aforesaid.

28. The existence of common intention is obviously the duty ofthe prosecution to prove. However, court has to analyse and assessthe evidence before implicating person under Section 34 IPC. merecommon intention per se may not attract Section 34 IPC, sans an actionin furtherance. There may also be cases where person despite beingan active participant in forming common intention to commit crime,may actually withdraw from it later. Of course, this is also one of thefacts for the consideration of the court. Further, the fact that all accusedcharged with an offence read with Section 34 IPC are present at thecommission of the crime, without dissuading themselves or others mightwell be relevant circumstance, provided prior common intention isduly proved. Once again, this is an aspect which is required to be lookedinto by the court on the evidence placed before it. It may not be requiredon the part of the defence to specifically raise such plea in casewhere adequate evidence is available before the court.

29. The essence and scope of Section 34 IPC can be borne out ofexcerpts from the following judgements:

Suresh v State of U.P. ((2001) 3 SCC 673):

“24. Looking at the first postulate pointed out above, the accusedwho is to be fastened with liability on the strength of Section34 IPC should have done some act which has nexus with theoffence. Such an act need not be very substantial, it is enoughthat the act is only for guarding the scene for facilitating thecrime. The act need not necessarily be overt, even if it is onlya covert act it is enough, provided such covert act is provedto have been done by the co-accused in furtherance of thecommon intention. Even an omission can, in certaincircumstances, amount to an act. This is the purport of Section32 IPC. So, the act mentioned in Section 34 IPC need not bean overt act, even an illegal omission to do certain act in acertain situation can amount to an act, e.g. co-accused,standing near the victim face to face saw an armed assailantnearing the victim from behind with weapon to inflict blow.The co-accused, who could have alerted the victim to moveaway to escape from the onslaught deliberately refrained fromdoing so with the idea that the blow should fall on the victim.Such omission can also be termed as an act in given situation.Hence an act, whether overt or covert, is indispensable to bedone by co-accused to be fastened with the liability underthe section. But if no such act is done by person, even if hehas common intention with the others for the accomplishmentof the crime, Section 34 IPC cannot be invoked for convictingthat person. In other words, the accused who only keeps thecommon intention in his mind, but does not do any act at thescene, cannot be convicted with the aid of Section 34 IPC.

xxx

40. Participation in the crime in furtherance of the commonintention cannot conceive of some independent criminal act byall accused persons, besides the ultimate criminal act becausefor that individual act law takes care of making such accusedresponsible under the other provisions of the Code. The word“act” used in Section 34 denotes series of acts as single

act. What is required under law is that the accused personssharing the common intention must be physically present atthe scene of occurrence and be shown not to have dissuadedthemselves from the intended criminal act for which they sharedthe common intention. Culpability under Section 34 cannot beexcluded by mere distance from the scene of occurrence. Thepresumption of constructive intention, however, has to bearrived at only when the court can, with judicial servitude, holdthat the accused must have preconceived the result that ensuedin furtherance of the common intention. Division Bench ofthe Patna High Court in Satrughan Patar v. Emperor, AIR1919 Pat 111 held that it is only when court with some certaintyholds that particular accused must have preconceived orpremeditated the result which ensued or acted in concert withothers in order to bring about that result, that Section 34 maybe applied.”

Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:

“22. The above discussion in fine thus culminates to the effectthat the requirement of statute is sharing the common intentionupon being present at the place of occurrence. Mere distancinghimself from the scene cannot absolve the accused — thoughthe same however depends upon the fact situation of the matterunder consideration and no rule steadfast can be laid downtherefor.”

Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:

“24. Section 34 is only attracted when specific criminal act isdone by several persons in furtherance of the common intentionof all, in which case all the offenders are liable for that criminalact in the same manner as the principal offender as if the actwere done by all the offenders. This section does not whittledown the liability of the principal offender committing theprincipal act but additionally makes all other offenders liable.The essence of liability under Section 34 is simultaneousconsensus of the minds of persons participating in the criminalact to bring about particular result, which consensus caneven be developed at the spot as held in Lallan Rai v. State ofBihar, (2003) 1 SCC 268. There must be common intention

to commit the particular offence. To constitute commonintention, it is absolutely necessary that the intention of eachone of the accused should be known to the rest of the accused.”

Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):

“...... the words of S. 34 are not to be eviscerated by readingthem in this exceedingly limited sense. By S. 33 criminal actin S. 34 includes series of acts and, further, “act” includesomissions to act, for example, an omission to interfere in orderto prevent murder being done before one’s very eyes. By S.37, when any offence is committed by means of several actswhoever intentionally co-operates in the commission of thatoffence by doing any one of those acts, either singly or jointlywith any other person, commits that offence. Even if theappellant did nothing as he stood outside the door, it is to beremembered that in crimes as in other things “they also servewho only stand and wait”. By S. 38, when several persons areengaged or concerned in the commission of criminal act,they may be guilty of different offences by means of that act.Read together, these sections are reasonably plain. S. 34 dealswith the doing of separate acts, similar or diverse, by severalpersons; if all are done in furtherance of common intention,each person is liable for the result of them all, as if he had donethem himself, for “that act” and “the act” in the latter part ofthe section must include the whole action covered by ‘a criminalact’ in the first part, because they refer to it. S. 37 providesthat, when several acts are done so as to result together in thecommission of an offence, the doing of any one of them, withan intention to co-operate in the offence (which may not bethe same as an intention common to all), makes the actor liableto be punished for the commission of the offence. S. 38 providesfor different punishments for different offences as an alternativeto one punishment for one offence, whether the personsengaged or concerned in the commission of criminal act areset in motion by the one intention or by the other.”

Mehbub Shah v. Emperor (AIR 1945 PC 148):

“....Section 34 lays down principle of joint liability in the doingof criminal act. The section does not say “the common

intentions of all” nor does it say “an intention common to all.”Under the section, the essence of that liability is to be found inthe existence of common intention animating the accusedleading to the doing of criminal act in furtherance of suchintention. To invoke the aid of S. 34 successfully, it must beshown that the criminal act complained against was done byone of the accused persons in the furtherance of the commonintention of all; if this is shown, then liability for the crime maybe imposed on any one of the persons in the same manner asif the act were done by him alone. This being the principle, it isclear to their Lordships that common intention within themeaning of the section implies pre-arranged plan, and toconvict the accused of an offence applying the section it shouldbe proved that the criminal act was done in concert pursuantto the pre-arranged plan…”

Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:

“7…It is true that in order to convict persons vicariously undersection 34 or section 149 IPC, it is not necessary to prove thateach and every one of them had indulged in overt acts. Evenso, there must be material to show that the overt act or acts ofone or more of the accused was or were done in furtheranceof the common intention of all the accused or in prosecution ofthe common object of the members of the unlawfulassembly…”

Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:

“15. Question is whether it is obligatory on the part of theprosecution to establish commission of overt act to press intoservice section 34 of the Penal Code. It is no doubt true thatcourt likes to know about overt act to decide whether theconcerned person had shared the common intention in question.Question is whether overt act has always to be established? Iam of the view that establishment of an overt act is not arequirement of law to allow section 34 to operate inasmuchthis section gets attracted when “a criminal act is done byseveral persons in furtherance of common intention of all”.What has to be, therefore, established by the prosecution isthat all the concerned persons had shared the common intention.

Court’s mind regarding the sharing of common intention getssatisfied when overt act is established qua each of the accused.But then, there may be case where the proved facts wouldthemselves speak of sharing of common intention: res ipsaloquitur.”

Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:

“11. Under Section 34 person must be physically present atthe actual commission of the crime for the purpose of facilitatingor promoting the offence, the commission of which is the aimof the joint criminal venture….”

Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:

“8. …As for the challenge made to the conviction under Section302 read with Section 23 IPC, it is necessary to advert to thesalient principles to be kept into consideration and oftenreiterated by this Court, in the matter of invoking the aid ofSection 34 IPC, before dealing with the factual aspect of theclaim made on behalf of the appellant. Section 34 IPC hasbeen held to lay down the rule of joint responsibility for criminalacts performed by plurality or persons who joined together indoing the criminal act, provided that such commission is infurtherance of the common intention of all of them. Even thedoing of separate, similar or diverse acts by several persons,so long as they are done in furtherance of common intention,render each of such persons liable for the result of them all, asif he had done them himself, for the whole of the criminalaction – be it that it was not overt or was only covert act ormerely an omission constituting an illegal omission. The section,therefore, has been held to be attracted even where the actscommitted by the different confederates are different when itis established in one way or the other that all of them participatedand engaged themselves in furtherance of the common intentionwhich might be of pre-concerted or pre-arranged plan orone manifested or developed at the spur of the moment in thecourse of the commission of the offence. The common intentionor the intention of the individual concerned in furtherance ofthe common intention could be proved either from directevidence or by inference from the acts or attending

circumstances of the case and conduct of the parties. Theultimate decision, at any rate, would invariably depend uponthe inferences deducible from the circumstances of each case.”

Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:

“12. …As general principle in case of criminal liability it isthe primary responsibility of the person who actually commitsthe offence and only that person who has committed the crimecan be held guilty. By introducing Section 34 in the Penal Codethe legislature laid down the principle of joint liability in doing acriminal act. The essence of that liability is to be found in theexistence of common intention connecting the accusedleading to the doing of criminal act in furtherance of suchintention. Thus, if the act is the result of common intention,then every person who did the criminal act with that commonintention would be responsible for the offence committedirrespective of the share which he had in its perpetration..........”

Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:

“20. bare reading of this section shows that the section couldbe dissected as follows:

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the common intention ofall;

and

(c) Each of such persons is liable for that act in the samemanner as if it were done by him alone.

In other words, these three ingredients would guide the courtin determining whether an accused is liable to be convictedwith the aid of Section 34. While first two are the acts whichare attributable and have to be proved as actions of the accused,the third is the consequence. Once the criminal act and commonintention are proved, then by fiction of law, criminal liability ofhaving done that act by each person individually would arise.The criminal act, according to Section 34 IPC must be done byseveral persons. The emphasis in this part of the section is onthe word “done”. It only flows from this that before person

can be convicted by following the provisions of Section 34,that person must have done something along with other persons.Some individual participation in the commission of the criminalact would be the requirement. Every individual member of theentire group charged with the aid of Section 34 must, therefore,be participant in the joint act which is the result of theircombined activity.

21. Under Section 34, every individual offender is associatedwith the criminal act which constitutes the offence bothphysically as well as mentally i.e. he is participant not only inwhat has been described as common act but also what istermed as the common intention and, therefore, in both theserespects his individual role is put into serious jeopardy althoughthis individual role might be part of common scheme inwhich others have also joined him and played role that issimilar or different. But referring to the common intention, itneeds to be clarified that the courts must keep in mind the finedistinction between “common intention” on the one hand and“mens rea” as understood in criminal jurisprudence on the other.Common intention is not alike or identical to mens rea. Thelatter may be coincidental with or collateral to the former butthey are distinct and different.

22. Section 34 also deals with constructive criminal liability. Itprovides that where criminal act is done by several personsin furtherance of the common intention of all, each of suchpersons is liable for that act in the same manner as if it wasdone by him alone. If the common intention leads to thecommission of the criminal offence charged, each one of thepersons sharing the common intention is constructively liablefor the criminal act done by one of them. (Refer to Brathi v.State of Punjab 1991 (1) SCC 519).23. Another aspect which the court has to keep in mind whiledealing with such cases is that the common intention or stateof mind and the physical act, both may be arrived at the spotand essentially may not be the result of any predeterminedplan to commit such an offence. This will always depend onthe facts and circumstances of the case…”

Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:

“87. Upon analysis of the above judgments and in particularthe judgment of this Court in the case of Dharnidhar v. Stateof Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section34 IPC applies where two or more accused are present andtwo factors must be established i.e. common intention andparticipation of the accused in the crime. Section 34 IPC,moreover, involves vicarious liability and therefore, if theintention is proved but no overt act was committed, the sectioncan still be invoked. This provision carves out an exceptionfrom general law that person is responsible for his own act,as it provides that person can also be held vicariouslyresponsible for the act of others, if he had the common intentionto commit the act. The phrase “common intention” means apre-oriented plan and acting in pursuance to the plan, thus,common intention must exist prior to the commission of the actin point of time. The common intention to give effect to aparticular act may even develop on the spur of moment betweena number of persons with reference to the facts of givencase.”

30. The aforesaid principle has also been dealt with in extenso bythe Apex Court in Virendra Singh V. State of Madhya Pradesh ((2010)8 SCC 407) through the following paragraphs:

“15. Ordinarily, person is responsible for his own act. personcan also be vicariously responsible for the acts of others if he hadthe common intention to commit the offence. The words “commonintention” implies prearranged plan and acting in concert pursuantto the plan. It must be proved that the criminal act was done inconcert pursuant to the prearranged plan. Common intention comesinto force prior to the commission of the act in point of time, whichneed not be long gap. Under this section pre-concert in thesense of distinct previous plan is not necessary to be proved.The common intention to bring about particular result may welldevelop on the spot as between number of persons, withreference to the facts of the case and circumstances of thesituation. Though common intention may develop on the spot, itmust, however, be anterior in point of time to the commission ofthe crime showing prearranged plan and prior concert. The

FGH

common intention may develop in course of the fight but theremust be clear and unimpeachable evidence to justify that inference.This has been clearly laid down by this Court in the case of AmrikSingh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972CriLJ 465.

16. The essence of the liability is to be found in the existence of acommon intention animating the accused leading to the doing of acriminal act in furtherance of such intention. Undoubtedly, it isdifficult to prove even the intention of an individual and, therefore,it is all the more difficult to show the common intention of groupof persons. Therefore, in order to find whether person is guiltyof common intention, it is absolutely necessary to carefully andcritically examine the entire evidence on record. The commonintention can be spelt out only from the evidence on record.

17. Section 34 is not substantive offence. It is imperative thatbefore man can be held liable for acts done by another underthe provisions of this section, it must be established that there wascommon intention in the sense of prearranged plan between thetwo and the person sought to be so held liable had participated insome manner in the act constituting the offence. Unless commonintention and participation are both present, this section cannotapply.

xxxxxx

36. Referring to the facts of this case, the short question whicharises for adjudication in this appeal is whether the appellantVirendra Singh can be convicted under section 302 with the aid ofsection 34 IPC. Under the Penal Code, the persons who areconnected with the preparation of crime are divided into twocategories: (1) those who actually commit the crime i.e. principalsin the first degree; and (2) those who aid in the actual commissioni.e. principals in the second degree. The law does not make anydistinction with regard to the punishment of such persons, all beingliable to be punished alike.

37. Under the Penal Code, person is responsible for his ownact. person can also be vicariously responsible for the acts ofothers if he had common intention to commit the acts or if theoffence is committed by any member of the unlawful assembly in

prosecution of the common object of that assembly, then also hecan be vicariously responsible. Under the Penal Code, two sections,namely, Sections 34 and 149, deal with them circumstances whena person is vicariously responsible for the acts of others.

38. The vicarious or constructive liability under Section 34 IPCcan arise only when two conditions stand fulfilled i.e. the mentalelement or the intention to commit the criminal act conjointly withanother or others; and the other is the actual participation in oneform or the other in the commission of the crime.

39. The common intention postulates the existence of aprearranged plan implying prior meeting of the minds. It is theintention to commit the crime and the accused can be convictedonly if such an intention has been shared by all the accused. Sucha common intention should be anterior in point of time to thecommission of the crime, but may also develop on the spot whensuch crime is committed. In most of the cases it is difficult toprocure direct evidence of such intention. In most of the cases, itcan be inferred from the acts or conduct of the accused and otherrelevant circumstances. Therefore, in inferring the commonintention under section 34 IPC, the evidence and documents onrecord acquire great significance and they have to be verycarefully scrutinized by the court. This is particularly important in

cases where evidence regarding development of the commonintention to commit the offence graver than the one originallydesigned, during execution of the original plan, should be clearand cogent.

40. The dominant feature of Section 34 is the element of intentionand participation in action. This participation need not in all casesbe by physical presence. Common intention implies acting inconcert.

41. The essence of Section 34 IPC is simultaneous consensusof the minds of the persons participating in criminal action to bringabout particular result. Russell in his celebrated book Russellon Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistanceproducing an effect in future and adds that any act may be regardedas done in furtherance of the ultimate felony if it is stepintentionally taken for the purpose of effecting that felony. It was

observed by Russell that any act of preparation for the commissionof felony is done in furtherance of the act.

42. Section 34 IPC does not create any distinct offence, but itlays down the principle of constructive liability. Section 34 IPCstipulates that the act must have been done in furtherance of thecommon intention. In order to incur joint liability for an offencethere must be prearranged and premeditated concert betweenthe accused persons for doing the act actually done, though theremight not be long interval between the act and the premeditationand though the plan may be formed suddenly. In order that Section34 IPC may apply, it is not necessary that the prosecution mustprove that the act was done by particular or specified person.In fact, the section is intended to cover case where number ofpersons act together and on the facts of the case it is not possiblefor the prosecution to prove as to which of the persons who actedtogether actually committed the crime. Little or no distinction existsbetween charge for an offence under particular section and acharge under that section read with section 34.”

On merit

31. Having understood Section 34 IPC, we shall now deal withthe case on hand.

32. The evidence of PW13 did not find favour with the courts.The trial court which had the advantage of noting the deposition of thewitnesses, chose to disbelieve the evidence adduced, by giving cogentreasons. This evidence was rightly eschewed by the trial court and alsoby the High Court. There are too many improbabilities in the testimonyof PW13. person who was living 50 kms away remembered theaccused and their names and overheard their plot to commit the murder.His evidence was belied by the evidence of DW1 who was none otherthan his own cousin with whom he was said to be residing at the relevantpoint of time.

33. The other material witnesses are PW6 and PW10. PW10 hadgiven prior statements. Though he turned hostile despite being friendof the deceased, the trial court did take into consideration his earlierstatement, while coming to the conclusion that there was no premeditationand thus the case would fall under culpable homicide not murder. Thoughthe evidence of PW6 was not rejected, both the courts did find clear

exaggeration on his part. On many occasions PW6 made concertedeffort to improve the case of prosecution. The testimony given by himon the dying declaration, case inserted by him in his supplementarystatement, made subsequently, was also rightly rejected by the courts.This was also supported by the medical evidence. The other part of theevidence with respect to the fight was also dealt with by the courts asevidence available would suggest that it is the deceased who went nearer,and the accused were not stationing themselves waiting for his arrival.Therefore, the aforesaid findings of both the courts in coming to theconclusion that it is not case which would attract punishment underSection 301 Part I IPC does not suffer from any perversity. In view ofthe above Crl. A. No.1586 of 2021 stands dismissed. At this stage wealso hasten to add that the overt act of A2 being different and in theabsence of any appeal filed by him, we do not wish to make any remarkfor the purpose of acquitting him.34. The only other issue for consideration is the application ofSection 34 IPC to the case of the Appellants. The occurrence wasadmittedly during the nighttime. It happened on the street. If A3 and A4had made such statement in the same voice, they should have addressedA2 instead of A1. A2 was already having gun and A1 was stated tohave taken his gun out only on the statement made by A3 and A4. Thereasoning of the trial court in disbelieving the evidence of PW6 as heimproved on his case subsequently, ought to be applied for the statementmade that A3 and A4 had asked A1 to fire. Admittedly, this was animprovement to the earlier statement made as could be seen from theevidence of PW6 on more than one occasion. Thus, in our consideredview both the courts ought to have disbelieved the evidence of PW6insofar as Section 34 IPC is concerned. There is no evidence at all onrecord to hold that A3 and A4 were aware of the fact that A1 washaving gun with him. The prosecution wanted to implicate A3 and A4mainly on the evidence of PW13. Once the said evidence was notaccepted, more care ought to have been taken before convicting A3 andA4 under Section 34 IPC. We have no difficulty in holding that commonintention can be formed at the time of the occurrence. However, theevidence available is not sufficient enough to hold that Section 34 IPC isattracted as against A3 and A4, especially when the testimony of PW13did not find favour with the courts. We further note that except thestatement said to have been made by A3 and A4, there was no othermaterial to implicate them.

A35. Now, we shall come to the statements. The statement madeby A3 and A4 is as follows: “what are you seeing now”. The question isas to whether the said statement would constitute an offense punishableunder Section 304 Part I IPC. We have already noted the fact that hadA2 fired at the deceased in pursuance to the statement made by A3 andA4 the situation would have been different. It is possible that the saidBstatement has been made only to attack otherwise the deceased. Sufficeit is to hold that the prosecution has not proved its case beyond reasonabledoubt as against A3 and A4 by reflecting the offence committed by A1,taking umbrage under Section 34 IPC.

36. The High Court did not even consider the import of Section 34CIPC as against A3 and A4. We find that the approach of the trial courtcannot be sustained to that extent in the light of our discussion. Thus, weare inclined to set aside the judgment of the High Court confirming thatof the trial court as against the Accused-Appellants namely A3 and A4alone are concerned.

D37. In the result Crl. A. No.1584 of 2021 and Crl. A. No.1585 of2021 are allowed. The Crl. A. No.1586 of 2021 stands dismissed.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeals disposed of.