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Case Summary
| Citation | Suresh v. State of UP (2001) 3 SCC 673 |
| Keywords | |
| Facts | Ramesh and Suresh were brothers. Ramesh was living in his house along with his wife and four children. There was some land disputes between Ramesh and Suresh. Suresh along with his brother-in-law made plan for killing of all members of family of Ramesh. In midnight Suresh along with his brother-in-law Ramji attacked over family of Ramesh and killed all members except Jitendra (Seven Years) who also suffered injuries but fortunately survived. Pavitri Devi w/o Suresh was also charged for exhortation. Suresh, Ramji and Pavitri were charged under sections 302 r/w 34. |
| Issues | Whether Section 34 will be applicable in this case? |
| Contentions | According to Section 32 ‘act’ includes omission and according to Section 33 ‘act’ denotes as well as series of acts as single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts. There are two types of vicarious liability namely; (a) vicarious liability in the criminal jurisprudence (b) vicarious liability in the civil jurisprudence (Law of Torts). Section 34 of IPC recognizes 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. It means this Section itself does not constitute any offence. The only use of this Section is to prove the liability of the co-accused. So, if there is only one person who has committed crime this Section will not be applicable. 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 of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Participation of all is necessary. If there is only common intention but there is no participation, person may be liable under Section 109 or 120B but his matter will not cover under Section 34. Even exhortation to another accused would amount to participation. No need of substantial act. It is enough that the act is only for guarding the scene. Here covert act means illegal omission. According to Section 32 act includes illegal omission. The act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do certain act in certain situation can amount an act. Hence an act, whether overt or covert is indispensable to be done by the co-accused to be fastened with the liability. |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
THOMAS, J. – Secon 34 of the Indian Penal Code is a very commonly invoked provision in criminal cases. With a plethora of judicial decisions rendered on the subject the contours of its ambit seem well-nigh delineated. Nonetheless, when these appeals were heard a two- Judge Bench felt the need to take a re-look at the provision as to whether and if so to what extent it can be invoked as an aid in this case. Hence these appeals were heard by a larger Bench.
2. In one of the appeals A-1 Suresh and his brother-in-law, A-2 Ramji, are fighng their last chance to get extricated from the death penalty imposed on them by a Session Court which was confirmed by a Division Bench of the High Court. In the other appeal Pavitri Devi, the wife of A-1 Suresh (also sister of A-2 Ramji) is struggling to sustain the acquial secured by her from the High Court in reversal of the convicon for murder ordered by the Sessions Court with the aid of Secon 34 IPC.
3. On the night of 5-10-1996 when Ramesh (brother of the appellant Suresh) and his wife and children went to bed as usual, they would have had no foreboding that it was going to be the last night they were sleeping on this terrestrial terrain. But aer they, in their sleep, crossed the midnight line and when the half crescent moon appeared with its waned glow above their house, the night turned red by the bloodiest killing spree befallen on the enre family. The motley populaon of that small house was hacked to pieces by armed assailants, leaving none, but a single ny tot, alive. The sole survivor of the gory carnage could have seen what happened inside his sweet home only in the night which itself turned carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds he sustained on his person.
4. That infant witness (PW 3 Jitendra) told the trial court that he saw his uncle (A-1 Suresh) in the company of his brother-in-law (A-2 Ramji) acng like demons, cung the sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri Devi) clutched the tuft of his mother’s hair and yelled like a demoness in thirst for the blood of the enre family.
5. Lalji (PW 1), the uncle of the decreased Ramesh (who is uncle of A-1 Suresh also) and Amar Singh (PW 2) a neighbour gave evidence supporng the version of PW 3 Jitendra. But the said two witnesses did not aribute any overt act to Pavitri Devi except saying that she too was present near the scene of occurrence. The house of the accused was situated not for away from the scene of occurrence, but across the road which abuts the house of the decreased.
6. The doctor (PW 5 C.M. Tiwari) who conducted the autopsy on the dead bodies of all the deceased described the horrifying picture of the mauled bodies. The youngest of the vicms was one-year-old child whose skull was cut into two and the brain was torn as under. The next was a three-year-old male child who was killed with his neck axed and the spinal cord, trachea and the larynx were snipped. The next in line was PW 3 Jitendra – a seven year old child. (His injuries can be separately stated). His immediate next elder was Monisha-a nine-year-old female child, who too was axed on the neck, mouth and chest with her spinal cord cut into two.
7. The mother of those lile children, Ganga Devi, was inflicted six injuries which resulted in her skull being broken into pieces. The last was Ramesh – the bread-winner of the family, who was the father of the children. Four wounds were inflicted on him. All of them were on the neck and above that. The injuries on Ramesh, when put together, neared just short of decapitaon.
8. PW 3 Jitendra had three incised wounds on the scapular region, but the doctor who aended on him (PW 6 S.K. Verma) did not probe into the depth of one of them, presumably because of the fear that he might require an immediate surgical intervenon. However, he was not desned to die and hence the injuries on him did not turn fatal.
9. The move for the above dastardly massacre was the greed for a bit of land lying adjacent to the house compound of the deceased which A-I Suresh claimed to be his. But the deceased Ramesh clung to that land and it resulted in burgeoning animosity in the mind of Suresh which eventually grew alarmingly wild.
10. The evidence of PW 1 Lalji and PW 2 Amar Singh was considered by the Sessions Court in the light of various contenons raised by the counsel for the accused. The trial Judge found the said evidence reliable. The Division bench of the High Court considered the said evidence over again and they did not see any reason to dissent from the finding made by the trail court: The evidence of PW 3 Jitendra, the sole survivor of the carnage, was evaluated with greater care as he was an infant of seven years. Learned Judges of the Division Bench of the High Court accepted the evidence of PW 3 only to the extent it secured corroboraon from the tesmony of P.Ws 1 and 2.
11. Though Mr. K.B. Sinha, learned Senior Counsel made an endeavour to make some tears into the fabric of the tesmony of P.Ws 1 and 2, he failed to sasfy us that there is any infirmity in the findings recorded by the two courts regarding the reliability of the evidence of those two witnesses. As the learned Senior Counsel found it difficult to turn the table regarding the evidence against the accused which is formidable as well as trustworthy, he focused on two aspects. First is that acquial of Pavitri Devi does not warrant interference from this court. Second is that this is not a case belonging to the category which compels the Court to award death penalty to the two appellants, Suresh and Ramji.
12. We will now deal with the role played by Pavitri Devi to see whether the Court can interfere with the acquial order passed in her favour by the High Court. P.W. 3 said that while he was sleeping the blood gushed out of the wounds sustained by his father reached his mouth and when he woke up he saw the incident. According to him, Pavitri Devi caught hold of his mother’s hair and pulled her up, thereafter she went outside and exhorted that everybody should be killed. But P.Ws 1 and 2 did not support the aforesaid version pertaining to Pavitri Devi. According to them, when they reached the scene of occurrence Pavitri Devi was standing in front of the house of the deceased while the other two were inside the house engaged in the act of inflicng blows on the vicms.
13. The posion which the prosecuon succeeded in establishing against A-3 Pavitri Devi is that she was also present at the scene of occurrence. Learned counsel for the State contended that such presence was in furtherance of the common intenon of the three accused to commit the murders and hence she can as well be convicted for the murders under Secon 302 IPC with the aid of Secon 34 IPC. Mr. K.B. Sinha, learned counsel contended that if Secon 34 IPC is to be invoked against Pavitri Devi the prosecuon should have established that she had done some overt act in furtherance of the common intenon.
14. We heard arguments at length on the ambit of Secon 34 IPC. We have to consider whether the accused who is sought to be convicted with the aid of that secon, should have done some act, even assuming that the said accused also shared the common intenon with the other accused.
15. Secon 34 reads thus:
34.Acts done by several persons in furtherance of common intenon: When a criminal act is done by several persons in furtherance of the common intenon of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
16. As the section speaks of doing “a criminal act by several persons” we have to look at Section 33 IPC which defines the “Act”. As per it, the word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be the conglomeraon of a series of acts. How can a criminal act be done by several persons?
17. In this context, a reference to Secons 35, 37 and 38 IPC, in juxtaposion with Secon 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different posions when more than one person parcipang in the commission of one criminal act are adumbrated. Secon 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”. The section differs from Section 34 only regarding one postulate. In the place of common intenon of all such person (in furtherance of which the criminal act is done), as is required in Secon 34, it is enough that each parcipant who joins others in doing the criminal act, has the required men rea.
18. Section 37 deals with the commission of an offence “by means of several acts”. The secon renders anyone who intenonally co-operates in the commission of that offence “by doing any one of those acts” to be liable for that offence. Section 38 also shows another facet of one criminal act being done by several persons without connecng the common bond i.e., “in furtherance of the common intention of all”. In such a case, they would be guilty of different offence or offences but not for the same offence.
19. Hence, under Secon 34, one criminal act, composed of more than one act, can be commied by more than one persons and if such commission is in furtherance of the common intenon of all of them, each would be liable for the criminal act so commied.
20. To understand the secon beer, it is useful to recast it in a different form by way of an illustraon. This would highlight the difference when several persons do not parcipate in the crime commied by only one person even though there was common intenon of all the several persons. Suppose, a section was drafted like this: “When a criminal act is done by one person in furtherance of the common intenon of several persons, each of such several persons is liable for that act in the same manner as if it were done by all such persons.”
21. Obviously Secon 34 is not meant to cover a situaon which may fall within the ficously concocted secon caricatured above. In that concocted provision, the co-accused need not do anything because the act done by the principal accused would nail the co- accused also on the ground that such act was done by that single person in furtherance of the common intenon of all the several persons. But Secon 34 is intended to meet a situaon wherein all the co-accused have also done something to constute the commission of a criminal act.
22. Even the concept of presence of the co-accused at the scene is not a necessary requirement to aract Secon 34, e.g., the co-accused can remain a lile away and supply weapons to the parcipang accused either by throwing or by catapulng them so that they can be used to inflict injuries on the targeted person. Another illustraon, with advancement of electronic equipment can be etched like this: One of such persons, in furtherance of the common intenon overseeing the acons from a distance through binoculars can give instrucons to the other accused through mobile phones as to how effecvely the common intenon can be implemented. We do not find any reason why Secon 34 cannot apply in the case of those two persons indicated in the illustraons.
23. Thus to aract Secon 34 IPC two postulates are indispensable: (1) The criminal act (consisng of a series of acts) should have been done, not by one person. (2) Doing of every such individual act cumulavely resulng in the commission of criminal offence should have been in furtherance of the common intenon of all such persons.
24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Secon 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substanal, it is enough that the act is only for guarding the scene for facilitang the crime. The act need not necessary be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intenon. Even an omission can, in certain circumstances, amount to an act. This is the purport of Secon 32 IPC. So the act menoned in Secon 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situaon can amount to an act, e.g., a co-accused, standing near the vicm face to face saw an armed assailant nearing the vicm from behind with a weapon to inflict a blow. The co-accused, who could have alerted the vicm to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the vicm. Such omission can also be termed as an act in given situaon. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the secon. But if no such act is done by a person, even if he has common intenon with the others for the accomplishment of the crime, Secon 34 IPC cannot be invoked for convicng that person. In other words, the accused who only keeps the common intenon in his mind, but does not do any act at the scene, cannot be convicted with the aid of Secon 34 IPC.
25. There may be other provisions in the IPC like Secon 120-B or Secon 109 which could then be invoked to catch such non-parcipang accused. Thus parcipaon in the crime in furtherance of the common intenon is a sine qua non Secon 34 IPC. Exhortaon to other accused, even guarding the scene etc. would amount to parcipaon. Of course, when the allegaon against an accused is that he parcipated in the crime by oral exhortaon or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act.
26. A Division Bench of the Madras High Court has said as early as in 1923 that “evidence of some distinct act by the accused, which can be regarded as part of the criminal act in question, must be required to justify the application on Section 34 IPC.” (vide Aydroos v. Emperor AIR 1923 Mad. 187).
27. In Barendra Kumar Ghosh v. King Emperor the Judicial Commiee aer referring to the cognate provision adverted to above, held thus:
Read together, these secons are reasonably plain. Secon 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intenon, 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.
28. We have come across the observaons made by another Judicial Commiee of the Privy Council of equal strength in Mahbub Shah v. Emperor. The observaon is that Secon 34 IPC can be invoked if it is shown that the criminal act was done by one of the accused in furtherance of the common intenon of all. On the fact situaon their Lordships did not have to consider the other component of the secon. Hence the said observaon cannot be understood to have obviated the necessity of proving that “the criminal act was done by several persons” which is a component of Section 34 IPC.
29. In Pandurang v. State of Hyderabad, Vivian Bose. J., speaking for a three-Judge bench of this court focused on the second component in Section 34 IPC i.e., “furtherance of the common intention”. There was no need for the Bench to consider about the acts commied by the accused charged, in order to ascertain whether all the accused commied the criminal act involved therein. In other words, the first postulate was not a queson which came up for consideraon in the case. Hence the said decision, cited by both sides for supporng their respecve contenon, is not of much use in the case.
30. Mr. Pramod Swarup, learned counsel for the State invited our aenon to the decision of this Court in State of U.P. v. Iikhar Khan [(1973) 1 SCC 512] in which it was observed that to aract Secon 34 IPC it is not necessary that any overt act should have been done by the co-accused. In that case, four accused persons were convicted on a fact situaon that two of them were armed with pistols and the other two were armed with lathis and all the four together walked in a body towards the deceased and aer firing the pistols at the deceased all the four together le the scene. The finding of fact in that case was also the same. When an argument was made on behalf of those two persons who were armed with lathis, that they did not do any overt act, this Court made the above observaon. From the facts of that case, it can be said that there was no act on behalf of the two lathi holders although the deceased was killed with pistols alone. The criminal act in that case was done by all the persons in furtherance of the common intenon to finish the deceased. Hence, the observaon made by Vaidialingam, J., in the said case has to be understood on the said peculiar facts.
31. It is difficult to conclude that a person, merely because he was present at or near the scene, without doing anything more, without even carrying a weapon and without even marching along with the other assailants, could also be convicted with the aid of Secon 34 IPC for the offence commied by the other accused. In the present case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident happened. Either she would have reached on the road on hearing the sound of the commoon because her house is situated very close to the scene, or she would have merely followed her husband and brother out of curiosity since they were going armed with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too would have accompanied the other accused in furtherance of the common intenon of all the three.
32. Mr. Pramod Swarup, learned counsel for the State contented that if she remained at the scene without sharing the common intenon, she would have prevented the other two accused from doing the ghastly acts because both of them were her husband and brother respecvely. The inacon of Pavitri Devi in doing so need not necessarily lead to the conclusion that she shared a common intenon with the others. There is nothing to show that she had not earlier tried to dissuade her husband and brother from rushing to aack the deceased.
33. Thus we are unable to hold that Pavitri Devi shared common intenon with the other accused and hence her remaining passively on the road is too insufficient for reversing the order of acquial passed by the High Court in order to convict her with the aid of Secon 34 IPC.
34. Mr. K.B. Singh, learned Senior Counsel made an all out effort to save the convicted appellants from death penalty. The trial court and the High Court have given very cogent reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that death penalty is now restricted to the rarest of rare cases in which the lesser alternave is unquesonably foreclosed as held by the Constuon Bench in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] we could not persuade ourselves in holding that the acts commied by A-1 Suresh and A-2 Ramji should be pulled out of contours of the extremely limited sphere. Mr. K.B. Sinha cited a number of decisions including Panchhi v. State of U.P. [(1998) 7 SCC 177] in an endeavour to show that this Court had chosen to give the alternave sentence inspite of the ferocity of the acts comparable with the facts in this case. Even aer bestowing our anxious consideraon, we cannot persuade ourselves to hold that this is not a rarest of rare cases in which the lesser alternave is unquesonably foreclosed.
35. Accordingly, we dismiss both the appeals. SETHI, J. (for himself and Agrawal, J.)(Concurring)- We agree with the conclusions arrived at by Brother Thomas, J. in his lucid judgment.
37. 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 having such intention.
38. 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 of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for aracng Secon 34 of the Indian Penal Code (hereinaer referred to as “the Code”) is the element of participation in action resulting in the 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 intenon. The accused is, therefore, made responsible for the ulmate criminal act by several persons in furtherance of the common intenon of all. The secon does not envisage the separate act by all the accused persons for becoming responsible for the ulmate done criminal act. If such an interpretaon is accepted, the purpose of Secon 34 shall be rendered infructuous.
40. Parcipaon in the crime in furtherance of the common intenon cannot conceive of some independent criminal act by all accused persons, besides the ulmate 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 intenon must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intenon. Culpability under Secon 34 cannot be excluded by mere distance from the scene of occurrence. The presumpon of construcve intenon, 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 intenon. A Division Bench of the Patna High Court in Shatrughan Patar v. Emperor [AIR 1919 Patna 111] held that it is only when a court with some certainty hold that a parcular 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 Secon 34 may be applied.
41. In Barendra Kumar Ghosh v. King Emperor [AIR 1925 PC 1] the Judicial Commiee dealt with the scope of Secon 34 dealing with the acts done in furtherance of the common intenon, making all equally liable for the results of all the acts of others. It was observed:
The words of Secon.34 are not to be eviscerated by reading them in this exceedingly limited sense. By Secon 33 a criminal act in Secon 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 Secon 37, when any offence is commied by means of several acts whoever intenonally 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 Secon 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 secons are reasonably plain. Secon 34 deals with the doing of separate acts, similar of diverse, by several persons; if all are done in furtherance of a common intenon, 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. Secon 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 intenon to co-operate in the offence (which may not be the same as an intenon common to all), makes the actor liable to be punished for the commission of the offence. Secon 38 provides for different punishments for different offences as an alternave to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in moon by the one intenon or by the other. (Emphasis supplied) Referring to the presumpon arising out of Secon 114 of the Evidence Act, the Privy Council further held:
As to S.114, it is a provision which is only brought into operaon when circumstances amounng to abetment of a parcular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addion; Abhi Misser v. Lachmi Narain [ILR (1900) 27 Cal.566]. Abetment does not in itself involve the actual commission of the crime abeed. It is a crime apart. Secon 114 deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abeed and the abeor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being sll abetment with circumstances of aggravaon, the crime becomes the very crime abeed. The secon is evidenary not punitory. Because parcipaon de facto (as this case shows) may somemes be obscure in detail, it is established by the presumpon juris et de jure that actual presence plus prior abetment can mean nothing else but parcipaon. The
presumpon raised by Secon 114 brings the case within the ambit of Secon 34. (Emphasis supplied)
42. The classic case on the subject is the judgment of the Privy Council in Mahboob Shah v. Emperor [AIR 1945 PC 118]. Referring to Secon 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 Secon clear. Dealing with the scope of Secon, 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 criminal act in furtherance of such intention. To invoke the aid of Section 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 one 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 his act or conduct or other relevant circumstances of the case. (Emphasis supplied)
43. A Full Bench of the Patna High Court in King Emperor v. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was later approved by the Privy Council, dealt with the scope of Secon 34 in extenso and noted its effects from all possible interpretaons put by various High Courts in the country and the disnguished authors on the subject. The Court did not agree with the limited construcon given by Stephen, J. in Emperor v. Nirmal Kanta Roy [ILR (1914) 41 Cal.1072] and held that such an interpretaon, if accepted, would lead to disastrous results. Concurring with Mookerjee, J., and giving the secon a wider view, Richardson, J. observed:
It appears to me that Secon 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the me and that the language used is suscepble 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 queson and they all omit to take any precauons whatsoever to prevent danger.
Moreover, Secons 34, 35 and 37 must be read together, and the use in secon 35 of the phrase ‘each of such persons who joins in the act’ and in Secon 37 of the phrase, ‘doing any one of those acts, either singly or jointly with any other person’ indicates the true meaning of Secon 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 secons must, I think, be construed as enunciang a consistent principle of liability. Otherwise the result would be chaoc. 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 disncon between the two categories being recognised. This view of Secon 34 gives it an intelligible content in conformity with general noons. The opposing view involves a disncon dependent on identy or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere.
44. Approving the judgments of the Privy Council in Barendra Kumar Ghose and Mahboob Shah’s cases (supra) a three Judge Bench of this Court in Pandurang v. State of Hyderabad [AIR 1955 SC 216] held that to aract the applicability of Secon 34 of the Code the prosecuon is under an obligaon to establish that there existed a common intenon 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 intenon of all. This Court had in mind the ulmate act done in furtherance of the common intenon. In the absence of a pre-arranged plan and thus a common intenon even if several persons simultaneously aack a man and each one of them by having his individual intenon, namely, the intenon to kill and each can individually inflict a separate fatal blow and yet none would have the common intenon required by the secon. 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 intenon and not the individual acts of the persons constung the crime. Even at the cost of repeon it has to be emphasised that for proving the common intenon 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 incompable with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. Common intenon, arising at any me prior to the criminal act, as contemplated under Secon 34 of the Code, can thus be proved by circumstanal evidence.
45. In Shreekanah Ramayya Munipalli v. State of Bombay [AIR 1955 SC 287] this Court held:
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 parcipaon which, of course, can be of a passive character such as standing by a door, provided that is done with the intenon of assisng in furtherance of the common intenon of them all and there is a readiness to play his part in the pre- arranged plan when the me comes for him to act.(Emphasis supplied)
46. This Court again in Tukaram Ganapat Pandare v. State of Maharashtra [AIR 1974 SC 514] reiterated that Secon 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 acve presence or by distant direcon making out a certain measure of jointness in the commission of the act is the essence of Secon 34″.
47. 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 aainment of the criminal act and both the accused ran away together aer the murder, this Court in Lalai v. State of U.P. [AIR 1974 SC 2118] held that these facts had a sufficient bearing on the existence of a common intenon to murder.
48. In Ramaswami Ayyangar v. State of Tamil Nadu [AIR 1976 SC 2027] this Court declared that Secon 34 is to be read along with preceding Secon 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts commied by different confederates in the criminal acon may be different but all must in one way or the other parcipate and engage in the criminal enterprise. Even a person not doing any parcular act but only standing guard to prevent any prospecve aid to the vicms may be guilty of common intenon. However, it is essenal that in case of an offence involving physical violence it is essenal for the applicaon of Secon 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitang accomplishment of “criminal act” as mentioned in that section. In Ramaswami’s case (supra) it was contended that A-2 could not be held vicariously liable with the aid of Secon 34 for the act of other accused on the grounds: firstly, he did not physically parcipate in the fatal beang administered by co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplaon of Secon 34; and secondly, the prosecuon had not shown that the act of A-2 in beang P.W. was commied in furtherance of the common intenon of all the three pursuant to a pre-arranged plan. Repelling such an argument this Court held that such a contenon 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 parcipang in the criminal acon to bring about a parcular result. Convicon of A-2 under Secon 302/34 of the Code in that case was upheld.
49. In Rambilas Singh 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 intenon of all the accused or in prosecuon of the common object of the members of the unlawful assembly.(Emphasis supplied)
50. Again a three Judge Bench of this Court in State of U.P. v. Iikhar Khan [1973 (1) SCC 512] aer relying upon the host of judgments of Privy Council and this Court, held that for aracng Secon 34 it is not necessary that any overt act must be done by a parcular accused. The secon will be aracted if it is established that the criminal act has been done by one of the accused persons in furtherance of the common intenon. 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 bierly 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 aer the crime coupled with no explanaon 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 intenon.
51. In Krishnan v. State of Kerala [JT 1996 (7) SC 612] this Court even assuming that one of the appellants had not caused the injury to the deceased, upheld his convicon under Secon 302/34 of the Penal Code holding:
15. Queson is whether it is obligatory on the part of the prosecuon to establish commission of overt act to press into service Secon 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 intenon in queson. Queson 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 Secon 34 to operate inasmuch this secon gets aracted 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 intenon. Court’s mind regarding the sharing of common intenon gets sasfied 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 intenon: res ipsa loquitur.
52. 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 intenon and (ii) parcipaon of the accused in the commission of the offence. If a common intenon is proved but no overt act is aributed to the individual accused, Secon 34 will be aracted as essenally it involves vicarious liability. Referring to its earlier judgment this Court held: 11. Under Secon 34 a person must be physically present at the actual commission of the crime for the purpose of facilitang or promong 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 execuon of the common design is itself tantamount to actual parcipaon in the criminal act. The essence of Secon 34 is simultaneous consensus of the minds of persons parcipang in the criminal acon to bring about a parcular 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 intenon can be inferred from the aending circumstances of the case and the conduct of the pares. No direct evidence of common intenon is necessary. For the purpose of common intenon even the parcipaon in the commission of the offence need not be proved in all cases. The common intenon can develop even during the course of an occurrence (Rajesh Govind Jagesha v. State of Maharashtra, 1999 (8) SCC 428). To apply Secon 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 intenon is proved but no overt act is aributed to the individual accused, Secon 34 will be aracted as essenally it involves vicarious liability but if parcipaon of the accused in the crime is proved and a common intenon is absent, Secon 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intenon. It has to be inferred from the facts and circumstances of each case.
53. For appreciang the ambit and scope of Secon 34, the preceding Secons 32 and 33 have always to be kept in mind. Under Secon 32 acts include illegal omissions. Secon 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 disncon between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intenon 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 intenon which developed at the spur of the moment is different from the similar intenon actuated by a number of persons at the same me. The disncon between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of jusce.
54. Aer referring to Mahboob Shah’s case (supra) this Court in Mohan Singh v. State of Punjab [AIR 1963 174] observed, it is now well seled that the common intenon required by Secon 34 is different from the same intenon or similar intenon. The persons having similar intenon which is not the result of pre-concerted plan cannot be held guilty for the “criminal act” with the aid of Secon 34. Similarly the disncon 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 Secon 10 of the Indian Evidence Act deals with the acons done by conspirators in reference to the common object, Secon 34 of the Code deals with persons having common intenon to do a criminal act.
56. However, in this case on facts, the prosecuon has not succeeded in proving that A3 Pavitri Devi shared the common intenon 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 comming the crime inside the house. The exaggerated version of PW3 regarding the parcipaon of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as P.Ws 1 and 2 have not supported the aforesaid version. The High Court was, therefore, jusfied in holding that Pavitri Devi, A3 did not share the common intenon with the other accused persons. By her mere presence near the place of occurrence at or about the me of crime in the absence of other evidence, direct or circumstanal, cannot hold her guilty with the aid of Secon 34. But in case the prosecuon had succeeded in proving on facts of her sharing of common intenon with A1 and A2, she could not be acquied 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.
