Sunday, 25 October 2015

Landmark Judgment on S 34 of IPC

To invoke Section 34 IPC, it must be established that the
criminal act was done by more than one person in furtherance of
common intention of all. It must, therefore, be proved that:- (i) there was
common intention on the part of several persons to commit a particular
crime and (ii) the crime was actually committed by them in furtherance
of that common intention. The essence of liability under Section 34 IPC
is simultaneous conscious mind of persons participating in the criminal
action to bring about a particular result. Minds regarding the sharing of
common intention gets satisfied when an overt act is established qua
each of the accused. Common intention implies pre-arranged plan and
acting in concert pursuant to the pre-arranged plan. Common intention
is an intention to commit the crime actually committed and each accused
person can be convicted of that crime, only if he has participated in that
common intention.
11. The classic case on the subject is the judgment of the Privy
Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was
held as under:-
“…Section 34 lays down a principle of joint liability in the doing of a
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 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 done by him alone. This being
the principle, it is clear to their Lordships that common intention
within the meaning of the section implies a pre-arranged plan, and
to convict the accused of an offence applying the section it should be
proved that the criminal act was done in concert pursuant to the
pre-arranged plan. As has been often observed, it is difficult if not
impossible to procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from his act or
conduct or other relevant circumstances of the case.”(Underlining
added)
Reiterating the above principles laid down by the Privy Council in
Mahbub Shah’s case, in Shankerlal Kacharabhai and Others vs. State ofPage 7
Gujarat, AIR 1965 SC 1260, this Court held that the criminal act
mentioned in Section 34 IPC is the result of the concerted action of
more than one person and if the said result was reached in furtherance
of the common intention, each person is liable for the result as if he
had done it himself.
12. In Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC
305, this Court held as under:-
“12. … As a general principle in a case of criminal liability it is the
primary responsibility of the person who actually commits the
offence and only that person who has committed the crime can be
held guilty. By introducing Section 34 in the Penal Code the
legislature laid down the principle of joint liability in doing a
criminal act. The essence of that liability is to be found in the
existence of a common intention connecting the accused leading to
the doing of a criminal act in furtherance of such intention. Thus, if
the act is the result of a common intention then every person who
did the criminal act with that common intention would be
responsible for the offence committed irrespective of the share which
he had in its perpetration. Section 34 IPC embodies the principle of
joint liability in doing the criminal act based on a common intention.
Common intention essentially being a state of mind it is very difficult
to procure direct evidence to prove such intention. Therefore, in
most cases it has to be inferred from the act like, the conduct of the
accused or other relevant circumstances of the case. The inference
can be gathered from the manner in which the accused arrived at
the scene and mounted the attack, the determination and concert
with which the attack was made, and from the nature of injury
caused by one or some of them. The contributory acts of the persons
who are not responsible for the injury can further be inferred from
the subsequent conduct after the attack. In this regard even an
illegal omission on the part of such accused can indicate the sharing
of common intention. In other words, the totality of circumstances
must be taken into consideration in arriving at the conclusion
whether the accused had the common intention to commit an
offence of which they could be convicted. (See Noor Mohammad
Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696)”
(Underlining added)
13. Common intention is seldom capable of direct proof, it is
almost invariably to be inferred from proved circumstances relating to
the entire conduct of all the persons and not only from the individual
act actually performed. The inference to be drawn from the manner of
the origin of the occurrence, the manner in which the accused arrived
at the scene and the concert with which attack was made and from the
injuries caused by one or some of them. The criminal act actually
committed would certainly be one of the important factor to be taken
into consideration but should not be taken to be the sole factor.
14. Under Section 34 IPC, a pre-concert in the sense of a
distinct previous plan is not necessary to be proved. The common
intention to bring about a particular result may well develop on the spot
as between a number of persons, with reference to the facts of the case
and circumstances of the situation. The question whether there was
any common intention or not depends upon the inference to be drawn
from the proving facts and circumstances of each case. The totality of
the circumstances must be taken into consideration in arriving at the
conclusion whether the accused had a common intention to commit an
offence with which they could be convicted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 502 OF 2007
BALU @ BALA SUBRAMANIAM & ANR. ...Appellants
Versus
STATE (U.T. OF PONDICHERRY) ...Respondent
J U D G M E N T
 R. BANUMATHI, J.
Dated;October 16, 2015

This criminal appeal is filed against the judgment dated
15.07.2005 passed by the High Court of Judicature at Madras in
Criminal Appeal No.113 of 1999, whereby the High Court, while
maintaining the sentence, modified the conviction recorded by the trial
court qua the accused namely Giri-accused No.1, Seenu @
Srinivasan-accused No.2, Balu @ Bala Subramaniam (Appellant
No.1-Accused No.4) and Raja @ Kotti Raja (Appellant No.2-Accused No.5)
as conviction under Section 302 read with Section 34 IPC, Section 326
read with Section 34 IPC and Section 324 read with Section 34 IPC. The
High Court acquitted Partheeban-accused No.3 of all the charges.
2. Briefly stated case of the prosecution is that one Natarajan
had a quarrel with Seenu @ Srinivasan-accused No.2 in respect of a chitPage 2
transaction and Kannan-PW2 supported Natarajan and fight ensued
between Seenu-accused No.2 and Kannan-PW2 about a week prior to the
date of incident i.e. 18.05.1997. In the forenoon, on the day of the
incident i.e. on 18.05.1997, Kannan-PW2, Ramesh (deceased) and one
Kamalakannan went to the accused in order to settle the dispute
amicably. However, during settlement talks, fight ensued between PW-2
and Seenu and Balu attempted to beat PW-2 and Ramesh intervened and
beat Balu. Thereafter both parties left the place stating that they could
resume settlement talks in the evening. On the evening at about 6.30
P.M., Kannan-PW2, Saravanan-PW3, Suresh-PW5 and Arumugam-PW6
accompanied by Nagarajan went to Sakthi Nagar at Uruliyanpet and
were having the settlement talks with the accused. On the mid way, the
accused persons were informed that their friend one Anand is being
badly cut by the complainant party and the accused questioned them as
to how they could attack their man even when settlement talks were
going on. So saying, the accused ran towards the place and on seeing
PW-1 and Ramesh coming in the opposite direction, Giri-accused No.1
allegedly shouted that Ramesh supports Kannan and that he must be
killed and accused No.1 and 2 cut Ramesh with knives on his head and
chased him. Partheeban and appellants beat Ramesh on the face with
sticks, Giri-accused No.1 again cut Ramesh with knife and Ramesh fell
down. When PW-2 intervened to save Ramesh, PW-2 was attacked and
he sustained injury on his left hand and PW-2 ran away from the place.
Accused No.1 and 3 chased PW-3 and accused No.2 assaulted and
inflicted cut injuries on the head of PW-3. They also inflicted cut injuryPage 3
on Muruganathan-PW4, who was taking bath near a water tap. The
witnesses ran away from the place and came back only after some time
and they were informed that injured Ramesh was removed from the
scene of occurrence by a police constable.
3. Based on the complaint lodged by PW-1, a case was registered
against the accused in Crime No.152/1997 under Sections 147, 148, 307
read with Section 149 IPC. Ramesh and other injured witnesses were
examined by PW-11-Dr. Baskaran in General Hospital, Pondicherry. On
21.05.1997, Ramesh succumbed to injuries and the case was altered to
Section 302 IPC. After due investigation, chargesheet was filed against all
the five accused.
4. To substantiate the charges, onbehalf of the prosecution,
fifteen witnesses were examined. The trial court held that the
prosecution has established guilt of the accused beyond reasonable
doubt and convicted all the five accused under Section 148 IPC and
Section 302 read with Section 149 IPC and various other offences and
sentenced them to undergo imprisonment for life and also imposed
sentences for other offences. Aggrieved by the verdict of conviction,
accused preferred appeal before the High Court. Vide impugned
judgment dated 15.07.2005, High Court modified the conviction as
aforesaid in para (1) and partly allowed the criminal appeal. Aggrieved,
the appellants have preferred this appeal.
5. Learned counsel for the appellants contended that the
testimony of PW-2 who is an injured witness is not believable as firstly all
the injured witnesses were examined soon after the incident inPage 4
Government Hospital and they deposed that they were assaulted by
unknown persons. However, PW-2, who was examined after three days,
has stated that he was assaulted by accused No.1-Giri and not attributed
any overt act to the appellants-accused No.4 and 5. It was further
submitted that even as per the prosecution case, the occurrence was due
to a sudden fight and that when peace talks were going on between the
complainant and the accused party and on being informed that one
Anand belonging to accused party was cut by the complainant party,
fight ensued between two groups and as the act was not committed in
furtherance of the common intention, the High Court erred in convicting
the appellants under Section 302 read with Section 34 IPC.
6. Taking us through the evidence onbehalf of the respondent,
learned Senior Counsel Mr. V. Kanagaraj submitted that on exhortation
by Giri-accused No.1, the appellants and other accused attacked
deceased-Ramesh and injuries were caused in furtherance of common
intention of all the accused would be liable under Section 302 read with
Section 34 IPC for the act of committing murder of Ramesh and the
appellants have been rightly convicted by the courts below.
7. We have carefully considered the rival contention and perused
the impugned judgment and material on record.
8. Prosecution has examined fifteen witnesses out of which PWs
2 to 4 are injured witnesses. PW-3 Saravanan, PW-4 Muruganathan
(nephew of accused No.3) did not support the prosecution case and
prosecution thus relied upon the evidence of PW1-Murgan and
PW5-Suresh and injured witness PW2-Kannan. In his evidence, PW-1Page 5
stated that accused No.1 and 2 attacked Ramesh on his head with knives
and accused No. 3 to 5 attacked Ramesh on his face by stick and
Ramesh fell down on the road. Suresh-PW5 had also stated that the
appellants attacked Ramesh by stick. PW2-Kannan, injured witness
stated that accused No.1-Giri and accused No.2- Seenu attacked Ramesh
by knives on his head. So far as the overt act of the appellants,
PW2-Kannan stated that Accused No. 4 and 5 took the wooden stick
from a bullock cart standing nearby. PW-2 did not say anything about
the overt act of the appellants. Though the appellants denied their
presence at the place of incident and pleaded that a false case has been
foisted against them, consistent version of PWs 1 and 5 establish
presence of the appellants and that they attacked Ramesh with sticks.
Presence of the appellants and that they were armed with sticks is also
substantiated by the evidence of injured witness Kannan-PW2. Findings
recorded by the courts below that the appellants attacked Ramesh with
sticks is unassailable.
9. In the facts and circumstances of the case, whether the High
Court was right in finding that the appellants acted in furtherance of
common intention in committing murder of Ramesh and whether the
High Court was right in attributing constructive liability to the appellants
while convicting them under Section 302 read with Section 34 IPC is the
point falling for consideration.
10. To invoke Section 34 IPC, it must be established that the
criminal act was done by more than one person in furtherance of
common intention of all. It must, therefore, be proved that:- (i) there wasPage 6
common intention on the part of several persons to commit a particular
crime and (ii) the crime was actually committed by them in furtherance
of that common intention. The essence of liability under Section 34 IPC
is simultaneous conscious mind of persons participating in the criminal
action to bring about a particular result. Minds regarding the sharing of
common intention gets satisfied when an overt act is established qua
each of the accused. Common intention implies pre-arranged plan and
acting in concert pursuant to the pre-arranged plan. Common intention
is an intention to commit the crime actually committed and each accused
person can be convicted of that crime, only if he has participated in that
common intention.
11. The classic case on the subject is the judgment of the Privy
Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was
held as under:-
“…Section 34 lays down a principle of joint liability in the doing of a
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 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 done by him alone. This being
the principle, it is clear to their Lordships that common intention
within the meaning of the section implies a pre-arranged plan, and
to convict the accused of an offence applying the section it should be
proved that the criminal act was done in concert pursuant to the
pre-arranged plan. As has been often observed, it is difficult if not
impossible to procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from his act or
conduct or other relevant circumstances of the case.”(Underlining
added)
Reiterating the above principles laid down by the Privy Council in
Mahbub Shah’s case, in Shankerlal Kacharabhai and Others vs. State ofPage 7
Gujarat, AIR 1965 SC 1260, this Court held that the criminal act
mentioned in Section 34 IPC is the result of the concerted action of
more than one person and if the said result was reached in furtherance
of the common intention, each person is liable for the result as if he
had done it himself.
12. In Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC
305, this Court held as under:-
“12. … As a general principle in a case of criminal liability it is the
primary responsibility of the person who actually commits the
offence and only that person who has committed the crime can be
held guilty. By introducing Section 34 in the Penal Code the
legislature laid down the principle of joint liability in doing a
criminal act. The essence of that liability is to be found in the
existence of a common intention connecting the accused leading to
the doing of a criminal act in furtherance of such intention. Thus, if
the act is the result of a common intention then every person who
did the criminal act with that common intention would be
responsible for the offence committed irrespective of the share which
he had in its perpetration. Section 34 IPC embodies the principle of
joint liability in doing the criminal act based on a common intention.
Common intention essentially being a state of mind it is very difficult
to procure direct evidence to prove such intention. Therefore, in
most cases it has to be inferred from the act like, the conduct of the
accused or other relevant circumstances of the case. The inference
can be gathered from the manner in which the accused arrived at
the scene and mounted the attack, the determination and concert
with which the attack was made, and from the nature of injury
caused by one or some of them. The contributory acts of the persons
who are not responsible for the injury can further be inferred from
the subsequent conduct after the attack. In this regard even an
illegal omission on the part of such accused can indicate the sharing
of common intention. In other words, the totality of circumstances
must be taken into consideration in arriving at the conclusion
whether the accused had the common intention to commit an
offence of which they could be convicted. (See Noor Mohammad
Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696)”
(Underlining added)
13. Common intention is seldom capable of direct proof, it is
almost invariably to be inferred from proved circumstances relating to
the entire conduct of all the persons and not only from the individual
act actually performed. The inference to be drawn from the manner ofPage 8
the origin of the occurrence, the manner in which the accused arrived
at the scene and the concert with which attack was made and from the
injuries caused by one or some of them. The criminal act actually
committed would certainly be one of the important factor to be taken
into consideration but should not be taken to be the sole factor.
14. Under Section 34 IPC, a pre-concert in the sense of a
distinct previous plan is not necessary to be proved. The common
intention to bring about a particular result may well develop on the spot
as between a number of persons, with reference to the facts of the case
and circumstances of the situation. The question whether there was
any common intention or not depends upon the inference to be drawn
from the proving facts and circumstances of each case. The totality of
the circumstances must be taken into consideration in arriving at the
conclusion whether the accused had a common intention to commit an
offence with which they could be convicted.
15. In the light of the above principles, considering the present
case, in our view, the facts and circumstances do not indicate that
there was common intention to commit murder of Ramesh. On
18.05.1997 in the forenoon, there were settlement talks which did not
materialise and therefore they left the place stating that they could
resume settlement talks in the evening. On the evening at about 6.30
P.M., PW2-Kannan, PW3-Saravanan, PW5-Suresh, Arumugam and
Nagarajan went to Sakthi Nagar and resumed settlement talks. At that
time, one person belonging to the accused party came and informed
that at the corner of lane, Anand-friend of the accused party was cut byPage 9
the person who came for the settlement talks. On hearing the same,
Giri-Accused No.1 and Seenu-Accused No.2 questioned the
complainant party as to how they could attack their man even when
settlement talks were going on and so saying accused No.1 and 2 took
their knives which they were hiding behind their back and accused No.
3 to 5 took sticks from a cart standing nearby attacked PWs 2, 3 and 5.
At that time Ramesh and his uncle PW-1 Murgan were coming in the
opposite direction and on seeing them accused No.1-Giri pointing out to
Ramesh, exhorted others saying that Ramesh belonged to Kannan party
and that he be cut and by so saying accused No.1-Giri cut Ramesh on
his head with knife and Seenu-Accused No.2 also attacked Ramesh
with knife. The appellants and Partheeban-Accused No.3 have also
attacked Ramesh with sticks on his face.
16. Facts and circumstances of the case show that the attack
was not a premeditated one nor was there a prior concert. Initially
settlement talks were on and fight started only when the accused party
was informed by their person that Anand was cut by complainant party
and thus the incident arose suddenly. No doubt, common intention
could develop even at the spur of the moment; but in the present case,
the way the occurrence took place as depicted by the prosecution, there
could not have been common intention between the accused. The
totality of the circumstances must be taken into consideration in order
to arrive at a conclusion that the appellants had a common intention to
commit the offence under which they were convicted. The appellants
were not armed and admittedly they are said to have removed sticksPage 10
from the bullock cart standing nearby and on the exhortation by
accused No.1-Giri, the appellants have attacked Ramesh. There may be
similar intention in the minds of the assailants to attack; but it cannot
be said that the appellants have acted in furtherance of common
intention to attract constructive liability under Section 34 IPC. The facts
and circumstances, in our view, do not give rise to an inference of
pre-concert.
17. For conviction of an offence read with Section 34 IPC, it is
necessary that there should be a finding as to the common intention of
the participants. Though the High Court has modified the conviction
from Section 302 read with Section 149 IPC as Section 302 read with
Section 34 IPC, the High Court has not recorded any finding as to how
the appellants shared the common intention to establish their
constructive liability to sustain the conviction under Section 302 read
with Section 34 IPC. The appellants are said to have attacked Ramesh
with sticks on his face. Ramesh sustained nasal bone fracture probably
due to the attack on the face. But this cannot be said to be an act in
furtherance of common intention to commit the murder of Ramesh
along with accused No.1 and 2. They are random individual acts done
without meeting of minds and in our view, the appellants can be held
liable only for their individual acts. Considering the totality of the
circumstances, conviction of the appellants under Section 302 read
with Section 34 IPC cannot be sustained and the same is modified as
the conviction under Section 325 IPC and the sentence is modified to
the period of imprisonment already undergone. Page 11
18. For attacking the witnesses PW2-Kannan,
PW4-Muruganathan and PW5-Suresh, the appellants were convicted by
the trial court under Section 326 read with Section 149 IPC and under
Section 324 read with Section 149 IPC which was modified by the High
Court. No specific overt act is attributed to the appellants in attacking
the prosecution witnesses 2, 4 and 5. As the appellants have not
shared or acted in furtherance of common intention in the attack of the
witnesses and therefore the conviction of the appellants as modified by
the High Court under Section 326 read with Section 34 IPC and under
Section 324 read with Section 34 IPC cannot be sustained and the
same is liable to be set aside.
19. Conviction of the appellants Balu (A-4) and Raja(A-5) under
Section 302 read with Section 34 IPC is modified as conviction under
Section 325 IPC and they are sentenced to undergo imprisonment to
the period already undergone. Their conviction under Section 326 read
with Section 34 IPC and under Section 324 read with Section 34 IPC is
set aside and the appellants are acquitted of those charges. The appeal
is partly allowed to the extent indicated above. The appellants are on
bail. Their bail bonds shall stand discharged.
 ..……..…………………………J.
 (JAGDISH SINGH KHEHAR)
 ..……..…………………………J.
 (R. BANUMATHI)
New Delhi;
October 16, 2015
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