Sunday, 2 October 2016

Whether court can convict accused U/S 34 of IPC even if charge is framed U/S 149 of IPC?

It is, therefore, open to the court to take recourse to
Section 34 of IPC even if the said section was not
specifically mentioned in the charge and instead Section
149 IPC has been included. Of course a finding that the
assailant concerned had a common intention with the other
Appellantis necessary for resorting to such a course. This
view was following by this court in later decisions also,
(Amar Singh v. State of Haryana. AIR 1973 SC 2221. Bhoor
Singh and Anr. v. State or Punjab, AIR 1974 SC 1256). The
first submission of the learned counsel for the appellant has
no merit.”
What distinguishes Section 34 from Section 149 is that Section
34 of the IPC refers to common intention, whereas Section 149 cares
for common object. Common intention of the Appellant persons can 
be formed even during the course or just before the assault and it is not
at all necessary that such intention should pervade the minds of the
accused right from the beginning. 
 IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A.189/2012

Date of decision: 17.04.2015
MUKESH 
v
STATE THR. GOVT. OF NCT OF DELHI .
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Citation:2015 SCCONLINE DEL8791:(2015)221DLT 228

1. By this common judgment, the abovementioned appeals are
being disposed of.
2. The appellants, herein, have been convicted by judgment dated
16.12.2011 by the Additional Sessions Judge-North East,
Karkardooma Courts, Delhi, in Sessions Case No.106/2008 arising out
of FIR No.253/2008 Police Station Nand Nagri for the offence under
Section 302/34 of the Indian Penal Code (IPC for short) for killing one
Parveen. By the Order of Sentence dated 21.12.2011, the appellants
have been ordered to suffer imprisonment for life for the offence
under Section 302/34 IPC, fine of Rs.2,000/- each and in default of
payment of fine, to suffer further Rigorous Imprisonment for a period
of 3 months.
3. Out of the five accused persons, one R (name withheld) was
found to be as a juvenile and his case has been dealt with by the
Juvenile Court. 
4. The prosecution relies upon eye witness and circumstantial
evidence. The prime witnesses stated to have seen the occurrence are
Vipin (PW.2), the younger brother of the deceased; and Rajesh Kumar
(PW.3), a neighbour.
5. Information was received on 21.05.2008 at Police Station Nand
Nagri, vide DD No.31-A from G.T.B. Hospital that a person stabbed
after a quarrel, has been admitted in the said hospital. Thereafter, Sub
Inspector C.P. Singh, (PW.14) reached the place of occurrence namely
Nand Nagri, near Shiv Mandir, where it was learnt that the injured
Parveen (deceased) has been taken to G.T.B. Hospital by his brother
Vipin (PW.2). The aforesaid Sub-Inspector of Police came to the
G.T.B. Hospital and learnt that the injured was declared as “brought
dead”. Vipin (PW.2) gave his statement (Ex.PW2/A) in the hospital
and the FIR in question was recorded.
6. PW.2 deposed that on 21.05.2008 at about 09:30 p.m., he along
with his brother Parveen (deceased) was busy making preparations for
Mata Ki Chowki at his residence. Parveen had crossed the road to
proceed towards Shiv Mandir for drinking water. The appellants and
one R came there and started assaulting Parveen. Appellant Rakesh 
hurled knife blows. The appellants were muttering that the deceased
Parveen must be taught a lesson for having spoken to their sister Tanu
(Tanu has appeared as a defence witness DW-8). PW.2 raised an
alarm and tried to save his brother. However, the appellants managed
to run away. Parveen was seriously injured. Rajesh Kumar, PW.3, (a
neighbour of PW.2) came and he along with PW.2 took the injured to
the G.T.B. Hospital where he was declared “brought dead”. PW.2
affirmed what was recorded in the FIR (Ex.PW7/A) at the first
instance.
7. PW.2, a day after i.e. on 24.05.2008 indicated to the police the
place of occurrence. On being asked by the Investigating Agency on
24.05.2008, he gave his clothes which were blood stained as he had
taken the deceased to the hospital. PW.2 had asserted that despite
raising alarm, nobody from the neighbourhood came forward for help
except PW.3.
8. Rajesh Kumar (PW.3) corroborated the version of PW.2. He
affirmed that the appellants had assaulted the deceased. He
categorically asserted that the appellant Rakesh had given knife blows
to Parveen. He had arranged a rickshaw and thereafter along with 
PW.2, had taken the injured to the hospital. The appellants ran away
from there. He accepted that he had not gone to Shiv Mandir with the
deceased for drinking water; rather he was taking a walk after dinner.
The distance between his house and the place where the deceased was
attacked, was about 50 meters. He had seen the appellants running
from a distance of about 10 ft. PW.3 had claimed that he was not on
visiting terms with the family of the deceased.
9. Having reproduced in brief the testimonies of the two eyewitnesses,
we proceed to examine medical evidence.
10. Dr. Arvind Kumar, (PW.6) who conducted the post mortem on
the deceased 22.05.2008, noticed the following injuries:
i. Incised stab wound of size 2.7 cm. x 0.2 cm. Obliquely placed
over back of right side of chest, 10.2 cm. away from mid line, 17
cm. below shoulder tip, cutting underline ribs and entred the
chest cavity. Then it pierce the lower lob of right lung through
and through. Chest cavity was full of blood. Total depth of
wound was 13 cm. The lower lateral angle of wound was sharp.
Direction of wound was downward, forward and medially.
ii. Incised stab wound of size 2.8 cm. x 0.2 cm. obliquely placed
over lateral aspect of back of right chest. Wound was 14 cm.
from mid line and 7.5 cm. below injury no.(1). Lower medial
angle of wound was sharp. Wound entered the right chest
cavity after cutting underlying ribs. Then it entered the right CRL.A.189/2012, 308/2012, 726/2012 & 449/2012 Page 6 of 30
lung lower lob 2 cm. below injury no.(1). Chest cavity was full
of blood. Total depth of wound was 11 cm, and direction of
wound was forward, medially and slightly downward.
iii. Incised stab wound of size 3.2 cm. x 0.2 cm. was present over
lateral aspect of back obliquely placed, lower later angle of
wound was blunt and upper medial angle was sharp. Wound
was 13 cm. away from mid line and 3.8 cm. below injury no.(2).
Direction of wound was downward, forward and medial and
total depth was 12.9 cm.
iv. Incised stab wound of size 2.9 cm. x 0.2 cm. obliquely placed
over lateral aspect of back 1 cm. below injury no.(3). Upper
medial angle of wound was sharp. Direction of wound was
downward, forward and medially. Cutting the right kidney.
Extra vacation of blood was present on the track.
v. Incised stab wound of size 3 cm. x 0.2 cm. obliquely placed over
base of neck at lateral 1/3rd of right clavicle, 10 cm. away from
mid line. Lower lateral angle of wound was sharp. Track of
wound was downward, backward and laterally into the
subcutaneous tissue. Total depth of wound was 7 cm.
vi. Incised stab wound of size 2.7 cm. x 0.2 cm. obliquely placed
over left side of chest, upper lateral angle of wound was blunt
and lower medial angle was sharp. Wound was 10 cm. away
from mid line and 3 cm. below lateral 1/3
rd of left clavicle.
Track of the wound was backward, downward and medially.
Entered the left chest cavity after cutting the first intercoastal
muscles at mid clavicular line. Passes through and through
proper upper lobe of lung and then passes through and through
the arch of aorta. Left chest cavity was full of blood and there
was also nick on trachea.
vii. Incised stab wound of size 2.5 cm. x 0.2 cm. was present over
left inguinal fold, lower angle of wound was sharp. Wound was
7 cm. below and medial to left anterior superior iliac spine and CRL.A.189/2012, 308/2012, 726/2012 & 449/2012 Page 7 of 30
2.5 lateral to public symphysis. Track of wound was upward,
backward and laterally into the soft tissue. Total depth of
wound was 7.9 cm.
viii. Incised wound of size 1 cm. x 0.2 cm. was present over left side
of chest, 14 cm. away from mid line and 20 cm. below anterior
aspect of left shoulder.
ix. Incised wound of size 3.5 cm. x 0.2 cm. was present over
dorsum of left hand.
x. Incised wound of size 1.2 cm. x 0.2 cm was present over dorsum
of left hand, 1 cm. below to injury no. (9).
xi. Reddish abrasion of size 2 cm. x 1 cm. was present on left side
back of chest over lower tip of scapula, 13 cm. away from mid
line and 9 cm. below from shoulder.
xii. Linear reddish abrasion of size 4 cm. x 0.3 cm. was present
over left side of face, 4 cm. away from outer end of left eye and
5 cm. away from left ear.
11. Injuries no. (1), (2), (4) and (6), caused by a sharp cutting
weapon, PW.6 opined, were sufficient to cause death in ordinary
course of nature individually and collectively. So far as the injuries
no. (11) and (12) are concerned, PW.6 has stated that these were the
result of impact of a blunt force. In answer to a specific question,
PW.6 confirmed that injuries no.(1) to (10) were caused by single
edged sharp weapon which could be one and the same weapon or
different weapons of same measurements. Injury no. (11) but not (12),
in the opinion of PW.6, could have been caused by a fall. The post-
mortem report was proved by PW.6 and marked Ex.PW.6/A.
12. The MLC of the deceased was proved by Dr. P. Yadav,
(PW.18) and marked Ex.PW18/A. He affirmed that the deceased was
declared “brought dead” when he was brought to casualty ward of
G.T.B. Hospital at 10:40 p.m. The MLC was written by one Dr.
Sushil and the aforesaid witness, namely PW.18, identified his
handwriting and signature as Dr.Sushil had worked under him.
13. Thus, on scrutiny of medical evidence, it is apparent that the
same is in consonance with the ocular testimonies of PWs.2 and 3. As
noticed 10 injuries by a sharp weapon were suffered by the deceased.
The injuries were inflicted over different parts. The manner of assault
establishes that the deceased was confronted and assaulted by a sharp
weapon a number of times. Assault was a fierce one and would have
taken some time. Nature of injuries also reflect, and indicate
involvement of several persons.
14. Thus, we are satisfied that the deceased died as a result of
homicidal attack at the hands of the appellants. 
15. Motive and cause for the said assault is apparent. PW.2 has
stated in clear terms that the accused persons were shouting that
Parveen would be taught a lesson for he had spoken to their sister
Tanu. The appellants Rakesh, Mukesh and Bal Kishan are the first
cousins of Tanu. Roop Chand is a friend and neighbour of the cousins
of Tanu.
16. For having a complete picture of what happened before the
occurrence, we would take on record and exposit what, Tanu (DW.8)
had deposed. She accepted and admitted that she knew the deceased as
well as PW.2. The deceased used to tease her when she would come
out of her house. On being cross examined by the State, she admitted
that appellants Rakesh, Mukesh and Bal Kishan are her cousins and
they did not like her talking to the deceased. In context of motive,
evidence of SI C.P. Singh, (PW.14) assumes importance. PW.14 has
deposed that Tanu during the course of the investigation, had accepted
that she knew the deceased, which fact was not liked by her brothers.
Tanu had affirmed that on 19.05.2008, the deceased had borrowed a
pen from her and on 21.05.2008 at about 06:30 p.m. while she was
returning from her tuition, she met the deceased near C-1 Park. At CRL.A.189/2012, 308/2012, 726/2012 & 449/2012 Page 10 of 30
that time, the appellant Rakesh had seen them talking to each other
and got infuriated. Rakesh had slapped Tanu and made Tanu return to
her home. Tanu has also informed the police that on 21.05.2008,
Rakesh, Bal Chand and Mukesh had come to her house. Rakesh,
while brandishing a knife, had warned that if Tanu would henceforth
speak to Parveen, he would be killed. Appellant Bal Kishan also tried
to physically harm Tanu. The appellants left the house, enraged and
inflamed.
17. The appellants in their statement recorded under Section 313 of
the Code of Criminal Procedure, 1973, have stated that PW.2 used to
tease their cousin. This had led to a quarrel. Both the PW.2
(complainant) and the deceased felt humiliated and insulted. Because
of this, PW.2 has falsely implicated them in this case.
18. From a holistic reading of what has been stated by the
witnesses, it is not difficult to probablise as to the cause, and motive of
the occurrence. Appellant Rakesh had spotted Tanu talking to the
deceased. This infuriated him. He brought Tanu to her residence.
Thereafter, appellants Rakesh, Mukesh and Bal Kishan came and
spoke to Tanu on 21.05.2008. Appellant Rakesh was having a knife. 
All the three brothers threatened and warned her from meeting the
deceased. Thereafter, violent attack took place.
19. On behalf of the appellants, several grounds have been raised to
demolish the prosecution version. To list them:
i. PW.2 being an interested witness cannot be wholly relied upon;
ii. The presence of PW.3 on the spot at the relevant time is
debatable;
iii. Non joining of any independent person of the locality made the
prosecution case redolent with doubt and suspicion;
iv. Necessary persons like the rickshaw puller whose services were
used by PW.2 and PW.3 for reaching the injured to the hospital
has not been examined;
v. Blood stained clothes of PW.2 and PW.3 have been collected by
the police after several day of the occurrence, thereby
completely delinking the aforesaid fact with the nature of crime;
vi. Non-recovery of weapon of assault i.e. knife; and
vii. Last but not the least inconsistencies in the deposition of the
witnesses interse.
20. We have taken note of the consistent eye-witnesses account of
PW.2 and PW.3 who have deposed how the deceased Parveen was
repeatedly assaulted by a knife. A close relative of the deceased does
not, merely because of his relationship, lose the status of a truthful
witness. A close relative, who has seen the occurrence, would be
reliable and his testimony ought not to be undermined. In fact, for all
practical purposes, there is a guarantee of truth in such statements as
they would not like to give any safe passage to the assailants. His
testimony must be thoroughly and meticulously perused and
scrutinised, and if found to be credible and truthful, then only can it be
accepted for conviction. In the present case, PW.3 fully corroborates
and affirms the narration of PW.2 regarding the occurrence and
perpetrators. Medical evidence also supports the ocular testimonies.
21. The presence of PW.3 at the place of occurrence cannot be
doubted as he was the only person who assisted PW.2 in taking the
injured to the hospital. We have found no reason to disbelieve his
testimony as he is neither inimically deposed towards the appellants 
nor favourably inclined towards the prosecution.
22. PW.2 and PW.3 while deposing before the Trial Court have
stated categorically that despite the call made by PW.2, no one turned
up to help either PW.2 or the deceased. We cannot turn away our
gaze from the current societal norm, and for that matter, PW.3 is only
a public witness.
23. Even otherwise it is a settled position of law that what is
important, is the quality of evidence and not the quantity of evidence.
The rickshaw puller could have only thrown light on the fact that the
deceased was taken to the hospital by PWs.2 and 3 and nothing
beyond. The said fact has been deposed by the said witnesses.
Evidence of the rickshaw puller, who had to be first located, was not
that material. This would not support the prosecution case.
24. No doubt, the Investigating Officer should have immediately
asked for the blood stained clothes, but this lapse does not compel us
to reject the prosecution case. These were irregularities in the
investigating process which have to be analysed along with the
incriminating circumstances. This failure, does not cast a doubt on the 
truthfulness and credibility of the prosecution version, even in a
remote way. Similarly, minor contradictions in the testimonies of
PW.2 and PW.3 are inconsequential; rather they are natural. In
Krishna Pillai Sree Kumar and Anr. vs. State of Kerala, AIR 1981 SC
1237, the Supreme Court has observed that the prosecution evidence
could suffer from inconsistencies here and discrepancies there, but that
is a shortcoming from which no criminal case is free. What is the
actually required to be seen is whether such inconsistencies etc. go to
the root of the matter or whether they pertain to insignificant aspects
thereof. Minor contradictions with respect to the width of road etc. do
not have any bearing on the facts of the case.
25. The knife which was used by appellant Rakesh, has not been
recovered. It has been urged by the defence that on this score, the
prosecution case deserves to be thrown overboard. The position of law
in this regard is very clear. In Lakshmi vs. State of U.P. (2002) 7 SCC
198, it has been held that it is not an inflexible rule that the weapon of
assault must be recovered. The Supreme Court did not accept as a
general and broad proposition of law that in case of non recovery of
the weapon of assault, the whole prosecution case gets torpedoed. In 
State of Rajasthan vs. Arjun Singh, (2011) 9 SCC 115, the Supreme
Court has again held that “..... mere non-recovery of pistol or cartridge
does not detract the case of the prosecution where clinching and direct
evidence is acceptable. Likewise, absence of evidence regarding
recovery of used pellets, bloodstained clothes, etc. cannot be taken or
construed as no such occurrence had taken place.” The Supreme
Court in Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another,
(2013) 12 SCC 796, observed that where unimpeachable ocular
testimony, supported by medical evidence is available, non recovery
of the weapon of assault is of no advantage to the accused.
26. We take notice of the fact that witnesses who have been
examined on behalf of the defence to prove the alibi of the accused
persons have made inconsistent statements which have made them
highly unreliable. Appellant Roop Chand has put forth 4 witnesses
viz., Sh. Om Prakash, Sh. Atam Prakash Gupta, Sh. Shiv Bahadur, Sh.
Ram Dayal, who have been examined as defence witnesses 1 to 4
respectively, in order to establish and substantiate his plea of alibi.
DW 1 (Om Prakash) has stated that he had gone to the house of
Appellant Roop Chand at about 8:45 PM and remained there till 9:30 
PM. On 21.05.2008, DW 3 (Shiv Bahadur) has stated that on the said
date, he had gone to the house of Accused Roop Chand to deliver the
invitation for the marriage of his daughter. He further stated that he
reached there at 6:00 PM and remained there till 10:30 PM, stating
that Appellant Roop Chand was present there for the entire duration.
DW 4 (Ram Dayal) who is the father of the Appellant Roop Chand
has stated that he came home at 4:00 PM and thereafter Appellant
Roop Chand remained home till next morning. However, DW 2 (Atam
Prakash Gupta) has stated that he had called Appellant Roop Chand to
sit at his shop at 9:15 PM and thereafter the Appellant Roop Chand sat
at his shop for 15-20 minutes and left at 9:30 PM. Similarly, appellant
Bal Kishan, has examined DW 5 (Manoj Malhotra), DW6
(Dharmveer) and DW 7 (Smt. Gomti Devi) for proving his alibi. DW5
has stated that on the day of incident Appellant Bal Kishan came to his
shop at 9:30 am and left the shop at 10:00 pm. DW6 who is the uncle
of Bal Kishan stated that on the day of incident, i.e. 21/05/2008, Bal
Kishan left home for his work at 9:00 am and returned home at 10:00
pm. Thereafter Bal Kishan left for his mother’s house at Nand Nagri.
DW.7 (Smt. Gomti Devi) who is mother of Bal Kishan has stated that 
her son came at 11:00 pm to meet her. DW.7 has further stated that
after taking dinner Appellant Bal Kishan went to sleep. The versions
of DWs do not appear to be consistent and it becomes apparent that
the defence witnesses are not stating the truth. In the Binay Kumar
Singh vs. State of Bihar: (1997) 1 SCC 283, the Supreme Court has
held that the burden of proving an alibi is entirely on the accused and
strict proof is required for establishing an alibi, but the accused has
failed to prove the same.
27. Learned counsels appearing for the appellants Mukesh, Bal
Kishan and Roop Chand have laid great emphasis on absence of any
“charge” under Section 34 of the IPC. They submit that they could
not have been convicted for the offence under Section 302 by taking
aid of Section 34 of the IPC. It was canvassed that out of the 12
injuries, only 2, namely nos.(11) and (12) have not been caused by any
sharp cutting weapon, but by the impact of blunt force. Thus, at best
only these two injuries can be attributed to the said appellants, who
were unarmed and had not given knife blows. In the absence of any
evidence or even allegation that the appellants Mukesh, Roop Chand
and Bal Kishan were armed, much less a sharp edged weapon, it 
would be wrong to assume that they had entertained a similar/same
intention of hurling knife injuries which ultimately led to Parveen’s
death. It was argued that assuming, that all of them had gone with the
appellant Rakesh to teach the deceased a lesson unarmed, all that
could be presumed is that they had gone there only with the purpose of
admonishing or threatening the deceased. Common intention would
possibly be limited to mild use of force so as to instil an element of
fear in the mind of the deceased.
28. Learned counsels in support of their submission on this issue
drew the attention of the court to the judgments in Manoj alias Bhau
And Others vs. State of Maharashtra, (1994) 4 SCC 268; State of Uttar
Pradesh vs. Preetam And Others, (2011) 11 SCC 286; Khambam Raja
Reddy And Another vs. Public Prosecutor, High Court of Andhra
Pradesh, (2006) 11 SCC 239; Ajay Sharma vs. State of Rajasthan,
(1999) 1 SCC 174; Matadin And Another vs. State of Maharashtra,
(1998) 7 SCC 216; State of U.P. vs. Farid Khan And Others, (2005) 9
SCC 103 and Jainul Haque vs. State of Bihar, (1974) 3 SCC 543.
29. In the aforesaid cases, referred to by the appellants, benefit of
doubt was given by the Courts as no overt act was ascribed to them. It 
is trite that each case depends on its own set of facts and the facts of
one case cannot be stated to be exactly similar to that of the other case.
Question of common intention is answered with reference to the
factual matrix of a particular case. It is a matter of inference.
30. In the case in hand, it stands established that appellants Mukesh,
Bal Kishan and Roop Chand accompanied Rakesh to the place of
occurrence. It is true that PW.2 and PW.3 did not see them armed
with knife and other weapons. But in the process of assault, according
to the eye-witnesses, Rakesh hurled several knife blows resulting in as
many as 10 sharp edged weapon injuries. It was a deliberate assault
and attack. It is difficult not to perceive and accept that common
intention was missing and absent. Nature and extent of injuries, the
preparation and the predetermined manner in which the deceased was
assaulted, would reflect common intention. It is not necessary to
establish common intention, by showing that each one of them were
armed.
31. What distinguishes Section 34 from Section 149 is that Section
34 of the IPC refers to common intention, whereas Section 149 cares
for common object. Common intention of the Appellant persons can 
be formed even during the course or just before the assault and it is not
at all necessary that such intention should pervade the minds of the
accused right from the beginning. The fact that several stab wounds
were found on the person of the deceased does make us believe that
“the common intention” was entertained by the appellants in
consummating their act of revenge. During the period of assault, the
aforementioned three appellants did not run away or desist appellant
Rakesh from assaulting by knife. The deceased suffered as many as
12 injuries, 10 out of which, as has been noted, were by a sharp
cutting weapon. Thus, the deceased could not run away or was not
allowed to escape. The presence of the three appellants at the place of
occurrence had the impact and consequences. It can be stated with
almost certainty that the presence of Mukesh, Bal Kishan and Roop
Chand alongwith Rakesh made the attack fatal, and foreclosed any
chance to flee and save oneself. Thus, all the appellants had and
shared the common intention.
32. Learned counsel for the State, while stoutly opposing such
submissions, has rightly referred to Suresh and Anrs. vs. State of U.P.,
AIR 2001 SC 1344. In the aforesaid case, the Supreme Court,
elucidated Section 34, as to when it can be invoked. It was held:-
“Looking at the first postulate pointed out above, the
Appellantwho is to be fastened with liability on the strength
of Section 34, IPC should have done some act which has
nexus with the offence. Such act need not be very
substantial, it is enough that the act is only for guarding the
scene for facilitating the crime. The act need not necessarily
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 coAppellantin
furtherance of the common intention. Even an
omission can, in certain circumstances, amount to an act.
This is the purport of Section 32, IPC. So the act mentioned
in Section 34, IPC need not be an overt act, even an illegal
omission to do a certain act in a certain situation can
amount to an act, e.g. a co-accused, standing near the
victim face to face saw an armed assailant nearing the
victim from behind with a weapon to inflict a blow. The coaccused,
who could have alerted the victim to move away to
escape from the onslaught deliberately refrained from doing
so with the idea that the blow should fall on the victim. Such
omission can also be termed as an act in a given situation.
Hence an act, whether overt or covert, is indispensable to
be done by a co-Appellantto be fastened with the liability
under the section. But if no such act is done by a person,
even if he has common intention with the others for the
accomplishment of the crime, Section 34, IPC cannot be
invoked for convicting that person. In other words, the
Appellantwho only keeps the common intention in his mind,
but does not do any act at the scene, cannot be convicted
with the aid of Section 34, IPC.”
33. In paragraphs 41 onwards of Suresh (supra), the Supreme Court
took note of the earlier decisions on the subject which are instructive.
“The classic case on the subject is the judgment of the Privy
Council in Mahboob Shah vs. Emperor: AIR, 1945 PC 118: 
(1945 (46) Crl LJ 689). Referring to Section 34 prior to its
amendment in 1870 wherein it was provided:
"When a criminal act is done by several persons,
each of such persons is liable for that act in the
same manner as if the act was done by him
alone."
it was noticed that by amendment, the words "in furtherance
of common intention of all" were inserted after the word
"persons" and before the word "each" so as to make the
object of Section clear. Dealing with the scope of Section, as
it exists today, it was held:
"Section 34 lays down a principle of joint liability
in the doing of a criminal act. The section does
not say 'the common intention of all' nor does it
say 'an intention common to all'. Under the
section, the essence of that liability is to be found
in the existence of a common intention animating
the Appellantleading to the doing of a criminal
act in furtherance of such intention. To provide
the aid of Section 34 successfully, it must be
shown that the criminal act complained against
was done by one of the Appellantpersons 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 Appellantof an offence applying the
section it should be proved that the criminal act
was done in concert pursuant to the pre-arranged
plan. As has been often observed, it is difficult if
not impossible to procure direct evidence to prove
the intention of an individual; in most cases it has 
to be inferred from this act or conduct or other
relevant circumstances of the case."
(Emphasis supplied)
42. Full Bench of the Patna High Court in The King
Emperor vs. Barendra Kumar Ghose: AIR1924 Cal 257:
(1924 (25) Crl.LJ 817) which was later approved by the
Privy Council dealt with the scope of Section 34 in extenso
and noted its effects from all possible interpretations put by
various High Courts in the country and the distinguished
authors on the subject. The Court did not agree with the
limited construction given by Stephen, J. in Emperor
v. Nirmal Kanta Roy 1914 ILR 41 Cal 1072: (AIR1914 Cal
901(2): 1914 (15) Crl LJ 460) and held that such an
interpretation, if accepted, would lead to disastrous results.
Concurring with Mookerjee, J. and giving the section wider
view Richardson, J. observed:
"It appears to me that section 34 regards the act done as
the united act of the immediate perpetrator and his
confederates present at the time and that the language
used is susceptible of that meaning. The language
follows a common mode of speech. In R. v. Salmon 1880
(6) Q80 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 reach 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'. Stephan, J. said:- 'Firing a
rifle' under such circumstances 'is a highly dangerous
act, and all are responsible; for they unite to fire at the
spot in question and they all omit to take any
precautions whatever to prevent danger.
Moreover, Sections 34, 35 and 37 must be read together,
and the use in section 35 of the phrase 'each of such
persons who joins in the act' and in section 37 of the
phrase, 'doing any one of those acts, either singly or 
jointly with any other person' indicates the true meaning
of section 34. So section 38 speaks of 'several persons
engaged or concerned in a criminal act'. The different
mode of expression may be puzzling but the sections
must, I think, be construed as enunciating a consistent
principle of liability. Otherwise the result would be
chaotic.
To put it differently, an act is done by several persons
when all are principals in the doing of it, and it is
immaterial whether they are principals in the first
degree or principals in the second degree, no distinction
between the two categories being recognised.
This view of section 34 gives it an intelligible content in
conformity with general notions. The opposing view
involves a distinction dependent on identity or similarity
of act which, if admissible at all, is wholly foreign to the
law, both civil and criminal, and leads nowhere."
43. Approving the judgments of the Privy Council in
Barendra Kumar Ghose (AIR 1925 PC 1: 1925 (26) Cri LJ
431) and Mahboob Shah's (AIR 1945 PC 118: 1945 (46) Cri
LJ 689) cases (supra) a three Judge Bench of this Court in
Pandurang and Ors. v. State of Hyderabad, AIR 1955 SC
216: (1955 Cri LJ 572) held that to attract the applicability
of Section 34 of the Code the prosecution is under an
obligation to establish that there existed a common intention
which requires a pre-arranged plan because before a man
can be vicariously convicted for the criminal act of another,
the act must have been done in furtherance of the common
intention of all. This Court had in mind the ultimate act
done in furtherance of the common intention. In the absence
of a pre-arranged plan and thus a common intention even if
several persons simultaneously attack a man and each one
of them by having his individual intention, namely, the
intention to kill and each can individually inflict a separate
fatal blow and yet none would have the common intention 
required by the section. In a case like that each would be
individually liable for whatever injury he caused but none
could be vicariously convicted for the act of any or the
other. The Court emphasised the sharing of the common
intention and not the individual acts of the persons
constituting the crime. Even at the cost of repetition it has to
be emphasised that for proving the common intention it is
necessary either to have direct proof of prior concert or
proof of circumstances which necessarily lead to that
inference and "incriminating facts must be incompatible
with the innocence of the Appellantand incapable of
explanation or any other reasonable hypothesis". Common
intention, arising at any time prior to the criminal act, as
contemplated under Section 34 of the Code, can thus be
proved by circumstantial evidence.
44. xxxxxxxx
45. xxxxxxx
46. xxxxxxx
47. In Ramaswami Ayyangar v. State of Tamil Nadu AIR
1976 SC 2027: (1976 Cri LJ 1563) this Court declared that
Section 34 is to be read along with preceding
Section 33 which makes it clear that the "act" mentioned in
Section 34 includes a series of acts as a single act. The acts
committed by different confederates in the criminal action
may be different but all must in one way or the other
participate and engage in the criminal enterprise. Even a
person not doing any particular act but only standing guard
to prevent any prospective aid to the victims may be guilty
of common intention. However, it is essential that in case of
an offence involving physical violence it is essential for the
application of Section 34 that such Appellantmust be
physically present at the actual commission of crime for the
purposes of facilitating accomplishment of "criminal act" as
mentioned in that section. In Ramaswami's case (AIR 1976 
SC 2027: 1976 Cri LJ 1563) (supra) it was contended that
A2 could not be held vicariously liable with the aid of
Section 34 for the act of other Appellanton the grounds:
firstly he did not physically participate in the fatal beating
administered by co-Appellantto the deceased and thus the
"criminal act" of murder was not done by all the
Appellantwithin the contemplation of Section 34; and
secondly the prosecution had not shown that the act of A2 in
beating PW was committed in furtherance of the common
intention of all the three pursuant to a pre-arranged plan.
Repelling such an argument this Court held that such a
contention was fallacious which could not be accepted. The
presence of those who in one way or the other facilitate the
execution of the common design itself tantamounts to actual
participation in the "criminal act". The essence of
Section 34 is simultaneously consensus of the minds of
persons participating in the criminal action to bring about a
particular result. Conviction of A2 under Section 302/34 of
the Code in that case was upheld.
48. In Rambilas Singh and Ors. v. State of Bihar, AIR 1989
SC 1593 : (1989 Cri LJ 1782) this Court held (Para 7):
"It is true that in order to convict persons
vicariously under Section 34 or Section 149 IPC,
it is not necessary to prove that each and
everyone of them had indulged in overt acts. Even
so, there must be material to show that the overt
act or acts of one or more of the Appellantwas or
were done in furtherance of the common intention
of all the Appellantor in prosecution of the
common object of the members of the unlawful
assembly."
(Emphasis supplied)
49. Again a three Judge Bench of this Court in State of U.P.
v. Iftikhar Khan and Ors. (1973) 1 SCC 512: (AIR 1973 SC
863 : 1973 Cri LJ 636) after relying upon the host of 
judgments of Privy Council and this Court, held that for
attracting Section 34 it is not necessary that any overt act
must be done by a particular accused. The section will be
attracted if it is established that the criminal act has been
done by one of the Appellantpersons in furtherance of the
common intention. If this is shown, the liability for the crime
may be imposed on any one of the person in the same
manner as if the act was done by him alone. In that case on
proof of the facts that all the four Appellantpersons were
residents of the same village and AppellantNos.1 and 3 were
brothers who were bitterly inimical to the deceased and
AppellantNos.2 and 4 were their close friends,
AppellantNos.3 and 4 had accompanied the other two
Appellantwho were armed with pistols; all the four came
together in a body and ran away in a body after the crime
coupled with no explanation being given for their presence
at the scene, the Court held that the circumstances led to the
necessary inference of a prior concert and pre-arrangement
which proved that the "criminal act" was done by all the
Appellantpersons in furtherance of their common intention.
50. In Krishnan and Anr. v. State of Kerala (1996) 7 JT
(SC) 613: (1996 AIR SCW 3754 : AIR 1997 SC 383 : 1996
Cri LJ 4444) this Court even assuming that one of the
appellants had not caused the injury to the deceased, upheld
his conviction under Section 302/34 of the Indian Penal
Code holding.
51.In Surender Chauhan v. State of M.P. (2000) 4 SCC 110
: (2000 AIR SCW 1005 : AIR 2000 SC 1436: 2000 Cri LJ
1789) : this Court held that apart from the fact that there
should be two or more accused, two factors must be
established - (i) common intention and (ii) participation of
the Appellantin the commission of the offence. If a common
intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as
essentially it involves vicarious liability. 
52. xxxxxxx
53. After referring to Mahboob Shah's case (AIR 1945 PC
118 : 1945 (46) Cri LJ 689) (supra) this Court in Mohan
Singh and anr. vs. State of Punjab [AIR 1963 SC 174] :
(1963(1) Cri LJ 100) observed, it is now well settled that the
common intention required by Section 34 is different from
the same intention or similar intention. The persons having
similar intention which is not the result of pre-concerted
plan cannot be held guilty for the "criminal act" with the aid
of Section 34. Similarly the distinction of the words used in
Section 10 of the Indian Evidence Act "in reference to their
common intention" and the words used in Section 34 "in
furtherance of the common intention" is significant.
Whereas Section10 of the Indian Evidence Act deals with
the actions done by conspirators in reference to the common
object. Section 34 of the Code deals with persons having
common intention to do a criminal act.”
34. In Dhanna etc. vs. State of Madhya Pradesh, JT 1996 (6) SC
652, it has been held that even if charge under Section 34 of the IPC is
not framed; it could be taken in aid if the circumstances so exist. The
ratio is found in the following quotations.
“8. Legal position on this aspect remained uncertain for a
time after this court rendered a decision in Nanak Chand v.
The State of Punjab. 1955 (1) SCR 1201. But the doubt was
cleared by a constitution bench of this court in Willie Slaney
v. State of M.P., AIR 1956 SC 116. Where this court
observed at para 86, thus:
"Sections 34, 114 and 149 of the Indian Penal
Code provide for criminal liability viewed from
different angles as regards actual participants,
accessories and men actuated by a common 
object or a common intention; and the charge
is a rolled-up one involving the direct liability
and the constructive liability without specifying
who are directly liable and who are sought to
be made constructively liable.
In such a situation, the absence of a charge
under one or other of the various heads of
criminal liability for the offence cannot be said
to be fatal by itself, and before a conviction for
the substantive offence, without a charge, can
be set aside, prejudice will have to be made
out. In most of the cases of this kind, evidence
is normally given from the outset as to who was
primarily responsible for the act which brought
about the offence and such evidence is of
course relevant."
9. It is, therefore, open to the court to take recourse to
Section 34 of IPC even if the said section was not
specifically mentioned in the charge and instead Section
149 IPC has been included. Of course a finding that the
assailant concerned had a common intention with the other
Appellantis necessary for resorting to such a course. This
view was following by this court in later decisions also,
(Amar Singh v. State of Haryana. AIR 1973 SC 2221. Bhoor
Singh and Anr. v. State or Punjab, AIR 1974 SC 1256). The
first submission of the learned counsel for the appellant has
no merit.”
35. In the present case, there is not a scintilla of doubt with regard
to the participation of the appellants in the crime and thereby fulfilling
their intention.
36. Thus from the aforementioned discussions, we are not in any
doubt that the appellants shared common intention and accordingly 
along with Rakesh are guilty of the charge of murder. We do not find
any reason to reverse the judgment and findings the Trial Court.
37. As a result, the appeal is dismissed.
38. Trial Court record to be returned.
(ASHUTOSH KUMAR)
 Judge
 (SANJIV KHANNA)
 Judge
APRIL 17, 2015
ab
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