Law Web: Whether the court can convict the accused with the aid of S 34 of IPC if the criminal offence is distinctly remote and unconnected with their common intention?

Section 34 IPC also uses the expression “act in furtherance of

common intention”. Therefore, in each case when Section 34 is

invoked, it is necessary to examine whether the criminal offence

charged was done in furtherance of the common intention of the

participator. If the criminal offence is distinctly remote and

unconnected with the common intention, Section 34 would not be

applicable. However, if the criminal offence done or performed

was attributable or was primarily connected or was a known or

reasonably possible outcome of the preconcert/contemporaneous

engagement or a manifestation of the mutual consent for carrying

out common purpose, it will fall within the scope and ambit of the

act done in furtherance of common intention. Thus, the word

“furtherance” propounds a wide scope but should not be

expanded beyond the intent and purpose of the statute. Russell

on Crime, (10th edition page 557), while examining the word

“furtherance” had stated that it refers to “the action of helping

forward” and “it indicates some kind of aid or assistance producing

an effect in the future” and that “any act may be regarded as done

in furtherance of the ultimate felony if it is a step intentionally

taken for the purpose of effecting that felony.” An act which is

extraneous to the common intention or is done in opposition to it

and is not required to be done at all for carrying out the common

intention, cannot be said to be in furtherance of common intention

[refer judgment of R.P. Sethi J. in Suresh (supra)]. {Para 19}

20. When we apply the aforesaid principles relating to applicability of Section 34 IPC to the facts of the present case, we feel that Thimmappa and Gopala are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention, viz. the injuries inflicted by Krishnamurthy on Venkatarama after he had fallen down. They did not participate thereafter by physically assaulting or causing any injury to Venkatarama. They did not facilitate and help Krishnamurthy in the assault he perpetuated. We have no grounds to accept that they could have preconceived the brutal assault by Krishnamurthy who had put his knees on the neck and jumped on the chest of the deceased to cause the injuries resulting in his death. We cannot hold that these two accused could have premeditated the result which ensued when Krishnamurthy behaved and acted in the manner he did. Clearly, they had not joined Krishnamurthy when he had acted and have stood by. There is nothing to indicate that their acts, that is, holding the hands and pulling the legs of the deceased making him fall down, were done in furtherance of the common intention that Krishnamurthy would thereupon put his leg on the neck of the deceased, crushed his chest and fracture the ribs. We would, in favour of the appellants Thimmappa and Gopala, hold that their acts cannot be primarily connected with the violence perpetuated by Krishnamurthy. Given the acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy and the resultant outcome were unexpected. We are also not prepared to hold that these two accused should have known the final outcome, or it was known to them, or it was a reasonably possible outcome of the preconcert/ contemporaneous engagement or a manifestation of mutual consent for carrying out a common purpose. We, therefore, would not hold them guilty for the offence under Section 300 or even Section 299 of the IPC on the ground that they shared common intention as understood on application of Section 34 IPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 288 OF 2022

KRISHNAMURTHY @ GUNODU AND OTHERS Vs STATE OF KARNATAKA .

Author: SANJIV KHANNA, J.

Dated: FEBRUARY 16, 2022.

Leave granted.

2. This appeal by Krishnamurthy (also described as Krishna Murthy),

Gopala and Thimmappa takes exception to the judgment dated

20th February 2021 passed in Criminal Appeal No. 200147 of

2017, whereby the Division Bench of the High Court of Karnataka,

Kalaburagi Bench, has affirmed their conviction under Section 302

read with Section 34 and individually for the offences under

Sections 447, 504, 506 and 341 of the Indian Penal Code, 1860

(for short, ‘IPC’).

3. Having examined the evidence in detail, we agree that

Krishnamurthy has been rightly convicted under the aforesaid

Sections, including Section 302 of the IPC. Testimonies of

Channamma (PW-1), Ramanjaneya (PW-4), Dullaiah (PW-6) and

Dodda Narasimha (PW-7), all eyewitnesses, implicate

Krishnamurthy as the perpetrator who had assaulted the

deceased-Venkatarama after he had fallen down. In view of our

analysis of the testimonies in the ensuing paragraphs, we have

reservations in entirely relying upon the depositions of Dullaiah

(PW-6) and Dodda Narasimha (PW-7). But we have no

reservation in accepting the depositions of Channamma (PW-1)

and Ramanjaneya (PW-4) implicating Krishnamurthy. We have

subsequently reproduced the relevant portions of their

depositions. Suffice at this stage is to aver that the specific acts

attributed to Krishnamurthy are that after Venkatarama had fallendown,

he had kicked and assaulted him on the neck with his legs

and hands. The version on the role of Krishnamurthy deposed by

Channamma (PW-1) and Ramanjaneya (PW-4) gets corroboration

from the Post-Mortem Report (Exhibit P-6) and the deposition of

Dr. Sharanabasava (PW-9) who had conducted the post-mortem.

Venkatarama had suffered abraded contusion of reddish blue

colour on the neck area and abraded contusion reddish in colour

on the left side of the chest. Internal dissection had revealed

profuse bleeding over the muscles of the neck surrounding the

arteries that were ruptured. The left side ribs 4, 5, 6 and 7 were

fractured. The utral part of the stemum was broken into two

pieces. The spinal cord at the level of C-5, C-6 and C-7 was

contused, edematous and elongated. The cause of death was

opined as haemorrhagic shock as a result of multiple injuries.

4. The assault by Krishnamurthy, who though not armed with any

weapon, was fearsome, brutal and cruel. He had pinned down and

tromped Venkatarama using his legs and hands fracturing four

ribs, contusing, and injuring the spinal cord, the chest, and the

neck of the deceased. Given that the injuries caused were

intended, third limb of Section 300 IPC would get attracted. The

post mortem report and deposition of Dr. Sharanabasava (PW-9)

prove the cause of death on account of injuries caused in the

chest region, asphyxia, and facture of bones. The death was

instantaneous, as has been deposed by Channamma (PW-1) and

Ramanjaneya (PW-4). The injuries were sufficient in ordinary

course of nature to have caused death. The death of Venkatarama

is homicidal as a result and direct consequence of the injuries

inflicted by Krishnamurthy.

5. This brings us to the role and acts of Gopala and Thimmappa and

whether they can be individually convicted for murder of

Venkatarama. We begin by referring to the depositions of Dullaiah

(PW-6) and Dodda Narasimha (PW-7), which are verbatim

identical, and, therefore, the suspicion that the said witnesses

were prompted. However, we would not doubt their presence at

the place of occurrence as their presence was natural, they being

farmers who were undertaking cultivation in the adjacent fields.

On the actual occurrence they both have deposed:

“While on my way, Venkatarama, his wife, and their

son Ramanjineya (sic) were in the land on Gangawara

road. Then, accused Thimmappa, ‘A’ (identity

suppressed being a juvenile) were holding

Venkataramana’s (sic) hands. Accused Gopala was

pulling down Venkataramana’s (sic) legs and as such

he fell down on his back. Then, Gopala, Krishnamurthy

assaulted with hands, kicked with legs and attacked

with their hands when Venkataramana (sic) had fallen

down. At that time, I along with Ramanjineya (sic),

Dodda Narasimhalu were present. We did not try to

save hence since accused had threatened us not to go

near them.”

Dullaiah (PW-6) and Dodda Narasimha (PW-7) in their

cross-examination had vacillated and hesitantly accepted that they

did not know as to who amongst the accused ‘A’ and Thimmappa

had held the hands of the deceased and which one had pulled the

legs of the deceased making him fall down. They testified that the

accused ‘Venkatarama’ kicked with both legs and assaulted with

hands. This statement is erroneous and could well be a

typographical error as Venkatarama was the deceased and not an

accused. However, it appears from the depositions that one of the

accused had kicked with both legs and assaulted the deceased

with his hands, a fact affirmatively deposed to by Channamma

(PW-1) and Ramanjaneya (PW-4).

6. Channamma (PW-1), in her examination in chief on the

occurrence and the acts and role of the accused, has deposed:

“Accused No.3 Thimmappa and accused No.4 ‘A’

twisted back my husband’s both hands and held them.

Accused No.2 Gopala pulled my husband down

through his leg. Accused No.1 Krishnamurthy stamped

my husband’s neck with his left leg and jumped upon

it.”

In her cross-examination she denied the suggestion that

Thimmappa and ‘A’, had neither twisted nor held the hands of her

husband and Gopala had not pulled him down with his legs. She

has also denied that Krishnamurthy had not jumped on her

husband’s legs and stomped with his legs.

Ramanjaneya (PW-4), about twelve years old when his

evidence was recorded, avers that he along with his mother and

father were at their farm land harvesting and piling up Sajje crop.

At about noon, the four accused came to the spot and had

threatened their father who had tried to run away. Thereupon:

“All the four of them chased him and accused

Thimmappa and ‘A’ held both hands of my father.

Accused Gopala held both legs of my father and

pulled him. Then, my father pleaded and fell down with

his head down. Accused Krishnamurthy kicked with his

hands and legs and assaulted heavily on the neck. At

that time, when my mother went ahead to save him, all

the accused persons threatened to do away with our

lives. Then, afraid by the same, we did not go ahead.

Accused Thimmappa told that, my father is dead and

left and went away.”

7. We would accept the versions given by Channamma (PW-1) and

Ramanjaneya (PW-4), albeit record that there could be some

minor exaggerations. However, what is clearly discernible, and

which all eyewitnesses including Dullaiah (PW-6) and Dodda

Narasimha (PW-7) accept, is that the accused were unarmed and

they did not even have a stick with them. This indicates absence

of a premediated attack to murder Venkatarama. Further, the roles

attributed to Thimmappa and Gopala are different from the brutal

assault leashed by Krishnamurthy after Venkatarama had fallen

down. Roles of Thimmappa and ‘A’, as per the versions given by

Channamma (PW-1) and Ramanjaneya (PW-4), were limited to

holding and twisting the hands of Venkatarama. Gopala had pulled

down the deceased by holding his legs. As per Dullaiah (PW-6)

and Dodda Narasimha (PW-7), Gopala and Krishnamurthy had

then assaulted Venkatarama, but as per the versions of

Channamma (PW-1) and Ramanjaneya (PW-4), only

Krishnamurthy had assaulted and not Gopala. All of them in

unison state that Thimmappa had not participated in the assault

after Venkatarama had fallen down. Given the above discrepancy

and for reasons recorded above casting doubt on the versions

given by Dullaiah (PW-6) and Dodda Narasimha (PW-7), we

accept that it was Krishnamurthy alone who had swung into

action, kicked and assaulted the deceased with his hands and

legs and stomped with his left leg on his neck. He had also

jumped on his chest. The post mortem report and the deposition

of Dr. Sharanabasava (PW-9) have attributed the death of the

deceased on account of injuries caused by Krishnamurthy. The

deceased had not suffered any fracture on his hands, arms or

legs. Thus, we accept that Thimmappa and Gopala had not

assaulted Venkatarama after he had fallen down and were not

responsible for the injuries suffered by Venkatarama resulting in

his death.

8. The underlying basic assumption or foundation in criminal law is

the principle of personal culpability. A person is criminally

responsible for act or transactions in which he is personally

engaged or in some other way had participated. However, there

are various modes and capacities in which a person can

participate in a crime. He can instigate, be a facilitator or

otherwise aid execution of a crime. Section 34 IPC incorporates

the principle of shared intent, that is, common design between the

two perpetrators, which makes the second or other participants

also an equal or joint perpetrator as the main or principal

perpetrator1. The question which arises is whether Thimmappa

1 We have used the said terms for want of a better phrase. Section 34 IPC does not postulate such distinction and Gopala can be attributed common intention under Section 34 IPC to commit murder under Section 300 or even offence under Section 304 IPC.

9. In Suresh and Another v. State of Uttar Pradesh,2 R.P. Sethi, J.

in his concurring judgment (for himself and B.N. Agarwal, J.) on

the question of common intention has observed:

“38. Section 34 of the Penal Code, 1860 recognises

the principle of vicarious liability in 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 presupposes prior

concert, which requires a prearranged plan of the

accused participating in an offence. Such preconcert

or preplanning 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 the

spur of the 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 attracting Section 34 of

the Penal Code, 1860 (hereinafter referred to as “the

Code”) is the element of participation in absence

resulting in the ultimate “criminal act”. The “act”

referred to in the later part of Section 34 means the

ultimate criminal act with which the accused is

charged of sharing the common intention. The

accused is, therefore, made responsible for the

2 (2001) 3 SCC 673

ultimate criminal act done by several persons in

furtherance of the common intention of all. The section

does not envisage the separate act by all the accused

persons for becoming responsible for the ultimate

criminal act. If such an interpretation is accepted, the

purpose of Section 34 shall be rendered infructuous.

40. Participation in the crime in furtherance of the

common intention cannot conceive of some

independent criminal act by all accused persons,

besides the ultimate criminal act because for that

individual act law takes care of making such accused

responsible under the other provisions of the Code.

The word “act” used in Section 34 denotes a series of

acts as a single act. What is required under law is that

the accused persons sharing the common intention

must be physically present at the scene of occurrence

and be shown not to have dissuaded themselves from

the intended criminal act for which they shared the

common intention. Culpability under Section 34 cannot

be excluded by mere distance from the scene of

occurrence. The presumption of constructive intention,

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

with judicial servitude, hold that the accused must

have preconceived the result that ensued in

furtherance of the common intention. A Division Bench

of the Patna High Court

in SatrughanPatar v. Emperor held that it is only when

a court with some certainty holds that a particular

accused must have preconceived or premeditated the

result which ensued or acted in concert with others in

order to bring about that result, that Section 34 may be

applied.”

10. Appropriate at this stage would be reference to an earlier decision

of this Court in Afrahim Sheikh and Others v. State of West

Bengal3, which referred to with approval the following quote on

the expression “act” explained by Judicial Commissioner

in Barendra Kumar Ghosh v. The King-Emperor4:

3 AIR 1964 SC 1263

4 ILR (1925) 52 Cal. 197

“criminal act means that unity of criminal

behaviour, which results in something, for which

an individual would be punishable, if it were all

done by himself alone i.e. a criminal offence”.

This “criminal act” under Section 34 IPC, it was held, applies

where a criminal act is done by several persons in furtherance of

common intention of all. The criminal offence is the final result or

outcome but it may be through achievement of individual or

several criminal acts. Each individual act may not constitute or

result in the final offence. When a person is assaulted by a

number of accused, the “ultimate criminal act” normally will

constitute the offence which finally results or which may result in

death, simple hurt, grievous hurt, etc. This is the final result,

outcome or consequence of the criminal act, that is, action or act

of several persons. Each person will be responsible for his own

act as stipulated in Section 38 IPC. However, Sections 34 and 35

expand the scope and stipulate that if the criminal act is a result of

common intention, every person, who has committed a part of the

criminal act with the common intention, will be responsible for the

offence. It was accordingly held in Afrahim Sheikh and Ors.

(supra) as under:

“8. …Provided there is common intention, the whole of

the result perpetrated by several offenders, is

attributable to each offender, notwithstanding that

individually they may have done separate acts, diverse

or similar. Applying this test to the present case, if all

the appellants shared the common intention of

severely beating Abdul Sheikh and some held him

down and others beat him with their weapons,

provided the common intention is accepted, they

would all of them be responsible for the whole of the

criminal act, that is to say, the criminal offence of

culpable homicide not amounting to murder which was

committed, irrespective of the part played by them.

The common intention which is required by the section

is not the intention which s. 299 mentions in its first

part. That intention is individual to the offender unless

it is shared with others by a prior concert in which case

Sections 34 or 35 again come into play. Here, the

common intention was to beat Abdul Sheikh, and that

common intention was, as we have held above,

shared by all of them. That they did diverse acts would

ordinarily make their responsibility individual for their

own acts, but because of the common intention, they

would be responsible for the total effect that they

produced if any of the three conditions in s. 299, I.P.C.

applied to their case. If it were a case of the first two

conditions, the matter is simple. They speak of

intention and s. 34 also speaks of intention.

9. The question is whether the second part of s. 304

can be made applicable. The second part no doubt

speaks of knowledge and does not refer to intention

which has been segregated in the first part. But

knowledge is the knowledge of the likelihood of death.

Can it be said that when three or four persons start

beating a man with heavy lathis, each hitting his blow

with the common intention of severely beating him and

each possessing the knowledge that death was the

likely result of the beating, the requirements of s. 304,

Part II are not satisfied in the case of each of them? If

it could be said that knowledge of this type was

possible in the case of each one of the appellants,

there is no reason why s. 304, Part II cannot be read

with s. 34. The common intention is with regard to the

criminal act, i.e., the act of beating. If the result of the

beating is the death of the victim, and if each of the

assailants possesses the knowledge that death is the

likely consequence of the criminal act, i.e., beating,

there is no reason why s. 34 or s. 35 should not be

read with the second part of s. 304 to make each liable

individually.”

11. Accordingly, to attract applicability of Section 34 IPC, the

prosecution is under an obligation to establish that there existed a

common intention before a person can be vicariously convicted for

the criminal act of another. The ultimate act should be done in

furtherance of common intention. Common intention requires a

pre-arranged plan, which can be even formed at the spur of the

moment or simultaneously just before or even during the attack.

For proving common intention, the prosecution can rely upon

direct proof of prior concert or circumstances which necessarily

lead to that inference. However, incriminating facts must be

incompatible with the innocence of the accused and incapable of

explanation by any other reasonable hypothesis. By Section 33 of

IPC, a criminal act in Section 34 IPC includes omission to act.

Thus, a co-perpetrator who has done nothing but has stood

outside the door, while the offence was committed, may be liable

for the offence since in crimes as in other things “they also serve

who only stand and wait”. Thus, common intention or crime

sharing may be by an overt or covert act, by active presence or at

distant location but there should be a measure of jointness in the

commission of the act. Even a person not doing a particular act

but only standing as a guard to prevent any prospective aid to the

victim may be guilty of common intention.5 Normally, however, in a

5 See Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544

case of offence involving physical violence, physical presence at

the place of actual commission is considered to be safe for

conviction but it may not be mandatory when pre-arranged plan is

proved and established beyond doubt. Facilitation in execution of

the common design may be possible from a distance and can

tantamount to actual participation in the criminal act. The essence

and proof that there was simultaneous consensus of mind of coparticipants

in the criminal action is however, mandatory and

essential.6 In Krishnan and Another v. State of Kerala,7 it has

been observed that an overt act is not a requirement of law for

Section 34 IPC to operate but prosecution must establish that the

persons concerned shared the common intention, which can be

also gathered from the proved facts.

12. In Suresh’s case (supra), this Court also examined whether a

passive co-perpetrator can be liable under Section 34 IPC. This

case quotes with approval the following passage from the

judgment of Richardson, J. in King Emperor v. Barendra Kumar

Ghose8:

“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.

6 See Ramaswami Ayyangar v. State of Tamil Nadu, (1976) 3 SCC 779

7 (1996) 10 SCC 508

8 AIR 1924 Calcutta 257

Salmon three men had been negligently firing at a

mark. One of them — it was not known which — had

unfortunately killed a boy in the rear of the mark. They

were all held guilty of manslaughter. Lord Coleridge,

C.J., said: ‘The death resulted from the action of the

three and they are all liable.’ Stephen, J., said: ‘Firing

a rifle’ under such circumstances ‘is a highly

dangerous act, and all are responsible; for they unite

to fire at the spot in question and they all omit to take

any precautions whatever to prevent danger’.

Moreover, Sections 34, 35 and 37 must be read

together, and the use in Section 35 of the phrase ‘each

of such persons who joins in the act’ and in Section 37

of the phrase, ‘doing any one of those acts, either

singly or jointly with any other person’ indicates the

true meaning of Section 34. So Section 38 speaks of

‘several persons engaged or concerned in a criminal

act’. The different modes 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.”

13. At this stage, we would like to refer to an old judgment of a

Division Bench of the Allahabad High Court in the case of Bashir

v. State9, which by giving examples explains the scope and

significance of the words “in furtherance” used in Section 34 of the

9 AIR 1953 All 668

IPC in the following manner:

“18. The use of the words “in furtherance” suggests that

Section 34 is applicable also where the act actually done

is not exactly the act jointly intended by the conspirators

to be done, otherwise, the words would not be needed at

all. The common intention can be to do one act and

another act can be done in furtherance of the common

intention. It may be a preliminary act necessary to be

done before achieving the common intention; or it may

become necessary to do it after achieving the common

intention or it may be done while achieving the common

intention. Going to the spot in a motor car is an act in

furtherance of the common intention to commit a crime

there; but if while going there the driver runs over and

kills a pedestrian, the collision is merely incidental and

the running aver of the pedestrian is not in furtherance of

the common intention. If, however, a conspirator who

wishes to commit a crime involving violence against X is

impeded by Y and throws Y aside in order to get at X, the

attack upon Y is made in furtherance of the common

intention; see Russell on Crime, pages 557 and 558.”

The aforesaid quotation emphasizes that it is essential that

each co-perpetrator should have necessary intent to participate or

otherwise have requisite awareness or knowledge that the offence

is likely to be committed in view of the common design. It also

follows that in some cases merely accompanying the principal

accused may not establish common intention. A co-perpetrator,

who shares a common intention, will be liable only to the extent

that he intends or could or should have visualized the possibility or

probability of the final act. If the final outcome or offence

committed is distinctly remote and unconnected with the common

intention, he would not be liable. This test obviously is fact and

circumstance specific and no straitjacket universal formula can be

applied. Two examples quoted in Bashir's case (supra) are

relevant and explain the widest and broad boundaries of Section

34 IPC and at the same time warn that the ambit should not be

extended so as to hold a person liable for remote possibilities,

which were not probable and could not be envisaged. The

examples also bring out the distinction between the criminal acts

and the intent of a co-perpetrator; and the actual offence

committed by the principal or main perpetrator.

14. In Surendra Chauhan v. State of Madhya Pradesh,10 it has been

observed:

“11. Under Section 34 a person must be physically

present at the actual commission of the crime for the

purpose of facilitating or promoting the offence, the

commission of which is the aim of the joint criminal

venture. Such presence of those who in one way or

the other facilitate the execution of the common design

is itself tantamount to actual participation in the

criminal act. The essence of Section 34 is

simultaneous consensus of the minds of persons

participating in the criminal action to bring about a

particular result. Such consensus can be developed at

the spot and thereby intended by all of them.

(Ramaswami Ayyangar v. State of T.N.) The existence

of a common intention can be inferred from the

attending circumstances of the case and the conduct

of the parties. No direct evidence of common intention

is necessary. For the purpose of common intention

even the participation in the commission of the offence

need not be proved in all cases. The common intention

can develop even during the course of an occurrence.

(Rajesh Govind Jagesha v. State of Maharashtra) To

10 (2000) 4 SCC 110

apply Section 34 IPC apart from the fact that there

should be two or more accused, two factors must be

established : (i) common intention, and (ii) participation

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

common intention is proved but no overt act is

attributed to the individual accused, Section 34 will be

attracted as essentially it involves vicarious liability but

if participation of the accused in the crime is proved

and a common intention is absent, Section 34 cannot

be invoked. In every case, it is not possible to have

direct evidence of a common intention. It has to be

inferred from the facts and circumstances of each

case.”

15. In Mithu Singh v. State of Punjab,11 this Court acquitted Mithu

Singh under Section 302 read with Section 34 IPC, but upheld his

conviction under Section 27 of the Arms Act, 1959 observing that

inference as to common intention should not be readily drawn;

culpable liability can arise only if such inference can be drawn with

a degree of assurance. In the facts of the said case, it was

observed that the required degree of assurance was missing. At

the same time, it was observed that while examining the question

of common intention, the court should be conscious and aware

that it is difficult, if not impossible, to collect and produce direct

evidence and in most cases inference as to the intention shall be

drawn from the acts and conduct of the accused and other

relevant circumstances as available. The entire observation or

ratio of this Court has to be kept in mind.

11 (2001) 4 SCC 193

16. In Rajesh Kumar v. State of Himachal Pradesh,12 this Court had

elucidated and laid down the following principles as applicable to

Section 34 IPC:

“13. Section 34 has been enacted on the principle of

joint liability in the doing of a criminal act. The Section

is only a rule of evidence and does not create a

substantive offence. The distinctive feature of the

Section is the element of participation in action. The

liability of one person for an offence committed by

another in the course of criminal act perpetrated by

several persons arises under Section 34 if such

criminal act is done in furtherance of a common

intention of the persons who join in committing the

crime. Direct proof of common intention is seldom

available and, therefore, such intention can only be

inferred from the circumstances appearing from the

proved facts of the case and the proved

circumstances. In order to bring home the charge of

common intention, the prosecution has to establish by

evidence, whether direct or circumstantial, that there

was plan or meeting of mind of all the accused

persons to commit the offence for which they are

charged with the aid of Section 34, be it pre-arranged

or on the spur of moment; but it must necessarily be

before the commission of the crime. The true contents

of the Section are that if two or more persons

intentionally do an act jointly, the position in law is just

the same as if each of them has done it individually by

himself. As observed in Ashok Kumar v. State of

Punjab (AIR 1977 SC 109), the existence of a

common intention amongst the participants in a crime

is the essential element for application of this Section.

It is not necessary that the acts of the several persons

charged with commission of an offence jointly must be

the same or identically similar. The acts may be

different in character, but must have been actuated by

one and the same common intention in order to attract

the provision.”

After referring to the facts in Rajesh Kumar (supra), the

12 (2008) 15 SCC 705

conviction was converted from Section 302 IPC to one under

Section 326 IPC highlighting the factual position that the accused

in question had assaulted the victim by a danda on a non-vital

part.

17. In Arun v. State by Inspector of Police, Tamil Nadu,13 reference

was made to the decision in Hardev Singh and Another v. State

of Punjab14 and benefit was given to one of the accused as he did

not act conjointly with others in committing the murder. This Court

referred to Dharam Pal and Others v. State of Haryana,15 on the

test which should be applied to invoke and convict a co-accused

under Section 34 IPC. We also deem it appropriate to reproduce

the said test:

“14. It may be that when some persons start with a

pre-arranged plan to commit a minor offence, they

may in the course of their committing the minor

offence come to an understanding to commit the major

offence as well. Such an understanding may appear

from the conduct of the persons sought to be made

vicariously liable for the act of the principal culprit or

from some other incriminatory evidence but the

conduct or other evidence must be such as not to

leave any room for doubt in that behalf.

15. A criminal court fastening vicarious liability must

satisfy itself as to the prior meeting of the minds of the

principal culprit and his companions who are sought to

be constructively made liable in respect of every act

committed by the former. There is no law to our

knowledge which lays down that a person

13 (2008) 15 SCC 501

14 (1975) 3 SCC 731

15 (1978) 4 SCC 440

accompanying the principal culprit shares his intention

in respect of every act which the latter might

eventually commit. The existence or otherwise of the

common intention depends upon the facts and

circumstances of each case. The intention of the

principal offender and his companions to deal with any

person who might intervene to stop the quarrel must

be apparent from the conduct of the persons

accompanying the principal culprit or some other clear

and cogent incriminating piece of evidence. In the

absence of such material, the companion or

companions cannot justifiably be held guilty for every

offence committed by the principal offender.”

18. Section 34 IPC makes a co-perpetrator, who had participated in

the offence, equally liable on the principle of joint liability. For

Section 34 to apply there should be common intention between

the co-perpetrators, which means that there should be community

of purpose and common design or pre-arranged plan. However,

this does not mean that co-perpetrators should have engaged in

any discussion, agreement or valuation. For Section 34 to apply, it

is not necessary that the plan should be pre-arranged or hatched

for a considerable time before the criminal act is performed.

Common intention can be formed just a minute before the actual

act happens. Common intention is necessarily a psychological fact

as it requires prior meeting of minds. In such cases, direct

evidence normally will not be available and in most cases,

whether or not there exists a common intention has to be

determined by drawing inference from the facts proved. This

requires an inquiry into the antecedents, conduct of the co-

participants or perpetrators at the time and after the occurrence.

The manner in which the accused arrived, mounted the attack,

nature and type of injuries inflicted, the weapon used, conduct or

acts of the co-assailants/perpetrators, object and purpose behind

the occurrence or the attack etc. are all relevant facts from which

inference has to be drawn to arrive at a conclusion whether or not

the ingredients of Section 34 IPC are satisfied. We must

remember that Section 34 IPC comes into operation against the

co-perpetrators because they have not committed the principal or

main act, which is undertaken/performed or is attributed to the

main culprit or perpetrator. Where an accused is the main or final

perpetrator, resort to Section 34 IPC is not necessary as the said

perpetrator is himself individually liable for having caused the

injury/offence. A person is liable for his own acts. Section 34 or the

principle of common intention is invoked to implicate and fasten

joint liability on other co-participants. Further, the expression/term

“criminal act” in Section 34 IPC refers to the physical act, which

has been done by the co-perpetrators/participants as distinct from

the effect, result or consequence. In other words, expression

“criminal act” referred to in Section 34 IPC is different from

“offence”. For example, if A and B strike Lathi at X, the criminal act

is of striking lathis, whereas the offence committed may be of

murder, culpable homicide or simple or grievous injuries. The

expression “common intention” should also not be confused with

“intention” or “mens rea” as an essential ingredient of several

offences under the IPC. Intention may be an ingredient of an

offence and this is a personal matter. For some offences, mental

intention is not a requirement but knowledge is sufficient and

constitutes necessary mens rea. Section 34 IPC can be invoked

for the said offence also [refer Afrahim Sheikh and Ors. (supra)].

Common intention is common design or common intent, which is

akin to motive or object. It is the reason or purpose behind doing

of all acts by the individual participant forming the criminal act. In

some cases, intention, which is ingredient of the offence, may be

identical with the common intention of the co-perpetrators, but this

is not mandatory.

19. Section 34 IPC also uses the expression “act in furtherance of