Supreme Court: When Accused Acted With Common Intention, Punishment Can't Be Reduced Merely Because Injury Inflicted Individually Wasn't Severe

 Merely for the reason that

the injuries inflicted by Accused no.2 (K.B.Vijayakumar)

were less than what was inflicted by Accused no.3

(K.B.Jayakumar @ Suresh) and the injuries were not a

grievous. Conviction under Section 326 cannot be converted

to Section 324. Irrespective of the facts whether the

injuries caused to the injured persons (PW1 & PW7) were

only on the hand, the fact remained that the presence of

Accused no.2 on the spot is as an accomplice of Accused

no.3 and hence, Section 34 of the IPC is clearly made out.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO(S). 1694/2014

THE STATE OF KARNATAKA Vs  BATTEGOWDA & ORS.

Dated: January 09, 2025.

Read full Judgment here: Click here.

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Supreme Court: Common intention U/S 34 of IPC and the pre-meeting of minds can take place at the spur of the moment itself during the course of the incident.

Accused no.2 on the spot is as an accomplice of Accused

no.3 and hence, Section 34 of the IPC is clearly made out.

The case of the defence is that when the Accused Nos.2 & 3

had arrived at the spot, they had no intention to inflict

the nature of injuries on the injured persons. Even if it

is assumed it is true, it cannot be denied that common

intention and the pre-meeting of minds can take place at

the spur of the moment itself during the course of the

incident.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO(S). 1694/2014

THE STATE OF KARNATAKA Vs  BATTEGOWDA & ORS.

Dated: January 09, 2025.

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Whether the court can convict accused for an offence U/S 302 Of IPC if he was not sharing common intention to commit murder of deceased?

  A reading of the judgment and order passed by the Trial as well as the High Court would indicate that neither the prosecution or defence, nor the court, have focussed on the role of A-3 as evidenced by the oral and documentary evidence. There is nothing to attribute A-3 with the intent to murder the deceased. In fact, both the Courts have mechanically drawn an inference against A- 3 Under Section 34 of the Act merely based on his presence near the scene of offence and his familial relations with the other Accused.{Para 23}

24. As per the post-mortem report, the cause of death is "cardio pulmonary arrest due to transaction spinal cord at atlanto occipital joint". The atlanto occipital joint is at the back of the neck, which is the exact place where A-1 assaulted the deceased with the help of an axe. This axe was then taken by A-2 and thereafter, by A-4, who also assaulted the deceased. All the eye-witnesses are clear in this account. In other words, it was only A-3 who never took the axe in his hand. He only used a stone to assault the deceased.

25. Considering the statements of the eye-witnesses, coupled with the post-mortem report, it is not possible to contend that A-3 would have had the intention to commit the murder of the deceased and as such, he cannot be convicted Under Section 302 Indian Penal Code.

27. It is evident from the evidence of PW-11 that the deceased suffered 12 injuries, of which 10 are caused by sharp-edged weapons. The 11th injury is a partial amputation of the middle 3 fingers of left hand. The final injury is a lacerated wound on the back of neck measuring 18 cms x 7 cms with complete transaction of spinal cord and atlanto occipital joint. The Trial Court and the High Court have not analysed the evidence as against A-3. They have proceeded to convict him along with others Under Section 302 with the aid of Section 34. The cumulative circumstances in which A-3 was seen participating in the crime would clearly indicate that he had no intention to commit murder of the deceased for two clear reasons. Firstly, while every other Accused took the axe used by A1 initially and contributed to the assault with this weapon, A-3 did not wield the axe at any point of time. Secondly, A-3 only had a stone in his hand, and in fact, some of the witnesses said that he merely threatened in case they seek to intervene and prevent the assault. Under these circumstances, we hold that A-3 did not share a common intention to commit the murder of the deceased. Additionally, there is no evidence that A-3 came along with the other Accused evidencing a common intention. The description of the incident is that when the deceased came to the scene of occurrence, A-1 dragged him to the house of A-4, and the other Accused joined A-1. In this context, A-3 picked up a stone to assault the deceased.

28. Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has committed. While we acquit A-3 of the offence Under Section 302 read with Section 34 of the Indian Penal Code, he is liable for the offence Under 304 Part II Indian Penal Code. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2852 of 2023

Velthepu Srinivas and Ors. Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Pamidighantam Sri Narasimha, JJ.

Author: Pamidighantam Sri Narasimha, J.

Citation:  MANU/SC/0084/2024.

Decided On: 06.02.2024.

Read full Judgment here: Click here.

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Supreme Court explains distinction between part I and part II of S 304 of IPC

The law on Section 304 Part II has been succinctly laid down in Camilo Vaz v. State of Goa, MANU/SC/0263/2000 : 2000:INSC:206 : (2000) 9 SCC 1, where it was held that:

14. This Section is in two parts. If analysed, the Section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the "intention"; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the Accused....

29. In the past, this Court has considered factors such as lack of medical evidence to prove whether the act/injury was individually sufficient to cause death1, a single blow on head with a hammer2 and lack of cogent evidence of the eye-witnesses that the Accused shared a common intention to commit murder3 as some factors to commute a sentence from Section 302 to Section 304 Part II Indian Penal Code.

30. Returning back to the facts of the case, there is certainly no escape from coming to the conclusion that A-3 should have had the knowledge that the use of a stone to hit the head of the deceased is likely to cause death. However, as demonstrated before, the evidence is insufficient to deduce a conclusion that he shared a common intention with the other Accused to commit the murder of the deceased. Considering the role that A-3 has played, we hold him guilty of the offence Under Section 304 Part II Indian Penal Code.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2852 of 2023

Velthepu Srinivas and Ors. Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Pamidighantam Sri Narasimha, JJ.

Author: Pamidighantam Sri Narasimha, J.

Citation:  MANU/SC/0084/2024.

Decided On: 06.02.2024.

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What is basic concept of criminal conspiracy and common intention and difference between them?

 In Indian law, criminal conspiracy and common intention are two distinct legal concepts, though they often intersect in criminal cases. Here's a breakdown of each term:

1. Criminal Conspiracy:

   Criminal conspiracy is defined under Section 120-A of the Indian Penal Code (IPC). It involves an agreement between two or more persons to commit an illegal act or an act that is not illegal by illegal means. The essence of conspiracy lies in the agreement itself, irrespective of whether the actual criminal act is committed or not.

   Key points about criminal conspiracy:

   • The agreement can be either explicit or implicit.
   • Each conspirator need not participate in every detail of the conspiracy; they may have different roles and responsibilities.
   • The act need not be committed to establish the offense of conspiracy; the agreement itself is punishable.

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What is distinction between common intention and similar intention?

 Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between "common intention" and "similar intention" may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.

After referring to Mahboob Shah's case (supra) this Court in Mohan Singh & anr. vs. State of Punjab [AIR 1963 174] 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.

Supreme Court of India

Suresh And Anr vs State Of U.P on 2 March, 2001

Bench: R.P. Sethi, B.N. Agrawal

           CASE NO.:
Appeal (crl.) 821  of  2000
Appeal (crl.)	160	 of  2001

Read full Judgment here: Click here

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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.

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Whether court can convict accused with aid S 34 of IPC even if he has not participated in actual assault to the victim?

 In Surender Chauhan vs. State of Madhya Pradesh,

(2000) 4 SCC 110, it was noticed that absence of a positive

act of assault was not a necessary ingredient to establish

common intention observing :“

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….”{Para 16}

18. Coming to the facts of the present case, the appellant

no.1 lay in wait along with the other two appellants who were

armed. Appellant no.1 stopped the two deceased who were

returning from the market. The assault commenced after the

deceased had halted. That there was some dispute with

regard to money is apparent from the evidence of the

witnesses. Abdul Barek died on the spot as a result of the

brutal assault. Abdul Motin was injured in the first assault

upon him by appellant no.3, after which he tried to flee.

Appellant no 1 along with the other accused chased him,

caught hold of him near the house of Mamud Ali where he

was brutally assaulted. Abdul Motin was then dragged by the

accused persons to the place where Abdul Barek lay

motionless. To our mind no further evidence is required with

regard to existence of common intention in appellant no.1 to

commit the offence in question. We, therefore, find no reason

to grant any benefit to appellant no.1 on the plea that there is

no role or act of assault attributed to him, denying the

existence of any common intention for that reason.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1401 OF 2012

SUBED ALI AND OTHERS Vs THE STATE OF ASSAM 

Author: NAVIN SINHA, J.

Dated: SEPTEMBER 30, 2020.

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Supreme Court: No law that person accompanying principal culprit for minor offence shares common intention for the major offence committed by him

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 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.” (Emphasis Supplied)

Unless a common intention is established as a matter of necessary inference from the proved circumstances the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place amongst the different accused and in prosecution of it, the overt acts of the accused persons flowed out as if in obedience to the command of a single mind. If on the evidence, there is doubt as to the involvement of a particular accused in the common intention, the benefit of doubt should be given to the said accused person. ….”

33. In Girija Shankar v. State of U.P. 2004 (3)SCC 793, this Court made the following observations:

“9. …… 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 minds 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 the moment; but it must necessarily be before the commission of the crime.….” (Emphasis supplied)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.57 OF 2013

SONU @ SUNIL  Vs  STATE OF MADHYA PRADESH 

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Notes on S 34 {S 3(5) of BNS } and S149 IPC{S 190 of BNS }- Principle of constructive liability

S 34 of IPC {S 3(5) of BNS } Acts done by several persons in furtherance of common intention:-

When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Object of the section: S 34 of IPC {S 3(5) of BNS } is enacted to meet cases in which it may be difficult to distinguish between the acts of individual members of a party, or to prove exactly what part is played by each of them. The reason why all are deemed to be guilty in such cases is that presence of accomplices gives encouragement, support and protection for the persons actually committing the act.

 S 34 {S 3(5) of BNS }is only a rule of evidence and does not create any substantive offence.

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Landmark judgment on scope and applicability of S 34 of IPC

To apply Section 34 Indian Penal Code 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.

16. He has also relied on the decision in Suresh Sakharam Nangare (supra). In the said case, the Court after referring to Section 34 Indian Penal Code opined that a reading of the above provision makes it clear that to apply Section 34, 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. It further makes clear that if 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 common intention is absent, Section 34 cannot be invoked.

17. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the Appellant therein had any common intention to eliminate the deceased because the only thing against the Appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the Appellant could not be convicted in aid of Section 34 Indian Penal Code.

18. In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad MANU/SC/0048/1954 : AIR 1955 SC 216. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 Indian Penal Code and in that context ruled that:

32. ... It 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 them all: Mahbub Shah v. King Emperor MANU/PR/0013/1945 : AIR 1945 PC 118. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same 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 because there was no prior meeting of minds to form a pre-arranged plan. 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 of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor MANU/PR/0064/1924 : AIR 1925 PC 1 and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice.

33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.

19. And, again:

34. ... But to say this is no more than to reproduce the ordinary Rule about circumstantial evidence, for there is no special Rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th Edn., p. 30).

20. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability Under Sections 149 and 34 Indian Penal Code, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two Sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held:

It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 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 and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.

21. In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability Under Section 34 Indian Penal Code has ruled thus:

Section 34 Indian Penal Code fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P. MANU/SC/0078/1975 : (1975) 4 SCC 247; Maina Singh v. State of Rajasthan MANU/SC/0138/1976 : (1976) 2 SCC 827) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.

22. In Lallan Rai and Ors. v. State of Bihar MANU/SC/0998/2002 : (2003) 1 SCC 268 the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result.

23. In Goudappa and Ors. v. State of Karnataka MANU/SC/0222/2013 : (2013) 3 SCC 675 the Court has reiterated the principle by opining that Section 34 Indian Penal Code lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.

24. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 Indian Penal Code is a question of fact and is to be ascertained from the evidence brought on record. 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 fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See: Kirpal and Bhopal v. State of U.P. MANU/SC/0176/1954 : AIR 1954 SC 706). In Bharwad Mepa Dana and Anr. v. The State of Bombay MANU/SC/0040/1959 : AIR 1960 SC 289, it has been held that Section 34 Indian Penal Code is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the Section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1448 and 1452 of 2010

Decided On: 04.01.2017

Vijendra Singh and Ors. Vs. State of Uttar Pradesh

Hon'ble Judges/Coram:

Dipak Misra and Rohinton Fali Nariman, JJ.

Citation:(2017) 11 SCC129.

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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  Vs  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

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