Law Web: Landmark Judgment on S 34 of IPC

To invoke Section 34 IPC, it must be established that the

criminal act was done by more than one person in furtherance of

common intention of all. It must, therefore, be proved that:- (i) there was

common intention on the part of several persons to commit a particular

crime and (ii) the crime was actually committed by them in furtherance

of that common intention. The essence of liability under Section 34 IPC

is simultaneous conscious mind of persons participating in the criminal

action to bring about a particular result. Minds regarding the sharing of

common intention gets satisfied when an overt act is established qua

each of the accused. Common intention implies pre-arranged plan and

acting in concert pursuant to the pre-arranged plan. Common intention

is an intention to commit the crime actually committed and each accused

person can be convicted of that crime, only if he has participated in that

common intention.

11. The classic case on the subject is the judgment of the Privy

Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was

held as under:-

“…Section 34 lays down a principle of joint liability in the doing of a

criminal act. The section does not say “the common intentions of

all” nor does it say “an intention common to all”. Under the section,

the essence of that liability is to be found in the existence of a

common intention animating the accused leading to the doing of a

criminal act in furtherance of such intention. To invoke the aid of

Section 34 successfully, it must be shown that the criminal act

complained against was done by one of the accused persons in the

furtherance of the common intention of all; if this is shown, then

liability for the crime may be imposed on any one of the persons in

the same manner as if the act were done by him alone. This being

the principle, it is clear to their Lordships that common intention

within the meaning of the section implies a pre-arranged plan, and

to convict the accused of an offence applying the section it should be

proved that the criminal act was done in concert pursuant to the

pre-arranged plan. As has been often observed, it is difficult if not

impossible to procure direct evidence to prove the intention of an

individual; in most cases it has to be inferred from his act or

conduct or other relevant circumstances of the case.”(Underlining

added)

Reiterating the above principles laid down by the Privy Council in

Mahbub Shah’s case, in Shankerlal Kacharabhai and Others vs. State ofPage 7

Gujarat, AIR 1965 SC 1260, this Court held that the criminal act

mentioned in Section 34 IPC is the result of the concerted action of

more than one person and if the said result was reached in furtherance

of the common intention, each person is liable for the result as if he

had done it himself.

12. In Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC

305, this Court held as under:-

“12. … As a general principle in a case of criminal liability it is the

primary responsibility of the person who actually commits the

offence and only that person who has committed the crime can be

held guilty. By introducing Section 34 in the Penal Code the

legislature laid down the principle of joint liability in doing a

criminal act. The essence of that liability is to be found in the

existence of a common intention connecting the accused leading to

the doing of a criminal act in furtherance of such intention. Thus, if

the act is the result of a common intention then every person who

did the criminal act with that common intention would be

responsible for the offence committed irrespective of the share which

he had in its perpetration. Section 34 IPC embodies the principle of

joint liability in doing the criminal act based on a common intention.

Common intention essentially being a state of mind it is very difficult

to procure direct evidence to prove such intention. Therefore, in

most cases it has to be inferred from the act like, the conduct of the

accused or other relevant circumstances of the case. The inference

can be gathered from the manner in which the accused arrived at

the scene and mounted the attack, the determination and concert

with which the attack was made, and from the nature of injury

caused by one or some of them. The contributory acts of the persons

who are not responsible for the injury can further be inferred from

the subsequent conduct after the attack. In this regard even an

illegal omission on the part of such accused can indicate the sharing

of common intention. In other words, the totality of circumstances

must be taken into consideration in arriving at the conclusion

whether the accused had the common intention to commit an

offence of which they could be convicted. (See Noor Mohammad

Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696)”

(Underlining added)

13. Common intention is seldom capable of direct proof, it is

almost invariably to be inferred from proved circumstances relating to

the entire conduct of all the persons and not only from the individual

act actually performed. The inference to be drawn from the manner of

the origin of the occurrence, the manner in which the accused arrived

at the scene and the concert with which attack was made and from the

injuries caused by one or some of them. The criminal act actually

committed would certainly be one of the important factor to be taken

into consideration but should not be taken to be the sole factor.

14. Under Section 34 IPC, a pre-concert in the sense of a

distinct previous plan is not necessary to be proved. The common

intention to bring about a particular result may well develop on the spot

as between a number of persons, with reference to the facts of the case

and circumstances of the situation. The question whether there was

any common intention or not depends upon the inference to be drawn

from the proving facts and circumstances of each case. The totality of

the circumstances must be taken into consideration in arriving at the

conclusion whether the accused had a common intention to commit an

offence with which they could be convicted.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 502 OF 2007

BALU @ BALA SUBRAMANIAM Vs STATE (U.T. OF PONDICHERRY)

J U D G M E N T

R. BANUMATHI, J.

Dated;October 16, 2015

This criminal appeal is filed against the judgment dated

15.07.2005 passed by the High Court of Judicature at Madras in

Criminal Appeal No.113 of 1999, whereby the High Court, while

maintaining the sentence, modified the conviction recorded by the trial

court qua the accused namely Giri-accused No.1, Seenu @

Srinivasan-accused No.2, Balu @ Bala Subramaniam (Appellant

No.1-Accused No.4) and Raja @ Kotti Raja (Appellant No.2-Accused No.5)

as conviction under Section 302 read with Section 34 IPC, Section 326

read with Section 34 IPC and Section 324 read with Section 34 IPC. The

High Court acquitted Partheeban-accused No.3 of all the charges.

2. Briefly stated case of the prosecution is that one Natarajan

had a quarrel with Seenu @ Srinivasan-accused No.2 in respect of a chitPage 2

transaction and Kannan-PW2 supported Natarajan and fight ensued

between Seenu-accused No.2 and Kannan-PW2 about a week prior to the

date of incident i.e. 18.05.1997. In the forenoon, on the day of the

incident i.e. on 18.05.1997, Kannan-PW2, Ramesh (deceased) and one

Kamalakannan went to the accused in order to settle the dispute

amicably. However, during settlement talks, fight ensued between PW-2

and Seenu and Balu attempted to beat PW-2 and Ramesh intervened and

beat Balu. Thereafter both parties left the place stating that they could

resume settlement talks in the evening. On the evening at about 6.30

P.M., Kannan-PW2, Saravanan-PW3, Suresh-PW5 and Arumugam-PW6

accompanied by Nagarajan went to Sakthi Nagar at Uruliyanpet and

were having the settlement talks with the accused. On the mid way, the

accused persons were informed that their friend one Anand is being

badly cut by the complainant party and the accused questioned them as

to how they could attack their man even when settlement talks were

going on. So saying, the accused ran towards the place and on seeing

PW-1 and Ramesh coming in the opposite direction, Giri-accused No.1

allegedly shouted that Ramesh supports Kannan and that he must be

killed and accused No.1 and 2 cut Ramesh with knives on his head and

chased him. Partheeban and appellants beat Ramesh on the face with

sticks, Giri-accused No.1 again cut Ramesh with knife and Ramesh fell

down. When PW-2 intervened to save Ramesh, PW-2 was attacked and

he sustained injury on his left hand and PW-2 ran away from the place.

Accused No.1 and 3 chased PW-3 and accused No.2 assaulted and

inflicted cut injuries on the head of PW-3. They also inflicted cut injuryPage 3

on Muruganathan-PW4, who was taking bath near a water tap. The

witnesses ran away from the place and came back only after some time

and they were informed that injured Ramesh was removed from the

scene of occurrence by a police constable.

3. Based on the complaint lodged by PW-1, a case was registered

against the accused in Crime No.152/1997 under Sections 147, 148, 307

read with Section 149 IPC. Ramesh and other injured witnesses were

examined by PW-11-Dr. Baskaran in General Hospital, Pondicherry. On

21.05.1997, Ramesh succumbed to injuries and the case was altered to

Section 302 IPC. After due investigation, chargesheet was filed against all

the five accused.

4. To substantiate the charges, onbehalf of the prosecution,

fifteen witnesses were examined. The trial court held that the

prosecution has established guilt of the accused beyond reasonable

doubt and convicted all the five accused under Section 148 IPC and

Section 302 read with Section 149 IPC and various other offences and

sentenced them to undergo imprisonment for life and also imposed

sentences for other offences. Aggrieved by the verdict of conviction,

accused preferred appeal before the High Court. Vide impugned

judgment dated 15.07.2005, High Court modified the conviction as

aforesaid in para (1) and partly allowed the criminal appeal. Aggrieved,

the appellants have preferred this appeal.

5. Learned counsel for the appellants contended that the

testimony of PW-2 who is an injured witness is not believable as firstly all

the injured witnesses were examined soon after the incident inPage 4

Government Hospital and they deposed that they were assaulted by

unknown persons. However, PW-2, who was examined after three days,

has stated that he was assaulted by accused No.1-Giri and not attributed

any overt act to the appellants-accused No.4 and 5. It was further

submitted that even as per the prosecution case, the occurrence was due

to a sudden fight and that when peace talks were going on between the

complainant and the accused party and on being informed that one

Anand belonging to accused party was cut by the complainant party,

fight ensued between two groups and as the act was not committed in

furtherance of the common intention, the High Court erred in convicting

the appellants under Section 302 read with Section 34 IPC.

6. Taking us through the evidence onbehalf of the respondent,

learned Senior Counsel Mr. V. Kanagaraj submitted that on exhortation

by Giri-accused No.1, the appellants and other accused attacked

deceased-Ramesh and injuries were caused in furtherance of common

intention of all the accused would be liable under Section 302 read with

Section 34 IPC for the act of committing murder of Ramesh and the

appellants have been rightly convicted by the courts below.

7. We have carefully considered the rival contention and perused

the impugned judgment and material on record.

8. Prosecution has examined fifteen witnesses out of which PWs

2 to 4 are injured witnesses. PW-3 Saravanan, PW-4 Muruganathan

(nephew of accused No.3) did not support the prosecution case and

prosecution thus relied upon the evidence of PW1-Murgan and

PW5-Suresh and injured witness PW2-Kannan. In his evidence, PW-1Page 5

stated that accused No.1 and 2 attacked Ramesh on his head with knives

and accused No. 3 to 5 attacked Ramesh on his face by stick and

Ramesh fell down on the road. Suresh-PW5 had also stated that the

appellants attacked Ramesh by stick. PW2-Kannan, injured witness

stated that accused No.1-Giri and accused No.2- Seenu attacked Ramesh

by knives on his head. So far as the overt act of the appellants,

PW2-Kannan stated that Accused No. 4 and 5 took the wooden stick

from a bullock cart standing nearby. PW-2 did not say anything about

the overt act of the appellants. Though the appellants denied their

presence at the place of incident and pleaded that a false case has been

foisted against them, consistent version of PWs 1 and 5 establish

presence of the appellants and that they attacked Ramesh with sticks.

Presence of the appellants and that they were armed with sticks is also

substantiated by the evidence of injured witness Kannan-PW2. Findings

recorded by the courts below that the appellants attacked Ramesh with

sticks is unassailable.

9. In the facts and circumstances of the case, whether the High

Court was right in finding that the appellants acted in furtherance of

common intention in committing murder of Ramesh and whether the

High Court was right in attributing constructive liability to the appellants

while convicting them under Section 302 read with Section 34 IPC is the

point falling for consideration.

10. To invoke Section 34 IPC, it must be established that the

criminal act was done by more than one person in furtherance of

common intention of all. It must, therefore, be proved that:- (i) there wasPage 6

common intention on the part of several persons to commit a particular

crime and (ii) the crime was actually committed by them in furtherance

of that common intention. The essence of liability under Section 34 IPC

is simultaneous conscious mind of persons participating in the criminal

action to bring about a particular result. Minds regarding the sharing of

common intention gets satisfied when an overt act is established qua

each of the accused. Common intention implies pre-arranged plan and

acting in concert pursuant to the pre-arranged plan. Common intention

is an intention to commit the crime actually committed and each accused

person can be convicted of that crime, only if he has participated in that

common intention.

11. The classic case on the subject is the judgment of the Privy

Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was

held as under:-

“…Section 34 lays down a principle of joint liability in the doing of a

criminal act. The section does not say “the common intentions of

all” nor does it say “an intention common to all”. Under the section,

the essence of that liability is to be found in the existence of a

common intention animating the accused leading to the doing of a

criminal act in furtherance of such intention. To invoke the aid of

Section 34 successfully, it must be shown that the criminal act

complained against was done by one of the accused persons in the

furtherance of the common intention of all; if this is shown, then

liability for the crime may be imposed on any one of the persons in

the same manner as if the act were done by him alone. This being