Section 34 has the same logic as that of a game of football involving several positions which creates shared liability on those who shared common intention to commit the crime.
"Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence. Onus is on the prosecution to prove the common intention to the satisfaction of the court.
In a recent judgment of the Hon'ble Supreme Court while allowing the appeals filed by the appellants by a common judgment held "proof of common intention is required, to book a person under section 34 of IPC because there may be an offence without common intention, in which case section 34 does not get attracted.
The Bench of Justices, Sanjay Kishan Kaul and M.M. Sundresh allowed
the appeal of the appellants, who were convicted under Section 304 Part l read with Section 34. of the IPC with life sentence by the trial court and confirmed by the High Court of Punjab and Haryana.
The fact of the case is that the accused persons/appellants and two other accused (all four were friends) charged with the offence under section 304 Part I and Section 25 of the Arms Act, by the trial court in a murder case of a deceased. In the public area, friend no 1 took out a gun from his pocket and shot at the deceased when they said "what are you seeing", but prior to the statement friend no. 2 was already holding a gun and was brandishing against the deceased.
Several witnesses' evidence were recorded including the evidence of deceased's father as he saw the accused grappling with the deceased.
Thereafter, the deceased father made a complaint. He did not make any statement that appellants exhorted friend no 1 to shoot except the statement referred earlier. However under Section 161 of Criminal Procedure Code he improved his version that they instigated friend no. 1 to shoot.
All the formalities of investigation including the recovery of weapons, was completed.
The trial Court at Jalandhar convicted all the accused persons after examining 27 prosecution witnesses and 16 defense witnesses
The trial court convicted them under section 304 read with section 34 of IPC reasoning that according to the evidence of prosecution, it is not the case that where accused were waiting for the deceased, but it was the deceased who went nearer to the accused.
There was only one shot. After falling down as a result of shot, the accused did not shoot again.
It would be improbable that the accused would make a plan to commit murder in public. There was no premeditation and the incident occurred in pursuance to sudden fight. There was quarrel preceding the occurrence.
Due to the above reason, the case was brought under Exception 4 of Section 300 IPC
Appeals were filed in the High Court who concurred with the views of the trial court but did not deal with the scope of Section 34 IPC.
Therefore, the appellants in this case approached the Supreme Court in two different application, to overturn the judgment of the High Court as well as trial court.
Before going to the facts of the case, the Court deemed it appropriate to understand Section 34 and rely on the several previous judgments.
The Court opined that "Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence".
The Court also referred Section 34 having same logic as that of a game of football involving several positions such as defender, mid-fielder, striker and a keeper, which creates shared liability on those who shared common intention to commit the crime.
Also the main intendment of Section 34 is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense - Court said.
The Court also viewed that to prove the existence of common intention is the duty of prosecution. The court has to analyse and assess the evidence before implicating a person under Section 34. A mere common intention per se may not attract Section 34, sans an action in furtherance. There may also be a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later.
The Court referred the following cases :-
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
“24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.”
Mehbub Shah v. Emperor (AIR 1945 PC 148):
"....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 S. 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.
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
"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 every one 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 accused was or were done in furtherance of the common intention of all the accused or in
prosecution of the common object of the members of the unlawful assembly..."
Virendra Singh V. State of Madhya Pradesh [(2010) 8 SCC 407]
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section 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...."
Now the Court raised a question as to whether the statement " what are seeing now" by appellants would constitute an offence punishable under Section 304 Part I of IPC. The Court noted on the fact that had friend no. 2 fired at the deceased in pursuance to the statement made by the appellants, the situation would have been different. The statement made may be only to attack the deceased. The prosecution has not proved its case beyond reasonable doubt reflecting the offence committed under Section 34 IPC. Further the court observed that except the statement said to have been made, there was no other material to implicate them.
Therefore on the above reason, the Court viewed that the approach of the trial court cannot be sustained and was inclined to set aside the judgment of the High Court and trial court.
Case:
JASDEEP SINGH @ JASSU VERSUS STATE OF PUNJAB CR. APPEAL NO.1584 of 2021
(@SLP (CRL.) NO. 11816 OF 2019)
DOJ: 7.01.2022
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