Suresh
& Anr Vs. State of U.P [2001] Insc 133 (2 March 2001)
R.P.
Sethi & B.N. Agrawal Sethi, J.
Appeal (crl.) 160 of 2001
L.T.J
For Himself And Agrawal,J.
We
agree with the conclusions arrived at by Brother Thomas,J. in his lucid
judgment. However, in view of the importance of the matter, in so far as the
interpretation of Section 34 of the Indian Penal Code is concerned, we have
chosen to express our views in the light of consistent legal approach on the
subject throughout the period of judicial pronouncements. For the applicability
of Section 34 to a co-accused, who is proved to have common intention, it is
not the requirement of law that he should have actually done something to incur
the criminal liability with the aid of this section. It is now well settled
that no overt act is necessary to attract the applicability of Section 34 for a
co-accused who is otherwise proved to be sharing common intention with the
ultimate act done by any one of the accused sharing such intention.
Section
34 of the Indian Penal Code recognises the principle of vicarious liability in
the 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 pre-supposes prior concert, which requires a pre- arranged plan of
the accused participating in an offence.
Such a
pre- concert or pre-planning 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 a spur of 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.
Dominant
feature for attracting Section 34 of the Indian Penal Code (hereinafter
referred to as "the Code") is the element of participation in absence
resulting in the ultimate "criminal act". The "act"
referred to in latter 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 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. 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 to not have dissauded 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 pre-conceived result that ensued in furtherance of the common
intention. A Division Bench of the Patna High Court in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111] held that it is only when a
court with some certainty hold that a particular accused must have
pre-conceived or pre-meditated the result which ensued or acted in concert with
others in order to bring about that result, that Section 34 may be applied.
In Barendra
Kumar Ghosh vs. King Emperor [AIR 1925 PC 1] the Judicial Committee dealt with
the scope of Section 34 dealing with the acts done in furtherance of the common
intention, making all equally liable for the results of all the acts of others.
It was observed:
".......the
words of S.34 are not to be eviscerated by reading them in this exceedingly
limited sense. By S.33 a criminal act in S.34 includes a series of acts and,
further, "act" includes omissions to act, for example, an omission to
interfere in order to prevent a murder being done before one's very eyes. By
S.37, when any offence is committed by means of several acts whoever
intentionally co-operates in the commission of that offence by doing any one of
those acts, either singly or jointly with any other person, commits that
offence. Even if the appellant did nothing as he stood outside the door, it is
to be remembered that in crimes as in other things 'they also serve who only
stand and wait'. By S.38, when several persons are engaged or concerned in the
commission of a criminal act, they may be guilty of different offences by means
of that act. Read together, these sections are reasonably plain. S.34 deals
with the doing of separate acts, similar of diverse, by several persons; if all
are done in furtherance of a common intention, each person is liable for the
result of them all, as if he had done them himself, for 'that act' and 'the
act' in the latter part of the section must include the whole action covered by
'a criminal act' in the first part, because they refer to it. S.37 provides
that, when several acts are done so as to result together in the commission of
an offence, the doing of any one of them, with an intention to co-operate in
the offence (which may not be the same as an intention common to all), makes
the actor liable to be punished for the commission of the offence. S.38
provides for different punishments for different offences as an alternative to
one punishment for one offence, whether the persons engaged or concerned in the
commission of a criminal act are set in motion by the one intention or by the
other." (Emphasis supplied) Referring to the presumption arising out of
Section 114 of the Evidence Act, the Privy Council further held:
"As
to S.114, it is a provision which is only brought into operation when
circumstances amounting to abetment of a particular crime have first been
proved, and then the presence of the accused at the commission of that crime is
proved in addition; Abhi Misser v. Lachmi Narain [1900 (27) Cal.566]. Abetment
does not in itself involve the actual commission of the crime abetted. It is a
crime apart. S.114 deals with the case where there has been the crime of abetment,
but where also there has been actual commission of the crime abetted and the
abettor has been present thereat, and the way in which it deals with such a
case is this. Instead of the crime being still abetment with circumstances of
aggravation, the crime becomes the very crime abetted. The section is
evidentiary not punitory. Because participation de facto(as this case shows)
may sometimes be obscure in detail, it is established by the presumption juris
et de jure that actual presence plus prior abetment can mean nothing else but
participation.
The
presumption raised by S.114 brings the case within the ambit of S.34.
"(Emphasis
supplied) The classic case on the subject is the judgment of the Privy Council
in Mahboob Shah vs. Emperor [AIR 1945 PC 118]. Referring to Section 34 prior to
its amendment in 1870 wherein it was provided:
"When
a criminal act is done by several persons, each of such persons is liable for
that act in the same manner as if the act was done by him alone." it was
noticed that by amendment, the words "in furtherance of common intention
of all" were inserted after the word "persons" and before the
word "each" so as to make the object of Section clear. Dealing with
the scope of Section, as it exists today, it was held:
"Section
34 lays down a principle of joint liability in the doing of a criminal act. The
section does not say 'the common intention of all' nor does it say 'an
intention common to all'. Under the section, the essence of that liability is
to be found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention. To
provide 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. 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 this act or conduct or other relevant circumstances of the
case." (Emphasis supplied) A Full Bench of the Patna High Court in The
King Emperor vs. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was later
approved by the Privy Council dealt with the scope of Section 34 in extenso and
noted its effects from all possible interpretations put by various High Courts
in the country and the distinguished authors on the subject. The Court did not
agree with the limited construction given by Stephen,J. in Emperor v. Nirmal Kanta
Roy [1914 (41) Cal.1072] and held that such an interpretation, if accepted,
would lead to disastrous results. Concurring with Mookerjee,J. and giving the
section wider view Richardson,J. observed:
"It
appears to me that section 34 regards the act done as the united act of the
immediate perpetrator and his confederates present at the time and that the
language used is susceptible of that meaning. The language follows a common
mode of speech. In R. v. Salmon [1880 (6) QBD 79] three men had been
negligently firing at a mark. One of them - it was not known which - had
unfortunately killed a boy in the 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 mode of
expression may be puzzling but the sections must, I think, be construed as
enunciating a consistent principle of liability. Otherwise the result would be
chaotic.
To put
it differently, an act is done by several persons when all are principals in
the doing of it, and it is immaterial whether they are principals in the first
degree or principals in the second degree, no distinction between the two
categories being recognised.
This
view of section 34 gives it an intelligible content in conformity with general
notions. The opposing view involves a distinction dependent on identity or
similarity of act which, if admissible at all, is wholly foreign to the law,
both civil and criminal, and leads nowhere." Approving the judgments of the
Privy Council in Barendra Kumar Ghose and Mahboob Shah's cases (supra) a three
Judge Bench of this Court in Pandurang & Ors. v. State of Hyderabad [AIR
1955 SC 216] held that to attract the applicability of Section 34 of the Code
the prosecution is under an obligation to establish that there existed a common
intention which requires a pre-arranged plan because before a man can be
vicariously convicted for the criminal act of another, the act must have been
done in furtherance of the common intention of all. This Court had in mind the
ultimate act done in furtherance of the common intention.
In the
absence of a pre-arranged plan and thus a common intention even if several
persons simultaneously attack a man and each one of them by having his
individual intention, namely, the intention to kill and each can individually
inflict a separate fatal blow and yet none would have the common intention
required by the section. In a case like that each would be individually liable
for whatever injury he caused but none could be vicariously convicted for the
act of any or the other. The Court emphasised the sharing of the common
intention and not the individual acts of the persons constituting the crime.
Even at the cost of repetition it has to be emphasised that for proving the
common intention it is necessary either to have direct proof of prior concert
or proof of circumstances which necessarily lead to that inference and
"incriminating facts must be incompatible with the innocence of the
accused and incapable of explanation or any other reasonable hypothesis".
Common intention, arising at any time prior to the criminal act, as
contemplated under Section 34 of the Code, can thus be proved by circumstantial
evidence.
In Shreekantiah
Ramayya Munipalli & Anr. v. State of Bombay [AIR 1955 SC 287] this Court
held "It is true there must be some sort of preliminary planning which may
or may not be at the scene of the crime and which may have taken place long
beforehand, but there must be added to it the element of physical presence at
the scene of occurrence coupled with actual participation which, of course, can
be of a passive character such as standing by a door, provided that is done
with the intention of assisting in furtherance of the common intention of them
all and there is a readiness to play his part in the pre-arranged plan when the
time comes for him to act." (Emphasis supplied) This Court again in Takaram
Ganapat Pandare v. State of Maharashtra [AIR 1974 SC 514] reiterated that
Section 34 lays down the rule of joint responsibility for criminal act
performed by a plurality of persons and even mere distance from the scene of
crime cannot exclude the culpability of the offence. "Criminal sharing,
overt or covert, by active presence or by distant direction making out a certain
measure of jointness in the commission of the act is the essence of Section
34".
In a
case where the deceased was murdered by one of the two accused with a sharp
edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while
the other accused, his brother, without taking part stood by with a spear in
his hand to overcome any outside interference with the attainment of the
criminal act and both the accused ran away together after the murder, this
Court in Lalai alias Dindoo & Anr. v. State of U.P. [AIR 1974 SC 2118] held that these facts had a
sufficient bearing on the existence of a common intention to murder.
In Ramaswami
Ayyangar & Ors. v. State of Tamil Nadu [AIR 1976 SC 2027] this Court
declared that Section 34 is to be read along with preceding Section 33 which
makes it clear that the "act" mentioned in Section 34 includes a
series of acts as a single act. The acts committed by different confederates in
the criminal action may be different but all must in one way or the other participate
and engage in the criminal enterprise. Even a person not doing any particular
act but only standing guard to prevent any prospective aid to the victims may
be guilty of common intention. However, it is essential that in case of an
offence involving physical violence it is essential for the application of
Section 34 that such accused must be physically present at the actual
commission of crime for the purposes of facilitating accomplishment of
"criminal act" as mentioned in that section. In Ramaswami's case (supra)
it was contended that A2 could not be held vicariously liable with the aid of
Section 34 for the act of other accused on the grounds: firstly he did not
physically participate in the fatal beating administered by co-accused to the
deceased and thus the "criminal act" of murder was not done by all
the accused within the contemplation of Section 34; and secondly the
prosecution had not shown that the act of A2 in beating PW was committed in
furtherance of the common intention of all the three pursuant to a pre-arranged
plan.
Repelling
such an argument this Court held that such a contention was fallacious which
could not be accepted. The presence of those who in one way or the other
facilitate the execution of the common design itself tantamounts to actual
participation in the "criminal act". The essence of Section 34 is
simultaneously consensus of the minds of persons participating in the criminal
action to bring about a particular result. Conviction of A2 under Section
302/34 of the Code in that case was upheld.
In Rambilas
Singh & Ors. v. State of Bihar [AIR
1989 SC 1593] this Court held:
"It
is true that in order to convict persons vicariously under S.34 or S.149 IPC,
it is not necessary to prove that each and everyone of them had indulged in
over 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." (Emphasis supplied) Again a three Judge
Bench of this Court in State of U.P.
v. Iftikhar Khan & Ors. [1973 (1) SCC 512] after relying upon the host of
judgments of Privy Council and this Court, held that for attracting Section 34
it is not necessary that any overt act must be done by a particular accused.
The section will be attracted if it is established that the criminal act has
been done by one of the accused persons in furtherance of the common intention.
If this is shown, the liability for the crime may be imposed on any one of the
person in the same manner as if the act was done by him alone. In that case on
proof of the facts that all the four accused persons were residents of the same
village and accused Nos.1 and 3 were brothers who were bitterly inimical to the
deceased and accused Nos.2 and 4 were their close friends, accused Nos.3 and 4
had accompanied the other two accused who were armed with pistols; all the four
came together in a body and ran away in a body after the crime coupled with no
explanation being given for their presence at the scene, the Court held that
the circumstances led to the necessary inference of a prior concert and
pre-arrangement which proved that the "criminal act" was done by all
the accused persons in furtherance of their common intention.
In
Krishnan & Anr. v. State of Kerala [JT 1996 (7) SC 612] this Court even
assuming that one of the appellants had not caused the injury to the deceased,
upheld his conviction under Section 302/34 of the Penal Code holding:
"Question
is whether it is obligatory on the part of the prosecution to establish
commission of overt act to press into service section 34 of the Penal Code. It
is no doubt true that court likes to know about overt act to decide whether the
concerned person had shared the common intention in question. Question is
whether overt act has always to be established? I am of the view that
establishment of a overt act is not a requirement of law to allow section 34 to
operate inasmuch this section gets attracted when "a criminal act is done
by several persons in furtherance of common intention of all". What has to
be, therefore, established by the prosecution is that all the concerned persons
had shared the common intention. Court's mind regarding the sharing of common
intention gets satisfied when overt act is established qua each of the accused.
But then, there may be a case where the proved facts would themselves speak of
sharing of common intention: res ipsa loquitur." In Surender Chauhan v.
State of M.P. [2000 (4) SCC 110] this Court held that apart from the fact that
there should be two or more accused, two factors must be established –
(i) common
intention and (ii) participation of the accused in the commission of the
offence. If a common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it involves
vicarious liability. Referring to its earlier judgment this Court held:
"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. 1976 (3) SCC 779]. 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 1999 (8) SCC 428).
To 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."
For
appreciating the ambit and scope of Section 34, the preceding Sections 32 and
33 have always to be kept in mind. Under Section 32 acts include illegal
omissions. 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. Similarly the distinction
of the words used in Section 10 of the Indian Evidence Act "in reference
to their common intention" and the words used in Section 34 "in
furtherance of the common intention" is significant.
Whereas
Section 10 of the Indian Evidence Act deals with the actions done by
conspirators in reference to the common object, Section 34 of the Code deals
with persons having common intention to do a criminal act.
In
State through Superintendent of Police, CBI/SIT vs. Nalini & Ors. [1995 (5)
SCC 253] Brother Thomas,J. in his judgment dealt with such a proposition in paras
107 and 108.
However,
in this case on facts, the prosecution has not succeeded in proving that A3 Pavitri
Devi shared the common intention with the other two accused persons, one of
whom was her husband and the other her brother. It has come in evidence that
when the witnesses reached on the spot, they found the said accused standing on
the road whereas the other accused were busy committing the crime inside the
house. The exaggerated version of PW3 regarding the participation of Pavitri Devi
by allegedly catching hold of his mother's hair cannot be accepted as PWs 1 and
2 have not supported the aforesaid version. The High Court was, therefore,
justified in holding that Pavitri Devi, A3 did not share the common intention
with the other accused persons. By her mere presence near the place of
occurrence at or about the time of crime in the absence of other evidence,
direct or circumstantial, cannot hold her guilty with the aid of Section 34.
But in case the prosecution had succeeded in proving on facts of her sharing of
common intention with A1 and A2, she could not be acquitted of the charge
framed against her only on the ground that she had actually not done any overt
act. The appeal of the State filed against Pavitri Devi has no merit and has
thus rightly been dismissed by Brother Thomas,J.
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