# Vinod & Ors v. State of U.P

- **Citation:** (2023) 7 ILRA 426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-24
- **Case number:** Criminal Appeal No. 559 of 1996
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-ors-v-state-of-u-p-50355
- **Pages:** 20

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 302/34, 307/34 & 323/34 -
Appeal against conviction - Rigorous
imprisonment - Indian Evidence Act,
1872 - Section 145 - Code of Criminal
Procedure, 1973 - Sections 161, 313 - As
per prosecution, PW-1 was cousin of
PW-2 and P.W.-3 - All three have their
separate agricultural land as evident
from evidence of PW2 - Accused wished
to purchase agricultural land but it was
purchased
by
PW-2
-
Strained
relationship was only against PW-2, but
he St.d in cross examination that neither
anyone exhorted to beat him nor anyone
has beaten him - Further St.d appellant
no. 1 spoken to take revenge - According
to him, "revenge" mean appellant no. 1
will not allow crop to cut - Dispute arose
between them on issue of cutting of crop
- Motive for commission of offence
appears doubtful - Nothing on record
show that apart from allegation of
strained relationship, there was any
other cause - PW-1 in cross-examination
St.d PW-2 was present on spot when
incident occurred and Rekhpal Singh not
fired at PW-2 and none beaten PW-2 and
appellant no. 1 exhorted to beat - PW-3
assigned role of exhortation to appellant
no. 1 who exhorted to beat to take
revenge
-
No
exhortation
to
kill
deceased
has
been
alleged
against
appellants. (Para 35, 36, 37)

No
evidence
to
establish
prior
conspiracy formed either prior to or in
course of crime, to kill deceased -
Evidence of PW-1, PW-2 and PW-3 are
consistent to effect that simple injuries
by lathi was caused by appellant no.1 on
right arm of PW-3 and appellant no.2
caused simple injury on left arm of PW-3
and on leg of injured Sanwaliya by lathi
and injuries proved by PW-4. (Para 38,
51)

Appeal partly allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,899 of 67,295. This is a partial read: ask again with offset=39899 for what follows._

426 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 28.8.2016 and summoning order
dated 28.9.2016 are hereby quashed.

22. The application is allowed.
----------
(2023) 7 ILRA 426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.07.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 559 of 1996

Vinod & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri G.S. Chaturvedi, Sri Anurag Shukla

Counsel for the Respondent:
G.A., Sri Jitendra Shanker Pandey, Ms. Seema
Singh

Criminal Law - Indian Penal Code,1860 -
Sections 302/34, 307/34 & 323/34 -
Appeal against conviction - Rigorous
imprisonment - Indian Evidence Act,
1872 - Section 145 - Code of Criminal
Procedure, 1973 - Sections 161, 313 - As
per prosecution, PW-1 was cousin of
PW-2 and P.W.-3 - All three have their
separate agricultural land as evident
from evidence of PW2 - Accused wished
to purchase agricultural land but it was
purchased
by
PW-2
-
Strained
relationship was only against PW-2, but
he St.d in cross examination that neither
anyone exhorted to beat him nor anyone
has beaten him - Further St.d appellant
no. 1 spoken to take revenge - According
to him, "revenge" mean appellant no. 1
will not allow crop to cut - Dispute arose
between them on issue of cutting of crop
- Motive for commission of offence
appears doubtful - Nothing on record
show that apart from allegation of
strained relationship, there was any
other cause - PW-1 in cross-examination
St.d PW-2 was present on spot when
incident occurred and Rekhpal Singh not
fired at PW-2 and none beaten PW-2 and
appellant no. 1 exhorted to beat - PW-3
assigned role of exhortation to appellant
no. 1 who exhorted to beat to take
revenge
-
No
exhortation
to
kill
deceased
has
been
alleged
against
appellants. (Para 35, 36, 37)

No
evidence
to
establish
prior
conspiracy formed either prior to or in
course of crime, to kill deceased -
Evidence of PW-1, PW-2 and PW-3 are
consistent to effect that simple injuries
by lathi was caused by appellant no.1 on
right arm of PW-3 and appellant no.2
caused simple injury on left arm of PW-3
and on leg of injured Sanwaliya by lathi
and injuries proved by PW-4. (Para 38,
51)

Appeal partly allowed. (E-13)

List of Cases cited:

1. Malkhan Singh Vs St. (1975) 3 SCC 311 (Para 7)

2. Parasa Raja Manikyala Rao & anr. Vs St. of
A.P. (2003) 12 SCC 306 (Para 11 and 12)

3. Suresh Vs St. of U.P., (2001) 3 SCC 673, (Para
24 and 40)

4. Lallan Rai Vs St. of Bihar, (2003) 1 SCC 268,
(Para 22)

5. Chhota Ahirwar Vs St. of M.P., (2020) 4 SCC
126, (Para 24)

6. Barendra Kumar Ghosh Vs King Emperor, AIR
1925 PC 1

7. Mahbub Shah Vs Emperor, AIR 1945 PC 118

8. Rambilas Singh & ors. Vs St. of Bihar, (1989)
3 SCC 605, (Para 7)

9. Krishnan & anr.Vs St. of Kerala, (1996) 10
SCC 508, (Para 15)
7 All. Vinod & Ors. Vs. State of U.P.
427
10. Surendra Chauhan Vs St. of M.P., (2000) 4
SCC 110, (Para 11)

11. Gopi Nath @ Jhallar Vs St. of U.P. ,(2001) 6
SCC 620, (Para 8)

12. Ramesh Singh @ Photti Vs St. of A.P.,
(2004) 11 SCC 305, (Para 12)

13. Nand Kishore Vs St. of M.P., (2011) 12 SCC
120, (Para 20 to 23)

14. Shyamal Ghosh Vs St. of W. B.l, (2012) 7
SCC 646, (Para 87)

15. Jasdeep Singh @ Jassu Vs The St. of Pun.,
(2022) 2 SCC 545 (Para 19 to 27)

16. Gulab Vs St. of U. P., (2022) 12 SCC 677
(Para 20, 23, 27.1, 27.2, 27.3, 27.4 and 28)

17. Nagaraja Vs St. of Karn., (2008) 17 SCC 277
(Para 18 and 19)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1.

Heard
Sri
Gopal
Swaroop
Chaturvedi,
learned
Senior
Advocate
assisted by Sri Anurag Shukla, learned
counsel for the appellant Nos.1 and 2, Smt.
Manju Thakur, learned A.G.A. for the
opposite party/ State and Sri Jitendra
Shankar Pandey, learned counsel for the
informant.

2. This appeal has been filed praying
to set aside the judgment and order dated
09.02.1996 in Session Trial No.167 of 1993
passed by the Sessions Judge, Mathura
convicting
the
accused
Rekhpal
for
offences under Sections 302, 307/34 and
323/34 I.P.C., accused Vinod for offences
under Sections 302/34, 307/34 and 323
I.P.C. and the accused persons Pramod and
Manoj under Sections 302/34, 307/34 and
323/34 I.P.C. The accused Rekhpal had
separately filed a Criminal Appeal No.575
of 1996 (Rekhpal vs. State of U.P.), which
was abated by order dated 03.04.2019 on
account of his death. Present criminal
appeal has been filed by three accused
persons namely Vinod son of Rekhpal,
Pramod son of Ragghi @ Raghubir and
Manoj son of Natthi. During pendency of
the present appeal, the accused appellant
No.3 Manoj died and as such by order
dated 09.12.2019, the appeal was abated
qua the accused appellant Manoj. Thus, the
present appeal survives and is being
pressed by learned counsel for the appellant
only for the appellant Nos.1 and 2, namely
Vinod son of Rekhpal and Pramod son of
Ragghi @ Raghubir.

Facts:-

3. Briefly stated facts of the present
case are that according to the prosecution,
on 17.10.1992 at about 03:00 P.M. the
injured eyewitness-PW-1 Bhikampal Singh
son of Raj Pal Singh, the deceased Om
Prakash, the injured eyewitnesses PW-2
Shespal Singh son of Sanwal Singh and the
injured eyewitnesses PW-3 Munesh Pal @
Muniya son of Sanwal Singh were
returning to their homes after working on
their respective agricultural fields and when
they reached on public way near the
agricultural land of one Jimipal, then the
accused Rekhpal with DBBL gun, his
relative Manoj son of Natthi with countrymade pistol, Pramod son of Raghubir @
Ragghi with country-made pistol and lathi
and Vinod son of Rekhpal came on a redcolour bullet motorcycle which was being
driven by the accused Vinod son of
Rekhpal. Motorcycle was stopped near the
aforesaid victims. Accused Vinod exhorted
to take revenge and to beat. Pramod started
beating Sanwaliya and when the victims
ran to save Sanwaliya, then Vinod snatched
country-made pistol from Pramod and fired
428 INDIAN LAW REPORTS ALLAHABAD SERIES
at Munesh Pal @ Muniya. Subsequently
Rekhpal fired with his DBBL gun at the
back of Om Prakash. Consequently Om
Prakash died on spot. Hearing the fire
sound when people started coming on the
spot, all the four accused persons fled
away.

4. In support of the case, the prosecution
examined
three
eye-witnesses,
namely
Bhikampal Singh PW-1, Shespal Singh PW-2
and Munesh Pal @ Muniya PW-3. Formal
witnesses, i.e. PW-4 Dr. D.S. Verma who
medically examined the injuries of Munesh Pal
son of Sanwal Singh, PW-5 Investigating
Officer Amarjit Singh, S.H.O. Narhauli,
Mathura, PW-6 Head Constable Ramesh
Chandra who entered the First Information
Report, P.W.-7 Second Investigating Officer Sri
Umesh Kumar Singh, S.H.O. P.S. Kagarol Agra
and P.W.-8 Dr. R.C. Sharma who conducted
postmortem on the body of Om Prakash
(deceased), were examined by the prosecution.
Thus,
the
prosecution
examined
three
eyewitnesses and five formal witnesses.
Statements of accused persons under Section
313, Cr.P.C. were recorded. From the defence
side, three witnesses i.e. DW-1 Dr. R.B. Sharma
who examined injuries of the accused persons
Rekhpal Singh and Vinod, DW-2 Matindra
Bhardwaj, surgeon who examined injuries of
Shakuntala wife of Rekhpal Singh and DW-3
Ladan Singh, were examined. Learned Trial
Court heard the matter and convicted all the
four accused persons, namely Rekhpal Singh,
Vinod,
Pramod
and
Manoj
awarding
punishment as mentioned in the impugned
judgment
and
order
dated
09.02.1996.
Aggrieved, the appellants herein have filed the
present appeal.

Submissions:-

5. Learned counsel for the appellants
submits as under:-

(i) There is complete absence of
motive. The real incident was that as stated
by the accused Rekhpal Singh in his
statement dated 24.02.2005 under Section
313 Cr.P.C. PW-1, PW-2 and PW-3 are not
eyewitnesses. No injury was received from
country-made pistol by PW-1, PW-2 or
PW-3. The evidence of PW-1, PW-2 and
PW-3 are inconsistent.

(ii) The prosecution has completely
failed to prove common intention for
commission of the alleged offence under
Sections 302/307/34 I.P.C. In the absence
of common intention, the accused appellant
Nos.1 and 2 cannot be convicted under
Section 302 or 307 I.P.C.

(iii) The entire case of the prosecution
is based on falsehood and the appellants
have been falsely implicated. The evidence
of PW-1, 2 and 3 does not prove common
intention.

(iv) The prosecution has completely
failed to explain injuries received by the
accused Rekhpal Singh, Vinod and one
Shakuntala, wife of Rekhpal Singh, which
is fatal to the prosecution case.
(v) No case under Section 307 I.P.C. has
been made out.

6. Learned A.G.A. supports the
impugned judgment and order passed by
the Trial Court.

7. Learned counsel for the informant
submits that the motive for the offence
committed by the accused was that the PW2 purchased a land about a year before the
date of incident, which the accused persons
were willing to purchase and Rekhpal
objected to the mutation proceedings with
respect to that land. He further submits that
the prosecution has established his case
beyond reasonable doubt and as such, the
impugned judgment and order requires no
interference.
7 All. Vinod & Ors. Vs. State of U.P.
429

Discussion and Findings:-

8. We have carefully considered the
submissions of the learned counsels for the
parties and perused the record of the
appeal.

9. The eyewitness PW-1 Bhikampal Singh
and the deceased Om Prakash are stated to
be real brothers. The eyewitnesses PW-2
Shespal Singh son of Sanwal Singh is the
cousin of the PW-3. Munesh Pal @ Muniya
son of Sanwaliya and is stated to be an
injured eyewitness. As per first information
report, the first injury was caused to
Sanwaliya, who has not been examined by
the prosecution. Thus, according to the
prosecution in the incident in question, Om
Praksh died and Munesh Pal @ Muniya
and Sanwal Singh (Sanwaliya) were
injured, who were examined in Civil
Dispensary Baldeo on 17.10.1992 by the
PW-4 Dr. D.S. Verma and the injuries
found were as under:

Injuries of Muneshpal @ Muniya:-

"1. Lacerated wound 2"x1/10" bone
deep over left of head 3-3/4 above from the
left ear.

2. Abraded contusion 1-1/4"x-1/4"
over left foreamm outer middle part.

3. Abrasion 1-1/2"x-1/2" over right
arm lower outer part.

Injuries of Sanwaliya:-

Contusion 1 1/2 ́ ́ x 1/2 ́ ́ over left leg
front middle part.

10. The accused persons Rekhpal
Singh, Vinod and Manoj were arrested on
the day of incident i.e. on 17.10.1992 at
about 06:30 P.M. by the Investigating
Officer SI Amarjit Singh without any
resistance from the accused persons and
one licensed DBBL gun from Rekhpal
Singh and one twelve bore country-made
pistol allegedly from the accused Vinod and
certain cartridges were recovered from
them. One wooden stick (danda) in length
about
four
balista,
four
angul
was
recovered from the accused Manoj. Bullet
motorcycle bearing registration No.UHL
5211 was also recovered from them on the
same day about 06:30 P.M. The accused
persons were brought to police station. In
his evidence in cross-examination, the PW6 has clearly admitted that the injuries of
the accused Rekhpal Singh were entered in
the GD in presence of the Investigating
Officer and Daroga at the police station. He
stated that injuries of Rekhpal Singh were
simple and as such he was not sent for
medical examination, although the accused
persons Rekhpal Singh and Vinod were
medically
examined
at
the
District
Hospital, Mathura by DW-1 Dr. R.B.
Sharma, Medical Officer and the wife of
the accused Rekhpal Singh, i.e. Smt.
Shakuntala was examined on 22.10.1992 at
the District Hospital, Mathura by DW-2 Dr.
Matindra Bhardwaj, Surgeon. As per
medical examination report, the injuries of
the accused persons Rekhpal Singh, Vinod
and Shakuntala were as under:-

Injuries of the accused Rekhpal:-

1. Scabbed abrasion 2cm x1.5cm on
outer aspect of left forearm 4 cm above
wrist joint. The scab is firm.

2. Scabbed abrasion 2, cmx1.5cm on
front of left leg. in lower 2/3.

3. Lacerated wound-1 cm x0. 3cm x
skin deep on front of right leg surrounded
by abrasion in the size of 4 cm x 2 cm in
lower 2/3 of front of right leg.

4. Abrasion 1 cm x 1cm on medial
aspect of right leg 3 cm above the ankle joint.

Injuries of the accused Vinod:-
430 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Abrasion in the area of 2cm x 1-5cm
on front of right shoulder. The seat is firm
and dried up.

2. Linear abrasion 1.5cm long on
medial aspect of right elbow joint.

3. Laceration with firm no dried up
seat 1.5cm x 1 cm left side back 3 cm above
and liberaly from iliac crest.

4. Abrasion 1 5 cmx 1/2cm on front of
right knee joint region.

Injuries of Shakuntala:-

1. A traumatic swelling at the dictal
part of left forearm on ulna aspect size 3cm
2.5cm. Colour is deep brown.

2. A traumatic swelling at the lateral
aspect of left elbow joint 4cm x 3cm.
Colour is deep brown.

3. An abraded contusion with scab
formation in the back of lower part of left
chest size 6cm x2.5cm. Colour is deep
brown.

4. An abraded contusion with scap
formation on the back of lower part of right
chest size 4cm x 2cm Colour is deep brown.

11. The DW-1 and DW-2, both have
proved the injuries of the aforesaid three
accused persons and opined the injuries to
be simple.

12. The injuries of PW-3 Munesh Pal
@ Muniya and one Sanwaliya were proved
by PW-4 Dr. D.S. Verma who opined that
injury Nos.2 and 3 of Munesh Pal @
Muniya are simple caused by friction or by
blunt weapon and the injury No.1 needs
observation. In his evidence, he further
stated that the injury Nos.1 and 2 of
Munesh Pal @ Muniya are possible by
lathi. He stated that injury No.3 may be
caused by rubbing of a bullet but in his
cross-examination, he admitted that this
injury cannot be caused by pellets and this
injury may be self made. With regard to the
injuries of Sanwal Singh, he stated that the
injury is simple caused by blunt object.
Thus, the case of the prosecution that the
accused Vinod fired at Munesh Pal @
Muniya from country-made pistol of twelve
bore is not corroborated with medical
report. Any injury caused by a twelve bore
country-made pistol was neither found on
the body of Munesh Pal @ Muniya nor it
could be proved. Thus, the use of countrymade pistol by the accused Vinod to cause
injury to Munesh Pal @ Muniya son of
Sanwaliya could not be proved by the
prosecution.

13. The postmortem on the body of the
deceased Om Prakash was conducted by
PW-8 Dr. R.C. Sharma on 18.10.1992 at
12'O clock and following ante-mortem
injuries were found by the doctor on the
body of the deceased Om Prakash:

1. Multiple fire arm wounds in an area
of 5. 5. cm x 7cm (five half x seven) of entry
(size varying 1.5cmx 1cm to 3. 5cm x 2 cm
on the back of chest (scapular wall just
infront of scapular region below shoulder
on top and 10 cm lateral (lft) from midline
and back, bone (total number of wounds
five including the five one noted above.

Metallic pellets five in number were
also recovered from the back of chest wall
on right side of scapular region upper part
of chest.

It was opined by the doctor that death
might have taken place about one day before
and he found pasty food in the intestines. It
has also been opined by the doctor that the
death of the deceased had taken place on
account of shock and haemorrhage on
account of ante mortem injuries.

14. The postmortem report was
proved by PW-8 who in his cross-
7 All. Vinod & Ors. Vs. State of U.P.
431
examination, has also opined that weapon
would have been fired from a distance of
more than twelve feet. He also stated that
five large pellets (exhibits 23 to 27) were
found from the body of the deceased. He
also stated that there was no blackening and
the weapon would have been fired from the
backside of the deceased.

15. In his evidence in crossexamination, the PW-5 has stated that in
the site plan, he has not shown the place
from where gun was fired and whether the
blood was found on the earth. He also
stated that he has not mentioned in the site
plan regarding blood found on the earth. He
stated that he has not sent the gun and
cartridges
to
ballistic
expert
for
examination. The DW-3 Head Constable
Ladan Singh, Sadar Malkhana, Mathura has
stated that there is no entry in the malkhana
register for sending the recovered gun to
ballistic
expert
for
examination.
No
ballistic expert report with regard to the
gun and cartridges recovered were filed by
the prosecution during trial.

Section 34: Common Intention:-

16. Section 34 of the I.P.C. reads as
under:

"34. Acts done by several persons in
furtherance of common intention.-When
a criminal act is done by several persons in
furtherance of the 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."

17. In the case of Malkhan Singh vs.
State (1975) 3 SCC 311 (Para-7), Hon'ble
Supreme Court held that no vicarious
liability under Section 34 of the I.P.C. can
be fastened on accused for the shot fired by
another accused to kill the deceased in the
absence
of
furtherance
of
common
intention shared between the accused
inasmuch as intention to fire was not
shared.

18. In the case of Parasa Raja
Manikyala Rao And Anr vs State Of A.P.
(2003) 12 SCC 306 (Paras 11 & 12),
Hon'ble Supreme Court explained the
meaning of "common intention" with
reference to Section 34 I.P.C. and held as
under:-

"11.The Section really means that if
two or more persons intentionally do a
common thing jointly, it is just the same as
if each of them had done it individually. It
is a well recognized canon of criminal
jurisprudence that the Courts cannot
distinguish between co- conspirators, nor
can they inquire, even if it were possible as
to the part taken by each in the crime.
Where parties go with a common purpose
to execute a common object each and
every person becomes responsible for the
act of each and every other in execution
and
furtherance
of
their
common
purpose; as the purpose is common, so
must be the responsibility. All are guilty of
the principal offence, not of abetment
only. ...................... The participation
need not in all cases be by physical
presence. In offences involving physical
violence, normally presence at the scene
of offence may be necessary, but such is
not the case in respect of other offences
when the offence consists of diverse acts
which may be done at different times and
places. The physical presence at the scene
of offence of the offender sought to be
rendered liable under this Section is not
one of the conditions of its applicability in
every case. Before a man can be held
liable for acts done by another, under the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of this Section, it must be
established that (i) there was common
intention in the sense of a pre-arranged
plan between the two, and (ii) the person
sought to be so held liable had participated
in some manner in the act constituting the
offence. Unless common intention and
participation are both present, this Section
cannot apply.
12. "Common intention" implies prearranged plan and acting in concert
pursuant to the pre-arranged plan. 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.
Though common intention may develop on
the spot, it must, however, be anterior in
point of time to the commission of offence
showing a pre-arranged plan and prior
concert. (See Krishna Govind Patil v. State
of Maharashtra(AIR 1963 SC 1413). In
Amrit Singh and Ors. v. State of Punjab
(1972) Crl.L.J. 465 (SC) it has been held
that common intention pre-supposes prior
concert. Care must be taken not to confuse
same or similar intention with common
intention; the partition which divides their
bonds is often very thin, nevertheless the
distinction is real and substantial, and if
overlooked will result in miscarriage of
justice. To constitute common intention, it
is necessary that intention of each one of
them be known to the rest of them and
shared by them. Undoubtedly, it is a
difficult thing to prove even the intention of
an individual and, therefore, it is all the
more difficult to show the common
intention of a group of persons. But
however difficult may be the task, the
prosecution must lead evidence of facts,
circumstances and conduct of the accused
from which their common intention can be
safely gathered.In Maqsoodan and Ors. v.
State of U.P. (AIR 1983 SC 126) it was
observed that prosecution must lead
evidence from which the common intention
of the accused can be safely gathered. In
most cases it has to be inferred from the
act,
conduct
or
other
relevant
circumstances of the case in hand. The
totality of the circumstances must be taken
into consideration in arriving at a
conclusion whether the accused had a
common intention to commit offence for
which they can be convicted. The facts and
circumstances of cases vary and each case
has to be decided keeping in view of the
facts involved. Whether an act is in
furtherance of the common intention is an
incident of fact and not of law.In Bhaba
Nanda sarma and Ors. v. The State of
Assam(AIR 1977 SC 2252) it was observed
that prosecution must prove facts to justify
an inference that all participants of the acts
had shared a common intention to commit
the
criminal
act
which
was
finally
committed by one or more of the
participants. Mere presence of a person at
the time of commission of an offence by
his confederates is not, in itself sufficient
to bring his case within the purview
ofSection 34, unless community of designs
is proved against him (See Malkhan and
Anr. v. State of Uttar Pradesh(AIR 1975 SC
12). In the Oxford English Dictionary, the
word "furtherance" is defined as 'action of
helping forward'. Adopting this definition,
Russel says that "it indicates some kind of
aid or assistance producing an effect in
future" and adds 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. (Russel on Crime 12th Edn. Vol.I
pp.487 and488).In Shankarlal Kacharabhai
and Ors. v. The State of Gujarat(AIR 1965
7 All. Vinod & Ors. Vs. State of U.P.
433
SC 1260) this Court has interpreted the
word "furtherance" as 'advancement of
promotion'."

(Emphasis supplied)

19. In the case of Suresh v State of
U.P., (2001) 3 SCC 673, Hon'ble Supreme
Court held as under:

"24. ...................... Hence an act,
whether overt or covert, is indispensable to
be done by a co-accused to be fastened
with the liability under the section. But if
no such act is done by a person, even if he
has common intention with the others for
the accomplishment of the crime,Section
34IPC cannot be invoked for convicting
that person. In other words, the accused
who only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid ofSection
34IPC.

xxx xxx xxx

40. .................. The word "act" used
inSection 34denotes 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 underSection
34cannot 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.
................."

 (Emphasis supplied)

20. In the case of Lallan Rai v. State
of Bihar, [(2003) 1 SCC 268], Hon'ble
Supreme Court held as under:

"22. The above discussion in fine thus
culminates
to
the
effect
that
the
requirement of statute is sharing the
common intention upon being present at
the place of occurrence. Mere distancing
himself from the scene cannot absolve the
accused - though the same however
depends upon the fact situation of the
matter under consideration and no rule
steadfast can be laid down therefor."

 (Emphasis supplied)

21. In the case of Chhota Ahirwar v.
State of M.P., [(2020) 4 SCC 126],
Hon'ble Supreme Court held as under:

"24..................The
essence
of
liability underSection 34is 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
inLallan 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."

(Emphasis supplied)

22. In the case of Barendra Kumar
Ghosh v. King Emperor(AIR 1925 PC 1),
it was held, as under:

"...... the words ofS. 34are not to be
eviscerated by reading them in this
exceedingly
limited
sense.
ByS.
33a
criminal act inS. 34includes 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. ByS. 37, when any
offence is committed by means of several
acts whoever intentionally co-operates in
434 INDIAN LAW REPORTS ALLAHABAD SERIES
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 or 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. 37provides 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."

23. In the case of Mahbub Shah v.
Emperor(AIR 1945 PC 118), it was held,
as under:

"........... To invoke the aid ofS.
34successfully, 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. ........"

24. In the case of Rambilas Singh &
Ors. v. State of Bihar[(1989) 3 SCC 605],
Hon'ble Supreme Court held as under:

"7...It is true that in order to convict
persons
vicariously
undersection
34orsection 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..."

25. In the case of Krishnan &
Another v. State of Kerala[(1996) 10
SCC 508], Hon'ble Supreme Court held as
under:

"15. Question
is
whether
it
is
obligatory on the part of the prosecution to
establish commission of overt act to press
into servicesection 34of 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 an
overt act is not a requirement of law to
allowsection 34to 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
7 All. Vinod & Ors. Vs. State of U.P.
435
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."

26. In the case of Surendra Chauhan
v. State of M.P. [(2000) 4 SCC 110],
Hon'ble Supreme Court held as under:

"11. UnderSection 34a 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...."

27. In the case of Gopi Nath @
Jhallar v. State of U.P. [(2001) 6 SCC
620], Hon'ble Supreme Court held as
under:

"8. ........... The common intention
or
the
intention
of
the
individual
concerned in furtherance of the common
intention could be proved either from
direct evidence or by inference from the
acts or attending circumstances of the
case and conduct of the parties. The
ultimate decision, at any rate, would
invariably depend upon the inferences
deducible from the circumstances of each
case."

(Emphasis supplied)

28. In the case of Ramesh Singh @
Photti v. State of A.P. [(2004) 11 SCC
305], Hon'ble Supreme 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 introducingSection 34inthe
Penal Codethe 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.......... "

(Emphasis supplied)

29. In the case of Nand Kishore V.
State Of Madhya Pradesh[(2011) 12 SCC
120)], Hon'ble Supreme Court held as
under:

"20. A bare reading of this section
shows that the section could be dissected as
follows:

(a) Criminal act is done by several
persons;

(b) Such act is done in furtherance of
the common intention of all; and

(c) Each of such persons is liable for
that act in the same manner as if it were
done by him alone.

In
other
words,
these
three
ingredients would guide the court in
determining whether an accused is liable
to be convicted with the aid ofSection 34.
While first two are the acts which are
attributable and have to be proved as
actions of the accused, the third is the
consequence. Once the criminal act and
common intention are proved, then by
fiction of law, criminal liability of having
done that act by each person individually
would arise. The criminal act, according
436 INDIAN LAW REPORTS ALLAHABAD SERIES
toSection 34IPC must be done by several
persons. The emphasis in this part of the
section is on the word "done". It only flows
from this that before a person can be
convicted by following the provisions
ofSection 34, that person must have done
something along with other persons. Some
individual participation in the commission
of
the
criminal
act
would
be
the
requirement. Every individual member of
the entire group charged with the aid
ofSection
34must,
therefore,
be
a
participant in the joint act which is the
result of their combined activity.

21. UnderSection 34, every individual
offender is associated with the criminal act
which
constitutes
the
offence
both
physically as well as mentally i.e. he is a
participant not only in what has been
described as a common act but also what is
termed as the common intention and,
therefore, in both these respects his
individual role is put into serious jeopardy
although this individual role might be a
part of a common scheme in which others
have also joined him and played a role that
is similar or different. But referring to the
common intention, it needs to be clarified
that the courts must keep in mind the fine
distinction between "common intention"
on the one hand and "mens rea" as
understood in criminal jurisprudence on
the other. Common intention is not alike
or identical to mens rea. The latter may be
coincidental with or collateral to the
former but they are distinct and different.

22.Section
34also
deals
with
constructive criminal liability. .............

23. Another aspect which the court has
to keep in mind while dealing with such
cases is that the common intention or state
of mind and the physical act, both may be
arrived at the spot and essentially may not
be the result of any predetermined plan to
commit such an offence. This will always
depend on the facts and circumstances of
the case..."

(Emphasis supplied)

30. In the case of Shyamal Ghosh V.
State of West Bengal[(2012) 7 SCC 646)],
Hon'ble Supreme Court held as under:

"87. ............ Section 34IPC applies
where two or more accused are present and
two factors must be established i.e.
common intention and participation of the
accused in the crime. ............ The phrase
"common intention" means a pre-oriented
plan and acting in pursuance to the plan,
thus, common intention must exist prior to
the commission of the act in a point of time.
The common intention to give effect to a
particular act may even develop on the
spur of moment between a number of
persons with reference to the facts of a
given case."

31. In Jasdeep Singh @ Jassu vs
The State Of Punjab (2022) 2 SCC 545
(paras 19 to 27), Hon'ble Supreme Court
considered its various earlier judgments
relating to Section 34 I.P.C. and held as
under:

"19.
Before
we
deal
further
withSection 34IPC, a peep atSection 33IPC
may give a better understanding.Section
33IPC brings into its fold a series of acts as
that of a single one. Therefore, in order to
attractSection 34to39IPC, a series of acts
done by several persons would be related to
a single act which constitutes a criminal
offense. A similar meaning is also given to
the word 'omission', meaning thereby, a
series of omissions would also mean a
single omission. This provision would thus
make it clear that an act would mean and
include other acts along with it.
7 All. Vinod & Ors. Vs. State of U.P.
437

20.Section 34IPC creates a deeming
fiction by infusing and importing a criminal
act constituting an offence committed by
one, into others, in pursuance to a common
intention. 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 ofSection
34IPC 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.

21.What is required is the proof of
common intention. Thus, there may be an
offence without common intention, in
which caseSection 34IPC does not get
attracted.

24.Normally, in an offense committed
physically, the presence of an accused
charged underSection 34IPC is required,
especially in a case where the act attributed
to
the
accused
is
one
of
instigation/exhortation. However, there are
exceptions, in particular, when an offense
consists of diverse acts done at different
times and places. Therefore, it has to be
seen on a case to case basis.

25.The word "furtherance" indicates
the existence of aid or assistance in
producing an effect in future. Thus, it has to
be construed as an advancement or
promotion.

26.There may be cases where all acts,
in general, would not come under the
purview ofSection 34IPC, but only those
done in furtherance of the common
intention having adequate connectivity.
When we speak of intention it has to be one
of criminality with adequacy of knowledge
of any existing fact necessary for the
proposed offense. Such an intention is
meant to assist, encourage, promote and
facilitate the commission of a crime with
the requisite knowledge as aforesaid.

27.The
existence
of
common
intention is obviously the duty of the
prosecution to prove. However, a court has
to analyse and assess the evidence before
implicating a person underSection 34IPC.
A mere common intention per se may not
attractSection 34IPC, sans an action in
furtherance. There may also be cases
where a person despite being an active
participant
in
forming
a
common
intention to commit a crime, may actually
withdraw from it later. Of course, this is
also one of the facts for the consideration
of the court. Further, the fact that all
accused charged with an offence read
withSection 34IPC are present at the
commission
of
the
crime,
without
dissuading themselves or others might well
be a relevant circumstance, provided a
prior common intention is duly proved.
Once again, this is an aspect which is
required to be looked into by the court on
the evidence placed before it. It may not be
required on the part of the defence to
specifically raise such a plea in a case
where adequate evidence is available
before the court."

(Emphasis supplied)

32. In Gulab vs. State of Uttar
Pradesh, (2022) 12 SCC 677 (Paras 20,
23, 27.1, 27.2, 27.3, 27.4 and 28), Hon'ble
Supreme Court has held as under:-

"23. The present case is not one where
despite the recovery of a firearm, or of the
cartridge, the prosecution had failed to
produce a report of the ballistic expert.
Therefore, the failure to produce a report
by a ballistic expert who can testify to the
fatal injuries being caused by a particular
438 INDIAN LAW REPORTS ALLAHABAD SERIES
weapon is not sufficient to impeach the
credible
evidence
of
the
direct
eyewitnesses.

27.Emphasizing
the
fundamental
principles underlying Section 34, this Court
held that:

27.1 Section 34 does not create a
distinct offence, but is a principle of
constructive liability;

27.2 In order to incur a joint liability
for an offence there must be a prearranged
and
pre-mediated
concert
between the accused persons for doing the
act actually done;

27.3 There may not be a long interval
between the act and the pre-meditation and
the plan may be formed suddenly. In order
for Section 34 to apply, it is not necessary
that the prosecution must prove an act was
done by a particular person; and