# JASDEEP SINGH @ JASSU v. STATE OF PUNJAB

- **Citation:** [2022] 2 S.C.R. 647
- **Court:** Supreme Court of India
- **Decided:** 2022-01-07
- **Case number:** Criminal Appeal No. 1584 of 2021
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jasdeep-singh-jassu-v-state-of-punjab-35993
- **Pages:** 26

## Headnote

Penal Code, 1860 - s. 304 part I and s.34 - Allegation that
victim-deceased was shot dead by the accused persons (A1 to A4)
during the night time - A3 and A4 (appellants) were present at the
scene of occurrence and made a statement saying "what are you
seeing now", thereafter, A1 took out a gun from his pocket and shot
the deceased - In complaint, father of the deceased (Complainant/
PW6) did not make any statement that A3 and A4 exhorted A1 to
shoot - However, in his additional statement u/s. 161 Cr.P.C. he
improved his statement stating that A3 and A4 instigated A1 to fire -
Trial Court convicted all the accused persons u/s 304 part I of IPC
by holding that the there was no premeditation and the occurrence
took place in pursuance to sudden fight - The High Court concurred
with the view of the trial Court - Before the Supreme Court, A1 and
A2 did not filed their appeals - Only, A3 and A4 filed appeals -
Held: Though the evidence of PW6 was not rejected, both Courts
found exaggeration on his part - On many occasions PW6 made a
concerted effort to improve the case of prosecution - As far as
statement made by A3 and A4 is concerned, if A3 and A4 had made
such a statement, they should have addressed A2 instead of A1
because A2 was already having a gun and A1 was stated to have
taken his gun out only on the statement made by A3 and A4 - There
is no evidence at all on record to hold that A3 and A4 were aware of
the fact that A1 was having a gun with him - Common intention can
be formed at the time of the occurrence, however, the evidence
available is not sufficient enough to hold that s.34 IPC is attracted
as against A3 and A4 - Prosecution has not proved its case beyond
reasonable doubt as against A3 and A4 taking umbrage u/s.34 IPC
- Therefore, judgment of the High Court confirming judgment of
the trial Court set aside.
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
Penal Code, 1860 - s. 34 - Intendment of - The intendment
of Section 34 IPC 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.
Disposing of the appeals, the Court
HELD: 1.1 Section 34 IPC 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 of Section 34 IPC is disbelieved, the remaining
part will have to be examined with adequate care and caution, as
the Court is dealing with a case of vicarious liability fastened on
the accused by treating him at par with the one who actually
committed the offence. What is required is the proof of common
intention. Thus, there may be an offence without common
intention, in which case Section 34 IPC does not get attracted.
[Paras 21 & 22][658-C-F]
1.2. The intendment of Section 34 IPC 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

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[2022] 2 S.C.R. 647
647
JASDEEP SINGH @ JASSU
v.
STATE OF PUNJAB
(Criminal Appeal No. 1584 of 2021)
JANUARY 07, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Penal Code, 1860 - s. 304 part I and s.34 - Allegation that
victim-deceased was shot dead by the accused persons (A1 to A4)
during the night time - A3 and A4 (appellants) were present at the
scene of occurrence and made a statement saying "what are you
seeing now", thereafter, A1 took out a gun from his pocket and shot
the deceased - In complaint, father of the deceased (Complainant/
PW6) did not make any statement that A3 and A4 exhorted A1 to
shoot - However, in his additional statement u/s. 161 Cr.P.C. he
improved his statement stating that A3 and A4 instigated A1 to fire -
Trial Court convicted all the accused persons u/s 304 part I of IPC
by holding that the there was no premeditation and the occurrence
took place in pursuance to sudden fight - The High Court concurred
with the view of the trial Court - Before the Supreme Court, A1 and
A2 did not filed their appeals - Only, A3 and A4 filed appeals -
Held: Though the evidence of PW6 was not rejected, both Courts
found exaggeration on his part - On many occasions PW6 made a
concerted effort to improve the case of prosecution - As far as
statement made by A3 and A4 is concerned, if A3 and A4 had made
such a statement, they should have addressed A2 instead of A1
because A2 was already having a gun and A1 was stated to have
taken his gun out only on the statement made by A3 and A4 - There
is no evidence at all on record to hold that A3 and A4 were aware of
the fact that A1 was having a gun with him - Common intention can
be formed at the time of the occurrence, however, the evidence
available is not sufficient enough to hold that s.34 IPC is attracted
as against A3 and A4 - Prosecution has not proved its case beyond
reasonable doubt as against A3 and A4 taking umbrage u/s.34 IPC
- Therefore, judgment of the High Court confirming judgment of
the trial Court set aside.
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Penal Code, 1860 - s. 34 - Intendment of - The intendment
of Section 34 IPC 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.
Disposing of the appeals, the Court
HELD: 1.1 Section 34 IPC 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 of Section 34 IPC is disbelieved, the remaining
part will have to be examined with adequate care and caution, as
the Court is dealing with a case of vicarious liability fastened on
the accused by treating him at par with the one who actually
committed the offence. What is required is the proof of common
intention. Thus, there may be an offence without common
intention, in which case Section 34 IPC does not get attracted.
[Paras 21 & 22][658-C-F]
1.2. The intendment of Section 34 IPC 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.
Normally, in an offense committed physically, the presence of an
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accused charged under Section 34 IPC 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. 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. There may be cases where all acts, in
general, would not come under the purview of Section 34 IPC, but
only those done in furtherance of the common intention having
adequate connectivity. When the Court speaks 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. 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 under Section 34 IPC. A mere common
intention per se may not attract Section 34 IPC, 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 with Section 34 IPC
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. [Paras 24-28][658H; 659-A-H]
2. The evidence of PW13 did not find favour with the courts.
The trial court which had the advantage of noting the deposition
of the witnesses, chose to disbelieve the evidence adduced, by
giving cogent reasons. This evidence was rightly eschewed by
the trial court and also by the High Court. There are too many
improbabilities in the testimony of PW13. A person who was living
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50 kms away remembered the accused and their names and
overheard their plot to commit the murder. His evidence was
belied by the evidence of DW1 who was none other than his own
cousin with whom he was said to be residing at the relevant point
of time. The other material witnesses are PW6 and PW10. PW10
had given prior statements. Though he turned hostile despite being
a friend of the deceased, the trial court did take into consideration
his earlier statement, while coming to the conclusion that there
was no premeditation and thus the case would fall under culpable
homicide not murder. Though the evidence of PW6 was not
rejected, both the courts did find a clear exaggeration on his part.
On many occasions PW6 made a concerted effort to improve the
case of prosecution. The testimony given by him on the dying
declaration, a case inserted by him in his supplementary statement,
made subsequently, was also rightly rejected by the courts. This
was also supported by the medical evidence. The other part of the
evidence with respect to the fight was also dealt with by the courts
as evidence available would suggest that it is the deceased who
went nearer, and the accused were not stationing themselves
waiting for his arrival. Therefore, the aforesaid findings of both the
courts in coming to the conclusion that it is not a case which would
attract punishment under Section 301 Part I IPC does not suffer
from any perversity. In view of the above Crl. A. No.1586 of 2021
stands dismissed. At this stage the Court also hasten to add that
the overt act of A2 being different and in the absence of any appeal
filed by him, the Court does not wish to make any remark for the
purpose of acquitting him. [Paras 32 & 33][670-E-H; 671-A-C]
3. The only other issue for consideration is the application
of Section 34 IPC to the case of the Appellants. The occurrence
was admittedly during the nighttime. It happened on the street.
If A3 and A4 had made such a statement in the same voice, they
should have addressed A2 instead of A1. A2 was already having a
gun and A1 was stated to have taken his gun out only on the
statement made by A3 and A4. The reasoning of the trial court in
disbelieving the evidence of PW6 as he improved on his case
subsequently, ought to be applied for the statement made that
A3 and A4 had asked A1 to fire. Admittedly, this was an
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improvement to the earlier statement made as could be seen
from the evidence of PW6 on more than one occasion. Thus, in
our considered view both the courts ought to have disbelieved
the evidence of PW6 insofar as Section 34 IPC is concerned. There
is no evidence at all on record to hold that A3 and A4 were aware
of the fact that A1 was having a gun with him. The prosecution
wanted to implicate A3 and A4 mainly on the evidence of PW13.
Once the said evidence was not accepted, more care ought to have
been taken before convicting A3 and A4 under Section 34 IPC.
The Court has no difficulty in holding that a common intention can
be formed at the time of the occurrence. However, the evidence
available is not sufficient enough to hold that Section 34 IPC is
attracted as against A3 and A4, especially when the testimony of
PW13 did not find favour with the courts. It is to be noted that
except the statement said to have been made by A3 and A4, there
was no other material to implicate them. Now, the statement made
by A3 and A4 is as follows: "what are you seeing now". The
question is as to whether the said statement would constitute an
offense punishable under Section 304 Part I IPC. This Court has
already noted the fact that had A2 fired at the deceased in
pursuance to the statement made by A3 and A4 the situation would
have been different. It is possible that the said statement has
been made only to attack otherwise the deceased. Suffice it is to
hold that the prosecution has not proved its case beyond
reasonable doubt as against A3 and A4 by reflecting the offence
committed by A1, taking umbrage under Section 34 IPC. [Paras
34 & 35][671-D-H; 672-A-C]
Suresh v State of U.P. (2001) 3 SCC 673 : [2001] 2
SCR 263; Lallan Rai v. State of Bihar (2003) 1 SCC
268 : [2002] 4 Suppl. SCR 188; Chhota Ahirwar v.
State of M.P. (2020) 4 SCC 126; Rambilas Singh &
Ors. v. State of Bihar (1989) 3 SCC 605; Krishnan &
Another v. State of Kerala (1996) 10 SCC 508 : [1996]
5 Suppl. SCR 405; Surendra Chauhan v. State of M.P.
(2000) 4 SCC110 : [2000] 2 SCR 515; Gopi Nath @
Jhallar v. State of U.P. (2001) 6 SCC 620 : [2001] 1
Suppl. SCR 72; Ramesh Singh @ Photti v. State of A.P.
(2004) 11 SCC 305; Nand Kishore v. State Of Madhya
JASDEEP SINGH @ JASSU v. STATE OF PUNJAB
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Pradesh (2011) 12 SCC 120 : [2011] 7 SCR 1152;
Shyamal Ghosh v. State of West Bengal (2012) 7 SCC
646 : [2012] 10SCR 95; Virendra Singh v. State of
Madhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR
772 - relied on.
Barendra Kumar Ghosh v. King Emperor AIR 1925 PC
1; Shah v. Emperor AIR 1945 PC 148 - referred to.
Case Law Reference
[2001] 2 SCR 263
relied on
Para 29
[2002] 4 Suppl. SCR 188
relied on
Para 29
(2020) 4 SCC 126
relied on
Para 29
(1989) 3 SCC 605
relied on
Para 29
[1996] 5 Suppl. SCR 405
relied on
Para 29
[2000] 2 SCR 515
relied on
Para 29
[2001] 1 Suppl. SCR 72
relied on
Para 29
(204) 11 SCC 305
relied on
Para 29
[2011] 7 SCR 1152
relied on
Para 29
[2012] 10 SCR 95
relied on
Para 29
[2010] 9 SCR 772
relied on
Para 30
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1584 of 2021.
From the Judgment and Order dated 16.10.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRA-D-1325-DB-2015.
With
Criminal Appeal Nos. 1585 and 1586 of 2021.
Shekhar Naphade, Siddharth Luthra, Vikram Chaudhri, Sr. Advs.,
Rajat Bali, Shivram, Gaurav Agrawal, Ms. Aishwarya Dash, Ms. Supriya
Juneja, Ms. Shubhangi Jain, Ms. Sonali Sharma, Pankaj Singhal, Yash
Giri, Nikhil Jain, Rishi Sehgal, Keshavam Chaudhari, Ms. Ria Khanna,
Ms. Jaspreet Gogia, Karanvir Gogia, Ms. Shivangi Singhal, Ms. Vamika
Gupta, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. Heard learned counsel appearing for the parties.
2. Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filed
by convicted Appellants/Accused 3 and 4 respectively against conviction
under Section 304 Part I of the Indian Penal Code (IPC) with life
sentence, while Crl. A. No.1586 of 2021 is filed by the de facto
complainant seeking modification of the conviction to the sentence
punishable under Section 302 IPC. Thus, we shall deal with all the appeals
by our common order, particularly, when they emanate and emerge from
a common impugned order.
BRIEF FACTS
3. Four accused persons were charged, convicted, and sentenced
in the following manner:
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4. The occurrence took place at about 12:45 a.m. on 21.04.2011
in the area of Baba Rasoi Dhaba, Jalandhar. The motive for the
occurrence was that the deceased felt that a raid conducted in the hotel
belonging to him and his father (PW6), the Appellant in Crl. A. No.1586
of 2021, was done at the instance of the accused. All the accused are
friends of each other.
5. PW6 went in search of the deceased on finding that he had not
returned home, though he was in a habit of coming late. On a particular
street, he saw the accused grappling with the deceased. It was seen by
him in the street light. The occurrence was also witnessed by PW10
who incidentally was a friend of the deceased. PW13 spoke about the
common intention on the part of the accused on the previous night to do
away with the deceased.
6. In pursuance to the statement made by A3 and A4, saying
"what are you seeing now", A1 took out a gun from his pocket and shot
the deceased. A2 took his gun and brandished it against the deceased,
prior to the aforesaid statement made by A3 and A4, followed by the
shooting by A1. A3 and A4 made the statement pointing to A1, though
A2 was already having the gun out. It is only thereafter that A1 took out
his gun and shot the deceased.
7. The deceased was taken to the hospital situated about 3 kms
from the place of occurrence, notwithstanding the other hospitals nearby.
PW23 helped PW6 and PW10 to carry the deceased into the car of
PW6. Thereafter PW6 gave the complaint under Exhibit PL. In the
complaint, he did not make any statement that A3 and A4 exhorted A1
to shoot, except the statement as referred earlier. However, in his
additional statement given under Section 161 CrPC, he improved his
version by stating that A3 and A4 instigated A1 to fire. We may note, A6
is a legally qualified person.
8. PW24 took up the investigation and completed the formalities.
Recoveries have been made, including of the weapons.
9. Before the trial court, the prosecution examined 27 witnesses
and marked documents in support of its case. On behalf of the defense,
16 witnesses have been examined along with the documents.
10. Before the trial court, PW10 and PW23 turned hostile. Upon
hearing the counsel appearing for the parties a conviction has been
rendered against all the accused for the offences punishable under Section
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304 Part I IPC along with life sentence. The trial court reasoned that it
is not as if the accused were waiting for the deceased. The deceased
went nearer to the accused, as could be seen from the evidence of
PW10 under Exhibit PF/1 and PQ. There was only one single shot.
Though the deceased fell down the accused did not shoot him thereafter.
There was indeed a quarrel preceding the occurrence. The evidence of
PW13 was disbelieved with respect to prior concert. It was noted that
he was a resident of a place 50 kms away from Jalandhar. The evidence
adduced by his cousin (DW1) showed that he was not present at his
house at Jalandhar and there was no reason for going to Jalandhar on
20.04.2011. The prosecution did not prove that that day was his birthday
and there were other places available nearer to his residence. There
was absolutely no material to hold that he knew the accused at any prior
point of time. It would be improbable that the accused would make a
plan to commit a murder in public, by addressing themselves by names
while flaunting their weapons. Further, he did not make any complaint.
The statement that he visited days thereafter to seek tires for his jeep
was not believed as such tires could be obtained otherwise in a nearer
place.
11. Accordingly, holding that there was no premeditation, and the
occurrence took place in pursuance to a sudden fight, in a heat of passion,
the case was brought under Exception 4 to Section 300 IPC.
12. Appeals were filed by all the parties. The High Court concurred
with the views of the trial court. However, it did not specifically deal
with the scope of Section 34 IPC as against A3 and A4 which was
accordingly done by the trial court. We may also note that the trial court
did an in-depth, exhaustive assessment, by considering almost all the
material placed before it, including the statements made by the witnesses.
13. A3 and A4 are before us by filing their respective appeals
seeking to overturn the judgment rendered by the High Court confirming
the one by the trial court. Thus, A1 and A2 have not filed their appeals.
We have been informed at the Bar, by the learned Senior Counsel
appearing for the de facto complainant/Appellant in Crl. A. No.1586 of
2021 that A1 has since been let out on pre-mature release by the State.
We do not wish to state anything on the role of A1 and A2 except to the
extent of testing the decision of the High Court and the trial court as to
whether the case would fall under Section 304 Part I or Section 302
IPC.
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Arguments on behalf of the Appellants
14. Since appeals have been filed both by the convicted Appellants
and the de facto complainant, we would like to note the arguments of A3
and A4 first and thus the other appeal filed by de facto complainant
would be taken along with the arguments of the State.
15. It is submitted by the learned counsel that the evidence of
PW13 having been disbelieved, the courts have committed an error in
applying Section 34 IPC. There is an improvement with respect to the
statement made by PW6. A mere statement per se would not be sufficient
to attract Section 34 IPC. It is strange that both of them made the same
statement. The presence of PW6 is very doubtful. He had deposed that
the deceased used to come late and there was no complaint whatsoever.
If A2 brandished the gun before the deceased was shot by A1, it is only
logical that A3 and A4 would have asked A2 to shoot first. Even the
other eyewitness in PW10 has turned hostile and so also another material
witness in PW23. Under those circumstances it is a fit case where the
conviction rendered against A3 and A4 are to be set aside.
Submission of the Respondents
16. The learned Senior Counsel appearing for the de facto
complainant submitted that the accused are influential persons. The case
would come under offense punishable under Section 302 IPC. The trial
court has committed an error as confirmed by the High Court in bringing
it under Section 299 IPC and therefore wrongly applied Section 304
Part I IPC. It is not necessary that an accused will have to do a physical
act in order to attract Section 34 IPC. Thus, a mere presence of the
accused would suffice. Hence, the appeal filed by the de facto
complainant be allowed while dismissing the appeal filed by the AccusedAppellants.
17. The counsel appearing for the State submitted that cogent
reasoning was given by the High Court. The trial court considered the
entire material available on record. Recoveries made have been proved.
Under those circumstances there is no need to interfere with the
conviction and sentence.
Section 34 IPC
18. We shall first go back into the history to understand Section
34 IPC as it stood at the inception and as it exists now.
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19. On a comparison, one could decipher that the phrase "in
furtherance of the common intention" was added into the statute book
subsequently. It was first coined by Chief Justice Barnes Peacock
presiding over a Bench of the Calcutta High Court, while delivering its
decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which
would have probably inspired and hastened the amendment to Section
34 IPC, made in 1870. The following passage may lend credence to the
aforesaid possible view:
"It does not follow that, because they were present with the intention
of taking him away, that they assisted by their presence in the
beating of him to such an extent as to cause death. If the object
and design of those who seized Amordi was merely to take him to
the thannah on a charge of theft, and it was no part of the common
design to beat him, they would not all be liable for the consequence
of the beating merely because they were present. It is laid down
that, when several persons are in company together engaged in
one common purpose, lawful or unlawful, and one of them, without
the knowledge or consent of the others, commits an offence, the
others will not be involved in the guilt, unless the act done was in
some manner in furtherance of the common intention. It is also
said, although a man is present when a felony is committed, if he
take no part in it, and do not act in concert with those who commit
it, he will not be a principal merely because he did not endeavour
to prevent it or to apprehend the felon. But if several persons go
out together for the purpose of apprehending a man and taking
him to the thannah on a charge of theft, and some of the party in
the presence of the others beat and ill-treat the man in a cruel and
violent manner, and the others stand by and look on without
endeavouring to dissuade them from their cruel and violent conduct,
it appears to me that those who have to deal with the facts might
very properly infer that they were all assenting parties and acting
in concert, and that the beating was in furtherance of a common
design. I do not know what the evidence was, all that I wish to
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[M. M. SUNDRESH, J.]
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point out is, that all who are present do not necessarily assist by
their presence every act that is done in their presence, nor are
consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section
33 IPC may give a better understanding. Section 33 IPC brings into its
fold a series of acts as that of a single one. Therefore, in order to attract
Section 34 to 39 IPC, 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.
21. Section 34 IPC 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 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.
22. What is required is the proof of common intention. Thus, there
may be an offence without common intention, in which case Section 34
IPC does not get attracted.
23. It is a team effort akin to a game of football involving several
positions manned by many, such as defender, mid-fielder, striker, and a
keeper. A striker may hit the target, while a keeper may stop an attack.
The consequence of the match, either a win or a loss, is borne by all the
players, though they may have their distinct roles. A goal scored or saved
may be the final act, but the result is what matters. As against the specific
individuals who had impacted more, the result is shared between the
players. The same logic is the foundation of Section 34 IPC which creates
shared liability on those who shared the common intention to commit the
crime.
24. The intendment of Section 34 IPC is to remove the difficulties
in distinguishing the acts of individual members of a party, acting in
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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.
25. Normally, in an offense committed physically, the presence of
an accused charged under Section 34 IPC 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.
26. 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.
27. There may be cases where all acts, in general, would not
come under the purview of Section 34 IPC, 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.
28. 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 under Section 34 IPC. A mere
common intention per se may not attract Section 34 IPC, 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 with Section 34 IPC 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.
JASDEEP SINGH @ JASSU v. STATE OF PUNJAB
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29. The essence and scope of Section 34 IPC can be borne out of
excerpts from the following judgements:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused
who is to be fastened with liability on the strength of Section
34 IPC should have done some act which has nexus with the
offence. Such an act need not be very substantial, it is enough
that the act is only for guarding the scene for facilitating the
crime. The act need not necessarily be overt, even if it is only
a covert act it is enough, provided such a covert act is proved
to have been done by the co-accused in furtherance of the
common intention. Even an omission can, in certain
circumstances, amount to an act. This is the purport of Section
32 IPC. So, the act mentioned in Section 34 IPC need not be
an overt act, even an illegal omission to do a certain act in a
certain situation can amount to an act, e.g. a co-accused,
standing near the victim face to face saw an armed assailant
nearing the victim from behind with a weapon to inflict a blow.
The co-accused, who could have alerted the victim to move
away to escape from the onslaught deliberately refrained from
doing so with the idea that the blow should fall on the victim.
Such omission can also be termed as an act in a given situation.
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 34 IPC 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 of Section 34 IPC.
xxx
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40. 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
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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 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 preconceived the result that ensued
in furtherance of the common intention. A Division Bench of
the Patna High Court in Satrughan Patar v. Emperor, AIR
1919 Pat 111 held that it is only when a court with some certainty
holds that a particular accused must have preconceived or
premeditated the result which ensued or acted in concert with
others in order to bring about that result, that Section 34 may
be applied."
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"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."
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
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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."
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
"...... 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 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. 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."
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
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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. 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..."
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..."
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
"15. 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 an 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.
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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."
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
"11. Under Section 34 a person must be physically present at
the actual commission of the crime for the purpose of facilitating
or promoting the offence, the commission of which is the aim
of the joint criminal venture...."
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
"8. ...As for the challenge made to the conviction under Section
302 read with Section 23 IPC, it is necessary to advert to the
salient principles to be kept into consideration and often
reiterated by this Court, in the matter of invoking the aid of
Section 34 IPC, before dealing with the factual aspect of the
claim made on behalf of the appellant. Section 34 IPC has
been held to lay down the rule of joint responsibility for criminal
acts performed by plurality or persons who joined together in
doing the criminal act, provided that such commission is in
furtherance of the common intention of all of them. Even the
doing of separate, similar or diverse acts by several persons,
so long as they are done in furtherance of a common intention,
render each of such persons liable for the result of them all, as
if he had done them himself, for the whole of the criminal
action - be it that it was not overt or was only covert act or
merely an omission constituting an illegal omission. The section,
therefore, has been held to be attracted even where the acts
committed by the different confederates are different when it
is established in one way or the other that all of them participated
and engaged themselves in furtherance of the common intention
which might be of a pre-concerted or pre-arranged plan or
one manifested or developed at the spur of the moment in the
course of the commission of the offence. 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
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circumstances of the case and conduct of the parties.