[S.34 IPC] Mere Participation Or Sharing Same Intention Independent Of Each Other Not Sufficient, Prearranged Plan Has To Be Proved: Kerala High Court

In the facts of the case, three accused have approached the Court aggrieved by their conviction of life imprisonment ordered by the Sessions Court for allegedly committing a murder. They were convicted under Section 341 (punishment for wrongful restraint) read with Section 302 (punishment for murder) read with Section 34 (common intention) of the IPC.

The Division Bench comprising Justice P B Suresh Kumar and Justice M B Snehalatha upheld the conviction of the first accused and set aside the conviction of the second and third accused on the finding that they did not possess a premeditated plan and common intention to cause the murder.

“Mere participation is not sufficient to attribute common intention. Common intention can be inferred from proved facts and circumstances and the same can develop during the course of an occurrence or at the spot. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The question whether the prosecution has established common intention in a given case has to be decided on the basis of the proved facts. In other words, the prosecution is required to prove a premeditated intention of all the accused. Section 34 of the Indian Penal Code is really intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and prove exactly what part was played by each of them. To attract Section 34 of IPC, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.”

The specific case was that the accused trespassed into the house of the deceased and the first accused stabbed him with a knife in the abdomen, while the second and third accused held his hands from the back to prevent him from escaping. It was stated that the deceased hurt the first accused in an altercation which led to the motive for the murder.

On analyzing the prosecution evidence, the Court found that the first accused had the motive for committing murder and he caused the stab injury which caused death.

The Counsel for the second and third accused submitted that even if they accompanied the first accused, they shared no common intention to cause death. It was argued that the only evidence against the second and third accused was that they were merely present at the scene of the occurrence of the incident.

The Court stated that Section 34 lays down the principle of joint liability in criminal act where shared common intention imposes joint criminal culpability. It stated even if different persons perform separate actions in pursuit of a common intention, each person was liable for the outcome of all actions as if they were all done collectively. It stated that in participation in action and intention of one accused should be known to the other accused.

It stated that mere participation was not sufficient to state that they have common intention and but the prosecution must prove from conduct, circumstances and other evidence that all the accused shared a common intention.

Considering the facts of the case, the Court expressed doubt whether the second and third accused shared a common intention to cause death. It stated that the evidence only points out that the second and third accused were merely present at the scene of occurrence when the first accused stabbed the victim. It went on to state second and third accused had no motive, nor any proof that they were aware that the first accused carried a knife with him.

“In the aforesaid circumstances, it is difficult according to us, to hold on the facts beyond reasonable doubt that accused 2 and 3 shared a common intention with the first accused to cause the death of the victim. Needless to say, accused 2 and 3 are entitled to the benefit of doubt,” stated the Court.

As such, the Court confirmed the conviction of the first accused and set aside the conviction and acquitted the second and third accused.

Counsel for Petitioners: Advocates S Rajeev, K K Dheerendrakrishnan, C Rasheed

Counsel for Respondents: Public Prosecutor E C Bineesh

Citation: 2024 LiveLaw Ker 338

Case Title: Shafeek v State of Kerala & Connected Cases

Case Number: CRL.A NO. 304 OF 2017 & Connected Cases

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