Mere Common Intention Per Se May Not Attract Section 34 IPC Without An Action In Furtherance: Supreme Court

A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance, the Supreme Court observed in a judgment delivered in a criminal appeal on Friday (7 Jan 2022).

In this case, the appellants were convicted under Section 304 Part I of the Indian Penal Code (IPC) with life sentence. They filed appeal challenging the invocation of Section 34 of the Indian Penal Code to convict them with along with other accused.

The bench comprising Justices Sanjay Kishan Kaul and MM Sundresh agreed with the submission on behalf of the appellant that the evidence available is not sufficient enough to hold that Section 34 IPC is attracted as against them. 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 court said.

In this judgment, the bench discusses the scope of Section 34 of the IPC as follows:

1. 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. (Para 19)
2. 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. (Para 20)
3. 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. (Para 21)
4. 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. (Para 22)
5. 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. (Para 23)
6. 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. (Para 24)
7. 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. (Para 25)
8. 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. (Para 26)
9. 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. (Para 27)
10. 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. (Para 28)

The bench has referred to these judgments: Suresh v State of U.P. ((2001) 3 SCC 673) ; Lallan Rai v. State of Bihar, [(2003) 1 SCC 268] ; Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126] ; Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) ; Mehbub Shah v. Emperor (AIR 1945 PC 148): Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605] ; Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]: Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]: Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]: Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]: Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]: Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]: Virendra Singh V. State of Madhya Pradesh ((2010) 8 SCC 407).

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