Section 34 IPC Not Attracted When Final Outcome Or Offence Committed Is Distinctly Remote And Unconnected With Common Intention : Supreme Court

The Supreme Court observed that Section 34 of the Indian Penal Code does not attract when the final outcome or offence committed is distinctly remote and unconnected with the common intention.

A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act, the bench comprising Justices Sanjiv Khanna and Bela M. Trivedi observed.

The court observed thus while acquitting two accused who were convicted by invoking Section 34 in a murder case. Krishnamurthy, Thimmappa and Gopala were concurrently convicted in a murder case. In appeal, the Apex court bench affirmed the conviction of Krishnamurthy under Section 300 IPC (Murder). However, it examined the evidence to consider whether the other two were rightly convicted by invoking Section 34 IPC.

The judgment contains discussion about the scope of Section 34 IPC as follows:

"Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention.5 Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of coparticipants in the criminal action is however, mandatory and essential. In Krishnan and Another v. State of Kerala, it has been observed that an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts."

The court then observed that it is essential that each co-perpetrator should have necessary intent to participate or otherwise have requisite awareness or knowledge that the offence is likely to be committed in view of the common design. 

"It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and  circumstance specific and no straitjacket universal formula can be applied. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co-perpetrator; and the actual offence committed by the principal or main perpetrator.

The court further added that, for Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed.

Referring to evidence on record, the bench observed that Thimmappa and Gopala are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention, viz. the injuries inflicted by Krishnamurthy on Venkatarama after he had fallen down. 

"Given the acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy and the resultant outcome were unexpected. We are also not prepared to hold that these two accused should have known the final outcome, or it was known to them, or it was a reasonably possible outcome of the preconcert/ contemporaneous engagement or a manifestation of mutual consent for carrying out a common purpose", the bench said while allowing the appeal.

Case: Krishnamurthy @ Gunodu vs State Of Karnataka | CrA 288 of 2022 | 16 Feb 2022

Citation: 2022 LiveLaw (SC) 220

Coram: Justices Sanjiv Khanna and Bela M. Trivedi