CASE NO.: Appeal (crl.) 93-95 of 2001

PETITIONER: Lallan Rai & Ors.

RESPONDENT: State of Bihar


DATE OF JUDGMENT: 14/11/2002

BENCH: Umesh C. Banerjee & B.N. Agrawal.



1.  Four decades ago, the Constitution Bench in Mohan Singh (Mohan Singh v. State of Punjab 1962 Supp. (3) SCR 848) has been rather lucid in its expression as regards differentiation between Section 149 and Section 34 of the Indian Penal Code. In Mohan Singh this Court stated : ". Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where 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. The essential constituents of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence harged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a ombination of persons sharing the same common ntention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful ssembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor (1945 L.R. 72 I.A. 148), common intention within the meaning of Section 34 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 and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."

2.  Four decades later, however, a Three-Judge Bench of this Court in Suresh (Suresh & Anr. v. State of U.P. 2001 (3) SCC 673) had the following to state pertaining to Section 34 of the Indian Penal Code.

"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The Section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. 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 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."

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20. A plain look at the Statute reveals that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain support from the decision of this Court in Ramaswami Ayyangar & Ors. v. State of Tamil Nadu [AIR 1976 SC 2027].

21. In the similar vein the Privy Council in (Barendra Kumar Ghosh v. King Emperor [AIR 1925 PC 1: 26 Cri. LJ 431] stated the true purport of Section 34 as below: "The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates 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.'"

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. Turning attention to the factual score, once again, be it noticed that the High Court has rendered the submissions of the defence as regards the witnesses being on inimical terms as totally hypothetical guesswork de hors the realities and in justification thereof stated "Simply because another passage was available for the prosecution party to go to their ……

……  ….  …………    if there is failure of justice occasioned by not framing of the charge or in case of an error, omission or irregularity in charge re-trial of the case is to be directed under sub-section (2)." Incidentally, Section 464 corresponds to the provisions contained in Sections 232(2), 535 and 537(6) of the old Code. It is in this context the law laid down by this Court in Kammari (supra) ought also to be noticed. This Court in paragraph 14 of the report stated as below:- "14. The aforesaid discussion leaves no doubt that non- framing of charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid, the trial should be fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities." Similar is the observation of this Court in Narinder Singh v. State of Punjab (2000 (4) SCC 603) recording therein that if the ingredients of the Section are present, conviction in regard thereto can be sustained.


34. The evidence available on record in particular that of injured eye witnesses, namely, PWs.7, 9 and 10 and the "Fardbayan" which was recorded without any loss of time to the effect that all the accused persons encircled the informant and other witnesses and inflicted injuries on Bindeshwari Rai (deceased) by deadly weapons resulting into his death it is trustworthy and acceptable and question of decrying the evidentiary value thereof does not and cannot arise, more so, having regard to the corroborative evidence available on record by the doctor who conducted the post-mortem. The entire gamut of the matter in issue leaves no manner of doubt the concerted action by reason of simultaneous conscious mind of persons participating in the action to bring about the death of Bindeshwari Rai and it is this piece of evidence which brings in the element of Section 34 even though no charge was framed thereunder. This conviction and sentence under Section 302 of the Indian Penal Code can be maintained by adding Section 34 of the Indian Penal Code thereto that is to say under Section 302/34 of the Indian Penal Code.


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