[Section 34 IPC] Common intention must be of criminality and adequate knowledge of any existing fact necessary: Supreme Court

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Noting that there are 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, the top court on Friday held,

"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 ....".

While dealing with Section 34 IPC, the court deemed it fit to  have a peep at Section 33 IPC  for 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...", the court noted.

A bench of Justices SK Kaul and MM Sundresh further remarked that Section 34 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. It added,

"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."

Comparing Section 34 which creates shared liability on those who shared the common intention to commit the crime to a game of football, the bench said,

"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."

Speaking of the intention of the provision, the Court said, that the provisions intends to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. It went on to add that 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."

It was further noted that a mere common intention per se may not attract Section 34, sans an action in furtherance. Also, the word “furtherance”, as per the court, indicated the existence of aid or assistance in producing an effect in future which had to be construed as an advancement or promotion.

Noting that there may 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, the Court remarked that 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. 

An appeal was filed by convicted accused against conviction under Section 304 Part I of the Indian Penal Code (IPC) with life sentence.

The Court noted that the alleged occurrence was admittedly during the nighttime and happened on the street. It was found that there was no evidence at all on record to hold that two accused were aware of the fact that the other accused was having a gun with him.

It was also noted that once the evidence of a witness was not accepted, more care ought to have been taken before convicting the two accused appellants under Section 34 IPC.

"We have 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. We further note that except the statement said to have been made by A3 and A4, there was no other material to implicate them", held the Court.

With this view, the Court went on to allow the appeal.