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TMI Blog2001 (3) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the High Court. In the other appeal Pavitri Devi, the wife of A-1 Suresh (also sister of A-2 Ramji) is struggling to sustain the acquittal secured by her from the High Court in reversal of the conviction for murder ordered by the Sessions Court with the aid of Section 34 IPC. 3. On the night of 5.10.1996 when Ramesh (brother of appellant Suresh) and his wife and children went to bed as usual they would have had no foreboding that it was going to be the last night they were sleeping on this terrestrial terrain. But after they, in their sleep, crossed the midnight line and when the half crescent moon appeared with its waned glow above their house the night turned red by the bloodiest killing spree befallen the entire family. The motley population of that small house were whacked to pieces by armed assailants, leaving none, but a single tiny tot, alive. The sole survivor of the gory carnage could have seen what happened inside his sweet home only in the light which itself turned carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds he sustained on his person. 4. That infant witness (PW-3 Jitendra) told the trial court that he saw his unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uresh which eventually grew alarmingly wild. 10. The evidence of PW-1 Lalji and PW-2 Amar Singh was considered by the Session Court in the light of various contentions raised by the counsel for the accused. The trial judge found the said evidence reliable. The Division Bench of the High Court considered the said evidence over again and they did not see any reason to dissent from the finding made by the trial court. The evidence of PW-3 Jitendra, the sole survivor of the carnage, was evaluated with greater care as he was an infant of seven years. Learned Judges of the Division Bench of the High Court accepted the evidence of PW-3 only to the extent it secured corroboration from the testimony of PWs, 1 and 2. 11. Though Mr. K.B. Sinha, learned senior counsel made an endeavour to make some tears into the fabric of the testimony of PWs.1 and 2 he failed to satisfy us that there is any infirmity in the findings recorded by the two courts regarding the reliability of the evidence of those two witnesses. As the learned senior counsel found it difficult to turn the table regarding the evidence against the accused which is formidable as well as trustworthy, he focussed on two aspects. First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal act can be a single act or it can be the conglomeration of a series of acts. How can a criminal act be done by several persons? 16. In this context a reference to Section 35 37 and 38 of IPC, in juxtaposition with Section 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated. Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention . The section differs from section 34 only regarding one postulate. In the place of common intention of all such persons (in furtherance of which the criminal act is done), as is required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required mens rea. 17. Section 37 deals with the commission of an offence by means of several acts . The section renders any one who intentionally cooperates in the commission of that offence by doing any one of those acts to be liable for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations. 22. Thus to attract Section 34 IPC two postulates are indispensable. (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. 23. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. 27. We have come across the observations made by another Judicial Commission of the Privy Council of equal strength in Mahbub Shah vs. Emperor AIR1914Cal901(2) . The observation is that Section 34 IPC can be invoked if it is shown that the criminal act was done by one of the accused in furtherance of the common intention of all. On the fact situation their Lordships did not have to consider the other component of the Section. Hence the said observation cannot be understood to have obviated the necessity of proving that the criminal act was done by several persons which is a component of Section 34 IPC. 28. In Pandurang vs. State of Hyderabad 1955 CriLJ 572 Vivian Bose J., speaking for a three-judge bench of this Court focused on the second component in Section 34, IPC i.e. in furtherance of the common intention. There was no need for the bench to consider about the acts committed by the accused charged, in order to ascertain wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that if she remained at the scene without sharing the common intention she would have prevented the other two accused from doing the ghastly acts because both of them were her husband and brother respectively. The inaction of Pavitri Devi in doing so need not necessarily lead to the conclusion that she shared a common intention with others. There is nothing to show that she had not earlier tried to dissuade her husband and brother from rushing to attack the deceased. 32. Thus we are unable to hold that Pavitri Devi shared common intention with the other accused and hence her remaining passively on the road is too insufficient for reversing the order of acquittal passed by the High Court in order to convict her with the aid of Section 34 IPC. 33. Mr. K.B. Sinha, earned senior counsel made an all out effort to save the convicted appellants from death penalty. The trial court and the High Court have given very cogent reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that death penalty is now restricted to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed as held by the Constitution Bench in Bachan Singh vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 a spur of 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. 38. 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 latter 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. 39. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate acts, similar of diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other. 41. Referring to the presumption arising out of Section 114 of the Evidence Act, the Privy Council further held: As to S. 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e section 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. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from this act or conduct or other relevant circumstances of the case. 44. A Full Bench of the Patna High Court in The King Emperor vs. Barendra Kumar Ghose AIR 1924 Cal 257 which was later approved by the Privy Council dealt with the scope of Section 34 in extenso and noted its effects from all possible interpretations put by various High Courts in the country and the distinguished authors on the subject. The Court did not agree with the limited construction given by Stephen, J. in Emperor v. Nirmal Kanta Roy AIR 1914 Cal 901 (2) and held that such an interpretation, if accepted, would lead to disastrous results. Concurring with Mookerjee, J. and giving the section wider view Richardson, J. observed: It appears to me that section 34 regards the act done as the united act of the immediate perpetrator and his confederates pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mate act done in furtherance of the common intention. In the absence of a pre-arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis . Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence. 46. In Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of criminal act as mentioned in that section. In Ramaswami's case (supra) it was contended that A2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly he did not physically participate in the fatal beating administered by co-accused to the deceased and thus the criminal act of murder was not done by all the accused within the contemplation of Section 34; and secondly the prosecution had not shown that the act of A2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a pre-arranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the criminal act . The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A2 under Section 302/34 of the Code in that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishment of a overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of common intention of all . What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur. 53.In Surender Chauhan v. State of M.P. 2000 CriLJ 1789 this Court held that apart from the fact that there should be two or more accused, two factors must be established - (i) common intention and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held: Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon intention and similar intention may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. 55. After referring to Mahboob Shah's case (supra) this Court in Mohan Singh anr. vs. State of Punjab [AIR 1963 174] observed, it is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. The persons having similar intention which is not the result of pre-concerted plan cannot be held guilty for the criminal act with the aid of Section 34. Similarly the distinction of the words used in Section 10 of the Indian Evidence Act in reference to their common intention and the words used in Section 34 in furtherance of the common intention is significant. Whereas Section 10 of the Indian Evidence Act deals with the actions done by conspirators in reference to the common object, Section 34 of the Code deals with persons having common intention to do a criminal act. 56. In State through Superintendent of Police, CBI/SIT vs. Nalini Ors. 1999 CriLJ 3124 Brother Thomas, J. in his judgment dealt with such a proposition in paras 107 and 108. 57. However, in this case on facts, the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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