Mere common intention per se may not attract Section 34 of IPC, sans an action in furtherance: Supreme Court

Read Judgment: Jasdeep Singh @ Jassu V. State of Punjab 

Pankaj Bajpai

New Delhi, January 10, 2022: The Supreme Court has opined that though an existence of common intention is obviously the duty of the prosecution to prove, however, the Court has to analyze and assess the evidence before implicating a person u/s 34 IPC, as a mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. 

A Division Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh observed that 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 the present is a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 

Going by the background of the case, criminal appeals are filed by convicted third & fourthAppellants – Accused against conviction u/s 304 Part I of PC with life sentence, while another criminal appeal is filed by the de facto complainant seeking modification of the conviction to the sentence punishable u/s 302 IPC, maintained by the Trial Court. 

It was argued on behalf of third & fourth Appellants that they were wrongly booked u/s 34 IPC, as they had no common intention in the shooting done by the first accused at the deceased as a result of which he died, since they were not aware of the same.     

After considering the submissions & arguments, the Top Court noted that 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, and the onus is on the prosecution to prove the common intention to the satisfaction of the court. 

Speaking for the Bench, Justice Sundresh highlighted that what is required is the proof of common intention, and there may be an offence without common intention, in which case Section 34 IPC does not get attracted. 

“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 prosecution wanted to implicate A3 and A4 mainly on the evidence of PW13. Once the said evidence was not accepted, more care ought to have been taken before convicting A3 and A4 u/s 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”, found the Bench. 

Justice Shah observed that had the second accused fired at the deceased in pursuance to the statement made by the third & fourth accused, the situation would have been different, and it is possible that the statement has been made only to attack otherwise the deceased. 

Suffice it is to hold that the prosecution has not proved its case beyond reasonable doubt as against third & fourth accused by reflecting the offence committed by first accused, taking umbrage u/s 34 IPC, added the Bench. 

The Top Court canvassed that there are too many improbabilities in the testimony of one of the prosecution witness, as a person who was living 50 kms away remembered the accused and their names and overheard their plot to commit the murder. 

His evidence was belied by the evidence of first defense witness who was none other than his own cousin with whom he was said to be residing at the relevant point of time, added the Court. 

The Apex Court found that though the some prosecution witnesses had turned hostile despite being a friend of the deceased, the trial court did take into consideration his earlier statement, while coming to the conclusion that there was no premeditation and thus the case would fall under culpable homicide not murder. 

The other part of the evidence with respect to the fight was also dealt with by the courts as evidence available would suggest that it is the deceased who went nearer, and the accused were not stationing themselves waiting for his arrival, added the Court. 

Therefore, the Apex Court cleared that the findings of both the courts in coming to the conclusion that it is not a case which would attract punishment u/s 301 Part I IPC does not suffer from any perversity. 

Hence, the Apex Court partly allowed the appeal by setting aside the judgment of the High Court confirming that of the trial court as against the Accused-Appellants alone are concerned.