This section lays down a very important principle of joint liability under criminal law. It says that when several persons do a criminal act in furtherance of the common intention of all of them, each one of them shall be liable for that act in the same manner as if he had done it alone. The fundamental principle of criminal liability is that the prosecution must prove the guilt of the accused beyond reasonable doubt.
The principle is easily applicable in cases of liability of one single individual. But when the same is applied to cases where more than one person participate in the commission of a crime, it becomes very difficult to apply this principle and prove the guilt of each of the participants.
The matter gets all the more complicated when all the accused persons are armed with similar weapons because then even though the medical report will be able to point out as to the number of injuries inflicted and their nature and parts of the body on which these are inflicted, the extent of participation of each of the participants may not be known.
The criminal Code of the country must have some principles to be applied to such cases. With this view in mind principles of joint criminal liability are enacted in the criminal Codes of all the countries. One such principle in India is under section 34 of the Indian Penal Code.
A criminal act
The use of the words “a criminal act” does not limit the scope of this section to one single criminal act. This is evident from sections 32 and 33 of the Code wherein it has been specifically stated respectively that acts extend to illegal omission also, and act denotes a series of acts and omission denotes a series of omissions also. For instance, if in furtherance of a common intention to kill X, A stands at the door as a watchman, Â overpowers X and Ñ inflicts dagger blows on X, their acts are different but all of them are guilty for acting in furtherance of common intention.
The use of the word ‘done’ shows that several persons must do a criminal act. This means that all of them must take part in the commission of a crime. The extent of participation may be different for different persons but all of them must actively participate in the crime. They must be physically present at the actual commission of the crime. They need not be present on the actual spot where the crime is being committed.
One can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger, or wait in a car with the motor on nearby, ready to facilitate their escape. But all must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The word ‘done’ emphasises that it is essential that the accused must join in the doing of the act and not merely in planning its perpetration.
The words ‘several persons’ have been deliberately used in this section to show that the provision refers to group liability. Therefore, the section lays down an important principle of joint liability where at least two persons are involved in the doing of a criminal act. Whether all of them will always be responsible, or only one of them may also be held responsible are altogether different matters.
In furtherance of the common intention of all
These words are the most important ones in this section and provide a distinct principle of joint criminal liability. At the time of enacting the Indian Penal Code these words did not exist. These were added subsequently by section 1 of the Act XXVII of 1870 when the language of the section was modified.
This section applies only when a criminal act is done by several persons in furtherance of the common intention of all. ‘Common intention’ presupposes a meeting of minds of those involved in the crime. Meeting of minds means that each one of the participants knows and concurs with the mind of each of the others.
This will be possible only when there is a pre-arranged plan or prior concert amongst the participants. The plan or the concert must be before the commission of the crime and that is why it is called pre-arranged plan or prior concert. The interval of time between the plan and the execution of the plan will naturally be different in different cases.
The only important thing is that the plan or concert must precede the act. The common intention should be anterior in time to the commission of the crime showing a pre-arranged plan or a prior concert, and though it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case.
Each of such persons is liable for that act in the same manner as if it were done by him alone
The criminal act which has been done in furtherance of the common intention of all makes each of them equally liable for the same. The presence of each of the participants boosts the confidence of all of them and, therefore, the provision does not make a distinction as far as the liability of all is concerned. No one can argue that his liability is less than the others because he has taken less part in the commission of the crime.
Where A armed with a lathi, Â with a kanta and Ñ with a bhali attacked the deceased who was killed, the argument of Ñ that since he had given only one bhali blow on the deceased as was clear from the medical evidence his liability should be less than the other two, could not be accepted.
Common intention and same or similar intention
Common intention and same or similar intention are different from each other. While the former pre-supposes a meeting of minds, the same in not required in the latter. For instance, A and Â both want to kill X who is blackmailing them. A thinks that the best way to kill X is to shoot him dead when he goes out for an after-dinner walk.
Coincidently, Â also thinks likewise. A and Â have never met with each other and are ignorant of each other’s intentions. When X is 011 an after-dinner walk, both A and Â, waiting for him at different spots, fire at him, as a result of which X dies. A and Â have same or similar intention in this case but no common intention.
In Mahbub Shah v. Emperor} the deceased A and his friends on board a boat were going up the stream of a river to collect reeds. On the way they were met by M, the father of W who warned them not to collect reeds from his land. This warning was ignored. When A and his friends were returning down-stream with some bundles of reed, M’s nephew G blocked their way and tried to take away the bundles. He caught hold of the rope of the boat and pushed A. On this A took in his hands a ten feet long wooden pole used for rowing the boat. Seeing this G shouted for help. W and M armed with guns came on to the place on hearing this shout for help. W escaped after firing at A who was killed. M fired on A’s friend H.
The trial Court held M guilty of attempt to murder H. The High Court held him guilty for murder of A under sections 302 read with 34 of the Indian Penal Code. The Privy Council set aside the judgment of the High Court and held that it was not a case of murder in furtherance of common intention. The Privy Council observed that it might be a case of same or similar intention because when M and W went to the scene of occurrence armed with guns they might have same or similar intention of saving G but there was definitely no meeting of minds between the two.
Implied common intention
There may be cases where conviction may be maintained on the ground of implied common intention also. In Mukundmurari Pal v. Emp, armed accused persons entered a shop with the express common intention to commit robbery. The shopman shouted for help and some villagers came to his rescue. The accused fled without being able to commit robbery. Some villagers chased the fleeing accused persons who fired some shots resulting in the death of one of the chasers.
It was held that all the accused persons were guilty of murder in furtherance of implied common intention. Even though their express common intention was to rob, they were carrying arms which impliedly meant that in case of need the arms might be used. In other words, their implied common intention was to use the arms which they ultimately did thereby causing the death.
The Courts have held that the section comes into application when the accused persons actively participate in the execution of a pre-arranged plan or prior concert. Active participation does not necessarily imply that all must do the criminal act at the exact spot of the crime. In Barendra Kumar Ghose v. King Emp, the accused persons including the appellant formed a common intention to rob a post office. They entered from the back door. The postmaster was shot dead when he refused to hand over the cash.
The appellant was caught with a pistol in his hand. His defense that he was waiting outside near the door, had not shot at the postmaster and had no common intention to kill was not accepted by the Court. The Privy Council observed that 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.
In Indar Singh v. Emp., some persons with common intention to commit robbery went to the house of A who was not at home. While the appellant went to bring A back to the house in order to threaten him to surrender property, the other three accused continued to remain there. In the absence of the appellant, one of the remaining three accused fired at the son of A who had reached their suspecting that all was not well. While convicting all including the appellant the Court observed that his temporary absence when the murder was committed would not free him from guilt.
In Chhotu v. State of Maharashtra, three persons repeatedly gave blows upon the deceased for some time. One of the accused was seen standing with knife in his hand. The Supreme Court held that he could not be held to have shared the common intention on the ground of such fact only and he was thus entitled to the benefit of doubt.
In Suresh v. State of Uttar Pradesh, Thomas, J, said in the Supreme Court that even the concept of presence of the co-accused at the scene is not a necessary requirement to attract section 34, for instance, the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration with the advancement of electronic equipment can be etched like this: one of such persons in furtherance of the common 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.
The act mentioned in section 34 need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, for instance, a co-accused standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can be termed as an act in a given situation.
Absence of common intention clearly deducible
When absence of common intention is clearly deducible from facts, circumstances and other evidence, the Court is bound to hold that there is no common intention. In State v. Bhimshankar, the accused armed with lathis and knives ran out of their house to attack opponents. The attack was stopped as soon as the first knife blow was inflicted. The court held that there was no common intention to murder but only to cause grievous hurt.
In Sarwan Singh v. State of Punjab, two assailants came to the courtyard of the deceased’s house and opened fire on the deceased. One of the assailants was also killed during the occurrence. The appellant did not take part in the killing and he came to the scene of occurrence when one of the assailants called him to carry the dead body of the assailants. He only threatened the eyewitnesses not to disclose the incident to anyone or else they would be killed. The Supreme Court held that the evidence was not sufficient to hold the appellant guilty under sections 302/34 for the murder.
Common intention against a particular individual
Where the accused have a common intention to kill a particular individual but another one is killed, that does not exonerate them. In Hethuba v. State, the accused were waiting for their enemy to come by a bullock cart. They attacked the first bullock cart which had not been occupied by their enemy but by someone else who was killed in the process. The Supreme Court held all of them liable for murder which was committed by them in furtherance of their common intention.
Carrying things which can be used as weapons as well
The Supreme Court has held in K.N. Virji v. State, that a bona fide assertion of right of way through the uncultivated portion of private land by the villagers when the road is submerged during rainy season cannot be, in the absence of any other evidence, considered a common intention to commit a crime. From the fact that one villager had a spade and the other two sticks, it is not safe to infer intention to commit a crime.
Unarmed accused and common intention
In Gaya Prasad v. State, it has been held by the Supreme Court that where a premeditated attack on the deceased by knives commenced at the instance of the accused who was present at the scene, the accused is guilty of murder under section 302 read with 34 of the Code even though he was having no weapon with him.
Common intention and the offence of forgery
The Gujarat High Court has held in Girasia v. State, that the offence of forgery by its very nature cannot be committed in furtherance of common intention because it is a complete offence in itself by one who commits it and everyone else who does it merely repeats the offence.
Conviction of one single individual
Relying on its earlier decision in Bharwad Ìåðà Dana v. State, the Supreme Court has reiterated in Jagir Singh v. State of Punjab, that part convictions and part acquittals out of a group of persons could ‘always be done if the evidence so warranted and, therefore, conviction of two accused out of the six was valid in law. Similarly, where six persons were prosecuted under sections 148, 302/149 and 307/149 of the Code and two of them were acquitted, section 34 could apply for the conviction of the remaining four for the offence of murder and attempt to commit murder.
Consequently, if only one individual is convicted with the help of section 34 out of a group of accused, the same is good in the eye of law provided that the identity of the single individual being convicted is established beyond reasonable doubt and the total number of persons participating in the crime, out of which he was one, is known.
However, if there is a legal flaw in the reasoning of the Court in such a case, the conviction of one single individual is liable to be set aside. In Krishna Govinda Patil v. State, one out of four named accused was convicted while the other three were acquitted on the ground that their identity was not established beyond reasonable doubt.
The High Court held that the one being convicted had acted in concert with some of those acquitted. The Supreme Court quashed the conviction on the ground that the High Court had contradicted itself when on the one hand it acquitted the three accused whose identity could not be established and on the other at least some of those acquitted were said to have associated with the one being convicted.
With respect to the question of legality of conviction of one single individual with the help of section 34 the following five situations may arise:
1. Where the total number of participants is proved and also participation of the accused being convicted is proved his conviction is legal. For instance, where the prosecution proves that a total of four persons participated in the crime out of whom X was definitely one but who were the other three is not proved beyond doubt, the conviction of A” is legal.
2. Where the total number of participants is not proved beyond doubt but participation of the accused being convicted-is proved, his conviction is probably not good. For instance, where the prosecution fails to prove the exact number of participants in a crime but proves beyond doubt that X was definitely one of them, then probably conviction of X is not justified because the prosecution has failed to prove the exact number of persons amongst whom there was a meeting of minds.
There may however, be a difference of opinion in this regard because some people may argue that the prosecution has proved the existence of more than one person amongst whom there was a meeting of minds and also proved the presence of the accused being convicted beyond doubt and so his conviction should be legal.
3. Where all the participants are named and only they, and no others, have committed the crime in furtherance of their common intention and the single individual accused being convicted was definitely one of them even though participation of the others could not be proved beyond doubt, the conviction of the single individual accused is illegal and he has to be acquitted along with all others. For instance, if the case of the prosecution is that À, Â, Ñ and D, and no one else, had committed the crime in furtherance of their common intention but the prosecution fails to prove the participation of Â, Ñ and D beyond doubt even though it does prove that A was definitely there, conviction of A will be bad. The reason for this is that the prosecution says that there was a prearranged plan between À, Â, Ñ and D only and no others but it fails to prove the case against Â, Ñ and D beyond doubt, meaning thereby that it fails to prove the existence of a pre-arranged plan between them and A and thus A’s conviction will be bad.
4. Where the person being convicted is not a public servant and his presence is proved beyond doubt by the prosecution while all other participants are public servants and sanction for their prosecution has not been given by the appropriate authority and as such no case has begun against them. In such a situation conviction of the person who is not a public servant is good. For instance, A, who is not a public servant, is being prosecuted for committing a crime in furtherance of common intention with Â, Ñ and D who all are public servants. Since sanction for prosecution Â, Ñ and D has not been granted by the appropriate authority they are, in fact, not being prosecuted. Here the conviction of A will be good if the prosecution proves that the crime had been committed in furtherance of their common intention.
5. If the prosecution has proved the case against the person being convicted that he along with others had committed the crime in furtherance of common intention, but the other participants die during the pendency of the case before a final verdict is given by the Court, in such a situation, the conviction of the person being convicted will be legal. For instance, if the prosecution proves that the crime was committed by À, Â, Ñ and D in furtherance of their common intention but during the pendency of the trial before the Final verdict by the Court Â, Ñ and D die, here conviction of A alone is good.
In Poovan v. State, the Madras High Court held that where all the accused except one are acquitted the remaining sole accused cannot be held guilty under sections 302/34 of the Code.
In Ranjan Rai v. State of Bihar, the appellant and co-accused along with other persons came to the house of the deceased and threw bomb upon him as a result of which he died. The co-accused died before commencement of his trial and so he could not be tried. The Supreme Court ruled that the appellant shared common intention with the co-accused to cause death of the deceased and thus conviction of the sole appellant under sections 302/34 is good. The judgment of acquittal of other co-accused persons rendered in appeal arising out of earlier sessions trial is wholly irrelevant in appeal arising out of trial of the appellant accused as the said judgment was not admissible under section 40 of the Evidence Act.
In Y. Venkaiah v. State of Andhra Pradesh, the Supreme Court stated that acquittal of one co-accused does not by itself absolve other co-accused of their conjoint liability of crime if there is evidence against them of committing an offence in furtherance of their common intention.
Co-existence of common intention principle and cases in which conviction is based on knowledge of the accused
The Supreme Court has held in State v. Afrahim Sheikh, where several offenders by diverse acts and with prior concert chased the deceased, threw him on to the ground and beat him to death, that a conviction under the second para of section 304 which talks only of knowledge read with section 34 of the Code which states the principle of common intention is perfectly in order. But this knowledge is naturally the knowledge of the likelihood of death on the part of those who are doing a criminal act in furtherance of the common intention of all. In Dalip Singh v. State, there was a custodial death in police custody. The accused policemen shared common intention to beat the deceased violently and as a result of the beating the deceased died. The Supreme Court held that the policemen must be attributed the knowledge that by inflicting such injuries they were likely to cause death and hence they were guilty under section 304 Part II read with section 34 of the Code.
Common intention with an acquitted person
In Karan Singh v. State,.2 the appellant, another person X and six others were alleged to have murdered one G and also attempted to murder another person R. X had absconded after the crime while the appellant and the other six were charged under sections 302, 307, 148 and 149 of the Code. The Sessions Court acquitted those six but convicted the appellant under sections 302 and 307 for the murder and attempted murder.
While the appeal of the appellant was pending in the High Court, X was arrested, tried on same charges and acquitted. The State did not prefer an appeal against the acquittal of X. The High Court held that X had murdered G and attempted to murder R in furtherance of a common intention between the appellant and X and convicted him under sections 302, 307 and 34 of the Code. Holding the conviction valid, the Supreme Court observed that despite acquittal in one case, the Court is competent in another case to proceed on the basis, if the evidence so warrants, that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the latter case that the person tried in it was guilty of an offence with the help of section 34 of the Code by virtue of having committed the offence along with the acquitted person.
In the case of State v. Ashok Kumar Srivastava, relating to bride burning the accused husband and the in-laws of the deceased were unhappy over dowry brought by her. It was proved that she had been ill-treated and tortured both before and on the fateful day. None of the accused came to the rescue of the deceased while she was on fire and they all had absconded after the incident. The presence of the eye-witnesses was natural and there was no reason for the accused persons to be implicated falsely. Their evidence could not be held to be doubtful simply because their names did not exist in the F.I.R. The Supreme Court held the accused persons liable under section 302 read with section 34 of the Code.
In State v. Damburu Naiko, gang rape was committed in broad day-light. The prosecutrix had enough opportunity to see the accused persons. They were identified by her. The medical evidence showed that she had injuries on her private parts. The evidence of the prosecutrix appeared to be truthful and needed no corroboration. However, such corroboration was provided by the medical evidence and also by the F.I.R. lodged by her. The Supreme Court set aside the order of acquittal and held them guilty under sections 376/34 of the Code.
In State v. Prakasli, one of the accused persons was a police constable and the other a businessman while the victim and her husband were labourers. The husband of the victim was beaten by the constable and was threatened to be kept in police remand. Both the accused subsequently had sexual intercourse with the victim. There was no suggestion that she had consented out of love or for money. There was also no allegation that she was a prostitute. It was held by the Supreme Court that the victim was made to surrender under threat and duress and, therefore, both the accused were guilty under section 376 read with section 34 of the Code.
Confession corroborated by other evidence
In State v. Sukhdeo Singh, both the accused persons in their confessional statements admitted their involvement in the commission of murder of the former Army Chief of India. The evidence showed that both of them were acting in concert and that they had fired shots on the deceased in furtherance of their common intention. The Supreme Court convicted them under section 302 read with section 34 of the Code.
Conviction altered on the basis of evidence
In Rama Meru v. State, the principal witness did not see any of the appellant accused, armed with knives, inflicting any knife blows on the deceased. No explanation was given by the prosecution about cut injuries on the person of the accused. The medical evidence stated that though the injuries were collectively sufficient to cause death of the accused, but individually they were not sufficient to cause death. The Supreme Court held that there was no common intention to commit murder but only grievous hurt. Accordingly, the conviction was altered from under sections 302/34 to under sections 326/34 of the Code.
In Gurdeep Singh v. Jaswant Singh, it could not be proved by evidence that the accused persons had intention to cause death of the deceased. One of them caused injury to the victim with the knowledge that it was likely to cause death. The other two accused caused such injuries which were not on vital parts of the body of the victim. It was held by the Supreme Court that the former was liable under section 304 Part II of the Code while the other two were guilty under sections 326/34 of the Code.
In Wazir Singh v. State, the deceased and the accused persons were close relatives but their relations were strained. In all thirteen injuries were caused by the accused persons on the deceased in broad daylight. Out of these only one injury on the head was inflicted by the main accused which was sufficient in the ordinary course of nature to cause death.
The weapon used by him was used for cutting wood and the main accused himself had started the attack. The evidence of the eye-witnesses as well as the medical evidence were corroborated by other facts and circumstances of the case.
Some of the accused persons used blunt weapons in the attack and no injury on any vital part of the body of the deceased was attributable to them. The Supreme Court held the main accused guilty under section 302 of the Code while the convictions of other accused were altered under section 304, Part II read with section 34 of the Code.
Parasuraman v. State, is a case where the participation of the accused persons in the occurrence resulting in the death of the victim was proved. Most of the injuries found on the body of the deceased were external and on lower parts of the legs and arms. The Supreme Court observed that the evidence showed that the common intention of the accused persons was not to commit murder but only to cause grievous hurt.
Consequently, the conviction was altered from section 304, Part I read with section 34 to
one under sections 325/34 of the Code. In Munna v. State, the accused and the co-accused were convicted by the High Court of committing the murder of the deceased in furtherance of their common intention. They pleaded right of private defence on the ground that injuries were found on their person. According to the medical evidence these injuries on the person of the accused were not sustained during the course of the incident but thereafter.
The plea of private defence was accordingly rejected by the Court. The evidence and circumstances of the case showed that the accused and the co-accused shared a common intention to beat the victim physically and not to cause his death. The main accused, however, suddenly stabbed the victim resulting in his death. The Supreme Court held that the co-accused could not be convicted under sections 302/34 and the conviction was altered to one under sections 326/34 of the Code.
In Gajjan Singh v. State of Punjab, the evidence clearly established that both the accused went together to the place of the incident and fired one shot each at the deceased. One of the accused was charged under section 302/149. The High Court convicted under section 302/34. The Supreme Court held that the conviction was not illegal.
If the accused has fired on the deceased at the instance of his coaccused, he is guilty under sections 302/34 as he has done the act in furtherance of their common intention. His conviction stands even if his co-accused are acquitted on the ground of benefit of doubt. Common intention can be deduced where an accused fires on the deceased at the instance of a co-accused who knew that the accused was armed with a pistol.
While committing a comparatively less serious crime if the accused develop the eagerness to commit murder, the principle of common intention applies and all are guilty of murder. Common intention is established by the fact that the accused has actively helped his co-accused, who is armed with a deadly weapon, to search their enemy and also to attack him on a vulnerable part of his body.
Where there was no evidence to show that the accused had taken part in a murder in furtherance of the common intention of all but had knowledge of the murder, and had caused its evidence to disappear with the intention of screening the offender, her conviction was altered from under section 302 read with section 34 to one under sections 201/34 of the Code.
Three persons proceeding late at night were challenged and on pulling of an arm of one of them some disguise caps fell down. When each of them was caught by the arm two of them fired on the captor killing him. They both escaped but the third accused was overpowered. It was held that he was guilty under section 302 read with section 34 of the Code.
Where the evidence conclusively establishes a common intention between two or more persons to kill the deceased, it is immaterial as to who gave the fatal blow. Where A and Â suddenly emerged out of darkness and Â gave one axe blow on the left arm of the deceased while A gave one axe blow on his abdomen which proved fatal, both A and Â were guilty of murder committed in furtherance of their common intenion. Pre-arranged plan could develop on the spot when the crime is being committed but the important thing is that the same must always precede the criminal act.
Where one of the two accused caught the deceased firmly while the other one inflicted three stab wounds on him resulting in his death, and both remained together till they were arrested, they were convicted under sections 302/34 of the Code. In Vishwanath Shanthamallappa Dhule v. State of Karnataka , the Supreme Court held that where one of the accused persons gave axe blows while the other only raised his axe, both would be guilty under sections 302/34. Where an accused was guarding the place with a spear in his hand while the other one was killing the deceased, sections 302/34 applied.
In Kashmira Singh v. State of Punjab, the appellant accused along with a coaccused caught hold of the deceased while another accused took out a knife from his pocket and inflicted a single injury on the deceased, the appellant accused not having knowledge that the other accused was armed with knife. It was held by the Supreme Court that the appellant-accused had no common intention and his conviction under sections 302/34 was set aside.
In Kuldip Singh v. State of Punjab, one of the accused inflicted a blow by a sharp-edged weapon on the head of the victim while another accused gave only one lathi blow on his shoulder. The Supreme Court held that there was no common intention between the two and, therefore, the accused using sharp-edged weapon was guilty of attempted murder under section 307 and the other one for causing simple hurt only under section 323, and the latter was ordered to be released on probation.
In Joginder Singh v. State of Himachal Pradesh, in course of a land dispute the accused persons allegedly armed with deadly weapons assaulted the deceased causing his death. It was held, that the evidence of eye-witnesses who were close relatives of the deceased connecting all the four accused with the occurrence was truthful and so the acquittal of one of the accused who also participated equally was not sustainable. In Anup Singh v. State of Himachal Pradesh, a person was confined in a police station and beaten.
The police constables were under the control of the officer incharge of the police station and on his verbal orders the detenu was beaten. The Supreme Court held the officer guilty with the aid of section 34 under sections 217, 330 and 348 of the Code and observed that his continued presence throughout was not necessary. In Dalip Kumar v. State of Delhi, the co-accused caught hold of the deceased while the accused gave a blow by a screw-driver on the head of the victim as a result of which he died.
The evidence of the sole eye witness showed that the co-accused had no knowledge that the accused was going to kill the deceased but he did know that grievous injury was going to be inflicted. The Delhi High Court held the accused guilty of intentional murder on the basis of section 300(1) and the co-accused under sections 326/34.
In Dhanna v. State of Madhya Pradesh, the Supreme Court held that court can take recourse to section 34 even if the said section was not specifically mentioned in the charge. In Bhapinder Singh v. State of Haryana, the accused and his companions misbehaved in a cinema hall and when they were chased by the police they tried to run away. The accused took out a weapon obviously to assault the constable when the coaccused took it from his hand and assaulted the constable by it resulting in his death.
The Supreme Court held them guilty of murder under sections 302/34. In State of U.P. v. Rohan Singh, the evidence showed that the injured person received injuries at the hands of the first accused only while the deceased died as a result of injury caused by gun shot fired by another accused. The Supreme Court held that both accused could be said to have shared similar intention to shoot at two victims but their mere presence together is not sufficient to hold that they both shared common intention to commit murder.
Hence conviction of the first accused under section 307 and the other under section 302 was proper. In Vishnu Daga Pagar v. State of Maharashtra, two out of three accused were erroneously acquitted of murder. It was held that the third accused who had committed the offence in furthernance of common intention of all the three could be convicted under sections 302/34.
In Brijlala Prasad Sinha v. State of Biliar, the charge was that some police officers had killed occupants of a speeding vehicle by chasing them. There was no evidence showing that they had a common intention to kill when they left the police station for chasing the vehicle. They were armed with revolvers and the constables with rifles. The police started indiscriminate firing at a particular place where the vehicle of the deceased was found stationary.
The post-mortem report showed that the deceased were killed on account of shooting by rifles. However, the vehicle in which the deceased were moving was found to have been fired at by revolvers. The Supreme Court held that all police personnel developed common intention to kill at that particular place and were liable to be convicted under sections 302 and 34.
One accused who had not accompanied the other police officials in the chase and had left the police station after about half an hour by a private jeep was, however, given the benefit of doubt. In Vishwanath Shanthamallappa Dhule v. State of Karnataka5 one of the two accused persons gave axe blows on the deceased while the other only raised his axe. The Supreme Court held both of them guilty under sections 302/34.
In Omkar Moatiram Kale v. State of Maharashtra, the accused persons came together armed with swords. While one started assaulting the deceased, the other started assaulting another who came to interfere. The act of the second accused in assaulting another was with a view that the assault on the first victim was not interfered with. The Bombay High Court held both the accused guilty under sections 302/34 for murder of the first victim and under sections 326/34 for grievous hurt caused to the second victim.
In Ramji Singh v. State of Bihar, the accused persons went to the house of the deceased together and started to assault him. They continued to cause injuries even after the wife of the deceased had intervened and even after the deceased had asked for water. They were charged for murder. The Supreme Court held that the accused persons could be convicted under sections 302/34 even though there was no evidence of prior meeting of minds between them because the facts clearly proved intention to kill on the part of both of them together.
In Sukhan Raut v. State of Bihar, the common object of an unlawful assembly was to commit criminal trespass. No injury to kill the deceased was caused by any member of the assembly pursuant to the common object. Injury was caused by one member only when provoked by another member. The Supreme Court held that all members cannot be presumed to be aware of the offence of murder and so they are not guilty under sections 302/149. But the only accused who caused the injury and the one who instigated him can be held guilty under sections 302/34 for sharing a common intention.
In Malhu Yadav v. State of Bihar, the accused were charged under sections 302/149. The incident had occurred when they had entered into the field of the deceased and started uprooting standing crop. The deceased caught hold of the main accused. The other accused came to the scene of occurrence and asked for release of the main accused. On refusal by the deceased, the accused persons started assaulting the deceased on the spur of the moment. The Supreme Court held that though common object of the accused thus was not proved but their common intention was formed during the transaction on the spot though initially this too was not in existence. The accused were thus guilty under sections 302/34.
In Karnam Ram Narsaiah v. State of Andhra Pradesh, where the accused persons were waiting for the victim to come and they conjointly attacked him with common intention resulting into his death and there were multiple injuries on the body of the deceased and no evidence as to who caused the fatal injury, the Supreme Court held the conviction of the accused persons under sections 302/34 proper even in the absence of charge under section 34.
In Prakash v. State of Madhya Pradesh, the accused persons armed with lathis chased the unarmed deceased. Witnesses intervened and tried to pacify them. The appellant and co-accused jumped over a hedge to reach near the deceased. The appellant immobilised the deceased by attacking his legs while the co-accused caused other injuries including the fatal one. The Supreme Court ruled that common intention of the appellant is evident and thus his conviction under sections 302/34 is proper.
The deceased was first examined by a doctor in the primary health centre who noticed a single head injury while the doctor performing the autopsy noticed injuries on head, back and left shoulder. The Court ruled that there was no inconsistency between the two doctors because the primary health centre doctor attended only the most important emergency, i.e., the head injury.
In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, on the dispute of cleaning of drain which took place in the early hours on the date of the alleged incident, the accused party belonging to one family barged into the house of the complainant, manhandled her inside and dragged her out where she was beaten repeatedly. The Supreme Court held that the act clearly makes out a case of common intention in committing house trespass and causing hurt.
In Imtiaz v. State of Uttar Pradesh, the complainant, his brother including the deceased and one M were cleaning the filthy water of their latrine and digging a pit. They were forbidden to do so by the appellants and accused who came to the spot with deadly weapons, spears and lathis.
The complainant and his brothers continued their work and did not stop as asked. Spear blows were inflicted on the deceased and M who was injured. The Supreme Court applied section 34 and convicted them of murder rejecting defences under exceptions 1 and 4 of section 300 of the Code. Common intention was inferred from the surrounding circumstances and conduct of the accused persons.
In Jodhraj Singh v. State of Rajasthan, the appellant was seen in the company of other accused persons. He had participated in commission of the offence. The accused persons armed with weapons came together on to the spot and left the spot together. The motive behind the commission of the offence was also established. The Supreme Court held that common intention between them could not be said to be absent merely because the ultimate cause of death was assault by stone on the head of the deceased by one accused. Conviction of the accused under section 302/34 was, therefore, proper.
In Balwant Singh v. State of Punjab, all accused going together armed with deadly weapons caused fatal injuries on the deceased. The Supreme Court held that all of them were liable to be convicted and absence of evidence as to part played by each accused was inconsequential.
In Hemchand Jha v. State of Biharp the appellant accused and one Ê came on to the spot on a motor bike. The appellant was driving it. Both got down and Ê went close to the deceased and fired from a pistol near the deceased’s ear. The eye-witnesses who tried to apprehend them were threatened with dire consequences. The Supreme Court did not interfere with their conviction under sections 302/34 of the Code.
In Rajesh Kumar v. State of Himachal Pradesh, the appellant with one other person allegedly assaulted the deceased with stick and Drat respectively. The fatal injury was proved to be caused by the other accused armed with the Drat. Injuries caused by the appellant with stick were on non-vital parts. Evidence showed that the appellant was overpowered and disarmed. He thereafter did nothing except running away. The Supreme Court held that in the circumstances the appellant was not guilty under section 302/34 and his conviction was altered to one under section 326 of the Code.
In Munnilal v. State of Madhya Pradesh, the appellant along with others allegedly killed the deceased by assaulting him by axe and sword. The incident was alleged to have taken place out of enmity. The appellant had no enmity with the deceased and was neither armed nor had done any overt act. The Supreme Court held that the mere fact that he was in the company of the accused who were armed would not be sufficient to attract section 34 and his conviction was liable to be set aside.
In Ramdeo Kahar v. State of Bihar, the accused persons came together heavily armed searching for one person. On being informed by the deceased that he was not there, the accused fired at the deceased. Other accused persons prevented the prosecution witnesses from helping the deceased by assaulting them. The Supreme Court held that common intention of the accused stands proved. Merely because the accused caused the death of the person than the person they were looking for is not sufficient to disprove their liability.
In Krishna Ghosh v. State of West Bengal, a single appeal was filed by the deceased’s mother-in-law, husband and sister-in-law against their conviction under sections 302, 34 and 498-A. The doctor opined that death was due to asphyxia resulting from throttling. It was within one year and four months of her marriage. Her body was found in her matrimonial home. The Supreme Court dismissed their appeal and held the convictions proper.
In Jai Kumar v. State of Haryana, the appellant along with other accused persons and the deceased were travelling in a tractor. One accused who drove the tractor stopped it on a bridge over a canal. They started robbing the deceased. On an altercation the deceased was thrown into the canal by the appellant and the driver. The deceased tried to save himself but was again kicked by the appellant and again thrown into the water. He died of drowning. The Supreme Court, rejecting the appeal, held the conviction of the appellant under sections 302, 392 and 34 of the Code proper.
Distinction between sections 34 and sections 120-A and 149 of the Indian Penal Code:
The distinction between sections, 34 and 120-A and 34 and 149, have been discussed in detail under sections 120-A and 149 of the Code respectively.