REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1316  OF 2002

Virendra Singh                   …Appellant

Versus

State of Madhya Pradesh              ….Respondent

J U D G M E N T

DALVEER BHANDARI, J.

1. This  appeal  has  been  preferred  by  the  appellant  

Virendra  Singh  against  the  judgment  dated  17.5.2002  

passed by the High Court of Judicature of Madhya Pradesh,  

Bench at Gwalior in Criminal Appeal No. 262 of 1986.

2. Brief facts which are necessary to dispose of the appeal  

are as under:

Hakim Singh and  his  two sons  Virendra  Singh  and  

Kamlesh Singh went to the house of the deceased Bhagirath

and asked him to reap their crop the next day.  Bhagirath  

informed that he would not be able to reap their crop as he  

had  to  reap  the  crop  grown  in  his  own  field.   He  also  

informed the accused persons that apart from reaping his  

crop he would also be busy in ‘lagan ceremony’ of his son  

Satyanarain and Tilak ceremony of  his grandson, Lakhan  

which was going to be performed after two days.  In spite of  

his clear explanation for not being able to reap the crop of  

the  accused  persons,  they  pressurized  the  deceased  

Bhagirath to reap the crop standing on their  field.    The  

accused persons got annoyed on deceased’s refusal to reap  

their crop.  Accused Hakim Singh, Kamlesh and Virendra  

Singh armed with weapons went to the house of Bhagirath  

the next day at 7.00 a.m.  to take revenge for declining to  

carry out the order of the accused persons. Virendra Singh  

and Hakim Singh were armed with lathis and Kamlesh was  

armed with a rifle.   They asked Bhagirath why he had not  

gone to reap their crop.  The deceased replied that he had  

already informed them that he would not be in a position to  

reap their crop for the aforementioned reasons.  On getting  

this response, accused persons, namely, Hakim Singh and  

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Virendra  Singh  got  infuriated  and  started  hurling  filthy  

abuses and beating Baburam, son of the deceased.  When  

Hakim Singh and Virendra Singh were assaulting Baburam  

with lathis, then Lakhan, Rakesh, Satyanarain, son of the  

deceased,  Ramshri,  mother  of  Baburam  and  Rajkumari,  

sister of Baburam rushed to save Baburam.  Hakim Singh  

and Virendra Singh also assaulted Lakhan with lathis on  

the head,  shoulder  and back.   The accused persons also  

caused injuries to Ramshri and Satyanarain.   

3. The deceased Bhagirath intervened.  At that point of  

time  Hakim Singh exhorted  Kamlesh  to  shoot  Bhagirath.  

Kamlesh shot at Bhagirath in the stomach, which resulted  

in his death.  Kamlesh also fired at Baburam but the bullets  

missed him.  After commission of the offence the accused  

persons  ran  away  towards  the  canal.   The  incident  was  

witnessed by Ramsahay P.W.11 and Bhoorelal.   

4. The trial court, after scrutinizing the entire evidence on  

record,  convicted  Hakim  Singh,  Kamlesh  and  Virendra  

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Singh under section 302 read with section 34 of the Indian  

Penal Code (for short, IPC).   

5. It  was  canvassed  before  the  trial  court  that  the  

deceased had died because of the fire arm injury caused by  

Kamlesh,  therefore,  Virendra  Singh  and  Hakim  Singh  

cannot be convicted under section 302 read with section 34  

of the Indian Penal Code.

6. Baburam P.W. 6 is an injured eye witness.   He had  

given  the  graphic  description  of  the  entire  incident  and  

specifically  mentioned  that  Kamlesh  and  Virendra  Singh  

had abused him and then Hakim Singh and Virendra Singh  

had beaten him with lathis.  He further deposed that when  

his mother came to save him, then accused Hakim Singh  

and Virendra Singh had assaulted his mother also on her  

hand and head by lathis, which resulted in the fracture of  

her hand.  The accused also assaulted Lakhan on the head  

by lathi.  It was further deposed by Baburam P.W. 6 that  

Hakim Singh then asked Kamlesh to shoot Bhagirath and  

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Kamlesh shot at Bhagirath.  The pallets of the bullet also  

injured Satyanarain and his sister Rajkumari.   

7. Satyanarain  P.W.7  had  also  given  the  detailed  

description  of  the  entire  incident  and  specifically  stated  

about the role of the appellant Virendra Singh in the entire  

incident.   

8. Rajkumari P.W.10 has categorically stated that Hakim  

Singh  along  with  Virendra  Singh  armed  with  lathis  and  

Kamlesh  armed  with  a  firearm  came  to  the  house  of  

Bhagirath and started abusing him and thereafter  Hakim  

Singh and Virendra Singh assaulted Baburam with lathis.  

When Baburam shouted  on  getting  lathi  blows,  then  his  

mother Ramshri, Satyanarain and Lakhan rushed to save  

him.  Both Hakim Singh and Virendra Singh also assaulted  

Ramshri,  the mother of Baburam on her hand and head,  

which resulted into a fracture of  her  hand.  Lakhan was  

also assaulted.   

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9. The version of prosecution witnesses is consistent and,  

despite gruelling and long cross-examination, no dent could  

be made by the defence on the testimony of the prosecution  

witnesses.  The trial court convicted all the three accused  

under section 302 read with section 34 of the Indian Penal  

Code.

10. Hakim Singh died during the pendency of the appeal.  

In  appeal  by  the  remaining  two  accused  Kamlesh  and  

Virendra Singh, the High Court again carefully scrutinized  

the entire evidence and came to a clear conclusion that the  

appellant Virendra Singh is also guilty under section 302  

read with section 34 of the Indian Penal Code.

11. The High Court observed that all the accused persons  

went  to  the  house  of  the  deceased  Bhagirath  with  the  

intention to teach him a lesson.  Immediately on reaching  

the spot Virendra Singh and Hakim Singh started beating  

Baburam  with  lathis  and  when  deceased  Bhagirath  

intervened, he was shot at by Kamlesh in furtherance of the  

commission of offence.     

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12. In the facts and circumstances of this case, it cannot  

be concluded that death was caused on account of grave or  

sudden provocation.  On the contrary, it is fully established  

that all the accused had gone to the house of Bhagirath to  

teach him a lesson armed with lathis and a rifle, because  

the previous day the deceased declined to follow their orders  

of reaping their crops because of his reasons.  On Hakim  

Singh’s  exhortation,  Kamlesh  fired  at  the  deceased  

Bhagirath causing his death.  According to the prosecution,  

the appellant Virendra Singh is clearly guilty of an offence  

under sections 302 read with 34 IPC.   Admittedly, all the  

three accused in consonance with the prearranged plan had  

gone to the house of the deceased to teach him a lesson for  

disobeying their orders.  All three of them were armed with  

weapons,  so  there  was  a  prior  meeting  of  minds  or  pre-

concert.   

13. The High Court, on the basis of the entire evidence on  

record,  came  to  a  definite  conclusion  that  the  appellant  

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Virendra Singh is guilty under section 302 read with section  

34 of the Indian Penal Code.

14. The appellant being aggrieved by the judgment of the  

High Court preferred this appeal.

15. We  have  again  scrutinized  the  entire  evidence  on  

record to satisfy ourselves whether the appellant Virendra  

Singh has been wrongly convicted under section 302 read  

with section 34 IPC?    

16. According  to  the  appellant,  in  the  facts  and  

circumstances of this case, section 34 IPC could not have  

been invoked.  In order to deal with this argument, it has  

become imperative to deal with section 34 IPC. It reads as  

under:

“34.  Acts  done  by  several  persons  in  furtherance  of  common  intention.-  When  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.”

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17. Ordinarily, a person is responsible for his own act.   A  

person can also  be  vicariously  responsible  for  the  acts  of  

others if he had the common intention to commit the offence.

18. The words “common intention” implies a pre-arranged  

plan and acting in concert pursuant to the plan.  It must be  

proved that the criminal act was done in concert pursuant to  

the pre-arranged plan.  Common intention comes into force  

prior to the commission of the act in point of time, which  

need not be a long gap.   Under this section a pre-concert in  

the sense of a distinct previous plan is not necessary to be  

proved.  The common intention to bring about a particular  

result may well develop on the spot as between a number of  

persons,  with  reference  to  the  facts  of  the  case  and  

circumstances of the situation.  Though common intention  

may develop on the spot,  it  must, however, be anterior in  

point of time to the commission of the crime showing a pre-

arranged  plan  and  prior  concert.   The  common  intention  

may develop in course of the fight but there must be clear  

and unimpeachable evidence to justify that inference.  This  

has  been  clearly  laid  down  by  this  Court  in  the  case  of  

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Amrik Singh & Ors. v.  State of Punjab 1972 CrLJ 465  

(SC).    

19. The  essence  of  the  liability  is  to  be  found  in  the  

existence  of  a  common  intention  animating  the  accused  

leading to the doing of a criminal act in furtherance of such  

intention.  

20. Undoubtedly, it is difficult to prove even the intention of  

an individual  and,  therefore,  it  is  all  the  more  difficult  to  

show  the  common  intention  of  a  group  of  persons.  

Therefore,  in  order  to  find  whether  a  person  is  guilty  of  

common intention, it is absolutely necessary to carefully and  

critically  examine  the  entire  evidence  on  record.    The  

common intention can be spelt out only from the evidence on  

record.

21. Section 34 is not a substantive offence.  It is imperative  

that  before  a  man  can  be  held  liable  for  acts  done  by  

another,  under  the  provisions  of  this  section,  it  must  be  

established that there was common intention in the sense of  

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a pre-arranged plan between the two and the person sought  

to be so held liable had participated in some manner in the  

act constituting the offence.  Unless common intention and  

participation are both present, this section cannot apply.

22. Section 34 IPC is part of the original Code of 1860 as  

drafted by Thomas Babington Macaulay, later known as Lord  

Macaulay.  The original Section as it stood was as follows:

“When a criminal act is done by several persons,  each of such persons is liable for that act in the  same manner as if the act was done by him alone.”

23. However, on account of certain observations made by  

Sir Barnes Peacock C.J. in  Queen v.  Gora Chand Gope &  

Ors. (1866) 5 South WR (Cri) 45, it was necessary to bring  

about a change in the wordings of the section. Accordingly,  

in  the  year  1870  an  amendment  was  brought  which  

introduced the following words after….. When a criminal act  

is  done  by  several  persons…..  “…..in  furtherance  of  the  

common intention….”  After this change, the section has not  

been changed or amended ever.

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24.  The  case  of  Barendra  Kumar  Ghosh v.  King  

Emperor  AIR 1925 PC 1 is a locus classicus and has been  

followed by number of High Courts and this court in a large  

number of cases.  In this case, the Judicial Committee dealt  

with the scope of section 34 dealing with the acts done in  

furtherance  of  the  common  intention,  making  all  equally  

liable  for  the  results  of  all  the  acts  of  others.   It  was  

observed:

“……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 omissions 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 co-operates 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'.  By  Section 38,  when several  persons are  engaged  or  concerned  in  the  commission  of  a  criminal  act,  they  may  be  guilty  of  different  offences  by  means  of  that  act.  Read  together,  these sections are reasonably plain.  Section 34  deals with the doing of separate acts, similar or  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  

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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.   Section  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.  Section  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."

25. It was further observed that section 34 when it speaks  

of a criminal act done by several persons in furtherance of  

the common intention of all, has regard not to the offence as  

a whole, but to the criminal act, that is to say, the totality of  

the series of acts which result in the offence.  In the case of a  

person assaulted by many accused, the criminal act is the  

offence which finally results, though the achievement of that  

criminal  act  may  be  the  result  of  the  action  of  several  

persons.

26. In  another  celebrated  case  Mehbub  Shah  v.  King-

Emperor AIR 1945 PC 148, the court held that “Section 34  

lays  down  a  principle  of  joint  liability  in  the  doing  of  a  

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criminal  act.  The  section  does  not  say  “the  common  

intentions of all,” nor does it say “an intention common to  

all.”  Under the section, the essence of that liability is to be  

found in the existence of a common intention animating the  

accused leading to the doing of a criminal act in furtherance  

of  such  intention.  To  invoke  the  aid  of  section  34  

successfully,  it  must  be  shown  that  the  criminal  act  

complained against was done by one of the accused persons  

in the furtherance of the common intention of all; if this is  

shown, then liability for the crime may be imposed on any  

one of the persons in the same manner as if the act were  

done by him alone. This being the principle,  it  is clear to  

their Lordships that common intention within the meaning  

of the 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.”

27. In  Pandurang,  Tukia and Bhillia v.  The State of  

Hyderabad (1955) 1 SCR 1083, this Court laid down that it  

is well  settled that common intention in section 34 of the  

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Indian Penal Code presupposes prior concert, because before  

a man can be vicariously convicted for the criminal act of  

another, the act must have been done in furtherance of the  

common intention of them all.    

28. In Mohan Singh & Anr.  v. State of Punjab AIR 1963  

SC 174, this Court observed that 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.  

29. In State of U.P. v. Iftikhar Khan & Ors. (1973) 1 SCC  

512 it was observed that to attract Section 34 IPC it is not  

necessary that any overt act should have been done by the  

co-accused. In this case four accused persons were convicted  

on a fact situation that two of them were armed with pistols  

and the other two were armed with lathis and all the four  

together walked in a body towards the deceased and after  

firing the pistols at the deceased all the four together left the  

scene. The finding of fact in that case was also the same.  

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When a plea was made on behalf of those two persons who  

were armed with lathis that they did not do any overt act,  

this  Court  made the above observation.  From the facts of  

that case it can be said that there was no act on behalf of the  

two  lathi  holders  although  the  deceased  was  killed  by  a  

pistol shot. The criminal act in that case was done by all the  

persons in furtherance of the common intention to kill the  

deceased.

30. In  Ramaswami  Ayyangar  &  Others v.  State  of  

Tamil Nadu (1976)  3 SCC 779, this Court  declared that  

Section 34 is  to be read along with preceding Section 33  

which makes it clear that the "act" mentioned in Section 34  

includes a series of acts as a single act. The acts committed  

by  different  confederates  in  the  criminal  action  may  be  

different but all  must in one way or the other participate  

and engage in the criminal enterprise. Even a person not  

doing any particular act but only standing guard to prevent  

any prospective aid to the victims may be guilty of common  

intention. However, it is essential that in case of an offence  

involving physical violence it is essential for the application  

of Section 34 that such accused must be physically present  

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at  the  actual  commission  of  crime  for  the  purposes  of  

facilitating accomplishment of "criminal act" as mentioned  

in that section. In this case, 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  PW1  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 case was upheld.

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31. In Rambilas Singh & Ors. v. State of Bihar (1989) 3  

SCC 605, this Court held as under:

"It  is  true  that  in  order  to  convict  persons  vicariously under section 34 or section149 IPC, it  is not necessary to prove that each and everyone  of them had indulged in overt acts. Even so, there  must be material to show that the overt act or acts  of one or more of the accused was or were done in  furtherance  of  the  common  intention  of  all  the  accused or in prosecution of the common object of  the members of the unlawful assembly."

32. In Krishnan & Another. v. State of Kerala  (1996) 10  

SCC  508,  this  Court  even  assuming  that  one  of  the  

appellants had not caused the injury to the deceased, upheld  

his  conviction  under  Section  302/34  of  the  Penal  Code  

holding:

"15. Question is whether it is obligatory on  the  part  of  the  prosecution  to  establish  commission  of  overt  act  to  press  into  service  section 34 of the Penal Code. It is no doubt true  that court likes to know about overt act to decide  whether  the  concerned  person  had  shared  the  common  intention  in  question.  Question  is  whether overt act has always to be established? I  am of the view that establishment 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  

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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."

33. In Surendra Chauhan v.  State of M.P. (2000) 4 SCC  

110,  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:

"11. Under  Section  34  a  person  must  be  physically present at the actual commission of the  crime for the purpose of facilitating or promoting  the offence, the commission of which is the aim of  the joint criminal venture. Such presence of those  who  in  one  way  or  the  other  facilitate  the  execution  of  the  common  design  is  itself  tantamount to actual participation in the criminal  act.  The  essence  of  Section  34  is  simultaneous  consensus of the minds of persons participating in  the  criminal  action  to  bring  about  a  particular  result.  Such consensus can be developed at the  spot  and  thereby  intended  by  all  of  them.  

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(Ramaswami  Ayyangar  v.  State  of  T.N.  (1976)  3  SCC 779)  The existence of a common intention  can be inferred from the attending circumstances  of  the  case  and  the  conduct  of  the  parties.  No  direct evidence of common intention is necessary.  For  the  purpose  of  common  intention  even  the  participation  in  the  commission  of  the  offence  need  not  be  proved  in  all  cases.  The  common  intention can develop even during the course of an  occurrence.  (Rajesh  Govind  Jagesha  v.  State  of  Maharashtra  (1999)  8  SCC  428).    To  apply  Section  34  IPC  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  an 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  but  if  participation  of  the accused in the crime is proved and a common  intention is absent, Section 34 cannot be invoked.  In  every  case,  it  is  not  possible  to  have  direct  evidence  of  a  common  intention.  It  has  to  be  inferred from the facts and circumstances of each  case."

34. In  Suresh & Another  v. State of U.P. (2001) 3 SCC  

673,  Section  34  of  the  Indian  Penal  Code  recognizes  the  

principle of vicarious liability in the 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  

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more than two persons intentionally do a thing jointly, it is  

just the same as if each of them had done it individually. The  

common intention pre-supposes prior concert. Such a pre-

concert or pre-planning 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.  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.

35. In that case,  it  was also observed that the dominant  

feature for attracting section 34 of the Indian Penal Code is  

the  element  of  participation  in  absence  resulting  in  the  

ultimate “criminal act”.   The section does not envisage the  

separate  act  by  all  the  accused  persons  for  becoming  

responsible  for  ultimate  criminal  act.   If  such  an  

interpretation is accepted, the purpose of section 34 shall be  

rendered infructuous.

36. It was further observed that what is required under law  

is that the accused persons sharing the common intention  

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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  share  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.

37. In Gopi Nath @  Jhallar v. State of U.P. (2001) 6 SCC  

620 it was observed as under:

“8. ….. As  for  the  challenge  made  to  the  conviction under Section 302 read with Section 23  IPC,  it  is  necessary  to  advert  to  the  salient  principles to be kept into consideration and often  reiterated by this Court, in the matter of invoking  the aid of Section 34 IPC, before dealing with the  factual aspect of the claim made on behalf of the  appellant.  Section  34  IPC  has  been  held  to  lay  down the  rule  of  joint  responsibility  for  criminal  acts performed by plurality or persons who jointed  together  in doing the  criminal  act,  provided that  such commission is in furtherance of the common  intention of all of them. Even the doing of separate,  similar or diverse acts by several persons, so long  as  they  are  done  in  furtherance  of  a  common  intention,  render  each of  such persons liable  for  the  result  of  them  all,  as  if  he  had  done  them  himself, for the whole of the criminal action - be it  

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that  it  was  not  overt  or  was  only  covert  act  or  merely  an  omission  constituting  an  illegal  omission. The Section, therefore, has been held to  be attracted even where the acts committed by the  different  confederates  are  different  when  it  is  established in one way or the other that all of them  participated  and  engaged  themselves  in  furtherance of the common intention which might  be of a pre-concerted or pre-arranged plan or one  manifested or developed at the spur of the moment  in the course of the commission of the offence. The  common intention or the intention of the individual  concerned in furtherance of the common intention  could be proved either from direct evidence or by  inference from the acts or attending circumstances  of the case and conduct of the parties. The ultimate  decision,  at  any  rate,  would  invariably  depend  upon  the  inferences  deducible  from  the  circumstances of each case.”

38. In  Krishnan  &  Anr. v.  State  represented  by  

Inspector of Police (2003) 7 SCC 56, it was observed that  

section 34 is dependent on the circumstances of each case.  

No  hard  and  fast  rule  can  be  made  out  regarding  

applicability or non-applicability of section 34.

39. In Girija Shankar v. State of U.P. (2004) 3 SCC 793,  

it  was  observed  that  section  34  has  been  enacted  to  

elucidate the principle of joint liability of a criminal act.

“Section 34 has been enacted on the principle of  joint liability in the doing of a criminal act.  The  section is  only  a  rule  of  evidence  and does  not  

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create  a  substantive  offence.   The  distinctive  feature  of  the  section  is  the  element  of  participation in action.  The liability of one person  for an offence committed by another in the course  of  criminal  act  perpetrated  by  several  persons  arises  under  Section  34  if  such  criminal  act  is  done in furtherance of a common intention of the  persons who join in committing the crime.  Direct  proof  of  common  intention  is  seldom  available  and, therefore, such intention can only be inferred  from the circumstances appearing from the proved  facts of  the case and the proved circumstances.  In  order  to  bring  home  the  charge  of  common  intention,  the  prosecution  has  to  establish  by  evidence,  whether  direct  or  circumstantial,  that  there  was  plan  or  meeting  of  minds  of  all  the  accused persons to commit the offence for which  they are charged with the aid of Section 34, be it  pre-arranged or on the spur of the moment; but it  must necessarily be before the commission of the  crime. The true concept of the section is that if  two  or  more  persons  intentionally  do  an  act  jointly, the position in law is just the same is if  each of them has done it individually by himself.  The existence of a common intention amongst the  participants in a crime is the essential element for  application of this section.  It is not necessary that  the  acts  of  the  several  persons  charged  with  commission of an offence jointly must be the same  or identically similar.  The acts may be different in  character,  but  must have been actuated by one  and  the  same  common  intention  in  order  to  attract the provision.”

40. In Ramesh Singh @ Photti v. State of A.P. (2004) 11  

SCC 305, it has been observed as under:

“12. ……. As a general principle in a case of  criminal liability it is the primary responsibility of  the person who actually commits the offence and  

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only  that  person  who  has  committed  the  crime  can be held guilty.  By introducing Section 34 in  the  Penal  Code  the  legislature  laid  down  the  principle of joint liability in doing a criminal act.  The essence of that liability is to be found in the  existence of  a  common intention connecting the  accused leading to the doing of a criminal act in  furtherance of such intention.  Thus, if the act is  the  result  of  a  common  intention  then  every  person who did the criminal act with that common  intention  would  be  responsible  for  the  offence  committed irrespective of the share which he had  in its perpetration. ………”

41. Referring to the facts of this case, the short question  

which arises for adjudication in this appeal is whether the  

appellant Virendra Singh can be convicted under section 302  

with the aid of section 34 IPC.  Under the Indian Penal Code,  

the  persons  who are  connected  with  the  preparation  of  a  

crime are divided into two categories: (1) those who actually  

commit the crime, i.e. principals in the first degree; and (b)  

those who aid in the actual commission, i.e. principals in the  

second degree.    Law does not make any distinction with  

regard to the punishment of such persons, all being liable to  

be punished alike.

42. Under the Indian Penal Code, a person is responsible  

for his own act.  A person can also be vicariously responsible  

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for  the  acts  of  others  if  he  had  a  common  intention  to  

commit  the  acts  or  if  the  offence  is  committed  by  any  

member  of  the  unlawful  assembly  in  prosecution  of  the  

common  object  of  that  assembly,  then  also  he  can  be  

vicariously responsible.  Under the Indian Penal Code, two  

sections,  namely,  sections  34  and  149,  deal  with  the  

circumstances when a person is vicariously responsible for  

the acts of others.

43. The vicarious or constructive liability under section 34  

IPC can arise only when two conditions stand fulfilled, i.e.,  

the mental element or the intention to commit the criminal  

act conjointly with another or others; and the other is the  

actual  participation  in  one  form  or  the  other  in  the  

commission of the crime.   

44. The  common  intention  postulates  the  existence  of  a  

pre-arranged plan implying a prior meeting of the minds.  It  

is the intention to commit the crime and the accused can be  

convicted only if such an intention has been shared by all  

the accused.  Such a common intention should be anterior  

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in point of time to the commission of the crime, but may also  

develop on the spot when such a crime is committed.  In  

most of the cases it is difficult to procure direct evidence of  

such intention.  In most of the cases, it can be inferred from  

the  acts  or  conduct  of  the  accused  and  other  relevant  

circumstances.  Therefore, in inferring the common intention  

under section 34 IPC, the evidence and documents on record  

acquire  a  great  significance  and  they  have  to  be  very  

carefully  scrutinized  by  the  court.    This  is  particularly  

important in cases where evidence regarding development of  

the common intention to commit the offence graver,  then,  

the one originally designed, during execution of the original  

plan, should be clear and cogent.   

45. The dominant feature of section 34 is the element of  

intention  and  participation  in  action.    This  participation  

need  not  in  all  cases  be  by  physical  presence.   Common  

intention implies acting in concert.

46. The  essence  of  section  34  IPC  is  a  simultaneous  

consensus  of  the  minds  of  the  persons  participating  in  

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criminal action to bring about a particular result. Russel in  

his  celebrated  book  “Russel  on  Crime”  12th Edn.  Vol.  1  

indicates some kind of aid or assistance producing an effect  

in future and adds that any act may be regarded as done in  

furtherance of the ultimate felony if it is a step, intentionally  

taken  for  the  purpose  of  effecting  that  felony.    It  was  

observed  by  Russel  that  any  act  of  preparation  for  the  

commission of felony is done in furtherance of the act.   

47. Section 34 IPC does not create any distinct offence, but  

it lays down the principle of constructive liability.   Section  

34  IPC  stipulates  that  the  act  must  have  been  done  in  

furtherance of the common intention.  In order to incur joint  

liability for an offence there must be a pre-arranged and pre-

meditated concert between the accused persons for doing the  

act actually done, though there might not be long interval  

between the act and the pre-meditation and though the plan  

may be formed suddenly.   In order that section 34 IPC may  

apply, it is not necessary that the prosecution must prove  

that the act was done by a particular or a specified person.  

In  fact,  the  section  is  intended  to  cover  a  case  where  a  

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number of persons act together and on the facts of the case  

it is not possible for the prosecution to prove as to which of  

the  persons  who  acted  together  actually  committed  the  

crime.   Little or no distinction exists between a charge for an  

offence under a particular section and a charge under that  

section read with section 34.  

48. The  other  section  under  which  a  person  can  be  

vicariously responsible for the acts of others is section 149 in  

the Indian Penal Code.    

49. We would briefly like to deal with the scope and ambit  

of section 149 IPC also. Section 149 IPC reads as under:

“149. Every member of unlawful assembly  guilty of offence committed in prosecution of  common object.-  If an offence is committed by  any  member  of  an  unlawful  assembly  in  prosecution  of  the  common  object  of  that  assembly,  or  such  as  the  members  of  that  assembly  knew  to  be  likely  to  be  committed  in  prosecution of  that object,  every person who,  at  the  time of  the  committing  of  that  offence,  is  a  member  of  the  same assembly,  is  guilty  of  that  offence.”

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50. Both sections 34 and 149 IPC deal with combinations  

of persons who become punishable as sharers in an offence.  

In  both  these  sections,  the  persons  are  vicariously  

responsible for the acts of others.  Simultaneously, there is a  

basic resemblance in both these sections and to some extent  

they also overlap.     

51. There  is  a  substantial  difference  between  these  two  

sections with which we would deal in the later part of this  

judgment.   When several persons, numbering five or more,  

do an act or intend to do it, both sections 34 and 149 IPC  

may apply.   Section 149 IPC is of wider scope than section  

34  IPC  and  in  a  case  where  section  149  applies,  a  

constructive liability arises in respect of those persons who  

do not actually commit the offence.    

DISTINCTION BETWEEN SECTION 34 AND SECTION 149  OF THE INDIAN PENAL CODE

(i) Section  34  does  not  by  itself  create  any  specific  

offence, whereas section 149 does so;

(ii) Some  active  participation,  especially  in  crime  

involving  physical  violence,  is  necessary  under  

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section 34, but section 149 does not require it and  

the liability arises by reason of mere membership of  

the  unlawful  assembly  with  a  common object  and  

there  may  be  no  active  participation  at  all  in  

preparation and commission of the crime;   

(iii) Section 34 speaks of common intention, but section  

149  contemplates  common  object  which  is  

undoubtedly wider in its scope and amplitude than  

intention; and  

(iv) Section  34  does  not  fix  a  minimum  number  of  

persons  who  must  share  the  common  intention,  

whereas section 149 requires that there must be at  

least five persons who must have the same common  

object.  

Conclusion

52. When we revert to the facts of this case, we arrive at  

definite  conclusion  that  Hakim  Singh  and  his  two  sons  

Kamlesh and Virendra Singh armed with weapons went to  

the  house  of  the  deceased  Bhagirath  to  eliminate  him.  

Kamlesh, on exhortation of his father, Hakim Singh, fired a  

pistol shot and killed Bhagirath.  In view of these facts when  

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section 34 IPC is invoked then on the principle of vicarious  

or constructive liability the appellant is clearly guilty under  

section 302/34 IPC along with his father Hakim Singh and  

his  brother  Kamlesh.  The  trial  court  and  the  High  Court  

correctly applied the law.

53. The appeal filed by the appellant is totally devoid of any  

merit and is accordingly dismissed.

…………………………J.                                                        (Dalveer Bhandari)

   .……………………….J.                                                   (A.K. Patnaik)

New Delhi; August 9, 2010

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