2022 Supreme(SC) 268

SUPREME COURT OF INDIA
Sanjiv Khanna, Bela M. Trivedi, JJ.
Krishnamurthy @ Gunodu and Others – Appellants
Versus
State of Karnataka – Respondent
Criminal Appeal No. 288 of 2022 (Arising Out of SLP(Crl.) No. 6893 of 2021)
Decided On : 16-02-2022

IMPORTANT POINT
(1) Common intention – To attract applicability of Section 34, IPC, prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for criminal act of another – Ultimate act should be done in furtherance of common intention.
(2) Expression “criminal act” referred to in Section 34 IPC is different from “offence” – Expression “common intention” should also not be confused with “intention” or “mens rea” as an essential ingredient of several offences under IPC.
(3) Common intention – An act which is extraneous to common intention or is done in opposition to it and is not required to be done at all for carrying out common intention, cannot be said to be in furtherance of common intention.

Headnote:

(A) Indian Penal Code, 1860 – Section 34 – Common intention – Underlying basic assumption or foundation in criminal law is principle of personal culpability – A person is criminally responsible for act or transactions in which he is personally engaged or in some other way had participated – However, there are various modes and capacities in which a person can participate in a crime – He can instigate, be a facilitator or otherwise aid execution of a crime – Section 34 IPC incorporates principle of shared intent, that is, common design between two perpetrators, which makes second or other participants also an equal or joint perpetrator as main or principal perpetrator – Criminal offence is final result or outcome but it may be through achievement of individual or several criminal acts – Each individual act may not constitute or result in final offence – When a person is assaulted by a number of accused, “ultimate criminal act” normally will constitute offence which finally results or which may result in death, simple hurt, grievous hurt, etc. – This is final result, outcome or consequence of criminal act, that is, action or act of several persons – Each person will be responsible for his own act as stipulated in Section 38 IPC – However, Sections 34 and 35 expand scope and stipulate that if criminal act is a result of common intention, every person, who has committed a part of criminal act with common intention, will be responsible for offence. (Paras 8 and 10)

(B) Indian Penal Code, 1860 – Section 34 – Common intention – To attract applicability of Section 34 IPC, prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for criminal act of another – Ultimate act should be done in furtherance of common intention – Common intention requires a pre-arranged plan which can be even formed at spur of moment or simultaneously just before or even during attack – For proving common intention, prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference – However, incriminating facts must be incompatible with innocence of accused and incapable of explanation by any other reasonable hypothesis – By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act – A co-perpetrator who has done nothing but has stood outside the door, while offence was committed, may be liable for offence since in crimes as in other things “they also serve who only stand and wait” – Common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in commission of the act – Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to victim may be guilty of common intention – Normally, however, in a case of offence involving physical violence, physical presence at place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt – Facilitation in execution of common design may be possible from a distance and can tantamount to actual participation in criminal act – Essence and proof that there was simultaneous consensus of mind of co-participants in criminal action is however, mandatory and essential – An overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that persons concerned shared common intention which can be also gathered from proved facts. (Para 11)

(C) Indian Penal Code, 1860 – Section 34 – Common intention – It is essential that each co-perpetrator should have necessary intent to participate or otherwise have requisite awareness or knowledge that offence is likely to be committed in view of common design – In some cases merely accompanying principal accused may not establish common intention – A co-perpetrator who shares a common intention, will be liable only to the extent that he intends or could or should have visualized possibility or probability of final act – If final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable – This test is fact and circumstance specific and no strait-jacket universal formula can be applied – Section 34 IPC makes a co-perpetrator, who had participated in offence, equally liable on principle of joint liability – For Section 34 to apply there should be common intention between co-perpetrators – There should be community of purpose and common design or pre-arranged plan – However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation – For Section 34 to apply, it is not necessary that plan should be pre-arranged or hatched for a considerable time before criminal act is performed – Common intention can be formed just a minute before actual act happens – Common intention is necessarily a psychological fact as it requires prior meeting of minds – In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from facts proved – This requires an inquiry into antecedents, conduct of co-participants or perpetrators at the time and after occurrence – Manner in which accused arrived, mounted attack, nature and type of injuries inflicted, weapon used, conduct or acts of co-assailants/perpetrators, object and purpose behind occurrence or attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not ingredients of Section 34 IPC are satisfied. (Paras 13 and 18)

(D) Indian Penal Code, 1860 – Section 34 – Common intention – Section 34 IPC comes into operation against co-perpetrators because they have not committed principal or main act, which is undertaken/performed or is attributed to main culprit or perpetrator – Where an accused is main or final perpetrator, resort to Section 34 IPC is not necessary as said perpetrator is himself individually liable for having caused injury/offence – A person is liable for his own acts – Section 34 or principle of common intention is invoked to implicate and fasten joint liability on other co-participants – Expression/term “criminal act” in Section 34 IPC refers to physical act which has been done by co-perpetrators/participants as distinct from effect, result or consequence – Expression “criminal act” referred to in Section 34 IPC is different from “offence” – Expression “common intention” should also not be confused with “intention” or “mens rea” as an essential ingredient of several offences under IPC – Intention may be an ingredient of an offence and this is a personal matter – For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea – Section 34 IPC can be invoked for said offence also – Common intention is common design or common intent which is akin to motive or object – It is reason or purpose behind doing of all acts by individual participant forming the criminal act – In some cases, intention, which is ingredient of offence, may be identical with common intention of co-perpetrators, but this is not mandatory – Section 34 IPC also uses expression “act in furtherance of common intention” – In each case when Section 34 is invoked, it is necessary to examine whether criminal offence charged was done in furtherance of common intention of participator – If criminal offence is distinctly remote and unconnected with common intention, Section 34 would not be applicable – However, if criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of preconcert/contemporaneous engagement or a manifestation of mutual consent for carrying out common purpose, it will fall within scope and ambit of act done in furtherance of common intention – Word “furtherance” propounds a wide scope but should not be expanded beyond intent and purpose of statute – An act which is extraneous to common intention or is done in opposition to it and is not required to be done at all for carrying out common intention, cannot be said to be in furtherance of common intention. (Paras 18 and 19)

(E) Indian Penal Code, 1860 – Sections 447, 504, 506 and 341 – Indian Evidence Act, 1872 – Sections 40 to 44 – House trespass, intentional insult, criminal intimidation and wrongful restraint – Conviction and sentence – It cannot be argued that appellants are entitled to acquittal on ground of parity – Court cannot decide this appeal based on evidence and material led by prosecution in proceedings against juvenile accused which were independent and separate proceedings – Sentence awarded to appellant would be modified to life imprisonment without any further stipulation – Direction that life imprisonment shall be till end of natural life to imply that Appellant shall not be entitled to premature release/remission in accordance with applicable policy set aside – There is no reason and justification for this condition to be imposed – Sentences as awarded to appellants will run concurrently – Appellants would be entitled to benefit of Section 428 of Code of Criminal Procedure, 1973. (Paras 22 and 23)

Facts of the case:

Present appeal by Krishnamurthy (also described as Krishna Murthy), Gopala and Thimmappa takes exception to the judgment dated 20th February 2021 passed in Criminal Appeal No. 200147 of 2017, whereby the Division Bench of the High Court of Karnataka, Kalaburagi Bench, has affirmed their conviction under Section 302 read with Section 34 and individually for the offences under Sections 447, 504, 506 and 341 of the Indian Penal Code, 1860.

Findings of Court:

As Thimmappa and Gopala are on bail and have not undergone sentence, they shall surrender within a period of one month from today. In case they do not surrender, the police will take coercive steps for their arrest to undergo the remaining sentence.

Result : Appeal Partly allowed.