2001(2) Crimes 108 (SC)
Supreme Court of India
(From Allahabad High Court)
K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.
Suresh & Anr. —Appellants
versus
State of U.P. —Respondent
Criminal Appeal No. 821 of 2000
With
Criminal Appeal No. 160 of 2001
Decided on 2-3-2001
Counsel for the Parties :
For the Appellant : K.B. Sinha, Sr. Advocate, Rajeev K. Singh, Kunwar Ajit Mohan Singh, for P.N. Ramalingam, Advocates.
For the Respondents : Pramod Swarup, Parveen Swarup, Ms. Pareena Swarup, Prashant Choudhary, Advocates.

Very important points
1. To attract Section 34 the prosecution should establish that the accused have done some overt act or covert act in furtherance of common intention.
2. In the facts, acquittal of Appellant 3 needs no interference as Section 34 cannot be invoked in her case.
3. Death penalty awarded to Appellants 1 and 2 need no modifica­tion in facts or on law.

Headnote:(i) Indian Penal Code, 1860—Sections 302 r/w 34—Murder by A1 and A2 of a family—A3 standing at scene related to A1 and A2—Charged for murder in furtherance of common intention—No overt or covert act attributed to A3—Sessions Court convicting A3 with the help of Section 34 but High Court acquitting—Appeal against acquittal—DB of Supreme Court referring to Full Bench on the question whether and if so to what extent Section 34 IPC can be invoked as an aid in this case—Explained—But held on facts it cannot be invoked to convict A3—Acquittal upheld—Case law discussed—Appeal dismissed.

       Per Thomas, J.

       Held : To attract Section 34 IPC two postulates are indispensable. {1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. (Para 23)

       Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a ­covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. 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 also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be .convicted with the aid of Section 34 IPC. (Para 24)

       There may be other provisions in the IPC like Section 120-B or Section 109 which could be invoked then to catch such non participating accused. Thus participation in the crime in furtherance of the common intention is sine qua non for Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act. (Para 25)

       Held on facts it is difficult to conclude that a person, merely because he was present at or near the scene, without doing anything more, without even carrying a weapon and without even marching along with the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused. In the present case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident happened. Either she would have reached on the road hearing the sound of the commotion because her house is situated very close to the scene, or she would have merely followed her husband and brother out of curiosity since they were going armed with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too would have accompanied the other accused in furtherance of the common intention of all the three. (Para 31)

       Mr. Pramod Swarup, learned counsel for the State contended that if she remained at the scene without sharing the common intention she would have prevented the other two accused from doing the ghastly acts because both of them were her husband and brother respectively. The inaction of Pavitri Devi in doing so need not necessarily lead to the conclusion that she shared a common intention with others. There is nothing to show that she had not earlier tried to dissuade her husband and brother from rushing to attack the deceased. (Para 32)

       Held finally thus we are unable to hold that Pavitri Devi shared common intention with the other accused and hence her remaining passively on the road is too insufficient for reversing the order of acquittal passed by the High Court in order to convict her with the aid of Section 34 IPC. (Para 33)

       Per Sethi, J. and Agrawal, J.

       Held : We agree with the conclusions arrived at by Brother Thomas, J. in his lucid judgment. (Para 36)

       However, in view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicabi­lity of Section 34 for a co-accused who is ­otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention. (Para 37)

       For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the “act” to mean as well a series of acts as a single act and the word “omission” denotes as well a series of omissions as a single omission. The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. After referring to Mahoob Shah’s case (AIR 1945 PC 118) this Court in Mohan Singh & Anr. v. State of Punjab [AIR 1963 SC 174] observed, it is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. The persons having similar intention which is not the result of pro-concerted plan cannot be held guilty for the “criminal act” with the aid of Section 34. Similarly the distinction of the words used in Section 10 of the Indian Evidence Act “in reference to their common intention” and the words used in Section 34 “in furtherance of the common intention” is significant. Whereas Section 10 of the Indian Evidence Act deals with the actions done by conspirators in reference to the common object, Section 34 of the Code deals with persons having common intention to do a criminal act. (Para 52)

       Held on facts : However, in this case on facts, the prosecution has not succeeded in proving that A3 Pavitri Devi shared the common intention with the other two accused persons, one of whom was her husband and the other her brother. It has come in evidence that when the witnesses reached on the spot, they found the said accused standing on the road whereas the other accused were busy committing the crime inside the house. The exaggerated version of PW 3 regarding the participation of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as PWs 1 and 2 have not supported the aforesaid version. The High Court was, therefore, justified in holding that Pavitri Devi, A3 did not share the common intention with the other accused persons. By her mere presence near the place of occurrence at or about the time of crime in the absence of other evidence, direct or circumstantial, cannot hold her guilty with the aid of Section 34. But in case the prosecution had succeeded in proving on facts of her sharing of common intention with A1 and A2, she could not be acquitted of the charge framed against her only on the ground that she had actually not done any overt act. The appeal of the State filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas, J. (Para 54)

       (ii) Indian Penal Code, 1860—Sections 304 r/w 34—Conviction of appellants A1 (Suresh) and A2 (Ramji) for causing murder of a family—Death penalty awarded—Appeal against for modification of death penalty—Whether case rightly falls in the category of “rarest” of the rare”? (Yes)—Result—Death penalty upheld—Appeal dismissed.

       Held : Mr. K.B. Sinha, learned senior counsel made an all out effort to save the convicted appellants from death penalty. The trial court and the High Court have given very cogent reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that death penalty is now restricted to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed as held by the Constitution Bench in Bachan Singh v. State of Punjab (1980 (2) SCC 684) we could not persuade ourselves in holding that the acts committed by A-1 Suresh and A-2 Ramji should be pulled out of the contours of the extremely limited sphere. Mr. K.B. Sinha cited a number of decisions including Panchhi and Ors. v. State of U.P. (1998(7) SCC 177) in an endeavour to show that this Court had chosen to give the alternative sentence in spite of the ferocity of the acts perpetrated and a number of victims involved. None of such cases is comparable with the facts in this case. Even after bestowing our anxious consideration we cannot persuade ourselves to hold that this is not a rarest of rare cases in which the lesser alternative is unquestionably foreclosed. (Para 34)

       Held finally : Accordingly we dismiss both the appeals. (Para 35)