(A) Indian Penal Code, 1860 – Section 34 – Common intention – In order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense – An act would mean and include other acts along with it – Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention – Onus is on prosecution to prove common intention to satisfaction of court – Quality of evidence will have to be substantial, concrete, definite and clear – When a part of evidence produced by prosecution to bring accused within fold of Section 34 IPC is disbelieved, remaining part will have to be examined with adequate care and caution – What is required is proof of common intention – There may be an offence without common intention, in which case Section 34 IPC does not get attracted – Intendment of Section 34 IPC is to remove difficulties in distinguishing acts of individual members of a party, acting in furtherance of a common intention – There has to be a simultaneous conscious mind of persons participating in criminal action of bringing about a particular result – A common intention qua its existence is a question of fact and also requires an act “in furtherance of said intention” – One need not search for a concrete evidence, as it is for court to come to a conclusion on a cumulative assessment – It is only a rule of evidence and does not create any substantive offense. (Paras 20, 21, 22 and 24)

(B) Indian Penal Code, 1860 – Section 34 – Common intention – Normally, in an offense committed physically, presence of an accused charged under Section 34 IPC is required, especially in a case where act attributed to accused is one of instigation/exhortation – However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places – Therefore, it has to be seen on a case to case basis – Word “furtherance” indicates existence of aid or assistance in producing an effect in future – It has to be construed as an advancement or promotion – There may be cases where all acts, in general, would not come under purview of Section 34 IPC, but only those done in furtherance of common intention having adequate connectivity – Intention has to be one of criminality with adequacy of knowledge of any existing fact necessary for proposed offense – Such an intention is meant to assist, encourage, promote and facilitate commission of a crime with requisite knowledge – Existence of common intention is duty of prosecution to prove – However, court has to analyse and assess evidence before implicating a person under Section 34 IPC – Mere common intention per se may not attract Section 34 IPC, sans an action in furtherance – There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later – This is also one of the facts for consideration of court – Fact that all accused charged with an offence read with Section 34 IPC are present at commission of crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved – Once again, this is an aspect which is required to be looked into by court on evidence placed before it – It may not be required on part of defence to specifically raise such a plea in a case where adequate evidence is available before court. (Paras 25, 26, 27 and 28)

(C) Indian Penal Code, 1860 – Section 304, Part I read with Section 34 – Arms Act, 1959 – Sections 25 and 27 – Culpable homicide not amounting to murder – Common intention – Life sentence – Evidence available would suggest that it is deceased who went nearer and accused were not stationing themselves waiting for his arrival – Though evidence of PW6 was not rejected, both courts did find a clear exaggeration on his part – On many occasions PW6 made a concerted effort to improve case of prosecution – Testimony given by him on dying declaration, a case inserted by him in his supplementary statement, made subsequently, was also rightly rejected by courts – This was also supported by medical evidence – Findings of both courts in coming to conclusion that it is not a case which would attract punishment under Section 301 Part I IPC does not suffer from any perversity – Occurrence was admittedly during night time – It happened on street – Both courts ought to have disbelieved evidence of PW6 insofar as Section 34 IPC is concerned – Prosecution has not proved its case beyond reasonable doubt as against A3 and A4 by reflecting offence committed by A1, taking umbrage under Section 34 IPC – Judgment of High Court confirming that of trial court as against Accused-Appellants namely A3 and A4 alone, set aside. (Paras 33, 34, 35 and 36)

Facts of the case:

Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filed by convicted Appellants/Accused 3 and 4 respectively against conviction under Section 304 Part I of the Indian Penal Code with life sentence, while Crl. A. No.1586 of 2021 is filed by the de facto complainant seeking modification of conviction to the sentence punishable under Section 302 IPC.

Findings of Court:

Trial court which had the advantage of noting the deposition of the witnesses, chose to disbelieve the evidence adduced, by giving cogent reasons. This evidence was rightly eschewed by the trial court and also by the High Court. There are too many improbabilities in the testimony of PW13. A person who was living 50 kms away remembered the accused and their names and overheard their plot to commit the murder. His evidence was belied by the evidence of DW1 who was none other than his own cousin with whom he was said to be residing at relevant point of time.

Result : Criminal Appeals Partly allowed.