In judgment delivered for Criminal Appeal in case of Jasdeep Singh Jassu vs State of Punjab Supreme Court observed that a mere common intention per say MAY NOT attract Section 34 sans action in furtherance.
Appellants were convicted under section 304 IPC with life sentence and filed an appeal challenging section 34 which convicted them along with other accused.
Bench which comprised of Justices Sanjay Kishan Kaul and MM Sundresh agreed that evidence available was not sufficient enough to attract provision of section 34 IPC as there was no evidence at all that hold that A3 and A4 were aware that A1 was carrying a gun with him. In its judgment bench discussed the scope of Section 34 of IPC as follows.
The phrase "in furtherance of the common intention" was added in to the statue subsequently and it was first coined by Chief Justice Barnes Peacock presiding over Calcutta High Court while delivering decision in Queen Vs. Gorachand Gope 1866 and was in haste amended to Section 34 of IPC.
Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, 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. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it. (Para 20)
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 the prosecution to prove the common intention to the satisfaction of the court.
The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. (para 21)
What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted. (para 22)
23. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles.
A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime. (para 23)
24. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the 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 the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense. (para 24)
JUDGMENTS REFERRED BY BENCH
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
Mehbub Shah v. Emperor (AIR 1945 PC 148):
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:
Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]: