Mere statement or common intention may not attract Section 34 IPC: Supreme Court explains

Mere statement or common intention for a criminal action will not attract the offence under Section 34 of the Indian Penal Code unless there is an act in furtherance of such intention, the Supreme Court ruled [Japreet Singh @ Jassu v State of Punjab]..A Bench of Justices Sanjay Kishan Kaul and MM Sundresh also held that for Section 34 to be attracted there has to be concrete proof of common intention.“A 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,” the Court held.Section 34 reads as follows:“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 by him alone.”.The Court laid down the following with respect to the provision and how and when it would stand attracted.- 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.- The intent 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- 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.- 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.- A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance..The judgment came on three appeals – two filed by accused (A3 and A4) who were convicted and sentenced to life imprisonment for offence under Section 304 of the IPC (culpable homicide not amounting to murder) and a third appeal by the de facto complainant seeking modification of the conviction to the sentence punishable under Section 302 IPC (murder).The case against the two accused was that it was in pursuance of their statement that another accused (A1) had taken out a gun a shot the deceased. The trial court had convicted them and the same was upheld by the High Court..A2 took his gun and brandished it against the deceased, prior to the aforesaid statement made by A3 and A4, followed by the shooting by A1. A3 and A4 made the statement pointing to A1, though A2 was already having the gun out. It is only thereafter that A1 took out his gun and shot the deceased.The top court, however, said that there was no evidence at all on record to hold that A3 and A4 (appellants before Supreme Court) were aware of the fact that the accused A1 who shot the deceased, was having a gun with him. Hence, Section 34 would not be attracted.“The prosecution wanted to implicate A3 and A4 mainly on the evidence of Prosecution Witness 13. Once the said evidence was not accepted, more care ought to have been taken before convicting A3 and A4 under Section 34 IPC. We have no difficulty in holding that a common intention can be formed at the time of the occurrence. However, the evidence available is not sufficient enough to hold that Section 34 IPC is attracted as against A3 and A4, especially when the testimony of PW13 did not find favour with the courts. We further note that except the statement said to have been made by A3 and A4, there was no other material to implicate them,” the Court said..The statement made by A3 and A4 was as follows: “what are you seeing now”.This statement cannot constitute an offence punishable under Section304 IPC, the Court said.“It is possible that the said statement has been made only to attack otherwise the deceased. Suffice it is to hold that the prosecution has not proved its case beyond reasonable doubt as against A3 and A4 by reflecting the offence committed by A1, taking umbrage under Section 34 IPC,” the judgment said.The High Court did not even consider the import of Section 34 IPC as against A3 and A4, the Court added.It, therefore, acquitted the accused.The appeal filed by de-facto complainant was dismissed..[Read Judgment]