Jasdeep Singh @ Jassu vs State of Punjab

Penal Code, 1860 – s. 34 – Intendment of – 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. Disposing of the appeals, the Court

HELD: 1.1 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 the Court is dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 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. [Paras 21 & 22][658-C-F]

1.2. 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. Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When the Court speaks of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. 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. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the 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 the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court. [Paras 24-28][658H; 659-A-H]

2. The evidence of PW13 did not find favour with the courts. The 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 the relevant point of time. The other material witnesses are PW6 and PW10. PW10 had given prior statements. Though he turned hostile despite being a friend of the deceased, the trial court did take into consideration his earlier statement, while coming to the conclusion that there was no premeditation and thus the case would fall under culpable homicide not murder. Though the evidence of PW6 was not rejected, both the courts did find a clear exaggeration on his part. On many occasions PW6 made a concerted effort to improve the case of prosecution. The testimony given by him on the dying declaration, a case inserted by him in his supplementary statement, made subsequently, was also rightly rejected by the courts. This was also supported by the medical evidence. The other part of the evidence with respect to the fight was also dealt with by the courts as evidence available would suggest that it is the deceased who went nearer, and the accused were not stationing themselves waiting for his arrival. Therefore, the aforesaid findings of both the courts in coming to the conclusion that it is not a case which would attract punishment under Section 301 Part I IPC does not suffer from any perversity. In view of the above Crl. A. No.1586 of 2021 stands dismissed. At this stage the Court also hasten to add that the overt act of A2 being different and in the absence of any appeal filed by him, the Court does not wish to make any remark for the purpose of acquitting him. [Paras 32 & 33][670-E-H; 671-A-C]

3. The only other issue for consideration is the application of Section 34 IPC to the case of the Appellants. The occurrence was admittedly during the nighttime. It happened on the street. If A3 and A4 had made such a statement in the same voice, they should have addressed A2 instead of A1. A2 was already having a gun and A1 was stated to have taken his gun out only on the statement made by A3 and A4. The reasoning of the trial court in disbelieving the evidence of PW6 as he improved on his case subsequently, ought to be applied for the statement made that A3 and A4 had asked A1 to fire. Admittedly, this was an improvement to the earlier statement made as could be seen from the evidence of PW6 on more than one occasion. Thus, in our considered view both the courts ought to have disbelieved the evidence of PW6 insofar as Section 34 IPC is concerned. There is no evidence at all on record to hold that A3 and A4 were aware of the fact that A1 was having a gun with him. The prosecution wanted to implicate A3 and A4 mainly on the evidence of PW13. Once the said evidence was not accepted, more care ought to have been taken before convicting A3 and A4 under Section 34 IPC. The Court has 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. It is to be noted that except the statement said to have been made by A3 and A4, there was no other material to implicate them. Now, the statement made by A3 and A4 is as follows: “what are you seeing now”. The question is as to whether the said statement would constitute an offense punishable under Section 304 Part I IPC. This Court has already noted the fact that had A2 fired at the deceased in pursuance to the statement made by A3 and A4 the situation would have been different. 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. [Paras

34 & 35][671-D-H; 672-A-C]

Suresh v State of U.P. (2001) 3 SCC 673 : [2001] 2 SCR 263; Lallan Rai v. State of Bihar (2003) 1 SCC

268 : [2002] 4 Suppl. SCR 188; Chhota Ahirwar v. State of M.P. (2020) 4 SCC 126; Rambilas Singh & Ors. v. State of Bihar (1989) 3 SCC 605; Krishnan & Another v. State of Kerala (1996) 10 SCC 508 : [1996]

5 Suppl. SCR 405; Surendra Chauhan v. State of M.P. (2000) 4 SCC110 : [2000] 2 SCR 515; Gopi Nath @ Jhallar v. State of U.P. (2001) 6 SCC 620 : [2001] 1 Suppl. SCR 72; Ramesh Singh @ Photti v. State of A.P. (2004) 11 SCC 305; Nand Kishore v. State Of Madhya Pradesh (2011) 12 SCC 120 : [2011] 7 SCR 1152; Shyamal Ghosh v. State of West Bengal (2012) 7 SCC

646 : [2012] 10SCR 95; Virendra Singh v. State of Madhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR

772 – relied on.

Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1; Shah v. Emperor AIR 1945 PC 148 – referred to.