Paragraph numbers below are the court’s original numbering, recovered from the source text.
49. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different 3. c2010) 10 sec 259. c sense from the "same intention" or "similar intention" or "common object". The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh v. State of Punjab [AIR 1963 SC 174.)
50. The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the persons concerned had shared a common intention. (Vide Krishnan v. State of Kera/a [1996 (10) SCC 508] and Harbans Kaur v. State of Haryana [2005 (9) SCC 195)
51. Undoubtedly, the ingredients of Section 34 i.e. that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide Hamlet v. State of Kera/a [2003 (10) SCC 108), Pichai v. State of T.N. [2005 (10) SCC 505] and Bishna v. State of wa. [2005 (12) sec 657)
52. In Gopi Nath v. State of U.P. [2001 (6) SCC 620] this Court observed as under: "8 . … Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action-be it that it was not overt or was only a covert act or merely an omission cbnstituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of RAGHBIR CHAND v STATE OF PUNJAB [RANJAN GOGOi, J.] them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
53. In Krishnan v. State [2003 (7) SCC 56] this Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard-and- fast rule can be made out regarding applicability or non- applicability of Section 34.
54. In Girija Shankar v. State of U.P. [2004 (3) SCC 793] it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act: "9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
55. In Virendra Singh v. State of M.P. [2010 (8) SCC 407] c this Court observed that: "42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply; it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
56. Section 34 can be invoked even in those cases where some of the co-accused may be acquitted, provided it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (Vide Prabhu Babaji Navle v. State of Bombay [AIR 1956',SC 51])
57. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by . each of them. In the absence of common intention, the criminal liability of a member of the group might differ RAGHBIR CHAND v STATE OF PUNJAB [RANJAN GOGOi, J.] according to the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed." 9. In the present case, as already noticed, deceased Rajinder Kumar had arrived at the spot after the incident of assault by the accused on PW-2 and PW-4 had commenced. Immediately on arrival of Rajinder Kumar, appellant No. 4 Kamal Kumar, according to the prosecution, gave 4-5 blows in the abdomen of the deceased as a result of which he fell down. The c prosecution evidence also demonstrates that after the deceased had fallen down on the ground none of the other accused-appellants had assaulted him. The above facts, in our considered view, cannot constitute a safe and sufficient basis for us to come to the conClusion that an inference of common intention of all the four accused to cause the death of Rajinder Kumar can be safely made so as to hold the accused 1, 2 and 3 vicariously liable for the death of Rajinder Kumar. We, therefore, are of the opinion that the conviction of the accused-appellants 1, 2 and 3 under Section 302 read with section 34 requires interference. We, accordingly, set aside the said conviction and sentence imposed on the accused-appellants No. 1, 2 and 3. However, the evidence of PWs 2, 4 and 5 having established the assault on the injured eye witnesses by the aforesaid accused-appellants 1, 2 and 3 we are of the view that the conviction of the said appellants under Section 324 read with Section 34 and Section 323 should be maintained. We, therefore, affirm the said part of the judgment of the High Court along with the sentences imposed. 10. This will take us to a consideration of the case of the appellant No. 4 Kamal Kumar. The evidence of PWs 2, 4 and 5 has already been held by us to be credible and c acceptable. We will, therefore, have to proceed on the basis that the said appellant had inflicted 4-5 knife blows on the abdomen of the deceased. Learned counsel for the appellant has contended that even if the said evidence is accepted in its entirety no offence under Section 302 IPC is made out against the 4th accused-appellant. In this regard, learned counsel for the appellants has tried to persuade us that in the totality of the facts of the present case, the 4th exception to Section 300 IPC would come into operation so as to make the said appellant liable to the lesser offence under Section 304 IPC. The 4th exception to Section 300 IPC is in the following terms: "Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault." 11. A decision of this Court of somewhat old vintage (State of Andhra Pradesh Vs. Rayavarapu Punnayya & Anr.4) may be re-noticed to remember what would be the correct approach in dealing with the question whether an offence is-murder or culpable homicide not amounting to murder. The following passages from the aforesaid decision may be usefully noticed hereunder: "21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the H 4. (1976) 4 sec 382. RAGHBIR CHAND v STATE OF PUNJAB [RANJAN GOGOi, J.] accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is [the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' c contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code. 22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so inter- twined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.• It appears that the aforesaid view in Rayavarapu Punnayya (supra) has been reiterated in Ghelabhai G Jagma/bhai Bhawad & Ors. Vs. State of Gujarai6 wherein it is observed thus: "6. Murder is considered to be an aggravated form of 5. c2ooa> 11 sec 651. c culpable homicide and to render it a murder the case must come within the four clauses of Section 300. Consequently, it needs consideration at the threshold as to whether any of the accused has done any act by which he has caused the death of another person. Incidentally, it requires a consideration as to whether such act(s) amounted to culpable homicide, as envisaged under Section 299. If the evidence on record could evoke a positive answer in affirmation, the stage for consideration of the applicability or otherwise of Section 300 in the light of the clauses elucidating the offence as well as the exceptions engrafted therein arise. If the facts proved by the prosecution do not satisfy any one of the clauses contained in Section 300, it would only be a case of culpable homicide not amounting to murder, punishable under Section 304, the further question as to under which part of the said provision depending upon the nature of evidence and the necessary ingredients proved to attract one or the other clauses of Section 300 is satisfied, yet if the evidenee couJd establish that the case falls under any one of the exceptions still the offence said to have been committed would only be culpable homicide not amounting to murder punishable under Section 304 of the Penal code. Thus, culpable homicide will not also amount to murder if the case falls within any of the exceptions in Section 300 and only by such process of reasoning and elimination, a case for murder can be held proved." 12. We have given our anxious consideration to the contention raised on behalf of the accused-appellant. There can be no manner of doubt that the death of Rajinder Kumar was G occasioned by the assault committed by the accused-appellant No.4 in the abdominal region of the deceased with a knife. A person inflicting 4-5 knife blows on a vital part of the body i.e. abdomen cannot but be attributed with the requisite intention to cause death or alternatively with the intention of causing such H bodily injury as is likely to cause the death of the victim. Having RAGHBIR CHAND v STATE OF PUNJAB [RANJAN GOGOi, J.] reached the aforesaid conclusion, the next question that has to be determined is whether the act of the accused-appellant . will come under any of the exceptions enumerated under Section 300, particularly the 4th exception, as contended by the learned counsel for the appellant. While there can be no doubt that the assault on the deceased was committed without any premeditation and also in a sudden fight and even if it is assumed that the said act was in the heat of passion, what cannot be lost sight of is the infliction of 4-5 knife blows in the abdominal region of the deceased. Had the appellant No. 4 dealt a single blow on the deceased, perhaps, it would have been open for us to seriously consider the applicability of the latter part of the 4th exception to Section 300 to the present case, namely, that the appellant had not taken undue advantage or had not acted in a cruel or unusual manner. In the present case, no such conclusion can be reasonably reached in view o of the repeated blows inflicted by accused-appellant No. 4 on a vital part of the body of the deceased. Having carefully weighed the facts and circumstances of the case and the options and conclusions that the said facts would reasonably admit, we are of the opinion that the correct conclusion in the pr~sent case would be that the accused-appellant No. 4 had the requisite intention if not of causing death, at least, of causing such bodily injury which was likely to cause death. The acts attributable to the accused-appellant No.4 do not also attract any of the exceptions enumerated under Section 300 IPC. We, therefore, affirm the conviction and the sentence of the accused-appellant No. 4 under Section 302. Insofar as the conviction of the said accused-appellant for the offences under Sections 324 and 323 read with Section 34 is concerned, we will have no hesitation in affirming the same. 13. Consequently, the appeal is partly allowed. The conviction of appellants No. 1, 2 and 3 under Section 302 read with Section 34 IPC is set aside while their conviction under Section 324 with the aid of Section 34 I PC and Section 323 A and the sentences imposed upon them are maintained. The conviction of the appellant No. 4 under Sections 302 and 324 and 323/34 IPC as well as the sentences imposed are maintained. If the accused-appellants 1, 2 and 3 have already undergone the sentence imposed on them for the offences B under Section 324 read with Section 34 IPC and Section 323 IPC they be set at liberty unless their custody is required in connection with any other case. K.K.T. Appeal Partly allowed.