The Supreme Court has observed that a mere “common intention” per se may not attract Section 34 IPC, sans an action in “furtherance”. It stated, “When we speak of intention it has to be one of criminality with the 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.”
The Court has made the above observation while allowing the appeal made by the duo against the conviction and sentenced to life imprisonment under Section 304 Part I, read with Section 34 IPC. The Court has acquitted two out of the four convicted and sentenced to life imprisonment by the trial court and the Punjab & Haryana High Court.
In the present case, a hotelier Gurkirat Sekhon was shot dead in front of his father in Jalandhar more than a decade ago. An FIR was lodged against the four accused on the complaint made by his father. The trial court had convicted and sentenced to life imprisonment four accused Ramsimran Singh Makkar (A1); Amardeep Singh Sachdeva (A2); Jasdeep Singh (A3) and Amarpreet Singh Narula (A4) for culpable homicide not amounting to murder and common intention under Sections 304(1) and 34 of the IPC in August 2015. Later the conviction and sentence were upheld by the High Court. Jasdeep Singh (A3) and Amarpreet Singh Narula (A4) challenged their conviction under Section 304 Part I, read with Section 34 IPC before the Apex Court.
The Supreme Court Bench led by Justice Sanjay Kishan Kaul and MM Sundresh has held “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 (common intention).”
The Apex Court in this case interprets and give wider definition to the word “furtherance” as what is mentioned in the New Section 34 of the Indian Penal Code.
“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,”
-the Court said.
“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 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.
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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 the future. Thus, it has to be construed as an advancement or promotion.
The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyze 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 that 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.”
According to the facts of the case, “pursuant to the statement made by A3 and A4, saying “what are you seeing now”, A1 took out a gun from his pocket and shot the deceased. 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 Apex Court considered the above statement made by A3 and A4: “what are you seeing now”, As to whether the said statement would constitute an offense punishable under Section 304 Part I IPC.
The Supreme Court said,
“We have 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.”
“The High Court did not even consider the import of Section 34 IPC as against A3 and A4. We find that the approach of the trial court cannot be sustained to that extent in the light of our discussion. Thus, we are inclined to set aside the judgment of the High Court confirming that of the trial court as against the Accused-Appellants namely A3 and A4 alone are concerned,”
-held the Supreme Court.
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