New Delhi, Jan 7 (PTI) The Supreme Court on Friday said a mere common intention per se may not attract section 34 of the Indian Penal Code (IPC) without an “action in furtherance” and a court has to analyse and assess the evidence before implicating someone under this provision.
Section 34 of the IPC states that when a criminal act is done by several people, in furtherance of the common intention of all, each of them is liable for the act in the same manner as if it was done by him alone.
A bench of justices S K Kaul and M M Sundresh observed that there may 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 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,” the bench said.
The top court delivered its judgment on appeals filed against a 2019 verdict of the Punjab and Haryana High Court.
The high court had concurred with the views of a trial court, which had convicted four accused and sentenced them to life imprisonment in a criminal case of April 2011.
The apex court was dealing with pleas, including those moved by two of the four accused, challenging the high court verdict.
The counsel appearing in the court on behalf of the accused had contended that the courts below had erred in applying section 34 of the IPC against his clients in the matter.
The bench observed that section 34 of the IPC creates a “deeming fiction” by infusing and importing a criminal act constituting an offence committed by one into others in pursuance of a common intention.
It said the onus is on the prosecution to prove common intention to the satisfaction of the court and 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 bench said.
It observed that there may be an offence without a common intention and in such a case, section 34 of the IPC does not get attracted.
“It is a team effort akin to a game of football involving several positions manned by many, such as defenders, midfielders, strikers 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,” the bench said.
The top court set aside the high court verdict against the two accused who had filed appeals before it. PTI ABA RC
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