MANU/SC/0153/2001

Equivalent Citation: 2001(2)AC R1020(SC ), AIR2001SC 1344, 2001(1)ALD(C ri)529, 2001ALLMR(C ri)1242(SC ), 2001C riLJ1462,
2001(2)C rimes108(SC ), JT2001(3)SC 336, 2001-2-LW(C rl)695, 2001(2)PLJR155, 2001(2)RC R(C riminal)78, 2001(2)SC ALE363, (2001)3SC C 673,
[2001]2SC R263, 2001(1)UC 678, 2001(2)UJ961

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 821 of 2000, Appeal (crl.) 160 of 2001
Decided On: 02.03.2001
Appellants: Suresh and Ors.
Vs.
Respondent: State of U.P.
Hon'ble Judges/Coram:
K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.B. Sinha, Sr. Adv., Rajeev Kumar Singh and
Kunwar Ajit Mohan Singh, for P.N. Ramalingam, Advs
For Respondents/Defendant: Pramod Swarup, Parveen Swarup, Ms. Pareena Swarup
and Prashant Chaudhary, Advs.
Case Note:
Indian Penal Code, 1860--Section 33--Definition of "Act"--Denotes a series
of acts as single act--This means--A criminal act can be single act or
conglomeration of a series of acts. (Para--14)Indian Penal Code, 1860.--
Section 35--A criminal act done by several persons--Section differs from
Section 34--In place of common intention of all persons--It is enough that
each participant has the required mens rea. (Para--15)Indian Penal Code,
1860--Section 34--Common intention--Accused who keeps the common
intention in his mind--But does not do any act-- Can't be convicted under
Section. (Para--22)
JUDGMENT
K.T. Thomas, J.
1 . Section 34 of the Indian Penal Code is a very commonly invoked provision in
criminal cases. With a plethora of judicial decisions rendered on the subject the
contours of its ambit seem well neigh delineated. Nonetheless, when these appeals
were heard a two-judge Bench felt the need to make a re-look at the provision as to
whether and if so to what extent it can be invoked as an aid in this case. Hence these
appeals were heard by a larger Bench.
2 . In one of the appeals A-1 Suresh and his brother-in-law A-2 Ramji are fighting
their last chance to get extricated from the death penalty imposed on them by a
Sessions Court which was confirmed by a Division Bench of the High Court. In the
other appeal Pavitri Devi, the wife of A-1 Suresh (also sister of A-2 Ramji) is
struggling to sustain the acquittal secured by her from the High Court in reversal of
the conviction for murder ordered by the Sessions Court with the aid of Section 34
IPC.
3 . On the night of 5.10.1996 when Ramesh (brother of appellant Suresh) and his

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 wife and children went to bed as usual they would have had no foreboding that it was
going to be the last night they were sleeping on this terrestrial terrain. But after they,
in their sleep, crossed the midnight line and when the half crescent moon appeared
with its waned glow above their house the night turned red by the bloodiest killing
spree befallen the entire family. The motley population of that small house were
whacked to pieces by armed assailants, leaving none, but a single tiny tot, alive. The
sole survivor of the gory carnage could have seen what happened inside his sweet
home only in the light which itself turned carmine. He narrated the tale before the
Sessions Court with the visible scars of the wounds he sustained on his person.
4. That infant witness (PW-3 Jitendra) told the trial court that he saw his uncle (A-1
Suresh) in the company of his brother-in-law (A-2 Ramji) acting like demons, cutting
the sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri
Devi) clutched the tuft of his mother's hair and yelled like a demoness in thirst for
the blood of the entire family.
5. Lalji (PW-1), the uncle of the deceased Ramesh (who is uncle of A-1 Suresh also)
and Amar Singh (PW-2) a neighbour gave evidence supporting the version of PW-3
Jitendra. But the said two witnesses did not attribute any overt act to Pavitri Devi
except saying that she too was present near the scene of occurrence. The house of
the accused was situated not far away from the scene of occurrence but across the
road which abuts the house of the deceased.
6 . The doctor (PW5-C.M. Tiwari) who conducted the autopsy on the dead bodies of
all the deceased described the horrifying picture of the mauled bodies. The youngest
of the victims was a one year old child whose skull was cut into two and the brain
was torn asunder. The next was a three year old male child who was killed with his
neck axed and the spinal cord, trachea and the larynx were snipped. The next in line
was PW-3 Jitendra - a seven year old child. (His injuries can be separately stated).
His immediate next elder was Monisha a nine year old female child, who too was
axed on the neck, mouth and chest with her spinal cord cut into two.
7. The mother of those little children Ganga Devi was inflicted with six injuries which
resulted in her skull being broken into pieces. The last was Ramesh - the bread
winner of the family, who was the father of the children. Four wounds were inflicted
on him. All of them were on neck and above that. The injuries on Ramesh, when put
together, had neared just short of decapitation.
8 . PW-3 Jitendra had three incised wounds on the scapular region, but the doctor
who attended on him (PW-6 S.K. Verma) did not probe into the depth of one of them,
presumably because of the fear that he might require an immediate surgical
intervention. However, he was not destined to die and hence the injuries inflicted on
him did not turn fatal.
9. The motive for the above dastardly massacre was the greed for a bit of land lying
adjacent to the house compound of the deceased which A-1 Suresh claimed to be his.
But deceased Ramesh clung to that land and it resulted in burgeoning animosity in
the mind of Suresh which eventually grew alarmingly wild.
10. The evidence of PW-1 Lalji and PW-2 Amar Singh was considered by the Session
Court in the light of various contentions raised by the counsel for the accused. The
trial judge found the said evidence reliable. The Division Bench of the High Court
considered the said evidence over again and they did not see any reason to dissent
from the finding made by the trial court. The evidence of PW-3 Jitendra, the sole
survivor of the carnage, was evaluated with greater care as he was an infant of seven
years. Learned Judges of the Division Bench of the High Court accepted the evidence

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 of PW-3 only to the extent it secured corroboration from the testimony of PWs, 1 and
2.
11. Though Mr. K.B. Sinha, learned senior counsel made an endeavour to make some
tears into the fabric of the testimony of PWs.1 and 2 he failed to satisfy us that there
is any infirmity in the findings recorded by the two courts regarding the reliability of
the evidence of those two witnesses. As the learned senior counsel found it difficult
to turn the table regarding the evidence against the accused which is formidable as
well as trustworthy, he focussed on two aspects. First is that acquittal of Pavitri Devi
does not warrant interference from this Court. Second is that this is not a case
belonging to the category which compels the court to award death penalty to the two
appellants, Suresh and Ramji.
12. We will now deal with the role played by Pavitri Devi to see whether the court
can interfere with the acquittal order passed in her favour by the High Court. PW-3
said that while he was sleeping the blood gushed out of the wounds sustained by his
father reached his mouth and when he woke up he saw the incident. According to
him, Pavitri Devi caught hold his mother's hair and pulled it up, thereafter she went
outside and exhorted that everybody should be killed. But PW.1 and 2 did not
support the aforesaid version pertaining to Pavitri Devi. According to them, when
they reached the scene of occurrence Pavitri Devi was standing in front of the house
of the deceased while the other two were inside the house engaged in the acts of
inflicting blows on the victims.
13. The position which prosecution succeeded in establishing against A-3 Pavitri Devi
is that she was also present at the scene of occurrence. Learned counsel for the State
contended that such presence was in furtherance of the common intention of the
three accused to commit the murders and hence she can as well be convicted for the
murders under Section 302 IPC with the aid of Section 34 IPC. Mr. K.B. Sinha,
learned counsel contended that if Section 34 IPC is to be invoked as against Pavitri
Devi the prosecution should have established that she had done some overt act in
furtherance of the common intention.
1 4 . We heard arguments at length on the ambit of Section 34 IPC. We have to
consider whether the accused who is sought to be convicted with the aid of that
Section, should have done some act, even assuming that the said accused also
shared the common intention with the other accused.
Section 34 reads thus:
"Acts done by several persons in furtherance of common intention.- 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 done by him alone."
15. As the section speaks of doing "a criminal act by several persons" we have to
look at Section 33 IPC which defines the "act". As per it, the word "act" denotes as
well a series of acts as a single act. This means a criminal act can be a single act or it
can be the conglomeration of a series of acts. How can a criminal act be done by
several persons?
16. In this context a reference to Section 35 37 and 38 of IPC, in juxtaposition with
Section 34, is of advantage. Those four provisions can be said to belong to one
cognate group wherein different positions when more than one person participating
in the commission of one criminal act are adumbrated. Section 35 says that when an
act is done by several persons each of such persons who joins in the act with mens

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 rea is liable for the act "in the same manner as if the act were done by him alone
with that knowledge or intention". The section differs from section 34 only regarding
one postulate. In the place of common intention of all such persons (in furtherance of
which the criminal act is done), as is required in Section 34, it is enough that each
participant who joins others in doing the criminal act, has the required mens rea.
17. Section 37 deals with the commission of an offence "by means of several acts".
The section renders any one who intentionally cooperates in the commission of that
offence "by doing any one of those acts" to be liable for that offence. Section 38 also
shows another facet of one criminal act being done by several persons without
connecting the common bond i.e. "in furtherance of the common intention of all". In
such a case they would be guilty of different offence or offences but not for the same
offence. Among the above four provisions the common denominator is the
participation of several persons (more than one person) in the commission of a
criminal act. The special feature of Section 34 is only that such participation by
several persons should be "in furtherance of the common intention of all".
18. Hence, under Section 34 one criminal act, composed of more than one act, can
be committed by more than one persons and if such commission is in furtherance of
the common intention of all of them, each would be liable for the criminal act so
committed.
19. To understand the section better it is useful to recast it in a different form by
way of an illustration. This would highlight the difference when several persons do
not participate in the crime committed by only one person even though there was
common intention of all the several persons. Suppose a section was drafted like this:
"When a criminal act is done by one person in furtherance of the common intention
of several persons each of such several persons is liable for that act in the same
manner as if it were done by all such persons."
20. Obviously Section 34 is not meant to cover a situation which may fall within the
fictitiously concocted section caricatured above. In that concocted provision the co-
accused need not do anything because the act done by the principal accused would
nail the co-accused also on the ground that such act was done by that single person
in furtherance of the common intention of all the several persons. But Section 34 is
intended to meet a situation wherein all the co-accused have also done something to
constitute the commission of a criminal act.
21. Even the concept of presence of the co-accused at the scene is not a necessary
requirement to attract Section 34, e.g. the co-accused can remain a little away and
supply weapons to the participating accused either by throwing or by catapulting
them so that the participating accused can inflict injuries on the targeted person.
Another illustration, with advancement of electronic equipment can be etched like
this: One of such persons in furtherance of the common intention, overseeing the
actions from a distance through binoculars can give instructions to the other accused
through mobile phones as to how effectively the common intention can be
implemented. We do not find any reason why Section 34 cannot apply in the case of
those two persons indicated in the illustrations.
22. Thus to attract Section 34 IPC two postulates are indispensable. (1) The criminal
act (consisting of a series of acts) should have been done, not by one person, but
more than one person. (2) Doing of every such individual act cumulatively resulting
in the commission of criminal offence should have been in furtherance of the
common intention of all such persons.
2 3 . Looking at the first postulate pointed out above, the accused who is to be

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 fastened with liability on the strength of Section 34 IPC should have done some act
which has nexus with the offence. Such act need not be very substantial, it is enough
that the act is only for guarding the scene for facilitating the crime. The act need not
necessarily be overt, even if it is only a covert act it is enough, provided such a
covert act is proved to have been done by the co-accused in furtherance of the
common intention. Even an omission can, in certain circumstances, amount to an act.
This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need
not be an overt act, even an illegal omission to do a certain act in a certain situation
can amount to an act, e.g. a co-accused, standing near the victim face to face saw an
armed assailant nearing the victim from behind with a weapon to inflict a blow. The
co-accused, who could have alerted the victim to move away to escape from the
onslaught deliberately refrained from doing so with the idea that the blow should fall
on the victim. Such omission can also be termed as an act in a given situation. Hence
an act, whether overt or covert, is indispensable to be done by a co-accused to be
fastened with the liability under the section. But if no such act is done by a person,
even if he has common intention with the others for the accomplishment of the
crime, Section 34 IPC cannot be invoked for convicting that person. In other words,
the accused who only keeps the common intention in his mind, but does not do any
act at the scene, cannot be convicted with the aid of Section 34 IPC.
24. There may be other provisions in the IPC like Section 120B or Section 109 which
could be invoked then to catch such non participating accused. Thus participation in
the crime in furtherance of the common intention is sine qua non for Section 34 IPC.
Exhortation to other accused, even guarding the scene etc. would amount to
participation. Of course, when the allegation against an accused is that he
participated in the crime by oral exhortation or by guarding the scene the court has
to evaluate the evidence very carefully for deciding whether that person had really
done any such act.
25. A Division Bench of the Madras High Court has said as early as in 1923 that
"evidence of some distinct act by the accused, which can be regarded as part of the
criminal act in question, must be required to justify the application of Section 34
IPC". (vide Aydrooss vs. Emperor AIR1914Cal901(2) .
2 6 . I n Barendra Kumar Ghosh vs. Emperor AIR1914Cal901(2) the Judicial
Commission after referring to the cognate provisions adverted to above, held thus:
"Read together, these sections are reasonably plain. S. 34 deals with the
doing of separate acts, similar or diverse by several persons; if all are done
in furtherance of a common intention, each person is liable for the result of
them all, as if he had done them himself, for 'that act' and 'the act' in the
latter part of the section must include the whole action covered by 'a criminal
act' in the first part, because they refer to it."
27. We have come across the observations made by another Judicial Commission of
the Privy Council of equal strength in Mahbub Shah vs. Emperor
AIR1914Cal901(2) . The observation is that Section 34 IPC can be invoked if it is
shown that the criminal act was done by one of the accused in furtherance of the
common intention of all. On the fact situation their Lordships did not have to
consider the other component of the Section. Hence the said observation cannot be
understood to have obviated the necessity of proving that "the criminal act was done
by several persons" which is a component of Section 34 IPC.
28. I n Pandurang vs. State of Hyderabad MANU/SC/0048/1954 : 1955CriL J572
Vivian Bose J., speaking for a three-judge bench of this Court focused on the second

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 component in Section 34, IPC i.e. "in furtherance of the common intention." There
was no need for the bench to consider about the acts committed by the accused
charged, in order to ascertain whether all the accused committed the criminal act
involved therein. In other words the first postulate was not a question which came up
for consideration in that case. Hence the said decision, cited by both sides for
supporting their respective contentions is not of much use in this case.
29. Mr. Pramod Swarup, learned counsel for the State invited our attention to the
decision of this Court in State of U.P. vs. Iftikhar Khan and ors.
MANU/SC/0181/1973 : 1973CriL J636 , in which it is observed that to attract Section
34 IPC it is not necessary that any overt act should have been done by the co-
accused. In that case four accused persons were convicted on a fact situation that
two of them were armed with pistols and the other two were armed with lathis and
all the four together walked in a body towards the deceased and after firing the
pistols at the deceased all the four together left the scene. The finding of fact in that
case was also the same. When a plea was made on behalf of those two persons who
were armed with lathis that they did not do any overt act, this Court made the above
observation. From the facts of that case it can be said that there was no act on behalf
of the two lathi holders although the deceased was killed with pistols alone. The
criminal act in that case was done by all the persons in furtherance of the common
intention to finish the deceased. Hence the observation made by Vaidialingam, J., in
the said case has to be understood on the said peculiar facts.
30. It is difficult to conclude that a person, merely because he was present at or near
the scene, without doing anything more, without even carrying a weapon and without
even marching along with the other assailants, could also be convicted with the aid
of Section 34 IPC for the offence committed by the other accused. In the present
case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident
happened. Either she would have reached on the road hearing the sound of the
commotion because her house is situated very close to the scene, or she would have
merely followed her husband and brother out of curiosity since they were going
armed with axe and choppers during the wee hours of the night. It is not a necessary
conclusion that she too would have accompanied the other accused in furtherance of
the common intention of all the three.
31. Mr. Pramod Swarup, learned counsel for the State contended that if she remained
at the scene without sharing the common intention she would have prevented the
other two accused from doing the ghastly acts because both of them were her
husband and brother respectively. The inaction of Pavitri Devi in doing so need not
necessarily lead to the conclusion that she shared a common intention with others.
There is nothing to show that she had not earlier tried to dissuade her husband and
brother from rushing to attack the deceased.
32. Thus we are unable to hold that Pavitri Devi shared common intention with the
other accused and hence her remaining passively on the road is too insufficient for
reversing the order of acquittal passed by the High Court in order to convict her with
the aid of Section 34 IPC.
3 3 . Mr. K.B. Sinha, earned senior counsel made an all out effort to save the
convicted appellants from death penalty. The trial court and the High Court have
given very cogent reasons and quite elaborately for choosing the extreme penalty.
Knowing fully well that death penalty is now restricted to the rarest of rare cases in
which the lesser alternative is unquestionably foreclosed as held by the Constitution
Bench in Bachan Singh vs. State of Punjab MANU/SC/0341/1980 :
AIR1980SC1355 we could not persuade ourselves in holding that the acts committed

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 by A-1 Suresh and A-2 Ramji should be pulled out of the contours of the extremely
limited sphere. Mr. K.B. Sinha cited a number of decisions including Panchhi and
ors. vs. State of U.P. MANU/SC/0530/1998 : 1998CriL J4044 in an endeavour to
show that this Court had chosen to give the alternative sentence in spite of the
ferocity of the acts perpetrated and a number of victims involved. None of such cases
is comparable with the facts in this case. Even after bestowing our anxious
consideration we cannot persuade ourselves to hold that this is not a rarest of rare
cases in which the lesser alternative is unquestionably foreclosed.
34. Accordingly we dismiss both the appeals.
JUDGMENT
R.P. Sethi, J.
3 5 . We agree with the conclusions arrived at by Brother Thomas, J. in his lucid
judgment.
36. However, in view of the importance of the matter, in so far as the interpretation
of Section 34 of the Indian Penal Code is concerned, we have chosen to express our
views in the light of consistent legal approach on the subject throughout the period
of judicial pronouncements. For the applicability of Section 34 to a co-accused, who
is proved to have common intention, it is not the requirement of law that he should
have actually done something to incur the criminal liability with the aid of this
section. It is now well settled that no overt act is necessary to attract the applicability
of Section 34 for a co-accused who is otherwise proved to be sharing common
intention with the ultimate act done by any one of the accused sharing such
intention.
37. Section 34 of the Indian Penal Code recognises the principle of vicarious liability
in the criminal jurisprudence. It makes a person liable for action of an offence not
committed by him but by another person with whom he shared the common
intention. It is a rule of evidence and does not create a substantive offence. The
section gives statutory recognition to the commonsense principle that if more than
two persons intentionally do a thing jointly, it is just the same as if each of them had
done it individually. There is no gainsaying that a common intention pre-supposes
prior concert, which requires a pre-arranged plan of the accused participating in an
offence. Such a pre-concert or pre-planning may develop on the spot or during the
course of commission of the offence but the crucial test is that such plan must
precede the act constituting an offence. Common intention can be formed previously
or in the course of occurrence and on a spur of moment. The existence of a common
intention is a question of fact in each case to be proved mainly as a matter of
inference from the circumstances of the case.
38. Dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter
referred to as "the Code") is the element of participation in absence resulting in the
ultimate "criminal act". The "act" referred to in latter part of Section 34 means the
ultimate criminal act with which the accused is charged of sharing the common
intention. The accused is, therefore, made responsible for the ultimate criminal act
done by several persons in furtherance of the common intention of all. The section
does not envisage the separate act by all the accused persons for becoming
responsible for the ultimate criminal act. If such an interpretation is accepted, the
purpose of Section 34 shall be rendered infructuous.
39. Participation in the crime in furtherance of the common intention cannot conceive
of some independent criminal act by all accused persons, besides the ultimate

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 criminal act because for that individual act law takes care of making such accused
responsible under the other provisions of the Code. The word "act" used in Section
34 denotes a series of acts as a single act. What is required under law is that the
accused persons sharing the common intention must be physically present at the
scene of occurrence and be shown to not have dissuaded themselves from the
intended criminal act for which they shared the common intention. Culpability under
Section 34 cannot be excluded by mere distance from the scene of occurrence. The
presumption of constructive intention, however, has to be arrived at only when the
court can, with judicial servitude, hold that the accused must have pre-conceived
result that ensued in furtherance of the common intention. A Division Bench of the
Patna High Court in Shatrughan Patar & Ors. v. Emperor AIR1914Cal901(2) held that
it is only when a court with some certainty hold that a particular accused must have
pre-conceived or pre-meditated the result which ensued or acted in concert with
others in order to bring about that result, that Section 34 may be applied.
4 0 . In Barendra Kumar Ghosh vs. King Emperor AIR1914Cal901(2) the Judicial
Committee dealt with the scope of Section 34 dealing with the acts done in
furtherance of the common intention, making all equally liable for the results of all
the acts of others. It was observed:
"....the words of S. 34 are not to be eviscerated by reading them in this
exceedingly limited sense. By S. 33 a criminal act in S. 34 includes a series
of acts and, further, "act" includes omissions to act, for example, an
omission to interfere in order to prevent a murder being done before one's
very eyes. By S. 37, when any offence is committed by means of several acts
whoever intentionally co-operates in the commission of that offence by doing
any one of those acts, either singly or jointly with any other person, commits
that offence. Even if the appellant did nothing as he stood outside the door,
it is to be remembered that in crimes as in other things 'they also serve who
only stand and wait'. By S. 38, when several persons are engaged or
concerned in the commission of a criminal act, they may be guilty of
different offences by means of that act. Read together, these sections are
reasonably plain. S. 34 deals with the doing of separate acts, similar of
diverse, by several persons; if all are done in furtherance of a common
intention, each person is liable for the result of them all, as if he had done
them himself, for 'that act' and 'the act' in the latter part of the section must
include the whole action covered by 'a criminal act' in the first part, because
they refer to it. S. 37 provides that, when several acts are done so as to
result together in the commission of an offence, the doing of any one of
them, with an intention to co-operate in the offence (which may not be the
same as an intention common to all), makes the actor liable to be punished
for the commission of the offence. S. 38 provides for different punishments
for different offences as an alternative to one punishment for one offence,
whether the persons engaged or concerned in the commission of a criminal
act are set in motion by the one intention or by the other."
41. Referring to the presumption arising out of Section 114 of the Evidence Act, the
Privy Council further held:
"As to S. 114, it is a provision which is only brought into operation when
circumstances amounting to abetment of a particular crime have first been
proved, and then the presence of the accused at the commission of that
crime is proved in addition; Abhi Misser v. Lachmi Narain [1900 (27)
Cal.566]. Abetment does not in itself involve the actual commission of the
crime abetted. It is a crime apart. S. 114 deals with the case where there has

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 been the crime of abetment, but where also there has been actual
commission of the crime abetted and the abettor has been present thereat,
and the way in which is deals with such a case is this. Instead of the crime
being still abetment with circumstances of aggravation, the crime becomes
the very crime abetted. The section is evidentiary not punitory. Because
participation de facto (as this case shows) may sometimes be obscure in
detail, it is established by the presumption juris et de jure that actual
presence plus prior abetment can mean nothing else but participation. The
presumption raised by S. 114 brings the case within the ambit of S. 34. "
42. The classic case on the subject is the judgment of the Privy Council in Mahboob
Shah vs. Emperor AIR1914Cal901(2) . Referring to Section 34 prior to its amendment
in 1870 wherein it was provided:
"When a criminal act is done by several persons, each of such persons is
liable for that act in the same manner as if the act was done by him alone."
4 3 . it was noticed that by amendment, the words "in furtherance of common
intention of all" were inserted after the word "persons" and before the word "each" so
as to make the object of Section clear. Dealing with the scope of Section, as it exists
today, it was held:
"Section 34 lays down a principle of joint liability in the doing of a criminal
act. The section does not say 'the common intention of all' nor does it say 'an
intention common to all'. Under the section, the essence of that liability is to
be found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention. To
provide the aid of S. 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in the
furtherance of the common intention of all; if this is shown, then liability for
the crime may be imposed on any one of the persons in the same manner as
if the act were done by him alone. This being the principle, it is clear to their
Lordships that common intention within the meaning of the section implies a
pre-arranged plan, and to convict the accused of an offence applying the
section it should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan. As has been often observed, it is difficult
if not impossible to procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from this act or conduct or
other relevant circumstances of the case."
44. A Full Bench of the Patna High Court in The King Emperor vs. Barendra Kumar
Ghose MANU/WB/0336/1923 : AIR1924Cal257 which was later approved by the Privy
Council dealt with the scope of Section 34 in extenso and noted its effects from all
possible interpretations put by various High Courts in the country and the
distinguished authors on the subject. The Court did not agree with the limited
construction given by Stephen, J. in Emperor v. Nirmal Kanta Roy
MANU/WB/0114/1914 : AIR1914Cal901(2)and held that such an interpretation, if
accepted, would lead to disastrous results. Concurring with Mookerjee, J. and giving
the section wider view Richardson, J. observed:
"It appears to me that section 34 regards the act done as the united act of
the immediate perpetrator and his confederates present at the time and that
the language used is susceptible of that meaning. The language follows a
common mode of speech. In R. V. Salmon 1880 (6) Q80 79 three men had
been negligently firing at a mark. One of them -it was not known which - had

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 unfortunately killed a boy in the real of the mark. They were all held guilty of
manslaughter. Lord Coleridge, C.J. said: -'The death resulted from the action
of the three and they are all liable'. Stephan, J. said:- 'Firing a rifle' under
such circumstances 'is a highly dangerous act, and all are responsible; for
they unite to fire at the spot in question and they all omit to take any
precautions whatever to prevent danger.
Moreover, sections 34 35 and 37 must be read together, and the use in
section 35 of the phrase 'each of such persons who joins in the act' and in
section 37 of the phrase, 'doing any one of those acts, either singly or jointly
with any other person' indicates the true meaning of section 34. So section
38 speaks of 'several persons engaged or concerned in a criminal act'. The
different mode of expression may be puzzling but the sections must, I think,
be construed as enunciating a consistent principle of liability. Otherwise the
result would be chaotic.
To put it differently, an act is done by several persons when all are principals
in the doing of it, and it is immaterial whether they are principals in the first
degree or principals in the second degree, no distinction between the two
categories being recognised.
This view of section 34 gives it an intelligible content in conformity with
general notions. The opposing view involves a distinction dependent on
identity or similarity of act which, if admissible at all, is wholly foreign to the
law, both civil and criminal, and leads nowhere."
4 5 . Approving the judgments of the Privy Council in Barendra Kumar Ghose and
Mahboob Shah's cases (supra) a three Judge Bench of this Court in Pandurang & Ors.
v. State of Hyderabad MANU/SC/0048/1954 : 1955CriL J572 held that to attract the
applicability of Section 34 of the Code the prosecution is under an obligation to
establish that there existed a common intention which requires a pre-arranged plan
because before a man can be vicariously convicted for the criminal act of another, the
act must have been done in furtherance of the common intention of all. This Court
had in mind the ultimate act done in furtherance of the common intention. In the
absence of a pre-arranged plan and thus a common intention even if several persons
simultaneously attack a man and each one of them by having his individual intention,
namely, the intention to kill and each can individually inflict a separate fatal blow and
yet none would have the common intention required by the section. In a case like
that each would be individually liable for whatever injury he caused but none could
be vicariously convicted for the act of any or the other. The Court emphasised the
sharing of the common intention and not the individual acts of the persons
constituting the crime. Even at the cost of repetition it has to be emphasised that for
proving the common intention it is necessary either to have direct proof of prior
concert or proof of circumstances which necessarily lead to that inference and
"incriminating facts must be incompatible with the innocence of the accused and
incapable of explanation or any other reasonable hypothesis". Common intention,
arising at any time prior to the criminal act, as contemplated under Section 34 of the
Code, can thus be proved by circumstantial evidence.
4 6 . In Shreekantiah Ramayya Munipalli & Anr. v. State of Bombay
MANU/SC/0050/1954 : 1955CriLJ857 this Court held:
"It is true there must be some sort of preliminary planning which may or may
not be at the scene of the crime and which may have taken place long
beforehand, but there must be added to it the element of physical presence

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 at the scene of occurrence coupled with actual participation which, of course,
can be of a passive character such as standing by a door, provided that is
done with the intention of assisting in furtherance of the common intention
of them all and there is a readiness to play his part in the pre-arranged plan
when the time comes for him to act."
4 7 . This Court again in Takaram Ganapat Pandare v. State of Maharashtra
MANU/SC/0230/1974 : 1974CriL J469 reiterated that Section 34 lays down the rule of
joint responsibility for criminal act performed by a plurality of persons and even mere
distance from the scene of crime cannot exclude the culpability of the offence.
"Criminal sharing, overt or covert, by active presence or by distant direction making
out a certain measure of jointness in the commission of the act is the essence of
Section 34".
48. In a case where the deceased was murdered by one of the two accused with a
sharp edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while
the other accused, his brother, without taking part stood by with a spear in his hand
to overcome any outside interference with the attainment of the criminal act and both
the accused ran away together after the murder, this Court in Lalai alias Dindoo &
Anr. v. State of U.P. MANU/SC/0163/1974 : 1974CriL J1393 held that these facts had
a sufficient bearing on the existence of a common intention to murder.
49. In Ramaswami Ayyangar & Ors. v. State of Tamil Nadu MANU/SC/0163/1976 :
1976CriL J1563 this Court declared that Section 34 is to be read along with preceding
Section 33 which makes it clear that the "act" mentioned in Section 34 includes a
series of acts as a single act. The acts committed by different confederates in the
criminal action may be different but all must in one way or the other participate and
engage in the criminal enterprise. Even a person not doing any particular act but only
standing guard to prevent any prospective aid to the victims may be guilty of
common intention. However, it is essential that in case of an offence involving
physical violence it is essential for the application of Section 34 that such accused
must be physically present at the actual commission of crime for the purposes of
facilitating accomplishment of "criminal act" as mentioned in that section. In
Ramaswami's case (supra) it was contended that A2 could not be held vicariously
liable with the aid of Section 34 for the act of other accused on the grounds: firstly
he did not physically participate in the fatal beating administered by co-accused to
the deceased and thus the "criminal act" of murder was not done by all the accused
within the contemplation of Section 34; and secondly the prosecution had not shown
that the act of A2 in beating PW was committed in furtherance of the common
intention of all the three pursuant to a pre-arranged plan. Repelling such an
argument this Court held that such a contention was fallacious which could not be
accepted. The presence of those who in one way or the other facilitate the execution
of the common design itself tantamounts to actual participation in the "criminal act".
The essence of Section 34 is simultaneously consensus of the minds of persons
participating in the criminal action to bring about a particular result. Conviction of A2
under Section 302/34 of the Code in that case was upheld.
50. In Rambilas Singh & Ors. v. State of Bihar MANU/SC/0451/1989 : 1989CriL J1782
this Court held:
"It is true that in order to convict persons vicariously under 8.34 or 8.149
IPC, it is not necessary to prove that each and everyone of them had
indulged in over acts. Even so, there must be material to show that the overt
act or acts of one or more of the accused was or were done in furtherance of
the common intention of all the accused or in prosecution of the common

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 object of the members of the unlawful assembly."
51. Again a three Judge Bench of this Court in State of U.P. v. Iftikhar Khan & Ors.
MANU/SC/0181/1973 : 1973CriL J636 after relying upon the host of judgments of
Privy Council and this Court, held that for attracting Section 34 it is not necessary
that any overt act must be done by a particular accused. The section will be attracted
if it is established that the criminal act has been done by one of the accused persons
in furtherance of the common intention. If this is shown, the liability for the crime
may be imposed on any one of the person in the same manner as if the act was done
by him alone. In that case on proof of the facts that all the four accused persons
were residents of the same village and accused Nos.1 and 3 were brothers who were
bitterly inimical to the deceased and accused Nos.2 and 4 were their close friends,
accused Nos.3 and 4 had accompanied the other two accused who were armed with
pistols; all the four came together in a body and ran away in a body after the crime
coupled with no explanation being given for their presence at the scene, the Court
held that the circumstances led to the necessary inference of a prior concert and pre-
arrangement which proved that the "criminal act" was done by all the accused
persons in furtherance of their common intention.
5 2 . In Krishnan & Anr. v. State of Kerala JT 1996 (7) SC 612 this Court even
assuming that one of the appellants had not caused the injury to the deceased,
upheld his conviction under Section 302/34 of the Penal Code holding:
"Question is whether it is obligatory on the part of the prosecution to
establish commission of overt act to press into service section 34 of the
Penal Code. It is no doubt true that court likes to know about overt act to
decide whether the concerned person had shared the common intention in
question. Question is whether overt act has always to be established? I am of
the view that establishment of a 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 common intention of
all". What has to be, therefore, established by the prosecution is that all the
concerned persons had shared the common intention. Court's mind regarding
the sharing of common intention gets satisfied when overt act is established
qua each of the accused. But then, there may be a case where the proved
facts would themselves speak of sharing of common intention: res ipsa
loquitur."
53.In Surender Chauhan v. State of M.P. MANU/SC/0196/2000 : 2000CriL J1789 this
Court held that apart from the fact that there should be two or more accused, two
factors must be established - (i) common intention and (ii) participation of the
accused in the commission of the offence. If a common intention is proved but no
overt act is attributed to the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability. Referring to its earlier judgment this Court
held:
"Under Section 34 a person must be physically present at the actual
commission of the crime for the purpose of facilitating or promoting the
offence, the commission of which is the aim of the joint criminal venture.
Such presence of those who in one way or the other facilitate the execution
of the common design is itself tantamount to actual participation in the
criminal act. The essence of Section 34 is simultaneous consensus of the
minds of persons participating in the criminal action to bring about a
particular result. Such consensus can be developed at the spot and thereby
intended by all of them (Ramaswami Ayyangar v. State of T.N.

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 MANU/SC/0163/1976). The existence of a common intention can be inferred
from the attending circumstances of the case and the conduct of the parties.
No direct evidence of common intention is necessary. For the purpose of
common intention even the participation in the commission of the offence
need not be proved in all cases. The common intention can develop even
during the course of an occurrence. (Rajesh Govind Jagesha v. State of
Maharashtra MANU/SC/0703/1999). To apply Section 34 IPC apart from the
fact that there should be two or more accused, two factors must be
established" (i) common intention, and (ii) participation of the accused in the
commission of an offence. If a common intention is proved but no overt act
is attributed to the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability but if participation of the accused in
the crime is proved and a common intention is absent, Section 34 cannot be
invoked. In every case, it is not possible to have direct evidence of a
common intention. It has to be inferred from the facts and circumstances of
each case."
54. For appreciating the ambit and scope of Section 34, the preceding Sections 32
and 33 have always to be kept in mind. Under Section 32 acts include illegal
omissions. Section 33 defines the "act" to mean as well a series of acts as a single
act and the word "omission" denotes as well a series of omissions as a single
omission. The distinction between a "common intention" and a "similar intention"
which is real and substantial is also not to be lost sight of. The common intention
implies a pre-arranged plan but in a given case it may develop at the spur of the
moment in the course of the commission of the offence. Such common intention
which developed at the spur of the moment is different from the similar intention
actuated by a number of persons at the same time. The distinction between "common
intention" and "similar intention" may be fine but is nonetheless a real one and if
overlooked may lead to miscarriage of justice.
55. After referring to Mahboob Shah's case (supra) this Court in Mohan Singh & anr.
vs. State of Punjab [AIR 1963 174] observed, it is now well settled that the common
intention required by Section 34 is different from the same intention or similar
intention. The persons having similar intention which is not the result of pre-
concerted plan cannot be held guilty for the "criminal act" with the aid of Section 34.
Similarly the distinction of the words used in Section 10 of the Indian Evidence Act
"in reference to their common intention" and the words used in Section 34 "in
furtherance of the common intention" is significant. Whereas Section 10 of the Indian
Evidence Act deals with the actions done by conspirators in reference to the common
object, Section 34 of the Code deals with persons having common intention to do a
criminal act.
5 6 . In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors.
MANU/SC/0945/1999 : 1999CriL J3124Brother Thomas, J. in his judgment dealt with
such a proposition in paras 107 and 108.
57. However, in this case on facts, the prosecution has not succeeded in proving that
A3 Pavitri Devi shared the common intention with the other two accused persons, one
of whom was her husband and the other her brother. It has come in evidence that
when the witnesses reached on the spot, they found the said accused standing on the
road whereas the other accused were busy committing the crime inside the house.
The exaggerated version of PW3 regarding the participation of Pavitri Devi by
allegedly catching hold of his mother's hair cannot be accepted as PWs 1 and 2 have
not supported the aforesaid version. The High Court was, therefore, justified in
holding that Pavitri Devi, A3 did not share the common intention with the other

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 accused persons. By her mere presence near the place of occurrence at or about the
time of crime in the absence of other evidence, direct or circumstantial, cannot hold
her guilty with the aid of Section 34. But in case the prosecution had succeeded in
proving on facts of her sharing of common intention with A1 and A2, she could not
be acquitted of the charge framed against her only on the ground that she had
actually not done any overt act. The appeal of the State filed against Pavitri Devi has
no merit and has thus rightly been dismissed by Brother Thomas, J.

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