Section 34 IPC Not Attracted When Final Outcome or Offence Committed is Distinctly Remote and Unconnected with Common Intention
Case: Krishnamurthy @ Gunodu vs State Of Karnataka
Coram: Justices Sanjiv Khanna and Bela M. Trivedi
Case No.: CrA 288 of 2022
Court Observation: “Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. By Section 33 of IPC, a criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things “they also serve who only stand and wait”. Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention.5 Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be safe for conviction but it may not be mandatory when pre-arranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of coparticipants in the criminal action is however, mandatory and essential. In Krishnan and Another v. State of Kerala, it has been observed that an overt act is not a requirement of law for Section 34 IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts.”
“It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied. Two examples quoted in Bashir’s case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co-perpetrator; and the actual offence committed by the principal or main perpetrator.
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