Common intention under Section 34, IPC cannot be confused with similar intention: Calcutta HC

The Calcutta High Court recently made pertinent observations concerning Section 34 of the Indian Penal Code (IPC). This provision fixes equal liability for a crime on all persons who had common intention to commit it and participated in furtherance of committing it.

The Division Bench of Justices Joymalya Bagchi and Suvra Ghosh has, however, cautioned that common intention is not the same as similar intention when it comes to fastening criminal liability by invoking Section 34, IPC.

As noted in a judgment passed earlier this month.

“Common intention under Section 34 of the Indian Penal Code is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such act is done in furtherance of the common intention."

"Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of : (a) pre-consent, (b) presence and (c) participation in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention", the Bench explained.

In view of the same, the Bench acquitted two of six persons accused of having murdered a man jointly.

In the case at hand, a headmaster at a school was attacked and murdered by some the accused in daylight. Their trial court conviction and life imprisonment sentence was challenged before the High Court.

The High Court, in turn, found that reliable eye witness testimony proved that four of the six accused had come to the school, attacked and murdered the deceased.

There was evidence to show that the two remaining accused had threatened the kin of the deceased from reporting the incident to the police. However, the High Court found that there was no reliable testimony to establish their presence at the school when the murder was committed.

“Although there is some evidence that Sasthi and Ashadhan had enmity with the deceased and may have tried to obstruct P.W. 1 and 3 from going to the police station, there is no evidence on record that they were present at the place of occurrence and participated in the assault and murder of the victim with Jagan, Bhadru, Jishu and Ajit.”

In this regard, the Court also opined that it was not enough that all the six accused shared common enmity against the deceased. Rejecting embellished testimony offered against the accused based on such past enmity, the Bench observed,

"Enmity is a double-edged sword. While it gives justification to commit the crime, it is also a vital motivation for interested witnesses to falsely implicate innocent persons in the crime."

In view of these observations, the court partly allowed the appeal, acquitting two of the six appellants while upholding conviction for the rest. The two acquitted appellants were ordered to be released if their detention was not required for any other case.

The appellants were represented by Advocate Moinak Bakshi while the State of West Bengal was represented by Advocates Rana Mukherjee, Sanjoy Bardhan and Md. Kutubuddin.

[Read the Judgment]