Elaborate, long-standing plan not needed for 'common intention' under Section 34 IPC: Supreme Court

The Supreme Court has held that in order to establish a charge under Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC), the prosecution is not required to prove that there was an elaborate plan between the accused to commit the criminal act or that a plan was in existence for a long time [Gulab vs State of Uttar Pradesh]. .A Bench of Justices DY Chandrachud, AS Bopanna and Vikram Nath held that the element of “common intention” under Section 34 of IPC is proven if an accused by his words or actions indicate his assent to join in the commission of the crime.."A common intention to commit the crime is proved if the accused by their words or action indicate their assent to join in the commission of the crime,” the top Court ruled..The Court was dealing with a case from 1989 in which the appellant Gulab and the main accused Idrish had gone to a pond, the appellant armed with a stick and the main accused carrying a pistol. On being told by the appellant that the victim was the enemy, the main accused shot the victim, killing him..While both of them were convicted by the trial court under Section 302 of the Indian Penal Code, the appellant was also convicted under Section 34 of the IPC. Both were sentenced to imprisonment for life. The main accused passed away during the pendency of the proceedings..On appeal, the Allahabad High Court held that to attract a conviction with the aid of Section 34 of the IPC, the presence of the appellant with the main accused, armed with a lathi and the role attributed to him of exhorting main accused to commit the murder, was sufficient.It, therefore, upheld the verdict of the trial court leading to the present appeal before the Supreme Court. .The top court noted that evidence on the record had been carefully evaluated by the Sessions Judge as well as the High Court. "There is no basis to discredit the presence of the three eye-witnesses and nothing has been elicited in the course of the cross-examination to doubt their presence. The nature of the injuries found to have been sustained by the deceased is consistent with the account furnished by the eyewitnesses," the Court said.One of the arguments of the accused was non-recovery of the firearm used in the murder. The Court however, held that the non-recovery of the weapon used for commission of the crime would not discredit the case of the prosecution when credible evidence of direct eye-witnesses has been adduced.Pertinently, on Section 34 of IPC, the Court placed reliance on Pandurang, Tukia and Bhillia v. The State of Hyderabad and Virendra Singh v. State of Madhya Pradesh to cull out the following fundamental principles underlying the said provision: - Section 34 does not create a distinct offence, but is a principle of constructive liability; - In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done; - There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; - The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime..In the present case, the Court noted that the evidence on the record clearly established a common intention in pursuance of which the appellant exhorted Idrish to kill the deceased. The prosecution is not required to prove that there was an elaborate plan between the accused to kill the deceased or a plan was in existence for a long time, the Court emphasised.The appellant reached the spot with a lathi, along with Idrish who had a pistol. The appellant’s exhortation was crucial to the commission of the crime since it was only after he made the statement that the enemy has been found, that Idrish fired the fatal shot, the Court observed. "The role of the appellant, his presence at the spot and the nature of the exhortation have all emerged from the consistent account of the three eye-witnesses," the judgment said..In view of the above, the appeal was dismissed..[Read Judgment]