Virendra Singh vs State Of M.P

the accused persons, they pressurized the deceased

Bhagirath to reap the crop standing on their field. The

accused persons got annoyed on deceased's refusal to reap

their crop. Accused Hakim Singh, Kamlesh and Virendra

Singh armed with weapons went to the house of Bhagirath

the next day at 7.00 a.m. to take revenge for declining to

carry out the order of the accused persons. Virendra Singh

and Hakim Singh were armed with lathis and Kamlesh was

armed with a rifle. They asked Bhagirath why he had not

gone to reap their crop. The deceased replied that he had

already informed them that he would not be in a position to

reap their crop for the aforementioned reasons. On getting

this response, accused persons, namely, Hakim Singh and 3

Virendra Singh got infuriated and started hurling filthy

abuses and beating Baburam, son of the deceased. When

Hakim Singh and Virendra Singh were assaulting Baburam

with lathis, then Lakhan, Rakesh, Satyanarain, son of the

deceased, Ramshri, mother of Baburam and Rajkumari,

sister of Baburam rushed to save Baburam. Hakim Singh

and Virendra Singh also assaulted Lakhan with lathis on

the head, shoulder and back. The accused persons also

caused injuries to Ramshri and Satyanarain.

3. The deceased Bhagirath intervened. At that point of

time Hakim Singh exhorted Kamlesh to shoot Bhagirath.

Kamlesh shot at Bhagirath in the stomach, which resulted

in his death. Kamlesh also fired at Baburam but the bullets

missed him. After commission of the offence the accused

persons ran away towards the canal. The incident was

witnessed by Ramsahay P.W.11 and Bhoorelal.

4. The trial court, after scrutinizing the entire evidence on

record, convicted Hakim Singh, Kamlesh and Virendra 4

Singh under section 302 read with section 34 of the Indian

Penal Code (for short, IPC).

5. It was canvassed before the trial court that the

deceased had died because of the fire arm injury caused by

Kamlesh, therefore, Virendra Singh and Hakim Singh

cannot be convicted under section 302 read with section 34

of the Indian Penal Code.

6. Baburam P.W. 6 is an injured eye witness. He had

given the graphic description of the entire incident and

specifically mentioned that Kamlesh and Virendra Singh

had abused him and then Hakim Singh and Virendra Singh

had beaten him with lathis. He further deposed that when

his mother came to save him, then accused Hakim Singh

and Virendra Singh had assaulted his mother also on her

hand and head by lathis, which resulted in the fracture of

her hand. The accused also assaulted Lakhan on the head

by lathi. It was further deposed by Baburam P.W. 6 that

Hakim Singh then asked Kamlesh to shoot Bhagirath and 5

Kamlesh shot at Bhagirath. The pallets of the bullet also

injured Satyanarain and his sister Rajkumari.

7. Satyanarain P.W.7 had also given the detailed

description of the entire incident and specifically stated

about the role of the appellant Virendra Singh in the entire

incident.

8. Rajkumari P.W.10 has categorically stated that Hakim

Singh along with Virendra Singh armed with lathis and

Kamlesh armed with a firearm came to the house of

Bhagirath and started abusing him and thereafter Hakim

Singh and Virendra Singh assaulted Baburam with lathis.

When Baburam shouted on getting lathi blows, then his

mother Ramshri, Satyanarain and Lakhan rushed to save

him. Both Hakim Singh and Virendra Singh also assaulted

Ramshri, the mother of Baburam on her hand and head,

which resulted into a fracture of her hand. Lakhan was

also assaulted.

6

9. The version of prosecution witnesses is consistent and,

despite gruelling and long cross-examination, no dent could

be made by the defence on the testimony of the prosecution

witnesses. The trial court convicted all the three accused

under section 302 read with section 34 of the Indian Penal

Code.

10. Hakim Singh died during the pendency of the appeal.

In appeal by the remaining two accused Kamlesh and

Virendra Singh, the High Court again carefully scrutinized

the entire evidence and came to a clear conclusion that the

appellant Virendra Singh is also guilty under section 302

read with section 34 of the Indian Penal Code.

11. The High Court observed that all the accused persons

went to the house of the deceased Bhagirath with the

intention to teach him a lesson. Immediately on reaching

the spot Virendra Singh and Hakim Singh started beating

Baburam with lathis and when deceased Bhagirath

intervened, he was shot at by Kamlesh in furtherance of the

commission of offence.

7

12. In the facts and circumstances of this case, it cannot

be concluded that death was caused on account of grave or

sudden provocation. On the contrary, it is fully established

that all the accused had gone to the house of Bhagirath to

teach him a lesson armed with lathis and a rifle, because

the previous day the deceased declined to follow their orders

of reaping their crops because of his reasons. On Hakim

Singh's exhortation, Kamlesh fired at the deceased

Bhagirath causing his death. According to the prosecution,

the appellant Virendra Singh is clearly guilty of an offence

under sections 302 read with 34 IPC. Admittedly, all the

three accused in consonance with the prearranged plan had

gone to the house of the deceased to teach him a lesson for

disobeying their orders. All three of them were armed with

weapons, so there was a prior meeting of minds or pre-

concert.

13. The High Court, on the basis of the entire evidence on

record, came to a definite conclusion that the appellant 8

Virendra Singh is guilty under section 302 read with section

34 of the Indian Penal Code.

14. The appellant being aggrieved by the judgment of the

High Court preferred this appeal.

15. We have again scrutinized the entire evidence on

record to satisfy ourselves whether the appellant Virendra

Singh has been wrongly convicted under section 302 read

with section 34 IPC?

16. According to the appellant, in the facts and

circumstances of this case, section 34 IPC could not have

been invoked. In order to deal with this argument, it has

become imperative to deal with section 34 IPC. It reads as

under:

"34. 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."

9 17. Ordinarily, a person is responsible for his own act. A

person can also be vicariously responsible for the acts of

others if he had the common intention to commit the offence.

18. The words "common intention" implies a pre-arranged

plan and acting in concert pursuant to the plan. It must be

proved that the criminal act was done in concert pursuant to

the pre-arranged plan. Common intention comes into force

prior to the commission of the act in point of time, which

need not be a long gap. Under this section a pre-concert in

the sense of a distinct previous plan is not necessary to be

proved. The common intention to bring about a particular

result may well develop on the spot as between a number of

persons, with reference to the facts of the case and

circumstances of the situation. Though common intention

may develop on the spot, it must, however, be anterior in

point of time to the commission of the crime showing a pre-

arranged plan and prior concert. The common intention

may develop in course of the fight but there must be clear

and unimpeachable evidence to justify that inference. This

has been clearly laid down by this Court in the case of 10 Amrik Singh & Ors. v. State of Punjab 1972 CrLJ 465

(SC).

19. The essence of the 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.

20. Undoubtedly, it is difficult to prove even the intention of

an individual and, therefore, it is all the more difficult to

show the common intention of a group of persons.

Therefore, in order to find whether a person is guilty of

common intention, it is absolutely necessary to carefully and

critically examine the entire evidence on record. The

common intention can be spelt out only from the evidence on

record.

21. Section 34 is not a substantive offence. It is imperative

that before a man can be held liable for acts done by

another, under the provisions of this section, it must be

established that there was common intention in the sense of 11

a pre-arranged plan between the two and the person sought

to be so held liable had participated in some manner in the

act constituting the offence. Unless common intention and

participation are both present, this section cannot apply.

22. Section 34 IPC is part of the original Code of 1860 as

drafted by Thomas Babington Macaulay, later known as Lord

Macaulay. The original Section as it stood was as follows:

"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."

23. However, on account of certain observations made by

Sir Barnes Peacock C.J. in Queen v. Gora Chand Gope &

Ors. (1866) 5 South WR (Cri) 45, it was necessary to bring

about a change in the wordings of the section. Accordingly,

in the year 1870 an amendment was brought which

introduced the following words after..... When a criminal act

is done by several persons..... ".....in furtherance of the

common intention...." After this change, the section has not

been changed or amended ever.

12

24. The case of Barendra Kumar Ghosh v. King

Emperor AIR 1925 PC 1 is a locus classicus and has been

followed by number of High Courts and this court in a large

number of cases. In this case, 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 Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 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 Section 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 Section 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. Section 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 13

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. Section 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. Section 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."

25. It was further observed that section 34 when it speaks

of a criminal act done by several persons in furtherance of

the common intention of all, has regard not to the offence as

a whole, but to the criminal act, that is to say, the totality of

the series of acts which result in the offence. In the case of a

person assaulted by many accused, the criminal act is the

offence which finally results, though the achievement of that

criminal act may be the result of the action of several

persons.

26. In another celebrated case Mehbub Shah v. King-

Emperor AIR 1945 PC 148, the court held that "Section 34

lays down a principle of joint liability in the doing of a 14

criminal act. The section does not say "the common

intentions 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 invoke the aid of section 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."

27. In Pandurang, Tukia and Bhillia v. The State of

Hyderabad (1955) 1 SCR 1083, this Court laid down that it

is well settled that common intention in section 34 of the 15 Indian Penal Code presupposes prior concert, 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 them all.

28. In Mohan Singh & Anr. v. State of Punjab AIR 1963

SC 174, this Court observed that 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.

29. In State of U.P. v. Iftikhar Khan & Ors. (1973) 1 SCC

512 it was observed that to attract Section 34 IPC it is not

necessary that any overt act should have been done by the

co-accused. In this 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. 16

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 by a

pistol shot. The criminal act in that case was done by all the

persons in furtherance of the common intention to kill the

deceased.

30. In Ramaswami Ayyangar & Others v. State of

Tamil Nadu (1976) 3 SCC 779, 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 17

at the actual commission of crime for the purposes of

facilitating accomplishment of "criminal act" as mentioned

in that section. In this case, 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 PW1 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.

18

31. In Rambilas Singh & Ors. v. State of Bihar (1989) 3

SCC 605, this Court held as under:

"It is true that in order to convict persons vicariously under section 34 or section149 IPC, it is not necessary to prove that each and everyone of them had indulged in overt 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 object of the members of the unlawful assembly."

32. In Krishnan & Another. v. State of Kerala (1996) 10

SCC 508, 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:

"15. 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 19

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."

33. In Surendra Chauhan v. State of M.P. (2000) 4 SCC

110, 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:

"11. 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.

20 (Ramaswami Ayyangar v. State of T.N. (1976) 3 SCC 779) 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 (1999) 8 SCC 428). 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."

34. In Suresh & Another v. State of U.P. (2001) 3 SCC

673, Section 34 of the Indian Penal Code recognizes 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 21

more than two persons intentionally do a thing jointly, it is

just the same as if each of them had done it individually. The

common intention pre-supposes prior concert. 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. 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.

35. In that case, it was also observed that the dominant

feature for attracting section 34 of the Indian Penal Code is

the element of participation in absence resulting in the

ultimate "criminal act". The section does not envisage the

separate act by all the accused persons for becoming

responsible for ultimate criminal act. If such an

interpretation is accepted, the purpose of section 34 shall be

rendered infructuous.

36. It was further observed that what is required under law

is that the accused persons sharing the common intention 22

must be physically present at the scene of occurrence and be

shown not to have dissuaded themselves from the intended

criminal act for which they share 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 preconceived the result that ensued in

furtherance of the common intention.

37. In Gopi Nath @ Jhallar v. State of U.P. (2001) 6 SCC

620 it was observed as under:

"8. ..... As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who jointed together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it 23

that it was not overt or was only covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."

38. In Krishnan & Anr. v. State represented by

Inspector of Police (2003) 7 SCC 56, it was observed that

section 34 is dependent on the circumstances of each case.

No hard and fast rule can be made out regarding

applicability or non-applicability of section 34.

39. In Girija Shankar v. State of U.P. (2004) 3 SCC 793,

it was observed that section 34 has been enacted to

elucidate the principle of joint liability of a criminal act.

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not 24

create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same is if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."

40. In Ramesh Singh @ Photti v. State of A.P. (2004) 11

SCC 305, it has been observed as under:

"12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and 25

only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. ........."

41. Referring to the facts of this case, the short question

which arises for adjudication in this appeal is whether the

appellant Virendra Singh can be convicted under section 302

with the aid of section 34 IPC. Under the Indian Penal Code,

the persons who are connected with the preparation of a

crime are divided into two categories: (1) those who actually

commit the crime, i.e. principals in the first degree; and (b)

those who aid in the actual commission, i.e. principals in the

second degree. Law does not make any distinction with

regard to the punishment of such persons, all being liable to

be punished alike.

42. Under the Indian Penal Code, a person is responsible

for his own act. A person can also be vicariously responsible 26

for the acts of others if he had a common intention to

commit the acts or if the offence is committed by any

member of the unlawful assembly in prosecution of the

common object of that assembly, then also he can be

vicariously responsible. Under the Indian Penal Code, two

sections, namely, sections 34 and 149, deal with the

circumstances when a person is vicariously responsible for

the acts of others.

43. The vicarious or constructive liability under section 34

IPC can arise only when two conditions stand fulfilled, i.e.,

the mental element or the intention to commit the criminal

act conjointly with another or others; and the other is the

actual participation in one form or the other in the

commission of the crime.

44. The common intention postulates the existence of a

pre-arranged plan implying a prior meeting of the minds. It

is the intention to commit the crime and the accused can be

convicted only if such an intention has been shared by all

the accused. Such a common intention should be anterior 27

in point of time to the commission of the crime, but may also

develop on the spot when such a crime is committed. In

most of the cases it is difficult to procure direct evidence of

such intention. In most of the cases, it can be inferred from

the acts or conduct of the accused and other relevant

circumstances. Therefore, in inferring the common intention

under section 34 IPC, the evidence and documents on record

acquire a great significance and they have to be very

carefully scrutinized by the court. This is particularly

important in cases where evidence regarding development of

the common intention to commit the offence graver, then,

the one originally designed, during execution of the original

plan, should be clear and cogent.

45. The dominant feature of section 34 is the element of

intention and participation in action. This participation

need not in all cases be by physical presence. Common

intention implies acting in concert.

46. The essence of section 34 IPC is a simultaneous

consensus of the minds of the persons participating in 28

criminal action to bring about a particular result. Russel in

his celebrated book "Russel on Crime" 12th Edn. Vol. 1

indicates some kind of aid or assistance producing an effect

in future and adds that any act may be regarded as done in

furtherance of the ultimate felony if it is a step, intentionally

taken for the purpose of effecting that felony. It was

observed by Russel that any act of preparation for the

commission of felony is done in furtherance of the act.

47. Section 34 IPC does not create any distinct offence, but

it lays down the principle of constructive liability. Section

34 IPC stipulates that the act must have been done in

furtherance of the common intention. In order to incur joint

liability for an offence there must be a pre-arranged and pre-

meditated concert between the accused persons for doing the

act actually done, though there might not be long interval

between the act and the pre-meditation and though the plan

may be formed suddenly. In order that section 34 IPC may

apply, it is not necessary that the prosecution must prove

that the act was done by a particular or a specified person.

In fact, the section is intended to cover a case where a 29

number of persons act together and on the facts of the case

it is not possible for the prosecution to prove as to which of

the persons who acted together actually committed the

crime. Little or no distinction exists between a charge for an

offence under a particular section and a charge under that

section read with section 34.

48. The other section under which a person can be

vicariously responsible for the acts of others is section 149 in

the Indian Penal Code.

49. We would briefly like to deal with the scope and ambit

of section 149 IPC also. Section 149 IPC reads as under:

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

30 50. Both sections 34 and 149 IPC deal with combinations

of persons who become punishable as sharers in an offence.

In both these sections, the persons are vicariously

responsible for the acts of others. Simultaneously, there is a

basic resemblance in both these sections and to some extent

they also overlap.

51. There is a substantial difference between these two

sections with which we would deal in the later part of this

judgment. When several persons, numbering five or more,

do an act or intend to do it, both sections 34 and 149 IPC

may apply. Section 149 IPC is of wider scope than section

34 IPC and in a case where section 149 applies, a

constructive liability arises in respect of those persons who

do not actually commit the offence.

DISTINCTION BETWEEN SECTION 34 AND SECTION 149 OF THE INDIAN PENAL CODE

(i) Section 34 does not by itself create any specific

offence, whereas section 149 does so;

(ii) Some active participation, especially in crime

involving physical violence, is necessary under 31 section 34, but section 149 does not require it and

the liability arises by reason of mere membership of

the unlawful assembly with a common object and

there may be no active participation at all in

preparation and commission of the crime;

(iii) Section 34 speaks of common intention, but section

149 contemplates common object which is

undoubtedly wider in its scope and amplitude than

intention; and

(iv) Section 34 does not fix a minimum number of

persons who must share the common intention,

whereas section 149 requires that there must be at

least five persons who must have the same common

object.

Conclusion

52. When we revert to the facts of this case, we arrive at

definite conclusion that Hakim Singh and his two sons

Kamlesh and Virendra Singh armed with weapons went to

the house of the deceased Bhagirath to eliminate him.

Kamlesh, on exhortation of his father, Hakim Singh, fired a

pistol shot and killed Bhagirath. In view of these facts when 32 section 34 IPC is invoked then on the principle of vicarious

or constructive liability the appellant is clearly guilty under

section 302/34 IPC along with his father Hakim Singh and

his brother Kamlesh. The trial court and the High Court

correctly applied the law.

53. The appeal filed by the appellant is totally devoid of any

merit and is accordingly dismissed.

..............................J. (Dalveer Bhandari)

.............................J. (A.K. Patnaik) New Delhi;

August 9, 2010