Common Intention Implies Acting In Concert; Existence Of Prearranged Plan Must Be Proved U/S 34 IPC: Kerala High Court
The Kerala High Court said that under Section 34 of the Indian Penal Code (IPC), existence of prearranged plan must be proved either from the conduct of the accused, or from circumstances or from any incriminating facts.
The Court was dealing with a batch of criminal appeals filed by accused persons against the judgment of Additional Sessions Judge by which they were convicted and sentenced for the offences punishable under Sections 341 and 302 read with Section 34 of IPC.
A Division Bench of Justice P.B. Suresh Kumar and Justice M.B. Snehalatha remarked, “To attract Section 34 of IPC, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.”
The Bench noted that Section 34 of IPC lays down a principle of joint liability in a criminal act, the essence of which is to be found in the existence of a common intention.
Advocate Rasheed C. Nooranad represented the appellants/accused while Public Prosecutor E.C. Bineesh represented the respondent/State.
Factual Background -
The victim in this case, suffered a stab injury in 2010. A case was registered based on the information furnished by the younger brother of the deceased and the investigation conducted in the case revealed that it was the accused who caused the death of the victim. As per the prosecution case, the accused in furtherance of their common intention to commit murder of the victim, trespassed into the courtyard of his house. When his younger brother came out of the house, the accused told him that they want to talk to his brother. When victim came out of the house, the accused led him out of the courtyard followed by which they held him from his back by his hands to prevent him from escaping their hold.
The first accused inflicted a deep stab injury on the left side of his abdomen using a knife and thereupon, all of the accused fled away from the scene. A few hours prior to the occurrence of such incident, the victim had questioned the first accused for having taken his brother to a bar and caused the latter to drink liquor. The said occurrence ensued in an altercation and in the midst of which, the victim allegedly caused hurt to the first accused by hitting him. Such occurrence was alleged to be the motive for the accused to cause his death. The Sessions Court held the accused 1 to 3 guilty under Sections 341 and 302 read with Section 34 of IPC and acquitted the fourth accused of the charge framed under Section 201 of IPC. Being aggrieved by the conviction, they filed the appeals before the High Court.
The High Court in the above regard observed, “It is trite in criminal jurisprudence, that only a person who actually commits an offence, is liable to be punished. … Even when separate acts are done by two or more persons in furtherance of a common intention, each person is liable for the result of all the acts, as if all the acts had been done by all these persons. Section 34 is only a rule of evidence which attracts the principle of joint criminal liability and does not create any distinct substantive offence. The distinctive feature of Section 34 is the element of participation in action and intention of each one of the accused should be known to the rest of the accused.”
The Court added that mere participation is not sufficient to attribute common intention and the common intention can be inferred from proved facts and circumstances and the same can develop during the course of an occurrence or at the spot.
“This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The question whether the prosecution has established common intention in a given case has to be decided on the basis of the proved facts. In other words, the prosecution is required to prove a premeditated intention of all the accused. Section 34 of the Indian Penal Code, is really intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and prove exactly what part was played by each of them”, it further said.
The Court also noted that merely for the reason that the doctor who was examined in the proceedings did not depose that the injury intended and inflicted by the assailant is sufficient in the ordinary course of nature to cause death, it cannot be contended that the court cannot arrive at the conclusion that the homicide is a murder.
“Even assuming that the facts disclosed would only show that it is a case of culpable homicide not amounting to murder, punishable under Section 304 IPC, inasmuch as death is caused with the intention of causing such bodily injury as is likely to cause death, the case would fall only under Part I of Section 304 IPC and even in that case, the punishment imposed on the first accused namely life imprisonment is provided for”, it concluded.
Accordingly, the High Court dismissed the appeal of the first accused by confirming his conviction, but allowed the appeals of the second and third accused and acquitted them.
Cause Title- Shafeek v. State of Kerala (Neutral Citation: 2024:KER:37055)
Appearance:
Appellants: Advocates Rasheed C. Nooranad, Anitha M.N. EKM, K.K. Dheerendrakrishnan, Shajin S. Hameed, N.P. Asha, S. Rajeev, V. Vinay, and D. Feroze.
Respondents: Public Prosecutor E.C. Bineesh
