Section 34 of The Indian Penal Code, 1860

Introduction

“ Section 34 of the Indian Penal Code, 1860:  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.”[1]

It talks about the principle of joint liability and emphasizes on how it is important for presence of essential elements for establishing common intention and convicting an accused under this section.

Section 34  of the Indian Penal Code, 1860 also deals with how an accused cannot be held vicariously liable for the act of another despite of his presence but with an absence of common intention.

Further though Section 34 is distinctive in its own way, it has several similarities with the Section 149 and has always been discussed on by the Indian judicial bodies. There are several instances when both of them can either overlap or can be interchanged on proof of either ‘common intention.’

To establish an act under Section 34 of the Indian Penal Code, 1860 there have been several important judgments by Supreme Courts and High Courts establishing the tests for example:

In Parichhat v. State of M.P[2] it was observed by the Supreme court that Section 34 will not be attracted unless first it is established that:

a. Criminal act was done by several persons

b. There was a common intention

c. Pre-arranged plan to commit an offence

d. There was participation in the commission of the offence in furtherance of the common intention.

In Jagan Gope & Ors. v. State of West Bengal[3]

Calcutta HC said

“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

(c) Participation

In respect of each accused are established.”

Objective of the Section 34

Section 34 is not an offence in itself however when it’s read with other Sections it constitutes an offence, i.e. for this section to be attracted a separate offence by more than one individual has to be committed. Its purpose is to incriminate offenders by following principle of ‘joint liability’ when an act is done by them together in furtherance of a common intention. “The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result.”- Surendra Chauhan v. State of M.P.[4]

The purpose of this section is to make sure that an innocent person is distinguished from the real offenders during commission of an offence for upholding the interest of justice. It has long been implemented and discussed by the Indian judiciary to make sure that real offenders or masterminds behind a crime are always prosecuted in totality. It also ensures that a person cannot escape conviction under an offence by making someone else do it for them, “Positive assault is not a necessary ingredient to establish common intention under section 34.”[5] Overtime several parameters have been laid down to test whether Section 34 is applicable in the case or not, those parameters have further been discussed in this article.

Ingredients and Their Application to Constitute an Act under Section 34

1. Criminal Act: Criminal Act is a wider term used in criminal law. Here ‘act’ refers to the unity and harmony of criminal behavior which results in something for which an individual would be punishable if it were all done by himself and constitute an offence.

2. Common intention to commit a crime is very important along with other ingredients. However it is not necessary that Common intention should be present right from the start, it can be developed right at the time of commission of offence by all the perpetrators. As was said in Surendra Chauhan v. State of M.P.[6] by the Supreme Court “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.”

However direct evidence for common intention isn’t required it can be inferred from the facts and circumstances of the case as was said by the Supreme Court in Ramaswami Ayyangar v. State of T.N.[7]  “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.”

Also in case Rajesh Govind Jagesha v. State of Maharashtra[8] it was said by Supreme Court that “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.”

In the Judgment of Subed Ali v. The State of Assam[9] decided on September 30, 2020, Supreme Court said that “If the nature of evidence displays a pre­arranged plan and acting in concert pursuant to the plan, common intention can be inferred.”

3. Presence at the place of offence: It is necessary for an offender to be individually present at the place of actual commission of the crime either for facilitating or promoting it.

In Surendra Chauhan v. State of M.P.[10] it was observed by the Supreme Court that “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.”

4. Facilitation of crime or promotion of venture:

For commission of an act under Section 34 it is necessary that accused must be physically present at the place of occuence of offence either to facilitate or promote the crime and it’s venture in any way. In a judgment of Subed Ali And Others v. The State Of Assam[11] comprising of a three-judge Bench of Justice R.F. Nariman, Justice Navin Sinha, Justice Indira Banerjee held that “Under Section 34 of the IPC 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.”

5. Participation in the commission of offence along with Common Intention is an essential ingredient; absence of anyone of them won’t establish a case under Section 34. As was observed by the Supreme Court in: Rajesh Govind Jagesha v. State of Maharashtra[12]  “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 attracted.”

6. Pre arranged plan: For commission of an act under Section 34 it is necessary that there must be a pre arranged plan. In the case there is evidence of pre arranged plan then it clubbed with the facts of the case establishes the ‘common intention’

In Subed Ali v. The State of Assam[13] decided on September 30, 2020, the Supreme Court of India made it clear that “If the nature of evidence displays a pre­arranged plan and acting in concert pursuant to the plan, common intention can be inferred.”

Relation and Difference Between Section 34 and Section 149

Both the Sections deals with persons who share liability in offences they commit. When several persons, numbering five or more, do an act or intend to do it, both Sections 34 and 149 of IPC may apply. Sometimes it can be difficult to determine which section is applicable in the case. However, depending on the facts and circumstances of the case it can be decided. But in the case where on further investigation and development of facts it’s found that one is more relevant and suitable to be applied then “Charge under Section 149 IPC Can Be Altered To Section 34 IPC If Common intention among accused is proved.”[14]

While talking about their relation the court went to the extent of saying that both these sections overlap to some extent.

“Both the 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”.

In the case of Virendra Singh v. State of M.P.[15] the court discussed the differences between Section 34 and 159 and said “There is a substantial difference between these two sections. 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.”

The main differences are:

a. Section 34 is not an offence in itself but Section 149 is.

b. “Some active participation, especially in crime involving physical violence, is necessary under 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”

c. Section 34 works on the principle of common object but Section 149 considers common object where Common object has a much wider scope of application.

d. Minimum five members with common object are required for committing an offence under Section 149 but Section 34 requires two or more people with common intention to constitute an act under it.

Conclusion

Section 34 has a wide range of applicability when it is read with other Sections to constitute an offence. In the cases where more than one person commits an offence, Tests under Section 34 is applied to determine the joint liability of the individuals in such circumstances. And for the constitution of an act under Section 34 it is necessary that there must be a Criminal Act with Common intention where accused must be present at the place of offence and there must have Participation in the commission of offence or Facilitation of crime or promotion of venture in furtherance of a Pre arranged plan.

[1] The Indian Penal Code, 1860, § 34, No. 45, Acts of Parliament, 6^th October, 1860 (India)

[2] (1972) 4 SCC 694 

[3] C.R.A.389 of 2012

[4] (2000) 4 SCC 110

[5] https://www.livelaw.in/know-the-law/charge-under-section-149-ipc-altered-to-section-34-ipc-common-intention-proved-supreme-court-167134

[6] (2000) 4 SCC 110

[7] [(1976) 3 SCC 779: 1976 SCC (Cri) 518

[8] [(1999) 8 SCC 428: 1999 SCC (Cri) 1452]

[9] Criminal Appeal No. 1401 of 2012

[10] (2000) 4 SCC 110

[11] Criminal Appeal No. 1401 of 2012

[12] (1999) 8 SCC 428: 1999 SCC (Cri) 1452] .

[13] Criminal Appeal No. 1401 of 2012

[14] https://www.livelaw.in/know-the-law/charge-under-section-149-ipc-altered-to-section-34-ipc-common-intention-proved-supreme-court-167134

[15] (2010) 8 SCC 407

Author- Nalin Kumar, (Vivekananda Institute of Professional Studies.)