LALLAN RAI Vs. STATE OF BIHAR
LAWS(SC)-2002-11-48
SUPREME COURT OF INDIA (FROM: PATNA)
Decided on
November 14,2002
LALLAN RAI
Appellant
VERSUS
STATE OF BIHAR
Respondents
Referred Judgements :-
MOHAN SINGH V. STATE OF PUNJAB [REFERRED TO]WILLIE WILLIAM SLANEY VS. STATE OF MADHYA PRADESH [REFERRED TO]
RAMASWAMI AYYANGAR VS. STATE OF TAMIL NADU [REFERRED TO]
KAMMARI BRAHMAIAH VS. PUBLIC PROSECUTOR HIGH COURT OF ANDHRA PRADESH [REFERRED TO]
NARINDER SINGH VS. STATE OF PUNJAB [REFERRED TO]
SURESH VS. STATE OF UTTAR PRADESH [REFERRED TO]
BARENDRA KUMAR GHOSE VS. EMPEROR [REFERRED TO]
Cited Judgements :-
SUJIT DINANAT SADAN VS. STATE OF MAHARASHTRA [LAWS(BOM)-2003-6-110] [REFERRED TO]RAJA S/O HIRALAL BOYAT VS. STATE OF MAHARASHTRA [LAWS(BOM)-2009-12-236] [REFERRED]
RAM JEEVAN VS. STATE OF U.P. [LAWS(ALL)-2019-4-300] [REFERRED TO]
UDHAM SINGH S/O PREETAM SINGH VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-3-350] [REFERRED TO]
BHURE SINGH VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-1-199] [REFERRED TO]
RAJMANI SINGH & OTHERS VS. STATE OF M P [LAWS(MPH)-2010-11-92] [REFERRED]
CHHOTA AHIRWAR VS. STATE OF MADHYA PRADESH [LAWS(SC)-2020-2-109] [REFERRED TO]
VIJENDRA SINGH VS. STATE OF UTTAR PRADESH [LAWS(SC)-2017-1-22] [REFERRED TO]
VIJAY BAHADUR @ PAHADI VS. STATE OF U.P. [LAWS(ALL)-2019-7-319] [REFERRED TO]
RAM PAL VS. STATE OF U.P. [LAWS(ALL)-2020-5-10] [REFERRED TO]
KEDABAI SHANTARAM JADHAV VS. KIRAN [LAWS(BOM)-2011-1-13] [REFERRED TO]
NIRMAL YADAV VS. CENTRAL BUREAU OF INVESTIGATION [LAWS(P&H)-2013-5-17] [REFERRED TO]
RABARI HARGOVANBHAI HARIBHAI AND ORS. VS. STATE OF GUJARAT [LAWS(GJH)-2015-8-31] [REFERRED TO]
SAJITH VS. STATE OF KERALA [LAWS(KER)-2011-8-83] [REFERRED TO]
RAMBAHOR KOL AND OTHERS VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-5-16] [REFERRED TO]
LAKHAN VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-1-225] [REFERRED TO]
SHYAM BEHARI MISHRA VS. STATE OF U.P. [LAWS(ALL)-2023-3-50] [REFERRED TO]
SATTAR VS. STATE OF U.P. [LAWS(ALL)-2019-4-304] [REFERRED TO]
STATE OF U.P. VS. GIRISH PAL [LAWS(ALL)-2017-5-211] [REFERRED TO]
UJJA AND ORS. VS. STATE OF U.P. [LAWS(ALL)-2015-8-150] [REFERRED TO]
MUNNU VS. STATE OF U P [LAWS(ALL)-2008-10-59] [REFERRED TO]
HARIDAS DAYARAM WANKHADE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2003-7-84] [REFERRED TO]
RAMBHAU MAROTI ATAPALKAR VS. STATE OF MAHARASHTRA [LAWS(BOM)-2003-6-88] [REFERRED TO]
PRASHANT NARAYANRAO CHIDAM VS. STATE OF MAHARASHTRA [LAWS(BOM)-2008-2-12] [REFERRED TO]
RAMPHAL SINGH VS. STATE OF U.P. [LAWS(ALL)-2021-3-1] [REFERRED TO]
NANA ALIAS DNYANESHWAR MAHADEO GOHATE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2004-2-10] [REFERRED TO]
SAHABLAL VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-7-84] [REFERRED TO]
KRISHAN LAL VS. CENTRAL BUREAU OF INVESTIGATION [LAWS(P&H)-2018-5-442] [REFERRED TO]
GAJJU @ ARUN YADAV VS. STATE OF CHHATTISGARH [LAWS(CHH)-2018-1-14] [REFERRED TO]
SHYAMAL GHOSH VS. STATE OF WEST BENGAL [LAWS(SC)-2012-7-30] [REFERRED TO]
SYED YOUSUF HUSSAIN VS. STATE OF ANDHRA PRADESH [LAWS(SC)-2013-4-23] [REFERRED TO]
JASDEEP SINGH @ JASSU VS. STATE OF PUNJAB [LAWS(SC)-2022-1-19] [REFERRED TO]
SANYA LAMRA VS. STATE OF ARUNACHAL PRADESH AND ANR. [LAWS(GAU)-2016-1-70] [REFERRED TO]
LILABATIBAISHYA VS. STATE OF ASSAM [LAWS(GAU)-2004-3-21] [REFERRED TO]
NAJMUBHA GULRABHAI SOLANKI VS. STATE OF GUJARAT [LAWS(GJH)-2009-8-21] [REFERRED TO]
LAKHAN; MUNNA @ SHIV SHANKAR MISHRA; BHARAT TIWARI VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2018-1-260] [REFERRED TO]
HARIRAM VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2022-7-25] [REFERRED TO]
STATE OF BIHAR VS. PAPPU YADAV [LAWS(JHAR)-2004-4-20] [REFERRED TO]
BIRENDRA DAS VS. STATE OF ASSAM [LAWS(SC)-2013-7-92] [REFERRED TO]
PAPPU SINGH @ PAPPU KUMAR SINGH VS. STATE OF BIHAR [LAWS(PAT)-2017-8-50] [REFERRED TO]
KU KANTA D/O VYANKAT JADHAV VS. STATE OF MAHARASHTRA [LAWS(BOM)-2003-7-59] [REFERRED TO]
KROSMAWII VS. STATE OF MIZORAM [LAWS(GAU)-2022-6-65] [REFERRED TO]
VIJAY BAHADUR VS. STATE OF U. P. [LAWS(ALL)-2019-7-146] [REFERRED TO]
MEETING SK VS. STATE OF WEST BENGAL [LAWS(CAL)-2006-9-25] [REFERRED TO]
RANA SATYA NARAYAN SINGH VS. STATE OF BIHAR [LAWS(PAT)-2004-8-72] [REFERRED]
ROTASH VS. STATE OF RAJASTHAN [LAWS(SC)-2006-12-70] [REFERRED TO]
JENO TANTI VS. STATE OF JHARKHAND [LAWS(JHAR)-2019-1-184] [REFERRED TO]
DILIP VS. STATE [LAWS(ALL)-2011-1-193] [REFERRED TO]
MANOJ KUMAR GUPTA VS. STATE OF U.P [LAWS(ALL)-2017-8-76] [REFERRED TO]
PRASHANT VS. STATE OF MAHARASHTRA [LAWS(BOM)-2007-8-96] [REFERRED TO]
CHAGAN KISAN KOLI VS. STATE OF MAHARASHTRA [LAWS(BOM)-2007-10-24] [REFERRED TO]
HARDAS VIRA CHAVDA VS. STATE OF GUJARAT [LAWS(GJH)-2009-7-151] [REFERRED TO]
KUMA VS. STATE OF ODISHA [LAWS(ORI)-2020-11-2] [REFERRED TO]
RAMANAND YADAV VS. PRABHU NATH JHA [LAWS(SC)-2003-10-73] [REFFERED TO]
SUSHIL ANSAL VS. STATE THROUGH CBI [LAWS(SC)-2014-3-11] [REFERRED TO]
PRADEEP YADAV VS. STATE OF BIHAR [LAWS(PAT)-2022-8-85] [REFERRED TO]
TRIVENI SHARMA VS. STATE OF BIHAR [LAWS(JHAR)-2023-2-37] [REFERRED TO]
RAMSWAROOP VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2022-5-52] [REFERRED TO]
ARVIND KUMAR VISHNOI VS. STATE OF UTTARAKHAND [LAWS(UTN)-2011-11-89] [REFERRED TO]
SURESH GANPAT KAMBLE VS. STATE OF MAHARASHTRA [LAWS(BOM)-2004-3-83] [REFERRED TO]
L V ANANDAN VS. STATE [LAWS(MAD)-2003-4-216] [REFERRED TO]
JAGBIR AND OTHERS VS. STATE OF HARYANA [LAWS(P&H)-2019-4-92] [REFERRED TO]
JUDGEMENT
Banerjee, J. -
(1.)Four decades ago, the Constitution Bench in Mohan Singh (Mohan Singh vs. State of Punjab, (1962) 3 Suppl. SCR 848 has been rather lucid in its expression as regards differentiation between Section 149 and Section 34 of the Indian Penal Code. In Mohan Singh this Court stated :
".........Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where 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. The essential constituents of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah vs. Emperor (1945 LR 72 IA 148), common intention within the meaning of Section 34 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 and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
(2.)Four decades later, however, a Three-Judge Bench of this Court in Suresh (Suresh and another vs. State of U. P., (2001) 3 SCC 673 had the following to state pertaining to Section 34 of the Indian Penal Code.
"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in 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 common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such preconcert or preplanning 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. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. 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.
The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention 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 shared 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. A Division Bench of the Patna High Court in Satrughan Palar vs. Emperor (AIR 1919 Pat 111) held that it is only when a Court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
(3.)What then is the fact situation said to have been proved in the present case It is in this context the factual score thus ought to be noticed at this juncture.
".........Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where 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. The essential constituents of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah vs. Emperor (1945 LR 72 IA 148), common intention within the meaning of Section 34 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 and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
(2.)Four decades later, however, a Three-Judge Bench of this Court in Suresh (Suresh and another vs. State of U. P., (2001) 3 SCC 673 had the following to state pertaining to Section 34 of the Indian Penal Code.
"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in 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 common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such preconcert or preplanning 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. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. 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.
The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention 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 shared 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. A Division Bench of the Patna High Court in Satrughan Palar vs. Emperor (AIR 1919 Pat 111) held that it is only when a Court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
(3.)What then is the fact situation said to have been proved in the present case It is in this context the factual score thus ought to be noticed at this juncture.
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