LexAIZAZ & ORS. versus STATE OF U.P.
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[2008] 12 S.C.R. 13 AIZAZ & ORS. v. STATE OF U.P. (Criminal Appeal No. 193 of 2005) AUGUST 12, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM ~ SHARMA, JJJ Penal Code, 1860: A B s. 302 rlw s. 34 and s. 307 r/w s. 34 - Prosecution under C - Of four accused - Eye-witnesses to the occurrence - Motive established - Conviction of all the accused by trial court - High Court acquitting one accused and confirming convic- tion of others - On appeal, held: Conviction justified - Evi- dence of prosecution witnesses are reliable. D s. 34 - Common intention - Applicability of - Held: Li- ability under the provision is attracted when there is participa- tion in a criminal act in furtherance of common intention - Participation need not be physical - Mere presence at the E scene of occurrence would not attract the provision - Com- mon intention must be proved - Though common intention may develop on the spot, it must be anterior in point of time to the commission of offence showing pre-arranged plan and prior concert - Common intention is distinct from similar in- tention. F Words and Phrases - 'Common intention' and 'Further- ance_' - Meaning of in the context of s. 34 /PC. The three appellants-accused alongwith another co- . accused faced trial for murder and attempt to murder of G one person. The motive for the alleged act was that the deceased and the appellant were on inimical terms as the deceased was doing pairvi in a criminal case against one of the accused. The occurrence was seen by the eye-wit- 13 H 14 SUPREME COURT REPORTS [2008] 12 S.C.R. A nesses. Trial Court convicted all the four accused u/s 302 ~ r/w s. 34 and u/s. 307 r/w s. 34 IPC. High Court acquitted A-4 while upheld the conviction of others. In appeal to this court appellants contended interalia thats. 34 IPC has no application so far A-2, A-3 are is con- B cerned. Dismissing the appeal, the Court HELD: 1. In view of the factual scenario in the back- drop of the principles of law, the appeal is sans merit. The C evidence of PWs. 1, 2 & 3 is clear and cogent. The trial court and the High Court have analysed the evidence in great detail and have come to hold that the same has cre- dence and appear to be truthful. Nothing infirm could be pointed out to warrant rejection of the evidence. There- D fore the trial Court and High Court were justified in plac- ing reliance on the evidence of PWs. 1, 2 & 3. [Paras 5 and 8] [22,D; 19,E-F] 2.1 Leading feature of Section 349 PC is the element E of participation in action. The essence of liability under this Section. is the existence of a common intention ani- mating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons par- ticipating in the criminal action to bring about a particular F result. [Para 6] [20,C-D] :r Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu AIR 1976 SC 2027 - referred to. 2:2 The participation need not in all cases-be by G physical presence. In offences involving physical vio- . lence, normally presence at the scene of offence may be necessary, but such is not the. case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical H presence at the scene of offence of the offender sought -...,..._ AIZAZ & ORS. v. STATE OF U.P. 15 to be rendered liable under this Section is not one of the A conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the pro- visions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held B -""'"' liable had participated in some manner in the act consti- tuting the offence. Unless common intention and partici- pation are both present, this Section cannot apply. [Para 6] [20, D-E] 2.3 'Common intention' implies pre-arranged plan and c acting in concert pursuant to the pre-arranged plan. Un- der this Section a pre-concert in the sense of a distinct pre- vious 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 refer- D ence to the facts of the case and circumstances of the situ- ation. Though common intention may develop on the spot, it must, however, be anteri
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