HARI RAM versus STATE OF U.P.

Citation: [2004] SUPP. 3 S.C.R. 379 · Decided: 09-08-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

HARI RAM 
A 
V. 
STATE OF U.P. 
AUGUST 9, 2004 
B 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
Penal Code, 1860 : 
Section 34-0bject and purpose of-Held: Section 34 is only a rule 
of evidence and does not create a substantive offence-The distinctive C 
feature of the Section is the element of participation in action-Existence 
of common intention is the essential element for application of this 
Section-This Section intended to meet a case in which it may be difficult 
to distinguish the acts of individual members of a party and the part taken 
~~ef~ 
D 
Criminal Trial : 
Witnesses-Relatives of victims-Deposition by-Evidentiary value 
of-Held: Relationship is not a factor to affect the credibility of a witness- E 
A relative of the victim would not conceal an actual culprit and make 
allegations against an innocent person-Over-insistence on witnesses 
having no relation with the victims often results in criminal justice going 
away-Hence, it would be unpragmatic to ignore such natural witnesses 
and insist on outsiders who would not have seen the incident. 
Words & Phrases: 
"Common intention "-Meaning of-In the context of Section 34 of 
the Penal Code, 1860. 
The appellant-accused was tried for an offence under Section 302 
read with Section 34 of the Penal Code, 1860. The trial court; relying 
on the evidence of PWs 1 and 2, who were the eyewitnesses, convicted 
the appellant. The High Court affirmed the conviction. Hence the 
F 
G 
appeal. 
H 
379 
380 
SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R. 
A 
On behalf of the appellant, it was contended that the appellant 
B 
had no role to play in the alleged commission of the offence 
and, therefore, Section 34 IPC could not be applied; and that PWs 1 
and 2 were related to the deceased and were not independent 
witnesses. 
Dismissing the appeal, the Court 
HELD: 1.1. Section 34 of the Penal Code, 1860 has been enacted 
on the principle of joint liability in the doing of a criminal act. The 
C Section is only a rule of evidence and does not 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 a 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 commit-
D ting the crime. Direct proof of common intention is seldom available 
and, therefore, such intentions can only be inferred from the circum-
stances 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 circum-
E stantial, that there was a plan or meeting of mind 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. 1 he true 
contents of the Section are that if two or more persons intentionally 
F do an act jointly, the position in law is just the same as if each of them 
has done it individually by himself. (384-G-H; 385-A-C] 
I.2. The existence of a common intention amongst the participants 
in a crime is the essential element for application of Section 34. It is 
not necessary that the acts of the several persons charged with the 
G 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. (385-C-D] 
H 
Ashok Kumar v. State of Punjab. AIR (1977) SC 109, relied on. 
, 
HARi RAM v. STATE 
381 
2. Section 34 does not say "the common intention of all" nor does A 
it say "and intention common to all". Under the provisions of Section 
34 the essence of the liability is to be found in the existence ofa common 
intention animating the. accused leading to the doing of a criminal act 
in furtherance of such intention. The provision is intended to meet a 
case in which it may be difficult to distinguish between acts of B 
individual members of a party who act in furtherance of the common 
intention of all or to prove exactly what part was taken by each of 
them. [385-G; 386-A] 
Ch. Pu/la Reddy v. State of A.P., AIR (1993) SC 1899 a_nd Anil C 
Sharma v. State of Jharkhand, [2004] 5 SCC 679, relied on. 
Mahbub Shah v. Emperor, 

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