HEMCHAND JHA versus STATE OF BIHAR

Citation: [2008] 9 S.C.R. 1171 · Decided: 13-06-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

(2008] 9 S.C.R. 1171 
HEMCHAND JHA 
A 
II. 
STATE OF BIHAR 
... 
(Crimir:ial Appeal No. 7 of 2002) 
JUNE 13, 2008 
B 
[DR. ARIJIT PASAYAT AND P.P.NAOLEKAR, JJ.] 
Penal Code, 1860 - s. 34 - Common intention - Appli-
cability of - Requirement for - Held: s. 34 is applicable even 
if no injury has been caused by the particular accused him- c 
self - Some overt act on the part of accused not necessary -
In the instant case, plea of accused that no definite role as-
cribed to him and co-accused fired the gun and killed the de-
ceased, thus, s. 34 not applicable, not tenable- On facts, s.34 
,.. 
clearly applicable - Thus, conviction of accused u/s. 302 rlw D 
s.34 by courts below justified. 
According to the prosecution case, on the fateful day, 
appellant-accused and co-accused along with one other 
came on a motor cycle and stopped next to the jeep of 
KKS. Appellant was driving the motor cycle. They got E 
down from the motor cycle and went towards KKS who 
was capping the petrol tanks. The co-accused went near 
KKS, took out pistol and fired near the ear of KK\, ~he 
accused persons threatened the eye witnesses. Accused 
persons ran away. KKS succumbed to t;iis injuries. FIR 
was lodged. Investigation was carried out.· Appellant was 
F 
convicted and sentenced u/s.302 r/w s.34 IPC. High Court 
upheld the order. Hence the present appeal. 
-I 
Dismissing the appeal, the Court 
HELD: 1.1 Section 34 has been enacted on the prin~ G 
• 
ciple of joint liability in the doing of, a crimin~J. act. The 
Section is only a rule of eviden~~ and doe;t,pot crE!ate a 
substantive offence. Th~ d.istin~tive fen-tuw of the Sec-
. 
ist• 
.r 
. ..i e · 
· 
1171 
H 
11 ~ 
1172 
SUPREME COURT REPORTS 
(2008] 9 S.C.R. 
A tion is the element of participation in action. The liability 
of one person for an offence committed by another in the 
course of criminal act perpetrated by several persons 
arises u/s 34 if such criminal act is done in furtherance of 
a common intention of the persons who join in commit-
s ting the crime. Direct proof of common intention is sel-
dom available and, therefore, such intention can only be 
inferred from the circumstances appearing from the 
proved facts of the case and the proved circumstances. 
In order to bring home the charge of common intention, 
c the prosecution has to establish by evidence, whether 
direct or circumstantial, that there was 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 moment; but it must nec-
D essarily be before the commission of the crime. The true 
contents of the Section is that if two or more persons in-
tentionally do an act jointly, the position in law is just the 
same as if each of them has done it individually by him-
self. [Para 5) [1175-G & H; 1176-A,B & CJ 
E 
1.2 The existence of a common intention amongst 
the participants in a crime is the essential element for 
application of this Section. It is not necessary that the acts 
of the several persons charged with commission of an 
offence jointly must be the same or identically similar. The 
F acts may be different in character, but must have been 
actuated by one and the same common intention in or-
der to attract the provision. [Para 5] [1176-D & E] 
G 
H 
Ashok Kumar v. State of Punjab AIR 1977 SC 1094 -
relied on. 
1.3 The Section does not say "the common inten-
tion of all", nor does 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 of a common inten-
tion animating the accused leading to the doing of a crimi-
•
HEMCHAND JHA v. STATE OF BIHAR 
1173 
[Dr. ARIJIT PASAYAT, J.] 
nal act in furtherance of such intention. As a result of the A 
application of principles enunciated in s. 34, when an ac-
cused is convicted u/s. 302 read with s.34, in law it means 
that the accused is liable for the act which caused death 
of the deceased in the same manner as if it was done by 
him alone. The provision is intended to meet a case in B 
r 
which it may be difficult to distinguish between acts of 
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. Section 34 is applicable even 
if no injury has been caused by the particular accused c 
himself. For applying Section 34 it is not necessary to 
show some overt act on the part of the accuse

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