JASDEEP SINGH @ JASSUversusSTATE OF PUNJAB

                        [2022] 2 S.C.R. 647                             647


                   JASDEEP SINGH @ JASSU                                A
                                 v.
                       STATE OF PUNJAB
                (Criminal Appeal No. 1584 of 2021)
                                                                        B
                        JANUARY 07, 2022
   [SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
       Penal Code, 1860 – s. 304 part I and s.34 – Allegation that
victim-deceased was shot dead by the accused persons (A1 to A4)
during the night time – A3 and A4 (appellants) were present at the      C
scene of occurrence and made a statement saying “what are you
seeing now”, thereafter, A1 took out a gun from his pocket and shot
the deceased – In complaint, father of the deceased (Complainant/
PW6) did not make any statement that A3 and A4 exhorted A1 to
shoot – However, in his additional statement u/s. 161 Cr.P.C. he        D
improved his statement stating that A3 and A4 instigated A1 to fire –
Trial Court convicted all the accused persons u/s 304 part I of IPC
by holding that the there was no premeditation and the occurrence
took place in pursuance to sudden fight – The High Court concurred
with the view of the trial Court – Before the Supreme Court, A1 and
                                                                        E
A2 did not filed their appeals – Only, A3 and A4 filed appeals –
Held: Though the evidence of PW6 was not rejected, both Courts
found exaggeration on his part – On many occasions PW6 made a
concerted effort to improve the case of prosecution – As far as
statement made by A3 and A4 is concerned, if A3 and A4 had made
such a statement, they should have addressed A2 instead of A1           F
because A2 was already having a gun and A1 was stated to have
taken his gun out only on the statement made by A3 and A4 – There
is no evidence at all on record to hold that A3 and A4 were aware of
the fact that A1 was having a gun with him – Common intention can
be formed at the time of the occurrence, however, the evidence          G
available is not sufficient enough to hold that s.34 IPC is attracted
as against A3 and A4 – Prosecution has not proved its case beyond
reasonable doubt as against A3 and A4 taking umbrage u/s.34 IPC
– Therefore, judgment of the High Court confirming judgment of
the trial Court set aside.
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                                647
648            SUPREME COURT REPORTS                         [2022] 2 S.C.R.


A            Penal Code, 1860 – s. 34 – Intendment of – The intendment
      of Section 34 IPC is to remove the difficulties in distinguishing the
      acts of individual members of a party, acting in furtherance of a
      common intention – There has to be a simultaneous conscious mind
      of the persons participating in the criminal action of bringing about
      a particular result - A common intention qua its existence is a question
B
      of fact and also requires an act “in furtherance of the said intention”
      – One need not search for a concrete evidence, as it is for the court
      to come to a conclusion on a cumulative assessment – It is only a
      rule of evidence and thus does not create any substantive offense.
            Disposing of the appeals, the Court
C
            HELD: 1.1 Section 34 IPC creates a deeming fiction by
      infusing and importing a criminal act constituting an offence
      committed by one, into others, in pursuance to a common
      intention. Onus is on the prosecution to prove the common
      intention to the satisfaction of the court. The quality of evidence
D     will have to be substantial, concrete, definite and clear. When a
      part of evidence produced by the prosecution to bring the accused
      within the fold of Section 34 IPC is disbelieved, the remaining
      part will have to be examined with adequate care and caution, as
      the Court is dealing with a case of vicarious liability fastened on
E     the accused by treating him at par with the one who actually
      committed the offence. What is required is the proof of common
      intention. Thus, there may be an offence without common
      intention, in which case Section 34 IPC does not get attracted.
      [Paras 21 & 22][658-C-F]

F           1.2. The intendment of Section 34 IPC is to remove the
      difficulties in distinguishing the acts of individual members of a
      party, acting in furtherance of a common intention. There has to
      be a simultaneous conscious mind of the persons participating
      in the criminal action of bringing about a particular result. A
      common intention qua its existence is a question of fact and
G     also requires an act “in furtherance of the said intention”. One
      need not search for a concrete evidence, as it is for the court to
      come to a conclusion on a cumulative assessment. It is only a rule
      of evidence and thus does not create any substantive offense.
      Normally, in an offense committed physically, the presence of an
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         JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                        649


accused charged under Section 34 IPC is required, especially in          A
a case where the act attributed to the accused is one of instigation/
exhortation. However, there are exceptions, in particular, when
an offense consists of diverse acts done at different times and
places. Therefore, it has to be seen on a case to case basis. The
word “furtherance” indicates the existence of aid or assistance in
                                                                         B
producing an effect in future. Thus, it has to be construed as an
advancement or promotion. There may be cases where all acts, in
general, would not come under the purview of Section 34 IPC, but
only those done in furtherance of the common intention having
adequate connectivity. When the Court speaks of intention it has
to be one of criminality with adequacy of knowledge of any existing      C
fact necessary for the proposed offense. Such an intention is meant
to assist, encourage, promote and facilitate the commission of a
crime with the requisite knowledge as aforesaid. The existence of
common intention is obviously the duty of the prosecution to prove.
However, a court has to analyse and assess the evidence before
                                                                         D
implicating a person under Section 34 IPC. A mere common
intention per se may not attract Section 34 IPC, sans an action in
furtherance. There may also be cases where a person despite being
an active participant in forming a common intention to commit a
crime, may actually withdraw from it later. Of course, this is also
one of the facts for the consideration of the court. Further, the fact   E
that all accused charged with an offence read with Section 34 IPC
are present at the commission of the crime, without dissuading
themselves or others might well be a relevant circumstance,
provided a prior common intention is duly proved. Once again,
this is an aspect which is required to be looked into by the court
                                                                         F
on the evidence placed before it. It may not be required on the
part of the defence to specifically raise such a plea in a case where
adequate evidence is available before the court. [Paras 24-28][658-
H; 659-A-H]
      2. The evidence of PW13 did not find favour with the courts.
The trial court which had the advantage of noting the deposition         G
of the witnesses, chose to disbelieve the evidence adduced, by
giving cogent reasons. This evidence was rightly eschewed by
the trial court and also by the High Court. There are too many
improbabilities in the testimony of PW13. A person who was living
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650            SUPREME COURT REPORTS                       [2022] 2 S.C.R.


A     50 kms away remembered the accused and their names and
      overheard their plot to commit the murder. His evidence was
      belied by the evidence of DW1 who was none other than his own
      cousin with whom he was said to be residing at the relevant point
      of time. The other material witnesses are PW6 and PW10. PW10
      had given prior statements. Though he turned hostile despite being
B
      a friend of the deceased, the trial court did take into consideration
      his earlier statement, while coming to the conclusion that there
      was no premeditation and thus the case would fall under culpable
      homicide not murder. Though the evidence of PW6 was not
      rejected, both the courts did find a clear exaggeration on his part.
C     On many occasions PW6 made a concerted effort to improve the
      case of prosecution. The testimony given by him on the dying
      declaration, a case inserted by him in his supplementary statement,
      made subsequently, was also rightly rejected by the courts. This
      was also supported by the medical evidence. The other part of the
      evidence with respect to the fight was also dealt with by the courts
D
      as evidence available would suggest that it is the deceased who
      went nearer, and the accused were not stationing themselves
      waiting for his arrival. Therefore, the aforesaid findings of both the
      courts in coming to the conclusion that it is not a case which would
      attract punishment under Section 301 Part I IPC does not suffer
E     from any perversity. In view of the above Crl. A. No.1586 of 2021
      stands dismissed. At this stage the Court also hasten to add that
      the overt act of A2 being different and in the absence of any appeal
      filed by him, the Court does not wish to make any remark for the
      purpose of acquitting him. [Paras 32 & 33][670-E-H; 671-A-C]
F           3. The only other issue for consideration is the application
      of Section 34 IPC to the case of the Appellants. The occurrence
      was admittedly during the nighttime. It happened on the street.
      If A3 and A4 had made such a statement in the same voice, they
      should have addressed A2 instead of A1. A2 was already having a
      gun and A1 was stated to have taken his gun out only on the
G     statement made by A3 and A4. The reasoning of the trial court in
      disbelieving the evidence of PW6 as he improved on his case
      subsequently, ought to be applied for the statement made that
      A3 and A4 had asked A1 to fire. Admittedly, this was an

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         JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                    651


improvement to the earlier statement made as could be seen           A
from the evidence of PW6 on more than one occasion. Thus, in
our considered view both the courts ought to have disbelieved
the evidence of PW6 insofar as Section 34 IPC is concerned. There
is no evidence at all on record to hold that A3 and A4 were aware
of the fact that A1 was having a gun with him. The prosecution
                                                                     B
wanted to implicate A3 and A4 mainly on the evidence of PW13.
Once the said evidence was not accepted, more care ought to have
been taken before convicting A3 and A4 under Section 34 IPC.
The Court has no difficulty in holding that a common intention can
be formed at the time of the occurrence. However, the evidence
available is not sufficient enough to hold that Section 34 IPC is    C
attracted as against A3 and A4, especially when the testimony of
PW13 did not find favour with the courts. It is to be noted that
except the statement said to have been made by A3 and A4, there
was no other material to implicate them. Now, the statement made
by A3 and A4 is as follows: “what are you seeing now”. The
                                                                     D
question is as to whether the said statement would constitute an
offense punishable under Section 304 Part I IPC. This Court has
already noted the fact that had A2 fired at the deceased in
pursuance to the statement made by A3 and A4 the situation would
have been different. It is possible that the said statement has
been made only to attack otherwise the deceased. Suffice it is to    E
hold that the prosecution has not proved its case beyond
reasonable doubt as against A3 and A4 by reflecting the offence
committed by A1, taking umbrage under Section 34 IPC. [Paras
34 & 35][671-D-H; 672-A-C]
     Suresh v State of U.P. (2001) 3 SCC 673 : [2001] 2              F
     SCR 263; Lallan Rai v. State of Bihar (2003) 1 SCC
     268 : [2002] 4 Suppl. SCR 188; Chhota Ahirwar v.
     State of M.P. (2020) 4 SCC 126; Rambilas Singh &
     Ors. v. State of Bihar (1989) 3 SCC 605; Krishnan &
     Another v. State of Kerala (1996) 10 SCC 508 : [1996]
     5 Suppl. SCR 405; Surendra Chauhan v. State of M.P.             G
     (2000) 4 SCC110 : [2000] 2 SCR 515; Gopi Nath @
     Jhallar v. State of U.P. (2001) 6 SCC 620 : [2001] 1
     Suppl. SCR 72; Ramesh Singh @ Photti v. State of A.P.
     (2004) 11 SCC 305; Nand Kishore v. State Of Madhya
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652            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A           Pradesh (2011) 12 SCC 120 : [2011] 7 SCR 1152;
            Shyamal Ghosh v. State of West Bengal (2012) 7 SCC
            646 : [2012] 10SCR 95; Virendra Singh v. State of
            Madhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR
            772 – relied on.
B           Barendra Kumar Ghosh v. King Emperor AIR 1925 PC
            1; Shah v. Emperor AIR 1945 PC 148 – referred to.
                             Case Law Reference
      [2001] 2 SCR 263                relied on               Para 29

C     [2002] 4 Suppl. SCR 188         relied on               Para 29
      (2020) 4 SCC 126                relied on               Para 29
      (1989) 3 SCC 605                relied on               Para 29
      [1996] 5 Suppl. SCR 405         relied on               Para 29
D     [2000] 2 SCR 515                relied on               Para 29
      [2001] 1 Suppl. SCR 72          relied on               Para 29
      (204) 11 SCC 305                relied on               Para 29
      [2011] 7 SCR 1152               relied on               Para 29
E     [2012] 10 SCR 95                relied on               Para 29
      [2010] 9 SCR 772                relied on               Para 30
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1584 of 2021.
F           From the Judgment and Order dated 16.10.2019 of the High Court
      of Punjab and Haryana at Chandigarh in CRA-D-1325-DB-2015.
            With
            Criminal Appeal Nos. 1585 and 1586 of 2021.

G            Shekhar Naphade, Siddharth Luthra, Vikram Chaudhri, Sr. Advs.,
      Rajat Bali, Shivram, Gaurav Agrawal, Ms. Aishwarya Dash, Ms. Supriya
      Juneja, Ms. Shubhangi Jain, Ms. Sonali Sharma, Pankaj Singhal, Yash
      Giri, Nikhil Jain, Rishi Sehgal, Keshavam Chaudhari, Ms. Ria Khanna,
      Ms. Jaspreet Gogia, Karanvir Gogia, Ms. Shivangi Singhal, Ms. Vamika
      Gupta, Advs. for the appearing parties.
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          JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                           653


      The Judgment of the Court was delivered by                             A
      M. M. SUNDRESH, J.
      1. Heard learned counsel appearing for the parties.
      2. Crl. A. No.1584 of 2021 and Crl. A. No.1585 of 2021 are filed
by convicted Appellants/Accused 3 and 4 respectively against conviction      B
under Section 304 Part I of the Indian Penal Code (IPC) with life
sentence, while Crl. A. No.1586 of 2021 is filed by the de facto
complainant seeking modification of the conviction to the sentence
punishable under Section 302 IPC. Thus, we shall deal with all the appeals
by our common order, particularly, when they emanate and emerge from
a common impugned order.                                                     C

      BRIEF FACTS
        3. Four accused persons were charged, convicted, and sentenced
in the following manner:
                                                                             D




                                                                             E




                                                                             F




                                                                             G




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654            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A           4. The occurrence took place at about 12:45 a.m. on 21.04.2011
      in the area of Baba Rasoi Dhaba, Jalandhar. The motive for the
      occurrence was that the deceased felt that a raid conducted in the hotel
      belonging to him and his father (PW6), the Appellant in Crl. A. No.1586
      of 2021, was done at the instance of the accused. All the accused are
      friends of each other.
B
             5. PW6 went in search of the deceased on finding that he had not
      returned home, though he was in a habit of coming late. On a particular
      street, he saw the accused grappling with the deceased. It was seen by
      him in the street light. The occurrence was also witnessed by PW10
      who incidentally was a friend of the deceased. PW13 spoke about the
C     common intention on the part of the accused on the previous night to do
      away with the deceased.
             6. In pursuance to the statement made by A3 and A4, saying
      “what are you seeing now”, A1 took out a gun from his pocket and shot
      the deceased. A2 took his gun and brandished it against the deceased,
D     prior to the aforesaid statement made by A3 and A4, followed by the
      shooting by A1. A3 and A4 made the statement pointing to A1, though
      A2 was already having the gun out. It is only thereafter that A1 took out
      his gun and shot the deceased.
              7. The deceased was taken to the hospital situated about 3 kms
E     from the place of occurrence, notwithstanding the other hospitals nearby.
      PW23 helped PW6 and PW10 to carry the deceased into the car of
      PW6. Thereafter PW6 gave the complaint under Exhibit PL. In the
      complaint, he did not make any statement that A3 and A4 exhorted A1
      to shoot, except the statement as referred earlier. However, in his
F     additional statement given under Section 161 CrPC, he improved his
      version by stating that A3 and A4 instigated A1 to fire. We may note, A6
      is a legally qualified person.
           8. PW24 took up the investigation and completed the formalities.
      Recoveries have been made, including of the weapons.
G           9. Before the trial court, the prosecution examined 27 witnesses
      and marked documents in support of its case. On behalf of the defense,
      16 witnesses have been examined along with the documents.
            10. Before the trial court, PW10 and PW23 turned hostile. Upon
      hearing the counsel appearing for the parties a conviction has been
H     rendered against all the accused for the offences punishable under Section
          JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                            655
                     [M. M. SUNDRESH, J.]

304 Part I IPC along with life sentence. The trial court reasoned that it     A
is not as if the accused were waiting for the deceased. The deceased
went nearer to the accused, as could be seen from the evidence of
PW10 under Exhibit PF/1 and PQ. There was only one single shot.
Though the deceased fell down the accused did not shoot him thereafter.
There was indeed a quarrel preceding the occurrence. The evidence of
                                                                              B
PW13 was disbelieved with respect to prior concert. It was noted that
he was a resident of a place 50 kms away from Jalandhar. The evidence
adduced by his cousin (DW1) showed that he was not present at his
house at Jalandhar and there was no reason for going to Jalandhar on
20.04.2011. The prosecution did not prove that that day was his birthday
and there were other places available nearer to his residence. There          C
was absolutely no material to hold that he knew the accused at any prior
point of time. It would be improbable that the accused would make a
plan to commit a murder in public, by addressing themselves by names
while flaunting their weapons. Further, he did not make any complaint.
The statement that he visited days thereafter to seek tires for his jeep
                                                                              D
was not believed as such tires could be obtained otherwise in a nearer
place.
      11. Accordingly, holding that there was no premeditation, and the
occurrence took place in pursuance to a sudden fight, in a heat of passion,
the case was brought under Exception 4 to Section 300 IPC.
                                                                              E
      12. Appeals were filed by all the parties. The High Court concurred
with the views of the trial court. However, it did not specifically deal
with the scope of Section 34 IPC as against A3 and A4 which was
accordingly done by the trial court. We may also note that the trial court
did an in-depth, exhaustive assessment, by considering almost all the
material placed before it, including the statements made by the witnesses.    F

      13. A3 and A4 are before us by filing their respective appeals
seeking to overturn the judgment rendered by the High Court confirming
the one by the trial court. Thus, A1 and A2 have not filed their appeals.
We have been informed at the Bar, by the learned Senior Counsel
appearing for the de facto complainant/Appellant in Crl. A. No.1586 of        G
2021 that A1 has since been let out on pre-mature release by the State.
We do not wish to state anything on the role of A1 and A2 except to the
extent of testing the decision of the High Court and the trial court as to
whether the case would fall under Section 304 Part I or Section 302
IPC.                                                                          H
656            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A           Arguments on behalf of the Appellants
            14. Since appeals have been filed both by the convicted Appellants
      and the de facto complainant, we would like to note the arguments of A3
      and A4 first and thus the other appeal filed by de facto complainant
      would be taken along with the arguments of the State.
B            15. It is submitted by the learned counsel that the evidence of
      PW13 having been disbelieved, the courts have committed an error in
      applying Section 34 IPC. There is an improvement with respect to the
      statement made by PW6. A mere statement per se would not be sufficient
      to attract Section 34 IPC. It is strange that both of them made the same
C     statement. The presence of PW6 is very doubtful. He had deposed that
      the deceased used to come late and there was no complaint whatsoever.
      If A2 brandished the gun before the deceased was shot by A1, it is only
      logical that A3 and A4 would have asked A2 to shoot first. Even the
      other eyewitness in PW10 has turned hostile and so also another material
      witness in PW23. Under those circumstances it is a fit case where the
D     conviction rendered against A3 and A4 are to be set aside.
            Submission of the Respondents
              16. The learned Senior Counsel appearing for the de facto
      complainant submitted that the accused are influential persons. The case
E     would come under offense punishable under Section 302 IPC. The trial
      court has committed an error as confirmed by the High Court in bringing
      it under Section 299 IPC and therefore wrongly applied Section 304
      Part I IPC. It is not necessary that an accused will have to do a physical
      act in order to attract Section 34 IPC. Thus, a mere presence of the
      accused would suffice. Hence, the appeal filed by the de facto
F     complainant be allowed while dismissing the appeal filed by the Accused-
      Appellants.
             17. The counsel appearing for the State submitted that cogent
      reasoning was given by the High Court. The trial court considered the
      entire material available on record. Recoveries made have been proved.
G     Under those circumstances there is no need to interfere with the
      conviction and sentence.
            Section 34 IPC
            18. We shall first go back into the history to understand Section
      34 IPC as it stood at the inception and as it exists now.
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         JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                              657
                    [M. M. SUNDRESH, J.]

                                                                               A




                                                                               B
       19. On a comparison, one could decipher that the phrase “in
furtherance of the common intention” was added into the statute book
subsequently. It was first coined by Chief Justice Barnes Peacock
presiding over a Bench of the Calcutta High Court, while delivering its
decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which
would have probably inspired and hastened the amendment to Section             C
34 IPC, made in 1870. The following passage may lend credence to the
aforesaid possible view:
      “It does not follow that, because they were present with the intention
      of taking him away, that they assisted by their presence in the
      beating of him to such an extent as to cause death. If the object        D
      and design of those who seized Amordi was merely to take him to
      the thannah on a charge of theft, and it was no part of the common
      design to beat him, they would not all be liable for the consequence
      of the beating merely because they were present. It is laid down
      that, when several persons are in company together engaged in            E
      one common purpose, lawful or unlawful, and one of them, without
      the knowledge or consent of the others, commits an offence, the
      others will not be involved in the guilt, unless the act done was in
      some manner in furtherance of the common intention. It is also
      said, although a man is present when a felony is committed, if he
      take no part in it, and do not act in concert with those who commit      F
      it, he will not be a principal merely because he did not endeavour
      to prevent it or to apprehend the felon. But if several persons go
      out together for the purpose of apprehending a man and taking
      him to the thannah on a charge of theft, and some of the party in
      the presence of the others beat and ill-treat the man in a cruel and     G
      violent manner, and the others stand by and look on without
      endeavouring to dissuade them from their cruel and violent conduct,
      it appears to me that those who have to deal with the facts might
      very properly infer that they were all assenting parties and acting
      in concert, and that the beating was in furtherance of a common
      design. I do not know what the evidence was, all that I wish to          H
658             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A           point out is, that all who are present do not necessarily assist by
            their presence every act that is done in their presence, nor are
            consequently liable to be punished as principals.”
             20. Before we deal further with Section 34 IPC, a peep at Section
      33 IPC may give a better understanding. Section 33 IPC brings into its
B     fold a series of acts as that of a single one. Therefore, in order to attract
      Section 34 to 39 IPC, a series of acts done by several persons would be
      related to a single act which constitutes a criminal offense. A similar
      meaning is also given to the word ‘omission’, meaning thereby, a series
      of omissions would also mean a single omission. This provision would
      thus make it clear that an act would mean and include other acts along
C     with it.
             21. Section 34 IPC creates a deeming fiction by infusing and
      importing a criminal act constituting an offence committed by one, into
      others, in pursuance to a common intention. Onus is on the prosecution
      to prove the common intention to the satisfaction of the court. The quality
D     of evidence will have to be substantial, concrete, definite and clear. When
      a part of evidence produced by the prosecution to bring the accused
      within the fold of Section 34 IPC is disbelieved, the remaining part will
      have to be examined with adequate care and caution, as we are dealing
      with a case of vicarious liability fastened on the accused by treating him
E     at par with the one who actually committed the offence.
           22. What is required is the proof of common intention. Thus, there
      may be an offence without common intention, in which case Section 34
      IPC does not get attracted.
             23. It is a team effort akin to a game of football involving several
F     positions manned by many, such as defender, mid-fielder, striker, and a
      keeper. A striker may hit the target, while a keeper may stop an attack.
      The consequence of the match, either a win or a loss, is borne by all the
      players, though they may have their distinct roles. A goal scored or saved
      may be the final act, but the result is what matters. As against the specific
G     individuals who had impacted more, the result is shared between the
      players. The same logic is the foundation of Section 34 IPC which creates
      shared liability on those who shared the common intention to commit the
      crime.
             24. The intendment of Section 34 IPC is to remove the difficulties
      in distinguishing the acts of individual members of a party, acting in
H
          JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                             659
                     [M. M. SUNDRESH, J.]

furtherance of a common intention. There has to be a simultaneous              A
conscious mind of the persons participating in the criminal action of
bringing about a particular result. A common intention qua its existence
is a question of fact and also requires an act “in furtherance of the said
intention”. One need not search for a concrete evidence, as it is for the
court to come to a conclusion on a cumulative assessment. It is only a
                                                                               B
rule of evidence and thus does not create any substantive offense.
      25. Normally, in an offense committed physically, the presence of
an accused charged under Section 34 IPC is required, especially in a
case where the act attributed to the accused is one of instigation/
exhortation. However, there are exceptions, in particular, when an offense
consists of diverse acts done at different times and places. Therefore, it     C
has to be seen on a case to case basis.
       26. The word “furtherance” indicates the existence of aid or
assistance in producing an effect in future. Thus, it has to be construed
as an advancement or promotion.
                                                                               D
       27. There may be cases where all acts, in general, would not
come under the purview of Section 34 IPC, but only those done in
furtherance of the common intention having adequate connectivity. When
we speak of intention it has to be one of criminality with adequacy of
knowledge of any existing fact necessary for the proposed offense. Such
an intention is meant to assist, encourage, promote and facilitate the         E
commission of a crime with the requisite knowledge as aforesaid.
       28. The existence of common intention is obviously the duty of
the prosecution to prove. However, a court has to analyse and assess
the evidence before implicating a person under Section 34 IPC. A mere
common intention per se may not attract Section 34 IPC, sans an action         F
in furtherance. There may also be cases where a person despite being
an active participant in forming a common intention to commit a crime,
may actually withdraw from it later. Of course, this is also one of the
facts for the consideration of the court. Further, the fact that all accused
charged with an offence read with Section 34 IPC are present at the            G
commission of the crime, without dissuading themselves or others might
well be a relevant circumstance, provided a prior common intention is
duly proved. Once again, this is an aspect which is required to be looked
into by the court on the evidence placed before it. It may not be required
on the part of the defence to specifically raise such a plea in a case
where adequate evidence is available before the court.                         H
660            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A           29. The essence and scope of Section 34 IPC can be borne out of
      excerpts from the following judgements:
            Suresh v State of U.P. ((2001) 3 SCC 673):
               “24. Looking at the first postulate pointed out above, the accused
               who is to be fastened with liability on the strength of Section
B              34 IPC should have done some act which has nexus with the
               offence. Such an act need not be very substantial, it is enough
               that the act is only for guarding the scene for facilitating the
               crime. The act need not necessarily be overt, even if it is only
               a covert act it is enough, provided such a covert act is proved
C              to have been done by the co-accused in furtherance of the
               common intention. Even an omission can, in certain
               circumstances, amount to an act. This is the purport of Section
               32 IPC. So, the act mentioned in Section 34 IPC need not be
               an overt act, even an illegal omission to do a certain act in a
               certain situation can amount to an act, e.g. a co-accused,
D
               standing near the victim face to face saw an armed assailant
               nearing the victim from behind with a weapon to inflict a blow.
               The co-accused, who could have alerted the victim to move
               away to escape from the onslaught deliberately refrained from
               doing so with the idea that the blow should fall on the victim.
E              Such omission can also be termed as an act in a given situation.
               Hence an act, whether overt or covert, is indispensable to be
               done by a co-accused to be fastened with the liability under
               the section. But if no such act is done by a person, even if he
               has common intention with the others for the accomplishment
               of the crime, Section 34 IPC cannot be invoked for convicting
F
               that person. In other words, the accused who only keeps the
               common intention in his mind, but does not do any act at the
               scene, cannot be convicted with the aid of Section 34 IPC.
               xxx                     xxx                                 xxx
G              40. 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
H
   JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                               661
              [M. M. SUNDRESH, J.]

   act. What is required under law is that the accused persons            A
   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
                                                                          B
   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 Patar v. Emperor, AIR
   1919 Pat 111 held that it is only when a court with some certainty     C
   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.”
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:                         D
   “22. The above discussion in fine thus culminates to the effect
   that the requirement of statute is sharing the common intention
   upon being present at the place of occurrence. Mere distancing
   himself from the scene cannot absolve the accused — though
   the same however depends upon the fact situation of the matter         E
   under consideration and no rule steadfast can be laid down
   therefor.”
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
   “24. Section 34 is only attracted when a specific criminal act is
   done by several persons in furtherance of the common intention         F
   of all, in which case all the offenders are liable for that criminal
   act in the same manner as the principal offender as if the act
   were done by all the offenders. This section does not whittle
   down the liability of the principal offender committing the
   principal act but additionally makes all other offenders liable.       G
   The essence of liability under Section 34 is simultaneous
   consensus of the minds of persons participating in the criminal
   act to bring about a particular result, which consensus can
   even be developed at the spot as held in Lallan Rai v. State of
   Bihar, (2003) 1 SCC 268. There must be a common intention
                                                                          H
662     SUPREME COURT REPORTS                             [2022] 2 S.C.R.


A       to commit the particular offence. To constitute common
        intention, it is absolutely necessary that the intention of each
        one of the accused should be known to the rest of the accused.”
      Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
        “...... the words of S. 34 are not to be eviscerated by reading
B       them in this exceedingly limited sense. By S. 33 a criminal act
        in S. 34 includes a series of acts and, further, “act” includes
        omissions to act, for example, an omission to interfere in order
        to prevent a murder being done before one’s very eyes. By S.
        37, when any offence is committed by means of several acts
C       whoever intentionally co-operates in the commission of that
        offence by doing any one of those acts, either singly or jointly
        with any other person, commits that offence. Even if the
        appellant did nothing as he stood outside the door, it is to be
        remembered that in crimes as in other things “they also serve
        who only stand and wait”. By S. 38, when several persons are
D
        engaged or concerned in the commission of a criminal act,
        they may be guilty of different offences by means of that act.
        Read together, these sections are reasonably plain. S. 34 deals
        with the doing of separate acts, similar or diverse, by several
        persons; if all are done in furtherance of a common intention,
E       each person is liable for the result of them all, as if he had done
        them himself, for “that act” and “the act” in the latter part of
        the section must include the whole action covered by ‘a criminal
        act’ in the first part, because they refer to it. S. 37 provides
        that, when several acts are done so as to result together in the
        commission of an offence, the doing of any one of them, with
F
        an intention to co-operate in the offence (which may not be
        the same as an intention common to all), makes the actor liable
        to be punished for the commission of the offence. S. 38 provides
        for different punishments for different offences as an alternative
        to one punishment for one offence, whether the persons
G       engaged or concerned in the commission of a criminal act are
        set in motion by the one intention or by the other.”
      Mehbub Shah v. Emperor (AIR 1945 PC 148):
        “....Section 34 lays down a principle of joint liability in the doing
        of a criminal act. The section does not say “the common
H
   JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                               663
              [M. M. SUNDRESH, J.]

   intentions of all” nor does it say “an intention common to all.”       A
   Under the section, the essence of that liability is to be found in
   the existence of a common intention animating the accused
   leading to the doing of a criminal act in furtherance of such
   intention. To invoke the aid of S. 34 successfully, it must be
   shown that the criminal act complained against was done by
                                                                          B
   one of the accused persons in the furtherance of the common
   intention of all; if this is shown, then liability for the crime may
   be imposed on any one of the persons in the same manner as
   if the act were done by him alone. This being the principle, it is
   clear to their Lordships that common intention within the
   meaning of the section implies a pre-arranged plan, and to             C
   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…”
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
                                                                          D
   “7…It is true that in order to convict persons vicariously under
   section 34 or section 149 IPC, it is not necessary to prove that
   each and every one of them had indulged in overt acts. Even
   so, there must be material to show that the overt act or acts of
   one or more of the accused was or were done in furtherance
   of the common intention of all the accused or in prosecution of        E
   the common object of the members of the unlawful
   assembly…”
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
   “15. Question is whether it is obligatory on the part of the
   prosecution to establish commission of overt act to press into         F
   service section 34 of the Penal Code. It is no doubt true that
   court likes to know about overt act to decide whether the
   concerned person had shared the common intention in question.
   Question is whether overt act has always to be established? I
   am of the view that establishment of an overt act is not a             G
   requirement of law to allow section 34 to operate inasmuch
   this section gets attracted when “a criminal act is done by
   several persons in furtherance of common intention of all”.
   What has to be, therefore, established by the prosecution is
   that all the concerned persons had shared the common intention.
                                                                          H
664     SUPREME COURT REPORTS                             [2022] 2 S.C.R.


A        Court’s mind regarding the sharing of common intention gets
         satisfied when overt act is established qua each of the accused.
         But then, there may be a case where the proved facts would
         themselves speak of sharing of common intention: res ipsa
         loquitur.”
B     Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
         “11. 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….”
C     Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
         “8. …As for the challenge made to the conviction under Section
         302 read with Section 23 IPC, it is necessary to advert to the
         salient principles to be kept into consideration and often
         reiterated by this Court, in the matter of invoking the aid of
D        Section 34 IPC, before dealing with the factual aspect of the
         claim made on behalf of the appellant. Section 34 IPC has
         been held to lay down the rule of joint responsibility for criminal
         acts performed by plurality or persons who joined together in
         doing the criminal act, provided that such commission is in
E        furtherance of the common intention of all of them. Even the
         doing of separate, similar or diverse acts by several persons,
         so long as they are done in furtherance of a common intention,
         render each of such persons liable for the result of them all, as
         if he had done them himself, for the whole of the criminal
         action – be it that it was not overt or was only covert act or
F        merely an omission constituting an illegal omission. The section,
         therefore, has been held to be attracted even where the acts
         committed by the different confederates are different when it
         is established in one way or the other that all of them participated
         and engaged themselves in furtherance of the common intention
G        which might be of a pre-concerted or pre-arranged plan or
         one manifested or developed at the spur of the moment in the
         course of the commission of the offence. The common intention
         or the intention of the individual concerned in furtherance of
         the common intention could be proved either from direct
         evidence or by inference from the acts or attending
H
   JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                                665
              [M. M. SUNDRESH, J.]

   circumstances of the case and conduct of the parties. The               A
   ultimate decision, at any rate, would invariably depend upon
   the inferences deducible from the circumstances of each case.”
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
   “12. …As a general principle in a case of criminal liability it is
   the primary responsibility of the person who actually commits           B
   the offence and only that person who has committed the crime
   can be held guilty. By introducing Section 34 in the Penal Code
   the legislature laid down the principle of joint liability in doing a
   criminal act. The essence of that liability is to be found in the
   existence of a common intention connecting the accused                  C
   leading to the doing of a criminal act in furtherance of such
   intention. Thus, if the act is the result of a common intention,
   then every person who did the criminal act with that common
   intention would be responsible for the offence committed
   irrespective of the share which he had in its perpetration..........”
                                                                           D
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:
   “20. A bare reading of this section shows that the section could
   be dissected as follows:
   (a) Criminal act is done by several persons;
                                                                           E
   (b) Such act is done in furtherance of the common intention of
   all;
   and
   (c) Each of such persons is liable for that act in the same
   manner as if it were done by him alone.                                 F
   In other words, these three ingredients would guide the court
   in determining whether an accused is liable to be convicted
   with the aid of Section 34. While first two are the acts which
   are attributable and have to be proved as actions of the accused,
   the third is the consequence. Once the criminal act and common          G
   intention are proved, then by fiction of law, criminal liability of
   having done that act by each person individually would arise.
   The criminal act, according to Section 34 IPC must be done by
   several persons. The emphasis in this part of the section is on
   the word “done”. It only flows from this that before a person
                                                                           H
666   SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     can be convicted by following the provisions of Section 34,
      that person must have done something along with other persons.
      Some individual participation in the commission of the criminal
      act would be the requirement. Every individual member of the
      entire group charged with the aid of Section 34 must, therefore,
      be a participant in the joint act which is the result of their
B
      combined activity.
      21. Under Section 34, every individual offender is associated
      with the criminal act which constitutes the offence both
      physically as well as mentally i.e. he is a participant not only in
      what has been described as a common act but also what is
C
      termed as the common intention and, therefore, in both these
      respects his individual role is put into serious jeopardy although
      this individual role might be a part of a common scheme in
      which others have also joined him and played a role that is
      similar or different. But referring to the common intention, it
D     needs to be clarified that the courts must keep in mind the fine
      distinction between “common intention” on the one hand and
      “mens rea” as understood in criminal jurisprudence on the other.
      Common intention is not alike or identical to mens rea. The
      latter may be coincidental with or collateral to the former but
      they are distinct and different.
E
      22. Section 34 also deals with 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 was
      done by him alone. If the common intention leads to the
F
      commission of the criminal offence charged, each one of the
      persons sharing the common intention is constructively liable
      for the criminal act done by one of them. (Refer to Brathi v.
      State of Punjab 1991 (1) SCC 519).
      23. Another aspect which the court has to keep in mind while
G
      dealing with such cases is that the common intention or state
      of mind and the physical act, both may be arrived at the spot
      and essentially may not be the result of any predetermined
      plan to commit such an offence. This will always depend on
      the facts and circumstances of the case…”
H
          JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                            667
                     [M. M. SUNDRESH, J.]

      Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:              A
         “87. Upon analysis of the above judgments and in particular
         the judgment of this Court in the case of Dharnidhar v. State
         of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section
         34 IPC applies where two or more accused are present and
         two factors must be established i.e. common intention and            B
         participation of the accused in the crime. Section 34 IPC,
         moreover, involves vicarious liability and therefore, if the
         intention is proved but no overt act was committed, the section
         can still be invoked. This provision carves out an exception
         from general law that a person is responsible for his own act,
         as it provides that a person can also be held vicariously            C
         responsible for the act of others, if he had the common intention
         to commit the act. The phrase “common intention” means a
         pre-oriented plan and acting in pursuance to the plan, thus,
         common intention must exist prior to the commission of the act
         in a point of time. The common intention to give effect to a         D
         particular act may even develop on the spur of moment between
         a number of persons with reference to the facts of a given
         case.”
      30. The aforesaid principle has also been dealt with in extenso by
the Apex Court in Virendra Singh V. State of Madhya Pradesh ((2010)           E
8 SCC 407) through the following paragraphs:
      “15. Ordinarily, a person is responsible for his own act. A person
      can also be vicariously responsible for the acts of others if he had
      the common intention to commit the offence. The words “common
      intention” implies a prearranged plan and acting in concert pursuant    F
      to the plan. It must be proved that the criminal act was done in
      concert pursuant to the prearranged plan. Common intention comes
      into force prior to the commission of the act in point of time, which
      need not be a long gap. Under this section a pre-concert in the
      sense of a distinct previous plan is not necessary to be proved.
      The common intention to bring about a particular result may well        G
      develop on the spot as between a number of persons, with
      reference to the facts of the case and circumstances of the
      situation. Though common intention may develop on the spot, it
      must, however, be anterior in point of time to the commission of
      the crime showing a prearranged plan and prior concert. The             H
668      SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     common intention may develop in course of the fight but there
      must be clear and unimpeachable evidence to justify that inference.
      This has been clearly laid down by this Court in the case of Amrik
      Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972
      CriLJ 465.
B     16. The essence of the liability is to be found in the existence of a
      common intention animating the accused leading to the doing of a
      criminal act in furtherance of such intention. Undoubtedly, it is
      difficult to prove even the intention of an individual and, therefore,
      it is all the more difficult to show the common intention of a group
      of persons. Therefore, in order to find whether a person is guilty
C     of common intention, it is absolutely necessary to carefully and
      critically examine the entire evidence on record. The common
      intention can be spelt out only from the evidence on record.
      17. Section 34 is not a substantive offence. It is imperative that
      before a man can be held liable for acts done by another under
D     the provisions of this section, it must be established that there was
      common intention in the sense of a prearranged plan between the
      two and the person sought to be so held liable had participated in
      some manner in the act constituting the offence. Unless common
      intention and participation are both present, this section cannot
E     apply.
      xxx                         xxx                                 xxx
      36. Referring to the facts of this case, the short question which
      arises for adjudication in this appeal is whether the appellant
      Virendra Singh can be convicted under section 302 with the aid of
F     section 34 IPC. Under the Penal Code, the persons who are
      connected with the preparation of a crime are divided into two
      categories: (1) those who actually commit the crime i.e. principals
      in the first degree; and (2) those who aid in the actual commission
      i.e. principals in the second degree. The law does not make any
G     distinction with regard to the punishment of such persons, all being
      liable to be punished alike.
      37. Under the Penal Code, a person is responsible for his own
      act. A person can also be vicariously responsible for the acts of
      others if he had a common intention to commit the acts or if the
      offence is committed by any member of the unlawful assembly in
H
   JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                             669
              [M. M. SUNDRESH, J.]

prosecution of the common object of that assembly, then also he         A
can be vicariously responsible. Under the Penal Code, two sections,
namely, Sections 34 and 149, deal with them circumstances when
a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC
can arise only when two conditions stand fulfilled i.e. the mental      B
element or the intention to commit the criminal act conjointly with
another or others; and the other is the actual participation in one
form or the other in the commission of the crime.
39. The common intention postulates the existence of a
prearranged plan implying a prior meeting of the minds. It is the       C
intention to commit the crime and the accused can be convicted
only if such an intention has been shared by all the accused. Such
a common intention should be anterior in point of time to the
commission of the crime, but may also develop on the spot when
such a crime is committed. In most of the cases it is difficult to
                                                                        D
procure direct evidence of such intention. In most of the cases, it
can be inferred from the acts or conduct of the accused and other
relevant circumstances. Therefore, in inferring the common
intention under section 34 IPC, the evidence and documents on
record acquire a great significance and they have to be very
carefully scrutinized by the court. This is particularly important in   E
cases where evidence regarding development of the common
intention to commit the offence graver than the one originally
designed, during execution of the original plan, should be clear
and cogent.
40. The dominant feature of Section 34 is the element of intention      F
and participation in action. This participation need not in all cases
be by physical presence. Common intention implies acting in
concert.
41. The essence of Section 34 IPC is a simultaneous consensus
of the minds of the persons participating in criminal action to bring   G
about a particular result. Russell in his celebrated book Russell
on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance
producing an effect in future and adds that any act may be regarded
as done in furtherance of the ultimate felony if it is a step
intentionally taken for the purpose of effecting that felony. It was
                                                                        H
670            SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A           observed by Russell that any act of preparation for the commission
            of felony is done in furtherance of the act.
            42. Section 34 IPC does not create any distinct offence, but it
            lays down the principle of constructive liability. Section 34 IPC
            stipulates that the act must have been done in furtherance of the
B           common intention. In order to incur joint liability for an offence
            there must be a prearranged and premeditated concert between
            the accused persons for doing the act actually done, though there
            might not be long interval between the act and the premeditation
            and though the plan may be formed suddenly. In order that Section
            34 IPC may apply, it is not necessary that the prosecution must
C           prove that the act was done by a particular or a specified person.
            In fact, the section is intended to cover a case where a number of
            persons act together and on the facts of the case it is not possible
            for the prosecution to prove as to which of the persons who acted
            together actually committed the crime. Little or no distinction exists
D           between a charge for an offence under a particular section and a
            charge under that section read with section 34.”
            On merit
            31. Having understood Section 34 IPC, we shall now deal with
      the case on hand.
E
             32. The evidence of PW13 did not find favour with the courts.
      The trial court which had the advantage of noting the deposition of the
      witnesses, chose to disbelieve the evidence adduced, by giving cogent
      reasons. This evidence was rightly eschewed by the trial court and also
      by the High Court. There are too many improbabilities in the testimony
F     of PW13. A person who was living 50 kms away remembered the
      accused and their names and overheard their plot to commit the murder.
      His evidence was belied by the evidence of DW1 who was none other
      than his own cousin with whom he was said to be residing at the relevant
      point of time.
G            33. The other material witnesses are PW6 and PW10. PW10 had
      given prior statements. Though he turned hostile despite being a friend
      of the deceased, the trial court did take into consideration his earlier
      statement, while coming to the conclusion that there was no premeditation
      and thus the case would fall under culpable homicide not murder. Though
      the evidence of PW6 was not rejected, both the courts did find a clear
H
          JASDEEP SINGH @ JASSU v. STATE OF PUNJAB                           671
                     [M. M. SUNDRESH, J.]

exaggeration on his part. On many occasions PW6 made a concerted             A
effort to improve the case of prosecution. The testimony given by him
on the dying declaration, a case inserted by him in his supplementary
statement, made subsequently, was also rightly rejected by the courts.
This was also supported by the medical evidence. The other part of the
evidence with respect to the fight was also dealt with by the courts as
                                                                             B
evidence available would suggest that it is the deceased who went nearer,
and the accused were not stationing themselves waiting for his arrival.
Therefore, the aforesaid findings of both the courts in coming to the
conclusion that it is not a case which would attract punishment under
Section 301 Part I IPC does not suffer from any perversity. In view of
the above Crl. A. No.1586 of 2021 stands dismissed. At this stage we         C
also hasten to add that the overt act of A2 being different and in the
absence of any appeal filed by him, we do not wish to make any remark
for the purpose of acquitting him.
       34. The only other issue for consideration is the application of
Section 34 IPC to the case of the Appellants. The occurrence was             D
admittedly during the nighttime. It happened on the street. If A3 and A4
had made such a statement in the same voice, they should have addressed
A2 instead of A1. A2 was already having a gun and A1 was stated to
have taken his gun out only on the statement made by A3 and A4. The
reasoning of the trial court in disbelieving the evidence of PW6 as he
improved on his case subsequently, ought to be applied for the statement     E
made that A3 and A4 had asked A1 to fire. Admittedly, this was an
improvement to the earlier statement made as could be seen from the
evidence of PW6 on more than one occasion. Thus, in our considered
view both the courts ought to have disbelieved the evidence of PW6
insofar as Section 34 IPC is concerned. There is no evidence at all on       F
record to hold that A3 and A4 were aware of the fact that A1 was
having a gun with him. The prosecution wanted to implicate A3 and A4
mainly on the evidence of PW13. Once the said evidence was not
accepted, more care ought to have been taken before convicting A3 and
A4 under Section 34 IPC. We have no difficulty in holding that a common
intention can be formed at the time of the occurrence. However, the          G
evidence available is not sufficient enough to hold that Section 34 IPC is
attracted as against A3 and A4, especially when the testimony of PW13
did not find favour with the courts. We further note that except the
statement said to have been made by A3 and A4, there was no other
material to implicate them.                                                  H
672              SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A              35. Now, we shall come to the statements. The statement made
      by A3 and A4 is as follows: “what are you seeing now”. The question is
      as to whether the said statement would constitute an offense punishable
      under Section 304 Part I IPC. We have already noted the fact that had
      A2 fired at the deceased in pursuance to the statement made by A3 and
      A4 the situation would have been different. It is possible that the said
B
      statement has been made only to attack otherwise the deceased. Suffice
      it is to hold that the prosecution has not proved its case beyond reasonable
      doubt as against A3 and A4 by reflecting the offence committed by A1,
      taking umbrage under Section 34 IPC.
             36. The High Court did not even consider the import of Section 34
C     IPC as against A3 and A4. We find that the approach of the trial court
      cannot be sustained to that extent in the light of our discussion. Thus, we
      are inclined to set aside the judgment of the High Court confirming that
      of the trial court as against the Accused-Appellants namely A3 and A4
      alone are concerned.
D           37. In the result Crl. A. No.1584 of 2021 and Crl. A. No.1585 of
      2021 are allowed. The Crl. A. No.1586 of 2021 stands dismissed.

      Ankit Gyan                                                Appeals disposed of.
      (Assisted by : Rahul Rathi, LCRA)
E




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