VIRENDRA SINGHversusSTATE OF MADHYA PRADESH

                        [2010] 9 S.C.R. 772


A                        VIRENDRA SINGH
                                 v.
                  STATE OF MADHYA PRADESH
                (Criminal Appeal No. 1316 of 2002)
                         AUGUST 09, 2010
8
        [DALVEER BHANDARI AND A.K. PATNAIK, JJ.]

        Penal Code, 1860: s.302 r.w. s.34 - Murder- Vicarious
  liability - Appellant along with his father and brother armed
C with weapons went to the house of the deceased - After verbal
  altercation, appellant and his father started beating the son
  of the deceased - When deceased intervened, the brother of
  the appellant on exhortation of his father, fired at the deceased
  which resulted in his death - Conviction of all the three
D accused by courts below by invoking of s.34 - Challenged by
  appellant - Held: All the three accused in consonance with a
  prearranged plan had gone to the house of the deceased -
  They all were armed with weapons so there was prior meeting
  of minds - Appellant rightly convicted under ss.302134 by
E courts below by invoking the principle of vicarious liability.

        s. 34 and s. 149 - Resemblance with and distinction
    between - Discussed.

       The prosecution case was that the appellant went to
F the house of the deceased along with his father and his
  brother. The father of the appellant asked the deceased
  to reap their crop. The deceased informed him that he
  was busy and could not reap their crop. On hearing this,
  the father of the appellant got very annoyed. The next
G day, all the three again went to the house of the
  deceased. The appellant and his father were armed with
  lathis and his brother with a firearm. They insisted that
  the deceased should reap their crop. On getting a
  negative response, the appellant and his father started
H                            772
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 773

abusing and beating the son of the deceased. The family         A
members of the deceased tried to intervene and in the
process they also got injured. The deceased tried to save
his son. At that point of time, father of the appellant
exhorted the other son to shoot the deceased, who then
shot at the deceased in the stomach, which resulted in          B
his death. The trial court convicted all the three accused
under Section 302 read with Section 34 IPC. The High
Court upheld the order of conviction.

    In the instant appeal, the appellant contended that in      C
the facts and circumstances of the case Section 34 IPC
could not be invoked.

    Dismissing the appeal, the Court

     HELD: 1.1. A person can be vicariously responsible         D
for the acts of others, if he had a common intention to
commit the offence. The vicarious or constructive liability
under Section 34 IPC can arise only when two conditions
stand fulfilled, i.e., the mental element or the intention to
commit the criminal act conjointly with others; and the         E
actual participation in one form or the other in the
commission of the crime. Section 34 is not a substantive
offence. It is imperative that .Jefore a man can be held
liable for acts done by another, under the provisions of
this section, it must be established that there was
                                                                F
common intention in the sense of a pre-arranged plan
between the two and the person sought to be so held
liable had participated in some manner. in the act
.constituting the offence. 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           G
a crime is committed. In most of the cases it is difficult to
procure direct evidence of such intention and it can be
inferred from the acts or conduct of the accused and
other relevant circumstances. The essence of Section 34
IPC is a simultaneous consensus of the minds of the             H
    774    SUPREME COURT REPORTS               [2010] 9 S.C.R.

A persons participating in the criminal action to bring about
  a particular result. Section 34 IPC does not create any
  distinct offence, but it lays down the principle of
  constructive liability. [Paras 17, 43-46] [780-H; 781-A; 792-
  0-H; 793-A-C]
B
       Barendra Kumar Ghosh v. King Emperor AIR 1925 PC
  1; Mehbub Shah v. King-Emperor AIR 1945 PC 148;
  Pandurang, Tukia and Bhillia v. The State of Hyderabad
  (1955) 1 SCR 1083; Mohan Singh & Anr. v. State of Punjab
C AIR 1963 SC 174; State of UP. v. lftikhar Khan & Ors. (1973)
  1 SCC 512; Ramaswami Ayyangar & Others v. State of Tamil
  Nadu (1976) 3 SCC 779; Rambilas Singh & Ors. v. State of
  Bihar (1989) 3 SCC 605; Krishnan & Another. v. State of
  Kera/a (1996) 10 SCC 508; Surendra Chauhan v. State of
  MP. (2000) 4 SCC 110; Suresh & Another v. State of UP.
D (2001) 3 SCC 673; Gopi Nath @ Jha//ar v. State of UP.
  (2001) 6 SCC 620 ; Krishnan & Anr. v. State represented by
  Inspector of Police (2003) 7 SCC 56; Girija Shankar v. State .
  of UP. (2004) 3 SCC 793; Ramesh Singh @ Photti v. State
  of A.P. (2004) 11 sec 305 - relied on.
E
       Queen v. Gora Chand Gope & Ors. (1866) 5 South WR
  (Cri) 45 - referred to.

        Russel in his celebrated book "Russel on Crime" 12th
    Edn. Vol. 1 - referred to.
F
        Amrik Singh & Ors. v. State of Punjab 1972 CrLJ 465
    (SC) - relied on.

      1.2. The other section under which a person can be
G vicariously responsible for the acts of others is Section
  149 in the Indian Penal Code. Both Sections 34 and 149
  IPC deal with combinations of persons who become
  punishable as sharer in an offence. In both these sections,
  the persons are vicariously responsible for the acts of
H others. Simultaneously, there is a basic resemblance in
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 775

both these sections and to some extent they also overlap.       A
When several persons, numbering five or more, do an act
or intend to do it, both Sections 34 and 149 IPC may
apply. Section 149 IPC is of wider scope than Section 34
IPC and in a case where Section 149 applies, a
constructive liability arises in respect of those persons       B
also who did not actually commit the offence. [Paras 48,
50-51] [793-G-H; 794-D-F]

     1.3. However, there are some distinctive features in
Section 34 and Section 149 IPC: Section 34 does not by
itself create any specific offence, whereas Section 149         C
does so. Some active participation, especially in crime
involving physical violence, is necessary under Section
34, but Section 149 does not require it and the liability
arises by reason of mere membership of the unlawful
assembly with a common object and there may be no               D
active participation at all in preparation and commission
of the crime. SectiOn 34 speaks of common intention, but
Section 149 contemplates common object which is
undoubtedly wider in its scope and amplitude than
intention. Section 34 does not fix a minimum number of          E
persons who must share the common intention, whereas
Section 149 requires that the'"e must be at least five
persons who must have the same common object.
[Paras 51] [794-F-H; 795-A-C]
                                                                F
     2. In the instant case, the appellant alongwith his
father and brother armed with weapons went to the
house of the deceased to eliminate him. The brother of
the appellant on exhortation of his father, fired at and
killed the deceased . In view of the facts, Section 34 IPC      G
is invoked and on the principle of vicarious or
constructive liability, the appellant is clearly guilty under
Sections 302/34 IPC along with his father and his brother.
The trial court and the High Court correctly applied the
law. [Para 52] [795-0-F]
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A                      Case Law Reference:
    1972 CrLJ 465 (SC)            relied on            Para 18
    (1866) 5 South WR (Cri) 45referred to              Para 23
    AIR 1925 PC 1                 relied on            Para 24
8
     AIR 1945 PC 148              relied on            Para 26

    (1955) 1 SCR 1083             relied on            Para 27

    AIR 1963 SC 174               relied on            Para 28
c
    (1973) 1 sec 512              relied on            Para 29
    (1976) 3 sec 119              relied on            Para 30
    (1989) 3 sec 605              relied on            Para 31
D   (1996) 10 sec 508             relied on            Para 32
    (2000) 4 sec 11 o             relied on            Para 33
    (2001) 3 sec 673              relied on            Para 34

E   (2001) 6 sec 620              relied on            Para 37
    (2003) 1 sec 56                relied on           Para 38

    (2004) 3 sec 793              relied on            Para 39
    (2004) 11 sec 305              relied on            Para 40
F
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1316 of 2002.

      From the Judgment & Order dated 17.5.2002 of the High
  Court of Madhya Pradesh Jabalpur Bench at Gwalior in
G
  Criminal Appeal No. 262 of 1986.

          D.B. Vohra, T. Hashmi, S.K. Sabharwal for the Appellant.

          Siddharth Dave, Vibha Datta Makhija for the Respondent.
H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 777

    The Judgment of the Court was delivered by                       A
     DALVEER BHANDARI, J. 1. This appeal has been
preferred by the appellant Virendra Singh against the judgment
dated 17.5.2002 passed by the High Court of Judicature of
Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 262
                                                                     B
of 1986.

     2. Brief facts which are necessary to dispose of the appeal
are as under:

      Hakim Singh and his two sons Virendra Singh and                c
Kamlesh Singh went to the house of the deceased Bhagirath
and asked him to reap their crop the next day. Bhagirath
informed that he would not be able to reap their crop as he had
to reap the crop grown in his own field. He also informed the
accused persons that apart from reaping his crop he would also
                                                                     D
be busy in 'lagan ceremony' of his son Satyanarain and Tilak
ceremony of his grandson, Lakhan which was going to be
performed after two days. In spite of his clear explanation for
not being abte to reap the crop of the accused persons, they
pressurized the deceased Bhagirath to reap the crop standing
on their field. The accused persons got annoyed on deceased's        E
refusal to reap their crop. Accused Hakim Singh, Kamlesh and
Virendra Singh armed with weapons went to the house of
 Bhagirath the next day at 7.00 a.m. to take revenge for declining
to carry out the order of the accused persons. Virendra Singh
 and Hakim Singh were armed with lathis and Kamlesh was              F
 armed with a rifle. They asked Bhagirath why he had not gone
to reap their crop. The deceased replied that he had already
 informed them that he would not be in a position to reap their
 crop for the aforementioned reasons. On getting this response,
 accused persons, namely, Hakim Singh and Virendra Singh got         G
 infuriated and started hurling filthy abuses and beating
 Baburam, son of the deceased. When Hakim Singh and
 Virendra Singh were assaulting Baburam with lathis, then
 Lakhan, Rakesh, Satyanarain, son of the deceased, Ramshri,
 mother of Baburam and Rajkumari, sister of Baburam rushed           H
    778      SUPREME COURT REPORTS                 [2010] 9 S.C.R.


A to save Baburam. Hakim Singh and Virendra Singh also
  assaulted Lakhan with lathis on the head, shoulder and back.
  The accused persons also caused injuries to Ramshri and
  Satyanarain.

        3. The deceased Bhagirath intervened. At that point of
8
   time Hakim Singh exhorted Kamlesh to shoot Bhagirath.
 · Kamlesh shot at Bhagirath in the stomach, which resulted in his
   death. Kamlesh also fired at Baburam but the bullets missed
   him. After commission of the offence the accused persons ran
C away towards the canal. The incident was witnessed by
   Ramsahay P. W .11 and Bhoorelal.

       4. The trial court, after scrutinizing the entire evidence on
  record, convicted Hakim Singh, Kamlesh and Virendra Singh
  under section 302 read with section 34 of the Indian Penal
D Code (for short, IPC).

       5. It was canvassed before the trial court that the
  deceased. had died because of the fire arm injury caused by
  Kamlesh, therefore, Virendra Singh and Hakim Singh cannot
E be convicted under section 302 read with section 34 of the
  Indian Penal Code.

       6. Baburam P.W. 6 is an injured eye witness. He had given
  the graphic description of the entire incident and specifically
  mentioned that Kamlesh and Virendra Singh had abused him
F and then Hakim Singh and Virendra Singh had beaten him with
  lathis. He further deposed that when his mother came to save
  him, then accused Hakim Singh and Virendra Singh had
  assaulted his mother also on her hand and head by lathis, which
  resulted in the fracture of her hand. The accused also assaulted
G Lakhan on the head by lathi. It was further deposed by Baburam
  P.W. 6 that Hakim Singh then asked Kamlesh to shoot
  Bhagirath and Kamlesh shot at Bhagirath. The pallets of the
  bullet also injured Satyanarain and his sister Rajkumari.

          7. Satyanarain P.W.7 had also given the detailed
H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 779 ·
           [DALVEER BHANDARI, J.]
description of the entire incident and specifically stated about    A   -
the role of the appellant Virendra Singh in the entire incident.

     8. Rajkumari P.W.10 has categorically stated that Hakim
Singh along with Virendra Singh armed with lathis and Kamlesh
armed with a firearm came to the house of Bhagirath and
                                                                    B
started abusing him and thereafter Hakim Singh and Virendra
Singh assaulted Baburam with lathis. When Baburam shouted
on getting lathi blows, then his mother Ramshri, Satyanarain and
Lakhan rushed to save him. Both Hakim Singh and Virendra
Singh also assaulted Ramshri, the mother of Baburam on her          C
hand and head, which resulted into a fracture of her hand.
Lakhan was also assaulted.

     9. The version of prosecution witnesses is consistent and, 1
despite gruelling and long cross-examination, no dent could b¢
made by the defence on the testimony of the prosecution D
witnesses. The trial court convicted all the three accused under
section 302 read with section 34 of the Indian Penal Code.

     10. Hakim Singh died during the pendency of the appeal.
In appeal by the remaining two accused Kamlesh and Virendra         E
Singh, the High Court again carefully scrutinized the entire
evidence and came to a clear conclusion that the appellant
Virendra Singh is also guilty under section 302 read with
section 34 of the Indian Penal Code.

      11. The High Court observed that all the accused persons      F
went to the house of the deceased Bhagirath with the intention
to teach him a lesson. Immediately on reaching the spot
Virendra Singh and Hakim Singh started beating Baburam with
lathis and when deceased Bhagirath intervened, he was shot
at by Kamlesh in furtherance of the commission of offence.          G

      12. In the facts and circumstances of this case, it cannot
be concluded that death was caused on account of grave or
sudden provocation. On the contrary, it is fully established that
all the accused had gone to the house of Bhagirath to teach
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    780      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A him a lesson armed with lathis and a rifle, because the previous
  day the deceased declined to follow their orders of reaping their
  crops because of his reasons. On Hakim Singh's exhortation,
  Kamlesh fired at the deceased Bhagirath causing his death.
  According to the prosecution, the appellant Virendra Singh is
B clearly guilty of an offence under sections 302 read with 34 IPC.
  Admittedly, all the three accused in consonance with the
  prearranged plan had gone to the house of the deceased to
  teach him a lesson for disobeying their orders. All three of them
  were armed with weapons, so there was a prior meeting of
c minds or pre- concert.

         13. The High Court, on the basis of the entire evidence on
    record, came to a definite conclusion that the appellant
    Virendra Singh is guilty under section 302 read with section 34
    of the Indian Penal Code.
D
        14. The appellant being aggrieved by the judgment of the
    High Court preferred this appeal.

         15. We have again scrutinized the entire evidence on
E   record to satisfy ourselves whether the appellant Virendra Singh
    has been wrongly convicted under section 302 read with section
    34 IPC?

         16. According to the appellant, in the facts and
    circumstances of this case, section 34 IPC could not have been
F   invoked. In order to deal with this argument, it has become
    imperative to deal with section 34 IPC. It reads as under:

               "34. Acts done by several persons in furtherance
          of common intention.- When a criminal act is done by
          several persons in furtherance of the common intention of
G
          all, each of such persons is liable for that act in the same
          manner as if it were done by him alone."

        17. Ordinarily, a person is responsible for his own act. A
    person can also be vicariously responsible for the acts of others
H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 781
           [DALVEER BHANDARI, J.]
if he had the common intention to commit the offence.                   A

     18. The words "common intention" implies a pre-arranged
plan and acting in concert pursuant to the plan. It must be proved
that the criminal act was done in concert pursuant to the pre-
arranged plan. Common intention comes into force prior to the           8
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 develop on
the spot as between a number of persons, with reference to              C
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 pre-arranged plan and prior concert. The common
intention may develop in course of the fight but there must be
clear and unimpeachable evidence to justify that inference. This        D
has been clearly laid down by this Court in the case of Amrik
Singh "& Ors. v. State of Punjab 1972 CrLJ 465 (SC).

     19. The essence of the liability is to be found in the
existence of a common intention animating the accused leading           E
to the doing of a criminal act in furtherance of such intention.

      20. 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
                                                                        F
to find whether a person is guilty 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.

     21. Section 34 is not a substantive offence. It is imperative      G
that before a man can be held liable for acts done by another,
under the provisions of this section, it must be established that
there was common intention in the sense of a pre-arranged
plan between the two and the person sought to be so held liable
had participated in some manner in the act constituting the             H
    782       SUPREME COURT REPORTS                       [2010) 9 S.C.R.


A   offence. Unless common intention and participation are both
    present, this section cannot apply.

      22. Section 34 IPC is part of the original Code of 1860
  as drafted by Thomas Babington Macaulay, later known as
B Lord Macaulay. The original Section as it stood was as follows:

          "When a criminal act is done by several persons, each of
          such persons is liable for that act in the same manner as
          if the act was done by him alone."

c         23. However, on account of certain observations made by
    Sir Barnes Peacock C.J. in Queen v. Gora Chand Gope & Ors.
    (1866) 5 South WR (Cri) 45, it was necessary to bring about a
    change in the wordings of the section. Accordingly, in the year
    1870 an amendment was brought which introduced the
0   following words after ..... When a criminal act is done by several
    persons ..... " ..... in furtherance of the common intention .... " After
    this .change, the section has not been changed or amended
    ever.

       24. The case of Barendra Kumar Ghosh v. King Emperor
E AIR 1925 PC 1 is a locus classicus and has been followed by
  number of High Courts and this court in a large number of
  cases. In this case, the Judicial Committee dealt with the scope
  of section 34 dealing with the acts done in furtherance of the
  common intention, making all equally liable for the results of all
F the acts of others. It was observed:

          "...... the words of Section 34 are not to be eviscerated by
          reading them in this exceedingly limited sense. By Section
          33 a criminal act in Section 34 includes a series of acts
G         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 Section 37, when any
          offence is committed by means of several acts whoever
          intentionally co-operates in the commission of that offence
          by doing any one of those acts, either singly or jointly with
H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 783
           [DALVEER BHANDARI, J.]
    any other person, commits that offence. Even if the               A
    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 Section 38, when
    several persons are engaged or concerned in the
    commission of a criminal act, they may be guilty of different     B
    offences by means of that act. Read together, these
    sections are reasonably plain. Section 34 deals with the
    doing of separate acts, similar or diverse, by several
    persons; if all are done in furtherance of a common
    intention, each person is liable for the result of them all,      c
    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. Section 37 provides that, when several acts are
    done so as to result together in the commission of an             D
    offence, the doing of any one of them, with an intention to
    co-operate in the ~ffence (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. Section 38
    provides for different punishments for different offences as      E
    an alternative to one punishment for one offence, whether
    the persons engaged or concerned in the commission of
    a criminal act are set in motion by the one intention or by
    the other."

     25. It was further observed that section 34 when it speaks       F
of a criminal act done by several persons in furtherance of the
common intention of all, has regard not to the offence as a
whole, but to the criminal act, that is to say, the totality of the
series of acts which result in the offence. In the case of a person
assaulted by many accused, the criminal act is the offence            G
which finally results, though the achievement of that criminal act
may be the result of the action of several persons.

   26. In another celebrated case Mehbub Shah v. King-
Emperor AIR 1945 PC 148, the court held that "Section 34 lays         H
    784     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A down a principle of joint liability in the doing of a criminal act.
  The section does not say "the common intentions of all," nor
  does it say "an intention common to all." 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
B of a criminal act in furtherance of such intention. To invoke the
  aid of section 34 successfully, it must be shown that the criminal
  act complained against was done by 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
c 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 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
0
  plan."

       27. ·In Pandurang, Tukia and Bhil/ia v. The State of'
  Hyderabad (1955) 1 SCR 1083, this Court laid down that it is
  well settled that common intention in section 34 of the Indian
E Penal Code presupposes prior concert, because before a man
  can be vicariously convicted for the criminal act of another, the
  act must have been done in furtherance of the common intention
  of them all.

F      28. In Mohan Singh & Anr. v. State of Punjab AIR 1963
  SC 174, this Court observed that it is now well settled that the
  common intention required by Section 34 is different from the
  same intention or similar intention. The persons having similar
  intention which is not the result of pre- concerted plan cannot
G be held guilty for the "criminal act" with the aid of Section 34.

       29. In State of UP. v. lftikhar Khan & Ors. (1973) 1 SCC
  512 it was observed that to attract Section 34 IPC it is not
  necessary that any overt act should have been done by the co-
  accused. In this case four accused persons were convicted on
H a fact situation that two of them were armed with pistols and
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 785
           [DALVEER BHANDARI, J.]
the other two were armed with lathis and all the four together      A
walked in a body towards the deceaserj and after firing the
pistols at the deceased all the four together left the scene. The
finding of .fact in that case was also the same. When a plea
was made on behalf of those two persons who were armed with
!athis that they did not do any overt act, this Court made the      B
above observation. From the facts of that case it can be said
that there was no act on behalf of the two lathi holders although
the deceased was killed by a pistol shot. The criminal act in
that case was done by all the persons in furtherance of the
common intention to kill the deceased.                              c
     30. In Ramaswami Ayyangar & Others v. State of Tamil
Nadu (1976) 3 SCC 779, this Court declared that Section 34
is to be read along with preceding Section 33 which makes it
clear that the "act" mentioned in Section 34 includes a series
of acts as a single act. The acts committed by different            D
confederates in the criminal action may be different but all must
in one way or the other participate and engage in the criminal
enterprise. Even a person not doing any particular act but only
standing guard to prevent any prospective aid to the victims
may be guilty of common intention. However, it is essential that    E
in case of an offence involving physical violence it is essential
for the application of Section 34 that such accused must be
physically present at the actual commission of crime for the
purposes of facilitating accomplishment of "criminal act" as
mentioned in that section. In this case, it was contended that      F
A2 could not be held vicariously liable with the aid of Section
34 for the act of other accused on the grounds: firstly he did
not physically participate in the fatal beating administered by
co-accused to the deceased and thus the "criminal act" of
murder was not done by all the accused within the                   G
contemplation of Section 34; and secondly the prosecution had
not shown that the act of A2 in beating PW1 was committed in
furtherance of the common intention of all the three pursuant to
a pre-arranged plan. Repelling such an argument this Court held
that such a contention was fallacious which could not be            H
    786       SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A accepted. The presence of those who in one way or the other
  facilitate the execution of the common design itself tantamounts
  to actual participation in the "criminal act". The essence of
  Section 34 is simultaneously consensus of the minds of persons
  participating in the criminal action to bring about a particular
B result. Conviction of A2 under Section 302/34 of the Code in
  that case was upheld.

       31. In Rambilas Singh & Ors. v. State of Bihar (1989) 3
    SCC 605, this Court held as under:

C         "It is true that in order to convict persons vicariously under
          section 34 or section149 IPC, it is not necessary to prove
          that each and everyone 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
0         in furtherance of the common intention of all the accused
          or in prosecution of the common object of the members
          of the unlawful assembly."

        32. In Krishnan & Another. v. State of Kera/a (1996) 10
E   SCC 508, this Court even assuming that one of the appellants
    had not caused the injury to the deceased, upheld his conviction
    under Section 302/34 of the Penal Code holding:

          "15. Question is whether it is obligatory on the part of the
          prosecution to establish commission of overt act to press
F         into 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
G         establishment of a overt act is not a 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
H         concerned persons had shared the common intention.
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 787
           [DALVEER BHANDARI, J.]
    Court's mind regarding the sharing of common intention          A
    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
     33. In Surendra Chauhan v. State of M.P. (2000) 4 SCC
110, this Court held that apart from the fact that there should
be two or more accused, two factors must be established - (i)
common intention; and (ii) participation of the accused in the
commission of the offence. If a common intention is proved but
no overt act is attributed to the individual accused, Section 34    C
will be attracted as essentially it involves vicarious liability.
Referring to its earlier judgment this Court held:

           "11. Under Section 34 a person must be physically
    present at the actual commission of the crime for the D
    purpose of facilitating or promoting the offence, the
    commission of which is the aim of the joint criminal venture.
    Such presence of those who in one way or the other
    facilitate the execution of the common design is itself
    tantamount to actual participation in the criminal act. The E
    essence of Section 34 is simultaneous consensus of the
    minds of persons participating in the criminal action "to
    bring about a particular result. Such consensus can be
    developed at the spot and thereby intended by all. of them.
    (Ramaswami Ayyangar v. State of T.N. (1976) 3 SCC F
    779) The existence of a common intention can be inferred
    from the attending circumstances of the case and the
    conduct of the parties. No direct evidence of common
    intention is necessary. For the purpose of common
    intention even the participation in the commission of the G
    offence need not be proved in all cases. The common
    intention can develop even during the course of an
    occurrence. (Rajesh Govind Jagesha v. State of
    Maharashtra (1999) 8 SCC 428). To apply Section 34 IPC
    apart from the fact that there should be two or more
                                                                  H
    788      SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A         accused, two factors must be established" (i) common
          intention, and (ii) participation of the accused in the
          commission of an offence. If a common intention is proved
          but no overt act is attributed to the individual accused,
          Section 34 will be attracted as essentially it involves
B         vicarious liability but if participation of the accused in the
          crime is proved and a common intention is absent, Section
          34 cannot be invoked. In every case, it is not possible to
          have direct evidence of a common intention. It has to be
          inferred from the facts and circumstances of each case."
c      34. In Suresh & Another v. State of U.P. (2001) 3 SCC
  673, Section 34 of the Indian Penal Code recognizes the
  principle of vicarious liability in the 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
D intention. It is a rule of evidence and does not create a
  substantive offence. The section gives statutory recognition to
  the commonsense 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. The common intention pre-
E supposes prior concert. Such a pre-concert or pre-planning 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. The existence of a common
  :ntention is a question of fact in each case to be proved mainly
F as a matter of inference from the circumstances of the case.

       35. In that case, it was also observed that the dominant
  feature for attracting section 34 of the Indian Penal Code is the
  element of partic!pation in absence resulting in the ultimate
G "criminal act". The section does not envisage the separate act
  by all the accused persons for becoming responsible for
  ultimate criminal act. If such an interpretation is accepted, the
  purpose of section 34 shall be rendered infructuous.

        36. It was further observed that what is required under law
H is that the accused persons sharing the common intention must
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 789
           [DALVEER BHANDARI, J.]
be physically present at the scene of occurrence and be shown        A
not to have dissuaded themselves from the intended criminal
act for which they share 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          B
judicial servitude, hold that the accused must have
preconceived the result that ensued in furtherance of the
common intention.

    37. In Gopi Nath @Jhallar v. State of U.P. (2001) 6 SCC          C
620 it was observed as under:

           "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         D
    matter of invoking the aid of 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 jointed together in doing the        E
    criminal act, provided that such commission is in
    furtherance of the common intention of all of them. Even
    the doing of separate, simi1oi" 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         F
    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 merely an omission constituting
    an illegal omission. The Section, therefore, has been held
    to be attracted even where the acts committed by the             G·
    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 which might be of a pre-concerted or pre-
    arranged plan or one manifested or developed at the spur         H
    of the moment in the course of the commission of the
    790       SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A         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 circumstances of the case and
          conduct of the parties. The ultimate decision, at any rate,
B         would invariably depend upon the inferences deducible
          from the circumstances of each case."

       38. In Krishnan & Anr. v. State represented by Inspector
  of Police (2003) 7 sec 56, it was observed that section 34 is
  dependent on the circumstances of each case. No hard and
C fast rule can be made out regarding applicability or non-
  applicability of section 34.

       39. In Girija Shankar v. State of UP. (2004) 3 SCC 793,
  it was observed that section 34 has been enacted to elucidate
D the principle of joint liability of a criminal act.

                  "Section 34 has been enacted on the principle of joint
          liability in the doing of a criminal act. The section is only a
          rule of evidence and does not create a substantive offence.
          The distinctive feature of the section is the element of
E
          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 under Section 34
          if such criminal act is done in furtherance of a common
          intention of the persons who join in committing the crime.
F
          Direct proof of common intention is seldom 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, the prosecution has to
G         establish by evidence, whether direct or circumstantial,
          that there was plan or meeting of minds 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
H         commission of the crime. The true concept of the section
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 791
           [DALVEER BHANDARI, J.]
     is that if two or more persons intentionally do an act jointly,     A
     the position in law is just the same is if each of them has
     done it individually by himself. 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         B
     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 t6 attract the provision."

    40. In Ramesh Singh@ Photti v. State of A.P. (2004) 11
                                                                         c
sec  305, it has been observed as under:

             "12 ........ As a general principle in a case of criminal
     liability it is the primary responsibility of the person who
     actually commits the offence and only that person who has           D
     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 leading to the              E
     doing of a criminal act in furtherance of such intention. Thus,
     if the act is the result of a c,.1mmon 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.         F
          II




     41. 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 section 34 IPC. Under the Indian Penal Code,             G
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 (b) those who
aid in the actual commission, i.e. principals in the second
degree. Law does not make any distinction with regard to the             H
        792     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A       punishment of such persons, all being liable to be punished
        alike.

       42. Under the Indian 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
8
  the acts or if the offence is committed by any member of the
  unlawful assembly in prosecution of the common object of that
  assembly, then also he can be vicariously responsible. Under
  the Indian Penal Code, two sections, namely, sections 34 and
  149, deal with the circumstances when a person is vicariously
!
C responsible for the acts of others.

       43. The vicarious or constructive liability under section 34
  IPC can arise only when two conditions stand fulfilled, i.e., the
  mental element or the intention to commit the criminal act
D conjointly with another or others; and the other is the actual
  participation in one form or the other in the commission of the
  crime.

           44. The common intention postulates the existence of a
    E pre-arranged plan implying a prior meeting of the minds. It is
      the 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
    F cases it is difficult to 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
    G significance and they have to be very carefully scrutinized by
      the court. This is particularly important in cases where evidence
      regarding development of the common intention to commit the
      offence graver, then, the one originally designed, during
      execution of the original plan, should be clear and cogent.
    H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 793
           [DALVEER BHANDARI, J.]
     45. The dominant feature of section 34 is the element of         A
intention and participation in action. This participation need not
in all cases be by physical presence. Common intention
implies acting in concert.

     46. The essence of section 34 IPC is a simultaneous              B
consensus of the minds of the persons participating in criminal
action to bring about a particular result. Russel in his celebrated
book "Russel 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        C
felony if it is a step, intentionally taken for the purpose of
effecting that felony. It was observed by Russel that any act of
preparation for the commission of felony is done in furtherance
of the act.

      47. Section 34 IPC does not create any distinct offence, D
but it lays down the principle of constructive liability. Section 34
IPC stipulates that the act must have been done in furtherance
of the common intention. In order to incur joint liability for an
offence there must be a pre-arranged and pre- meditated
concert between the accused persons for doing the act actually E
done, though there might not be long interval between the act
and the pre-meditation and though the plan may be formed
suddenly. In order that section 34 IPC may apply, it is not
necessary that the prosecution must prove that the act was done
by a particular or a specified person. In fact, the section is F
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 between a charge for an offence under a particular G
section and a charge under that section read with section 34.

     48. The other section under which a person can be
vicariously responsible for the acts of others is section 149 in
the Indian Penal Code.
                                                                      H
    794           SUPREME COURT REPORTS              [2010] 9 S.C.R.


A         49. We would briefly like to deal with the scope and ambit
    of section 149 IPC also. Section 149 IPC reads as under:

                "149. Every member of unlawful assembly guilty of
          offence commitied in prosecution of common object. - If
B         an offence is committed by any member of an unlawful
          assembly in prosecution of the common object of that
          assembly, or such as the members of that assembly knew
          to be likely to be committed in prosecution of that object,
          every person who, at the time of the committing of that
          offence, is a member of the same assembly, is guilty of
c         that offence."

       50. Both sections 34 and 149 IPC deal with combinations
  of persons who become punishable as sharers in an offence.
  In both these sections, the persons are vicariously responsible
D for the acts of others. Simultaneously, there is a basic
  resemblance in both these sections and to some extent they
  also overlap.

       51. There is a substantial difference between these two
E sections with which we would deal in the later part of this
  judgment. When several persons, numbering five or more, do
  an act or intend to do it, both sections 34 and 149 IPC may
  apply. Section 149 IPC is of wider scope than section 34 IPC
  and in a case where section 149 applies, a constructive liability
F arises in respect of those persons who do not actually commit
  the offence.

          DISTINCTION BETWEEN SECTION 34                        AND
          SECTION 149 OF THE INDIAN PENAL CODE

G          (i)      Section 34 does not by itself create any specific
                    offence, whereas section 149 does so;

           (ii)    Some active participation, especially in crime
                   involving physical violence, is necessary under
                   section 34, but section 149 does not require it and
H
VIRENDRA SINGH v. STATE OF MADHYA PRADESH 795
           [DALVEER BHANDARI, J.]
               the liability arises by reason of mere membership       A
               of the unlawful assembly with a common object and
               there may be no active participation at all in
               preparation and commission of the crime;

       (iii)   Section 34 speaks of common intention, but
                                                                       8
               section 149 contemplates common object which is
               undoubtedly wider in its scope and amplitude than
               intention; and

       (iv)    Section 34 does not fix a minimum number of
               persons who must share the common intention,            C
               whereas section 149 requires that there must be at
               least five persons who must have the same
               common object.

Conclusion
                                                                       D
      52. When we revert to the facts of this case, we arrive at
definite conclusion that Hakim Singh a·nd his two sons Kamlesh
and Virendra Singh armed with weapons went to the house of
the deceased Bhagirath to eliminate him. Kamlesh, on
exhortation of his father, Hakim Singh, fired a pistol shot and        E
killed Bhagirath. In view of these facts when section 34 IPC is
invoked then on the principle of vicarious or constructive liability
the appellant is clearly guilty under section 302/34 IPC along
with his father Hakim Singh and his brother Kamlesh. The trial
court and the High Court correctly applied the law.                    F

    53. The appeal filed by the appellant is totally devoid of
any merit and is accordingly dismissed.

D.G.                                          Appeal dismissed. ·