Source: Supreme Court  

Why in News? 

Recently, the bench of B.R. Gavai and Augustine George Masih has held that to convict under Section 34 IPC (common intention), prior planning and shared intent must be proven. It allowed constables' appeal against their murder conviction, stating that mere presence is insufficient for liability. 

• The Supreme Court held this in the matter of Constable 907 Surendra Singh & Anr. v. State of Uttarakhand. (2025). 
• The case involved police firing at a suspected smuggler's car, leading to a passenger's death.  
• The High Court had reversed acquittals, prompting the appeal. 

What was the Background of Constable 907 Surendra Singh & Anr. v. State of Uttarakhand? 

• The case originated from an incident on 15th November, 2004, when police personnel received information about illegal liquor being smuggled in a Maruti Car (Registration No. DL2CR4766). 
• Head Constable Jagdish Singh, along with three other police personnel - Constable Surendra Singh, Constable Surat Singh, and Constable Driver Ashad Singh - proceeded in a silver Indica car to intercept the suspected vehicle. 
• At approximately 8:30 PM near IDPL Gate, the police personnel attempted to stop a Maruti car by overtaking it and signaling the driver to halt. 
• Upon the driver's non-compliance, Head Constable Jagdish Singh discharged his 0.38 bore revolver, resulting in a fatal injury to the co-passenger. 
• The deceased victim was identified as Manisha, wife of the complainant Sanjeev Chauhan, who was driving the vehicle with their daughter and his sister as other occupants. 
• A First Information Report (Crime No. 455 of 2004) was registered against Head Constable Jagdish Singh and other unknown police constables under Section 302 IPC. 
• Post-mortem examination confirmed cranio-cerebral damage from bullet injury as the cause of death. 

What were the Court’s Observations? 

• The Supreme Court observed that interference with an acquittal order requires fulfillment of specific conditions:  
  • The judgment must exhibit patent perversity 
  • There must be misreading or omission of material evidence 
  • Only one reasonable conclusion pointing to guilt must be possible 
• The Court held that for invoking Section 34 IPC (common intention), the prosecution must establish:  
  • Prior meeting of minds among the accused 
  • Preplanning of the criminal act 
  • Shared common intention to commit the specific crime 
  • The criminal act must be in furtherance of the common intention 
• The Court observed that mere presence in the same vehicle does not constitute sufficient grounds for establishing common intention under Section 34 IPC. 
• The Court noted that the Trial Court's acquittal was based on material considerations:  
  • Hierarchical command structure among the accused 
  • Limited witness identification 
  • Absence of evidence establishing shared intention 
  • Insufficient proof beyond reasonable doubt regarding mental involvement 
• The Court determined that the High Court's reversal of acquittal solely on the basis of co-presence in the vehicle was legally unsustainable. 

What is the Concept of ‘Common Intention’? 

• Section 34 of IPC: Acts done by several persons in furtherance of common intention. 
• Now Section 3(5) of Bharatiya Nyaya Sanhita, 2023 (BNS) deals with common intention. 
  • When 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 were done by him alone. 
  • Section 3(5) BNS,2023 makes no mention of any specific offence. It establishes the rule of evidence that if two or more people commit a crime for the same purpose, they will be found jointly accountable. 
• Essentials of Common Intention Under 3(5) BNS,2023 
  • Prior Meeting of Minds 
    • There must be a pre-arranged plan or meeting of minds between the accused persons 
    • The common intention may form just before commission of offense 
    • There need not be a formal agreement, but shared understanding must exist 
    • Mere presence at crime scene is insufficient to prove common intention 
  • Mental Element 
    • Each accused must be aware of and mentally concur with the intended criminal act 
    • There must be active mental participation towards the common goal 
    • The state of mind and intention must be proved through evidence 
    • Prosecution must establish prior knowledge of likely consequences 
  • Active Participation 
    • Each accused must participate in some manner in the criminal act 
    • Participation can be direct or indirect but must contribute to crime 
    • Physical presence alone without participation is insufficient 
    • Nature and extent of participation may vary between accused 
  • Causative Link 
    • Clear nexus must exist between common intention and criminal act 
    • Act must be done in furtherance of shared objective 
    • Criminal act must flow from pre-arranged plan 
    • Random or independent acts not covered 
  • Burden of Proof 
    • Prosecution must prove common intention beyond reasonable doubt 
    • Circumstantial evidence can establish common intention 
    • Conduct before, during and after crime relevant 
    • Mere suspicion of common intention not sufficient 
  • Contemporaneous Formation 
    • Common intention may form instantly before crime 
    • No long premeditation necessary 
    • But intention must exist when crime committed 
    • Post-facto approval does not constitute common intention 
• Case Law: 
  • Barendra Kumar Ghosh v. King Emperor (1925): 
    • In this case two people demanded money from a postman as he was counting the money, and when they shot from a handgun at the postmaster, he died on the spot. 
    • All of the suspects fled without taking any money. In this instance, Barendra Kumar claimed that he did not shoot the gun and was only standing by, but the courts rejected his appeal and found him guilty of murder under Sections 302 and 34 of the IPC. 
    • The Bombay High Court further held that it is not required that all participants participate equally. It is possible to accomplish more or less. However, this does not mean that the individual who did less should be exempt from blame. His legal responsibility is the same. 
  • Pandurang v. State of Hyderabad (1955): 
    • The SC held that a person cannot be held vicariously accountable for the actions of another if their purpose to commit the crime was not common. 
    • It is not a common intention if their conduct is independent of the act of another. It will be known for the same purpose. 
  • Mahboob Shah v. Emperor (1945): 
    • The appellant Mahboob Shah was found guilty of the murder of Allah Dad by the Sessions Judge. He was found guilty and condemned to death by the Session tribunal. 
    • The death penalty was also affirmed by the HC of Justice. The murder conviction and death sentence were reversed on appeal to the Lordship. 
    • The Bombay HC held that when Allahdad and Hamidullah sought to flee, Wali Shah and Mahboob Shah came next to them and fired, and therefore there was proof on the spur of the moment that they formed a common intention.