The Allahabad High Court has observed that to attract 'common intention' liability under Section 34 IPC, the participation of a co-accused must have a "functional relationship with the offense in question".

The bench clarified that the mere fact that several persons participated in the same occurrence does not make each of them liable for every offence committed during it.

A Bench of Justice Salil Kumar Rai and Justice Padam Narain Mishra made this observation while dismissing a criminal appeal filed by an accused who was convicted of murder with the aid of Section 34 in connection with a 1985 case.

Briefly put, on December 18, 1985, the deceased Mamman Hussain, along with his son and daughter, was assaulted. Hussain later died of his injuries.

According to the prosecution, the accused entered the enclosure where the deceased and his son were proceeding to cut fodder and assaulted them with a lathi and tabals.

The trial court convicted the accused and sentenced them to life. Though all the other accused died during the pendency of their appeal before the High court, the appeal qua appellant-Jabir survived for consideration.

While considering the question as to whether common intention could be attributed to the appellant, the High Court explained that Section 34 requires participation connected to the offence for which constructive liability is sought to be imposed.

The Bench observed that Section 34 requires participation in the commission of the offence charged, however, the mere fact that several persons participated in the same occurrence does not make each of them liable for every offence committed during it.

The Court clarified that the participation of the co-accused must have a functional relationship with the offence in question so as to attract the common intention liability under Section 34 IPC.

Against this backdrop, when the Court examined the facts of this case, it found that common intention was established on the facts before it.

"All the accused/appellants came together, were armed and actively joined in the assault upon the deceased and PW-1 and, when Sharifan intervened, the assault extended to her as well. The participation of all the appellants, including the surviving appellant no.2, was thus directly connected with the offences for which the appellants were charged. The circumstances as a whole establish the requisite common intention," the division bench observed.

The Court specifically noted that surviving-appellant (Jabir) was armed with a tabal and he actively participated in the assault, and hence, his participation was established and the common intention was also attracted.

The High Court also rejected the accused counsel's challenge to the credibility of the 2 injured eyewitnesses. The bench said that minor discrepancies, variations in narration, errors in estimating time or sequence and omissions which do not affect the core of the prosecution case ordinarily do not justify rejection of otherwise credible testimony.

The counsel for the accused had also argued that the prosecution withheld independent and material witnesses named in the FIR, including Ahsan, Jahri and Bashir.

The Court, however, rejected the argument as an absolute proposition. It observed thus:

"Non-examination of a material witness is not by itself a ground for discarding evidence which is otherwise natural, trustworthy and convincing. The effect of withholding such a witness has to be considered in the circumstances of each case".

Ultimately, the Bench found that the evidence of the two injured witnesses was consistent on the material features and supported by medical examination and the surrounding circumstances.

The Court concluded that the prosecution had established surviving appellant's guilt “beyond reasonable doubt” and that the trial court's findings did not suffer from any illegality warranting interference.

Accordingly, the High Court affirmed his conviction under Sections 302/34, 307/34 and 323/34 IPC. The appeal was dismissed; the surviving appellant was directed to surrender before the trial court by September 20, 2026, to serve the sentence.

Advocate Sanjeev Kumar appeared for the petitioner

AGA Nagendra Kumar Srivastava appeared for the state

Case Title - Asgar and others vs. State 2026 LiveLaw (AB) 607

Citation : 2026 LiveLaw (AB) 607

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