I. Principle of Joint Liability in Common Intention
According to S. 34 of IPC, when a criminal act is done by several persons in furtherance of common intention of all, then in such cases, each of such persons is liable for that act in the same manner as if it were done by him alone. This section is based on the principle of joint liability. However, this section is only a rule of evidence and does not create substantive offence. The distinctive feature of S. 34 is the element of participation in the action.
II. Ingredients of S. 34
To attract the principle of joint liability under S. 34, there should be:
- Some criminal act;
- Criminal act must be done by more than one person;
- Criminal act done by such persons should be in furtherance of the common intention of all of them;
- Common intention in the sense of a pre-arranged plan b/w them;
- Participation in the act constituting the offence;
- Physical presence at the time of commission of crime of all persons; but physical presence of all is not necessary in some cases.
A. CRIMINAL ACT
The section speaks of a “criminal act” being done by several persons. If the act in question is a lawful act, this section will not apply. Where four persons were exercising their right of private defence, they were engaged in a lawful act in the course of which one of them unlawfully caused death. The other accused could not be held responsible with the help of Section 34 for the reason that acts jointly done by them was a lawful and not a criminal act. A “criminal act” is not the same thing as an “offence”. An offence is the result of a criminal act. Therefore, the words “criminal act” are wider than the words “offence” as defined in Section 40. A ‘criminal act’ in Section 34 includes a series of acts, omission to act being included within the meaning of the word ‘act’
B. DONE BY SEVERAL PERSONS
Several persons in this section means two or more persons. This section enunciates the principle of joint liability, by virtue of which two or more persons must intentionally do an act jointly, and it would be deemed as if each of them had done it individually.
C. IN FURTHERANCE OF ‘COMMON INTENTION’
The term common intention has been given various meanings, some of which are as follows :
- It implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group.
- It means a desire to commit a criminal act without any contemplation of the consequence.
- It means the mens rea necessary to constitute an offence.
- According to some it cannot be given a definite meaning and its exact meaning depends upon the facts and circumstances of the case.
Case: Mahboob Shah v. Emperor (1945) 47 BOMLR 941
In the case of Mahboob Shah v. Emperor , the scope of liability of S. 34 of IPC was discussed in detail. The following principles were laid down by the court in this case :
- Care must be taken to not confuse same or similar intention with common intention. For an intention to be common it must be known to all the members and must also be shared by them. It always exists prior to the commission of the crime by them.
- To prove common intention it must be proved that the criminal act was done in pursuance of the pre-arranged plan.
- To invoke S. 34 successfully, it must be shown that the criminal act complained against was done in furtherance of the common intention; and if it so the joint liability may be imposed.
- The inference of common intention should never be reached unless it is a necessary inference deductible from the circumstances of the case.
The principles enunciated in the above case have been applied by the Indian court in a number of cases.
D. COMMON INTENTION MAY DEVELOP ON SPOT
It is an exception to the general rule that in certain situations the common intention may develop suddenly on the spot and such common intention may be inferred from the circumstances of the case and the conduct of the accused.
Case Law :- Rishi Deo Pandey v. State of UP AIR 1954 SC 706
Facts : Two brothers were seen running away from the bedroom of the victim. One was armed with a gandassa and another with a lathi. Acc to medical evidence victim died due to an incised wound on the neck
Held : The court found the two brothers shared the common intention to cause death. It was held in this case that common intention may develop on the spot also but where it is alleged that common intention developed during fight, it must be established.
E. PHYSICAL PRESENCE AND ACTIVE PARTICIPATION WHEN NECESSARY
Physical presence at the place of occurrence is essential for application of S. 34. However, this proposition was slightly modified by the Supreme Court in the case of JM Desai v. State of Bombay., wherein it was held that to invoke S. 34, though physical participation of several persons doing the act is necessary, but in certain cases physical presence might not be possible when the acts may done at different times and places.
The reason for making physical presence an essential ingredient under this section is that physical presence gives encouragement, support and protection to the person actually committing the act.
F. BURDEN OF PROOF
The burden of proof lies upon the prosecution to establish beyond any reasonable doubt that the criminal act was done by several persons in furtherance of common intention of all.
G. EFFECT OF ACQUITTAL OF ONE CO-ACCUSED
The Supreme Court in Y. Venkaiah v. State of A.P , has held that even if one of the co-accused if acquitted, that does not by itself absolve other co-accused of their conjoint liability of the crime. The law is that inspite of acquittal of one co-accused, it is open to the court to convict the other accused on the basis of joint liability u/s 34 if there is evidence against them of committing the offence in furtherance of the common intention.
H. DISTINCTION BETWEEN COMMON INTENTION & COMMON OBJECT
|Sr. No||Common Intention (CI)||Common Object (CO)|
|1.||CI within the meaning of S. 34 is undefined and unlimited.||It is defined and limited to the five unlawful object stated in S. 141 of the Code.|
|2.||Criminal Act must be done in furtherance of common intention.||Criminal act u/s 149 must be done in prosecution of the common object.|
|3.||S. 34 enunciates the principle of joint liability but creates no specific offence. It is of interpretative character||S. 149 creates specific offence. It is merely declaratory of principle of joint liability.|
|4.||U/s 34 the offence must be committed by two or more persons.||U/s 149 the offence must be committed by 5 or more persons because then only an unlawful assembly can be formed.|
|5.||U/s 34 the individual offender is a sharer in both, that is, the criminal act and the common intention.||U/s 149 the offender might not have committed the offence but by virtue of being a member of unlawful assembly he is punishable.|