Law and You > Criminal Laws > Criminal Jurisprudence > Group or Joint Liability
The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty for that offence. Normally criminal liability is an individual liability because it requires proof of both mens rea and actus reus. But crime need not be done individually. Many times criminal acts of serious nature are done in a group. When several persons are involved in the prosecution of a criminal act, it becomes difficult to distinguish the role of different participants if the result of all actions combined is the intended criminal consequence. Sections 34 to 38, 149, 120A, 121A, 396 and 460 of the Indian Penal Code (IPC) deals with joint criminal liability. Sections 34 to 37 and Section 49 deals with the provisions which fix criminal liability on the basis of common intention and common object. In this article, we shall discuss the concept of joint or group liability
Offence committed by groups of persons are of frequent occurrence and courts are called upon to determine the liability of each member for the crime committed by the entire group or by any member or members thereof.
Group liability is a term used for people who have committed an act in pursuance of a common intention, where each of the persons is liable in the same manner, as this act was done by them alone. The Indian Penal Code contains a few provisions laying down principles of joint and constructive liability in this behalf. Amongst these Sections 34 and 149 present constantly recurring problems in the m atter of interpretation of the language used in those sections.
Section 34 IPC:
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 all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Ingredients of Section 34:
- Criminal act done by several persons
- The act is done in furtherance to common intention
- The nature of participation is irrelevant.
Common Intention:
Intention means guilty mind, ‘purpose of desire to bring about a contemplated result or foresight that certain consequences will follow from the conduct of the person.’ When two or more persons share this guilty desire it is common intention. The term ‘common intention’ means a prior concert, i.e. a meeting of minds and involvement of all group members in the execution of that plan. The acts performed by each participant may vary in personality but must be carried out with the same common intention.
If A, B and C make a plan to kill D and in the execution of the crime, A buys a poison, B mixes it in food and C gives it to D as a result of which D dies, it would be unjust to hold only C liable for murder. To deal with such cases, criminal law has provisions for joint liability or group liability or vicarious liability. As a result of this law, a person becomes vicariously liable for the result of the action of the group of which he is a member.
Characteristics of Common Intention:
- Common intention is different from same or similar intention
- It should be Prior or Antecedent to the Occurrence
- It may develop during the course of the occurrence and could develop on the spot
- It is different from same or similar Intention
Common intention denotes the meeting of mind of the persons accused of an offence. This requires prior concert. It can also develop on the spot after the offenders have gathered there.
In Surendra Chauhan v. State of Madhya Pradesh, AIR 2000 SC 1436 case, a doctor was neither competent to terminate pregnancy nor had the approval of the government. His clinic lacked the basic instruments necessary for the purpose. The victim was taken to that clinic by a person for termination of the pregnancy of the victim and she died in the process. The doctor and the person who took her to the clinic were held liable for the death of the victim as the crime was committed in furtherance of the common intention. In this case, the two accused knew that the clinic did not have the facility for termination of pregnancy and the doctor did not have the competence to complete the procedure without hazard. Still, they concerted and carried on the termination of the pregnancy of the victim. Hence there was the common intention of the two accused to undertake a procedure illegally and in furtherance of their common intention, they subjected the victim to the abortion process as a result of which the victim dies. Hence there was a common intention, an act was done in furtherance of the common intention and each of the two accused participated in the criminal act. One brought the victim to the clinic and the other applied the procedure on the victim.
In Kripal Singh v. State of Uttar Pradesh, AIR 1954 SC 706 case, there was a dispute over land between the accused and the victim. One morning the three accused tried to stop labourers from working in the field which the labourers tried to resist. When the victim intervened two accused hit him with sharp weapons. The third accused stabbed the victim with a spear blade which struck the victim in the jaw. The victim died on the spot. The court held that the three accused were liable under s. 326 read with s. 34. However, the third accused alone was liable for murder. The common intention which developed on the spot was to attack the victim with sharp weapons. The other two accused did not intend to murder the victim.
In Barendra Kumar Ghose v King-Emperor, AIR 1924 Cal 545 case, four men attacked the office of the postmaster while he was counting money. Three of them entered the office and demanded the money. Thereafter they opened fire at the postmaster and fled with the money. Appellant who was one of the party was standing outside the office all this time. He was visible from inside and could see what was happening inside. The defence of the appellant was that he was frightened and he did not participate in the crime and was merely standing outside the office. Lord Summer observed: “the leading feature of s. 34 of the Indian Penal Code is ‘participation’ in action. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be in doing the act, not merely in its planning. A common intention–a meeting of minds–to commit an offence and participation in the commission of the offence in furtherance of that common intention invites the application of s. 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally the presence at the scene of the offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places.” The Court held that his participation was sufficient to make him vicariously liable for the actions of the other participants in the group. Whether the accused had participated or not has to be decided on the basis of facts surrounding the case.
In Jaikrishnadas Manohardas Desai v. The State of Bombay, AIR 1960 SC 833 case, J M Desai and his co-appellant were the Managing Director and a Director cum technical Expert respectively of a cloth dyeing company Parikh Dyeing and Printing Mills Ltd. The company entered into a contract with the Textile Commissioner undertaking to dye a large quantity of cloth which was supplied to the company for that purpose. In pursuance of the contract certain quantity of cloth was dyed and delivered to the Textile Commissioner by the company but it failed to dye and deliver the balance of cloth which remained in its possession and was not returned to the Textile Commissioner in spite of repeated demands. Ultimately the two appellants were prosecuted for criminal breach of trust under S. 409 read with S. 34 of the Indian Penal Code and were convicted for the same in a trial by jury. In appeal, the High Court found that the two appellants were liable to account for the cloth over which they had dominion, and having failed to do so each of them was guilty of the offence of criminal breach of trust. In this case, the Court observed: “The essence of liability under S. 34 of the Indian Penal Code is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The physical presence at the scene of the offence of the offender sought to be rendered liable under S. 34 is not, on the words of the statute, one of the conditions of its applicability in every case.”
Difference Between Common Intention and Same Intention:
Common intention is different from same or similar intention. ‘To constitute common intention it is necessary that the intention of each person be known to all the others and be shared by them.’
In Mahboob Shah v. Emperor, AIR 1945 PC 118 case, Allah Dad and few others were trying to collect reeds from the bank of the Indus river. They were warned by Mahboob Shah against collecting reed from lands belonging to him. Ignoring the warning the deceased collected reeds but was stopped by Qasim Shah, nephew of Mahboob Shah while he was placing them on the boat. Qasim Shah was hit by the victim by a bamboo pole. On hearing Qasim Shah’s cries for help, Mahboob Shah and his son Wali Shah came armed with their guns. Wali Shah fired at the victim who died instantly and Mahboob Shah fired at another person causing him some injuries. Lahore High Court sentenced Mahboob Shah with the murder of the victim under s. 302 read with s. 34. But on appeal Privy Council set aside the conviction for murder for Mahboob Shah stating that common intention required pre-arranged plan and it has to be proved that the criminal act was done in concert pursuant to a prearranged plan. Here the two accused might be having the same or similar intention but not the common intention and since the firing of Mahboob Shah did not kill anyone he was not held liable for murder by the application of s. 34.
Section 35 IPC:
When such an act is criminal by reason of its being done with a criminal knowledge or intention:
Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
Section 36 IPC:
Effect caused partly by act and partly by omission:
Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence. Illustration A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
Section 37 IPC:
Co-operation by doing one of several acts constituting an offence
When an 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 any other person, commits that offence.
Illustrations
A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate.
Section 38 IPC:
Persons concerned in criminal act may be guilty of different offences:
Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
Illustration:
A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide.
Section 149 IPC:
Every member of unlawful assembly guilty of offence committed in prosecution of common object:If 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 that offence.
Acts under Section 34 must be carried out with a single purpose, but criminal acts under Section 149 must be carried out with a common object. Section 34 requires active engagement, no matter how minor or inconsequential but Section 149, however, simply being a member of an unlawful assembly is enough to bring criminal charges.
in Amar Singh v. State of Haryana, AIR 1973 SC 2221 case, where the conviction for an offence under Section 302 read with Section 34, despite the fact that the accused was charged under Section 302 read with Section 149, was not illegal because the facts proved and evidence adduced would have been the same if the accused had been charged under Section 302 read with Section 34 of the Indian Penal Code, 1860.
In Barendra Kumar Ghosh v. Emperor, (1925) 27 BOMLR 148 case, the distinction between Sections 149 and 34, Penal Code was pointed out. It was observed that Section 149 postulated an assembly of five or more persons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. It was pointed out that there was a difference between common object and common intention; though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning.
In Nanak Chand v. State of Punjab, AIR 1955 SC 274 case, where the prosecution had argued that s. 149 does not create any offence and merely provides for constructive guilt similar to s. 34 of the IPC. Negating the contention of the prosecution, the Supreme Court stated that section 34 is merely explanatory and does not create any specific offence but same is not true about s. 149. The Court observed that the principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.’ There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence.
In Chikkarange Gowda And Ors. vs State Of Mysore, AIR 1956 SC 731 case, where a mob of about 100 persons rushed towards a house at noon where two brothers Putte Gowda and Nanje Gowda were found. The mob sprinkled kerosene oil on the roof and started burning the house. When the inmates of the house came out the two brothers were brutally assaulted and this resulted in their death. Four appellants were members of the mob. Appellant 1 had hit Putte Gowda on Abdomen with a cutting instrument, appellant 4 hit Putte Gowda on the knee with a chopper. Second appellant hit Nanje Gowda with a spear and third appellant hit Nanje Gowda on the head with axe. The appellants along with several others were charged under section 148, 302 and 302 with ss. 34 and 149 on the ground that the common object of the assembly was to kill Putte Gowda. However, it was found that the common object of the assembly was only chastisement of Putte Gowda. The question was whether four appellants can be held liable for separate common intention of causing death of Putte Gowda? The Supreme Court held that appellant 1 and 4 could not be held guilty of murder on the principle of joint liability under section 34 because they were not given any notice and reasonable opportunity to present their case on separate common intention of three persons of causing death of Putte Gowda and Nanje Gowda as separate from common object of the unlawful assembly which was chastisement only. Hence they had to be judged for their individual actions which went beyond the common object of the unlawful assembly. None of the injuries caused by the two appellants was fatal in nature. Hence they were held liable under ss. 326 and 148 IPC only. Appellant 2 was charged with causing spear wound to Nanje Gowda which was not found to exist in the medical evidence, hence he was also charged only under s. 148. Appellant 3 had hit Nanje Gowda on head with axe which was found to sufficient to cause death and hence he was held guilty under section 302 IPC.
Distinguish Between Common Intention and Common Object:
| Common Intention | Common Object |
| There is a pre-existing understanding and agreement between two or more individuals to commit a crime together. | Common object refers to the end result or the main purpose of committing the crime. It is the objective or goal that the accused had in mind when committing the crime |
| Common intention is established before the commission of the crime as pre-agreement for crime. | Common object is established during the commission of the crime as end goal of committing crime. |
| Common intention does not have to be the same as the actual intention of the accused due to pre-agreement. | Common object must be the same as the actual intention of the accused, as it refers to the objective or goal |
| Common intention can be inferred from the actions and statements of the accused | Common object must be proven through evidence, as it refers to the objective or goal of committing crime. |
| Common intention is often used in cases involving conspiracy and criminal breach of trust, as it refers to a pre-existing agreement between individuals to commit a crime. | Common object is often used in cases involving crimes such as murder, theft, and rioting, as it refers to the objective or goal of the crime that is being committed. |
| The punishment for common intention is the same as the punishment for the intended crime | The punishment for common object is the same as the punishment for the committed crime. |
Section 396 IPC:
Dacoity with murder:
If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.