Law and You > Criminal Laws > Indian Penal Code > Criminal Act in Furtherance of Common Intention (S. 34 IPC)
A person is liable or responsible for a crime when he or she has acted with criminal intent, as opposed to acting accidentally or lacking the ability to act deliberately. 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 Section 34 of IPC dealing with acts done by several persons in furtherance of common intention and lays down the principle of joint liability or constructive criminality.
Concept of Common Intention:
Section 34 in The Indian Penal Code
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
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.
Prior Concert:
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 Suresh v. the State of U.P., (2001) 3 SCC 673 case, the Court observed: “There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of the commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. “
In Lallan Rai vs. the State of Bihar, (2003) 1 SCC 268 case, the victim along with three other persons was returning back to his village on the day of the Holi festival. 14 accused were sitting at the house of Rajendra Rai variously armed with weapons. At the instigation of Rajendra Rai, all accused persons encircled the victim and his companions and killed the victim. The defence unsuccessfully tried to plead that the accused should be tried for their individual actions. It could not be proved that 14 accused had assembled with the purpose to kill the victim because there was no evidence that they knew that he would be returning at that time through that path. It was found in trial that the plan to kill developed all of sudden. The Supreme Court applied s. 34 and held all the accused persons liable for common intention.
Nature of Participation:
The nature of participation is irrelevant.
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.”
In Krishnan v. State, (2003) 7 SCC 56 case, the victim was attacked by four accused. They attacked her and her brother armed with sharp weapons. Four accused gave blows at different parts of the body. One gave a blow on the right side of the head of the deceased with aruval. This injury proved to be fatal. Court held all the accused liable for murder under s. 302 read with s. 34. The Supreme Court observed that when several
persons participate in a criminal act with the common intention it is irrelevant what was the individual role of a participant. All would be held liable for the crime as if it was done by him alone. The Court further observed that as such no hard and fast rule can be laid down as to the applicability or non- applicability of Section 34. For applicability of the section it is not necessary that the acts of several persons charged with 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 to attract the provision.
In the State of Orissa v. Arjun Das Agarwal, (13 August 1999) case, some persons entered the hotel of the victim after 10 pm and picked up a quarrel with him. One of the accused stabbed him and others gave blows. The fifth accused, Arjun Das Aggarwal was standing outside the hotel on the road and instigating the other accused to finish the victim soon. Supreme Court held four accused liable under s. 302 read with s. 34 but did not hold Arjun Das Agarwal liable for murder because he neither went inside the hotel of the deceased nor took any part in the commission of the murder. He was only standing outside and instigating and there was no evidence to show that more blows were given to the victim due to the instigation of the respondent. This was a case where common intention had developed on the spot.
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.
In Shew Mongal Singh v. State of West Bengal, 1981 Cri LJ 84 case, the Court held that mere presence at the place of occurrence without active participation or the doing of some positive act, which would indicate the sharing of the common intention, would not make a person liable for the commission of an offence even with the aid of S.34 of the I.P.C.
Overall View of Courts on Section 34 of IPC:
In Suresh Sakharam Nangre vs the State of Maharashtra, (21 September 2012) 2012 (9) JT 116 case, after investigation, the police filed a charge sheet against 3 persons, namely, Kishore Mahadeo Lokhare, Shabbir Fariyad Khan and Suresh Sakharam Nangare for their involvement in the death of Sanjay Mahadeo Lokhare brother of accused no. 1 Kishore Mahadeo Lokhare. Additional Session Judge under Section 302 read with Section 34 of IPC and sentenced them to suffer rigorous imprisonment (RI) for life. Being aggrieved, Suresh Sakharam Nangare preferred Criminal Appeal before the High Court. The Division Bench of the High Court dismissed the appeal and confirmed the conviction and sentence passed by the Additional Sessions Judge, Greater Bombay. Aggrieved by the said judgment, the appellant had preferred appeal by way of special leave before the Supreme Court. The Court observed: “to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds.” And court set aside the ordes of lower courts.
In Goudappa v. the State of Karnataka, (2013) 3 SCC 675 case, the Court observed: “Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons if all are done in furtherance of common intention. In such a situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act share, that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.”
In Girija Shankar v. State of Uttar Pradesh, AIR 2004 SC 1808 case, the Court observed: “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 participation in action. The liability of one person for an offence committed by another in the course of a 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. 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 establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind 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 moment, but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. …… The Section does not say “the common intention of all”, nor does it say “and intention common to all”. Under the provisions of Section 34, the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law, it means that the accused is liable for the act which caused the death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.”
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.
Conclusion:
Once it is established that a crime has been committed in furtherance of the common intention of all the accused, it is irrelevant what was the nature of participation of particular accused. He would be liable for the crime as if he alone committed the crime. If two persons attack someone with the common intention to kill him they both would be liable for murder read with s. 34 even though death was caused by the wound given by one of them only.