By Raghavendra Pratap Singh, National University of Advanced Legal Studies, Kochi
Editor’s Note: Section 34 of the Indian Penal Code deals with Common Intention. As per this provision, when a number of persons engaged in a criminal act with a common intention, each person is made liable as if he alone did the act.
Section 149 of the Indian Penal Code deals with Common Object. According to this provision, every member of an unlawful assembly is held liable for any criminal act done in furtherance of a common object.
This paper discusses these two provisions in detail and draws a correlation between them, with the help of several cases.”
Criminal Intention is the highest form of blameworthiness of mind or mens rea. Intention occupies a symbolic place in criminal law. As the highest form of the mental element, it applies to murder and the gravest form of crimes in the criminal justice system. The term ‘intention’ is not defined in Indian Penal Code but section 34 of IPC deals with common intention. The intention made among several people to do something wrong and act done in that manner in which it was formulated comes under the sanction of Section 34 of IPC.
Section 34 deals with a situation, where an offence requires a particular criminal intention or knowledge and is committed by several persons. Each of them who join the act with such knowledge or intention is liable in the same way as if it were done by him alone with that intention or knowledge. The liability of individuals under this circumstance is called Joint Liability. The principle of Joint Liability defined in section 34 is as follows:
Section 34. Acts done by several persons in furtherance of common intention – When a criminal act is done by several persons in furtherance of 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.
In this article the act is referred, which is defined under article 33 as:
Section 33. ‘Act’, ‘Omission’. – the word ‘act’ denotes as well a series of acts as a single act: the word ‘omission’ denotes as well a series of omissions as a single omission.
It is clear from s.34 and s.33 that the term criminal act refers to more than a single act and would cover an entire series of acts.
Section 34 to section 38 in chapter II of IPC dealing with ‘General Explanation’ state the conditions in which a person may be held constructively liable for the acts committed by the other members of group.
The chapter VIII of Indian Penal Code refers to ‘Offences against the Public Tranquillity’ from section 141 to section 160. Offences against public tranquillity also known as ‘Group Offences’ and lead to disturbance of public peace. S.141 defines ‘Unlawful Assembly’ for which there should be five or more persons, and the object should be common to all. If five or more persons are doing wrong act with common objective then liability on each person will be same as it is done by him alone. This liability on each person is called ‘Group Liability’. Section 149 of IPC imposes group liability on each and every members of assembly and defined as follows:
Section 149. 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.
To impose this section under group liability there should be an unlawful assembly, which is defined under s.141. And the offence should be committed in prosecution of common object.
Common intention implies a pre arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act, which need not be a long gap. To bring this section into effect a pre-concert is not necessarily be proved, but it may well develop on the spot as between a number of persons and could be inferred from facts and circumstances of each case.
In Amrik Singh’s Case[i] it has been further held that though the common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. In the case Pandurang v. State of Hyderabad[ii], Supreme court emphasized on this point that prior concert need not be something always very much prior to the incident, but could well be something that may develop on the spot, on the spur of the moment. In this case Ramchander Shelke (deceased) with his wife’s sister went to the field. While Ramchander went to the river side the five persons including three appellant (Pandurang, Tukia, and Bhilia ) attacked him.
According to eyewitnesses, Pandurang, Tukia, and Bhilia were holding axes and other two accused Tukaram and Nilia had stuck in their hands. The deceased died on the spot. In this case, different eyewitnesses told a different story. The trial court convicted each of accused of charge S.302 with S. 34 and sentenced to death. Appeal lied in High court and conviction of Pandurang, Tukia, Bhilia was maintained but other two accused person sentence was commuted to transportation for life. When the matter came up to the Supreme Court, the learned judge said that each is liable for their own act. The Apex Court set aside the death sentence of Pandurang and convicted him instead under S.326, and sentenced for 10 years rigorous imprisonment. The Supreme Court altered the sentence of Tukia and Bhilia to transportation for life. The Supreme Court elaborated in this case that:
“In a case like that, each would be individually liable for whatever injury he caused but none would be vicariously convicted for the acts of any of the others; if the prosecution cannot prove that his separate blow was a fatal one, he cannot be convicted of the murder, however clearly an intention to kill could be proved in this case….”
The essence of liability to be found in the existence of common intention is that the criminal act complained against was done by one of the accused persons in furtherance of common intention of all, if this is shown, then the liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.[iii]
In the case of Mahboob Shah v. Emperor[iv], the appellant Mahboob Shah was of age 19 and was convicted by Session Judge of the charge s.302 with s.34 for the murder of Allah Dad. The Session court sentenced him for death. The High Court of Judicature also confirmed the death sentence. On appeal before Lordship, the conviction for murder and sentence of death was quashed. It was contended before appellant that – “when Allah Dad and Hamidullah tried to run away, Wali Shah and Mahboob Shah Came in front of them… and fired shots” and so there was evidence of forming common intention at the spur of the moment. Their Lordship was not satisfied upon this view and humbly advised His Majesty that the appellant has succeeded in his appeal, his appeal should be allowed and his conviction for murder and the sentence of death set aside.
Common Intention and Similar Intention
Common intention does not mean similar intention of several persons. To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them. This section 34 is only a rule of evidence and does not create a substantive offense. This section only applies with other penal sections which deal with the punishment of the offense.
In the case of Dukhmochan Pandey v. State of Bihar[v], the complainant had sent about 20 labors to his field for transplanting paddy. On midday, the accused party came as a mob of about 200 people armed with various deadly weapons. They asked laborers to stop the work, and when the complainant objected to this, the two accused directed the mob to kill laborers. The mob started assaulted the laborers as a result of these two labors died. When the police party reached, the mob fled from the spot. The death was established to have caused by injuries inflicted by shock and hemorrhage caused by injuries inflicted with sharp pointed weapons.
The Supreme Court, in this case, held that: “Common intention which developed at the spur of the moment is different from the similar intention actuated a number of person at the same time….the distinction between a common intention and similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice….”
The mere presence of accused together is not sufficient to hold that they shared the common intention to commit the offence in question. It is necessary that the intention of each one of ‘several persons’ be known to each other for constituting common intention.
From the various interpretations of Apex Court and guideline given in different cases, some inferences could be drawn to impose Joint Liability under section 34. These are –
- To establish common intention premeditation of minds is necessary. There should be prior meeting of minds which activated common intention and criminal act should have been done in furtherance of common intention.
- There may be situation in which premeditation was not present, but intention developed at the spur of the time, but it should must been shared among one another.
- To prove common intention is a very hard, because it is the mental thinking of the accused at that point of time. So it has to be culled out from the facts and circumstances of each case.
- There is a difference between common intention and similar intention, and s.34 can be invoked only when the accused shares common intention and not one the similar intention.
- Unless the common intention is proved, individual will be liable for his own act and not otherwise. They will be deal as under s.38 of IPC. And if there is any doubt, the benefit of doubt should be given to the accused.
One of the earliest cases came before the court under s.34 under the principle of Joint Liability was Barendra Kumar Ghosh v. King Emperor[vi]. This case is also known as the ‘Post Master Case’. In this case, the accused Barendra with other three persons went to Shankaritola post office at about 3.30 pm on the 3rd August 1923 armed with firearms. The accused stood outside the post office while the other three entered the post office through the backdoor of office. They asked post master Amrita Lal Roy to give the money which he was counting. When he refused, then others three opened fire from the pistol and fled from the place.
As a result of which he died almost immediately. Seeing others running the accused also ran away by air firing with his pistol. But he was chased and caught by the post office assistant. He was charged with others under s.302 (murder to post master) and s.394 (causing hurt in doing robbery) with S.34 in common intention of all. He contended that he was only standing guard outside the post office and he did not have the intention to kill the post master. Calcutta High Court confirmed his conviction of murder under S.302 with S.34. In the appeal before the Privy Council, Lord Sumner dismissed the appeal against the conviction and held that – “criminal acts means that unity of criminal behaviour which results in something for which an individual would be responsible, if it were all done by himself alone, that is, in criminal offence.”
The other important case came before the Supreme Court was Rangaswami v. State of Tamil Nadu[vii]. The occurrence took place at about 11.45 pm on 16.08.1973 in Big Bazar Street, in which one Jayaram was murdered. In this case, session court convicted A-1 under s. 302 and sentenced him to death. A-2 and A-3 were charged under S. 307 with S.34, and sentenced rigorous imprisonment of 8 years by session judge. While the High Court considering the fact altered the decision of session court and enhanced the sentence of A-2 and A-3 to imprisonment for life under s. 302 with s.34. And the death sentence of A-1 was modified for imprisonment for life.
Against this conviction, A-3 appealed in Supreme Court and contended that he was only in friendly relation with A-1 and A-2 but he did not share common intention with them. It was by mere chance that he appeared at the spot of occurrence and he did not participate in offense. In this case, there was a prior enmity between deceased and A-1 and A-2, because the deceased was accused of murdering the brother of A-1, and he was actually on the bail. Supreme Court held that even though the presence of A-3 was established but he did not share common intention and he was unfamiliar with the plan. Therefore he was acquitted all of the charges.
The other case before Supreme Court was Muthu Naicker and others v. State of Tamil Nadu[viii]. The dispute arose among the village community of Karpakkam village when accused no. A-11 Kuppu Naicker who has a well in land bearing Survey No. 102, wanted to lay a pipe-line to take water to the field bearing No. 186/2 belonging to his wife, Dhanammal. There was another well sunk by the local Panchayat in Survey No. 170 for the use of the village community and when A-11 wanted to take water from his well in Survey No. 102, an apprehension was entertained by the residents of the village that there would not be enough water in the well in Survey No. 170 and there would be water shortage.
Gripped by this apprehension, a majority of the village community resisted the attempt of A-11 to take water by laying pipelines. Some villagers approached the collector on March 6, 1967, the collector suspended the permission granted to A-11 to lay the pipelines. A-11 and his companions ignored the order of collector and continued the digging of the channel. The matter arose on 27 November 1968 at around 2.30 pm when deceased Gajarajan brother of P.W. 31 was returning from Madras by bus, a crowd of 50-60 persons including A-1 to A-23 and A-28 attempted to waylay the deceased. Deceased tried to escape but was chased by them and encircled by the crowd near a well and was attacked. After completing the investigation police submitted challan against 28 accused for various offences.
The learned session judge giving the benefit of reasonable doubt rejected the prosecution case and acquitted all the accused. The state of Tamil Nadu preferred an appeal in High Court of Madras against A-1 to A-27. While the acquittal of A-28 was considered as final. The High Court convicted A-1 to A-7 and A-19 for charge under S.302 with S.34 and sentenced them for life imprisonment. They preferred a criminal appeal in the Supreme Court. The conviction of accused A-1, A-2, A-4, A-5 under S.302 with S.34 was confirmed and sentenced to life imprisonment.
While the conviction of A-3, A-6, A-7, A-19 under this charge of S.302 was set aside and were charged with others under Hurt and Grievous Hurt differently. Supreme Court held that in a local community when something unusual occurs, a good number of people appear on the scene not with a view to participating in occurrence but as curious spectators. In such event, mere presence in the unlawful assembly should not be treated that person concerned was a member of unlawful assembly.
The offence dealing with Group Liability or Vicarious Liability of members comes under Chapter VIII of the Indian Penal Code. This chapter deals with offences against Public Tranquillity from s.141 to s.160. The first section of this chapter s.141 defines Unlawful Assembly, for which there should be five or more persons and some common objects for which they have made that assembly. Section 141 is:
Section 141. Unlawful assembly —
An assembly of five or more persons is designated an “unlawful assembly“, if the common object of the persons composing that assembly is—
First – To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
Second – To resist the execution of any law, or of any legal process; or
Third – To commit any mischief or criminal trespass, or other offence; or
Fourth – By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth – By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation – An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
From this section we can say that, to constitute an unlawful assembly the following ingredients is necessary –
- There should be an assembly of five or more persons.
- There must be a common object for them.
- Common object must be one of the five ingredients, specified in the above section.
When the number of the persons reduces from five for trial for the reason that some were acquitted for the charges then the s. 141 will become inapplicable. But if there is clear indication that some other unidentified persons are involved in the crime then this section can be applied. In Ram Bilas Singh v. State of Bihar[ix], Supreme Court held that:
“it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if: (i) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act …..(ii) or that the first information report and evidence shows such to be the case even though the charge does not state so. (iii) or that though the charge and prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons”
The other ingredient of this section is a common object. Object means the purpose, and it will be common when it is shared by the members of the unlawful assembly. A common object may be formed at any stage by all or a few members of the assembly. The explanation of this section shows it clearly. However common object is entertained in the human mind so there can be no evidence to prove directly about this.
It is a question of the fact and can be culled out on the basis of facts and circumstances of each case. It can be determined from the nature of the assembly, the kinds of arms and their uses by it, behavior and the language of the members of the assembly used before and after the incident. If only four out of the five assembled person have a common object and not fifth, then that assembly is not an unlawful assembly. Simple onlooker or family of the parties cannot become a member of the unlawful assembly unless they actively participated or encouraged the violence.
In Moti Das v. Bihar[x], the Supreme Court held that pre-concert is not necessary. An assembly may be lawful in beginning but may turn into unlawful later.
Being a member of Unlawful assembly is itself a crime and s.143 prescribes the punishment of six months, or fine, or both for being a member of that assembly.
The section which imposes the liability on each person of the offense committed by the members of the assembly is section 149 of IPC. Section 149 of IPC is:
Section 149. 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.
In Bhudeo Mandal v. State of Bihar[xi], the Apex Court held that before convicting any person with the aid of s.149, the evidence must clearly establish not only the common object, but also show that the common object was unlawful. In Ram Dhani v. State[xii], there was a dispute over land and the complainant party resorted to cutting crop grown by the accused party. The latter were more than five in number and assembled to prevent the cutting. The court held that – the persons acting in self-defence of the property cannot be members of an unlawful assembly. And so they could not be said to form an unlawful assembly.
The word ‘knew’ is used in the second part of the S. 149, which implies more than a possibility but less than might have known. An offence committed in prosecution of common object would generally be offence which the members of the assembly knew was likely to be committed[xiii]. This phrase means that the offence committed was immediately connected with the common object of the unlawful assembly, of which the accused were members. The word ‘in prosecution of common object’ means that the offence committed was immediately connected with the common object of the assembly or in order to attain a common object.
In Rambilas Singh and others v. State of Bihar[xiv], the case of the prosecution was that deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them plucking Khesari crops from his field. And so he abused them and snatched away the plucked plants and their baskets. In retaliation for it the 16 accused persons had lay in wait for him on that night and attacked him at about 9.30 P.M. when he was returning home with his brother PW-22 and two other witnesses PWs 1 and 18 after attending a barat.
PW-22 stated that 16 persons surrounded Kumar Gopal Singh and then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal Singh as a result of which he died. The Session Judge acquitted all the persons A-1 to A-15 who were charged under s.302 with s.149, but convicted A-16 (Dinesh Singh) who was charged directly under s.302. In High Court, A-1 and A-9 were acquitted while A-2 and A-6 died during the pendency of the appeal. The High Court convicted the rest of the accused A-3, A-4, A-5, A-7, A-8, A-10 to A-15.
On appeal, further Supreme Court set aside the conviction of accused by High Court under s.302 with s.149 and held that in order to convict persons vicariously under Section 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in the prosecution of the common object of the members of the unlawful assembly. In this case, such evidence is lacking and hence the appellants cannot be held liable for the individual act of Dinesh Singh.
In another case of Ram Bilas Singh v. State of Bihar[xv], the court held that an accused person cannot be held liable vicariously for the act of an acquitted person.
DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT
Both Section 34 and s.149 imposes vicarious liability on each person for acts not necessarily done by them. However, there is a difference in the scope and nature of operation of the two offences. The charge of s.149 is substituted by s.34 of IPC, especially when some accused are acquitted and number of the accused falls below five. In this case the court would have to carefully examine the evidence to see whether some element of common intention exists for which he can be made liable under s.34. The main differences between the two sections are as follows:
- Section 34 does not create any specific offence but only lays down the principle of joint criminal liability. Whereas s.149 creates specific offence and being a member of an unlawful assembly is itself a crime, which is punishable under s.143.
- ‘Common intention’ used in S.34 is not defined anywhere in IPC, while ‘common object’ in s.149 must be one of the five ingredients defined in S. 141 of IPC.
- Common intention requires a prior meeting of mind and unity of intention and overt act has been done in furtherance of the common intention of all. A common object may be formed without a prior meeting of mind when the common object of the members of the unlawful assembly is one but the intention of participants is different. It only requires that criminal act has been done in furtherance of the common object.
- For invoking S.34 it is sufficient that two or more persons were involved. However, there have to be a minimum of five persons to impose S.149.
- The crucial factor of S.34 is ‘participation’ while there is no need of active participation in S.149 of IPC.
PROPOSALS FOR REFORM
The Fifth Law Commission of India[xvi] in its report proposed suggestions for reform of s.34 to clear ambiguity. It proposed that for better understanding the phrase ‘several persons’ be substituted by ‘two or more persons’.
Fifth Law Commission[xvii]also proposed to substitute the Third object of s.141 ‘to commit any mischief or criminal trespass, or other offence’ with ‘to commit any offence punishable with imprisonment’ to clear ambiguity.
Fixing vicarious liability under s.34 or s.149 depends on their method adopted to furnish the crime. There are two sections dealing with ‘common intention’ and ‘common object’ under two chapters of IPC ‘General Explanation’ and ‘Of Offences Against Public Tranquillity’ respectively. Sometimes there arises difficulty in proving with evidence that whether they shared common intention or not. And also how many people were the members of Unlawful Assembly with their common object same. However, these ambiguities were removed by the Supreme Court in different cases, after determining its facts and situation of each case.
To clear and better understanding, Law Commission of India also gave many suggestions to Legislature for amendment of some part of the statute.
Even after so much effort, there arise problems of which law will be applicable amongst the two in some crucial cases, and investigators and charge sheet filers make mistakes in this regard.
Formatted on March 21st, 2019.
- P S A Pillai’s – CRIMINAL LAW – 11th Edition
- Ratanlal & Dhirajlal – THE INDIAN PENAL CODE – 33rd Edition
- Criminal Law: Cases and Materials – Sixth Edition – K D Gaur
- indiankanoon.org – (CASES)
Edited by Sinjini Majumdar
[i] Amrik Singh v. State of Punjab 1972
[ii] AIR 1954 SC 706
[iii] Mahboob Shah v. Emperor (1945) 47 Com LR 941
[v] AIR 1998 SC 40
[vi] AIR 1925 PC 1
[vii] AIR 1989 SC 1137 ; 1989 Supp (1) SCC 686
[viii] AIR 1978 SC 1647
[ix] 1964 Cr LJ 673 (SC)
[x] (1954) Cr LJ 1708 (SC)
[xi] AIR 1981 SC 1219
[xii] 1997 Cr LJ 2286
[xiii] Chanda v. State of U.P. AIR 2004 SC 2836 ; the expression ‘in prosecution of common object’ and the word ‘knew’ used in s. 149 were explained.
[xiv] AIR 1989 SC 1593
[xv] (1964) Cr LJ 673 (SC)
[xvi] Law Commission of India (Forty Second report: Indian Penal Code) 1971