Introduction
The concept of criminal liability generally states that if any criminal act is done by a person then he is solely responsible for such activities and only he can be held guilty for the same. However, there are few provisions laid down under Indian Penal Code 1860 (hereinafter referred as IPC) embodying the principle of group liability (also termed as Joint liability, Constructive liability or vicarious liability) to determine the liability of each member of the group for the crime committed by the entire group or by any member thereof.
It refers to the liability of two or more persons for an offence. Where two or more persons are engaged in commission of an offence, if any one of them or more done an act which is prohibited by law, for benefit of all of them, each person engaged will be liable for that act in the manner as it is solely committed by him. This rule of criminal law is called as joint criminal liability.
Section 34 of the I.P.C.,1860
Where an act is done by the several persons in furtherance of common intention of all, each of them would be liable for that act in the same manner as it is done by him alone.
Essentials of the Section 34
In order to constitute joint criminal liability under section 34 following essentials must be fulfilled:
- Common Intention
- Several persons
- Criminal act
- Common Intention : The core of joint culpability under Section 34 of the IPC is the existence of a common purpose to commit a criminal act in pursuit of a common goal shared by all members of that group. The phrase “common intention” indicates a prior concert or meeting of minds, as well as the participation of all members of that group. The activities performed by various members of that group may range in degree and type, but they must all be motivated by the same common objective.
In the case of Birendra kumar ghosh V. King Emperor 1925(Postmaster case) is the landmark case of common intention, in this case, Barendra Kumar Ghosh with 3 other members went for post office robbery and demanded money, In the meantime, they open their firearms, killed the postmaster and start running but somehow Barendra Kumar Ghosh was caught with the gun in his hand and handover to the police.
Later on, he was tried with sec. 302/34 of the IPC, the session court and the High Court passed the death sentence. The accused denied his charge on the ground that he was simply standing outside the door and had not fired the deceased. The honorable court quoted that:
“They also serve who stand still and wait.”
Similar Intention and Common Intention:
A similar intention is not a common intention. To constitute the common intention the intention of each one of them must be known and share by them, but when the same intention isn’t to share with others it becomes the same intention and every person shall be individually liable of its offence rather than equally liable in case of common intention. Held in the case of Pandurang V. Hyderabad 1955,
The pre-arranged plan is the essence of this common intention
Mahbub Shah v. King- Emperor AIR 1945. But the pre-arranged plan may develop on spot between persons like in Dev Cyrus Colabawala v. the State of Maharashtra, in this case, it was held in Gang rape the intention doesn’t need to exist from the beginning.
In another case, Kirpal Singh V. State of U.P 1964, the court had observed, the common intention may develop on the spot.
ESSENTIALS FOR COMMON INTENTION
- There must be several people.
- The common intention between them.
- All the person should have participated.
The burden of proof shall lie on the prosecution
Difference between common intention and same Intention
In order to invoke Section 34 of the Indian Penal Code, there must be a single intention shared by everyone. The phrases ‘common intention’ and ‘same intention’ may seem similar, but they are not the same.
A common intention is a pre-arranged plan or previous meeting of minds before the act’s commitment. The term ‘common’ refers to anything that everyone has in the same proportion. It is typical for them to have a shared object, purpose, or objective.
Same intention, on the other hand, is not common intention because it does not entail a pre-planned meeting, sharing, or thinking.
For example, A is B’s office co-worker. Even though A is higher in seniority, B gets promoted. A and B are enemies. A intends to exact revenge on B. B, on the other hand, has responsibilities as the house’s oldest son. C, who is younger than B, was upset because his older brother B was promoted. A decides to murder B on his way home from work one day. C, the younger brother, also intends to murder B on his way home. A and C both catch and kill B at the same location. They’ve both killed B here. However, they do not have the same goal. They both wanted to assassinate B, but their methods were different, and their intentions were not the same. A and C are accountable for whatever conduct they perform but are not liable for the act of another.
COMMON OBJECTIVE
Chapter VIII of the IPC deals with the offence against public tranquillity. Which state from sec. 141-160. Sec. 149 of the IPC deals with the Common object as,
If an offence is committed by any member of an unlawful assembly in the prosecution of the common object of the assembly or such as the member 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.
The Supreme Court has held that this section doesn’t create a separate offence but only declares the Vicarious Liability of all the members of the unlawful assembly.
Constructive liability
Constructive liability is the advanced version or the further extension of the Joint liability. Where the offence is committed by any of the member of unlawful assembly in furtherance of the common object of that assembly each member of that assembly would be constructively liable for the act as if it is done by him, irrespective of the fact, if he is present at the time of commission of the act or not, mere membership is sufficient.
Section 149 of I.P.C.1860, states that If an offence is committed by any member of unlawful assembly in prosecution of 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 the member of the same assembly, is guilty of that offence.
Essentials of Section 149
- Offence should have been committed by the any member of unlawful assembly,
- It has been committed in pursuance of common object,
- Membership of the same assembly.
- Unlawful assembly:
Unlawful assembly is defined under Section 141 of I.P.C.1860, as the assembly of five or more persons, if the common object of the persons composing that assembly is unlawful. - Common object: As per the section 141 of I.P.C.1860, common object of the person composing an unlawful assembly must be:
- Mischief, Criminal trespass
- Show of criminal force or using criminal force to override government.
- Forcible possession or dispossession of the property
- Illegal compulsion
- Resisting execution of law
- Membership of the same assembly
Mere membership of the assembly at the time when such offence has been committed is sufficient to make a person constructively liable for the offence committed.
In the case Moti Das v. Bihar ( (1954) of An assembly which was not unlawful when it assembled may subsequently become unlawful, pre concert of minds not required.
Ram Bilas Singh vs State of Bihar 1964 If number of persons reduced to less than 5 in trial section 141 becomes inapplicable .But if there is an indication that some unidentified persons were involved in the crime then it can be applied.
