Common Intention- Criminal law deals with secondary liability in several ways. When more than one offender is/are engaged in an offence(s), the charge-sheet against them usually carries Section 34 along with other relevant charges. Section 34 of the Indian Penal Code, 1860 (IPC) has always been in controversy considering its frequent use and yet its inadequate interpretation.
Section 34 [1] of the IPC provides:
“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.”
When the IPC was enacted in 1860, this Section read as: “When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if it were done by him alone.” In 1870, after the Privy Council’s judgment in Ganesh Singh v. Ram Raja [2] in order to make the doctrine of joint liability more evident in the doing of a criminal act, the words “in furtherance of the common intention of all” were inserted.
Analysis- Common Intention
The plain reading of this provision indicates that certain essential elements are necessary for its application in a criminal act. Firstly, and evidently, the commission of a criminal act is the most significant ingredient. A criminal act does not mean “offence”, which is defined under Section 40 [3] of the IPC, but “offence” is the result of a criminal act. Section 32 [4] of the IPC states that words which refer to acts done extend also to illegal omissions, and Section 33 [5] states that the word ‘act’ denotes as well a series of acts as a single act and the word ‘omission’ denotes as well a series of omissions as a single omission. Having regard to these provisions, Section 34 of the IPC includes a series of acts and omissions within the ambit of the term ‘act’. Secondly, a criminal act essentially has to be committed by more than one person and such an act must be connected with their common intention. It is important that each of such persons is engaged in an act towards the achievement of a common goal, which means, each of such persons is divulged in the execution of a criminal act, whether big or small so that that act can be concluded into the intended offence. Thirdly, the term ‘in furtherance of common intention’ in the definition refers to advancement in the act towards common intention. For instance, A and B due to animosity kill C. A and B are guilty of C’s murder. Here, A and B carry the common intention of killing C. However, A on a grave and sudden provocation attacks C with an intention to kill C and B who has ill-will and no sudden provocation against C, assists A in killing C. Here A is guilty of culpable homicide not amounting to murder and B is guilty of murder. This is where Section 38 of the IPC comes into the picture, according to which, when several persons are engaged in the commission of a criminal act, they may be guilty of different offences by means of that act.
Evolution of Section 34 by the Judiciary
This provision, since its introduction in the IPC, has evolved due to the interpretations by the judiciary resulting into a mountain of precedents on it. One of the earliest landmark cases on this provision is King Emperor v. Barendra Kumar Ghosh [6]. In this case, a team of robbers entered the local post office and demanded money. On refusal, the other accused persons killed the sub-postmaster. Ghosh along with other accused persons was charged with Sections 302, 394, and 34 of the IPC. Ghosh took the defence that he was merely guarding the gate and his bullets did not kill anybody. The Privy Council dismissed the appeal holding that “criminal act” means 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 a criminal offence.
In Ibra Akanda v. Emperor [7], Lodge J. analysed certain views on Section 34 while pointing out the ambiguity in the provision. While one view emphasises that “common intention” in the provision includes mens rea to constitute an offence, and there is another view which states “common intention” in the provision does not mean mens rea is sine qua non for committing an offence, as every voluntary act is preceded by a resolution of the will to perform an act and “common intention” is such resolution formed by numerous persons to do the same act.
In Mahboob Shah v. Emperor[8], the Privy Council expressed the significance of the participation of a group in a criminal act while fixing joint liability and stated that “Common intention implies a pre-arranged programme or plan, previous meeting of minds and discussion in between all the persons forming the group.”
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In Kripal Singh v. State of U.P. [9], the Apex Court, while making an exception to the general rule, observed that common intention may develop on the spot as between a number of persons with reference to the act and conduct of the accused, and facts and circumstances of the case. The Supreme Court echoed a similar view in Amrik Singh v. State of Punjab [10], wherein the Court indicated that common intention may form during a fight and the same must be proved with substantial evidence.
The Supreme Court in Hari Shanker v. State of U.P. [11], overturned the decision of the Allahabad High Court which had acquitted three of the four accused of an offence under Section 302 read with Section 34 of the IPC and maintained the conviction of one accused under Section 302 read with Section 34 of the IPC. The Supreme Court held that since the acquittal of all other co-accused has become final, the conviction of the Appellant under Section 34 becomes unsustainable.
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One may ask, can a single person be convicted with the help of Section 34? This question was answered by the Supreme Court in Brathi v. State of Punjab [12], wherein out of the two accused who were charged with Section 302 read with Section 34 of the IPC, one accused was acquitted and the other was convicted. The acquittal of the former was never challenged by the State but the other accused challenged his conviction. The High Court altered his conviction to Section 302 read with Section 34 while observing that the Appellant could not have been convicted under Section 302 simpliciter as he had not inflicted the fatal blow. The Supreme Court upheld the decision of the High Court by observing that Section 34 can be invoked if the court is in a position to find that two or more persons were actually concerned in the criminal offence sharing a common object. Where the evidence examined by the Appellate Court unmistakenly proves that the Appellant was guilty under Section 34 having shared a common intention with the other accused who was acquitted and that the acquittal was bad, there is nothing to prevent the Appellate Court from expressing that view and giving the finding and determining the guilt of the Appellant before it on the basis of that finding.
Recently, In Jagan Gope v. State of West Bengal [13], the Calcutta High Court, while observing that common intention cannot be confused with a similar intention, held that the pre-requisites of pre-consent, presence and participation must be established, without which persons may have a similar intention but no common intention and they cannot be culpable for the crime committed by any of them in furtherance to such similar intention.
Section 34 is not a substantive offence and its application is explained by the Supreme Court in Virender v. State of Haryana [14], by holding that common intention denotes action in concert and a prior meeting of minds. The acts may differ in their character, but they all must be driven by the same common intention. The inference drawn from the proven facts and totality of the circumstances of each case assists in identifying the common intention.
Conclusion
Section 34 lays down the doctrine of general application when it comes to determining the exact role of the several accused in a joint criminal enterprise and to proving their individual responsibility for acts done in furtherance of common intention of all. Such common intention varies from ‘common object’. ‘Common intention’ includes a prior meeting of mind and unity of intention and the act has to be done in furtherance of common intention, whereas, ‘common object’ does not necessitate prior meeting of mind as, for instance, participants of an unlawful assembly may have the common object but their intention may be completely different. Moreover, every individual amongst several persons must have active participation in order to come within the purview of Section 34. On the other hand, active participation is may not always be seen when a criminal act is committed with a common object. The true essence of Section 34 of the IPC is a simultaneous meeting of the minds of the persons, who are the participants of a criminal act, to bring about a particular desired result. It is necessary that “several persons”, who share the common intention, are the active participants in a criminal act, with knowledge of the consequences of their criminal act. However, it is true that the phrase “in furtherance of common intention of all” still carries vagueness and has been an issue of controversy in a criminal trial in India.
Endnotes
- Indian Penal Code, 1860
- (1869) 3 Beng. L.R. (PC) 44,45
- Supra note 1, s.40
- Supra note 1, s.32
- Supra note 1, s. 33
- (1925) 27 BOMLR 148
- AIR 1944 Cal. 339
- AIR 1945 PC 118
- AIR 1954 SC 706
- 1971 CrLJ 465
- Criminal Appeal No. 2180 of 2009
- 1991 AIR 318; 1990 SCR Supl. (2) 503
- Criminal Appeal No. 389 of 2012; 2019 SCC OnLine Cal 5589
- (2020) 2 SCC 700