Legal Provisions Regarding “Common Intention” in India – Section 34 to 38 of IPC

Sec. 35. 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.

Sec. 36. 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.

Sec. 37. 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) 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.

(b) A and B are joint jailors, and as such, have the charge of Z, a prisoner, alternately for six hours at a time. A and B intending to cause Z’s death, knowingly co-operate in causing the effect by illegally omitting, each during the time of his attendance to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.

(c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death, illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death.

A is dismissed from his office, and B succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z with food, knowing that he is likely thereby to cause Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate with B, A is guilty only of an attempt to commit murder.

Sec. 38. 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 for culpable homicide.

Important Points:

A. Scope:

Sections 34 to 38 are inter-woven which explain the principle of joint liability in doing of a criminal act with common intention. Out of them, Sec. 34 explains about joint liability including common intention.

Sec. 34 does not create distinctive substantive offence. In fact, it is only a rule of evidence.

B. Furtherance of a common intention:

Sec. 34 deals with the doing of separate acts, similar or distinct acts by several persons. If the criminal act is done in furtherance of a common intention, each person is liable for the result of such act.

Once it is proved that a criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone.

Sec. 34 is mainly intended to meet a case in which it may be difficult to distinguish between the 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. According to this principle participation is established, Sec. 34 is at once attracted.

C. Tunnu vs. State of Orissa (1988 CRLJ 524 Ori.):

In this case, four persons attacked the deceased with a pre-arranged plan on a public road. Four other persons blacked the road so that the criminal action should be completed successfully.

The police prosecuted the actual offenders who attacked the deceased and also the persons who did not participate in the actual assault but facilitated it by blacking the road.

The Orissa High Court held that the persons facilitated by blacking the road were also having the criminal liability because they shared common intention to cause the death of the deceased.

Hence the High Court upheld the conviction against the persons who directly attacked the deceased and also the persons who did not participate in the actual assault, but facilitated it by blacking the road sharing the common intention under Section 34.

D. Mahaboob Shah vs. Emperor (AIR 1945 PC 118)

Brief Facts:

Allah Dad, the deceased, along some others, went to collect the reeds in a boat. Before they entered the bank of River Indus, Mahaboob. Shah A-1 (F/o of A-2) saw them and warned not to cut the reeds as the land belonged to him. The deceased did not hear his words and had cut 16 bundles of reed and loaded it in the boat.

Ghulam Quasim Shah (Accused No. 3), relative of other accused, saw it and obstructed, and also beat the deceased. In turn, Allah Dad also beat A-3. A-1 & A-2 saw it. Wali Shah-A-4 (brother of A-1) came there along with a gun. He fired at Allah Dad, who died on the spot.

Wali Shah absconded. The Accused 2 & 3 was punished with transportation for life and with rigorous imprisonment for five years and Mahboob Shah-A-1 was sentenced to death by Sessions Judge. On appeal, the Lahore High Court set aside the punishment of A-2, and confirmed the conviction of A-1 and A-3. Accused-1 appealed.

Judgment:

The Privy Council set aside the death sentence passed against the appellant and held that the trial Court was not rightly convicted the accused/appellant under Sec. 302 read with Sec. 34.

Principles:—

1. Common intention under Sec. 34 must be a pre-arranged plan. Criminal act must be in accordance with that plan. Same intention is not common intention.

2. Privy Council observed:

“Common intention within the meaning of Sec, 34 implies pre-arranged plan to convict the accused of an offence applying Sec. 34, it should be proved that the criminal act was done in concert pursuant of the pre-arranged plan. It is no doubt difficult. If not possible to produce direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse the same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless the distinction is real and substantial, and if over looked will result in miscarriage of justice. The inference of common intention within the meaning of the term Sec. 34 should unless it is a necessary inference deducible from the circumstance of the case.”

E. Barendra Kumar Ghosh vs. King Emperor (AIR 1925 PC 1)

Brief Facts: On 3-8-1923, the Sub-Postmaster at Sankaritolla Post Office was counting money at his table in the back room. All of a sudden several persons attacked to rob him. Three persons fired pistols. Postman died on the spot. The staff and the people gathered around the Post Office.

Except the accused Barendra Kumar Ghosh, remaining persons run away and absconded. The staff caught the accused. The State filed criminal case against the accused under Sections 302, 394 read with 34.

The accused stated that he did not fire. The trial Court imposed death sentence. The High Court also confirmed it. He appealed to the Privy Council.

Judgment:

The Privy Council dismissed the appeal, and held that there was a clear distinction between abetment and common intention. It reversed the Judgment of the trial Court and the High Court.

Principles:

The Privy Council observed: “There is a difference between common object and common intention for though the object of an unlawful assembly is common the intention of the several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of Sec. 34, is replaced in Sec. 149 by membership of the assembly at the time of the committing of the offence.

Both Sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but Sec. 149 cannot at any rate relegate Sec. 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not itself deserving of separate treatment at all.”

F. Willie (William) Slanley vs. State of M.P. (AIR 1956 SC 116)

[Refer to brief facts and principles in Topic “Culpable Homicide and Murder”.]

G. Kirpal and others vs. State of U.P. (AIR 1954 SC 706)

Brief Facts:

There was a rivalry between two groups of the appellants and the deceased. Both of them belonged to one ancestor. Disputes arose between them regarding the partition of the properties. They were the residents of Kakrala (V) of Khatavli (PS.), Muzaffaranagar District of U.P.

Two labourers Man Singh and Sher Singh were passing from the fields of Bhopal and Sheoraj at 7.00 AM on 16-05-1949. Bhopal, Sheoraj and Kirpal (Cousin of Bhopal and Sheoraj) appellants/accused saw the labourers and asked them where they were going.

Labourers told that they were going to work at the fields of Jairaj (the deceased). The accused threatened not to work for Jairaj. The labourer preceded 30 or 40 paces. The accused ran and stopped them and beat with their hands. Meanwhile Jairaj came there and asked the accused why they were beating his labour. The accused turned and attacked Jairaj.

Sheoraj hit him on legs with his lathi. Jairaj fell down. Kripal stabbed him with his spear near the ear Bhopal then stabbed him with his spear on the left jaw, he then put his leg on Jairaj’s chest and extracted the’ spear blade from Jairaj’s jaw. Just as the blade came off, Jairaj died.

Another labourer Ramachandra saw it and began to run towards the village. The accused chased him. While chasing him, they came to Milakwala well, where they found Indraj (brother of Jairaj). They attacked Indraj and killed him too.

The Police prosecuted the three appellants along with ten others under Sec. 302 IPC. The three accused contended that they only fought against the deceased and ten others to defend themselves, and those ten others were impleaded as co-accused by the police.

The Session Judge, Muzaffarnagar acquitted the ten co-accused of all the charges. He also acquitted the three appellants from the charge under Sec. 302, but convicted them under Sections 304 (Part-1), 323 IPC read with Sec. 34. is The State appealed to the High Court.

The High Court set aside the decision of Session Judge under Sec. 302 and convicted them accordingly.

Judgment:

On appeal the Supreme Court gave the Judgment that the acts of Sheoraj and Kirpal did not cause serious injuries. It means they did not want to cause the death of Jairaj. As per the medical report and evidence of the eye-witnesses, it is the cause of death of Jairaj by the spear of Bhopal. Hence there was no common intention between the three.

There was common intention in them to beat the labourers, but not Jairaj. Therefore, all the accused would be guilty in respect of their assault on Jairaj under Sec. 326 IPC. Bhopal alone would be guilty of offence under Sec. 302. Kirpal and Sheoraj would be guilty of the offence under Sec. 326 IPC.

Principles:

For the applicability of Sec. 34, a pre-condition in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstance of the situation.

Whether in a proved situation, all the individuals concerned therein have developed only simultaneously independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts.

H. Ramnath and others vs. State of M.P.

[Refer to Topic “Criminal Conspiracy” for brief facts and principles.]

I. Ponduranga and others vs. State of Hyderabad (AIR 1955 SC 216)

Brief Facts:

On 7-12-1950 at 3-0? clock Ramchandar Shelke went into his field along with his wife, sister and servant. While they were working, Ramchandar Shelke went to the neighbour’s field. While he was returning, the five accused wearing deadly weapons attacked him.

Ramchandar shouted, the His sister, wife, worker and some other neighbouring people rushed to the spot. Before all of them, the accused killed Ramchandar. On prosecution the accused were convicted under Sec. 302 read with Sec. 34. On appeal, the High Court confirmed the convictions. The appellants/accused appealed to the Supreme Court.

Judgment:

The Supreme Court altered the punishment from death sentence to transportation of life.

Principles:

The Supreme Court held: “In the case of Sec. 34, it is well established that a common intention pre-supposes prior contest. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all of them.

Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill and each man can individually inflict a separate fatal blow and yet none would have the common intention required by the Section because there was no prior meeting of minds to form a pre-arranged plan.

In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; if the prosecution cannot prove that his in separate blow was a fatal one he cannot be convicted of the murder clearly an intention to kill could be

proved in his case. The partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if over looked will result in miscarriage of justice.”

J. B.N. Srikanthaiah and others vs. The State of Mysore (AIR 1956 SC 672)

Brief Facts:

There were six accused in this case. They were prosecuted that they caused the murder of Anne Gowda by stabbing on 25-8-1952 at Mayasandra (v) in Magadi Taluk. The names of the accused were A-1 Sanjeeva Rao, A-2 B.N. Srikantaiah, A-3 Sidda, A-4 Kidaripathi, A-5 Hanumantha and A-6 Pujari Anantha. There were 24 injuries on the deceased and of the 21 were injuries on head, neck, shoulders, forearms, etc.

They were charged under Section 302 read with Section 109. All of them were charged with being members of an unlawful assembly, the common object of causing the death.

The trial Court convicted the accused No. 1 under Sec. 302 read with 109, and the remaining accused under Sec. 302, and sentenced them all to transportation for life.

On appeal, the High Court acquitted A-1, A-5 and A-6 opining the that there were no specific charges against them under Sec. 34 and the charge did not include “in furtherance of the common intention of all” and confirmed the sentence against A-2 to A-4.

Judgment:

The Supreme Court dismissed the appeals and opined that the common intention of the appellants was indicated by their conduct, the ferocity of the attack, the weapon used the situs of the injuries and their nature. The Supreme Court held that they were rightly convicted of murder as “sharers in the offence”.

Principles:—

1. Although there is a difference in common object and common intention they both deal with combination of persons who become punishable as sharers in an offence, and a charge under Sec. 149, Penal Code is no impediment to a conviction by the application of Sec. 34, if the evidence discloses the commission of the offence in furtherance of the common intention of all.

2. Sec. 34 is only a rule of evidence and does not create a substantive offence. It means, ‘ that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually.

K. Gurudatta Mai vs. State of U.P. (AIR 1965 SC 257)

Brief Facts:

There were two rival groups in the village Azadnagar. There was a dispute on the land situated in Plot No. 57. The appellants had cultivated the said land in the year 1960 and it was the time of harvesting. Both the groups planned to harvest the crop. Gurudatta Mai was the leader of one group.

Gurucharan Lai was the leader of the other group. On 10-4-1960, Gurucharan Lai, along with 25 others went to the Police Station and had reported that Plot No. 57 belonged to them and they were going to harvest it.

He also stated that he apprehended danger from the opposite group and needed Police Protection. S.I. sent two Constables. Gurucharan Lai engaged one photographer also, in case the opposite group would invade to photograph the incident. All of them reached the Plot No. 57 and began to harvest.

Gurudatta Mai came to know about it. One man of Gurudatta Mai’s party informed the Police Constables that the S.I. was calling them. The Police Constables left the place. Gurudattamal and his supporters reached the spot wearing deadly weapons. Then Gurudatta Mai asked Gurucharan to vacate the field. There was a hot discussion between them. Gurudatta Mai (Appellant-1) shot Gainda Mai to death;

Madanlal (Appellant-4) fired at Nanda Singh to death; Harbans Lai (Appellant-2) attacked Gurucharan Lai; Pyare Lai (Appellant-3) fired on Gurucharan Lai to death.

The accused pleaded that the deceased attacked their property with 25 persons wearing deadly weapons. They first asked them peacefully to vacate their land. Instead of heeding their words the deceased party attacked them. To protect themselves they fired at deceased.

The trial Court believed the version of the accused and acquitted them from the charges under Sec. 302. But it imposed punishment for having guns without licences under Sec. 19 of the Arms Act.

The State appealed to the High Court. The High Court upheld the trial Court’s judgment. The appellant filed appeal against the conviction under Sec. 19 of the Arms Act.

Judgment:

The Supreme Court pointed out that the appellants were not deserved for acquittal because there was a common intention and they fired guns with premeditation. They did more harm than was necessary for the purpose of private defence. The appellants fired at close range. It dismissed the appeal.

Principles:

1. Where several accused commit the murder of a person by doing an act or acts in furtherance of common intention they would not be liable for the said act or acts done in furtherance of the common intention only if they are able to establish that they had the right of private defence to voluntarily cause the death of the person.

2. Under Sec. 103 the right of private defence properly extends, under the restrictions mentioned in Sec. 99 thereof, to the voluntary causing of death, if the offence, the committing of which or attempting to commit which occasion the exercise of the right, falls in one of the categories mentioned therein.

Hence all the accused would be liable for murder if they are not able to establish that the offence which made them voluntarily cause death fell in one of the categories enumerated in the Section as all of them participated in the offence pursuant to the common intention to murder.

3. It is well settled that Sec. 34 does not create a distinct offence. It only lays down the principle of joint criminal liability. The necessary conditions for the application of Sec. 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention.

If these two ingredients are established, all the accused would be liable for the said offence, that is to say, if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder.

L. Paras Yadav and Others vs. the State of Bihar (1999 (1) Supreme Today 2)

[Refer to brief facts and judgment in the Topic “Culpable homicide and Murder”.]

M. Santosh Rani Jain and another vs. State of W.B. (1998 6 SCC 460)

Brief Facts:

Neelam married Veerendra Kumar Jain in May, 1980. Soon after their marriage, Neelam’s mother-in-law Santosh Rani Jain and her husband Veerendra Kumar Jain began torturing and harassing for more dowries. Neelam’s brother paid Rs. 22,000/- and some jewellery to them.

Still their thrust was not satisfied. On 7-9-1980 Santosh Rani Jain and Veerendra Kumar Jain beat severely Neelam to death. After the death of Neelam, they threw the body from the 11th floor, and later they lifted the dead body to the hospital stating that she committed suicide.

The police filed case under Sections 302 and 201 read with 34. The appellants/accused argued that Neelam committed suicide. The post mortem report proved that Neelam died before she was fallen on the ground and the circumstantial evidence proved also that her husband and in-laws harassed her cruelly.

The trial Court convicted the accused under Sections 302 and 201 read with 34. The High Court and Supreme Court upheld the trial Court’s conviction. The Supreme Court came to the conclusion that the death of Neelam was caused in furtherance of the common intention of the husband and the mother-in-law.

[This case-law can be referred to in Topics “Culpable Homicide and Murder”, “Dowry Death”, “Causing of Disappearance of Evidence” and “Cruelty by Husband and his relatives’”.]

N. Badruddin vs. State of U.P. (1998 (7) SCC 300)

The deceased was attacked with knife by Nizamuddin and caused the death. The eye-witnesses tried to intervene to protect the deceased. Badruddin and another appellant said that if the eye­witnesses should not reach between deceased and Nizamuddin they would face dire consequences.

They beat lathi blows against the eye-witnesses. The trial Court convicted Nizamuddin, Badruddin and another under Sec. 302 read with 34. On appeal the Supreme Court held that as there were no lathi injuries appeared on the body of the deceased, and as per the circumstantial evidence, there could be no common intention between the appellant and Nizamuddin to cause the death.

Causing the death was the intention of Nizamuddin. To protect Nizamuddin from bystanders so that they would not interfere in the quarrel between them was the intention of the two appellants.

The Supreme Court upheld the conviction under Sec. 302 against Nizamuddin but converted conviction of Badruddin and other appellant from Sec. 302/34 to under Sec. 323/34.