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About the Author:Prof.(Dr.) Priya SepahaDirector, Law Colloquy,Author, Trainer, blogger, Youtuber
Criminal liability has been defined by lexicon dictionary as something wherein there are accountability and responsibility to another by the ways of legal criminal sanction. The term criminal responsibility refers to a person's ability to understand his or her conduct at the time a crime is committed. In other words, what a person is thinking when he commits a crime, or what result is anticipated or expected when a crime is committed. Laws define crimes in terms of an act or omission (actus reas) and a mental state (mens reas). Criminal responsibility relates to the mental state element of a crime.
The general rule of criminal liability is that it primarily attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. But according to Section 34 when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
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 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.
S.34 of I.P.C. deals with the doing of separate acts, similar or diverse, by several people if all are done in furtherance of common intention, each person is liable for the result of them all, as if he had done them himself.
Ingredient of Section 34:
The S.34 having the following major ingredients
1. Commission of a Criminal Act
According to the composition of this section, there is essential that a criminal act must be done. The criminal act is commonly known as that act which is prohibited by law and is carried out in violation of the limits prescribed by law is a criminal act.
2. Prior meeting of minds in furtherance of Common Intention:
The most important ingredient is a prior meeting of mind of all person involved in the act committed. It is essential that the act done by several persons should be in furtherance of the common intention of all the persons involved. It may be happened even at a single moment or during the commission of an offence. If it is proved that what the several accused did are clearly individual acts ‘done of their own accord rather than act done in furtherance of a prior meeting/pre-arranged plan or arrangement, the liability of each accused can be in respect of his own individual act and not under S. 34 I.P.C. To constitution common intention it is very necessary that the intention of each one of them be known to rest of them and shared by them.
3. Offence by several persons:
The criminal act must be done by several persons. Common intention is the prearranged plan of several persons. The S.34 is only applied when the accused is more than one.
4. Principle of joint liability:
Section 34 does not create any distinct offence but nearly lays down the principle of joint liability.
Common Intention and Similar Intention
Common intention does not mean the 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 offence. This section only applies with other penal sections which deal with the punishment of the offence.
In the case of Dukhmochan Pandey v. State of Bihar, the complainant had sent about 20 labours to his field for transplanting paddy. On the mid-day, the accused party came as a mob of about 200 people armed with various deadly weapons. They asked labourers to stop the work, and when the complainant objected to this, the two accused directed the mob to kill labourers. The mob started assaulted the labourers as a result of these two labours 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 haemorrhage 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 a 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 a miscarriage of justice….”
The mere presence of the 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 interpretations could be drawn to impose Joint Liability under section 34. These are –
To establish common intention premeditation of minds is necessary. There should be a prior meeting of minds which activated common intention and criminal act should have been done in furtherance of common intention.
There may be a situation in which premeditation was not present, but intention developed at the spur of the time, but it should be shared among one another.
To prove common intention is 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 the 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. 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 postmaster 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 a post office assistant. He was charged with others under s.302 (murder to postmaster) and s.394 (causing hurt in doing robbery) with s.34 in the 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 postmaster. 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. 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, the 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 a 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 the offence. 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 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 Tranquility 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. 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 rights 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.
Ingredients of Unlawful Assembly-
(i) Commission of an offence:
The first importance essential of this section is the commission of an offence by any member of an unlawful assembly. S. 149 can only be applied if a person of an unlawful assembly committed a crime.
(ii) five or more person member of unlawful assembly:
According to the essential of S. 149 offence must be committed by a five or more member of unlawful assembly. Here we understand the meaning of unlawful assembly which as under:
(a) According to Black’s Law Dictionary: ‘A meeting of three or more persons who intend either to commit a crime or to carry out some act, lawful and unlawful that will constitution a breach of the peace”.
(b) According to S.141 I.P.C.; According to that section, unlawful assembly means the assembly must consist of five or more persons having one of the five specified objects as their common object.
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 a 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, 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:
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 …..
or that the first information report and evidence show such to be the case even though the charge does not state so.
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”
(iii) In Prosecution of Common Object:
Some offences must be committed by any member of unlawful assembly in prosecution of the common object of that assembly. 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, behaviour 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 unlawful assembly unless they actively participated or encouraged the violence.
In Moti Das v. Bihar 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.
In Bhudeo Mandal v. State of Bihar, 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, there was a dispute over land and the complainant party resorted to cutting crop grown by the accused party. The later 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.
(iv) Knowledge of Happening of an Offence:
The member of an unlawful assembly is also liable where the offence was committed such as the member of the assembly knew to be likely to be committed in prosecution of that object.
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 an offence which the members of the assembly knew was likely to be committed. 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 the 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, 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 the 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.
S. 149 I P.C. deals with the doctrine of vicarious liability and recognize the doctrine of vicarious liability and recognize the principle of joint in the doing of a criminal act and is an exception to the general rule that a person is liable only for his own acts”. Once an assembly has become unlawful then all things done in the prosecution of the common unlawful object of that assembly are chargeable against every member thereof. The liability of every member extends not only to the acts intended by all to be done but also to those offences which are likely to be committed to achieving the common object.
Difference between Section 34 & 149:
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.
2. ‘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.
3. 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.
4. For invoking s.34 it is sufficient that two or more persons were involved.
However, there has to be a minimum of five persons to impose s.149.
5. The crucial factor of s.34 is ‘participation’
while there is no need of active participation in s.149 of IPC.