“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale 69

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LAW RELATING TO JOINT OFFENDERS

(Common Intention) (Ss. 34 to 38)

QUESTION BANK

Q1. Explain and discuss fully the concept of common intention embodied in

the I.P.C.?

Q.2. What is common intention? Distinguish it from the common object?

SHORT NOTES

1. Common Intention,

State the difference between ‘common intention’ and ‘common object’.

SYNOPSIS

Introduction

II]

Principles governing joint Liability

Same Liability

Act done in furtherance of ‘common intention’ (S.34)

Distinction between “Common intention” S.34 and

“Common object” S.149, of I.P.C.: -

Effect caused partly by act and partly by omission (S.36)

Co-operation by doing one of several acts constituting an

offence (S.37)

Different liabilities

1) An act done with criminal knowledge or intention (S.35)

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‘Joint Offenders’

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Persons concerned in criminal acts may be guilty of

different offences (S. 38).

INTRODUCTION:-

When an offence is committed by one person only, no question comes as to

determining his guilt, but when it is committed by more persons than one, the

question arises as to how far each is liable to that offence. The question becomes

more difficult to answer when an offence does not consist of a single act or

omission but a series of acts and omissions performed by different persons in

concurrence (jointly) with others. They are called ‘joint offenders’; the procedure

determining their liability is laid down in Ss. 34 to 38.

In Mohd. Usman V/s State of Maharashtra

(A.I.R. 2011 S.C. (CRI) 214)

Supreme Court held the conviction of the accused and his sisters valid

under S.

34. The court observed that the deceased was a stout and healthy woman,

perhaps physically stronger than her husband, and it is obvious that accused No.

3 and 4, the sisters, have also helped in the deceased’s killing. The presence of

kerosene and blood stains on the sisters' skirts prove their involvement in the

offence of murder.

II]

PRINCIPLES GOVERNING JOINT LIABILITY:-

Same Liability:-

Act done in furtherance of ‘Common Intention’ (S. 34):-

When a criminal act is done by several persons in furtherance of the

common intention of all, each person is liable for that act in the same manner as

if he did it alone.

This rule, therefore, is also called the rule of ‘Constructive criminality,’ i.e.,

the liability of all for the act of one or some of them.

For the application of S. 34, the following elements are necessary-

Criminal act.

ii)

Done by several persons, that is to say, each one of them must be a

participant in some or other act connected with their common

intention.

iii)

In furtherance of common intention.

S. 34 attracts in the case when it is proved that the criminal act is done by

any one or some of the accused persons in furtherance of the common intention.

The ‘common intention’ means a prior concert or a pre-arranged plan for accused

persons to commit the offence. Such common intention should have been formed

before the commission of the crime, but it may have also developed at the time of

the actual commission of the crime.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale 71

In Sachin Jana V/s State of W.B.¹⁵

Held:- The true concept of the section is that if two or more persons intentionally do an act

jointly, the position in law is just the same as if each of them has committed it individually.

Acts done by them need not be the same or identically the same. S. 34 applies even if no

injury is caused by the particular accused himself.

Suppose A, B, C, and D all joined in committing ‘Z’s murder; A alone has

murdered Z. A, B, C, and D are all guilty of murder.¹¹.

In Barendra Kumar Ghosh V/s Emperor¹²

Facts: - A gang of robbers killed a post-master by firing pistols at him and fled

away. One of them was found with a pistol in his hand. In a murder trial, he

contended that he was standing outside and had not fired at the deceased. He was

compelled to join the others for the alleged robbery and had no intention to kill the

post-master.

Held: The post-master was killed in furtherance of the common intention of

all other dacoits, and therefore, the accused was guilty of murder whether he fired

the fatal shot or not.

The distinction between “Common Intention” under S.34 and

“Common Object” under S.149 ¹³of I.P.C:-

S.34 explains “common intention” and S.149 “common object”.

Both these sections relate to vicarious liability and sometimes overlap each

other.

However, there are the following points of difference between the two, viz-

a) Specific Offence:-

S.34 does not by itself create any specific offence, whereas S.149 creates a

specific offence.

¹⁵2008 All MR 1177 (SC)

In Giriraj Shankar V/s. State of U.P (AIR 2004 SCW 810)

Supreme Court observed that- “the true concept of S. 34 is that if two or more persons intentionally do an act jointly, the position in law is just

the same as if each of them has done it individually by himself. The provision of S. 34 is intended to meet a case in which it may be difficult to

distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to provide exactly which part

was taken by each of them.”

Reg. V/s. Cruse 1838

Facts: - A constable and his assistants went to arrest at a house in which there were many persons. B, C, D and others came from the house,

pushed and moved the constable and his assistants off and one of them gave blow to them.

Held: - Each of their party was equally responsible for the blow whether he actually struck it or not.

¹²1925. Calcutta High Court.

¹³S. 149, provides that ‘every member of unlawful assembly is guilty of an 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, which is known likely to be

committed in prosecution of that common object, every person who, at the time of committing of that offence is a member of the same assembly

is guilty of that offence.

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‘Joint Offenders’

Prof. Santosh D. Bhosale 72

Active Participation:-

Some active participation, especially in a crime involving physical violence,

is necessary under S.34. But S.149 does not require ‘active participation’,

and the liability arises by reason of mere membership of an unlawful

assembly.

Scope:-

S.149 contemplates a common object which is undoubtedly wider in its scope

and amplitude than ‘common intention’ under S.34.

Minimum Number of Persons

S.34 does not fix a minimum number of people to form ‘common intention’,

whereas S.149 requires that there must be at least five persons to form

‘common object’.

The distinction between S.34 and 120 A¹⁴:-

There is not much difference between “conspiracy”, as defined in S.120 A,

and “in furtherance of the common intention of all” in S. 34. The parties to an

agreement are guilty of “criminal conspiracy’ even though the conspired act is not

committed; mere an agreement to break the law brings the case under the offence

of ‘criminal conspiracy’ whereas, the commission of a criminal act is the gist of

the offence under S.34.

Effects Caused Partly by Act and Partly by Omission (S. 36):-

When an offence is an effect partly of an act of commission and partly of an

act of omission, it is the same offence.

Illustration

‘A’ intentionally causes ‘Z’s death, partly by illegally omitting to give him food

and partly by causing physical hurt, i.e., by beating Z, A has committed murder.

3) Co-operation by Doing One of Several Acts Constituting an Offence

(S.37):-

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 persons, commits that offence.

Illustration

‘A’ and ‘B’ are joint jailors and, as such, have the charge of Z, a prisoner,

alternatively for six hours at a time. A and B, intending to cause Z’s death,

knowingly cooperate in causing that effect (i.e., death) by illegally omitting (each

¹⁴S. 120 A:- Definition of criminal conspiracy “When two or more persons agree to do, or cause to be done. (i) an illegal act or, (ii) an act which

is not illegal, by illegal mens, such an agreement is designated a criminal conspiracy provided that no agreement except an agreement to commit

an offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or more parties to such agreement in pursuance

thereof.

Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

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‘Joint Offenders’

Prof. Santosh D. Bhosale 73

during the time of this attendance) to furnish Z with food (supplied to them for that

purpose). Z dies of hunger. Both A and B are guilty of murder.¹⁵.

Different Liabilities: -

An Act Done with Criminal Knowledge or Intention (S.35):-

S.35 is complementary to S. 34 because it supplements the principle of joint

liability embodied in S.34. S.35 states that when an act is criminal because it is

done with a criminal intention or knowledge, each of such persons who join in the

act with the same knowledge or intention is responsible for the act in the same

manner as if it were done by him alone.

In other words, the measure of liability is dependent upon the basis of

intention or knowledge of the accused, e.g., A and B beat C, in consequence of

which C dies. It is proved from the nature of injuries inflicted by A that he intended

to kill C since A had inflected a fatal knife blow in ‘C’s abdomen. Whereas B only

intended to cause simple hurt in as much as B has inflicted slight injuries in C’s

legs and arms accordingly. A would be liable for causing the murder of C, whereas

B for causing simple hurt only.

The difference between S.34 and S. 35 is that S.34 deals with cases where a

criminal act is done by participation in intention, whereas S.35 deals with cases

where a criminal act is done by reason of participation in action.

Persons Concerned in Criminal Acts may be Guilty of Different

Offences (S. 38):-

Where several persons are engaged or concerned in the commission of the

criminal act, they may be guilty of different offences using their act.

Thus, unlike S. 34, S.38 deals with cases where the act is done with different

intentions.

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 of culpable homicide.

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¹⁵Illustration. (c) to S 37