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General principles of criminal liability: mens rea and actus reus, mens rea in statutory offences, Joint And Constructive Liability

Maintenance of peace and order is essential in any society for human beings to live peacefully and without fear of injury to their lives, limbs and property. This is possible only in States where the penal law is effective and strong enough to deal with the violators of law. In fact, the identity of a State depends on how effective it discharges its primary function of keeping peace in the land by maintaining law and order. People in a State can afford to be without a highly developed system of constitutional law, or property law, but they could ill afford to remain without a system of penal law.

This (Penal) is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy (Professor Wechsler).

Criminal law is a branch of public law. It authorizes the infliction of State punishment. In the criminal proceedings, State is a party as crime is not only a wrong against the individual but also against the whole society. Criminal law is confined within very narrow limits, and can be applied only to definite overt acts or omissions capable of being distinctly proved, which acts or omissions inflict definite evils. Crime is what the State has, by an act of the Legislature, definitely declared as punishable. In other words, there is no such thing as crime apart from legislative recognition thereof.

The criminal law of India is codified in the Penal Code, 1860, and in the Criminal Procedure Code, 1973. Whereas the Penal Code is the substantive law, the Criminal Procedure Code is the adjective or procedural law. The provisions of the Penal Code does not affect the provisions of any special or local law.

Though by virtue of Sec. 2 of the Penal Code every person is liable to punishment under the Penal Code, the criminal courts have no jurisdiction to try certain persons even if they have transgressed the provisions of the Code, viz. President and Governors, Foreign Sovereigns, Ambassadors, Diplomatic agents, Alien enemies, Foreign army and Warships. The word person includes a company or association. Thus, a corporation is liable to punishment under the Code. In criminal law, the principal or master can be held responsible for the acts of his agents or servants only where it is proved that he had instigated or otherwise abetted the acts of the person who actually committed the crime.

Concept and Definition of Crime

Since the dawn of human civilization, crime has been a baffling problem. There is hardly any society which is without the problem of crime. Violation of norms and rules do occur in a society. Durkheim in his book Crime as a Natural Phenomenon said:
A society composed of persons with angelic qualities would not be free from violations of the norms of that society.

The concept of crime is essentially concerned with the social order. A sense of mutual respect and trust for the rights of others regulates the conduct of the members of society inter se. Although most people believe in peace and harmony, yet there are a few who deviate from this normal behavioural pattern. This imposes an obligation on the State to maintain normalcy in society, which it performs through the instrumentality of law.

The Penal Code nowhere defines what a crime is. A crime can be said to be an act of commission or omission, contrary to law, tending to the prejudice of a community, for which punishment can be inflicted as the result of judicial proceedings taken in the name of the State. When a person commits a wrong, he is said to be liable for it. Criminal liability arises when a person commits an act which is criminal in nature. A criminal offence is only committed when an act, which is forbidden by law, is done voluntarily. It is only voluntary acts which amount to offences.

Actus Reas and Mens Rea

In law, crime consists of two elements - actus reus and mens rea. The former represents the physical aspect of crime and latter represents its mental aspects.

Actus reus has been defined as such result of human conduct as the law seeks to prevent. An act may be positive or negative (omission). Mens rea is a loose term of elastic signification and covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actual reus.

There might be actus without mens rea. Thus, for example, if an infant of 2 years while playing with a loaded pistol lets it go and kills another person, there is actus reus without mens rea. There might also be mens rea without actus reus. In ethics or religion an evil deed may be committed in mind and might constitute a wrong, even though it has not manifested itself in physical conduct.

It may further be noted that mens rea as such is not punishable. Thus if A has intention to kill B, A cannot be brought to the court on that ground; some act has to be done by A e.g., if A is discovered with a loaded gun in the compound of B, then A has done some act and he may be guilty. There are some exceptions to the general rule that intention as such is no crime, e.g. intention to commit some treason (crime against State) or conspiracy to commit a crime.

However, sometimes an act alone is sufficient to constitute a crime without the existence of mens rea. The guilty intent is not necessarily that of intending the very act or thing done or prohibited by law, but it must at least be the intention to do something wrong. Criminal intention is the purposive ness or design of committing an act forbidden by criminal law without just cause or excuse. An act is intentional when it is the outcome of the determination of the persons will and is foreseen and desired by the person.

Thus, mens rea requires both a will direct to a certain act and knowledge as to the consequences that will follow from a particular act.

English jurists give the name of mens rea to the volition which is the motive force behind the criminal act. Sometimes it is used to refer to a foresight of the consequences of the act and at other times to the act per se irrespective of its consequences.

In some cases it stands for a criminal intention of the deepest dye, such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences. In other cases it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences.

Thus, the mental elements of different crimes differ widely. Mens rea means in the case of murder, malice aforethought; in theft an intention to steal; and in rape, an intention to have forcible connection with a woman without her consent. In some cases, it denotes mere inattention e.g. in case of manslaughter by negligence.

How to establish mens rea - It is difficult to give a portrait of the accusers mind or intention at the given moment as intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors:
  1. Previous relation between the accused and the victim, any object of hostility between them.
  2. Existence of instigation i.e. whether accused was hired and what prompted him to commit crime.
  3. Whether the accused had something to gain out of the whole affair.
Thus, guilty intention is always preceded by a motive or real causal factors.

Actus non facit reum, nisi mens sit rea
The fundamental principle of penal liability is actus non facit reum, nisi mens sit rea, i.e., the act itself is not criminal unless accompanied by a guilty mind.
It may be noted that mens rea must extend to all the three parts of an act, viz.
  1. The physical doing or not doing,
  2. The circumstances, and
  3. The consequences. If the mens rea does not extend to any part of the act, there will be no guilty mind behind the act.

Thus, there are basically three factors of proving criminal liability:
  1. Origin in some mental or bodily activity,
  2. Its circumstances, and
  3. Its consequences.

Criminal liability has to be established by the proof of some act which is dangerous from the legal point of view and at the same time, the proof of actual damage which is commonly necessary in cases of civil liability is not required. Criminal liability is mainly penal (i.e. punishment is a predominant feature of criminal proceedings).

As far as measure of criminal liability is concerned, three factors are taken into account in determining the appropriate measure of punishment-
  1. Motive behind the crime,
  2. Magnitude of offence, and
  3. Character of offender
As intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors.

Mens rea (Guilty mind) and Motive (Why the act was done).
Motive is something which prompts a man to form an intention. In other words, it is ulterior intention; while intention is immediate mental condition. Intention relates to means whereas motive relates to the end. Motive though not a sine qua non for bringing the offence home to the accused, is relevant on the question of intention. Motive is basically a clue to the intention.

Where there is clear proof of motive for the crime, this lends additional support to the courts finding that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. There may be an offence without a motive in same way in which the strongest motive may not impel a person to commit an offence. It may be noted that purity of motive cannot absolve a person from criminal liability. Thus, if a person decides to kill his starving children because he feels that they will pass on to a better world, his motive is good but his intention is wrong.

Motive for an act cannot become a litmus test to determine the criminal characteristics. Where there is direct evidence against the accused, the motive becomes immaterial. But where there is circumstantial evidence, absence of motive is favourable to the accused. In criminal law, the general rule is that motive is irrelevant and only intention is relevant. However, the motive becomes relevant in certain cases.

In criminal attempts, it is the motive which makes the act wrongful though the act in itself may not be wrongful. Further, motive becomes relevant in cases where a particular intention forms a part of the definition of a criminal offence. In civil liability (e.g. defamation and malicious prosecution) motive assumes relevance.

Distinction Between Intention and Motive: intention differs from motive and law takes notice of intention only.
  1. There can be no crime of any nature without an evil mind. Every crime requires a mental element. Even in strict or absolute liability some mental element is required.
    Motive though not a sine qua non for bringing the offence home to the accused, is relevant on the question of intention. Motive is something which prompts a man to form an intention. Motive alone is of no moment in the absence of other incriminating circumstances. If evidences of murder are clinching and reliable, conviction can be based even if the motive is not established.
  2. Intention means, to have in mind a fixed purpose to reach a desired objective, so it indicates that a man is consciously shaping his conduct so as to bring about a certain event. Thus, intention is the purpose or design with which an act is done.

    Motive is the emotion which impels a man to do a particular act. But many a murders have been committed without any known or prominent motive.
  3. If intention is criminal, law provides punishment even though the act is done with the best of motive. In Emperor v. Raghu Nath Rai (1892) 15 All 22, a Hindu took away a calf from a Mohammedans house without his knowledge and consent in order to save it from slaughter. The accused was held guilty of theft and rioting although he acted with the best of motive to save the life of the sacred cow.
Motive is relevant only in ascertaining the guilt of the accused as it is directed to the ultimate end, good or bad, which a person hopes to secure. As such motive, object or design of a person should never be confused with his intention.

Distinction Between Knowledge and Intention
According to Sec. 39, IPC, A person is said to cause an effect voluntarily when he causes it by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. That means a man is presumed to intend the probable consequences of his acts. Sec. 39 takes into account not only intention, but also knowledge and reasonable grounds of belief.

Voluntarily causing an effect embraces:
  1. With intention to cause the effect,
  2. With the knowledge of likelihood of causing the effect, and
  3. Having reason to believe that effect is likely to be caused.
If the doer of an act knows or believes that dangerous result will emerge from his act, he will be said to have acted with the most direct intention to hurt. Knowledge means having mental cognition of a thing or it is the awareness or expectations of the consequences of an act. The main difference between knowledge and intention is that in the former the consequence is not desired whereas in the latter it is desired.

Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself (Kesar Singh v. State of Haryana (2008) 15 SCC 753).

Illustration:
A sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery and thus causes the death of a person. Here, A may not have intended to cause death, but he knew that death was a probable consequence.

Dishonestly and Fraudulently
Dishonestly, according to Sec. 24 means, Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another is said to do that thing dishonestly.

According to Sec. 23, a person is said to gain wrongfully when he either retains or acquires property wrongfully. Similarly, losing wrongfully means that the person is either wrongfully kept out of any property or is deprived of property. The gain or loss must be material and not remote.

Thus, if a creditor in order to compel his debtor to discharge the debt takes his goods without his consent, he will be guilty of theft for causing wrongful loss to the debtor (Queen -Empress v. Chum Chunga ILR (1845) 22 Cal 1017), According to Sec. 25, A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. No definition of fraud has been given in the IPC.

The words with intent to defraud indicate not a bare intent to deceive but an intent to cause a person to act (or omit to act), as a result of deception played upon him, to his disadvantage and the words intent to defraud are not synonymous with the words intent to deceive and require some action resulting in some disadvantage which but for the deception, the person deceived would have avoided.

According to Sir J.D. Mayne:
of course there can be no intention to defraud where no wrongful result was intended or could have arisen from the act of accused.

According to Sir James Stephen, a particular conclusive test as to the fraudulent character of a deception for criminal purposes is this: Did the author of the deceit derive any advantage from it which he could not have had if that truth been known? If so, it is hardly possible that advantage should not have had an equivalent in loss or risk of loss, to someone else, and if so, there was fraud.

In a case, a person obtained admission to the matriculation examination as a private candidate producing before the Registrar a certificate purporting to have been signed by the headmaster of a recognised High School that he was of good character and had attained the age of 20 years. It was found that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery, as the accused intended to derive an advantage from his deceit and an injury must result to the University and through it to the public from his act (Kotamaraju Venkatarayddu v. Emperor ILR 28 Mad 90).

In another case, the accused purchased a motor car with her own money in the name of her minor daughter by signing the minors name and also received compensation for the claims made by her in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in the claim forms and also in the receipt her minor daughters name. It was held that the entire transaction was that of the accused and it was only put through in the name of her minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term.

The accused had not acted fraudulently (Simla (Dr.) v. Delhi Admn. AIR 1963 SC 1572).
The Apex Court observed:
To summarise: the expression defraud involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss i.e. deprivation of property (movable or immovable), or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or nonpecuniary loss.

A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

Difference between Fraudulently and Dishonestly
Both terms are not synonymous and denote two different things. A dishonest act is not necessarily fraudulent.

The difference between the two was pointed out in Queen v. Abbas Ali (ELR (189893) 25 Cal 512) by a full Bench of the Calcutta High Court. In this case, the accused had forged a certificate in order to qualify himself for the examination of Engine Driver. It was observed that fraudulently does not cover the same ground and that intention to defraud does not necessarily involve deprivation of property.

Similarly, the Patna High Court observed that, if there is an intention by the deceit practised to cause wrongful loss that is dishonestly, but even in the absence of such an intention, if deceitful act wilfully exposes anyone to risk of loss, there is fraud (Sukbamoy Maitra v. R. AIR 1938 Pat 165).

For example, in Queen-Empress v. Soshi Bhusan (ILR (1891-93) 15 All 210), the accused applied for admission to LL.B (Final) class in Benaras Hindu University alleging that he had attended LL.B (Previous) class in Lucknow Canning College. He was admitted and required to produce a certificate in support of proof of having passed LL.B (Previous) exam. He produced a forged certificate and it was held that he acted fraudulently.

Similarly, a person acts fraudulently, if not dishonesty, when he lawfully entided to possess arms and ammunition signs the prescribed certificate of purchase of the same in the name of another and with an address not his own (P.C. Causley v. R. ILR (1916) 43 Cal 42).


Shamshul Huda had differentiated between fraudulently and dishonestly thus:
  1. Fraud involves deception necessarily while dishonesty does not.
  2. Dishonestly necessarily involves the idea of injury to property as well as injury of every other kind i.e. injury to body, mind or reputation.
  3. A dishonest intention is intention to cause loss of specified property belonging to a particular person. Fraudulently on the other hand may refer to injury in respect of unspecified property, to unknown and unascertained persons.
    To this, the following may be added:
  4. Wrongful gain or wrongful loss of property is necessary for dishonesty but not for fraud.
  5. An act may be dishonest and yet not fraudulent. In other words, a dishonest act is not necessarily a fraudulent act.
It may be noted that the word fraudulently has been used in the IPC at many places but the words fraudulently and dishonestly have jointly been used in Secs. 209, 246, 247, 415, 421,422, 423,424, 464, 471 and 496 of IPC.

Mens rea when Not Essential: Strict Liability
Although mens rea is a sacrosanct principle of criminal law, it can be waived in certain circumstances. The following are the exceptional cases in which mens rea is not required in criminal law:
Mens rea is not essential in respect of five offences in I.P.C., namely:
  • Sec. 121 (waging war),
  • Sec. 124 A (sedition),
  • Secs. 359 and 363 (kidnapping and abduction), and
  • Sec. 232 (counterfeiting coins).
Thus, where the accused is charged with kidnapping a minor girl, his plea that he honestly believed that the girl was not minor was not accepted by the court. Similarly, a person who attempts to pass a counterfeit currency note or in whose possession such notes were found, should not be permitted to raise plea that he was not aware of notes being counterfeit, unless the person is an ignorant and illiterate villager.

Where a statute imposes strict liability, the presence or absence of a guilty mind is irrelevant. Several modem statutes passed in the interests of public safety and social welfare impose such strict liability, e.g. The Motor Vehicles Act; The Arms Act; Narcotic Drugs and Psychotropic Substances Act, 1985; The Public Liability Insurance Act, 1991; etc. Similarly, in other statutory offences like bribing, smuggling, Forex violations, sale of adulterated articles, etc., the guilty mind is not taken into account by the courts.

The underlying principle of justification for such statutory offences is pointed out by Roscoe Pound: Statutory crimes express the needs of society. Such statutes are not meant to punish vicious will, but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health, safety or morals.

The underlying principle of justification for such statutory offences is pointed out by Roscoe Pound: Statutory crimes express the needs of society. Such statutes are not meant to punish vicious will, but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health, safety or morals.

When it is difficult to prove mens rea, where the penalties are petty fines and where a statute has done away with the necessity of mens rea on the basis of expediency, strict liability in criminal law may be imposed, e.g. parking offences.

Public nuisance is another exception to the doctrine of mens rea.
Another exception that might be mentioned here is related to the maxim Ignorance of the law is no excuse. If a person violates a law without the knowledge of the law, it cannot be said that he has intentionally violated the law, though he has intentionally committed an act which is prohibited by law.

In Halsbury Laws of England it is stated that if a statutory crime is silent with regard to mens rea, there is a presumption that mens rea is essential. The presumption can be rebutted either by terms of statute or by the subject matter with which it deals.

It is of utmost importance for the protection of liberty of a subject that the court should always bear in mind that unless a statute rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law, unless he has a guilty mind.

In other words, absolute liability is not to be presumed but ought to be established or found out by referring to the object and subject matter of statute (Brend v. Wood, 1946 J.P. 316; Hariprasad Rao v. State AIR 1951 SC 204).

In State of Maharashtra v. M. H. George (AIR 1965 SC 722), it was held: Merely because a statute deals with a grave social evil is not sufficient to infer strict liability, it must also be seen that whether imposition of strict liability would assist in the enforcement of regulations. Unless this is so, there is no reason in penalising him and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.

In this case, RBI placed some restrictions on the entry of gold into India, thus superseding its earlier notification. The accused reached Bombay (on the way to Manila), where the gold bars were recovered from his jacket. The accused pleaded that he had no mens rea and that he had no knowledge of the RBI notification. After considering the object and subject matter of statute (FERA, 1947), their Lordship held that there was no scope for the invocation of the doctrine of mens rea in this particular case. The very object and the purpose of the Act would be frustrated if the accused should be proved to have knowledge that he was contravening the law, before he could be held to have contravened (as per Majority opinion; the Minority opinion (J. Subha Rao) was that the object would not be defeated).

In Nathulal v. State (AIR 1966 SC 43), it was held that object of statute would not be defeated by reading mens rea into the provisions of the Essential Commodities Act, 1955. The appellant, a dealer in food grains had made an application for a licence but no intimation was given to him that his application was rejected. He purchased food grains from time to time and submitted returns to the licence department. One day, a food inspector checked his godowns and found food grains stored without any licence. The conviction of the accused was set aside as he had no mens rea.

The Supreme Court held: There is a presumption that mens rea is an essential ingredient in every criminal offence; but this may be rebutted by the express words of a statute creating the offence or by necessary implication. However, mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law.

The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and provisions thereof. Thus, the general rule that there must be a mind at fault before there can be a crime, is not an inflexible rule.

In conclusion, it can be said that the ultimate factor which the court keep in mind while judging the exclusion of mens rea is a balance between individual liberty and public order. According to Sir J. Stephens, the doctrine of mens rea is misleading as the doctrine originated when criminal law practically dealt with offences which were not defined. Today, however, each crime has a precise definition.

As far as offences under the Indian Penal Code are concerned, every offence is defined and the definition states not only what the accused must have done, but the state of his mind with regard to the act when he was doing it. For example, theft must be committed dishonestly, cheating must be committed fraudulently, murder must be committed either intentionally or knowingly, and so on. Thus, there is no room for the general doctrine of mens rea in the Indian Penal Code. Each definition of the offence is self-sufficient.

All that the prosecution has to do, in India, is to prove that a particular act committed by the accused answers the various ingredients of the offence in the particular section of the I.P.C.

Joint And Constructive Liability
The law relating to joint liability is contained in Secs. 34-38, IPC. There are three more sections in the Code which deal with joint or constructive liability, viz. Sec. 149 (Unlawful assembly), Sec. 396 (Dacoity with murder), and Sec. 460 (House-breaking by night with murder or grievous hurt).

The joint or group liability is also called constructive liability, i.e. liability of all for the acts of one or some of them. Suppose A, B, C, and D join to commit Zs murder. If they merely join, and do nothing else, they would be guilty of the offence of criminal conspiracy even though nobody is murdered. But if A alone commits that murder, law will fix on all of them constructive liability for the act of A.

Constructive liability in criminal law means the liability of a person for an offence which he has not actually committed. This must not, however, be confused with vicarious liability, which is the liability one incurs for the acts of a servant or an agent during the course of the service. Here, unlike the constructive liability, neither the common intention nor the common object need be proved. Vicarious liability in criminal law is an exception rather than a rule. But, constructive liability in criminal law is a well-recognized principle.

A mortal stroke, though given by one of the party, is deemed in the eyes of the law to have been given by every individual abetting. The person actually giving the stroke is no more than the hand or instrument by which the other strike. The principle of vicarious/ joint liability is stated in Sections 34 and 149 of the Indian Penal Code, 1860.

The underlying principle is not a well-recognized canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose; as the purpose is common so must be the responsibility.

Section 34: Common Intention
Sections 34-38 lay down the following four important principles governing joint offenders, i.e. persons who join together to commit a crime:
  1. Act done by several persons in furtherance of common intention (Sec. 34).
  2. Act done with criminal knowledge or intention (Secs. 35&36).
  3. Co-operation in acts constituting an offence (Sec. 37).
  4. Persons concerned in criminal act may be guilty of different offences (Sec. 38).
Section 34 says: 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 in the same manner as if it is done by him alone.

Sec. 34 is framed to meet cases in which it may be difficult to distinguish between the acts of individual members of a party, or to prove exactly what part played by each of them (R. v Cruse, 1838). If the intention or purpose is common, so must be the responsibility. Thus, the common belief that more the people, less the guilt has in law, no application to the act or commission of a crime. Sec. 34, thus, discourages group criminals.

Sec. 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 is done by him alone.

Sec. 34 is an instance of what is called constructive criminality, i.e., liability of all for the acts of one or some of them. Sec. 149 also deals with constructive criminality.

Principle - Sec. 34 is an interpretative provision and embodies the principle that if two or more persons intend to do a thing jointly, it is just the same as if each of them had done it individually. If the intention or purpose is common, so must be the responsibility.

Sec. 34 is a rule of evidence and does not create a substantive offence; its object is to find out the acts committed by individual members or to find out what part was taken by each of them in furtherance of common intention of all.

Rationale - The common belief that more the people, less the guilt has in law, no application to the act or commission of a crime. Gravity of a crime cannot be diluted because it is committed by several persons, nor can the quantum of liability be redistributed among the doers because it is very difficult to pinpoint the separate participation of each. If the law allows such distribution of liability, no one would get the punishment intended by the law. And, it would encourage group criminals.

Sec. 34 is framed to meet cases in which it may be difficult to distinguish between the acts of individual members of a party, or to prove exactly what part played by each of them. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing the act.

Essential Ingredients of Sec. 34
Before a person can be held liable for the acts of another person under Sec. 34, two points have to be established, viz.-
  1. That there was common intention, in the sense of a pre-arranged plan, between the two, and
  2. That the person sought to be made liable had, in some way participated in the act.
Common intention and participation, both are necessary for the application of Sec. 34. Common intention necessarily implies a pre-arranged plan or prior concert or prior meeting of minds. Thus, there is a sharing of purpose which is lacking in a case where several persons have the same/similar intention (Pandurang v. State of Hyderabad AIR 1955 SC 216; Mahboob Shah v. Emperor, 1945).

It may be noted that common intention can be formed at the spur of the moment; but the plan must precede the act constituting the offence. Thus, where during a fight a person calls the bystanders to help him kill a person and they join him; there is then necessary meeting of minds or formation of a pre-arranged plan though hastily formed (Krishna Govind v. State of Maharashtra AIR 1963 SC 1413).

To participate means to take part, and part in an act may be taken by doing something which advances or helps the common cause or achievement. Besides pre-planning, what is required is an element of physical presence at the scene of occurrence coupled with actual participation which can be of passive character (such as standing by the door). The emphasis in Sec. 34 is on the word done - it is essential that they join in the actual doing of the act and not merely in planning its preparation (Ramaya v. State of Bombay (1954) 57 Bom LR 632 (SC)).

The use of words in furtherance of common intention suggests that Sec. 34 is applicable also where the act actually done is not exactly the act jointly intended by the conspirators to be done. The common intention can be to do an act, and another act can be done in furtherance of the common intention (e.g. a preliminary act or a necessary act after achieving the common intention). Thus, the shooting of a wrong man or the Sentry could be said to be in furtherance of common intention (Shankar Lai v. State of Gujarat AIR 1965 SC 1260). However, the act should not be extraneous (outside) of the common intention, or is done in opposition to it.

Common intention is a question of fact.
Although it is subjective, it can be inferred from the facts and circumstances. Thus, mere presence at the scene of the crime may not always amount to participation in the crime. Likewise, where the accused ran away with his companion (on the latters bicycle) it could not be said that they participated in the act together and had a common intention (Malkhan Singh v. State of UP. AIR 1975 SC 12).

Besides pre-planning, actual participation in the crime is necessary to make case of joint liability. It has been held that participation does not mean participation in the actual doing or commission of a crime, if a person is directing entire operation from some distance, he would be deemed to be participating in the crime (J.M. Desai v. State of Bombay AIR 1960 SC 889; Tukaram v. State of Maharashtra AIR 1979 SC 185). This is the case when the offence consists of diverse acts which may be done at different times and places. It may be noted that participation may be in a passive way (viz. standing by the door).

Secs. 141-149: Unlawful Assembly and Common Object
According to Sec. 141, an assembly of 5 or more persons is designated as unlawful assembly, if the common object of the persons comprising that assembly is to overawe by criminal force the Government or Legislature or a public servant, or to resist the execution of any law or legal process, or to commit any mischief, criminal trespass or other offence, or to take forcibly possession of any property, or to deprive any person of the enjoyment of incorporeal right (right of way or use of water), or to enforce any right or supposed right, or to compel any person to do what he is not legally bound to do, etc. The use of the criminal force or the show of criminal force is necessary.

Explanation to Sec. 141 lays down that an assembly which was not unlawful when it assembled may subsequently become unlawful. It may be noted that a lawful assembly does not become an unlawful one because of its refusal to obey an order to disperse.

Sec. 142 lays down that whoever being aware of facts which render any assembly an unlawful assembly, intentionally joins it or continues in it is said to be a member of such assembly.
The object of this section is to prevent resort to criminal force by five or more persons to do any of the acts set out in this section. As regards the offence of unlawful assembly, the following points may be noted:
  1. The assembly must consist of five or more persons.
  2. An assembly which is not unlawful in its inception does not become an unlawful assembly because of its refusal to obey an order to disperse. Moreover, it does not become unlawful by reason of its lawful acts exciting others to do unlawful acts.
  3. At the same time, an assembly which is lawful in its inception may become unlawful by subsequent acts of its members. But an illegal act of one or two members, not acquiesced in by the others, does not change the character of the assembly (Mod Das v. State of Bihar AIR 1954 SC 657).
  4. When two factions fight, the members do not become members of an unlawful assembly, because they have no common object. An offence under Sec. 141 cannot be said to be committed when two opposite factions commit a riot and fight, as it cannot be said that both the parties had any common object.

Allauddin Mian v. State of Bihar (AIR 1989 SC 1456) - Where common object of the unlawful assembly was to kill A and it was not necessary to kill B and C who were not any hindrance to the accused Nos. 1 and 2 in accomplishing their common object, it was held that accused Nos. 3 to 6 could not be convicted for the injuries caused to B and C by accused Nos. 1 and 2, with the aid of Sec. 149.

Soofi Abdul Mazid v. State (1989 Cr LJ NOC 134) - Where an assembly was formed to take forcible possession of mosque properties and one of the members of the assembly without provocation or instigation by any other member committed murder, the other members of the assembly could not be convicted of the offence of murder.

Muhu Naicker v. State (AIR 1978 SC 1647) - Where a large crowd collected all of whom were not shown to be sharing the common object of the unlawful assembly, a stray assault by any one accused on any particular witness could not be said to be an assault in prosecution of the common object of the unlawful assembly, so that the remaining accused could be imputed the knowledge that such an offence was likely to be committed in prosecution of common object of the assembly.

Section 149 says: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that 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 committing of that offence, is a member of the same assembly, is guilty of that offence. Thus, Sec. 149 is another instance of constructive liability.

The following important points may be noted:
  1. Common object does not require prior concert (pre-arranged plan) and common meeting of minds before the attack; an unlawful common object may develop at the spot after the assembly gathers. It is enough if it is adopted by all members i.e. they concur in it.
  2. Each of the members of the unlawful assembly, irrespective of the participation in the commission of the act, is liable for the act as if he actually participated in committing it.
  3. The phrase in prosecution of the common object means that the offence committed was immediately connected with the common object. But, the words do not mean during the prosecution of the common object. Thus, if an unlawful assembly goes with the common object of theft, and there unknown to others, a member rapes someone, the offence of rape cannot be attributed to all five. Similar is the case when one of the members murders a peaceful intervener; the others cannot be liable.
  4. Where the common object to commit an offence was different from the offence which was actually committed, the member not actually committing the offence will be liable for that offence only if he knew (beforehand) that such offence was likely to be committed in the course of the prosecution of the common object (Mizaji v. State of U.P. AIR 1959 SC 572).
  5. The expression know does not mean a mere possibility, such as might or might not happen; it imports a high degree of probability. It indicates a state of mind at the time of the commission of the offence and not the knowledge acquired in the light of subsequent events. Thus, in case of free fight, Sec. 149 could not be invoked. When two opposite factions commit a riot and fight, it cannot be said that both the parties had any common object.
  6. Once the common object ceases to exist, Sec. 149 cannot apply. Thus, where a wounded man had ceased to be member of the unlawful assembly when he retired wounded, he cannot be made liable for the subsequent murder under Sec. 149.
  7. The court could charge, try and convict less than 5 persons under Sec. 149 provided it comes to the conclusion that 5 or more persons participated in the incident, and some of them could not be identified (Maina Singh v. State of Rajasthan AIR 1976 SC 1084).
However, where six persons were charged under Sec. 302/149; two were acquitted, the remaining four cannot be convicted under Sec. 149 (provided it is proved that there were no other persons identified or identifiable).

Thus, an unlawful assembly should consist of 5 or more named persons, unless there is evidence of participation by other persons not identified or identifiable. Where out of the five accused, four were acquitted, the remaining fifth accused would be responsible for the offence committed by him personally without regard to the participation of others. Sec. 34 or Sec. 149 could not be invoked in such a case.

Distinction between Sec. 34 and Sec. 149

The two sections have a certain resemblance and may to an extent overlap (both sections deal with constructive criminality). However, there are certain differences between the two, viz:
  1. Sec. 34 is a rule of evidence and enunciates the principle of joint liability, but does not create an offence. Sec. 149 creates a specific substantive offence.
  2. Under Sec. 34, the number of persons is immaterial. Under Sec. 149, five (or more) persons should have entertained the common object.
  3. Common intention under Sec. 34 is different from common object under Sec. 149. The former necessarily postulates a pre-arranged plan, while the latter not. Further, a mere membership of an unlawful assembly (under Sec. 149) is enough and it is not necessary that one should have participated in the commission of the act. This is not so under Sec. 34. Even knowledge on the part of a member of unlawful assembly will be enough under Sec. 149.

    Common object, thus, is wider in scope and amplitude than common intention. The object of an unlawful assembly might be common, but the intention of the several members might differ. Thus, where the accused came armed with deadly weapons, it is reasonable to infer that they knew death was likely to be caused in the prosecution of common object. But, a common intention to kill could not be inferred.
  4. The common object of the unlawful assembly must be one of the objects mentioned in Sec. 141, the common intention may be any intention, for the purpose of Sec. 34.
  5. Under Sec. 34, some active participation is necessary. But under Sec. 149, the liability arises by reason of mere membership of unlawful assembly.

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