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Analysis of Intricacies of Common Intention Under Indian Penal Code

The doctrine of common intention postulates the imposition of the same liability on participants in a crime as that incurred by the person who actually committed the crime, provided the crime was the objective of their association or it was committed in furtherance of a common object.

It is in form of adjectival doctrine that needs to be used as a conjunction to a substantive crime. Criminal intention is said to be the highest form of blameworthiness of mind or mens rea. Intention has a very crucial role to play in criminal law. Being the highest form of the mental element, it is applicable to murder and the gravest form of crimes in the criminal justice system.

The term Ďintentioní has not been defined in Indian Penal Code but the section 34 of Indian Penal Code, 1860 deals with common intention. The common intention or the pre-plan made among several people to do something wrong and act done in that manner in which it was formulated comes under the ambit of Section 34 of IPC. Thus, common intention is known as a prearranged plan and acting in concert pursuant to the plan. It needs be proved that the criminal act was done in pursuance to the pre-arranged plan. It needs to come into being prior to the commission of the act in point of time.

However, the gap need not be long and sometimes common intention can be developed even on the spot or during the occurrence of the crime. The fundamental factor is the presence of a pre-arranged plan to execute the plan for the desired result. So, each of such person will be liable in an act done in furtherance of common intention as if the act was done by one person. Common Intention does not imply the similar or same 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 amongst them.

The criminal liability in the cases of crime committed by several people together is determined by the presence of means rea or the common intention or pre-arranged plan shared among them. Thus proving the presence of common intention in a case is a crucial yet difficult task and the burden of proof is upon the prosecution. The common intention is a rule of evidence and it needs to be proved from the facts and circumstances of the case. Thus the problem arises as to what is essential in order to prove the presence of the common intention among the people who committed the crime and whether the presence of an overt act by the offender is necessary in order to prove his common intention or him being part of the pre-plan.

What is Common Intention?

The section 34 of Indian Penal Code, 1860 deals with common intention:

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.[i]

In the above section, the word act is referred. The word act is defined under section 33 as:
Section 33. Act, Omission. Ė the word Ďactí denotes as well a series of acts as a single act: the word Ďomissioní denotes as well a series of omissions as a single omission.[ii]
The section 34 talks about acts done in furtherance of the common intention of all and the liability under this section is dependent on the presence of a common intention. Interestingly, these terms were not present in the original version of the section 34 and were incorporated through the amendment of 1870.[iii]

Thus a furtherance of common design is a condition precedent for convicting each one of the persons who take part in the commission of the criminal act, and the mere fact that several persons took part in crime, in absence of common intention, is not sufficient to convict them of that crime. This stand was taken by the court in the case of Mahboob Shah v. Emperor. [iv]

Thus, the nature of the common intention can be summed up as:

  • Meaning:
    It basically implies that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually.[v] The main essence of the section is that the person must be physically present at the actual commission of the crime or in other way be facilitating the crime like for example a case where one person is committing a crime and the other is guarding him or wait in a car on a nearby road ready to facilitate their escape. The essential element here is that he should be physically present at that scene of occurrence of crime and actually be participating in the commission of the offence in one way or other at the time crime is actually being committed.[vi] The most significant feature of this section is the element of participation.[vii]
     
  • Objective:
    The section is construed to meet a case in which it may be difficult to distinguish between the act of individual members of a party or to prove what exact role or part was being played by each of them. The reason behind deeming all as guilty in such cases is that even the mere presence of accomplices gives support, encouragement and protection to the person who is actually committing the criminal act.
     
  • Scope:
    The section is restricted to common intention and doesnít include the element of knowledge. It need not be proved that any particular person was responsible for the commission of the actual offence. However, it isnít restricted just to meet a case in which it might be difficult to distinguish between the acts of particular members of a group or association, or to prove exactly which role or part was played by each of them. It can also be applied to cases in which offence is committed by only one or two or three persons who all had a common intention. The common intention to bring out a certain result might develop even at the spot itself.[viii]
     
  • Facts to be established for common intention:
    For application of section 34 of the IPC, firstly there should be two or more accused. Secondly, the accused should share common intention to commit the offence and accordingly participate in the offence. Lastly the offence should actually take place. In Sheoram Singh v. State of U.P.,[ix] the Supreme Court held that common intention may develop suddenly during the course of an occurrence, but there just need to be a cogent evidence and clear proof of such common intention. Even if common intention has been proved and no overt act has been done by the accused, section 34 of the IPC will be attracted as the person is held vicariously liable under this section. However, in a case where the participation of the accused in the criminal offence has been proved and common intention is absent, the section 34 cannot be invoked.[x]
     
  • Mode of Determination:
    To hold a person liable under Section 34, the prosecution has to establish either by direct or circumstantial evidence, that there was plan or meeting of mind of all the accused persons for committing the offence for which they have been charged. It might be a pre-arranged plan or the one developed on the spur of the moment but it should necessarily be present before the commission of the crime.[xi] In the landmark judgement of Rishi Deo Pandey v. State of UP.,[xii] the Court for the first time held that the common intention may develop on the spot also.
     
  • Common Intention is a question of fact
    It is of subjective nature and can also be inferred from the facts and circumstance of the case. This includes the conduct of the accused person acting in concert to commit the criminal offence.[xiii] Direct evidence can be available to establish common intention only in the rarest cases. Therefore the ultimate decision is dependent upon the inferences deduced from the facts and circumstances of each case and the conduct of parties.[xiv]. Thus even the mere presence of the accused at the crime scene without anything in addition can bring him under the purview of Section 34 of the Indian Penal Code. However, in order to establish the guilt, it has to be proved that the accused did something in furtherance of common intention.[xv]

Common Intention differentiated from Same Intention

There is a clear distinction between common intention and the same intention. In order to attract the provisions of section 34 of the Indian Penal Code, 1860, it is not sufficient to prove that the participants in doing the criminal act had the same intention. The prosecution also needs to prove that each of the wrong- doers must have shared the intention of the other, i.e. they had a common intention to do that criminal act.

The phrase in furtherance of the common intention of all of section 34 postulates that the criminal act complained against was done by one or all the accused persons in furtherance of common intention of all of them. Thus, each person shall be liable for the result as if he had done it himself. On the other hand, in similar intention or same intention, the criminal act is not carried out in furtherance of a pre-arranged plan by the accused persons.

Thus, in common intention there is a prior meeting of minds before the act committed. For example: M, N and O went to murder Y. The planned to attack him while he was returning from an evening walk. All of them attacked and killed C. Each of them is liable under section 302 read with section 34. The persons who actually participated in committing a criminal act and the people who facilitated to commit such act are equally liable under common intention, i.e., under section 34.

Same intention or the similar intention doesnít mandate a pre-arranged plan. Thus, there not be a prior meeting of minds before the act committed. For example, A and B have enmity with Z due to different causes and different occasions. A and B come from the different lanes and see Z at the road. A attacks and stabs Z with his knife and B attacks Z with club. Both A and B have stabbed and beaten M to death. In this case each of A and B is liable under section 302 separately. Thus in case where different persons participated in the commitment of the crime, having same or similar intention, are punished in accordance with the nature of their acts. Moreover, the persons who have facilitated in the commitment of the criminal act are punished as abettors.

Common Intention differentiated from Common Object

The distinguishing factor between common intention and common object is that common intention denotes action in concert pursuant to a pre-arranged plan and thereby implying a prior meeting of the minds, but in the latter case the common object does not necessarily need proof of prior meeting of minds or a pre-concert or pre-arranged plan. In spite of there being a substantial difference between the two concepts under section 34 and section 149, they overlap up to a certain extent and therefore this question has to be determined taking into consideration the facts and circumstances of a particular case.[xvi]

The difference between common intention and common object may be summed up as under:

  1. Under section 34 number of persons must be more than one whereas under section 149 number of persons must be five or more.
  2. Section 34 does not create any specific offence but only states a rule of evidence. Section 149[xvii] creates a specific offence.
  3. Common intention required under Section 34 may be of any type but common object under Section 149 must be in regard to one of the objects mentioned under Section 141 of the Indian Penal code.
  4. Common intention under Section 34 requires prior meeting of minds or pre-arranged plan but under the section 149, this element is not necessary. Even proving the mere membership, the accused person of an unlawful assembly, at the time of commission of the criminal offence, is sufficient.
  5. Under Section 34 some active participation is necessary, especially in a crime involving physical violence. On the other hand, active participation is not required under Section 149 of IPC and the liability under this section arises even by reason of merely being a member of the unlawful assembly having a common object.

Whether the presence of an overt act is necessary for proving the common intention?

Section 34 of the Indian Penal Code is merely a rule of evidence and doesnít create an offence of substantive nature. It is based on the principle of joint liability in doing the criminal act. The distinguishing feature of the section 34 is the element of participation.

The liability under this section arises upon an individual for an offence committed by another in the course of criminal act perpetrated by several persons, if such act of criminal nature is done in furtherance of a common intention of the individuals who joined in committing the crime. For convicting a person as vicariously liable under section 34 or the section 149 of IPC, it isnít required to prove that each and every one of them had indulged in overt acts.[xviii]

In the case of Krishnan v. State of Kerala,[xix] the court said the necessary element under this provision is the criminal act being done in furtherance of a common intention and Section 34 did not require anything more to get attracted. The court observed that although it is true that the court would like to know about any overt act in deciding whether the individual had shared the common intention but the establishment of an overt act is not a sin qua non for section 34 to operate.

The establishment of the overt act qua each of the accused helps in satisfying the courtís mind regarding the sharing of the common intention. However, there might be cases where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur. The statute requires the sharing of the common intention upon being present at the place of occurrence. Thus mere distancing from the scene cannot absolve the accused.[xx]

In the case of Sachin Jana & Another v. State of West Bengal,[xxi] it was held that direct proof of common intension is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts and circumstances of the case. In the case of Khacheru Singh v. State of U.P.[xxii] it was held that the facts of the case were itself sufficient to prove that the accused persons had the common intention to commit the criminal offence. Thus the essence here is proving the common intention and it may be done through any other mean.

Conclusion
The term intention has been defined in the case of R v. Mohan [xxiii] as that which refers to the aim or a decision to ensure that a particular outcome is attained. Thus it isnít relevant whether the intended outcome was likely to occur or not. Thus the essential principle of the section 34 of the Indian Penal Code is that if two or more individuals intentionally do an act jointly, the position in law is similar to a case where each of them did it individually by himself. The section 34 doesnít postulate the common intentions of all nor does it talk about an intention common to all. Under this section, the essence of the liability is in the existence of a common intention that led the accused to do a criminal act in furtherance of such common intention.

In order to prove the charge of common intention under section 34, the prosecution has to establish, either by direct or circumstantial evidence, that there was pre-arranged plan or meeting of minds of all the accused individuals for committing the offence for which they are charged. In Kripal Singh v. State of U.P.,[xxiv] the Supreme Court held that a common intention may develop on the spot after the offenders have gathered there. A previous plan is not necessary.

The essential element here is just that it should but necessarily be before the commission of the crime. Thus, a pre-arranged plan or an overt act is not necessary for proving the presence of the common intention or sharing of a criminal intent to do the act, it may be differently inferred from the facts and circumstances of different cases. The presence of overt act may satisfy the court but in many cases the facts themselves speak about the presence of common intention even in the absence of any overt act. There isnít any standard rule that has to be mandatorily followed.

End-Notes:
  1. Section 34, Indian Penal Code, 1860.
  2. Section 33, Indian Penal Code, 1860.
  3. The Indian Penal Code Amendment Act, 1870.
  4. Mahboob Shah v. Emperor, AIR 1945 PC 118.
  5. B.N. Srikantiah v. State of Mysore, AIR 1958 SC 672.
  6. Shiv Prasad Chunilal Jain v. The State of Maharashtra, AIR 1965 SC 264.
  7. Shaikh Nawak v. State of Maharashtra, AIR 1993 SC 169.
  8. Kirpal & others v. State of UP., AIR 1954 SC 706
  9. Sheoram Singh v. State of U.P., AIR 1972 SC 2555.
  10. Ramashish Yadav v. State of Bihar, AIR 1999 SC 3830.
  11. Sukhbir Singh v. State of Haryana, AIR 2002 SC 1169.
  12. Rishi Deo Pandey v. State of UP, AIR 1955 SC 331.
  13. Maqsoodan & others v. State of U.P, AIR 1983 SC 126.
  14. Jhinku Nai v. State of UP., AIR 2001 SC 2815.
  15. Ram Briksh v. State of UP., 1993(2) CR.L.C 378.
  16. Chittarmal v. State of Rajasthan, AIR 2003 SC 796.
  17. Section 149, Indian Penal Code, 1860
  18. Ram Blias Singh v. State of Bihar (AIR 1989 SC 1593).
  19. Krishnan v. State of Kerala, AIR 1977 SC 383.
  20. Lallan Bhai v. State of Bihar,[xx] AIR 2003 SC 333.
  21. Sachin Jana & Another v. State of West Bengal, 2008 (2) scale 2 SC.
  22. Khacheru Singh v. State of U.P., AIR 1956 SC 546
  23. R v. Mohan, [1976] QB 1.
  24. Kripal Singh v. State of U.P., AIR 1954 SC 706.

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