Common Intention Under Section 34 IPC & BNS Section 2(5)

The Indian Penal Code recognises situations where two or more persons act together in the commission of an offence. In such cases, the law imposes joint liability in which each participant is held equally responsible for the acts done by another.

This principle is embodied in Section 34 IPC [now s 2(5) of BNS], which lays down that when a criminal act is done by several persons in furtherance of the common intention of all, each of them is liable for that act as if it were done by him alone.

The underlying idea is that when several persons participate in a criminal act with a shared purpose, each is equally responsible, regardless of the extent of their individual role.

This principle of joint liability ensures that offenders cannot evade punishment merely because it is difficult to identify who inflicted the final blow or caused the decisive harm.

Rule of evidence, does not create substantive offence

In Barendra Kumar Ghosh v. King Emperor (1925), the Privy Council clarified that Section 34 is a rule of evidence for fixing joint liability, not a source of substantive offence. It merely lays down a principle of joint liability to be applied when the ingredients of common intention are proved.

In Gurudatta Mal v State of UP (1965), the SC held that it is well settled that section 34 of the Indian Penal Code does not create a distinct offence; it only lays down the principle of joint criminal liability. The necessary conditions for application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence.

For example, A and B, in furtherance of their common intention, kill C. The substantive offence is murder under Section 302 IPC. Section 34 does not create "murder by common intention" as a separate crime, it only makes both A and B liable for murder because of their joint action.

Historical Background

Section 34 of IPC is said to be based on the principle evolved in Reg v. Cruise (1838). A constable and his assistants went to arrest person A in his house. Three other persons B, C, and D came out, assaulted the constable, and drove him away. The court applied the doctrine of joint liability and held that B, C, and D were equally liable for the blow inflicted, irrespective of whether only one of them actually struck it.

When several persons act together with a shared purpose, each is liable for the act done in furtherance of that purpose, even if their individual roles differ.

Meaning of Common Intention

Common intention means a pre-arranged plan or meeting of minds to commit an offence.

In Mahboob Shah v. Emperor (1945), Sir Madhavan Nair observed that common intention within the meaning of Section 34 implies a pre-arranged plan i.e there must be proof of a prior meeting of minds that led to the commission of the criminal act.

The Court cautioned against confusing same or similar intention with common intention. The dividing line between them is often thin but real and substantial. Overlooking this distinction can result in miscarriage of justice.

Difference between common intention and similar intention

Common intention must be pre-mediated and shared with each member of the group. While similar intention within its scope does not require a prior meeting of mind or pre-mediation of the commission of the act neither does it need to be communicated with every member of the accused party.

A, B, and C for instance, had a rivalry with X. In the first case all three of them devised a plan and shared the common intention to murder X and committed the act in furtherance of the same for which they were jointly liable under section 302 read with section 34. While in a second instance, all three, strangers to each other, while walking from different lanes, spotted X and used different weapons to attack him to which he succumbed to death. Therefore, they had murdered X with a similar intention to kill him but there was no pre-mediation or communication of such plan or such intention nor any act in furtherance of this intention of all. Therefore, it only constitutes murder under section 302 and section 34 will not be invoked. All the accused will be punished for their individual acts.

Essential Ingredients

1. Criminal Act must be done by Several Persons

   It is not necessary that the act of several persons must be the same or identically similar. What is required is that these acts must be actuated by the same common intention. This is based on the common sense principle that when several persons are alleged to have committed a criminal act, then there is every possibility that different members would have actively given encouragement, help, protection and support, as also actively participated or otherwise engaged in the commission of the criminal act itself. Thus, even though a particular act may have been committed by an individual, where common intention exists, and they had all acted in furtherance of that common intention, then all of them are held liable for the offence.

   In Barendra Kumar Ghosh v King Emperor (1923), the accused was the only person apprehended for the murder of the Postmaster of Shankaritola Post Office on 3 August 1923. On that day, several persons appeared at the door of the backroom of the Post Office where the Postmaster was counting his money and demanded the money. They fired pistols at him and he died almost immediately. While all the accused fled the place without taking any money, the accused, Barendra Kumar, alone was chased and caught by the Post Office assistants with a pistol in his hand. It was his defense that he was only standing guard outside the Post Office, and that he was actually compelled to stand so by the other accused and thus he did not have the intention to kill the Postmaster. His defense was rejected and held that "they also serve who only stand and wait." Lord Sumner in this case made the following observations :

   "Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself."
   
   

2. In Furtherance of Common Intention

   The act must be a result of shared purpose. The phrase "in furtherance of common intention" in Section 34 IPC means that the act done must be directly connected to and in pursuit of the shared plan or purpose of all the participants. It must be a step taken to achieve the intended criminal result which was the object of their common intention.

   If the act committed is a natural and probable consequence of the common intention, all are equally liable.

   Example 1 - A, B, and C planned to commit robbery at the house of D. During the robbery, A took the family members hostage, while B and C carried out the looting. Meanwhile, E, the son of D, tried to resist by pulling out a gun from a drawer. On seeing this, A shot and killed E. The court held A, B, and C jointly liable not only for robbery but also for the murder of E, since killing a person who resists a robbery is a natural and probable consequence of committing robbery, and hence, the act was done in furtherance of their common intention.
   Example 2 - A, B, and C planned to commit robbery at the house of D. During the robbery, A took the family members hostage while B and C carried out the looting. In the course of taking hostages, A molested D's daughter, G. The court held that A, B, and C were jointly liable only for the offence of robbery, as that was their common intention. However, A alone was liable for the offence of molestation, since it was neither a part of the common intention nor a natural and probable consequence of committing robbery.
   
   

3. Participation

   One of the essentials for joint criminal liability is the necessity of participation in the criminal act by all those who are charged with the offence. Earlier it was considered that physical presence at the place of occurrence is essential for application of S. 34, however this proposition was slightly modified by the Supreme Court in the case of JM Desai v. State of Bombay (1960) wherein it was held that to invoke S. 34, though participation of several persons in doing the criminal act is necessary, but in certain cases physical presence might not be possible when the acts may done at different times and places.

   Each accused must participate, actively or passively, in the commission of the act.

4. Meeting of Mind

   There must be a meeting of minds before the act is committed (can be instant). The general principle is that common intention as defined in s 34 implies a pre-arranged plan and to convict an accused, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.

Common Intention can develop on the spot

In Pandurang, Tukia & Bhillia v. State of Hyderabad (1955), Supreme Court held that prior meeting of minds need not be far in advance of the incident, it can develop on the spot, on the spur of the moment, in response to the circumstances. What matters is that the meeting of minds occurs before the commission of the act, even if only moments earlier. For example, if a man shouts at bystanders asking them to help him to kill a particular person, and they through their acts or speech, extend their support to him and also actually join him; in such a case, there has been a necessary meeting of minds; however hastily formed or rudely conceived, a pre-arranged plan has come into existence.

Let's consider one more example, during a heated quarrel, A slaps C. B, A's friend who is present, immediately joins in and both start beating C together until C is injured. Even though there was no earlier plan, the moment B joined A with the same objective, a common intention arose on the spot.

In Kripal v. State of Uttar Pradesh (1963), the court held that the common intention to bring about a particular result may develop on the spot among several persons, depending on the facts and circumstances. In each case, the question is whether the individuals concerned developed only simultaneous but independent intentions or whether there was a simultaneous consensus of minds to bring about the result; this must be determined on the basis of the evidence and surrounding circumstances.

In such a case, however, there should be cogent material available on the basis of which the court can arrive at a finding and conclusion that the accused are vicariously liable for the act of the other accused.

In Virendra Singh v. State of M.P. (2010), the court held that the essence of Section 34 IPC is simultaneous consensus of minds which can form immediately before or during the act.

Effect of acquittal of co-accused in cases involving common

The Supreme Court in Y. Venkaiah v. State of A.P (2009), has held that even if one of the co-accused is acquitted, that does not by itself absolve other co-accused of their conjoint liability of the crime. The law is that in spite of acquittal of one co-accused, it is open to the court to convict the other accused on the basis of joint liability u/s 34 if there is evidence against them of committing the offence in furtherance of the common intention.

In Mangu Khan v State of Rajasthan (2005), Court held that even in a situation when all the accused but one have been acquitted of the alleged offence, it is possible to convict even a solitary accused with the aid of s 34.