The Indian Penal Code, 1860

Joint Liability
An overview of the principle of Joint Criminal Liability
under IPC, with special reference to Sections 34 & 149

Submitted to:Dr. Pushpinder Kaur Gill

Assistant Professor in Laws
University Institute of Legal Studies
Panjab University
Chandigarh

Submitted by:Iti Jhanji

B. A. LL.B. (Hons.)
5th Semester
Section B
Roll No.-46/09

Acknowledgement
Upon the successful completion of this project, I would wish to
thank everyone who has been a part of it. First and the
foremost I thank Prof. Sangita Bhalla, Director, University
Institute of Legal Studies, Panjab University, Chandigarh
for providing me with the esteemed opportunity of presenting a
project report on The Indian Penal Code, 1860 and Dr.
Pushpinder Kaur Gill, Assistant Professor in Laws from
the same department for the clear concepts which she provided
us about the principles of IPC,1860, which rendered great
support during the drafting of this submission.
And lastly, my heartiest gratitude towards all the respected
authors of the numerous books I referred to, during the
research process for this submission. It is truly said, Books are
our best friends.

Table of Contents
1.
2.
3.
4.
5.
6.
7.
8.

The Concept of Vicarious Liability

Principle of Liability
Joint Criminal Liability
Section 34 and its Ingrediets
Section 35
Section 149 and its Ingredients
Difference between Section 34 and Section 149
Bibliography

The Concept of Vicarious Liability

The law of tort has been used for many centuries to protect
personal interests such as property, reputation, body etc. It
ensures justice is done by looking into the claimant's need for
compensation, which is paid by the defendant who has

committed a breach of duty. The general rule in tort law is that

liability is personal, i.e., liability is generally linked to a breach
of ones own duty and a person is liable for the wrongs
committed by him only. However, in certain scenarios, the law
makes one person being liable for the harm caused by another,
because of some legally relevant relationship between the two.
This is known as the doctrine of Vicarious Liability.
The word 'vicarious' is derived from the Latin word for 'change'
or alteration. Vicarious Liability is an aberration from the norm
of holding the tortfeasor liable for damage caused by their own
tortuous liability. It is also referred to as imputed negligence.
Legal relationships that can lead to imputed negligence include
the relationship between parent and child, husband and wife,
owner of a vehicle and driver, and employer and employee etc.
The persons who are held vicariously liable need not be
personally connected to the tort or be in anyway responsible.
Thus Vicarious Liability is a form of strict liability.
Many reasons have been advanced to justify this departure
from the fault principle. It is commonly said that the reasons
behind the doctrine of Vicarious Liability are first, that the
employer is in a better position to absorb the legal costs either
by purchasing insurance or increasing his prices. Secondly, that
the imposition of liability should encourage the employer to
ensure the highest possible safety standards in running his
business. The Latin maxim qui facit per alium facit per se that
means he who acts through another shall deemed to have
acted on his own and respondeat superior (let the master
answer) is commonly used in employer employee
relationships.

Notwithstanding these exceptions, it is now generally regarded

as a compelling principle of justice that a man should not be
penalised for the wrong of another. The principle of Vicarious
Liability, which plays an important part in torts and civil law
generally, should not be extended to criminal law. But to this
rule of non-liability, two exceptions have been recognised in
English common law:
1. A master is vicariously liable for libel published by his
servant. However, it is open to a master-proprietor to
show in defence that the libel was published without his
authority and with no lack of care on his part.
2. A master is vicariously responsible for a public nuisance
committed by his servant1. It would very often be difficult
to check effectively acts of public nuisance by menial
servants, unless their masters are made responsible.
Under Indian Penal Code, 1860, Vicarious Liability is
incorporated under section(s) 34, 35, 36, 37, 114, 141, 146,
149 and under many other sections. It generally means when
the actus reus and the resultant consequences thereof are
attributed to another person and he is made to answer for
those consequences.

1 A public nuisance is an act which causes obstruction, inconvenience or damage

to the public. In the case of a private nuisance, a master will be held civilly liable
and the same principle is applied to public nuisance also.

Joint Criminal Liability: An Overview

Definition of Liability
Liability means legal responsibility for one's acts or omissions.
Failure of a person or entity to meet that responsibility leaves
him/her/it open to a lawsuit for any resulting damages or a
court order to perform (as in a breach of contract or violation of
statute). In order to win a lawsuit the suing party (plaintiff)
must prove the legal liability of the defendant if the plaintiff's
allegations are shown to be true. This requires evidence of the
duty to act, the failure to fulfil that duty, and the connection
(proximate cause) of that failure to some injury or harm to the
plaintiff. Liability also applies to alleged criminal acts in which
the defendant may be responsible for his/her acts which
constitute a crime, thus making him/her subject to conviction
and punishment.
Example: Jack Jumpstart runs a stop sign in his car and hits
Sarah Stepforth as she is crossing in the cross-walk. Jack has a
duty of care to Sarah (and the public) which he breaches by his
negligence, and therefore has liability for Sarah's injuries, and
gives her the right to bring a lawsuit against him. However,
Jack's father owns the automobile and he, too, may have
liability to Sarah based on a statute which makes a car owner
liable for any damages caused by the vehicle he owns. The
father's responsibility is based on "statutory liability" even
though he personally breached no duty. A signer of promissory
note has liability for money due if it is not paid, and so would a
co-signer who guarantees it. A contractor who has agreed to
complete a building has liability to the owner if he fails to
complete on time.

Joint Criminal Liability

Joint Criminal Liability or Joint Criminal Enterprise (hereinafter
referred to as JCE) is an important concept in international
criminal law. The development of JCE has been controversial
from the beginning, and many scholars have called for limited
and cautious application of a principle that could lead to guilt
by association. Indeed, one scholar argues that the JCE
doctrine has the potential to stretch criminal liability to a point
where the legitimacy of international criminal law will be
threatened.
Before stepping in deep, it is important to understand the
basics of JCE liability. A Joint Criminal Enterprise is not an
element of a crime. Rather, Joint Criminal Enterprise is a mode
of liability whereby members are attributed with criminal
culpability for crimes committed in furtherance of a common
purpose, or crimes that are a foreseeable result of undertaking
a common purpose.
There are several provisions in the Indian Penal Code which
determine the liability of a person committing a crime in
combination of some others. In these cases, the persons
committing it either have common intention or common object.
In IPC, the criminal liability is determined by the in which the
person is associated with the crime. There are several ways in
which a person becomes a participant in a crime1. He himself commits it.
2. He shares in the commission of the crime.
3. When he sets a third party to commit the crime.
4. Helps the offender, in screening him from Law.
The second point is what joint liability is.

Basically, sections 34-38 and 149 of IPC deals with situations

where Joint Criminal Liability is formed but to understand Joint
Criminal Liability, sections 34 and 149 are important to be
understood.

Section 34
Acts done by several persons in furtherance of common
intentionWhen 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.
Section 34 has been enacted on principle of joint liability in the
doing of a criminal act; the section is only a rule of evidence
and does not create a substantive offence. The distinctive
feature of the section is the element of participation in action 2.
The liability of one person for an offence committed by another
in the course of criminal act perpetrated by several persons
arises under Section 34 if such criminal act is done in
furtherance of a common intention of the person who join in
committing the crime. Direct proof of common intension is
seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved
facts of the case and the proved circumstances. In order to
bring home the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial,
that there was plan or meeting of minds of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be its pre-arranged or on the spur of the
moment; but it must necessarily be before the commission of
the crime. 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 done it individually by himself.
The section does not say the common intentions of all nor
does it say an intention common to all. Under the provisions
2 Sewa Ram vs. State of Uttar Pradesh, 2008 I Cri. LJ 802 (S. C.)

of Section 34 the essence of the liability is to found in the

existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such
intention. As a result of the application of principles enunciated
in Section 34, when an accused is convicted under Section 302
read with Section 34, in law it means that the accused is liable
for the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision 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 prove
exactly what part was taken by each of them.
Persons acting in furtherance to common intention to commit a
crime would all be liable to the whole crime, even if they were
not present at the scene of crime or did not participate in the
commission of the crime, the Supreme Court has stated that "even the doing of separate, similar or diverse acts by several
persons, so long as they are done in furtherance of a common
intention, render each of such persons liable for the result of
them all, as if he had done them by himself.....," a bench of
Justice M.B. Shah and Justice Doraiswamy Raju said.
Common intention implies a pre arranged plan, which means
prior meeting up of minds. Common intent comes into light
before the commission of the crime. Merely seeing two accused
at the same spot does not account to the common intention,
but it is necessary to prove the meeting up of minds prior to the
actual commission of crime.

Ingredients of Section 34
There are three main ingredients of this section:
1. A criminal act must be done by several persons.
2. The criminal act must be done to further the common
intention of all, and

3. There must be participation of all persons in furthering the

common intention3.
Criminal act done by several persons- The term act in the
section refers to a series of acts as a single act, so also the
coverage of the provision is attracted only when there are more
than one person involved in committing the criminal act. 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 that offence.
Act done in furtherance of common intention of all- The
essence of joint liability under section 34 lies in the existence of
a common intention to do a criminal act in furtherance of the
common objective of all the members of the group. The word
common intention implies a prior concert, that is, a prior
meeting of minds and participation of all the members of the
group in the execution of that plan 4. The acts done by each of
the participants may differ and may vary in character, but they
must be actuated by the same common intention. In the
absence of common intention the criminal liability of the
members of the group might differ according to the degree and
mode of the individuals participation in the act. The plan to
execute a crime need not be elaborate, nor is a particular
interval of time required for the purpose. The scheme may be
chalked out suddenly, but all the members must consent to it.
In other words, there must be a prior concert among the
3 Girija Shankar vs. State of Uttar Pradesh, AIR 2004 SC 1308.
4 Pandurang Tukia and Bhilia vs. State of Hyderabad, AIR 1955 SC 331.

members of the group in regard to the design in question, so

that each of them is aware of the act to be committed.

Guiding Principle of Common Intention

The principle of common intention came to be enunciated in
what has come to be known as the Indus River Case or the
case of Mahboob Shah vs. Emperor5.
In this case, the deceased Allah Dad and few others were going
in a native boat down the river Indus to cut and collect reeds
growing on the bank of the river. A mile from the place where
they started, they were warned by Mohammad Shah, father of
Wali Shah (who absconded and never apprehended), not to cut
reeds from the land belonging to him. However, when they
continued to cut and load reeds into their boat, they were
accosted by Quasim Shah, nephew of Mohammad Shah, who
tried to remove the reeds from them and prevent them from
moving. When he pushed Allah Dad, the latter struck him with a
thick bamboo pole used for rowing and steering the boat. This
made Quasim Shah cry out for help. Hearing this, Wali Shah
and Mahboob Shah appeared on the scene carrying loaded
guns. On seeing them, Allah Dad and his friend Hamidullah
tried to escape by fleeing from the place. They were prevented
from running by Wali Shah and Mahboob Shah who stood in
front of them obstructing their path. Wali Shah shot at Allah
Dad killing him instantaneously. Mahboob Shah fired at
Hamidullah causing him slight injuries. Wali Shah was never
caught thereafter.
The trial court sentenced Mahboob Shah to seven years
rigorous imprisonment for attempting to commit murder. The
Lahore High Court, however, convicted him also for murder
under Section 302 read with Section 34, IPC, and sentenced
him to death. Mahboob Shah went on appeal to the Privy

5 AIR 1945 PC 118.

Council against the conviction for murder and the death

sentence awarded to him.
Very interestingly, the Privy Council set aside his conviction for
murder and allowed Mahboob Shahs appeal on the ground that
there was no evidence to prove that there was a common
intention between Mahboob Shah and absconding Wali Shah.
The following principles were laid down by the Privy Council:
1. Under Section 34 of IPC, essence of liability is to be found
in the existence of a common intention, animating the
accused, leading to doing of a criminal act in furtherance
of such intention.
2. To invoke the aid of Section 34 successfully, it must be
shown that the criminal act complained against was done
by one of the accused persons in furtherance of the
common intention; if it is so then liability for the crime
may be imposed on any one of the persons in the same
manner as if the acts were done by him alone.
3. Common intention within the meaning of Section 34
implies a prearranged plan, and to convict the accused of
an offence applying the section it should be proved that
the criminal acts were done pursuant to the prearranged
plan.
4. It is difficult, if not impossible to procure direct evidence to
prove the intention of an individual, in most cases it has to
be inferred from his act or conduct or other relevant
circumstances of the case.
5. Care must be taken not to confuse same or similar
intention with common intention; the partition which
divides their bounds is often very thin; nevertheless, the
distinction is real and substantial and if overlooked will
result in miscarriage of justice.

6. The inference of common intention within the meaning of

the term under section 34 should never be reached unless
it is a necessary inference deductable from the
circumstances of the case.
Concluding that at best the evidence showed that there was
only a common intention to protect Quasim Shah when
Mahboob Shah and Wali Shah heard his shouts for help and
appeared at the site carrying their guns. They were probably
ready to use the same to defend Quasim Shah. In this context,
Mahboob Shah accosted, held, and shot at Hamidullah, whereas
Wali Shah confronted Allah Dad and shot at him, killing him
intantly. The judges of the Privy Council, however, concluded
that there was no evidence to show that they shared a common
intention to commit the criminal act that resulted in Allah Dads
death.

Common Intention should be Prior to the

Occurrence
In Pandurang vs. State of Hyderabad6, the Honble Supreme
Court observed that it is well established that a common
intention presupposes prior concert. It requires pre-arranged
plan because before a person can be vicariously convicted for
the criminal act of another, the act must have been done in
furtherance of the common intention of them all. The inference
of common intention should never be reached unless it is a
necessary inference deducible from the circumstance of the
case. The incriminating facts must be incompatible with the
innocence of the accused and incapable of explanation on any
other reasonable hypothesis.

Intention on the Spot

In certain cases, an intention can be formed on the spot. It is
not always necessary that all the accused have meditated the
6 AIR 1955 SC 331.

crime, well in advance. In cases, the intention can be formed on

the spot. In a fight, all the accused may at a point decide to
take out their revolvers and shoot the people of the other party,
in order to kill them. Here the decision of killing the people of
the other party was taken on the spot.
Common intention is different from same or similar
intention. The partition that divides same or similar intention
and common intention is often very thin, but nevertheless the
distinction is very real and substantial. To constitute common
intention it is necessary that the intention of each person be
known to all the others and be shared by them, whereas this is
not so in the case of same or similar intention.

Joint Liability in context of Free Fight

The issue of liability of different members of a group of people
divided into mutually antagonistic or hostile groups, especially
when there is a free fight between them, is one of the most
difficult aspects of joint liability.
In Balbir Singh vs. State of Punjab 7, a similar question was
raised, wherein four persons each belonging to two different
groups attacked each other and in the result, one person died.
Both, the trial court and the High Court had held that there was
a free fight and every assailant was accountable for his own
acts committed. However, the Supreme Court held that, in a
free fight, there was a movement of body of the victims and
assailants and in such a situation it will be difficult to
specifically ascribe to one accused the intention to cause
injuries sufficient to cause death.
Participation of all in Furthering the Common IntentionParticipation is a necessary element or condition precedent to
finding of joint liability. The Supreme Court in the case of
Kantiah Ramayya Munipally vs. State of Bombay 8 observed
that, it is the essence of Section 34 that the person must be
7 AIR 1995 SC 1956.

physically present at the actual commission of crime. He need

not be present on the actual spot. He can, for instance, stand
outside to warn his companions about any approach of danger.

Section 35
Section 35 of the IPC is in furtherance of the preceding section
34. It reads that
When such an act is criminal by reason of its being done
with a criminal knowledge or intentionWhenever an act, which is criminal only by reason of its being
done with a criminal knowledge or intention, is done by several
persons, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner
as if the act were done by him alone with that knowledge or
intention.
If several persons, having the same criminal intention or
knowledge jointly murder, each one would be liable for the
offence as if he had done the act alone; but if several persons
join in the act, each with different intention or knowledge from
the others, each is liable according to his own intention or
knowledge.
Reference can be made to the case of Adam Ali Taluqdar9,
where A and B beat C who died. A had an intention to murder
C, and knew that his act would cause his death. B on the other
hand intended to cause grievous hurt and did not know that his
act will cause Cs death. Hence, A was held guilty for murder
whereas B was charged with grievous hurt.

8 AIR 1955 SC 287.

9 AIR 1927 Cal. 324.

Section 149
Every member of unlawful assembly guilty of offence
committed in prosecution of common objectIf an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members or that assembly knew to be
likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.

Essential Elements
To invoke section 149 IPC, the following ingredients must be
present1. There must be an unlawful assembly 10. There must be at
least five people in such an assembly.
2. There must be some common object of such an unlawful
assembly. Here the word common must be distinguished
from similar; it means common to all and known to the
rest of them and also shared by them.
3. There must be a commission of offence by anyone or more
members of such unlawful assembly.
4. The commission of such offence must be in prosecution of
the common object shared by all and each of the
members of such unlawful assembly.
5. The offence committed in prosecution of a common object
must be such that each one of the members of such
unlawful assembly knew was likely to be committed.
10 Section 141 of Indian Penal Code, 1860.

In Mizaji vs. State of Uttar Pradesh11, it was held that section

149 IPC has two parts. The liability of a member of an unlawful
assembly may arise for an offence committed by any member
of the assembly in two ways. The first is where the other
members commit an offence, which was in fact the common
object of the assembly. The second is where the common object
to commit an offence was different from the offence, which was
actually committed.
For example, the accused X, Y, Z, J and K were alleged to have
entered into As house in order forcible possession of the house.
With the lathis they were carrying, grave injuries were inflicted
on As limb and he was dragged out of the house to some
distance where either J or K shot him with a hidden pistol.
In such a case, the member not actually committing the offence
will be liable for that offence only if he knew that such offence
was likely to be committed in the course of prosecution of the
common object to commit the offence originally thought of. The
expression know does not mean a mere possibility, such as
might or might not happen, it imports a higher degree of
probability. Further, it indicates a state of mind at the time of
commission of the offence and not the knowledge acquired in
the light of subsequent events.
Under section 149, the liability of the other members for the
offence committed during the occurrence rests upon the fact
whether the other members knew beforehand that the offence
actually committed was likely to be committed in prosecution of
the common object. Such knowledge may be reasonably
collected from the nature of the assembly, arms or behaviour at
or before the scene of action12.

11 AIR 1959 SC 572.

12Gajanand vs. State of Uttar Pradesh AIR 1954 SC 695.

Common
Intention13
Common Object14

distinct

from

(Difference between Section 34 and Section 149)

Both Section 34 and 149, IPC, deal with issues of constructive
liability. In other words, a situation when criminal liability
attaches to persons for acts not necessarily done by them.
There are, however, differences in the scope and nature of
operation of the two offences. The difference comes crucial
when a charge under Section 149, IPC, is sought to be
substituted at a later stage for a charge under Section 34 of the
IPC, especially when some accused are acquitted and the
number of accused falls below five. In such contexts, the courts
would have to carefully examine the evidence to see whether
some element of common intention exists which makes the
accused persons criminally liable.
1. Section 34 only lays down a principle of joint criminal
liability and does not create a separate offence 15 whereas
Section 149 creates a specific offence. Thus, membership
in an unlawful assembly itself is specifically made liable to
punishment. While Section 34 creates joint criminal
liability, in which if individuals share a common intention
and do acts furthering the same, then all of them are held
liable for all acts committed. On the other hand, Section
149 creates constructive criminal liability for acts done in
prosecution of the common object of the assembly,
provided the essential conditions for being an unlawful
assembly are fulfilled.
2. Common intention in Section 34 is undefined and
therefore unlimited in its operation, while common object
13 Section 34, Indian Penal Code, 1860.
14 Ibid, Section 149.
15 Dhansai vs. State of Orissa AIR 1969 Ori 105.

in Section 149 cannot go beyond the five objects

specifically indicated in Section 141 of the IPC16.
3. The crucial difference between common intention and
common object is that while common intention requires
prior meeting of mind and unity of intention, common
object may be formed without these ingredients 17.
4. While in Section 34, the crucial factor is that of
participation in Section 149, membership of the unlawful
assembly is a sufficient precondition. Thus, in Section 149
there is no need for active participation or contribution for
attaining the common intention18.
5. For invoking Section 34, it is sufficient if there are more
than two persons involved; however, in Section 149, there
have to be a minimum of five persons and more to attract
coverage of the provision.
6. For offence under Section 34, some overt act, however
small, is a pre-requisite for being made liable. However, in
Section 149, the mere fact of being an unlawful assembly
itself is sufficient to fix liability.

Girija Shankar
Pradesh

vs.

State

of

Uttar

(AIR 2004 SC 1308)

In this case Girija Shankar along with three other persons were
charge sheeted, tried and convicted for commission of offences
under Section 302 and 307 read with Section 34 and 394 of IPC
16 Dani Singh and Ors. vs. State of Bihar 2004 CrLJ 3328 (SC).
17 Chittarmal with Moti vs. State of Rajasthan AIR 2003 SC 796.
18 Jaswant Singh vs. State of Haryana AIR 2000 SC 1833.

by the trial court. Their appeal before the Honble High Court
met with the fate of dismissal. During the pendency of the
appeal two persons namely, Iqbal Shankar and Junglee died and
the appeal stood abated. Girija Shankar preferred the appeal
and questioned the legality of his conviction under Section 302
read with Section 34, and Section 307 read with 34.
According to the prosecution version, Arun Singh, H.P. Tiwari
(PWs) and the deceased decided to stay in village Bhawalia
when they were on the way to their village after seeing a
village fair at Bhuvreshwar as they wanted to purchase beedi.
It had become dark and was raining. They decided to stay at
the house of Raj Bahadur Singh whom H.P. Tiwari claimed to
know.
In the meantime, the accused persons saw them and thought
them as criminals. They shouted at them being notorious and
should be beaten. The (PWs) however, resisted their allegations
and disclosed their purpose of staying in the village. They were
proceeding towards Raj Bahadur Singhs house when they were
attacked upon. Suddenly one of the accused Devi Shankar fired
two shots, one of which hit the deceased and the other hit H.P.
Tiwari. It was also alleged that the gold ring and watch of
deceased were removed by Junglee and H.P. Tiwaris gun was
snatched by Devi Shankar.
To prove the prosecution case seven witnesses were examined
and the Trial Court observed that there was no direct evidence
showing pre-concert or meeting of minds amongst the accused
and the possibility of it having developed on the spot cannot be
ruled out.
The Honble Supreme Court of India observed that on reaching
at the said conclusion the Trial Court and the High Court did not
appreciate the fact that there was neither any direct nor any
circumstantial evidence showing pre-concert of the minds of
the accused persons in causing the death of the deceased.
Dilating on the provisions of Section 34 the observation of the
Honble Supreme Court of India quoted-

Section 34 has been enacted on the principle of joint liability

in the doing of a criminal act. The Section is only a rule of
evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation
in action. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in
committing the crime. Direct proof of common intention is
seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved
facts of the case and the proved circumstances. In order to
bring home the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial,
that there was plan or meeting of mind of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be it pre-arranged or on the spur of
moment; but it must necessarily be before the commission of
the crime. The true concept of 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 done it individually by himself.
The Section does not say "the common intention of all", nor
does it say "and intention common to all". Under the provisions
of Section 34 the essence of the liability is to be found in the
existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such
intention. As a result of the application of principles enunciated
in Section 34, when an accused is convicted under Section 302
read with Section 34, in law it means that the accused is liable
for the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision 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 prove
exactly what part was taken by each of them. The Honble
Supreme Court of India took into consideration these

observations made in the cases of Ashok Kumar vs. State of

Punjab (AIR 1977 SC 109) and Ch. Pulla Reddy and Ors. vs.
State of Andhra Pradesh (AIR 1993 SC 1899).
The Honble Supreme Court of India held that the evidence on
record does not show that the accused persons shared common
intention to kill the deceased. They did not chase the injured
and the deceased after they reacted that the deceased and
injured are criminals and notorious and should be beaten. They
further observed that there was no evidence to show that Devi
Shankar had any gun and an intention to use the same and set
aside the conviction under Section 302 read with Section 34 but
observed that the accused assaulted the injured having shared
the common intention to cause the death and maintained the
conviction under Section 307 read with Section 34, IPC. The
Court also set aside the conviction under Section 394, IPC qua
the appellant Girija Shankar on account of no evidence against
him.

Bibliography

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