Table of Contents

Introduction ............................................................................................................................ 2

Research Methodology .......................................................................................................... 2

Research Questions ................................................................................................................ 2

Common Intention ................................................................................................................. 3

Section 34............................................................................................................................... 3

Guiding Principles of common intention ............................................................................... 4

Common intention should be Prior to the occurrence ........................................................... 5

Intention on the spot............................................................................................................... 5

In Furtherance of Common Intention .................................................................................... 6

Participation ........................................................................................................................... 7

Section 35............................................................................................................................... 7

Common object ...................................................................................................................... 8

Section 149............................................................................................................................. 8

Essential Elements ................................................................................................................. 8

Difference between S.34 and S.149 ..................................................................................... 10

Difference Between S 34 & S149 ........................................................................................ 11

Bibliography ........................................................................................................................ 13

Reference ............................................................................................................................. 13
INTRODUCTION

Criminal Intention is the highest form of blameworthiness of mind or mens rea. Intention
occupies a symbolic place in criminal law. As the highest form of the mental element, it
applies to murder and the gravest form of crimes in the criminal justice system. The term
„intention‟ is not defined in Indian Penal Code but section 34 of IPC deals with common
intention. The intention made among several people to do something wrong and act done in
that manner in which it was formulated comes under the sanction of Section 34 of IPC.

Section 34 deals with a situation, where an offence requires a particular criminal intention or
knowledge and is committed by several persons. Each of them who join the act with such
knowledge or intention is liable in the same way as if it were done by him alone with that
intention or knowledge. The liability of individuals under this circumstance is called Joint
Liability. The principle of Joint Liability defined in section 34 is as follows:

RESEARCH METHODOLOGY

The Researcher has attempted to study the nature and the evolution of Inchoate offences
along with the general theoretical stances as well as the Indian law provisions which tackles
the offences which come under the aforementioned topic.

The mode of study has involved a combination of facts, cases and explanation derived from
books, journals, online sources as well as authorities. . The sources used were secondary in
nature

The researcher has attempted to fist define the concepts involved, followed by the
explanation and the provisional aspects coupled with case authorities wherever possible.

RESEARCH QUESTIONS

The Research Questions for the given topic are as follows:

1) What is Common Intention?

2) How are Common Intention and Common Object different from each other?

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COMMON INTENTION

Common Intention is generally known as a prearranged plan and acting in concert pursuant to
the plan. It must be proved that the Criminal act was done in concert pursuant to the
prearranged plan. It comes into being prior to the Commission of the act in point of time, yet
the gap between the two need not be a long one, sometimes common intention can be
developed on the spot. The fundamental factor is a pre-arranged plan and to execute the
plan for the desired results. Each of such person will be liable in an act done in furtherance of
a common intention as if the act was done by him alone. Common Intention must not be
confused with the similar intention of several person. To constitute common intention, it is
necessary that the intention of each one of them be known to the rest of them and shared by
them.

SECTION 34

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.

Section 34 enshrines 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 separate substantive offence. The feature that
makes this section distinct 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
person arises under Section 34 if such criminal act is done in furtherance of a common
intention of the persons who join to commit a crime. There is seldom any direct proof of
common intension 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, it must be established by the
prosecution by evidence, whether direct or circumstantial, that there was meeting or plan of
minds of all the accused persons to commit the offence for which they are charged with under
Section 34, be its pre-arranged or on the spur of the moment, but it must 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.

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The section does not mention “the common intentions of all” nor does it say “an intention
common to all”. Under the provisions 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 enshrined in
Section 34, for example, when an accused is convicted under Section 302 read with Section
34, legally 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.

A Supreme Court Bench of Justice M.B. Shah and Justice Doraiswamy Raju in the case of
Gopinath Jhallar Vs State of UP1 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.....,"

Common intention implies a pre arranged plan, which denotes prior meeting up of minds.
Common intent comes into light before the commission of the crime. Merely two accused
being 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.

GUIDING PRINCIPLES OF COMMON INTENTION

In Mahboob Shah v. Emperor2, the following principles were laid down by the court :

 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.
 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.
 Common intention within the meaning of section 34 implies a prearranged plan, and
1
Gopi Nath Jhallar v State of UP [2001] 6 SCC 620
2
Mahboob Shah v Emperor [1945] AIR 118 (PC)

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 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.
 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
 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.
 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.

COMMON INTENTION SHOULD BE PRIOR TO THE OCCURRENCE

In Pandurang v. State of Hyderabad3, the Supreme Court observed that it is well

established fact that a common intention presupposes prior concert. It requires pre-arranged
plan because before a person can be vicariously held liable 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 crime, well in advance. In certain 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.

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.

3
Pandurang v State of Hyderabad [1955] AIR 216 (SC).

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In Balbir Singh v. State of Punjab4 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.

IN FURTHERANCE OF COMMON INTENTION

The principle of joint liability arises out of common intention followed by an act in
furtherance of such common intention. This has been clearly stated in the case of Mahboob
Shah v. Emperor wherein one Allah Dad was shot dead by a bullet from the gun used by one
of the accused who came to rescue their cousin, who had been attacked by Allah Dad and
shouted for help. The two accused were armed with a guns, and each one of them aimed at
two different individuals shot from the gun of Wali Shah, the latter only received injuries
from a bullet shot by Mahboob Shah. Of the three accused, Wali Shah, whose shot killed
Allah Dad, absconded and could not be brought on trial. The other two were tried and
prosecuted under section 302 read with section 34 IPC. The sessions judge convicted him and
awarded death penalty.

On appeal to the Lahore HC, the Lordships held that the case fell well within the ambit of
section 34 and as to their “common intention”, it was said that “common intention to commit
the crime which was eventually committed by Mahboob Shah and Wali Shah came into being
when Ghulam Qasim Shah shouted to his companions to come to his rescue, and both of
them emerged from behind the bushes and fired from their respective guns.” Their Lordships
of the Privy Council however disagreed with the view of the judges of the Lahore HC.

In their opinion there was no evidence of the common intention to the evidence that the
appellant “just have been acting in concert with Wali Shah pursuance of a concerted plan
when he along with him rushed to the help of Ghulam Qasim.” In their view the common
intention of both was to rescue Ghulam Qasim and both of them picked up different
individuals to deal with. Evidence is lacking to show that there was any pre-mediation to
bring about the murder of Allah Dad. At the most they can be stated to have a similar

4
Balbir Singh v State of Punjab [1955] AIR 1956 (SC).

6
intention, but not a common intention and one should not be confused with each other.
Hence, the Privy Council set aside the conviction and sentence of murder as imposed by the
High Court.

PARTICIPATION

Participation is a necessary element or condition precedent to finding of joint liability. The

Supreme Court in the case of Kantiah Ramayya Munipally v. State of Bombay 5 observed
that, it is the essence of section 34 that the person must be physically present at the actual
commission of crime. He need not be present on the actual spot, he can, for instance, can
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

Sec 35 - When such an act is criminal by reason of its being done with a criminal knowledge
or intention.

Whenever 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 Taluqdar6 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 knew that his act will cause C‟s death.
Hence, A was held guilty for murder whereas B was charged with grievous hurt.

5
Shreekantiah Ramayya Munipalli v The State Of Bombay [1955 ] AIR 287.
6
Adam Ali Taluqdar v King Emperor [1927] AIR 324 (Cal).

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COMMON OBJECT

Common object: the word Object means purpose or design to make it common, it must be
shared by all. It might be formed at any stage by all or few members. It may be modified ,
altered or abandoned at any state. Common object may be formed by express agreement after
mutual consultation. The sharing of common object would, however, not necessarily require
the member present and sharing the object to engage himself in doing an over act. Therefore
this section is inapplicable in a case of sudden mutual fight between two parties, because of
lack of common object.

SECTION 149

Section 149 - Every member of unlawful assembly guilty of offence committed in

prosecution of common object

If an offence is committed by any member of an unlawful assembly in prosecution of the

common object of that assembly, 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 present –

 There must be an unlawful assembly. There must be at least five people in such an
assembly.
 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”.
 There must be a commission of offence by anyone or more members of such unlawful
assembly.
 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.
 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.

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In Mizaji v. State of Uttar Pradesh7 it was stated that S149 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 A‟s house in
order forcible possession of the house. With the lathis they were carrying, grave injuries were
inflicted on A‟s 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 who did not actually commit 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 action8.

7
Mizaji v. State of Uttar Pradesh [1959] AIR 572 (SC)
8
Gajanand v State of Uttar Pradesh [1954] AIR 695 (SC)

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DIFFERENCE BETWEEN S.34 AND S.149

There is a close resemblance between common intention and common object, though both of
them belong to different categories of the office in criminal law i.e., ( S 34 and S 149 )
respectively .The principal element in S 34 of the Indian Penal Code (IPC) is the common
intention to commit a crime. In furtherance of the common intention several acts may be done
by several persons resulting in the commission of that crime. In such a situation s. 34
provides that each one of them would be liable for that crime in the same manner as if all the
acts resulting in that crime had been done by him alone. There is no question of common
intention in s.149 of the Indian Penal Code.

An offence may be committed by a member of an unlawful assembly and the other members
will be liable for that offence although there was no common intention between that person
and the other members of the unlawful assembly to commit that offence provided the
conditions laid down in the section are fulfilled.

Thus, if the offence committed by that person is in prosecution of the common object of the
unlawful assembly or such as the members of that assembly knew to be likely to be
committed in prosecution of the common object, every member of the unlawful assembly
would be guilty of that offence, although there may have been no common intention and no
participation by the other members in the actual commission of that offence.

There is a difference between common object and intention.

 Although, the object may be common, the intentions of the several members of the
unlawful assembly may differ and indeed may be similar only in one respect namely
that they are all unlawful, while the element of participation in action, which is the
leading feature of s. 34, is replaced in s. 149 by membership of the assembly at the
time of the committing of the offence.
 'Common intention ' in Section 34 is undefined and therefore unlimited in its
operation , while 'common object ' in Section 149 cannot go beyond the five objects
specifically indicated in Section 141 of the IPC
 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.

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DIFFERENCE BETWEEN S 34 & S149

Base Section 34 Section 149

Nature of Offense This section is not a This section is a substantive

substantive office it is only a offense, it also read with
role of evidence. it always other sections. Punishment
read with other substantive can be imposed solely upon
offices. Punishment cannot this section .Where as
be imposed solely upon this prosecution file a charge
section. For example if a sheet u/s
person convicted u/s 302 r/w
34 of IPC can legally be
convicted u/s 302 r/w 34.

Principle element Common intention- the Common Object: the

principle ingredient of this principle element of this
section is Common intention, section is Common Object,
any act which committed in any act which committed in
furtherance of common prosecution of common
intention attract this section object will attract this section

Common intention within the Common object is defined

Range of Principle
meaning of section 34, is and is limited to the five
element undefined and unlimited. unlawful objects stated in
section 141 of IPC.

Type of Offense Common Intention requires Common object require

under this section may be of under this section must be
ANY TYPE. one of the object mentioned
u/s 141 of IPC.

Necessity Prior meeting of mind is Prior meeting of mind is not

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 necessary before wrongful necessary under this section.
act is done under this section. Mere membership of an
unlawful assembly at the
time of committing the
offense is sufficient.

Liability It is a joint liability. A joint It is a constructive liability

liability of a person is and vicarious liability. all the
determined according to the members of that assembly
manner in which he becomes will be vicariously liable for
associated with commission that offence even one or
of the crime. more, but not all committed
the said office.

Number of Person Minimum two people require Minimum five people require
attracting this section. attracting this section.

Active participation in Merely membership of the

commission of crime is unlawful assembly at the
Participation in
necessary. time of commissioning of
Crime crime would be sufficient for
this section application,
active participation is not
necessary.

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BIBLIOGRAPHY

 PSA Pillai , Criminal Law , 12th Edition , Lexis Nexis.

 Gaur KD, A Textbook on Indian Penal Code, 2013, Fourth Edition, Universal Law
Publishing Co.
 Mishra SN, Indian Penal Code, 2008, 16th Edition, Central Law Publications.
 Gaur KD, Criminal Law : Cases and Materials, 2013, 6th Edition, Lexis Nexis
Butterworths Wadhwa.
 Bishop‟s Commentaries on Criminal Law, Volume 1.
 D. Robinson, „The Identity Crisis of Criminal Law‟, 21 Leiden Journal of Criminal
Law (2008) p. 939.
 JILS blogs on Indian criminal justice system.
 SCC blogs on Indian Criminal System.

REFERENCE

 https://www.scconline.com/
 https://www.jstor.org/stable/
 https://www.cambridge.org/
 https://www.legitquest.com/

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