CHAPTER – V

ABETMENT TO SUICIDE AND DETERMINATION OF

GROUP LIABILITY
INTRODUCTION
When accused is not single person rather in plural number. Such as dowry death
case where whole the family members of the in laws of the victim lady are implicated,
then the court is to decide the criminal liability of each member of the family as per
statutory guidelines embodied in law of group liability under criminal law. Therefore for
proper analysis of the topic in hand, existing law on group liability. For Abetment of
suicide, the guilty persons can be members of corporation or a department of a
government. Members of a police department can be guilty.
It is also necessary to study strict liability. It is also necessary the judicial
approach on group liability.
Joint liability, vicarious liability and Strict Liability are somehow akin to each
other in a way that here liability is imputed. A person is not help liable for the actual act
committed by him rather knowledge (S. 149) participation (S. 34) and presence at the
place of occurrence makes him liable. The common thing among all is that a person is
charged with the offence which cannot alone be constituted by his singular act.
Joint Liability
The object of this which the accused, though he has not with his own hands
committed the substantive offence, has become mixed up with it in some capacity or the
other, As we have observed elsewhere’ such persons are treated under English law as
principles of the first or second degree and accessories before or after the fact. In the
Penal Code, they are dealt with according to the particular manner in which the accused
becomes associated with the crime. There are four ways in which a person may become
criminally responsible in respect of any offence. First, he may personally commit it.
Secondly, he may share in the commission of the offence though he does not personally
commit it. Thirdly, he may set sonic other agency to world with a view to the commission
of the offence, Fourthly, he may help the offender after the commission of the act with a
view to screen him from justice. Third and the fourth way is abetment.
The first and the second shall be studied here as they constitute the law of joint

238
liability.
1. Joint Acts. With regard to the first, no difficulty can arise where a single act is
done by a single person. But where an offence is committed whoever does any of
these acts in furtherance of the common design is guilty of the whole offence. 1
Such a case is provided for under Section 37 of the Penal Code which lays down:
“When an offence is committed by means of several acts, whoever intentionally
cooperates in the commission of that offence by doing any one of those acts,
either singly or jointly with any other person, commits that offence.” For instance,
a person steals goods in a house and hands them over to on accomplice outside,
who carries them away. Both are equally guilty of theft.2 But if the person outside
the house knew nothing of the intention to steal till the goods were handed over to
him, he would not be held guilty of theft; his offence would be that of receiving
stolen property.3 On the other hand, two or more persons engaged in the same
criminal act may be guilty thereby or different offences. This is provided for
under Section 38 of the Penal Code thus: “Where several persons are engaged or
concerned in the-commission of a criminal act, they maybe guilty of different
offences by means of that act.” For instance, A attacks Z under such
circumstances of grave provocation that his killing or Z would be only culpable
homicide not amounting to murder. B, having ill-will towards Z and intending to
kill him, and not having been subject to the provocation, assists A in killing Z.
Here, though A and B are both engaged in causing Z's death, yet B is guilty of
murder and A is guilty only' of culpable homicide. The reason is that as the
intention differs, so does their criminal responsibility. In the particular,
illustration, there is no common intention, rather the intention is different,
therefore, the liability is also different. Section 38, as a matter of fact, is the
converse of Section 34 which we shall study in the sequel. Take another instance:
in the case of R. v. Perkins, if the person who first removed the goods was the
servant of the owner, he would be guilty under Section 381, while the accomplice
would only be punished under Section 379. If, however, the accomplice knew that

1
Section 37 I.P.C.
2
R. v. Perkins, 21 L.J. (MC), 152.
3
R. v. Hilton, Bell C.C., 20: R.V. Short (1932) 23 Cr. App. R. 170.

239
 that his associate was a servant and urged him to steal his master's property, he
would apparently under Section 109 he liable to the aggravated penalty under
Section 381.4
2. Common Intention. With regard to the second case,--where the accused shares in
the commission of the offence though he does not commit it, the Penal Code
makes a provision for his liability under Section 34 which runs thus: “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. In other words, where several persons unite with a common
intention to effect any criminal object, all those who assist in the accomplishment
of that object are really guilty, though some may he at a distance from the spot
where the clime is committed and be ignorant of what has actually been done.
It may be observed that the words in furtherance of the common intention of all
did not exist in the original code and were added by the Amending Act of 1870. ‘The
addition of these words was made with a view to assimilate the Indian law with the
English lay’, for otherwise, the Penal Code was widely different from English law. For
instance, a person not cognizant of the intention of his companions to commit a murder
would not be held liable under English law for murder. But under the older Indian law he
would have been liable for murder. Although even before this Amending Act was passed,
Sir Barnes Peacock had observed in the case of Gora Chand Gopi:5
When several persons are lawful or unlawful, and one of them, without the
knowledge and consent of the others, commits an offence, the others will not be
involved in the guilt unless the act was in some manner in furtherance of the
common intention.
So also, Their Lordships of the Privy Council, gave an expression to a similar
view in a civil ease thus: Where parties go with a common purpose to execute a common
object, each and every one becomes responsible for the acts of each and even’ other in
execution and0 in furtherance of their common purpose; as the purpose is common so
must be the responsibility.6

4
Emperor v. Chhotelal Babar, 36 Bombay 524.
5
(1860) B.L.R. (Sup. Vol.) 443 F.B.
6
Dinesh Singh v. Ram Raja (1869) 3 B.L.R. 44(P.C.)

240
 It appears that the Amending Act of 1870 was passed in consequence of this
pronouncement of the Privy Council.
Paradoxical though it may seem, the Amending, Act of 1870, which sought to
make the section clear, itself became the cause of conflicting interpretations and
consequently gave rise to many complications which we shall notice in the discussion
that follows. Section 34 lays down the principle of liability in the doing of the criminal
act. The essential ingredients of Section 34 are: first, criminal act done; secondly, by
more than one person; and, thirdly, a common intention of all. This section simply gives
statutory recognition to commonsense principle that if two or more persons intentionally
do a thing jointly, it is just the same as each of them doing it individually.7 No
illustration, however, is appended to this section. .But, apparently, it incorporates the
principles laid down in the well-known decision in the case of B. V. Cruse,8 the facts of
which are as follows: -a constable and his assistants went to arrest A at a house in which
there were many persons. ,B, C, D and others came out of the house, drove the constable
and his assistants off and one of the assistants was killed either by B, C', D or one of their
party. It was held that each member of their party is equally responsible for the blow,
whether he actually struck it or not. Bishop,9 an American jurist, observes as follows:
Every man is responsible criminally for what wrong flows directly from his
corrupt intentions, but no man, intending wrong, is responsible for an independent
act of wrong committed by another. If one person sets in motion the physical
power of another person, the former is criminally guilty for his results. If he
contemplated the result, he is answerable, though it is produced in a manner he
did not contemplate. If he did not contemplate the result in kind, yet if it was the
ordinary effect of the cause, he is responsible. If he awoke into action an
indiscriminate power, he is responsible. If he gives directions vaguely and
incautiously and the person receiving them acted according to what might be
presumed to have been his understanding of them, he is responsible.
Common Intention and Abetment it Distinguished. The principle of joint action
enunciated in Section, 34 is very different from the principle of abetment, as there is a

7
Shri Kantiah v. State of Mysore. A.I.R. 1958 S.C. 672.
8
(1838) 8 C. and p. 541.
9
Bishop, Criminal Law, Vol. I, (3rd Ed.), Section 439.

241
clear line of demarcation between the two. In a ease where Section 34 applies, the person
commits an offence, while in the case of an abetment, he merely instigates or aids the
commission of the crime, In the illustration cited above in the case of B. V. Cruse, it was
uncertain who actually caused the death of the constable and even when this could be
ascertained it was immaterial to ascertain the liability of each of the participants. All were
prepared to commit the offence and, therefore, were held equally liable for the
consequence that ensued. Take another illustration. Several persons go out to help, while
some others wait some way off to give alarm if any one comes. Everyone of them has
committed the offence of theft and there are no grounds for any differentiation between
them. Then again, in a case of murder there is no reason to differentiate between 8
persons, of whom one holds the victim by the legs, another by the head, while the third
applies the knife to the victim's throat. In this ease, Section 34 applies to all of them and
all of them would be equally guilty of murder. However, under English law, in the ease
of a theft the actual mover of the articles would be known as principal in the first degree
and the others as the principals in the second degree. But this difference in nomenqiature
under English law does not make any difference with regard to their liability. Under
Indian law, if some persons are prepared only to facilitate the commission of the crime
and take no further part in the actual commission of the crime, they are known as abettors
only. If they are present at the time of the commission of the crime, they will be punished
under Section 114 of the Penal Code, as if they had actually committed the offence. In
case they are absent from the actual place of the commission of the crime they shall be
punished under Sections 109 and 115 or 116 of the Penal Code as the case may be.
Section 34 and 114 Distinguished. It may be of interest to make out the
distinction between Sections 34 and 114 of the Penal Code. The distinction is very fine
but nonetheless it is there. It is obvious that both Sections 34 and 114 contemplate cases
where an offence has been committed. Section 34 applies where a criminal act is done by
several persons in furtherance of common intention of all and makes all of them equally
liable, although only one of them may have committed the actual crime; while section
114 refers to the case where a person either by instigating or by aiding or conspiring
previous to the commission of the act renders himself liable as an abettor by being
present only when the act is committed, although he may have taken (no active part) in

242
the doing of it.10 Cases under Section 114 fail under Section 107 and have the additional
element of presence at the commission of the crime, while cases falling under Section 34
are distinct from cases of abetment and will apply to all offences described under the
Penal Code. Huda observers:11 “From the general accuracy of the Indian Penal Code and
the care taken in defining offence to keep in view all their distinct phases, we may
presume that Sections 34 and 114 were not intended to overlap”. Section 114 may be said
to be somewhat wider in one respect that Section 34 which defines joint liability. For
instance, an instigator working through an innocent agent would not be liable under
Section 34 while he would be liable under Section 114 But it is narrower in another
respect, as Section 34 deals with the case of conspiracy which is only a form of abetment
dealt with under Section 114.
Cases. Now let us study a few cases wherein the distinction between Sections 34
and 114 has been brought out. In the case of Manindra Chandra Ghosh v. K.E.12 Their
Lordships observed: “Section 34 does not involve abetment and therefore does not imply
any conspiracy and does not require proof that any particular accused was responsible for
the commission of the actual offence.” So also in another case,13 where a servant had
received money for sold by his master in contravention of the terms of his licence, it was
held that Section 114 did not apply and that the servant was guilty of the offence of
selling ganja without a licence by the operation of Section 34. In another case,14 the
accused was found to have been a member of an unlawful assembly which went armed
with lath is, and axes and looted the house of the complain ant. The accused himself did
not remove any property nor did he make any preparation for committing any theft nor
aiding any one in the commission of the theft, yet he was held liable by the trial court
under Sections 114 and 379 of the Indian Penal Code. On appeal, the Calcutta High Court
held that on these facts the accused, if he had been absent, would not have been
punishable as an abettor, His connection with the offence of theft arose from being a
member of the unlawful assembly, the common object of which was to comma theft, That
being his only connection with the apse, it was held that Section 114 did not apply.

10
Jan Mohd. (1864) 1 W.r. (Cr.) 49; Nfa Po Kyone (1933) 11 Rang. 354.
11
Huda:, p. 133.
12
19 C.W.N. 580; 41 Cal. 752.
13
Keshwar Lal Shaha v. Girish Chandra Dutt, 29 Cal. 496.
14
Hansa Pathak v. Banshi Lal Dass, 8 C.W.N. 519.

243
Huda15 criticizes this decision and observes:
I do not think the view of law taken in this case is correct. There may be
circumstances under which mere presence may amount to abetment, The accused, ii was
found, shared the common intention of his patty and was their leader. He was with them,
His presence alone, whilst he approved what nat going on, vies sufficient to constitute
him an abettor.
Section 114 introduces a statutory fiction whereby an abettor is treated as it’ lie
had .actually committed the offence himself, by reason of his presence at the time and
place of the offence.
To sum up, we may state that a person may be guilty of abetment even if he is not
present at the scene of the offence and even if the offence is not committed. If, the
offence is committed and ho is present when the .act is committed, Section 114 applies,
namely, that he shall be deemed to have committed the offence. Although the criminal
liability under both Sections 34 and 114 is similar, the basis for criminal liability is not
exactly identical. There need not be any abetment in the case under Section 34, as also in
the case under Section 114 there need not be any common intention. The whole object of
Sections 34 and 114 is to provide for cases in which the exact share of one of the several
criminals cannot be ascertained, though the moral culpability of each is clear and
identical. Neither of these sections should be interpreted to defeat the very object which
underlines them.16 There may be cases in which a person convicted under Section 302
read with Section 114 might as well have been convicted under Section 302 read with
Section 34.17
Cases on Section 34. Let us now examine some of the well-known cases which
have brought out the principles contained in Section 34 of the Penal Code. In Barendra
Kumar Ghosh v. Emperor18 the appellant was charged, under Section 302 read with
Section 34 of the Indian Penal Code, with the murder of n postmaster. On August 3,
1923, the sub-postmaster of Sankari Tola Post Office was counting money at his table in
the back-room, when several men appeared at the door which opened into the room from

15
Huda, p. 142.
16
Jai Mangal A.1.R. 1936 All. 437; see also Mahaurala Adi Reddy v. State of Hyderabad, A.1.R. 1956 S.C.
177.
17
Mukund, 61 Cal. 10
18
(1925) 52 Cal. 197 (P.C.): 52 lA 40: A.1 R. 1925 P.C., p. 1.

244
the courtyard and canting inside the door demanded of him to give up the money. Almost
immediately afterwards, they fired pistols at him. He was hit in two places and died
almost at once. Without taking any money, the assailants fled, separating as they ran.
Barendra Kumar Ghosh was pursued by the post-office assistants and was caught with a
pistol in his hands. He was tried for the offence of murder. His contention was that lie
was standing outside and had not fired at the deceased and that he was compelled to join
others for robbery and had no intention to kill the postmaster. The trial judge directed the
jury that if they were satisfied that the postmaster was killed in furtherance of the
common intention of all the three men, then the prisoner was guilty of murder whether he
fired the fatal shot or not. It was held both by the Calcutta High Court and by the Privy
Council that upon the true construction of Section 34 of the Code, the direction was
correct and that Barendra Kuniar Ghosh was guilty of the murder of the postmaster.
In Mahboob Shah v. Emperor19 (better known as the Indus River Case), Allah
Dad, the deceased, and a few others were going down the river Indus in a native boat for
cutting and collecting reeds on the banks of the river. When they had traveled a mile
down the stream, they saw Mohammed Shah, the father of Wali Shah (who absconded
and was never caught) bathing on the bank of the river. Mohammed Shah warned them
against collecting reeds from land belonging to him. Allah Dad in spite of these protests
collected reeds from that property. While returning with the bundle at reeds and going up
the stream, he was accosted by one Qasim Shah, the nephew of Mohammed Shah, who
tried to take the reeds from the boat. He then caught the rope of the boat and pushed
Allah Dad, whereupon the latter picked up a bamboo pole used for propelling the boat,
about 10 feet long and six inches thick and struck Qasim Shah. Qasim Shah shouted for
help. Whereupon Wali Shah and Mahboob Shah appeared on the scene with loaded guns.
On seeing them, Allah Dad and his friend Hamidullah tried to escape by running away.
But they were prevented from doing so by Wall Shah and Mahboob Shah. Wali Shah
fired at Allah Dad who died almost instantaneously. Mahboob Shah fired at Hamidullah
Wali causing him slight injuries. The trial court sentenced Mahboob Shah to seven years'
rigorous imprisonment for attempt to murder. But on an appeal, the Lahore High Court
convicted him also for murder under Section 302 read with Section 34 of the Penal Code

19
(1945) 47 Bombay L.R. 941; 72 1.A. 148, A.1.R. 1945 P.C. 118.

245
for murder of Allah Dad and sentenced Whim to death. Wali Shah, the real culprit, was
absconding. Mahboob Shah went' in appeal to the Privy Council against the conviction
and the sentence of death passed against him by the Lahore High Court for the murder of
Allah Dad. Their Lordships of the Privy Council allowed his appeal and set aside his
conviction for murder. Sir Madhavan Nair, while delivering the judgement, observed
thus:
Under Section 34 of the Penal Code, the essence of liability is to be found in the
existence of a common intention animating the accused leading to the doing of a
or 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 of all; if this is so then liability for the
crime may be imposed on any one of the persons in the same manner as if the act
were done by him alone. This being the principle, it is clear to Their Lordships,
that common intention within the meaning of the section implies a prearranged
plan, and to convict the accused of an offence applying the section it should be
proved that the criminal act was done in concert pursuant to the prearranged plan.
As has been observed, 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.... On a careful
consideration, it appears to Their Lordships that in the present case there was no
evidence and there were no circumstances from which it might be inferred that the
appellant must have been acting in concert with Wali Shah in pursuance of a
concerted plan when he along with his rushed to the rescue of Ghulam Qasim...
Their Lordship are prepared to accept that the appellant and Wall Shah had the
same intention, namely, the same intention to rescue Qasim Shah if need be by
using the guns and that in carrying out this intention the appellant picked out
Hamidullah for dealing with him and Wali Shah, the decreased, but where is the
evidence of common intentikno to commit the criminal act complained against, in
furtherance of such intention? Their Lordships find none. Evidence falls short of
showing that the appellant and Wall Shah ever entered into a premeditated concert
to bring about the murder of Allah Dad in carrying out their intention of rescuing

246
 Qasim Shah, 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. In their Lordship's view, the inference of common intention
within the meaning of the term of Section 34 should never be reached unless it is
a necessary inference deducible from the circumstances of the case.
These principles were explained by Their Lordships of the Supreme Court in Rum
Nash v. State of Madhya Pradesh20 where one Sunder was attacked on a particularly dark
night on the public road by the enemies who fired at him. There was no reliable evidence
as to whose fatal shot had caused the death of the deceased. There was only an indefinite
dying 'declaration of the deceased, and certain similar statements of neighboring residents
who said that all the accused persons had been found on the roadside near Sunder. The
appellant was convicted by the High Court under Section 302 send with Section 34 of the
Indian Penal Code for murder. On appeal the Supreme Court set aside the conviction of
the appellant. In delivering the judgement Mahajan J. observed:
Even if it is held true that alt the appellants were seen at the spot at the time of
.firing, this fact by itself could not be held enough to prove a common intention of the
appellants to murder. Sunder. It can well be that these four persons were standing
together and one of them suddenly seeing Sunder fired at him. This possibility has not
been eliminated by any evidence on the record. In such a situation when it would not be
known who fired the fatal shot, none of such persons could be convicted of murder under
Section 302 1.P.C. It seems to us that in this case the High Court failed to appreciate the
true effect of the decision of the Privy Council in Mohboob Shah v. Emperor and its
judgment in regard to she applicability of Section 34 LP.C. has to be reversed.
Thus it is clear that in considering the application of Section 34 I.P.C., we must
not lose sight of the fact that the essence of joint liability lies in the common intention to
commit the crime which was actually committed. If the crime alleged to have been
committed by the accused is one of murder, then it is the duty of the prosecution to
establish that all of them had the common intention to kill the deceased. It will not suffice
that they had started to commit an assault. However, it is not necessary to establish that

20
A.I.R. 1953 S.C. 420.

247
all the accused had conspired to kill at the same time, for they may become of one mind
at the last moment, but this must be established by legal evidence. Thus Their Lord-ships
of the Supreme Court refused to infer common intention to murder in Kripal Singh v.
State of U.P.21 where the three appellants were working in their field one morning. When
they saw two labourers of the place, Man Singh and Sher Singh, going past the field, they
asked them where they were going. On being told that they were to harvest Jairaj's
sugarcane field, they abused them and told them not to go there and work for them. Man
Singh and Sher Singh did’ not listen to them and walked on. When they had gone thirty
to forty paces, the three appellants rushed at them and began to beat them with the
handles of spears which were in the hands of Bhupal and Kripal and,yvith the lathi which
was in Sheorhj's lsand. Jairaj arrived at the spot and asked the appellants why they were
beating his labourers and stopped them from beating them. Sheoraj hit him on his legs
with the lathi and he fell down. Kripal Stabbed him with his spear near the ear. Bhupal
then stabbed him with the spear on the left jaw, put his legs on his chest and extracted the
spear hiade from his jaw. Just as the blade came off, Jairaj died. On these facts the High
Court upheld the conviction of the appellants under Section 302 of the Penal Code read
with Section 34
Thus, it is clear that “common intention” requires some meeting of minds before
the incident. Proof of holding the same intention, or of sharing sonic other intention, is
not enough. This was made clear by the Supreme Court in Pandurang v. State of
Hyderabad22 where five persons, including the appellant, were prosecuted for murder of
one Ram Grander Shelke who had gone to his field with his wife's sister, Rasika Bai, and
his servant, Subhanna Rao.
Rasika Bai started to pick chillies in the field, while another field, a furlong away
near the river. A little later, Rasika Bai heard shouts from that direction, so she ran to the
river bank with Subhanna and they saw all the jive accused attacking Ram Chander with
axes and sticks. Rasika Bai shouted out to the assailants not to beat Ran Chander but they
threatened her and they ran away. Rum Chander died on the spot almost immediately. All
the five accused were tried for murder; three of them were sentenced to death and two to

21
A.I.R. 1954 S.C. 706.
22
1955 S.C.J. 106; A.I.R. 1955 S.C. 216.

248
life imprisonment under Section 302 of the Penal Code. The three accused who were
sentenced for murder by the High Court appealed to the Supreme Court. Their Lordships
after examining the medical evidence and the evidence of Rasika Bai and Subhanna Rao
came to the conclusion that the conviction of Pandurang for the offence of murder of the
deceased under Section 302 read with Section 34 of Penal Code could nut be maintained.
Approving of the decision in Baresrdra Kwnar Charls and Mahboob Shah, Their
Lordships, therefore, convicted the appellant only under Section 326 I.P.C. arid sentenced
him to ten years' rigorous imprisonment and set aside his conviction for murder under
Section 302 I.P.C. by the Hyderabad High Court. But it may be stated that common
intention may be inferred from the facts and circumstances of the case and the conduct of
the accused, as was declared by the Supreme Court in Rishi Deo Pandey v. State of Uttar
Pradesh, where two accused, who were brother, were seen standing near the cot of the
victim who was sleeping. One of them was armed with a gandasa and the other with a
lathi. On a hue and cry being raised both of them were seen running away. The medical
evidence was that the deceased died of an incised wound on the neck which was
necessarily fatal. From these circumstances both the trial court and the High Court
inferred the common intention to cause death. Their Lordships of the Supreme Court held
that the lower courts were justified in coming to the conclusion that the two brothers
shared the common intention to cause death and that the Supreme Court would not
ordinarily interfere with the concurrent finding of fact by both the courts below, unless
the facts and the circumstances relied upon in support of the finding were clearly capable
of an explanation establishing the innocence of the accused.
Then again, common intention can be proved from the circumstances of the case
which throw a light on the state of the minds of the accused. This principle was
enunciated by the Supreme Court in Kchacheru Singh v. State of, U.P.,23 where eleven
accused were charged under Sections 148, 323 and 326 read with Section 149 of the
Penal Code. It was proved that cut of them three accused had attacked the complainant in
the first incident. In this incident certain injuries were suffered by the complainant,
although no injury was caused by a spear. The complainant ran away followed by these
three accused and the complainant and his companions were again attacked by them. The

23
A.I.R. S.C. 546.

249
Sessions Judge acquitted the eight accused and convicted the three accused. The High
Court in revision held that as a result of the judgement of the Sessions Judge the three
accused could not be convicted under Section 148 or Sections 323 and 326 read with
Section 149 as the ingredients to establish the existence of an unlawful assembly were
absent. The High Court, however, convicted these three accused under Sections 323 and
326 read with Section 34 of the Penal Code. On an appeal to the Supreme Court, Their
Lord-ships held that the provisions of Section 34 were applicable.
These three accused assaulted, the complainant in the first incident. They chased
the complainant and persisted in assaulting him and those who had come to his help. The
clear implication of this was that the assault in the second incident was the result of a
previous concert. The evidence was sufficient to prove that the accused had, been
actuated with the common intention to assault the victim. The accused, therefore, could
be convicted under Section 326 read with Section 34 of the Penal Code. But in the
absence of a clear finding that the accused shared the common criminal intention and that
he participated in the commission of the offence jointly with others, conviction under
Section 34 cannot be sustained. This principle was clearly laid down by the Supreme
Court in Zabar Singh v. State of Uttar Pradesh,24 where three accused A, B and C were
charged under Section 302 for having participated in the murder of a person by shooting.
The dying declaration of the deceased did not name B and C at all and stated that one D
fired the shot in A's presence. On the other hand, two eyewitnesses stated that it was A
who fired the shot while B and C were standing nearby armed with lathis. The trial court
discarded the dying declaration and relying upon the testimony of the eye-witnesses
convicted all the three accused under Section 302 of the Penal Code. On appeal the High
Court accepted the appellants appealed to the Supreme Court with special leave.
Delivering the judgement of the Supreme Court, Shah J. observed:
Section 34 and Section 149 Distinguished, before studying the distinction
between the two sections, it would be proper to quote them. Section 34 lays down:
“When a criminal act is done by several persons in furtherance of the common intention
of all, each of such persons is liable for the act in the same manner as if it were done by
him alone.” Section 149 provides:

24
AIR, 1957, SC 465.

250
 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 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.
Section 149 enunciates a principle of joint liability for an act of the confederate
which he had anticipated. Section 34 creates a similar rule of constructive liability but the
rule here necessarily is somewhat wider. Both sections, however deal with constructive
liability, that is to say, liability is based on a common intention, under Section 149it is
based upon common- object and knowledge of the probability. In the latter case the
accused is liable for the consequence which naturally flows from it or which, if not
natural, the accused knew to be likely. Section 34 may be said to be of an interpretative
character as it is contained in Chapter Two of the Penal Code dealing with general
explanation, whereas Section 149 finds its place in the chapter on “Offences against
public tranquility” and is merely declaratory of a principle of joint liability as a of
committing of that offence, is a member of the same assembly is guilty of that offence
natural consequence of a joint adventure. The object of this section is to make it clear that
an accused person whose case falls within its terms cannot put forward the defence that
he did not with his own hands commit the offence committed in the prosecution of the
common object of the unlawful assembly, or such as the members of the assembly knew
to be likely to be committed in prosecution of that object.25 Straight S. in another case26
observes that Section 149 lakes the accused out of the region of abetment and makes him
liable as a principal for the acts of each and a lately because he is a member of the
unlawful assembly.
In order that Section 149 may be brought to play three essentials must be
established, namely, first, that an offence was committed by a member of an unlawful
assembly; secondly, that the accused was a member thereof and that he intentionally
joined or continued in that assembly and knew the common object of the assembly; and,
thirdly, that the off6nce was committed either in prosecution of toe common object of

25
Per Edge J. in Bishwehar 9 All. 645; see also Mahabir Gope v. Bihar, A.I.R., 1963 S.C. 118.
26
Ram Partap 6 All. 121, 123.

251
,the assembly or such ns the members of the assembly knew to be likely to be committed
in prosecution of their common unlawful object. A Full Bench of the Calcutta High
Court27 held that any sudden and unpremeditated act done by a member of an unlawful
assembly would not render all other members liable, therefore, unless it was shown that
the assembly did understand and realise either that such an offence would be committed
or was likely to be necessary for that common object.
To bring an offence under Section 149, there should at least be five persons to
constitute the unlawful assembly (Section 141), while under Section 34 there is no such
limitation. Then again, the common intention in Section 34 is undefined and unlimited,
whereas the common object in Section 149 should not go beyond the five objects
specifically described in Section 141. Then again, for Section 34 to apply there should be
a cooperative criminal act, whereas under Section 149 all members of an unlawful
assembly become constructively liable for an offence committed by one or more of them.
Further, under Section 34 there must be proof of the criminal act, while under Section
149 constructive liability would arise from a mere criminal intention or knowledge, Dr
H.S. Gour28 points out the distinction between Sections 34 and 149 thus:
Section 149 differs from Section 34 in the following respects: (1) it
requires an assembly of five persons; (2) the common object must be one
specified in Section 141, whereas under Section 34 the common intention may be
any intention; (3) the offence actually committed is required by Section 149 to be
one which the members of the unlawful assembly knew to be likely to be
committed in prosecution of the common object; it need not be a criminal act in
actual furtherance of the common object which under Section 34 has to be; (4)
Section 34 requires some act, however, small to be done, whereas under Section
149 mere membership of the assembly is sufficient; (5) Section 34 enuciates a
mere principle of liability but creates no offence, while section 149 creates a
specific offence.
It may be remembered that Section 149 does not intend to subject a member of an
unlawful assembly to punishment for every offence which is committed by a member of

27
Queen v. Sabed Ali 11 B.L.R. 347 (F.B.)
28
H.S. Gour, Penal Law of India, Vol. 1(6 th Ed.), p. 626.

252
the assembly during the time they are engaged in the prosecution of the common object.
In order to make the accused liable as a member of unlawful assembly two other
conditions must be fulfilled, namely, first, that the offence must have been committed in
prosecution of the common object, or it was such as the members knew to be likely to be
committed; and secondly, that the accused must have been a member of the assembly at
the time the offence was committed.
Corporation is liable for criminal acts of its directors and agents
State of Maharashtra v. Syndicate Transport Co (P) Ltd.29
Per Paranjpe J:
The agreement was that the bus would be transferred in the name of the
complainant, and would be run by the company on the hire purchase agreement till the
satisfaction of the advance money. However, contrary to the understanding, the diesel
engine was fitted to another bus of the company and the bus was not transferred to the
complainant.
Consequently, the complainant prosecuted the company, its managing director, its
other directors and the shareholder under as 420, 406 and 403 of the IPC. The trial
magistrate passed a separate order discharging the directors and framed charges against
the company, its managing director, directors and the shareholders under s. 420, IPC. The
company preferred a revision before the sessions-court, with a request to quash the said
proceedings. Accepting this submission, the session judge reported the case to the high
court with a recommendation to quash the charge against the company. The sessions
judge was of the view that a corporate body acts only through its agents or servants and
the mens rea of such agents or servants cannot be attributed to the company.
While opposing the reference, the complainant contended that under Sec 2, IPC,
every person. was liable for punishment under the Code and under
Sec 11, IPC a corporate body like a company was included in the definition of a
‘person’ and therefore, a corporate body, like any other person ought to be indictable for
any offence punishable under the Code.
The company contended that though a corporate body was included in the
definition of a ‘person’ there were certain offences which could be committed only by an

29
A.I.R. 1964 Bom, 195.

253
individual human being and a corporate body could not therefore, be capable of
committing such offences. They further contended that certain offences had to be
punished only with imprisonment and it would not be possible to impose a punishment of
imprisonment on corporate bodies. According to them, a corporate body could act only
through some authorised agent or servant and it would not be possible or permissible to
attribute the guilty intention of the said agent or servant of the company so as to make the
company liable for the offence.
They, therefore, contended that the definition of a 'person' would have to be read
as being subject to the qualifying, clause 'unless there is anything repugnant in the subject
or context' and corporate bodies would have to be held to be immune from prosecution
for offences falling within the three categories mentioned above.
Section 2 and 11 of the Indian Penal Code 1860, state that:
Section 2 – Punishment of offences committed within India. – Every person
shall be liable to punishment under this Code and not otherwise for every act or omission
contrary or to the provisions thereof, of which, he shall be guilty within India.
Section 11 – Person. – The word `person' includes any Company or Association
or body of persons, whether incorporated or not.
The complainant however, submitted- that barring offences which could only be
committed by an individual or which mandatory entailed punishments or imprisonment, a
company or a corporate body was indictable for all other offences involving mens rea on
the ground that the mens rea of the authorized agents or servants, who purport to act for it
could be attributed to the company. According to it, the complainant was also prosecuting
the company for offences of criminal breach of trust or dishonest misappropriation of
property under ss 406 and 403, [PC, in the alternative, and these offences did not
prescribe a compulsory punishment of imprisonment and, therefore, the magistrate ought
to be directed to proceed against the company under those sections in the alternative.
The company contended that though these offences did not necessarily involve a
punishment of imprisonment, the mens rea of the agents or servants could not be
attributed to the company and it was not permissible to prosecute a company and a
corporate body for any offences involving mens rea.
In support of his contention, that the company could be prosecuted for the offence

254
committed by its servants, [the complainant] relied on... Director of Public 1Drosecutions
v Kent and Sussex Contractors Ltd30 in31 which it was held that a limited company could
be convicted of offences under the Defence Central Regulations 1939. A plain reading of
these two sections together would show that a company or a corporate body shall be
liable for indictment for all kinds of offences. It is not disputed that there are several
offences, which could be committed only by an individual human being, for instance,
murder, treason, hi go my, rape, perjury etc. A company which does not act by or for
itself but acts through some agent or servant would obviously not be capable of
commission of the aforesaid offences and would therefore, not be liable for indictment
for such offences. Again, there are certain other offences, which necessarily entail the
consequences of corporal punishment or imprisonment. A body corporate or company
cannot be subjected to such corporal punishment of imprisonment. Prosecuting a
company for such offences would only result in the court stultifying itself by embarking
oh a trial in which if a verdict of guilty is returned, no effective order by way of sentence
can be made. That will mean that the broad definition of a ‘person’ which included a
corporate body will have to be read as being subject to some kind of limitations.
In Russel on Crime,32 the reason for the change in our attitude towards corporate
bodies has been lucidly stated in the following words:
The modern tendency of the courts, has been towards widening the scope within
which criminal proceedings can be brought against institutions which have become so
prominent a feature of every day affairs, and the point is being reached here what is
called for is a comprehensive statement of principles formulated to meet the needs of
modern life in granting the fullest possible protection of criminal law to persons exposed
to the action of the many powerful associations which surround them - At common law,
corporations are now indictable for nuisance and breaches of public duty, whether
existing by the common law or created by statute, and whether the breach of duty is by
misfeasance or non-feasance. Corporations are often indicted for non-repair or illegal

30
(1944) KB 146.
31
See Ananth Bandhu v. Corpn of Calcutta AIR 1952 Cal. 759. A limited company was prosecuted for
breach of s. 407 of the Calcutta Municipal Act, which was committed by the proprietor of the company.
Punjab National Bank v. Inspector Karanchi Post Trust AIR 1951 Sind 142; Sunil Chandra Banerji v.
Krishna Chandra Nath AIR 1949 Cal. 689.
32
Russel on Crime, Vol. 1, 1958, p 104.

255
obstruction of highways, and it would seem that a corporation aggregate is indictable for
defamatory libel.33
In our country also, corporate bodies were initially indictable for minor breaches
of rules or bye laws or for offences involving petty fines only. In recent times, the ideas
of corporate activities have taken root and several legislations permitting the formation of
corporate bodies have been passed. Numerous corporate bodies have come into existence.
These corporate bodies include various public and private limited companies as well.
These corporate bodies necessarily act through the human agency of their directors or
officers and authorised agents. They reap all the advantages flowing from the acts of their
directors, servants or authorised agents and there seems to be no reason to exempt them
from liability for crimes committed by their agents or servants while purporting to act for
or on behalf of the corporate bodies.
The ordinary citizen is now very much exposed to the activities of persons acting,
in the name of corporate bodies, to his detriment.
In my view, therefore, ‘the scope within which criminal proceedings can be
brought against institutions which have become so prominent a feature of everyday
affairs’ ought to be widened so as to make corporate bodies indictable for offences
flowing from the acts or omissions of their human agents. Ordinarily, a corporate body
like a company acts through its managing directors or board of directors or authorised
agents or servants and the criminal act or omission of an agent including his state of
mind, intention, knowledge or belief ought to be treated as the act or omission, including
the state of mind, intention, knowledge or belief of the company. As adumbrated, a
company cannot be indictable for offences like bigamy, perjury, rape etc, which can only
be committed by a human individual or for offences punishable with imprisonment or
corporal punishment. Barring these exceptions, a corporate body ought to be indictable
for criminal acts or omissions of its directors, or authorised agents or servants, whether
they involve mens rea or not provided they have acted or have purported to act under
authority of the corporate body or in pursuance of the aims or objects of the corporate
body.

33
See Halsbury’s Law of England, third edn, 1955, para 521, pp. 281, 282 for laws relating to corporate
liability. Municipal Council Ratlam v. Vardichand (1980) Cr. LJ 1075 (56). Held, municipality is under law
bound to abate nuisance, and failure to do so is punishable under s. 188, IPC, see Part II for details.

256
 In the result, the reference is accepted. The charge framed against the accused no
1, Syndicate Transport Company (Private) Limited is quashed. The record is sent back to
the magistrate for trial in accordance with law.
Reference accepted.
Corporation is liable for criminal prosecution under Food Adulteration Act 1954
Municipal Corporation of Delhi v JB Bottling Company (P) Ltd34
Facts: The defendant company manufactured carbonated water bottles. It was
alleged that a bottle of Cold Crush Orange was found with &dead fly in it. Consequently,
the company was convicted under s 7 read with s 16 of the Prevention of Food
Adulteration Act 1954.
Per Yogeswar Dayal J:
Section 7, Prevention of Food Adulteration Act 1954, s 7 of the Act provides as
under. —
No person shall himself or by any person on his behalf manufacture for sale, or
store, sell or distribute —
(i). any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed except in
accordance with the condition of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the
Food (Health) Authority in the interest of public health; or
(v) any article of food in contravention of any other provision of this Act or on
any rule made thereunder.
Section 17 of the Act postulates an offence under the Act being committed by the
company and where an offence is committed by a company, persons guilty of the offence
committed by a company (unless such persons prove that the offence was committed
without their knowledge or that they had exercised all due diligence to prevent the
commission of such offence) are: –
(i) every person who, at the time of the offence, was in charge of. and was
responsible to the company for the conduct of the company;

34
(1975) Cr. LJ 1148.

257
 (ii) the company itself; and .
(iii) the director, manager, secretary or other officer, of the company against
whom it has been proved that the offence has either, been committed with his
consent or connivance or is attributable to any neglect on his part.
The questions referred to the Division Bench were:
(i) Whether a company as defined in s 17 of the Prevention of Food Adulteration Act
1954, enjoys immunity from prosecuting when under the said Act, it is alleged to.
have committed an offence to which the proviso to sub-s(1) of s 16 is not
applicable and for which the minimum penalty of imprisonment for a term of not
less than six months and fine of not less than one thousand rupees is provided.
(ii) If such a company does not enjoy the immunity from prosecution on its being
found guilty of such an offence, can a punishment of a fine be imposed on it?
It was however contended by the company that since the substantive part of
s16(1) made imposition of imprisonment and fine mandatory and since the company
could not be given the sentence of imprisonment, therefore, for offences regarding which
punishment of imprisonment was mandatory, a company could not be prosecuted at all.
In the decision of the Court of Appeal in the case of [1922] 2 1KB 530, it was
held that a limited company cannot be committed for trial on an indictment and,
therefore, it cannot also be tried. The position is made clear in the argument of Sir John
Simon, which was accepted by the Court of Appeal.
In the case of AIR 1970 Raj 145, BP Ben J, held that municipal corporation can
be prosecuted for offences which are only punishable with fine, for in the very nature of
things, imprisonment of a municipal council is out of question. The offences for which
the Municipal Council, Jodhpur was prosecuted were under ss 268, 278 and 290, the
punishment for which is fine.
In the case of AIR 1967 SC 997, the majority over-rulect their earlier decision
reported as AIR 1960 SC 1355 and accepted the minority view of Wanchoo J, expressed
in it. In this case, all that was laid down was that State was neither expressly nor,
impliedly exempted from the operation of s 218 of the Calcutta Municipal Act.
In Queen Empress v Wazir Jan, the trial court had convicted the respondent under
Sec 170 and 384 of the IPC, 1860. The trial court, however, did not pass, sentence in

258
respect of conviction under s 170, IPC. The state had gone in revision to the high court.
While discussing this question, whether the lower court was right in not passing
any sentence, Mahmood J observed as under:
I am of opinion that such an omission was illegal. Just as the maxim ubi jus ibi
remedium is a rule of jurisprudence, soit is a principle of the criminal law that where
there is an offence there must be a punishment, the genera rule being in either case
affected by exceptional provisions of the law whether provided by statute or by some
other legal authority, disturbing the uniformity of the application of general maxims. No
such provision or authority is to be found in our criminal law, whether belonging to the
domain of substantive law or of adjective law, Indeed, the provisions of Sec 170 of the
IPC itself are imperative, and they leave no room for doubting that whoever commits the
offence prescribed by that section must undergo punishment according to the behests of
that section, with the general rule contained in Sec 71 of that Code.
From the provisions of Sec 354 of the CrPC the following principles may be
deduced.
(i) If only corporal punishment is prescribed an artificial body like a company cannot
be prosecuted since it cannot be punished.
(ii) Sentence of punishment must follow conviction.
The second principle as observed by Mahmood J, is subject to the condition of
exceptional provisions of the law, whether provided by statute or by some other legal
authority.
The Division Bench in the case of TLR (1969) Delhi 1196 after examining the
provision of Sec 17 of the Act went on to observe:
Where the punishment of imprisonment is compulsory, the learned counsel for the
respondents suggested two alternatives: (1) in such cases a company or a firm may be
prosecuted but since it is not possible to imprison a company, the Court may dispense
with the punishment of imprisonment even under the provision of s16 and award fine
only, and (2) a firm may be prosecuted but not punished. As to the point raised by the
first contention the argument does not sound plausible. Under the substantive provision
of Sec 16, punishment by way of imprisonment is mandatory and I do not think the courts
are competent to perform a surgical operation on the section and say that though

259
punishment prescribed is cumulative yet in case of a company it may be punished with
fine only. As to the second argument, I do not think that the courts can stultify themselves
by permitting indictment if it cannot ultimately £Ca oil in conviction.
These observations were made as the division bench felt bound by the dicta laid
down by the Supreme Court in the case of State of Maharashtra v Jugmander La1,
wherein the Supreme Court, while interpreting a similar provision under s 3(1) of
Immoral Traffic in Women and Girls Act 1956, had held that the expression, `shall be
punishable with imprisonment and also with fine' means that the court is bound to award
sentence consisting both of imprisonment and fine. The accused involved in that case
should suffer both the corporal punishment and the fine.
The Supreme Court, in this case, was not considering the question, where
minimum sentence prescribed is both corporal and fine, whether it can be awarded to
artificial person, and, if they could not be awarded cumulatively, whether the sentence is
in so far as it was possible, could be awarded or not?
The fact remains that the company cannot be given the sentence of imprisonment.
The question, which arises, is in what way is the section to he interpreted?
The Division Bench in the case of Rameshwar Choote La135 after having held that
the legislative intent is clear that firms and companies have been expressly brought
within the purview of the penal provision of the statute, felt difficulty in applying it,
where the minimum sentence was both corporal and fine, on the ground that the courts
are not competent to perform surgical operation on this section and say that though
punishment prescribed is cumulative yet in the case of company it may be punished with
fine only.
Held, that a company, as defined in Sec 17 of the Prevention of Food Adulteration
Act 1954, does not enjoy immunity from prosecution when under the said Act, it is
alleged to have committed an offence to which the proviso to sub-s (1) of Sec 16 is not
applicable and, in case such company is found guilty of such an offence, it can be
punished with fine.
The reference is answered accordingly, and the criminal appeal will not be posted
before the Division Bench for disposal in the light of the aforesaid answer.

35
(1969) ILR Del 1196.

260
LIABILITY OF STATE FOR ACTS OF EMPLOYEES
In England, the state is not liable for the criminal acts committed by its servants.
This is based on the contention that ‘the King can do no wrong’ and that ‘the King is not
bound by a statute unless he is expressly named or unless he is bound by necessary
implication’.
According to Blackstone, no suit or action can be brought against the Sovereign,
even in civil matters, because no court can have jurisdiction over them.
The position in India till 1967 was similar to that in England law and the state was
not to be proceeded against under the IPC or under any other statute. However, in
Superintendent and Remembrance of Legal Affairs, West Bengal v Corpn. of Calcutta,36
a Full Bench of nine judges of the Supreme Court overruled its earlier decision in
Director of Rationing and Distribution v Corpn. of Calcutta,37 and held that the common
law doctrine, which states that the Crown (State) is not bound by a statute, save by
express provisions or necessary implication, is not the law of the land after the
Constitution came into effect. Both penal and civil statutes apply to citizens and states
alike.
State liable to pay compensation for death due to police atrocities
Saheli, A Women's Resources Centre v Commissioner of Police38
The Delhi Administration was held liable for payment of compensation to
Kamlesh Kumari for the death of her nine year old son, due to beating and assault by the
SF10 of Anand Parbat Police Station, Delhi. This based on the principle that the state is
vicariously liable for the tortuous acts of its employees done in the course of
employment.
In State of Rajasthan v Vidyavati, the court said:
The State should be as much liable for tort in respect of a tortious act committed
by its servant within the scope of his employment and functioning as such as any other
employer. ... In India, ever since the time of the East India Company, the sovereign has
been held liable to be sued in tort or in contract and the Common Law immunity never

36
AIR 1967 SC 997. The bench comprised of K Subba Rao CJ, KN Wanchoo, JC Shah, SMT Sikri, RS
Bachawat, V. Ramaswami, JM Shelat, V. Bhargava and CA Vaidialingam JJ.
37
AIR 1960 SC 1355.
38
AIR 1990 SC 513.

261
operated in India.39
The court further held that the Delhi Administration should take appropriate steps
for recovery of the amount paid as compensation or part thereof from the officers, who
would be found responsible.
State liable for police crime and to pay compensation to victims of sexual assault
Uttarakhand Sangharsh Samiti, Mussoorie
State of Uttar Pradesh40
During the agitation for the demand of a separate province by the people of
Uttarakhand, many agitators were sent to jail, shot, dead in indiscriminate firing by police
and, looted; women agitators were deprived of their jewellery, many of them raped,
molested and their modesty outraged. The manner in which illegal, unconstitutional,
inhuman and bestial activities were conducted by the state machinery was revealed by the
report submitted by Central Bureau of Investigation (CBI).
The court awarded exemplary compensation to the dependants of 24 persons who
were killed in firing by the police, seven women who were raped and 17 others who were
sexually molested. A compensation of Rs 10 lakh each, in case of death to the families of
the deceased and to rape victims and victims of sexual assault was awarded.
Advancing the cause of human rights41 and giving more teeth to the constitutional
guarantee for a right to live with dignity vide art 21, the judges declared that the, court
itself could award compensation in a case of human right violations. Observing that
unusual belligerence had been shown towards the people demonstrating for Uttarakhand
as a class, the court ordered damages as reparation to be paid for the constitutional wrong
committed. The cost was to be shared by the state and the Central Government and it was
to be an amount equivalent to one rupee per person per month, based on the population of
the region, for a period of five years. This would amount to Rs 35 crore which the court
ordered, should be earmarked specifically for a programme for the upliftment of women.
An important feature of the verdict was that the state had been vicariously held
responsible for crimes committed by its officers and asked to compensate in the victims.
The officers responsible for committing crimes had been individually and jointly

39
AIR 1962 SC 933, 940.
40
(1996) 1 UPLBEC 461.
41
Protection of Human Rights Act 1993, s 2(d), read:

262
prosecuted under the IPC.
`Human rights' means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the international covenants and
enforceable by courts of India.
The court declared that the principle of sovereign immunity would not apply in
the cases of violation of citizens’ fundamental rights. The purpose of public law was not
only to civilize public power but also to assure the citizens that they lived under a legal
system that aimed at protecting their interest and presenting their rights.
Uttarakhand Jan Morcha judgment set aside
AK Singh and ors v. Uttrakhand Jan Morcha and ors42
While allowing the appeal against the .judgment of the Allahabad High Court in
Uttarakhand the apex court held that the High Court without trial, and even without
considering the evidence, which may be adduced in the cases, ordered the government to
pay Rs 10 lakh each to the dependents of all the persons who died in police firing, Rs 10
lakh each were given to the victims of rape and molestation, judging the crime of rape
equivalent death and Rs 50,000 each for 398 persons who were detained by the police etc.
Accepting the petitioner's contention, the apex court held that fixing liability of
huge sums as compensation amounts to imposing heavy liability on the state and
therefore, the direction was clearly unsustainable and liable tb be vacated. The court
made it clear that if any sum had been disbursed to the claimant, the state would not
recover the same from them, and in case no payment had been made as yet the state need
not pay compensation to the victims.
The apex court made similar observation in respect of direction by the High Court
to the state government for remarking a special fund of a very heavy amount for the.
development of Kumaon and Garhwal region of the state as untenable.
Railway liable for rape by its employees
Chairman, Railway Board v Chandrima Das43
Facts: A writ petition was filed under art 226 of the Constitution against the
Chairman, Railway Board, claiming compensation for Hanuffa Khatoon, a Bangladeshi
national who was gang-raped by some employees of the railways. The respondent also

42
AIR 1999 SC 2193
43
AIR 1999 SC 2193.

263
claimed several other relief's including a direction to the appellant to eradicate anti-social
and criminal activities at Howrah Railway Station.44
Allowing the petition, the High Court awarded a sum of Rs 10 lakh as
compensation to the victim as it was of the opinion that the rape was committed at the
building belonging to the railways and was perpetrated by the railway employees.
Challenging the order in the apex court, railway Board contended that the:
(i) railways would not be liable to pay compensation to the victim, who was a
foreigner and not an Indian national;
(ii) since it was individual act, the accused should alone be prosecuted and on
being found guilty, should be punished and be liable to pay fine or compensation,
and having regard to the facts of the case, the Indian railways or, for that matter,
the Union of India would not be vicariously liable; and
(iii) for claiming compensation for the offence perpetrated on the victim, the
remedy lay in the domain of private law (law of torts) and not under public law
and, therefore, no compensation could have been legally awarded by the High
Court in the proceedings under art 226 of the Constitution and that too, at the
instance of a practising lawyer who, was in no way, concerned or connected with
the victim.
Per S. Saghir Ahmad J:
Hanuffa Khatoon was entitled to all the constitutional rights available to a
citizen's ‘right to life' was concerned. She was entitled to be treated with dignity and was
also entitled to the protection of her person as guaranteed under art 21 of the Constitution.
As a national of another country, she could not be subjected to physical violence at the
hands of the government employees who outraged her modesty. The right available to her
under art 21 was thus violated. Consequently, the state was under a liability to pay
compensation to her.45

44
The victim has arrived at the Howrah Railway Station from Bangladesh with a view to catch a train for
Ajmer. She was taken by some of the employees of the railway to Yatri Niwas. The room of the Yatri
Niwas was booked in the name of one of the employee against a railway card pass. She was raped there by
four railway employees. Later she was taken out to a rented house by another railway employee and was
raped again. Following the hue and cry, she was rescued by the police.
45
State of Rajasthan v Vidvalvati AIR 1962 SC 933; N Nagendra Rao and Co v. State of Andhra Pradesh,
AIR 1994 SC 2663; Common cause, A Registered Society v. Union of India AIR 1999 SC 2979.

264
COMMENTARY
The judgment of the apex court in the Uttarakhand appears to be a set back to the
human rights jurisprudence in India. The finding of the Court that since the amount of
compensation was huge, the state could not be held accountable for police crimes is
unthinkable in a welfare state like India. It may not be out of place to mention that the
apex court has held on more than one occasion that the ‘right to life and liberty’
enshrined under art 21 of the Constitution cannot be bartered at any cost at the hands of
the state machinery, particularly in case of sexual assault.
It would be in the interest of justice, if a larger bench of the Court is constituted to
review the judgment of the apex court in ‘Uttarakhand’ so as to settle the law on the point
and remove ambiguity arising out of the conflicting decisions on similar issues in
Uttarakhand Jan Morcha and Chandrima Das.
State liable to pay compensation for custodial death
Nilbati Behera v State of Orissa46
The deceased, aged about 22 years, was taken into police custody in connection
with the investigation of an offence of theft. He was handcuffed, tied and kept in police
custody. The dead body of the deceased with a handcuff and multiple injuries 'was found
on the railway track the next morning. The mother of the deceased wrote a letter to the
Supreme Court alleging custodial death of her son, claiming compensation on ground of
violation of art 21 of the Constitution. The court treated the letter as a writ petition under
art 32. The defen1ce of the respondents was that the deceased managed to escape from
police custody by chewing off the rope with which he was tied; that he could not be
apprehended thereafter in spite of a search; and that the dead body of the deceased was
found on the railway track with multiple injuries which indicated that he was run over by
a passing train. The medical evidence exclti4cd the possibility of any of the injuries to the
deceased being caused in a train accident while indicating that all of them could result
from merciles’s beating given to him. Accordingly, custodial death was held to be
establishe4 by the apex court. Having regard to the age of the deceased and his monthly
income, the State was directed to pay Rs 1,50,000 as compensation to the deceased's
mother and Rs 10,000 as costs to Supreme Court Legal Aid Committee that represented

46
(1993) 2 SCC 746.

265
the petitioner.
Custodial death worst crime
DK Basu v. State of West Bengal47
Custodial death is perhaps one of the worst crimes in a civilized society governed
by rule of law. The rights inherent in arts 21 and 22(1) of the Constitution require to be
protected. Any form of torture or cruel, Constitution or degrading treatment would fall
within the ambit of art 21, whether it occurs during investigation, interrogation or
otherwise. If the functionaries of the government become law breakers, it is bound to
breed contempt for law and would encourage lawlessness and, every man would have the
tendency to take law unto himself, thereby, leading to anarchism. No civilized nation can
permit that to happen. Does a citizen shed his fundamental right to life, the moment a
policeman arrests him? Can the right to life of a citizen be put in abeyance o his arrest?
The answer, indeed has to be an emphatic ‘No’. The precious right guaranteed by
art 21 of the Constitution of India cannot be denied to convicts, under trials, detinues and
other prisoners in custody, except according to the procedure established by law by
placing such reasonable restrictions as are permitted by law.
Strict Liability
There are some crimes which are punishable in IPC although no legal fault has
been committed by the accused. Such crimes may be of two kinds, namely, first, where
the wrongful act has been done by some one but tot the accused person, yet he is held
liable on the principles of vicarious liability; secondly, where a person is punished
although no fault has been committed by any one. These cases of crimes are termed as
cases of strict liability or responsibility. We have already studied vicarious liability, now
we shall study strict liability.
Crimes of strict liability48 are those in which the necessity for mess ma or
negligence is wholly or partly excluded. They are, in fact, cases of liability without fault.
In most of them even ignorance or mistake of fact is not admitted as a defence. Ignorance
or mistake of fact may negative recklessness and when excusable they may also negative
negligence. We may study the cases of strict liability under three heads: first, strict

47
AIR 1997 SC 610.
48
Glanville Williams prefers the word "strict" to "absolute". Criminal Law (2nd Ed.), p. 215.

266
liability at common law; secondly, serious statutory offences of abduction and bigamy;
and, thirdly, statutory offences.
(1) Strict Liability at Common Law. Cases of. strict liability at common law are to be
found in public nuisance, private libel, and contempt of court cases.
(a) Public Nuisance. A public nuisance has been defined by Stephen as "an
act not warranted by law or an omission to discharge a legal duty, which
act or omission obstructs or causes inconvenience or damage to the public
in the exercise of rights common to all Her Majesty's subjects."49 Under
the Indian Penal Code, Section 268 provides that a person is guilty of a
public nuisance, who does any act, or is guilty of an illegal omission
which causes common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right. A common nuisance is not
excused on the ground that it causes some convenience or advantage.
Typical examples are obstruction of the highway or the emission of noise or
smells from a factory in such a way as to cause serious inconvenience to the
neighborhood.
We have already seen that a person may be vicariously liable on a criminal charge
for the nuisance created by his agents or managers under his control even though be may
not know of its existence. A public nuisance is actionable civilly if an individual suffers
special damages, and in a civil case it is normally no defence to show that the defendant
did not intend to cause inconvenience or that he was unaware that this would be the
result, of his conduct. All this is equally applicable in a criminal case. As we have
observed above, under the Indian law50 a principal is not criminally answerable for the
acts of his agent, more so in cases of public nuisance. Can a public nuisance be abated by
a private individual? C.B. Pollock answered thus:
The Indian law is contained in Section 36 of the Easement Act which says:
“Notwithstanding the provisions of Section 24, the dominant owner cannot himself abate

49
Stephan, Digest of Criminal Law (8th Edn.) p. 184.
50
Bihuti, 46 Cal. 515.

267
a wrongful obstruction of an easement.” Thus it ‘vat held by the Madras High Court51
that the accused had no right of abating the public nuisance, namely,’ the demolition of
the superstructure and therefore the 1055 caused to the complainants by such demolition
was wrongful loss within the meaning of Section 23 of the Penal Code and the accused
was, consequently, held guilty of the offence of mischief.
(b) Private Libel. Criminal libels may be directed against a private individual as
well as against the public at large on account of their seditious, blasphemous, or obscene
nature. In a public libel there must be mens rea on the part of the accused. It must be
shown to have been published with a seditious intent or with the intention of
disseminating blasphemous or obscene matter.52 But in a private libel it is not very clear
that in mens rea is necessary. In tile law of tort a person may be liable for defamation
although he did not know that what he published applied to the plaintiff.53 For instance,
where someone say; that a couple are-engaged, when unknown to him the man is in fact
married to a third person who complains that his reputation has been injured. A criminal
prosecution on such cases, of course, can lie and would undoubtedly be one of strict
liability. Under the Indian law, Section 499 of tile Penal Code defines defamation and
Section 500 prescribes the punishment for the offence. Under the Penal Code the
imputation concerning any person should be made with the intention to harm the
reputation of the complainant. It is very doubtful that under the Indian law a charge under
Section 499 of the Penal Code would be a case of strict liability as it may probably be
under the English law.
(c) Contempt of Court, Contempt of court cases may take a variety of forms most of
which would fall outside the scope of criminal law, if the publication of the matter
is calculated to prejudice the fair trial of the proceedings pending in a court of
law, it would fall within the sphere of criminal law. In such cases it would be no
defence for the author and the publisher of the newspaper to plead that they did
not know that the behaviour in question was the subject of a pending prosecution.
For, in such cases as Lord Goddard C.J54 observed:

51
Gujjala, 57 Mad. 351.
52
Hulton v. Jones (1910) A.C. 20.
53
Cassidy, V. Daily Mirror Newspaper (1929) 2 K.B. 331.
54
R. v. Odham’s Press (1957), 1 Q.B. 80.

268
 The test is whether the master complained of was calculated to interfere with the
course of justice, not whether the author and printer intended the result, just as it is no
defence for the person responsible for the publication of a libel to plead that he did not
know the matter was defamatory and had no intention to defame.
It may be observed that in such cases of publications of comments, even where tie
publication of such matter is due to a genuine mistake or even good faith, the proprietors
and editors of newspapers are held vicariously liable.55 As we have noticed above, the
rigour of this rule has been softened by statutory law.56
We have noticed above that strict liability at common law does arise in cases of
public nuisance, private libel and contempt of court cases, though it is not very welt
defined. That is probably why Glanville Williams57 observes:
There does not seem to be any instance of strict responsibility at common law, nor
does there seem to be any statute that creates it in so many words. The question arises on
the construction of statutes that penalize conduct without express reference (or with only
limited reference) to the mental state.
2. Abduction and Bigamy
One of the earliest and most important decisions on the exceptions to the
application of the doctrine of mens rea in the case of statutory crimes is R. V. Prince58
which marks a departure from earlier times when it was thought that the legislature was
not competent to override the established rule of common law, namely, that the
ingredient of mens rea is a necessary element of every crime even though it is not
expressly mentioned in a statute. In this case Prince was charged of taking a girl under
the age of sixteen out of the possession of her father contrary to Section 55 of the
Offences against Persons Act, 1861.59 Prince knew that the girl was in the custody of her
father but bona fide believed, on reasonable grounds, that she was over sixteen: Had this
been so, the crime would not have been committed. But Prince was held by a majority of
fifteen judges to one that he was rightly convicted. Blackburn J. observed:
We are of opinion that the intention of the legislature sufficiently appears

55
R.V. Evening Standard (1954), 1 Q.B. 578.
56
Administration of Justice Act, 1960, Section 11.
57
Williams, Criminal Law, p. 238.
58
(1875) L.R. 2 C.C.R. 154.
59
Re-enacted by the Sexual Offences Act, 1956, Section 20 g.

269
 to have been to punish the abduction, unless the girl, in fact, was of such an age as
to make her consent an excuse, irrespective of whether he knew her to be too
young to give an effectual consent and to the that age at sixteen.... The man who
has connection with a child, relying on her consent, does it at his peril if she is
below the statutory age.
Bramwell B. added: “The legislature has enacted that if any one does this wrong
act, he does it at the risk of her turning out to be under sixteen.” In other words, he
proceeded on the view that the accused’s conduct would have been immoral; while
Denman J. held that it was a tort against the father's parental rights.60 It was later on
explained by the judges61 that Prince was held guilty because he intentionally took a
particular girl out of the possession of her father. Prince's case is to be distinguished from
R. V. Hibbert62 where the accused was also charged under Section 55 of the Offences
against Person Act, 1861. But in that case the accused had met the girl in the street, took
her to another place and seduced her and left her where he had found her. The girl was in
the custody of her father but it was held that in the absence of a finding by the jury that
the accused was aware of this fact or had willfully abstained from inquiring about the
guardianship of the girl, he must be acquitted. He was acquitted because he did not have
actual or constructive knowledge that the girl was under anybody's guardianship. The
decision in Prince's case lays down clearly that one who abducts a girl does so at his peril
so far as the age is concerned. Therefore, all statutory provisions that are designed to
protect young girls or their guardians' right of custody must be similarly construed on
grounds of public policy. Under the Indian law kidnapping from lawful guardianship is
punishable under Section 363 of the Penal Code. If Prince had been tried by an Indian
court, he would have been held guilty under that section, because here too the defence
that the accused -not know that the girl was under the, statutory age or that from her
appearance he might have thought that she was of greater age could not be accepted.
Bigamy. Under English law the difficulty of applying the doctrine of mess rea to
cases of bigamy is probably due to the vague drafting of Section 57 of the Offences
Against Persons Act, 1861, which runs thus:

60
See also Lugh v. word (1945) 2 All. E.R. 338.
61
R. v. Maugham (1934) 24 Cr. A.R. 130.
62
(1869) L.R. 1. C.R.R. 164.

270
 Whosoever, being married, shall marry any other person during the life of the
former husband or wife.., shall be guilty of felony... provided that nothing in this section
contained shall extend to any person marrying a second time whose husband or wife shall
have been continually absent from such person for the space of seven years then last past,
and shall not have been known by such person to be living at that time or to any person
who at the time of such second marriage shall have been divorced from the bond of the
first marriage.
It has been said that the word “former” in the definition of the offence is
superfluous and that the proviso is unnecessary because a divorced person is not married
within the meaning of the Act. Under English law a person who has been judicially
separated is now subject to that law, for a divorced person is one whose marriage has
been totally dissolved. The first case on this problem was decided by the judges in .B. v.
To Iron,63 where the accused was charged of bigamy under the above Act. She had
married A in September 1880. In November 1881 he deserted her and as a result of her
inquiries she believed that he had been lost in a vessel which went down with all hands
on board. In January 1887 she believing herself to be a widow went through the
ceremony of marriage with I. The circumstances were known to Y and there was no
concealment of the ceremony. It was held 'that she could not be convicted of bigamy.
Stephen 3 thought that the circumstances fell under the plea of mistake of fact excusing
the prisoner. He observed:
The conduct of the woman convicted was not in the slightest degree immoral; it
was perfectly natural and legitimate.... It appears to me that every argument which
showed in the opinion of the judges in R. V. Prince that the legislature meant nuclear and
abductors to act at their peril, shows that the legislature did not mean to hamper what it
not only intended but naturally and reasonably supposed by the parties to be a valid and
honourable marriage, with a liability to seven years penal servitude.
Wills J. observed:
There are many things prohibited by no statute – fornication and seduction, for
instance – which nevertheless no one would hesitate to call wrong; and the intention to do
an act wrong as a - general rule exists before the act done can be considered a crime.

63
(1889) 23 Q.B.D. 168.

271
 The learned judge further pointed out that rule of mens rea is not an inflexible one
and in the circumstances of this case since there was no immorality in the act and Mrs.
Tolson acted bane fide under the honest belief that the first husband was dead, she should
not be convicted.
We have to contrast the case of Tolson with the latter case of B. v. Wheat and
Stocks64 where Wheat, a man of little education, instructed his solicitors to obtain a
divorce from his first wife and received a telegram from them stating that he would
shortly receive the necessary papers for signature. He thereupon married Stocks and at his
trial for bigamy the jury, found that he believed on reasonable grounds and on good faith
that he had - been divorced from his first wife. He was, nevertheless, convicted and his
conviction was affirmed on appeal. The Court of Criminal Appeal held that there was not
sufficient evidence that Wheat bad reasonable grounds for believing that he had been
divorced. But the judgement proceeds to declare in general terms that a reasonable belief
that the first marriage had been dissolved is no defence to the charge of bigamy. Avory J.
observed that in the case of the first exception of the Act, belief afforded a ground for
defence.
Judicial Approach on Group Liability
A crime may be committed by an individual, or in collaboration with others. An
individual committing a crime would be punished according to the nature of the offence
committed. However, the difficulty arises when several persons are engaged in the
commission of an offence in different capacities. While one of them might be engaged in
the actual commission of the offence, say murder, the other might have assisted the
assailant by placing a knife in his hand, and another might have chalked out ht plan but
stayed away from the scene of occurrence throughout the commission of the act. In such
cases; a distinction is drawn between the acts of each of such individuals according to
their mode and degree of participation of involvement in the commission of the offence
for ascertaining guilt and awarding punishment. Such persons may broadly be classified
into principals and abettors. According to English law, criminals are classified into four
categories on the basis of their participation in the act. These are: (i) principals in the first
degree, (ii) principal in the second degree, the person who being present at the scene of

64
(1921) 2 K.B. 119.

272
occurrence aids and assists in the commission of a crime, (iii) accessory before the fact
(commission of crime) and (iv) accessory after the fact. Under Indian law, there is no
distinction between the principals as there is no practical utility (after the commission of
crime) of such a classification since the punishment prescribed for both the categories of
criminals is one and the same.
Apart from the enacted provision, courts have also interpreted and construed the
provisions in such away so as to give application to the provisions in letters and spirit.
Many a times courts have also departed from the letters of provisions because much
indulgence in letters of law may destroy the spirit of law judicial approach on group
liability or doctrine of combination is as follows:
Barendra Kumar Ghosh v. King Emperor65
Pacts; A. sub-postmaster counting money at his table while at Sankuntalla post
office in Bengal was shot and he died almost at once. The accused ran without taking the
money and one man was caught while the others escaped. He was sentenced to death by
the sessions court which was confirmed by the High Court. Hence the appeal to Privy
Council.
Per Lord Summer, Lord Atkinson and Sir John JJ:
Thus the effect is that, where each of several persons does something criminal, all
acting in furtherance of a common intention, each is punishable for what he has done, as
if he had done it by himself. Such a proposition was not worth enacting, for if a man has
done something criminal in itself, he must be punishable for it, and none the less so that
others were doing other criminal acts of their own at the same time and in furtherance of
an intention common to all. In effect, this means that if three assailants simultaneously
fire at their victim and lodge three bullets in his brain, all may be murderers, but if one
bullet only grazes his ear, one of them Is not a murderer and, each being entitled to the
benefit of the doubt all must be acquitted of murder, unless the evidence inclines in
favour of the marksmanship of two or of one.
This argument evidently fixes attention exclusively upon the accused person's
own act. Intention to kill and resulting death accordingly are not enough, there must be
proved an act, which kills, done by several persons and corresponding to, if not identical

65
AIR 1925 PC 1.

273
with, the same fatal act done by one. The answer is that, if this construction is adopted, it
defeats itself, for several persons cannot do the same act as one of them does. They may
do acts identically similar, but the act of each is his own, and because it is his own and is
relative to himself, it is not the act of another or the same as that other's act. The result is
that Sec 34, construed thus, has no content and is useless.... Suppose two men tie a rope
round the neck of a third and pull opposite ends of the rope till he is strangled. This they
said really is an instance of a case, under Sec 34. Really it is not. Obviously each is
pulling his own end of the rope, with his own strength, standing in the position that' he
chooses to take up, and exerting himself in the way that is natural to him. In effect each
pulls as hard as the other and at the same time equally contribute to the result. Still the act
for which either if done by himself alone, is precisely not the act done by the other
person. There are two acts, for which both actors ought to suffer death, separately done
by two persons, but identically similar.
Let us add the element that neither act without the other would have been fatal; so
that the fatal effect was the cumulative result of the acts of both. Even this does not make
either person do what the other person does; it merely makes the act for which he would
be liable if done by himself alone, an attempt to murder and not an act of murder, and
accordingly the case is not an illustration of Sec 34.
To this, the reply was made before the High Court, that, in a case where death
results from the cumulative effect of different acts whether because it cannot be shown
that it was not his act or acts, each actor must be deemed guilty of murder, though alone
which took the victim's life, it is not easy to determine. The section really means 'when a
joint criminal act has been done by the acts of two persons in furtherance of a common
intention each is liable for that joint criminal, act as if he had done it all by himself'. On
the other hand, if it is read as the appellant reads it, then, returning to the illustration of
the rope, if both men are charged together but each is to be made liable" for the act only
and as if he had done it by himself, each can say that the prosecution has not discharged
the onus, for no more is proved against him than attempt which might not have succeeded
in the absence of the other party charged. Thus, both will be acquitted of murder, and will
only be convicted of an attempt although the victim is and remains a murdered man. If,
on the other hand, each were tried separately by different juries, either jury or both might

274
return, unimpeachable verdicts of murder, and then both men would be justly hanged...
There is a difference between object and intention, for, though their object is
common, the intentions of the several members may differ and indeed may be similar
only in respect that they are all unlawful, while the element of participation inaction,
which is the leading feature of Sec 34, is replaced in Sec 149, by membership of the -
assembly at the time of the committing of the offence.
Both sections deal with combinations of persons, who become punishable as
sharers in an offence. Thus, they have a certain resemblance and may to some extent
overlap, but Sec 149 did not at any rate relegate Sec 34 to the position of dealing only
with joint action by the commission of identically similar criminal acts.
As to Sec 114, it is a provision, which is only brought into operation when
circumstances amounting to abetment of a particular crime have first been proved, and
then the presence of the accused at the commission of that crime is proved in addition.66
Apart from the enacted provisions, court have also interpreted and consisted the
provisions in such a way so as to give application to the provisions in letters and spirit.
May a times court have also departed from the letters of provisions because much
indulged in letters of law may destroy the spirit of law. Judicial approach on group
liability or doctrine, of combination is as follows:
On the basis of above discussion it can be said that court have played a pivotal
role in interpreting and construing the provisions which helps us to understand the minds
of framers.
Abetment is a crime apart does not in itself involve the actual commission of the
crime abetted.... Because participation de facto (as this case shows) may sometimes be
obscure in detail, it is established by the presumption juris et de jure fine that actual
presence plus prior abetment can mean nothing else but participation. The presumption
raised by Sec 114 brings the case within the ambit of Sec 34.
The appeal is dismissed.

66
Abhi Misser v. Lachmi Narain (1990) 27 ILR R 566.

275
Common intention is different from same or similar intention
Mahbub Shah v Emperor67
Per Sir Mahadevan Nair, Lord Thaikerton, Sir John Beamount JJ:
This is an appeal by special leave against a judgment of the Lahore High Court...
confirming on appeal the conviction of the appellant of the murder of one Allah Dad and
the sentence of death passed on him by the sessions judge... The main question... is
whether the appellant has been rightly convicted of murder upon the true construction of
Sec 34 of the I.P.C, 1860;
The deceased Allah Dad died as the result of gunshot wounds inflicted on him.
One Wall Shah, who is said to have fired the shot that killed the deceased, is a fugitive
from justice.
...On 25 August 1943, at sunrise, the deceased, Allah Dad, and a few others had
left their village Khanda Kel, by boat for cutting reeds growing on the banks of the Indus
river. When they had traveled for about a mile downstream, they saw Mohammad Shah,
father of Wall Shah (absconder) bathing on the bank of the river. On being told that they
were going to collect reeds, he warned them against collecting reeds from land belonging
to him. Ignoring his warning they collected about 16 bundles of reeds, and then started
for the return journey. While the boat was being pulled upstream by means of a rope,
Ghulam Quasim Shah, nephew of Moharnmad Hussain Shah (acquitted) who was
standing on the bank of the river, asked Allah Dad to give him the reeds that had been
collected from his uncle's land. He refused... Quasim Shah then caught the rope and tried
to snatch it away. He then pushed Allah Dad and gave a blow with a small stick, but it
was warded off on the rope. Allah Dad then picked up the tan from the boat and struck
Quasim Shah. Quasim Shah, then shouted out for help and Wall Shah and Mahbub Shah
came up. They had guns in their hands. J When Allah Dad and Hamidullah tried to run
away, Wali Shah and Mahbub Shah came in front of them and Wali Shah_fired at Allah
Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing injuries to him.
(Lari is a bamboo pole for propelling the boat about ten feet long and six inches thick.]
On the above facts the learned judges of the high court came to the conclusion
that Chulam Quasim was wrongly convicted of murder under Sec 302/34 of the IPC 1860

67
AIR 1945 PC 118.

276
on the following reasons.
Bhandari J. with whom Teja Singh J. concurred, first held that Chulam Quasim
had no common intention of killing any member of the complainant party when he went
to the bank of the river in order to demand the bundles of reeds which has been collected
from his uncle's lands.
Then the learned judge addressed himself to the question ‘whether a common
intention,’ to commit the crime which was eventually omitted by Mahbub Shah and Wall
Shah came into being when Chulam Quasim Shah shbuted to his companions to come to
his rescue and both of them emerged from behind the bushes and fired their respective
guns. This he answered in the negative, holding that so far as Quasim Shah was
concerned he did no more than ask his companions to come, to his assistance when he
was knocked with a pole by the deceased and that he could not have been aware of the
manner in which assistance was likely to be rendered to him or his friends were likely to
shoot at and kill one man and injure another. In the result he was acquitted of all
offences.
Absence of charge against two out of five remaining three cannot be convicted
under Sec 149
Pandurang v State of Hyderabad68
Five persons including the three appellants – Pandurang, Tukia and Ehilia,
(Tukaram and Nilia) were prosecuted for the murder of one Ram Chander Sheike and
each was sentenced to death by the Sessions Judge. In the High Court All Than and VR
Deshpande JJ who heard the case differed. The former upheld the conviction but was of
the opinion that the sentence in each case be commuted to imprisonment for life. The
latter favoured acquittal in all five cases.
Hence, the matter was referred to the third judge, PR Reddy. He favoured the
former view and upheld the conviction of all the accused under Sec 302 IPC 1860.
However, on the question of sentence he awarded death sentence, in the case of
Pandurang, Bhilia and Tukia and life imprisonment to Tukaram and Nilia (they did not
preferan appeal). On 7 December 1950, about 3 pm, Ramchandra Shilke, who had gone
to his field near a river called Papana was attacked by five, accused with axe and stick

68
AIR 1955 SC 216.

277
resulting in his death of the on the spot almost immediately. Rasika Bai (deceased's wife)
and Subhana (servant) who were present at the scene have stated that (i) Tukia struck
Ramchander on his cheek and also on his head; and (ii) Pandurang hit him on the head.
After Ramchander fell down Bhilia hit him on 6w neck
The medical evidence shows that the injury that caused death of Ramchander was
the one on the neck and Ehilia was responsible for that for which he was charged and was
rightly convicted under s302 of the IPC 1860. His conviction was accordingly upheld by
the court.
As regards Tukia, it was proved that Tukia alone caused the fatal injury on the
cheek which caused a lacerated wound on the left side of the face which crushed the
upper and lower jaws including the lips and teeth. The court accordingly held his
conviction under Sec 302 was justified.
In case of Pandurang it was proved that he caused a non-fatal injury on the head,
which was not sufficient to cause the death of the deceased.
While setting aside the conviction- of Pandurang: under Sec 302 with the aid of
either Sec 34 or Sec 149. Of the IPC, the Supreme Court said that none of the provisions
could be invoked in this case. As regards application of Sec 149 of the IPC, the court
said, that, when a person is not charged under Sec 149; of the IPC, even if it is possible to
convict under that section the court would not do so. Nevertheless, in the present case
there was no evidence, indicating any, common object between the accused to attract Sec
149 of the JPC. All that was said was that the deceased Ramchander bought' a field from
one Shivarnnta Patelni about a year before the murder. It is said that the three accused
Nilia, Uhilia and Tukia used to live in that field. When Ramchander bought it he turned
the in out; which might be cause for enmity against him. The court said even if, this
might be indicative of prior concert it only embraces, Nilia, Bhilia and, Tukia and not
Pandurang. Hence from the facts no inference of common object could be inferred.
Pandurang, though armed with an axe, only inflicted a slight blow on the scalp which did
not break any of the fragile bones, and from the fact that two others (Tukararn who were
lightly armed with sticks-inflicted no injuries at all, Sec 149 was out of question.
As regards the application of Sec 34 of the IPC, the court said that it is well
established that a common intention presupposes prior concert. It requires a pre-arranged

278
plan because before a man 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. Since
there is no-evidence of any prior meeting between the accused before the attack or even
immediately before the question of application of Sec 34 of the IPC does not arise. Each
case must rest on its facts and the mere similarity of the facts in one case cannot be used
to determine a conclusion of fact in another. Careful perusal of facts in Pandurang's case
do not warrant an inference of common intention. Hence, even if a charge to this effect
had been made, no conviction could take place on that basis. Pandurang could be liable
only for what he actually did. His case accordingly falls under Sec 326 (voluntarily
causing grievous hurt by dangerous weapon) A blow on the head with an axe which
penetrates half an inch into the head is likely to endanger life' (Sec 326) and is not
sufficient to cause death (Sec 302).
The court accordingly set aside the sentence of death in case of imprisonment. In
case of the other two accused, death sentence was commuted to life imprisonment.
Appeal partly allowed and order passed accordingly.
Common intention must be anterior in time to the commission of crime
Ram Tahal v. State of Uttar Pradesh69
Facts: Six accused were charged with offences under Sec 302 read with Sec 148,
149 and 307 IPC for having formed an unlawful assembly with the common object of
demolishing the thatched roof of the complainant's house, and having committed the
murder of two persons.
Per P Jagmohan Reddy J and PG Palekar J:
A five-judge Bench of. Court in Mohan Singh v State of Punjab70 has further
reiterated this principle where it was pointed out that like Sec 49 of the IPC, Sec 34 of the
IPC also deals with cases of constructive liability but the essential constituent of the
vicarious criminal liability under Sec 34 is the existence of a common intention, but
being similar in some ways the two sections in some cases may overlap. Nevertheless
common intention, which Sec 34 has as its basis, is different from the common object of
unlawful assembly. It was pointed out that common intention denotes action in concert

69
AIR 1972 SC 254.
70
AIR 1963 SC 174.

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and necessarily postulates a prearranged plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary in character but must-be
actuated by the same common intention which is different from same)' intention or
similar intention... the question is whether that conviction under Sec 302 and 307 can be
sustained on the ground that they had a common intention to commit the said offence.
There is no doubt that a common intention should be anterior in time to the
commission of the crime showing a pre-arranged plan and prior concert, and though,, it is
difficult, in most cases to prove the intention of an individual, it has to be inferred from
the act or conduct or other relevant of circumstances of the case. This inference can be
gathered by the manner in which the accused arrived on the scene and mounted the
attack, the determination and concert with which the beating was given or the injuries
caused by one or some of them, the acts done by others to assist those causing of the
injuries, the concerted conduct subsequent to the commission of the offence for instance,
that all of them had left the scene of the incident together and other acts, which all or
some may have done, as would help in determining the common intention. The totality of
the circumstances must be taken into consideration in arriving at the conclusion whether
the accused had a common intention to commit an offence with which they could be
convicted.
Distinction between Sec 34 and 107
Comparing this section with that defining abetments. It will be seen that, while
the latter punishes as instigator simpliciter the section demands his closer association in
the actual act of crime. Generally speaking and abetment is complete, though the act
abetted may or may not be committed secondly, the person abetted may or may not be
one capable by law of committing an offence thirdly the person abetted may or may not
have the same guilty intention or knowledge as that of the abettor, fourthly, the abettor's
presence - may or may not be necessary at the scene of the offence41 all of which are the
pre-requisites of one's liability under this section.
So far as Sec. 34, Indian Penal Code, is concerned, it embodies the principle of
joint liability in the doing of a criminal act, the essence of that liability being the
existence of a common intention. Participation in the commission of the offence in
furtherance of the common intension invites its application. Section 109, Indian Penal

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Code, on the other hand, may be attracted even if the abettor not present when the offence
abetted is committed provided that he had instigated the commission of the offence or has
engaged with one or more other persons in a conspiracy to commit an offence and
pursuant to that conspiracy some act or illegal omission takes place or has internationally
aided the commission of an offence by an act or illegal omission allegation of conspiracy
or common intention, it would make little difference if a specific overt act is attributed to
the first accused or not. In that context, the mere fact that, according to the records of the
Tehsildar, he never applied for mutation under his signature, never appeared before the
Tehsildar to support the purported will, and made no statement in the proceedings, would
not by itself exonerate him of the charge. If the will had been forged for the benefit of the
two brothers, pursuant to a conspiracy between them and certain others, or with the
common intention of all or some of them the mutation was secured on the basis of a
forged document and perjured evidence and impersonation, the death of one of them
would not put an end to the cause for criminal action against the surviving accused.
Criminal Conspiracy
Section 120 : A Definition of criminal conspiracy- When two or more persons
agree to do, or to be done –
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall
amount to criminal conspiracy unless some act besides the agreement is done by one or
more parties such agreement in pursuance thereof.
Explanation – It is immaterial whether the illegal act is the ultimate object of such
agreement or is merely incidental to that object.
Distinction between Section 120-B and Section 107
Conspiracy is a substantive offence under section 120-B. It has nothing to do with
abetment Section 120-A provides an extended definition of criminal conspiracy covering
acts which do not amount to abetment by conspiracy within the meaning of section 107.
Where a criminal conspiracy amounts to an abetment under section 107 it is unnecessary
to invoke the provisions of section 120-A or section 120-B because the Code has made

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specific provision for the punishment of such a conspiracy.
In case of conspiracy under section 107 a mere combination of persons or
agreement between them is not enough. An act or illegal omission must take place in
pursuance of the conspiracy and in order to the doing of the thing conspired for in case of
section 120-A the mere agreement is enough, if it is to commit an offence. So far as
abetment by conspiracy is concerned the abettor will be liable to punishment under
varying circumstances detailed sections 108 to 117. The offence to criminal conspiracy
under section 120-A is punishable under section 120-B.
Sections 34, 120-A and 149, I.P.C. –
Main distinction between the three sections. Turning now, to the distinction
between this section, Sec. 149 and Sec. 120-A, which defines criminal conspiracy it
would be observed that the last-named section is wider than this section or Sec. 149 in
that a mere agreement between two or more persons, followed by an overt act by any of
them in pursuance of the agreement amounts to criminal conspiracy, though the act in
itself may not amount to an offence, but under this section that act must in itself be
criminal. In practice the three sections may, at times, overlap one another, but the main
distention between them lies in the fact that while under this section criminality ensures
from the doing of a criminal act in furtherance of the common intention criminal liability
under Sec. 120-A only ensures from the moment two or more persons agree, which
confines mens rea within narrower limits, though, if there is an agreement, the act need
not be criminal, while under this section there need be no proof of agreement, since a
mere common intention would suffice but in that case the act itself must be criminal and
proved to have been done in furtherance of common intention. Section 149 assumes the
presence of atleast five participants in the crime, which, again, may or may not be case
covered by this section or Sec. 120-A. But the elements constituting the mens rea are
there wider in that, as required by this section, there need be no common intention, nor
common agreement as required by Sec. 120-A, but merely common object or failing this,
even knowledge on the part of any member that the object.

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