S.
34 - COMMON INTENTION
I. Principle of Joint Liability
According to S. 34, when a criminal act is done by several persons in furtherance of
common intention of all, then in such cases, each of such persons is liable for that act in
the same manner as if it were done by him alone. This section is based on the principle
of joint liability. However, this section is only a rule of evidence and does not create
substantive offence. The distinctive feature of S. 34 is the element of participation in the
action.
II. Ingredients of S. 34
To attract the principle of joint liability under S. 34, there should be:
1. Some criminal act;
2. Criminal act must be done by more than one person;
3. Criminal act done by such persons should be in furtherance of the common
intention of all of them;
4. Common intention in the sense of a pre-arranged plan b/w them;
5. Participation in the act constituting the offence;
6. Physical presence at the time of commission of crime of all persons; but physical
presence of all is not necessary in some cases.
A. CRIMINAL ACT
The section speaks of a “criminal act” being done by several persons. If the act in
question is a lawful act, this section will not apply. Where four persons were exercising
their right of private defence, they were engaged in a lawful act in the course of which
one of them unlawfully caused death. The other accused could not be held responsible
with the help of Section 34 for the reason that acts jointly done by them was a lawful
and not a criminal act. A “criminal act” is not the same thing as an “offence”. An offence
is the result of a criminal act. Therefore, the words “criminal act” are wider than the
words “offence” as defined in Section 40. A ‘criminal act’ in Section 34 includes a series
of acts, omission to act being included within the meaning of the word ‘act’
B. DONE BY SEVERAL PERSONS
Several persons in this section means two or more persons. This section enunciates the
principle of joint liability, by virtue of which two or more persons must intentionally do
an act jointly, and it would be deemed as if each of them had done it individually.
C. IN FURTHERANCE OF 'COMMON INTENTION'
The term common intention has been given various meanings, some of which are as
follows :
1. It implies a pre-arranged plan, prior meeting of minds, prior consultation in
between all the persons constituting the group.
2. It means a desire to commit a criminal act without any contemplation of the
consequence.
3. It means the mens rea necessary to constitute an offence.
4. According to some it cannot be given a definite meaning and its exact meaning
depends upon the facts and circumstances of the case.
In the case of Mahboob Shah v. Emperor , the scope of liability of S. 34of IPC was
discussed in detail. The following principles were laid down by the court in this case :
1. Care must be taken to not confuse same or similar intention with common
intention. For an intention to be common it must be known to all the members
and must also be shared by them. It always exists prior to the commission of the
crime by them.
2. To prove common intention it must be proved that the criminal act was done in
pursuance of the pre-arranged plan.
3. To invoke S. 34 successfully, it must be shown that the criminal act complained
against was done in furtherance of the common intention; and if it so the joint
liability may be imposed.
4. The inference of common intention should never be reached unless it is a
necessary inference deductible from the circumstances of the case.
The principles enunciated in the above case have been applied by the Indian court in a
number of cases.
D. COMMON INTENTION MAY DEVELOP ON SPOT
It is an exception to the general rule that in certain situations the common intention
may develop suddenly on the spot and such common intention may be inferred from the
circumstances of the case and the conduct of the accused.
Case Law :- Rishi Deo Pandey v. State of UP
Facts : Two brothers were seen running away from the bedroom of the victim. One was
armed with a gandassa and another with a lathi. Acc to medical evidence victim died
due to an incised wound on the neck
Held : The court found the two brothers shared the common intention to cause death. It
was held in this case that common intention may develop on the spot also but where it
is alleged that common intention developed during fight, it must be established.
E. PHYSICAL PRESENCE AND ACTIVE PARTICIPATION WHEN NECESSARY
Physical presence at the place of occurrence is essential for application of S. 34.
However, this proposition was slightly modified by the Supreme Court in the case of JM
Desai v. State of Bombay., wherein it was held that to invoke S. 34, though physical
participation of several persons doing the act is necessary, but in certain cases physical
presence might not be possible when the acts may done at different times and places.
The reason for making physical presence an essential ingredient under this section is
that physical presence gives encouragement, support and protection to the person
actually committing the act.
F. BURDEN OF PROOF
The burden of proof lies upon the prosecution to establish beyond any reasonable doubt
that the criminal act was done by several persons in furtherance of common intention
of all.
G. EFFECT OF ACQUITTAL OF ONE CO-ACCUSED
The Supreme Court in Y. Venkaiah v. State of A.P , has held that even if one of the co-
accused if acquitted, that does not by itself absolve other co-accused of their conjoint
liability of the crime. The law is that inspite of acquittal of one co-accused, it is open to
the court to convict the other accused on the basis of joint liability u/s 34 if there is
evidence against them of committing the offence in furtherance of the common
intention.
H. DISTINCTION BETWEEN COMMON INTENTION & COMMON OBJECT
Sr. No Common Intention (CI) Common Object (CO)
1. CI within the meaning of S. 34 is It is defined and limited to the five
undefined and unlimited. unlawful object stated in S. 141 of the
Code.
2. Criminal Act must be done in Criminal act u/s 149 must be done in
furtherance of common intention. prosecution of the common object.
3. S. 34 enunciates the principle of S. 149 creates specific offence. It is
joint liability but creates no specific merely declaratory of principle of joint
offence. It is of interpretative liability.
character
4. U/s 34 the offence must be U/s 149 the offence must be committed
committed by two or more persons. by 5 or more persons because then only
an unlawful assembly can be formed.
5. U/s 34 the individual offender is a U/s 149 the offender might not have
sharer in both, that is, the criminal committed the offence but by virtue of
act and the common intention. being a member of unlawful assembly
he is punishable.
