NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI, JHARKHAND
2019

LAW OF CRIMES -1

COMMON INTENTION

___________________________________________________________________________

Submitted By: Submitted

To:
Swati Singh Dr. Julian Seal
Pasari
Roll No. – 899 Teaching Assistant,
Law
Sem- III “A” NUSRL
Ranchi
 CONTENTS

1. CHAPTER 1

1.1.Introduction ………………………………...………………………….. 2

1.2.Research Problem ………………………..…………………………….. 2

1.3.Research Question …………………………..…………………………. 2

1.4.Research Methodology ………………………………………………… 3

2. CHAPTER 2: COMMON INTENTION …………………………..………..

3. CHAPTER 3: COMMON INTENTION DIFFERENTIATED FROM SAME

INTENTION AND COMMON OBJECT ……………………..……………

3.1.Difference between “Common Intention” and “Same Intention” …...….

3.2. Difference between “Common Intention” and “Common Object” ……

4. CHAPTER 4: WHETHER THE PRESENCE OF AN OVERT ACT IS

NECESSARY FOR PROVING THE COMMON INTENTION ……..…….

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5. CHAPTER 5: CONCLUSION …….…………………………….………….

6. BIBLIOGRAPHY .…………………………………………………………. 9

CHAPTER 1
1.1 INTRODUCTION
The doctrine of common intention postulates the imposition of the same liability on
participants in a crime as that incurred by the person who actually committed the crime,
provided the crime was the objective of their association or it was committed in furtherance
of a common object. It is an adjectival doctrine which has to be used in conjunction with a
substantive crime. Criminal intention is said to be the highest form of blameworthiness of
mind or mens rea. Intention has a very crucial role to play in criminal law. Being the highest
form of the mental element, it is applicable to murder and the gravest form of crimes in the
criminal justice system.
The term ‘intention’ has not been defined in Indian Penal Code but the section 34 of
Indian Penal Code, 1860 deals with common intention. The common intention or the pre-plan
made among several people to do something wrong and act done in that manner in which it
was formulated comes under the ambit of Section 34 of IPC. Thus, common intention is
known as a prearranged plan and acting in concert pursuant to the plan. It must be proved that
the criminal act was done in concert pursuant to the pre-arranged plan. It needs to come into
being prior to the commission of the act in point of time, yet it need not be a long gap. The
gap need not be long and sometimes common intention can be developed even on the spot or
during the occurrence of the crime. The fundamental factor is the presence of a pre-arranged
plan to execute the plan for the desired result. So, each of such person will be liable in an act
done in furtherance of common intention as if the act was done by one person. Common
Intention does not mean the similar intention of several person. To constitute common
intention, it is necessary that the intention of each one of them be known to the rest of them
and shared amongst them.

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1.2 RESEARCH PROBLEM
The criminal liability in the cases of crime committed by several people together is
determined by the presence of means rea or the common intention or pre-arranged plan
shared among them. Thus proving the presence of common intention in a case is a crucial yet
difficult task and the burden of proof is upon the prosecution. The common intention is a rule
of evidence and it needs to be proved from the facts and circumstances of the case. Thus the
problem arises as to what is essential in order to prove the presence of the common intention
among the people who committed the crime and whether the presence of an overt act by the
offender is necessary in order to prove his common intention or him being part of the pre-
plan.

1.3 RESEARCH QUESTION

Whether the presence of an overt act is necessary for proving the common intention
under section 34 of the Indian Penal Code?

1.4 RESEARCH METHODOLOGY

The study is doctrinal in nature and the sources are secondary sources which includes
books, articles, journals and internet sources. The research methodology adopted by the
researcher is a doctrinal research. However, the researcher with a view to compliment and
substantiate his research paper corroborated his study with other forms of legal research such
as comparative legal research, case studies and also critical analysis. It also throws light on
the list of study materials and data and their sources, procured by the researcher as the
instrument to conduct the research. Comparative legal research enabled the researcher to
critically appreciate and compare the legal interpretations of various courts.

CHAPTER 2: COMMON INTENTION

In India, the common intention is dealt under section 34 of Indian Penal Code, 1860:
Section 34. Acts done by several persons in furtherance of common intention- When a
criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone.
In this article the word ‘act’ is referred, which is defined under article 33 as:
Section 33. ‘Act’, ‘Omission’. – the word ‘act’ denotes as well a series of acts as a
single act: the word ‘omission’ denotes as well a series of omissions as a single omission.
The section 34 talks about acts done in “furtherance of the common intention of all”
and the whole liability under this section is dependent on the presence of a common intention.
Interestingly, these terms were not present in the original version of the section 34 and were
incorporated through the amendment of 1870. Thus a furtherance of common design is a
condition precedent for convicting each one of the persons who take part in the commission
of the criminal act, and the mere fact that several persons took part in crime, in absence of

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common intention, is not sufficient to convict them of that crime. This stand was taken by the
court in the case of Mahboob Shah v. Emperor.1
Thus, the nature of the common intention can be summed up as:
 Meaning: It basically implies that if two or more persons intentionally do a thing
jointly, it is just the same as if each of them had done it individually. 2 The main
essence of the section is that the person must be physically present at the actual
commission of the crime or in other way be facilitating the crime like for example a
case where one person is committing a crime and the other is guarding him or wait in
a car on a nearby road ready to facilitate their escape, but he must be physically
present at the scene of the occurrence and must actually participate in the commission
of the offence in some way or other at the time crime is actually being committed. 3
The leading feature of this section is the element of participation. 4
 Object: The section is construed to meet a case in which it may be difficult to
distinguish between the act of individual members of a party or to prove exactly what
part was played by each of them. The reason why all are deemed guilty in such cases
is, that the presence of accomplices gives encouragement, support and protection to
the person actually committing the act.
 Scope: The section is restricted to common intention and does not include any
knowledge. It does not require proof that any particular accused was responsible for
the commission of the actual offence. It is not restricted to meet a case in which it
may be difficult to distinguish between the acts of individual members of a party or to
prove exactly what part was taken by each of them. It can also be applied to cases in
which offence is committed by only one or two or three persons who all had a
common intention. The common intention to bring out a certain result may develop on
the spot itself.5
 Facts to be established for common intention :- For application of section 34 of
The IPC, there should be two or more accused and the following factors must be
established.
 The accused share common intention to commit the offence.
 b) The accused accordingly participated in the offence.
 c) The offence actually took place.
If common intention is proved, but no overt act is attributed to the individual
accused, section 34 of The IPC will be attracted as essentially it involves vicarious
liability, but if participation of the accused in the crime is proved and common
intention is absence section 34 cannot be invoked.6
 Mode of Determination: To bring the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial, that there was plan or
meeting of mind of all the accused persons to commit the offence for which they are
charged with the aid of section 34, be it pre-arranged or on the spur of moment but it

1
AIR 1945 PC 118.
2
B.N. Srikantiah v. State of Mysore (AIR 1958 SC 672).
3
AIR 1965 SC 264.
4
Shaikh Nawak v. State of Maharashtra, AIR 1993 SC 169.
5
Kirpal & others v. State of UP (AIR 1954 SC 706).
6
Ramashish Yadav v..State of Bihar, (AIR 1999 SC 3830).

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 must necessarily before the commission of the crime. 7 In Rishi Deo Pandey v. State of
U.P., ‘A’ and ‘B’ two brothers were seen standing near the cot of the victim who was
sleeping. One of them was armed with a ‘gandasa’ and another with a ‘lathi’, when a
hue and cry was raised by the two brothers ran together, and both of them were seen
running from the bed room of the victim. The victim died of an incised wound on the
neck, which according to medical evidence was necessarily fatal. The court found that
the two brothers shared the common intention to cause death. It was held that
common intention may develop on the spot also.
 Common Intention is a question of fact, which is subjective, it can also be inferred
from the facts and circumstance of the case which includes the conduct of the accused
acting in concert to commit the offence.8 Direct evidence could be rarely available to
establish common intention. The ultimate decision, at any rate would invariably
depend upon the inferences deducible from the circumstances of each case and
conduct of parties.9. Mere presence of the accused on the crime scene without
anything more can bring him within purview of Section 34 of the IPC, in order to
establish his guilt, it has to be proved that the accused did something in furtherance of
common intention.10

CHAPTER 3: COMMON INTENTION DIFFERENTIATED FROM

SAME INTENTION AND COMMON OBJECT

3.1. Difference between “Common Intention” and “Same Intention”

There is difference between common intention and same intention. In order to attract
the provisions of section 34 of the Indian Penal Code, 1860, it is not sufficient to prove that
the participants in doing the criminal act had the same intention. The prosecution also needs
to prove that each of the wrong- doers must have shared the intention of the other, i.e. they
had a common intention to do that criminal act.

The phrase “in furtherance of the common intention of all” of section 34 postulates
that the criminal act complained against was done by one or all the accused persons in
furtherance of the common intention of all of them. Thus, each person shall be liable for the
result as if he had done it himself. On the other hand, in similar intention or same intention,
the criminal act is not carried out in furtherance of a pre-arranged plan by the accused
persons.

7
Kilari Malakondiaah @ Malayadri & others v. State of A.P, (2008)15SCC311, Sukhbir Singh v. State of
Haryana, AIR 2002 SC 1169.
8
Maqsoodan & others v. State of U.P, AIR 1983 SC 126.
9
: Jhinku Nai v..State of UP, AIR 2001 SC 2815.
10
Ram Briksh v..State of UP, 1993(2) CR.L.C 378.

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 Thus, in common intention there is a “prior meeting of minds” before the act
committed. For example: P, Q and R went to murder C. The planned to attack him while he
was returning from an evening walk. All of them attacked and killed C. Each of them is liable
under section 302 read with section 34. The persons who actually participated in committing
a criminal act and the people who facilitated to commit such act are equally liable under
common intention, i.e., under section 34.

Same intention or similar intention does not require pre-arranged plan. Thus, there not
be a “prior meeting of minds” before the act committed. For example, A and B have enemity
with Z different causes and different occasions. A and B are coming from the different lanes.
They see Z at the road. A attacks and stabs Z with his knife. B also attacks Z with club. Both
of A and B have stabbed and beat M to death. Here each of A and B is liable under section
302 separately. The persons who actually participated in committing the criminal act having
similar intention are punished according to the nature of their acts. The persons who
facilitated in committing the crime are punished as abettors.

3.2. Difference between “Common Intention” and “Common Object”

A clear distinction made out between common intention and common object is that
common intention denotes action in concert and necessarily postulates the existence of a pre-
arranged plan implying a prior meeting of the minds, while common object does not
necessarily require proof of prior meeting of minds or pre-concert. Though there is a
substantial difference between the two sections namely 34 and 149, they also to some extent
overlap and it is a question to be determined on the facts of each case.11
The difference between common intention and common object may be summed up as
under:
I. Under section 34 number of persons must be more than one whereas under section
149 number of persons must be five or more.
II. Section 34 does not create any specific offence but only states a rule of evidence.
Section 149 creates a specific offence.
III. Common intention required under Section 34 may be of any type. Common object
under Section 149 must be one of the objects mentioned in Section 141.
IV. Common intention under Section 34 requires prior meeting of minds or pre-arranged
plan. Under Section 149, prior meeting of minds is not necessary. Mere membership
of an unlawful assembly at the time of commission of the offence is sufficient.
V. Under Section 34 some active participation is necessary, especially in a crime
involving physical violence. Section 149 does not require active participation and the
liability arises by reason of mere membership of the unlawful assembly with a
common object.
11
Chittarmal v. State of Rajasthan, AIR 2003 SC 796.

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 CHAPTER 4: WHETHER THE PRESENCE OF AN OVERT ACT IS
NECESSARY FOR PROVING THE COMMON INTENTION

Section 34 has been enacted on principle of joint liability in the doing of a criminal
act, the section is only a rule of evidence and does not create a substantive offence. The
distinctive feature of the section is the element of participation in action. The liability of one
person for an offence committed by another in the course of criminal act perpetrated by
several person arises under Section 34 if such criminal act is done in furtherance of a
common intention of the person who join in committing the crime.
If common intention is proved, but no overt act is attributed to the individual
accused, section 34 of The IPC will be attracted as essentially it involves vicarious liability,
but if participation of the accused in the crime is proved and common intention is absence
section 34 cannot be invoked.12 In order to convict a person vicariously liable under section
34 or section 149 it is not necessary to prove that each and every one of them had indulged in
overt acts.13 In the case of Sachin Jana & Another v. State of West Bengal,14 it was held that
direct proof of common intension is seldom available and, therefore, such intention can only
be inferred from the circumstances appearing from the proved facts of the case and the
proved circumstances.
In the case of Krishnan v. State of Kerala,15 the court said the necessary element is
the criminal act being done in furtherance of a common intention and ‘ Section 34 did not
require anything more to get attracted’. The court said that it is true that the court likes to
know about overt act to decide whether the concerned person had shared the common
intention but establishment of an overt act is not a requirement of law to allow section 34 to
operate. The court’s mind regarding the sharing of the common intention gets satisfied when
the overt act is established qua each of the accused but then there may be cases where the
proved facts would themselves speak of sharing of common intention: res ipsa loquitur.
In the case of Lallan Bhai v.. State of Bihar,16 it has been held that the requirement of
statute is sharing the common intention upon being present at the place of occurrence. Mere
distancing from the scene cannot absolve the accused. Thus mere presence of the accused on
the crime scene without anything more can bring him within purview of Section 34 of the
IPC, in order to establish his guilt, it has to be proved that the accused did something in
furtherance of common intention.17

12
Ramashish Yadav v. State of Bihar, (AIR 1999 SC 3830).
13
Ram Blias Singh v. State of Bihar(AIR 1989 SC 1593).
14
2008 (2) scale 2 SC.
15
AIR 1977 SC 383.
16
AIR 2003 SC 333.
17
Ram Briksh v. State of UP, 1993(2) CR.L.C 378.

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 In Sheoram Singh v. State of U.P.,18 the Supreme Court held that common intention
may develop suddenly during the course of an occurrence, but there just need to be a cogent
evidence and clear proof of such common intention. If common intention is proved, but no
overt act is attributed to the individual accused, section 34 of The IPC will be attracted as
essentially it involves vicarious liability, but if participation of the accused in the crime is
proved and common intention is absence section 34 cannot be invoked.19 In Khacheru Singh
v. State of U.P., AIR 1956 SC 546; several persons attacked a man with lathis when he was
passing through a field. The man eluded them and they gave chase, on overtaking him they
once again attacked him. It was held that, these facts were sufficient to prove that the accused
persons had been actuated with the common intention to assault the victim. Conviction under
Section 326 read with Section 34 was sustained. Thus the essence here is proving the
common intention and it may be done through any other mean.

CHAPTER 5: CONCLUSION
Intention is defined in R. v Mohan as "the decision to bring about a prohibited
consequence". The real concept of the section 34 of IPC is that if two or more persons
intentionally do an act jointly, the position in law is just the same as if each of them has done
it individually by himself. Section 34 does not speak “the common intentions of all” nor does
it speak “an intention common to all”. Under the provisions of Section 34 the essence of the
liability is to found in the existence of a common intention animating the accused leading to
the doing of a criminal act in furtherance of such intention. To prove the charge of common
intention, the prosecution has to establish by evidence, whether direct or circumstantial, that
there was plan or meeting of minds of all the accused persons to commit the offence for
which they are charged with the aid of Section 34, be its pre-arranged or on the spur of the
moment; but it must necessarily be before the commission of the crime.
Thus, a pre-arranged plan or an overt act is not necessary for proving the presence of
the common intention or sharing of a criminal intent to do the act, it may be differently
inferred from the facts and circumstances of different cases. The presence of overt act may
satisfy the court but in many cases the facts themselves speack about the presence of common
intention even in the absence of any overt act. There is no standard rule for it. In Kripal Singh
v. State of U.P.,20 the Supreme Court held that a common intention may develop on the spot
after the offenders have gathered there. A previous plan is not necessary. Common intention
may be inferred from the conduct of the accused and the circumstances of the case.

18
AIR 1972 SC 2555.
19
Ramashish Yadav v. State of Bihar, (AIR 1999 SC 3830).
20
AIR 1954 SC 706.

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 BIBLIOGRAPHY

 Statutes:
 Indian Penal Code, 1860.

 Articles:
 Stanley Yeo, 50(4), Common Intention in the Indian Penal Code:Insights from
Singapore, Journal of the Indian Law Institute.  640-655(2008).
 M Sornarajah, Common Intention and murder under the Penal Codes, Singapore
Journal of Legal Studies. 29-55 (1995).
 Myint Soe, Some aspects of common intention in the penal code of Singapore and
West Malaysia, 14(2)  Malaya Law Review.163-178 (1972).
 Michael Hor and Yew Meng, Common intention and the enterprise of constructing
criminal liability, Singapore Journal of Legal Studies.494-530 (1999).
 Chen Siyuan, The Final Twist in Common Intention? Daniel Vijay s/o Katherasan v.
Public Prosecutor, Singapore Journal of Legal Studies. 237-249 (2011).
 Kumaralingam Amirthalingam, Clarifying Common Intention and Interpresting
section 34: Should there be a threshold of blameworthiness for the death penality?
Lee Chez Kee v. Public Prosecutor, Singapore Journal of Legal Studies. 435-445
(2008).

 Books:
 DR. K I VIBHUTE, PSA Pillai’s Criminal Law 267-295, (13th ed. LexisNexis 2017).

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 Websites:
 www.jstor.com
 www.legalservicesindia.com

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