Common Intention and Common Object

Section 34 of the Indian Penal Code deals with Common Intention. As per this
provision, when a number of persons engaged in a criminal act with a common
intention, each person is made liable as if he alone did the act.

Section 149 of the Indian Penal Code deals with Common Object. According to
this provision, every member of an unlawful assembly is held liable for any
criminal act done in furtherance of a common object.

This paper discusses these two provisions in detail and draws a correlation
between them, with the help of several cases.”
INTRODUCTION

Criminal Intention is the highest form of blameworthiness of mind or mens rea.

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

Section 34 deals with a situation, where an offence requires a particular criminal

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

Section 34. Acts done by several persons in furtherance of common intention

– When a criminal act is done by several persons in furtherance of 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 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.

It is clear from s.34 and s.33 that the term criminal act refers to more than a single
act and would cover an entire series of acts.
Section 34 to section 38 in chapter II of IPC dealing with ‘General Explanation’
state the conditions in which a person may be held constructively liable for the
acts committed by the other members of group.

The chapter VIII of Indian Penal Code refers to ‘Offences against the Public
Tranquillity’ from section 141 to section 160. Offences against public tranquillity
also known as ‘Group Offences’ and lead to disturbance of public peace. S.141
defines ‘Unlawful Assembly’ for which there should be five or more persons, and
the object should be common to all. If five or more persons are doing wrong act
with common objective then liability on each person will be same as it is done by
him alone. This liability on each person is called ‘Group Liability’. Section 149
of IPC imposes group liability on each and every members of assembly and
defined as follows:

Section 149. Every member of unlawful assembly guilty of offence committed

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

To impose this section under group liability there should be an unlawful

assembly, which is defined under s.141. And the offence should be committed in
prosecution of common object.
COMMON INTENTION

Common intention implies a pre-arranged plan and acting in concert pursuant to

the plan. Common intention comes into being prior to the commission of the act,
which need not be a long gap. To bring this section into effect a pre-concert is not
necessarily be proved, but it may well develop on the spot as between a number
of persons and could be inferred from facts and circumstances of each case.

In Amrik Singh’s Case[i] it has been further held that though the common
intention may develop in course of the fight but there must be clear and
unimpeachable evidence to justify that inference. In the case Pandurang v. State
of Hyderabad[ii], Supreme court emphasized on this point that prior concert
need not be something always very much prior to the incident, but could well be
something that may develop on the spot, on the spur of the moment. In this case
Ramchander Shelke (deceased) with his wife’s sister went to the field. While
Ramchander went to the river side the five persons including three appellant
(Pandurang, Tukia, and Bhilia ) attacked him.
According to eyewitnesses, Pandurang, Tukia, and Bhilia were holding axes and
other two accused Tukaram and Nilia had stuck in their hands. The deceased died
on the spot. In this case, different eyewitnesses told a different story. The trial
court convicted each of accused of charge S.302 with S. 34 and sentenced to
death. Appeal lied in High court and conviction of Pandurang, Tukia, Bhilia was
maintained but other two accused person sentence was commuted to
transportation for life. When the matter came up to the Supreme Court, the
learned judge said that each is liable for their own act. The Apex Court set aside
the death sentence of Pandurang and convicted him instead under S.326, and
sentenced for 10 years rigorous imprisonment. The Supreme Court altered the
sentence of Tukia and Bhilia to transportation for life. The Supreme Court
elaborated in this case that:

“In a case like that, each would be individually liable for whatever injury he
caused but none would be vicariously convicted for the acts of any of the others;
if the prosecution cannot prove that his separate blow was a fatal one, he cannot
be convicted of the murder, however clearly an intention to kill could be proved
in this case….”

The essence of liability to be found in the existence of common intention is that

the criminal act complained against was done by one of the accused persons in
furtherance of common intention of all, if this is shown, then the 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.[iii]

In the case of Mahboob Shah v. Emperor[iv], the appellant Mahboob Shah was
of age 19 and was convicted by Session Judge of the charge s.302 with s.34 for
the murder of Allah Dad. The Session court sentenced him for death. The High
Court of Judicature also confirmed the death sentence. On appeal before
Lordship, the conviction for murder and sentence of death was quashed. It was
contended before appellant that – “when Allah Dad and Hamidullah tried to run
away, Wali Shah and Mahboob Shah Came in front of them… and fired shots”
and so there was evidence of forming common intention at the spur of the
moment. Their Lordship was not satisfied upon this view and humbly advised His
Majesty that the appellant has succeeded in his appeal, his appeal should be
allowed and his conviction for murder and the sentence of death set aside.
Common Intention and Similar Intention

Common intention does not mean similar intention of several persons. To

constitute common intention it is necessary that the intention of each one of them
be known to the rest of them and shared by them. This section 34 is only a rule
of evidence and does not create a substantive offense. This section only applies
with other penal sections which deal with the punishment of the offense.
In the case of Dukhmochan Pandey v. State of Bihar[v], the complainant had
sent about 20 labors to his field for transplanting paddy. On midday, the accused
party came as a mob of about 200 people armed with various deadly weapons.
They asked laborers to stop the work, and when the complainant objected to this,
the two accused directed the mob to kill laborers. The mob started assaulted the
laborers as a result of these two labors died. When the police party reached, the
mob fled from the spot. The death was established to have caused by injuries
inflicted by shock and hemorrhage caused by injuries inflicted with sharp pointed
weapons.

The Supreme Court, in this case, held that: “Common intention which developed
at the spur of the moment is different from the similar intention actuated a number
of person at the same time….the distinction between a common intention and
similar intention may be fine, but is nonetheless a real one and if overlooked, may
lead to miscarriage of justice….”

The mere presence of accused together is not sufficient to hold that they shared
the common intention to commit the offence in question. It is necessary that the
intention of each one of ‘several persons’ be known to each other for constituting
common intention.
Inferences

From the various interpretations of Apex Court and guideline given in different
cases, some inferences could be drawn to impose Joint Liability under section 34.
These are –

1. To establish common intention premeditation of minds is necessary. There

should be prior meeting of minds which activated common intention and
criminal act should have been done in furtherance of common intention.
2. There may be situation in which premeditation was not present, but
intention developed at the spur of the time, but it should must been shared
among one another.
3. To prove common intention is a very hard, because it is the mental thinking
of the accused at that point of time. So it has to be culled out from the facts
and circumstances of each case.
4. There is a difference between common intention and similar intention, and
s.34 can be invoked only when the accused shares common intention and
not one the similar intention.
5. Unless the common intention is proved, individual will be liable for his
own act and not otherwise. They will be deal as under s.38 of IPC. And if
there is any doubt, the benefit of doubt should be given to the accused.

Cases
One of the earliest cases came before the court under s.34 under the principle of
Joint Liability was Barendra Kumar Ghosh v. King Emperor[vi]. This case is
also known as the ‘Post Master Case’. In this case, the accused Barendra with
other three persons went to Shankaritola post office at about 3.30 pm on the
3rd August 1923 armed with firearms. The accused stood outside the post office
while the other three entered the post office through the backdoor of office. They
asked post master Amrita Lal Roy to give the money which he was counting.
When he refused, then others three opened fire from the pistol and fled from the
place.

As a result of which he died almost immediately. Seeing others running the

accused also ran away by air firing with his pistol. But he was chased and caught
by the post office assistant. He was charged with others under s.302 (murder to
post master) and s.394 (causing hurt in doing robbery) with S.34 in common
intention of all. He contended that he was only standing guard outside the post
office and he did not have the intention to kill the post master. Calcutta High
Court confirmed his conviction of murder under S.302 with S.34. In the appeal
before the Privy Council, Lord Sumner dismissed the appeal against the
conviction and held that – “criminal acts means that unity of criminal behaviour
which results in something for which an individual would be responsible, if it
were all done by himself alone, that is, in criminal offence.”

The other important case came before the Supreme Court was Rangaswami v.
State of Tamil Nadu[vii]. The occurrence took place at about 11.45 pm on
16.08.1973 in Big Bazar Street, in which one Jayaram was murdered. In this case,
session court convicted A-1 under s. 302 and sentenced him to death. A-2 and A-
3 were charged under S. 307 with S.34, and sentenced rigorous imprisonment of
8 years by session judge. While the High Court considering the fact altered the
decision of session court and enhanced the sentence of A-2 and A-3 to
imprisonment for life under s. 302 with s.34. And the death sentence of A-1 was
modified for imprisonment for life.

Against this conviction, A-3 appealed in Supreme Court and contended that he
was only in friendly relation with A-1 and A-2 but he did not share common
intention with them. It was by mere chance that he appeared at the spot of
occurrence and he did not participate in offense. In this case, there was a prior
enmity between deceased and A-1 and A-2, because the deceased was accused of
murdering the brother of A-1, and he was actually on the bail. Supreme Court
held that even though the presence of A-3 was established but he did not share
common intention and he was unfamiliar with the plan. Therefore he was
acquitted all of the charges.
The other case before Supreme Court was Muthu Naicker and others v. State
of Tamil Nadu[viii]. The dispute arose among the village community of
Karpakkam village when accused no. A-11 Kuppu Naicker who has a well in land
bearing Survey No. 102, wanted to lay a pipe-line to take water to the field
bearing No. 186/2 belonging to his wife, Dhanammal. There was another well
sunk by the local Panchayat in Survey No. 170 for the use of the village
community and when A-11 wanted to take water from his well in Survey No.
102, an apprehension was entertained by the residents of the village that there
would not be enough water in the well in Survey No. 170 and there would be
water shortage.

Gripped by this apprehension, a majority of the village community resisted the

attempt of A-11 to take water by laying pipelines. Some villagers approached the
collector on March 6, 1967, the collector suspended the permission granted to A-
11 to lay the pipelines. A-11 and his companions ignored the order of collector
and continued the digging of the channel. The matter arose on 27 November 1968
at around 2.30 pm when deceased Gajarajan brother of P.W. 31 was returning
from Madras by bus, a crowd of 50-60 persons including A-1 to A-23 and A-28
attempted to waylay the deceased. Deceased tried to escape but was chased by
them and encircled by the crowd near a well and was attacked. After completing
the investigation police submitted challan against 28 accused for various
offences.

The learned session judge giving the benefit of reasonable doubt rejected the
prosecution case and acquitted all the accused. The state of Tamil Nadu preferred
an appeal in High Court of Madras against A-1 to A-27. While the acquittal of A-
28 was considered as final. The High Court convicted A-1 to A-7 and A-19 for
charge under S.302 with S.34 and sentenced them for life imprisonment. They
preferred a criminal appeal in the Supreme Court. The conviction of accused A-
1, A-2, A-4, A-5 under S.302 with S.34 was confirmed and sentenced to life
imprisonment.

While the conviction of A-3, A-6, A-7, A-19 under this charge of S.302 was set
aside and were charged with others under Hurt and Grievous Hurt differently.
Supreme Court held that in a local community when something unusual occurs,
a good number of people appear on the scene not with a view to participating in
occurrence but as curious spectators. In such event, mere presence in the unlawful
assembly should not be treated that person concerned was a member of unlawful
assembly.
COMMON OBJECT

The offence dealing with Group Liability or Vicarious Liability of members

comes under Chapter VIII of the Indian Penal Code. This chapter deals with
offences against Public Tranquillity from s.141 to s.160. The first section of this
chapter s.141 defines Unlawful Assembly, for which there should be five or more
persons and some common objects for which they have made that assembly.
Section 141 is:

Section 141. Unlawful assembly —

An assembly of five or more persons is designated an “unlawful assembly“, if

the common object of the persons composing that assembly is—

First – To overawe by criminal force, or show of criminal force, the Central or

any State Government or Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public servant; or

Second – To resist the execution of any law, or of any legal process; or

Third – To commit any mischief or criminal trespass, or other offence; or

Fourth – By means of criminal force, or show of criminal force, to any person,

to take or obtain possession of any property, or to deprive any person of the
enjoyment of a right of way, or of the use of water or other incorporeal right of
which he is in possession or enjoyment, or to enforce any right or supposed right;
or

Fifth – By means of criminal force, or show of criminal force, to compel any

person to do what he is not legally bound to do, or to omit to do what he is legally
entitled to do.

Explanation – An assembly which was not unlawful when it assembled, may

subsequently become an unlawful assembly.

From this section we can say that, to constitute an unlawful assembly the
following ingredients is necessary –

1. There should be an assembly of five or more persons.

2. There must be a common object for them.
3. Common object must be one of the five ingredients, specified in the above
section.

When the number of the persons reduces from five for trial for the reason that
some were acquitted for the charges then the s. 141 will become inapplicable. But
if there is clear indication that some other unidentified persons are involved in the
crime then this section can be applied. In Ram Bilas Singh v. State of Bihar[ix],
Supreme Court held that:
“it is competent to a court to come to the conclusion that there was an unlawful
assembly of five or more persons, even if less than that number have been
convicted by it if: (i) the charge states that apart from the persons named, several
other unidentified persons were also members of the unlawful assembly whose
common object was to commit an unlawful act …..(ii) or that the first information
report and evidence shows such to be the case even though the charge does not
state so. (iii) or that though the charge and prosecution witnesses named only the
acquitted and the convicted accused persons there is other evidence which
discloses the existence of named or other persons”

The other ingredient of this section is a common object. Object means the
purpose, and it will be common when it is shared by the members of the unlawful
assembly. A common object may be formed at any stage by all or a few members
of the assembly. The explanation of this section shows it clearly. However
common object is entertained in the human mind so there can be no evidence to
prove directly about this.

It is a question of the fact and can be culled out on the basis of facts and
circumstances of each case. It can be determined from the nature of the assembly,
the kinds of arms and their uses by it, behavior and the language of the members
of the assembly used before and after the incident. If only four out of the five
assembled person have a common object and not fifth, then that assembly is not
an unlawful assembly. Simple onlooker or family of the parties cannot become a
member of the unlawful assembly unless they actively participated or encouraged
the violence.

In Moti Das v. Bihar[x], the Supreme Court held that pre-concert is not
necessary. An assembly may be lawful in beginning but may turn into unlawful
later.

Being a member of Unlawful assembly is itself a crime and s.143 prescribes the
punishment of six months, or fine, or both for being a member of that assembly.

The section which imposes the liability on each person of the offense committed
by the members of the assembly is section 149 of IPC. Section 149 of IPC is:

Section 149. Every member of unlawful assembly guilty of offence committed

in prosecution of common object — If an offence is committed by any member
of an unlawful assembly in prosecution of the common object of that assembly,
or such as the members of that assembly knew to be likely to be committed in
prosecution of that object, every person who,at the time of the committing of that
offence, is a member of the same assembly, is guilty of that offence.
In Bhudeo Mandal v. State of Bihar[xi], the Apex Court held that before
convicting any person with the aid of s.149, the evidence must clearly establish
not only the common object, but also show that the common object was unlawful.
In Ram Dhani v. State[xii], there was a dispute over land and the complainant
party resorted to cutting crop grown by the accused party. The latter were more
than five in number and assembled to prevent the cutting. The court held that –
the persons acting in self-defence of the property cannot be members of an
unlawful assembly. And so they could not be said to form an unlawful assembly.

The word ‘knew’ is used in the second part of the S. 149, which implies more
than a possibility but less than might have known. An offence committed in
prosecution of common object would generally be offence which the members of
the assembly knew was likely to be committed[xiii]. This phrase means that the
offence committed was immediately connected with the common object of the
unlawful assembly, of which the accused were members. The word ‘in
prosecution of common object’ means that the offence committed was
immediately connected with the common object of the assembly or in order to
attain a common object.
Cases

In Rambilas Singh and others v. State of Bihar[xiv], the case of the prosecution
was that deceased Kumar Gopal Singh found A-2, A-16 and a female relation of
them plucking Khesari crops from his field. And so he abused them and snatched
away the plucked plants and their baskets. In retaliation for it the 16 accused
persons had lay in wait for him on that night and attacked him at about 9.30 P.M.
when he was returning home with his brother PW-22 and two other witnesses
PWs 1 and 18 after attending a barat.

PW-22 stated that 16 persons surrounded Kumar Gopal Singh and then Dinesh
Singh inflicted a stab injury on the neck of Kumar Gopal Singh as a result of
which he died. The Session Judge acquitted all the persons A-1 to A-15 who were
charged under s.302 with s.149, but convicted A-16 (Dinesh Singh) who was
charged directly under s.302. In High Court, A-1 and A-9 were acquitted while
A-2 and A-6 died during the pendency of the appeal. The High Court convicted
the rest of the accused A-3, A-4, A-5, A-7, A-8, A-10 to A-15.

On appeal, further Supreme Court set aside the conviction of accused by High
Court under s.302 with s.149 and held that in order to convict persons vicariously
under Section 34 or Section 149 IPC, it is not necessary to prove that each and
every one of them had indulged in overt acts. Even so, there must be material to
show that the overt act or acts of one or more of the accused was or were done in
furtherance of the common intention of all the accused or in the prosecution of
the common object of the members of the unlawful assembly. In this case, such
evidence is lacking and hence the appellants cannot be held liable for the
individual act of Dinesh Singh.

In another case of Ram Bilas Singh v. State of Bihar[xv], the court held that an
accused person cannot be held liable vicariously for the act of an acquitted person.
DIFFERENCE BETWEEN COMMON INTENTION AND COMMON
OBJECT

Both Section 34 and s.149 imposes vicarious liability on each person for acts not
necessarily done by them. However, there is a difference in the scope and nature
of operation of the two offences. The charge of s.149 is substituted by s.34 of
IPC, especially when some accused are acquitted and number of the accused falls
below five. In this case the court would have to carefully examine the evidence
to see whether some element of common intention exists for which he can be
made liable under s.34. The main differences between the two sections are as
follows:

 Section 34 does not create any specific offence but only lays down the
principle of joint criminal liability. Whereas s.149 creates specific offence
and being a member of an unlawful assembly is itself a crime, which is
punishable under s.143.

 ‘Common intention’ used in S.34 is not defined anywhere in IPC, while

‘common object’ in s.149 must be one of the five ingredients defined in S.
141 of IPC.
 Common intention requires a prior meeting of mind and unity of intention
and overt act has been done in furtherance of the common intention of all.
A common object may be formed without a prior meeting of mind when
the common object of the members of the unlawful assembly is one but the
intention of participants is different. It only requires that criminal act has
been done in furtherance of the common object.

 For invoking S.34 it is sufficient that two or more persons were involved.
However, there have to be a minimum of five persons to impose S.149.
 The crucial factor of S.34 is ‘participation’ while there is no need of active
participation in S.149 of IPC.

PROPOSALS FOR REFORM

The Fifth Law Commission of India[xvi] in its report proposed suggestions for
reform of s.34 to clear ambiguity. It proposed that for better understanding the
phrase ‘several persons’ be substituted by ‘two or more persons’.
Fifth Law Commission[xvii]also proposed to substitute the Third object of s.141
‘to commit any mischief or criminal trespass, or other offence’ with ‘to commit
any offence punishable with imprisonment’ to clear ambiguity.
CONCLUSION

Fixing vicarious liability under s.34 or s.149 depends on their method adopted to
furnish the crime. There are two sections dealing with ‘common intention’ and
‘common object’ under two chapters of IPC ‘General Explanation’ and ‘Of
Offences Against Public Tranquillity’ respectively. Sometimes there arises
difficulty in proving with evidence that whether they shared common intention
or not. And also how many people were the members of Unlawful Assembly with
their common object same. However, these ambiguities were removed by the
Supreme Court in different cases, after determining its facts and situation of each
case.

To clear and better understanding, Law Commission of India also gave many
suggestions to Legislature for amendment of some part of the statute.

Even after so much effort, there arise problems of which law will be applicable
amongst the two in some crucial cases, and investigators and charge sheet filers
make mistakes in this regard.

Formatted on March 21st, 2019.

BIBLIOGRAPHY

 P S A Pillai’s – CRIMINAL LAW – 11th Edition

 Ratanlal & Dhirajlal – THE INDIAN PENAL CODE – 33rd Edition
 Criminal Law: Cases and Materials – Sixth Edition – K D Gaur
 indiankanoon.org – (CASES)

Edited by Sinjini Majumdar

[i] Amrik Singh v. State of Punjab 1972

[ii] AIR 1954 SC 706

[iii] Mahboob Shah v. Emperor (1945) 47 Com LR 941

[iv] ibid

[v] AIR 1998 SC 40

[vi] AIR 1925 PC 1

[vii] AIR 1989 SC 1137 ; 1989 Supp (1) SCC 686

[viii] AIR 1978 SC 1647

[ix] 1964 Cr LJ 673 (SC)

[x] (1954) Cr LJ 1708 (SC)

[xi] AIR 1981 SC 1219

[xii] 1997 Cr LJ 2286

[xiii] Chanda v. State of U.P. AIR 2004 SC 2836 ; the expression ‘in prosecution
of common object’ and the word ‘knew’ used in s. 149 were explained.

[xiv] AIR 1989 SC 1593

[xv] (1964) Cr LJ 673 (SC)

[xvi] Law Commission of India (Forty Second report: Indian Penal Code) 1971

[xvii] ibid