Section 34 of the Indian Penal Code, 1860.
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.
This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. 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 an act.
This section embodies the principle 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. It is a well recognised canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible, as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment. In combinations of this kind a mortal stroke, though given by one of the party, is deemed in the eye of the law to have been given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the others strike. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. If the criminal act was a fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the door in a different criminal act.
The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. Foundation for conviction on basis of common intention is based on principle of vicarious responsibility by which person is held to be answerable for acts of others with whom he shared common intention.1)
This section deals with the doing of separate acts; similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it. This section can be applied to an offence punishable under the second part of s. 304, though such cases may not be of frequent occurrence.
This section provides not only for liability to punishment, but also for subjection to another jurisdiction. If a foreigner in a foreign territory initiates an offence which is completed within India, he is, if found within Indian territory, liable to be tried by the Indian Court within whose jurisdiction the offence was completed.
The criminal act in question must have been done by several persons i.e. by more than one person. The number of wrong doers should be at least two. Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act.
Common intention implies prearranged plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. The section does not say “the common intention of all” nor does it say “an intention common to all”. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. 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 shown, 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.2) The ratio of the above case is thus explained by Kuppuswami Ayyar, J., in a subsequent case:3) “The above decision is warrant only for the proposition that it is not enough to attract the provisions of this section that there was the same intention on the part of several people to commit a particular criminal act or a similar intention but it is necessary before the section could come into play that there must be a prearranged plan in pursuance of which the criminal act was done. Their Lordships do not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with, nor do they say that the intention cannot he inferred from the conduct of the assailants. The question whether there was such an intention or not will have to depend in many cases on inference to be drawn from the proved facts, and not on any direct evidence about a preconcerted scheme or plan which may not be available at all”. The prearranged plan may be made shortly or immediately before the commission of the crime. A long standing conspiracy is not required.
“Same or similar intention” is not to be confused with “common intention”. Persons who have a common intention must have the “same intention”. “Same intention” must, to make it “common intention,” be indicated in some way by words or acts between the persons who share it. Such intention may be inferred from circumstances. The common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he has participated in that common intention.
Common intention and common object stand on different footing. For common intention, evidence is required showing previous meeting of minds and pre-arranged plan. In case of common object, there is no need for prior concert and common meeting of minds before the commission of crime. Common intention may develop on the spot, but to that effect, there must be very specific and cogent evidence.
There is a substantial difference between sections 34 and 149, IPC . When several persons, numbering five or more, do an act or intend to do it, both sections 34 and 149, IPC may apply. Section 149 , IPC is of wider scope than s 34, IPC and in a case where s 149 applies, a constructive liability arises in respect of those persons who do not actually commit the offence.
Charge framed with the assistance of S.149 can later be converted to one read with S.34. Courts are free to weigh evidence and determine whether an independent conviction is possible in case, group prosecution under S.149 fails.4)
This section does not create a substantive offence; it is merely a rule of evidence. The section is really nothing more than explanatory and embodies, in the IPC, the ordinary common sense principle 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. The section does not create a distinct offence; it only lays down the principle of joint (constructive) liability. The Kerala High Court, in Mathai v State of Kerala, has held that s 34 does not, by itself, create an offence; it only lays down the rule of law without creating a definite head of criminality.
Section 34 of the IPC applies when a criminal act is done by several persons in furtherance of the common intention of all. In such a case, the other offenders are liable for that act in the same manner as the principal offender, as if the act were done by such offenders also. This section does not whittle down or do away with the liability of the principal offender committing the principal act; it merely provides that all other offenders are also vicariously liable.
A person may be constructively liable for an offence which he did not actually commit by reason of:
A conviction under S.304, Part II, read with S.34 is legal and valid. Part II of S.304 can be read together with S.34, notwithstanding that Part II of S.304 speaks only of knowledge while S.34 deals with common intention. Several offenders by diverse acts and with prior concert chasing the deceased, throwing him to the ground and beating him to death. Conviction of all offenders under S.304, Part II read with S.34 is legal, notwithstanding that S.304, Part II speaks only of knowledge, while S.34 deals with common intention.5)
Where each of several persons took part in beating a person so as to break eighteen ribs and cause his death, each of them was convicted of murder.6) Similarly, where a number of men armed with sticks made a concerted attack upon another man and practically killed him on the spot, they were held guilty of murder.7)
But where three persons assaulted the deceased and gave him a beating in the course of which one struck him a blow on the head, which resulted in death, in was held that, in the absence of proof that the accused had the common intention to inflict injury likely to cause death, they could not be convicted of murder.8)
The accused were charged under s. 302 with the murder of a postmaster. At the trial the evidence showed that while the postmaster was in his office counting money, three men, of whom the accused was one, fired pistols at him after having called upon him to hand over the money; he was hit in two places and died. The trial Judge directed the jury that if they were satisfied that the postmaster was killed in furtherance of the common intention of all three men, then the accused was guilty of murder, whether he fired the fatal shot or not. It was held by the Privy Council that the direction was correct.9)
Where a party of men set out towards a field, with the common intention of attacking another party of men and preventing them from irrigating the field from a well, and one of the attacking party had a gun and the others had lathis, and all of them attacked the other party with the result that two persons died of gun-shot wounds and others received different injuries, it was held that all the participants in the attack were guilty under s. 302 of murder.10)
Four persons went armed with guns to the house of “K” to commit a robbery. “K” being absent, “S” and another of robbers got to the minor son of “K” to take them to the field where “K” was working. During their absence the other two robbers remained at the house, one of them “I” taking his stand near the main door which he closed. Two sons of K who were at their shops close by having had their suspicions aroused, then came to the house and pushed open the main door, whereupon “I” fired at them and killed one of them. It was held that “S” was guilty of murder in virtue of this section because, though temporarily absent he was participating in the joint criminal action in the course of which the murder was committed.11)
English case: Lord Dacre agreed with several persons to hunt in another's park for deer, and to kill all who might resist. One of the party having killed the keeper all were held guilty of the murder, though Lord Dacre was a quarter of a mile distant, and knew nothing of the individual blow.