AN ANALYSIS ON COMMON INTENTION & COMMON

OBJECT
INTRODUCTION
Under The Indian Penal Code, the concept of Constructive Liability is provided under section
34 & [Link] 34 of IPC provides for Common Intention which means prior meeting of
minds, pre-arranged plan or prior concert in which participation by all is necessary, no
liability will arise unless all participates which says “Criminal Act is done by several
persons”. This is only a rule of evidence. In common intention “knowledge or sharing of idea
“is necessary. and Section 149 provides for Common Object in which membership is
necessary, offence is committed by any member held all liable means liability of all even if
one commits an offence. In common object no prior meeting of minds requires, it does not
share of idea but only joining the group of idea.
Both sections talk about joint liability or group liability or plurality of persons. In section 34
all are liable for act of all but in section 149 all liable for act of one this shows vicarious
liability principal which will discussed hereinafter.

“KENNY- One of the main purposes of criminal law is to discourage tumultuous

assemblage of men”.1
In this paper author putting down his view on ‘Doctrine of Combination’, which talks about
an Act or series of acts done in furtherance of common intention or an act or series of acts
done in prosecution of common object then all will be held liable as if it is done by him
alone.
Author gave a reference to English Law only for build the concept. In English Law there are
two kinds of criminals:
1) Principal: One who actually commits crime himself. Principal are also of two types
such as, (a) Principle in I Degree: One who actually commits crime, For example:
Homer buys a gun and uses it to rob the Mart. Homer is a principal is the first degree
because he has actually committed the crime himself & (b) Principal in II Degree:
One who abets crime and present at the scene of crime. A principal in second degree
is one who either encourages the commission, or assists in the commission, of a crime
and who is actually at the scene of the crime when the crime is being committed. 2

2) Accessory: One which aid, abets or support in crime. Similarly, there are also two
kinds of Accessory such as, (a) Accessory before the Fact: One who abets crime but
is not present at the scene of crime, in simple words accessory before the fact provides
pre-crime assistance, and only pre-crime assistance, to the criminal.& (b) Accessory
after the Fact: One who helps in concealing the Criminal, an accessory after the fact
is someone who gives post-crime assistance to criminal.3

1
Kenny’s outline of criminal law, 19th Edn.
2
Commonwealth v. lowrey, 32 N.E. 940 (Mass. 1893)
3
Whorley v. State, 45 Fla. 123 (1903)
COMMON INTENTION
Common Intention: Section 34 of The Indian Penal Code,1860
If a criminal act is done by several persons in furtherance of common intention of all, then
each of them are held liable as if the act were done by him alone.
In this section the first part “If a criminal act is done by several persons in furtherance of
common intention of all” is the condition & the second part “then each of them are held liable
as if the act were done by him alone” is consequence.
Elements of Section 34 of The Indian Penal Code,1860
1) Doing of a criminal act
2) By Several Persons
3) In furtherance of common intention of all.

Doing of a criminal act

In doing of a criminal act participation of all in group is required. It does not contemplate
physical presence & participation can be in different ways, which can be by physical presence
or even by distant directions. Physical presence is required in those cases, where offence
involve physical violence & offences which does not involve physical violence then presence
is not necessary. Section 34 of IPC,1860 requires participation of all, it does not require
presence of all at one place.
For example: If Murder is committed by the group, then physical presence of all is necessary.
The question comes before the court in, Barendra Kumar Ghosh v. Emperor,(Post Office
Case/ Shankari Tola Murder Case) 52I.A.40(P.C.) that the person who was stand outside,
can he be held liable for murder under section 302 read with section 34 of IPC?
In this case, few persons go to post office to commit robbery & one is stand at the gate, other
inmates demanded money from post master and post master refuse to gave them money, then
post master murdered by them.
The court holding bench of Lord Sumner held that even if a person who does not do anything
but if he has common intention, he will be held liable. The court said ‘they also serve who
only stand and wait and watch’.4

Section 34 of IPC deals with doing of a separate act, similar or diverse by several persons, if
all are done in furtherance of common intention of all, then each person is liable for the result
of them all as if he had done them himself.
In another case the Hon’ble Supreme Court cleared that “Physical presence is not always
necessary in all cases” J.M, Desai v. State of Bombay (AIR 1960, S.C.) 5. For instance, in
Case of Criminal Breach of Trust.
4
Barendra Kumar Ghosh v. King Emperor 521.A.40(P.C.)
5
J.M. Desai v. State of Bombay AIR 1960, Supreme Court
The essence of liability in Section 34 is to be found in existence of common intention & not
in presence of accused. In offences involving physical violence presence is required but in
case offences at different places may be done in different places and time, there presence is
not required.
Participation does not mean presence and participation can be by overt act or covert conduct,
by active participation or distant direction.
Several Persons
Basically, several mean not one, so in this competent two must be there. At least two persons
must be involved in crime for invoking Section 34.
For example: Two persons are charged under section 302 read with section 34 of IPC, then if
one is acquitted then another cannot be held liable in Section 34 of IPC, that another can be
punished under section 302 without aid of section 34, if prosecution can prove that he
committed it alone. If two persons are involved in crime but one is left free, can one be held
liable? The answer is No.
Common Intention
Common Intention means prior meeting of minds, or prior concert. It requires knowledge and
sharing of each other’s intention. Common Intention is not a same thing as same or similar
intention.
In this case Pandurang v. State of Hyderabad AIR 1955 S.C. 216, the honourable Supreme
Court differentiated between common intention and similar intention. The court held that
several persons can simultaneously attack a man and each can have the same intention,
namely, the intention to kill, and each can individually inflict a separate fatal blow and yet
none would have the common intention required by the specific section because there was no
prior meeting of minds to form a pre-arranged plan.6
In an another case, Mahboob Shah vs Emperor, (Indus River Case) AIR 1945 PC 118, fact
of the case was that two groups were fighting each other Mahboob Shah come from one
direction and Wali Shah comes from another, and one hits on upper part of opposite party
body and another hits on lower part and one person dies out of fighting.7
The question arose before the court that can Mahboob Shah will be held liable of the act of
Wali Shah? The court held that, the liability in Section 34 depends on common intention. In
this case there was no common intention between the two as they came from different
directions and there was no possibility of common intention. At best it was a case of same or
similar intention.
The act of any one in group must be in furtherance of common intention otherwise section 34
can’t be invoked. In this case, there was no circumstance whereby it can be said that there
was common intention.
# Common Intention may develop on the spot as well. (Eo-instanti)- At the spur of moment.
6
Pandurang v. State of Hyderabad AIR 1955 S.C. 216
7
Mahboob Shah v. Emperor AIR 1945 PC 118
#Common Intention must precede the criminal act.
# After the Amendment of 1870, Common Intention was added in Section 34 of IPC.

Section:35 Act by Several Persons and other joins

An act is done by several persons with criminal knowledge or intention then someone joins
with such criminal knowledge or intention then each one is liable for criminal act as the same
liability of all.

Section:36 Effect caused partly by act and partly by omission

Section 36 of IPC says that, if a criminal act is done by partly by act and partly by omission
then they have the same liability and counted as same offence.
Illustration of Section 36: A intentionally causes Z’s death, partly by illegally omitting to give
Z food, and partly by beating Z. A has committed Murder.

Section:37 Co-operation
Section 37 of IPC says that, an offence is committed by means of several acts then, whoever
intentionally cooperates in commission of that offence by doing anyone of those acts, either
singly or jointly then commits that offence.
Illustrations: A, B & C describes effect of section 37.8
(A) A & B agree jointly to murder Z by severally and at different times giving him small
doses of poison. A and B administer the poison according to the agreement with intent
to murder Z. Z dies from the effects of the several doses of poison so administered to
him. Here A and B intentionally co-operate in the commission of murder and as each
of them does an act by which the death is caused, they are both guilty of the offence
though their acts are separate.
(B) A and B are joint jailors, and as such have the charge of the Z, a prisoner, alternatively
for six hours at a time. A and B, intending to cause Z’s death, knowingly co-operate in
causing that effect by illegally omitting, each during the time of his attendance, to
furnish Z with food supplied to them for that purpose, Z dies of hunger. Both A and B
are guilty of the murder of Z.
(C) A, a jailor, has the charge of Z, a prisoner, A, intending to cause Z’s death, illegally
omits to supply Z with food; in consequence of which Z is reduced in strength, but the
starvation is not sufficient to cause his death. A is dismissed from his office, and B
succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z
with food, knowing that he is likely thereby to causes Z’s death. Z dies of hunger. B is
guilty of murder, but, A as A did not co-operate with B. A is guilty only of an attempt
to commit murder.

8
Illustrations of section 37 in Indian Penal Code,1860
Section:38 Persons in criminal act may be guilty of different offences
Sections 38 of IPC says that, several persons engaged in criminal act may be guilty of
different offences only.
For Example: A attacks Z on sudden and grave provocation, but B not under any provocation
assist A in killing Z, so, B is liable for Murder.9

COMMON OBJECT
Section 149: Every member of unlawful assembly guilty of an offence
committed in prosecution of common object
Section 149 of IPC provides that, if an offence is committed by any member of unlawful
assembly in prosecution of common object of that assembly, or such as the members knew it
likely to be committed in prosecution of common object, then every person, who at the time
of committing offence was the member of the same assembly, then he is liable for that
offence.
In Prosecution of Common Object
Anything done to achieve common object, here all members must know the common object
of that assembly, any sudden or unpremeditated act done by any member will not make others
liable and this is reason is sudden fight, etc., why section 149 is not invoked, is there is
nothing which is in common object.
In case of Mizaji v. State of U.P. AIR 1959 S.C., the fact of the case was that, some people
armed with deadly weapon for taking possession of land, and death of one person caused in
scuffle, then all will be guilty of murder under section 302 read with section 149, and the
court said that, from the conduct of member of unlawful assembly, it appeared that they were
prepared to take forcibly possession of land at any cost. In prosecution of common object
means whatever is done to achieve common object.10

What is an unlawful assembly?

Unlawful Assembly is defined under section 141 of IPC which says that, unlawful assembly
is assembly of five or more with common object of committing crime are such as:
1) To overawe by criminal force (Central or State Government), (Parliament or State
Legislature) or to (Public servant),
2) To resist the execution of law or legal process,
3) To commit or mischief or criminal trespass or other offence,
4) To take or obtain possession of any property,
5) To compel any person to do something illegal.
9
Illustration of section 38 of The Indian Penal Code,1860
10
Mizaji v. State of U.P. AIR 1959 S.C.
Membership of an unlawful assembly
Section 142 of IPC defines membership of unlawful assembly says that, a person become
member of unlawful assembly by two methods:
1) By intentionally joining it, or
2) Knowingly continues in it.
That person is said to be member of unlawful assembly, if he/she fulfills any of the above
conditions.
In case of, Emperor v. Kabil 1869, P.V.11 the facts of the case were that, few people in
prosecution of common object went to commit mischief/other offence, one of them goes to
fetch a gun, in the meantime crime is committed, the question was can this absent member be
held liable?
The court said that, on the meantime of offence committed he was also the member of
unlawful assembly and gone to fetch a gun in prosecution of fulfilling the common object, so,
he is also liable.
# Membership of Unlawful Assembly is also an offence.

Punishment of an unlawful assembly

Section 143 says that, anyone who is the member of unlawful assembly shall be punished
with the imprisonment, description for a term which may extend to six months, or with fine,
or both.12 Anyone who is the member of an unlawful assembly shall be punished because
membership of an unlawful assembly is also an substantive offence under the Indian Law.

Section 144 & 145 of the IPC provides types of unlawful assembly
Section 144 provides that, anyone who is a member of unlawful assembly and armed with
deadly weapon or with anything which is used as weapon of offence which is likely to cause
death, shall be punished of description for a term of two years or with fine, or with both.13
Section 145 provides that, anyone who intentionally joins or continuing in an unlawful
assembly which has been commanded by law to disperse or not being held, shall be liable for
imprisonment for a term which may extend to two years, or with fine, or both.14

11
Emperor v. Kabil 1869, P.V.
12
Section 143 of The Indian Penal Code,1860
13
Section 144 of The Indian Penal Code,1860
14
Section 145 of The Indian Penal Code,1860
 CONCLUSION

The concept of Joint Liability, Group Liability are given under section 34 & 149, and
vicarious liability is under section 149.
Section 34 provides acts by several all are liable and section 149 provides act by any member
of unlawful assembly all are liable.
You can punish a person for being a member of an unlawful assembly because membership
of an unlawful assembly is a substantive offence it is punishable U/S: 143 & 144 itself. But
Section 34 does not provide for punishment. It is not a substantive provision. It does not
create an offence. It is only a rule of evidence which will work with paired only with some
other sections like section 120A defining criminal conspiracy, section 120B which define
punishment for criminal conspiracy.