Generally, it is said that a person can be held liable for harm caused by his own conduct and not of others. It is because criminal liability requires proof of both mens rea and actus reus. However, the exception to this notion is that crime need not be done individually. Often criminal acts of serious nature are done in a group. When several persons are involved in a criminal act, it becomes difficult to distinguish the role of different participants if the result of all actions combined is the intended criminal consequence. If A, B and C make a plan to kill D and in the prosecution of the crime, A buys a poison, B mixes it in food and C gives it to D as a result of which D dies, it would be unjust to hold only C liable for murder. To deal with such cases, criminal law has provisions for joint liability or group liability or vicarious liability. As a result of this law, a person becomes vicariously liable for the result of the action of the group of which he is a member. Law for joint criminal liability is present in different provisions of the Indian Penal Code (IPC) e.g., ss, 34 to 38, 149, 120A, 121A, 396 and 460.
The concepts of common intention and common object, that is, ss. 34 to 37 and s.149 are particularly important under joint liability, these similar-sounding terms are actually very different in nature, therefore it’s only appropriate to discuss their difference
What is Common Intention?
Intention means guilty mind, when two or more persons share this guilty desire it is common intention. And when a criminal act is done by such persons s. 34 makes them liable for the act, irrespective of what role one person individually played in that action. It states 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. Section 34 lays down only a rule of evidence and does not create a substantive offence. Thus, it implies a prearranged plan and acting in concert pursuant to the plan.
Such common intention must exist 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 to be proved and can develop on the spot as between a number of persons and could be inferred from facts and circumstances of each case.
In Kripal Singh v. State of Uttar Pradesh[i] there was a dispute over land between the accused and the victim. One morning the three accused tried to stop labourers from working in the field which the labourers tried to resist. When the victim intervened two accused hit him with sharp weapons. Third accused stabbed the victim with a spear blade which struck the victim in the jaw. The blow injured the brain of the victim who died on the spot. The court held that the three accused were liable under s. 326 read with s. 34. However, the third accused alone was liable for murder. The common intention which developed on the spot was to attack the victim with sharp weapons. Other two accused did not intend murder of the victim.
An essential ingredient of liability under s. 34 is the participation of the accused in the commission of the crime. In Barendra Kumar Ghosh v. Emperor[ii] four men attacked the office of the postmaster while he was counting money. Three of them entered the office and demanded money. Thereafter they opened fire at the postmaster and fled with the money. The appellant who was a part of the group was standing outside the office all this time. He was visible from the inside and could see what was happening inside. The appellant claimed that he was frightened, and he did not participate in the crime and was merely standing outside the office. Rejecting his appeal, Privy Council stated that ‘they also serve who stand and wait.’ In this way, his participation was sufficient to make him vicariously liable for the actions of the other participants in the group. Whether the accused had participated or not has to be decided based on the facts and circumstances of the case
What is Common Object?
In Gangadhar Behra v. State of Orissa Pasayat, [iii] the court defined common object as: The word “object” means the purpose or design and, in order to make it “common” it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur to it.[iv]
Distinguishing common object from common intention he states, “Common object” is different from a “common intention” as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that act as an assembly to achieve that object. [v]
Chapter VIII of the IPC deals with the offences against public tranquillity. S. 141 of IPC tells us that an assembly of five or more persons is called an ‘unlawful assembly’ if the common object of the assembly is one of the five objects listed in that provision. Therefore, the existence of a common object is the vital ingredient while determining the offences under Chapter VIII of IPC.
S. 149 of IPC fixes vicarious liability for members of unlawful assembly. ‘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 the case of Roy Fernandes v. State of Goa[vi], the Supreme Court held that to determine the existence of the common object, the court is required to see both the circumstances in which the incident had taken place and conduct of members of unlawful assembly which includes the weapon of offence that the accused persons used to commit the offence.
Section 149 specifies that it holds every member of the unlawful assembly liable for the offence committed in consonance with the common object of the unlawful assembly. Therefore, it establishes a joint liability. In the case of State of Maharashtra v. Joseph MingelKoli[vii], the High Court held that it is well settled that once a membership of an unlawful assembly is established, the prosecution need not prove that the accused has been assigned with any overt act to be committed by him in order to accomplish the common object. Mere membership of the unlawful assembly is enough to be held liable for the offence committed in prosecution of the common object.
Here are 3 important differences between Common Intention and Common Object
|Basis||Common Intention||Common Object|
|Meaning||Section 34 of the Indian Penal Code Defines Common Intention as, “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.||According to Section 149 of the Indian Penal Code 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.|
|Number of persons required||Under Section 34,the number of persons must be more than one.||Under Section 149 ,the number of persons must be five or more.|
|Prior meeting of minds||Common intention under Section 34 requires prior meeting of minds or pre-arranged plan, i.e. all the accused persons must meet together before the actual attack participated by all takes place.||Under Section 149, the prior meeting of minds is not necessary. Mere membership of an unlawful assembly at the time of the commission of the offence is sufficient.|
Therefore both Section 34 and s.149 impose vicarious and joint liability in the name of common intention and common object on each person for acts not necessarily done by them. However, the concept of common intention as provided under IPC differs from that of the common object on the ground that common intention requires pre-oriented minds and concerted plans whereas, the common object has no such requirement of the meeting of minds of the members of unlawful assembly before a commission of an offence.
The Fifth Law Commission of India [viii]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 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.
[i] AIR 1954 SC 706.
[ii] AIR 1925 PC 1.
[iii] (2002) 8 SCC 381
[iv] Id. pp. 396-397
[v] Id. p. 397.
[vi] AIR 2012 SC 1030
[vii] (1997) 2 Crimes 228 (Bom)
[viii] Law Commission of India (Forty Second report: Indian Penal Code) 1971
Student, Symbiosis Law School Pune
Rachita is Student at Symbiosis Law School, Pune. She is originally from Chennai and has completed secondary and higher secondary education at Indian High School, Dubai. She is an aspiring lawyer with an avid interest in Intellectual Property Law. For any clarifications, suggestions and feedback kindly find her at email@example.com