COMMON INTENTION

AND
COMMON OBJECT
 COMMON INTENTION AND COMMON OBJECT

COMMON INTENTION [SECTION 34]

Section 34 is applicable to the acts done by several persons in furtherance of common

intention. According to Section 34, 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.

Illustration

A, B and C plan to commit the murder of D. They all go to D’s house at night. A breaks
the door of D’s house. B waits near the gate to alert A and B if someone approaches. C
enters the house and commits the murder of D.

D’s murder is the offence committed by A, B and C towards the common intention of
all. Each one is guilty of D’s murder as if it was committed by each one of them
individually.

Section 34 does not, by itself create any offence. It extends the liability of an accomplice in
a crime to all the other accomplices. Thus, whatever offence that may be committed by
any of the accomplices towards, the common intention of all, all of them will be liable for
that offence.

In the above example, C committed murder of D in furtherance of the common intention of

all. Therefore, A, B and C are all guilty of murder. If D commits robbery instead of murder,
all of them would be liable for robbery. Thus, section 34 decides who is liable. It does not
decide the offence for which he is liable. It depends upon the actual commission of offence
by any member of that group.

OBJECT OF SECTION 34

Section 34 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.

This section really means that if two or more persons intentionally do a thing jointly, it is
just the same as if each of them has done it individually. 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.
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ELEMENTS OF SECTION 34
To attract the application of Section 34, the following conditions must be satisfied:-

1. There should be criminal act committed.

2. The criminal act must have been committed by several persons.

3. The criminal act must have been committed in furtherance of a common intention.

4. Each one must have participated in the criminal act.

1. Some Criminal Act

‘Criminal act’ used in section 34 does not refer to individual acts where a crime is
committed by a group of persons. It refers to the act of the group as a whole. That means
each member of the group may commit a different act. Or they may commit some act
jointly. Each of them may have done some act, similar or diverse, big or small.

In the above example A has broken open the door of D’s house. B has stood guard outside
the B’s house to alert A and C if someone approached. C has committed murder. But the
commission of D’s murder is seen as not the act of C alone, but as that of the entire group
consisting of A, B and C.

‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal
behaviour which results in something for which an individual would be punishable if it
were all done by himself alone in an offence.

2. Done By Several Persons

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.

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.

Illustration

In the above example, when C enters the house of D to commit the murder of D, he sees
a locker with money and valuables open. He commits takes the opportunity and steals
the money and valuables. Only C is liable for the theft. A and B are not liable for theft.
 Common Intention [Section 34] 3

3. Common Intention1

The expression ‘common intention’ means unity of purpose or a pre-arranged plan.

Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation
in between all the persons constituting the group.

Common intention also means evil intent to commit some criminal act, but not
necessarily the same offence which is committed.

Illustration

In the above example, when A, B and C go to D’s house to commit D’s murder, they
commit criminal trespass, house breaking and murder. Though there was no specific
intention to commit criminal trespass and house breaking by night, those offences were
committed in furtherance of the common intention of all, i.e., commission of murder.

Shankarlal

Four accused had a common intention to shoot and kill R. They saw M. In the bona
fide belief that M was R, they shot and killed M.

The Supreme Court held that all the four were guilty of the murder of M. It was
observed that in such cases the question is not whether the commission of mistake was
part of the common intention.

Criminal act must be done in concert pursuant to the pre-arranged plan. Common
intention must exist prior to the commission of the act in point of time.

However, it is not necessary that there should be some gap between the formation of
common intention and the commission of criminal act. Common intention may develop on
the spot as between a number of persons and this has to be inferred from the act and
conduct of the accused, and facts and circumstances of the case.

Illustration

A and B are walking along a road. They see C who is their common enemy. There is no
one else on that road. A and B momentarily look at each other and suddenly jump at C.
A holds C and B hits C. Both are liable for assault of C.

1 The words “in furtherance of the common intention of all” were added to section 34 after words
‘persons’ in 1870. Possibly, the idea was derived from the following passage from the judgement
of the Privy Council in Ganesh Singh vs. Ram Raja:
“Where parties go with a common purpose to execute a common intention, 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.”
4

In Kripal Singh vs. State of U. P., 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.

In Rishi Deo Pandey vs. State of U. P., 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.

In Khacheru Singh vs. State of U. P., 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.

In Sheoram Singh vs. State of U. P., the Supreme Court held that common intention may
develop suddenly during the course of an occurrence, but still unless there is cogent
evidence and clear proof of such common intention.

Common Intention And Similar Intention

Common intention must be distinguished from similar intention or same intention. An

intention becomes common intention of two or more persons when it is shared by them.

Two or more persons may separately and independently form the intention to commit the
same criminal act.

Illustration

A is publicly insulted and humiliated by B. A intends to kill B to take revenge. C is B’s

son. He demanded Rs. 10 lakhs which B refused. C intends to kill B to inherit B’s
property. Though both A and C intend to commit the murder of B, their intentions are
separate and independent. A and C do not share the intention.

It is not necessary that the motives must be common. In the above example, if A and C
come together and plan to kill B to achieve their different motives, the intention becomes
common intention and section 34 becomes applicable.
 Common Intention [Section 34] 5

In Ramachander vs. State of Rajasthan it was held that where there is no indication of
premeditation or of a pre-arranged plan, the mere fact that the two accused were seen at
the spot or that the two accused fired as a result of which one person died and two others
received simple injuries could not be held sufficient to infer common intention.

4. Participation in the Criminal Act

The participation in a criminal act of a group is a condition precedent in order to fix joint
liability. There must be some overt act indicative of a common intention to commit an
offence

The law requires that the accused must be present on the spot during the occurrence of
the crime and take part in its commission. It is enough if he is present somewhere nearby.

The Supreme Court has held that it is the essence of the section that the person must be
physically present at the actual commission of the crime. He need not be present in the
actual room. For example, he may stand guard by a gate outside ready to warn his
companions about any approach of danger or wait in a car on a nearby road ready to
facilitate their escape. All that is required is that he must be physically present at the
scene of the occurrence and must actually participate in the commission of the offence
some way or other at the time crime is actually being committed.

Barendra Kumar Ghosh vs. King Emperor

(AKA Shankari Tola Post Office Murder Case)

This is the first leading case on the point. In this case Barendra Kumar and some other
persons appeared before the sub-post master who was counting the money on the table
and demanded the money. Three of them opened fire and killed the sub-post master.
Then all of them ran away without taking any money. Barendra Kumar was, however,
caught with a pistol in his hand and was handed over to the police.

The accused was tried under section 302 read with section 34, as he was one of the
three men who fired at the sub-post master. The accused denied the charge on the
ground that he was simply standing outside and had not fired at the deceased. The
court, on being satisfied that the sub-post master was killed in furtherance of the
common intention of all, convicted the accused even if he had not fired the fatal shot.
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COMMON OBJECT [SECTION 149]

Section 149, like Section 34, is an instance of constructive joint liability. It runs as under:

“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 assembly, is guilty of that offence.”

Section 149 creates a specific and distinct offence. Section 149 creates joint liability of all
members of an unlawful assembly for criminal act done by any member in prosecution of
the common object of the said assembly.

OBJECT OF SECTION 149

The object of section 149 is to make it clear that a person who is covered by this section
cannot contend that he did not, with his own hands, commit the offence which is also
covered by this section.

‘Person Covered by Section 149’

The ‘person covered by this section’ means a person who is a member of an unlawful
assembly. Section 141 defines ‘unlawful assembly’. Section 142 defines ‘being a member
of an unlawful assembly.

Unlawful Assembly

According to section 141, an ‘unlawful assembly’ is an assembly of five or more persons

with any one or more objects mentioned in section 141 as their common object.

The following are the objects mentioned in section 141:

1. To overawe (to create fear in)

(a) the Central or any State Government or

(b) Parliament or the Legislature of any State, or

(c) any public servant in the exercise of the lawful power of such public servant; or

by means of

(a) the use of criminal force, or

(b) the show (threat) of criminal force;

 Common Object [Section 149] 7

2. To resist the execution of

(a) any law, or

(b) any legal process;

3. To commit any

(a) mischief, or

(b) criminal trespass, or

(c) other offence; or

4. To

(a) take or obtain possession of any property, or

(b) to deprive any person of the enjoyment of

(i) a right of way, or

(ii) the use of water or

(iii) other incorporeal right of which he is in possession or enjoyment, or

(c) to enforce any right or supposed right

by means of

(a) the use of criminal force, or

(b) the show (threat) of criminal force

to any person.

5. To compel any person

(a) to do what he is not legally bound to do, or

(b) to prevent him from doing what he is legally entitled to do

by means of

(a) the use of criminal force, or

(b) the show (threat) of criminal force.

An assembly which is lawful in the beginning can become unlawful subsequently. For
example, gathering of audience at a public speech is a lawful assembly. But when the
speaker, during his speech, makes a statement which is against the spirit of the audience,
they may try to prevent him from continuing the speech, to which he is legally entitled.
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Being A Member Of An Unlawful Assembly

Every person who is a member of an unlawful assembly cannot be said to be the member
of an unlawful assembly for the purpose of the IPC. To be called a member of an unlawful
assembly, either of the following two conditions must be satisfied:

1. He must have joined the assembly knowing it to be unlawful; or

2. He must have continued to be the member of the assembly after coming to know that
it is an unlawful assembly.

Thus, in the first case the person joins the assembly with the knowledge that it is an
unlawful assembly. He is a member of an unlawful assembly for all purposes, i.e., in fact
as well as in law, i.e., for the purpose of IPC. He is punishable under section 143.

In the second case, the person joins the assembly without knowing that it is an unlawful
assembly. He is not a member of an unlawful assembly for the purpose of IPC. Thus, he is
a member of an unlawful assembly in fact, but not in law. He is not punishable under
section 143.

But if he later discovers that the assembly is an unlawful assembly, he should quit that
assembly immediately. If he continues to be the member of the assembly even after
knowing that it is an unlawful assembly, he is guilty and is punishable under section 143.

‘Offence Covered by Section 149’

‘An offence covered by the section’ means an offence which is

1. in prosecution of the common object of that assembly, or

2. such as the members of that assembly knew to be likely to be committed in prosecution

of that object.

1. In Prosecution Of The Common Object

The words “in prosecution of the common object” show that the offence committed was
immediately connected with the common object of the unlawful assembly of which
accused were members. The act must have been done with a view to accomplish the
common object of the unlawful assembly.

In Queen vs. Sabid Ali, the words “in prosecution of the common object” were construed
as meaning “with a view to achievement of the common object”.
 Common Object [Section 149] 9

2. Members Knew To Be Likely

The second part relates to a situation where the members of the assembly knew that the
offence is likely to be committed in prosecution of the common object.

The word ‘knew’ implies something more than a mere possibility. It is not the same as
‘ought to have known’. To be covered by the phrase ‘members knew to be likely’ the
offence committed must be immediately connected with the common object of the
unlawful assembly. The words ‘committed in prosecution of the common object’ make this
very clear. If that offence was committed with some other object, the other members of the
unlawful assembly cannot be held liable for such offence, as it is unconnected with the
common object of the assembly.

Common Object

Section 149 does not seek to subject a member of an unlawful assembly to punishment
for each and every offence committed by any other member of such unlawful assembly.
The offence must be committed in prosecution, etc. of a common object of that assembly.

Even though a common object may not be developed in the initial stage, it may develop on
the spot, eo instanti (instantaneously).

Vithal Bhimshah Koli vs. State of Maharashtra

It appeared from the evidence that the accused divided themselves into small groups
and waited for the victim. When they saw the victim they simultaneously attacked and
killed him. After that they jointly removed his body.

The argument of the accused was that they did not assemble in any one place under
any common plan, and that they came to the spot separately. Therefore, they
contended that section 149 is not applicable as there was no common object.

The Supreme Court rejected their argument and convicted them u/s 302 r/w sec. 149.

ELEMENTS OF SECTION 149

The essence of offence under Section 149 is assembly of several (five or more) persons
having one or more of the common objects mentioned in Section 141 and it could be
gathered from the nature of the assembly, arms used by them and the behaviour of the
assembly at or before scene of occurrence.
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Thus, the essential ingredients of Section 149 are:

1. There must be an unlawful assembly, as defined in Section 141;

2. Criminal act must be done by any member of such assembly;

3. Act done is for prosecution of the common object of the assembly or such which was
likely to be committed in prosecution of the common object;

4. Members have voluntarily joined the unlawful assembly and knew the common object
of the assembly.

5. Mere presence and sharing of common object of the assembly makes a person liable
for the offence committed even if he had no intention to commit that offence.

6. Participation of the member, or his presence at the scene of offence is not necessary.

DIFFERENCE BETWEEN COMMON INTENTION AND COMMON

OBJECT
The difference between common intention and common object may be stated as under:

1. Section 34 does not create any specific offence but only states a rule of evidence.
Section 149 creates a specific offence.

2. Under Section 34 number of persons must be two or more. Under Section 149 number
of persons must be five or more.

3. 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.

4. Common intention under Section 34 requires prior meeting of minds or pre-arranged

plan, i.e., minds of all the accused persons must meet before the actual act takes
place. 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.

5. 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.