(1) GENERAL PRINCIPLE OF CRIMINAL LIABILITY
Individual is liable for his own criminal act. The general principle of criminal liability is declared by section 38 of IPC. It says that no person is criminally liable for the act of another and they may be liable for different acts in one crime. It means where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
Illustration.- ‘A’ attacks ‘Z’ under such circumstances of grave provocation that his killing of ‘Z’ would be only culpable homicide not amounting to murder. ‘B’, having ill-will towards ‘Z’ and intending to kill him, and not having been subject to the provocation, assists ‘A’ in killing ‘Z’. Here, though ‘A’ and ‘B’ are both engaged in causing Z’s death, ‘B’ is guilty of murder, and ‘A’ is guilty only of culpable homicide.
Where, it is difficult to distinguish between the acts of individual and other members of the party or it is difficult to prove precisely the part of taken by each person who is involved in the offence, under group or joint liability, all the persons who are involved in the offence deemed to be guilty equally under the circumstances. Because the presence of the other person offered or provides incensement protection or support to the person actually engaged in the committing the offence. The test of criminal liability depends on two basic elements, namely (i) physical act – By commission of act or by omission of act, and (ii) mental element e.g. Intention – desire or knowledge.
The Supreme Court held that person could be vicariously responsible for acts of others if he had common intention to commit offence. Under the IPC, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime, i.e. principals in the first degree; and (b) those who aid in the actual commission, i.e. principals in the second degree. Law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.[1]
(2) JOINT LIABILITIES UNDER IPC
The IPC besides fixing of individual criminal liability, make the person also constructively liable in jointly committing of an offence under sections 35 to 38, or with common intention under section 34, or abetting offender under sections 114 or 117, or with common object under section 149 (unlawful assembly), or play the role in any act of the crime where several acts involved in commission of that crime under section 120B (Criminal conspiracy) or under section 396 (dacoity with murder) or under section 460 of IPC(lurking house trespass).
The object of the group liability is to examine the various sections of the IPC in which the accused though he has not done any offence with his own hand still he will be held equally responsible under some of the sections of IPC.
(2.1) ACTS DONE IN FURTHERANCE OF COMMON INTENTION
The original section 34 of IPC, 1860 stood was : “When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.” However, on account of certain observations made by Sir Barnes Peacock C.J. in Queen v. Gora Chand Gope, [(1866) 5 SWR (Cri) 45], it was necessary to bring about a change in the wordings of the section. Accordingly, in the year 1870 an amendment was brought which introduced the following words, “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.” After this change, the section has not been changed or amended ever.
Before a person can be held liable for the acts of another under section 34, two points have to be established – (i) that there was common intention, in the sense of pre arranged plan between the two, and (ii) that the person sought to be made liable in some way participated in the act. Thus unless common intention and participation both are not present, section 34 will not apply.
(2.2) ESSENTIAL INGREDIENTS OF SECTION 34 :
Section 34 of IPC is very important for police personal to know and understand the applicability of the section. It is frequently used in offences being charged in our day-to-day life, but before charging a person under section 34 of IPC, the police person must check the essential ingredients of section. If, circumstances are not fulfilling these ingredients then person cannot be charged. The essential ingredients are as follows –
- Participation of the accused in crime;
- Person must act in furtherance of the common intention; and
- Each of such persons is liable for that act.
(i) Participation of the accused in crime :
Section 34 when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of the action of several persons.
Act under section 34 includes omission.- A criminal act in section 34 includes a series of acts and, further, ‘act’ as defined by section 33 includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. Section 34 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.[2]
Where one policeman was beating the accused in order to extract an admission from him and another policeman was watching this act. It is the duty of a policeman to interfere when such illegal acts are done. Under the circumstances, the other policeman would be punished for his omission (failure to interfere) in the same way as he abetted the offence.
Physical presence is necessary.- The Supreme Court held that the ‘act’ mentioned in section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result.[3]
The accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they share the common intention. Culpability under section 34 cannot be excluded by mere distance from the scene of occurrence. On the other hand, a person who has at no time played any part in the act charged cannot be held guilty by virtue of section 34.
(ii) Person must act in furtherance of the common intention :
It is clear from the section that no one is criminally liable for act of another. However, there are certain exemptions to this section. In order to attract section 34 of IPC, there must be pre-arranged plan and meeting of minds which may also develop on the spot. The conduct of the accused preceding, attending and following the occurrence is relevant to find out as to whether he had shared the common intention. Establishment of common intention, done by proving that each shared the intention with the others. It may be formed at the spur of the moment.[4] Common intention held a question of fact. Mere surrender by appellant along with accused before the police does not show meeting of minds as to bring the case within ambit of section 34. Under section 34, proof of common object is not enough. Mere presence of persons at scene of an offence is not ipso facto sufficient to render them liable for the crime. The existence of common intention is therefore the most important test of joint liability under section 34.
Common intention implies a pre-arranged plan.- The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. However, it must be anterior in point of time to the commission of the crime showing a pre-arranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference.[5] Unless common intention and participation are both present, this section cannot apply.
The common intention within the meaning of the section implies a prior concert or pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Even, such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence.
The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The Supreme Court observed that Section 34 is dependent on the circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of Section 34.[6] Section 34 has been enacted to elucidate the principle of joint liability of a criminal act.
Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.[7]
Difference between common intention and same intention.- The common intention required by section 34 is different from the same intention or similar intention. The persons having similar intention which is not the result of pre-concerted plan cannot be held guilty for the ‘criminal act’ with the aid of section 34. The Supreme Court held that to establish guilty under section 34 it is necessary to prove common intention as distinguished from common object and it must be furtherance of common intention. Under section 34 each person must share the intention of the other. Mere proof that each of culprits had same intention to commit a certain act is not enough. However, common intention can be formed even on the spur of the movement.[8]
(iii) Each of such persons is liable for that act :
To apply section 34 IPC apart from the fact that there should be two or more accused, two factors must be established – (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.[9]
When an offence is committed in furtherance of common intention of two or more accused, then every one of them is guilty. The principle underlying section 34 is that as the intention is common, the liability must also be common. Where section 34 applies, the liability of the person liable by virtue of the section (participation in the criminal act with common intention) is not the liability as an abettor but liability as a principal actor. In order to convict a person vicariously liable under section 34 or section 149, it is not necessary to prove that each and every one of them had indulged in overt acts.[10]
It was observed that to attract section 34 IPC it is not necessary that any overt act should have been done by the co-accused. In this case four accused persons were convicted on a fact situation that two of them were armed with pistols and the other two were armed with lathis and all the four together walked in a body towards the deceased and after firing the pistols at the deceased all the four together left the scene. From the facts of that case it can be said that there was no act on behalf of the two lathi holders although the deceased was killed by a pistol shot. The criminal act in that case was done by all the persons in furtherance of the common intention to kill the deceased.[11]
Actor is responsible irrespective of their share.- If the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.[12]
Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. In order to incur joint liability for an offence there must be a pre-arranged and pre- meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly.[13]
(2.3) Criminal liability for knowledge or participation :
The IPC also set the joint liability in case of actor has knowledge and participated in the action without common intention or cooperated in doing of an act. Section 35 to 37 deals with such liability, which may be read as follows –
(i) If, an act is crime by reason of its being done with a criminal knowledge or intention.- According to section 35 of IPC, whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
(ii) If, effect caused partly by act and partly by omission.- According to Section 36 of IPC, wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.
Illustration : A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
(iii) If, co-operation by doing one of several acts constituting an offence.- According to Section 37 of IPC, “when an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person commits that offence”.
Illustrations :
(a) A and B agree 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-operates 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 Z, a prisoner, alternately 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 much 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 cause Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate with B. A is guilty only of an attempt to commit murder.
Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.
By section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’. By section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain.
(3) Specific constructive liability
(3.1) Constructive liability as an abettor
Constructive liability also falls on a person if he abets the offence in any manner. Section 114 and 117 of IPC deals with such constructive liability which may be discussed as follows –
(a) If, the abettor present when offence is committed.- According to Section 114 of IPC, “whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence”.
This section is only brought into operation when the circumstances amounting to abetment of the particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition. The meaning of this section is that if the nature of the act had done constitute abetment, than if present, the abettor is to be deemed to have committed the offence, though in point of fact another actually committed it. The abetment must be complete apart from the mere presence of the abettor. Thus, a conspirator, who, while his friends entered into a house and looted it, stood and watched outside in pursuance of the common design, could not escape liability under section 114.
(b) If, abetting commission of offence by the public or by more than ten persons.-According to Section 117 of IPC, whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment up to three years, or with fine, or with both.
(3.2) Constructive liability for common object
The IPC is also fix the criminal liability on ground that a person who is working on common object. According to section 149, every member of unlawful assembly is guilty of offence committed in prosecution of common object. It says that 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 or 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”.
One member of an unlawful assembly will be liable for the act of another or of others, if the other members, in prosecution of their common object, commit an offence. Once the common object is, ceases to exist Section 149 cannot apply.
(3.3) Distinction between section 34 and section 149 of IPC
Both Sections 34 and 149 IPC deal with combinations of persons who become punishable as sharers in an offence. In both these sections, the persons are vicariously responsible for the acts of others. Simultaneously, there is a basic resemblance in both these sections and to some extent they also overlap.
There is a substantial difference between these two sections with which we would deal in the later part of this judgment. 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 Section 34 IPC and in a case where Section 149 applies, a constructive liability arises in respect of those persons who do not actually commit the offence.
(i) Section 34 does not by itself create any specific offence, whereas Section 149 does so;
(ii) Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime;
(iii) Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and
(iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 requires that there must be at least five persons who must have the same common object.
(3.4) Joint liability for the act of others :
Section 396 of IPC fixes the joint liability of every person when they commit murder at the time of dacoity. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment up to 10 years, and also fine.
It was held by the Calcutta High Court that it is not necessary that murder should be committed in the presence of all. When in the commission of dacoity a murder is committed, it is immaterial whether the particular dacoit was inside the house, where the dacoity is committed inside or outside the house, so long only as the murder was committed in the commission of dacoity.[14]
Section 460 of IPC fixed the liability of all persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them. The section says that, if, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
This section deals with the constructive liability of person. It is immaterial who causes death or grievous hurt. The term “at the time of committing of” are limited to the time continue for lurcking house trespass or house breaking only. If the offender causes grievous hurt while running away, he will not be punishable under this section.
* * * * *
[1] Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407 : JT 2010 (8) SC 319.
[2] Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.
[3] Ramaswami Ayyangar v. State of Tamil Nadu, (1976) 3 SCC 779.
[4] Dajya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1717.
[5] Amrik Singh and Ors. v. State of Punjab 1972 CriLJ 465 (SC).
[6] Krishnan and Anr. v. State represented by Inspector of Police, (2003) 7 SCC 56.
[7] Girija Shankar v. State of U.P, (2004) 3 SCC 793.
[8] D.M. Bhil v. State of Maharashtra, AIR 1985 SC 717.
[9] Surendra Chauhan v. State of M.P, (2000) 4 SCC 110.
[10] Rambilas Singh v. State of Bihar, AIR 1989 SC 1593 : (1989) 2 SCJ 280.
[11] Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407.
[12] Ramesh Singh @ Photti v. State of A.P., (2004) 11 SCC 305.
[13] Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407 : JT 2010 (8) SC 319.
[14] Samunder Singh v. State of WB, AIR 1965 Cal 598.