The essential ingredients to be proved in order to fix joint responsibility are (a) that criminal act was done; (b) that the said act was done by several persons; and (c) that several persons did it is furtherance of the common intention of all, i.e., there was a pre-arranged plan in pursuance of which the criminal act was done and the act of each accused helped to further the common intention.
The word “act” referred to in this section includes a series of acts done by several persons, some perhaps by one of those persons and some by another, but in all furtherance of common intention.
In order to attract the provisions of this section it is not enough 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 to prove that there was a pre-arranged plan pursuant to which the criminal act was done in concert.
To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and be shared.
The pre-arranged plan may be made shortly or immediately before the commission of the crime and a long-standing conspiracy is not required for the applicability of this section. The common intention may also develop in the course of events, though it might not have been present to start with.
For a common intention there must be meeting of minds to commit a particular offence. There should be some pre-arranged plan even though they said plain is formed all of a sudden or at the spur of the moment. (Dewan Chand v. State, 1984 Cri. L.J. 1045, Delhi).
When the above essentials are satisfied each of such persons would be liable for the entire criminal act in the same manner as if he alone had done it irrespective of the fact whether he was present at the time or not.
A furtherance of a common design is a condition precedent for convicting each of the persons who take part in the commission of a crime and, if what the several accused did are clearly individual acts done of their own accord rather than acts done in furtherance of a pre-arranged or pre-conceived plan or arrangement between them, the liability of each accused can be in respect of his own individual act not the joint liability contemplated in Section 34 of the Code.
It has been held that the fact that the accused kept standing in the room in which a brutal murder was being committed is not sufficient to convict them for the murder. Failure to rescue the victim does not render them liable, unless community of design is proved. (Allah Wasya v. Crown, 48 Cri. L.J. 605).
It has further been held in another case that where the common intention was to commit theft and one of the thieves commits murder, every one of his companions is not liable. However, if one of them openly carried a gun with him all of them must be deemed to have intended the murder. (1951 Mys. 1).
In order to invoke S. 34 against the accused, prior concert or a pre-arranged plan has to be established.
And though common intention has to be inferred from his act, or conduct and other relevant circumstances, it is not necessary that any overt act must have been done by any particular accused. It is enough if the criminal act has been done by one of the accused to furtherance of the common intention. (State of U.P. v. Iftikar Khan, A.I.R. 1973 S.C. 863).
The view of the High Court that even the person not committing the particular crime could be held guilty of that crime with the aid of S. 34, 1.P.C., if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct.
The common intention must be to commit the particular crime although the actual crime may be committed by any one sharing the common intention. Then only the other can be held to be guilty. (Hardev Singh v. The State of Punjab, (1975) I S.CJ. 459).
Section 34 of the Indian Penal Code does not create an offence. It is not a penal provision. It simply lays down a principle of criminal liability or constructive criminality under which all are held liable for the acts of one of them.
It does not lay down any general formula or prescribe a standard to suit a combination of all possible circumstances in relation to a criminal act. The principle underlying the section is 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 recognized and established canon of criminal jurisprudence that if 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.
The authorities show that it is not essential that more than one person should be convicted of the offence and that Section 34; 1.P.C. can be invoked if the court is in a position to find that two or more persons were actually concerned in the criminal offence sharing a common object.
Where the evidence examined by the appellate court unmistakably proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding. (Brathi alias Sukhdev Singh v. State of Punjab, A.I.R. 1991 S.C.318).
It can happen that when some persons act in concert to commit a minor offence, they may during the commission come to an understanding to commit a major offence as well. But development of such an understanding must appear from their conduct or from some other incriminating evidence.
The conduct or other evidence must be such as not to leave any room for doubt regarding the developed common intention.
Before fastening vicarious liability, the criminal court must satisfy itself as to the prior meeting of minds of the principle culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. Mere accompanying cannot infer common intention.
Existence or otherwise of common intention depends upon facts and circumstances of each case.
The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit.
Otherwise, there must be some other clear and cogent incriminating piece of evidence. Evidence regarding development of the common intention to commit an offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. (Madan Nair and others v. State of Kerala, 1989 Cri. L.J. 2106, Kerala) (Daram Pal v. State of Haryana, AIR 1978 S.C. 1492, rel.)
The law with regard to joint offenders is enshrined in Sections 34, 35, 37 and 38 which may be discussed below:
1. 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. (S. 34).
2. 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. (S. 35).
The preceding section, viz., Section 34, deals with a case where a criminal act was done by several persons in furtherance of the common intention of all and each one is held guilty of the principal offence as if the act had been done individually by him.
This section provides that where the element of a particular knowledge or intention constitutes the composition of an offence, all the particulars in the act must be shown to have that particular knowledge or intention in common in order to be liable for a crime committed by any one of them.
In order words, if several persons jointly commit a murder, with each having a different intention or knowledge from the others, each is liable according to his own criminal intention or knowledge and nothing beyond that.
Thus X and Y beat Z, who dies. X had an intention to murder him and knew that the act would cause death; but Y had only the intention of causing grievous hurt and did not know that his act would cause death or such bodily injury as was likely to result in death. X is guilty of murder and Y of causing grievous hurt
3. When an offence is committed by means of several acts, whoever, intentionally co-operates in the commission of that offence by doing any of those acts, either singly or jointly with any other person, commits that offence. (S. 37).
(a) A and B agree to murder Z by severally and at different times giving him small doses of poison and administer the poison according to the agreement with intention to murder Z. Z dies from the effects of 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 Z, a prisoner, alternately for six hours at the time.
A and B, intending to cause Z’s death, knowingly co-operate in causing that effect by illegally omitting, each during the time 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 offence, and B succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z’s death, Z dies of hunger. B is guilty of murder, but, as A did not co-operate with B. A s guilty only of an attempt to commit murder.
4. Where several persons are engaged or concerned in the commission of a criminal act they may be guilty of offences by means of that act. (S. 38).
An 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.
This section is both supplement and converse to Section 34. Section 38 obviously covers two different situations, viz., (1) where several persons act together in furtherance of a common intention, the punishment varying according to circumstances as in the illustration to Section 38 above and (2) where there is action in common but a difference in the intention of the participants. In the first case the section is supplement to Section 34, but in the latter case it is converse to that Section.