Explain the law relating to constructive liability. Distinguish between the words ‘common intention’ and ‘common object’ as they are used under Sec. 34 and Sec. 149 IPC

Question: Explain the law relating to constructive liability. Distinguish between the words ‘common intention’ and ‘common object’ as they are used under Sec. 34 and Sec. 149 IPC. [U.P.C.J. 1999, UPHJS 2007, R.J.S. 1971, UKJ 2002]

OR

What do you understand by the phrase ‘an act done in furtherance of Common intention’? What the essentials are of S. 34 I.P.C. which lays down “Joint responsibility” in doing a criminal act. Write the difference between common intention and similar intention. [UPCJ 2012]

Find the answer to the mains question of IPC only on Legal Bites. [Explain the law relating to constructive liability. Distinguish between the words ‘common intention’ and ‘common object’ as they are used under Sec. 34 and Sec. 149 IPC.]

Answer

Section 34 of the code deals with the provision relating to ‘acts done by several persons in furtherance of common intention’ which is known as common intention. This section reads as follows-

"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."

It may be observed that the words in ‘furtherance if the common intention of all’ didn’t exist in the original code and were added by Section 1 of the Amending Act, XXVII of 1970.

This provision which enunciates the principle of joint or constructive liability for a criminal act done in furtherance of a common intention of all embodies the principle of ruling in the English case R. v. Cruise (1838) 8 C and P 541. A police constable and his assistants went to arrest person A in his house. In that house, there were B, C, D, and certain others.

These persons in order to prevent the arrest of A, came out to drive away from the police party. In this joint attack of the police party, one of the assistants of the policeman was killed and it could not be found who it was that killed the victim, whether it was A or B or C or somebody else. It was held by the court that each of the attackers would be responsible in an equal measure for the criminal act, namely the blow, whether he actually struck it or not.

Therefore, the introduction of words ‘furtherance if the common intention of all’ by way of amendment perfect the principle of the constructive liability for a criminal act under this section.

Difference between Common Intention and Common Object

• Section 34 which talks about common intention applies when two or more persons including the accused do a criminal act and must therefore be present when the act is done while section 149 which talks about common objects applies only when there is an unlawful assembly of five or more persons.
• Section 34 doesn’t by itself create a specific offence, but Section 149 does so.
• For the application of Section 34, the meeting of minds (pre-arranged plan) between the accused person is necessary but it is not so in section 149 where for its application, it is sufficient that the accused was a member of unlawful assembly while the offense was committed.
• Section 34 talks about common intention but section 149 contemplate a common object.
• Some active participation especially in a crime involving physical violence is necessary under Section 34 but Section 149 doesn’t 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 the preparation and commission of the crime.
• Section 34 has a wider application to cases of two or more persons but the range is restricted to participation of a criminal act by all in furtherance of the common intention of all. On the contrary, section 149 is restricted in its application to five or more persons who from an unlawful assembly but in its application has a wider scope.

The distinction between Common Intention and Similar Intention

Common intention does not mean a similar intention of several persons. To constitute common intention, the intention of each one of them must be known to the rest of them and shared by all. The common intention could be inferred from the facts and circumstances of the case, if it is not so the section cannot apply.

In the case of Mahboob Shah v.. Emperor, [AIR 1945 PC 118] the court has given a close observation upon the distinction between the two. It says that section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say the common intention of all, nor does it say an intention common to all. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

To involve the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all; if this is so then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. To procure the intention of individual care must be taken not to confuse same or similar intention with common intention; the parties which divide “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in a miscarriage of justice.

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