Common Intention and Common Object
Introduction:
Normally criminal liability is individual liability because it requires proof of both mens
rea and actus reus. But crime need not be done individually. Often criminal acts of
serious nature are done in a group. When several persons are involved in
prosecution of 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 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. In this module
we would discuss only provisions which fix criminal liability on the basis of common
intention and common object, that is, ss. 34 to 37 and s.149.
Common Intention:
Intention means guilty mind, ‘purpose of desire to bring about a contemplated result
or foresight that certain consequences will follow from the conduct of the person.’
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.
S. 32 states that ‘acts done extend also to illegal omissions.’ ‘The word “act” denotes
as well a series of acts as a single act: the word “omission” denotes as well a series
of omissions as a single omission’.
Vicarious liability under s. 34 is fixed on a member of group when
(i) A criminal act is done in furtherance of ‘common intention’ of members of
the group
(ii) The member has participated in some manner in the happening of the
criminal action
What is Common Intention:
Common intention denotes meeting of mind of the persons accused of an offence.
This requires a prior concert. In Surendra Chauhan v. State of Madhya Pradesh a
doctor was neither competent to terminate pregnancy nor he had the approval of the
government. His clinic lacked the basic instruments necessary for the purpose.
Victim was taken to that clinic by a person for termination of the pregnancy of the
victim and she died in the process. Doctor and the person who took her to the clinic
were held liable for the death of the victim as the crime was committed in furtherance
of the common intention. In this case the two accused knew that the clinic did not
have the facility for termination of pregnancy and the doctor did not have the
competence to complete the procedure without hazard. Still they concerted and
carried on the termination of pregnancy of the victim. Hence there was common
intention of the two accused to undertake a procedure illegally and in furtherance of
their common intention they subjected the victim to the abortion process as a result
of which the victim dies. Hence there was common intention, an act was done in
furtherance of the common intention and each of the two accused participated in the
criminal act. One brought the victim to the clinic and the other applied the procedure
on the victim.
Although common intention means meeting of mind which requires prior concert, it
can also develop on the spot after the offenders have gathered there. In Kripal
Singh v. State of Uttar Pradesh 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, 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. Another example
which seems close is Lallan Rai v. State of Bihar wherein court quoted with
approval following observation of the Supreme Court in Suresh v. State of U.P.
There is no gainsaying that a common intention presupposes prior concert,
which requires a pre- arranged plan of the accused participating in an offence.
Such 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. Common intention can be formed
previously or in the course of occurrence and on the spur of the moment. The
existence of common intention is a question of fact in each case to be proved
mainly as a matter of inference from the circumstances of the case.
In Lallan Rai vs. State of U.P., victim alongwith three other persons was returning
from Taraiya Bazar to his village on the day of Holi festival. 14 accused were sitting
at the house of Rajendra Rai variously armed with weapons. At the instigation of
Rajendra Rai all accused persons encircled the victim and his companions and killed
the victim. Defence unsuccessfully tried to plead that the accused should be tried for
their individual actions. It could not be proved that 14 accused had assembled with
the purpose to kill the victim because there was no evidence that they knew that he
would be returning at that time through that path. It was found in trial that the plan to
kill developed all of sudden. That is why application of s. 149 failed because the
assembly was not unlawful. But the Supreme Court applied s. 34 and held the
accused persons liable for murder because they shared common intention to kill the
victim and this common intention had developed on the spot.
Common intention is different from same or similar intention. ‘To constitute common
intention it is necessary that the intention of each person be known to all the others
and be shared by them.’ In Mahboob Shah v. Emperor, Allah Dad and a few others
were trying to collect reeds from the bank of the Indus river. They were warned by
Mahboob Shah against collecting reeds from lands belonging to him. Ignoring the
warning the deceased collected reeds but was stopped by Qasim Shah, nephew of
Mahboob Shah while he was placing them on a boat. Qasim Shah was hit by the
victim by a bamboo pole. On hearing Qasim Shah’s cries for help, Mahboob Shah
and his son Wali Shah came armed with their guns. Wali Shah fired at the victim who
died instantly and Mahboob Shah fired at another person causing him some injuries.
Lahore High Court sentenced Mahboob Shah with murder of victim under s. 302
read with s. 34. But on appeal Privy Council set aside the conviction for murder for
Mahboob Shah stating that common intention required pre-arranged plan and it has
to be proved that criminal act was done in concert pursuant to pre- arranged plan.
Here the two accused might be having same or similar intention but not common
intention and since firing of Mahboob Shah did not kill anyone he was not held liable
for murder by the application of s. 34.
What Amounts to Participation:
An essential ingredient of liability under s. 34 is participation of the accused in the
commission of the crime. In State of Orissa v. Arjun Das Agarwal, some persons
entered the hotel of the victim after 10 pm and picked up quarrel with him. One of the
accused stabbed him and others gave blows. Fifth accused, Arjun Das Aggarwal
was standing outside the hotel on the road and instigating the other accused to finish
the victim soon. The Supreme Court held four accused liable under s. 302 read with
s. 34 but did not hold Arjun Das Agarwal liable for murder because he neither went
inside the hotel of the deceased nor took any part in the commission of the murder.
He was only standing outside and instigating and there was no evidence to show
that more blows were given to the victim due to instigation of the respondent. This
was a case where common intention had developed on the spot. In direct contrast to
this case is the decision of the Privy Council in Barendra Kumar Ghosh v.
Emperor, which was preplanned. In this case four men attacked the office of the
postmaster while he was counting money. Three of them entered the office and
demanded the money. Thereafter they opened fire at the postmaster and fled with
the money. Appellant who was one of the party was standing outside the office all
this time. He was visible from inside and could see what was happening inside.
Defence of the appellant was 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 on the basis
of facts surrounding the case. In certain cases helpless spectators have not been
held to be liable under s. 34. For example in State of Uttar Pradesh v. Sahrunnisa,
three boys of the family were being sacrificed on the superstitious belief of a father
and daughter that they would regain life. Mother of the boys and her son- in-law
(husband of her daughter) were helpless spectators. Two boys died in this while the
third somehow escaped death. Dismissing the appeal of the State, the Supreme
Court held that a poor muslim lady would normally be too afraid of her husband and
daughter who were mistakenly convinced of supernatural occurrence and hence
dared not oppose their actions. This cannot be termed as her having common
intention to commit the crime nor can her not opposing be termed as participation in
the crime.
Once it is established that a crime has been committed in furtherance of the common
intention of all the accused, it is irrelevant what was the nature of participation of the
particular accused. He would be liable for the crime as if he alone committed the
crime. If two persons attack someone with the common intention to kill him they both
would be liable for murder read with s. 34 even though death was caused by the
wound given by one of them only. In Krishnan v. State, the victim was attacked by
four accused. They had earlier also threatened her. One day when the deceased
refused to comply with their demand, they attacked her and her brother armed with
sharp weapons. Four accused gave blows at different parts of the body. One gave a
blow on the right side of the head of the deceased with aruval. This injury proved to
be fatal. Holding all the accused liable for murder under s. 302 read with s. 34 the
Supreme Court held that when several persons participate in a criminal act with
common intention it is irrelevant what was the individual role of a participant. All
would be held liable for the crime as if it was done by him alone.
Common Object:
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. An assembly of five or more persons may be unlawful since the
inception if it is formed with an unlawful object or may become unlawful later when its
object became unlawful under s. 141. If any person joins or continues in an unlawful
assembly knowing it to be an unlawful assembly is said to be a member of an
unlawful assembly.
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.’
Common Object & Its Difference from Common Intention:
First question that arises is what is a common object? In Gangadhar Behera v.
State of Orissa, Pasayat, J. defined common object in following terms:
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
with it.
Again he states,
An object is entertained in the human mind, and it being merely a mental
attitude, no direct evidence can be available and, like intention, has generally
to be gathered from the act which the person commits and the result
therefrom. Though no hard and fast rule can be laid down under the
circumstances from which the common object can be culled out, it may
reasonably be collected from the nature of the assembly, arms it carries and
behavior at or before or after the scene of incident.
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 acts as an assembly to achieve that object.
Referring to Barendra Kumar Ghosh v. Emperor, S.K. Das, J. in Chikkarange
Gowda &Ors. v. State of Mysore, distinguished between common object and
common intention in following words,
In Barendra Kumar Ghosh v. Emperor the distinction between Sections 149
and 34, Penal Code was pointed out. It was observed that Section 149
postulated an assembly of five or more persons having a common object,
namely, one of those objects named in Section 141, and then the doing of
acts by members of the assembly in prosecution of that object or such as the
members knew were likely to be committed in prosecution of that object. It
was pointed out that there was a difference between common object and
common intention; though the object might be common, the intention of the
several members might differ. The leading feature of Section 34 is the
element of participation in action, whereas membership of the assembly at the
time of the committing of the offence is the important element in Section 149.
The two sections have a certain resemblance and may to a certain extent
overlap, but it cannot be said that both have the same meaning.
Difference between common object and common intention can better be understood
with the help of the facts and decision in this case where both ss. 34 and 149 were
mixed. A mob of about 100 persons rushed towards a house at noon where two
brothers Putte Gowda and Nanje Gowda were found. The mob sprinkled kerosene
oil on the roof and started burning the house. When the inmates of the house came
out the two brothers were brutally assaulted and this resulted in their death. Four
appellants were members of the mob. Appellant 1 had hit Putte Gowda on Abdomen
with a cutting instrument, appellant 4 hit Putte Gowda on the knee with a chopper.
Second appellant hit Nanje Gowda with a spear and the third appellant hit Nanje
Gowda on the head with an axe. The appellants along with several others were
charged under section 148, 302 and 302 with ss. 34 and 149 on the ground that the
common object of the assembly was to kill Putte Gowda. However, it was found that
the common object of the assembly was only the chastisement of Putte Gowda. The
question was whether four appellants can be held liable for separate common
intention of causing death of Putte Gowda? The Supreme Court held that appellant 1
and 4 could not be held guilty of murder on the principle of joint liability under section
34 because they were not given any notice and reasonable opportunity to present
their case on separate common intention of three persons of causing death of Putte
Gowda and Nanje Gowda as separate from common object of the unlawful assembly
which was chastisement only. Hence they had to be judged for their individual
actions which went beyond the common object of the unlawful assembly. None of the
injuries caused by the two appellants was fatal in nature. Hence they were held liable
under ss. 326 and 148 IPC only. Appellant 2 was charged with causing a spear
wound to Nanje Gowda which was not found to exist in the medical evidence, hence
he was also charged only under s. 148. Appellant 3 had hit Nanje Gowda on head
with an axe which was found to be sufficient to cause death and hence he was held
guilty under section 302 IPC.
Difference between ss. 34 and 149 was elaborated in Nanak Chand v. State of
Punjab27 also where the prosecution had argued that s. 149 does not create any
offence and merely provides for constructive guilt similar to s. 34 of the IPC.
Negating the contention of the prosecution, the Supreme Court stated that section 34
is merely explanatory and does not create any specific offence but the same is not
true about s. 149.
The principal element in section 34 of the Indian Penal Code is the common
intention to commit a crime. In furtherance of the common intention several
acts may be done by several persons resulting in the commission of that
crime. In such a situation section 34 provides that each one of them would be
liable for that crime in the same manner as if all the acts resulting in that crime
had been done by him alone.' There is no question of common intention in
section 149 of the Indian Penal Code. An offence may be committed by a
member of an unlawful assembly and the other members will be liable for that
offence although there was no common intention between that person and
other members of the unlawful assembly to commit that offence provided the
conditions laid down in the section are fulfilled. Thus if the offence committed
by that person is in prosecution of the common object of the unlawful
assembly or such as the members of that assembly knew to be likely to be
committed in prosecution of the common object, every member of the
unlawful assembly would be guilty of that offence, although there may have
been no common intention and no participation by the other members in the
actual commission of that offence.
The court referred to the decision of Lord Sumner in Barendra Kumar Ghosh vs.
Emperor, where it was pointed out that element of participation in action was the
leading feature of s. 34 and it was replaced in s. 149 by membership in assembly at
the time of committing the offence.
When Membership Creates Vicarious Liability:
The second issue is when does a member of unlawful assembly become vicariously
liable for actions of other members of the assembly? Member of an unlawful
assembly becomes liable under S. 149 under two conditions:
(a) It is an offence committed by a member of the unlawful assembly in
prosecution of the common object of that assembly; or
(b) It is an offence such as the members of that assembly knew to be likely to be
committed in prosecution of that object.
In the first condition an action is committed by an unlawful assembly in direct
prosecution of the common object of the assembly. ‘The purpose for which the
members of the assembly set out or desired to achieve is the object.’ In the second
condition, although the action was not the object of the unlawful assembly, members
of the unlawful assembly knew it likely to be committed in prosecution of the object of
the assembly. ‘The word “knew” used in the second branch of the section implies
something more than a possibility and it cannot be made to bear the sense “might
have been known”. Positive knowledge is necessary.’
In Chikkarange Gowda v. State of Mysore, members of the unlawful assembly
were held not liable under s. 149 for the murder committed by one accused because
it was not the common object of the assembly. Common object of the assembly was
only to chastise the victim. Similarly in Bhimrao v. State of Maharashtra, appellants
were members of the unlawful assembly who had gone to the house of the victim to
assault him Appellants stayed outside the house and some of the members of the
assembly went inside the house and killed the victim. The court refused to hold
appellants liable for murder stating that the victim was killed by some of the
members of the unlawful assembly who formed a separate common object after
entering the house. Appellants can be liable only for the common object of causing
assault on the victim. But in Umesh Singh & Anr. v. State of Bihar, appellants were
held liable under s. 149. In this case 20 men armed with lathis, bhala and gun came
to the ‘Kahlihan’ of Bhola Singh where he and other members of his family were
thrashing paddy. They tried to take away the paddy. One of the members of the
unlawful assembly threatened that any resistance would be met by such action
which might even result in death. One member of the assembly hit Bhola Singh with
lathi and another opened fire. There was firing by other members of the assembly
also. Bhola Singh and his one and half year old son died. Holding the appellants
guilty under s. 302 read with s. 149 and other provisions of the IPC, the Supreme
Court stated that an accused whose case falls under s. 149 cannot take the defence
that he did not with his own hand commit the offence for which he was prosecuted.
Everyone must be taken to have intended the probable and natural results of
the combination of the acts in which he had joined. It is not necessary in all
cases that all the persons forming an unlawful assembly must do some overt
act. Where the accused had assembled together, armed with guns and lathis,
and were parties to the assault on the deceased and others, the prosecution
is not obliged to prove which specific overt act was done by which of the
accused. Indeed the provisions of Section 149 IPC, if properly analysed will
make it clear that it takes an accused out of the region of abetment and
makes him responsible as a principal for the acts of each and all merely
because he is a member of an unlawful assembly.
It has, however, been proved by the prosecution that the offence with which the
accused has been charged was either the common object of the unlawful assembly
or the accused knew that it was likely to be committed in prosecution of the common
object. In Daya Kishan v. State of Haryana, there was a dispute regarding land
between the appellant and one Bhalle Ram. One day there was an altercation
between one of the sons of appellant and nephew of Bhalle Ram, Sanjay in which
the son of appellant threatened to burn Sanjay. After the altercation, five persons
including appellant and his two sons came to the shop of Sanjay armed with lathis.
One of the members of the unlawful assembly Pohla had a gun. When they arrived
at the shop Pohla at once opened fire at Rajesh who used to sit at shop with Sanjay.
Rajesh died of the wound. Other members of the unlawful assembly injured Bhalle
Ram and his family members. The Supreme Court refused to convict appellant and
his sons under s. 302 with s. 149. According to the court, facts did not show that it
was the common object of the assembly to kill Rajesh. The altercation was with
Sanjay. Other members of the unlawful assembly had only injured Bhalle Ram and
his family members. The court held that it was also not possible for the members of
the unlawful assembly to know that it was likely that death of Rajesh would be
caused in prosecution of the common object. This could have been the case if the
gun was fired at Sanjay and Rajesh had gone to his rescue and had got hit in the
process. But the facts were reversed. Therefore appellant were convicted under s.
323 read with s. 149 and s. 148 only.
