PRINCIPLES OF GROUP/JOINT LIABILITY

Lecture No. 4 &5

 INTRODUCTION

• Under joint liability atleast two persons are

involved, the larger number of persons may be
up to unlimited numbers.
 PRINCIPLE

• Basis of Group Liability is Common sense

principle - if two or more persons do an act
conjointly, it is just the same as if each of them
has done it individually. Since the purpose is
common, the responsibility is joint.
 PRINCIPLE OF PUNISHMENT UNDER JOINT LIABILITY

• In cases of Joint liability, it is not necessary that the quantum

of punishment be provided equal to all accused.
• Unequal punishment may also be provided according to the
unequal role played by the different accuseds but one thing is
sure that all the persons participated the illegal act.
• In criminal law three types of Accessory are recognised -
• (a) Accessary before the crime
• (b) Accessary at the crime
• (c) Accessary after the crime
• Accessary before the crime are Abettor, conspirator. - punished with
unequal punishment particularly when one person is abettor other is
doer.
• Accessary at the crime - (i.e. the real doer of the crime) - punished with
equal punishments.
• Accessary after the crime are generally harbourer, assist in escape etc.
- punished with lesser punishment in comparison with the actual doer.
• Rule - Commission of offence depends upon the consent expressed by
all to do the act.
• Principle - Mens rea of one person can not held liable for the other
person until the other person consented to follow up the mens rea.
 Important Provisions
• Accessary at the crime - The relevant Sections described
under joint liability are 34-38, 114, 149, 396 and 460 of
The Indian Penal Code. These are the sections where
joint criminality liability is determined hence equally
punished as if the offence has been committed by him
alone.
• Accessary before the crime - S. 107-120 B
• Accessary after the crime - S. 128-130. 134, 136
 JOINT LIABILITY ON THE BASIS OF COMMON INTENTION
• Section 34-38/149.
• these provisions deal with liability of individuals for their 'co-operative criminal act '.

• Section 37 - lays down a rule that where an offence is committed by means of sev-
eral acts, a person who does any of these act s and intentionally co-operates in the
commission of that of-fence is guilty of the whole offence;
•
• Section 34 - deals with liability of an individual for sharing 'intention' when 'several
persons' and participating in the 'criminal act' done 'in furtherance of the common
intention of all'.

• Section 38 - which in ultimate analysis is converse of s 34, lays down that when
several persons are engaged in or concerned with the commission of a criminal act
and do different acts, they may be held responsible for their different act s
 Section 34
• Section 34. Acts done by several persons in furtherance of
common intention.--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.
• Acts - Section 33. 'Act', 'Omission'.--The word 'act' denotes as
well a series of act s as a single act: the word 'omission'
denotes as well a series of omissions as a single omission.
• Section 34 does not create any specific offence; it only lays
down the principle of joint criminal liability
 ESSENTIAL INGREDIENTS OF SECTION 34

• (1) A criminal act must be done by several

persons;
• (2) The criminal act must be to further the common
intention of all, and
• (3) There must be participation of all persons in
furthering the common intention
• The essence of joint liability under s 34 is the intentional joint criminal
act by several persons in furtherance of common intention.
• Principle - if two or more persons intentionally do a thing jointly, it is just
the same as if each of them has done in individually.
• It is only a rule of evidence and does not create a substantive offence. -
B.N. Srikantiah v. State of Mysore AIR 1958 SC 672; Gurdatta Mal v
State of Uttar Pradesh, AIR 1965 SC 257.
• A furtherance of the common design is a condition precedent for
convicting each one of the persons who take part in the commission of
the crime, and the mere fact that several persons took part in a crime, in
the absence of a common intention, is not sufficient to convict them of
that crime.
• The section applies only where more persons than one are associated
together in one crime as principals.
• Every one must be taken of have ‘intended the probable and only
results of the combination of acts in which he is joining.
• leading feature of Section 34 - Element of participation in action.
• The word “common intention” implies a prior concert, that is, a prior
meeting of the minds and participation of all the members of the group
in the execution of that plan.The acts done by each of the participants
may be different and may vary in their character but they must be
actuated by the same common intention.
 EXAMPLE OF IN FURTHERANCE OF COMMON INTENTION

• EXAMPLE OF PRESENCE OF COMMON INTENTION: A, an accused along with

other two co-accused B and C proceeded to D’s house in order to take revenge of an
insult by the brother of D. They opened fire on the members of D’s family. It was found
that the shots of A did not hit anybody but the shots of B and C succeeded in killing D.
Since the act of firing was done in furtherance of the common intention of the group to
take revenge, A is as much liable for the offence of murder as are B and C. -

• EXAMPLE OF ABSENCE OF COMMON INTENTION - where X, Y and Z with the

intention of assaulting A, gave him a beating and in the course of which, X stabbed A in
the abdomen resulting in A’s death, the act of stabbing was not done in furtherance of
the common intention of the group. The common intention in this case was merely to
inflict simple bodily injury. Hence Y and Z would be liable for causing simple hurt only,
while X for causing murder of A.
 LEADING CASES
• 1. Barendra Kumar Ghose v. Emperor, (1924)52 IA 40 - Judge - Lord
Sumner
• Facts: A sub-postmaster counting money at his table while at
Shankaritola Post Office in Bengal was shot and he died almost at once.
While all the accused fled the place without taking any money, the
accused, Barendra Kumar, alone was chased and caught by the Post
Office assistants with a pistol in his hand. It was his defense that he was
only standing guard outside the Post Office, and that he was actually
compelled to stand so by the other accused and thus he did not have
the intention to kill the Postmaster.
 JUDGMENT/OBSERVATIONS
• a. 'criminal act ' means that unity of criminal behaviour which results in
something for which an individual would be responsible, if it were all done
by himself alone, that is, in a criminal offence.
• b. The distinction between ss 34 and 37 is that while the former requires
a common intention for a criminal act done by several persons (i.e., unity
of criminal behaviour which results in a criminal offence), in which case
each act or becomes liable as if that act was done by him alone,
• s 37 deals with intentional co-operation, which,may not be the same as a
common intention in an offence committed by means of several acts and
punishes such co-operation (provided that it consists in doing any one of
those acts either singly or jointly with any other person) as if it constituted
an offence itself.
c. the presence of a person at the scene of occurrence does amount to
abetment if it is intended to encourage the commission of the offence.
Lord Sumner - “They also serve who only stand and wait”
 Mahbub Shah v Emperor, AIR 1945 PC 118
• at sunrise, the deceased, Allah Dad, and a few others had left their village Khanda Kel, by boat for
cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile
downstream, they saw Mohammad Shah, father of Wali Shah (absconder) bathing on the bank of the
river.
• On being told that they were going to collect reeds, he warned them against collecting reeds from land
belonging to him. Ignoring his warning they collected about 16 bundles of reeds, and then started for
the return journey. While the boat was being pulled upstream by means of a rope, Ghulam Quasim
Shah, nephew of Mohammad Hussain Shah (acquitted) who was standing on the bank of the river,
asked Allah Dad to give him the reeds that had been collected from his uncle’s land.
• He refused... Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah
Dad and gave a blow with a small stick, but it was warded off on the rope. Allah Dad then picked up
the lari from the boat and struck Quasim Shah. Quasim Shah then shouted out for help and Wali Shah
and Mahbub Shah came up. They had guns in their hands.
• When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them
and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing
injuries to him. [Lari is a bamboo pole for propelling the boat, about ten feet long and six inches thick.]
 Judgments/Observations
• In the present case, there was no evidence and there were no circumstances from
which it might be inferred that the appellant must have been acting in concert with
Wali Shah in pursuance of a concerted plan when he along with Wali Shah rushed
to the rescue of Ghulam Quasim...
• Evidence falls far short of showing that the appellant and Wali Shah ever entered
into a premeditated concert to bring about the murder of Allah Dad in carrying out
their intention of rescuing Quasim Shah.
• Sir Madhavan Nair - “common intention within the meaning of the section implies a
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. Care must be taken not to confuse same or similar intention
with common intention; the partition which divides 'their bonds' is often very thin;
nevertheless, the distinction is real and substantial and if overlooked will result in
miscarriage of justice”.
 CONCLUDING SECTION 34
• 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
 other leading cases on Section 34

• 1. Kripal Singh v. State of Uttar Pradesh, AIR 1954 SC 706.

-
• 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
• 2. Lallan Rai v. State of Bihar, (2003) 1 SCC 268
• 3. Suresh v. State of U.P, (2001) 3 SCC 673.
 COMMON OBJECT
• Unlawful Assembly - 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.
• First –To overawe by criminal force, or show of criminal force, the Central or any
State Government or Parliament or the Legislature of any State, or any public servant
in the exercise of the lawful power of such public servant; or
• Second-To resist the execution of any law, or any legal process; or
• Third-To commit any mischief or criminal trespass, or other offence; or
• Fourth-By means of criminal force, or show of criminal force, to any person, to take or
obtain possession of any property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal right of which he is in
possession or enjoyment, or to enforce any right or supposed right; or
• Fifth-By means of criminal force, or show of criminal force, to compel any person to d
what he is not legally bound to do, or to omit to do what he is legally entitled to do.
• S. 142 - 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.’
 What is Common Object?

• Gangadhar Behra v. State of Orissa, (2002) 8 SCC 381. 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. 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 to it.
• 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.
• Object and intention are different - where object is common, intention
may differ. - act must be unlawful.
• section 34 - element of participation in action is the leading feature of section 34.
this is replaced by the word membership in section 149 of IPC.
• common object does not require prior meeting of minds before attack and an
unlawful object can develop even after people gathered.
• Essentials are - each having the common object in view and their number is five or
more to achieve the said object.
• Phrase - in prosecution of the common object - “in order to attain common object” -
means that the offence committed was immediately connected with the common
object of the unlawful assembly, of which the accused were members.
• view must be to accomplish common object.
• There must be a nexus between the common object and the offence committed.
• common object may develop on the spot.
• So, If the offence committed by a member of an unlawful assembly 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, all
other members of the unlawful assembly would be guilty of that offence under section
149, IPC, 1860, although they may not have intended to do it or participated in the
actual commission of that offence.
 Difference between Section 34 and 149
1. Section 34 does not by itself create any specific offence, whereas
section 149, IPC, 1860, does so.
2. Some active participation, especially in a crime involving physical
violence is necessary under section 34 but section 149, IPC, 1860, 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 the preparation and commission of the
crime.
3. Section 34 does not fix a minimum number of persons who must share
the common intention, whereas section 149, IPC, 1860, requires that
there must be at least five persons who must have the same common
object.
 LEADING CASE ON CONCEPT OF SECTION 34 AND 149

• Surinder Singh v State of Punjab, (2003) 10 SCC 66 -

• Several persons involved in a criminal adventure may be guilty of different offences

depending upon their respective acts. If the act is done in furtherance of their
common intention, all of them become equally liable for the act.
• Similarly, if they are members of an unlawful assembly, an act done by any one in
prosecution of the common object or any act which the members knew could happen
in such prosecution, every member would be liable for the act.
• If any one of them happens to be wrongly acquitted and no appeal has been filed
against it, it would not ipso facto impede the conviction of others.
• Likewise, the conviction of any one or more them does not automatically result in the
conviction of others.