Unit I Law of Crimes

Introduction:

Of all the branches of law, criminal law concerns a man in his day to day life. Many attempts have
been made to define crime, but they have all failed to identify what kinds of acts and omission
amounts to a crime. The changing notion of crime and definition of crime varies from time to time
and from place to place. The definition and concept of crime varies not only according to the
religious attitudes, customs, and traditions but also according to the form of government, political,
economic structure of the society. What constitutes deviance is in turn influenced by the nature of
the society (primitive, traditional or modern), stages of its development (underdeveloped,
developing or developed), and evolution of systems. Crime constitutes a distinct kind of deviation
that is backed by the dominant political power that has far reaching consequences like serious
stigmatization, formal prosecution and punishment etc. The Criminal Law plays a distinctive role
in society and performs various functions like to deter people from doing acts that harm others in
society.

Defining Crime:

It is very difficult to give a correct and exact definition of crime. Glanville Williams pointed out
that crime is one of the thorny intellectual problems of law and it is difficult to have workable
content-based definition of crime. The definition of crime depends on criminal and penal policy
of a state. It varies according to cultures, social values and beliefs and ideology of the ruling of
social-political power.

A Crime is an act of disobedience to such law forbidding or commanding it. But disobedience of
all the laws may not be a crime. For instance, disobedience of civil laws or laws of inheritance or
contracts are not crime. Therefore, it can be said that a crime would mean something more than a
mere disobedience to the law.

According to Stephen “crime means an act which is forbidden by law and revolting to moral
sentiments of the society”. Blackstone defined crime as “an act committed or omitted in violation
of public law forbidding or commanding it”.

According to Glanville Williams “a crime is a legal wrong that can be followed by criminal
proceedings which may result in punishment”.
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Professor Kenny defined crimes in the following terms: “Crime is a harmful human conduct that
sovereign desires to prevent.” Salmond defines crime as “an act deemed by law to be harmful to
society in general even though its immediate victim is an individual”.

John Austin defines crime “a wrong which is pursued by the sovereign or his subordinates is a
crime. “According to Miller, a crime means “the commission or omission of an act which the law
forbids or commands under pain of a punishment to be imposed by the State by a proceeding in its
own name”.

Thus, it is clear that a crime is what the state through an enactment of the legislature has declared
punishable. Thus, there can be no crime if the legislature has not made law in this regard.

The chief concern of the criminal law is to prohibit behavior that represents a serious wrong against
an individual or against some individual or against some fundamental social value institution.
There are some wrongs that are not serious enough any legal liability, such as breaking a promise
to friend without good reason or divulging information given in confidence by a friend and there
are serious enough for civil liability such as breach of contract but not for criminal liability. Under
the broader canvas of criminal liability only such laws must be included which are serious wrongs
and needed be abandoned. It is the values and the culture of particular society which decided what
conduct is regarded as being criminal. Conduct that is contrary to criminal law at one point in time
may not be seen as criminal at another time or in another country.

Criminal Law plays a distinctive role in society including the following functions: to deter people
from doing harm others or society; to set out the conditions under which people who have
performed such acts will be punished, and to provide some guidance on other kind of behaviour
that are seen by society as acceptable. Criminal liability carries the strong implication of ‘ought
not to do’. The Criminal Law is not only concerned with the causing of direct harm to other people:
it also outlaws harm to state, public morals and the environment. It is often said that criminal law
should seek to punish only conduct that causes harm to others. This argument is in the line with
“harm principle” of J.S Mill. Some conduct may be immoral but if does not harm others or only
harms the actor it is seen as unsuitable for punishment under the criminal law. The concept of
crime remains changing- The ideas and the ideal of a society may change and today’s idea of crime
may not necessarily correspond with that of a later stage. Further different society and different
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country can have different ideas about criminality. For instance, polygamy, dowry, untouchability
are now crimes which were not few year ago. Induced abortion was a crime under the Indian Penal
Code until 1971 but now is legal under specified circumstances under Medical Termination of
Pregnancy Act, 1971.

Indian Government has decided to decriminalize Section 309 of Indian Penal Code. Law
Commission in its 210th report on “Humanization and Decriminalization of Attempt to Suicide”
had recommended that Section 309 of IPC needs to be effaced from the statute book. The
Commission had said Section 309 needs to be deleted because the provision is inhuman,
irrespective of whether it is constitutional or unconstitutional. The Supreme Court, de-criminalized
gay sex by upholding the constitutional validity of Section 377.

Essential Elements of Crime/ Elements of criminal liability:

It is relevant to know the basic building blocks or constituent of crime. As a general rule, a criminal
offence consists of both the actus reus (external elements) and mens rea (state of mind). The
cardinal principle of criminal law is contained in the maxim ‘actus non facit reum, nisi mens
sit rea’. It means an act does not make a person guilty of a crime unless the mind is also
guilty. This principle of criminal liability can be traced back to the fairly earlier periods. The
general rule of English law follows that a person will be criminally liable if he has committed a
prohibited act, which is by a certain state of mind. Clearly, there is a difference between an accident
which cause injury and a deliberate act which injures another. The difference may not be in the
act, but in the state of mind of the actor. However, certain crimes do not require any particular
state of mind. These crimes are classified as strict liability offences. Often, in criminal law, a crime
is committed when there is a combination of actus reus and mens rea. The actus reus for each crime
must be established. It is not enough that mens rea for the crime was present, if actus reus was not
committed as well. The main reason for this is that criminal law insists on some expression of
someone’s criminal thoughts through their actions before it will intervene to punish them.
Moreover, there is no criminal liability for possessing a particular state of mind. Mens Rea and
deliberate active act by the accused is essential to constitute offence.

i. Actus-reus element- A willed human action that results in evil consequences

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ii. Mens-rea element- Guilty mind on the part of the wrong doer to indulge in a proscribed
act or omission leading to harmful consequence to an individual or to the society
iii. Concurrence element- requirement of prohibited act being done with the proscribed
guilty mind

The elements of specific crimes are elaborately provided for in the codified law, the Indian Penal
Code, 1860 and other Special and Local Laws relating to crimes. The Penal Code provides for the
exact nature of actus-reus (prohibited act or omission) and mens-rea of each offence as the positive
requirement to establish criminality.

Concept of actus reus relates to an ‘act’ or conduct that leads to a specified harm and may include
a direct conduct such as shooting, stabbing or moving property, as well as indirect conduct such
as instigation, aiding etc. of someone else.

The actus reus contains 3 constituent parts

They are
a) Human conduct
An act is defined as an event subject to the control of the will. Thus an act means
something voluntarily done by a human being. Human action includes acts of
commission as well as acts of omission. An act for the purpose of fixing criminal
liability may be analysed to consist of 3 parts:
a) a wilful movement or omission
b) its circumstances and
c) its consequences
b) Result of conduct ----
If the desired result is not achieved by the conduct of the person he is not
responsible for the intended criminal act which did not materialize. If A fires at B
in order to kill him but the bullet causes only slight injury, A is not liable for murder
as actus reus of the crime for murder is not complete. A may be liable for the offence
of what attempt to murder and for causing simple or grievous hurt.
c) Acts prohibited by law

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Only those acts which are prohibited by law are crimes. When a soldier shoots at
enemies in the battlefield, he does not commit any crime. Here the act is authorised
by law. So the resultant killing is not the actus reus of crime.

As against this mens rea is a wide term of elastic signification and covers a broad range of mental
states and conditions, the existence of which would give a clue to the blameworthiness of the
wrongdoer. Mental element may relate to the act/conduct in question or its harmful consequences.
The word such as intention, knowledge, likelihood, probability, etc. are used to connote the mental
element required for different crimes/offences. Though the traditional theorizations about the
crimes treats mens rea or mental blameworthiness as a cardinal requirement for crime, but law
does accept that in exceptional situations criminal liability may arise even in the exclusion of mens
rea. In such exceptional cases either mens rea is implied or considered superfluous on grounds of
exigency. From the view point of mens rea, wrongs may be classified under:

1. Intentional wrongs- Where the wrongs are committed with highest state of guilty mind

2. Wrong with knowledge or likelihood- Where wrong is done with the medium state of guilty
mind.

3. Wrong is committed with rash or negligence: Where lowest state of guilty mind is involved

1 Intention

Salmond says that “An intention is the purpose or design with which an act is done. This may
consist of an intention to do some further act, an intention to bring about certain consequences or
perhaps merely an intention to do the act itself.” However, intention must not be confused with
motive. Motive corresponds to the ulterior end. A man may steal to feed his starving children. The
motive is to feed his children but the intention remains of stealing the property of another. Criminal
law takes note of intention alone and not motive in order to determine culpability. While motive
has no relevance in criminal law for imputing or limiting culpability, it may be helpful in cases of
circumstantial evidence or at the stage of sentencing (as an aggravating or mitigating factor). Since
intention is a mental state one has to infer it from the act itself and by the surrounding
circumstances.
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2. Knowledge

A man has three faculties – emotion, volition and cognition. And knowledge of a particular thing
is to have a mental cognition of it. A person may not intend a particular thing in the sense of
‘desire’ but there is awareness in the part of the person indicating his mind.

3. Recklessness

A situation may arise where there is neither intention nor knowledge but the actor acted recklessly
in relation to another person. In case of homicide, he was reckless in relation to another’s death.
So, it is a wrongful disregard of a foreseen risk. It is the wrongful assumption of a risk. Glanville
William states “a consequence is intended if it is foreseen as certain, even though not desired.
“Whether an act can be called reckless or not depends on the standard of duty and care imposed
by law. In cases of recklessness the person may not be bothered whether the consequences occur
or not, though he may wish that they don’t. However, it is important to note that “foresight of
consequences is not the same as intention but merely evidence of it”.

4. Negligence

Negligence means absence of such standard of care as was required by law in any particular
circumstance. Devlin J. in Roper’s case held that negligence which is a case of “constructive
knowledge”, where someone unintentionally fails to make enquiries which a reasonable and
prudent man would make, has no place in criminal law. This observation raised the foundational
question of criminalization of negligence i.e., should negligence be punished at all? It may be
important to bear in mind that criminalization of negligence emerges from the compromise
between two conflicting interests: on the one hand, it is the public interest that demands restraint
(even by criminal law) of all those who injure or menace the social well being and on the other
hand, the individual interest that seeks maximum liberty and freedom from interference from the
state sanctions.

MENSRA IN I.P.C-1860-

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The General term mensrea as such does not figure in the IPC in spite of the fact that it remains as
integral and important part of every crime embodied in I.PC.

Indian law being codified uses specific terms indicating a specific type of mensrea required for the
particular offence. Every definition in I.P.C starts with the word such as-intentionally (37) or
knowingly (Section 35), Voluntarily (Section 39), dishonestly (Section 24) or fraudulently(u/s.25),
Malignantly (153 and 270), Wantonly (153), Maliciously (219 and 220),Wrongful gain or
wrongful loss.(sec23),Reason to believe(16) All these words reflecting blame worthy mental
condition of a particular kind of mensrea.

Voluntarily(Section 39) According to Sec. 39, IPC, A person is said to cause an effect voluntarily
when he causes it by means which, at the time of employing those means, he knew or had reason
to believe to be likely to cause it. It means a man is presumed to intend the probable consequences
of his acts. Thus Sec. 39 takes into account not only intention, but also knowledge and reasonable
grounds of belief.

Voluntarily causing an effect holds:

With intention to cause the effect,

With the knowledge of likelihood of causing the effect, and

Having reason to believe that effect is likely to be caused.

If the doer of an act knows or believes that dangerous result will emerge from his act, he will be
said to have acted with the most direct intention to hurt. Knowledge means having mental cognition
of a thing or it is the awareness or expectations of the consequences of an act. The main difference
between knowledge and intention is that in the former the consequence is not desired whereas in
the latter it is desired.

A sets fire by night to an inhabited house in a large town for the purpose of facilitating robbery
and thus causes the death of a person. Here, A may not have intended to cause death, but he knew
that death was a probable consequence.

Dishonestly

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Dishonestly, according to Sec. 24 means, Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another is said to do that thing dishonestly.

According to Sec. 23, a person is said to gain wrongfully when he either retains or acquires
property wrongfully. Similarly, losing wrongfully means that the person is either wrongfully kept
out of any property or is deprived of property. The gain or loss must be material and not remote.

Fraudulently

According to Sec. 25, A person is said to do a thing fraudulently if he does that thing with intent
to defraud but not otherwise.

Statutory offences

MENSREA and STATUTORY OFFENCES

Mensrea is important for every crime defined in the statute even where it is not expressly
mentioned as an ingredient. The necessity for mens rea has been dispensed with in respect of social
or public welfare legislations. All these laws have been enacted for the larger good of the society.
Insisting upon the existence of mens rea to punish persons for violation of these enactments, may
frustrate the purpose of the Act and the objects for which they have been enacted. The IPC deals
with the traditional common law offences that deal with offences against the person, property, state
and public morals. All these offences consist of specific acts of aggression that have been
recognised as crimes per se or mala in se. But these public welfare offences are creations of the
statutes. The purpose of these Act is regulatory. Imposing a penal liability is merely a mode of
enforcing the regulations. Courts have also justified the non-requirement of mens rea on the
grounds that many of these Acts impose only payment of fines as punishment or even if
imprisonment is provided, very rarely do courts award it. Moreover, conviction for committing
these public welfare offences does not attach to itself the same kind of social stigma and damage
to reputation that for example, a conviction under the IPC would attract. It is quite interesting to
note that the concept of strict liability or the liability for the negative consequences of any act,
regardless of fault in criminal law, has grown parallel to the concept of strict liability and vicarious
liability in civil law like under the Motor Vehicles Act 1988, the Workmen's Compensation Act
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1923 etc. It has always been the prerogative of the legislature to make laws, which includes
obviously the power to define what constitutes a crime. It can decide what are the elements of a
particular offence. In doing so, the legislature is well within its power to legislate that in respect
of a particular offence, the existence of mens rea is not an essential requirement

R. v. Prince (1875 LR 2 CCR 154)

Henry Prince loved Annie Philips, an unmarried minor girl. He took away her with an intention to
marry her. The father of the girl reported to the police against Henry Prince alleging that Prince
had illegally taken away his minor girl, below the age of 16 years.

The Police arrested Henry Prince and filed criminal proceedings against him. Henry Prince was
tried for having unlawfully taken away an unmarried girl below the age of 16 years, out of the
lawful possession and against the will of her father/the natural guardian.

The accused contended that he was under the belief that she completed 18 years. He also contended
that the girl herself told him about her age was more than 18 years. The accused also argued that
he had no mens rea (ill intention).

Judgment: Jury found upon evidence that before the defendant took her away the girl had told him
that she was 18. However, Jury held that the accused’s belief about the age of the girl was no
defence.

It was argued that the statute did not insist on the knowledge of the accused that the girl was under
16 as necessary for conviction, and that the Doctrine of Mens Rea, should nevertheless, be applied
and conviction be set aside in the option of criminal intention. 16 Judges tried the case and all but
one unanimously held that Henry Prince was guilty of kidnapping.

State Of Maharastra v.M.H.George 1965.

The accused George was a passenger from Zurich to Manila in a Swiss plane. When the plane
landed at the airport in Mumbai it was found that the accused carried 34 gold bars and had not
declared it. He was prosecuted for violation of FERA. By Sec 8 bringing gold into India without
permission of RBI is banned. If it is in the course of transit to another country it must be declared.
He was convicted. Regarding the defence of lack of mensrea it was held that statute was absolute

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in nature and the purpose is to prevent smuggling. So, the question of mens rea does not arise. S.C.
has held that mensrea is an essential ingredient of every offence.

R. v. Tolson (1889 23 QBD 168)

The accused was tried under Section 57 of the Offences against the Persons Act, 1861 (similar
provision in India is Section 494 of the Indian Penal Code, 1860) for having committed the offence
of bigamy.

Under that Section, it was an offence for a married person to contract a second marriage during
the lifetime of the husband or wife, as the case may be. In this case, Mrs. Tolson married in 1880.

In 1881, Mr. Tolson deserted her and went away. She made all possible enquiries about him and
ultimately came to know that her husband Mr. Tolson died in a ship accident in America.

Therefore, supposing herself to be a widow, she married another man in 1887. The whole story
was known to the second husband and the marriage was not secrecy. In the meantime, Mr. Tolson
suddenly re-appeared and prosecuted Mrs. Tolson for bigamy. In the trial Court, she was convicted
for imprisonment on the ground that a belief in good faith and on reasonable facts about the death
of husband was no defence to the charge of bigamy. She appealed to Court of Appeal.

The question before the Court of Appeal was whether Mrs. Tolson had guilty intention (mens rea)
in committing the offence of bigamy.

Judgment: The Court of Appeal by majority set aside the conviction on the ground that a bona fide
belief about the death of the first husband at the time of second marriage was a good defence in
the offence of bigamy.

It also opined that the statutory limitation for the second marriage of seven years was completed
at the time of her second marriage and she informed the real facts to the second husband. Hence it
acquitted the accused.

R. v. Wheat and Stock (1921) 2 KB 119)

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In this case, the accused/an uneducated man handed over his case to his solicitor for obtaining
divorce from his first wife. He believed that as soon as he handed over his case to his solicitor, he
obtained divorce from his first wife.

Believing it in good faith, he married another lady. The first wife prosecuted him. He pleaded that
he did not know the procedure of law and he believed that he obtained the divorce and with bona
fide intention he married another lady.

The Court did not accept his version and convicted him for the offence for bigamy on the ground
that reasonable belief about the dissolution of marriage would be no defence to the charge of
bigamy, unless the divorce would be obtained from a Court of law.

Principles:

1. Two cases, i.e., Tolson and Wheat cases are quite distinct from each other. In Tolson’s case, it
was a mistake of fact. In Wheat’s case, it was a mistake of law. Mr. Wheat did an act which was
forbidden by law, whereas Mrs. Tolson had no such intention.

2. The Doctrine of Mens Rea was re-surrected and made applicable not only to common-law
offences, but also to all statutory offences.

3. There is a presumption that mens rea or evil intention or knowledge of the wrongfulness of the
act is an essential ingredient in every offence.

RECENT TRENDS TO FIX CRIMINAL LIABLITY IN SOCIO-ECONOMICS OTHER

WITHOUT MENSREA

47TH Report of law on trial and punishment of socio-economic offences of tax evasion,
profiteering, adulteration of food, corruption etc. for effective handling of socio-economic
offences. The commission suggested changes in criminal liability.

Jurisdiction

Personal Jurisdiction

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Section 2 of the Indian Penal Code says that every person irrespective of his/her rank, nationality,
caste or creed shall be liable for an offence committed in India and of which he is found guilty.
Exceptions

The following persons are always exempted from the jurisdiction of Criminal Courts as certain
rights and privileges are conferred on them.

1. Foreign Sovereigns

2. Ambassadors

3. Alien enemies

4. Foreign Army

5. Warships

6. President and Governors.

President and Governors of the Country are exempted from Jurisdiction of Criminal Courts under
Article 361 of the Indian Constitution.

Territorial Jurisdiction

A person shall be liable for an offence committed over/throughout the territory of the State.
Territory includes land and sea comprising of territorial waters.

Admiralty Jurisdiction

Admiralty Jurisdiction is the jurisdiction which confers the power on Courts to try offences which
are committed on high seas.

The principle behind this jurisdiction is the notion that a ship which floats on the high seas is like
a floating island. Admiralty jurisdiction can be exercised in the following cases:

Offences which are committed on Indian ships on high seas.

Offences which are committed on foreign ships within Indian territorial waters.

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In the landmark case of the Republic of Italy through Ambassador v. Union of India, In Enrica
Lexie Case, an Italian ship named Enrica Lexie while passing off the coast of Kerala fired at a
fishing boat registered in India, thereof. The firing resulted in the on-spot death of 2 fishermen.
Against the Italian mariners, an FIR was filed and the Italian ship marines were arrested. In
response of which the Italian mariners filed a writ petition before the Kerala High Court
challenging that the FIR is not maintainable since the incident took place at a place which was
20.5 nautical miles from the coast of India. The court quashed the writ and held that Section 2 of
the IPC conferred the Kerala Police jurisdiction over such cases. Later, the Supreme Court held
that subject to the provisions of Article 100 of The United Nations Convention on the Law of the
Sea, 1982 the Union of India was entitled to prosecute the accused. Article 100 of The United
Nations Convention on the Law of the Sea 1982 that such cases are outside the jurisdiction of
provides that such cases are outside the jurisdiction of the State Governments and can be conducted
only at the Federal/Central Government level. Therefore, the court directed the Central
Government to set up a Special Court to try such cases and the State of Kerala had no jurisdiction
in the matter.

Stages in the Commission of Crime:

Generally, a crime is said to be committed after passing through four successive stages:

Intention

Preparation

Attempt

Commission

The first stage is where an individual forms an intention before indulging in the actus reus leading
to the commission of the crime. Intention per se is not punishable. The second stage is one where
an individual initiates the commission of an offence by arranging means and methods necessary
for the commission of the offence. For instance, purchasing a knife for committing murder, or guns
to be used for a robbery qualify as Preparation. As a general rule, culpability is not attached to the

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stage of preparation. But this general rule is subject to exceptions in case of grave offences or
offences having the potential to destroy public order/peace at a greater level. Under the Indian
Penal Code, Preparation is punishable in exceptional situations only, such as preparation to wage
war against state, preparation to commit terrorism, preparation to commit dacoity, predation to
commit offences of counterfeiting of currencies, etc. While the first two stages are not penalised
in criminal law, the third and fourth stages invite liability. The third stage, i.e., Attempt precedes
the fourth and final stage, i.e. Commission. . There are three essentials of an attempt: -

· Guilty intention to commit an offence;

· Some act done towards the commission of the offence;

· The act must fall short of the completed offence.

Attempt Under the Indian Penal Code, 1860- The Indian Penal Code has dealt with attempt in the
following four different ways-

· Completed offences and attempts have been dealt with in the same section and same punishment
is prescribed for both. Such provisions are contained in Sections

121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241,
251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.

· Secondly, attempts to commit offences and commission of specific offences have been dealt with
separately and separate punishments have been provided for attempt to commit such offences from
those of the offences committed. Examples are- murder is punished under section 302 and attempt
to murder under section 307; culpable homicide is punished under section 304 and attempt to
commit culpable homicide under section 308; Robbery is punished under section 392 and attempt
to commit robbery under section 393.

· all other cases [where no specific provisions regarding attempt are made] are covered under
section 511 which provides that the accused shall be punished with one-half of the longest term of
imprisonment provided for the offence or with prescribed fine or with both.

The Indian Penal Code does not provide a general definition of attempt although under section
511, it talks about punishment for attempt.
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Joint Liability

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.

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.
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Common intention denotes meeting of mind of the persons accused of an offence. This requires
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
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 spear blade which struck the victim in 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.

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 few others were trying to collect reeds from the
bank of Indus river. They were warned by Mahboob Shah against collecting reed from lands

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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 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 persons 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 prearranged
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.

An essential ingredient of liability under s. 34 is participation of the accused in the commission of

the crime. In Barendra Kumar Ghosh v. Emperor four men attacked the office of the post master
while he was counting money. Three of them entered the office and demanded the money.
Thereafter they opened fire at 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.

Once it is established that a crime has been committed in furtherance of common intention of all
the accused, it is irrelevant what was the nature of participation of 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 blow at different parts of the body. One gave blow on the right side of the head of

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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 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 and Common Intention: Distinction and Differences

DEFINITION

Under Section 34 of the IPC, the common intention is present which states that several people
commit any crime with the furtherance of shared intention to do that crime. Each of the people is
liable as of the crime is committed by him also.

Under Section 149 common object is present which states that five or more persons present in an
unlawful assembly commit an offence. Even if the person has not done the offence himself, but of
that time he is a part of that unlawful assembly he would be liable for the offence so committed.

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MEMBER

The number of persons present must be more than one.

The number of members must be 5 or more.

MEETING OF MINDS

Prior meeting of the mind is necessary

Exception- Kripal Singh vs the State of UP.

The common object could be formed on the spot also.

LIABILITY

All the persons involved are liable equally. Hence active participation is not necessary.

All the persons involved may not be liable equally. Active participation is necessary.

Offence

Does not specify any offence but states a rule of law.

It describes a specific offence.

Effect of Omission to Charge Accused When Charge Using Section 149 Fails

There is a substantial difference between Section 34 and Section 149, of this Act, however, still,
they overlap to some extent, and this overlapping is to be determined on a case to case basis, as it
varies according to the facts.

If the common object which is material to the charge under Section 149 does not necessarily
involve a common intention, then the substitution of Section 34 for Section 149 might be
detrimental to the interest of the convict and hence should not be allowed. However, if the facts to
be proved and the evidence to be adduced with reference to the charge under Section 149 would
be the same if the charge were under Section 34, then the failure to charge the accused under
Section 34 could not result in prejudice to the interest of the party and in such cases, the substitution

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of Section 34 for Section 149 must be held to be a formal matter. (Karnail Singh and another, vs.
The State of Punjab).

For section 149 to be applicable, the presence of five or more people is necessary, but if the
assembly of five or more people could not be ascertained, then in that case, joint liability could be
imposed under section 34. Under this section, the act should be done in furtherance of the common
“intention”. Moreover, if no joint liability could be established then each person could be held
liable in his individual capacity.

Hence even if the charge fails under Section 149, still other provisions could be applied to ascertain
the liability of the accused.

Test for Common Object

To test whether the unlawful assembly had a common object or not, it is not necessary for the
parties to have actually met and conspired, but such intention could be inferred from the facts and
circumstances of the case. A combined attack by all the five members of an unlawful assembly is
enough to prove the common intention.

To show a common object, circumstances of the case, the attitude of the person involved furnish
the key to their mental bent. Any person who encourages or takes part in such activities either by
signs or gestures, or even wear a badge or sign is said to be a member of that unlawful assembly
and is sufficient to gauge that he has a shared object for the offence so committed. On the other
hand, a mere presence without any sort of encouragement is not the proof of criminality.

To test the common object at the starting, it wouldn’t be legitimate, to take into account the actual
act committed by the person at a later stage, and to infer that such activities were part of the
common object of the entire assembly.

Moreover, once all the ingredients of Section 141 are met, it won’t be enough for the person to put
forward the argument that he did nothing with his own hands. The person would still be liable for
punishment.

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According to Section 34, when a criminal act is done by several persons in furtherance of 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.

Vicarious Liability

The doctrine of vicarious liability is a means by which the attributes blame for the acts of another.
Vicarious liability is the general rule in the law of tort where an employer can be held liable for all
acts of his employee done in the course of his employment. In criminal law also the doctrine of
vicarious liability is applied. Respondent Superior establishes the notion of vicarious liability
where a master is responsible for the illegal conduct of his servant.

Section 154 and 155 deals with the liability of an owner or occupier of land on which an unlawful
assembly is held or on which a riot takes place. It says that the owner or occupier of a land upon
which a riot is committed, and any person who has or who claims to have an interest in such land,
shall be punishable with fine up to one thousand rupees, if he or his agent or manager, has
knowledge that either such offence is being committed or has been committed, or has reason to
believe that it is likely to be committed, and does not notify at the earliest opportunity thereof in
his or their power to the principal officer at the nearest police station, and in case of his or their
knowledge that the offence is likely to be committed, use all lawful means to prevent the same,
and in the event of its happening, do not use all lawful means to disperse or suppress the riot or
the unlawful assembly.

The three important aspects about this offence which must be kept in mind are an omission to give
notice of an unlawful assembly or a riot, abstention from preventing it and negligence in dispersing
or suppressing it. The expression ‘any person having or claiming an interest in such land’ has been
held to apply to tenants, mortgagees, and reversioners.

There is a certain similarity between sections 154, 155 and 156, and they should, therefore, be read
together. This section illustrates the point that sometimes the law gives certain duties of the police
to landholders. The provision is a principle of vicarious liability.

Corporate Liability:

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Corporations have a separate legal entity. They are treated in law as having a legal personality
distinct from the natural persons – members, directors, employees etc. - who make the corporation.
Due to this, liability is imposed on the corporation separately from any criminal liability which
may be imposed on the individual members for any wrongdoing. Companies should be subject to
criminal liability for offences that occur in the course of their business operation for which they
bear responsibility. A corporation may be convicted in a criminal court for acts that violate the
penal law of the jurisdiction in which it is tried. The crimes that a corporation may commit include
murder as well as offenses of omission, such as the failure to install safety precautions in a factory.
A corporation presumably cannot be convicted for rape, and it cannot be imprisoned. A corporation
may be criminally liable for crimes which involve a specific element of intent as well for those
which do not, and, although some crimes require such a personal, malicious intent, that a
corporation is considered incapable of committing them, nevertheless, under the proper
circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the
requisites of such imputation being essentially the same as those required to impute malice to
corporations in civil actions. The current legal rules regarding corporate criminal liability came
into being after earlier debate about the propriety of criminally punishing a corporate entity. A
major argument was that a corporation lacked the required mens rea that is usually essential for a
determination of criminal guilt. Under the current penal structure, for an offence by the
corporation, both the corporation and its officer can be made liable. However, the law on corporate
criminal liability is not limited to the general criminal law in the Indian Penal Code but it is
scattered over a number of statutes with specific provisions for the same. With regard to corporate
criminal liability, the Supreme Court has observed that there is a need for proper law relating to it
in India. In India, several statutes impose vicarious responsibility (for strict liability offences) on
officers who are in charge of and responsible to the company for the management of its affairs.

A corporation may be criminally liable for crimes which involve a specific element of intent as
well for those which do not, and, although some crimes require such a personal, malicious intent,
that a corporation is considered incapable of committing them, nevertheless, under the proper
circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the
requisites of such imputation being essentially the same as those required to impute malice to
corporations in civil actions.
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So far as India is concerned, the legal position has been clearly stated by the Constitution Bench
judgment of this Court in the case of Standard Chartered Bank v. Directorate of Enforcement.
On a detailed consideration of the entire body of case laws in this country as well as other
jurisdictions, it has been observed as follows:

“There is no dispute that a company is liable to be prosecuted and punished for criminal offences.
Although there are earlier authorities to the effect that corporations cannot commit a crime, the
generally accepted modern rule is that except for such crimes as a corporation is held incapable of
committing by reason of the fact that they involve personal malicious intent, a corporation may be
subject to indictment or other criminal process, although the criminal act is committed through its
agents.” In Anil Gupta v. Star India Pvt. Ltd., where the matter was related to dishonour of
cheques under sections 138 and 141 of the Negotiable Instruments Act, 1881, the Supreme Court
observed that arraigning of a company as an accused is imperative.

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