LAW OF CRIME

Shobhit Kumar Rastogi

(Guest Faculty)
Faculty Of Law
Lucknow University

Email: srshobhit@gmail com

Q-1 Discuss the liability founded on common intention and that founded on common
object under the Indian Penal Code.;
Ans. Section 34- 38 of I.P.C. provides for the 'Principle of Joint Liability. According to section
34, when any criminal act is jointly done by several persons in furtherance of common
intention, then each of such person is liable for that act in the same manners as if it were
done by him alone. This kind of liability is called joint liability and all the persons
participating in the crime are called 'joint offenders'.
➢ Elements of the Liability of Joint Offenders Under Section 34 of I.P.C. (or the Factors
Constituting Joint Liablity):-
1. Criminal Act: For constituting the liability under section 34, any criminal act should
be done, which is punishable by law. The term 'act' includes - 'act' and 'omission' both.
In the criminal act, there must be a 'series of acts', not a single act.
2. Acts done by Several Persons: Section 34 provides for the joint liability, so it is
necessary that the number of accused should be more than one.
3. Common Intention: When any act in done in furtherance of "pre-arranged plan", then
it is said that it was done with common intention. So for common intention , 2 elements
are necessary -
(a) Pre - arranged plan
(b) Prior - meeting of minds, which means the offenders had prior - knowledge of the
plan and they had given their prior - consent.
4. In Furtherance of Common Intention: For the application of section 34, it is
necessary that the criminal act should be done in furtherance of common intention. For
it, pre-arranged plan of the offenders, with their prior-meeting of minds is necessary.
➢ Leading cases: In Barendra Kumar Ghosh V. Emperor (1925) the accused was charged
with the robbery and murder of postmaster. He argued that, at the time of commission of
offence, he was outside the post office and he did not shoot him. But court, rejecting his
arguments, held that - "......they also serve, who only stand and wait. Separate acts by several
persons, if all are done in furtherance of common intention, each person is liable. Since the
act was done in furtherance of common intention, so the accused was liable on the basis of
constructive liability."
In Mehboob Shah V. Emperor (1945), the court distinguishing between the 'common
intention 'and' 'similar intention', said that Section 34 determines the liability on the basis of
common intention. In common intention, pre-arranged plan is necessary, but in similar or same
intention, there is no pre- arranged plan.
Section. 149 (Common Object).
The principle of group liability is provided under section 149 of IPC. According to Sec.
149 - "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 committing of that
offence, is a member of the same assembly, is guilty of that offence."
According to this section if any offence is done in prosecution of the common object by
the member of unlawful assembly or any offence which the members of the assembly knew to be
likely to be committed in prosecution of the common object, then they shall be guilty of that
offence. Thus this section is divided into two parts: (1) an offence committed by a member of an
unlawful assembly in prosecution of the common object of that assembly; and (2) an offence which
the members of that assembly knew to be likely to be committed in prosecution of the common
object. The basis of constructive liability under this section is the membership of unlawful
assembly.
➢ Essential Elements of Sec. 149:
1. Five or More Persons:
For the application of sec. 149, it is necessary that the persons on whom liability is made
under this section, must be the member of unlawful assembly. For unlawful assembly 5 or more
persons are required. The assembly made by less then 5 persons would not constitute an unlawful
assembly. If 5 or more persons are charged under this section and some are acquitted and then the
number of remained persons are less than 5, then they can not be held guilty under section 149.
2. Common Object: The members of unlawful assembly must have gathered with any common
object. For common object it is not necessary that they have already consulted together or made
any plan. There common object, for the purpose of sec. 149, shall be presumed when common
object is known by all the members of unlawful assembly and they would have consented for that.
3. Unlawful Object:
For the application of sec. 149, the unlawful assembly must be existent. Unlawful assembly
is defined under Sec. 141. Only that assembly shall be considered as unlawful which is gathered
with the object enumerated under sec. 141.
4. Offence is Committed:
Sec. 149 applies when any offence is committed by the members of unlawful assembly.
5. In Prosecution of the Common Object:
Sec. 149 makes every person equally liable who commit any offence in prosecution of the
common object. It is not necessary that each and every member of the assembly commit the
offence. Only it is sufficient that the member of unlawful assembly has taken part in the
prosecution of common object.
6. Knowledge of Probability of Commission of offence:
Sec. 149 makes person liable under 2 conditions. First: - If offence is committed in
prosecution of the common object of all members. Second:- If the common object of all the
persons were to perform different act, but the members of the assembly had the knowledge of the
probability of commission of offence, then they shall be held equally liable.

➢ Distinction Between Common Intention and Common Object:-

Common Intention (Sec. 34) Common Object (Sec. 149)
1. The basis of liability under sec. 34 is 1. Liability under sec. 149 is based on common
common intention, which animated the object.
accused persons, i.e. pre-established plan and
prior- meeting of mind is required.
2. Common intention under section 34 is 2. Common object is defined and limited to 5
undefined and unlimited. unlawful objects stated under sec. 141.
3. For the application of sec. 34, the active 3. Mere membership of unlawful assembly at
participation in the common intention and the time of commission of offence would be
commission of offence is necessary. sufficient for application of sec. 149.
4. At least 2 or more persons are necessary. 4. At least 5 or more persons are necessary.
5. Sec. 34 enunciates the principle of joint 5. Sec. 149 declare the principle of group
liability but creates no specific offence. It is liability and creates specific offence.
of interpretative character.