ACKNOWLEDGEMENT

We extend my sincere gratitude to God who gave me strength to complete my project work
well in time. Then, we would like to thank my parents who got me admitted to this
prestigious institution and be a part of that.

Then, we would like to thank my subject teachers, Dr. Pushpinder Kaur, Dr. Shruti Bedi, Dr.
Ajay Ranga and Ms. Nancy for taking up this subject in such a vivid and enthusiastic way and
for taking up the topics in the class in a very systematic and detailed approach. So much as to
the fact that when it came to the project work of same, the idea was already preconceived in
mind as to how to go about the topic.

We also like to thank the UILS Library and staff for providing the various reference books
that came as a great source of research.

Thank you.

SWATI BANSAL

1827

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TABLE OF CONTENTS

THE CONCEPT OF VICARIOUS LIABILITY ....................................................................... 4

JOINT CRIMINAL LIABILITY: AN OVERVIEW ................................................................. 6
Definition of Liability ............................................................................................................ 6
Joint Criminal Liability .......................................................................................................... 6
Section 34 ............................................................................................................................... 7
Ingredients of Section 34........................................................................................................ 9
Guiding Principle of Common Intention .............................................................................. 10
Common Intention should be Prior to the Occurrence ......................................................... 12
Section 35 ............................................................................................................................. 13
Section 149 ........................................................................................................................... 14
COMMON INTENTION DISTINCT FROM COMMON OBJECT ...................................... 16
(Difference between Section 34 and Section 149) ............................................................... 16
LATEST CASE LAW ............................................................................................................. 20
BIBLIOGRAPHY .................................................................................................................... 22

2|Page
TABLE OF CASES

a) Adam Ali Taluqdar AIR 1927 Cal. 324………………………………………………14

b) Balbir Singh vs. State of Punjab AIR 1995 SC 1956………………………………...13

c) Girija Shankar vs. State of Uttar Pradesh (AIR 2004 SC 1308)…………………….17

d) Joseph vs. State represented by Inspector of Police & Anr………………………….21.

e) Kantiah Ramayya Munipally vs. State of Bombay AIR 1955 SC 287………………13
f) Mahboob Shah vs. Emperor AIR 1945 PC 118……………………………………...10
g) Mizaji vs. State of Uttar Pradesh AIR 1959 SC 572………………………………...14
h) Pandurang vs. State of Hyderabad AIR 1955 SC 331………………………………12

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THE CONCEPT OF VICARIOUS LIABILITY

The law of tort has been used for many centuries to protect personal interests such as
property, reputation, body etc. It ensures justice is done by looking into the claimant's need
for compensation, which is paid by the defendant who has committed a breach of duty. The
general rule in tort law is that liability is personal, i.e., liability is generally linked to a breach
of one’s own duty and a person is liable for the wrongs committed by him only. However, in
certain scenarios, the law makes one person being liable for the harm caused by another,
because of some legally relevant relationship between the two. This is known as the doctrine
of Vicarious Liability.

The word 'vicarious' is derived from the Latin word for 'change' or ‘alteration’. Vicarious
Liability is an aberration from the norm of holding the tortfeasor liable for damage caused by
their own tortuous liability. It is also referred to as imputed negligence. Legal relationships
that can lead to imputed negligence include the relationship between parent and child,
husband and wife, owner of a vehicle and driver, and employer and employee etc. The
persons who are held vicariously liable need not be personally connected to the tort or be in
anyway responsible. Thus Vicarious Liability is a form of strict liability.

Many reasons have been advanced to justify this departure from the fault principle. It is
commonly said that the reasons behind the doctrine of Vicarious Liability are first, that the
employer is in a better position to absorb the legal costs either by purchasing insurance or
increasing his prices. Secondly, that the imposition of liability should encourage the employer
to ensure the highest possible safety standards in running his business. The Latin maxim ‘qui
facit per alium facit per se’ that means he who acts through another shall deemed to have
acted on his own and ‘respondeat superior’ (“let the master answer”) is commonly used in
employer employee relationships.

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Notwithstanding these exceptions, it is now generally regarded as a compelling principle of
justice that a man should not be penalised for the wrong of another. The principle of
Vicarious Liability, which plays an important part in torts and civil law generally, should not
be extended to criminal law. But to this rule of non-liability, two exceptions have been
recognised in English common law:
1. A master is vicariously liable for libel published by his servant. However, it is open to
a master-proprietor to show in defence that the libel was published without his
authority and with no lack of care on his part.
2. A master is vicariously responsible for a public nuisance committed by his servant 1. It
would very often be difficult to check effectively acts of public nuisance by menial
servants, unless their masters are made responsible.

Under Indian Penal Code, 1860, Vicarious Liability is incorporated under section(s) 34, 35,
36, 37, 114, 141, 146, 149 and under many other sections. It generally means when the ‘actus
reus’ and the resultant consequences thereof are attributed to another person and he is made
to answer for those consequences.

1
A public nuisance is an act which causes obstruction, inconvenience or damage to the public. In the case of a
private nuisance, a master will be held civilly liable and the same principle is applied to public nuisance also.

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JOINT CRIMINAL LIABILITY: AN OVERVIEW

Definition of Liability

Liability means legal responsibility for one's acts or omissions. Failure of a person or entity
to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a
court order to perform (as in a breach of contract or violation of statute). In order to win a
lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the
plaintiff's allegations are shown to be true. This requires evidence of the duty to act, the
failure to fulfil that duty, and the connection (proximate cause) of that failure to some injury
or harm to the plaintiff. Liability also applies to alleged criminal acts in which the defendant
may be responsible for his/her acts which constitute a crime, thus making him/her subject to
conviction and punishment.

Example: Jack Jumpstart runs a stop sign in his car and hits Sarah Stepforth as she is crossing
in the cross-walk. Jack has a duty of care to Sarah (and the public) which he breaches by his
negligence, and therefore has liability for Sarah's injuries, and gives her the right to bring a
lawsuit against him. However, Jack's father owns the automobile and he, too, may have
liability to Sarah based on a statute which makes a car owner liable for any damages caused
by the vehicle he owns. The father's responsibility is based on "statutory liability" even
though he personally breached no duty. A signer of promissory note has liability for money
due if it is not paid, and so would a co-signer who guarantees it. A contractor who has agreed
to complete a building has liability to the owner if he fails to complete on time.

Joint Criminal Liability

Joint Criminal Liability or Joint Criminal Enterprise (hereinafter referred to as JCE) is an

important concept in international criminal law. The development of JCE has been
controversial from the beginning, and many scholars have called for limited and cautious
application of a principle that could lead to “guilt by association.” Indeed, one scholar argues
that the JCE doctrine has the potential “to stretch criminal liability to a point where the
legitimacy of international criminal law will be threatened.”

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Before stepping in deep, it is important to understand the basics of JCE liability. A “Joint
Criminal Enterprise” is not an element of a crime. Rather, Joint Criminal Enterprise is a
mode of liability whereby members are attributed with criminal culpability for crimes
committed in furtherance of a common purpose, or crimes that are a foreseeable result of
undertaking a common purpose.

There are several provisions in the Indian Penal Code which determine the liability of a
person committing a crime in combination of some others. In these cases, the persons
committing it either have common intention or common object.

In IPC, the criminal liability is determined by the in which the person is associated with the
crime. There are several ways in which a person becomes a participant in a crime-

1. He himself commits it.

2. He shares in the commission of the crime.

3. When he sets a third party to commit the crime.

4. Helps the offender, in screening him from Law.

The second point is what joint liability is.

Basically, sections 34-38 and 149 of IPC deals with situations where Joint Criminal Liability
is formed but to understand Joint Criminal Liability, sections 34 and 149 are important to be
understood.

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.”

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Section 34 has been enacted on principle of joint liability in the doing of a criminal act; the
section is only a rule of evidence and does not create a substantive offence. The distinctive
feature of the section is the element of participation in action2. The liability of one person for
an offence committed by another in the course of criminal act perpetrated by several persons
arises under Section 34 if such criminal act is done in furtherance of a common intention of
the person who join in committing the crime. Direct proof of common intension is seldom
available and, therefore, such intention can only be inferred from the circumstances appearing
from the proved facts of the case and the proved circumstances. In order to bring home the
charge of common intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of minds of all the accused persons to commit
the offence for which they are charged with the aid of Section 34, be its pre-arranged or on
the spur of the moment; but it must necessarily be before the commission of the crime. The
true concept of the section is that if two or more persons intentionally do an act jointly, the
position in law is just the same as if each of them has done it individually by himself.

The section does not say “the common intentions of all” nor does it say “an intention
common to all”. Under the provisions of Section 34 the essence of the liability is to found in
the existence of a common intention animating the accused leading to the doing of a criminal
act in furtherance of such intention. As a result of the application of principles enunciated in
Section 34, when an accused is convicted under Section 302 read with Section 34, in law it
means that the accused is liable for the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision is intended to meet a case in which it
may be difficult to distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was taken by each of
them.
Persons acting in furtherance to common intention to commit a crime would all be liable to
the whole crime, even if they were not present at the scene of crime or did not participate in
the commission of the crime, the Supreme Court has stated that -
"even the doing of separate, similar or diverse acts by several persons, so long as they are
done in furtherance of a common intention, render each of such persons liable for the result
of them all, as if he had done them by himself.....", a bench of Justice M.B. Shah and Justice
Doraiswamy Raju said.

2
Sewa Ram vs. State of Uttar Pradesh, 2008 I Cri. LJ 802 (S. C.)

8|Page
Common intention implies a pre arranged plan, which means prior meeting up of minds.
Common intent comes into light before the commission of the crime. Merely seeing two
accused at the same spot does not account to the common intention, but it is necessary to
prove the meeting up of minds prior to the actual commission of crime.

Ingredients of Section 34
There are three main ingredients of this section:
1. A criminal act must be done by several persons.
2. The criminal act must be done to further the common intention of all, and
3. There must be participation of all persons in furthering the common intention3.

Criminal act done by several persons- The term ‘act’ in the section refers to a series of acts
as a single act, so also the coverage of the provision is attracted only when there are more
than one person involved in committing the criminal act. This is based on the common sense
principle that when several persons are alleged to have committed a criminal act, then there is
every possibility that different members would have actively given encouragement, help,
protection and support, as also actively participated or otherwise engaged in the commission
of the criminal act itself. Thus, even though a particular act may have been committed by an
individual, where common intention exists, and they had all acted in furtherance of that
common intention, then all of them are held liable for that offence.

Act done in furtherance of common intention of all- The essence of joint liability under
section 34 lies in the existence of a common intention to do a criminal act in furtherance of
the common objective of all the members of the group. The word ‘common intention’ implies
a prior concert, that is, a prior meeting of minds and participation of all the members of the
group in the execution of that plan4. The acts done by each of the participants may differ and
may vary in character, but they must be actuated by the same common intention. In the
absence of common intention the criminal liability of the members of the group might differ
according to the degree and mode of the individual’s participation in the act. The plan to
execute a crime need not be elaborate, nor is a particular interval of time required for the

3
Girija Shankar vs. State of Uttar Pradesh, AIR 2004 SC 1308.
4
Pandurang Tukia and Bhilia vs. State of Hyderabad, AIR 1955 SC 331.

9|Page
purpose. The scheme may be chalked out suddenly, but all the members must consent to it. In
other words, there must be a prior concert among the members of the group in regard to the
design in question, so that each of them is aware of the act to be committed.

Guiding Principle of Common Intention

The principle of common intention came to be enunciated in what has come to be known as
the ‘Indus River Case’ or the case of Mahboob Shah vs. Emperor5.

In this case, the deceased Allah Dad and few others were going in a native boat down the
river Indus to cut and collect reeds growing on the bank of the river. A mile from the place
where they started, they were warned by Mohammad Shah, father of Wali Shah (who
absconded and never apprehended), not to cut reeds from the land belonging to him.
However, when they continued to cut and load reeds into their boat, they were accosted by
Quasim Shah, nephew of Mohammad Shah, who tried to remove the reeds from them and
prevent them from moving. When he pushed Allah Dad, the latter struck him with a thick
bamboo pole used for rowing and steering the boat. This made Quasim Shah cry out for help.
Hearing this, Wali Shah and Mahboob Shah appeared on the scene carrying loaded guns. On
seeing them, Allah Dad and his friend Hamidullah tried to escape by fleeing from the place.
They were prevented from running by Wali Shah and Mahboob Shah who stood in front of
them obstructing their path. Wali Shah shot at Allah Dad killing him instantaneously.
Mahboob Shah fired at Hamidullah causing him slight injuries. Wali Shah was never caught
thereafter.

The trial court sentenced Mahboob Shah to seven years’ rigorous imprisonment for
attempting to commit murder. The Lahore High Court, however, convicted him also for
murder under Section 302 read with Section 34, IPC, and sentenced him to death. Mahboob
Shah went on appeal to the Privy Council against the conviction for murder and the death
sentence awarded to him.

Very interestingly, the Privy Council set aside his conviction for murder and allowed
Mahboob Shah’s appeal on the ground that there was no evidence to prove that there was a
common intention between Mahboob Shah and absconding Wali Shah.
5
AIR 1945 PC 118.

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The following principles were laid down by the Privy Council:

1. Under Section 34 of IPC, essence of liability is to be found in the existence of a

common intention, animating the accused, leading to doing of a criminal act in
furtherance of such intention.

2. To invoke the aid of Section 34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in furtherance of the
common intention; if it is so then liability for the crime may be imposed on any one of
the persons in the same manner as if the acts were done by him alone.

3. Common intention within the meaning of Section 34 implies a prearranged plan, and
to convict the accused of an offence applying the section it should be proved that the
criminal acts were done pursuant to the prearranged plan.

4. It is difficult, if not impossible to procure direct evidence to prove the intention of an

individual, in most cases it has to be inferred from his act or conduct or other relevant
circumstances of the case.

5. Care must be taken not to confuse same or similar intention with common intention;
the partition which divides “their bounds” is often very thin; nevertheless, the
distinction is real and substantial and if overlooked will result in miscarriage of
justice.

6. The inference of common intention within the meaning of the term under section 34
should never be reached unless it is a necessary inference deductable from the
circumstances of the case.

Concluding that at best the evidence showed that there was only a common intention to
protect Quasim Shah when Mahboob Shah and Wali Shah heard his shouts for help and
appeared at the site carrying their guns. They were probably ready to use the same to defend
Quasim Shah. In this context, Mahboob Shah accosted, held, and shot at Hamidullah,

11 | P a g e
whereas Wali Shah confronted Allah Dad and shot at him, killing him intantly. The judges of
the Privy Council, however, concluded that there was no evidence to show that they shared a
common intention to commit the criminal act that resulted in Allah Dad’s death.

Common Intention should be Prior to the Occurrence

In Pandurang vs. State of Hyderabad6, the Hon’ble Supreme Court observed that’ it is well
established that a common intention presupposes prior concert. It requires pre-arranged plan
because before a person can be vicariously convicted for the criminal act of another, the act
must have been done in furtherance of the common intention of them all. The inference of
common intention should never be reached unless it is a necessary inference deducible from
the circumstance of the case. The incriminating facts must be incompatible with the
innocence of the accused and incapable of explanation on any other reasonable hypothesis.

Intention on the Spot

In certain cases, an intention can be formed on the spot. It is not always necessary that all the
accused have meditated the crime, well in advance. In cases, the intention can be formed on
the spot. In a fight, all the accused may at a point decide to take out their revolvers and shoot
the people of the other party, in order to kill them. Here the decision of killing the people of
the other party was taken on the spot.

‘Common’ intention is different from ‘same’ or ‘similar’ intention. The partition that divides
same or similar intention and common intention is often very thin, but nevertheless the
distinction is very real and substantial. To constitute common intention it is necessary that the
intention of each person be known to all the others and be shared by them, whereas this is not
so in the case of same or similar intention.

Joint Liability in context of Free Fight

The issue of liability of different members of a group of people divided into mutually
antagonistic or hostile groups, especially when there is a free fight between them, is one of
the most difficult aspects of joint liability.

6
AIR 1955 SC 331.

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In Balbir Singh vs. State of Punjab7, a similar question was raised, wherein four persons each
belonging to two different groups attacked each other and in the result, one person died. Both,
the trial court and the High Court had held that there was a free fight and every assailant was
accountable for his own acts committed. However, the Supreme Court held that, in a free
fight, there was a movement of body of the victims and assailants and in such a situation it
will be difficult to specifically ascribe to one accused the intention to cause injuries sufficient
to cause death.

Participation of all in Furthering the Common Intention-

Participation is a necessary element or condition precedent to finding of joint liability. The
Supreme Court in the case of Kantiah Ramayya Munipally vs. State of Bombay8 observed
that, it is the essence of Section 34 that the person must be physically present at the actual
commission of crime. He need not be present on the actual spot. He can, for instance, stand
outside to warn his companions about any approach of danger.

Section 35
Section 35 of the IPC is in furtherance of the preceding section 34. It reads that

When such an act is criminal by reason of its being done with a criminal knowledge or
intention-
Whenever an act, which is criminal only by reason of its being done with a criminal
knowledge or intention, is done by several persons, each of such persons who joins in the act
with such knowledge or intention is liable for the act in the same manner as if the act were
done by him alone with that knowledge or intention.

If several persons, having the same criminal intention or knowledge jointly murder, each one
would be liable for the offence as if he had done the act alone; but if several persons join in
the act, each with different intention or knowledge from the others, each is liable according to
his own intention or knowledge.

7
AIR 1995 SC 1956.
8
AIR 1955 SC 287.

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Reference can be made to the case of Adam Ali Taluqdar9, where A and B beat C who died.
A had an intention to murder C, and knew that his act would cause his death. B on the other
hand intended to cause grievous hurt and did not know that his act will cause C’s death.
Hence, A was held guilty for murder whereas B was charged with grievous hurt.

Section 149
Every member of unlawful assembly guilty of offence committed in prosecution of
common object-
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 or 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.

Essential Elements
To invoke section 149 IPC, the following ingredients must be present-
1. There must be an unlawful assembly10. There must be at least five people in such an
assembly.

2. There must be some common object of such an unlawful assembly. Here the word
“common” must be distinguished from “similar”; it means “common to all and known
to the rest of them and also shared by them”.

3. There must be a commission of offence by anyone or more members of such unlawful

assembly.

4. The commission of such offence must be in prosecution of the common object shared
by all and each of the members of such unlawful assembly.

5. The offence committed in prosecution of a common object must be such that each one
of the members of such unlawful assembly knew was likely to be committed.

9
AIR 1927 Cal. 324.
10
Section 141 of Indian Penal Code, 1860.

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In Mizaji vs. State of Uttar Pradesh11, it was held that section 149 IPC has two parts. The
liability of a member of an unlawful assembly may arise for an offence committed by any
member of the assembly in two ways. The first is where the other members commit an
offence, which was in fact the common object of the assembly. The second is where the
common object to commit an offence was different from the offence, which was actually
committed.

For example, the accused X, Y, Z, J and K were alleged to have entered into A’s house in
order forcible possession of the house. With the lathis they were carrying, grave injuries were
inflicted on A’s limb and he was dragged out of the house to some distance where either J or
K shot him with a hidden pistol.

In such a case, the member not actually committing the offence will be liable for that offence
only if he knew that such offence was likely to be committed in the course of prosecution of
the common object to commit the offence originally thought of. The expression “know” does
not mean a mere possibility, such as might or might not happen, it imports a higher degree of
probability. Further, it indicates a state of mind at the time of commission of the offence and
not the knowledge acquired in the light of subsequent events.

Under section 149, the liability of the other members for the offence committed during the
occurrence rests upon the fact whether the other members knew beforehand that the offence
actually committed was likely to be committed in prosecution of the common object. Such
knowledge may be reasonably collected from the nature of the assembly, arms or behaviour
at or before the scene of action12.

11
AIR 1959 SC 572.
12
Gajanand vs. State of Uttar Pradesh AIR 1954 SC 695.

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COMMON INTENTION13 DISTINCT FROM COMMON
OBJECT14
(Difference between Section 34 and Section 149)

Both Section 34 and 149, IPC, deal with issues of constructive liability. In other words, a
situation when criminal liability attaches to persons for acts not necessarily done by them.
There are, however, differences in the scope and nature of operation of the two offences. The
difference comes crucial when a charge under Section 149, IPC, is sought to be substituted at
a later stage for a charge under Section 34 of the IPC, especially when some accused are
acquitted and the number of accused falls below five. In such contexts, the courts would have
to carefully examine the evidence to see whether some element of common intention exists
which makes the accused persons criminally liable.

1. Section 34 only lays down a principle of joint criminal liability and does not create a
separate offence15 whereas Section 149 creates a specific offence. Thus, membership
in an unlawful assembly itself is specifically made liable to punishment. While
Section 34 creates joint criminal liability, in which if individuals share a common
intention and do acts furthering the same, then all of them are held liable for all acts
committed. On the other hand, Section 149 creates ‘constructive criminal liability’ for
acts done in prosecution of the common object of the assembly, provided the essential
conditions for being an unlawful assembly are fulfilled.

2. ‘Common intention’ in Section 34 is undefined and therefore unlimited in its

operation, while ‘common object’ in Section 149 cannot go beyond the five objects
specifically indicated in Section 141 of the IPC16.

3. The crucial difference between common intention and common object is that while
common intention requires prior meeting of mind and unity of intention, common
object may be formed without these ingredients17.

13
Section 34, Indian Penal Code, 1860.
14
Ibid, Section 149.
15
Dhansai vs. State of Orissa AIR 1969 Ori 105.
16
Dani Singh and Ors. vs. State of Bihar 2004 CrLJ 3328 (SC).

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 4. While in Section 34, the crucial factor is that of ‘participation’ in Section 149,
membership of the unlawful assembly is a sufficient precondition. Thus, in Section
149 there is no need for active participation or contribution for attaining the common
intention18.

5. For invoking Section 34, it is sufficient if there are more than two persons involved;
however, in Section 149, there have to be a minimum of five persons and more to
attract coverage of the provision.

6. For offence under Section 34, some overt act, however small, is a pre-requisite for
being made liable. However, in Section 149, the mere fact of being an unlawful
assembly itself is sufficient to fix liability.

Girija Shankar vs. State of Uttar Pradesh

(AIR 2004 SC 1308)

In this case Girija Shankar along with three other persons were charge sheeted, tried and
convicted for commission of offences under Section 302 and 307 read with Section 34 and
394 of IPC by the trial court. Their appeal before the Hon’ble High Court met with the fate of
dismissal. During the pendency of the appeal two persons namely, Iqbal Shankar and Junglee
died and the appeal stood abated. Girija Shankar preferred the appeal and questioned the
legality of his conviction under Section 302 read with Section 34, and Section 307 read with
34.

According to the prosecution version, Arun Singh, H.P. Tiwari (PWs) and the deceased
decided to stay in village Bhawalia when they were on the way to their village after seeing a
village fair at Bhuvreshwar as they wanted to purchase ‘beedi’. It had become dark and was
raining. They decided to stay at the house of Raj Bahadur Singh whom H.P. Tiwari claimed
to know.

In the meantime, the accused persons saw them and thought them as criminals. They shouted
at them being notorious and should be beaten. The (PWs) however, resisted their allegations

17
Chittarmal with Moti vs. State of Rajasthan AIR 2003 SC 796.
18
Jaswant Singh vs. State of Haryana AIR 2000 SC 1833.

17 | P a g e
and disclosed their purpose of staying in the village. They were proceeding towards Raj
Bahadur Singh’s house when they were attacked upon. Suddenly one of the accused Devi
Shankar fired two shots, one of which hit the deceased and the other hit H.P. Tiwari. It was
also alleged that the gold ring and watch of deceased were removed by Junglee and H.P.
Tiwari’s gun was snatched by Devi Shankar.

To prove the prosecution case seven witnesses were examined and the Trial Court observed
that there was no direct evidence showing pre-concert or meeting of minds amongst the
accused and the possibility of it having developed on the spot cannot be ruled out.

The Hon’ble Supreme Court of India observed that on reaching at the said conclusion the
Trial Court and the High Court did not appreciate the fact that there was neither any direct
nor any circumstantial evidence showing pre-concert of the minds of the accused persons in
causing the death of the deceased. Dilating on the provisions of Section 34 the observation of
the Hon’ble Supreme Court of India quoted-

“Section 34 has been enacted on the principle of joint liability in the doing of a
criminal act. The Section is only a rule of evidence and does not create a substantive offence.
The distinctive feature of the Section is the element of participation in action. The liability of
one person for an offence committed by another in the course of criminal act perpetrated by
several persons arises under Section 34 if such criminal act is done in furtherance of a
common intention of the persons who join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case and the proved circumstances. In
order to bring home the charge of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the
accused persons to commit the offence for which they are charged with the aid of Section 34,
be it pre-arranged or on the spur of moment; but it must necessarily be before the commission
of the crime. The true concept of Section is that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of them has done it individually by
himself.”

The Section does not say "the common intention of all", nor does it say "and intention
common to all". Under the provisions of Section 34 the essence of the liability is to be found
in the existence of a common intention animating the accused leading to the doing of a
criminal act in furtherance of such intention. As a result of the application of principles

18 | P a g e
enunciated in Section 34, when an accused is convicted under Section 302 read with Section
34, in law it means that the accused is liable for the act which caused death of the deceased in
the same manner as if it was done by him alone. The provision is intended to meet a case in
which it may be difficult to distinguish between acts of individual members of a party who
act in furtherance of the common intention of all or to prove exactly what part was taken by
each of them”. The Hon’ble Supreme Court of India took into consideration these
observations made in the cases of Ashok Kumar vs. State of Punjab (AIR 1977 SC 109) and
Ch. Pulla Reddy and Ors. vs. State of Andhra Pradesh (AIR 1993 SC 1899).

The Hon’ble Supreme Court of India held that the evidence on record does not show that the
accused persons shared common intention to kill the deceased. They did not chase the injured
and the deceased after they reacted that the deceased and injured are criminals and notorious
and should be beaten. They further observed that there was no evidence to show that Devi
Shankar had any gun and an intention to use the same and set aside the conviction under
Section 302 read with Section 34 but observed that the accused assaulted the injured having
shared the common intention to cause the death and maintained the conviction under Section
307 read with Section 34, IPC. The Court also set aside the conviction under Section 394,
IPC qua the appellant Girija Shankar on account of no evidence against him.

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LATEST CASE LAW

Joseph vs. State represented by Inspector of Police &

Anr. 19
A division bench of the Supreme Court of India comprising of Justices Ranjan Gogoi and
R.Banumathi have upheld a Madras High Court judgment in Joseph vs. State represented by
Inspector of Police & Anr., affirming the conviction of the appellants under Section 302 read
with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and
Section 326 IPC and also the sentence of imprisonment imposed upon each of them.
The question which fell for consideration of the Court was whether the prosecution
succeeded in proving the existence of common object amongst the accused persons and
whether the accused persons acted in prosecution of the common object and that the accused
persons knew that the death was likely to be committed, to convict the accused under Section
302 IPC with the aid of Section 149 IPC.
The case came up for consideration in an appeal against the judgment of the Madras High
Court, which convicted all the eleven accused in the case under Section 302 and Section 149
of the IPC and sentenced them to life imprisonment.
The court discussed the requirements for invoking the vicarious liability under Section 149
IPC. Section 149 IPC consists of two parts:
The first part of the section means that there exists common object and that the offence has
been committed in prosecution of the common object. In order that the offence may fall
within the first part, the offence must be connected immediately with the common object of
the unlawful assembly of which the accused was member.
The second part of the section means that even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet fall under Section 149, if it can
be shown that the offence was such as the members knew was likely to be committed.
The court while discussing the various provisions of the IPC, stated:

19
AIR 2018 SC 93

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“What is important in each case is to find out if the offence was committed to accomplish the
common object of the assembly or was the one which the members knew to be likely to be
committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every
person who at the time of committing that offence was a member of the assembly has to be
held guilty of that offence. After such a finding, it would not be open to the court to see as to
who actually did the offensive act nor would it be open to the court to require the prosecution
to prove which of the members did which of the above two ingredients. Before recording the
conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be
established.”

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BIBLIOGRAPHY

BOOKS:

 Vibhute, K. L, PSA Pillai’s Criminal Law, Lexis Nexis Butterworths Wadhwa,

Nagpur (10th ed. 2011)
 Gaur, K. D, A Textbook on Indian Penal Code, Universal Law Publishing Co., New
Delhi (4th ed. 2009)
 Mishra, S. N., Indian Penal Code, Central Law Publications, Allahabad(16th ed. 2008)
 Gaur, K. D., Criminal Law: Cases and Materials., Lexis Nexis Butterworths
Wadhwa, Nagpur (5th ed. 2009)
 Bishop’s Commentaries on Criminal Law, Volume 1.
 Bhattacharyya, Prof. T., The Indian Penal Code, Central Law Agency, Allahabad( 6th
ed. 2010)
 Gandhi, B. M., Indian Penal Code, Eastern Book Company, Lucknow (2nd ed. 2006)

WEBSITES:

 www.legalsutra.org
 www.indiankanoon.org
 www.inrebus.com
 www.lexisnexis.com
 www.legalserviceindia.com
 www.lawyersclubindia.com

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