Section 34: Acts done by Several Persons in Furtherance of Common Intention

When a crime is committed by a group of people together, with all of them having the same intention, then each person involved in the group can be held responsible for the crime in the same way as if they had committed the crime alone.

• Group of people.
• Same intension.
• Deemed to have committed the crime alone.

Example

Imagine there are three people, Person A, Person B, and Person C. They all plan and agree to rob a bank together. They have a common intention to commit the crime. During the robbery, Person A takes the money from the teller, Person B keeps watch at the entrance, and Person C drives the getaway car. According to the passage, each person involved in the crime is responsible for the robbery as if they had done it alone. So, Person A, Person B, and Person C are all equally liable for the bank robbery, even though they had different roles.

Let’s imagine a person named Ahmed who is a citizen of Bangladesh. Ahmed travels to a neighbouring country, let’s say India, and commits a theft there. According to the principle mentioned before, even though Ahmed committed the theft in India, he will be treated as if he committed the crime in Bangladesh.

This means that when Ahmed returns to Bangladesh, he will be subject to the laws and legal procedures of Bangladesh, just as if he had committed the theft within the borders of Bangladesh. So, Ahmed cannot escape punishment by committing a crime outside of Bangladesh. The legal system in Bangladesh will hold him accountable for his actions, using the same rules and punishments that would apply if the crime had occurred in Bangladesh itself.

Principles of Joint Liability under the Penal Code

Introduction

Ordinarily, no man can be held responsible for an independent act and wrong committed by another. However, Section 34 of the Penal Code, 1860 makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention.

This section deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such a situation, each person is liable for the result of that as if he had done that act himself. In short, Section 34 is primarily concerned with the joint liability in doing a criminal act.

Object

The provision is intended to address cases where 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 true contents of the section are that if two or more persons intentionally do an act jointly, the legal position is just the same as if each of them had done it individually by himself.

The existence of a common intention amongst the participants in a crime is the essential element for the application of this section. It is not necessary that the acts of the several persons charged with the commission of an offense jointly must be the same or identically similar. The acts may be different in character but must have been actuated by one and the same common intention to attract the provision.

Principle of the Section

This section is only a rule of evidence and does not create a substantive offense. Section 34 of the Penal Code, 1860 lays down the principle of constructive liability. The essence of section 34 is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result.

Section 34 of the Penal Code, 1860 stipulates that the act must have been done in furtherance of the common intention. In fact, the section is intended to cover a case where a number of persons act together, and it is not possible for the prosecution to prove which of the persons who acted together actually committed the crime. This section means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually.

If the criminal act was a fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act.

Scope, Ambit, and Applicability

Section 34 of the Penal Code, 1860 recognizes the principle of vicarious liability in criminal jurisprudence. The principle enshrined under Section 34 of the Code would be attracted only if one or more accused persons acted conjointly in the commission of offense with others.

It is not necessary that all such persons should be named and identified before the liability under Section 34 of the Penal Code, 1860 attaches. So long as the evidence brought by the prosecution discloses that one or more accused persons had acted in concert with other persons not named or identified, the liability under Section 34 of the Code would still be attracted.

A bare reading of this section shows that it can be dissected as follows:

1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and
3. Each of such persons is liable for that act in the same manner as if it were done by him alone.
4. It is not necessary that all such persons should be named and identified before the liability under Section 34 can be invoked.

Furthermore, under Section 34, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. It is well-settled law that mere presence or association with other members is not per se sufficient to hold each of them criminally liable for the offenses committed by the other members unless there is sufficient evidence on record to show that one such member also intends to or knows the likelihood of commission of such an offending act.

Leading Cases

The landmark case of Barendra Kumar Ghosh v King Emperor [AIR 1925 PC 1] is a locus classicus and has been followed by numerous High Courts before the Partition of India and the Supreme Courts of India, Pakistan, and Bangladesh. The Judicial Committee dealt with the scope of section 34, dealing with acts done in furtherance of common intention, making all equally liable for the results of all the acts of others.

It was observed that section 34, when it speaks of a criminal act done by several persons in furtherance of the common intention of all, regards not the offense as a whole but the criminal act, that is to say, the totality of the series of acts which result in the offense. In the case of a person assaulted by many accused, the criminal act is the offense which finally results, though the achievement of that criminal act may be the result of the action of several persons. It was observed that:

“By Section 33, a criminal act in Section 34 includes a series of acts, and further, “act” includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By Section 37, when any offense is committed by means of several acts, whoever intentionally cooperates in the commission of that offense by doing any one of those acts, either singly or jointly with any other person, commits that offense. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things, “they also serve who only stand and wait.”
Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. “That act” and “the act” in the latter part of the section must include the whole action covered by “a criminal act” in the first part because they refer to it.

In another celebrated case, Mehbub Shah v King-Emperor [AIR 1945 PC 148], the court held that:

“Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intentions of all,” nor does it say “an intention common to all.” Under the section, the essence of that 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. 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 of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offense applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan.”

Participation

Participation of several persons in some action with the common intention of committing a crime is an essential ingredient; once such participation is established, section 34 is at once attracted. Thus the dominant feature of section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence.

The Indian Supreme Court has held that it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offense in some way or other at the time the crime is actually being committed.

Physical presence at the very spot is not always a necessary ingredient to attract the action. What is required is actual participation in the commission of the offense in some way or other at the time when the crime is actually being committed.

In an offense involving physical violence, normally presence at the scene of the offense may be necessary, but such is not the case in respect of other offenses when the offense consists of diverse acts which may be done at different times and places. The physical presence at the scene of the offense of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case.

In Furtherance of Common Intention

Russell, in his book on Criminal Law, adopted this definition and said:

“It indicates some kind of aid or assistance proceeding an effect in the future and that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting the felony.” It has also been construed as “advancement or promotion”.

The phrase ‘common intention’ means a pre-oriented plan, and in pursuance of the plan. The common intention to give effect to a particular act may even develop at the spur of the moment between a number of persons with reference to the facts of a given case. However, common intention may develop in the course of the fight, but there must be clear and unimpeachable evidence to justify that inference.

Before a Court can convict a person for any offense read with section

34, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offense. Common intention does not mean similar intention of several persons. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them.

It is not necessary for bringing about the conviction of the co-accused to show that he also committed an overt act for the achievement of their object. The absence of any overt act or possession of a weapon cannot be singularly determinative of the absence of common intention.

If common intention by meeting of minds is established in the facts and circumstances of the case, there need not be an overt act or possession of a weapon required to establish common intention. The absence of any overt act of assault or exhortation cannot be singularly determinative of the absence of common intention.

Common Intention: How Proved

The common intention can be inferred from the circumstances of the case and that the intention can be gathered from the circumstances as they arise even during an incident. Common intention is a state of mind. It is not possible to read a person’s mind. There can hardly be direct evidence of common intention.

The existence or nonexistence of a common intention amongst the accused has to be deciphered cumulatively from their conduct and behavior in the facts and circumstances of each case. Events prior to the occurrence as also after, and during the occurrence, are all relevant to deduce if there existed any common intention. There can be no straight-jacket formula.

The Court has to examine the prosecution evidence regarding the application of section 34 cumulatively, and if the ingredients are satisfied, the consequences must follow. It is difficult to state any hard and fast rule which can be applied universally to all cases. It will always depend on the facts and circumstances of the given case whether the person involved in the commission of the crime with a common intention can be held guilty of the main offense committed by them together.

In most cases, it has to be inferred from the act or conduct or other relevant circumstances of the case in hand. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries.

Furthermore, the concerted conduct subsequent to the commission of the offense, for instance, all of them left the scene of the incident together, and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offense of which they could be convicted.