Common Intent And Common Object

INTRODUCTION

Common intent and common objects are addressed when there is more than one person in the scenario. It states the intent between two persons and that they might have a common object for committing a particular crime. Section 34 of the Indian Penal Code defines common intent while section 149 of the Indian Penal Code defines the common object.

COMMON INTENT

Common intent lays down the principle of joint liability under section 34. Wherein, it states that where the act was done by more than one person in furtherance of common intention then such an act is considered to be an offense under section 34 of the Indian Penal Code.

As per defined under section 34 of IPC,

1“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.”

In the case of Shyamal Ghosh v. State of West Bengal , it was stated by the Apex court that when there is a pre-oriented plan and where those persons are acting in pursuance of that plan then it concludes to eb common intention as per defined under section 34 of IPC.

Essential ingredients for common intention:

There should be a prior meeting of minds of the person acting in such an act having common intention.

Those people should be associated with any act constituting an offense.

Apart from these two ingredients the Supreme Court in the case of Jai Bhagwan v. State of Rajasthan gave two more essential ingredients which are as follows:

That there should be common intention

And there should be participation of the accused in some act which is considered to be a crime.

If the common intention is proved but the overtact is not then it cannot be considered a crime under section 34 of the Indian Penal Code as it will then constitute to be vicarious liability. But, if the participation of the accused is proved while there is no proof of common intention then section 34 cannot be invoked.

The burden of proof lies on the prosecution to prove that there was common intention during the act which is as follows:

There should be actual participation of more than one person for the commission on the act.

Such acts should have been done in common intent at a prior state.

Common intention is different from similar or same intention. To constitute common intention it is necessary that the intention of each person be known to all the other persons and be shared by them.

1In the case of Mahboob Shah v. EmperorMahboob Shah had restricted Alah Dad and others from collecting the reeds from the river bank, but against his warning they all still collected the re4eds from the river bank. As of which they were stopped by the nephew Mahboob Shah while he was placing them on a boat. The nephew was hit by a bamboo pole and on hearing him Mahboob Shah and his son came for help and they were armed with guns. His son fired at the victims and the Mahboob Shah fired at others of them causing some injury. Herein, Mahboob Shah was sentenced under section 302 read with section 34 of IPC. but the appeal set aside the conviction and 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 pre-arranged plan. Here the two accused might be having similar or same 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 section 34.

An essential ingredient of liability for section 34 is participation of the accused in the commission of the crime.

1In the case law of the State of Orissa v. Arjun Das Agarawal, some people entered the hotel of the victim after 10 pm and picked up quarrel with him. One of the accused stabbed and others gave blows. Fifth accused, Arjun Das Agrawal was standing outside the hotel on the road and instigating the other accused to finish the victim soon. Supreme Court held four accused liable under section 302 read with section 34 but did not hold Arjun Das Agrawal liable for murder because he neither went inside the hotel of the deceased nor took any part in the comission of the murder. He was only standing outside and instigating and there was no evidence to show that more blows were given to the victim due to instigation of the respondent. This is a case where common intention was developed on the spot.

However, there was a direct contrast to this case in the decision of Privy Council in Barendra Kumar Gosh v. Emperor, which was preplanned. In this case four men attacked the office of the postmaster while he was counting money. Three of them entered the office and demanded the money. Thereafter, they opened the fire at the postmaster and fled with the money. Appellant who was one of the party was standing outside the party was standing outside the office all this time. He was visible from inside and could see what was happening inside.

1Defence 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 in 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. In certain cases helpless spectators have not been held to be liable under section 34.

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.

Effect caused partly by act and partly by omission: Whenever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.

Illustrations: A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder. This is according to section 36.

Co-operation by doing one of several acts constituting an offence: When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.

Illustrations: (a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effect of several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate.

VICARIOUS LIABILITY
‘Vicarious Liability’ means liability which is incurred for or instead of another. In other words, if one person is held liable for the wrong committed by another, such liability is called ‘Vicarious Liability’. In Law of Torts, vicarious liability plays an important part and a master is liable for the torts committed by his servant. For instance, if a driver of a vehicle commits an accident, thereby its owner is held liable; the liability of the owner is called ‘Vicarious Liability’. Such liability is created for standing in some special relationship, as in respect of master and servant, principal and agent, employer and independent contractor etc.

COMMON OBJECT

Chapter VIII of the Indian Penal Code describes offences against public tranquility. Under that unlawful assembly is defined in section 141 which states that there is a common object between the members committing the offense of unlawful assembly. Thus, common object is considered to be a vital ingredient while determining offenses under chapter VIII of the Indian Penal Code.

As per defined under section 149 of IPC,

1“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 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.”

Essentials of sec 149 of IPC are as follows:

The offence must be committed by any member of unlawful assembly.

There must be the presence of a common object for the commission of the object or the member should have the knowledge of the same.

Hence, two kinds of cases are to be covered under this section the first one is for unlawful assembly and the second one is for common objects.

The above provision punishes the common object if the crime that has been committed is proved to be committed under a common object.

However to determine if the common object existed or not the Supreme Court in the case law of Roy Fernandes v. State of Goa stated two ingredients which are as follows:

It is necessary to consider the circumstance in which the incident took place.
To conduct the members of unlawful assembly.

In Munivel v. State of T.N, the Supreme court held :

“Section 149 of the Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in persecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in persecution of that object; every person who at the time of committing that offence was member would be party to the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. It is also well settled that if death had been caused in persecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused of the members of the unlawful assembly caused the fatal injury.”
In Rishi Deo Pandey v. State of U.P, ‘A’ and ‘B’, two brothers were seen standing near the cot of the victim who was sleeping. One of them was armed with a ‘gandasa’ and another with a ‘lathi’, when a huge cry was raised by the victim, the two brothers ran together, and both were seen running from the bedroom of the victim. The victim died of an incised wound on the neck, which according to the medical evidence was necessarily fatal. The court found that the two brothers shared the common intention to cause death. It was held that common intention may develop on the spot also.
In the case of Waman v. State of Maharashtra, the Supreme Court held that section 149 of IPC is attracted where a member of an unlawful assembly has committed an act in prosecution of the common object. It must be within the knowledge of the other members of the assembly. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under section 149.
Joint and vicarious liability under section 149: Section 149 specifies that it holds every member of the unlawful assembly liable for the offence committed in consonance with the common object of the unlawful assembly. Therefore, it establishes a joint liability. In the case of State of Maharashtra v. Joseph MingelKoli, the High Court held that it is well settled that once a membership of an unlawful assembly is established, the prosecution need not prove that the accused has been assigned with any overt act to be committed by him in order to accomplish the common object. Mere membership of the unlawful assembly is enough to be held liable for the offence committed in prosecution of the common object.

DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT

Common intention is defined under sec 34 of the Indian Penal Code while common object is defined under sec 149 of the Indian Penal Code.

Common intention requires prior meeting of the minds before the commission of the crime while a common object can be found on the spot also and the crime can be committed.

In common intention the number of people are considered to be immaterial while in common object it is mandatory that there should be more than five persons to constitute a crime.

It is not necessary that common intention to be one of the specified type while a common object needs to be one of the type under section 141 i.e. unlawful assembly.

Common intention does not create any substantive offence but it enumerates principles of constructive liability while the common object needs to be a substantive offence.

OTHER SECTIONS THAT ARE RELATED TO COMMON OBJECT AND COMMON INTENTION

SECTION 35 IPC
Section 35 of the IPC is closely related with the principle of Section 34 IPC. Criminal knowledge is also a condition that could be established while creating evidence under this section. The act which was done needs to be done with the knowledge that it was criminal. All people involved in the act must have the criminal knowledge or intention while committing the act.
SECTION 37 IPC
This section deals with intentional cooperation. The same may be different from common intention. Such offences are the result of various acts and cooperation by the offender while commission of these acts. It is different from common intention as the cooperating offender may not always be conscious about the offence committed.
Illustration
A and B decides to deprive C of food for 10 days, thereby, killing him of starvation. Therefore, they decide to deprive him of food alternately. Ultimately, on the 10th day C dies when it was A’s turn to give the food. It was a cooperated event. Therefore, A and B would be jointly liable for the Act.
SECTION 38 IPC
Common object of an offence, unlike common intention may develop on the point or spot of commission of the crime and does not require any previous concert of minds. Every member of the assembly is liable for the object of the act although he may not have previously intended to commit the act. The object of doing the Act is evident through the manner in which the Act is pursued.
Illustration
A group of people consisting of A, B, C and D attack X, a corrupt politician. While A, B and C use iron rods to kill X which is fatal in nature, D uses a stick to attack X. They had not pre-planned this attack. Due to the sudden attack, X dies. D is not liable to the same extent as A, B and C. The object of commission of crime with respect to D was to cause harm to X while the others wanted to kill X.
CONCLUSION
When it comes to Fixing vicarious liability under s.34 or s.149, what it depends on is their method adopted to furnish the crime. There are two sections dealing with ‘common intention’ and ‘common object’ under two chapters of IPC ‘General Explanation’ and ‘Of Offences Against Public Tranquillity’ respectively. Sometimes there arises difficulty in proving with evidence whether they shared common intention or not. And also, how many people were the members of Unlawful Assembly with their common object the same. However, these ambiguities were removed by the Supreme Court in different cases, after determining its facts and situation of each case.
To clear and better understand, Law Commission of India also gave many suggestions to Legislature for amendment of some part of the statute.
Even after so much effort, there arise problems of which law will be applicable amongst the two in some crucial cases, and investigators and charge sheet filers make mistakes in this regard.

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