RESEARCH WORK

DIFFERENCE BETWEEN CONVICTION UNDER

SECTION 34 & 120B
WITH AID TO OTHER SECTIONS OF IPC.

1. Explanations of Sections
2. Important Supporting Case Laws
3. Important Provisions
4. Differences between Section 34 & 120B
5. Differences between Convictions under both the sections.

SUBMITTED BY:

NEHA SHARMA
 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.

 Basically Section 34 talks about joint liability in the doing of a criminal act, the essence of
that liability being the existence of a common intention. Participation in the commission of
the offence in furtherance of the common intention of all invites its application. And it is not
a penal section in itself however it only explains the term common intention and its only a
rule of evidence. So it must be read with some other section and according to that section, the
punishment is prescribed.

 Therefore, this section is applied along with some substantive offence as it is only a principle
of constructive liability. To understand it better we can take an example. Suppose, 3 persons
assault another person with stick, sword, knife whereby that person suffers serious injuries on
his vital parts, like lungs, brain, abdomen causing excessive bleeding and could be saved only
due to timely medical treatment. Prima facie, this act amounts to attempt to murder under
section 307 IPC. If the assailants had done this with common intention, then section 34 will
be applied. The punishment will be as per punishment for section 307 IPC.

 Also, there is sometimes one misconception regarding the similarity of Common intention
and similar intention. Whereas both are different concepts as similar intention can be
coincidence without the presence of a pre-arranged plan whereas in Common intention all the
persons are having some common pre planned intention and are committing a criminal
offence together with that intention.Therefore, Common intention cannot be confused with
similar intention as both are different terms.

 CASE LAW: The case of Barendra Kumar Ghosh v. King Emperor 1 was one of the earliest
cases where the court convicted another person for the act of another done in furtherance of
common intention. This case is also known as post master’s case.

Facts: A group of armed persons entered in the police station on 3rd August, 1923. They
demanded money from the post master where he was counting the money. They fired from
the pistol at the postmaster, due to which the postmaster died on the spot. All of the accused
ran away without taking money. The Police was able to catch Barendra Kumar Ghosh who
was standing outside the post office as a guard. Barendra’s contention was that he was only
standing as a guard but the Calcutta high court convicted him for murder under section 302
1
AIR 1925 PC 1
 r/w section 34 of Indian Penal Code. When he appealed in the Privy Council, his appeal
was rejected.

 In Hari Shanker v. State of U.P, the High Court had acquitted three of the four accused for
an offence under Section 302 read with Section 34 of the IPC but maintained the conviction
of the sole convict under Section 302 read with Section 34. The Supreme Court held
that “since the acquittal of all co-accused has become final, the conviction of the appellant
under Section 34 becomes unsustainable” but this does not mean that an accused cannot be
punished for any individual offence which can be attributed to him as the Court held that the
crucial test to be determined in such a case was that the Court will have to “determine the
individual role of the accused and accordingly find out if he is guilty of any offence”. In this
case, the deceased had died due to gunshot injuries and there was ocular and medical
evidence which proved that the remaining accused had fired a gunshot which had hit the right
wrist of the deceased. The Court set aside the conviction under Section 302 read with Section
34 as it came to the conclusion that this injury could not have been the cause of death and
convicted the accused under Section 326 of the IPC for voluntarily causing grievous hurt by
dangerous weapons.

 Some of the sections in which the concept of joint liability is discussed in IPC are section 34,
section 120A and 120 B, section 149 of IPC.

[NOTE: When IPC was enacted in 1860, section 34 at that time didn’t included words ‘in furtherance of
common intention’, then an amendment was made in year 1870 to amend Indian Penal Code and then these
words were included in the section 34. The amended section 34 of IPC simply says that all those persons who
have committed a crime with a common intention and they have acted while keeping in mind the common
intention, then everyone should be liable for the acts of another done in common intention as if the act is done
 by the person alone. It happens that different persons perform different acts in the commission of the act or non-
commission of the act, even though when section 34 applies, all the persons in group are jointly liable for the
acts of another.]

Section 120A: Definition of Criminal Conspiracy:

When two or more persons agree to do, or cause to be done,

(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or more parties to
such agreement in pursuance thereof.

Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement,
or is merely incidental to that object.

Section 120B: Punishment of Criminal Conspiracy:

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit
an offence punishable as aforesaid shall be punished with imprisonment of either description
for a term not exceeding six months, or with fine or with both.

 Section 120A IPC defines as to what constitutes Criminal Conspiracy whereas Section 120B
prescribes punishment for the offence of Criminal Conspiracy.

 Criminal Conspiracy is a substantive offence in itself. The definition simply means that when
two or more persons agree to do some illegal act or agree to do a legal act by illegal means
then that amounts to criminal conspiracy. The act is only which has been agreed by the
parties earlier and not any other act. Even if the conspiracy fails on account of abandonment
or detection before commission of offence, the very act of entering into an agreement by the
co-conspirators is itself an offence and punishable under the law. Hence, the main essence of
conspiracy that is embodied in section 120A of Indian Penal Code is the unlawful
 agreement and ordinarily the offence is complete when the unlawful agreement is framed.
It is not necessary that there should be some overt act in furtherance of the agreement made
and it is not at all necessary that the object for which the conspiracy was made should be
achieved.

 Section 120B gives punishment for criminal conspiracy. It simply says that every person
who is a part of criminal conspiracy for offences punishable with death, imprisonment for life
or rigorous imprisonment for two years or upwards will be punished in the same way as if
that person has abetted the offence and whoever is a party to any other conspiracy will be
punished with imprisonment for a period not more than six months or fine or both.
A view came that a person should not be charged for conspiracy, if due to that conspiracy,
some act has been omitted. This view was not correct. The criminal conspiracy is itself an
independent offence and even if other offences are committed in pursuance of criminal
conspiracy, then also the person is charged for criminal conspiracy as the liability of
conspirators is still present.

 Since, in most cases, a conspiracy is conceived and hatched in complete secrecy, and only in
rare cases is direct evidence available, circumstantial pieces of evidence which lead to an
inference that an agreement between two or more people to commit an offence may be
drawn.

 Section 120B of the code is required to read with Section 196 of CrPC. It mandates a
Court not to, without prior sanction of the State Government or the District Magistrate, take
cognisance of a criminal conspiracy to commit an offence punishable with imprisonment of a
term more than two years. No prior sanction of the concerned State Government or of the
District Magistrate is required when the criminal conspiracy related to an offence punishable
with imprisonment for two or less than two years’ imprisonment. For initiating criminal
proceedings parties to a conspiracy made abroad, requires sanction of the Central
Government. A conspiracy hatched in India to commit an unlawful act outside India does not
require sanction of the Central Government.
 It has never been easy to get direct evidence for proving an offence under Section 120-A,
which defines criminal conspiracy and if not defined, then punishment under 120B cannot be
invoked. Considering this fact, Section 10 of the Indian Evidence Act 2 comes into play. This
2
Section 10: Things said or done by conspirator in reference to common design .—Where there is reasonable
ground to believe that two or more persons have conspired together to commit an offence or an actionable
wrong, anything said, done or written by any one of such persons in reference to their common intention, after
the time when such intention was first entertained by any one of them, is a relevant fact as against each of the
persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the
 section can be divided into two parts: firstly, where there is reasonable ground to believe that
two or more persons have conspired to commit an offence or an actionable wrong. Only when
this condition precedent is satisfied, the second part of the section comes into operation i.e.
anything said, done or written by any one of such persons in reference to the common
intention after the time when such intention was first entertained by any one of them is a
relevant fact against each of the persons believed to be so conspiring as well for the purpose
of proving the existence of the conspiracy. It is therefore necessary that a prima facie case of
conspiracy has to be established for application of Section 10. The second part of section
permits the use of evidence which otherwise could not be used against the accused person.3
 Principles governing the law of conspiracy as laid down by the Supreme Court of India:

In State of Tamil Nadu v. Nalini4, when the main accused herself has admitted in her
confessional statement that she had played a vital role in conspiracy for murder of Mr. Rajiv
Gandhi and her confession is corroborated by other material and witness evidence, there is no
need of interference in conviction under Sections 300 and 120-B of the IPC. In this case the
Supreme Court framed the following principles governing the law of conspiracy after
reviewing the judicial pronouncement on the law of conspiracy:

1) Offence of criminal conspiracy is committed when two or more persons agree to do or

cause to be done an illegal act or a legal act by illegal means.

2) Not only the intention, there has to be an agreement to carry out the object of the intention,
which is an offence. Only entertaining a wish is not sufficient to convict a person for criminal
conspiracy though it may be an evil wish.

3) Acts subsequent to the achieving of objects of conspiracy may tend to prove that a
particular accused was a party to the conspiracy.

4) As conspiracy is hatched in private or in secrecy, its objects are to be inferred from the
circumstances and from the conduct of the accused.

5) Conspirators may be enrolled one after another in chain. It is not the part of the crime of
conspiracy that all the conspirators need to agree to play the same and active role.

purpose of showing that any such person was a party to it.

3
Sardar Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR 378]

4
AIR 1999 SC 2640
 6) There has to be two conspirators and there may be more than that. To prove the charge of
conspiracy, it is not necessary that the intended crime was committed or not.

7) It is not necessary that all conspirators should agree to the common purpose at the same
time.

8) Prosecution has to produce evidence not only to show that each of the accused has
knowledge of object of conspiracy, but also the agreement.

9) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the
crime of conspiracy though it is not formal or express.

10) A Criminal Conspiracy is a partnership in crime and that each conspiracy consists of a
joint and mutual agency for a prosecution of a common plan.

11) A man may join a conspiracy by word or deed. One who commits an overt act with
knowledge of the conspiracy and others standing by conspirators are guilty.

12) A conspiracy is not broken into several conspiracies when a new member joins the
conspiracy. It continues from the time of agreement to the time of its termination.

13) In the absence of proof, relatives or spouses providing food or shelter cannot be treated as
members of a criminal conspiracy even though they may have knowledge about such a
conspiracy.

14) In absence of evidence that accused had even knowledge of any conspiracy, the mere
association with the main accused would not make him member of conspiracy because
agreement is a sine qua non of offence of conspiracy.

 There is a thin line of difference between the conspiracy as defined under Section 120 and
common intention as defined under Section 34 of the IPC. Under Section 120, bare
engagement and association to break the law is enough for the liability even though the act
has been committed or not.5 But under the Section 34, the commission of a criminal act in
furtherance of common intention of all the offenders is necessary. This shows that the
amplitude of substantive offence is wider in the case of criminal conspiracy than the abetment
or incitement.

5
Supreme Court in the case of NOOR MOHAMMAD v. STATE OF MAHARASHTRA [AIR 1971 SC 885]
discussed about distinction between Section 34, 109 and 120B IPC