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 fulfill 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.

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.
Basically, sections 34-38 and 149 of IPC deals with situations where
joint criminal liability is formed.
SECTION 34
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.
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 action. The liability of one
person for an offence committed by another in the course of
criminal act perpetrated by several person 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.....,"

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.
GUIDING PRINCIPLE OF COMMON INTENTION
In Mahboob Shah v. Emperor1, the following principles were laid
down by the court :

a. 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.

b. 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.

c. 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.

d. 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

e. 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.
f. 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.

COMMON INTENTION SHOULD BE PRIOR TO THE OCCURRENCE

In Pandurang v. State of Hyderabad2, 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 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.
2 AIR 1955 SC 216
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.

In Balbir Singh v. State of Punjab3 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 –
Participation is a necessary element or condition precedent to
finding of joint liability. The Supreme Court in the case of Kantiah
Ramayya Munipally v. State of Bombay4 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, can stand outside to warn his
companions about any approach of danger.
4 AIR 1955 SC 287
SECTION 35 – Section 35 of the IPC is in furtherance of the
preceding section 34. It reads that Sec 35 - 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.

Reference can be made to the case of Adam Ali Taluqdar5 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 knew that his act will cause C’s
death. Hence, A was held guilty for murder whereas B was charged
with grievous hurt.
5 AIR 1927 Cal 324
SECTION 149 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 –
a. There must be an unlawful assembly6.
b. There must be at least five people in such an assembly.

6 141. Unlawful assembly.--An assembly of five or more persons is

designated an "unlawful assembly", if the common object of the
persons composing that assembly is-
First-To overawe by criminal force, or show of criminal force, [the
Central or any State Government or Parliament or the Legislature of
any State], or any public servant in the exercise of the lawful power
of such public servant; or
Second-To resist the execution of any law, or of any legal process;
or
Third-To commit any mischief or criminal trespass, or other
offence; or
Fourth-By means of criminal force, or show of criminal force, to any
person to take or obtain possession of any property, or to deprive
any person of the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession or enjoyment,
or to enforce any right or supposed right; or
Fifth-By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do.
Explanation- An assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly.
b. 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”.

c. There must be a commission of offence by anyone or more

members of such unlawful assembly.

d. 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.

e. 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.

In Mizaji v. State of Uttar Pradesh7 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.
7 AIR 1959 SC 572

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 action8.
8 Gajanand v. State of Uttar Pradesh AIR 1954 SC 695
DIFFERENCE BETWEEN S.34 & S.149
There is a clear distinction between the provisions of s. 34 and s.
149 of the Indian Penal Code and the two sections are not to be
confused. The principal element in s. 34 of the Indian Penal Code is
the common intention to commit a crime. In furtherance of the
common intention several acts may be done by several persons
resulting in the commission of that crime. In such a situation s. 34
provides that each one of them would be liable for that crime in the
same manner as if all the acts resulting in that crime had been done
by him alone. There is no question of common intention in s.149 of
the Indian Penal Code.
An offence may be committed by a member of an unlawful assembly
and the other members will be liable for that offence although there
was no common intention between that person and the other
members of the unlawful assembly to commit that offence provided
the conditions laid down in the section are fulfilled.
Thus, if the offence committed by that person is in prosecution of
the common object of the unlawful assembly or such as the
members of that assembly knew to be likely to be committed in
prosecution of the common object, every member of the unlawful
assembly would be guilty of that offence, although there may have
been no common intention and no participation by the other
members in the actual commission of that offence.
There is a difference between object and intention. Although, the
object may be common, the intentions of the several members of the
unlawful assembly may differ and indeed may be similar only in one
respect namely that they are all unlawful, while the element of
participation in action, which is the leading feature of s. 34, is
replaced in s. 149 by membership of the assembly at the time of the
committing of the offence.
A charge for a substantive offence under section 302, or section 325
of the Indian Penal Code, etc. is for a distinct and separate offence
from that under section 302, read with section 149 or section 325,
read with section 149, etc.
A person charged with an offence read with s. 149 cannot be
convicted of the substantive offence without a specific charge being
framed as required by s. 233 of the Code of Criminal Procedure.
BIBLIOGRAPHY
Gaur KD, A Textbook on Indian Penal Code, 2009, Fourth
Edition, Universal Law Publishing Co.

Mishra SN, Indian Penal Code, 2008, 16th Edition, Central Law
Publications

Gaur KD, Criminal Law : Cases and Materials, 2009, 5th Edition,
Lexis Nexis Butterworths Wadhwa

Bishop’s Commentaries on Criminal Law, Volume 1