1

ANALYSIS OF COMMON INTENTION AND COMMON

OBJECT WITH SPECIAL REFERENCE TO IPC
AshabariBasu Thakur*

The common law concepts of Common Intention and Common object refer to joint liability
of the accused. They need to be attributed equal criminal liability. An essential ingredient
involved in common intention and common object is common Mens Rea. The Indian Penal
Code (IPC) deals with the offences of Common Intention and Common Object from Section
34 to Section 38 of the IPC along with Section 149 of the IPC.

SECTION 34 IPC
Criminal intention is the highest form of blameworthiness of mind. This form is taken into
account while determination of the gravest crimes. It refers to a pre-arranged plan and the
criminal act should be in pursuant to the pre-arranged plan. 1Section 34 of the IPCdeals with
common intention:
Act 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 ifit were done by him alone. 2
The liability of the offence is constituted by doing a criminal act which is pre-planned. It is a
rule of evidence and this section does not create substantive offence of its own. 3 Each of the
offenders who constituted the offence is liable individually for the act.
The Act herein mentioned, is defined in Section 33 of the IPC. It refers to a series of acts as
a single act. 4 If the chain of unity is broken from any single act, that single act from thereon
along with its offender will be held liable and not the group of offenders.

*2nd Year Student (BA LLB)

Symbiosis law School, NOIDA
Email: ashabaribasuthakur27@gmail.com
1
M Sornarajah, Common Intention And Murder Under The Penal Codes, Singapore Journal of LEGAL
STUDIES (JULY 1995), PP. 29-55 (hereinafter Sornarajah).
2
IND PEN. CODE.
3
SORNARAJAH, supra note 1.
4
IND PEN. CODE.
 2

A distinction hereby needs to be made between same and similar intention. Common
intention needs to be punished and not similar intention in the same manner. There must have
been a pre-meeting of minds before the crime was committed. Two cases could arise in which
damage could be inflicted without a common intention.

Case A
Several people see Mr. X and inflict him with fatal blows. Mr. X is fatally injured due to such
acts. In such a case if the prosecution is unable to prove that all those people who had
inflicted the blows had previously concerted, each of those people would be individually
liable for their acts and Section 34 IPC would not be applicable.

Case B
Six people agree to a plan of Mr. X. Mr. A is in charge of going inside the house in order to
steal from it. During the course, Mr. A also injures Mr. X. Therefore, all the other five people
would be liable till the extent to which they had planned and not the crime committed by
Mr.A.

SECTION 35 IPC
Section 35 of the IPC is closely related with the principle of Section 34 IPC. 5 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. 6 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 offence.

Illustration

5
Ghurey v. Rex AIR 1949 All 342 at 345 (India)
6
Barendra Kumar Ghose v. Emperor AIR 1925 PC 1 (India).
 3

Aand B decide 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.

SECTION 149 IPC

In India, Section 149 of the IPC and not Section 38 is widely used to account for common
object.
This section reads as:
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 of 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.

Every person who joins the assembly having the common object is held liable as he is
accounted to have consented to furthering the object of the assembly. The presence of
accused as a part of the unlawful assembly is held to be sufficient. 7The offence should have

7
Yunis v. State of Madhya Pradesh 2003 Cr. L.J 817 (India).
 4

been committed in furtherance of the immediate object which the people of the assembly had
and the accused should have been members of this assembly. It is also to be noted that unlike
the other above mentioned sections, Section 149 IPC is substantive and not evidentiary.

Once the unlawful nature of the assembly has been proved, then each of those people who
had been a part of the assembly is to be prosecuted in the same manner till the extent of the
crime. The individual respect of gravity of crime would not be considered. 8 A minimum of
five persons is essential in order to constitute an unlawful assembly.

AN ANALYSIS
Sections from 34 of the IPC to 38 of the IPC consistently deal with the common intention and
narrow it down to common object. However, in judgements, we see the continuing reliance of
the judge on Section 149 which deals with unlawful assembly to deal with the problem of
common object.
The risk often involved is the test evolved while determination. Common intention is to be
prosecuted when the number of people used is less than five and common object is to be used
when the number of people prosecuted is more than five. This leads to ignorance of Section
38 of the IPC which deals with common object. Other common law countries in the world,
however, do not rely on prosecution of unlawful assembly in order to identify common
object. This is a flaw in the justice system and lack of knowledge in the process has not
followed a system sans the trend.

Common intention and common object is to be taken into account from their evidentiary
sections and not be derived from the substantive offences.

8
Janardhah Raghu Mhalre&Ors v. State ofMaharashtra 1996 Cr. LJ4180 (Bom) (India).