IPC GENERAL EXPLANATIONS

CLASS 8-11

SECTION 34: ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF

COMMON INTENTION-
According to Section 34, when a criminal act is done by several persons in
furtherance of 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.
II. OBJECT OF SECTION 34:- Section 34 lays down only a rule of evidence and
does not create a substantive offence. This section is intended to meet cases in
which it may be difficult to distinguish between the acts of the individual
members of a party or to prove exactly what part was taken by each of them in
furtherance of the common intention of all. This section means that if two or
more persons intentionally do a thing jointly, it is the same as if each has done
it individually.
All are deemed guilty in such cases because the presence of accomplices gives
encouragement, support, and protection to the person actually committing an
act.
III. ELEMENTS OF SECTION 34: To attract the application of Section 34, the
following conditions must be satisfied:-
1. Some Criminal Act: - ‘Criminal act’ used in section 34 does not refer to
individual acts where a crime is committed by a group of persons. Where a
crime is committed by several persons in furtherance of the common intention
of all of them, each of them doing some act, similar or diverse, big or small
shall be liable for that act. ‘That act’ refers to the ‘criminal act’ used in section
34 which means the unity of criminal behaviour which results in something for
which an individual would be punishable if it were all done by himself alone in
an offense.
2. Criminal Act Done By Several Persons: - The criminal act in question must
have been done by several persons, i.e., more than one person. The number of
wrongdoers should be at least two. Most importantly, 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.
3. Common Intention:- The words “in furtherance of the common intention of
all” were added to section 34 after words ‘persons’ in 1870 the idea for which,
possibly, was derived from the following passage of the Privy Council’s
judgment:
“Where parties go with a common purpose to execute a common intention,
each and every one becomes responsible for the acts of each and every other
in execution and furtherance of their common purpose, as the purpose is
common so must be the responsibility.
The expression ‘common intention’ means unity of purpose or a pre-arranged
plan; it has been given various meanings which are as follows-
• Common intention implies a pre-arranged plan, prior meeting of minds,
prior consultation in between all the persons constituting the group [Ref.
Mahboob Shah v. Emperor, AIR 1945 PC 118]
• Common intention means the mens rea necessary to constitute the
offence that has been committed [Ref. As per DAS, J., in Ibra Akanda v.
Emperor, AIR 1944 Cal. 339].
• It also means evil intent to commit some criminal act, but not necessarily
the same offence which is committed [Ref. As per WANCHOO, J., in Saidu
Khan v. The State, AIR 1951 All 21 (F.B.)].
• Common intention implies a pre-arranged plan. Pre-arranged plan
means prior concert or prior meeting of minds. Criminal act must be
done in concert pursuant to the pre-arranged plan. Common intention
comes into being prior to the commission of the act in point of time.
• Where there is no indication of premeditation or of a pre-arranged plan,
the mere fact that the two accused were seen at the spot or that the two
accused fired as a result of which one person died and two others
received simple injuries could not be held sufficient to infer common
intention [Ref. Ramachander v. State of Rajasthan, 1970 Cr.L.J. 653].
• However, common intention may develop on the spot as between a
number of persons and this has to be inferred from the act and conduct
of the accused, and facts and circumstances of the case [Ref. Kripal Singh
v. State of U.P., AIR 1954 SC 706].
4. Participation In The Criminal Act:- The participation in a criminal act of a
group is a condition precedent in order to fix joint liability and there must be
some overt act indicative of a common intention to commit an offence. The law
requires that the accused must be present on the spot during the occurrence
of the crime and take part in its commission; it is enough if he is present
somewhere nearby.
The 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 some way or other at the time crime is
actually being committed.
5.Physical Presence and Active Participation – At the initial stage it was
observed that physical presence is necessary. In Shree Kantia v. State of
Bombay (1955) Supreme Court observed that Physical presence and active
participation of every person is necessary. Later on Supreme Court modified its
ratio. In J.M. Desai v. State of Bombay (1960) Supreme Court observed that In
case of offences against property, presence of every person is not necessary. In
Suresh and Another v. State of Uttar Pradesh Supreme Court said that due to
advancement of electronic equipment like binoculars or mobile phones a
person may effectively participate in commission of crime. Physical
participation of everyone should not be necessary. For example, in Mumbai
attack (2008) some terrorists in sitting Pakistan were guiding another terrorists
who were directly involve in commission of crime. Even these terrorists sitting
in Pakistan must be covered under Section 34, IPC.
6. No Distinct offence - In Gurdatta Mal v. State of U.P. (1965) Supreme Court
observed, ―It is well settled that Section 34 of the Indian Penal Code does not
create a distinct offence: it only lays down the principle of joint criminal
liability. In Suresh and Another v. State of Uttar Pradesh, Hon‘ble Justice
Thomas observed that it is a rule of evidence and does not create a substantive
offence. It means this Section itself does not constitute any offence. Only use of
this Section is to prove the liability of co-accused. So if there is only one person
has committed crime this Section will not be applicable.
7. Liability - Each of such persons is liable for that act in the same manner as if
it were done by him alone. Activities of every person for the purpose of liability
will not be separated. All persons will be liable for offence. If murder has been
committed in furtherance of common intention, one accused can‘t take
defence that he was only standing and watching for the purpose of alarming
accused.
CASES
1. Barendra Kumar Ghosh v. king Emperor (1924)
Barendra Kumar Ghosh v. King Emperor which is known as Sankaritolla Post
Office Case. It was decided by Justice Sumner, Bombay High Court on October
23, 1924.
Facts - The Sub-Postmaster at Sankaritolla Post Office was counting money at
his table in the back room, when several men appeared at the door which
leads into the room from a courtyard, and, when just inside the door, called on
him to give up the money. Almost immediately afterwards they fired pistols at
him. He was hit in two places, in one hand and near the armpit, and died
almost at once. Without taking any money the assailants fled, separating as
they ran. Barendra Kumar Ghosh was a freedom fighter. Barendra Kumar Ghosh
was caught. He was the man outside the room.
Meaning of Criminal Act - A criminal act means unity of criminal behaviour
which results in something, for which an individual would be punished, if it
were all done by himself alone, that is, in a criminal offence. Lord Sumner said,

―They also serve who only stand and wait. By Section 33 a criminal act in
Section 34 includes a series of acts.
―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.
Decision - He was convicted of murder u/s302 r/w Section 34, IPC.
2. Mahaboob Shah v. Emperor (1945)
Mahaboob Shah v. Emperor510 which is known as ̳Indus River Case‘ ̳Reed
Cutting Case‘was decided by Bombay High Court on January 31, 1945. Hon‘ble
Justice Sir Madhavan Nair wrote this judgment.
In this case there was dispute regarding cutting of reed on the bank of river.
Allah Dad and his companion were given warning not to cut reed. Ignoring this
warning they cut the reed. Altercation started.
Facts - On August 25, 1943, at sunrise, Allah Dad, deceased, with a few others
left their village Khanda Kel by boat for cutting reeds growing on the banks of
the Indus river. When they had travelled for about a mile downstream, they
saw Mohammad Shah, father of Wali Shah (absconder) bathing on the bank of
the river. On being told that they were going to collect reeds, he warned them
against collecting reeds from land belonging to him. Ignoring his warning they
collected about sixteen bundles of reeds, and then started for the return
journey. While the boat was being pulled upstream by means of a rope Ghulam
Quasim Shah, nephew of Mohammad Hussain Shah who was standing on the
bank of the river asked Allah Dad to give him the reeds that had been collected
from his uncle's land. He refused. Quasim Shah shouted out for help and Wali
Shah and Mahbub Shah came up. They had guns in their hands. When Allah
Dad and Hamidullah tried to run away, Wali Shah and Mahboob Shah came in
front of them and Wali Shah fired at Allah Dad who fell down dead and
Mahbub Shah fired at Hamidullah, causing injuries to him.
Quasim Shah and Mohammad Hussain Shah were acquitted. Wali Shah was a
fugitive from justice and has not been so far arrested. Lahore High Court
applied Section 34 and convicted Mahaboob Shah for causing injury and death
read with Section 34. There is the following summary -
Death of Allah Dad - Mahaboob Shah was 19 years old. Mahaboob Shah was
convicted for the murder of Allah Dad under Section 302 r/w Section 34 and he
was punished for death sentence.
Injury to Hamidullah Khah - He was also convicted of the attempted murder of
one Hamidullah Khah and sentenced to seven years rigorous imprisonment;
but that conviction was not challenged. Appeal was preferred to Bombay High
Court against Judgment of Lahore High Court.
Issue
Whether Mahaboob Shah had been rightly convicted of murder upon the true
construction of Section 34 of the Indian Penal Code?
Observation
Sir Madhavan Nair observed -
Pre-arranged Plan - Common intention within the meaning of the Section
implies a pre- arranged plan, and to convict the accused of an offence applying
the Section it should be proved that the criminal act was done in concert
pursuant to the pre-arranged plan.
Evidence - As has been often observed, 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.
Differences between Common Intention and Same/Similar Intention - Care
must be taken not to confuse same or similar intention with common intention,
the partition which divides ̳their bonds‘ is often very thin; nevertheless, the
distinction is real and substantial , and if overlooked , will result in miscarriage
of justice..Common intention within the meaning of Section 34 implies a pre-
arranged plan.
Reason of Decision
Common Intention – There was common intention to save Ghulam Quasim.
There was no common intention to cause death. The evidence shows that Wali
Shah "happened to be out shooting game," and when he and the appellant
heard Ghulam's shouts for help they came up with their guns.
No Pre-planning- There were no pre-planning to kill. Causing injuries to save
Ghulam Quasim was similar intention. There was no evidence and there were
no circumstances from which it might be inferred that the appellant must have
gone acting in concert with Wali Shah in pursuance of a concerted plan when
he along with him rushed to the rescue of Ghulam Quasim.
Decision - Mahaboob Shah succeeded in his appeal. His conviction for murder
and the sentence of death was set aside.
Section 35 - When Act is Criminal by Reason of its being Done with a Criminal
Knowledge or Intention
Section 35 of the Indian Penal Code (IPC) deals with the concept of "When such
an act is criminal by reason of its being done with a criminal knowledge or
intention." This section is essential in understanding the liability of an
individual who participates in an act that may not be inherently criminal but
becomes so due to the intention or knowledge with which it is committed.
1. Scope of the Section: Section 35 complements Section 34 IPC, which deals
with the principle of joint liability when a criminal act is done by several
persons in furtherance of a common intention. Section 35 comes into play
when the act done is not criminal per se, but the individual's intention or
knowledge behind the act makes it a criminal act.
2. Criminal Knowledge: The section refers to acts that are done with criminal
knowledge. Criminal knowledge implies that the person committing the act is
aware that their actions are illegal or unlawful. Despite the act itself not being
inherently criminal, the person's awareness of its illegal nature makes them
liable for the criminal consequences.
3. Criminal Intention: Section 35 also covers acts done with a criminal
intention. Criminal intention denotes that the person commits the act with the
specific purpose of causing harm, breaking the law, or achieving an unlawful
objective. The act, while not inherently criminal, becomes illegal due to the
intent behind it.
4. Presumption of Criminal Knowledge or Intention: Section 35 creates a
presumption of criminal knowledge or intention. If an individual is found to
have committed a criminal act, the court may presume that the act was done
with criminal knowledge or intention, unless the contrary is proved.
5. Difference from Section 34: While both Section 34 and Section 35 deal with
joint liability, they differ in their application. Section 34 is applicable when a
criminal act is done by several persons in furtherance of a common intention.
In contrast, Section 35 focuses on the individual's intention or knowledge
behind an act that may not be inherently criminal but becomes so due to the
circumstances.
6. Examples: An example of Section 35 would be when a group of people, with
the criminal intention of causing fear and intimidation, collectively makes
threats to extort money from someone. While the act of making threats is not
inherently criminal, their criminal intention to extort makes it illegal. In such a
scenario, all individuals involved can be held liable under Section 35 IPC, as
they participated in an act that became criminal due to their intention.
In conclusion, Section 35 IPC is crucial in determining the liability of individuals
who participate in an act that may not be inherently criminal but becomes so
due to their criminal intention or knowledge. It ensures that individuals cannot
escape liability for their actions merely by claiming that the act itself was not
inherently illegal, as their intention or knowledge behind the act is taken into
account to establish criminal liability.

Section 36 - Effect caused partly by act and partly by omission.

Wherever 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.
ILLUSTRATION
A intentionally causes Z's death, partly by illegally omitting to give Z food, and
partly by beating Z. A has committed murder.
This section follows as a corollary from section 32. The legal consequences of
an 'act' and of an 'omission' being the same, if an offence is committed partly
by an act and partly by an omission the consequences will be the same as if the
offence was committed by an 'act' or by an 'omission' alone. Fire in the
transformer installed in a cinema hall led to multiple deaths but was not the
causa causans of the tragedy. The absence of rapid dispersal facilities, various
acts of omission and commission, violation of rules and bye-laws meant for
public safety were other causes which contributed to the tragedy in equal
proportion. A charge under this section was held to be justifiable.
Section 37 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 effects of the 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.
(b) A and B are joint jailors, and as such have the charge of Z, a prisoner,
alternatively for six hours at a time. A and B, intending to cause Z's death,
knowingly co-operate in causing that effect by illegally omitting, each during
the time of his attendance, to furnish Z with food supplied to them for that
purpose, Z dies of hunger. Both A and B are guilty of the murder of Z.
This section provides that, when several acts are done so as to result together
in the commission of an offence, the doing of any one of them, with an
intention to cooperate in the offence (which may not be the same as an
intention common to all), makes the actor liable to be punished for the
commission of the offence. By co-operating in the doing of several acts which
together constitute a single criminal act, each person who co-operates in the
commission of that offence by doing any one of the acts is either singly or
jointly liable for that offence.

Section 38 Persons concerned in criminal act may be guilty of different

offences.
Where several persons are engaged or concerned in the commission of a
criminal act, they may be guilty of different offences by means of that act.
ILLUSTRATION
A attacks Z under such circumstances of grave provocation that his killing of Z
would be only culpable homicide not amounting to murder. B, having ill-will
towards Z and intending to kill him, and not having been subject to the
provocation, assists A in killing Z. Here, though A and B are both engaged in
causing Z's death, B is guilty of murder, and A is guilty only of culpable
homicide.
This section provides for different punishments for different offences as an
alternative to one punishment for one offence, whether the persons engaged
or concerned in the commission of a criminal act are set in motion by the one
intention or by the other. The section applies where a criminal act jointly done
by several persons and the several persons have different intentions or states
of knowledge in doing the joint act. Where three accused assaulted the
deceased but only two used their weapons in a determined manner which
clearly showed their common intention to kill the deceased and the third
accused who had a lathi in his hand did not even use it to cause any injury to
the victim, it was held that the former two were liable to be convicted under
section 302 read with section 34, IPC, 1860, and the third accused was only
liable under section 304, Part II read with section 38, IPC, 1860, as he had
intentionally joined the other two in the commission of the act with the
knowledge that the assault was likely to cause death of the deceased even
though he did not have the intention to kill him. This section provides for
different punishments for different offences as an alternative to one
punishment for one offence, whether the persons engaged or concerned in the
commission of a criminal act are set in motion by the one intention or by the
other. The section applies where a criminal act jointly done by several persons
and the several persons have different intentions or states of knowledge in
doing the joint act. Where three accused assaulted the deceased but only two
used their weapons in a determined manner which clearly showed their
common intention to kill the deceased and the third accused who had a lathi in
his hand did not even use it to cause any injury to the victim, it was held that
the former two were liable to be convicted under section 302 read with section
34, IPC, 1860, and the third accused was only liable under section 304, Part II
read with section 38, IPC, 1860, as he had intentionally joined the other two in
the commission of the act with the knowledge that the assault was likely to
cause death of the deceased even though he did not have the intention to kill
him.
Section 39 - "Voluntarily.".
A person is said to cause an effect "voluntarily" when he causes it by means
whereby, he intended to cause it, or by means which, at the time of employing
those means, he knew or had reason to believe to be likely to cause it.
ILLUSTRATION
A sets fire, by night, to an inhabited house in a large town, for the purpose of
facilitating a robbery and thus causes the death of a person. Here, A may not
have intended to cause death; and may even be sorry that death has been
caused by his act; yet, if he knew that he was likely to cause death, he has
caused death voluntarily.
If an act is the probable consequence of the means used by him, he is said to
have caused it voluntarily whether he really means to cause it or not. Section
implicitly lays down the principle that a man is presumed to intend the
probable consequences of his act.

Section 43 - "Illegal." "Legally bound to do."

The word "illegal" is applicable to everything which is an offence or which is
prohibited by law, or which furnishes ground for a civil action; and a person is
said to be "legally bound to do" whatever it is illegal in him to omit.
The word `illegal' in the section has been given a very wide meaning. It consists
of three ingredients: (1) everything which is an offence; (2) everything which is
prohibited by law and (3) everything which furnishes ground for civil action.
The words "legally bound" do not necessarily only mean the law made by the
legislature or statutory law. Section 43 IPC, 1860 contains a definition of a
person being legally bound to do, that is, a person is stated to be legally bound
to do whatever it is illegal in him to omit. The expression "legally bound to do"
carries very wide meaning where any ground for civil action can be founded on
the basis of any act or omission on the part of a person, his act may be held to
be illegal or it may be held that he was legally bound to do an act which he had
omitted to do. If a person breaches a departmental order, he may be held
guilty as he was legally bound to act in terms of the order.
Section 52 - "Good faith."
Nothing is said to be done or believed in "good faith" which is done or believed
without due care and attention.
The meaning of the expression "good faith" is what is done with "due care and
attention". Due care denotes the degree of reasonableness in the care sought
to be exercised. So, before a person proposes to make an imputation, he must
first make an enquiry into the factum of the imputation which he proposes to
make. It is not enough that he does just a make-believe show for an enquiry.
The enquiry expected of him is of such a depth as a reasonable and prudent
man would make with the genuine intention in knowing the real truth of the
imputation. If he does not do so he cannot claim that what he did was bona
fide i.e. done in good faith. Thus, a contemner, if he is to establish "good faith"
has to say that he conducted a reasonable and proper enquiry before making
an imputation.

Section 52A- "Harbour."

Except in section 157, and in section 130 in the case in which the harbour is
given by the wife or husband of the person harboured, the word "harbour"
includes the supplying a person with shelter, food, drink, money, clothes, arms,
ammunition or means or conveyance, or the assisting a person by any means,
whether of the same kind as those enumerated in this section or not, to evade
apprehension.
This section was added in the Indian Penal Code by the Indian Penal Code
(Amendment) Act, 1942. Simultaneously, section 216-B was repealed by this
Amendment Act. That section, before its repeal, defined the word ‘harbour’ as
used in sections 212, 216 and 216-A of the Code.
Under section 52-A the definition of the word has been widened. This section,
at the same time, has kept section 157, and section 130 where a husband
harbours his wife or vice versa, out of its purview. The definition is not
exhaustive as is apparent from the language of this section. To evade
apprehension, when someone supplies to a person the things enumerated in
this section, the same is included within the definition of the word ‘harbour’.
Similarly, to evade apprehension, when someone assists a person by any
means, whether enumerated in this section or not, the same is also included
within the definition of the word ‘harbour’.

Section - 8 Gender
The pronoun "he" and its derivatives are used of any person, whether male or
female.
The word “he” here includes male, female, and transgender.
However, this concept has no application when the offence is gender specific.

Section 10 - "Man" "Woman".

The word "man" denotes a male human being of any age; the word "woman"
denotes a female human being of any age.
A female child of seven and a half months was held to be a "woman" for the
purpose of section 354 IPC, 1860.

Section 19 - "Judge."
The word "Judge" denotes not only every person who is officially designated as
a Judge, but also every person,— who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or a judgment which, if not
appealed against, would be definitive, or a judgment which, if confirmed by
some other authority, would be definitive, or who is one of a body of persons,
which body of persons is empowered by law to give such a judgment.
ILLUSTRATIONS
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has
power to sentence to fine or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Madras Code, to try and
determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has
power only to commit for trial to another Court, is not a Judge.

Section 19 IPC, 1860 defines a 'Judge' as denoting not only every person who is
officially designated as a Judge, but also every person who is empowered by
law to give in any legal proceedings, civil or criminal, a definitive judgment, or a
judgment which, if not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be definitive, or who is one
of a body of persons empowered by law to give such a judgment. The Collector
is neither a Judge as defined under section 19 nor does he act judicially, when
discharging any of the functions under the Land Acquisition Act.

Section 23 - "Wrongful gain.".

"Wrongful gain" is gain by unlawful means of property to which the person
gaining is not legally entitled.
"Wrongful loss."
"Wrongful loss" is the loss by unlawful means of property to which the person
losing it is legally entitled.
Gaining wrongfully, Losing wrongfully
A person is said to gain wrongfully when such person retains wrongfully, as well
as when such person acquires wrongfully. A person is said to lose wrongfully
when such person is wrongfully kept out of any property, as well as when such
person is wrongfully deprived of property.
The word 'wrongful' means prejudicially affecting a party in some legal right.
For either wrongful loss or gain, the property must be lost to the owner, or the
owner must be wrongfully kept out of it. Thus, where a pledgee used a turban
that was pledged, it was held that the deterioration of the turban by use was
not 'wrongful loss' of property to the owner, and the wrongful beneficial use of
it by the pledgee was not a 'wrongful gain' to him. The gain or loss
contemplated need not be a total acquisition or a total deprivation but it is
enough if it is a temporary retention of property by the person wrongfully
gaining or a temporary "keeping out" of property from the person legally
entitled.
Section 27 - Property in possession of wife, clerk or servant.
When property is in the possession of a person's wife, clerk or servant, on
account of that person, it is in that person's possession within the meaning of
this Code.
Explanation.— A person employed temporarily or on a particular occasion in
the capacity of a clerk or servant, is a clerk or servant within the meaning of
this section.
Under this section property in the possession of a person's wife, clerk, or
servant, is deemed to be in that person's possession. The possession must be
conscious and intelligent possession and not merely the physical presence of
the accused near the object. Corporeal property is in a person's possession
when he has such power over it that he can exclude others from it, and intends
to exercise, if necessary, that power on behalf of himself or of some person for
whom he is a trustee. A man's goods are in his possession not only while they
are in his house or on his premises, but also when they are in a place where he
may usually send them (as when horses and cattle feed on common land), or in
a place where they may be lawfully deposited by him, e.g., when he buries
money or ornaments in his own land, or puts them in any other secret place of
deposit.

Section 31 - "A will".

The words "a will" denote any testamentary document.
'Will' is the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death.