S. 34. 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.  

NOTES.—The object of section is two fold: 

1. Many times it becomes 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. Where parties go with a common purpose to execute a common object, each and everyone 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. All are guilty of the principal offence, not of abetment.  

2. The presence of accomplices gives encouragement, support and protection to the person actually committing an act.  

Principle.—This section do not create substantive offence. The present section is used along with other sections relating to substantive sections mentioning offences.  

As per this section if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually.  

In case a person is not aware of the intention of his companion to commit offence is not liable, though he has joined his companion to do an unlawful act. 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.  

The Court can take recourse to s. 34 even if the section is not specifically mentioned in the charge.  

Participation.—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 offence in some way or other at the time crime is actually being committed.  

In offences involving physical violence. normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which  may be done at different times and places.   

The Supreme Court has reiterated that even though the other accused persons stand acquitted and even though there is no evidence that the convict accused caused one of the fatal injuries, he cannot escape conviction under s. 302 read with s. 34, IPC when his participation with the three other assailants in the  attack on the deceased has been established beyond reasonable doubt.  

Essentials.—Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that   

1. there was common intention in the sense of a pre-arranged plan between the two, and   
2. the person sought  to be so held liable had participated in some manner in the act constituting the offence.  

Unless common intention and participation are both present  this  section cannot apply.  

1. 'Common intention'.—The most important element of 'Common intention' implies a pre-arranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Common intent comes into being prior to the commission of the act in point of time, which need not be a  long gap.  The common intension to bring about a particular result may well develop on the spot as between a number of persons with reference to the facts of the case and circumstances of the situation.  A common intention may develop on the spot, it must, however, be anterior of time to the commission of the crime showing a pre-arranged plan and prior concert.  

It must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by 

him alone.  

Common intention presupposes prior concert. It requires a prearranged plan because before a man 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. Accordingly there must have been a prior meeting of minds. Several reasons can simultaneously attack a man and each can have the intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused let none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case.   

Common and Similar Intention: There is difference between common and similar intention and it has not to be confused as one and the same thing. The crucial circumstance is tha the the pre arranged plan must precede the act constituting the offence.   

To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and share by them.  

It is not necessary for bringing a case within the scope of s. 34 to find as to who in fact inflicted the fatal blow. A conviction under the section read with the relevant substantive provision can be made when the ingredients required by the section are  satisfied and it is not necessary to mention the section number in the judgment.  

Proof of common intention.—Although it is very difficult to  prove even intention, therefore, it is all the more difficult  to show the common intention of a group of persons. But however be the task, the prosecution must lead evidence of facts, circumstances, conduct of the accused from which their common intention can be safely gathered. In most cases it has to be inferred from the act or conduct or other relevant circumstances of the case in hand. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given 

or the injuries caused by some of them, the acts  done by others to assist those causing the concerted  conduct subsequent to the commission of the offence, for instance all of them left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence of which they could be convicted.  

Distinction between s. 34 and s. 149, IPC.—Though both these sections relate to the doctrine of vicarious liability and sometimes overlap with each other there are substantial points of difference between the two.   

They are as under:—  

1. S. 34 does not by itself create any specific offence whereas s. 149, IPC, does so.   
2. Some active participation, especially in a crime involving physical violence is necessary under s. 34 but s. 149, IPC, does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in the preparation and commission of the crime.  
3. S. 34 speaks of common intention but s. 149, IPC, contemplates common object which is undoubtedly wider in its scope and amplitude than intention. If the offence committed by a member of an unlawful assembly 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, all other members of the unlawful assembly would be guilty of that offence under s. 149, IPC, although they may not have intended to do it or participated in the actual commission of that offence.  
4. S 34 does not fix a minimum number of persons who must share the common intention whereas s. 149, IPC, requires that there must be at least five persons  who must have the same common object.  

Common intention developing in course of transaction.— It is not necessary that there must be a prior conspiracy or premeditation for common intention. The common intention can be formed in the course of occurrence. The law is well settled in this regard.  

CASE LAW ON THE SUBJECT:  

The Hon’ble Supreme Court of India in the case titled as Sunny Kapoor  Vs. State (UT of Chandigarh) in Appeal (crl.) 871 of 2005 decided on 05/05/2006 has held:  

A finding that the assailant concerned had a common intention with the other accused, is necessary for taking resort to Section 34. In a recent decision in Munna Chanda vs. State of Assam , JT 2006 (3) SC 366, (2006) 3 SCC 752, this Court observed as under:  

"The concept of common object, it is well known, is different from common intention. It is true that so far as common object is concerned no prior concert is required. Common object can be formed at the spur of the moment. Course of conduct adopted by the members of the assembly, however, is a relevant factor. At what point of time the common object of the unlawful assembly was formed would depend upon the facts and circumstances of each case.  

It is, thus, essential to prove that the person sought to be charged with an offence with the aid of Section 149 was a  member of the unlawful assembly at the time the offence was committed.  

The deceased was being chased not only by the appellants herein but by many others. He was found dead next morning. There is, however, nothing to show as to what role the appellants either conjointly or separately played. It is also not known as to whether if one or all of the appellants were present, when the last blow was given. Who are those, who had assaulted the deceased is not known.  

At whose hands he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian Penal Code is, therefore, attracted."  

In absence of any evidence that all of them were present at the time when the deceased was strangulated, a charge under Section 302/34 could not have been brought home.   

If you are looking for Comprehensive notes: Download Notes from here

Here is a list of subjects included in the study material:

Invest in your legal education today with LegalStix Law School's digital product notes. Empower yourself with knowledge, excel in your exams, and pave the way for a successful legal career.