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Indian Penal Code
PROJECT REPORT
Submitted to:
Ms. Anthim
UILS, PU
Chandigarh
Submitted by:
Tanishq Gaba
Roll No. 162/
B.A. LLB.(Hons.)
Section-C
Common Intention with special reference to
Mahboob Shah v. Emperor (AIR 1945 PC 118 ).
ACKNOWLEDGEMENT
At the outset, I wish to thank the Almighty God for his immense blessings and pray to him to continue to guide me on the path of my committed calling.
I deem it my proud privilege to express my indebtedness and sincere thanks to all those who have in various ways, helped me in the successful completion of the project and without their invaluable help this project would not have been a reality.
I convey my sincere gratitude to my teacher, Ms. Anthim , University Institute of Legal Studies, Chandigarh , who has chosen me for this project and also provided me help with knowledge, inspiration and information. It would not be possible for me to complete this project without her encouragement, guidance, valuable suggestions and affectionate help.
I owe my regards to the entire faculty of the University Institute of Legal Studies, from where I have learnt the basics of Law and whose informal discussions, intellectual support helped me in the entire duration of this work.
Tanishq Gaba Roll No. 162/ B.A. LLB. (Sec- C) 5 th^ Semester UILS, Panjab University Chandigarh
INTRODUCTION
An individual may commit a crime with his own hands or through an innocent agent. He may share in the commission of the offence though he does not commit it personally. If a person personally commits a crime, there will not be much difficulty in ascertaining his culpability. However, if he shares in the commission of a crime, it becomes comparatively difficult to find the extent of 'participation' or 'contribution' in the commission of the offence and his corresponding 'criminal liability'. In offences involving more than one person, a very important question to be considered, therefore, is as to the liability of various persons participating in the offence, especially when they have committed different act s in the course of committing the same offence. However, the IPC contains a few provisions that lay down some basic rules of criminal liability of individuals who commit a crime in a group or share with others the commission of a crime. Sections 34 to 38 of the IPC govern criminal liability of individual members of such a group for accomplishing the criminal act through a concerted criminal endeavor. In other words, these provisions deal with liability of individuals for their 'co-operative criminal act'. Section 34 deals with liability of an individual for sharing 'intention' when 'several persons' and participating in the 'criminal act' done 'in furtherance of the common intention of all'.
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.”
Before we begin a discussion on the scope and ambit of the section, it is important to note that the term 'act' referred to in s 34 has to be read in the context of s 33, IPC, which reads as follows:
“Section 33. 'Act', 'Omission'.--The word 'act' denotes as well a series of act s as a single act: the word 'omission' denotes as well a series of omissions as a single omission.”
The original version of s 34 did not contain the terms, 'in furtherance of the common intention'. It was only through an amendment in 1870^1 , that the principle of joint liability came to be incorporated in the IPC in the form as we know it today.
(^1) The IPC (Amendment) Act, 1870 (27 of 1870).
INGREDIENTS OF SECTION 34
There are three main ingredients of the section:
(1) A criminal act must be done by several persons;
(2) The criminal act must be to further the common intention of all, and
(3) There must be participation of all persons in furthering the common intention.^2
NATURE OF COMMON INTENTION
There are several dimensions to the discussion on the nature of common intention. These are: (1) The common intention should be shown to be premeditated;^3 i.e., it must be shown that there was a prior meeting of minds which activated the common intention leading to the commission of the criminal act. However, there may be incidents in which common intention may develop on the spot, after the offenders have gathered.^4
(2) Proof of common intention will rarely be available directly. It has to be culled out from the facts and circumstances of the case.^5
(3) There is a difference between 'common intention' and 'same or similar' intention. Depending on the nature of the intention, not only will liability differ, but also the nature of conviction and sentence to be awarded. Section 34 can be invoked only when the accused shares a common intention and not when they share a similar intention.^6
(4) Unless common intention is proved, individual offenders will be liable only for their individual acts. The mode of proving common intention should be such as to exclude doubts about the prevalence of the common intention mobilising the offenders into action. However, if there is any doubt, then the benefit of doubt should be given to the accused.^7
(^2) Parichhat v. State of Madhya Pradesh , AIR 1972 SC 535. (^3) Devilal v. State of Rajasthan , AIR 1971 SC 1444. (^4) Asoke Basak v. State of Maharashtra , (2010) 10 SCC 660. (^5) Ram Kumar v. State ofMadhya Pradesh , (2014) 13 SCC 128. (^6) State of Uttar Pradesh v. Rohan Singh , (1966) Cr LJ 2884 (SC). (^7) Brijlala Prasad Sinha v. State of Bihar , AIR 1998 SC 2443.
It could arise and be formed suddenly. For example, if a man shouts at bystanders asking them to help him to kill a particular person, and they through their acts or speech, extend their support to him and also actually join him; in such a case, there has been a necessary meeting of minds; however hastily formed or rudely conceived, a pre-arranged plan has come into existence. Since pre-arrangement and pre-meditated concert are essential ingredients to the offence of joint liability, in such a situation, the acts of the various persons will be liable for coverage under the provisions of s 34, IPC.
However, in such cases, the court held, there has to be cogent material to arrive at the finding to hold all the accused vicariously liable for the criminal act s by invoking s 34. If this is not available, then the individual accused will be liable only for their individual acts.
COMMON INTENTION IS DIFFERENT FROM SAME OR SIMILAR INTENTION
This principle came to be considered in Dukhmochan Pandey v State of Bihar.^11 Common intention, thus, does not mean similar intention of several persons. They are not synonymous. They are two different concepts of law. It is necessary that the intention of each one of 'several persons' be known to each other for constituting 'common intention'. Same intention of several persons does not constitute common intention unless they share it with each other.^12 Therefore, in cases where all persons having same or similar intention are physically present at the same time and at a place where offence is being committed are not jointly responsible for the offence committed. Each one will only be liable for his acts.^13
PARTICIPATION IN THE CRIMINAL ACT
While participation in action is a necessary condition for liability under s 34, it is not necessary in all cases for participation to be in the form of physical presence. In Jaikrishnadas Manohardas Desai v State of Bombay,^14 it was explained that in offences involving physical violence, presence of the accused, apart from participation, was essential. However, in other cases involving non-physical violence, like in cases of misappropriation, cheating and the like, physical presence could not be a condition precedent to come to a finding of joint liability.
(^11) Dukhmochan Pandey v State of Bihar , AIR 1998 SC 40. (^12) Dajya Moshaya Bhil v. State of Maharashtra , AIR 1984 SC 1717. (^13) Papu Alias Susanta Das v. State , ( 1999 ) Cr LJ 738 (SC). (^14) Jaikrishnadas Manohardas Desai v State of Bombay , AIR 1960 SC 889.
For applying s 34, it is not necessary to show, as a rule, some overt act on the part of the accused.^15 The establishment of an overt act is not a requirement of law to allow s 34 to operate. A criminal act done in furtherance of intention of all by an accused need not be overt, even a deliberate and conscience covert act is enough to bring such a person within the ambit of s 34.^16
MAHBOOB SHAH V. EMPEROR
Case No. – Privy Council Appeal No. 64 of 1944.
Citation- AIR 1945 PC 118.
Judges - Sir John Beaumont, Sir Madhavan Nair, Justice Lord Thankerton Advocates – India Office, Crown, Dold, Douglas Grant, Crown, B.J. McKenna, Phineas Quass Decided on - 31 January, 1945
Relevant Sections – Section 34, Indian Penal Code.
FACTS OF THE CASE
The brief facts of the case are:
On the 25th August 1943, one person named Allahdad i.e., the deceased in the present case, along with few others left their village and took a boat to go to the bank of the river Indus to cut and collect reeds on the bank of river Indus. When they had travelled for about one mile down the stream of the river, they came across Mohammad Hussain Shah bathing on the bank of the river. Hussain Shah was the father of Wali Shah. Hussain warned Allahdad and his companions against collecting reeds from the land that belonged to them. Despite the warning, Allahdad and his companions collected the reeds and commenced their return journey carrying with them the bundled of collected reeds. On their way back they came across Ghulam Shah who was the nephew of Hussain Shah. Ghulam Shah asked them to return the reeds collected from the land of his uncle but they refused to return the reeds.
They started arguing and then Ghulam Shah got hold of the rope of the boat and pushed Allahdad and gave him blow with a stick which warded off. Allahdad then picked up a
(^15) Hari Ram v. State of Uttar Pradesh , (2004) 8 SCC 146. (^16) State of Uttar Pradesh v. Pavitri Devi , (2001) Cr LJ 1462 (SC).
2. High Court
Aggrieved by the judgement of Court of Session , both Mahboob Shah and Ghulam Shah appealed in the Lahore High Court. The High Court held that Ghulam Quasim had no common intention of killing any member of the complainant party when he went to the bank of the river in order to demand the bundles of reeds which had been collected from his uncle's lands and thus, he was acquitted of all offences.
Mahboob Shah and Wali Shah fired simultaneously in the direction of the complainants killing Allah Dad on the spot and causing injuries on the person of Hamidullah Khan. It is difficult to believe that when they fired the shots they did not have the common intention of killing one or more of the complainant party. If so, both of them are guilty of murder notwithstanding the fact that the fatal shot was-fired by only one of them, namely, Wali Shah, absconder. Common intention to commit the crime came into being when appellant and Wali Shah fired the shots.
Ghulam Shah was acquitted on the ground that he did not fired at anyone. It was Wali Shah who fired the shot. But Mahboob Shah was sentenced to death under section 302 read with section 34 of the IPC for Allahdad's murder.
THE PRIVY COUNCIL’S JUDGEMENT – RATIO DECIDENDI AND OBITER DICTA
The Privy Council set aside the appellant’s conviction for murder and laid down several principles to expound upon the intent behind the incorporation of Section 34 in the Indian Penal Code. The Privy Council held that there were no circumstances in the given case from which it could be inferred that there was an existence of a pre-arranged plan between Mahboob Shah (Appellant) and Wali Shah to murder Allahdad.
The principles laid down are as follows:
- The essence of liability under Section 34 is to be found in the existence of a common intention leading the accused to commit an offense in furtherance of such intention.
- To connect several accused together under Section 34, it must be shown that one of the accused committed an offense in furtherance of the common intention and only 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.
- Common intention pre-arranged plan and to convict the accused of an offense applying the section it should be proved that criminal act was done in concert according to the pre-arranged plan.
- In most cases it is very difficult, if not impossible, to procure direct evidence to prove the intention of the person and it has to infer from the conduct of the person and other relevant circumstances of the case.
- The inference of a common intention as provided under Section 34 of the Indian Penal Code should never be reached unless there exist such compelling circumstances and such common intention is a necessary inference deductible from the circumstances of the case.
- Care must be taken not to confuse same intention with common intention, even though the line separating the two is very thin, but yet they are two different concepts and for attaching liability under Section 34 of the Indian Penal Code, the common intention is a necessary pre-requisite along with committing an offense in furtherance of such common intention.
Privy Council further held that Mahboob Shah (Appellant) and Wali Shah had the same intention to rescue Ghulam Shah, and they intended only to carry out the rescue operation of Ghulam Shah even if they needed the guns to do the same. It was in furtherance of this same intention to rescue Ghulam Shah that Mahboob Shah picked Hamidullah and Wali Shah picked Allahdad and shot them. There was no existence ever of a common intention or a pre- arranged plan to murder Allahdad.
