Law

Substantive Criminal Law

Group Liability in the Indian Penal

Code: Common Object and Common
Intention
 Group Liability in the Indian Penal Code: Common Intention and Common
Object
QUADRANT 1

Description of Module
Subject Name Law
Paper Name Substantive Criminal Law
Module Name/Title Group Liability in the Indian Penal Code:
Common Object and Common Intention
Module Id Module 04
Pre-requisites Clarity in the concept of mens rea and actus
reus would be helpful.
Objectives Purpose of this module is to:

(a) Discuss law relating to common

intention and common object

(b) Discuss difference between

common object and common
intention

(c) Discuss situations in which a person

can become liable under provisions
for common intention and common
object.

Keywords Intention, object, criminal act, assembly,

unlawful object.

QUADRANT 2: E-TEXT

Introduction: Normally criminal liability is individual liability because it requires proof of both
mens rea and actus reus. But crime need not be done individually. Often criminal acts of serious
nature are done in a group. When several persons are involved in prosecution of a criminal act, it
becomes difficult to distinguish the role of different participants if the result of all actions
combined is the intended criminal consequence. If A,B and C make a plan to kill D and in
prosecution of the crime, A buys a poison, B mixes it in food and C gives it to D as a result of
which D dies, it would be unjust to hold only C liable for murder. To deal with such cases,
criminal law has provisions for joint liability or group liability or vicarious liability. As a result
of this law a person becomes vicariously liable for the result of the action of the group of which
he is a member. Law for joint criminal liability is present in different provisions of the Indian
Penal Code (IPC) e.g., ss, 34 to 38, 149, 120A, 121A, 396 and 460. In this module we would
discuss only provisions which fix criminal liability on the basis of common intention and
common object, that is, ss. 34 to 37 and s.149.

Common Intention: Intention means guilty mind, ‘purpose of desire to bring about a
contemplated result or foresight that certain consequences will follow from the conduct of the
person.’1 When two or more persons share this guilty desire it is common intention. And when a
criminal act is done by such persons s. 34 makes them liable for the act, irrespective of what role
one person individually played in that action. It states,
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.2

S. 32 states that ‘acts done extend also to illegal omissions.’ ‘The word “act” denotes as well a
series of acts as a single act: the word “omission” denotes as well a series of omissions as a
single omission’.3

Vicarious liability under s. 34 is fixed on a member of group when

(i) A criminal act is done in furtherance of ‘common intention’ of members of the group

(ii) The member has participated in some manner in the happening of the criminal action

1
K.D. Gaur, Textbook on the Indian Penal Code (Universal Law Publishing, 2009) p. 49
2
SS. 35, 36 and 37 elaborate on this principle and fix liability on different persons of a group on the basis of
common intention. S. 35 states, ‘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.’ S. 36 states, ‘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.’ S. 37 states, ‘ 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.’
3
S. 33 IPC.
 Act in Furtherance of
Common Intention Common Intention

Participation of the
Accused in the Act

What is Common Intention: Common intention denotes meeting of mind of the persons
accused of an offence. This requires prior concert. In Surendra Chauhan v. State of Madhya
Pradesh4 a doctor was neither competent to terminate pregnancy nor he had the approval of the
government. His clinic lacked the basic instruments necessary for the purpose. Victim was taken
to that clinic by a person for termination of the pregnancy of the victim and she died in the
process. Doctor and the person who took her to clinic were held liable for the death of the victim
as the crime was committed in furtherance of the common intention. In this case the two accused
knew that the clinic did not have the facility for termination of pregnancy and the doctor did not
have the competence to complete the procedure without hazard. Still they concerted and carried
on the termination of pregnancy of the victim. Hence there was common intention of the two
accused to undertake a procedure illegally and in furtherance of their common intention they
subjected the victim to the abortion process as a result of which the victim dies. Hence there was

4
AIR 2000 SC 1436.
common intention, an act was done in furtherance of the common intention and each of the two
accused participated in the criminal act. One brought the victim to the clinic and the other
applied the procedure on the victim.

Although common intention means meeting of mind which requires prior concert, it can also
develop on the spot after the offenders have gathered there. In Kripal Singh v. State of Uttar
Pradesh5 there was a dispute over land between the accused and the victim. One morning the
three accused tried to stop labourers from working in the field which the labourers tried to resist.
When the victim intervened two accused hit him with sharp weapons. Third accused stabbed the
victim with spear blade which struck the victim in jaw. The blow injured the brain of the victim
who died on the spot. The court held that the three accused were liable under s. 326 read with s.
34. However, third accused alone was liable for murder. The common intention which developed
on the spot was to attack the victim with sharp weapons. Other two accused did not intend
murder of the victim. Another example which seems close is Lallan Rai v. State of Bihar6
wherein court quoted with approval following observation of the Supreme Court in Suresh v.
State of U.P.7
There is no gainsaying that a common intention presupposes prior concert, which requires a pre-
arranged plan of the accused participating in an offence. Such preconcert or preplanning may
develop on the spot or during the course of commission of the offence but the crucial test is that
such plan must precede the act constituting an offence. Common intention can be formed
previously or in the course of occurrence and on the spur of the moment. The existence of
common intention is a question of fact in each case to be proved mainly as a matter of inference
from the circumstances of the case.8

In Lallan Rai vs. State of U.P. victim alongwith three other persons was returning from Taraiya
Bazar to his village on the day of Holi festival. 14 accused were sitting at the house of Rajendra
Rai variously armed with weapons. At the instigation of Rajendra Rai all accused persons
encircled the victim and his companions and killed the victim. Defence unsuccessfully tried to
plead that the accused should be tried for their individual actions. It could not be proved that 14
accused had assembled with the purpose to kill the victim because there was no evidence that
they knew that he would be returning at that time through that path. It was found in trial that the
plan to kill developed all of sudden. That is why application of s. 149 failed because the
assembly was not unlawful. But the Supreme Court applied s. 34 and held the accused persons

5
AIR 1954 SC 706.
66
(2003) 1 SCC 268
7
(2001) 3 SCC 673
8
Id. 386.
liable for murder because they shared common intention to kill the victim and this common
intention had developed on the spot.9

Common intention is different from same or similar intention. ‘To constitute common intention it
is necessary that the intention of each person be known to all the others and be shared by
them.’10 In Mahboob Shah v. Emperor11 Allah Dad and few others were trying to collect reeds
from the bank of Indus river. They were warned by Mahboob Shah against collecting reed from
lands belonging to him. Ignoring the warning the deceased collected reeds but was stopped by
Qasim Shah, nephew of Mahboob Shah while he was placing them on boat. Qasim Shah was hit
by the victim by a bamboo pole. On hearing Qasim Shah’s cries for help, Mahboob Shah and his
son Wali Shah came armed with their guns. Wali Shah fired at the victim who died instantly and
Mahboob Shah fired at another persons causing him some injuries. Lahore High Court sentenced
Mahboob Shah with murder of victim under s. 302 read with s. 34. But on appeal Privy Council
set aside the conviction for murder for Mahboob Shah stating that common intention required
pre-arranged plan and it has to be proved that criminal act was done in concert pursuant to pre-
arranged plan. Here the two accused might be having same or similar intention but not common
intention and since firing of Mahboob Shah did not kill anyone he was not held liable for murder
by the application of s. 34.

What Amounts to Participation: An essential ingredient of liability under s. 34 is participation

of the accused in the commission of the crime. In State of Orissa v. Arjun Das Agarwal12 some
persons entered the hotel of the victim after 10 pm and picked up quarrel with him. One of the
accused stabbed him and others gave blows. Fifth accused, Arjun Das Aggarwal was standing
outside the hotel on the road and instigating the other accused to finish the victim soon. Supreme
Court held four accused liable under s. 302 read with s. 34 but did not hold Arjun Das Agarwal
liable for murder because he neither went inside the hotel of the deceased nor took any part in the
commission of the murder. He was only standing outside and instigating and there was no
evidence to show that more blows were given to the victim due to instigation of the respondent.
This was a case where common intention had developed on the spot. In direct contrast to this
case is the decision of the Privy Council in Barendra Kumar Ghosh v. Emperor13 which was
preplanned. In this case four men attacked the office of the post master while he was counting
money. Three of them entered the office and demanded the money. Thereafter they opened fire
at postmaster and fled with the money. Appellant who was one of the party was standing outside
the office all this time. He was visible from inside and could see what was happening inside.

9
See also State of Orissa v. Arjun Das Agarwal AIR 1999 SC 3229
10
K.D. Gaur, , Textbook on Indian Penal Code(Universal Law Publishing, 2009) p. 36.
11
AIR 1945 PC 118.
12
13
AIR 1925 PC 1.
Defence of the appellant was that he was frightened and he did not participate in the crime and
was merely standing outside the office. Rejecting his appeal, Privy Council stated that ‘they also
serve who stand and wait.’ In this way his participation was sufficient to make him vicariously
liable for the actions of the other participants in the group. Whether the accused had participated
or not has to be decided on the basis of facts surrounding the case. In certain cases helpless
spectators have not be held to be liable under s. 34. For example in State of Uttar Pradesh v.
Sahrunnisa14 three boys of the family were being sacrificed on the superstitious belief of a father
and daughter that they would regain life. Mother of the boys and her son- in-law (husband of her
daughter) were helpless spectators. Two boys died in this while the third somehow escaped
death. Dismissing the appeal of the State, the Supreme Court held that a poor muslim lady would
normally be too afraid of her husband and daughter who were mistakenly convinced of
supernatural occurrence and hence dared not oppose their actions. This cannot be termed as her
having common intention to commit the crime nor can her not opposing be termed as
participation in the crime.

Once it is established that a crime has been committed in furtherance of common intention of all
the accused, it is irrelevant what was the nature of participation of particular accused. He would
be liable for the crime as if he alone committed the crime. If two persons attack someone with
the common intention to kill him they both would be liable for murder read with s. 34 even
though death was caused by the wound given by one of them only.15 In Krishnan v. State16 the
victim was attacked by four accused. They had earlier also threatened her. One day when the
deceased refused to comply with their demand, they attacked her and her brother armed with
sharp weapons. Four accused gave blow at different parts of the body. One gave blow on the
right side of the head of the deceased with aruval. This injury proved to be fatal. Holding all the
accused liable for murder under s. 302 read with s. 34 the Supreme Court held that when several
persons participate in a criminal act with common intention it is irrelevant what was the
individual role of a participant. All would be held liable for the crime as if it was done by him
alone.

14
AIR 2009 SC 3182
15
Israr v. State of Uttar Pradesh AIR 2005 SC 249.
16
(2003) 7 SCC 56.
Common Object: S. 141 of IPC tells us that an assembly of five or more persons is called an
‘unlawful assembly’ if the common object of the assembly is one of the five objects listed in that
provision.17 An assembly of five or more persons may be unlawful since the inception if it is
formed with unlawful object or may become unlawful later when its object became unlawful
under s. 141.18 If any person joins or continues in an unlawful assembly knowing it to be an
unlawful assembly is said to be a member of an unlawful assembly.19

S. 149 of IPC fixes vicarious liability for members of unlawful assembly. ‘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

17
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 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 d what he is not legally bound
to do, or to omit to do what he is legally entitled to do.
18
Explanation S. 141.
19
S. 142
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.’

Common Object & Its Difference from Common Intention: First question that arises is what
is common object? In Gangadhar Behra v. State of Orissa20 Pasayat, J. defined common object
in following terms:

The word “object” means the purpose or design and, in order to make it “common” it must be
shared by all. In other words, the object should be common to the persons, who compose the
assembly, that is to say, they should all be aware of it and concur to it.21

Again he states,
An object is entertained in the human mind, and it being merely a mental attitude, no direct
evidence can be available and, like intention, has generally to be gathered from the act which the
person commits and the result therefrom. Though no hard and fast rule can be laid down under the
circumstances from which the common object can be culled out, it may reasonably be collected
from the nature of the assembly, arms it carries and behavior at or before or after the scene of
incident.22

Distinguishing common object from common intention he states,

“Common object” is different from a “common intention” as it does not require a prior concert
and a common meeting of minds before the attack. It is enough if each has the same object in view
and their number is five or more and that act as an assembly to achieve that object.23

Referring to Barendra Kumar Ghosh v. Emperor24 , S.K. Das, J. in Chikkarange Gowda &Ors.
v. State of Mysore25 distinguished between common object and common intention in following
words,
In Barendra Kumar Ghosh v. Emperor the distinction between Sections 149 and 34, Penal Code
was pointed out. It was observed that Section 149 postulated an assembly of five or more persons
having a common object, namely, one of those objects named in Section 141, and then the doing
of acts by members of the assembly in prosecution of that object or such as the members knew
were likely to be committed in prosecution of that object. It was pointed out that there was a
difference between common object and common intention; though the object might be common,

20
(2002) 8 SCC 381. See also Shivjee Singh v. State of Bihar(2008) 11 SCC 631.
21
Id. pp. 396-397.
22
Id. 398.
23
Id. p. 397.
24
AIR 1953 PC 118
25
AIR 1956 SC 731
 the intention of the several members might differ. The leading feature of Section 34 is the element
of participation in action, whereas membership of the assembly at the time of the committing of
the offence is the important element in Section 149. The two sections have a certain resemblance
and may to a certain extent overlap, but it cannot be said that both have the same meaning.26

Difference between common object and common intention can better be understood with the
help of the facts and decision in this case where both ss. 34 and 149 were mixed. A mob of about
100 persons rushed towards a house at noon where two brothers Putte Gowda and Nanje Gowda
were found. The mob sprinkled kerosene oil on the roof and started burning the house. When the
inmates of the house came out the two brothers were brutally assaulted and this resulted in their
death. Four appellants were members of the mob. Appellant 1 had hit Putte Gowda on Abdomen
with a cutting instrument, appellant 4 hit Putte Gowda on the knee with a chopper. Second
appellant hit Nanje Gowda with a spear and third appellant hit Nanje Gowda on the head with
axe. The appellants alongwith several others were charged under section 148, 302 and 302 with
ss. 34 and 149 on the ground that the common object of the assembly was to kill Putte Gowda.
However, it was found that the common object of the assembly was only chastisement of Putte
Gowda. The question was whether four appellants can be held liable for separate common
intention of causing death of Putte Gowda? The Supreme Court held that appellant 1 and 4 could
not be held guilty of murder on the principle of joint liability under section 34 because they were
not given any notice and reasonable opportunity to present their case on separate common
intention of three persons of causing death of Putte Gowda and Nanje Gowda as separate from
common object of the unlawful assembly which was chastisement only. Hence they had to be
judged for their individual actions which went beyond the common object of the unlawful
assembly. None of the injuries caused by the two appellants was fatal in nature. Hence they were
help liable under ss. 326 and 148 IPC only. Appellant 2 was charged with causing spear wound
to Nanje Gowda which was not found to exist in the medical evidence, hence he was also
charged only under s. 148. Appellant 3 had hit Nanje Gowda on head with axe which was found
to sufficient to cause death and hence he was held guilty under section 302 IPC.

Difference between ss. 34 and 149 was elaborated in Nanak Chand v. State of Punjab27 also
where the prosecution had argued that s. 149 does not create any offence and merely provides for
constructive guilt similar to s. 34 of the IPC. Negating the contention of the prosecution, the
Supreme Court stated that section 34 is merely explanatory and does not create any specific
offence but same is not true about s. 149.
The principal element in section 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 section 34 provides that each one of

26
Id at 735
27
1955 AIR 274
 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 section 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 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.28

The court referred to the decision of Lord Sumner in Barendra Kumar Ghosh vs. Emperor29
where it was pointed out that element of participation in action was the leading feature of s. 34
and it was replaced in s. 149 by membership in assembly at the time of committing of the
offence.

28
Id at 277
29
AIR 1943 PC 118
When Membership Creates Vicarious Liability: The second issue is when does a member of
unlawful assembly become vicariously liable for actions of other members of the assembly?
Member of an unlawful assembly becomes liable under S. 149 under two conditions:30

(a) It is an offence committed by a member of the unlawful assembly in prosecution of the

common object of that assembly; or

(b) It is an offence such as the members of that assembly knew to be likely to be committed
in prosecution of that object.

In the first condition an action is committed by an unlawful assembly in direct prosecution of the
common object of the assembly. ‘The purpose for which the members of the assembly set out or
desired to achieve is the object.’31 In the second condition although the action was not the object
of the unlawful assembly, member of the unlawful assembly knew it likely to be committed in
prosecution of the object of the assembly. ‘The word “knew” used in the second branch of the
section implies something more than a possibility and it cannot be made to bear the sense “might
have been known”. Positive knowledge is necessary.’32

In Chikkarange Gowda v. State of Mysore, members of the unlawful assembly were held not
liable under s. 149 for the murder committed by one accused because it was not the common
object of the assembly. Common object of the assembly was only to chastise the victim.
Similarly in Bhimrao v. State of Maharashtra33 appellants were members of the unlawful
assembly who had gone to the house of the victim to assault him Appellants stayed outside the
house and some of the members of the assembly went inside the house and killed the victim. The
court refused to hold appellants liable for murder stating that the victim was killed by some of
the members of the unlawful assembly who formed a separate common object after entering the
house. Appellants can be liable only for the common object of causing assault on the victim. But
in Umesh Singh &Anr. v. State of Bihar34 appellants were held liable under s. 149. In this case 20
men armed with lathis, bhala and gun came to the ‘Kahlihan’ of Bhola Singh where he and other
members of his family were thrashing paddy. They tried to take away the paddy. One of the
members of the unlawful assembly threatened that any resistance would be met by such action
which might even result in death. One member of the assembly hit Bhola Singh with lathi and
another opened fire. There was firing by other members of the assembly also. Bhola Singh and
his one and half year old son died. Holding the appellants guilty under s. 302 read with s. 149
and other provisions of the IPC, the Supreme Court stated that an accused whose case falls under

30
Chkkarange Gowda v. State of Mysore para 10 citing Queen v. Sabed Ali 20 Suth WR (Cr)5 (A) 1873.
31
Gangadhar Behra v. State of Orissa p. 398.
32
Id. at 398
33
(2003) 3 SCC 37.
34
(2000)6 SCC 89.
s. 149 cannot take the defence that he did not with his own hand commit the offence for which he
was prosecuted.
Everyone must be taken to have intended the probable and natural results of the combination of
the acts in which he had joined. It is not necessary in all cases that all the persons forming an
unlawful assembly must do some overt act. Where the accused had assembled together, armed
with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is
not obliged to prove which specific overt act was done by which of the accused. Indeed the
provisions of Section 149 IPC, if properly analysed will make it clear that it takes an accused out
of the region of abetment and makes him responsible as a principal for the acts of each and all
merely because he is a member of an unlawful assembly.35

It has, however, to be proved by the prosecution that the offence with which accused has been
charged was either the common object of the unlawful assembly or the accused knew that it was
likely to be committed in prosecution of the common object. In Daya Kishan v. State of
Haryana36 there was a dispute regarding land between the appellant and one Bhalle Ram. One
day there was an altercation between one of the sons of appellant and nephew of Bhalle Ram,
Sanjay in which son of appellant threatened to burn Sanjay. After the altercation, five persons
including appellant and his two sons visited came to the shop of Sanjay armed with lathis. One of
the member of unlawful assembly Pohla had gun. When they arrived at the shop Pohla at once
opened fire at Rajesh who used to sit at shop with Sanjay. Rajesh died of the wound. Other
members of the unlawful assembly injured Bhalle Ram and his family members. The Supreme
Court refused to convict appellant and his sons under s. 302 with s. 149. According to the court
facts did not show that it was the common object of the assembly to kill Rajesh. The altercation
was with Sanjay. Other members of the unlawful assembly had only injured Bhalle Ram and his
family members. The court held that it was also not possible for the members of the unlawful
assembly to know that it was likely that death of Rajesh would be caused in prosecution of the
common object. This could have been the case if the gun was fired at Sanjay and Rajesh had
gone to his rescue and had got hit in the process. But the facts were reverse. Therefore appellant
were convicted under s. 323 read with s. 149 and s. 148 only.37

35
Id at 93.
36
(2010) 5 SCC 81
37
Also see Roy Fernanedes vs. State of Goa & Ors.(2012) 3 SCC 221