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Principle of Joint Liability
“A mortal stroke, though given by one of the party, is deemed in the eyes of the law to have been given by every individual present and abetting. The person actually giving the stroke is no more than the hand or instrument by which the other strikes.”
The principle of vicarious/ joint liability is stated in Sections 34-38 and 149 of the Indian Penal Code, 1860. Besides these sections, there are other sections in the IPC laying down joint and constructive liability:
Criminal conspiracy (Secs. 120A and 121A).
Dacoity with murder by five or more persons (Sec. 396).
Lurking house-trespass or house-breaking by night (Sec. 460).
A fundamental principle widely acknowledged in criminal jurisprudence is that courts cannot differentiate between co-conspirators, nor can they probe into the specific role played by each individual in the crime.
When individuals come together with a shared intention to achieve a common objective, each one becomes accountable for the actions of all others in pursuit of that shared goal. Since the purpose is mutual, so too must be the accountability.
Common Intention - Principle
Sec. 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 is done by him alone.”
Section 34 functions as a rule of evidence and does not establish a substantive offence. A charge invoking Section 34 merely serves as a means of informing the accused that the principle of joint liability is being invoked. Its sole purpose is to establish the liability of co-accused individuals.
The rationale or justification behind Section 34 lies in rejecting the notion that the more people involved, the less culpable each individual becomes.
In the eyes of the law, the gravity of a crime remains unchanged regardless of the number of perpetrators involved, and liability cannot be apportioned differently due to the difficulty in pinpointing the separate participation of each individual.
Allowing such redistribution of liability would undermine the intended punishment set by the law and could potentially foster group criminal activity.
Section 34 exemplifies what is commonly known as constructive criminality, where all individuals are held liable for the actions of one or some of them. Similarly, Section 149 also addresses constructive criminality.
Section 34 serves as an interpretative provision, encapsulating the principle that if two or more persons have a shared intention to commit an act jointly, it is tantamount to each of them individually committing it. When the intention or purpose is shared, so too must be the responsibility.
Section 34 was established to address cases where it is challenging to distinguish between the actions of individual members of a group or to ascertain the exact role played by each member.
In such scenarios, all individuals are deemed guilty because the presence of accomplices provides encouragement, support, and protection to the person actually committing the act.
Essential Ingredients of Section 34
According to Section 33 of the Indian Penal Code, the term "act" encompasses both a series of acts and a single act, while "omission" includes both a series of omissions and a single omission. Consequently, under Section 33, a criminal act as defined in Section 34 may consist of a series of acts.
When a crime is perpetrated by several persons in furtherance of the common intention of all, each individual, regardless of the nature or extent of their contribution, becomes liable for that act. This notion of "that act" refers to the unified criminal behaviour that would render an individual punishable if carried out by them alone in an offence.
In the landmark case of Barendra Kumar Ghosh v Emperor, known as the "Shankari Tola Post Office Murder Case," Lord Sumner elucidated this concept. Despite Barendra Kumar's claim that he merely stood outside and did not participate in the fatal shooting of the sub-post master, he was convicted under Sections 302/34.
The trial court, upheld by both the High Court of Calcutta and the Privy Council, found him guilty based on the collective intention of all involved.
The crux of liability under Section 34 lies in the "simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result." The term "criminal act" as used in Section 34 does not pertain to individual acts but rather encompasses instances where a crime is committed by a group of individuals.
Before a person can be held liable for the acts of another person under Sec. 34, two points have to be established, viz-
that there was common intention, in the sense of a prearranged plan, between the two, and
that the person sought to be made liable had, in some way participated in the criminal act.
Thus, unless ‘common intention’ and ‘participation’ both are present, Sec. 34 will not apply. The common intention is the mens rea necessary to constitute the very offence that has been committed.
It is a bare desire to commit a criminal act without any contemplation of the consequences. Participation in the crime in furtherance of the common intention is sine qua non under Sec. 34.
Common Intention
Common intention implies a prearranged plan or prior agreement among the parties involved, where there is a shared purpose that runs through all participants, akin to a thread in a necklace connecting each bead.
This sharing of purpose is absent in cases of individuals having the same or similar intentions. For common intention to exist, each participant's intention must be known to and shared by all others.
The fine yet crucial distinction between common intention and similar intention must be kept in mind to avoid miscarriage of justice. Mere presence together is insufficient to establish common intention.
For instance, in a case where individuals A, B, C, and D went to a house armed with weapons and two of them exhorted the others to kill, it was held that they only shared a similar intention, not a common one.
Common intention can be formed suddenly, even on the spur of the moment. It does not necessarily require elaborate planning or a long interval of time.
The plan may develop on the spot during the commission of the offence, but it must precede the act constituting the offence.
In instances where common intention develops spontaneously, there must be compelling evidence to hold all accused vicariously liable for the criminal acts. For example, during a fight, if a person calls bystanders to help kill someone and they join in, a necessary meeting of minds or formation of a prearranged plan occurs, albeit hastily.
However, in such cases, it may be challenging to discern whether all participants had a common intention based solely on their acts.
Regarding the requirement of "in furtherance of the common intention of all," it is essential that the criminal act be performed while executing or carrying out the common intention.
The use of the phrase "in furtherance" implies that Sec. 34 applies even if the actual act performed is not precisely the one jointly intended by the conspirators.
The act should not be extraneous to the common intention or done in opposition to it. Acts done in excess of the common intention do not render others liable.
Evidence For common intention
Determining common intention is a factual inquiry. While it is inherently subjective, it can be deduced from the surrounding facts and circumstances. The term "common intention" lacks a fixed meaning and varies depending on the case.
For instance, in one instance, the accused, all of whom were relatives and armed with deadly weapons, simultaneously assaulted the victim upon receiving the command "Kill! Kill!" from a person. Subsequently, they departed the scene together and were apprehended in the same location.
Given these circumstances, it was concluded that the accused had acted with a common intention (Maqsoodan v State of UP. AIR 1983 SC 126).
Conversely, merely arriving together armed with rifles would not necessarily imply a shared intention to commit murder (Gajjan Singh v State of Punjab AIR 1976 SC 2069).
Inferences about common intention should stem from the collective behavior of all involved parties rather than focusing solely on the actions of an individual.
Merely being present at the crime scene might, under certain circumstances, indicate participation in the offense.
However, this must be substantiated by compelling evidence, such as demonstrating that the individual contributed in some way to facilitate the offense.
Given the challenge of obtaining direct evidence to establish an individual's intention, it often becomes necessary to infer intention from their actions, conduct, or other pertinent circumstances of the case.
Participation
‘Participation’ entails taking part in an activity, and this involvement can manifest through actions that contribute to or aid a common objective.
Apart from premeditation, what's crucial is a physical presence at the scene coupled with actual engagement, which can even be passive in nature (like standing by a door or waiting in a nearby car).
Sec. 34 accentuates the word “done,” emphasising the necessity for active involvement in the actual execution of the act rather than merely in its planning [S. Ramaya v State of Bombay (1954) 57 Bom LR 632 (SC)].
In Ramaswami Ayyangar v State of T.N. (AIR 1976 SC 2027), the Court stressed reading Sec. 34 alongside preceding Sec. 33, clarifying that the term “act” in Sec. 34 encompasses a ‘series of acts as a single act.’ Though the actions of different accomplices may differ, all must participate in the criminal endeavour in some capacity.
Even a person merely standing guard to hinder potential aid to the victims may be deemed guilty of common intention. However, in offences involving physical violence to the human body, such accused must be physically present during the actual commission of the crime to facilitate its execution.
However, Jai Krishan Das Desai v State of Bombay (AIR 1960 SC 889) held that physical presence may not always be a prerequisite for participation.
While it's typically necessary in offences involving physical violence, this isn't universally applicable, especially in cases where the offence spans diverse acts across various times and places.
Sec. 34 underscores criminal collaboration, whether through direct involvement or remote direction, indicating a degree of joint responsibility in the commission of the act (Tukaram case).
There are two scenarios:
(a) where common intention is established but no specific overt acts are attributed to the accused, and
(b) where participation is proven but common intention is lacking.
In the former, the accused would be liable under Sec. 34, even without specific overt acts attributed to them, as it entails vicarious liability.
It's unnecessary to prove identical actions by all accused; what matters is the shared common intention. Conversely, if participation is proven without common intention, Sec. 34 cannot be invoked (Jai Bhagwan v State of Haryana).
Leading Case Laws
SHAH v EMPEROR [(1945) 47 BOM. LR 941] - In the case of Mahbub Shah, A and B were prosecuted for murder under Sec. 302 read with Sec. 34. A scuffle ensued between A's cousin and C, prompting A and B to intervene with guns. A shot C dead while D injured B. The High Court held them guilty, but the Privy Council overturned the conviction. While A and B had the same intention to rescue A's cousin, there was no evidence of a premeditated plan to kill C. Sec. 34 requires a common intention, implying a pre-arranged plan, which was lacking in this case. Thus, the conviction was set aside.
In the case of Tukaram v State of Maharashtra (AIR 1979 SC 185) , the appellant was held guilty under Sec. 34 despite not being present at the scene of occurrence. He was at a weighbridge while the crime was committed. The court emphasised that participation in the crime doesn't always require physical presence; even remote direction or assistance can constitute participation. However, this interpretation might blur the simultaneous action envisioned by Sec. 35. The Supreme Court in an earlier case, S. Ramaya v State of Bombay, stressed the importance of physical presence coupled with active participation at the scene of the crime for Sec. 34 to apply.
In the case of Suresh v State of U.P. [(2001) 3 SCC 673], the question of whether Sec. 34 applies to a co-accused who didn't commit an overt act was at issue. The appellant's wife, Pavitri Devi, was acquitted by the High Court because no overt act was attributed to her, despite her presence at the scene. The Supreme Court clarified that Sec. 34 doesn't require independent overt acts by each accused; it applies when a criminal act is done by several persons in furtherance of common intention. The court emphasized that participation in action resulting in the ultimate criminal act is key. Mere presence at the scene isn't sufficient for liability under Sec. 34; there must be evidence of shared common intention and active participation. The court upheld Pavitri Devi's acquittal as the prosecution failed to prove her shared common intention with the other accused.
In the case of Pandurang v State of Hyderabad (AIR 1955 SC 216), the Supreme Court clarified that Sec. 34 requires prior concert or a pre-arranged plan among the accused. The attack on the victim must be in furtherance of this common intention. However, in this case, the facts did not support the existence of a common intention among the accused. There was no evidence of prior arrangement, and the manner of the attack did not indicate a coordinated plan. Additionally, the accused belonged to different castes and had no apparent common interest. Therefore, Sec. 34 was not applicable, and each accused was held liable for their individual actions.
In the case of Nandu Rastogi v State of Bihar (AIR 2002 SC 3443), the court held that all five accused had a common intention to commit murder. The main accused, along with four others, forcibly took the informant's son inside a residential apartment at gunpoint. While inside, gunshots were heard, and the accused fled the scene. Later, the son was found bleeding and unconscious, eventually succumbing to his injuries.
The court determined that the accused acted in pursuance of a pre-fixed plan. It was not necessary for each accused to assault the deceased directly. Instead, it was sufficient to show that they shared a common intention to commit the offence, with each playing their assigned role by carrying out separate acts, whether similar or diverse.
Some of the accused prevented others from intervening, effectively aiding in the murder. Therefore, all the accused were found guilty of murder under Sec. 302 read with Sec. 34.
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