Principle of Joint Liability

Introduction

 Joint liability is a term used for people who have committed an act in pursuance of a
common intention, where each of the persons is liable in the same manner, as this act was
done by them alone. Section 34 & 149 of IPC, states the joint liability of partners in
crime.

Scope of the Principle of Joint Liability as Provided in Section 34

 The section only provides for the constitution of joint liability, not the punishment. This
section is only a rule of evidence and does not constitute a substantive offence.
 It provides for the principle of constructive liability.
 As this section is not an offence in itself, this section is always read with other sections
under the Indian Penal Code, 1860. This is the limited scope of joint liability under
Section 34, Indian Penal Code, 1860.
 In the case of Chhotu v State of Maharashtra, the complainant and the proofs proved that
there were three persons assaulting the victim. The three persons were held liable under
joint liability and assault. So. it can be deduced that the section cannot be read alone and
requires to be read with some other section under the statute of India.

Scope of ‘Common Intention’

 Section 149 of the Indian Penal Code, specifies that there must be a common intention
along with the unlawful act.
 The section holds the people in the act of unlawful assembly jointly liable for the act
done through a common intention.
 In the case of Queen v Sabib Ali, common intention was viewed as a pathway to
complete the unlawful action.
 In the case of Ganesh Singh v Ram Raja, the court said that the common objective must
be achieved through a common intention of doing the task. It is generally ascertained by
 prior meetings, meeting of minds and pre-arranged plans of doing something which is not
legal.
 In Kripal Singh v State of Uttar Pradesh, the court said that the common intention is
supposed to be ascertained from the facts and the circumstances of the case.
 The scope of common intention is also supposed to be ascertained by the facts and
circumstances of the case.

What is Common intention? Guiding Principles

Common intention is guided by several principles:

1. Mere surrender is not derivative of the fact that it will be counted as common
intention.
2. It is necessary that there has been a been a prior conspiracy relating to that act.
3. When the offence is proved only on the basis of circumstantial evidence, the
allegations of common intention cannot be established in the absence of meeting of
minds.
4. Section 34 is only a rule of evidence and does not create a substantive offence.
5. The common intention should be prior or antecedent to the occurrence.
6. Common intention may develop during the course of the occurrence and could
develop on the spot.

7. Common intention is different from same or similar intention.

Section 34 is only a Rule of Evidence and Does Not Create a Substantive Offence

 In the case of Sachin Jana and anr. v State of Bengal, it was mentioned that the section is
a rule of evidence.
 The distinctive feature is the participation of the jointly liable people.
 The participation in the direct offence will not matter but the people will be jointly liable
as though, the offence has been committed by that person only.
The Common Intention should be Prior or Antecedent to the Occurrence :

 The common intention doctrine states that there should be an antecedent to the
occurrence.
 A clear distinction is made between common intention and common object is that
common intention denotes action in concert and necessarily postulates the existence of a
pre-arranged plan implying a prior meeting of the minds, while common object does not
necessarily require proof of prior meeting of minds or pre-concert.
 Though there is a substantial difference between the two sections namely Section 34 and
Section 149, they also to some extent overlap and it is a question to be determined on the
facts of each case.

 Common Intention may Develop during the Course of the Occurrence and could Develop

on the Spot.
 Common intention has to be ascertained in the investigations, however, it is not necessary
that it happens before the occurrence only.
 It might happen during the occurrence of the act as well. The intention is curated at any
given point in the action.

Common Intention is Different from Same or Similar Intention

 Common intention mentions the fact that the people involved in the act had a common
intention, whereas similar intention includes the change in intention during the act due to
the intervention of some other external circumstances.
 For example: there had been common intention of 4 people to commit the offence of
abduction. But, in the process, if one of them kills the person who was abducted without
the consent of other parties. That person will be held liable for abduction and murder and
the rest will be liable only for abduction.

Joint Liability in Context of Free Fight

 Joint liability becomes complicated when it talks about the situation where people divide
into hostile groups.
  The liability is difficult to determine because that creates a problem in ascertaining
whether the offence has been committed by the people or not and to what extent is it
performed by them.

Participation in the Criminal Act

Participation in the criminal act comprises of the following aspects:

1. Incitements;
2. Ordering, soliciting or inducing;
3. Participation in a common purpose;
4. Punishment as a perpetrator.

The criminal act is ascertained by the presence of these elements.

Absence of Overt Acts—No Proof of Common Intention

 In Jai Bhagwan v State of Haryana, it was said that in the absence of any overt act and
proof of intention, the common intention will not be proved and the person cannot be
held liable for the offence.
 Common intention is a prerequisite for a crime in a joint liability, along with participation
in the crime.

Effect

 The crime will not be proved in case there is absence of proof of overt acts.
 The effect of such a circumstance is that one will be acquitted in the absence of proof of
an overt act against him or her.

Proof of Common Intention: Rule for Evaluating Evidence

 Proof of common intention is evaluated through the measurement of participation in overt

Conduct of Parties as Evidence for Proving Common Intention

 Common intention can also be proved by the statements provided by the parties involved.
The conduct of parties as evidence may be used for proving common intention.
 For example, in the case of a theft, the conduct of the people involved, is proved by their
participation and conduct in the crime.

Circumstantial Evidence as Proof of Common Intention

 This counts as the basic mode of proving the common intention of people involved in the
crime.
 The evidence that was found during the investigation of the circumstances is generally
taken as the most important and crucial evidence of proving the common intention.

The necessity of Overt Act for Proving Common Intention

 In the case of Suresh and Anr. v State of Uttar Pradesh, the court said that there either
needs to be a direct evidence of the involvement or there has to be proof of a prearranged
plan.
 The necessity arises from the fact that the common law does not allow any person who is
not guilty to be charged as guilty. That is why there must be an ultimate proof of an overt
act for proving common intention.

Appreciation of Evidence—Benefit of Doubt to be Given to Accused

 The appreciation of evidence refers to the fact that there must be an applicable evidence
which can be really be considered as an evidence.
 The evidence must be appropriate according to the Evidence Act, 1872. This evidence
must be such that the person accused cannot be given the benefit of doubt under any
circumstances. In case the evidence is not able to remove all the doubts, then it must be
 considered as insufficient evidence and the accused must be given the benefit of doubt.
This is derived from the English legal systems.

Effect of Acquittal of Co-accused in Conviction using Section 34

 The effect is such that if the parties are not able to prove the involvement of a co-accused,
the person is acquitted from the charges.
 In this case, the co-accused who has already been proven guilty has to perform his term
of the punishment. The convict may also bring evidence against the co-accused, in order
to prove his or her guilt.

Effect of Charge Against Accused under Section 149, and not Section 34, Indian Penal

Code 1860 :

 The difference over here in these sections is just that of ‘common intention’.
 Charges may be imposed against people under Section 149, but in case they are able to
prove that there was no common intention of the unlawful assembly then they may be
absolved from criminal liability under Section 34.
 The same cannot be done if they are not able to prove lack of common intention.

Common Intention versus Common Object: A Comparative Analysis

 Common object is a derivative of ‘motive’. Motive is the ultimate reason of each person
involved, which is leading a group to pursue a common intention, which is the end result.
 The common intention is essentially the way in which the group in furtherance of the
commission of the crime.
 The object must be similar in order to prove guilt. Motives may differ but the
performance must contain a ‘guilty mind’.

Distinction between ‘Act’ and ‘Omission’

 ‘Act’ is the commission of some action in the direction of the commission of an offence.
 Whereas, omission refers to an act which was supposed to make the act legal, but the
non-performance of that act makes this act illegal.
Difference between Section 34 and Section 37

 The distinction between Sections 34 and 37 is that while the former requires a common
intention for a criminal act done by several persons (i.e., unity of criminal behaviour
which results in a criminal offence), in which case each actor becomes liable as if that act
were done by him alone.
 Section 37 deals with intentional cooperation in an offence committed by means of
several acts, and punishes such cooperation (provided it consists in doing any one of
those acts either singly or jointly with any other person) as if it constituted the offence
itself.

Conclusion

 Criminal conspiracy and joint liability are indispensable parts of our criminal legal
system.
 The study above shows the relation between them along with understanding them
separately.
 Where it is safe to say that there is still a large scope of possible reforms in the system, it
has also been modified according to the need of the hour from the time.