Introduction

Common intention is known as a prearrange plan and acting in current

pursuant to the plan. It must be proved that the criminal act was done in
concert pursuant pre-arranged plan. It comes into being prior to the
commission of the actin point of time, yet it need not be a long gap. The
gap need not be long sometime common intention can be developed on
the spot. The fundamental factor of the pre-arrange plan to execute the
plan for the desired result. Each of such person will be liable in an act
done in furtherance of common intention as if the act was done by one
person. Common intention is not mean the similar intention of several
person. To constitute common intention, it is necessary that the intention
of each of them be known to the rest of them and shared by them. The
common intention to being about a particular result may will develop on
the spot as between a number of persons, with reference to the fact of the
case and circumstance of the situation. Though common intention may
develop on the spot, it must however, be anterior in point of time to the
commission of the crime showing a pre-arrange plan and prior concert. It
has farther been held that though common intention may develop in
course of the fight but there must be clear and unimpeachable evidence
to justify that inference.

Usually, there are no specific meaning of common object but has a great
meaning in criminal law i.e. combination of more people in order to
perform a illegal object that means when one or more person combined
for perform illegal object and about the object is known by each of the
member then one member of the assembly perform a offence therefor all
member shall be liable similarly. In this case the offence is not need to
perform individually and directly. There are a common connection
between “common intention” and “common object” in the view of criminal
law i.e. performing of offence must be jointly.
To give a broad discussion about “common intention” and “common
object” are as bellows

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Meaning of Common Intention:
According to that Common intention within the meaning of S. 34 implies a
pre-arranged plan. Accordingly Black’s Law Dictionary defines intention as
under:
“Intention. Determination to act in a certain way or to do a certain thing.
Meaning, will; purpose, design. ‘Intention,” when used with reference to
the construction of wills and other documents means the sense and
meaning of it; as gathered from the words and used therein. When used
with reference to civil and criminal responsibility, a person who
contemplates any result, as not likely to follow from a deliberate act of his
own, may be said to intend that result, whether he desires it or not.

Common intention according to penal code,1960

Common intention is described in Section 34 of BPC as bellows :
Acts done by several persons in furtherance of common intention – When
a criminal act is done by several persons in furtherance of 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.

Common intention according to case law

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Common intention implies a pre-arranged plan, prior meeting of
minds, prior consultation in between all the persons constituting the
group [Ref. Mahboob Shah v. Emperor, AIR 1945 PC 118].
· Common intention means the mens rea necessary to constitute the
offence that has been committed [Ref. As per DAS, J., in Ibra Akanda v.
Emperor, AIR 1944 Cal. 339].
It also means evil intent to commit some criminal act, but not
necessarily the same offence which is committed [Ref. As per
WANCHOO, J., in Saidu Khan v. The State,[AIR 1951 All 21(F.B.)]
· Common intention implies a pre-arranged plan. Pre-arranged plan
means prior concert or prior meeting of minds. Criminal act must be
done in concert pursuant to the pre-arranged plan. Common intention
comes into being prior to the commission of the act in point of time.
· Where there is no indication of premeditation or of a pre-arranged
plan, the mere fact that the two accused were seen at the spot or that
the two accused fired as a result of which one person died and two
others received simple injuries could not be held sufficient to infer
common intention [Ref. Ramachander v. State of Rajasthan, 1970
Cr.L.J. 653].
· However, common intention may develop on the spot as between a
number of persons and this has to be inferred from the act and
conduct of the accused, and facts and circumstances of the case
[Ref. Kripal Singh v. State of U.P., AIR 1954 SC 706].

Kazi Ranimul Islam vs State (Criminal),62 DLR(HCD) 6 – To sustain a

charge of abetment it is necessary that there must exist some evidence of
an over act so as to suggest a pre-concert or to suggest the existence of
an conspiracy, committed out of a common design to commit a particular
offence committed in consequence of the instigation or in the aid of
offence.
Fazar vs Crown, 4 DLR 99 – Section 34 PPC does not create any distinct
offence but merely lays down principle of joint liability. Since section 34 of
the Penal Code does not create any distinct offence, but merely down a
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 principle of joint liability in a criminal act, it is immaterial whether it is
mentioned in the schedule to act VII of 1963 or not as a referable offence.
So, the mere fact that a parson is charged constructively for an offence
by appending section 34 PPC to the said offence, does not affect the
validity of the reference itself.

In the case of Abdur Rahim vs State1, it was held that a common intention
may develop on the spot between the participants. To apply section 34,
the parson must be physically present at the actual commission of the
crime. Thus again, even in regard to an offence involving physical violence
it is not necessary that every accused must take an active part in the
attack on the victim.

Ingredients Of Section 34 :

To attract the application of Section 34, the following conditions

must be satisfied:-

1. Some Criminal Act: - ‘Criminal act’ used in section 34 does not

refer to individual acts where a crime is committed by a group of
persons. Where a crime is committed by several persons in furtherance
of common intention of all of them, each of them doing some act,
similar or diverse, big or small shall be liable for that act. ‘That act’
refers to the ‘criminal act’ used in section 34 which means the unity of
criminal behavior which results in something for which an individual
would be punishable if it were all done by himself alone in an offence.

2. Criminal Act Done By Several Persons: - The criminal act in

question must have been done by several persons i.e. by more than one
person. The number of wrong doers should be at least two. Most
importantly, if the criminal act was fresh and independent act springing

1
44 DL
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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.

3. Common Intention:- The words “in furtherance of the common

intention of all” were added to section 34 after words ‘persons’ in 1870
the idea for which, possibly, was derived from the following passage of
the Privy Council’s judgment:

“Where parties go with a common purpose to execute a common

intention, 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.” [Ref. Ganesh
Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45]

The expression ‘common intention’ means unity of purpose or a pre-

arranged plan; it has been given various meanings which are as follows-

· Common intention implies a pre-arranged plan, prior meeting of

minds, prior consultation in between all the persons constituting the
group [Ref. Mahboob Shah v. Emperor, AIR 1945 PC 118].

· Common intention means the mens rea necessary to constitute the

offence that has been committed [Ref. As per DAS, J., in Ibra Akanda v.
Emperor, AIR 1944 Cal. 339].

· It also means evil intent to commit some criminal act, but not
necessarily the same offence which is committed [Ref. As per
WANCHOO, J., in Saidu Khan v. The State, AIR 1951 All 21 (F.B.)].

· Common intention implies a pre-arranged plan. Pre-arranged plan

means prior concert or prior meeting of minds. Criminal act must be
done in concert pursuant to the pre-arranged plan. Common intention
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comes into being prior to the commission of the act in point of time.

· Where there is no indication of premeditation or of a pre-arranged

plan, the mere fact that the two accused were seen at the spot or that
the two accused fired as a result of which one person died and two
others received simple injuries could not be held sufficient to infer
common intention [Ref. Ramachander v. State of Rajasthan, 1970 Cr.L.J.
653].

· However, common intention may develop on the spot as between a

number of persons and this has to be inferred from the act and conduct
of the accused, and facts and circumstances of the case [Ref. Kripal
Singh v. State of U.P., AIR 1954 SC 706].

4. Participation In The Criminal Act:- The participation in a criminal

act of a group is a condition precedent in order to fix joint liability and
there must be some overt act indicative of a common intention to
commit an offence. The law requires that the accused must be present
on the spot during the occurrence of the crime and take part in its
commission; it is enough if he is present somewhere nearby.

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 some way or other at the time crime is actually being
committed.

The first leading case on the point is Barendra Kumar Ghosh v. King
Emperor, AIR 1925 PC 1 (also known as Shankari Tola Post Office Murder
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Case). In this case several persons appeared before the sub-post
master who was counting the money on the table and demanded the
money. In the mean time they opened fire killed the sub-post master
and ran away without taking any money. Barendra Kumar was, however,
caught with a pistol in his hand and was handed over to the police.

The accused was tried under sections 302/34 as according to the

prosecution he was one of the three men who fired at the sub-post
master. The accused denied his charge on the ground that he was
simply standing outside and had not fired at the deceased. The trial
court, on being satisfied that the sub-post master was killed in
furtherance of the common intention of all, convicted the accused even
if he had not fired the fatal shot.

The High Court of Calcutta and the Privy Council both agreed with the
findings of the trial court and held the accused guilty of murder. Giving
his judgment LORD SUMNER quoting a line from Milton’s famous poem,
“ON HIS BLINDNESS” said. “even if the appellant did nothing as he
stood outside the door, it is to be remembered that in crimes as in other
things they also serve who only stand and wait….. Section 34 deals with
doing of separate act, similar or diverse by several persons; if all are
done in furtherance of a common intention, each person is liable for the
result of them all as if he had done them himself”.

How to proof common intention in criminal

cases?
Although it is difficult but not impossible to procure direct evidence to
prove the intention of an individual and in most cases the common
intention had to be inferred from his act or conduct or other relevant
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circumstances of the case.2 The common intention can be inferred from
the circumstances of the case and that the intention can be gathered from
the circumstances as they arise even during an incident. 3The court has to
examine the prosecution evidence in regard to application of section 34
cumulatively and if the ingredients are satisfied, the consequences must
follow. It is difficult to state any hard and fast rule which can be applied
universally to all cases. It will always depend on the fact and
circumstances of the given case whether the person involved in the
commission of crime with a common intention can be held guilty of the
main offence committed by them together. 4 In order to seek the aid of
section 34 IPC it is not necessary that individual act off the accused
persons has to be proved by the prosecution by direct evidence. Common
intention has to be inferred from proved facts and circumstances and once
there exist common intention, mere presence of the accused persons
among the assailants would be sufficient proof of their participation in the
offence.5
In Rishideo Pandey’s case6, the evidence off prosecution witness was that
they saw the two accused A and B, who were brothers, standing near the
cot of the victim who had been sleeping, that A was armed with a gandasa
and B with lathi, and that on a hue and cry being raised both ran together.
The medical evidence was that the deceased died of an incised wound on
the neck which was necessarily fatal. It was held that B shared with A the
common intention to cause death, and there was no reason to interfere
with his conviction under section 302 read with section 34. This inferences
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 one or some of them, the acts
done by others to assist those causing the injuries, the concerted conduct
subsequent to the commission of the offence, for instance all of them left
2
Ramchandra Tolaram v. State of Bombay, AIR 1956 Bom 287
3
State of A.P. v. M. Sobhan Babu, 2011 (3) SCALE 451 : 2011 CrLJ 2175 (SC)
4
Kuria and another v. State of Rajasthan, (2012) 10 SCC 433 : 2012 CrLJ 4707 (SC)
5
Mrinal das v. State of Tripura, (2011) 9 SCC 479 : AIR 2011 SC 3753 : (2011) 3 SCC (cri) 810
6
[5] AIR 1955 SC 331 : 1955 CrLJ 873
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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.
Common intention is a question of fact. The proof of common intention is
the matter of inference from the circumstances. Direct evidence to prove
the intention of any individual is very difficult, if not impossible. It is to be
deducted from the conduct or other relevant circumstances of the
case. 7When all the accused persons gather near a disputed land, all
carrying deadly weapon and they rush together and murder is committed,
their common intention to murder stands proved.8 It is, however,
necessary to show that any overt act must have been done by a particular
accused. The section will be attracted if it is established that the criminal
act has been done by all or any one of the accused persons in furtherance
of the

common object
when one or more person combined for perform illegal object and about
the object is known by each of the member then one member of the
assembly perform a offence therefor all member shall be liable similarly. In
this case the offence is not need to perform individually and directly.

Common object according to P.C. 1960

Section 149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object —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 prosecution of that object, every person who,

7
Promode Chandra v. State, 1952 CrLJ 1213 (Tripura)
8
Nana Gangaram v. State of Maharastra, 1970 CrLJ 621 : 1970 Mah LJ 172 : 71 Bom LR 375 : ILR 1969 Bom
654

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at the time of the committing of that offence, is a member of the same
assembly, is guilty of that offence.

Section analysis
An assembly of five or more persons is designated an “unlawful
assembly“, if the common object of the persons composing that assembly
is—

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 of 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 do what he is not legally bound to do, or to omit to do what he is
legally entitled to do.

Explanation – An assembly which was not unlawful when it assembled,

may subsequently become an unlawful assembly.

Accordin to case law

Section 149- Where a member of accused participated in beating a man to

death under circumstances which amount to murder under section 302
PC, the conviction should be under lesser section than section 302.Abdus
Sobhan vs Stare, 19DLR 927.

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If some member of the unlawful assembly, commit a more serious offence
which was not the object of common assembly, they can be convicted for
offence of their individual acts in addition to punishment for offence done
in pursuance of the common object. Babar Ali vs State20 DLR (SC) 347.

Mere membership of an unlawful assembly makes one liable under section

149; under section 34 there is participations in an act with common
intention. Bangladesh vs Abed Ali 36 DLR (AD) 234.

Member of an unlawful assembly- Whether he can be convicted when the

principal offender has not been convicted – Once the court finds that an
offence has been committed by any member of an unlawful assembly in
prosecution of its common object, then whether the principal offender has
been convicted or not all other members may be constructively liable for
conviction. Abdus Samad vs State 44 DLR (AD) 233.

Applicability of the provision under section 149- Even after acquittal of the
five accused there could be an unlawful assembly if there was evidence
that besides the accused on trial there were others even though not
stated, as such, in the charge or in the first information report. Rafiqul
Islam vs State 44DLR (AD) 264.

Constructive liability- The occurrence appears to have taken place upon

sudden qurrel and in a fit or rage deadly weapons were freely used. Both
the parties appear to have suppressed material facts. In such situation
charge under section 149 is not maintainable. Mere presence of the
accused at the scene of the occurrence of murder is not sufficient to
charge him with constructive liability. State vs Giasuddin 45 DLR 267.

The two accused has no premediation to kill the victim, as such the
application of section 149 for tagging them to face trial on murder charge
appears to be illegal. State vs Khalilur Rahman 48 DLR 184.

Sections 149&34 – Section 34 of the penal code involves a direct overt act
on the part of the accused sharing “a common intention” with others for
the commission of an offence while section 149 is essentially a vicarious
liability for being a member of an unlawful assembly with the “common
object” of committing the offence. These two offences are of different
nature. Abu Talukdar vs State 51 DLR 188.

Ingredients of S.149

The ingredients of the S. 149 is as under—

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(i) Commission of an offence:
The first importance essential of this section is the commission of an
offence by any member of an unlawful assembly. S. 149 can only be
applied if a person of an unlawful assembly committed a crime.
(ii) Member of unlawful assembly:
According to the essential of S. 149 offence must he committed by a
member of unlawful assembly. Here we understand the meaning of
unlawful assembly which as under:
(a) According to Black’s Law Dictionary: ‘A meeting of three or more
persons who intend either to commit a end crime or to carry out some act,
lawful and unlawful that will constitution a breach of the peace”.
(b) According to S.141 PPC.; According to that section unlawful assembly
means the assembly must consist of five or more persons having one of
the five specified object as their common object.
(iii) In Prosecution of Common Object:
Some offences must be committed by any member of unlawful assembly
in prosecution of common object of that assembly.
(iv) Knowledge of Happening of an Offence:
The member of unlawful assembly are also liable where the offence was
committed such as the member of the assembly knew to be likely to be
committed in prosecution of that object.
Principle:
S. 149 P P.C. deals with the doctrine of vicarious liability and recognize the
doctrine of vicarious l5ability and recognize the principle of joint in the
doing of criminal act and is an exception to the general rule that a person
is liable only for his own acts”. Once an assembly has become unlawful
then all things done in the prosecution of the common unlawful object of
that assembly are chargeable against every member thereof. The liability
of every member extends not only to the acts intended by all to be done,
but also to those offences which are likely to be committed in achieving
the common object.

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In prosecution of the common object

This phrase means that the offence committed was immediately

connected with the common object of the unlawful assembly, of which the
accused were members. The act must be one which must have been done
with a view to accomplish the common object attributed to the members
of unlawful assembly. Where the common object is established, the
unlawful assembly does not cease to be so by merely splitting itself into
two groups for launching the attack.
The words “in prosecution of the common object” do not mean “during
the prosecution of the common object of the assembly”. It means that the
offence committed was immediately connected with the common object of
the assembly or the act is one which upon the evidence appears to have
been done with a view to accomplish the common object attributed to the
members of the assembly. The words” in prosecution of the common
object and the offence committed and if it is found that the same was
committed to accomplish the common object, every member of the
assembly will become liable for the same. Therefore, an offence
committed by a member of unlawful assembly in prosecution of any one
or more of the fives objects mentioned in section 141 will render his
companions consulting the unlawful liable for that offence with the aid of
section 149 P.C. In the same case, the common object of unlawful
assembly was to kill a particular person. The member of the assembly
went after him. Sensing danger, he run into the adjoining room to fetch a
spear to defend himself. His wife blocked his way and he could not come
out.

Distinction Between Common Intention (S. 149) and

Common Object (S. 34)

1. Definition

2. Nature
3. Pre-arrenge plan
4. Perticipation
5. Bais
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6. Provement
7 Characteristic
8. libablity
9. to play active role
10.realizaton

CONCLUSION

Fixing vicarious liability under s.34 or s.149 depends on their method

adopted to furnish the crime. There are two sections dealing with
‘common intention’ and ‘common object’ under two chapters of IPC
‘General Explanation’ and ‘Of Offences Against Public Tranquillity’
respectively. Sometimes there arises difficulty in proving with evidences
that whether they shared common intention or not. And also that how
many people were the members of Unlawful Assembly with their common
object same. However these ambiguities were removed by the Supreme
Court in different cases, after determining its facts and situation of each
case.

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