Criminal Intention is the highest form of blameworthiness of mind or mens rea. Intention occupies a symbolic place in criminal law. As the highest form of mental element it applies to murder and the gravest form of crimes in criminal justice system.
The term ‘intention’ is not defined in Indian Penal Code but section 34 of IPC deals with common intention. The intention made among several person to do something wrong and act done in that manner in which it was formulated comes under sanction of section 34 of IPC.
Section 34 deals with a situation, where an offence requires a particular criminal intention or knowledge and is committed by several persons. Each of them who join the act with such knowledge or intention is liable in the same way as if it were done by him alone with that intention or knowledge. The liability of individuals under this circumstance is called Joint Liability.
The principle of Joint Liability defined in section 34 is as follows:
Section 34. 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.
In this article the act is referred, which is defined under article 33 as:
Section 33. ‘Act’, ‘Omission’. – 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.
It is clear from s.34 and s.33 that the term criminal act refers to more than a single act and would cover an entire series of acts.
Section 34 to section 38 in chapter II of IPC dealing with ‘General Explanation’ state the conditions in which a person may be held constructively liable for the acts committed by the other members of group.
The chapter VIII of Indian Penal Code refers to ‘Offences against the Public Tranquility’ from section 141 to section 160.
Offences against public tranquility also known as ‘Group Offences’ and lead to disturbance of public peace.
S.141 defines ‘Unlawful Assembly’ for which there should be five or more persons, and the object should be common to all.
If five or more persons are doing wrong act with common objective then liability on each person will be same as it is done by him alone. This liability on each person is called ‘Group Liability’.
Section 149 of IPC imposes group liability on each and every members of assembly and defined as follows:
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, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
To impose this section under group liability there should be an unlawful assembly, which is defined under s.141. And the offence should be committed in prosecution of common object.
Common intention implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act, which need not be a long gap. To bring this section into effect a pre-concert is not necessarily be proved, but it may well develop on the spot as between a number of persons and could be inferred from facts and circumstances of each case.
In Amrik Singh’s Case it has been further held that though common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference.
In the case Pandurang v. State of Hyderabad , Supreme court emphasized on this point that prior concert need not be something always very much prior to the incident, but could well be something that may develop on the spot, on the spur of the moment. In this case Ramchander Shelke (deceased) with his wife’s sister went to the field.
While Ramchander went to river side the five persons including three appellant (Pandurang, Tukia, and Bhilia ) attacked on him.
According to eyewitnesses, Pandurang, Tukia and Bhilia were holding axes and other two accused Tukaram and Nilia had sticks in their hands. The deceased died on the spot. In this case different eyewitnesses told different story. The trial court convicted each of accused of charge s.302 with s. 34 and sentenced to death.
Appeal lied in High court and conviction of Pandurang, Tukia, Bhilia was maintained but other two accused persons sentence was commuted to transportation for life. When the matter came up to Supreme Court, the learned judge said that each are liable for their own act. The Apex Court set aside the death sentence of Pandurang and convicted him instead under s.326, and sentenced for 10 years rigorous imprisonment. The Supreme Court altered the sentence of Tukia and Bhilia to transportation for life. The Supreme Court elaborated in this case that:
“In a case like that, each would be individually liable for whatever injury he caused but none would be vicariously convicted for the acts of any of the others; if the prosecution cannot prove that his separate blow was a fatal one, he cannot be convicted of the murder, however clearly an intention to kill could be proved in this case….”
The essence of liability to be found in existence of common intention is that the criminal act complained against was done by one of the accused persons in furtherance of common intention of all, if this is shown, then the liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.
In the case of Mahboob Shah v. Emperor[iv], the appellant Mahboob shah was of age 19 and was convicted by Session Judge of the charge s.302 with s.34 for the murder of Allah Dad. The Session court sentenced him for death. The High Court of Judicature also confirmed the death sentence. On appeal before Lordship, the conviction for murder and sentence of death was quashed. It was contended before appellant that – “when Allah Dad and Hamidullah tried to run away, Wali Shah and Mahboob Shah Came in front of them… and fired shots” and so there was evidence of forming common intention at the spur of the moment. Their Lordship was not satisfied upon this view and humbly advised His Majesty that the appellant having succeeded in his appeal, his appeal should be allowed and his conviction for murder and the sentence of death set aside.