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S.

34
Acts done by several persons in furtherance of common intention
Rule of
constructive
liability/
evidence

Therefore, S. 34 always has to be read together with some


other offence.
S. 34 does not create an offence in itself
It is a rule of constructive liability
It is a rule of evidence

The main offender will be liable for the main offence.


The other members of the common intention will be liable for the
main offence read with S. 34.
Eg.
ABC have a common intention to kill D
A kills D
B and C stand guard
A will be liable for S. 302
B and C will be liable for S.302 read with S. 34

Eg.

B is dropped

House of
House of G
ABCDE

ABCDE form an agreement to kill G and commit robbery


- A does not go, is sleeping in the house
- B is dropped on the way at the point indicated, due to ill health
- CDE reach the house of G
- E gets into the house and shoots G as well as collects money
- CD watch guard
- CDE sit back in the car- collect B on the way and reach their
house
- ABCDE distribute the amount amongst themselves
Liabilities
E

Murder u/s 302


Criminal conspiracy 120B (as there was a distinct agreement)
House breaking
Robbery u/s 392

C
-

Murder u/s 302 read with S. 34


Criminal conspiracy 120B (as there was a distinct agreement)
House breaking read with S. 34
Robbery u/s 392 read with S. 34

A
-

Provision

and B
Criminal conspiracy 120B (as there was a distinct agreement)
Receiving stolen property u/s 411 (distribution of money)
Since there was no active participation by A and B, therefore
they will not be charged for any main offence read with S. 34

1. Several persons
2. Having a common intention
3. Act in furtherance of the common intention
(Added by amendment of 1870)
4. Commit a criminal act
5. Criminal act is done by one of the several persons
Consequence
Each of the several persons will be liable as if the act was done by
him alone

Requirements
of common
intention

1. There should be prior concert (agreement)


Prior meeting of minds

Prior agreement to commit the


Common intention formed on
offence
the spot
- The point of time when the - Common
intention
is
agreement was made
formed on the spot
- How the agreement was

Before the commission of


made

the main offence


Immaterial
By mutual conduct
- The mutual conduct will
manifest
the
distinct
agreement to commit the
offence together
Please note the term prior

It implies that the common intention should there be before


the offence is committed

2. One of the several members (main offender) will commit the


final offence
- Doctrine of mutual agency
- Doctrine of representation

The main offender will act as the agent or representative of


the other persons while committing the main offence
3. Active participation of the other persons at the time of
commission of the criminal act
Complimentarity or jointness of action
4. As per the rule of constructive liability
The liability of the other persons will be constructed

upon the liability of the main offender


5. Mere knowledge will not be sufficient
The common intention will have to be distinctly proved

Difference between similar intention and common


intention (Important)

Similar Intention
A shoots C
With the intention to kill C
B shoots C
With the intention to kill C
But there is no common
intention between A and B
to kill C

Common Intention
A and B join their intention
As manifest from
- A prior agreement
- Agreement on the spot

Manifested by the mutual


conduct of the persons:
o
While committing the
There is no prior meeting
offence together
o Conduct subsequent to
of minds
Merely doing the same
the commission of the
act at the same time
offence
does not mean there is
common intention
BOP lies on the prosecution to prove that there is common
intention and not similar intention
By proving the agreement between the parties to commit the

offence together
Mahbub Shah v. Emperor (PC 1945)
X and Y

B and C

A
B
X
A
X
A
B
B
C

is the owner of the land.


and C are relatives of A who are working on the second field
and Y come around into land of A to collect weeds
objects to the act of X and Y
and Y start beating A
shouts for help
and C picked up their guns and ran in the direction of A.
shoots X- X dies
shoots Y- Y is saved

B is liable for murder of X


C is liable for attempt to murder of Y
B absconds
Can C be made liable for
- Murder of X under S. 302 read with S. 34
- Attempt to murder of Y under S. 302
NO.
1. There was no common intention between B and C to kill X and
Y.
B had the intention to kill X
C had the intention to kill Y
2. There was no prior agreement between B and C ki Bsambhaalega aur C- Y ko sambhaalega

X ko

3. There was no agreement on the spot


No sharing of arms
No conversation between B and C while running that could
suggest their common intention
S. 34 no applicable as there was no common intention.

Furtherance
of common
intention
(Added by
amendment
of 1870)

Furtherance of the common intention means

After forming the common intention


The common intention was being carried ahead
Towards the commission of the agreed offence
In order to achieve the desired goal
1. Act should be committed in furtherance of the common
intention and not during the furtherance of the common
intention
During the furtherance
of common intention
During indicates
Time period during which the accused
moved in the direction of commission of
the offence

In furtherance
of the common intention
In indicates
- The desired offence; or
Any other offence which is essen
or indispensible in order to comm
the desired offence

S. 34 will not apply here

S. 34 will apply here

2. One of the persons may commit a totally distinct offence in the


process
He alone will be liable for that offence
Because there was no common intention for that offence
3. During the furtherance of the common intention
(in the process of moving towards the desired offence)
All or some of the persons
o may form a new common intention
o to commit a totally distinct offence
o for which such persons will be distinctly liable under S.
34
(this liability under S. 34 will be distinct from the liability
under S. 34 for the original common intention)
Eg.
ABC decide to kill D
They start from Mukherjee Nagar
- On the way A showed a pistol to a momo wala and ate momos
B and C will not be liable for criminal intimidation
Only A will be liable for criminal intimidation
-

C found his enemy E. C kills him


B and A will not be liable for the murder
C will be liable for the murder

At Hakeekat Nagar B picks a fight with a fruit seller


A and C join in the fight
Is this common intention?
It is fresh common intention, based on an agreement on the
spot
But this is not in furtherance of the original common intention

At Hudson Lane.
C got into the house to kill D
Meaninwhile B and A tied the watchman of the house of D to a
tree
Is the act of A and B in furtherance of the common intention?
Yes.
C is not able to kill D.
Will ABC still be liable for:
o Attempt to murder of D
A liable under S. 307
B and C liable under S. 307 read with S. 34
o Hurt to Watchman
B and C liable under S. 323
A liable under S.323 read with S. 34
Yes.
It is not necessary the desired offence be committed.
S. 34 mentions criminal act and not offence. (see
discussion below)

Active
Participation

Implicit under
the term
criminal act

Requirement of Active Participation


It is a mandatory requirement under S. 34 that the other
members of the common intention
- Had actively participated in the commission of the offence
- At the time when the offence was committed
if there is complimentarity of action before the commission of
the offence then the matter falls under criminal conspiracy
(S.120A)
- Though physical presence on the spot is not necessary
The requirement of active participation does not find any
express mention in S.34.
But active participation is implicit in the use of the term
criminal act in S. 34
(instead of using the term offence)
The term used under S. 34 is criminal act and not offence
The word criminal act has implicit within itself:
- The agreed offence (which should have actually been

committed)
Any other offence that has been committed in furtherance of
the common intention. (participative action)
Please Note:
The term criminal act
should be an act which is
an offence in the IPC.
Criminal act does not
include
- Act prohibited by law
Thus, liability under S.34 will be for
- The main offence
- Participative action done by the other accused
The participative action will be criminal because it was
actually done for facilitating the commission of the offence
-

The requirement of active participation is also implicit in


the requirement of common intention
Common intention has implicit within itselfcomplimentarity of
action
- One of the members of the common intention may have
committed the main offence
- The other members of the common intention should have
done some complimentary action (active participation)
For the purpose of facilitating the commission of the offence
Application of
S. 34 in cases
of
- Mistake
- Transfer of
malice
- Running
away after
commissio
n
of
offence

Mistake
ABC agree to murder D
B and C stand guard
A goes to murder D
Under a mistake A murders E, instead of D
-

If it is a genuine mistake

For the murder of E


A
: liable for murder u/s 302
B and C: liable for murder u/s 302 read with S. 34
For the attempt to murder of D
A
: liable for attempt to murder u/s 307
B and C: liable for attempt to murder u/s 307 read with S. 34

If there was no mistake on the part of A


A deliberately killed E
A will be liable for murder u/s 302
B and C will not be liable

Transfer of Malice
ABC had the common intention to kill D
BC are standing outside the house
A goes inside to shoot D
Just as A shoots D, D ducks and the bullet hits E
Doctrine of transfer of malice will apply here
- A intended to kill D
- A has killed E in the same transaction
For the murder of E
A
: liable for murder u/s 302
B and C: liable for murder u/s 302 read with S. 34
For the attempt to murder of D
A
: liable for attempt to murder u/s 307
B and C: liable for attempt to murder u/s 307 read with S. 34
Running away after commission of offence
1. Common intention commit an offence

Agreement is not just upto the point of commission of the


offence
It extends to the act of escaping from the scene of the offence
2. Escape should be seen:
in the continued transaction of the commission of the
offence

Nature of continuance:
o It should be immediate transaction
o Continuance should not be remote in terms of
time and transaction

Example 1
ABC have the common intention to kill Z
C kills Z, while A and B watch guard
After killing Z- ABC start escaping from the crime scene
X who is the brother of Z attacks ABC
A kills X
Liability for murder of Z
C will be liable for murder of Z under S. 302
A and B will be liable for the murder of Z under S. 302 read with S.
34

Liability for murder of X


Will the murder of X said to be an act in furtherance of the
common intention
YES.
Common intention commit an offence

Agreement is not just upto the point of commission of the offence


It extends to the act of escaping from the scene of the offence
A liable under S. 302
B and C liable under S. 302 read with S. 34
Example 2:
ABC have the common intention to kill Z
C kills Z, while A and B watch guard
After killing Z- ABC start escaping from the crime scene
One day later X who is the brother of Z attacks A
A kills X.
Liability for murder of Z
C will be liable for murder of Z under S. 302
A and B will be liable for the murder of Z under S. 302 read with S.
32
Liability for murder of X
Will the murder of X said to be an act in furtherance of the
common intention
NO.
Escape should be seen:
in the continued transaction of the commission of the offence

Nature of continuance:
o It should be immediate continuance
o Continuance should not be remote in terms of time and
transaction
In the instant case the transaction of escaping from the spot is
broken
A liable under S. 302
B and C liable not liable