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Author: Sameer Afzal Ansari, III year of B.A.,LL.B. from Guru Gobind Singh Indraprastha University

Group 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 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 evidence 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 it to be read with some other section under the statute of India.

What is Common intention?

Mere surrender is not derivative of the fact that it will be counted as common intention. It is necessary that there has been a prior conspiracy relating to that act. 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.

Section 34 is only a rule of evidence and does not create a substantive offence. The common intention should be prior or antecedent to the occurrence. Common intention may develop during the course of the occurrence and could develop on the spot.

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.

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.

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.


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 as well as covert acts. The parties prove their involvements in the carrying out of the act. The proof of common intention is measured by witnesses and deduced circumstances.

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 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 applicable evidence which can really be considered as 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.