By Natasha Gandhi from Amity Law School, Noida
The meaning of joint liability can best be explained by-
“When a crime is done by several people together, who intended to commit that crime, they are all liable as though they had committed the crime in their individual capacities.”
Section 34 of the Indian Penal Code provides a clear-cut technical definition of joint liability as it stands in India today.
Other sections also invoke the principal of group liability (e.g. S. 120-A – criminal conspiracy and waging war against the State) and it is commonly discussed and interpreted in law courts as it is an integral question in a large proportion of criminal cases.
Joint liability in criminal law (also called group liability, vicarious liability, constructive liability, and complicity in crime) is a concept expatiated upon in several sections in the Indian Penal Code (Act 45 of 1860).
S. 34. Acts done by several persons in furtherance of common intention. —When a criminal act is done by several persons in furtherance of the 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.
The principle hereby recognised and acknowledged by this Section is that if two or more persons intentionally do the same thing jointly, it is the same as if each of them had done it individually.
Section 34 can easily be understood by subdividing its essentials into three basic ingredients:
(1) A criminal act must be done by several persons;
(2) The criminal act must be to further the common intention of all;
(3) There must be participation of all the persons in furthering the common intention.
It is clear that when several persons are alleged to have committed a criminal act, each may have had a different role to play in the process.
It may not be that every hand actively indulged in the act; there are myriad possibilities for encouragement, support, help, and protection, as also active participation or commission of the act itself.
Thus, even though a particular act may have been committed by an individual, where common intention exists, and they had all acted in furtherance of that common intention, then all of them are held liable for the offence.
THE DOCTRINE OF JOINT LIABILITY, thus defined is said to have been evolved in the case of Reg v. Cruise, where, when a constable had gone to A’s home to arrest A, three other persons B, C, and D upon seeing the constable emerged from the house and physically attacked him, thereby driving him away.
The Court here held that each member of the group i.e. B, C, and D were equally liable and responsible for the blow, irrespective of whether only one of them had actually struck the blow.
Analysing the aforementioned three conditions, we see that:
Criminal Act done by Several Persons:
Here S. 34 is to be read in the light of the preceding S. 33 (The Word “Act” denotes as well a series of acts as a single act). It follows that the words ‘when a criminal act is done by several persons’ in S. 34, may be construed to mean ‘when criminal acts are done by several persons.’
The scope of S. 34 was first clearly delineated in Barendra Kumar Ghosh v. King Emperor.
In this case, the postmaster of Shankaritola was sitting in the backroom of the post office counting his money when several persons appeared at the door and demanded the money. Upon his refusal to part with it, they fired pistols at him and ran away. He died almost immediately – however, the accused was the only one who was chased down and caught holding a pistol.
In his defence he stated he was only standing guard outside the post office because he was compelled to do so by the other accused, and hence he had no intention to kill the postmaster.
This defence was quashed and he was convicted for murder u/s 302 r/w S. 34 of the IPC.
- Common Intention and the Scope thereof:
All the persons concerned with the criminal act must possess a general intention in common as to the crime.
In Mahboob Shah v. Emperor it was enunciated that a furtherance of the common design is a condition precedent to convicting each one of the persons who take part in the commission of the crime, and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime.
Common intention here must be shown to be premeditated. However, it is possible that there may be incidents in which common intention may develop on the spot, after the offenders have gathered.
Again, proof of such common intention must needs be gleaned from the facts and circumstances of the individual case. As Madhavan Nair, J., observed– “The inference of common intention within the meaning of the term in S. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case,” and it is clear that such proof is rarely available directly.
Common intention differs from ‘same’ or ‘similar’ intention-. S. 34 can only be invoked in cases of common intention– and importantly, liability, conviction and sentence will all differ depending on the nature of intention. To constitute common intention, it is necessary that the intention of each person be known to all the others and be shared by them, whereas this is not the case in ‘same’ or ‘similar’ intention.
Furthermore, in the absence of conclusive proof of common intention, individual offenders will be liable only for individual acts. The benefit of the doubt is always on the side of the accused. It is interesting to note that the Supreme Court of India has held that “mere presence together is not sufficient to hold that [two or more people] shared a common intention.”
It is imperative to note here that S. 34 is only a rule of evidence and does not create a substantive criminal offence. In another case the Supreme Court observed: “[S. 34 of the Indian Penal Code] does not create a distinct offence; it only lays down the principle of joint criminal liability. … if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder.”
The case of Balaur Singh v. State of Punjab threw into sharp relief a difficulty in imposing the rules of joint liability as far as mutual hostility and free fighting are concerned. In this case, two antagonistic groups suddenly happened to enter into a fight with each other.
Four persons (two from each group) were involved in this free fight. One of them was grievously injured and six days after the fight, he died. There were two problems before the courts in this case: firstly, to assess and account for the specific role of each of the assaulting parties, and secondly, to determine whether common intention could be proved at all in this case.
It was finally held that this being a free fight, each individual was accountable for the extent of damage he had himself caused.
This was to be determined by analysing the kind of weaponry employed by the person and the nature of the injuries inflicted by him upon the others. However, in the context of the doctrine of common intention with regard to the death of that one particular individual, it was observed that in a free fight the victims themselves are either already participants or expected/probable participants in the cross assault on each other. Hence it would be close to impossible to specifically ascribe to the accused an intention to cause injuries that would eventually result in death of that particular individual.
- Participation in the Criminal Act:
All those charged with the criminal offence must have necessarily participated in it if the principle of joint criminal liability is to be brought into operation. The Supreme Court originally held that “… it is the essence of [S. 34] that the person must have been physically present at the actual commission of the crime.
He need not be present in the actual room… but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or the other at the time the crime is actually committed.”
Thus, quite clearly the ambit of ‘participation’ in this case was to include actual presence plus prior abetment of any sort. However, in a later case the Supreme Court itself expanded this ambit and clarified that participation in all cases need not be indicated or proven only by physical presence.
Wherever offences involved physical violence, for example, it is obvious that physical presence of the accused would be an essential fact. However, where non-physical violence was called into question, for example in cheating and misappropriation, it would be completely unreasonable for physical presence to be a prerequisite in establishing joint liability.
But when once participation is proved in cases of physical violence, the accused persons will be jointly liable for the criminal acts even when the hand that technically administered the poison or delivered the fatal blow cannot be determined.
OVERT ACTS AND COMMON INTENTION
In Krishnan v. State of Kerala, the Supreme Court in no uncertain terms clarified that “… establishment of an overt act is not a requirement of law to allow S. 34 to operate inasmuch as this section gets attracted when ‘a criminal act is done by several persons in furtherance of a common intention of all…
Court’s mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused.
But then, there may be a case where the proved facts would themselves speak of the sharing of common intention: “res ipsa loquitur.” In this case, the deceased was killed by his brother and nephew over a property dispute. The brother was proved to have inflicted repeated knife injuries on the deceased leading to his death. It was reported that the nephew inflicted a few head injuries before his knife was snatched from him. But it could not be decisively proved that he (the nephew) had inflicted such injuries as to cause death.
The question before the Court was that in the absence of any overt act pointing to his guilt, could the nephew be convicted u/s 302 r/w S. 34? As aforementioned, it was held that both the brother and the nephew shared the common intention of killing the deceased and the act done was in furtherance thereof – hence S. 34 was conclusively attracted and the nephew was jointly liable for the death of his uncle.
Common intention can also be proved via circumstantial evidence
This means that no direct evidence is required to prove it – the conduct of the parties involved and the attendant circumstances, if when analysed provide sufficient reason to infer common intention, are enough to attract the doctrine of joint liability.
The conduct of parties can be a tell-tale factor even when intention coheres on the spur of the moment and is not prearranged or premeditated. It is oft-quoted in this regard:
“The incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.” Direct evidence is sometimes considered unreliable by the courts because it is generally provided by approvers or accomplices themselves, and there are rarely material particulars to corroborate such allegations of community of interest.
Section 34 of Indian Penal Code gives only a general definition as to what constitutes joint liability, it does not give any punishment for criminal acts done jointly by two or more than two persons.
This section is only a rule of evidence and it does not create any substantial offence. Section 34 on its own does not create any distinct offence and it lays down just a principle of liability that when two or more persons do something which is contrary to law, then both of them should be held liable.
The Section 34 of IPC is a PRINCIPLE OF CONSTRUCTIVE LIABILITY and the essence of that liability is existence of common intention in the minds of accused.
There is also a canon in the criminal jurisprudence that the courts cannot distinguish between the conspirators and it is possible for them to see what part is played by which conspirator in the commission of the crime, so each person is held jointly liable for the acts of another.
Since section 34 is itself not an offence, so every time when any criminal act is done by two or more persons, then both the sections i.e. section for that criminal offence and section of joint liability is applied. As no offence is prescribed under section 34 of IPC, this section is always read with other sections of IPC.