What do you mean by “Common Intention”? How does it differ from “Common Object”? [MPCJ 2016]
Ans. Section 34 of the IPC is based on an English case Reg vs Cruse 1838 SC & P 541. It simply lays down a rule of evidence and does not create any substantive offence. Under it, the basis of liability is not actually committing of the offence with own hand rather it is sharing of ‘common intention’ with co-accused to commit an offence. Accordingly, once a common intention is shown to exist then irrespective of the actual role in the offence, all accused are vicariously liable for the acts of others which is done in furtherance of the common intention of all.
Since, common intention is sine qua non for liability under section 34 of IPC. Hence, its salient feature needs to be spelt distinctly in order to identify its existence or non- existence in any particular case. The Hon’ble Apex Court in Pandurang vs The State Of Hyderabad, AIR 1955 SC 216 held that common intention requires a pre- arranged plan in a prior meeting of mind. If such prior concert is lacking then two or more accused can have similar intention but that cannot qualify to be called common intention as held by Privy Council in leading case Mahbub Shah vs Emperor,(1945) 47 BOMLR 941 . But, it is equally important to mention that such prior meeting of mind or concert need not to be very elaborate. It can be formed or develop even at the spur of moment as held by Hon’ble Apex Court in Dukhmochan Pandey vs State of Bihar, AIR 1998 SC 40. In each and every case it is question of fact whether mutuality of mind is reached because of meeting of minds and fusion of idea or not by looking attending circumstances of the case and also the mutually complimentary conduct of the accused.
Difference:- Both section 34 of IPC and section 149 of IPC deal with group liability. In fact, Hon’ble Apex Court in Karnail Singh v. State 127. AIR 1954 SC 204 went on to hold that sections 34 and 149 overlap to each other to some extent. But, despite of that , there is real and substantive distinction between the aforesaid two provisions which may be discussed as under –
- Section 34 of IPC incorporates a rule of evidence. Whereas, section 149 of IPC creates a substantive offence.
- Under section 34 of IPC requirement is of two or more accused. Whereas, under section 149 of IPC there has to be five or more persons to constitute an unlawful assembly.
- Under section 34 of IPC the liability originates with respect to act done in furtherance of common intention of all. Whereas, under section 149 of IPC makes liable for the act done in furtherance of common object and also even for acts known to be likely to be committed in prosecution of the common object.
- Under section 34 of IPC there has to be participation is some action whether by overt or covert act. Whereas, under section 149 of IPC mere membership of the assembly at the time of the committing of the offence is sufficient to fasten with liability.