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Published : May 22, 2012 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 5423 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Common Intention

Common Intention is known as a prearranged plan and acting in concert pursuant to the plan. It must be proved that the Criminal act was done in concert pursuant to the pre-arranged plan. It comes into being prior to the Commission of the act in point of time, yet it need not be a long gap. The gap need not be long sometimes common intention can be developed on the spot. The fundamental factor is a pre-arranged plan to execute the plan for the desired result. Each of such person will be liable in an act done in furtherance of common intention as if the act was done by one person. Common Intention does not mean the similar intention of several person. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them

Basic Intention And Specific Intention:
In some states, a distinction is made between an offense of basic intent and an offense of specific intent.

Offenses requiring basic intent specify a mens rea element that is no more than the intentional or reckless commission of the actus reus. The actor either knew (intended) or deliberately closed his mind to the risk (recklessness) that his action (actus reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.

A limited number of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:
(a) Some legislature decide that particular criminal offenses are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intention or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Persons Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:
1. unlawfully and maliciously – the modern interpretation of "malice" for these purposes is either intention or recklessness, "unlawfully" means without some lawful excuse (such as self-defence); and with

2. the intent either to cause grievous bodily harm or to resist lawful arrest.

The rule in cases involving such offenses is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature's express requirement can be seen to be satisfied.

(b) The inchoate offenses such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offense, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offense at some time in the future, a clear subjective intention to cause the actus reus of the full offense must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offense, the accused may change his or her mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.
At times a forensic psychiatric examination may be helpful in ascertaining the presence or absence of mens rea in crimes which require specific intent. In R v Mohan (1975) 2 All ER 193 it was held that direct intention means, "aim or purpose" - "a decision to bring about, insofar as it lies within the accused's power, the commission of the offence..no matter whether the accused desired that consequence of his act or not." In Holloway vs United States, the United States Supreme Court case upheld the use of "conditional intent" as a necessary element of the crime of carjacking.


In India, the common intention is dealt under section 34 of Indian Penal Code, 1860. Section 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.

Ingredients Of Section 34 Of IPC:
(1) Mere surrender by appellant alongwith accused before police does not show meeting of minds as to bring the case within ambit of section 34; (Rangaswami v. State of Tamil Nadu, (1989) Cr LJ 875: AIR 1989 SC 1137)

(2) When an offence is sought to be proved only on circumstan­tial evidence, the allegations of common intention under section 34 normally cannot be established in absence of meeting of mind, the overt act of the accused, by their conduct, by using the weapons by their utterance of words; (Santosh Desai v. State of Goa, (1997) 2 Crimes 666 (Bom)).

(3) In order to bring a case under section 34 it is not neces­sary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of occurrence; ( Hari Om v. State of Uttar Pradesh, (1993) 1 Crimes 294 (SC)).

(4) It has been held that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing from the scene cannot absolve the accused; (Lallan Bhai v. State of Bihar, AIR 2003 SC 333)

Common intention

             Difference between ’common intention’ and ‘common object’

Participation in the Criminal Act.

 (1) The burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherence of common intention at a prior concert; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (8) SCC 154: 1999 (6) JT 14: 1999 (4) Crimes 78 (SC).

 (2) When the accused rushed with sword drawn itself showed that he shared the common intention hence liable for conviction under section 300, read with section 34; (Abdulla Kunhi v. State of Kerala, AIR 1991 SC 452.)

 (3) The contention that the appellant was physically not in a position because of the sixty per cent. disability due to polio on his lower limbs, to hold the hand of the deceased cannot be accepted. The fact that the accused held the hand of one of the deceased to facilitate assailants to assault deceased, is said to have shared common intention of committing murder of deceased; (Major Singh v. State of Punjab, AIR 2003 SC 342.)

  (4) Where the evidence did not establish that particular accused has dealt blow the liability would devolve on others also who were involved with common intention and as such conviction not sustainable; (State v. T.K. Sadashivaiah Din Kodimallappa, 1999 (1) CCR 152 (Kant).)

(5) "Section 34 has been enacted on principle of joint liability in the doing of a criminal act, the section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several person arises under Section 34 if such criminal act is done in furtherance of a common intention of the person who join in committing the crime. Direct proof of common intension is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. (Sachin Jana & Another vs State of West Bengal, 2008 (2) scale 2 SC)

 

 A clear distinction is made out 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 34 and 149, they also to some extent overlap and it is a question to be determined on the facts of each case; Chittarmal v. State of Rajasthan, AIR 2003 SC 796.

  (1) Both sections 149 and 34 deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of section is, therefore, no bar in convicting the accused under substantive section read with section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all; Nethala Pothura­ju v. State of Andhra Pradesh, (1991) Cr LJ 3133 (SC).

 (2) In order to convict a person vicariously liable under section 34 or section 149 it is not necessary to prove that each and everyone of them had indulged in overts acts; Ram Blias Singh v. State of Bihar, (1989) Cr LJ 1782: AIR 1989 SC 1593.

 (1) To apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked; Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083.

 (2) It requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert: Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555: 1999(6) JT 560: 1999 (2) JCC (SC) 471.

 (3) If some act is done by the accused person in furtherance of common intention of his co-accused, he is equally liable like his co-accused; State of Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H).

 (4) In the instant case, there was a long standing enmity between two rival factions in a village, and proceedings under the Criminal Procedure Code were pending against members of both factions. On the day fixed for a hearing in the Magistrate’s Court in a neighbouring town, members of both factions left their village armed with sticks and lathis. While one faction was waiting on the roadside for a bus, the other faction arrived and a fight ensued in which severe injuries were caused on both sides, as a result of which one man died. The members of the opposite faction were charged and convicted under sections 302/34 I.P.C. It was held that the mere presence of a person armed with a deadly weapon at the spot of a crime does not necessarily make him a participator in a joint crime in every case, because for the purpose of section 34 only such presence makes a man a participant in a joint crime as is established to be with the intention of lending weight to the commission of a joint crime; Jamun v. State of Punjab, AIR 1957 SC 469.

 

Conclusion:
Intention is defined in R. v Mohan as "the decision to bring about a prohibited consequence". The real concept of the section 34 of IPC is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. One should not forget that section 34 does not speak “the common intentions of all” nor does it speak “an intention common to all”. Under the provisions of Section 34 the essence of the liability is to found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. . To prove the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be its pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.
******************
http://en.wikipedia.org/wiki/Intention_(criminal_law)




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