Introduction and Research Methodology
The concept of Joint Liability is present both in civil and criminal law. But here we will discuss only criminal joint liability.
The concept of joint liability comes under Section 34 of IPC which states that “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 section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.
The ingredients of section 34 of IPC are-
1) A criminal act is 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.
Let us take a hypothetical situation- There are two persons A and B. Both of them decided to rob a bank to earn some quick money. Both of them decided in advance that they will not hurt anybody and they will only take the money. After reaching the bank A tells B to guard the gate of the bank while he takes the money. When A was taking the money, security guard came running towards A. A out of fear, stabbed the security guard with a knife due to which he died. After that A ran with B along with the knife. In this case, even though B had no intention of killing the security guard but he will also be liable for the murder of security guard and robbery along with A.
Whether we can study section 120 A of IPC for understanding the concept of Joint Liability?
According to section 120A of IPC- “When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit and offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The section can be explained as two or more than two persons perform an illegal act and deciding of that act in advance is criminal conspiracy.
Statement of problem
Sometimes it happens that a person is not a part of the conspiracy but due to the presence of the person at the site of offence, the person is held jointly liable believing that the person was also a part of the illegal act.
Objective of the study
· The main objective to carry out this project is to know the basic difference between section 120A and section 34 of IPC.
· To know the scope of joint liability under section 34 of IPC
Hypothesis of the study
I have assumed that the presence of the person at the sight of the offence is not conclusive evidence that he is a part of the conspiracy.
Scope of the study
The research is a doctrinal research. The researcher here would like to study though the judicial viewpoints by its decision given in various cases. The researcher has tried to analysis the topic by studying various authors, experts, cases of The Indian Apex Court and High courts, articles, etc. The researcher has strictly followed the boundary and has studied only with reference to Indian authors, experts, cases, etc
The present research study is mainly a doctrinal and analytical. Keeping this in view, the researcher has gone through different books, journals, Web references, E-journal, reports etc.
The relevant material is collected from the secondary sources. Materials and information are collected both legal sources like books.
Laws Relating to Joint Liability
The concept of Joint Liability is embodied under Section 34 of Indian Penal Code – “Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if done by him alone.” When IPC was enacted in 1860, section 34 at that time didn’t included words ‘in furtherance of common intention’, then an amendment was made in year 1870 to amend Indian Penal Code and then these words were included in the section 34. The amended section 34 of IPC simply says that all those persons who have committed a crime with a common intention and they have acted while keeping in mind the common intention, then everyone should be liable for the acts of another done in common intention as if the act is done by the person alone. It happens that different persons perform different acts in the commission of the act or non commission of the act, even though when section 34 applies, all the persons in group are jointly liable for the acts of another.
The concept of Joint Liability was evolved in the case of Reg v. Cruise, in this case police had gone to arrest A at his home. B, C and D were also present at that time. When all the three persons saw police coming, they came out of the house and gave a blow on the police and they drove them away. The court held that all the three are liable for the blow even if the blow was given by only one person.
The ingredients of Section 34 are:
· There should be criminal act- Criminal Act means that either committing the act or omitting to commit the act, which is an offence under IPC.
· That criminal act is done by several persons- For the Section to apply, it is necessary that the act is done by more than one person as if the act is done by only one person then this section does not applies.
· That criminal act is done in the furtherance of common intention of all- it means that the persons should have decided in advance about the commission of the act and every one of them have acted keeping in mind that common intention.
· There should be participation in some way or other in the commission of the act- the persons cannot be held liable if they have decided what to do and then they have not done that thing, every person who is a part of the group should do something so as to participate in the commission of the act.
The case of Barendra Kumar Ghosh v. King Emperor was one of the earliest cases where the court convicted another person for the act of another done in furtherance of common intention. The facts of the case are, a group of armed persons entered in the police station on 3rd August, 1923. They demanded money from the post master where he was counting the money. They fired from the pistol at the postmaster, due to which the postmaster died on the spot. All of the accused ran away without taking money. The Police was able to catch Barendra Kumar Ghosh who was standing outside the post office as a guard. Barendra’s contention was that he was only standing as a guard but the Calcutta high court convicted him for murder under section 302 r/w section 34 of Indian Penal Code. When he appealed in the Privy Council, his appeal was rejected.
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. In the above case also, section 34 was applied with section 302 of IPC so as to convict the offender. As no offence is prescribed under section 34 of IPC, this section is always read with other sections of IPC. Some of the sections in which the concept of joint liability is discussed in IPC are section 34, section 120A and 120 B, section 149 of IPC.
Section 120A of Indian Penal Code gives definition as to what constitutes criminal conspiracy- “when two or more persons agree to do, or cause to be done,-
· An illegal act, or
· An act which is not illegal by means, such an agreement is designated as criminal conspiracy provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”
The definition simply means that when two or more persons agree to do some illegal act or agree to do a legal act by illegal means then that amounts to criminal conspiracy. The act is only which has been agreed by the parties earlier and not any other act. The term illegal has been defined in the Indian Penal Code in section 43- “ the word illegal is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever is illegal in him to omit.”
When the IPC was enacted, it had only two provisions through which conspiracy was made punishable. One provision was the abetment by conspiracy and other was special offences which require more than 2 persons for committing them. When the IPC was amended in the year 1870, the law of conspiracy was widened by the insertion of section 121A which is waging war or attempting to wage war against government of India. In the year 1913 when Indian Criminal Law Amendment Act came, then chapter V-A was added in the Indian Penal Code and thus adding two sections i.e. section 120A and section 120B.
The main essence of conspiracy that is embodied in section 120A of Indian Penal Code is the unlawful agreement and ordinarily the offence is complete when the unlawful agreement is framed. It is not necessary that there should be some overt act in furtherance of the agreement made and it is not at all necessary that the object for which the conspiracy was made should be achieved.
Section 120B of Indian Penal Code prescribes punishment for the offence of criminal conspiracy- “Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”
This section gives punishment for criminal conspiracy. It simply says that every person who is a part of criminal conspiracy for offences punishable with death, imprisonment for life or rigorous imprisonment for two years or upwards will be punished in the same was as if that person has abetted the offence and whoever is a party to any other conspiracy will be punished with imprisonment for a period not more than six months or fine or both.
A view came that a person should not be charged for conspiracy, if due to that conspiracy, some act has been omitted. This view was not correct. The criminal conspiracy is itself an independent offence and even if other offences are committed in pursuance of criminal conspiracy, then also the person is charged for criminal conspiracy as the liability of conspirators is still present.
Section 149 of Indian Penal Code deals with offence in which every member of an unlawful assembly is guilty of offence committed in prosecution of common object. The sections says that-“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” This section simply means that if any member of an unlawful assembly commits an offence in prosecution of common object for which the assembly was formed, if the members of the assembly knew that such act is likely to be committed for achieving that common object, then every person who is a member of that unlawful assembly will be guilty of that offence. The punishment under section 149 is same as that of the offence which is committed in the unlawful assembly. If the prosecution wants to prove a person under section 149 of IPC, then it has to prove the presence of the person at the site and his participation in the unlawful assembly. This section creates a constructive liability or vicarious liability on the members of the unlawful assembly for the unlawful acts committed in pursuance of the common object. Once the case of a person falls in this section, the question that he did nothing with his own hands is immaterial. He cannot take the defence that he didn’t commit that offence, every person in an unlawful assembly knows the natural and probable consequences of the object to be achieved by the unlawful assembly. Mere part of an unlawful assembly will make all the persons liable for the unlawful act of other members. In this section, the liability of the members other than the principle offender is based on the fact that whether other members knew that the offence that was committed was likely to be caused in pursuance of the common object.
Case Laws Analysis
In the case of Rangaswamy v. State of Tamil Nadu, accused no. 3 was convicted by the trial court for committing offences contrary to section 302 r/w section 34; section 307 r/w section 34 and section 506 of IPC. He came to the Supreme Court with the pleading that he was only with friendly terms with accused no. 1 and accused no. 2 and he did not shared common intention with them to kill the deceased or to attack deceased companion. He said that it was by chance that he was present at the site of offence and he had not participated in the commission of the offence. The accused no. 1 had a prior enmity with the deceased as he was accused of murdering brother of accused no. 1 and then he was released on bail. The occurrence of crime took place in bazaar. The court held that presence of accused no. 3 was established at the site of offence but there is no evidence to show that he shared a common intention with the other two accused. The Supreme Court acquitted accused no. 3 of all the charges.
In the case of William Stanley v. State of Madhya Pradesh, the accused in this case was a 22 year old man who was in love with the sister of the deceased. The deceased didn’t like his intimacy. On the day of occurrence, there was a quarrel between the deceased and the accused and the accused was asked to go away from the house. Later, the accused returned with his younger brother and called the sister of deceased to come out. Instead of the sister, the deceased brother came out. There was a heated exchange of words. The accused slapped the deceased on the cheek. Then accused snatched hockey stick from his younger brother and gave one blow on the head of deceased due to which his skull was fractured. The deceased died in hospital 10 days later. According to doctor, the injury was such as likely to cause death. Both accused and his co- accused brother were charged for murder under section 302 read with section 34 of IPC. The co-accused brother was acquitted of all the charges but appellant was held guilty under section 302 of IPC. On the facts of the case, the conviction was altered into culpable homicide not amounting to murder under section 304 of IPC.
In the case of Chhotu v. State of maharashtra, the complainant party was attacked by the accused as a result of which one person died. The witness produced stated that three persons were assaulting the deceased and the fourth one was simply standing holding a knife in his hand. It was held that only three accused were liable under section 302/34 of IPC and fourth one didn’t share the common intention.
In the case of Dadasaheb Patalu Misal and others v. State of Maharashtra, an incident happened at the village Panchegaon-Khurd, Taluka Sangola, District Solapur on the morning of 30th July 1980 around 7.30 A.M. The case is about 32 accused who formed into an unlawful assembly with the common object of forcibly removing the wood from the scene of offence. They were even ready to do a murderous assault it required. The accused armed themselves with axes, sticks, spears, iron bars and whips, etc. and went to the scene of offence on that particular day and started removing woods. The complainant and his brothers also came to the site. When complainant stopped them from taking away wood, accused no. 1 suddenly inflicted an axe blow on ganpati. Then other accused also inflicted blows on ganpati. Accused no. 2 inflicted blow on vithoba who was going towards ganpati. The court convicted only some of the persons for unlawful assembly and the remaining were acquitted. The court also said that presence of a person at the site of offence even with weapons does not amount that he is a part of the offence.
In the case Ramdan and another v. State of Rajasthan, the appellants were convicted under section 307/34 of IPC. The facts are as follows. On 30th april, 1970, head constable Jangbahadur along with his party proceeded for patrolling. At about 6 P.M., they observed footprints of four camels having entered into Indian Border from Pakistan. The footprints were followed. Lakinram along with his party was also following the footprints. When his party reached outside the village Bogniyai, it was observed that the foot-prints of the two camels were diverted towards village Negarda and of the two camels went straight. Then there was a firing between accused party and border security force. The appellants were just moving here and there at the time of firing and finally sat under a tree. The court acquitted both the persons saying that section 34 is not applicable.
In the case of Rambaboo son of Kailash Narain and others v. State, a F.I.R was lodged by Bhajan Lal at 11:30 PM on 2nd september, 1979 in Kakwan district, Kanpur. He said in his F.I.R that on the aforesaid date akanoont about 8:30 PM, Ram Saran Bahelia came to his house from Ambari Har and told him that his brother Raj Kumar Pradhan had been murdered in Usar land between village Anayee and Sargavan. Bhajanlal then went to that place with other people in the village and saw that the dead body of Raj Kumar is in the field of Mohan Lal Dhanuk. Then he went to lodge complaint. A number of names came up in investigation. Dayashankar, a prosecution witness said that he heard them making conspiracy against Raj Pradhan. The appellants were acquitted of all the charges against them.
In the case of State of Haryana v. Pradeep Kumar and others, some persons were charged under murder of Krishnan Kumar Khandelwal who was a major contestant and majority of party members were supporting him. The respondent who was also present at the time of murder and believed to be main conspirator was acquitted by the court. When the state appealed against the acquittal of Pradeep Kumar, it was rejected by Supreme Court.
In the case of Raju@Raj Kumar v. State of Rajasthan, the facts of the case are as follows, person filed a complaint in police station that when he and his father were at his uncle’s residence, 10 to 12 persons came in the room and after surrounding his father, they killed him. According to the FIR, there was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif, Chhitar and Ramesh Shanker on the other hand. It was said the actual murder was done by Iqbal, Aziz, Raju Naik (appellant herein), Mahendra Singh, Hamid and Firoz. According to post-mortem report, the death was due to Syncope. Then court held that the conviction and sentence passed by session court is not correct and it ordered the acquittal of accused. The accused number 8 Sayeed was also acquitted of the charges as the allegations against him could not be proved.
In the case of Heera and another v. State of Rajasthan, a person was crushed by a vehicle at the bus stand. On the statement of witnesses, the police found that murder was done by 7 persons. The accused Heera and Rama @ Ram Singh along with co accused Anna. Mangla, Modu, Dharma and Satya Narayan were arrested. Some of the co-accused were acquitted and remaining were not. The court allowed the appeal and set aside the conviction of accused and he was set free.
In the case of Balaji Gunthu Dhule v. State of Maharashtra, the Supreme Court set aside the conviction of petitioner. The facts of the case are as follows; there was a quarrel between Ranga Rao (deceased) and Shantabai (other accused who died during trial). There was allegation that the accused persons have killed Ranga Rao. The appellant in his statement under Section 313 of the Code admits that there was a quarrel between Shantabai (deceased accused) and P.W. 10 and while rushing to the spot of quarrel the deceased involuntarily fell on a cement concrete platform - Otta and thereby suffered the fatal injury. The court then acquitted the appellant even though he was present at the site of offence.
Conclusion and Suggestions
The concept of joint liability is embodied in section 34 of Indian penal Code. This section just gives the definition of joint liability and it does not give any punishment for the same. This section has to be read with various other sections of IPC like section 120A which gives definition of criminal conspiracy, section 120 B which gives punishment for criminal conspiracy and section 149 which deals with unlawful assembly. This section 34 cannot be applied on its own and has to be applied with some other section so as to make a person jointly liable for that offence.
In the hypothesis the researcher has assumed that the presence of a person at the site of offence is not conclusive evidence that he is a part of the offence. The hypothesis of the researcher stands true that it is not necessary that all the persons who are present at the site of the offence are some way or other related to the crime committed. With the help of cases, the hypothesis of researcher stands true. In all the above cases the accused persons were present when the crime was committed and at the first instance they were charged for committing the offence but later on they were acquitted by the higher court. It is also not necessary that the persons always share the common intention and commit crime. It may be possible that they are present at the scene just by chance and shared no common intention which is a vital ingredient of section 34 of Indian Penal Code.
At last, the researcher wants to say that at any site of offence it is not at all necessary that only two persons are present i.e. accused and victim, but a number of other persons like witnesses are also present at the scene of crime most of the time. So making a person liable just because he was present at the scene of crime or was near to the victim is not justified.
# J. Chandrachud, Y K and Manohar VR, Indian Penal Code- Ratanlal & Dhirajlal 31st edition 2007
# Atin Kumar Das, ” Joint Liablity and Group Liablity under IPC 1860: A critical analysis” , available at http://www.myarticle.com/Law/Criminal-Law/joint-liability-and-group-liability-under-indian-penal-code-1860-a-critical-analysis.html
# Manohar, V R, Indian penal Code-Ratanlal & Dhirajlal 33rd edition 2010
# Section 34, Indian Penal Code, 1860
# Pillai, PSA Criminal Law, KI Vibhute 10th edition Reprint 2012 page 349
# (1838) 8 C & P 541 and referred in Pillai, PSA Criminal Law, KI Vibhute 10th edition Reprint 2012 page 349
# Section 34, Indian Penal Code, 1860
# AIR 1925 PC 1
# Chandrachud YV, Manohar VR, Indian Penal Code Ratanlal & Dhirajlal 31st enlarged edition reprint 2007 page 125
# Section 120A, Indian Penal Code
# Section 43, Indian Penal Code
# Pillai, PSA Criminal Law, KI Vibhute 10th edition Reprint 2012 page 324-325
# Pillai, PSA Criminal Law, KI Vibhute 10th edition Reprint 2012 page 327
# Section 120B, Indian Penal Code
# Chandrachud YV, Manohar VR, Indian Penal Code Ratanlal & Dhirajlal 31st enlarged edition reprint 2007 page 604
# Section 149, Indian Penal Code
# Chandrachud YV, Manohar VR, Indian Penal Code Ratanlal & Dhirajlal 31st enlarged edition reprint 2007 page 690
# AIR 1989 SC 1137
# AIR 1956 SC 116
# 1997 CrLJ 4394
# 1978 WLN UC 339 available at indiakanoon.org
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