UNIT :-2

ACT IN FURTHERANCE OF GUILTY INTENT- COMMON OBJECT

SECTION 34: ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON

INTENTION-

According to Section 34, 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
it were done by him alone.

II. OBJECT OF SECTION 34:- Section 34 lays down only a rule of evidence and does not
create a substantive offence. This section is intended to meet cases in which it may be
difficult to distinguish between the acts of the individual members of a party or to prove
exactly what part was taken by each of them in furtherance of the common intention of all.
This section really means that if two or more persons intentionally do a thing jointly, it is
just the same as if each of them has done it individually. The reason why all are deemed
guilty in such cases is that the presence of accomplices gives encouragement, support and
protection to the person actually committing an act.

III. ELEMENTS OF SECTION 34: To attract the application of Section 34, the following
conditions mustbe satisfied:-

1. Some Criminal Act: - ‘Criminal act’ used in section 34 does not refer to individual acts
where a crime is committed by a group of persons. Where a crime is committed by several
persons in furtherance of common intention of all of them, each of them doing some act,
similar or diverse, big or small shall be liable for that act. ‘That act’ refers to the ‘criminal
act’ used in section 34 which means the unity of criminal behaviour which results in
something for which an individual would be punishable if it were all done by himself alone
in an offence.

2. Criminal Act Done By Several Persons: - The criminal act in question must have been
done by several persons i.e. by more than one person. The number of wrong doers should
be at least two. Most importantly, if the criminal act was fresh and independent act
springing wholly from the mind of the doer, the others are not liable merely because when
it was done they were intending to be partakers with the doer in a different criminal act.

3. Common Intention:- The words “in furtherance of the common intention of all” were
added to section 34 after words ‘persons’ in 1870 the idea for which, possibly, was
derived from the following passage of the Privy Council’s judgment:

“Where parties go with a common purpose to execute a common intention, each and
everyone becomes responsible for the acts of each and every other in execution and
furtherance of their common purpose, as the purpose is common so must be the
responsibility.” [Ref. Ganesh Singh v. Ram Raja, (1869)]
The expression ‘common intention’ means unity of purpose or a pre-arranged plan; it
has been givenvarious meanings which are as follows-
 Common intention implies a pre-arranged plan, prior meeting of minds, prior
consultation in between all the persons constituting the group [Ref. Mahboob Shah
v. Emperor, AIR 1945 PC ]
  Common intention means the mens rea necessary to constitute the offence that
has been committed [Ref. As per DAS, J., in Ibra Akanda v. Emperor, AIR 1944 Cal
HC].
 It also means evil intent to commit some criminal act, but not necessarily the same
offence which is committed [Ref. As per WANCHOO, J., in Saidu Khan v. The State,
AIR 1951 All. HC].
 Common intention implies a pre-arranged plan. Pre-arranged plan means prior
concert or prior meeting of minds. Criminal act must be done in concert pursuant
to the pre-arranged plan. Common intention comes into being prior to the
commission of the act in point of time.
 Where there is no indication of premeditation or of a pre-arranged plan, the mere
fact that the two accused were seen at the spot or that the two accused fired as a
result of which one person died and two others received simple injuries could not
be held sufficient to infer common intention [Ref. Ramachander v. State of
Rajasthan, 1970].
 However, common intention may develop on the spot as between a number of
persons and this has to be inferred from the act and conduct of the accused, and
facts and circumstances of the case [Ref. Kripal Singh v. State of U.P., AIR 1954
SC].

2. Participation In The Criminal Act:- The participation in a criminal act of a group is a

condition precedent in order to fix joint liability and there must be some overt act
indicative of a common intention to commit an offence. The law requires that the accused
must be present on the spot during the occurrence of the crime and take part in its
commission; it is enough if he is present somewhere nearby.

The Supreme Court has held that it is the essence of the section that the person must be
physically present at the actual commission of the crime. He need not be present in the
actual room; he can for instance, stand guard by a gate outside ready to warn his
companions about any approach of danger or wait in a car on a nearby road ready to
facilitate their escape, but he must be physically present at the scene of the occurrence
and must actually participate in the commission of the offence some way or other at the
time crime is actually being committed.

ABETMENT
MERE ACT OF ABETMENT PUNISHABLE

A person abets the doing of a thing who: —

(1) instigates any person to do that thing, or
(2) engages with one or more other person or persons, in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in
order to the doing of that thing, or
(3) Intentionally aids by any act or illegal omission, the doing of that thing.

Explanation I:
A person who by wilful misrepresentation or by wilful concealment of a material fact is
bound to disclose, voluntarily causes or procures or attempts to cause or procure a thing
to be done, is said to instigate the doing of that thing.
 Illustration:
A, a public officer, is authorised to arrest Z. B, knowing that fact, and also that C is not Z,
wilfully represents to A that C is Z, and thereby wilfully causes A to arrest C. Here B causes
by instigation the arrest of C.
Explanation II:
Whoever does anything either before or at the time of commission of that act, in order to facilitate
the commission of that act (Section 107)

INSTIGATION, AIDING AND CONSPIRACY

‘Abetment of Instigation’
A person abets the doing of a thing who instigates any person to do that thing. When is a
person said to instigate the doing of a thing? A person instigates the doing of a thing who,
by—
(i) Willful misrepresentation, or
(ii) Willful concealment of a material fact (which he is bound to disclose), voluntarily (i)
causes or procures, or (ii) attempts to cause or procure the doing of a thing.
The illustration to Explanation (I) elucidates the meaning. The Explanation (I) does not
define instigation. It only explains that wilful misrepresentation or wilful concealment
may in certain circumstances amount to instigation but it neither defines nor limits the
forms which instigation may take.
The word “instigate” means to goad or urge forward or to provoke, incite, urge or
encourage to do an act, person is said to instigate another, to an act when he actively
suggests or estimates him to the act by any means or language, direct or indirect, whether
it takes the form of express solicitation or of hints, insinuation or encouragements.
Thus, where a person gives to an unlawful assembly a general order to beat, it is a case of
a direct instigation. The instigation would be indirect when instead of such an order a
person raises a slogan “Allah O Akbar” or “Jai Bajrang Bali” or says, “Cowards die many
times before their death, the valiant die but once” will intend to provoke.
A instigates B to commit a crime not by saying so but by harping upon the wrongs he has
suffered; it is indirect instigation.
Instigation implies knowledge of the criminality of an act. Illustration to Explanation is an
example of instigation by wilful misrepresentation. Instigation by wilful concealment
takes place where there is some duty cast obliging a person to disclose fact.
The mere omission to bring to the notice of the higher authorities, offences committed by
other persons does not amount to abetment of those offences. It may form the foundation
for disciplinary action against him in a departmental way.
Mere failure to prevent the commission of an offence is not by itself an abetment. The law
does not require that instigation should be in a particular form or that it should be only in
words and may be by conduct; for instance a mere gesture indicating ‘beat’ or a mere
offering of money by an arrested person to the constable who arrests him may be
regarded as instigation, in one case to beat and in the other to take a bribe.
An advice can become an instigation only if it is found that it was an advice which was
meant actively to suggest or stimulate commission of an offence. To ask a person as a
mere threat to really fire a gun without intending that he should really fire it, is not to
instigate him to fire the gun.
The threat would become instigation only if it is found that in the event of the threat
having no effect the gun should in fact be fired. Mere presence is not instigation. Silent
approval, if it has the effect of inciting or encouraging the offence would amount to
abetment of the offence. For example, where a woman prepared herself for suttee.
X and Y followed her to the funeral pyre and stood by her repeating Ram, Ram and thereby
actually connived and countenanced the act. They were held guilty of abetment.
Instigation by letter is complete when its contents become known to the addressee. There
is no instigation if letter containing the incitement never reaches to addressee, but in such
case attempt to abet would be completed.
In a case of abetment by instigation it is immaterial whether the person instigated
commits the offenceor not. Considering the definition of abetment, as given in Section 109
of the Code, the instigation must have reference to the thing that was done and to the thing
that was likely to have been done by the person who is instigated. It is only if this
condition is fulfilled that a person can be guilty of abetment by instigation.

CRIMINAL CONSPIRACY

Section 120-A of the I.P.C. defines ‘conspiracy’ to mean that when two or more persons
agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means,
such an agreement is designated as “criminal conspiracy.
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 furtherance thereof.
Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not
necessary that each conspirator must know all the details of the scheme nor be a
participant at every stage. It is necessary that they should agree for design or object of the
conspiracy. Conspiracy is conceived as having three elements:
(1) agreement
(2) between two or more persons by whom the agreement is effected; and
(3) a criminal object, which may be either the ultimate aim of the agreement, or may
constitute the means, or one of the means by which that aim is to be accomplished.

MERE ACT OF ABETMENT PUNISHABLE

Section 109 :- Punishment of abetment if the act abetted is committed in consequence and
where no express provision is made for its punishment :-

Whoever abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this code for the punishment of such
abetment, be punished with the punishment provided for the offence.
Explanation :- An act of offence is said to be committed in consequence of abetment,
when it is committed in consequence of the instigation, or in pursuance of the conspiracy,
or with the aid which constitutes the abetment.
Scope :- Under this section the abettor is liable to the same punishment which may be
inflicted on the principal offender, (1) if the act of the later is committed in consequence of
the abetment, and (2) no express provision is made in the CODE for the punishment of
such an abetment. This section lays down nothing more than that if the CODE has not
separately provided for the punishment of an abetment an as such then it is punishable
with the punishment provided for the original offence.
Facts to be established for abetment:-
(a) that abetment was made either by instigation, conspiracy or aiding; and
(b) that act or offence abetted or committed
CRIMINAL CONSPIRACY-
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.
Explanation- It is immaterial whether the illegal act is the ultimate object of such
agreement or is merely incidental to that object”

The definition simply means that when two or more persons agree to do some illegal act
or agree to doa 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 common law definition of ‘CRIMINAL CONSPIRACY’ was stated first by Lord Denman
in Jones’ case that an indictment for conspiracy must “charge a conspiracy to do an
unlawful act by unlawful means” and was elaborated by Willies, J. on behalf of the Judges
while referring the question to the House of Lords in Mulcahy v. Reg (1868) and the
House of Lords in unanimous decision reiterated in Quinn v. Leathem 1901 as under:
“A conspiracy consists not merely in the intention of two or more, but in the agreement of
two or moreto do an unlawful act, or to do a lawful act by unlawful means. So long as such
a design rests in intention only it is not indictable. When two agree to carry it into effect,
the very plot is an act in itself, and the act of each of the parties, promise against promise,
actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object
or for the use of criminal means.”

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 120-B :- Punishment of criminal conspiracy :-

Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment of 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.
Whoever is a party to 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.

Scope :- The punishment for a criminal conspiracy is more severe if the agreement is one
to commit a serious offence, it is less severe if the agreement is to commit an act, which
although illegal, is not an offence punishable with death, imprisonment for life or rigorous
imprisonment for more than two years.
This section applies to those who are the members of the conspiracy during the
continuance. Conspiracy has to be treated as a continuing offence and whoever is a party
to the conspiracy during the period for which he is charged is liable under this section.

Hon'ble Supreme Court in case of Noor Mohammad -versus- State of Maharashtra, reported
in AIR 1971 SC has discussed about the distinction between section 34, 109 and 120-B of IPC
in the following words,

“Section 34 embodies the principle of joint liability in the doing of a criminal act, the
essence of that liability being the existence of a common intention. Participation in the
commission in the offence in furtherance of common intention invites its application.
Section 109 on the other hand may be
attracted even if the abettor is not present when the offence abetted is committed
provided he has instigated the commission of the offence or has engaged with one or more
other person in a conspiracy to commit an offence and pursuant to that conspiracy some
act or illegal omission takes place or has intentionally added the commission of an offence
by an act or illegal omission. Criminal conspiracy differs from other offences in that mere
agreement is made an offence even if no step is taken to carry out the agreement. Though
there is close association of conspiracy with incitement and abetment the substantive
offence of criminal conspiracy is somewhat wider in amplitude then abetment by
conspiracy as contemplated by section 107 of I.P.C. A conspiracy from its very nature is
generally hatched in secrets. It is therefore extremely rare that direct evidence in proof of
conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers.
But like other offences,criminal conspiracy can be proved by circumstantial evidence”