COMPLICITY & JOINT LIABILITY

ARUSHI BAJPAI
For the sin ye do by two and two
ye must pay for one by one!
- Kipling, Tomlinson
• What is the reason behind making a provision for group liability?
• What is the liability of various persons participating in the offence, especially when they
have committed different acts in the course of committing the same offence?
 JOINT LIABILITY IN INDIAN PENAL
CODE

Sections 34 to 38, 149, 396, 460 - lay down the basic rules of criminal
liability of individuals who commit a crime in a group or share with
others the commission of a crime.
+
Abetment (Section 107 to 120)
+
Persons harboring criminals or others ( Sections 130, 136 etc.)
• Section 396. Dacoity with murder.—If any one of five or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

• Section 460. All persons jointly concerned in lurking house-trespass or house-breaking by night
punishable where death or grievous hurt caused by one of them.—If, at the time of the committing
of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall
voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly
concerned in committing such lurking house-trespass by night or house-breaking by night, shall be
punished with 1[im­prisonment for life], or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
 COMPLICITY

 When a person helps or encourage others to commit crime is said to be

complicity.
 Also commonly referred as aiding or abetting.
 Person who complicit is said to be ‘accomplice’
 Faces same degree of guilt and punishment as the individual who
committed the crime.
 Intentionally/ voluntarily encouraged or assisted in commission of the
crime.
 ELEMENTS OF COMPLICITY

 Crime was committed by someone else

 Defendant aided, counseled, commanded or encouraged the person
who committed the crime
 Requisite Mental state
 S E C T ION 3 4 : A C T S D ON E BY S E V E R A L
P ER S ON S I N F U RT H ER A N C E OF C OM M ON
I N T EN T I ON

• When a criminal act is done by

several person,
• In furtherance of a common intention
of all,
• Each of such person is liable for that
act in same manner as if it were done
by him alone
 DECONSTRUCTING SECTION 34

1. Criminal act
2. Done by several persons
3. In furtherance of the common intention of all
4. Each of such persons is liable for that act in the same manner as if it
were done by him (her/them) alone.
 TRAJECTORY OF SECTION 34
THROUGH CASE LAWS

I. Regina v Cruse (1838):

A constable was beaten up by a few people when he had gone to arrest
one of their friends. It was held that each person was equally responsible
for the attack whether he actually struck the constable or not.
 • SECTION 33- ACT, OMISSION
• Section 34- Common Intention
I. Prior meeting of mind (known, planned,
pre meeting of minds)
II. May be on the spot (but must be shared
SECTION 33, by everyone)
III. Doesn’t mean similar intention
34 common intention can be also gathered from
the
1. Conduct of the accused
2. Circumstances of the case.
This is a rule of evidence and not substantive
law
 POINTERS ABOUT COMMON INTENTION

1. Premeditation of minds is necessary.

2. The common intention may develop at the spur of the moment but
should be shared among each other.
3. Common intention can only be proved by facts and circumstances of
the case.
4. Common intention is not similar intention.
5. Benefit of doubt shall be given to accused. And if common intention is
not present Section 38 shall apply.
 PARTICIPATION

• Participation in some form or the other is essential and is a condition

precedent to a finding of joint liability.
• Need not be in the form of physical presence
• The establishment of an overt act is not a necessity under S 34
 BARENDRA KUMAR GHOSH V KING
EMPEROR (1925, PC)

• On August 3rd, 1923, the Sub-Postmaster at Sankaritolla Post Office was counting money at
his table in the back room, when several men appeared at the door which leads into the room
from a courtyard, and, when just inside the door, called on him to give up the money. Almost
immediately afterwards they fired pistols at him. He was hit in two places, in one hand and
near the armpit, and died almost at once. Without taking any money the assailants fled,
separating as they ran. One man, though he fired his pistol several times, was pursued by a
post office assistant and others with commendable tenacity and courage, and eventually was
secured just after he had thrown it away. This man was the appellant; the others escaped. The
pistol was at once picked up and was produced at the trial.
“They also serve who only stand and wait” – Justice Sumner,
Para 31
 SECTION 35

• When such an act is criminal by reason of its being done with a criminal
knowledge or intention.—Whenever an act, which is criminal only by reason
of its being done with a criminal knowl­edge or intention, is done by several
persons, each of such persons who joins in the act with such knowledge or
intention is liable for the act in the same manner as if the act were done by him
alone with that knowledge or intention.
DIFFERENCE BETWEEN 34 AND
35IPC
MEHBUB SHAH V EMPEROR (1945) 47
BOMLR 941

• On the date of 24 Aug 1943, at about sunrise. Allahdad

(deceased) went for cutting reeds (a tall, slender-leaved plant
of the grass family, which grows in water or on the marshy
ground) growing off the bank of river Indus, with Hamidullah
and few others. They were the residents of village Khandakel.

• After having travelled for about a mile downstream they saw

Mehbub Shah was bathing on the Bank of the river.

• They were collecting reeds from the land of Mehbub Shah.

• Mehbub Shah warned them against cutting of reeds from the
land belonging to him.
• But Allahdad and others ignored his warning and started to
return after cutting and collecting 15 bundles of reeds.
• While they were returning with the bundle of reeds and sailing
upstream in the river, one Ghulam Quasim Shah, nephew of
Mehbub Shah, asked them to deliver him the reeds that were
collected from his uncle’s land.
• But Allahdad and his friend refuse to deliver reeds.
• Then he caught the rope of the boat and pushed Allahdad and
give him a blow with a stick. Then Allahdad picked up a
bamboo pole from the boat and struck Ghulam. Ghulam then
shouted for help.
• Then it was that Wali Shah and Mehbub Shah came up with loaded guns. Wali
Shah fired at Hamidullah causing him injurises. Wali Shah shot dead AllhaDad
and absconded, and he was not apprehended. But Mahbub Shah apprehended
by the police.
 ISSUE

• Whether there were prior meetings of mind between Mahbub

Shah and Wali Shah? Will they both be held liable for murder?
(Para 5)
In 1870, it was amended by the insertion of the words "in
furtherance of the common intention of all" after the word
"persons" and before the word "each," so as to make the object
of the section clear.
To invoke the aid of Section 34 successfully, it must be shown
that the criminal act complained against was done by one of the
accused persons in the furtherance of the common intention
of all; if this is shown, then liability for the crime may be
imposed on any one of the persons in the same manner as if the
act were done by him alone.
• Ghulam Ali has no common intention of killing any member of
the complainant party as he did no more than ask his
companions to come to his assistance when he was attached
with a pole by the deceased and that he could not have been
aware of the manner in which assistance was likely to be
rendered to him or his friends were likely to shoot at and kill on
man or inquire another
How to infer common intention? (para 5)
- Common intention within the meaning of the section implies
a pre-arranged plan, and to convict the accused of an
offence applying the section it should be proved that the
criminal act was done in concert pursuant to the prearranged
plan.
- As has been often observed, it is difficult if not impossible to
procure direct evidence to prove the intention of an
individual; in most cases it has to be inferred from his act
or conduct or other relevant circumstances of the case.
Is common intention the same as similar intention? (Para 7)
Their Lordships are prepared to accept that the appellant and Wali Shah had
the same intention, viz., the intention to rescue Quasim if need be by using
the guns and that, in carrying out this intention, the appellant picked out
Hamidullah for dealing with him and Wali Shah, the deceased, but where is the
evidence of common intention to commit the criminal act complained
against, in furtherance of such intention? Their Lordships find none. Evidence
falls far short of showing that the appellant and Wali Shah ever entered into a
premeditated concert to bring about the murder of Allah Dad in carrying out their
intention of rescuing Quasim Shah. Care must be taken not to confuse same or
similar intention with common intention; the partition which divides "their
bounds" is often very thin; nevertheless, the distinction is real and
substantial, and if overlooked will result in miscarriage of justice.
• Mahbub Shah and Wali Shah stood in a different footing. It is
difficult to believe that when they fired the shots, they did not
have common intention of killing one or more of the
complainant party. If so, both of them are guilty
• Common intention under section 34 required
prearranged plans.
• There were no evidence and there were no circumstances from
which it might be inferred that the appellant must have been
acting in concert with Wali shah in pursuance of common plan
• The appellant and mahbub Shah has same intention i.e. the
intention to rescue Quasim if needed, be by the guns. Evidence
falls far short of showing that appellant and wali shah and
mahbub ever entered into any premediated concert to bring
about the murder of Allah Dad.
• There must not be a confusion between same or similar
intention and common intention
• For the reason indicated above their lordship have humbly
advised his majesty that the appellant having succeeded in his
appeal, his appeal should be allowed and his conviction for
murder and the sentence of death are set aside
 PRIYA PATEL V STATE OF MP 2006

FACTS:
• Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after
attending a sports meet.
• When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the
accused appellant) met her at the railway station and told her that her father has asked him to
pick her up from the railway station. Since the prosecutrix was suffering from fever, she
accompanied accused Bhanu Pratap Patel to his house. He committed rape on her.
• When commission of rape was going on, his wife, the present appellant reached there. The
prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped
her, closed the door of the house and left place of incident.
• Can a woman be held liable for rape?
• Trail court- Punished both husband and wife for rape
• High Court punished- Husband for rape and wife for gang rape after interpreting the term
‘person’ in the section
• Supreme Court- Punished husband but said rape can’t be committed by woman so
woman can’t even frame an intention of committing such crime.
• ”A woman cannot be said to have an intention to commit rape. Therefore, the counsel for
the appellant is right in her submission that the appellant cannot be prosecuted for
alleged commission of the offence punishable under Section 376(2)(g).”
• The residual question is whether she can be charged for abetment. This is an aspect
which has not been dealt with by the Trial Court or the High Court. If in law, it is
permissible and the facts warrant such a course to be adopted, it is for the concerned
court to act in accordance with law. We express no opinion in that regard.
The expression "in furtherance of their common intention" as
appearing in the Explanation to Section 376(2) relates to
intention to commit rape. A woman cannot be said to have an
intention to commit rape. Therefore, the counsel for the
appellant is right in her submission that the appellant cannot be
prosecuted for alleged commission of the offence punishable
under Section 376(2)(g).
HYPOTHETICALS
 1.

1. A, B and C had a land dispute with D. D sent some labors to

work in disputed land. A, B and C asked labors to stop. Labors
denied so all three A,B and C started beating them up with
different their lathi. Meanwhile, D came to stop the fight but
instead of listening to D all three started hitting D. A hit D on
his head with his spear, B and C started hitting him on his leg.
A again hit him on his chest because of which D died on the
spot. Explain the liability of A, B and C
 2.

• A and B decided to rob a bank to earn some quick 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. Explain the liability of A and B
 3.

• A and B from group X decided to rob a bank S they had laathis.

C and D from Group Y also decided to rob the same bank S
they had guns. When A enters the bank to rob the guard
stopped him and he hit the guard with a lathi and went inside
the bank. C then enters the bank and killed bank manager in
order to rob the bank. He took money and ran away. Police
came and held A and B.

• Explain the liability of A and B for murder of bank manager?

 4.

• A and B wanted to kill C. They both had different grievance

with C. they both came to C’s house to teach him lesson.
Outside C’S house they both met for the first time and
discussed the common intention of killing him. B went inside
and stabbed C with knife on his leg whereas A stabbed him on
chest because of which C dies on the spot. Explain the liability
of A and B?
QUIZ
 SECTION 149 IPC

• Section 149- common Object

• In order to understand section 149, it is necessary to understand section

141- unlawful assembly.
 141 IPC- ‘UNLAWFUL ASSEMBLY’

• An assembly of five or more persons is designated an “unlawful assembly”, if the common

object of the persons composing that assembly is:
1. To overawe by criminal force, or show of criminal force, 1the Central or any State Government or Parliament
or the Legislature of any State, or any public servant in the exercise of the lawful power of such public
servant; or
2. To resist the execution of any law, or of any legal process; or
3. To commit any mischief or criminal trespass, or other offence; or
4. By means of criminal force, or show of criminal force, to any person to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other
incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
5. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to do.
• Explanations
1. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
 S. 142IPC- MEMBER OF UNLAWFUL
ASSEMBLY

• Whoever, being aware of facts which render any assembly an

unlawful assembly, intentionally joins that assembly, or
continues in it,
 143IPC- PUNISHMENT

Member of unlawful assembly- imprisonment for six month or fine or both

 149IPC

• Every member of unlawful assembly guilty of offence commit­ted in prosecution of

common object.—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.
 MATHEW V. STATE OF TRAVANCORE-
COCHIN

• The accused (31 people) were said to be communists. Two of them, no. 30 and 31, had been arrested on 27th
February 1950, about 1 P.M. and were confined in the Edappilly police lock-up. The prosecutions’ case is that the
other 29 accused entered into a conspiracy to release their comrades and in pursuance of that conspiracy attacked
the police station at about 2 a.m. on the 28th of the same month. They were armed with deadly weapons such as
choppers, knives, bamboo, and other sticks and daggers. In the course of the raid, two police officers, Mathew
and Velayudhan were killed. All the accused had been put up for the trial and had been charged for the formation
of unlawful assembly.

44
Trial History:

They were charged under section 302 of the Indian Penal code read with section 149. The learned Sessions Judge
acquitted 21 of them of all charges and acquitted the remaining ten of most serious charges (302 read with 149),
but convicted them of lesser charges. The convicts appealed to the High Court and the State of Travancore-Cochin
also appealed against the acquittal on the murder-cum-rioting count. The High Court dismissed appeals made by the
ten accused and allowed the appeals against the acquittals and imposed the lesser sentence of transportation in
each case. The ten accused appealed to the Supreme Court.

Issues:

Did the members of the assembly have the common object to murder the constables?
Whether the members of the assembly could be held liable for the murder of the constables?

45
Held:

The court contended that even if it was assumed that the common object was only to
rescue the two accused who were in the lock-up, it is obvious that the use of
violence was implicit in that object. It was held that the carriage of weapons such as
choppers, crackers and sticks to rescue persons who are guarded by armed police
without violence is not possible. In the language of the court,
“a person would have to be very naive and simple- minded if he did not realise that the
sentries posted to guard prisoners at night are fully armed and are expected to use their arms
should the need arise; and he would have to be a moron in intelligence if he did not know that
murder of the armed guards would be a likely consequence in such a raid; and what holds
good for murder also holds good for looting in general.”
They argued that had they could have explained that they did not know any member of the
assembly carried lethal weapon and that murder was a likely consequence. The court said that
this explanation cannot be believed as they must meet the standard of men of reasonable
intelligence. They cannot content that they set out with bare hands and doves of peace to
rescue the said 2 accused in the lockup.
Section 149 applies not only to offences actually committed in pursuance of the common
46
object but also to offences that members of the assembly know are likely to be committed.
 DIFFERENCE BETWEEN SS. 34 & 149
IPC
Section 34 Section 149
• Prior meeting of mind, premediated Prove that the person was member of the
plans and then act for pursuance of group
that plan
• Burden upon prosecution to prove that Even if just a member, liable to be
they are sharing the common intention punished
or not.
• Only a liability section, has to read with Being in unlawful assembly is itself a
some section for punishment crime u/s 143, will be punished
• Can be framed on the spot Can be framed. Will be seen from facts of
the case
• All members are not required to present Each shall be involved to achieve the
at same place (active participation) main target (no active participation
required)
• Common intention not defined
anywhere in IPC Common object defined under section 141
IPC
 NOTE

• The scope of section 34 is limited to acts only, which are

committed in the furtherance of the common intention of the
group. Whereas section 149 renders every member of an
unlawful assembly liable for not only those acts for which there
had been a deliberation but also for those acts which could
have been committed in the prosecution of the common object
of such an assembly.
• Mere innocent presence of a bystander doesn’t make him
member of an unlawful assembly.
 ABETMENT

• ‘Abet’ means to aid, assist or to give an aid, to command, to procure, to

encourage, counsel, induce or assist, to encourage or to set another to
commit crime
• Hence, any act of individual which aids, help or assist another to commit
a crime falls within the offence of abetment.
• Abettor- abetting the commission of an offence
• Principal offender- perpetrator of the offence
 DIVIDED IN TWO CATEGORIES

• 1. abetted offence committed, or reasonably foreseen offence

committed (s 109-114)
• 2. abetted offence not committed or not committed fully (s. 115-116)
 SECTION 107 ‘ABETMENT’

• Sec 107- abetment of a thing-

First- Instigate any person to do that thing

Secondly- engages with one or more of other 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.

Thirdly- Intentionally aids, by any act or illegal omission, the doing of that
thing.
 PRE-CONDITION

Important element-
• 1.mens rea
• 2. Knowledge about the act and its effect is implicit in the construction
of the provision itself.
• For instance- if a person who lends his support does not know or has no
reason to believe that the act which he is aiding or supporting was in
itself a criminal act, it cannot be said that he intentionally aids of
facilitates the commission of the offence and that he is an abettor.
 1.ABETMENT BY INSTIGATION

• A person is said to instigate other when he provokes, incite, urges or

encourages such person to do an act prohibited by law.
• Can be in any form; law doesn’t require a particular form. Not only in
words, but it may also be conduct.
• There needs to be a connection between instigation and the act
committed.--
• A person who is silent spectator and takes no active part in the
commission of the offence is not an abettor.
• Whether there was an instigation is a question of fact.
• The instigation must be with reference to the thing that was done and
not to the thing that was likely to have been done by the person who is
instigated.

• A mere word, without necessary intent to incite a person, uttered in

quarrel or in a spur of the moment or in anger does not constitute
instigation
• Another form of instigation— approval of an act
• Passive or unresponsive approval may not necessarily be considered to be
instigation.
• There are some instance when approval has been held to be instigation. For
example, In instance of committing sati, when a widow immolates herself in
the funeral pyre of her husband. When members of the funeral procession of
her husband applauded her by shouting SATI MATA KI JAI, they were held to
have instigated her to commit sati. As their approval instigated her.
• Advice does not amount to instigation
 ILLUTRATION

• cruel conduct of mother-in-law towards the deceased over the months

made the deceased suffer mentally. Therefore, the series of conduct
amounting to actively suggesting and stimulating the deceased to
commit the suicide. Court held it clearly amounts to instigation.
 2. ABETMENT BY CONSPIRACY

• Conspiracy and abetment by conspiracy are two different offences.

• In abetment by conspiracy mere agreement is not enough.
• An act or illegal omission must take place in pursuance of abetment by
conspiracy.
• To prove the charge, the prosecution is required to prove that the
abettor had instigated the doing of a particular thing or engaged with
one or more other person or persons in any conspiracy for the doing of
that thing or intentionally aided by an act or illegal omission.
 3.ABETMENT BY INTENTIONAL
AIDING

• Components of intentional aiding are-

i) Doing of an act directly assisting the commission of the crime
ii)Illegally omitting to do a thing, which one is bound to do
iii) Doing an act which may facilitate the commission of the crime by
another. (intent is important)
• Mere presence of a person at the commission of a crime does not
amount to intentional aid unless it is shown that he, through his
presence, intended to have that effect.

• Mere giving aid is not abetment unless intention proved.

 SECTION 108 ‘ABETTOR’

• A person abets an offence, who abets either the commission of an

offence, or the commission of an act which would be an offence, if
committed by a person capable by law of commit­ting an offence with
the same intention or knowledge as that of the abettor.
 EXPLAINATIONS

• 1. The abetment of the illegal omission of an act may amount to an offence

although the abettor may not himself be bound to do that act.

• 2. To constitute the offence of abetment it is not necessary that the act

abetted should be committed, or that the effect requisite to constitute the
offence should be caused.

• 3. It is not necessary that the person abetted should be capable by law of

committing an offence, or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge
• 4. The abetment of an offence being an offence, the abetment of such
an abetment is also an offence.

• 5. It is not necessary to the commission of the offence of abetment by

conspiracy that the abettor should concert the offence with the person
who commits it. It is sufficient if he engages in the conspiracy in
pursuance of which the offence is committed.
 RELEVANT PROVISIONS IN BNS

ACT
• S.2(1)- Definition of Act
• S.2(25)- Definition of Ommission
• S.3(4)- words referring to Act include illegal omission
COMMON INTENTION PROVISIONS
• S. 3(5),(6), (7), (8), (9)
COMMON OBJECT
• S.189, 190
• ABETMENT- S. 45-60
QUIZ