Yet none would have the common intention if there was no prior meeting of minds to force a pre-arranged plan. Where the evidence regarding pre-concert of mind of all accused to commit murder is absent conviction of two accused under Section 302 read with Section 34 is not proper. They will be guilty of the wrong done by them. It is necessary that the intention of each one of them be known to the rest of them and be shared by them before such intention may be recognised as their common intention.
In order to impute common intention it is not sufficient that A was a partner of B and both of them had hired a room for their business purposes. This by itself is not sufficient to show that A had any knowledge of the offence committed by B.
Care must be taken not to confuse “same” or “similar” intention with “common intention”. It is not enough to have the “same intention” independently of each other.
Common intention can certainly be formed by conduct, neither a written nor an oral agreement is required to constitute common intent. As common intention can be formed only a moment before the doing of the criminal act, the suddenness of a quarrel or fight does not by itself negative the existence of common intention.
Just as fight is sudden, the common intention also might have been formed suddenly. Before a person can be held liable for acts done by another, under the said provision, it must be established that : (i) there was common intention in the sense of a pre-arranged plan between the two; and (ii) the person sought to be held liable had participated in some manner in the act constituting the offence.
“Common intention” should not be confused with the intention that is ingredient of many of the offences defined in the Penal Code. The “common intention” is the common design or common intent of two or more persons acting together.
It is more akin to motive or object. It is remoter than the intention with which each act included if the criminal act is done. It is what the person jointly decided to achieve. It is the reason or the object for doing all the act forming the criminal act.
Common intention within the meaning of Section 34 implies pre-arranged plan. Murder pre-planned. Common intention to kill deceased stood clearly proved though appellant had assaulted only with gandasi. But when several acts are committed by accused persons and there is no prior concert or preparation or a common intention of all in furtherance of which those acts are committed, each accused can be convicted of the offence which he has actually committed.
Merely because injuries inflicted by the two accused were not serious, it cannot be said they were not actuated by the common intention to cause the death of the deceased. Once the common intention is established the question as to who gave the fatal blow is irrelevant.’
In State of M.P. v. Mansingh and others, the Supreme Court held that, Section 34 has no requirement that all the accused must come together. It is their common intention which is material and not how they converge on the place of occurrence.
Hence, supposing the accused persons come out from a narrow lane, and only one person can come out at a time and others follow one after the other, in such a case it cannot certainly be said that because they did not come together, Section 34 will have no application.
The phrase “a criminal act is done by several persons” does not mean that the several persons do the same act. It can only mean that several persons do separate acts which might be similar or diverse.
The phrase “in furtherance, of the common intention of all” means that all the persons charged must have consented to the commission of the crime committed. The word “furtherance” indicates some kind of aid or assistance producing one effect in the future Any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony.
The intention must be actual intention, and the common intention of all must be the commission of a criminal act which is done. That is, the act done must be the act contemplated by all; otherwise all the conspirators are not guilty of the offence committed.
The crucial test as to the applicability of constructive liability under Section 34 is to be found in the phrase “in furtherance of the common intention of all”. It is therefore clear that a particular criminal act done by an individual in order to constitute a constructive liability against others must be one which is done in pursuance of a common intention as a step-in-aid to attain it or as a means to the end underlying that or must be one which is a link in the chain of acts all originating out of the common intention and culminating in its attainment.
Reading the section, as it stands, the act done in furtherance of the common intention of all includes in it three types of facts : first, the act which is directly intended in between all the confederates, secondly, the act which the circumstances of the case have no doubt to conclude that the act was not directly intended in between them but was taken by all of them as included in the common intention and thirdly, the act, which any of the confederates commits in order to avoid or remove any obstruction or resistance put up in the way of the proper execution of the common intention. In doing the third type of the act, the individual doer may cause a result not intended by any other of the confederates.
Once the criminal act becomes independent of the common intention, though done in pursuance to an intention same or similar to that common intention of giving rise to a consequence same or similar in nature as contemplated in the common intention, the rule of the constructive liability as laid down in Section 34 ceases to operate and others, who are a party to the original common intention, will not be held liable constructively for that criminal act.
The Supreme Court in Lallan v. State of Bihar held that the word “act” in Section 34 of the Indian Penal Code denotes a series of acts as a single act.
The Supreme Court held in Nandoo Rastogi v. State of Bihar, that it is enough if it is shown that they have shared a common intention to commit the offence and in furtherance thereof each played his assigned role by doing separate acts, similar or diverse.
In Rajan Rai v. State of Bihar, the Supreme Court has held that if in a case First Information Report is lodged against four persons known as well as unknown, and tried, out of whom three are acquitted and one person is convicted under Section 302 of the Indian Penal Code simpliciter in case it is found that the blow inflicted by him was a fatal one, but he cannot be convicted under Section 302 with the aid of Section 34 of the Indian Penal Code as in view of the acquittal of the other accused persons, he cannot be said to have shared the common intention with anybody.
The Supreme Court in Gyasiram v. State of M.P., has held that where the participation of accused in the incident and his sharing common intention with the co-accused to commit murder of the deceased had been established the offence of murder is complete.
The Supreme Court once again discussing Section 34, has held that the principle of joint liability in the doing of a criminal act is embodied in Section 34, I.P.C. The Supreme Court further held that the existence of common intention is to be the basis of liability.