JOINT AND CONSTRUCTIVE LIABILITY UNDER CRIMINAL LAW

Subject: Criminal Law - I

Subject Code: - 503

Submitted To: Submitted by:

Prof. Amit Guleria Tejaswi Saxena
Faculty of Law Sec “A”
Date Submitted – 28 October 2021 1901108
Introduction. —
In most cases, no one can be held liable for another's autonomous act or
wrongdoing. Section 34 of the IPC, 1860, however, allows an exemption to this
rule. It establishes the rule of joint liability while committing a criminal crime.
The core of the culpability is in the presence of a common intention energising
the accused, leading to the commission of a criminal act in pursuit of that goal. It
is concerned with the performance of different acts by numerous people,
whether similar or hostile, provided they are all carried out in the pursuit of a
shared goal. In such a case, each person is fully accountable as if he had
committed the act himself. [ CITATION Sat11 \l 1033 ]
The soul of section 34, IPC, 1860 is the joint liability in doing a criminal act.
[ CITATION Kur13 \l 1033 ]
Section 149 of IPC finds its basis on Constructive Liability which is the sine qua
non for its operation. It states that the mere membership of the unlawful
assembly having a common object to commit an offence is enough to hold the co-
members liable for the act done by the other members of the assembly even if
some of the members did not do any of the act to commit the offence. The
person who did the offensive act renders immaterial. The knowledge of the
members of an unlawful assembly that a particular offence or nature or probable
consequences were to be committed or achieved by the objects of the assembly
will make all the persons liable for the unlawful act of other members.

Principle with respect to section 34. —

This section merely establishes a rule of evidence, not a substantive offence.
The notion of constructive liability is laid out in Section 34 of the Indian Penal
Code, 1860. The core of section 34 IPC, 1860 is a simultaneous consensus of the
minds of those involved in illegal activity in order to achieve a specific objective.
The act must have been done in furtherance of the common intention, as per
Section 34 IPC, 1860. In fact, the clause is meant to cover a situation in which a
group of people acts together and the prosecution cannot prove which of the
people who acted together actually committed the crime based on the facts of
the case.
A charge for an offence under one section and a charge under that section read
with section 34 have little or no variation.[ CITATION Vir10 \l 1033 ]  As a result, even if
no charge is filed under section 34 of the IPC, 1860, it will apply if it is obvious
from the evidence that a pre-arranged plan was in place to achieve the
mutual main objective.[ CITATION Yog84 \l 1033 ] So, if six people were charged under
sections 148, 302/149, and 307/149 of the Indian Penal Code, but two were
acquitted, the remaining four may be convicted of murder and attempted murder
under section 34 of the Penal Code.[ CITATION Sta11 \l 1033 ]. This section essentially
indicates that if two or more people do anything together intentionally, it's the
same as if they did it separately. [ CITATION BNS58 \l 1033 ]. If the illegal act was a fresh
and independent act arising solely from the doer's thinking, the others are not
accountable just because they intended to participate with the doer in a different
criminal act at the time it was committed.

Distinction between sections 34 and 149, IPC, 1860.—

Though both these sections relate to the doctrine of vicarious liability and
sometimes overlap each other there are substantial points of difference between
the two. They are as under:—
(i) Section 34 does not by itself create any specific offence, whereas section 149,
IPC, 1860, does so (see discussion under sub-para "principle" ante).
(ii) Some active participation, especially in a crime involving physical violence is
necessary under section 34 but section 149, IPC, 1860, does not require it and the
liability arises by reason of mere membership of the unlawful assembly with a
common object and there may be no active participation at all in the preparation
and commission of the crime.
(iii) Section 34 speaks of common intention but section 149, IPC, 1860,
contemplates common object which is undoubtedly wider in its scope and
amplitude than intention. If the offence committed by a member of an unlawful
assembly is in prosecution of the common object of the unlawful assembly or
such as the members of that assembly knew to be likely to be committed in
prosecution of the common object, all other members of the unlawful assembly
would be guilty of that offence under section 149, IPC, 1860, although they may
not have intended to do it or participated in the actual commission of that
offence.[ CITATION Chi03 \l 1033 ]
(iv) Section 34 does not fix a minimum number of persons who must share the
common intention, whereas section 149, IPC, 1860, requires that there must be at
least five persons who must have the same common object (see also discussion
under sub-head "Sections 34 and 149" under section 149, IPC, 1860, infra).
[ CITATION Vir101 \l 1033 ]

Effect of conviction or acquittal of one or more or others.—

Several persons involved in a criminal adventure may be guilty of different
offences depending upon their respective acts. If the act is done in furtherance of
their common intention, all of them become equally liable for the act. Similarly, if
they are members of an unlawful assembly, an act done by any one in
prosecution of the common object or any act which the members knew could
happen in such prosecution, every member would be liable for the act. If any one
of them happens to be wrongly acquitted and no appeal has been filed against it,
it would not ipso facto impede the conviction of others. Likewise, the conviction
of any one or more them does not automatically result in the conviction of others.
[ CITATION Sur03 \l 1033 ]

Substitution of conviction from section 149 to section 34.—

Following some earlier rulings,249. the Supreme Court has stated the law in the
following terms [ CITATION Ram90 \l 1033 ]:
It is true that there was no charge under s. 302 read with s. 34... but the facts of
the case are such that the accused could have been charged alternatively either
under s. 302 read with s. 149 or under s. 302 read with s. 34 and one of the
accused having been acquitted, the conviction under s. 302/149 can be
substituted with one under s. 302/34. No prejudice is likely to be caused to the
accused whose appeal is being dismissed. [ CITATION Dar12 \l 1033 ]
Robbery.—
Provision under section 397 inevitably negates the use of the principles of
constructive or vicarious liability engrafted under section 34. The sentence for
offence under section 397 of the IPC, 1860 cannot be awarded to those of the
members of the group of dacoits who did not use any deadly weapon. A plain
reading of section 397 of the IPC, 1860 would make it clear that such guilt can be
attributed only to that offender who uses any deadly weapon or causes grievous
hurt to any person during course of the commission of the robbery. The provision
postulates that only the individual act of accused will be relevant to attract
section 397 of the IPC, 1860.[ CITATION Sta96 \l 1033 ] In a sudden quarrel over
payment, person sitting inside the car pulled the petrol pump attendant into the
car and drove away. The occupants of the car escaped punishment. It was held
that the driver alone could not be held guilty of the offence of robbery and
abduction with the aid of section 34.[ CITATION Bra92 \l 1033 ] In a serial highway
robbery and murder in which same persons were involved, it was found as a fact
that the self-same two persons were seen by a witness together in a different
town before the occurrence. One of their victims survived and he also testified
that he saw both of them together. Both of them were held to be guilty of
successive crimes and convicted for murder with the aid of section 34 without any
need of knowing who played what part.[ CITATION Pre93 \l 1033 ]
Mob action. —
A mob of 200 persons armed with different weapons came to the field with the
object of preventing the prosecution party from carrying on transplantation
operations. Some of them caused death of a person at the spur of the moment
for some spot reason. The whole mob could not be convicted for it.[ CITATION
Duk98 \l 1033 ] A mob chased the members of the rival community up to their
locality. A part of the mob started burning their houses and the other part kept on
chasing and caused deaths. The court said that the two parts of the mob could
not be said to have shared the intention of burning or causing death. [ CITATION Sta97
\l 1033 ]
Misappropriation. —
Where the accused the Sarpanch and Secretary of a Gram Panchayat
misappropriated the funds of the Panchayat and the circumstances and evidence
showed patent dishonest intention on the part of the accused persons, the
conviction and sentence of the accused under section 409/34, was not interfered
with.[ CITATION Gho92 \l 1033 ]
Rape cases. —
In Gang Rape it is not necessary that the intention should exists from the
beginning. It can be developed at the last minute before the commission of the
offence.[ CITATION Dev10 \l 1033 ]
Exhortation. —
One of the accused exhorted while the other immobilised the deceased and the
third accused delivered the fatal injuries. It was held that each one shared a
common intention.[ CITATION Ata16 \l 1033 ] Section 34 was held to have been rightly
applied where two of the accused persons caught hold of the deceased and on
their exhortation the third accused shot him on the right temple resulting in
death.[ CITATION Vin08 \l 1033 ]
Mere exhortation by one of the accused persons saying that they would not leave
the victim till he died was held to be not a basis for roping into the common
intention of the others.[ CITATION Aja98 \l 1033 ] The only allegation against the
appellant was her exhortation. Enmity between the family of the deceased and
that of the accused proved. In such a situation, where the eye witnesses have not
narrated any specific role carried by the appellant, rather the specific role of
assaulting with the sword has been attributed to the coaccused, it cannot be ruled
out that the name of the appellant has been added due to enmity with the main
accused.[ CITATION Cha16 \l 1033 ]
Pre-conceived common intention. —
Only when a court with some certainty holds that a particular accused must have
preconceived or pre-meditated the result which ensued or acted in concert with
others in order to bring about that result, that section 34 may be applied.
[ CITATION Aba07 \l 1033 ]
Common intention and private defence. —
If two or more persons had common intention to commit murder and they had
participated in the acts done by them in furtherance of that common intention, all
of them would be guilty of murder. Section 96 IPC, 1860 says that nothing is an
offence which is done in the exercise of the right of private defence. Though all
the accused would be liable for committing the murder of a person by doing an
act or acts in furtherance of the common intention, they would not be liable for
the act or acts if they had the right of private defence to voluntarily cause death
of that person. Common intention, therefore, has relevance only to the offence
and not to the right of private defence. What would be an offence by reason of
constructive liability would cease to be one if the act constituting the offence was
done in exercise of the right of private defence.
If the voluntary causing of death is not permissible under the right of private
defence under section 96, then the common intention in regard thereto will lead
to the result that the accused persons must be held guilty by reason of
constructive liability under the relevant section (in this case section 304 Part I IPC,
1860). If, however, the common intention was only to commit an act which was
permissible within the confines of s. 96 read with s. 98, then constructive liability
under section 34 cannot be said to have been accrued to the accused. If the right
of private defence was exceeded by some persons, the guilt of each of the
accused proved to have exceeded the right of private defence would have to be
dealt with separately. The instant case came under the former situation, and
hence, such persons were guilty under section 304, Part I IPC, 1860. They,
therefore, must be held to have had a common object for causing death of P.
They were sentenced to undergo ten years' rigorous imprisonment each. [CITATION
Vaj03 \l 1033 ]

Conclusion
The essence of joint and constructive liability is in the existence of common
intention or common object which actuate the offender to commit an offence in
furtherance in such intention. The principle of group liability as present in IPC
helps to ascertain a specific role played by each member of the group and liability
hold by each member of the group jointly/constructively/vicariously for the acts
done by others. It has been upheld by the Apex Court in various judgments that it
is not must for the common intention to exist before the commencement of the
criminal act, it may develop subsequently during the course of the commission of
the offence. The essence being one can be held liable for the act done by the
other provided the essential condition as indicated above that prearranged plan
or common intention to bring about the particular result is present. Thus, it can
be stated that different individuals may do different acts to achieve an ultimate
result in the furtherance of common object/intention of the group or unlawful
assembly thereby making the others jointly or constructively liable for the acts
committed by them.
 References

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