Principles of Joint Liability with Special Reference to Sections 34, 109 and 149 of the Penal Code,1860

BY: Md. Saddam Hossen[1]

Introductory Remark

The doctrine of joint liability deals with the conditions under which more than one person incurs responsibility before, during and after committing crimes. When one is accountable for another’s conduct, it does not matter whether the defendant’s own conduct, the conduct of the other or others or the conduct of all taken collectively or both together establish the elements of the crime charged.

The common law recognized four parties to Crime viz. (i) principals in the first degree- actual perpetrators; (ii) principals in the second degree – aiders and abettors, such as get way drivers, conspirators; (iii) accessories before the fact – aiders and abettors not present when the crimes are committed, such as one who supplies the weapon that a third person uses in a murder; and (iv) accessories after the fact- individuals who give aid and assistance to criminals who are fugitive.  If they were not convicted before the accomplices were brought on trial, common law complicity shielded the accomplices even in the face of sure proof of their guilt.

Normally and naturally the person who is liable for wrong is be who does it. Yet both ancient and modern laws admit instances of vicarious liability in which one man is made answerable for the acts of another.

In the Mosaic legislation it is deemed necessary to lay down the express rule that “Fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.”

Modern civil law recognizes vicarious liability in two chief classes of cases. In the first place, masters are responsible for the acts of their servants done in the source of their employment. In the second place, representative of dead men are liable for deeds done in the flesh by those whom they represent.

The rational basis of this form of vicarious liability is in the first place evidential. There are such immense difficulties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it. A word, a gesture, or a tone may be a sufficient indication for a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service.

For better appreciation and understanding the provisions of sections 34, 109 and 149 may be read as follows:

Section 34 says, 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.

Section 149 provides 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.

For proper understanding of the definition of the unlawful assembly section 149 should read in conjunction with section 141 of the penal code which may be read as follows:

An Assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is-

First, to overawe by criminal force, or show of criminal force, or any public servant in the exercise of the lawful power of such public servant; or Second, to resist the execution of any law, or of any legal process; or  Third, to commit any mischief or criminal trespass, or other offence; or Fourth, 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

Fifth, 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.

Explanation; An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.

Section 109 provides that, 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 or 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.

Section 34 of the Penal Code deals with common intention: it merely enunciates a principle of joint liability for criminal acts done in furtherance of common intention of the offenders. It means, that if two, or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually.

 The ingredients of section 34 :

(i) Several persons must have a common intention and pre-arranged plan to commit an offence; (ii) in furtherance of which the criminal act is done; (iii) each of such persons must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed.” (iv) The participation must be in doing the act, not merely in its planning. But this participation need not in all cases be by physical presence. In offences involving violence, normal presence at the scene of offence on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places.

In the case of Noor Mohammad Mohd. Yusuf Momin (appellant) V. The State of Maharastra[2] the trial Court convicted Mohd. Taki Haji Hussain Momin under Section 302 and acquitted three other accused including the appellant. On appeal against acquittal, the Bombay High Court reversed the acquittal and convicted the appellant and two others under Section 120B and 302 read with Section 34 India Penal Code. The appellant was also convicted under Section 302/109 IPC and sentenced to imprisonment for life on two counts separately. The appellant’s conviction under Section 302/34 IPC was set aside on the following observations:

“From the evidence it seems highly probable that at the time of the actual murder of Mohd. Yahiya the appellant was either present with other three co-accused or was somewhere nearby. But this evidence does not seem to be enough to prove beyond reasonable doubt his presence at the spot in the company of the other accused when the murder was actually committed ……….we are, therefore, inclined to give to the appellant the benefit of doubt in regard to the charge under Section 302 read with Section 34 Indian Penal Code.” 

The application of Section 34 in respect of the offences other than physical violence have been explained in Tukaram Ganpat’s [3] case wherein the facts against the accused including the appellant Tukaram were that they stole some bundles of copper wire from the godown of a company after breaking open the godown and removed them away by a lorry which stopped at a weigh-bridge where the brokers for sale were present. There was no evidence about the presence of the appellant at the scene of offence. The concurrent findings of the courts below were that the appellant was in possession of duplicate keys of the burgled godown found missing from the factory and that he was present at the weigh bridge. The appellant had no explanation for possessing of godown keys nor for his presence at weigh-bridge. In the context of the matter the Supreme Court maintained the conviction of the appellant on applying the principles of common intention as under:

“Mere distance from the scene of crime cannot exclude culpability under Section 34 which lays down the rule of joint responsibility for a criminal act performed by a plurality of persons. In Barendra Kumar Ghosh v. The King Emperor[4]  the Judicial Committee drew into the criminal net those ‘who only stand and wait.’ This does not mean that some form of presence, near or remote, is not necessary, or that mere presence without more, at the spot of crime, spells culpability. Criminal sharing, overt or covert by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34. Even assuming that presence at the scene is a pre-requisite to attract Section 34 and that such propinquity is absent. Section 107 which is different in one sense, still comes into play to rope in the accused. The act here is not the picking the godown lock but house-breaking and criminal house trespass. This crime is participated in by those operating by remote control as by those doing physical removal. Together operating in concert, the criminal project is executed. Those who supply the duplicate key, wait at the weigh bridge for the break-in and bringing of the booty and later secrete the keys are participles criminal. And this is the role of accused No.2 according to the Courts below. Could this legal inference be called altogether untenable?

There must be general intention shared by all the persons concerned. A furtherance of a common design is a condition precedent of convicting each of the persons who take part in the commission of a crime, and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime. This principle was well illustrated by Privy Council in the case of Mahabub Shah v. Emperor[5]. Subsequently in the case of Mahmood V. The King Emperor[6], it was clarified that the existence of such pre-concert could be established even by proof of acts performed by individuals after the completion of the main crime. Chief Justice Cornelius (as he then was) while delivering judgment of the case of Hamida Bano vs. Ashiq Hossain[7] observed that everything said by this court in a judgment and more particularly, in a judgment in a criminal case must be understood with great particularity as having been said with reference to facts of that particular case.

Common intention is a question of fact and is subjective. But it can be inferred from facts and circumstances.[8]

When the evidence establishes that the accused committed the offence in furtherance of a common intention with others, then section 34 may apply to that case even though no formal charge under section 34 has been framed against the accused. The omission to frame the charge is a mere irregularity which is curable if the defence is not prejudiced.

When the charge is under section 302/149, the Penal Code, the conviction under section. 302/34 is permissible. If the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge were framed with the aid of section 34, then failure to frame the charge under section 34 would not result in any prejudice to the accused and the conviction with the aid of section 34 is permissible[9].

The differences in the ingredients under section 34 and section.149 may be tabulated as follows:

Section 34 embodies the principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of the common intention and the participation in the commission of the offence in furtherance of common intention invites the application of the section. Section 109 may, on the other hand, 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 persons in the conspiracy to commit an offence and in pursuance of that conspiracy some act or omission takes place or has intentionally aided commission of an act or illegal omission. Both ss. 34 and 149 deals with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of s. 149 is, therefore, no bar in convicting the accused under s. 34, if the evidence discloses the commission of an offence in furtherance of the common intention of them all. Under s. 120B, P.C., the criminal conspiracy postulates an agreement between two or more persons to do or cause to be done an illegal means. It differs from ss. 34 and 109, P.C., in that here a mere agreement is made an offence even if no step is taken to carry out the agreement.

The application of Section 34 is well illustrated in the decision of the case Barendra Kumar Ghosh v. Emperor by Privy Council.[10] In this case the appellant was charged under section 302 of the Indian Penal Code with the murder of Post-Master. On August 3^rd 1923, the Sub-Post-Master at Sankaritolla Post Office was counting money at his table to the back room, when several men appeared at the door, demanded of him to give up the money. Almost immediately afterwards they fired pistols at him. He was hit in two places and died almost at once. Without taking any money the assistants fled, separating as they ran. Once man was pursued by other post office assistants and was caught with a pistol in his hand. He was the accused Barendara Kumar Ghose. In the subsequent trial for murder his contention was that he was standing outside and he had not fired at the deceased. He was compelled to join others for alleged robbery and had no intention to kill the Post-Master. The trial judge directed the jury that if they were satisfied that the Post-Master was killed in furtherance of common intention of all three men, then the prisoner was guilty of murder whether he fired the fatal shot or not. It was held by the Calcutta High Court and the Privy Council that upon the true construction of Section 34 of the Code the direction was correct and Barendra Kumar Ghosh was held guilty with the murder of the Post-Master.

In Sheoram Singh and Another v. The State of U.P.[11] the Supreme Court held that common intention may develop all of a sudden during the course of the occurrence, but still unless there is cogent evidence and clear proof of such common intention, an accused cannot be vicariously held guilty under s. 34. In this case where a father and son had trespassed into the house of H with the object of killing d, and H met with death at the shot of the father when H refused to send out D from his house, the court held that the son cannot be held guilty of the offence of murder of H, as there was no cogent evidence to show that the son had any intention to kill H. The common object of father and son was to kill, who happened to be in the house of H. The son too had fired at D their common enemy which causes his death, for which he had been rightly held guilty under s. 307 of the I.P.C. But he was acquitted of the charge under s. 302 read along with s. 34, for the death of H which was due to the firing by the father. The latter was found guilty under s. 302, I.P.C.

In the case of Abdur Rahim vs. State,[12] it was held that a common intention may develop on the spot between the participants. To apply section 34, the persons must be physically present at the actual commission of the crime. Thus again, even in regard to an offence involving physical violence it is not necessary that every accused must take an active part in the attack on the victim.

The ingredients of an unlawful assembly are:(a) an assembly of five or more persons.(b) they must have a common object(c) the common object must be one of the five specified in the section 141 of the Penal Code.

We have noticed that when more persons than one is involved in an offence, all of them may be tried together in the circumstances as stated in section 239 of the Cr.P.C. But the principle of joint liability in a criminal act has been described in section 34, 109 and 149 of the Penal Code. If more than one person commits an offence, any of the above sections may be applicable. The above sections do not create any distinct offence.

When more then one person commit an offence in furtherance of common intention than all of them shall be charged by adding section 34 with the principal section of the offence. When an offence is committed by one and others abet it then section 109 is to be added along with the substantive offence against those who abetted the offence. When it is not clear as to who actually committed the offence because there was no eye witness, then all may be charged with the offence by adding section 109.

The allegation was that ‘A’ and ‘B’ called the victim from his house and before calling the victim both of them and ‘C’ were talking with the victim in a field near his house. After about one hour, dead body of the victim was found near a bus stand. In this case it was not known which of the three accused murdered the victim. In such a circumstance, charge is to be framed against all the three u/s 302/109 of the Penal Code[13].

When an offence is committed by a member of an unlawful assembly, all the persons forming unlawful assembly shall be charged by adding section 149 if the allegation is that the offence was committed in prosecution of the common object of that assembly. An unlawful assembly is an assembly of five or more than five persons if the common object of the assembly is one of the objects as enumerated in section 141 of the Penal Code.

To add section 149, it is to be seen whether the accused persons constituted an unlawful assembly and whether the offence was committed by any one of that assembly in prosecution any common object or objects as enumerated in section 141. But in case of adding section 34 of the penal Code, it is to be seen whether the accused persons committed the offence in furtherance of a common intention. The expression ‘common intention’ is not defined in the Penal Code. However, from judicial pronouncements we find that two conditions are required: (i) the presence of the accused persons at the place of occurrence coupled with actual participation in any form; and (ii) a pre-concert or previous meeting of mind. However, from the later decisions of the Appellate Division, it is now an accepted principle that previous meeting of mind or pre-concert is not essential and a common intention may develop on the spot[14].

To add section 109 of the Penal Code it is to be seen whether there was any abetment. What is abetment is explained in section 107of the Penal Code. According to this section, abetment is constituted (a) by instigating a person to commit an offence; or (b) by engaging in a conspiracy to commit the offence; or (c) by intentionally aiding a person to commit the offence or intentionally aids by any act or illegally aids by any act or illegal omission the doing of that thing. So, to add this section it is not necessary that there shall be actual participation in an offence; a conspiracy will make a person liable to be charged for abetment u/s 109.

Section 149 is not a substantive penal section. This section deals with constructive liability i.e., liability of one person for an offence not committed by himself but committed by another person. So, this section can be added to the charge of any substantive offence.

In this case, some accused were convicted under section 304 part II, but all were convicted under section 149, all could be convicted under section 304 part II/149 but none can be independently convicted under section 149[15].

It is true that abetment is not mentioned as an offence in the above Act and abetment is an offence under the Penal Code. It has been decided in the case of Hossain Mohammad Ershad Vs the State[16] that even if the offence of abetment is not mentioned as an offence in a special law, a person may be charged for abetting an offence punishable under such a special law.

At night, the victim was called by the accused persons and thereafter, the dead body of the victim was found in the following morning. As the taking way of the victim from the house has been proved, the accused is to explain what happened to the victim after he was called by them. There is no material to show that the accused persons have been falsely implicated due to any previous enmity. So, the evidence of the informant and his mother may be considered as sufficient and cogent evidence to convict the accused persons in this case.

Conviction cannot be given in this case under section 302/34. There is no evidence of any pre-concert. The murder has been proved but it is not proved as to which of the accused caused the murder, so in this case instead of section 34, section 109 shall apply.[17]

In the case of Abdul Awal Vs. The State[18]  the accused married the victim and demanded dowry of TK. 10,000/- which the father of the victim could not give. The accused on one day came to the house of his father- in-law of take his wife with him and actually he left the house of his father-in-law along with his wife. After several days when the father sent some one to know whether his daughter was in the house of the accused, he came to know that neither the accused nor his daughter were in that house. Thereafter, a dead body of a woman was found and the father identified the same as the dead body of the daughter. The police after investigation submitted charge-sheet against the accused and five others who used to visit the house of the accused. Charge was framed against them u/s 302/34. At the time of trial, as there was no eye witness the prosecution could not prove as to who actually murdered the victim. But four witnesses proved that they saw the accused taking the victim with him. The accused made a confession before a competent magistrate stating that he took his wife with him and other accused ravished her and thereafter murdered her in his presence. At the time of examination u/s 342, the accused also repeated what he said in his confession and begged mercy of the Court.  It was held that the husband was found guilty for abetment under section 302/109 though charge was not framed under section 34 of Penal Code.

In the case State Vs.  Md. Abdus Samad Azad[19]  It was held that though, charge was not framed under section 302/109 of the Penal Code conviction was awarded for offence of sections 302/109 of the Penal Code on the basis of evidence led by prosecution and learned trial Judge was well justified in the decision in convicting condemned prisoner Sharifa and convict-appellant Arif for offence of sections 302/109 of the Penal Code.

In the case of Kapu Mahamud & Others Vs. The State[20] learned Sessions Judge Nilphamary convicted and sentenced six accused persons under section 302/149 of the Penal Code. High Court Division set aside those conviction and sentence and made a comparison between section 149 & section 34 in the following manner:

(i) It requires an assembly of five persons. (ii) the common object must be one of those specified in section 141 of the Penal Code. (iii) the offence actually committed is required by section 149 to be one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. (iv) section 34 requires some act, however small, to the done whereas under section 149 mere membership of the assembly is sufficient. (v) Section 34 enunciates a mere principle of liability but creates no offence, section 149 creates a specific offence.

Conclusion:

Section 34,109,114 and 149 of the Penal Code, provide for criminal liability viewed form different angles as regards actual participants, accessories and men actuated by a common intention: and the charge is a rolled up one involving direct liability and constructive liability without specifying who are directly liable and who are sought to be made constructively liable. Judicial officers in charge of administration of criminal justice and member of the legal profession should know the actual connotation and proper legal implication of the liability created under the above sections. Without comprehension of the actual legal implication of the different words and expressions used in those sections the proper administration of justice may inherently be hindered and the duties bestowed upon the persons responsible for administration for justice may be considered to have been discharged unjustifiably.

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[1] Associate Lawyer, Legal Sovereign Law Chamber, Founder Member, Sustainable Development Initiatives  (SUDIN) Bangladesh & Student (First Batch), Master in Governance Studies, Department of Political Science, University of Dhaka. He can be reached at [email protected]

[2] AIR 1971 SC 885

[3] AIR 1976 SC 2027.

[4] (1924) 52 IA 40- (AIR 1925 PC 1)

[5] (1945 Law Weekly [Madras] Vol. 58, p. 368.

[6] AIR 1964 PC 45

[7] 15 DLR (SC) 65

[8] 1983 Cr. L.J. 218 (S.C)

[9] 36 DLR 22

[10] 1925 L.L.R. Calcutta Vol. 52, p. 197.

[11] (AIR 1972 S.C 25555)

[12] 29 DLR (SC) 246.

[13] 52 DLR (AD) 143.

[14]  9 DLR (SC) 7, 22 DLR (SC) 297, 44 DLR (AD) 287.

[15] 44 DLR (AD) 23.

[16] 14 BLD (AD) 178

[17] 7 BCR (AD) 157.

[18] 14 BLD (AD) 224

[19]  9 BLC (HC) 39.

[20] 2 LG 260