Common Intention

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Introduction
Common intention is a foundational device in the criminal law of India that converts joint action into joint liability. Appearing in Section 34 of the Indian Penal Code (IPC), it is the mechanism by which each participant in a jointly executed criminal act is treated, for purposes of guilt, as if he or she had acted alone. For courts and practitioners alike, the concept is practically decisive in group offences — mob violence, gang-rape, joint robberies, and offences where the overt acts of one are attributable to others. Mastery of its elements, proof strategies and limits is indispensable for both prosecution and defence.

Core Legal Framework
– Statute: Indian Penal Code, 1860
– Section 34 IPC: “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.”
– Legal character: Section 34 is not a substantive offence; it is a mode of liability — a rule of attribution. It does not create a new offence but attaches the consequences of the criminal act to each participant where common intention is proved.

  • Related provisions and distinctions to keep in view:
  • Section 149 IPC (unlawful assembly and common object): Applies when five or more persons form an unlawful assembly with a common object; the legal theory and mens rea (common object) are different from Section 34 (common intention). Section 149 is concerned with collective liability arising from an unlawful assembly; Section 34 focuses on joint liability based on concerted intention.
  • Abetment (Sections 107–120 IPC): Abetment requires instigation, an act of aiding, or an agreement to aid; mens rea and overt conduct differ from Section 34 — mere aiding may result in abetment; participation in furtherance of a common intention attracts Section 34.
  • Indian Evidence Act relevance: The mental element (common intention) is inferable from facts and conduct; therefore circumstantial evidence and chain-of-events analysis under principles in criminal jurisprudence are heavily used.

Practical Application and Nuances
1. Elements to prove
– Existence of a common intention (a meeting of minds) to commit the criminal act.
– An overt act in furtherance of that common intention.
– Presence and participation of the accused in such a manner that their conduct shows they acted in furtherance of that shared plan.
– Causal link between the act done and the common intention.

Note: There is no formal requirement of a written or express agreement. Common intention may be formed instantaneously (at or immediately before the act) or over time; what matters is common mental concurrence when the act is done.

  1. How courts infer common intention — the evidence
  2. Direct statements or confessions by accused (rare).
  3. Overt acts performed by each accused in furtherance of the act — e.g., one restrains the victim while another inflicts injuries.
  4. Circumstantial evidence: presence at the scene, possession or use of common weapons, similarity and coordination of acts, conduct after the offence (flight together, coordinated concealment), contemporaneous statements or gestures showing participation.
  5. Forensic links: weapon or articles recovered from accused, bloodstains, fingerprints, call/sms records showing coordination.
  6. Eyewitness identification that places accused performing acts in furtherance of the offence.

Practical threshold: Mere presence at the scene is prima facie insufficient. The prosecution must establish a linking act or conduct which, read with other facts, makes a finding of common intention the only reasonable inference.

  1. Distinguishing Section 34 from other modes of liability
  2. Section 34 vs abetment: Abetment requires instigation, or intentional aiding — not necessarily presence at the scene. Section 34 requires participation and common intention to commit the act actually done.

  3. Section 34 vs Section 149: Section 149 contemplates liability for deaths or injuries committed by any member of an unlawful assembly in pursuit of the common object. It requires five or more persons and a common object; Section 34 works irrespective of number and is more focussed on a common intention to commit the specific act.

  4. Charging and trial practice

  5. Drafting the charge: Particularise facts which, if accepted, point to a common intention. Avoid merely appending “under Section 34” without factual particulars. Identify overt acts performed by each accused that demonstrate participation.
  6. Prima facie stage (Section 239/207/208 CrPC): A magistrate should not frame charge under Section 34 unless the police report and material disclose a prima facie case that accused acted in furtherance of a common intention.

  7. Examination and cross-examination: Target the presence or absence of acts connecting the accused to the specific role alleged. For witnesses, pin down times, sequence, gestures, words spoken, and identity of persons who did particular acts.

  8. Illustrative examples

  9. Mob lynching: If A stabs a victim and B holds the victim down while C shouts encouragement, all three can be convicted under Section 34 for the stab fatality if prosecution proves they acted with common intention.
  10. Robbery: If P picks the lock, Q seizes goods, and R keeps lookout, establishing a common intention to rob makes each liable for the theft and for any weapon use in furtherance of the robbery.
  11. Sexual assault by a group: Where different accused perform different facets of the assault but evidence shows concerted planning or coordination, Section 34 attribution is common.

Landmark Judgments
– Mukesh & Anr. v. State for NCT of Delhi (Nirbhaya case), (2017) 6 SCC 1
– Relevance: The Supreme Court analysed the conduct of multiple accused in a brutal gang-rape and murder and held them liable after tracing the common intention through coordinated actions — arrival at the scene, roles each played (assault, restraint, assault with intent), actions immediately after the offence and concealment.
– Practical takeaway from the judgment: The Court emphasised that common intention is inferred from the totality of concurrent acts and conduct; the Court also illustrated that distinct roles do not diminish liability if they are geared to achieving the criminal act.

  • Comparative authority: R v. Jogee [2016] UKSC 8 (UK Supreme Court)
  • Relevance for Indian practice: Jogee revised the UK law of joint enterprise by requiring proof of intent to encourage or assist the principal offence (i.e., a mental element for secondary liability). Although not binding on Indian courts, Jogee has prompted discussion on the mental element required to hold an accused liable for acts of another. Indian courts continue to develop their own jurisprudence but have taken note of the analytical caution in Jogee about imputing mens rea by mere association.
  • Practical takeaway: Courts should be careful before attributing to an accused an intent they did not possess. The Indian test remains focused on inferring common intention from conduct, but Jogee’s emphasis on mens rea can be persuasive on issues of degree.

Strategic Considerations for Practitioners
For prosecution
– Build the “chain of participation”: Collect and present evidence pointing to coordinated roles — witness statements describing distinct acts by each accused, recovery of weapons, call records showing synchrony, CCTV, and forensic links.
– Particularise the charge: Avoid laconic charging — explain how facts support common intention; identify the overt acts of each accused.
– Anticipate defence contentions: Be prepared to show why mere presence is not the correct inference in the case’s facts; show active participation or a clear linking act.
– Use Section 34 with corroboration: Since common intention is often inferred, corroborative material (forensic, documentary, electronic) strengthens the case.

For defence
– Attack the linking facts: Emphasise absence of any act by the accused that contributes to the offence; show that accused’s conduct was passive or unrelated.
– Demonstrate lack of prior meeting or concert: If the accused spontaneously arrived without planning or was coerced, underscore absence of meeting of minds.
– Challenge identification: Cast doubt on witness identification and narration of roles; point out contradictions in statements about who did what.
– Argue mis-pleading and non-specific charge: If the charge under Section 34 is not particularised, move to quash or for discharge under Section 239 CrPC or file an application under Section 227 CrPC in Sessions Court.
– Distinguish the act: Show that the act which resulted in injury or death was not in furtherance of any common intention of the accused (e.g., an intervening act by a third party).

Common pitfalls to avoid (both sides)
– Prosecution pitfalls: Relying solely on presence at the scene; vague charge sheets; failure to plead or prove overt acts by each accused.
– Defence pitfalls: Over-relying on assertion of innocence without addressing material connecting accused to the act; failing to attack specific witness evidence establishing participation.
– Judicial pitfalls: Equating mere association with common intention without adequate factual basis; using Section 34 as a shorthand to convict in absence of proof of a meeting of minds or conduct in furtherance.

Conclusion
Section 34 IPC is a powerful tool that transforms joint criminal conduct into individual criminal responsibility. It depends on a factual showing of a shared mental state and concerted action; it does not hinge on formal agreement or number of participants. For prosecutors, success lies in meticulously proving the linking conduct and roles; for defence counsel, dismantling that link — by attacking identification, chronology, motive and the existence of any meeting of minds — is the central strategy. Practically, the winning advocate will be the one who frames and challenges the narrative of concerted action with precision, supported by documentary, forensic and testimonial anchors that either establish or dismantle the inference of common intention.