Theoretical overview
An individual can commit a crime with his own hand or through an innocent agent. He may share in the commission of the offence, though he does not commit it personally. In case where a person has a share in the commission of a crime, it becomes comparatively difficult to find the extent of participation or contribution in the commission of the offence and his corresponding criminal liability. However, section 34 and 141 state as to what common intention and unlawful assembly means to form a joint and constructive liability.
Section 34 of Indian penal code defines common intention. When a number of persons engaged in a criminal act with a common intention, each person is made liable, as if he alone did the act.
Intention is the highest degree of Mens rea. It has a higher culpability than knowledge, rashness and negligence. The term intention is not defined in this code but the term common intention is. An act also includes an omission. Common intention means that, there was a pre-arranged planning and all the individual are acting in furtherance of that plan. The point which should be noted here is that the common intention can also be formed on the spot.
Common intention should not be confused with similar intention as intention is similar and not common when pre-meeting of mind can’t be proved. Moreover, common intention is itself not a crime until it is coupled with another offence.
Points to be noted about common intention
- Premeditation of mind is necessary
- Common intention can be developed at the spur of the moment but should be shared among each other
- Common intention can only be proved by facts and circumstances of the case
- It is not similar intention
- Benefit of doubt shall be given to the accused and of common intention is not there, then section 38 shall be apply which states that persons concerned in criminal act may be guilty of different offences
Chapter VIII of IPC deals with the offences against the state. In this chapter, section 141 defines unlawful assembly which is constituted by 5 or more person having a common object.
To be liable under unlawful assembly, one or more condition needs to be fulfilled which are as follows: –
- To overawe by criminal force any government
- To resist the execution of any law
- To commit any mischief or criminal trespass
- Possession of property, depriving person of the enjoyment, restricting water or other corporal rights by means of criminal force
- To compel any person to do what he is not legally bound to do.
Ingredients of unlawful assembly
- Assembly of 5 or more persons
- Common object (can be form at any stage)
- Common object must be out of the 5 conditions given under section 141, IPC
Relevant sections
Section 34 – common intention – When a number of persons engaged in a criminal act with a common intention, each person is made liable, as if he alone did the act.
Section 149 – common object – ever member of an unlawful assembly will be held liable for any criminal act done in furtherance of a common object
Section 32- an act also includes series of acts
Section 38 – persons concerned in criminal act may be guilty of different offences
Section 141 – unlawful assembly – which is constituted by 5 or more person having a common object.
Important case laws
Pandurang vs state of Hyderabad – it was held that intention is similar and not common when pre meeting of mind can’t be proved.
Moti Das vs. State of Bihar (1954) – pre concert of mind is not required for an unlawful assembly
Important differences
| Common intention | Common object |
| Mentioned under section 34 | Mentioned under sec 149 |
| It not an offence itself | Constitutes an offence itself |
| Prior meeting of mind is necessary | Prior meeting of mind is not necessary |
| Consist of 2 or more persons | Consists of 5 or more persons |
Points to remember
- Section 34 and 141 state as to what common intention and unlawful assembly means to form a joint and constructive liability.
- Section 34 of Indian penal code defines common intention. When a number of persons engaged in a criminal act with a common intention, each person is made liable, as if he alone did the act.
- Common intention should not be confused with similar intention
- Chapter VIII of IPC deals with the offences against the state. In this chapter, section 141 defines unlawful assembly which is constituted by 5 or more person having a common object.
