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Maina Singh vs. State of Rajasthan (1976)

The article has been written by Samiksha Singh. This article provides a detailed analysis of the landmark judgement of the Supreme Court in Maina Singh v. State of Rajasthan (1976). It elaborates upon the facts, issues, arguments of the parties and the rationale behind the judgement. In addition to this, the article also discusses the relevant legal provisions referred to in the judgement.

It has been published by Rachit Garg.

Introduction 

The law of crimes generally aims to punish such a person who commits a crime thereby subjecting the offender to such penal punishments which the law prescribes. Accordingly, only the person who commits the crime is held to be liable and guilty of that offence. However, a deviation from this general norm can be found under Sections 34 and 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”). As per these Sections, it is not just the person who actually commits the crime but also all such persons who were joined with the perpetrator by virtue of a “common intention” or “common object” in the commission of the crime, are also made “jointly liable”. A person can either commit the criminal act himself or through the aid of another person. The purpose of these sections thus is to impose ‘vicarious’ or ‘constructive’ liability on such persons who are jointly involved in the commission of an offence either by virtue of their “common intention” or by virtue of their “common object.” 

The present case of Maina Singh v. State of Rajasthan (1976) is an important case in this regard. While Section 34 and 149 of the IPC, 1860 provides when vicarious liability can be imputed, this case of the Supreme Court highlights when vicarious liability cannot be attributed. It was thus observed that in instances where the evidence does not point towards the involvement of any named or unnamed person, a single accused cannot be held liable under Section 34 or 149 of the IPC, 1860.

Details of Maina Singh vs. State of Rajasthan (1976)

Name of the case: Maina Singh v. State of Rajasthan

Citations: (1976) 2 SCC 827; 1976 SCC (Cri) 332

Case type: Criminal Appeal

Bench: Justice R.S. Sarkaria and Justice P.N. Shinghal

Name of the Appellant: Maina Singh

Name of the Respondent: State of Rajasthan

Date of the judgement: 17.03.1976

Name of the Court: Supreme Court of India

Provisions involved: Sections 34, 149, 302, 326 of the IPC, 1860 

Facts of Maina Singh vs. State of Rajasthan (1976)

Maina Singh v. State of Rajasthan (1976) was a Criminal Appeal preferred before the Supreme Court of India, which consequently resulted in a decision in Criminal Appeal No. 242/1971. In this case, the appellant, Mr. Maina Singh was convicted of an offence of murder under Section 302 read with Section 34 of IPC, 1860, and an offence of grievous hurt under Section 326 of IPC, 1860. Mr. Maina Singh was convicted of causing, firstly, the death of Mr. Amar Singh, and secondly, causing grievous hurt to one Mr. Ajeet Singh (the son of the deceased). The trial Court had sentenced Mr. Maina Singh to imprisonment for life for murdering Mr. Amar Singh, and also a rigorous imprisonment for three years with a fine of Rs 100/- for causing grievous hurt to Mr. Ajeet Singh. This decision of the trial Court was subsequently upheld by the Rajasthan High Court. Hence, the present appeal before the Supreme Court. 

Mr. Maina Singh (the appellant) and Mr. Amar Singh (the deceased) lived in “chak” number 77 GB. One, Mr. Narain Singh resided in a different chak. Mr. Maina had a suspicion that Mr. Amar Singh (the deceased) was supplying information regarding Mr. Maina’s smuggling activities. One day, the accused along with his three sons and Mr. Narain Singh chased the deceased. While attempting to fire a gunshot at the deceased, Mr. Maina Singh hit Mr. Ajeet Singh (son of the deceased) on his legs. Ajeet Singh subsequently jumped into a waterbody to take cover. Later, Maina Singh fired a gunshot which hit the deceased causing the deceased to fall down. Thereafter, the other four accused approached the deceased and inflicted several blows with a “gandasi.” Following this, Mr. Maina Singh additionally inflicted some blows on the deceased with the back end of his gun which broke and fell down. Eventually, Mr. Amar Singh, the deceased, succumbed to death as a result of his injuries.

Judgement of the Trial Court

The trial court only sentenced Mr. Maina Singh and acquitted the other four accused. This was because, while the Sessions Judge was of the view that Mr. Maina Singh may not have committed the offence alone, there was not sufficient or consistent evidence to suggest which of the four accused were involved. Further, the Sessions Judge also considered that there might have been some other person altogether who was involved in the commission of the offence. For this reason, the Sessions Judge gave “benefit of doubt” to the other four accused and acquitted them. However, since there was consistent and cogent circumstantial evidence against Mr. Maina Singh, he was convicted and sentenced.

Appeal to the Rajasthan High Court 

There were two appeals preferred to the Rajasthan High Court against the judgement of the Sessions Judge. One of the appeals was made by the State challenging the acquittal of the four accused. The other appeal was preferred by Mr. Maina Singh challenging his conviction. However, the High Court while dismissing these appeals upheld the conviction and sentence by the trial court. Subsequently, Maina Singh preferred an appeal before the Supreme Court challenging the judgement of the Rajasthan High Court by virtue of which Maina Singh’s conviction and sentence under Section 302 read with Section 34, and Section 326 of the IPC, 1860 (as imposed by the Trial Court) were upheld. 

Issues raised in Maina Singh vs. State of Rajasthan (1976)

Only one main legal issue was raised in this case:

  1. Whether Mr. Maina Singh alone can be convicted under Section 34 of the IPC, 1860, since all the other co-accused were acquitted and liability could not be attributed to any other unnamed person?

Arguments of the parties

Contentions by the Appellant

Mr. Harbans Singh, the counsel for the appellant, did not challenge the conviction on the basis of the evidence which was used to convict Mr. Maina Singh. The conviction was based on the statement of two witnesses, the recovery of ‘empty cartridges’ near the body of the deceased, Mr. Maina’s gun which was held by him under a licence, medical evidence and the abscondence of Mr. Maina Singh. For this reason, Mr. Harbans Singh made a different line of argument which is stated as follows:

  • The conviction for murder was based on Section 302 read with Section 34 of the IPC, 1860. The appellant argued that since Section 34 of the IPC deals with “common intention” and all the other co-accused have been acquitted, Mr. Maina Singh alone cannot be convicted for murder under Section 302 read with Section 34 of the IPC, 1860. Accordingly, the argument of the appellant was that it was not permissible for the Sessions Judge or the High Court to consider that Mr. Maina Singh committed any offence in pursuance of any “common intention.” This was because all the “other accused” had been acquitted. Thus, the only course of action that was permissible to the courts was to convict Mr. Maina Singh for those acts which could have been committed by him ‘individually’ without the involvement of any other ‘named’ or ‘unnamed’ person.    
  • The counsel for the appellant further pointed out that the Sessions Judge had noted that a conviction under Section 302 read with Section 149 or 148 of the IPC, 1860 was not possible. While substantiating this finding, the appellant contended that when the other four accused were already acquitted, it cannot be said that Mr. Maina Singh alone committed any offence in furtherance of the “common object” of the “unlawful assembly.”

Contentions by the Respondent

Mr. S.M. Jain, the counsel for the Respondent contended that the other accused were acquitted since the Sessions Judge gave them a ‘benefit of doubt.’ Further, the Sessions Judge did not rule out the possibility of the presence of a common intention. For this reason, the Sessions Judge recorded that either “one or more of the accused” or “some other person” altogether may have been involved alongside Mr. Maina Singh in the commission of the offence. Consequently, according to the counsel for the Respondent, the Sessions Judge and the High Court were justified in convicting Mr. Maina Singh under Section 302 read with Section 34 of the IPC, 1860.

Laws discussed in Maina Singh vs. State of Rajasthan (1976)

Section 34 IPC, 1860

Ingredients under Section 34

The Supreme Court in the case of Sudip Kumar Sen v. State of West Bengal (2016) observed that for Section 34 IPC, 1860 to be invoked, two ingredients must be proved. These are:

  • Firstly, there should be “several persons” possessing a “common intention” to commit a crime.
  • Secondly, these several persons should also actually commit a crime in fulfilment of that common intention.

Not a separate offence by itself

While Section 34 of the IPC, 1860 provides for joint liability, it does not per se create a separate offence. This section only aims to make all those persons liable, who by virtue of their common intention, commit a criminal offence. This would be better understood with the help of an illustration. For example, if there are four persons A, B, C, and D. These four persons possess a common intention to poison E, and they also take all the steps necessary to poison E. In that case, it does not matter who actually administers the poison, all the four persons would be liable for poisoning because of their “common intention” to poison E. Thus, Section 34 is not a separate offence on its own. It only penalises all such persons for the result of an act that has been committed by virtue of their common intention. 

The Supreme Court in the case of Gurdatta Mal v. State of Uttar Pradesh (1964) made a similar observation. The Hon’ble Court remarked that Section 34 of the IPC, 1860 does not create a separate offence. Once the essentials of Section 34 are made out, all the accused would be liable. Meaning thereby, if three persons possess a common intention to murder someone, and they take all the steps necessary to commit the offence, all the three would be liable for the offence of murder. 

Common intention does not mean same intention

The term “common” does not mean “same” or “similar”. For this very reason, the term “common intention” cannot be construed as “same intention” to attribute liability under Section 34 of the IPC, 1860. The following illustration would be helpful in understanding the difference. For example, there is a group of students who go on to protest against the administration. The common intention of the group of students herein may be to stop the administration from taking some harsh decisions. However, if during such a protest, two or more of the students start pelting stones or destroying property, these two or more students alone would be responsible for such acts. The remaining students cannot be held liable for the acts of two or more students. This is because it cannot be said that the remaining students necessarily possessed the intention to cause harm to any person or property. Deriving thereby, while the common intention of all the students was to convince the administration to pay heed to their demands, they did not possess the same or similar intention to hurt any person or damage any property.

The Supreme Court in Hardev Singh v. State of Punjab (1975) where the target of assault was one Kewal Singh, however, in the course of attack, one of the accused killed another man, the question was whether all the three accused would be liable? In this case, the Supreme Court answered in negative. It was observed that the act of one of the accused in killing another man was his individual act. There was no question of common intention.

Participation in the act

Participation in the commission of the offence is the most crucial element for invoking the principle of joint liability. It is imperative for every member in the group sharing the “common intention” to participate. As was observed however by the Supreme Court in Virendra Singh v. State of Madhya Pradesh (2010), “participation” does not imply “physical presence.” It depends on the facts and circumstances of the case. 

In the case of Suresh Sakharam Nangare v. State of Maharashtra (2012), the relationship between “common intention” and participation in invoking Section 34 of the IPC, 1860 was examined. It was observed that in instances where common intention is established but any direct act is not attributable to an individual, Section 34 would be invoked. However, in cases where participation of the individual in the offence is established yet common intention cannot be found, Section 34 of the IPC, 1860 would not be attracted. 

Section 149 IPC, 1860

Scope of Section 149 IPC

Section 149 IPC, 1860 attributes guilt to every member of an unlawful assembly when a criminal act is committed in pursuance of a common object. The attribution of guilt under Section 149 of the IPC, 1860 has two limbs:

  • Firstly, if there is a “common object” and an offence/criminal act is committed in pursuance of that “common object”, Section 149 would be attracted; or 
  • Secondly, If the members “knew” that there is a likelihood of commission of an offence. In such a scenario, all such members who knew about the likelihood of the commission of the offence would be liable.

Hence, the liability under Section 149 of the IPC, 1860 arises from merely being a member of an unlawful assembly. Thus, whenever a criminal act is committed in pursuance of a common object, each and every person of such unlawful assembly is liable. It does not matter whether that member himself committed the act or not. 

It is important to note, however, that an assembly may not necessarily be an “unlawful” one right from the beginning. The assembly may subsequently qualify as an unlawful assembly when it adopts one or more “common objects” specified under Section 141 of the IPC, 1860.

Test to determine common object

Previously, in the case of Baladin v. State of Uttar Pradesh (1955), the Supreme Court opined that mere presence is not enough to render a person as a member of an unlawful assembly. For a person to qualify as a “member”, there must be something to show that such a person either did something or omitted to do something. However, a larger bench of the Supreme Court examined this proposition in Masalti v. State of Uttar Pradesh (1964). It was observed therein that it would be incorrect to state that a person would only be considered a member of the unlawful assembly, if it can be established that such person committed either some illegal act or omission. It was clarified that Section 149 of the IPC, 1860 prescribes that:

  • If any member of such assembly (regardless of the fact that which member commits the act) commits an offence in order to accomplish the “common object”; or
  • The members had knowledge of the likelihood of the commission of such offence in pursuance of such common object,

then, each and every person that formed part of that unlawful assembly would be liable. It was thus clarified that for Section 149 of the IPC, 1860 to operate, it is not necessary that such a criminal act is actually committed by each and every member.

However, when the allegation is against a very large population, care and caution must be exercised by the courts in examining the evidence. The Supreme Court in Ramachandran v. State of Kerala (2011) opined that in instances where the allegation is against a large population, it must be seen as to what was the total number of persons involved, whether such persons were armed or were mere spectators, nature of injuries and so on. Even offences which do not directly further the “common object” may also attract liability under Section 149 of the IPC, 1860 if the members had knowledge that there was a likelihood of commission of such offence.

Difference between section 34 and section 149 of the IPC, 1860

While both the sections attribute constructive liability, they differ in some aspects. These are:

  • For Section 149 of the IPC, 1860 to apply there must be a minimum of five persons who form part of the unlawful assembly. There is no such minimum or fixed number under Section 34 of IPC, 1860 for there to be a “common intention.”
  • The definition of what constitutes “common object” is provided under Section 141 of the IPC, 1860. However, there is no such definition of “common intention” under Section 34 of the IPC, 1860. Deriving thereby, “common intention” could imply any intention to commit any criminal act.
  • For Section 34 of the IPC, 1860 to apply, any act, no matter how small, must be done. However, under Section 149 of the IPC, 1860 merely being a member of an unlawful assembly can attract liability. 
  • Section 34 of the IPC, 1860 is not a separate offence in itself. However, Section 149 of the IPC, 1860 creates a distinct offence. 

Section 302 IPC, 1860

Section 302 IPC, 1860 prescribes the punishment for murder. According to Section 302, any person who commits the offence of murder can only be awarded either of the two punishments. These being:

  • Life imprisonment; or
  • Death.

Additionally, the convict would also be liable to pay a fine. 

Section 326 IPC, 1860

Meaning of grievous hurt

Section 326 IPC, 1860 deals with the voluntary act of causing grievous hurt by an individual by means of a dangerous weapon. Section 320 of the IPC, 1860 defines what constitutes grievous hurt. Accordingly, grievous hurt constitutes the following:

  • When there is an act of “emasculation”;
  • If the victim is permanently deprived of sight of any of the eye as a result of the hurt;
  • When the victim is permanently deprived of hearing of either of the ear as a result of the hurt;
  • When the hurt results in any permanent loss of any joint or limb;
  • When the sufferer permanently loses the power to use any joint or limb as a result of the hurt;
  • If the hurt permanently disfigures either an individual’s head or face;
  • If the hurt results in any kind of fracture or dislocation of an individual’s bone or tooth;
  • Any kind of hurt that threatens the life of the individual. It also includes those types of hurt wherein the victim suffers from severe pain for a period of twenty days. Additionally, if an individual is unable to carry out his ordinary pursuits, that too would constitute grievous hurt. 

Accordingly, as per Section 326 of the IPC, 1860,

  • if anyone uses an instrument that is meant for shooting, stabbing, cutting (or something when used like a weapon has the likelihood to cause death) to cause grievous hurt,
  • employs either fire or any heated substance,
  • uses poison or corrosive substance,
  • any substance which is explosive in nature,
  • any substance that is harmful to the human body when inhaled, swallowed or received into blood,
  • uses an animal,

would be punished with either imprisonment for life, or imprisonment extendable to ten years and fine.

Exceptions under section 335

Section 335 of the IPC, 1860 provides an exception to grievous hurt under Section 326. Accordingly, for Section 335 to apply:

  • Firstly, An individual must be instigated to voluntarily cause grievous hurt;
  • Secondly, such provocation must be both “sudden and grave”;
  • Thirdly, the individual who causes grievous hurt upon provocation must not possess the intention to cause such hurt to any other person except the one who provoked him;
  • Fourthly, the individual must not have the knowledge that he himself is likely to cause such hurt to any other person except the one who provoked him.

While Section 335 also deals with grievous hurt, the condition of provocation acts as a mitigating factor. Thus, the punishment herein is an imprisonment extendable to four years, or a fine up to Rs. 2000/- or both. In K M Nanavati v. State of Maharashtra (1961), the standard for “grave and sudden provocation” was whether a reasonable man similarly placed as the accused would also be instigated enough to lose his control. 

Judgement in Maina Singh vs. State of Rajasthan (1976)

The Supreme Court, on the basis of the facts of the case, observed that Section 34 or Section 149 of the IPC, 1860 cannot be invoked in the instant case to convict the accused. The Hon’ble Supreme Court noted that there was no evidence to ascertain that Mr. Maina Singh committed the offence with any other “unnamed person.” For this reason, the Supreme Court opined that when the other accused were acquitted by affording them a “benefit of doubt”, there is no reason to take a position that Mr. Maina would have committed the offence with the aid of some other person. Accordingly, the Supreme Court opined that the present case did not attract either Section 34 or 149 of the IPC, 1860. This was simply because the presence of any other named or unnamed person could not be determined. For this reason, it was observed that if anything, Mr. Maina Singh, could only be punished for those offences which he may have committed in his individual capacity. 

Further, in view of the facts of this case, the Supreme Court reasoned that it was not possible to come to a conclusion that the death of the deceased was caused owing to the injuries inflicted by Mr. Maina Singh. However, since one of the injuries caused by him was “grievous” in nature, Mr. Maina Singh would be guilty under Section 326 of the IPC, 1860 for “voluntarily causing grievous hurt.” In this light, the Supreme Court altered Mr. Maina’s conviction. The conviction under Section 302 read with Section 34 of the IPC, 1860 was changed to a conviction under Section 326 of the IPC, 1860. Further, the sentence of the accused was reduced to only a ‘rigorous imprisonment’ for a period of 10 years. However, the other sentence, which was a rigorous imprisonment of three years and Rs. 100/- fine for causing grievous hurt to Mr. Ajeet Singh remained unaltered. 

Rationale of the case

In the absence of evidence to suggest the involvement of any other ‘unnamed’ person, the accused alone cannot be convicted under Section 34/149 of IPC, 1860

The Sessions Court had previously acquitted the other four co-accused because there was insufficient and inconsistent evidence regarding their participation in the crime. However, the Sessions Court, while convicting Mr. Maina Singh under Section 302 read with Section 34 of the IPC, 1860, had recorded that there may have been certain other ‘unnamed’ persons involved in the commission. The first question before the Apex Court, thus, was whether the Courts could come to a conclusion that certain unnamed persons were involved in the crime. If yes, then under what circumstances?

The Supreme Court answered in affirmative. It was observed that the courts could come to such a conclusion only if there was some evidence to suggest so. This would be better understood with the help of an illustration. In a given case, for example, the charge discloses only four persons A, B, C, and D as co-accused. While presenting the evidence also, the prosecution witness only provides testimony regarding A, B, C and D. In such a scenario as well, the courts could come to a conclusion that there may have been certain other unnamed persons who were involved in the commission of the crime alongside the accused. However, there has to be some evidence to support that conclusion. 

In this case, right from its inception, Mr. Maina Singh and only the other four co-accused were alleged to have participated in the crime. There was no allegation either in the charge-sheet or in the FIR regarding the involvement of some other person. Further, the testimony of the witnesses were also limited to the four accused. There was no evidence be it direct or circumstantial to suggest the involvement of any other person. In such a scenario, the view that Mr. Maina Singh may have committed the crime with some other person is untenable.

The Supreme Court herein relied upon the case of Mohan Singh v. State of Punjab (1962). This case was one of an unlawful assembly where 2 accused were acquitted and 2 were convicted under Section 302 read with Section 149 of IPC, 1860. The Hon’ble Supreme Court made an observation regarding liability of one or more of the accused in an unlawful assembly when one or more of the accused are acquitted. For there to be an unlawful assembly, there must be at least five persons with “common object.” The Supreme Court observed that there may be a situation where the evidence and the charge only suggest the name of five persons and no other persons. In that case, if some of the five are acquitted, then the remaining cannot be tried under Section 149 of the IPC, 1860. This is because at least five persons are required for there to be an unlawful assembly. Given that the charge and evidence is confined only to those five persons and no other, the acquittal of some would make a case under Section 149 of the IPC, 1860 not maintainable. 

However, there may be a situation where although the charge only names five or more persons yet there is evidence to suggest the involvement of other unnamed persons. In such instances, the acquittal of some of the named accused would not defeat a case under Section 149 of the IPC, 1860. This is because in such a case it may be possible that those whose names were mentioned in the charge were wrongly accused. It may also be that those whose names were not mentioned in the charge were such persons who could not be identified. Thus, if there is evidence to show that “some other persons” were involved in the crime, a charge under Section 149 of the IPC, 1860 would be valid. This is because in such situations, the Court is at least able to reach to the conclusion that there was an unlawful assembly comprising five or more persons. It is only that all the members of the unlawful assembly could not be identified. 

If the other co-accused are acquitted and the evidence does not suggest the presence of any other unnamed person, one person alone cannot be charged under Section 34 of the IPC, 1860.

Section 34 of the IPC, 1860 provides for “common intention”. The very nature of this section is to extend liability to “several persons”, who by virtue of their “common intention” participate in the commission of a criminal act. For this reason, an accused generally may be sentenced and punished for those actions in which he is individually responsible. However, one person alone cannot be charged under a Section, which by its very nature is not meant to inflict individual culpability. Section 34 of the IPC, 1860 is “participative” in nature. 

In this case, the charge previously was one of unlawful assembly under Section 149 of the IPC, 1860 wherein Mr. Maina Singh, along with other four persons were accused. There was no other person who was charged except the five of them. Further, there was also no evidence to suggest the involvement of “any other unnamed person” except Mr. Maina Singh and the four co-accused. Thus, if the other four accused were acquitted, and there was no evidence to suggest the involvement of any other unnamed person, there can be no “common intention” or “unlawful assembly” by Mr. Maina Singh alone. Therefore, if anything, Mr. Maina Singh could only be convicted or sentenced for those offences which can be proved to have been committed by him individually. For this reason, the Supreme Court altered Mr. Maina’s conviction under Section 302 read with Section 34 of the IPC, 1860 to one under Section 326 of the IPC, 1860. 

Conviction for grievous hurt

As already discussed, the Supreme Court observed that Mr. Maina would only be responsible for offences committed by him in his individual capacity. It was held without doubt that the “blunt weapon injuries” and “firearm” were inflicted by Maina Singh. The post-mortem report provided that while in totality all the injuries were together sufficient to cause the death of the deceased, it could not be determined with certainty whether any injury alone was sufficient to cause death. For this reason, while the injuries inflicted by Mr. Maina Singh along with other injuries were sufficient to cause death, it could not be concluded whether the injury inflicted by Mr. Maina Singh alone was sufficient to cause death. However, since one of the injuries was “grievous” in nature, Mr. Maina Singh was held to be guilty under Section 326 of the IPC, 1860. Thus, his sentence of life imprisonment under Section 302 read with Section 34 of the IPC, 1860 was altered and reduced to only 10 years of rigorous imprisonment for causing grievous hurt to the deceased. However, his sentence of three years rigorous imprisonment with fine for causing “grievous hurt” to Ajeet Singh remained unaltered. 

Conviction and Sentence of the Appellant after the appeal

  • Earlier convicted under Section 302 read with Section 34 of the IPC, 1860 and sentenced for life for murder of Amar Singh – Conviction altered from Section 302/34 to Section 326 of the IPC, 1860 and sentence reduced to 10 years rigorous imprisonment.
  • Earlier convicted under Section 326 of the IPC, 1860 and sentenced to 3 years rigorous imprisonment with Rs 100/- fine for causing grievous injuries to Ajeet Singh (son of the deceased) – This conviction and sentence remained unaltered.

As observed by the Supreme Court, both these sentences were to run concurrently.

Analysis of Maina Singh vs. State of Rajasthan (1976)

The only question that the Supreme Court was faced with in this case was whether the conviction of the accused, Mr. Maina Singh, which was upheld by the Rajasthan High Court, was justified under Section 34 of the IPC, 1860. It is imperative to mention that Section 34 of the IPC, 1860 lays down a provision for “common intention of several persons.” Meaning thereby, Section 34, itself provides for commission of crime by more than one person as a result of their “common intention”. However, if all the co-accused are acquitted and there is no evidence on record to suggest the participation of any other person, one person alone cannot be convicted under Section 34 of IPC, 1860. This is because, Section 34 emphasises upon the “participative” nature of the crime and the requirement of “common intention” of several persons. In the event that such participation of either the co-accused or any other unnamed person cannot be established, a single person cannot be convicted under Section 34 of the IPC, 1860. Such accused may be held guilty of only those offences for which he is individually responsible. For this reason, since the evidence was clear to show that Mr. Maina Singh was responsible for causing grievous hurt to the deceased and hence, he was sentenced to rigorous imprisonment for 10 years under Section 326 of the IPC, 1860.

Conclusion 

While Sections 34 and 149 of the IPC, 1860 impose vicarious liability, it is important to understand when these provisions can be attracted. Section 34 of the IPC, 1860 provides for a criminal act that is committed in pursuance of the “common intention” of several persons. On the other hand, Section 149 of the IPC, 1860 creates a distinct offence by imposing guilt on members of an “unlawful assembly” who either commit an offence in pursuance of the “common object” or at least have knowledge of the likelihood of the commission of the offence. However, it is important to understand when these provisions can be invoked. The present case of Maina Singh v. State of Rajasthan (1976) provides an appropriate example of the same. This case highlighted that in the event that all the other accused are acquitted and the evidence on record does not provide for the involvement of any other unnamed person, then one person alone cannot be held guilty of an offence by virtue of Section 34 of the IPC, 1860. If benefit of doubt is provided to all the other accused and the evidence cannot point guilt towards any unnamed or unidentified person, one person would not be convicted for any offence read with Section 34 of the IPC, 1860.

Frequently Asked Questions (FAQs)

What is the difference between common intention and common object?

As was observed in Chittarmal v. State of Rajasthan (2003), common intention signifies a consensus or previous meeting of minds. As opposed to this, a common object does not mandatorily require a prior meeting of minds. While in an unlawful assembly, the members do possess a common object, the intention of these members may differ.  

When can “common intention” be formed? Is there any specified time gap required for the formation of a common intention under Section 34 of IPC, 1860?

For the purpose of Section 34 of IPC, 1860, “common intention” implies “common design”.  “common intention” is not a physical rather a “psychological” phenomenon. For there to be a common intention, it is not necessary for all the co-accused to discuss and formulate a plan. It can be formed even a “minute before” the commission of the crime. Further, it can also be formed during the commission of the act. The Supreme Court in a very recent decision of Ram Naresh v. State of UP (2023) affirmed this position. 

Can common intention be implied based on the accused’s presence near the scene of the crime?

No, “common intention” under Section 34 of the IPC, 1860 cannot be implied for the sole reason that such an accused was present near the scene of the crime. The Division Bench of the Supreme Court in Velthepu Srinivas and Others v. State of Andhra Pradesh (2024) observed that for Section 34 of the IPC, 1860 to be attracted, it is imperative that the accused possessed “common intention” to commit the crime. In this case, it was observed that since the accused (A3) did not actually possess the intent to commit murder, there can be no implication of “common intention”.

Can a charge under Section 149 for unlawful assembly be substituted with Section 34 for common intention, if common object is not proved?

If the prosecution is unable to establish “common object” under Section 149 of the IPC, 1860, they can still pursue a charge under Section 34 of the IPC, 1860 for “common intention. However, in such a case, as was observed in Chittarmal v. State of Rajasthan (2003), it must clearly be determined that there existed a “common intention” to commit the offence. The Supreme Court opined that while Section 149 may in some instances overlap with Section 34 of the IPC, 1860, it must still be seen whether the “common object” actually also involves a “common intention.” 

Can there be any vicarious/constructive liability in instances of free fight?

In instances of sudden fight, constructive or vicarious liability cannot be imposed. This is simply because such fights break out without any prior plan. For this reason, every person would be individually responsible for those acts which have been committed by the individual himself. This observation has been made by the Supreme Court in numerous cases like Kanbi Nanji Virji v. State of Gujarat (1969), Munir Khan v. State of Uttar Pradesh (1970), Chinu Patel v. State of Orissa (1989), Lalji v. State of Uttar Pradesh (1973). Further, the Supreme Court in Munir Khan v. State of Uttar Pradesh (1970) observed that Section 149 of the IPC, 1860 cannot be attracted in instances of mutual fight because there can be no “common object” in such fights.

References

  • https://theadvocatesleague.in/blogs/view/DEcoding-the-relationship-between-Section-34-and-149-IPCDO-they-overlap-7vNR4Q.html#:~:text=Section%2034%20deals%20with%20common,is%20penalised%20under%20Section%20143.

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