Group Liability and common object.pdf

JOINT LIABILITY/ GROUP LIABILITY/ PRINCIPAL OF CONSTUCTIVE LIABILITY A person may participate in the crime in following ways: 1. When he himself commits a crime 2. When he participates in the commission of the c...

JOINT LIABILITY/ GROUP LIABILITY/ PRINCIPAL OF CONSTUCTIVE LIABILITY A person may participate in the crime in following ways: 1. When he himself commits a crime 2. When he participates in the commission of the crime 3. When he sets third agency to commit a crime 4. When he helps the offender in avoidance of punishment after the Commission of the crime. When a criminal act is done by more than one person with common intention or common object, the liability is called joint liability. It makes other person of the group liable for the acts done by others. OBJECT BEHIND JOINT LIABILITY 1. Presence of accomplices gives encouragement, support, protection, and confidence to a person actually engaged in the Commission of an illegal act. 2. It is preventive in nature by discouraging criminal association. 3. It is difficult to ascertain the specific roles played by each members of the group so all are made jointly liable if they share common intentio or object. THE CRIMINAL LAW MAKES PROVISION FOR JOINT AND CONSTRUCTIVE LIABILITY UNDER FOLLOWING PROVISIONS 1. Common Intention: Section 3(5) BNS/ Section 34 IPC 2. Common Object: Section 190 BNS/ Section 149 IPC 3. Unlawfull Assembly: Section 189 BNS/ Section 141 IPC 4. Criminal Conspiracy: Section 61 BNS/ Section 120 A IPC 5. Entire law of Abetment: Section 45- 60 BNS/ Section 107- 120 IPC COMMON INTENTION When a criminal act is done by several persons 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 3(5) BNS/ section 34 IPC. 1  Section 3(5) of BNS has following essentials: 1. A criminal act 2. By several person (more than one) 3. In furtherance of common intention of all (was added by Cr. Amendement act 1870 in section 34 of IPC) Establishing common intention: It is a question of fact. To prove common intention it is necessary to prove either direct proof of prior concert or proof of circumstances which lead to that inference. Rule of Evidence: Section 3(5) is a mere rule of evidence. It does not create a distinct substantive offence. It means a prio concert or meeting of minds and which requires a pre-arranged plan of the accused participating in an offence. Therefore common intention is the intention shared by all. It is a prerequisite for application of this section. The sharing of common intention is necessary. It must be shown that criminal act compalined against was done by accused person in furtherance of common intention of all. The liability of each member will be as if the act was done by him alone. The essence of joint liability is to be found in the existence of common intention animating the accused leading to the doing of criminal act in furtherance of such intention. Mehboob Shah v. Emperor AIR 1945 PC (also known as Indus River case). Privy Council held that common intention means a pre-arranged plan or prior concert. In Krishna Govind v. State of Maharashtra AIR 1963 SC, Subbarao, J. Observed that it is well settled law that common intention within the meaning of section 34 implies a pre- arranged plan and the criminal act was done pursuant to the pre-arranged plan. Common intention may be formed prior to the act, or just before the act, or during the commission of the act. IN FURTHURANCE OF COMMON INTENTION In furtherance of common intention includes following types of act: 1. The act which is directly intended in between all the confedertes 2. The act which the circumstances of the case leave no doubt to conclude that though the act was not directly intended in between them it was taken by all of them as included in the common intention 3. The act which any one of the confederates commits in order to avoid or remove any obstruction or resistance put up in the ways of the proper execution of the common intention. 2  The action of helping forward which shows participation in the crime. Russel says, it indicates some kind of aid or assistance producing an effect in the future. Participation in criminal act: To participate means to take part by doing something and such doing helps in achievement of common cause. It is the simalteneous concensus of minds of several persons participating in criminal action to bring about particular results. Participation can be through active or passive participation. For the application of this section the accused must take part in the crime but it is not necessary that the accused should be present at very spot where the crime is commited. Barendra kumar Ghosh v. Emperor (also known as shankari tola post office case) Held that event the appelant did nothing as to stood outside the door, it is to be remembered that in crimes as in the other things they also serve who only stand and wait. When two persons are convicted and one of them is acquitted, the other person cannot be punished. Section 3(6) BNS, Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. Section 3(7) BNS, Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence. Illustration. A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder. Section 3(8) BNS, When an offence is committed by means of several acts, whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Illustrations. (a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects the several doses of poison so administered to him. Here A and B intentionally cooperate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate. 3 (b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternatively for six hours at a time. A and B, intending to cause Z’s death, knowingly cooperate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z. (c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z’s death, illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is dismissed from his office, and B succeeds him. B, without collusion or cooperation with A, illegally omits to supply Z with food, knowing that he is likely thereby to cause Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not cooperate with B. A is guilty only of an attempt to commit murder. Section 3(9) BNS, Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Illustration. A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intendingto kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide. CHAPTER XI OFFENCES AGAINST PUBLIC TRANQUALITY Everyone has a fundamental right to assemble but the assembly should be peacefully and without arms. An assembly is different from mere gathering. Where people go to watch cinema in theater, it is a mere gathering and not an assembly because a gathering lacks any intention. 4 UNLAWFUL ASSEMBLY Acording to section 189(1) of BNS, An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— (a) to overawe by criminal force, or show of criminal force, the Central Government or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or (b) to resist the execution of any law, or of any legal process; or (c) to commit any mischief or criminal trespass, or other offence; or (d) 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 (e) 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. Unlawful Assembly has following essentials: 1. Assembly of five or more persons 2. The assembly must have a common object 3. common object must be to commit one of the five illegal object specified in the section All above must co-exist Does Section 189 BNS incorporates principal of vicarious liability? Even though the person might not be intending but by reason of being a member of an unlawful assembly, he is liable. Wheather the accuses actually participated in the commission of the crime or not is irrelevant. COMMON OBJECT The term object means the purpose or design and in order to make it common it must be shared by all. It has two main ingredients which are: 5 1. An offence should be commited by any member of an unlawful assembly 2. The offence should be commited in prosection of common object of that assembly or such as the member knew to be likely to be commited in prosecution of the common object. The object should be common to the persons who composed the assembly, that is to say that they should be aware of it and concur in it. Mere presence is not sufficient: It must be proved that the accused were not mere bystanders but in fact they were sharing the common object. In Madan Singh v. State of Bihar 2005 Cri LJ 3755 SC, it was clarified that mere presence in an unlawful assembly cannot render a person leable unless there was a common object and he shared the same and that was actuated by that common object and that object is one of those set out in section 141 IPC (now section 189 BNS). In prosecution of common object means that the offence commited was immediately connected with the common object of the unlawful assembly of which the accused were members. There must be a nexus between the offence commited and the common object. The act must be done with a view to accomplish the common object. DIFFERENCE BETWEEN COMMON INTENTION AND COMMON OBJECT 1. in common intention two or more person are required Whereas in common object more than five persons are required 2. in common intention act must be done in furtherance of common intention which means participation of member is must Whereas in common object merely forming an unlawfull assembly is punishable. 3. common intention is mere rule of evidence. Whereas in common object is a substantive offence. 4. in common intention prior meeting of mind is must. Whereas in common object no need of prior meeting of minds of parties. 5. in common intention, the intention can be any intention. Whereas in common object the unlawfull assebly is formed for the object specified in section 189 of BNS. The distinction was made by SC in several cases like: Mehboob Shah v. Emperor AIR 1945 PC 6 Nanak Chand v. State of Punjab, AIR 1955 SC Om Prakash v State of UP, AIR 1956 All High Court 7