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The concept of "common intention" is crucial in criminal law, particularly when multiple individuals are involved in the commission of an offense. While the specific provision under the BNS is Section 3(5) the concept in essence is retained and is similar to Section 34 of the Indian Penal Code (IPC). Section 3 (5) - General explanations - Acts done by several persons in furtherance of common intention BNS, 2023
• Shared Criminal Purpose: Common intention implies that all participants in a criminal act shared a common objective or purpose. It goes beyond mere presence at the scene of the crime or passive participation.
• Pre-arranged Plan: While not always explicitly required, the existence of a pre-arranged plan or conspiracy among the individuals involved can be strong evidence of common intention.
• Shared Responsibility: When common intention is established, each participant in the crime is held liable for the acts of others, even if they did not directly commit the act themselves. This principle holds each individual responsible for the collective criminal intent.
• Prior Conduct: The conduct of the individuals before, during, and after the crime is crucial in determining common intention.
• Relationship Between Accused Persons: The nature of the relationship between the accused persons (e.g., friends, family, associates) can be relevant.
• Circumstantial Evidence: Circumstantial evidence, such as the proximity of the accused persons to the crime scene, their actions before and after the crime, and any incriminating statements, can be considered.
• Broadens Scope of Liability: It allows for the conviction of all individuals involved in a criminal act, even if they did not directly participate in every aspect of the crime.
• Addresses Collective Criminal Activity: It helps address situations where multiple individuals act together to achieve a common criminal objective.
The Principle of Parity is as the Court states it to be, “It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or court for repeating the same irregularity or illegality. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision ”
In the case of Kunhimuhammed @ Kunheethu v. State of Kerala, 2024 LiveLaw (SC) 964: The appellant argued for sentence reduction on grounds of parity with co-accused, citing the acquittal of one co-accused and the reduced sentence of another. Held, the doctrine of parity applies only when co-accused share similar levels of culpability and involvement in the crime. The evidence established that the appellant's actions were distinct and more culpable. While the co-accused wielded sticks and caused non-fatal injuries, the appellant alone used a knife to inflict fatal injuries on the deceased, signifying a deliberate escalation of violence. There was no evidence to show a common intention among the accused to commit murder, precluding the application of vicarious liability under Section 34 IPC.
The reduced sentence of one co-accused was based on the lesser nature of his involvement, while another was acquitted due to lack of evidence. The Court emphasized that parity in sentencing is not automatic and must consider the qualitative differences in actions and intent among co-
1 Tarun Kumar v. ED,CRIMINAL APPEAL NO. OF 2023 (@ SLP (Crl.) No. 9431 of 2023)
The reduced sentence of one co-accused was based on the lesser nature of his involvement, while another was acquitted due to lack of evidence. The Court emphasized that parity in sentencing is not automatic and must consider the qualitative differences in actions and intent among co-accused. The appellant's role, marked by clear intent and use of a deadly weapon, warranted a distinct and more severe sentence. The principle of parity was inapplicable given the appellant's materially different and more culpable conduct. Appeal for sentence reduction was dismissed thereby.
"An Act or series of acts done in furtherance of common intention" or "An Act or series of acts done in prosecution of common object" then all will be held liable as if it is done by him alone. It helps in apportioning the liability of members who commit a crime in the group. According to this doctrine when a crime is committed by a group in furtherance of common intention or in prosecution of a common object, each member of such group will be held liable for that in the same manner as if it was done by him alone. Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 is based on the case of R v. Cruise (1838) 8 C and P541.
The existence of common intention in a given case must necessarily be established by the Prosecution with relevant evidence. The Court also has the responsibility to analyze and assess the evidence before convicting a person with the aid of Section 34 of the IPC. Importantly, a mere common intention per se may not attract Section 34 IPC without action in furtherance of such common intention Madhusudan v. State of Madhya Pradesh, 2024 LiveLaw (SC) 418
Case Analysis
The Court overturned the accused conviction to acquittal based on two legal infirmities i.e., the altered charges under Section 302 read with Section 34 of IPC were not read out and explained to the accused, and, no evidence was led by the prosecution to show that there exists a 'common intention' on the part of the accused while doing a crime.
Initially, a charge under Section 302 read with Section 149 (Common Object) of the Indian Penal Code (IPC) was framed against the accused, however, subsequently, the charge under Section 302 read with Section 34 (Common Intention) of the IPC was framed against the accused. The alteration of charge was not read out and explained to the accused, moreover, the reasons for an alteration of charge were not recorded in the judgment.
Facts of the Case :
• In this case, the charges were framed against the five accused of commission of offence under Sections 148, 302/149, 307/149 and 323/149 of the Indian Penal Code, 1860 (IPC).
• The trial was conducted against four accused i.e. Sanjay, Madhusudan, Ram Kripal and Ramprakash. The fifth accused Babbu @ Omprakash was not part of this trial process since he was absconding.
• The learned trial court ordered for acquittal of the accused Sanjay of all the charges. The acquittal was also ordered for the remaining three accused for the offence under Section 148 of IPC.
• However, drawing support from the provisions of Section 34 of the IPC, all three were convicted for the offences under Sections 302, 307 and 323 respectively.
• The above judgment of the First Additional Sessions Judge, Indore rendered on 23rd November 2000 came to be affirmed on appeal by the Indore Bench of the High Court of Madhya Pradesh who found the appeals to be devoid of merit.
• Thereafter, the appellants filed an appeal before the Supreme Court.
• The learned counsel for the appellants would point out that the judgment of conviction cannot be sustained on account of discrepancies in the evidence of the eyewitnesses and also on account of the omission of the prosecution to connect the accused with acceptable material evidence with the crime
• According to the learned counsel for the appellants, the trial Court framed the question relating to only common object and the issue of common intention never cropped up during the trial.
• The appeal was accordingly allowed ordering acquittal of the appellants.
Issues:
• The central issue in this case likely revolves around the sufficiency of evidence to establish the guilt of the appellants.
• Specifically, whether the prosecution successfully proved the essential element of "common intention" required for conviction under Section 34 IPC.
• The appellants likely argued that the prosecution failed to establish that they acted with a shared criminal purpose.
• A bench comprising of Justices Hrishikesh Roy and Satish Chandra Sharma observed that a Court may alter or add to any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the CrPC, both to the prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges. More importantly, in case charges are altered by the Court, reasons for the same must be recorded in the judgment.
• It was further held that the Court, while altering the charge from Section 149 to Section 34 IPC omitted to furnish any reasons. Importantly no charge under Section 34 of the IPC was laid against the accused by the Prosecution. But when the charge under Section 149 IPC was dropped, the trial Court decided to conveniently alter the charge and with the aid of Section 34 IPC, ordered for conviction of the accused under Sections 302, 307 and 323 IPC respectively.
• The Court made a reference to the recent three judge Bench decision in Rohtas v. State of Haryana (2021), wherein it was observed that when a charge is altered from 'common object' to 'common intention' then the existence of common intention in a given case must necessarily be established by the Prosecution with relevant evidence as the 'common object' and 'common intention' cannot be equated with each other.
Mala Singh v. State of Haryana AIR 2019 SC1026, in the judgment of the Honourable Supreme Court of India where the Court talks about Limits on Altering charges during appellate proceedings. The crux of the case involved around whether the High Court was justified in altering charges from Section 149 to Section 34 of the IPC without sufficient evidence of common intention from the accused.
By Justices Sanjiv Khanna and Sudhanshu Dhulia stated that the Indian Penal Code, 1860 and under Section 34, the Co-perpetrator, who had participated in the offence is equally liable on the principle of joint liability. For Section 34 to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.
The Supreme Court bench comprising Justices Abhay S. Oka and Justice Pankaj Mithal was hearing an appeal against a judgment of the Madhya Pradesh High Court which convicted the appellant in a case of triple murder under Section 302 read with Section 34 and Section 201 of IPC and sentenced him to undergo life imprisonment.
In doing the same it recently revisited a critical distinction between "common intention" and "common object", which are mentioned in Sections 34 and 149 of the Indian Penal Code (IPC) respectively. The Court relied on Chittarmal v. State of Rajasthan, which had previously addressed the conversion of charges from Section 302 read with Section 149 of IPC to Section 302 read with Section 34 of IPC. It was observed : “A clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted.”
Facts
The case centered around the alleged triple murder of Uma Prasad, Vinod Kumar, and Munau, who was also known as Anant Kishore Khare. According to the prosecution, the incident took place on June 2, 1987, when Vinod Kumar had taken Munau to Naugaon village for medical treatment. When they failed to return, Uma Prasad Khare, the father of the two, dispatched Naval Kishore and Manua Chammer to search for them. Uma Prasad himself joined the search party. As they reached the Hanuman temple, the prosecution alleged that the accused were gathered near the temple, armed with firearms and other weapons. The appellant, identified as accused no.2, and accused no.16 were reportedly armed with a spear. The appellant was accused of dragging Uma Prasad's body and disposing of it in a well.
The prosecution further alleged that all the accused planned to kill Vinod Kumar Khare and Munau Khare. After approximately 15 minutes, gunshots were heard, and Vinod Kumar Khare and Munau Khare were reportedly killed. However, the Trial Court acquitted all the accused of this part of the charges, and that ruling remains final.
The appellant approached the High Court which partially allowed his appeal, altering their conviction under Section 302 read with Sections 148 and/or 149 of IPC to Section 302 read with Section 34 of IPC. The appellant's conviction under Section 201 of IPC was upheld.
The Court's judgment also noted that the appellant had already served the rigorous imprisonment sentence of five years for the offense under Section 201 of IPC. Accordingly, the Court canceled the appellant's bail bonds and set him free. The concept of common intention, crucial in criminal law, particularly when multiple individuals are involved in an offense, has been refined under the BNS. The BNS emphasizes the significance of a "common object" shared by the individuals, highlighting the need for a shared criminal purpose beyond mere presence at the scene of the crime.
