It is a well-established doctrine in construing one of criminal liability that the wrongful act must be in concurrence of a criminal intention. However, “intention” has not been explicitly defined in the Indian Penal Code, 1860 (IPC) per se. Nevertheless, section 34 of IPC mentions “common intention”. Precisely, it deals with the “Acts done by several persons in furtherance of common intention”. The said section, in essence, does not define common intention but it accords the same as a cardinal element in invoking the criminal liability under it.
The Apex Court had provided that the presence of a common intention and “participation of accused in the commission of an offence” are the essential factors to apply section 34. It was further provided that having a common intention even in the absence of an overt act by the accused will invoke section 34 by way of vicarious liability which is not true the other way round. It is plausible to confuse common intention with similar intention however, the appropriate application of law distinguishes both in light of several case laws. Therefore, understanding the nuances of common intention in contrast to similar intention has become inexplicably significant in meeting the ends of justice to appropriately accord criminal liability in an offence involving more than one person.
COMMON INTENTION UNDER SECTION 34
Section 34 enforces the doctrine of joint liability because in seeking its application, several persons must participate in the commission of the criminal act to advance a “common intention”. Common intention as was clarified by the Apex Court in the case of Abdul Sayeed v. State of M.P. means that each person involved in committing the crime was aware of the said act and the intention of each person has been communicated to all which further facilitate to constitute or share a common intention. Therefore, section 34 is invoked in cases where several persons are involved in a criminal act and it is not possible to determine the part contributed by each member in the party who had acted in furtherance of a common intention for their individual criminal liability. It is pertinent to note that the common intention emphasized in this section is different from “common intention to all” or “intention common to all”. The section takes into account the “common intention in furtherance of a criminal act”. This essentially means that the common intention is not particularly about the actual act but the prior meeting of minds or intention created at the spur of the moment to commit the said crime. Therefore, the criminal act under this section is a “unity of criminal behaviour” to actuate the criminal act for which a person would have been liable if it was committed individually by him.
Furthermore, section 34 is a rule of evidence and not a substantive offence per se which essentially means that liability under section 34 via the existence of common intention is to be established and not to be proved from the facts and circumstances of each case. Thus, the merit of facts of the previous cases even with close similarity cannot act as a precedent to render merit to the present case for establishing common intention.
SIMILAR INTENTION UNDER SECTION 35
Unlike common intention, a similar intention is not explicitly mentioned in IPC. Nevertheless, similar intention or like intention can be read under section 35 of the same however, such is not limited to this section per se. Thus, to understand similar intention per se, it is pertinent to understand the scope of section 35. Section 35 deals with constructive liability for acts with criminal knowledge or intention to render criminal liability under its provision. It is distinguished from section 34 by the nature of intention or mens rea of their act. Precisely, section 34 is exclusive to the offences where the intention is established from the nature of the act in question whereas section 35 exclusively determines liability based on the acts by the degree of knowledge or intention of each accused. An act which itself is not criminal unless it is committed with criminal intention or knowledge is accorded in section 35 where only those persons who join in the act with this same intention to jointly commit the crime will be held liable in the manner as the individual alone committing the offence would be. Furthermore, persons with different intentions and commitments will be held liable for their individual offences.
Therefore, essentially the distinguishing factor between section 34 and section 35 is the extent of intention or knowledge taken into account. In the former section, an act is committed in furtherance of a common intention while in the latter, joining others to commit the criminal act with the required ‘like’ or ‘similar’ or ‘same’ intention is sufficient to invoke the same.
SIMILAR INTENTION DISTINGUISHED FROM COMMON INTENTION
From aforesaid discussions, it can be inferred that to constitute a common intention under the joint liability, this intention must be pre-mediated and shared with each member of the group. It further needs to be established from the circumstantial evidence and poses as a question of fact in each case. While similar intention within its scope does not require a prior meeting of mind or pre-mediation of the commission of the act neither does it need to be communicated with every member of the accused party? Furthermore, in contrast to common intention established from circumstantial evidence, the similar intention needs to be proved under section 35 expressly because, under section 34, the same intention is not recognized to determine the liability. The confusion between similar intention and common intention arises generally when the common intention is produced at the spur of the moment. However, as the Apex Court distinguished in the case of Suresh v. State of U.P., that intention actuated by several persons simultaneously is similar intention per se distinguished from common intention which is developed and acted upon accordingly at the spur of the moment by every member of the party. This has a real as well as a substantial difference that should not be overlooked.
To substantiate it, A, B, and C for instance, had a rivalry with X. In the first case all three of them devised a plan and shared the common intention to murder X and committed the act in furtherance of the same for which they were jointly liable under section 302 read with section 34. While in a second instance, all three, strangers to each other, while walking from different lanes, spotted X and used different weapons to attack him to which he succumbed to death. Therefore, they had murdered X with a similar intention to kill him but there was no pre-mediation or communication of such plan or such intention nor any act in furtherance of this intention of all. Therefore, it only constitutes murder under section 302 and section 34 will not be invoked. It is noteworthy that joint liability under section 35 will also not be invoked because acting on this similar intention, A, B, and C did not join in the act with each other even though they had the same intention.
In the recent case of Jagan Gope v. State of W.B., the court observed that:
“Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of (a) pre-consent, (b) presence and (c) participation, in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention.”
Thus, it can be inferred that a similar intention can be a pre-stage of developing a common intention once it has acquired all the aforesaid requisites to invoke liability under section 34. It should not be confused with that of common intention because based on the nature of intention the liability, conviction, and sentence of the accused are determined.
Author(s) Name: Ranita Jana (Xavier Law School, XIM University, Bhubaneswar)
Arshdeep Ghuman, “Elements of Crime” (2018) 1(4) IJLMH <ijlmh.com/wp-content/uploads/2019/03/Elements-of-Crime.pdf> accessed 6 February 2022
 Indian Penal Code 1860
 Indian Penal Code 1860, s 34
 Jai Bhagwan v. State of Haryana  AIR 1083 (SC)
 Sudip Kumar Sen v. State of W.B.  SCC 26 (SC)
  10 SCC 259 (SC)
 K. D. Gaur, Textbook on Indian Penal Code (7th edn, Universal LexisNexis 2020)
 Hardev Singh v. State of Punjab  CLR 93 (SC)
 Girija Shankar v. State of U.P.  3 SCC 793 (SC)
 Supra note 6
 Durga Prasad v. State  SCC OnLine Del 2631
  3 SCC 673 (SC)
  SCC OnLine Cal 5589
 Anubhav Kumar, ‘The Concept of Constructive Liability under the Indian Penal Code: A Critical Analysis’ (2016) 5(3) Bharati Law Review 125 <http://bharatilawreview.com/uploads/091.pdf> accessed 7 February 2022