Understanding Common Intention in Indian Penal Code: Mahboob Shah v. Emperor, Study Guides, Projects, Research of Mock Trial and Moot Court

Download Understanding Common Intention in Indian Penal Code: Mahboob Shah v. Emperor and more Study Guides, Projects, Research Mock Trial and Moot Court in PDF only on Docsity! INDIAN PENAL CODE PROJECT REPORT PAGE | 1 Indian Penal Code PROJECT REPORT Submitted to: Ms. Anthim UILS, PU Chandigarh Submitted by: Tanishq Gaba Roll No. 162/21 B.A. LLB.(Hons.) Section-C Common Intention with special reference to Mahboob Shah v. Emperor (AIR 1945 PC 118). INDIAN PENAL CODE PROJECT REPORT PAGE | 2 ACKNOWLEDGEMENT At the outset, I wish to thank the Almighty God for his immense blessings and pray to him to continue to guide me on the path of my committed calling. I deem it my proud privilege to express my indebtedness and sincere thanks to all those who have in various ways, helped me in the successful completion of the project and without their invaluable help this project would not have been a reality. I convey my sincere gratitude to my teacher, Ms. Anthim, University Institute of Legal Studies, Chandigarh, who has chosen me for this project and also provided me help with knowledge, inspiration and information. It would not be possible for me to complete this project without her encouragement, guidance, valuable suggestions and affectionate help. I owe my regards to the entire faculty of the University Institute of Legal Studies, from where I have learnt the basics of Law and whose informal discussions, intellectual support helped me in the entire duration of this work. Tanishq Gaba Roll No. 162/21 B.A. LLB . (Sec- C) 5 th Semester UILS, Panjab University Chandigarh INDIAN PENAL CODE PROJECT REPORT PAGE | 5 INGREDIENTS OF SECTION 34 There are three main ingredients of the section: (1) A criminal act must be done by several persons; (2) The criminal act must be to further the common intention of all, and (3) There must be participation of all persons in furthering the common intention. 2 NATURE OF COMMON INTENTION There are several dimensions to the discussion on the nature of common intention. These are: (1) The common intention should be shown to be premeditated; 3 i.e., it must be shown that there was a prior meeting of minds which activated the common intention leading to the commission of the criminal act. However, there may be incidents in which common intention may develop on the spot, after the offenders have gathered. 4 (2) Proof of common intention will rarely be available directly. It has to be culled out from the facts and circumstances of the case. 5 (3) There is a difference between 'common intention' and 'same or similar' intention. Depending on the nature of the intention, not only will liability differ, but also the nature of conviction and sentence to be awarded. Section 34 can be invoked only when the accused shares a common intention and not when they share a similar intention. 6 (4) Unless common intention is proved, individual offenders will be liable only for their individual acts. The mode of proving common intention should be such as to exclude doubts about the prevalence of the common intention mobilising the offenders into action. However, if there is any doubt, then the benefit of doubt should be given to the accused. 7 2 Parichhat v. State of Madhya Pradesh, AIR 1972 SC 535. 3 Devilal v. State of Rajasthan, AIR 1971 SC 1444. 4 Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660. 5 Ram Kumar v. State ofMadhya Pradesh, (2014) 13 SCC 128. 6 State of Uttar Pradesh v. Rohan Singh, (1966) Cr LJ 2884 (SC). 7 Brijlala Prasad Sinha v. State of Bihar, AIR 1998 SC 2443. INDIAN PENAL CODE PROJECT REPORT PAGE | 6 SECTION 34 IS ONLY A RULE OF EVIDENCE AND DOES NOT CREATE A SUBSTANTIVE OFFENCE This principle that the provision only lays down the rule or principle of joint liability and does not create a separate offence, was considered by the Supreme Court in Gurdatta Mal v State of Uttar Pradesh. 8 The Supreme Court in this case observed that, “It is well settled that section 34 of the does not create a distinct offence: it only lays down the principle of joint criminal liability. The necessary conditions for application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or act s in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence; that is to say that if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder.” THE COMMON INTENTION SHOULD BE PRIOR OR ANTECEDENT TO THE OCCURRENCE The general principle is that common intention as defined in s 34 implies a pre-arranged plan and to convict an accused, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. This was emphasised by the Supreme Court in Pandurang v State of Hyderabad 9 , in which it was elaborated as follows: “Now in the case of section 34, we think it is well established that a common intention pre- supposes a prior concert. It requires a pre-arranged plan before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. ... Accordingly, there must have been a prior meeting of minds.” COMMON INTENTION MAY DEVELOP DURING THE COURSE OF THE OCCURRENCE AND COULD DEVELOP ON THE SPOT This principle was explained succinctly by Bose J in the Pandurang case. 10 According to him, the plan need not be elaborate nor is it necessary that a long interval of time is required. 8 Gurdatta Mal v State of Uttar Pradesh, AIR 1965 SC 257. 9 Pandurang v State of Hyderabad, AIR 1955 SC 216 10 Id. INDIAN PENAL CODE PROJECT REPORT PAGE | 7 It could arise and be formed suddenly. For example, if a man shouts at bystanders asking them to help him to kill a particular person, and they through their acts or speech, extend their support to him and also actually join him; in such a case, there has been a necessary meeting of minds; however hastily formed or rudely conceived, a pre-arranged plan has come into existence. Since pre-arrangement and pre-meditated concert are essential ingredients to the offence of joint liability, in such a situation, the acts of the various persons will be liable for coverage under the provisions of s 34, IPC. However, in such cases, the court held, there has to be cogent material to arrive at the finding to hold all the accused vicariously liable for the criminal act s by invoking s 34. If this is not available, then the individual accused will be liable only for their individual acts. COMMON INTENTION IS DIFFERENT FROM SAME OR SIMILAR INTENTION This principle came to be considered in Dukhmochan Pandey v State of Bihar. 11 Common intention, thus, does not mean similar intention of several persons. They are not synonymous. They are two different concepts of law. It is necessary that the intention of each one of 'several persons' be known to each other for constituting 'common intention'. Same intention of several persons does not constitute common intention unless they share it with each other. 12 Therefore, in cases where all persons having same or similar intention are physically present at the same time and at a place where offence is being committed are not jointly responsible for the offence committed. Each one will only be liable for his acts. 13 PARTICIPATION IN THE CRIMINAL ACT While participation in action is a necessary condition for liability under s 34, it is not necessary in all cases for participation to be in the form of physical presence. In Jaikrishnadas Manohardas Desai v State of Bombay, 14 it was explained that in offences involving physical violence, presence of the accused, apart from participation, was essential. However, in other cases involving non-physical violence, like in cases of misappropriation, cheating and the like, physical presence could not be a condition precedent to come to a finding of joint liability. 11 Dukhmochan Pandey v State of Bihar, AIR 1998 SC 40. 12 Dajya Moshaya Bhil v. State of Maharashtra, AIR 1984 SC 1717. 13 Papu Alias Susanta Das v. State, (1999) Cr LJ 738 (SC). 14 Jaikrishnadas Manohardas Desai v State of Bombay, AIR 1960 SC 889. INDIAN PENAL CODE PROJECT REPORT PAGE | 10 2. High Court Aggrieved by the judgement of Court of Session , both Mahboob Shah and Ghulam Shah appealed in the Lahore High Court. The High Court held that Ghulam Quasim had no common intention of killing any member of the complainant party when he went to the bank of the river in order to demand the bundles of reeds which had been collected from his uncle's lands and thus, he was acquitted of all offences. Mahboob Shah and Wali Shah fired simultaneously in the direction of the complainants killing Allah Dad on the spot and causing injuries on the person of Hamidullah Khan. It is difficult to believe that when they fired the shots they did not have the common intention of killing one or more of the complainant party. If so, both of them are guilty of murder notwithstanding the fact that the fatal shot was-fired by only one of them, namely, Wali Shah, absconder. Common intention to commit the crime came into being when appellant and Wali Shah fired the shots. Ghulam Shah was acquitted on the ground that he did not fired at anyone. It was Wali Shah who fired the shot. But Mahboob Shah was sentenced to death under section 302 read with section 34 of the IPC for Allahdad's murder. THE PRIVY COUNCIL’S JUDGEMENT – RATIO DECIDENDI AND OBITER DICTA The Privy Council set aside the appellant’s conviction for murder and laid down several principles to expound upon the intent behind the incorporation of Section 34 in the Indian Penal Code. The Privy Council held that there were no circumstances in the given case from which it could be inferred that there was an existence of a pre-arranged plan between Mahboob Shah (Appellant) and Wali Shah to murder Allahdad. The principles laid down are as follows: 1. The essence of liability under Section 34 is to be found in the existence of a common intention leading the accused to commit an offense in furtherance of such intention. 2. To connect several accused together under Section 34, it must be shown that one of the accused committed an offense in furtherance of the common intention and only then liability for the crime may be imposed on any one of the persons in the same INDIAN PENAL CODE PROJECT REPORT PAGE | 11 manner as if the acts were done by him alone. 3. Common intention pre-arranged plan and to convict the accused of an offense applying the section it should be proved that criminal act was done in concert according to the pre-arranged plan. 4. In most cases it is very difficult, if not impossible, to procure direct evidence to prove the intention of the person and it has to infer from the conduct of the person and other relevant circumstances of the case. 5. The inference of a common intention as provided under Section 34 of the Indian Penal Code should never be reached unless there exist such compelling circumstances and such common intention is a necessary inference deductible from the circumstances of the case. 6. Care must be taken not to confuse same intention with common intention, even though the line separating the two is very thin, but yet they are two different concepts and for attaching liability under Section 34 of the Indian Penal Code, the common intention is a necessary pre-requisite along with committing an offense in furtherance of such common intention. Privy Council further held that Mahboob Shah (Appellant) and Wali Shah had the same intention to rescue Ghulam Shah, and they intended only to carry out the rescue operation of Ghulam Shah even if they needed the guns to do the same. It was in furtherance of this same intention to rescue Ghulam Shah that Mahboob Shah picked Hamidullah and Wali Shah picked Allahdad and shot them. There was no existence ever of a common intention or a pre- arranged plan to murder Allahdad. INDIAN PENAL CODE PROJECT REPORT PAGE | 12 CONCLUSION In the important case of Mahboob Shah v. Emperor, the court explained the key ideas in Section 34 of the Indian Penal Code. This section talks about when several people can be held responsible together for a crime. The court made it clear that Section 34 helps in deciding joint responsibility based on a shared intention among the accused. Importantly, the court pointed out that Section 34 doesn't create a new crime by itself; instead, it guides how joint responsibility should be understood. The court highlighted the crucial difference between having a common intention and just having similar intentions among the accused. It stressed that for Section 34 to apply, there must be a true common intention, going beyond just a similarity in individual intentions. Moreover, the ruling explained that figuring out common intention requires carefully looking at the facts of the case. It stated that common intention should not be assumed unless there are clear and convincing circumstances showing a joint plan or coordinated action among the accused. Thus, the Mahboob Shah case provided important guidance on how to apply Section 34. It established a precedent for carefully examining shared intentions and joint responsibility in criminal cases, setting a standard that requires a thorough review of the evidence before attributing collective blame to the accused under this provision.