Constructive Liabilty & The Concept of “Common Intention”


The concept of criminal liability generally states that if any criminal act is done by a person then he is solely responsible for such activities and he can be held liable for the same. This is the general rule regarding criminal liability. We know that criminal liability is always established where there exists the guilty mind and the criminal act in accordance with that guilty mind. Indian Penal Code recognises criminal acts done by several personals in different provisions. Here in this article, we are discussing the law regarding constructive liability and the concept of ‘common intention’ with important decisions.

Constructive Liability

The general rule of criminal liability is based on the well-known maxim, “Actus Non Facit Reum Nisi Mens Sit Rea” which means there can be no criminal act without a guilty mind. From this, we know that criminal liability arises when there is the existence of both mens rea and actus reus, and in all cases, the person who committed criminal act will be punished for that. Constructive liability is an exception to this general rule of criminal liability.

The phrase constructive liability means and indicates the sense that a person is liable in law for the consequences of an act of another even though he hasn’t done it himself. the principles that under certain circumstances though a person did not directly contribute anything towards the commission of a certain offence, in law he shall be equated to the actual and principle offender so far as the legal liability is concerned.[1]

Indian Penal Code recognises the concept of constructive liability under  three sections;

  1. Common intention (Section 34 )
  2. Common object (Section 149)
  3. Being a member of a conspiracy to commit such an offence (Section 121A)

If a criminal act is done in furtherance of common intention each of such persons is liable for that act in the same manner as if it were done by him alone. Similarly, if an offence is committed by any member of an unlawful assembly, in the prosecution of the common object of that assembly, or such as the members knew to be likely to be committed in prosecution of that object, every member shall be considered guilty of that offence. A person may constructively be liable for being a member of the conspiracy to commit such an offence.

Constructive liability does not require an offender, charged with such liability to directly participate in the crime. A person will be an offender if he instigates, or abets other offenders in the commission of the same crime, even if he has not directly participated in the crime in any way.

Further, an assembly of five or more persons, with a common object to commit an offence, or crime, or any illegal thing, in the eye of law being a member of unlawful assembly, makes a person criminally liable. Even Though such a member himself did not participate in the commission of crime, which the other members of the said assembly committed on that occasion, that person cannot escape from his criminal liability. He is roped in merely by a member of that assembly. This is what is called constructive liability.[2]

Section 149 of IPC finds its basis on constructive liability which is the ‘sine qua non’[3] for its operation.

The concept of constructive liability is also adopted under the provisions of criminal conspiracy, where the parties to the agreement to do an illegal act are held criminally liable though there are no instances of any illegal acts committed.

Leading Case Laws

In Roy Fernandes v. State of Goa,[4]The Supreme Court held that to determine the existence of a common object, the court is required to see both the circumstances in which the incident had taken place and the conduct of the members of unlawful assembly which includes the weapon of offence that the accused persons used to commit the offence.[5]

In the case of Waman v. State of Maharashtra,[6] The Supreme Court held that Section 149 of IPC is attracted where a member of unlawful assembly has committed an act in the prosecution of the common object. It must be within the knowledge of the other members of the assembly. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be viable for the same under section 149.[7]

In Willie (William) Slaney v. The State of MP,[8] The legality of conviction by applying Section 34 and Section 149 under IPC was examined. And it was held that Section 34 and Section 149 provided for criminal liability which is viewed from different angles with regard to actual participants and those who actuated by a ‘common intention’ or a ‘common object’ and charge is imposed on one involving the direct liability and the constructive liability without specifying who is directly or sought to bee constructively liable. In such cases, the evidence as to who was primarily responsible for the act which brought about the offence is relevant.

In Mohammad Arif v. State of Gujarat, the agreement was only to give thrashing the victim specifically, but one of them pulled out a knife and stabbed the victim, the court held that the object to cause a fatal injury was not known to other members at the initial stage nor at the execution stage which could make all others liable for the death. Therefore, it can be construed that the other members of the unlawful assembly were not constructively liable for the offence committed by another member as the main ingredient, that is, the common object was not present.

The concept of constructive liability must not be so stretched as to lead to the false implication of innocent bystanders.

The concept of “Common Intention

Common Intention is also called ‘Joint Liability’ in Criminal Law, Section 34 to 38 explains the provision about common intention.

When a criminal act is done by 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.

Essential Ingredients to Section 34

1. A criminal act was done;

2. The act was done by several persons;

3. That several persons did it in furtherance of the common intention of all, that is there was a prearranged plan in pursuance of which the criminal act was done and the act of each accused helped to further the common intention;

4. The common intention in the sense of a prearranged plan between such persons;

5. Participation in some manner in the act constituting the offence by the persons sought to be prosecuted;

6. Physical presence at the time of the commission of all the persons; but the physical presence of all is not necessary in some cases.

The word ‘act’ referred to in Section 34 includes a series of acts done by several persons, some perhaps by one of those persons and some by another, but all in furtherance of common intention.[9]

The criminal act mentioned in this section must be a prearranged plan.

To attract Section 34, there must be a physical presence of the accused of the actual commission of a crime. He need not be present in the actual room; he can, for instance, stand guard by agate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road to facilitate their escape, but he must be present at the scene of occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. It is essential that the accused join the actual ‘doing’ of the act not merely in planning its preparation.[10]

Burden of Proof

The burden of proof shall lie on the prosecution to prove the following-

  1. Actual participation of more than one person for commission of the criminal act.
  2. Such act was done in furtherance of common intention at a prior concert.

Important decisions on Common Intention

In Joginder Singh v. the state of Haryana,[11] The Supreme Court held that common intention can be inferred from the manner in which the accused arrived at the scene and attacked the victim along with the way of beating or injuries caused by either of the accused and acts done by others to assist those causing the injuries. In this case, the accused brought the weapons from the house by which the other accused attacked. Thus, the common intention to commit murder was held as preplanned.[12]

In Tukaram Ganpat Panadare v. State Of Maharashtra,[13] Supreme Court stated that the physical presence of the accused is not necessary at the place of crime, he might remain in the vicinity to alert hid fellow criminals about the danger or assist them in any other way. However, the participation of each member of a group in the commission of a crime is a condition precedent in order to fix the joint liability.

In Pandurang Tukia and Bhillia v. State of Hyderabad,[14] a three-judge Bench of Supreme Court while upholding the above-mentioned landmark judgements held that the essence of joint liability under Section 34 lies in the existence of common intention to do a criminal act, which would mean pre-arranged plan, that is, a prior concert prior meeting of minds and participation of all members of the group to execute the plan. Therefore, to jointly convict for the criminal act of another, the act must have been done in furtherance of common intention.

In Krishnan v. State of Karnataka,[15] four persons attacked the deceased as she was alleged to have been in an illicit relationship with a man. One of the accused inflicted an injury on the backside near the shoulder, the other accused hit the deceased on the head and the other two caused a cut on her neck. After causing the fatal injury all the accused ran away. The Apex court while dismissing the appeal by the two accused as contended that they did not cause fatal injury held that the acts in the case may have been different in character but they were actuated by one and the same intention fulfilling the requirement of joint liability which requires proof of common intention and doing of separate acts by the several individuals to hold each of them liable for the result of them all.[16]

In Kripal Singh v. State of UP,[17] the Supreme Court held that a common intention may develop on the spot after the offenders have gathered there. A previous plan is not necessary. The common intention may be inferred from the conduct of the accused and the circumstances of the case.

In Khacheru Singh v. State of UP,[18] Several persons attacked a man with lathis when he was passing through a field. The man avoided them and they gave chase, on overtaking him they once again attacked him. It was held that these facts were sufficient to prove that the accused persons had been actuated with the common intention to assault the victim. A conviction under Section 326 read with Section 34 was sustained.

In Chhotu v. State of Maharashtra,[19] The complainant party was attacked by the accused a result of which one person died. The witness produced stated that three persons were assaulting the deceased and the fourth one was simply standing holding a knife in his hand. It was held that only three accused were liable under Sections 302 & 34 of IPC and the fourth one didn’t share the common intention.


The concept of constructive liability in these provisions must not be so stretched as to lead to the false implication of innocent bystanders quite often, people gather at the scene of offence out of curiosity. They do not share a common object of the unlawful assembly. In this article, we have discussed the law regarding constructive liability and the concept of common intention along with important decisions. All these provisions and decisions help us to determine the liability of each member of the group in group offences.

The criminal court has to conduct this difficult and careful exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by the court do not dilute the concept of constructive liability.



[3] Latin – “without which it could not be”

[4] AIR 2012 SC 1030


[6] AIR 2011 SC 3327


[8] AIR 1956 SC 166;1956 CriLJ 291

[9] Section 33 IPC 1860

[10] Law of Crimes [IPC,1860] Dr.SR Myneni

[11] 1995 SCC ( Cri ) 178


[13] AIR 1974 SC 514

[14] AIR 1955 SC 216

[15] 2003 7 SCC 56


[17] AIR 1954 SC 706

[18] AIR 1956 SC 546

[19] AIR 1997 SC 3501

This article is authored by Adhithya KP, Third-Year, BBA. LL.B student at Nehru Academy of Law Affiliated to Calicut University.

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