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Joint Responsibility in Crime

The joint criminal responsibility doctrine appears more as the ‘magical weapon' in the prosecution of crimes. Yet, the doctrine not only gives escalation to conceptual confusion and conflicts with some fundamental principles of criminal law but also attacks the traditional ambit of command responsibility liability.

This becomes understandable if both doctrines are applied simultaneously in cases against accused with some kind of superior position. After a short overview on both doctrines, as interpreted in modern case law, the article stretches some examples of their simultaneous application and tries to advance distinguishing criteria in light of the case law and a ‘dogmatic' analysis of both the doctrines.

Specifically, the doctrine in its current form suffers from three conceptual inefficiencies:
  1. the erroneous attribution of criminal liability for contributors who do not intend to further the criminal purpose of the association,
  2. the hassle of criminal liability for the foreseeable acts of one's co-conspirators and
  3. the misguided claim that all members of a joint enterprise are equally culpable for the actions of its members.
This article also illustrates various foundation of joint criminal responsibility and its component which is essential for discharging liability to all the members of a crime. Some of the landmark judgement of India and International are discussed.

Different perspective of crime and joint responsibility are triggered during the article. How to distinguish the liability of each member and to allocate punishment is a tough decision, beside that theories were introduced to make it simpler to filter the main perpetrator and other members involved in same crime.

Court's interpretation of section 34 along with section 35 is beautifully explained. This Article is written on the basis of theories and doctrine used for joint responsibility to be determined in a crime and to avoid the erroneous decision. The Indian law commission suggested some reform in section-34 where the witness itself is being questioned for joint association or liability because of his presence during crime scene. Joint responsibility in crime is a very delicate issue where innocent or the conspirator needs to be justified by court.

Criminal law is not limited to the actions of isolated individuals. Offenders act in concert by developing joint enterprises and trailing their criminal goals together. They pool information, deliberate in common, coordinate tasks and distressingly attain results.

These intra-individual associations are some of the most complex in criminal law theory. Any time joint action is pursued, the conceptual structure of criminal law theory must be carefully scrutinized to ensure that criminal liability matches the complex relationships and deliberative structures within these collective endeavors. The doctrine of joint criminal enterprise is certainly no exemption to this requirement.[1]

Joint criminal liability, i.e., accomplice liability or, stated more generally, the criminal law holding somebody other than the primary perpetrator responsible, is a vital concept. Many crimes are committed by people acting in concert, and the law needs some way of addressing them. These cases pose a fundamental challenge because they do not indeed fit into the conventional means of defining a crime.

Traditionally, a crime consists of two parts:
  1. an essential mental state, referred to as mens rea or a culpability requirement, and
  2. the specific acts that establish the crime, referred to as actus reus.

Since the actus reus in these cases can differ so wildly, we must depend on more on the mens rea element of the crime.[2] Intuitively, it is intentions, and specifically the rapport between the intentions of the individuals involved that distinguish the taxi driver from a getaway driver. And the key to understanding joint crimes is engaging them in the context of joint intentions: intentions that relate to each other in particular, and sometimes in particularly complex, ways that convey about the criminal actions.[3]

The concept of joint liability comes under Section 34 of IPC which states that:
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.

The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.

The ingredients of section 34 of IPC are:

  1. A criminal act is done by several persons;
  2. The criminal act must be to further the common intention of all;
  3. There must be participation of all the persons in furthering the common intention.
The essence of liability under Section 34 IPC is simultaneous conscious mind of individuals sharing in the criminal action to bring about a specific result. Minds concerning the sharing of common intention gets contented when an overt act is established qua to each of the accused[4]. Common intention infers pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime essentially committed and each accused person can be convicted of that crime, only if he has contributed in that common intention.

Accomplice Liability [Theory-1]

In State v. Ayers[5] the defendant sold a 16-year-old a stolen gun without a license, itself a crime.[6] A few days advanced the buyer of the gun accidentally shot and killed someone at a party. Although Ayers' conduct was outrageous and criminal, and the shooting could not have occurred but for his sale of the handgun, he was not considered an accomplice to the shooting. In order to be considered liable, the court clarified, the shooting must have been committed by someone-
acting in furtherance of a common object or purpose, as distinguished from someone acting independently or in opposition to him … where the criminal liability arises from the act of another, it must appear that the act was done in furtherance of the common design, or in prosecution of the common purpose for which the parties are assumed or combined together.[7]

Even though Ayers' intervention was needed for the crime – there could have been no shooting absent the gun – that was not adequate to make him liable. As the court elucidated, there must be a presence and a certain coordination of intentions connecting to the crime.

The classic case on the subject is the judgment of the Privy Council in Mahbub Shah V. Emperor [8], AIR 1945 PC 118, wherein it was held as under:
…Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say the common intentions of all nor does it say an intention common to all. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.

This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.

Foreseeable Consequences Liability [Theory-2]:

The foreseeability standard has become predominantly important in international law, where joint crimes are a critical, if argumentative, issue. Although there is no shared intention or mens rea towards the further, incidental crime, they are still held answerable for it by virtue of their initial involvement with the primary criminal enterprise[9]. The doctrine has been associated to an assumption of risk: while the accomplice lacks the relevant mens rea, she readily runs the risk that one of her partners in crime will obligate some additional, unrelated but foreseeable, crime.[10]
While foreseeability as the base for joint criminal liability is in practice in many jurisdictions, it entails a substantial departure from a foundational commitment, broadly[11], if not universally, involved, to condition criminal liability on mens rea, i.e.,

the mental state prerequisite for a crime. In effect, the exodus sanctions using the accomplice's culpability for one crime – such as a conspiracy or specific criminal endeavor – to justify alleging her with another crime, even though the crimes may entail different, logically distinct, mental states.

The foremost argument for a foreseeability standard with admiration to joint crimes is a practical one, turning on the view of joint crimes as a special, severe threat to people and society. An alternate public policy justification has been to protect the foreseeability standard only for grave crimes, keeping a stricter standard that needs some mental or culpability element for quite minor ones.

Judge Posner articulated a version of this public policy justification, distinguishing the necessities for joint criminal liability bestowing to the seriousness of the crime. It should be noted, though, that at the extremes, the variance between foreseeability and intention inclines to collapse. If somebody drops a glass on a tile floor, it is very foreseeable that it will break, and choosing to drop the glass can be perceived as evidence of the intention to break it.Likewise, taking actions to convey about a highly foreseeable, almost certain event can serve as evidence of an intention directed towards it.[12]

Intention Based Liability [Theory-3]:

Leaving assistance in the charge of a crime and foreseeability aside, the third option for defining joint criminal liability was canonically articulated by Learned Hand in United States v. Peoni[13] In order to be measured an accomplice, it is needed that one must in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.

Section 34 IPC embodies the code of joint liability in doing the criminal act grounded on a common intention. Common intention essentially being a state of mind it is very difficult to procure straight evidence to prove such intention. Therefore, in maximum cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be assembled from the custom in which the accused arrived at the scene and mounted the attack, the purpose and concert with which the attack was completed, and from the nature of injury caused by one or some of them.

The contributory acts of the individuals who are not answerable for the injury can further be inferred from the consequent conduct after the attack. In this respect even an illegal omission on the part of such accused can indicate the sharing of common intention.

In other words, the entirety of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra[14])

unlawful in the sense of crime only and the acts done unlawfully in the sense they are wrongful in civil law in spite of they are criminal or not. It is the later class of wrongful acts which is relevant in establishing the tort of conspiracy injured by unlawful means because it creates nexus between the loss suffered by plaintiff and the conspirator who has not himself committed the wrong but has encouraged his co-conspirator to do the wrong causing loss to plaintiff which under civil law permits the plaintiff to recover compensation.[15]Therefore , it's clear to say that Tort is a specific element of civil wrong whether it is criminal or not.

The Courts' Interpretation Of Section 34 [16]

It is now obligatory to consider how the courts have interpreted section 34, with the inclusion, of course, of the all-important phrase in furtherance of the common intention of all. As was pointed out previously, the courts have experienced much difficulty in this exercise. There are three core areas which have caused problems; the meaning of criminal act, the connotation of common intention, and the related issue of whether the common intention must be to compel the crime actually committed or whether it could embrace some other, or wider objective.
  1. Criminal Act
    The issue which has risen is whether these words are a synonym for actus reus or for something else. The difficulty is that if they stand for actus reus, then the section necessitates that the actus reus be done by all of the accused. This situation is fitted out for by section 37 if the actus reus consists of several acts, and by the substantive law if it comprises of one act, for all the accused are perpetrators anyhow.

    The Privy Council pointed this out and established dispute on the matter in Barendra Kumar Ghosh v. The King-Emperor [17]where they held that the words mean: that unity of criminal behavior, which results in something, for which an individual would be punishable, if it were all done by himself unaccompanied, that is, in a criminal offence. The couple of situations for which section 34 is no doubt designed are consequently covered.

    If it is impossible to verify which accused inflicted the fatal injury, then the unity of behavior — the participation of all in the attack — enables all to be held liable. If the accused was categorically only an accomplice and not the perpetrator, yet his participation contributed to the result and he is accordingly liable for it, for in crimes as in other things 'they also serve who only stand and wait.'
  2. Common Intention
    The Privy Council in Mahbub Shah v. Emperor[18] cast some light on the meaning of this phrase, holding that it: implies a pre-arranged plan, and to convict the accused of an crime applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.
  3. Common Intention to Do an Offence?
    The final difficulty in section 34 lies in influential if the common intention must have been to do the criminal act done, or something else. If the intent be to do the criminal act, then a collaborator may argue that he did not intend or desire the consequence, and therefore is not liable for it, even if he knew it was likely.

    This narrow interpretation of the section was taken in R. v, Vincent Banka & Anr.[19], but is evidently provides an easy let-out for defendants and has been rejected in Singapore in recent cases. Notably, in Mimi Wong & Anor. v. Public Prosecutor[20] the Court of Criminal Appeal said:
    If the nature of the offence [constituted by the criminal act] depends on a particular intention the intention of the actual doer of the criminal act has to be considered. What this intention is will decide the offence committed by him and then section 34 applies to make the others vicariously or collectively liable for the same offence.

    The intention that is an ingredient of the offence constituted by the criminal act is the intention of the actual doer and must be distinguished from the common intention of the doer and his confederates. It may be identical with the common intention or it may not.

    Where it is not identical with the common intention, it must nevertheless be consistent with the carrying out of the common intention, otherwise the criminal act done by the actual doer would not be in furtherance of the common intention.

There are three possibilities available to improve the unsatisfactory situation we have at present. First, there could be a thorough transformation of the whole subject of participation in crime, producing a complete revision of the relevant parts of the Code. This is perhaps relatively unrealistic. When the Indian Law Commission examined the entire Indian Penal Code, they suggested few key adjustments, seemingly satisfied that the courts had sorted out most of the hitches of interpretation. They did, in fact, propose a re-wording of section 34 but with no substantive variation, and they recommended no changes with respect to sections 35 and 38.

The other possibilities are either to repeal section 35, which seems to serve no real-world purpose at the moment anyway, or to restore section 34 to its original state by deleting the phrase which has produced so much trouble. That phrase probably arises from the English law on common purpose which has largely dropped from sight nowadays. R.J. Buxton has characterized this doctrine as artificial and unnecessary, favoring instead reliance on knowledge or belief as to the details of the precise crime. Experience with section 34 illustrate that common intention has indeed produced artificial and unnecessary refinements in the case-law. It would be best, in the author's opinion, to drop it from the section, for a return to the original draft used in aggregation with section 35 would meet the demands of both practicality and justice.

An argument in contradiction of deletion would perhaps be that the section would then overlap further with sections 109 and 114 (abetment) and section 149 (common purpose in unlawful assembly). It would overlap further with the prior, because it would cover accomplices who aid the perpetrator even though there is no promise between them to render such assistance. It would overlay further with the later because, like section 149, liability could be imposed on the base of knowledge rather than intention.

Though, these provision different circumstances from those envisaged in section 34. The prime purpose of the abetment provisions is to enforce liability for acts done prior to the committing of an offence, which section 34 does not cover. Section 149 entails that the accused be a member of an unlawful assembly as defined in section 141, hence it clearly differs from section 34. It is true that it has frequently been working as an alternative to using section 34, but it is succumbed that this was not, in all probability, the intention of the draftsman, and it has been done in desperation over the complexities of section 34. If that section were amended and interpreted in the way suggested, it would not be necessary to resort to the device of section 149.

The notion of joint liability is embodied in section 34 of Indian penal Code. This section just elasticities the definition of joint liability and it does not give any punishment for the same. This section has to be read with various other sections of IPC like section 120A which gives definition of criminal conspiracy, section 120 B which gives punishment for criminal conspiracy and section 149 which deals with unlawful assembly. This section 34 cannot be pragmatic on its own and has to be applied with some other section so as to make a person jointly liable for that offence.

In the hypothesis the scholar has assumed that the presence of an individual at the site of offence is not conclusive evidence that he is a part of the offence. The premise of the researcher stands true that it is not necessary that all the persons who are present at the site of the offence are some way or other related to the crime committed.

With the support of cases, the hypothesis of researcher stands true. In all the above cases the accused persons were present when the crime was committed and at the initial instance, they were charged for committing the offence but later on they were acquitted by the higher court.

It is also not compulsory that the persons always share the common intention and commit crime. It may be possible that they are present at the scene just by chance and shared no common intention which is a vital component of section 34 of Indian Penal Code.

At last, I want to say that at any site of offence it is not at all essential that only two persons are present i.e. accused and victim, but a number of other persons like witnesses are also present at the scene of crime most of the time. So, making an individual liable just because he was present at the scene of crime or was near to the victim is not justified.

JCL (Joint Criminal Liability) is a victim-centered, far-reaching philosophy often used to prosecute the senior leadership as well as low-level individual perpetrators accountable for a broad range of crimes perpetrated in the names of former leaders. For example, there are substantial benefits to its use in its wide version (e.g.) when an international court custom the doctrine to hold a particular defendant liable for the range of crimes accompanying with regional ethnic cleansing in which he played some part.

At the same time, this doctrine can be ill-treated if used by a dishonest national government to recommend that all persons who provide any sort of support to a terrorist organization, however loosely defined, become liable for all crimes committed by its members. Stated differently, the unrestrained use of joint criminal liability can pose serious dangers to the fairness of the proceedings.

In practice, JCL embodies a transfer of power from international judges to prosecutors, who have enormous discretion to decide how much offence to allocate to any particular defendant. Because the doctrine is so loose, JCL thoroughly approaches a theory of guilt by association. When used properly, JCL can support in connecting participants in a criminal enterprise who operated far from the crime scene. When used selectively this view denotes the infinite possibilities for unlimited interpretations and abuses.[21]

The first such category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they nevertheless all possess the intent to kill [22]

  1. Cornell University Law School, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise
  2. Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev. 323, 342-46 (1985).
  3. Grace E. Mueller, The Mens Rea of Accomplice Liability, 61 S. Cal. L. Rev. 2169 (1988).
  5. 478 N.W.2d 606 (Iowa 1991).
  6. Ayers also removed the serial numbers from the weapon. State v. Ayers, 478 N.W.2d 606, 607 (Iowa 1991).
  7. State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991) (internal citations omitted).
  8. Mahbub Shah v. Emperor, AIR 1945 PC 118
  9. People. v. Brigham, 216 Cal.App. 3d 1039 (relying on the facts that the principal perpetrator was known by the defendant to be hardheaded and obstreperous to uphold a conviction based on the murder that was not initially contemplated); Alvarez, 755 F.2d 380 (relying on specific statements of the defendants' co-conspirators).
  10. Prosecutor v Duško Tadić, Case No IT-94-1-A, Judgment, ¶ 228 (ICTY App July 15, 1999).
  11. Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & Criminology 369, 374-75 (1997).
  12. United States v. Eberhardt, 417 F.2d 1009, 1013 (4th Cir. 1969).
  13. 100 F.2d 401 (1938). See also Candace Courteau, The Mental Element Required for Accomplice Liability: A Topic Note, 59 La. L. Rev. 325, 331 (1998); Nye & Nissen v. U.S., 336 U.S. 613, 619 (1949); People v. Green, 130 Cal. App. 3d 14 (Miller, J., concurring).
  14. Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696
  15. The Tort of Conspiracy and Civil Liability, The Cambridge Law Journal
  16. Myint Soe Some Aspects of Common Intention in the Penal Code of Singapore and West Malays
  17. A.I.R. 1925 P.C. 1.
  18. A.I.R. 1945 P.C. 118.
  19. [1936] M.L.J. 66
  20. 3 [1972] 2 M.L.J. 75. The court seems to have been influenced by Bashir (supra n. 28) though it does not refer to that deci
  21. Joint Criminal Enterprise, New form of individual criminal responsibility, an Article by Jasmina Pjani, OKO lawyer
  22. Tadic, (Appeals Chamber), July 15, 1999, para. 195-196, 202-204

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