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Report No. 35

Topic Number 14

Vicarious or constructive liability

87. Vicarious or constructive liability.-

Liability to death sentence may arise in certain situations though the actual act of killing was done by another person. These cases may be referred to as cases of "vicarious" or "constructive liability", (though these terms may not be strictly accurate). Such cases fall under two categories; the first comprises those where "A" becomes liable for the offence committed by B, when A himself has not committed any substantive offence; the second comprises those where, both A and B are guilty of some substantive offence, but, by reason of some special feature in the action of B, A becomes liable for the higher sentence of death. In the former case, the substantive offence is attributed to A, while in the latter case, the liability for the sentence of death travels to A.

88. The important cases of such liability1 under the Indian Penal Code seem to be these-

Section 34, Indian Penal Code (See also section 35) Act done by several persons in furtherance of common intention
Sections 109 to 115, Indian Penal Code. Abetment
Section 120B, Indian Penal Code. Punishment of criminal conspiracy
Section 149, Indian Penal Code. Every member of unlawful assembly guilty of offence committed in prosecution of common object.
Section 396, Indian Penal Code. Dacoity with murder (Under section 396,if any one of five dacoits commits murder in committing dacoity, every one of them is punishable with death, etc.)

1. Para. 87, supra.

89. The vicarious liability in all these cases1 is justified on the ground that the person concerned is a party to the offence, though his physical participation is indirect. The mens rea, in this context, is represented by the requirement of "common intention" or of aid, conspiracy or instigation which constitutes "abetment" or of conspiracy simpliciter, or of "common object" or "conjoint" commission of a dacoity.

1. Para. 88, supra.

90. There is one section1 whereunder vicarious liability arises in a case of house-breaking, etc., because another co-offender has caused death, etc. But here the person so vicariously liable is not sentenced to death.

1. Section 460, Indian Penal Code.

91. Section 34, Indian Penal Code.-

Some discussion of two special cases of constructive liability seems to be called for, in view of their importance. The first is that under section 34, Indian Penal Code, which reads as follows:-

"Section 34-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 question may be raised whether the application of this section in relation to murder leads to any hardship or injustice. Section 34 does not come into operation, unless there is a common intention and a criminal act is done by several persons in furtherance of that common intention. Joint liability, under section, is, therefore, the liability resulting from what has been called "the unity of criminal behaviour1". The causing of death of one person at the hands of several by blows and by stabs, under circumstances in which it can never be known which blow or blade actually extinguished life, is common in criminal experience as has been pointed out by the Privy Council.2

Though the section, as originally enacted, did not contain in the words "in furtherance of the common intention of all", they were added in 1870, simply to make the object clear3. The section does not postulate identity in act. But it requires a common intention and participation in crime. If several persons, set out together upon one common design be it murder or other crime, and each takes the part assigned to him, some to commit the act and others to watch at proper distance, etc., they are all (if the offence be committed), in the eye of the law "present at it", because it was made a common cause with them, each man operating in his station at one and the same instant towards the same common end4.

1. This phrase was used by Lord Summer in Barendra Kumar v. King Emperor, 52 Ind App 40: ILR 53 Cal 197: AIR 1925 PC 1 (9).

2. Barendra Kumar v. King Emperor, AIR 1925 PC 1(5).

3. See discussion in King Emperor v. Barendra Kumar, AIR 1924 Cal 257 (273) (Mookerji J.).

4. Cf. Foster Discourse on Crown Law, (1809), p. 350, cited by Mookerji J. in AIR 1924 Cal 257 (274) (Full Bench). The Full Bench case was approved by the Privy Council in AIR 1925 PC 1.

92. Further, in a combination of this kind, the "mortal stroke", though given by one of the parties, concerned, is "in the eye of the law, and for sound reasons too, regarded as given by every individual present and aiding". The person actually giving the stroke, is "no more than the hand or instrument by which the others strike1".

The part each man takes, tends to give countenance, encouragement and protection to the whole gang to ensure success of their common enterprise2. It is sufficient to hold a party as principal, if he acted with another in pursuance of the common design, and operated at one and the same time for the furtherance of the same pre-concerted end and was so situated as to be able to furnish aid to his associates with a view to ensuring success in the accomplishments of the common enterprise.

1. Foster Discourse on Crown Law, (1809), p. 351, cited by Mookerji J. in AIR 1924 Cal 257 (275) (Full Bench).

2. Foster Discourse on Crown Law, (1809), p. 350, cited by Mookerji J. in AIR 1924 Cal 257 (350) (FB).

93. For the present purpose, it is not necessary to elaborate the meaning of each ingredient of the section, or to make an attempt to show how the section differs from other cognate sections dealing with abetment, unlawful assembly and so on1-3.

1. As to the distinction between section 34 and section 114, see Barendra Kumar v. King Emperor, 52 Ind App 40: ILR 53 Cal 197: AIR 1925 Privy Council 1.

2. As to the distinction between section 34 and section 149, see Nanak Chand v. State of Punjab, AIR 1955 SC 274 and Om Prakash v. State, AIR 1956 All 241.

3. As to the meaning of "common intention", see Mahbub Shah v. Emperor, 52 IA 340: ILR 52 Cal 197: AIR 1945 PC 118.

94. "Common intention" in section 34, Indian Penal Code, pre-supposes a pre-concerted plan, i.e., a prior meeting of minds, though it is not necessary that there should be a long interval between the plan and the act1. The common intention may even be developed on the spot2. Of course, the act must be "done"3. Some of the points regarding section 34 have been developed in the case noted below4.

1. Generally as to common intention, see Rishideo v. State of Uttar Pradesh, AIR 1955 SC 216; Pandurang v. State of Hyderabed, AIR 1955 SC 216; Ibra Akanda v. Emperor, AIR 1944 Cal 339.

2. Kripal v. State of Uttar Pradesh, AIR 1954 SC 706.

3. Ramayya v. State of Bombay, AIR 1955 SC 287.

3. Bashir v. State, AIR 1953 All 668 (670 to 676), paras..-24 (discuss English cases also) (Desai J.).

95. Persons liable under section 34, Indian Penal Code would, at common law also, be liable for the substantive offence committed in pursuance of the common design. If several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all1. A participation in an offence which is the result of a concerted design to commit a specific offence, is sufficient to render the participant a principal in the second degree2.

1. Macklin (1838) 2 Lewin 225; Turner and Armitage Cases in Criminal Law, (1964), pp. 232 and 233.

2. See Archbold Criminal Pleadings, etc., (1962), paras. 4123 and 4127.

96. This1 is the general rule. So far as murder is concerned, a modification in respect of sentence was made by section 5(2) of the Homicide Act2. But, as provisions of that Act relating to "capital murder" are now temporarily repealed by the Murder (Abolition of Death Penalty) Act, 1965, it is unnecessary to discuss the earlier Act, in detail. It would suffice to quote the relevant provisions3 which are as follows:-

"5. Death penalty for certain murders.-(1) Subject to sub-section (2) of this section, the following murders shall be capital murders, that is to say,-

(a) any murder done in the course or furtherance of theft;

(b) any murder by shooting or by causing an explosion;

(c) any murder done in the course or for the purpose of resisting or avoiding or preventing, a lawful arrest, or of affecting or assisting an escape or rescue from legal custody;

(d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

(e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting.

(2) If, in the case of any murder falling within the foregoing sub-section, two or more persons are guilty of the murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used force on that person in the course or furtherance of an attack on him; but the murder shall not be capital murder in the case of any other of the persons guilty of it".

1. Para. 95, supra.

2. Homicide Act, 1957 (5 and 6 Eliz. 2, C. 11).

3. Sections 5(1) and 5 (2), Homicide Act.

97. Even as regards manslaughter, if two men concerted together to fight two other men with their fists, and one struck an unlucky blow causing death, both would be guilty of manslaughter. But if one used a knife or other weapon without the knowledge or consent of the other, only he who struck with the weapon would be responsible for the death resulting from the blow given by it1.

1. R. v. Caton, (1874) 12 Cox 624 (Lush J.); Turner and Armitage Cases in Criminal Law, (1964), pp. 178, 179.

98. The net result, therefore, under section 34 is that the common intention and participation in the crime make the person concerned guilty of the offence. Whether, however, he should be punished with the highest punishment provided for the particular offence is not a matter on which section 34 has the final say. The question of sentence is entirely in the discretion of the court. On the one hand, the mere fact that the person liable by virtue of section 34 did not actually inflict the fatal blow, may not be conclusive. On the other hand, if, on the facts of the case the moral culpability of the offender held to be liable by virtue of section 34 is lower than that of the actual assailant, a lesser sentence would be appropriate. Fortunately, the Indian law does not contain any rigid provisions on the subject.

99. In a recent Calcutta case1, the evidence did not make it clear which of the two appellants gave the fatal blow or did the last act of strangulation. While the conviction for murder was upheld, the sentence was altered to life imprisonment. The court followed the principle laid down by the Supreme Court in Dalip Singh's case2, where the following observations had been made:-

"This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment.

It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases ".

No single rule can, thus, be laid down for all cases.

1. Arun Kumar v. State, AIR 1962 Cal 504 (509) para. 42 (P.B. Mukharji and N.K. Sen JJ).

2. Dalip Singh v. State of Punjab, AIR 1953 SC 364 (368), para. 40.

100. We may discuss here a case which evoked some interest in England. That is the case of Bentley and Craig1-2-3. A London policeman was killed on November 3, 1952 in a gun battle while attempting to apprehend two youths who had broken into a warehouse. The youths were Craig, aged 16 and Bentley, aged 18. The shot that killed the constable was fired by Craig, fifteen minutes after Bentley had been already taken into custody by another policeman. Both were found guilty of murder.

Craig was sentenced to imprisonment for life, being under the age of 18 years. But Bentley was sentenced to death. Efforts to obtain reprieve for him failed, and he was executed in 1953. Now, it was not Bentley who had fired the actual shot, and, further, he had actually been in the hands of the police for a quarter of an hour. These facts, coupled with his age and the fact that the actual perpetrator received a lighter sentence, caused shock and indignation4.

It would appear, that though Bentley was in the custody of the police, yet he encouraged Craig to shoot after he himself had been seized by the police officer5. The position in India would not be different, if encouragement is proved, coupled with the other facts as in this case.

1. R. v. Craig and Bentley, (The Times, December 10-13, 1952). See the summary in Christoph Capital Punishment and British Politics, (1962), p. 98.

2. For a detailed statement of the facts, see Paget and Silverman Hanged-and Innocent?, (1953), pp. 89 to 110.

3. See also Russell on Crime, (1964), Vol. 1, p. 146 and foot-note 25.

4. See Hollis The Homicide Act, (1964), pp. 42-43, and 68.

5. See the facts stated in Russell on Crime, (1964), Vol. 1, pp. 146-147.

101. An English case on the border-line is that of Betts and Ridley1. In that case, both the accused-Betts and Ridley-were held to be rightly convicted of murder, where they had a common design to commit robbery with violence on the person of the deceased, though the evidence was that Betts alone was the man who actually committed the violence, while Ridley remained in a car at the corner on the street nearby, where Betts after committing the robbery immediately ran.

We are not concerned with the doctrine of "implied malice" or "constructive malice" as was then known to the English Law; what is important is, that the appeal of Ridley was dismissed, because he was a party to the agreement that the deceased man should be robbed, and "he anticipated that he would at least be pushed down", and was thus a principal in the second degree2-3.

1. R. v. Betts and Ridley, (1930) 144 Law Times 526: 22 Cr App Rep 148, discussed in Russell on Crime, (1964), Vol. 1, pp. 144 and 488, See R.C. Report, p. 389; see also Bashir v. State, AIR 1953 All 668 (674, 675), paras..-23.

2. Ridley was not, however, executed.

3. For a discussion of the legal propositions on which the case was based, see Glanville Williams Criminal Law, The General Part, (1961), pp. 353 to 354, and 396 to 397.

102. A somewhat similar case is a Lahore one1. In that case, the common intention of the culprits was to commit robbery, and one of them, S, went to fetch the owner of the house from his fields, to threaten him to surrender the property. While S was thus temporarily absent, one of the other culprits shot down the son of the owner of the house. It was held, that S, though temporarily absent, was participating in the joint criminal action in the course of which the murder was committed, and that the murder was committed in furtherance of the common intention of the culprits to commit robbery, and that he was therefore rightly, convicted of murder by virtue of section 34.

As regards the sentence, though his liability was constructive, yet the fact that all the four culprits were armed with guns showed that they all intended to use the gun when necessary in furtherance of their common object. The sentence of death on S was therefore held to be justified.

1. Indar Singh v. Emperor, ILR 14 Lah 814: AIR 1933 Lab 819 (DB).

103. That the question of sentence is one of discretion has been stressed more often than once in the decisions. The following observations of Roberts C. J. are helpful1.

"The conclusion at which the learned Judge has arrived is that because in some cases the lesser penalty may be given when it is not certain who struck the fatal blow, the lesser penalty should always be awarded in such cases; this is far from being correct. When once the guilt of murder is proved, the proper penalty to be awarded is a matter for discretion of the learned Judge and it is by no means true to say that merely because there is doubt as to which of several of the attackers inflicted the fatal blow this is a sufficient ground for withholding the death sentence in the case of any or all of them.

On the other hand, it is, of course, clear that there are cases in which once it has been established that one person out of several took a leading part and the others a comparatively subsidiary part, the greater penalty may be inflicted upon the ring-leader and the lesser penalty upon those who took a comparatively subsidiary part. That is a matter of discretion entirely.".

1. Tun Khine v. King, AIR 1938 Rang 331 (333) (Roberts C.J.).

104. How far the application of section 34 would be justified in cases where the actual persons participating are named or unnamed is a point which has received detailed consideration at the hands of the Supreme Court in recent cases1, which contains a helpful analysis. A similarly helpful analysis in relation to cases under section 149 is also contained in another Supreme Court case2.

1. Krishna v. State of Maharashtra, (1964) 1 SCR 678: AIR 1963 SC 1413 (1415) (para. 6).

2. Mohan Singh v. State, (1962) Supp 3 SCR 848: AIR 1963 SC 174.

105. In many cases, sections 34 and 149 may overlap; nevertheless, the common intention which is the basis of section 34 is different from the common object which is the basis of unlawful assembly. Section 34 applies where the facts disclose an element of participation of action on the part of the accused persons. The acts may be different, and may vary in their character, but they are all actuated by the same common intention1.

1. Mohan Singh v. State of Punjab, AIR 1963 SC 174 (178, 179), paras. 9 to 11.

106. The act which caused the death of the victim may have been committed by another person. But, since the said act was done by the other person in furtherance of the "common intention", shared by that person and by the person who is to be liable under section 34, in law the act must be deemed to have been committed by the person to be liable under section 341.

It may be noted, that as observed by the Royal Commission2, when two or more persons are concerned in a crime which involves the use of unlawful violence, there may be substantial differences in the degree of moral guilt, but it is obviously unjustifiable to assume that the man who does the killing must always be more guilty than any of the others; he may be the, agent of a stronger personality who has planned and instigated the crime. It was on this principle, that the Royal Commission3, even while recommending the abolition of the doctrine of constructive malice as known in England, took care to record its strong view that no change should be made in the existing liability of "principals in the second degree".

In its view, considerations both of equity and of public protection demand the maintaining of the principle of the existing law that when two or more persons are parties to a common design for the use of unlawful violence and the victim is killed, "all the parties to the common design should be held responsible and all should be liable to the same punishment." The Commission also pointed out.4 that it may often be impossible to prove which of the two struck the blow or fired the shot when two persons are concerned, for example, in a robbery with violence5.

1. Mahabir Gope v. State of Bihar, AIR 1963 SC 118.

2. Royal Commission's Report, p. 44, para. 118.

3. Royal Commission's Report, pp. 44 and 45, paras. 120 and 121.

4. Royal Commission's Report, p. 44, para. 120. See also p. 389, Appendix 7(d).

5. See, however, section 5(2), Homicide Act, 1957.

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