Returning to Barendra Kumar Ghosh – Part 2

By Niharika Mukherjee

Assessment of Common Intention under Section 34

In its previous part, this article traced the development of the law, following the Privy Council’s decision in Barendra Kumar Ghosh v King Emperor, on the nature of participation required to hold an individual liable under Section 34 of the Indian Penal Code 1860 [IPC]. In this part, it shall further argue that the decision was afflicted by a flaw in its application of the said provision to the fact situation in question, and discuss the implications of the same. Finally, it shall present its conclusions on the implications of this decision, which still remains binding precedent almost a century after its delivery. 

Returning to the decision in Barendra Kumar Ghosh, this article notes that the defense’s second argument in the High Court, that the instruction to the jury omitted adequate reference to the accused’s account, bears significance in examining how the case dealt with the requirement of ‘common intention’ under Section 34.

At least one scholar notes that, in the Privy Council, there was no reference to whether or not the accused shared the intention to murder. However, this article argues that while this is true, one facially unrelated observation by the Court is significant in this regard. While discussing, arguably as obiter dicta, whether the accused could be liable for abetment of murder under Section 114 of the IPC here, the Court took into account his argument that he had been ‘told that there would be no murder’. On the basis of this, it noted that while the statement may ‘at most’ be used as basis for charge of abetment of ‘dacoity’, it could not be taken as an abetment of murder, as he had ‘stipulated with success’ that no murder was to take place. 

While the abetment issue was not material to the case, this stray observation, it is argued, reflects an implicit acknowledgement by the court that the fact situation at hand was one described by some writers as a ‘twin crime situation’. This term is used in literature to describe a situation one where there is a ‘primary criminal act’ which is the subject of the ‘common intention’, but also a ‘secondary act’ that resulted from the acts of one sub-set of the participants. 

These stand in contrast to situations where the criminal act actually committed is singular, and corresponds exactly with the common intention of all participants. Had the instruction to the jury at the trial specifically stressed, as the defense later demanded, the question of whether, taking into consideration his statement, the accused could be affixed with the intention to kill, it is arguable that the difference between the two may have been clearer to the jury, possibly yielding a fairer trial to the accused.

This, unfortunately, was not done despite there being recognition in at least one cited precedent of the fundamental difference between the two situations, including of the idea that in such situations, an intention on the part of the accused to commit the secondary act must not be assumed without close examination of the evidence. 

To the extent that such evidence was discussed by the High Court, its observation appears to be that since the accused was carrying fire-arms, the intent to kill was shared by him. Such an approach, it has been noted, has been followed by several subsequent courts both in India and other jurisdictions that have adapted the IPC to their use


The judicial opinions in this case developed a number of notions that have, as seen above, become central to the interpretation of Section 34. While there have been some contradictions in how its enigmatic statement regarding the nature of participation envisaged under the Section has been applied, and the opportunity to define standards for assessing whether an individual accused could be said to have shared a ‘common intention’ was missed, its interpretation of the meaning of Section 34 remains authoritative. While its legacy thus remains relevant till date, this article urges that both the aforementioned flaws- one in interpretations of the legacy, and the other in the legacy itself- be corrected in contemporary applications, to ensure fidelity to the text of the IPC, certainty in the law, and justice for the accused. 

The author is a Third Year Student of National Law School Institute University, Bengaluru.

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