NATIONAL LAW UNIVERSITY

ODISHA



CRIMINAL LAW I PROJECT ON:
Barendra Kumar Ghosh v. The King

Submitted By- Submitted To-
Nikhil Saini Suman Dash Bhattamishra
(2012/B.A. LL.B./041) Assistant Professor (Law)


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ACKNOWLEDGEMENT

Working on the Case of Barendra Kumar Ghosh was a very knowledgeable experience. The
documentation has actually helped me in enriching my knowledge on the case and the subject.
The case along with relevant sections and case laws was discussed at deep lengths in the class
which helped me in making this project.
I feel highly privileged to work under the able guidance of Maam and sincerely acknowledge
her efforts in directly and indirectly contributing to this piece of work.
Thank you Maam!
- Nikhil Saini

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Contents

Introduction ..................................................................................................................................... 4
Research Methodology ................................................................................................................... 5
Scope, objective and significance ............................................................................................... 5
Research Question ....................................................................................................................... 5
Mode of Citation ......................................................................................................................... 5
Statement of Fact ............................................................................................................................ 6
Issues before the court .................................................................................................................... 7
Decision of the court ....................................................................................................................... 7
Chapter 1 ......................................................................................................................................... 8
Judicial Interpretation Used By the Court ................................................................................... 8
Chapter 2 ....................................................................................................................................... 10
Section 34 and its ingredients.................................................................................................... 10
Participation and Presence on Scene of Crime in regard to Barendra Kumar Ghosh ............... 12
Chapter 3 ....................................................................................................................................... 14
Common intention and common object in regard to the post master case ................................ 14
Conclusion .................................................................................................................................... 18
Bibliography ................................................................................................................................. 19
Cases.......................................................................................................................................... 19
Books ......................................................................................................................................... 19










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Introduction

The case of Barendra Kumar Ghosh or popularly known as the postmaster case has been
discussed in the project the present case deals with the section 34 of Indian penal Code whereby
a person is held liable for a criminal act if it is done by several persons in furtherance of the
common intention. The present section does not create a specific offence as in the case of section
149, the section simply puts forward that every person in a crime would be held liable by virtue
of his participation in the criminal act as it gives encouragement, support, confidence to the
actual person who is involved in the act. The accused in the present case is convicted under
section 302 read with section 32 of Indian penal code for the murder of the post master. The
accused pleads that he was not present on the scene of the crime (murder) since he was standing
out hence he should be left out from the charges of murder. The court held that if an act is done
in furtherance of the common intention then each person is liable for the result of them all as if
the act was done by him alone. Hence the project at lengths will discuss the case in the light of
the sections mentioned above and will also look into the arguments of both the parties along with
the discussed case laws cited.












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Research Methodology

Scope, objective and significance
The present study deals with the case law Barendra kumar Ghosh v. the King which is also
known as the Post master case, the project initially discusses the issue in the case, the decision of
the Privy council, three research questions have been formulated that deal with two aspects, one
with the present case and the other with the general nature of the section that is achieved through
various case laws of the Apex court. The projects also discusses the various case laws that have
been used in the case and the reasoning used by the honorable judges in arriving the decision.
Hence a twin way approach is used to deal with the research questions. The present case is
important as it forms the backbone of section 34 Indian Penal Code and helps in knowing the
meaning of different elements in the section like common intention. The present case along with
other cases help in understanding the difference between section 34 and 149 also.

Research Question
The following questions have been picked up as research questions in context to the case of
Barendra Kumar Ghosh, the question will decide both the aspects with regard to the case the
question as general. The answers will be two fold dealing with the view of the judges in the case
and the answer as general to the question.
1. What is the judicial interpretation used in the case of Barendra Kumar Ghosh on common
intention?
2. Whether physical presence is required under section 34?
3. What is the difference between common intention and common object?

Mode of Citation
A common mode of citation is used i.e. Blue book 19
th
edition.
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Statement of Fact

On August 3, 1923, the sub-postmaster at Sankaritolla post office was counting money at
his table in the back room, several men appeared at the door which leads into the room
from a courtyard, and, went inside the door, called on him to give up the money. Almost
immediately afterwards they fired pistols at him.
He was hit in two places, in one hand and near the armpit, and died instantaneously.
Without taking any money the assailants fled, separating as they ran.
One man was held by the post office assistant, this was the appellate, others accused fled
the crime scene
The evidence with the jury pointed out to the presence of three accused at the crime scene
that fired at the post master, the accused was identified due to the distinct clothes he
wore.
According to the prosecutor he was one of the person that fired at the post master, the
accused denied his charge on the ground that he was standing outside and had no direct
involvement in the commissioning of crime or the murder of the post master as he did not
fire the shots.
Charges preferred were of murder under section 302, voluntary causing hurt under 394
and attempt to commit robbery.
To the first charge the accused pleaded not guilty. And to the second charge he pleaded
guilty of robbery.







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Issues before the court

The accused had the intention of robbery but did not possessed the Mens rea or the Actus
rea of murder.
Whether a person is liable to the extent of act committed by him or not?
Whether a person is liable for the acts of the other?
Whether physical presence is necessary on the scene of crime or not?


Decision of the court

Privy Council agreed to the decision of the trial court and the high court of Calcutta that the
accused is liable for the murder, even though the fatal shot was not fired by him and they had a
common intention.







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Chapter 1
Judicial Interpretation Used By the Court
The accused his arguments on the case of Emperor v. Nirmal Kanta Roy
1
where two men acting
in concert fired at the policemen, one hitting and killing him and the other missing the shot, the
judge acquitted the latter from the charges of murder under 302 and section 34. The reasoning
given by him was that section 34 applies to a criminal act which is done by several persons in
furtherance of the common but in the present case only one person killed the policemen, not the
both and the prisoner only tried to kill the police men. The learned judge said that In order to
make the accused liable for murder under the section the offence and the attempt to commit it are
the same act which in the present case is not.
2
However the following case was not relied
upon by most of the judges in the Calcutta bar due to the flaws contained in it as in cases where
the blows are done by several person it is difficult to know which blow or stab actually
extinguished the life of the deceased. The learned judges held that in cases where several shots
are fired but only one wound is there, even in such cases it is necessary that the general rule
remains the same.
Other cases that were relied for the interpretation of section 34 were Emperor v. Profulla Kumar
Mazumdar
3
in the present case the accused Profulla kumar mazumdar along with his companion
killed Mukunda lal and the two accused in the case were Profulla kumar and Manindra kumar,
the latter was acquitted on the grounds of reasonable doubt. Mukunda was stabbed in the neck
and when assistance came to him he pointed out to them, and who at that time were running
away. Profulla was caught and charged with s. 302 along with 34 of IPC. However when the case
went for trial the jury was confused as it was not clear whether the fatal blow was struck by
Profulla or his companion. The judge on the point of common intention said that if the two men
had common object to kill the deceased then both of them are equally guilty, but if from the
circumstances it can be reasonably inferred that one of them was ignorant of the intentions of the
other then only the man who struck the final blow would be held liable however if one of the two

1
Emperor v. Nirmal Kanta Roy, ILR 41C. 1072.
2
Ibid.
3
Emperor v. Profulla Kumar Mazumdar (1922) I.L.R 50 C. 41.
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men is guilty and it is not possible to find who struck the final blow then both of them are not
guilty.





















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Chapter 2
Section 34 and its ingredients
Section 34. When a criminal act is done by several persons, in furtherance of 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
4

Before the debate is continued whether principal presence is a must or not in order to prove
section 34 of the IPC it is necessary to have a look at the relevant ingredients of section 34 that
can be inferred from the above section.
i). there should be a criminal act.
ii). the criminal act should be done by several persons.
iii). and the criminal act should be done in furtherance of the common intention of all the
persons.

The condition of a criminal act means that the act should be of such a nature that it is not lawful,
a lawful act of self-defense whereby a group of people in order to preserve their life commit a
criminal act are not governed under this section as the act was a lawful one done to save ones
life. But if in the course of such action any one person among them does any act that does not
amount to legal then that person alone would be held liable and not the group as there is no
thread of common intention that binds them all together.
There is wide difference between the term offence and a criminal act, the word offence is result
or effect of a criminal act, criminal act is wider then offence which is defined under section 40of
the IPC. A criminal act is a series of act which is done/committed by an offender that results in
punishment under the code of the law (as the law maybe). The word act is not confined to the
meaning that you do something directly even not acting may amount to act eg. In case of a sati
where people are watching the entire event and are merely standing there as a spectator this

4
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 32(30ed. 2009).
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proves their tactic support to the event and also qualifies as a encouragement to the person who
is committing the crime hence the people who are silently standing could be also liable for a
criminal act.

For a criminal act to come under the ambit of section 34 it is required that the act be done by
several persons, if the act is done by a single person then section 34 would not apply to it, each
person should be a participant in the crime in some way or the other and his involvement is
required whether directly or indirectly. In a case where partners form a company and take a room
on rent in pursuance of their business goal and if one of the partner defrauds a third party then it
will not amount to a case under section 34 as common thread of common intention is not present
among the partners. It is not required that all of the offenders in the crime carry out the same
work together then can do the work jointly in furtherance of the common goal like in case of an
armed robbery a person can guard the scene whereas other can look after the people who are
there on scene and the third would do the actual work of collecting cash in the present scenario
each of the three offenders would be liable for the same crime in the same sense.
The word in furtherance of the common intention has a clear meaning that the act was done on
pursuance of an intention and there may be a series of act done that have helped in achieving the
final act. In the above example if the robbers were armed and one of the robber shoots a person
because that person tries to inform the police then the act of shooting that person was done in
furtherance of the common intention that is robbery and each of the persons involved in robbery
would be liable for the same as the common intention was to rob the bank. Let us take a variation
in the above example if the robbers had mutually agreed to kill the manager of the bank in order
to simplify their task of collecting money and reducing the risk of informing police and if by
mistake instead of the manager a clerk was killed who was managing the bank on behalf of the
manager then too the robbers would be liable for the act of murder even though they planned to
kill the manager and not the clerk. Hence for the element of furtherance of common intention it
is required that the act is in connection to common intention.
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Participation and Presence on Scene of Crime in regard to Barendra Kumar Ghosh
The apex court has held that it is the essence of section 34 that the person should be present on
the scene of the crime but the physical presence does not amount to the presence of the person in
the actual room of the crime, he can stand, guard or be ready to warn his companions about the
imminent danger that may prop up or maybe plan an escape root for his companions by
facilitating the escape, but his participation is a must in some way or the other when the crime is
being committed.
5
However there is an exception to this as well as in every case the participation
may not be physical presence as in offences of physical violence where presence at the scene of
crime may be necessary but in cases where offence consists of diverse acts which may be done at
different time and places the applicability of physical presence is not a necessity.
6

Hence in case where house wrecking was done and quantities of copper wire had been stolen
with the help of duplicate keys which were supplied by the accused who was not present at the
scene of the crime but he was present at the weighbridge where the attempt was made to dispose
of the stolen copper wire was proved, Hence the court held that he would be liable for act with
the aid of section 34 and 107 of IPC.
7

Mere presence at the scene of crime without any participation to facilitate the offence is not
enough as in the case of state of Orissa v. Raghu ram Sahu
8
where the accused went to his field
with his friends to protect his crop from being forcibly reaped and in the course a scuffle broke
out and he killed a man of the opposite party, now others could not be held liable for homicide as
there was no intention among them for killing that person neither did they do anything they were
mere spectators.
The degree of participation of the accused in furtherance of the common intention is also a
relevant factor that has to be considered as in the case of Darshan Singh v. state of Rajasthan
9

the wife of the accused inflicted a single blow and then stood as a mere spectator whereas the
accused with others inflicted heavy blows with sharp objects on the decease, it was held by the

5
Shreekantiah Ramayya,(1954) 57 Bom Lr 632(SC)
6
Jaikrishnadas Desai, (1960) 3 SCR 319.
7
Tukaram Ganpat v. State of Maharastra, (1974) Cr LJ 469.
8
State of Orissa v. Raghuram Sahu, (1979) Cr LJ 502 (Orissa).
9
Darshan Singh v. State of Rajasthan, (1995) 2 Cr LJ 2138 Raj.
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court that it could not be held that whether the accused shared a common intention of causing
death hence she was not liable for murder and her conviction was changed for grievous hurt.
In the present case of Barendra Kumar Ghosh the accused argued that he was the man who stood
outside the courtyard and was in nowhere in the room to the present contention the court asked
why was he present at the scene of the crime at all and why did he not take himself off these
questions were not answered by the accused.























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Chapter 3

Common intention and common object in regard to the post master case
Section 34 is only a rule of evidence and does not create a substantive offence. Hence s. 34 is
applied even though no charge is framed under that section provided that there is a clear
prearranged plan to achieve the common object.
10
This section means that if two or more person
do an act intentionally then it is same as if it was done by him individually.
11

Ingredients of common Intention:
i. Prior consent (prior meeting of mind).
ii. Plan of action.
The concept of Joint liability first came up in the case of R. v. Cruse
12
in this case a constable
along with assistants came to As house with an arrest warrant. B, C, D notice the constable
coming and they come out and thrash him, one of the assistant dies at the moment, the question
before the court is that whether all the three will be jointly liable or the punishment would be
based on the proportionate basis. The court said that when it is not possible to determine who
committed the crime we have to look into the intention of the perpetrators and hold them jointly
liable for the crime.
Under s. 34 there is no distinction between a principal offender of first degree and a principle
offender of second degree and prior meeting of mind is a non-negotiable aspect. The punishment
is not given according to the degree of participation in crime the only question adhered to is
whether he participated in the crime or not.
In the Postmaster case the view of the court on common intention were as such: if for an act both
the accused are charged but each one is liable for to extend of his act only, then the charged

10
Garib Singh v. State of Punjab, (1927) Cr LJ 1286.
11
B.N. Srikantiah v. state of Mysore, (1958) AIR SC 672.
12
R v Cruse (1838) 8 Car & P 541.
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framed against them is only of attempt as no more than that can be proved and they would be
acquitted of murder although the victim remains a murdered man. But if the above cases were
tried separately in the court then the jury would decide the case and there would be chances
where the accused would be liable for murder.
The accused argued that section 34 a criminal act as regards to murder, implies an act that
takes away the life of a person within the meaning of s. 302 and compiled with s. 34 which says
that a person is liable for the act in the same manner as if done by himself alone and there is no
act that can take the life of the person except for the actual act of murder. Hence the effect boils
down to the fact that when several person do a criminal act, all acting in furtherance of the
common intention, each is punishable for the what he has done, as if the act is done by himself.
The accused argued that such a provision should be struck down however the court held that the
contention of the accused is that s. 34 should be applicable to only such acts where the act could
be done by oneself and such cases where several persons do an unified act should come under
some other section the court gave an illustration whereby several person shoot a victim however
one bullet passes through the ear so be it the case that one of them is not a murderer or the
benefit of doubt be entitled to all three and they be left free.
Common intention requires a prior concert, it requires a pre-arranged plan as several persons can
simultaneously attack a person and each have their own intention, to kill hence in pursuance of
that intention each one can individually inflict the fatal blow and yet none of them have the
common intention required under the section as there was no prior meeting of mind. Hence a
plan is necessary as it specifies our course of action and our roles. However if common intention
is formed at the scene then the meeting of mind takes place at the short moment but the meeting
of mind is always present before the offence under s. 34.

However there is a difference between common intention and similar intention as in a crime
several persons may come together and have a similar intention of causing hurt but there is no
prior meeting of mind about the act, as in a case of mob turning against a pick pocket or thief
that is caught red handed people may start beating him up with the similar intention of causing
hurt but there was no prior meeting of mind among the mob.
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In Pandurang v. State of Hyderabad
13
the apex court has reiterated the view of the Privy Council
as held in Barendra kumar Ghosh case and held that
In the case of common intention it is well established that for a common intention there is a prior
requirement of meeting of minds, a pre-arranged plan as before a person is convicted of a
criminal act it should be done in furtherance of a common intention that is only developed if
there a prior concert. As in Mehbub Shah v. Emperor
14
it was held that if several person
simultaneously attack a person each one could have a similar intention to kill him but there may
not be a common intention to kill as there is no prior meeting of mind and each individual may
inflict the fatal blow and still there be no common intention. In this type of case each person is
liable for his own act and no one is liable for the vicarious acts of the other person and if the
prosecution cannot prove separately that his separate blow was the fatal one then the person
cannot be liable of murder, however there remains a intention of causing murder for which the
accused would be liable, the court held that if this distinction is not kept in mind then it would
lead to miscarriage of justice.

The difference between common intention and common object:
Section 34 of the IPC deals with the offence where the person is liable for constructive criminal
liability i.e. the crime is not committed by him but his fellow associated, whereas s. 149 talks
about common object.
1. The first distinction between the two section that have been used in the case of
Barendra kumar Ghosh are s. 34 does not create a particular offence it is of general in
nature, on the other hand s. 149 created a specific offence under the membership of a
unlawful assembly. In other words s. 34 talks of crime which are done by several
persons in furtherance of common intention and each person is liable for the whole
crime as if it was done by himself alone. Whereas s. 149 creates a constructive
criminal liability where there is no requirement of common intention only a common

13
Pandurang v. State of Hyderabad, (1955) AIR SC216.
14
Mehbub Shah v. Emperor, (1945) AIR PC 118.
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object is required. The Supreme Court in Shiv Ram v. State of Uttar Pradesh
15
held
that an unlawful assembly can develop a common object in the spur of the moment. If
any member of the of the assembly commits an offence then all the members are
liable even though there is no common intention among them if the two condition are
satisfied a). The offence was committed in prosecution of the common object of the
people assembled and b). The act is of a nature that it could be foreseen by the
members of the assembly that such a thing could be have committed.
16


2. There is clear difference between participation and membership- the crux of
section 34 is that the accused should be involved or be a participant in action rather
than being a mere spectator of the crime, this condition is nonnegotiable for the
implementation of the above section. On the other hand section 149 could be
applicable even though the accused was not a participant in the crime if it is proved
that the accused was present at the scene hence the section emphasizes on
membership of the assembly.

3. Number of people involved- for section 34 to be applicable there should be at least
two persons but for section 149 to be applied it needs to be proved that at least 5
people or more as an unlawful assembly requires a requisite amount of minimum
members.










15
Shiv Ram v. State of Uttar Pradesh, (1998) AIR SC 49.
16
K.D. GAUR, THE INDIAN PENAL CODE 70(4 ed. 2009).
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Conclusion

In the present case Barendra Kumar was liable as he helped in commissioning of the crime he
participant as he provide tacit support to the commission of the crime in spite of the fact that he
did not fire the fatal shot. The present case deals with section 34 of the IPC and lays down the
important part in view of the interpretation of the section for future use. The court in deciding the
case has laid down important principles which have not yet struck down by the other judges in
the course of time like the importance of participation of the accused in the commission of the
crime and the mere presence does not amount to participation for the section to be used there
should be active participation of the accused. The court also laid down that it is not necessary
that the accused must be present on the scene of the crime i.e. the exact room where the crime
has happened, he could be anywhere and facilitate or help in the commissioning of the crime, the
accused could be planning an escape route for the offenders by being ready in the car or he could
even guard the crime scene so that there is no interference. The court also laid down the basic
principles of section 34 and how a common intention is different from a similar intention.












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Bibliography
Cases
B.N. Srikantiah v. state of Mysore, (1958) AIR SC 672 .............................................................. 13
Darshan Singh v. State of Rajasthan, (1995) 2 Cr LJ 2138 Raj.................................................... 11
Emperor v. Nirmal Kanta Roy, ILR 41C. 1072 .............................................................................. 8
Emperor v. Profulla Kumar Mazumdar (1922) I.L.R 50 C. 41 ...................................................... 8
Garib Singh v. State of Punjab, (1927) Cr LJ 1286 ...................................................................... 13
Jaikrishnadas Desai, (1960) 3 SCR 319 ........................................................................................ 11
Mehbub Shah v. Emperor, (1945) AIR PC 118 ............................................................................ 15
Pandurang v. State of Hyderabad, (1955) AIR SC216 ................................................................. 15
R v Cruse (1838) 8 Car & P 541 ................................................................................................... 13
Shiv Ram v. State of Uttar Pradesh, (1998) AIR SC 49 ............................................................... 15
Shreekantiah Ramayya,(1954) 57 Bom Lr 632(SC) ..................................................................... 11
State of Orissa v. Raghuram Sahu, (1979) Cr LJ 502 (Orissa) ..................................................... 11
Tukaram Ganpat v. State of Maharastra, (1974) Cr LJ 469 .......................................................... 11
Books
K.D. GAUR, THE INDIAN PENAL CODE 70(4 ed. 2009) ................................................................... 16
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 32(30ed. 2009) .......................................... 9