The Complicity Principle, given by Kutz says that “I am accountable for what others do when I intentionally participate in the wrong they do or the harm they cause. I am accountable for the harm or wrong we do together, independently of the actual difference I make.”
Thus, according to Kutz, a person will be accountable for the harm done when there is intentional participation towards the goal (Lawson 231). The idea behind complicity in crime is that if a person participates in a crime with intention, he or she will be responsible for the crime even if the last act that caused the crime was not committed by them.
As per Section 34 of the IPC, “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.”
Section 34 of the IPC talks about the common intention of several persons. In cases of mass violence, there is a common intention by the perpetrators of the violence. In Pandurang v. State of Hyderabad (1954), it was held that “Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged minds.”
Thus, common intention requires connivance and it should be a planned effort. The several persons must all come together and agree to the commission of a crime.
As per Section 32 of the IPC, “In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.” Thus, an act done under Section 34 IPC will also include an illegal omission. In order to understand what exactly an illegal omission is, we need to look at Section 43 IPC. As per Section 43 IPC, “..a person is said to be “legally bound to do” whatever it is illegal in him to omit.”
In Barendra Kumar Ghosh v. Emperor (1925), the Court had said that, “They also serve who stand and wait.” Thus, it is not necessary that the person has to do something to show that he committed the crime with others. Even if he did not do an act, if he has the common intention for the commission of the crime, that is sufficient.
As per Section 149 IPC, “if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly is guilty of that offence.”
As per Section 141 of the IPC, an unlawful assembly requires five or more persons. As per Section 142 IPC, if a person knows that the assembly is an unlawful one and in spite of that, joins the assembly, will be a member of the assembly.
We notice that in case of unlawful assembly, there need not be a common intention of commission of one particular crime but a common object is definitely needed.
The difference between common intention and common object is explained in Om Prakash v. State (1955), where the Court held that, “The charge framed under Section 149 IPC disregards the intention of the individual members of the assembly altogether, and concentrates merely on the common object of the assembly as a whole. The result of this position is that there may be cases in which a person might be guilty of an offence under Section 149 IPC though he himself had no intention to commit it or was even aware of its commission.”
Thus, under Section 34 IPC, there has to be common intention with respect to commission of a particular offence, that is the persons would have agreed together that this crime is to be committed, but in case of unlawful assembly, as long as the person is the member, the intention is irrelevant.
Under Section 107 of the IPC, abetment includes instigation, conspiration, and intentional aiding of an act or illegally omitting to do an act.
In Noor Mohammad Yusuf Momin v. State of Maharashtra (1970), the Court explained the difference between common intention and abetment and said that, “So far as Section 34 IPC is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of common intention” It further says that, “Section 109 IPC, on the other hand may be attracted even if the abettor is not present when the offence abetted is committed.” The Court says that it is enough if the accused has instigated, conspired, or aided someone intentionally.
Thus, we can see that, in case of abetment, the abettor may not have the intention to commit the crime himself or with someone else, but he certainly has the intention for commission of crime through someone else.