JOINT, GROUP OR CONSTRUCTIVE LIABILITY: A FEW RIPPLES

JOINT, GROUP OR CONSTRUCTIVE LIABILITY: A FEW RIPPLES

Generally an accused is liable for the crime committed by himself. Joint liability is different. It simply means when an accused can be criminally liable for the act of other accused. In Indian Penal Code 1860, section 34-38,114,120B,149, old 376(2)expl1 or new 376D, 396,460 etc are illustrations of joint liability principles.

Question-Is principle of joint liability an exception to mens rea doctrine? 

Among the principles of criminal liability three important principles are-

1.      Mens rea doctrine-Prosecution has to prove beyond reasonable doubts that the accused committed the particular offence with intention or knowledge etc. for example If A1 is accused of killing V1, the prosecution is bound to prove beyond reasonable doubts that A1 killed V1 knowingly or intentionally. In other words while committing the killing A1 has the mens rea of killing V1. If the prosecution cannot prove this A1 cannot be held guilty for murder, etc.

In case of joint liability the case seems to be different. Suppose A1, A2, A3 and A4 agree to commit robbery on a train. They agree to board in the train with arms so that in case of any protest by passengers they may scare them and if somebody chases them they may use gun fire for safe exit.  A2, A3 and A4 go to coach number B1 while A1 is guarding against any possible entry of security force from other coach. While A2, and A4 were robbing, V1, a passenger attacks A2 to defend his belongings. A3 fires and V1 is killed. A1 knows nothing, what happened inside the coach because the arms were having silencers. A1 has neither intention to kill anybody nor even knowledge that a passenger V1 has been killed but A1 is as culpable as A3 is. So is A2.  Even if A1 has no mens rea of killing V1 and V1 is killed by A3,  A1 is guilty of murder.

2.      Doubtless identification of accused with crime -Other important principle of criminal law is more evidentiary in nature. Prosecution must prove that a particular accused has committed the offence. His identification must be ascertained beyond reasonable doubts.

But in joint liability cases no proof is required that any particular accused was responsible for the commission of actual offence. Prosecution is only required to prove beyond reasonable doubts that A1 was in other coach as per planning to commit an armed robbery.

3.      Another principle of criminal law actus reus must be voluntary. In other words accused must have committed the particular actus reus .

Joint liability also avoids this principle and accused A1 who has not committed actus reus  

 of killing in this armed robbery nor A2, has to be held guilty for the killing by A3.

In all these three cases the mens rea and actus reus  of accused A3, A2 and A4 is presumed to be the mens rea and actus reus  of A1 and vice versa if ‘they’ are not mutually exclusive or distinct. Exclusive or distinct mens rea and actus reus  here means there is no direct link between the offence committed. For example- in case of an armed robbery hurt, grievous hurt, killing etc is a close and proximate   possibilities, while committing sexual offence has no direct link with armed robbery. If the prosecution can prove beyond reasonable doubts a planning, conspiracy or agreement of armed robbery between A1, A2, A3 and A4 before committing the offence of armed robbery, any other offence(say killing of a person) which is committed for the purpose of armed robbery shall make all accused criminally liable.

It may therefore be concluded that

1. In case of joint liability the mens rea, actus reus  of one accused is transferred to other by operation of law.
2. Joint liability is a type of conclusive irrebuttable presumption. Once the prosecution proves beyond reasonable doubts a plan of all accused, participation of all accused for the execution of the planning and commission of ANY offence by any one of them, others are  conclusively liable for the crime of other. No chance of any rebuttable round of argument.
3. Joint liability seems to be closer to strict liability because an accused may be liable without specific mens rea.  In strict liability no mens rea needs to be proved and in joint liability no particular mens rea of killing on the part of A1 needs to be proved. In strict liability law presumes mens rea of an accused while in joint liability law presumes mens rea of other accused A2, A3 and A4 as mens rea of A1 and vice versa (if offence committed was in furtherance of common intention).