472 Malayan Law Journal [2010] 4 MLJ is found where several shots can be proved and yet there is only one wound, but even in such circumstances it is obvious that the rule ought to be the same as in the wider class, unless the words of the Code clearly negative it. Of course questions arise in such cases as to the extent to which the common intention and the common contemplation of the gravest consequences may have gone, and participation in a joint crime, as distinguished from mere presence at the scene of its commission, is often a matter not easy to decide in complex states of fact, but the rule is one that has never left the Indian courts in much doubt. The problem is to define the conditions under which liability is to be imposed. In this respect, s 34 has had a chequered interpretation, though the position is not now in doubt due to the numerous judgments (which we will refer to in due course) in which the leading authorities have been stated and re-stated. At the outset, however, the controversy had its genesis in the words ‘criminal act’ and ‘common intention’ contained in s 34. This found expression in two divergent lines of authority. On the one hand there were those authorities (Rex v Vincent Banka & Anor [1936] MLJ 53 is always cited) which held that the common intention should refer to the crime actually committed and that it was not sufficient that there should be merely a common intention to ‘behave criminally’. On the other hand there were those authorities which took a wider view of the expression ‘criminal act’: it was not necessary to show that there existed a common intention to commit the crime actually committed and for which the accused were ultimately charged; it was sufficient so long as the criminal act complained of was committed in furtherance of the common intention. Really the difference in the two views, as will be shown, lies in the content of the expression ‘common intention’. We propose to discuss the elements of s 34 under the following headings: (1) common intention; (2) ‘in furtherance of the common intention of all’; and (3) participation in the criminal act. A B C D E F (1) Common Intention In Vincent Banka, the two appellants were charged with committing robbery and murder in the course of robbery. Evidence was inconclusive as to which of the two appellants had carried the knife or inflicted the fatal wound. They were convicted on both charges and appealed against their convictions for murder. The appeal was allowed, Huggard CJ said at p 69: It follows that it is the duty of the trial judge, in cases where s 34 of the Penal Code is relied on, to direct the attention of the jury to any evidence from which they may legitimately infer the existence of a common intention to commit the criminal act actually committed; at the same time making it clear that the question whether or not such common intention existed is a question of fact and is for them to determine. G H I