This article has been authored by Shreya Malhotra, a student of Symbiosis Law School, Hyderabad.

Introduction

IPC Section 34 and Section 149 represents the rule of constructive liability which means that an individual is responsible for the repercussions of another person’s amendment, but Section 34 and Section 149 should never be mixed around each other. In Section 34 and Section 149, the law of common intention is in no manner synonymous and has its distinguishable characteristics. Chapter Eight of the Indian Penal Code relates from section 141 to section 160 to’ Offenses against Public Tranquility.’ Offenses against public peace, also known as’ Group Offenses,’ lead to public peace disturbance. Section 141 defines’ Unlawful Assembly,’ for which 5 or more persons should be present, and the object should be prevalent to all.

Criminal intent is the greatest type of criminal liability of mind and mens rea. The intention in criminal law occupies a symbolic position. It refers to murder and the most serious type of crime in the criminal justice system as the largest type of mental component. In the Indian Penal Code, the word ‘ intention’ is still not described, but IPC Section 34 deals with common intention.

Section 34 offers a notion of joint liability that is present in both civil and criminal law. It addresses a scenario where an offense involves a specific criminal intention or understanding and is committed by multiple persons. Each of those who join the act with such understanding or purpose shall be responsible in the same manner as if that intention or understanding was accomplished by him alone. 

Common purpose, common object, under Section 34: When various people commit a criminal act in support of the common intention of all, each of those persons shall be liable for that act within the same manner as if it was done by him alone.

Common intent implies a scheme that has been prearranged. On the contrary, Section 149 of The Indian Penal Code refers to an act committed by any member of an unlawful assembly in prosecuting that assembly’s common object.

To know more about common intention and comparative analysis of section 34 and 149 of IPC, 1860, please watch the video below:

Introduction to Section 34 under IPC, 1860

Section 34 of IPC, 1860 is defined as– “Acts done by several persons in furtherance of common intention.

The section can be explained as if two or more people commit any criminal offense and with the intent of committing that offense, then each of them will be liable for that act as if the act was committed by them individually.

Barendra Kumar Ghosh v. King Emperor’s case was one of the earliest instances in which another individual was sentenced by the tribunal for the act of another in support of common intention. The facts of the case are, on August 3, 1923, a group of armed people entered the police station. They asked the postmaster for cash where he counted the cash. They shot at the postmaster from the pistol, causing the postmaster to die on the spot. Without taking cash, all the accused ran away. The police were able to capture as a guard Barendra Kumar Ghosh who stood outside the post office. Barendra contended that he was merely standing as a guard but the court convicted him for murder under 302 r/w Section 34 of IPC, 1860. After that his appeal was rejected when he appealed to Privy Council. 

In this Section the word ‘act’ is referred, which is defined under Section 33 of IPC, 1860 as:

Section 33. ‘Act’, ‘Omission’. – The term ‘ act’ also denotes a sequence of acts as a single act: the term ‘ omission ‘ indicates as well a sequence of omissions as a single omission.

Section 34 and Section 33 clearly indicate that the word “criminal act” relates to more than one act and would cover a whole sequence of acts.

Section 34 to Section 38 of Chapter Two of the Indian Penal Code on’ General Explanation ‘ sets out the circumstances under which an individual may be constructively held responsible for the acts committed by the other group members.

Objective of Section 34

Section 34 is designed to deal with a situation in which it might be hard to differentiate between the criminal acts of individual party members acting in favor of a common intention of all, or to prove precisely what part each of them took. The reason why all are found guilty in such instances is that an accomplice’s existence provides encouragement, help, safety, and trust to an individual who is actually engaged in an illegal act. Accordingly, every person who is engaged in the commission of a criminal offense is held liable by virtue of his involvement in the act performed, even if the specific act in question was not performed by either member of the group.

Ingredients of Section 34

• Criminal Act Done By Several Persons: The said criminal act must have been performed by more than one person. If the criminal act was a fresh and independent act that springs entirely from the doer’s mind, the others will not be liable simply because they intended to be involved with the doer in another criminal act when it was done. The acts committed in the criminal action by different confederates may be different, but they all have to participate and engage in the criminal enterprise in one way or another.
• Common intention: The core of joint liability under Section 34 resides in the presence of a common intention to commit a criminal act in support of the common goal of all group members. The term ‘ common intention’ means a prior concert, i.e. a meeting of minds and involvement of all group members in the execution of that plan. The acts performed by each participant may vary in personality but must be carried out with the same common intention. 

In the case of Mahboob Shah v. Emperor, appellant Mahboob Shah was 19 years old and was convicted of the murder of Allah Dad by the Session Judge of the charge Section 302 with Section 34. He was convicted for death by the Session tribunal. The death sentence was also upheld by the High Court of Judicature. The conviction for murder and death sentence was overturned on appeal to the Lordship. It was argued before the appellant that–”when Allah Dad and Hamidullah attempted to run away, Wali Shah and Mahboob Shah came next to them and fired” and thus there was proof at the spur of the time that they formed a common intention. The lordship was not happy with this perspective and cordially advised his Majesty that his appeal had been successful, the appeal must be allowed and the conviction of him for murder and death sentence should be set aside.

The common intention is most often confused with Section 149, which states that each member of the unlawful assembly is guilty of the offense committed in prosecuting a common object. It must be recognized that there are differences between the operations of both the sections. 

Both Section 149 and Section 34 of the Indian Penal Code deal with a person’s association that becomes responsible for punishment for the act they commit. It is not essential to prove that each and every one of them was engaged in the overt act in order to hold an individual vicariously responsible under IPC Section 34 or Section 149.

This principle was held in Ram Bilas Singh v. State of Bihar case where it was stated that the term of the punishment for each person who has committed that act with a common intent depends on the nature and gravity of the crime committed.

• Participation in The Criminal Act: Participation in a criminal act of a group is a precedent condition for fixing joint liability and there must be some overt act indicative of a common intent to commit an offense. The law requires the accused to be present on the spot during the crime and participate in its commission; it is sufficient if he is present somewhere nearby.

In the leading case Barendra Kumar Ghosh v. King Emperor, this case is also named as the Shankari Tola Post Office Murder Case. Several people, in this case, appeared before the sub-post master who counted the cash on the table and demanded the money. Meanwhile the sub-post master was murdered by opening fire and those people ran away without taking any cash. However, Barendra Kumar was caught in his hand with a pistol which was handed over to the police. The accused was prosecuted under Sections 302/34 as he was one of the three males who fired at the sub-post master according to the prosecution. The accused rejected his complaint on the ground that he was just standing outside and that he had not shot at the dead. After being satisfied that the sub-postmaster was murdered in support of the common intention of all, the trial court, held the accused guilty though he had not even fired the shot. The Calcutta High Court and the Privy Council both agreed with the trial court’s results and found the accused guilty of killing. Section 34 deals with the performance of separate acts, similar or diverse by several persons; if all are performed in the pursuit of a common intention, each individual shall be liable for the consequence of all such acts as if they were performed by themselves.

Introduction to Section 149 under IPC, 1860

Section 149 of IPC, 1860 is defined as: Every member of unlawful assembly guilty of offence committed in prosecution of common object.

This Section can easily be understood as, where an offense is committed by any member of an unlawful assembly in the prosecution of the common purpose of that assembly, or as the members of that assembly knew likely to be committed in the prosecution of that purpose, any person who is a member of the same assembly at the time of the commission of that offense shall be guilty of that offense.

In the case of Bhudeo Mandal v. the State of Bihar, the Apex Court ruled that the proof must obviously establish not only the common object but also demonstrate that the common object was illegitimate before convicting any individual with the help of section 149.

In the case of Ram Dhani v. State, there was a land dispute and the plaintiff resorted to the accused party’s crop cutting. The latter were in number more than five and assembled to avoid cutting. The tribunal ruled that individuals acting in the property’s self-defense could not be members of an unlawful assembly. And so it could not be said that they formed an illegal assembly.

The penalty pursuant to Section 149 is the same as the offense committed in the unlawful assembly. If the prosecution wishes to prove an individual under section 149 of the IPC, it must show the person’s presence on the site and his involvement in the unlawful assembly. This chapter generates a positive or vicarious liability for the illegitimate acts committed in pursuit of the common item on the members of the unlawful assembly. 

Ingredients of Section 149 

• An offense committed by members of an unlawful assembly-The Supreme Court in Yunis vs. Madhya Pradesh State held that the presence of the accused as part of an unlawful assembly was sufficient for the conviction to be held. The fact that the accused was a participant of the unlawful assembly and his presence on the spot of the event is adequate to hold him liable even if he is not accused of any overt act. However, mere presence in an unlawful assembly cannot make an individual responsible unless he is acting by common object and that object is one of the objects set out in Section 141.

The specifics of an unlawful assembly are detailed in Section 141 of the Indian Penal Code. It states that if the common object of such assembly is any of the following, an assembly of five or more persons is an unlawful assembly.

1. In order to demonstrate criminal power. 
2. Resisting law enforcement or legal proceedings.
3. Committing criminal offense or wrongdoing. 
4. Forcing others to do what they are not legally bound to do by a criminal force demonstration.
5. Taking possession of property by using criminal force.
6. Exempting anyone from using incorporeal law by using or demonstrating criminal force.

 (A) In prosecution of the common object– “In prosecution of the common object “does not mean” the persuasion of the common object of the assembly. The words” in prosecution the common object” show that the offense committed was immediately linked to the common object of the assembly of which the accused were members. The act must be the way it was done to achieve the common purpose attributed to the members of the unlawful assembly. The words “in the prosecution of the common object” must be interpreted strictly as equivalent to “in order to achieve the common object.”

(B) Members knew to be likely- the second part refers to a situation in which members of the assembly knew that the offense was likely to be committed in prosecuting the common object. A thing is likely to occur only when it will probably occur or may very well occur/happen. At the time of the commission of an offense, the word’ knew’ indicates a state of mind and not the latter. Knowledge must be proved. The word’ likely’ means some strong proof that such knowledge was available to the unlawful assembly. The prosecution must show that not only did the accused know that the offense was likely to be committed, but also that it was likely to be committed in prosecuting the assembly’s common object.

(C) Five or more persons- to apply this section, it is essential to prove that the common object was shared by at least five people. While it may happen that some of them are identifiable or that their identity was doubtful, the presence of five or more people must be unquestionably proven. Even less than five people may be convicted in some cases. But if it is doubtful that under this section there were at least five people, no conviction is possible.

Section 142 of the Indian Penal Code, 1860 makes it easier to identify the factors that make someone a part of an illegal assembly. It says that if someone joins an assembly or continues to be a member of that unlawful assembly even after being aware of the facts that make such assembly unlawful.

Difference between common intention and common object

Under the IPC, both Section 34 and Section 149 impose vicarious liability on each individual for acts which are not necessarily done by them. There is, however, a distinction in the scope and nature of operation of both offenses.

• The charge under Section 149 is replaced by Section 34 of the IPC, particularly if some of the accused are acquitted and the number of the accused drops below 5. In this case, the tribunal would have to scrutinize the proof closely to see if there is some aspect of common intention for which it can be held responsible under Section 34. 
• Section 34 does not constitute a particular offense but sets out only the principle of joint criminal culpability. Whereas Section 149 generates a particular offense and being a member of an unlawful assembly is itself a criminal offense punishable under Section 143.
• ‘Common intent’ used in S.34 has not been defined anywhere in the IPC, whereas’ common object’ must be one of the five ingredients defined in Section 141 of the IPC.
• Common intention needs a preliminary meeting of mind and unity of purpose, and open action has been taken to promote the common intention of all. If the common object of the members of the unlawful assembly is one but the participants’ intention is different, a common object can be formed without a prior meeting of mind. It only needs a criminal act to promote a common purpose.
• For invoking S.34 it is adequate that two or more individuals were involved. However, to impose section149 there must be at least 5 people.
• ‘Participation’ is a key factor for S.34, whereas active involvement in S.149 of the IPC is not required.
• Section 34 requires common intention of any kind. One of the items listed in Section 141 must be a common object under Section 149.
• Section 34 requires some active involvement, particularly in the case of a crime involving physical abuse. Section 149 does not involve active involvement and the responsibility comes from the mere membership of the unlawful assembly with a common objective.

Conclusion

Section 34 merely defines joint liability and does not impose any penalties for the same. This section has to be read with multiple other sections of IPC such as Section 120A defining criminal conspiracy, Section 120 B providing a penalty for criminal conspiracy, and Section 149 dealing with unlawful assembly. This Section 34 cannot be implemented alone and must be implemented together with some other section in order to make an individual jointly liable for the offense. There is no need for people to always share the common intention and commit a crime It might be possible that they are present at the scene just by mere chance and shared no common intention which is the core ingredient of Section 34 of IPC.

Fixing vicarious liability under Section 34 or Section 149 depends on their method adopted to furnish the crime. There are two sections managing ‘common intention’ and ‘common object’ beneath two chapters of IPC ‘General Explanation’ and ‘Of Offences against Public Tranquility’ respectively. 

Sometimes there arises difficulty in proving with proof that whether they shared common intention or not and also how many individuals with the same common object were members of the unlawful assembly. However, the Supreme Court abolished these ambiguities in various instances after determining each case’s facts and condition.

In order to have a clear and better knowledge, India’s Law Commission also gave the Legislature many suggestions to amend some parts of the statute. Finally, I can say that both Section 34 and Section 149 make an individual vicariously responsible for his companions’ actions. Both sections cannot always be provided by direct proof, and it should be inferred from the facts and conditions of the case.

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