A Comment on Section 34, and Section 149 of IPC

There is a close resemblance between common intention and common object, though both of them belong to different categories of the office in criminal law.

(However joint offender is not defined under IPC, however various provisions of the IPC contemplated joint liability of each person who have committed a criminal act or offence in furtherance of common intention).

The principle of joint liability is defining u/s 34, and 149 of IPC.

Exceptions of Section 34 -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.

Exceptions of S34:

1. 1. Principle of Joint Liability:

Section 34 of IPC explains the principle of joint liability, in doing the criminal act with common intention. This section attract the principle of joint liability. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. Normally a person may be participant in a crime in the following ways:

• When he himself commit a crime.
• When he share in commission of it.
• When he, with a view to the commission of crime, sets some third agency to work, that is he makes some third party his own agent for committing the crime.
• When he helps the offender, after the commissions of the crime committing the crime.

1. 2. Several Person:

in this section several person means two or more than two person, criminal act must be done by several persons.

It is held in sachin jana and another v/s state of west

Bengal  that act done by two or more persons jointly and intentionally  can be taken as if done by each of them individually himself

These word of this section deals with those cased when it is difficult to distinguish precisely the part taken by each of the participant, it is deem necessary to declare all person liable for the criminal act..

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Furtherance of Common Intention: S34 deals with the doing of separate acts, similar or distinct acts by several people. If the criminal act is done in furtherance of common intention, each person is liable for the result of such act. Once is prove the criminal act was done in furtherance of common intention of all, each person is liable for the criminal act as if it were done by him alone. Section 34 is mainly intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in further of the common intention of all or to prove exactly what part was taken by each of them. When such participation is establish section 34 can be attracted. Sc 3does not say- "common intention to all" nor does it says – "an intention common to all" but it says " in furtherance of common intention.

It is held in sevaram v/s state of UP that: the direct proof of common intention is seldom available. It can only be inferred form circumstances appearing from proved facts.

Sec34 does not create distinctive substantive offence; it is only a role of evidence.

Essential ingredient of S.34:

• There must be a criminal act.
• The criminal act done by several person.
• The act is done in furtherance of common intention of all.

Cases:

• Nandu rasto v/s state of Bihar:

Criminal conspiracy is the essential ingredient of common intention u/s34, of IPC. Participant in criminal act in some manner was also essential but physical presence at scene of occurrence is not always necessary.

• Barendra Kumar Ghosh v/s Emperor:

It has been observed that though the accused did not played any role to kill the post master but he was standing outside to – stand and wait , which prove he was helping in the criminal conspiracy.

Exception of Common intention:

• Private defense:

In Subramanian v/s State of Tamil Nadu,   -That if the appellant acted in exercise of their right of private defense of property it cannot be said that they committed a criminal act in furtherance of a common intention because it is protected u/s 96 of IPc.

Section 149: every member of unlawful assembly guilty of offense committed in prosecution of common object- if an offense committed by any member of an unlawful assembly in prosecution of 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 the committing of that offense, is a member of the same assembly, is guilty of that offense.

Exceptions of Section 149:

• Principle of vicarious liability. This section is the declaratory of the principle of vicarious liability of the members of an unlawful assembly for acts done in prosecution of common object of that assembly, all the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said office.
• Unlawful assembly: It is not necessary under any law that in all cases of unlawful assembly, with an unlawful object, the unlawful assembly must be unlawful object to attract this section. Also too attract section 149 of IPC, only member of unlawful assembly is not enough, the person should have understood that assembly as unlawful and was likely to commit any of the acts which fall within the purview of section 141 of IPC, and it must have been committed in prosecution of common object.
• Common object: the word Object means purpose or design to make it common, it must be share by all. It may be formed at any stage by all or few members. It may be modify or altered or abandoned at any state. Common object may be formed by express agreement after mutual consultation.  The sharing of common object would, however, not necessarily require the member present and sharing the object to engage himself in doing an over act. Therefore this section is inapplicable in a case of sudden mutual fight between two parties, because of lack of common object.

Essential ingredient of Section 149:

• Unlawful assembly as contemplated my section 141 of IPC.
• Accused was a member of such assembly.
• The accused voluntarily joined that assembly.
• He knew the common object of that assembly.
• An office was committed by one or few member of that assembly.
• Offense must be committed in prosecution of common object of that assembly.

Case Ref:

Difference between Section 34 and section 149 of IPC

Base

Section34

Section 149

Nature of Offense

This section is not a substantive office it is only a role of evidence. it always read with other substantive offices. Punishment cannot be imposed solely upon this section. For example if a person convicted u/s 302 r/w 34 of IPC can legally be convicted u/s 302 r/w 34.

This section is a substantive offense, it also read with other sections. Punishment can be imposed solely upon this section Where as prosecution file a charge sheet u/s 149 the court me convert it to section 34 and impose conviction.

Principle element

Common intention- the principle ingredient of  this section is Common intention, any act which committed in furtherance of common intention attract this section

Common Object: the principle element of this section is Common Object, any act which committed in prosecution of common object. will attract this section

Range of Principle element

Common intention within the meaning of section 34, is undefined and unlimited.

Common object is defined and is limited to the five unlawful objects stated in section 141 of IPC.

Type of Offense

Common Intention requires under this section may be of ANY TYPE.

Common object require under this section must be one of the object mentioned u/s 141 of IPC.

Necessity

Prior meeting of mind is necessary before wrongful act is done under this section. In Nanak Chand v/s State of Punjab Sc held that -  common intention presupposes prior concert and meeting of minds, whereas a common object may be formed  without that.

Prior meeting of mind is not necessary under this section. Mere membership of an unlawful assembly at the time of committing the offense is sufficient.

In the same case (Chand v/s State of Punjab)Sc held that – there may be cases where the object of group is one, but the intention of participants differ.

Liability

It is a joint liability. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. It is of interpretative charater.

It is a constructive liability and vicarious liability. all the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said office.

Number of Person

Minimum two people require attracting this section.

Minimum five people require attracting this section.

Participation in Crime

Active participation in commission of crime is necessary.

Merely membership of the unlawful assembly at the time of commissioning of crime would be sufficient for this section application, active participation is not necessary.