Difference between Sec 34 and

149 IPC, 1860 with judicial

interpretations
June 10, 2020
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This article has been authored by Shreya Malhotra, a student of Symbiosis Law

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
appealed to Privy Council. 302 r/w Section 34 of IPC, 1860. After that his appeal
was rejected when he

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.

BASIS FOR
COMMON INTENTION COMMON OBJECT
COMPARISON
Meaning Common Intention implies a Common Object refers to a
meeting of mind of the purpose which is shared by
persons charged of the crime, all the members of an
requiring a preliminary unity. unlawful assembly.
Prior agreement Required before the crime Not required before the
 BASIS FOR
COMMON INTENTION COMMON OBJECT
COMPARISON
and consensus takes place. crime takes place.
Pre-arranged plan The criminal act is the result The criminal act is not the
of a pre-arranged plan. result of a pre-arranged
plan.
Number of Two or more Five or more
persons
Substantive It sets out the principles of It creates a specific
offence constructive liability without substantive offence.
the creation of any
substantive offence.
Liability All the persons involved in All the persons involved in
committing the crime are committing the crime may
equally liable. or may not be equally
liable.