Section 34 and Section 149 of Indian Penal Code, 1860 deals with Common Intention and Common Object. Where it is stated as under:
Section 34- Acts done by several persons in furtherance of common intention.—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.
Section 149- Every member of unlawful assembly guilty of offence committed in the prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the 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 offence, is a member of the same assembly, is guilty of that offence.
Both sections 34 and 149 mimic each other in some way. Joint liability is established in both parts (where two or more persons are responsible for the same liability) either because of the common motive or the common purpose of the persons alleged to have committed the crime. Individuals involved are punishable as suspects in a felony. It is well settled by a catena of decisions that section 34 as well as section 149 deal with liability for constructive criminality i.e. the vicarious liability of a person for acts of others. However, in that common purpose denotes action in concert and consequently postulates the presence of a pre-arranged arrangement indicating a previous meeting of the minds, a strong distinction is made between common intention and common object, although common object does not necessarily require evidence of a prior meeting of minds or pre-concert. While there is a significant difference between the two articles, they both overlap to some degree and it is a matter of deciding, on the basis of the facts of each case, whether the charge referred to in section 149 overlaps the ground protected by section 34.
Where a number of persons numbered five or more are acting and planning to do so, both sections 34 and 149 may apply. If a common purpose does not actually involve a common motive, the replacement of section 34 with section 149 could be prejudicial to the accused and may therefore not be acceptable. But if a shared purpose is involved, then the replacement of section 34 with section 149 must be considered to be a formal matter. The facts of each case must depend on whether or not such redress can be had. Consequently, the non-applicability of section 149 is not an obstacle to the appellants’ prosecution under section 302, read in accordance with section 34 of the IPC, where the testimony discloses the commission of an offence in order to facilitate the common intention of all of them.
The difference between the two is as follows:-
- The basis of liability is a common purpose in Section 34 and the basis of liability is a common object in Section 149.
- Common intent is not specified and is unrestricted in Section 34, while the common purpose is very specifically defined in Section 149 and is limited to five unlawful items referred to in Section 141 of the Code.
- The act referred to in Section 34 must be performed in order to encourage a common purpose, whereas the criminal act referred to in Section 149 must be performed in order to promote a common object.
- Active involvement in Section 34 is a must, however limited or insignificant it may be. Whereas the mere membership of an illegal assembly is appropriate in Section 149 to confer criminal responsibility.
- Two or more persons can commit a criminal act in Section 34, while five persons are required in Section 149 to constitute an offence.
- In Section 34, a criminal act may be committed by two or more individuals, while in Section 149, five persons are required to commit the crime.
- Section 34 deals with shared responsibility but does not create a particular offence, whereas Section 149 creates a particular offence.
- Under Section 34, a prior or pre-planned combination of mind is a necessary or deciding function. Whereas membership in an unconstitutional assembly is sufficient in Section 149.
More can be understood by referring to the following case where the distinction between “common intention” under Section 34 and “common object” under Section 149 was considered to be of vital importance.
Devi Lal And Anr. vs The State Of Rajasthan 1971, SC
That was an appeal by special leave from the judgement of 6 May 1968 of the High Court of Rajasthan condemning and sentencing appellants Devi Lal and Bihari to life imprisonment pursuant to Section 302 of Section 34 of the Indian Penal Code. The case was u/s 307 of IPC. There were 4 eye witness and one doctor and two policemen but none were able to give evidence on whose testimony any reliance could have been taken. From the seven accused the presence of the two was disbelieved by the Trial court. All the witness said that the attack was open. The Session Court held that the three accused caused the injuries. The Sessions Court did not explicitly note the difference between Sections 34 and 149 of the Indian Penal Code, and the High Court did not deal with this point at all. It is of critical importance to differentiate between “common purpose” under Section 34 and “common item” under Section 149. The distinction between “common intention” under Section 34 and “common object” under Section 149 is of vital importance. The High Court’s decision was set aside. The convicted were set free.
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