Section 34 & 149 of Indian Penal Code

Section 34

‘common intention’. A common intention is defined as a predetermined plan acting in concert in accordance with the plan. It must be proven that the criminal act was committed in coordination with a pre-planned scheme. It exists prior to the commission of the act in time, but it does not have to be a large gap.

Sometimes common intentions can be created on the spot if the gap is not too long. The primary aspect is a pre-planned strategy to carry out the plan for the intended result.

Each of such individuals shall be held accountable for an act performed in pursuit of a shared intention as if the conduct were performed by a single individual. Common intention does not imply that numerous people have the same intention.

To establish a common intention, each of them must be aware of and embrace the objective of the others.

For example, four people intend to beat ‘A’ along the river. And as soon as they arrived at the location to defeat ‘A’, they encountered ‘B’, A’s adversary. After learning their strategy, B joins forces with those four individuals in order to defeat ‘A’. ‘B’ had decided to join them on the spot, as he also had the same intention (i.e. to beat A), which qualified everyone to come under the ambit of ‘common intention’.

According to the broad principles of criminal culpability, the individual or person who commits the offence has the primary responsibility, and only that person may be found guilty and punished for the crime committed.

However, the IPC has several clauses that involve the notion of ‘common intention’, which is present in criminal law jurisprudence across the world.

This theory allows an individual to be held criminally responsible for a crime committed by another individual if the act was undertaken as part of a common purpose agreed upon by the accused and the other individual(s). One such section is Section 34 of the IPC.

Section 34 of the IPC 1860 stipulates that when multiple people commit criminal conduct in pursuit of a common intention, each of them is accountable for the act in the same way as if it were committed by him alone.

This clause, which establishes ‘joint culpability’ for an act, is an exception to a fundamental principle of criminal law.

The core of joint culpability is the presence of a common intention in all parties concerned, which leads to the commission of criminal conduct in pursuit of that common goal.

Section 149

Section 149 is provided in Chapter VIII of the Indian Penal Code,1860 which describes all the offences against public tranquillity. This Section, in particular, deals with the liability of every member of an unlawful assembly guilty of an offence committed in furtherance of a common object.

Courts have construed that this provision creates joint liability or vicarious liability in an offence committed by members of an unlawful assembly.

When a person is attacked by a group of persons, it is difficult to establish the part played by each and every member during the commission of the offence. In such cases, all the accused persons can be charged with Section 149.

The crux of this provision is that every member of an unlawful assembly sharing a common objective will be liable for the offence committed by the group. They would also be guilty if they knew that an offence was likely to be committed and actively participated in it. Say,

for example, A, B and C grabbed Z to keep hold of him whereas D and E thrashed Z with bamboo sticks. Here even though A, B and C were not beating Z like D and E but they will all be liable under Section 149 of the Indian Penal Code, 1860 because all the accused had the common object of physically assaulting the victim.

Thus, this provision was enacted in order to maintain the tranquillity of the society and prevent the offenders who actively participate in the commission of an attack on innocent people by making them liable under Section 149 by the virtue of common object.

Essential element of Section 149

To convict the person under Section 149 the following needs to be satisfied:

1. There must be an unlawful assembly.

2. Any member of the unlawful assembly must have committed an offence

3. The offence committed must be in furtherance of the assembly’s common objective or the members must have knowledge about the happening of the offence.

Distinctions Between Section 34 & Section 149 of the Indian Penal Code

(i) Section 34 does not by itself create any specific offence, whereas section 149 does so;

(ii) Some active participation, especially in crime involving physical violence, is necessary under section 34, but section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime;

(iii) Section 34 speaks of common intention, but section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and

(iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas section 149 requires that there must be at least five persons who must have the same common object.