The rule of constructive liability is based upon the connecting link between the main offender and the others who are constructively made liable.
Some provisions in the Indian Penal Code determine the liability of a person committing a crime in combination with some others. In all such provisions, joint liability is created either because there is a common intention and common object to all the persons forming a group alleged to have committed a crime. Such connecting link has been identified under section 34 and section 149 of the Indian Penal Code.
This IPC law note tells you about common intention and common object under sections 34 and 149 of the Indian Penal Code and the differences between these two similar-sounding terms.
Section 34: Common Intention
Section 34 of the Indian Penal Code is enacted on the principle of joint liability in doing a criminal act. Section 34 IPC deals with the act done by several persons in furtherance of common intention. The section is a rule of evidence and does not create a substantive offence.
Must Read: What Is Common Intention as Per IPC
Essentials of Section 34
The three essential ingredients for section 34 of the Indian Penal Code are as follows:
1. Several Persons
The court held in Sachin Jana vs State of West Bengal (2008) that an act done by two or more people jointly and intentionally can be treated as if done by each individual individually.
2. Common Intention
The term ‘common intention’ has been given a different meaning in different cases depending upon the circumstances of the cases as:
- prior meeting of mind
- pre-arranged plan
- desire to commit a criminal act without contemplation of consequences
In Krishna Govind Patil vs State of Maharashtra (1963), it was held that common intention might develop on the spot also.
3. Criminal Act in Furtherance of Common Intention
When several people commit a crime in furtherance of their common intention, each of them who does some act – similar or different, big or small – is liable for that act.
In Barendra Kumar Ghosh vs Emperor (1925), the term criminal act was defined as the unity of criminal behaviour that results in something for which an individual would be punishable if it were all done by himself alone in an offence.
In Mahbub Shah vs Emperor (1945), attention was drawn by the Privy Council that care must be taken between the same or similar intention and common intention. That distinction is real and substantial and, if overlooked, will result in the miscarriage of justice.
In Barendra Kumar Ghosh vs Emperor (1925), the appellant was charged under section 302 IPC, read with section 34 of the Indian Penal Code, with the murder of the sub-postmaster. The appellant contended:
- that he did not fire at the sub-postmaster.
- that he was standing outside and that he was compelled to join others for robbery and had no intention to kill the deceased.
The Privy Council held that even if the appellant did nothing as he stood outside the door, it is to be remembered that in crime as in other things, they also serve who stand and wait.
Section 149: Common Object
Section 149 of the Indian Penal Code states every member of unlawful assembly is guilty of the offence committed in the prosecution of the common object. Section 149 of the IPC creates a substantive offence. The term ‘unlawful assembly’ is defined under section 141 of the Indian Penal Code.
Essentials of Section 149
The two essential ingredients for section 149 of the Indian Penal Code are as follows:
1. Some offence must be committed by any member of an unlawful assembly.
In Yunis vs the State of Madhya Pradesh (2003), the Supreme Court held that the presence of the accused as a member of the unlawful assembly is sufficient for conviction. Even if no overt act is attributed to the accused, the fact that he was a member of an unlawful assembly and was present at the time of the occurrence is sufficient to hold him guilty.
2. Such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew it to be likely to be committed in prosecution of the common object.
The term ‘common object’ means the purpose or design. To make a common design, it must be shared by all.
The phrase ‘in the prosecution of the common object’ indicates that the offence committed was directly related to the common object of the unlawful assembly of which the accused were members.
In Paran vs State of Rajasthan (1976), the court held that the individual acts cannot be grouped in such cases, and the individuals are to be held responsible for the individual acts.
In Munna Chandra vs State of Assam (2006), it was observed that the common object is different from common intention. It does not require a prior concert. The common object can develop on the spur of the moment.
The word ‘likely’ means knowledge to the members of an unlawful assembly that the offence was likely to be committed and also that it was likely to be committed in the prosecution of the common object of the assembly.
Difference Between Sections 34 and 149 of the IPC
Section 34 (common intention) and section 149 (common object) of the Indian Penal Code differ as follows:
1. Section 34 of the IPC speaks of common intention, but section 149 of the IPC discusses common object.
2. Section 34 of the IPC does not create a specific offence as it is a rule of evidence, but section 149 of the IPC creates a specific offence.
3. Common intention denotes action in concert and postulates the existence of the pre-arranged plan, while a common object does not necessarily require proof of a prior meeting of minds.
4. Under section 34 of the Indian Penal Code, active participation in the commission of the crime is necessary. However, mere membership in the unlawful assembly at the time of the commission of a crime would be sufficient to apply section 149 of the IPC.
5. To hold a person liable for an offence by applying section 34 IPC, at least two or more members are required. But for application of section 149 of the Indian Penal Code, the offence must be committed by at least five or more persons.
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