DEcoding the relationship between Section 34 and 149 IPC:DO they overlap?

DEcoding the relationship between Section 34 and 149 IPC:DO they overlap?

 

 

INTRODUCTION

The principle of criminal liability is that the person who commits an offence bears responsibility for that and he can only be found guilty. Generally, no culprit can be held responsible for an independent act of wrong committed by another. However, there are various exceptions to this rule and one such exception is vicarious/constructive and joint liability. Constructive liability is a legal theory of liability that empowers the court to hold a person liable for the acts or repercussions of the acts of others. There are several provisions under the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) in which vicarious/constructive liability can be fastened on an individual for the criminal acts done by another individual. These include acts committed with a common object, common intention, abetment etc. However, this article will confine itself to sections 34 and 149 of IPC and delve deep into the interplay of both sections.

 

SECTION 34 OF IPC AND ITS SCOPE

Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. This section is merely a rule of evidence and does not establish a distinct substantive offence.[1] Section 34 IPC, after amendment in 1870, read as “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 34 of IPC deals with ‘common intention’. Although the term ‘intention’ is not defined in IPC it occupies a pivotal role in criminal liability. Section 34 IPC examines a situation, where an offence requires a particular criminal intention or knowledge and is committed by several persons.[2] Every individual who becomes part of such an understanding is held to be liable in the same manner and the criminal act is vicariously imposed by fiction of law on all the persons with common intention. This provision has been incorporated to prevent miscarriage of justice and to tackle peculiar situations where it may become impossible to accurately distinguish between acts of individual members committed in furtherance of common intention.

In order to meet the threshold requirement for the operation of this section, an establishment of an overt act is not a requirement of law inasmuch this section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. Therefore, the prosecution is to establish that all the concerned persons had shared a common intention. This also implies that any person who does nothing except stand still and wait may also be held liable. The phrase “common intention” means a pre-arranged plan and acting in concert pursuant to the plan. It also consists of an act of several persons in unison with another for fulfilling a common purpose. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission.[3] The common intention under section 34 IPC is to be understood in a different sense from the ‘same intention’ or ‘similar intention’ or ‘common object’. The persons having a similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC.[4] Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.”[5]

 

SECTION 149 OF IPC AND ITS SCOPE

As per Section 141 of IPC, an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly to fulfil the object as envisaged in the said section[6] and Section 142 of IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.[7]

The essential ingredients of Section 149 of IPC are that (a) there is an unlawful assembly; (b) A member of the assembly commits an offence; (c) the offence committed- (i) is in prosecution of the common object of the assembly, or (ii) is such as members of the assembly know to be likely to be committed in prosecution of that object.[8]

Thus, in order to constitute an unlawful assembly the statutory requirement is that there must be five or more than five people. In such a case, every person who at the time of the commission of the offence is a member of the same assembly is punishable.[9]

The fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under section 149 read with the substantive offence if the court finds that there are other people who might not have been identified or convicted but were party to the crime and together constituted the statutory number.[10] If, for example, only five known persons are alleged to have participated in an attack but the courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of them and acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding based on good evidence and sound reasoning that the participants were five or more in number.[11]

The words “in the prosecution of the common object” must be interpreted strictly as equivalent to “in order to achieve the common object.”[12]The common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence.[13] It is an inference to be deduced from the facts and circumstances of each case.[14]

At the time of the commission of an offence, the word ‘knew’ indicates a state of mind. The word ‘likely’ means some strong proof that such knowledge was available to the unlawful assembly. Under section 149, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object and such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour, at or before the scene of action.[15] If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.[16]

 

OVERLAPPING BETWEEN COMMON INTENTION AND COMMON OBJECT

There is much difference in the scope of applicability of Sections 34 and 149 though they have some resemblance and are to some extent overlapping. There has been some confusion in both the Sessions Court and the High Court between "common intention" and "common object" and it is true that the two sometimes overlap but they are used in different senses in law and should be kept distinct.[17] The Allahabad HC in the case of Shabbir Khan vs Mohd. Ismail Khan. held that

“Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But nevertheless, the common intention which is, the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly.”[18]

The Hon’ble Supreme Court in Dalip Singh and Others vs. State Of Punjab has held that recourse to Section 34 IPC cannot be taken as the appellants were not charged even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.[19]

The SC in Karnail Singh & Anr. vs. State of Punjab overruled Dalip Singh and opined that the facts leading to common object and common intention do sometimes overlap and when this is the case the court can convict the accused in both the sections while ensuring that the other requirements of the offence is fulfilled. [20] The proved facts in the said case in brief were that the appellants, who had long -standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mr. Bholan couped up within. The Supreme Court held that if it was their object under Section 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under Section 34 and on the facts of this case there can be no difference between the object and the intention with which the offences were committed.

The constitution bench of the Supreme Court has endorsed the view of Lachhman Singh v. State wherein, it was held that when there is a charge under Section 302 of the Penal Code read with Section 149 and the charge under Section 149 disappears because of the acquittal of some of the accused, a conviction under Section 302 of the Penal Code read with Section 34 is good even though there is no separate charge under Section 302 read with Section 34, provided the accused could have been so charged on the facts of the case. [21]

It is because of the fact that Sections 34 and 149 IPC do to a certain extent overlap, it has been held that where some are acquitted thus rendering the number of accused persons less than five, it is possible to convict, on the basis of the special circumstances of the case and the evidence led in it, the remaining accused persons for the substantive offence read with section 34 IPC.[22]

Sometimes, common intention and common object may overlap, and in such cases common intention is involved in common object and there is no bar in law on conviction of the accused with the aid of section 34 IPC in place of section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice is shown to have been caused.[23]

In Re: P. Ramulu and Ors. vs Unknown  the court in detail has meticulously explained the overlapping by citing example that the

“…Accused may have had a pre-arranged plan to commit a murder & they may constitute an unlawful assembly with the same object. Where there is overlapping of the facts bringing a case both under Section 34 and under Section 149, if an accused is charged for an offence involving a common object to commit murder, he cannot possibly be prejudiced by the omission of Section 34 in the charge. Further even in a case where the accused are charged simplicitor only for committing murder, there is nothing in law which prohibits a Court from convicting them under Section 302 read with Section 34 if the evidence justified it and if the accused are not prejudiced by the absence of charge under Section 34, for Section 34 does not create any separate offence but only lays down a rule of law.”[24]

In the case of Dhaneshwar Mahakud and Ors vs State Of Orissa, the court after relying on catena of judgements concluded that there is no restriction on conviction of the accused with aid of section 34 IPC if the evidence on record shows the presence of common intention. The court scrutinised the evidence of the witnesses along with the injuries reported in the post-mortem reports to conclude that common intention was present and thus no prejudice would be caused.

 

CONCLUSION

Fixing vicarious liability under Section 34 or Section 149 depends on the method adopted to furnish the crime. Section 34 deals with common intention and rules of evidence, which cannot be implemented alone. Section 149 deals with unlawful assembly with common object and unlawful assembly itself is penalised under Section 143. In light of the decisions of the judiciary, it is well-settled that both sections overlap to some extent. The difference between common intention’ and ‘common object’ lies in the time at which they are formed while for the former it must be pre-arranged the latter has no such requirements and hence a broader term encompassing even common intention. When facts and circumstances of the case combined with the evidence sufficiently prove both common intention and common object, then conviction under Section 34 IPC is permissible in the absence of charge.

 

 

 

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