The Indian Penal Code, 1860, provides for several offences which determine the liability of a person when he commits an act in combination with others. In such cases, a joint liability is created against all of the offenders, since the intention or objective of the offenders was one and the same. The Indian Penal Code lays emphasis on the manner in which one person becomes connected to the other offenders, in order to determine liability. Generally, a person may become a participant in the commission of a crime in the following ways:
- If he commits the crime himself
- If he commits the crime with someone else
- If he, in order to commit the crime, puts a third agency at work, which would commit the crime on his behalf
- If he helps or aids the offender once the offender commits the crime, in screening him from justice
The latter two points are offences of abetment, and the first point calls only for the liability of the offender himself, since there is no association with anyone else. The second point forms the basis of joint liability, and in such offences, it becomes difficult to determine the liability of every single person involved in the act, especially when the offenders are a group of people or have committed the crime through big or small acts, each attracting different extents of liability.
Sections 34 to 38, and 149, of the Indian Penal Code, 1860 talk about joint criminal liability. Where section 34 states the common intention of the offenders, 149 states the common object of the offenders. It is important to note that there is a significant difference between common intention and common object, and that is why they have been incorporated under different sections. To ascertain the distinction between the two, it is vital to study them in isolation with each other first, and then moving on to the differences.
Section 34 – Common Intention
Section 34 is enacted on the basis of joint liability arising out of a common intention of the offenders. An important feature of this section is the participation in action by the offenders.
Section 34 states that when an offence is committed by several persons in furtherance of a common intention, i.e. the intention of all of them, every such person is liable for the offence in the same way as if he had committed the offence alone. The language does not say “common intention of all”, or “an intention common to all”, but that the intention animated to the accused leading them to commit the offence in furtherance of a common intention. This section comes into play where it becomes difficult to examine the acts of individuals acting together, and exactly what part was committed by whom. In Sachin Jana v. State of West Bengal, it was held that if an act is done by two or more persons jointly and intentionally, then it can be said that each of them did the act individually.
To put this section into play, the following requirements must be met:
- A criminal act must be done
- The criminal act must be done by more than one person
- The criminal act must be done in furtherance of a common intention of such persons
- The common intention must exist due to a pre-arranged plan between such persons
- Such persons must participate in some manner so as to constitute the offence
- Physical presence of such persons in some manner may be required in certain offences
In cases of joint liability, direct proof of the existence of common intention can rarely be found, so it can only be inferred from the circumstances of the case, which arise from proved facts of the case only. To establish common intention, the prosecution needs to prove a meeting of the minds of all the accused persons, which led to the commission of the act, whether it be pre-planned or on the spur of the moment. This meeting of the minds must necessarily be before the commission of the crime, and it should not be realised afterwards. Even though the acts committed by each of the offenders may be different, but they must be a result of a common intention. The word “act” as used in the language of the section implies a criminal act, which is a result of criminal behaviour of the accused persons, and would result in punishment had the accused persons done that act individually. Also, the expression “common intention” has been given different interpretations. Basically, it means a pre-arranged plan, i.e. a meeting of the minds before the commission of the act takes place, or a prior consultation among all the accused. But one definite meaning cannot be attributed, because the facts of each case are different from the rest.
A leading case under Section 34 has been of Barendra Kumar Ghose v. Emperor. The incident took place on August 3rd, 1923, when the post-master of Sankari Tola was in the post office counting money in the back room. The offenders appeared at the door of the courtyard connected to the office, and demanded the post-master to give up the money, following which they fired pistols at him. The post-master died immediately, and the offenders, without taking the money, fled in different directions. Only one of them, Barendra Kumar Ghose, was caught by the police with a pistol in his hands. He was prosecuted for committing murder along with several others in furtherance of a common intention. He contended that he did not have an intention to kill the accused and was compelled by the others to join the robbery, and that he had never fired his pistol and was only standing outside the office. The Privy Council held that even if the appellant, as alleged, did nothing or stood outside, what is to be noted is that in criminal acts, “they also serve who only stand and wait”. Also, conviction under section 34 is due to the existence of a common intention, whether the act was done by each of the accused be different or the same; it need not be identical.
Thus, the common intention is a necessary element if section 34 has to be applied, and this common intention can be inferred only from the facts and circumstances of each matter.
Section 149 – Common Object
Section 149 of the Indian Penal Code, 1860 is another section giving rise to joint liability, but with the element of a common object. This section is stated in two parts – offence committed by a member of an unlawful assembly in furtherance of the common object of that assembly, and an offence which the members of the unlawful assembly knew to be likely committed in pursuance of a common object. In simple words, the application of this section is depended upon two main facts:
- An offence was committed by a member of an unlawful assembly
- Such offence was committed in furtherance of a common object of that unlawful assembly, or the members of the assembly knew that such offence would likely be committed, implying knowledge.
Under Section 149, the presence of a person in an unlawful assembly, being actuated by a common object, is sufficient for conviction. Mere physical presence of an unlawful assembly cannot lead to conviction, unless there exists a common object among the members of the assembly, the object being one of those listed in Section 141 of the Penal Code. But if it is proved that the accused was a member of an unlawful assembly, there is no need to establish the existence of any overt act in order to strict the liability of 149. A common object, as mentioned in the section, can come into existence at any time, either through expression or implication, after mutual consultation. Common object does not require the prior meeting of the minds, unlike common intention, and the act done in pursuance of the common object strictly refers to the attainment of the common object. The acts done must be immediately connected with the common object, and the object must exist only up to a particular stage, and not thereafter.
Since the section speaks of unlawful assembly, the common object of the assembly can be gathered from several facts, such as nature of the assembly, weapons used, behaviour of the members etc. What needs to be understood is that every member of the assembly had knowledge of the assembly being unlawful, and chose to be a part of it. The meaning of the word “object” is the purpose or design for which the assembly is created. Further, for the application of this section, it is necessary to prove that there were at least 5 persons who shared the common object, if not more. An unlawful assembly is a group of five or more people, and in order to attract section 149, it is important to prove that 5 or more people acted in pursuance of a common object.
The section also convicts on the basis of knowledge, that when the members of the assembly knew that it was unlawful, and the act that they were carrying out in furtherance of a common object was likely an offence, they would attract the liability of 149.
In State of Karnataka v. Chikkahottappa, it was viewed that section 149 consists of two parts, the first one where the offence is directly connected to the common object, with a view to accomplish that common object, and the second one being the knowledge of the members that the offence was likely to be committed and the common object would fall under section 141 of the Code, even if the act was not immediately connected with the common object. Thus, the section lists out two situations where conviction on the basis of the existence of a common object can take place.
Difference Between Common Intention And Common Object
When cases of joint liability arise, Section 34 as well as 149, both, may be applicable. But, Section 149 has a wider application than Section 34. The difference between Sections 34 (Common intention) and Section 149 (Common object) was set out in the case of Virendra Singh v. State of Madhya Pradesh.
1) The foremost difference between Common intention and Common object is that Section 34 (Common intention) does not, in itself create any offence, i.e. it is applicable along with some other offence, such as murder. But Section 149 creates the offence of unlawful assembly committing an offence in furtherance of a common object, the object being one of those listed under section 141. Talking in terms of intent and object, intention requires the prior consultation of all the accused involved in the commission of the offence, hence it has a limited application, but object can come up at any stage, and does not require the proof of a previous meeting of the minds or mens rea. It may be developed over time, but must not continue once the offence has been committed.
2) Common intention requires active participation, usually in physical form, under Section 34, but under Section 149, liability arises merely out of the presence of an unlawful assembly. However, this does not mean that a person having no knowledge that the assembly is of unlawful purposes can be convicted of the same, rather, the members of the unlawful assembly had a common purpose, and each of them was aware of it, and as a result, committed an offence. Section 149 imposes constructive liability upon the members of the assembly, even though they would not have actively participated in the offence.
3) Unlawful assembly, as defined by the code, means an assembly created to achieve unlawful purposes, of at least 5 members. Section 34 does not speak of a maximum number of persons required to attract its penalty. Common intention may exist between two people, or ten people, which is immaterial. But common object must be between five or more people, and that each of them must be aware of the nature of the assembly, the connection of the object to the offence, or the knowledge that the object would likely result in an offence.
4) Common objects have been listed under Section 141, and only those objects can be referred to attract Section 149. However, the common intention may be of any kind, because mens rea cannot be restrictive in definition, or limited to a certain number of situations. Object, however, can be specific, and since it has a wider implication than intention, it is required to be applied only in specific cases.
The thread between common intention and common object may be fine, but it is there, which is why both the sections have been listed under different headings and in different chapters of the Code. Proving the existence of both is difficult, hence a clear-cut definition of both the concepts is almost impossible. It is upon the judiciary to understand the cases and come out with judgements that relieve ambiguities and tensions between both the concepts.
Frequently Asked Questions
Common intention requires a prior meeting of the minds, and a consultation between the accused persons before the offence can be committed. A common object may be developed once a person is a member of an unlawful assembly and is aware of the nature of that assembly.
For Section 149 to be applicable, it is necessary to show that the accused are at least 5 or more than 5 persons, who are members of the unlawful assembly.
Following are the elements required to be fulfilled in order to attract Section 34:
(a) A criminal act must be done
(b) The criminal act must be done by more than one person
(c) The criminal act must be done in furtherance of a common intention of such persons
(d) The common intention must exist due to a pre-arranged plan between such persons
(e) Such persons must participate in some manner so as to constitute the offence
(f) Physical presence of such persons in some manner may be required in certain offences
 Sewa Ram v. State of U. P., 2008 I Cri. L.J. 802 (SC).
 2008 II Cr. L. J. 1956 (SC).
 Barendra Kumar Ghose v. Emperor, 52 I.A. 40 (PC).
 Mahboob Shah v. Emperor, 72 I.A. 148 (PC).
 Ibra Akanda v. Emperor, AIR 1944 Cal. 339, Khundkar J.
 Supra note 3.
 Yunis v. State of Madhya Pradesh, 2003 Cri. L.J. 817 (SC).
 Mahmood v. State of U. P., 2008 Cri. L.J. 696 (SC).
 Jit Singh, (1959) Punj. 50.
 Om Prakash v. State of Haryana, 2014 Cri. L.J. 2567 (SC).
 (2008) 3 Cri. L.J. 3495 (SC).
 (2011) 1 Cri. L.J. 952 (SC).
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