COMPARISON OF SECTION 34 AND 141-149
Section 34 of the Indian Penal Code, 1860 talks about acts done by several people in furtherance of common intention.
It states that:
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. Whereas, the sections from 141-144, talks about unlawful assemblyassembly- being a member, punishment, joining an unlawful assembly, joining an unlawful assembly with a deadly weapon. Sections 145-148 deals with rioting, punishment, rioting with a deadly weapon respectively. Section 149 deals with offences in which every member of unlawful assembly guilty of offence committed in prosecution of common object. It states that:
³If
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 or 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.´ As we can see, there is a close resemblance between section 34 and section 149. While section 34 talks about common intention, section 149 talks about common object. SECTION 34Section 34 explains the principle of JOINT LIABILITY in doing a criminal act with common intention. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. Normally a person may be participant in a crime in the following ways: y y y
y
When he himself commit a crime. When he share in commission of it. When he, with a view to the commission of crime, sets some third agency to work, that is he makes some third party his own agent for committing the crime. When he helps the offender, after the commissions of the crime committing the crime. The section specifies the term µseveral persons¶ as two or more than two persons. Section 34 deals with the doing of separate acts, similar or distinct acts by several people. If the criminal act is done in furtherance of common intention, each person is liable for the result of such act. Once is prove the criminal act was done in furtherance of common intention of all, each person is liable for the criminal act as if it were done by him alone. Section 34 is mainly intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in further of the common intention of all or to prove exactly what part was taken by each of them. When such participation is establish section 34 can be attracted. It is important to note here that, section 34 has no utility of its own. It is to be read with another section e.g. - section 302. The section has been incorporated in the IPC in order to extend the responsibility to another person. Section 34 does not create distinctive substantive offence; it is only a role of evidence.
y y y
y
y
Therefore, the essential ingredients of section 34 can be noted as: There must be a criminal act. The criminal act done by several person. The act is done in furtherance of common intention of all. CASES: Nandu rasto v/s state of Bihar: Criminal conspiracy is the essential ingredient of common intention u/s34, of IPC. Participant in criminal act in some manner was also essential but physical presence at scene of occurrence is not always necessary. Barendra Kumar Ghosh v/s Emperor: It has been observed that though the accused did not played any role to kill the post master but he was standing outside to ± stand and wait , which prove he was helping in the criminal conspiracy.
SECTION 149This section talks about the principle of vicarious liability of the members of an unlawful assembly for acts done in prosecution of common object of that assembly, all the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said offence. It is necessary to prove that the assembly was an unlawful one. Unlawful assembly has been defined in the IPC under section 141 which states that³An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly isFirst-To overawe by criminal force, or show of criminal force, 1[the Central or any State Government of Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second-To resist the execution of any law, or of any legal process; or Third-To commit any mischief or criminal trespass, or other offence; or Fourth-By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.´ The term µOBJECT¶ means purpose or design. When we say common object, it means the object must be shared by all members of the assembly. It may be modified or altered or abandoned at any stage. Common object may be formed by express agreement after mutual consultation. The sharing of common object would, however, not necessarily require the member present and sharing the object to engage himself in doing an over act Therefore this section is inapplicable in a case of sudden mutual fight between two parties, because of lack of common object. .
y y y y y y
Thus, the essential ingredient of Section 149 are: Unlawful assembly as contemplated my section 141 of IPC. Accused was a member of such assembly. The accused voluntarily joined that assembly. He knew the common object of that assembly. An office was committed by one or few member of that assembly. Offense must be committed in prosecution of common object of that assembly.
CASES: y y
Om Prakash v/s State on 20/10/1955 Pahar Singh and Ors. v/s State Of Rajasthan on 14/10/1998
COMPARISON BETWEEN SECTION 34 AND 149:
y
Nature of Offense-
Section 34 is not a substantive offence it is only a role of evidence . It is always read with other substantive offences. Punishment cannot be imposed solely upon this section. For example if a person convicted u/s 302 r/w 34 of IPC can legally be convicted u/s 302 r/w 34. Whereas section 149 is a substantive offense, it can also be read with other sections. y
Principle element-
Common intention- The principle ingredient of section 34 is µcommon intention¶, any act which committed in furtherance of common intention attracts this section Common Object- The principle element of this section is Common Object, any act which committed in prosecution of common object will attract this section. y
Range of Principle element-
Common intention within the meaning of section 34, is undefined and unlimited. Whereas, common object is defined and is limited to the five unlawful objects stated in section 141 of IPC. Type of Offense y Common Intention requires under this section may be of ANY TYPE. Common object require under this section must be one of the object mentioned u/s 141 of IPC. Necessity y Prior meeting of mind is necessary before wrongful act is done under this section. Whereas under section 149, prior meeting of mind is not necessary. Mere membership of an unlawful assembly at the time of committing the offense is sufficient. Liability y Under section 34, it is a joint liability. A joint liability of a person is determined according to the manner in which he becomes associated with commission of the crime. It is of interpretative character. Under section 149, it is a constructive liability and vicarious liability . All the members of that assembly will be vicariously liable for that offence even one or more, but not all committed the said offence. Number of Person y Under section 34, minimum two people are required to attract this section. Whereas, under section 149, minimum five people are required to attract this section.
