In the words of Kenny: "One of the main purposes of criminal law is to
discourage tumultuous assemblage of men
". It is an undeniable fact that the
jurisprudence of criminal law has been ever evolving and it is very safe to say
that there are a lot of dynamic changes which are yet to take place in the
However no matter how dynamic the arena of criminal law becomes but certain
basic and fundamental tenants of criminal law will always remain same which are
namely 'Mens Rea'
coupled with a guilty act. In the same line , this
paper makes an attempt to shed light on the aspect of 'intention' and in the
further course of the paper comprehensively makes an attempt to examine and
carve out the similarities and differences between two of the very crucial
sections of the Indian Penal Code, 1860.
Under The Indian Penal Code, the concept of 'Constructive Liability
provided under section 34 & 149. Furthermore, 'Doctrine of Combination', will
also be discussed which talks about "An Act or series of acts done in
furtherance of common intention" or "An Act or series of acts done in
prosecution of common object" then all will be held liable as if it is done by
Section 34 of IPC is crucial in the sense that provides for Common Intention
which means prior meeting the of minds, pre-arranged plan or prior concert in
which participation by all is necessary, no liability will arise unless all
participates which says "Criminal Act is done by several persons
This is only a rule of evidence. In common intention "knowledge or sharing of
idea "is necessary. and Section 149 provides for Common Object in which
membership is necessary, offence is committed by any member held all liable
means liability of all even if one commits an offence.
In common object no prior meeting of minds requires, it does not share of idea
but only joining the group of idea. Both sections talk about joint liability or
group liability or plurality of persons. In section 34 all are liable for act of
all but in section 149 all liable for act of one this shows vicarious liability
principal which will discussed hereinafter.
The doctrine of 'Constructive Liability is an ever evolving doctrine and there
is an urgent need to set up limitations over the same.
- What is the criminal jurisprudence behind the Doctrine of Constructive
Liability enshrined under section 34 and 149 of I.P.C 1860?
- Which leading judicial precedents have led to the development of the
jurisprudential aspect of ss. 34 and 149 of I.P.C 1860?
Taking into account the nature of the present topic at hand, the researcher
found the qualitative method of legal research the most appropriate one in the
present case as the researcher, through the current article, the researcher
makes an makes an attempt to delve deeper into the jurisprudential aspect of the
rationale behind the incorporation of Ss. 34 and 149 into the Indian Penal Code
of 1860. by making the use of the qualitative method of legal research.
Further, it is mention-worthy that the researcher has placed adequate reliance
on the statutory provisions and judicial precedents to prove the contention of
A Comprehensive Analysis of Section 34 of The Indian Penal Code,1860
If a criminal act is done by several persons in furtherance of common intention
of all, then each of them are held liable as if the act were done by him alone.
In this section the first part "If a criminal act is done by several persons in
furtherance of common intention of all" is the condition & the second part "then
each of them are held liable as if the act were done by him alone" is
Elements of Section 34
Commission of A Criminal Act:
In doing of a criminal act participation of
all in group is required. It does not contemplate physical presence &
participation can be in different ways, which can be by physical presence or
even by distant directions. Physical presence is required in those cases, where
offence involve physical violence & offences which does not involve physical
violence then presence is not necessary.
Section 34 of IPC,1860 requires participation of all, it does not require
presence of all at one place. For example: If Murder is committed by the group,
then physical presence of all is necessary.
Relevant Case Laws:
In the case of Barendra Kumar Ghosh v. Emperor
it was the privy council
who identified and addressed the issue of common intention under the Indian
Penal Code, 1860. In the instant case Mr. Barendra Kumar Ghosh anong with 4
others was charged for the offence of murder of a man.
Barendra Kumar Ghosh and four others were charged with the murder of a man. The
prosecution alleged that all five accused had acted in furtherance of a common
intention. However, during the trial, the evidence suggested that only one of
the accused, Barendra Kumar Ghosh, had inflicted the fatal blow. The bench of
Lord Sumner held that even if a person who does not do anything but if he has
common intention, he will be held liable. The court said 'they also serve who
only stand and wait and watch'.
Section 34 of IPC deals with doing of a separate act, similar or diverse by
several persons, if all are done in furtherance of common intention of all, then
each person is liable for the result of them all as if he had done them himself.
In another case the Hon'ble Supreme Court cleared that "Physical presence is not
always necessary in all cases"
J.M, Desai v. State of Bombay
For instance, in Case of Criminal Breach of
Trust. The essence of liability in Section 34 is to be found in existence of
common intention & not in presence of accused. In offences involving physical
violence presence is required but in case offences at different places may be
done in different places and time, there presence is not required. Participation
does not mean presence and participation can be by overt act or covert conduct,
by active participation or distant direction.
Basically, several mean not one, so in this competent two must be there. At
least two persons must be involved in crime for invoking Section 34.For example:
Two persons are charged under section 302 read with section 34 of IPC, then if
one is acquitted then another cannot be held liable in Section 34 of IPC, that
another can be punished under section 302 without aid of section 34, if
prosecution can prove that he committed it alone.
Common Intention means prior meeting of minds, or prior concert. It requires
knowledge and sharing of each other's intention. Common Intention is not a same
thing as same or similar intention. In the case of Pandurang v. State of
Supreme Court differentiated between common intention and similar
The court held that several persons can simultaneously attack a man and each can
have the same intention, namely, the intention to kill, and each can
individually inflict a separate fatal blow and yet none would have the common
intention required by the specific section because there was no prior meeting of
minds to form a pre-arranged plan.
In another case, Mahboob Shah vs Emperor
fact of the case was that two
groups were fighting each other Mahboob Shah come from one direction and Wali
Shah comes from another, and one hits on upper part of opposite party body and
another hits on lower part and one person dies out of fighting. The question
arose before the court that can Mahboob Shah will be held liable of the act of
The court said that, the liability in Section 34 depends on common intention. In
this case there was no common intention between the two as they came from
different directions and there was no possibility of common intention. At best
it was a case of same or similar intention.
The act of any one in group must be in furtherance of common intention otherwise
section 34 can't be invoked. In this case, there was no circumstance whereby it
can be said that there was common intention.
- Common Intention may develop on the spot as well. (Eo-instanti)- At the
spur of moment.
- Common Intention must precede the criminal act.
- After the Amendment of 1870, Common Intention was added in Section 34 of
Detailed Analysis of Section 149 of Indian Penal Code, 1860
If an offence is committed by any member of an unlawful assembly in prosecution
of common object of that assembly, or such as the member knew it likely to be
committed in prosecution of common object of, then every person, who at the time
of committing offence was the member of the same assembly, then he is liable for
In this section there are parts first is 'If an offence is committed by an
member of an unlawful assembly in prosecution of common object or the member
knew it likely to be committed in prosecution of common object' is the condition
and the second one 'who at the time of committing offence was the member of same
assembly he is liable for that offence' the consequence of it.
Elements Of Section 149
Commission of An Offence By Any Member of An Unlawful Assembly:
offence means an act or omission which is/are punishable under the Indian Penal
Code is Offence and secondly committed by any member of an Unlawful Assembly.
Unlawful Assembly is define under Section 141 which talks an assembly of five or
more persons with object of committing crime such as 'to overowe by criminal
force central or state government or parliament or state legislature or to
public servant' or 'to resist the execution of law or legal process' or 'to
commit mischief or criminal trespass or other offence' or 'to take or obtain of
possession of any property which is not legally entitled' or 'to compel any
person to do something illegal'.
And the membership of an unlawful assembly is defined under Section 142 which
provides that a person become member of an unlawful assembly by two methods.
First is by intentionally joining it or secondly knowingly continues in it.
Relevant Case Law
In case of Emperor vs Kabil
1869 P.V., the fact of the case were that few
people in prosecution of common object went to commit mischief/other offence,
one of them goes to fetch a gun, in the meantime crime is committed, the
question was the absent member be held liable? The court said that, in the
meantime of offence committed he was also the member of unlawful assembly and
goes to fetch a gun in prosecution of fulfilling the common object, so he is
In Prosecution of Common Object
Anything done to achieve common objectobject, here all members must know the
common object of that assembly, any sudden or unpremeditated act done by any
member will not make others liable and this is the reason in sudden fight etc,.
why section 149 is not invoked, is there is nothing which is in common object.
Relevant Case Law
In case of Mizaji vs State lf Uttar Pradesh
1959 S.C. , the fact of the
case were that some people armed with deadly weapon for taking possession of
land and death of one caused in scuffle, then all will be guilty of murder U/S
302 read with Section 149 of Indian Penal Code, and the court said that, from
the conduct of member of unlawful assembly it appeared that they were prepared
to take forcibly possession of land at any cost. In prosecution of common object
means whatever is done to achieve common object.
The concept of Joint Liability, Group Liability are given under section 34 &
149, and vicarious liability is under section 149. Section 34 provides acts by
several all are liable and section 149 provides act by any member of unlawful
assembly all are liable. You can punish a person for being a member of an
unlawful assembly because membership of an unlawful assembly is a substantive
offence it is punishable U/S: 143 & 144 itself. But Section 34 does not provide
It is not a substantive provision. It does not create an offence. It is only a
rule of evidence which will work with paired only with some other sections like
section 120A defining criminal conspiracy, section 120B which define punishment
for criminal conspiracy.