Q-Define Section 34, and Section 149.
Or
Differentiate between common intention
and common object.
Or
Explain the law relating to joint offenders
under the IPC.OrExplain the facts and principles laid down in Barendra
Kumar Ghosh V/sEmperor (AIR 1925 PC 1)
Answer;
Introduction;
The general principal
of Criminal Liability is that, it is the primary responsibility of the person
who actually commits an offence and only that person who has committed crime
can be held guilty. However constructive liability may arise under the Indian
Penal Code, 1860
A person may be
constructively liable for an offence which he did not actually commit.
These persons,
although, not positively participate in the commission of the offence, but they
actively participate in occurrence of the offence;
a)
By Sharing
Common Intention as suggested as defied U/sec. 34 of The IPC;
b) Or b) By way of Common Object as suggested and
defined U/sec. 149 of The IPC;
c) Or c) By way of Criminal Conspiracy as suggested
and defined U/Sec. 120A of The IPC.
There is a close
resemblance between common intention and common object. Both of them belong to
a different categories of offence in criminal law.
Sec 34 and sec 149 of Ipc
embodies the rule of constructive liability which means that a person is liable
for the consequences of an act of another person but sec 34 and sec 149 should
not be mixed up together. The rule of common intention in sec 34 and sec 149 are not synonymous in
any way and they have got their distinguishable features. The sec-34 of
IPC explain the principle of joint liability in doing the criminal act with
common intention. A joint liability of a person determined according to the
manner in which he associate with constitution of crime.
RELEVANT PROVISIONS:
·
Sec 34 for Common
Intention
·
Sec 149 for Common
Object
The Principle of
Common Intention:
·
Section 34
of IPC is related with doctrine of common intention.
·
Section 34
- Acts done by several persons in Furtherance of Common Intention: "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."
Essential ingredient of
S.34:
1.
There must be two or more persons.
2.
They must
have a common intention.
3.
The act is done in furtherance of common
intention of all.Cases:
If the above
conditions are satisfied, each of the accused person would be liable for the
resulted Criminal Act as if it were done by him alone. Common Intention
Common intention
1. Common intention means following:
a) Concerted action.
b) Knowledge of each other's intention and
sharing thereof.
c) Prior meeting of minds.
2)Common intention is
essential ingredient of Sec. 34. Common Intention must not be confused with same
or similar intention.
3) Presence of common
intention is a question of facts and circumstances.
4) Common intention must be strictly proved.
Courts cannot infer common intention readily.
Difference between Common intention, same or similar intention
1) In Mehboob Shah case , it was held that common intention and same
intention are different. The difference or distinction may be few but it is
real and substantial.
2) Sec. 34 requires common intention. Concerted Action is the essence
of the term. In case of same or similar intention there is no concerted action.
1) Sec. 34 does not create any offence. It is a deemed provision and
not a penal provision. It only provides for a rule of evidence.
2) Since Sec. 34 does not create any substantive offence no charge is
required to be framed U/s 34
Furtherance of Common
Intention
1) Presence of common
intention is not enough. Its furtherance must also be proved.
2) Furtherance suggests participation or
performance of some role. It was held that in a planned murder, one of the
persons played the role of keeping of people from coming to the rescue of
deceased. He and others were held guilty of murder u/s 302 read with Section
34.
3) It is not necessary
that the roles should be same. Acts of the accused persons may differ.
4) Word 'Furtherance' enlarges the scope of
Sec. 34. The accused persons would be liable for a criminal act done in
furtherance of common intention though it is different from what was commonly
intended.
5) Where one of the accused persons develops
an independent intention, the act done in furtherance thereof shall be his
individual act and other co-accused persons would not be liable.
6) In the case of Barendra Kumar Ghosh vs.
Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in Section
34 which means the unity of criminal behaviour which results in some thing for
which an individual would be punishable if it were all done by himself alone in
an offence. Even if the appealant did nothing as he stood outside the door it
is to be remembered that in crimes as in other things "they also serve who
only stand and wait."
7) In the case of Mehboob Shah vs. Emperor AIR
1945 PC 118: Common intention implies a pre arranged plan, prior meeting of
minds, prior consultation in between all the persons constituting the group
Common Intention Must
Precede the Criminal Act
1.
Common
intention must precede the criminal Act; the time interval between them may be
narrow or 7 wide.
2. In the case
of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It is held that there
need not be a long interval of time between the formation of the common
intention and the doing of the Act.
3. Common intention may develop even on the spur
of momen
4. Nandu rasto v/s state of Bihar:Criminal conspiracy is the essential
ingredient of commonintention u/s34, of
IPC. Participant in criminal act in some mannerwas also essential but
physical presence at scene of occurrence isnot always necessary.
5. Barendra Kumar Ghosh v/s Emperor:It has been observed that though
the accused did not played anyrole to kill the post master but he was standing
outside to – standand wait , which prove he was helping in the
criminal conspiracy.
6. •Private defense:In
Subramanian v/s State of Tamil Nadu, -That if
the appellant acted in exercise of their right of private defense of
property it cannot be said that they committed a criminal act in
furtherance of a common intention because it is protected u/s 96 of
IPc.
Common object
Introduction : Section
149, like Section 34, is the other instance of constructive joint liability.
Section 149 creates a specific offence.
One of the essential ingredient of Section 149 is that, the offence
must have been committed by any member of unlawful assembly. Sec. 141 of The
IPC makes it clear that, it is one of the essential condition of an unlawful
assembly that its member must be more than
Principle of vicarious liability.
This section is the declaratory of theprinciple of vicarious liability
of the members of an unlawful assemblyfor acts done in prosecution of common
object of that assembly, all the members of
that assembly will be vicariously liable for that offence evenone or more, but
not all committed the said office.
Common
Object:- Section 149, like Section 34,
is the other instance of constructive joint liability. Section 149 creates a
specific offence. It runs as under:
“If 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 of
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 assembly, is guilty of that offence.”
Elements Of
Section 149:- The essence of offence under
Section 149 is assembly of several (five or more) persons having one or more of
the common objects mentioned in Section 141 and it could be gathered from the
nature of the assembly, arms used by them and the behaviour of the assembly at
or before scene of occurrence. Section 149 creates joint liability of all
members of an unlawful assembly for criminal act done by any member in
prosecution of the common object of the said assembly. So the essential ingredients
of Section 149 are:
1. There must be an unlawful assembly, as defined in
Section 141;
2. Criminal act must be done by any member of such
assembly;
3. Act done is for prosecution of the common object of
the assembly or such which was likely to be committed in prosecution of the
common object;
4. Members have voluntarily joined the unlawful assembly
and knew the common object of the assembly.
5. Mere presence and sharing of common object of the
assembly makes a person liable for the offence committed even if he had no
intention to commit that offence.
The Section is divided into two parts-
1.In
Prosecution Of The Common Object:- The words “in
prosecution of the common object” show that the offence committed was
immediately connected with the common object of the unlawful assembly of which
accused were members. The act must have been done with a view to accomplish the
common object of the unlawful assembly.
2. Members
Knew To Be Likely:- The second part relates to a situation
where the members of the assembly knew that the offence is likely to be
committed in prosecution of the common object. A thing is likely to happen only
when the situation is like “it will probably happen” or “may very well happen”.
The word ‘knew’ indicates a state of mind at the time of commission of an
offence, knowledge in this regard must be proved. The word ‘likely’ means some
clear evidence that the unlawful assembly had such a knowledge.
Difference between Section 34 and
section 149 of IPC
|
Base |
Section34 |
Section 149 |
|
Nature of Offense |
This
section is not a substantiveoffice it is only a role of evidence. it always
read with other substantiveoffices. Punishment cannot be imposed solely upon this section .For
example if a person convictedu/s 302 r/w 34 of IPC can legally beconvicted
u/s 302 r/w 34 |
This
section is a substantive offense, it
alsoread with other sections. Punishment canbe imposed solely upon this section Where
as prosecution file a charge sheet u/ 149 the
court me convert it to section 34 andimpose conviction |
|
PRINCIPAL
ELEMENT |
The
principal ingredient of the sec is common intention,any act which committed
in |
The
principal sec is common object by the act which is committed in prosecution
of common object which attract the section |
|
Range of
principal element |
Common
intention within the meaning of sec-34 is undefined and unlimited |
Common
object is defiend limited to five unlawful object stated in sec-141 |
|
Type of
ofence |
Common
intention resulting under the section may be of any type/ |
Common
object resulting under the sec one of the object mention in u/s-141 of IPC |
|
Meaning |
Criminal
act is done by several persons in furtherance of Common intention |
Five or more persons commit offence
in prosecution of common object. |
|
Definition: |
Section 34 of the Indian Penal Code
Defines Common Intention 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. |
According to Section 149 of the
Indian Penal Code If 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 of 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. |
|
nacessity |
In Common Intention, prior meeting
of Mind is essential. |
Prior meeting of Mind is not
necessary. |
|
Number of Persons |
Number of Persons must be more than
one. |
Minimum numbers of Person
must be five to constitute an unlawful assembly. |
|
liable |
All persons involved in the
Commission of offence shall be equally liable |
All persons may or may not be
equally liable. |
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