RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA

CONSTRUCTIVE JOINT LIABILITY

UNDER CRIMINAL LAW
(WITH SPECIAL REFERENCE TO S. 34 & S. 149 OF IPC.)
ARNAV BISHNOI

ROLL NO. 15244

GROUP NO. 22

Submitted to: Dr. Ivneet

Walia.
INDEX

ACKNOWLEDGMENT .................................................................................................................... 3

INTRODUCTION .............................................................................................................................. 4

JOINT CRIMINAL LIABILITY: DEFINITION & OVERVIEW ............................................... 6

SECTION 34 OF INDIAN PENAL CODE, 1860.......................................................................... 10

GUIDING PRINCIPLE OF COMMON INTENTION ............................................................ 11

The Common Intention should be Prior to the Occurrence & Could develop on the Spot . 12

PARTICIPATION IN THE CRIMINAL ACT ...................................................................... 13

Section 35, when such an act is criminal by reason of its being done with a criminal
knowledge or intention ................................................................................................................ 14

UNLAWFUL ASSEMBLY (S. 141 & 149) .................................................................................... 16

What Constitutes Unlawful Assembly ..................................................................................... 16

What is the Common Object of Unlawful Assembly ................................................................ 17

Essential Elements of Membership of Unlawful Assembly ...................................................... 18

DIFFERENCE BETWEEN S. 34 & 149, IPC ............................................................................... 19

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ACKNOWLEDGMENT

Upon the successful completion of this project, I would wish to thank everyone who has been a part
of it. First and the foremost I thank Dr. Ivneet Walia for the clear concepts which she provided us
about the principles of criminal law, which rendered great support during the drafting of this
submission.
I also thank Ivneet Ma’am for solving all my queries regarding the intricacies regarding the topic
and thus helping with the drafting of submission in the best possible way.

At last, my heartiest gratitude towards all the respected authors of the numerous books, Articles and
websites that I have referred to, during the research process for this submission. It is truly said,
Books are our best friends.

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 1. INTRODUCTION
When an offence is committed by one person only, then there is no difficulty in determining his
guilt, but when it is committed by two or more persons the question arises “How far is each one of
them liable?” The question is much more difficult to answer where the offence does not consist of a
single act or omission but consists, as is generally the case, of a series of acts or omissions, and only
some part of such series is executed by a person acting in concert with others.

Let’s take one example to understand what actually Joint liability is and which will be explained in
the project by various provisions in the Indian Penal Code.

W,X, Y and Z plan the abduction of A’s Wife for a morally wrong purpose. Z goes to A’s house
when A is not at home so as to detain his wife in the house and see that she cannot escape. While Z
is talking to A’ wife, Y turns up at A’s house and says to his wife that he has heard the news about
A’s accident, while this happened X turns up with car and says that A’s wife presence at the hospital
is must, and they should all rush for hospital immediately.

Here, they deceived A’s wife at the first instance and thereby took here to W’s house, where she is
detained. Here, each of the co-conspirator does a different act. Here if see the role of Z is above
suspicion, but the entire four people share a common intention which is criminal in nature and is
crime itself irrespective of what role one played while constituting the crime.

The plan they made, which consists of different acts, is in consonance with one single goal they
have in mind. The question raised here is, whether these persons will be liable for the whole of the
crime, i.e. the end result, which adds up the acts of all the co- conspirators or would they, be liable
in their personal capacities only.

Section 34 to 38 of the IPC governs criminal liability of individual members of such a group for
accomplishing the criminal act through a concerned criminal endeavor. Section 34 deals with
liability of an individual for sharing ‘intention when several persons’ and participating in the
‘criminal act’ done in furtherance of the common intention of all.1

1
Learning Centre, Constructive Joint Liability. (Available at: https://advocateguru.com/constructive-joint-liability/)
Accessed on: 24/Sept/2017.
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The project will talk about how Joint Liability is established in the Indian Penal Code, 1860. The
same has been explained vide Section 34-38 and also special emphasis has been given to Section
149 of IPC and with the help of various case laws regarding it.

Though the Example stated above might have provoked the mind to think upon what actually joint
liability is and also it somehow might have made some imprint on our mind as to explain what joint
liability is in case of a criminal act. But, even then the project starts with defining and explaining
what Constructive Joint liability is actually in abridged form.

The essential elements while establishing joint liability in both Sections 34 and 149 have been dealt
along with the major differences in both these Sections so as to make it clear the differences in both
of the Joint Liability.

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 2. Joint Criminal Liability: Definition &
Overview
 What is Liability?2

Liability according to the Merriam- Webster dictionary of English is stated below in brief:

1. The quality or state of being liable,

2. Something for which one is liable,
3. One that acts as a disadvantage (Drawback),
4. Accountability and responsibility to another enforceable by civil remedies or
criminal sanctions.

Liability means legal responsibility for one's acts or omissions, Failure of a person or entity to meet
that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to
perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party
(plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are shown to be
true. This requires evidence of the duty to act, the failure to fulfill that duty, and the connection
(proximate cause) of that failure to some injury or harm to the plaintiff. Liability also applies to
alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a
crime, thus making him/her subject to conviction and punishment.3

For example: Ram while going in his car jumps the red light suddenly and at that very instance Seta
was crossing the road, Ram hits Seta and due to which she suffers injury. Here, Ram had a duty to
follow the rules and regulations and also not to hurt anyone. But, Ram breached his duty due to an
omission to follow the rules, thus Ram shall be liable. Also in this case if the car was registered in
the name of Ram’s father than his father too being the owner of the car will be statutorily liable in
this present situation according to the established laws of the land.

 JOINT CRIMINAL LIABILITY

2
Liability, Merriam- Webster Dictionary, Available at: https://www.merriam-webster.com/dictionary/liability (Accessed
on: 24 Sept 2017).
3
Gaur KD, A Textbook on Indian Penal Code, 2015, Fifth Edition, Universal Law Publishing Co.

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Joint criminal liability or joint criminal enterprise, hereinafter referred to as JCE, is an important
concept in international criminal law. The development of JCE has been controversial from the
beginning, and many scholars have called for limited and cautious application of a principle that
could lead to “guilt by association.”

Before stepping in deep, it is important to understand the basics of JCE liability. A “joint criminal
enterprise” is not an element of a crime.4 Rather, joint criminal enterprise is a mode of liability
whereby members are attributed with criminal culpability for crimes committed in furtherance of a
common purpose, or crimes that are a foreseeable result of undertaking a common purpose.5

There are three different forms of JCE: the “basic” form (“JCE I”), the “systemic” form (“JCE
II”), and the “extended” form (“JCE III”).6 All forms of JCE share a common Actus Reus,
consisting of the following elements:

1. A plurality of persons acting in concert7;

2. The existence of a common plan, design or purpose which amounts to or involves the
commission of a crime provided for in the Statute;

3. And, The Accused “significantly” contributed to the common plan, design, or

purpose.8

The three forms of JCE differ according to the Mens Rea of the Accused. JCE I liability attaches
when an Accused intended to participate in a JCE and intended the commission of a crime or crimes
to further the JCE’s common plan. The Accused can be held liable for a crime even if he was not
directly involved in its physical perpetration, as long as his contribution to its commission was
“significant.” 9

4
The ICTY Appeals Chamber first recognized JCE as a mode of liability under customary international law in
Prosecutor v. Tadić, Case No. IT-94-1-A (Appeals Chamber), Judgment, ¶¶ 189-229 (July 15, 1999) (hereinafter
“Tadić Appeal Judgment”).
5
IBID
6
Tadić Appeal Judgment, ¶ 190; Prosecutor v. Vasiljević, Case No. Case No. IT-98-32-A (Appeals Chamber),
Judgment, ¶ 95 (Feb. 25, 2004) (hereinafter “Vasiljević Appeal Judgment”)
7
Tadić Appeal Judgment, ¶ 227; Prosecutor v. Krajišnik, Case No. IT-00-39-T (Trial Chamber), Judgment, ¶ 884 (Sept.
27, 2009).
8
Jennifer Easterday, Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special
Court of Sierra Leone, 3 Publicist 36, 46 (2009).
9
IBID
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JCE II requires that the Accused had personal knowledge of a system of ill-treatment and intended
to further that system. 10

JCE III is a constructive form of liability.11 Once it has been established that an Accused was a
member of a JCE, he can be held liable for unintended but foreseeable crimes that were committed
in furtherance of the JCE’s common plan. For both JCE and JCE III, the Accused and all members
of the JCE and I must intend to participate in the same common criminal plan… This means that all
members of the JCE must share the same intent; JCE III extends liability for crimes committed
outside the common criminal plan that were committed in furtherance of the common plan and were
a natural and foreseeable consequence of that plan.12

There are several provisions in the Indian Penal Code which determine the liability of a person
committing a crime in combination of some others. In these cases, the persons committing it, either
have common intention or common object.13

In IPC, the criminal liability is determined by the person who is associated with the crime. There are
several ways in which a person becomes a participant in a crime-

1. He himself commits it,

2. He shares in the commission of the crime,
3. When he sets a third party to commit the crime,
4. Helps the offender, in screening him from Law.14

 The second point is what joint liability is?

10
Id., ¶ 228.
11
David L. Nersessian Whoops, I Committed Genocide! The Anomaly of Constructive Liability for Serious International
Crimes, 30 FLETCHER F. WORLD AFF. 81, 87 (2006) (“Liability is ‘constructive’ because the actus reus and mens
rea that establish liability fall outside the ordinary legal definition of the crime.”).
12
According to the Tadić Appeal Judgment, JCE III arises in cases “involving a common design to pursue one course of
conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a
natural and foreseeable consequence of the effecting of that common purpose.” Tadić Appeal Judgment, ¶ 204.
13
Om Prakash vs. State, AIR 1956 ALL 241 (India).
14
Raghavendra Pratap Singh, Common Intention and Common Object, Academike (ISSN: 2349-9796), Available at:
https://www.lawctopus.com/academike/common-intention-common-object/ (Accessed on: 24 Sept 2017).

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Basically, sections 34-38 and 149 of IPC deals with situations where joint criminal liability is
formed. These Sections will now be discussed (in the coming part) in light of the above Chapter
regarding Joint Liability of persons in case of criminal act.

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3. SECTION 34 OF INDIAN PENAL CODE, 1860
Acts done be 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 the persons is liable for
that act in the same manner as if it were done by him alone.

OBJECT: This Section is intended to meet cases in which it may be difficult to distinguish between
the acts of the individual members of a party or to prove exactly what part was taken by each of
them in furtherance of the common intention of all.15 The reason why all are deemed guilty in such
cases is that the presence of accomplices gives encouragement, support and protection to the person
actually committing an act.16

When many persons armed with deadly weapons move together and cause fatal injuries to the
victim, all of them have to be held equally liable by virtue of the provision in Section 34.17

This Section is only a rule of evidence and doesn’t create a substantive offence; therefore, it
(Sec. 34) would apply even if no charge is framed under that section provided of course from
the evidence it becomes clear that there was pre- arranged plan to achieve the commonly
intended object.18

There are three main ingredients of the section:

1. A criminal act must be done by several persons,

2. The criminal act must be to further the common intention of all, and
3. There must be participation of all persons in furthering the common intention.19

This Section is based on the common sense principle that when several persons are alleged to have
committed a criminal act, then there is every possibility that different members would have actively
given encouragement, help, protection and support, as also actively participated or otherwise
engaged in the commission of the criminal act itself. Thus, even though a particular act may have
been committed by an individual, where common intention exists, and they had all acted in
furtherance of that common intention, then all of them are held liable for the offence.

15
Mepa Dana, (1959) 62 Bom LR 269 (SC).
16
Ratanlal & Dhirajlal, Indian Penal Code, ed. 23, Lexis Nexis Publishers, 2013.
17
Balwant Singh v. State of Punjab, (2008) 12 SCC 237: AIR 2008 SC 1245: 2008 Cr LJ 1648.
18
Garib Singh v. State of Punjab, AIR 1973 SC 460.
19
Parichhat v. State of Madhya Pradesh AIR 1972 SC 535.
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 3.1 GUIDING PRINCIPLE OF COMMON INTENTION

It has been laid down that if two or more than two persons intentionally do a thing jointly in
furtherance of a common intention, it is just the same as if each of them had done it individually. As
20
noticed in Barendra Kumar Ghosh v. King Emperor (The case where the Sankritola post master
was being killed by a group of people who had came there to rob the post office), the section deals
‘with the doing of separate acts, similar or diverse, by several persons, if all are done in furtherance
of a common intention, each person is liable for the result of them all, as if he had done them
himself.

The principle that the provision only lays down the rule or principle of joint liability and doesn’t
create a separate offence was considered by the Supreme Court in Gurdatta Mal v. State of Uttar
Pradesh.21 Here, the question that arose was over the operation of Sec. 34 in the context of the right
to private defence as provided in Sec. 96, IPC. In this case, the accused persons were alleged to
have attacked the deceased person’s party in the agricultural fields of latter party when they were
harvesting the crop. Earlier on the same day, the deceased, Gurcharan Lal, had given a written
complaint of threat at the police station, that resulting in two police constables being sent along with
them. The complaint side had also taken a photographer with them. As harvesting was proceeding,
the accused party armed with guns, spears and lathis entered the field despite the warning of the
police constable, and shot at the complaint party killing three persons including the photographer.
The defence of the accused was that there was a dispute existing over possession of the land, and
that it was the complainant party which had attacked them, and that they had exercised their right to
private defence of property. It was also their stand that they didn’t have any intention to kill the
deceased. It was in this context that the Supreme Court observed:

“It is well settled that Section 34 of the IPC doesn’t create a distinct offence: it only lays down the
principles of Joint Criminal Liability. The necessary conditions for application of Section 34 of the
code are common intention to commit an offence and participation by all the accused in doing act or
acts in furtherance of that common said offence; that is to say that if two or more persons had

20
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1, p. 7.
21
Gurdatta Mal v. State of Uttar Pradesh, AIR 1965 SC 257.
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common intention to commit murder and they had participated in the acts done by them in
furtherance of that common intention, all of them would be guilty of murder.”22

 The Common Intention should be Prior to the Occurrence & Could develop on the
Spot:

The general principle is that common intention as defined in Section 34 implies a pre- arranged plan
and to convict an accused, it should be proved that the criminal act was done in concert pursuant to
the pre- arranged plan. This was emphasised by the Supreme Court in Pandurang v. State of
Hyderabad23, in which it was elaborated as follows:

“Now in the case of Sec. 34, we think it is well established that a common intention pre- supposes a
prior concert. It requires a pre- arranged plan before a man can be vicariously convicted for the
criminal act of another; the act must have been done in furtherance of the common intention of all...
Accordingly, there must have been a prior meeting of minds. 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.24

In this case, the Supreme Court, however, did notice the fact that prior consent need not be
something always very much prior to the incident, but could well be something that may develop
on the spot, on the spur of the moment.

 Thus, Common Intention may develop during the Course of the Occurrence and could
develop on the Spot.

In such a case, however, there should be cogent material available on the basis of which the court
can arrive at a finding and conclusion that the accused are vicariously liable for the act of the other
accused.

This principle was being explained in length by Justice Bose in the case of Pandurang v. State of
Hyderabad25, which has been cited above. According to him, the plan need not be elaborate nor is it

22
Supra note 20.
23
AIR 1955 SC 216.
24
Ibid, at Para 37. The Supreme Court relied on Mahboob Shah v. Emperor AIR 1945 PC 118 & Barendra Kumar
Ghosh v. King Emperor AIR 1925 PC 1.
25
IBID
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necessary that a long interval of time is required. It could arise and be formed suddenly. For
example, if a man shouts at bystanders asking them to help him to kill a particular person, and they
through their acts or speech, extend their support to him and also actually join him. In such a case,
there has been a necessary meeting of minds, however, hastily formed or rudely conceived, a pre-
arranged plan has come into existence. Since pre- arrangement and pre- mediated concert are
essential ingredients to the offence of joint liability, in such a situation, the acts of the various
persons will be liable for coverage under the provisions of Section 34, IPC.

PARTICIPATION IN THE CRIMINAL ACT

The second and important limb for the operation of the principle of joint criminal liability is the
necessity of participation in the criminal act by all those who are charged with the offence.
Participation is thus a necessary element or condition precedent to a finding of joint liability.
Interestingly, a question arose in the context of conviction under S. 409 r/w S. 34, IPC, for
misappropriation by a public servant. The question was whether the direction of the trial judge to the
jury that despite the non- presence of the accused when the offence was actually committed, if the
accused remained behind the scene, he can be convicted under Sec. 34 was proper and legal. The
Supreme Court in Shreekantiah Ramayya Munipalli v State of Bombay26, (It is significant to note
that in this case, there was alleged misdirection to the jury by the trial judge, which was upheld by
the Supreme Court. Though the jury system for conduct of trials was scrapped in India by the major
changes introduced in 1973, the principle enunciated by the Supreme Court however remains valid.)

Here the Court elaborated thus: “It is essence of the section that the person must be physically
present at the actual commission of the crime. He need not be present in actual room, he can, for
instance, stand guard by a gate outside ready to warn his companions about any approach of danger
or wait in the car on a nearby road ready to facilitate their escape, but he must be physically present
at the scene of the occurrence and must actually participate in the commission of the offence in
some way or the other at the time crime is actually committed. The antithesis is between the
preliminary stages, the agreement, the preparation, the planning which are covered by S. 109 and the
stage of commission when the plans are put into effect and carried out, S. 34 is concerned with the
later.27

26
Shreekantiah Ramayya Munipalli v State of Bombay , AIR 1955 SC 287
27
IBID, Para 23.
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While participation in action is a necessary condition for liability under S. 34, it is not necessary in
all cases for participation to be in the form of physical presence. This principle came to be explained
as the ratio in Shreekantiah case28 that the 1st accused could not held to be liable as he was not
present at the scene of occurrence, came to be pressed in another case of misappropriation. The
Supreme Court explained that the ratio developed in Shreekantiah’s29 case couldn’t be considered
to lay down a principle of universal application, as it was suited only to peculiar facts of that case
alone. Thus, in Jaikrishnadas Manohardas Desai v. State of Bombay,30 it was explained that in
offences involving physical violence, presence of the accused, apart from participation, was
essential. However, in other cases involving non- physical violence, like in cases of
misappropriation, cheating and the like, physical presence couldn’t be a condition precedent to come
to a finding of joint liability...

Thus, for applying S. 34, it is not necessary to show, as a rule, some overt act on the part of the
accused.31 The establishment of an overt act is not a requirement of law to allow S. 34 to operate. A
criminal act done in furtherance of intention of all by an accused need not be overt, even a deliberate
and conscience and covert act is enough to bring such a person within the ambit of S. 34.32

 Section 35, when such an act is criminal by reason of its being done with a criminal
knowledge or intention.

Section 34 deals with an act pursuant to the formation of a common intention. S. 35 create what is
known as ‘like intention’. Section 34 raises the issue of criminality because of participation in the
intention. S. 35 stipulates, however, that when an act is criminal by reason of its being done with a
criminal intention or knowledge, each of such persons who join in the act with the same knowledge
or intention will be liable for the action as though committed by him alone. However, if the
individuals act differently in intention and knowledge then they’re liable only to the extent of their
intention or knowledge. Importantly, for S. 34, there is no need to prove intention or knowledge as
against each accused. In any case for a charge under S. 34, the accused can rebut the charge by
setting up an intention which is not criminal. However, under S.35, the accused has nothing to rebut
unless the prosecution has proved criminal intention or knowledge as against each accused. Thus,

28
Shreekantiah Ramayya Munipalli v State of Bombay , AIR 1955 SC 287
29
IBID
30
Jaikrishnadas Manohardas Desai v. State of Bombay, AIR 1960 SC 889, Cr LJ 1250 (SC).
31
Hari Ram v. State of Uttar Pradesh, (2004) 8 SCC 146.
32
State of Uttar Pradesh v. Pavitri Devi (2001) Cr LJ 1462 (SC).
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liability under S. 34 is for common intention, for offence under S. 35, the extent of criminal
intention or knowledge as against each accused.

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 4. UNLAWFUL ASSEMBLY (S. 141 & 149)
The two terms which run throughout chapter 8, IPC (S. 141- 148) are ‘Unlawful Assembly’ and
‘Common Object’. S. 149 provides for vicarious liability of those who are proved to have shared
the common object of the unlawful assembly. To understand the entire scope of the law, it will be
more fruitful to study the general principles underlying the law regarding liabilities of persons who
are alleged to be members of an unlawful assembly.

Section 141 Unlawful Assembly: An assembly of 5 or more people is designated an “unlawful

assembly”, if the common object of the persons composing that assembly is...

Here, all the persons involved must have a common object. The word “Object” means purpose or
design. In order to make it ‘common’, all the persons who compose an unlawful assembly must
share it.33 The same object may not necessarily be ‘common’ object, and it becomes so only when it
is known to and shared by all the members of the assembly. In other words, the expression ‘common
object’ implies that the object must be shared and possessed by all the members of the assembly.

It is to be noted that the object must be one of those specified in Section 141 only, they are:

i. Overawing the Central or a state govt. Or its officers,

ii. Resistance to the execution of legal process,
iii. Commission of mischief, criminal trespass or any other offence,
iv. Forcible possession and dispossession of property,
v. Illegal compulsion.34

Section 149; Every member of unlawful assembly guilty of offence committed in prosecution of
common object.

 What Constitutes Unlawful Assembly?

An unlawful assembly must have a minimum of five persons who are part of it and share the
common object. A combined reading of S. 141 & 149 reveals that if the assembly is of less than 5
persons, it will not be an unlawful assembly within the meaning of S. 141 and therefore cannot form

33
Sheikh Yusuf v. Emperor, AIR 1946 Pat. 127
34
The first and the last two clauses (except third clause) envisage the use of criminal force or show of criminal force as
an essential part of the activity.
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the basis of conviction under S. 149, IPC. This principle was stated in Subran @ Subramanian v.
State of Kerala.35 In this case, six named accused were alleged to have formed an unlawful
assembly and killed the deceased. While the first accused was convicted under S. 302, others were
convicted for committing offence under S. 326 R/W 149, IPC, amongst other offences. The H.C. of
Kerala, however, acquitted two persons without a finding that there were some other unknown
persons also involved in the offence, implying that the two persons was not part of the assembly.
Thus, there were only four persons proved to have been part of the assembly. The Supreme Court
held that the existence of an unlawful assembly is a necessary postulate for invoking S. 149, IPC.
Where the existence of such an unlawful assembly is not proved, the conviction with the aid of S.
149 cannot be recorded or sustained. The failure of the prosecution to show that the assembly was
unlawful must necessarily result in the failure of the charge under S. 149, IPC. Thus, the accused
were acquitted of offences under S. 326 R/W S. 149, IPC and they were convicted for their
individual acts U/S 325 & 326, IPC, respectively.

Thus, a clear finding regarding the common object of the assembly must be given where the Court
convicts any person or persons of an offence with the aid of S. 149, IPC. The evidence discussed
must not only show the nature of the common object, but also that the object was unlawful. Since S.
149 creates a specific offence and deals with the punishment of that offence, before recording a
conviction under S. 149, the essential ingredient of S. 141 must be established. What is to be noted
is that the emphasis is on common object.36 Also, the prosecution must prove that the accused were
a part of the unlawful assembly at the time when the assembly became unlawful.

Recently, in State of Haryana v. Shakuntala37, The S.C., reiterated the previous view that S. 149 is
a substantial offence, stressed that whenever a court convicts any person or persons of any offence
with the aid of S. 149, the evidence relied upon by it must disclose not only the nature of the
common object but also that the object was unlawful. It must show that the incriminating act was
done to accomplish the common object of the unlawful assembly.

 What is the Common Object of Unlawful Assembly?

35
Subran @ Subramanian v. State of Kerala, (1993) 3 SCC 32, (1993) Cr LJ 1387 (SC).
36
Bhudeo Mandal v. State of Bihar, AIR 1981 SC 1219.
37
State of Haryana v. Shakuntala , AIR 2012 SC 2133, Para 40.
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The emphasis of the offence of unlawful assembly is the common object of the members of the
assembly being unlawful. Thus, in Bhudeo Mandal v. State of Bihar,38 the SC held that before
convicting any person with the aid of S. 149, IPC, the evidence must clearly establish not only the
common object, but also show that the common object was unlawful. In the absence of evidence that
there was either an unlawful object or the accused has shared it, conviction under S. 149 is not
sustainable.39

 Test for inferring common object: It is not necessary that any specific act be attributed to
each one of the accused persons. It was held that it is sufficient if the evidence established
that all the members of the unlawful assembly shared the common object of the unlawful
assembly. In Fatte v. State of Uttar Pradesh,40The Supreme Court declared that lack of overt
act being ascribed to anyone of the accused may not itself be used to disprove the charge U/S
149, IPC. But the question of whether the members the members shared the common object
is something which has to be examined on the facts and circumstances of the case.

Essential Elements of Membership of Unlawful Assembly: The Supreme Court emphasised that
the test for finding out membership of unlawful assembly was whether the accused was one of the
persons constituting unlawful assembly and shared the common object along with other co- accused.
Each individual need not be shown to have committed any specific act.

38
Bhudeo Mandal v. State of Bihar AIR 1981 SC 1219.
39
Ramashish Yadav v. State of Bihar, AIR 1999 SC 3830.
40
Fatte v. State of Uttar Pradesh, AIR 1979 SC 1504.
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 5. DIFFERENCE BETWEEN S. 34 & 149, IPC
 The differences in the ingredients under section 34 and section.149 may be tabulated as
follows41:

Section 34 Section 149

(I) The common intention

may be of ‘several persons’,
(I) There must be an unlawful assembly of five or more persons.
i.e., more than one person.

(ii) There must be a prior

concert and meeting of minds (ii) There need not be any prior concert and meeting of minds;
of the several persons. it is enough that the number of persons is 5 or more and their
common object is the commission of an offence.”

(iii) The pre-condition is the formation of an unlawful assembly,

(iii) What is essential is the
having for its common object the commission of any of the
formation of the ‘common
offences mentioned in s. 149. Once this is formed each member of
intention.”
the unlawful assembly will be liable for any offence committed in
furtherance of the common object even though he might not have
done it with his own hands.

(iv) Section 149 is wider and is applicable not only where the act
done was the same as was intended but also where it is a different
(iv) Section 34 is applicable
act, provided it is immediately connected with the common object
only where the act done is
of the assembly or an act which the members of the assembly knew
the same act which was
to be likely to be committed in prosecution of that object.
intended by way of common
intention.

41
Md. Saddam Hossen, Principles of Joint Liability with Special Reference to Sections 34, 109 and 149 of the Penal
Code,1860 BDLD - Bangladesh Law Digest (2015), http://bdlawdigest.org/principles-of-joint-liability.html (last visited
Sep 25, 2017).
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