Section 149, I.P.C. makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
The section creates a constructive or vicarious liability of the
- members of the unlawful assembly
- for the unlawful acts committed
- pursuant to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.
The word ‘object’ means the purpose or design and in order to make it common, it must be shared by all. The word ‘knew’ used in section means that there should be positive knowledge.[1]
The basis of the constructive guilt u/ s. 149 is mere membership of the unlawful assembly with the requisite common object or knowledge. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act.
DISTINCTION BETWEEN SECTION 34 AND SECTION 149
The bare reading of both sections suggests same offence. Both prescribe that if any offence committed in prosecution of common object/intention, every member of that group will be liable for that offence in the same manner as if it did by every one of them. Both sections deal with liability for constructive criminality, i.e., liability, for an offence not committed by the person charged.
But both sections have different meaning in actual sense. It can be distinguished as follows-
- Section 34 said that when ‘two or more persons’ commit any offence, and section 149 said that when ‘five or more persons’ commit offence. Thus, Section 34 have minimum requirement of two persons while section 149 have atleast five persons requirement.
- Section 34 does not prescribe any distinct offence; it is just a rule of evidence. But section 149 create distinct offence.
- Common object and common intention are different term. Though the object of an assembly is common, the intentions of the members may differ.
In section 34, offenders may be liable if they committed any offence in furtherance of common intention. For example, if a group of person attacking any person due to any property issue and other person also involved in attacking due to personal enmity, so, although, there common object was the same (that person), but their intentions were different. Thus, they have similar intentions and common object, not common intention.
HOW TO ASCERTAIN COMMON OBJECT
Group attack on the victim is not a decisive factor to infer common object of unlawful assembly. Common object has to be ascertained from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Prosecution must prove that the accused was not only a member of unlawful assembly but also shared the common object of the said assembly at all the crucial stages.[2]
CASE ILLUSTRATION
In a case the common object of the unlawful assembly was, merely to give a beating to the members of the complainant party, the main target being M as held by the High Court. There was no common object to commit the murder of K. All the members of the mob were armed with lathis. They used their lathis in assaulting K, M and others. But the nature of the injuries clearly showed, that neither the common object was to kill nor was it possible to infer, that any member of the mob had the knowledge that death was likely to be caused in prosecution of the common object of assault. It was held despite death of the victim, conviction under Section 325/ 149 is proper.[3]
[1] State of Punjab v. Sanjiv Kumar, 2007 CrLJ 3519 (SC)
[2] Haramant Laxmappa Kukkadi v. State of Karnataka, AIR 1994 SC 1546
[3] State of Haryana v. Prabhu, AIR 1979 SC 1019