Vishakha Amin
Generally, criminal liability is a sole liability as it requires proof of both mens rea i.e. guilty intention and actus reus meaning guilty act. But every time crime is not done by a single person. More often if not always, grave criminal offences are done in a gang. When several people are involved in the prosecution of a criminal offence, it becomes very strenuous to distinguish the role of different members if the result of all actions combined is the intended criminal consequence. To deal with such cases, the law lists various kinds of liabilities:
1. Joint Liability: When two or more persons committing the same criminal offence are liable for punishment.
E.g. Both A and B poison C, then A and B are jointly liable.
2. Constructive Liability: When the person committing a criminal offence is assisted by other people, all are equally liable even though others may not be directly engaged in the heinous act.
E.g. A, B and C make a plan to kill D and in doing so, A buys poison, B mixes it in food and C gives it to D as a result of which D dies. A, B and C are equally liable.
3. Vicarious Liability: Where the master is liable for the servant’s act.
E.g. A hosts a party in his house and B, servant of A serves food to C and C dies after consuming the food. Here, A will be vicariously liable.
The provisions of Indian Penal Code, 1860 deals with different kinds of liability. Here we will know more about Section 34 and Section 149 of the IPC which is based on constructive liability.
Section 34 of IPC, 1860: Acts done by several persons in furtherance of common intention
It reads, “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” meaning if two or more persons with the intent of committing a criminal offense, commit the offense then each of them will be liable for that act as if the act was committed by them individually.
This section helps in circumstances when it is hard to decide between the criminal acts of individuals to actually prove what part each of contributed in the act. Accordingly, every member who is engaged in committing the offense is held liable by contribution or his/her involvement in the act performed.
A very famous landmark case can be discussed in this regard: Barendra Kumar Ghosh v. King Emperor.
The facts of the case are, on August 3, 1923, a group of people entered the Post office to steal with a person named Barendra kept outside to guard the post office. They asked the postmaster for all the cash held by the office. In the course of the robbery, the postmaster was shot dead. Without taking any money, all of them ran away. The police were able to capture as the guard Barendra Kumar Ghosh. Barendra asserted that he was merely standing as a guard but the court held him for murder under 302 r/w Section 34 of IPC, 1860.
Essentials for application of Section 34:
1. The said criminal act must have been performed by more than one person.
2. Common criminal Intention: Common intention means that there was a pre-arranged plan/ meeting, and all the individuals are acting in furtherance of that plan. The pre-arranged plan may be on the spot but there should be clear and impeachable evidence.
3. Participation in the criminal act
Section 149 of IPC, 1860: Every member of unlawful assembly guilty of offense committed in prosecution of common object.
It reads, “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” meaning when an offense is committed by any member of an unlawful assembly and the members of that assembly knew about it to be committed, every person who is a member of the said assembly at the time of the performance of that offense shall be guilty of that offense.
In Umesh Singh & Anr. v. State of Bihar, 20 armed men with lathis, bhala and guns came to the ‘Kahlihan’ of Bhola Singh where he and other family members were thrashing paddy. They tried to take away the paddy. One of the members of the gang threatened that any opposition would result in the death of Bhola and his family. One member of the gang hit Bhola Singh with lathi and another opened fire. There was firing by other members of the gang. Bhola Singh and his son died. All the gang members were held guilty under 302 read with Section 149 and other provisions of the IPC.
Essentials for application of Section 149:
1. Assembly of five or more people
2. all of them should have a common object (can be formed at any stage)
3. Common object must be out of the five mentioned in section 141
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Common Intention |
Common Object |
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Section 34 does not create offence in itself, only lays down the principle of joint liability. |
Section 149 creates an offence in itself i.e. Being a member of the unlawful assembly which is punishable under Section 143. |
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Common Intention under Section 34 not defined anywhere in IPC. |
Common Object must be one of the five ingredients defined under Section 141. |
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Prior meeting of minds necessary for Common Intention. |
Common Object may be formed without any prior meeting of minds. |
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Applicable when two or more persons are involved. |
Applicable when 5 or more persons are involved. |
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Participation is a crucial aspect. |
No need for active participation in Section 149. |
Reference
Indian Penal Code