Difference Between 'Common Intention' (S.34 IPC) & 'Common Object' (S.149 IPC) : Supreme Court Explains With Illustrations

The Supreme Court recently clarified the distinction between Sections 34 (common intention) and 149 (common object) of the Indian Penal Code, 1860 (IPC). It ruled that Section 34 requires active participation, emphasizing an individual's intention as a crucial factor. In contrast, under Section 149, a person can be held guilty solely for being part of an unlawful assembly with a common object to commit a specific offence, regardless of their personal intent to commit the crime.

A bench of Justices JB Pardiwala and R Mahadevan explained the difference while hearing the case where the husband along with his mother, were convicted for setting the former's wife ablaze on fire in relation to alleged dowry demand. The husband was present at the crime scene and witnessed the crime when his mother poured the kerosene oil on his wife and set her ablaze. However, the husband didn't commit an overt act, proving his common intention to commit the crime, instead, he poured water to stop the fire.

The Court acquitted the husband, citing the prosecution's failure to demonstrate any overt act by the husband. The Court clarified that mere presence at the crime scene as a spectator does not establish a common intention unless active participation in the crime is proven.

The Court distinguished between the legal provisions, explaining that membership in an unlawful assembly with a common objective to commit an offence can lead to joint liability under Section 149, even if an individual member did not intend to commit the specific act ultimately carried out by others. Lack of awareness of the particular act committed by other members or intention to commit such an act is not a valid defence, such an individual cannot claim innocence and will be held jointly liable.

Whereas, for invoking Section 34, some overt act coupled with an intention to commit such an act is a condition precedent.

“the position under Section 149, IPC, is very different. The charge framed under Section 149, IPC, disregards the intention of the individual members of the assembly altogether, and concentrates merely on the common object of the assembly as a whole. The result of this position is that there may be cases in which a person might be guilty of an offence under Section 149, IPC though he himself had no intention to commit it or was even unaware of its commission.”, the court observed.

“On the other hand, under Section 34, IPC, a mere agreement, although it might be a sufficient proof of the common intention, would be wholly insufficient to sustain a conviction with the application of Section 34, IPC, unless some criminal act is done in furtherance of the said common intention and the accused himself has 19 in some way or the other participated in the commission of the said act.”, the court added.

Illustrations

Also, the Court with the help of an illustration explained the working of Section 149:

An unlawful assembly is formed with the object of wiping out all members of a particular community residing in a mohalla. While this assembly is busy with its unlawful activities, some of its members might come across a member of the other community and in the prosecution of the common object proceed to murder him.

“Say X, who is a member of this very unlawful assembly might discover that Y was his old friend. X might not want that this old friend of his should be killed, and in spite of his wishes, and contrary to his intention, Y might be murdered. If it so happens, then X who was a member of the unlawful assembly, might be held to be guilty of an offence committed by another member of the said assembly, even though the offence itself was committed quite contrary to his desires and even in opposition to his own intention provided it is shown that X continued to remain a member of the assembly at the time of the offence and the offence itself was directly or indirectly within the purview of the common object of the assembly.”, the court explained.

“The reason is that the criminal liability under Section 149, IPC is determined not by the intention of the various individual members constituting it but by the common object of the assembly as a whole. The result is that when a charge against a person is framed for an offence under Section 149, IPC, read with a relative section, and the person is convicted of the offence under the relative section alone, he might legitimately complain that his own mental state having never been put into issue under the charge at all, he was taken by surprise in the matter and thereby misled and prejudiced.”, the court reasoned.

"For the purpose of the above discussion I am presuming that a charge framed under Section 149, IPC is the usual charge under which the individual authorship of the offence is not defined or specified, and the offence is alleged in the charge to be the act of an undefined member of the assembly."

Section 34 position different

"The position under Section 34 is different. The connection here between the offender and the offence is far closer and deeper.

Under Section 34 every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally. That is, he is a sharer not only in what has been described as a common act but also in what is termed as the common intention, and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different.

To put it in other words, whereas under Section 149, IPC the entire emphasis both in respect of the physical act as well as in respect of the mental state is placed on the assembly as a whole, under Section 34, IPC, the weight in respect of both is divided and is placed both on the individual member as well as on the entire group."

Section 34 far more restricted that Section 149

"Section 34, IPC, as contrasted with Section 149, IPC, therefore, balances the individual and the general aspect, although while taking into account the individual aspect it conceives it as part and parcel of the general aspect. In this sense, Section 34, IPC, is far more restricted than Section 149, IPC. If, therefore, a person is charged with an offence with the application of Section 34, IPC, and convicted for the substantive offence only, it is not so easy for him to advance the plea that he was not aware that the matter had any individual aspect."

Difference between Section 34 IPC and Section 120B IPC

"Participation of the individual offender in the criminal act in some form or the other which is the leading feature of Section 34, IPC differentiates it not only from Section 149, IPC, but also from other affiliated offences like criminal conspiracy and abetment. A bare agreement between two or more persons to do or cause to be done an illegal act might make a person liable for the offence of criminal  conspiracy as defined in Section 120, IPC. If the said agreement is to commit offence, then such an agreement is by itself enough to make a man guilty and no overt act apart from the agreement would be necessary.

If, however, the agreement is to commit an act which is not tantamount to an offence, then some overt act in pursuance thereof is necessary. Such overt act may, however, be performed by any person who is a party to the agreement and not necessarily by the particular accused who might be guilty of the offence without having participated in the act.

On the other hand, under Section 34, IPC, a mere agreement, although it might be a sufficient proof of the common intention, would be wholly insufficient to sustain a conviction with the application of Section 34, IPC, unless some criminal act is done in furtherance of the said common intention and the accused himself has in some way or the other participated in the commission of the said act.

The offence itself would be complete even though the act abetted is not committed; or, even if the act is committed, the abettor himself has not participated in it. Thus, actual participation in the commission of the offence, which is a condition precedent of Section 34 and is its main feature, again distinguishes it from the offence of abetment."

Also From Judgment: S. 34 IPC | Mere Presence At Crime Scene As Spectator Doesn't Establish Common Intention Unless Active Participation Proven: Supreme Court

Case Title: VASANT @ GIRISH AKBARASAB SANAVALE & ANR VERSUS THE STATE OF KARNATAKA

Citation : 2025 LiveLaw (SC) 218

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