Section 34, 109, 120-B and 149 of Indian Penal Code

Section 34, 109, 120-B and 149

of Indian Penal Code,

Its Scope, Distinction and Applicability.

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.

Object :- The section is framed to meet a case in which it may be difficult to distinguish between the act of individual members of a party or to prove exactly what part was played by each of them. 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 the act.

Scope :- The section is restricted to common intention and does not embrace any knowledge. It does not require proof that any particular accused was responsible for the commission of the actual offence. It is not restricted to meed a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. It can well applied to cases in which offence is committed by only one or two or three persons who all had a common intention.

Facts to be established for common intention :-

a) That there was the meeting of all accused prior to the incident.

b) That all the persons who participated in the said meeting held on particular date and place intended to commit the crime.

c) That all the accused participated in the commission of crime.

d) That criminal act was accordingly done. ( If so established then each of the accused will be liable to punishment for the main offence charged).

Section 109 :- Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment :-

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation :- An act of offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Scope :- Under this section the abettor is liable to the same punishment which may be inflicted on the principal offender, (1) if the act of the later is committed in consequence of the abetment, and (2) no express provision is made in the CODE for the punishment of such an abetment. This section lays down nothing more than that if the CODE has not separately provided for the punishment of an abetment an as such then it is punishable with the punishment provided for the original offence.

Facts to be established for abetment :-

(a) that abetment was made either by instigation, conspiracy or aiding; and

(b) that act or offence abetted or committed

Section 120-B :- Punishment of criminal conspiracy :-

Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment of life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.

Scope :- The punishment for a criminal conspiracy is more severe if the agreement is one to commit a serious offence, it is less severe if the agreement is to commit an act, which although illegal, is not an offence punishable with death, imprisonment for life or rigorous imprisonment for more than two years.

This section applies to those who are the members of the conspiracy during the continuance. Conspiracy has to be treated as a continuing offence and whoever is a party to the conspiracy during the period for which he is charged is liable under this section.

Facts to be established for conspiracy :-

a) that there was an existence of a design to commit an offence

b) that such offence was punishable with imprisonment.

c) that accused concealed existence of such design.

i) by his act or illegal omission or

ii) by his knowingly making false representation.

d) that he did voluntarily

e) that he thereby intended to facilitate, or know that he would thereby facilitate commission of such offence.

Hon'ble Supreme Court in case of Noor Mohammad -versus- State of Maharashtra, reported in AIR 1971 SC 885, has discussed about the distinction between section 34, 109 and 120-B of IPC in the following words,

“Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission in the offence in furtherance of common intention invites its application. Section 109 on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided he has instigated the commission of the offence or has engaged with one or more other person in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally added the commission of an offence by an act or illegal omission. Criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out the agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude then abetment by conspiracy as contemplated by section 107 of I.P.C. A conspiracy from its very nature is generally hatched in secrets. It is therefore extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But like other offences, criminal conspiracy can be proved by circumstantial evidence”

Section 149 :- Every member of unlawful assembly guilty of offence committed in prosecution of common object :-

If an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, or such as the members of that assembly knew to be likely to 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.

Object :- This section is not intended to subject a member of an unlawful assembly to punishment for every offence which is committed by one of its members during the time they are engaged n the prosecution of the common object.

Scope :- Section 149 of the Indian Penal Code is declaratory for the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly and for such offences as the member of unlawful assembly knew to be likely to committed in prosecution of that object.

Facts to be established for common object :-

a) the ingredients of section 143 of I.P.C.

b) that offence was committed by any member of the unlawful assembly; and

c) that such an offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.