Sec. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object:
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.
Section 149 is wider than Sec. 34. The criminal liability is founded in Sec. 149 on “Common Object”. The criminal liability is founded in Sec. 34 on “Common Intention”. Both Sections deal with liability for constructive criminality, i.e., liability, for an offence not committed by the person charged.
Section 149 creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object – namely, one of those named in Sec. 141 and then the doing of acts by members of it in prosecution of that object.
Sec. 141. Unlawful assembly:
An assembly of five or more persons is designated an “unlawful assembly”, if the common object of persons composing that assembly is,—
To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
To resist the execution of any law, or of any legal process; or
To commit any mischief or criminal trespass, or other offences; or
By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly.
There is a difference between object and intention. There is a difference between object and intention, for though their object is common, the intention of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Sec. 34, is replaced in Sec. 149-by membership of the assembly at the time of the committing of the offence.
Both Sections deal with combinations of persons, who become punishable as sharers in an offence.
Thus they have a certain resemblance and may to some extent overlap, but Sec. 149 cannot at any rate relegate Sec. 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all.
A common object is different from a common intention in that it does not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the people get there.
The distinction between the common intention required by Sec. 34 and common object set out in Sec. 149 lies just there. In a case under Sec. 149 there need not be a prior meeting of minds. It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object.
Section 34 of the Penal Code refers to cases in which several persons both do an act and intend to do that act; it does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act.
In the latter class of cases, Sec. 149 of the Code may be applicable but Sec. 34 is not. On the other hand, if five or more persons both do an act and intend to do it, both Sec. 34 and Sec. 149 may apply, since the term “member” in the singular includes the plural also (Sec. 9).
A. Ingredients of Sec. 149:
1. There was an unlawful assembly as contemplated by Sec. 141.
2. The accused was a member of such assembly.
3. The accused had intentionally joined or continued in that unlawful assembly.
4. He knew of the common object of such unlawful assembly.
5. An offence was committed by one or more members of that assembly.
6. Such offence was committed in prosecution of the common object of that assembly.
7. As the members of the assembly knew that such offence was likely to be committed in prosecution of their common object.
B. Thakkidi Rami Reddy and others vs. State (1998 (6) SCC 564)
Brief Facts: In Timmapur village, in the night on 10-8-1990 at about 1 a.m., all the accused persons formed themselves into an unlawful assembly armed with crow bars, sticks and deadly weapons and descended upon the house of Gankidi Mohan Reddy (the deceased).
They broke open the door of the house and dragged him into its front veranda. The accused 2 and 3 beat with sticks. Accused-1 beat with him plough-rod. Accused 2 to 5 beat him with weapons. As a result Mohan Reddy died.
The trial Court convicted the accused under Sections 302 read with 149. The High Court confirmed the conviction. On appeal the Supreme Court upheld the conviction.
The Supreme Court observed:
“To ascertain whether a particular person shared the common object of the unlawful assembly, it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object.
Ones it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed, or he knew was likely to be committed, by any other person, he would be guilty of that offence.
Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.”
C. Baddi Venkata Narsaiah and Others vs. State of A.P. (1998 (2) SCC 329)
There was an organised mars attack against unarmed victims. There was a rivalry between two groups of Yadava community in Chennapuram village. One faction was lead by the first accused Baddi Venkata Narsaiah and the other faction was lead by Baddi Mallesh (one of the deceased).
One faction attacked against the other, resulting four persons’ death and injuries to seven persons. The police charge sheeted 64 persons as accused. The trial Court convicted 45 among them under
Sec. 302 read with 149. The High Court of Andhra Pradesh upheld the conviction. The accused appealed to the Supreme Court. The Supreme Court adopted the principle of ratio evolved in Masalti and Binay Kumar cases According to this principle each accused must be given Brief evidence by at least two witnesses. According to this principle, the Supreme Court acquitted 16 accused and confirmed conviction for remaining accused.
D. Shiva Ram and others vs. State of U.P. (1998 (1) SCC 149)
There were two factions in village. One of the factions was lead by Shivaram-Accused No. 1. The accused formed into an unlawful assembly consisting 25 members. They attacked the victims group.
They burnt the houses. They killed 5 persons. They separated the heads of three persons from their bodies. They killed a ten years boy and threw him in fires. Totally 5 murders were committed by them in the extremely brutal grotesque, diabolical, revolting and dastardly manner.
After their successful attempt, they proceeded in the streets by showing the heads of the deceased and rising slogans.
This incident took place on 23-6-1990 at about 5 p.m. The trial Court convicted 7 accused with capital sentence and 15 accused with the conviction of life imprisonment. The High Court confirmed the conviction. On appeal the Supreme Court also confirmed the conviction.
The Supreme Court held that the manner of assault and mode of brutality indicated the common object of the unlawful assembly. The accused had not only intended to commit murders of those who were suspected to have committed murder but also commit mass murders to take revenge.
In the circumstances of the case, plea of some of the accused that they had nothing to do with murders was not sustainable. Unlawful assembly could develop a common object on the spur of the movement to commit the massacre.
E. State of A.P. vs. Vedula Veera Reddy and others (1998) (4) SCC 145)
Brief Facts: Accused No. 1 and the deceased were brothers. There was enmity between them. They were residing at village Pedda Makkanna in Guntur District. In the midnight at about 2 a.m. on 25-6-1991 the accused 5 consisting unlawful assembly wearing deadly weapons attacked the deceased his house.
They caught hold the deceased and dragged him. The wife and mother of the deceased intervened and prayed them to leave the deceased, but in vain.
All the 5 accused assaulted the deceased and brutally murdered. The Additional Sessions Judge, Guntur convicted all the 5 accused under Sec. 302 read with 149. On appeal, the High Court altered the conviction from 302 read with Sec. 149 I.P.C to one under Sec. 304 Part 1. The State appealed against the decision of High Court.
The Supreme Court held that the High Court erred in noticing common object of the Singh, appellants and also time, place, nature of weapons and membership of unlawful assembly, and strained relations between the deceased and the appellants due to various disputes. The Supreme Court set aside the High Court’s Judgment and confirmed the Trial Court’s conviction.
F. Briz Bhukhan and others vs. State of U.P. (AIR 1957 SC 474)
Ramprasad was killed on 14-11-1954 at 5.00 p.m. at Churyani (v) while returning from Fatehpur along with his son Santosh Kumar and servant Buddhu. Appellants attacked them.
Ramprasad ran into the house of one Babulal Kayastha. The appellants dragged him out. Smt. Jagamathi Kayastha tried to protect the deceased, and several persons gathered. However the appellants attacked Ramprasad violently, who became unconscious and died.
The Sessions Judge imposed sentence of death against the appellants under Sections 302 r/w 149. On appeal the High Court and the Supreme Court confirmed it.
1. The Supreme Court observed:
“Although the medical evidence does not say that any one of the injuries on the body of the deceased was sufficient to cause death in the ordinary cause of nature, it is open to the Court to look into nature of injuries found on the body of the deceased and differ from them that the assailants intended to cause death of the deceased.
2. Even if none of the injuries by themselves was sufficient in the ordinary course of nature to cause the death of the deceased cumulatively they may be sufficient in the ordinary course of nature to cause his death.
3. Where the High Court while upholding the conviction of the appellants under Sections 302 and 149, reduced the sentence of death of the some of the accused to transportation for life, but did not reduce the sentence of death passed on the appellant B, we hold that merely because leniency had been shown to some of the appellants in the matter of sentence was no ground for reducing the sentence passed on B, who was shown to be responsible in killing.”
G. Mohan Singh and others vs. State of Punjab (AIR 1963 SC 174)
Brief Facts: The incidence of murder took at Malsian (v) of Ferozepore District on 9-5-1959. Six accused, namely (i) Mohan Singh; (ii) Jagir Singh; (iii) Dilip Singh; (iv) Piare Singh (v) Ujagar Singh and (vi) Bahadur Singh, formed an unlawful assembly wearing deadly weapons and having common object, committed rioting against the opposite group. Gurdip Singh was murdered. Hamam Singh was injured.
The trial Court held that the charges framed against the two Piara Singh were not proved and thus acquitted them. Dilip Singh was convicted under Sec. 302 read with Sec. 147 and the appellants (Mohan Singh, Jagir Singh and three others) were convicted under Sections 302, 147 and 149. All of them were sentenced to imprisonment for life under Sec. 302, and for minor offence under Sec. 147, each of them six months rigorous imprisonment. On appeal, the High Court confirmed it.
The Supreme Court upheld the conviction under Sec. 302, but altered the convictions imposed under Sec. 147 to Sec. 34, and set aside the convictions under Sec. 147.
The Supreme Court observed:
“Like Sec. 147, Sec. 34 also deals with cases of constructive criminal liability. It provides that where 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.
The essential constituent of the vicarious criminal liability prescribed by Sec. 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them.
Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Sec. 34.
In some ways the two Sections are similar and in some cases they may overlap. But nevertheless, the common intention which is the basis of Sec. 34 is different from the common object which is the basis of the composition of an unlawful assembly.
Common intention denotes action in correct and necessarily postulates the existence of a pre-arranged plan and that must mean prior meeting of minds. Cases to which Sec. 34 can be applied disclose an element of participation in action on the part of all the accused persons. The common intention required by Sec. 34 is different from the same intention or similar intention.”
H. Jai Dev vs. State of Punjab (AIR 1963 SC 612)
The two appellants Jai Dev and Hari Singh along with four others Yudhbir Singh, Dhanpat Singh, Sajjan Singh and Parbhati were charged with having committed offences under Sec. 148 and Sections 302 and 326 both read with Sec. 149.
The prosecution was that on 14-9-1960, the accused formed themselves into an unlawful assembly in the area of Dhani Khord and that the common object of that unlawful assembly was to commit the offence of rioting while armed with deadly weapons.
In pursuance of the said common object, the offence was committed. The charge under Sec. 148 was framed. The prosecution further alleged that on the same day and at the same time and place, while the accused persons were members of the unlawful assembly, they had another common object of committing the murder of Hukma, Jai Narain, Amin Lai, Smt. Sagroli and Smt. Dil Kaur.
In pursuance of the common object, the said persons were murdered. Dhanpat Singh killed Hukma. Sajjan Singh attacked Hukma. Yudhbir Singh shot at Amin Lai. Jai Dev shot at Smt.
Sagroli. Jai Dev and Hari Singh shot at Jai Narain. Parbhati killed Smt. Dil Kaur. The police prosecuted the six accused under Section 302 read with Section 149.
The trial Court convicted all the accused with capital sentence and also sentenced each one of them to two years rigorous imprisonment under Section 326 read with 149 and also sentenced one year rigorous imprisonment under Sec. 148.
On appeal, the Punjab High Court set aside conviction of Yudhbir Singh, Dhanpath Singh and Sajjan Singh. However the High Court upheld the conviction against Jai Dev and Hari Singh.
The Supreme Court upheld the conviction against the two appellants, but reduced the sentence from capital punishment into imprisonment for life.
I. While disposing Munivel vs. State of T.N. (AIR 2006 SC 1761), the Supreme Court held: “Section 149 of the Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed.
The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly.
Whether a member of such unlawful assembly was aware as regards likelihood of commission of another offence or not would depend upon the facts and circumstances of each case.
It is also well settled that if death had been caused in prosecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury.”
J. Distinction between Common Intention (Sec. 34) and Common Object (Sec. 149)
Sec. 34 explains “Common Intention”. Common intention is also called of “Joint Liability”. Sec. 149 explains about “Common Object”. Common object is also called as “Constructive Liability”. Sections 34 and 149 are related and overlap each other.
These two sections have certain resemblances and to certain extent overlap. However it cannot be said that both give the same meaning. Sec. 34 is not a substantive offence. It is used for evidence. It is always read with other substantive offences. Whereas Sec. 149 is a substantive offence and also read with other sections.
The principal element in Sec. 34 is the common intention to commit the wrong. There is no question of common intention in Sec. 149. An offence may be committed by a member of an unlawful assembly and the other members will be liable for offence although there was no common intention between that person and other members of the unlawful assembly. However the conditions laid down in Sec. 149 should be fulfilled.
The persons charged under Sections 302 read with Sec. 34 can legally be convicted under Sec. 302 read with Sec. 34. Where the prosecution files a charge sheet under Sec. 149, the Court may convert it to Sec. 34 and impose conviction, if the evidence discloses the commission of the offence in furtherance of the common intention of all.
In that occasion Sec. 149 should not become an impediment. Where the prosecution files a charge sheet for an offence for a substantive offence read with Sec. 34 and it shows the common intention of the accused then the substitution of Sec. 149 in place of 34 is prejudiced.
If the common object which is the subject matter of the charge under Sec. 149 does not necessarily involve a common intention, then the substitution of Sec. 34 for Sec. 149 results in prejudice to the accused. Therefore such substitution is not permitted.
In Karnyle Singh vs. State of Punjab (AIR 1954 SC 204) case, the Supreme Court held that if the facts to be proved and the evidence to be adduced with reference to the charge under the Sec. 149 would be the same if the charge were under Sec. 34, then the failure to charge the accused under Sec. 34 could not result in any prejudice and in such cases the substitution of Sec. 34 for Sec. 149 may be held as a formal matter.