Distinction between Sec. 34 and Sec. 149
The two sections have a certain resemblance and may to an extent overlap (both sections deal with constructive criminality). However, there are certain differences between the two, viz:
- Sec. 34 is a rule of evidence and enunciates the principle of joint liability, but does not create an offence. Sec. 149 creates a specific substantive offence.
- Under Sec. 34, the number of persons is immaterial. Under Sec. 149, five (or more) persons should have entertained the common object.
- Common intention under Sec. 34 is different from common object under Sec. 149. The former necessarily postulates a pre-arranged plan, while the latter not. Further, a mere membership of an unlawful assembly (under Sec. 149) is enough and it is not necessary that one should have participated in the commission of the act. This is not so under Sec. 34. Even knowledge on the part of a member of unlawful assembly will be enough under Sec. 149.
Common object, thus, is wider in scope and amplitude than common intention. The object of an unlawful assembly might be common, but the intention of the several members might differ. Thus, where the accused came armed with deadly weapons, it is reasonable to infer that they knew death was likely to be caused in the prosecution of common object. But, a common intention to kill could not be inferred.
- The common object of the unlawful assembly must be one of the objects mentioned in Sec. 141, the common intention may be any intention, for the purpose of Sec. 34.
- Under Sec. 34, some active participation is necessary. But under Sec. 149, the liability arises by reason of mere membership of unlawful assembly.