Section 149 of The Indian Penal Code

Introduction

This is a very significant provision with respect to group liability. It is also recognized as laying down a principle of vicarious or constructive criminal liability. Section says that

“whenever any member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, or any such offence is committed by any member of that assembly about which the members of the assembly had knowledge that such offence was likely to be committed in prosecution of the common object of that assembly, every person who was a member of such assembly at the time of commission of the offence is guilty of that offence.”[1]

In prosecution of ‘common object’ implies ‘in order to attain the common object’. Effect of section 149 may be varying on different members of the assembly. Common object is determined based on nature of the assembly, arms carried by its members and behavior of its members at the incident. It is not essential in all cases that the same must be successful.[2]

Difference between the two parts of the section

In Bhargavan v. State of Kerala[3] the Supreme Court restated that the expression ‘in prosecution of the common object’ in section 149 is to be strictly equivalent to ‘in order to attain the common object’. It should be connected with the common object by virtue of the nature of object. There must be community of object and the object may exist only up to a stage and not after that.

In Charan Singh v. State of Uttar Pradesh[4], the Supreme Court stated that “though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word ‘knew’ used in the second part of the section implies something more than a possibility and it cannot be made to bear the sense of ‘might have been known’. Positive knowledge is necessary.”

In State of Punjab v. Sanjiv Kumar[5] the Supreme Court observed that “the word ‘object’ in section 141 means the purpose or design and in order to make it ‘common’, it must be shared by all. All members of the unlawful assembly should be aware of it and concur in it. It may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members and the other members may just join and adopt it, once formed it need not continue to be the same”.

Members split into groups

Where the members of an unlawful assembly split into different groups and commit offences in prosecution of a common object of the assembly, they all are guilty of the offences. In Vithal Bhimashah Koli v. State[6], where the facts were similar to the above mentioned instance, the Supreme Court held that “they had acted in prosecution of the common object of the assembly, and even if they might have come there separately without prior arrangement, their common object would have been held to have developed instantly.” But since the state party did not appeal against the acquittal of some of the accused, the Court had to decide the appeal on the ground of individual liability.

Nexus between the common object and the act

Earlier the Supreme Court of India had held in Ram Bilas Singh v. State[7], that “for vicarious convictions under section 34 or 149 of the Code, it was necessary to prove overt acts on the parts of the accused person committed in furtherance of the common intention, or in prosecution of the common object of the unlawful assembly, as the case may be.”

But the Court also held in Lalji v. State[8], that “if precise participation of the accused persons could not be proved because of absence of evidence, that in itself was not sufficient to mean acquittal of the members.” The Patna High Court has upheld these rulings while holding in Nagina Sharma v. State[9], that “persons in the form of an armed gang, who came for capturing a booth during the polls and prevent voters from casting franchise, were liable for the eight deaths caused by them in the process.”

In the case of Mukteshwar Rai v. State[10], the accused persons were members of an unlawful assembly. Their common object was proved in court to be setting houses on fire and not committing murders. They were held guilty by the court under section 426/149 and not under section 302/149.

In M/s. Siyaram v. State of Madhya Pradesh[11], the Supreme Court of India held that, “mere presence of in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. The word ‘object’ means the purpose or design. In order to make it common, it must be shared by all. It may be formed at any stage by all or a few members and other members may just join or adopt if.”

Withdrawing from the assembly before committing act

The Supreme Court in Nawab Ali v. State[12] sated aside the conviction of an accused who had withdrawn from a house before a murder was committed by other accused there in prosecution of the common object of the unlawful assembly of which was initially he had been a member. The view was restated by the Supreme Court in Musakhan v. State[13], wherein it was held that “once the accused had left the place of crime and had thereby ceased to be a member of the unlawful assembly, he could not be held guilty of the subsequent murder committed by other members”.

In Bhimrao v. State of Maharashtra[14], all accused persons along with some others members formed an unlawful assembly with a common object of committing the murder of the victim in case and with that object they went inside victim’s house. While the victim was being assaulted inside the appellant stood outside and was not a part of assault nor was any injury caused to any one by them.

The Supreme Court held in case that “the accused persons standing outside the house of the victim could not be knowing what transpired inside the house. The act of those members of the original unlawful assembly who had entered the house could not be attributed to members who stood outside. Those members who did not share the common object and stood outside were thus liable to be convicted under section 352/149 and not under section 326/149 of the IPC.[15]

Caste conflict

Caste occupies an imperative place in the life of most of Indians, and that is one of the main reasons of cases of conflict which come up before the courts of law. The law applied in such cases is not different from other.

In Mehtab Singh v. State[16], the Supreme Court of India held that “the common object of the assembly was to attack and cause injuries initially, but it changed later and the members knew that murder was likely to be committed in prosecution of it”, and consequently all accused were found guilty of murder.

In Ranbir Yadav v. State of Bihar[17], a mob of around 500-600 people belonging to same society and residents of different villages attacked an adjoining village to exterminate ‘Bind’ community from that village. The accused came on horses with arms and led the mob along with others. They were amongst the people who chased the villagers and murdered them at the bank of the river.

The High Court of Patna concluded that “the accused shared common object of the unlawful assembly to commit offences of loot, arson and murder and causing disappearance of evidence of murder”, and convicted all of them. The Supreme Court of India upheld the same.

Inference of knowledge

The Supreme Court has observed in Santosh v. State[18], that “this knowledge could be inferred from the nature of the acts done by other members of the assembly in presence of the accused member who saw these or knew about these and even then continued to remain a member of the assembly.”

Where several people are armed with lathis and one with a hatchet, and all of them agreed that if there was a need the arms, use of them would not be avoided, in another words it could be said that the members of unlawful assembly were prepared to use force and if some deaths or bodily injuries resulted from their act, it could be inferred that they knew the same is likely to be committed in prosecution of the common object of the unlawful assembly.

Where a group of persons, two of them being armed with arms, had the common object of abducting particular woman, and one person was shot in commission of offense. Pistols might be used, and all members could be said to have knowledge that murder was likely to be committed in prosecution of their common object.[19]

In Mathew v. State[20], it was held by the Supreme Court of India that “members of the unlawful assembly knew that murder was likely to be committed in prosecution of the common object of the assembly and, therefore, all were guilty of the two murders.”

In Tanaji Govind Misal v. State of Maharashtra[21], the evidence of the case proved that the motive of the accused party collectively was to remove ‘babul’ trees from the field at any cost and cause such as injury as may be necessary for accomplishing their purpose. Some of the accused, however, started assaulting people immediately after reaching the said spot.

It was held by the Supreme Court that, “the other accused persons could not be conclusively said to have known that murders were likely to be committed in prosecution of their common object so as to attract the latter part of section 149. Such accused would thus be guilty under sections 326/149 while such accused who acted beyond common object were liable to be convicted under sections 302/34 of the Code.”

In Rameshwar Pandey v. State of Bihar[22], all members of an unlawful assembly come prepared and armed with firearms with a motive to commit extortion. The Supreme Court held that “all members must be attributed the knowledge that it was likely that murder may be committed in prosecution of that object.”

Distinction between sections 34 and 149 of IPC

Section 34 of IPC is applicable when an offence is committed by multiple persons ‘in furtherance of common intention of all’ whereas section 149 applies to a case when an offence is committed by any particular member of an unlawful assembly ‘in prosecution of the common object’ of that assembly, or such as the members of the assembly would knew to be likely to be committed ‘in prosecution of that object’.[23]

Section 34 of IPC does not necessitate the existence of an unlawful assembly it may be mere group of people, while under Section 149 there has to be an unlawful assembly mandatorily. Section 34 presupposes the existence of at least two persons in a situation even though it is not necessary that at least two should always be convicted, whereas under section 149 there must be at least five persons even though it is not necessary that a minimum of five persons must always be convicted under the said section of IPC.[24]

Meeting of minds and a pre-arranged plan or a prior concert is always a requirement under the section 34, but that is not at all necessary under section 149. Furthermore, active participation of all persons must be proved under section 34, but liability under the section 149 arises by virtue of being a member of an unlawful assembly only. Section 34 of IPC is merely a principle of joint liability, but section 149 of IPC is not only a principle of joint liability but it also creates a specific offence.[25]

[1] Section 149 of Indian Penal Code

[2] Section 149 of Indian Penal Code (IPC) – LatestLaws.com

[3] AIR 1961 SC 1028

[4] AIR 1967 SC 57

[5] Appeal (crl.)  822-825 of 2001

[6] AIR 1983 SC 179

[7] AIR 1989 SC 1593

[8] AIR 1989 SC 754

[9] 1991 CriLJ 1195

[10] AIR 1992 SC 483

[11] 2009 Cri.L.J. 2071

[12] AIR 1974 SC 1228

[13] AIR 1976 SC 2566

[14] AIR 1980 SC 1322

[15] Common Intention And Common Object Under The Indian Penal Code 1860 (legalservicesindia.com)

[16] AIR 1975 SC 274

[17] AIR 1995 SC 1219

[18] (2010) 9 SCC 747

[19] Section 149 of Indian Penal Code, 1860 – Explained! (shareyouressays.com)

[20] AIR 1992 SC 2206 

[21] AIR 1998 SC 174

[22] Appeal (crl.)  604-605 of 2004

[23] Common Intention and Common Object – Academike (lawctopus.com)

[24] Legal provisions regarding Section 149 of IPC– Discussed! (shareyouressays.com)

[25] Comparative Analysis of Sec. 34 and 149 IPC with judicial interpretations (ipleaders.in)

Author: Mr. Kanhaiya Singhal of PES University