Notes on S 34 {S 3(5) of BNS } and S149 IPC{S 190 of BNS }- Principle of constructive liability

S 34 of IPC {S 3(5) of BNS } Acts done by several persons in furtherance of common intention:-

When a criminal act is done by several persons in furtherance of 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 of the section: S 34 of IPC {S 3(5) of BNS } is enacted to meet cases in which it may be difficult to distinguish between the acts of individual members of a party, or to prove exactly what part is played by each of them. The reason why all are deemed to be guilty in such cases is that presence of accomplices gives encouragement, support and protection for the persons actually committing the act.

 S 34 {S 3(5) of BNS }is only a rule of evidence and does not create any substantive offence.

Before a person can be held liable for acts of another person U/S 34 of IPC{S 3(5) of BNS },two points have to be established,

a) that there was common intention, in the sense of a pre-arranged plan between the two; and

b)that the person sought to be made liable had in some way, participated in the act.

S 34{S 3(5) of BNS } will not apply unless common intention and participation both are present.

Common intention is a question of fact. Although it is subjective, it can be inferred from facts and circumstances of case.

The use of the word "in furtherance of" suggests that S 34{S 3(5) of BNS } is applicable also where the act actually done is not exactly the act jointly intended by the conspirator to be done;

There is difference between similar intention and common intention.

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S 149 of IPC {S 190 of BNS } 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 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 committing of offence is a member of the same assembly is guilty of that offence.

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Constructive liability:- Constructive liability in criminal law means the liability of a person for an offence which he has not actually committed. An act committed by another person will be attributed to the accused if such an act is done in furtherance of common intention or in prosecution of a common object.This must not however be confused with vicarious liability. Vicarious liability is the liability one incurs of the acts of a servant or an agent during the course of service.Vicarious liability in criminal law is an exception rather than a rule.But constructive liability in criminal law is a well recognized principle.

Differences between S 34 {S 3(5) of BNS } and S 149 of IPC{S 190 of BNS }:

1) S 34 deals with common intention, whereas 

S 149 deals with common object.

2) Under S 34 the act must be the result of a pre-arranged plan, whereas no such requirement is prescribed by s 149 of IPC.

3) Under S 34 the number of persons is immaterial. However under S 149, there should be five or more persons who have entertained a common object.

4) S 34 enunciates the principles of liability, without creating any offence. On the other hand S 149 creates a specific offence.

5) Common intention under S 34 need not be one of specified types. Under S 141,the common object must be one of the seven types specified in that section.

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