Section 34 is an instance of constructive criminality, i.e. liability of all for the acts of one or some of them. Sections 149, 349 and 460 of IPC also deal with constructive criminality. The essence of liability under section 34, is the conscious meeting of minds of persons participating in the criminal action to bring about a particular result.
In offences involving more than one person, a very important question to be considered is as to the liability of various persons participating in the offence, especially when they have committed different acts in the course of committing the same offence. The Section 34 is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. The reason, why all are deemed guilty in such cases, is that the presence of accomplices give encouragement, support and protection to the person actually committing an act. The Section 34 of I.P.C. covers the principle of joint liability in cases where different persons share a common intention.
Section 34 of IPC
Section 34 deals with a situation, where an offence requires a particular criminal intention or knowledge and is committed by several persons. Each of them who join the act with such knowledge or intention is liable in the same way as if it were done by him alone with that intention or knowledge. The liability of individuals under this circumstance is called Joint Liability. The principle of Joint Liability defined in section 34 is as follows:
Section 34. 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.
In this article the act is referred, which is defined under article 33 as:
Section 33. ‘Act’, ‘Omission’. – the word ‘act’ denotes as well a series of acts as a single act: the word ‘omission’ denotes as well a series of omissions as a single omission.
It is clear from s.34 and s.33 that the term criminal act refers to more than a single act and would cover an entire series of acts.
Distinction between Common Intention and Similar Intention
Common intention does not mean similar intention of several persons. To constitute common intention, the intention of each one of them must be known to the rest of them and shared by all.
Common intention could be inferred from the facts and circumstances of the case, if it is not so the section cannot apply.
Common Intention Vs. Common Object :
Both Sections 34 and 149 I.P.C. deal with the issues of constructive liability. There are, however differences in the scope and nature of operation of the two offences which needs to be understood. The main differences are :
Section 34 lays down a principle of joint criminal liability and does not create a specific offence and Section 149 creates specific offence.
Membership in an unlawful assembly itself is made liable to punishment under Section 149. While Section 34 creates joint liability if individuals share common intention. Section 149 creates ‘constructive liability’ for acts done in the prosecution of common object of assembly.
- Common intention requires prior meeting of mind and unity of intention and common object of the unlawful assembly is one where the intention of the participants may differ.
- While in Section 34, the crucial factor is that of ‘participation’, in Section 149 membership in unlawful assembly is a sufficient precondition and there is no need for active participation.
- It is sufficient if there are more than two persons involved under section 34, however, in Section 149, there have to be minimum of five or more.
- Under Section 34 overt act, however small is a prerequisite for joint liability, however in Section 149, mere fact of being an unlawful assembly itself is sufficient to fix liability.
Difference between Sections 34 and 120 A :
In Section 120 A the gist of the offence is bare engagement and association to break the law even though the illegal act does not follow, the gist of the offence under Section 34 is the commission of a criminal act in furtherance of common intention of all offenders, which means the there should be unity of criminal behavour resulting in something, for which individual would be punishable, as if it were done by himself alone.
The evidence as to conspiracy under Section 120 B having been rejected the same evidence could not be used for finding a common intention proved under section 34.
Like intention under Section 35 of I.P.C. :
Section 35 creates what is known as ‘like intention’. Section 34 raises the issue of criminality because of participation in the intention. Section 35 stipulates that, when an act itself criminal by reason of its being done with a criminal intention or knowledge each of such persons who joins in the act with the same knowledge or intention or will be liable for the action as through committed by him alone. Under Section 34, there is no need to prove intention or knowledge as against each accused. Under Section 35, the accused has nothing to rebut unless the prosecution has proved criminal intention or knowledge as against each accused. The liability under Section 34 is for common intention, for offence under section 35, the extent of criminal intention or knowledge as against each accused.
Difference between Section 34 and Section 37 :
The distinction between Sections 34 and 37 is that what the former requires a common intention for a criminal act done by several persons and later deals with intentional cooperation, in an offence committed by means of several acts and punishes such cooperation, as if it constituted an offence itself. Under Section 37 cooperation is carried out by acts which lead to the commission of the crime and the acts done consciously towards the purpose. Actual participation in the actus reus must be established. Under Section 34 common intention to commit crime and the completion of crime.
Application of Section 38 of I.P.C. :
Thus Section 38 provides different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of criminal act are set in motion by one intention or by the other. Section 38 presupposes that there is an absence of common intention, otherwise the parties would be governed by Section 34. It is not only when there is an absence of common design that there is room for discrimination.
Dowry death in accident :
Where a young wife was burnt to death by her accused husband and the in laws because they were unhappy over the insufficient dowry, they were held liable to be convicted under Sections 302/34.