when a crime 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. (sec. 34 of Penal Code 1860)
Common Intention within the meaning of section 34 Penal Code through implies pre-arranged plan or concert between the persons, there is nothing in the section which requires the pre-arranged plan must come into existence before the act are done and that is cannot come into existence whilst the the act are being committed and that is cannot be inferred from such act. Whether such an inference should be drown or not in a particular cases would depend upon the facts each case.
common intention is not same as similar intention. several persons can simultaneously attack a man and each can have the same intention, namely, the the intention to kill and each can individually inflict a separate blow and none would have the common intention required by sec.34 . Penal code because there was no prior meeting of minds to form a pre-arranged plan.
Section 34 does not create any distinct offence, but merely lays down principle of joint liability in a criminal act done in furtherance of the common intention of the offenders. This section is intended to meet a case where numbers of party acted in furtherance of the common intention of all but it is difficult to prove exactly the part played by each of the them. The principle which the section embodies the participation in same action with the intention of committing a crime; once such participation is established, sec.34 is at once attracted. Section 34, penal code , is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly it is the just same as if each of them had done it individually. Common intention within the meaning of section 34 pre-supposes a prior concert, It requires a pre-arranged plan - a meeting of minds. (AIR 1966 Kar 264)
In order that intention may be common, the test which is applied is where intention of was known t other )and shared by that other. ( AIR 1961 Guj 16)
If an offence is committed by any member of any unlawful assembly in prosecution of that assembly , or such as the members of that assembly knew to be likely to be committed procution 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 the offence. ( sec. 149 of Penal Code)
The essential condition for the operation of either section is that the intention in one case and object in the other should be common and if an act is in excess of or beyond the intention or object of the members, they cannot be held constructively liable for it. Section 34 limits it self to the furtherance of the common intention while section 149 deals with common object of an unlawful assembly. (AIR 1955 SC 274)
Distinction Between Section 34 and 149.
Section 34 speaks of common intention while section 149 refers to common object. Besides this, section 149 comes into operation only when there is an unlawful assembly of five or more persons as required by section 141 and in the view of the matter it has a wider scope than section 34 .The essence of sec. 34 is common intention. Both sections deal with combination of persons who become punishable as sharer in an offence. The basis of constructive guilt under section 149 is mere membership of unlawful assembly: the basis under section 34 is participate in some action with the common intention of committing a crime.
Md. Shahnewaz Zwaki Advocate The Supreme Court of Bangladesh (High Court Division).