Article on "Joint and Constructive Liability under IPC" by Mehal Kaur

 

By MEHAL KAUR

B.A LLB(H)

SEM 8^th,4^th YEAR

AMITY UNIVERSITY

INTRODUCTION

When we take about guilty mind and the criminal act in consonance with that of guilty mind, we refer to it as a criminal liability which is established. Hence, under the question of law criminal liability is based on the “Actus Non Facit Reum Nisi Mens Sit Rea” which means there can be no criminal act without a guilty mind. Therefore, now the question arises that if a criminal liability arises where there exists both “mens rea” and “actus reus” and hence in all cases, the person who has committed the criminal act will be punished. So constructive liability is an exception to this general rule of Criminal Liability.

Now let us discuss about the concept of joint Liability according to the Indian penal code section 34 stated “when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone”

The above quoted lines means when two or more persons commit a criminal activity with holding common intention to it, then each of them will be held liable for the performance of criminal act as if the act is performed by them individually.

 SECTION 120A of IPC

1. an illegal act,
2. an act which is not illegal by illegal means, such an agreement is stated as criminal conspiracy.

SECTION 34 of IPC

1. A criminal act is done by two or more persons,
2. The criminal act must be to further the common intention of all,
3. There must be participation of all the persons in furthering with common intention.

By the above reading the concept of 120A and 34 of Indian Penal Code is clear so now let us discuss in more elaborative way with the help of case laws:

The Indian Penal Code has covered the concept of constructive liability under Section under Section 34,120A and 149. All these provisions explain joint liability of individuals who may not be involved directly into the commission of criminal act but they are sharing the common intention or common object with individuals who have committed the offence.

Proof of Conspiracy

By looking at a person one cannot say that whether an individual have a criminal mind or not, hence crime is inherently psychological in nature. To proof such criminal act is of difficult nature. It can be ascertained by the collection of facts; that some act was committed or such act has been kept as a secret. However, this does not constitute an essential element of the conspiracy but it can be done through the collection of:

1. Direct Evidence or

2. Circumstantial Evidence. 

In the case of Bhagwan Swaroop Lai Bishan Lai V State of Maharashtra, Doctrine of Agency was applied as there was fact that was an agency in the conspiracy may prove that there was involvement of this in the act.

In the case of Ram Bias Singh V. State of Bihar, the honourable Supreme Court held that under section 34 if a person is convicted, he need not have to indulged in the overts acts, but his prior presence and commission of such acts in furtherance with a common intention is sufficient to make the person liable for the act.

Therefore, the concept of criminal conspiracy is clear and the same concept was established under section 34 which justify the concept of constructive liability, where the parties are not involved in the commission of the crime or illegal act but they were active during the preparation of the illegal act which has been committed.

 Further, under section 149 of Indian Penal Code,

In the case of Chhotu v State of Maharashtra, in the crime scene four individuals where present and the complainant party was attacked by the accused which in result one person died. The witness in produced stated that three individuals were assaulting the deceased and the fourth individual was simply standing holding a knife in his hand. There four, it was held that only three accused were liable under section 302/304 of Indian Penal Code and fourth individual didn’t share the common intention.

It was common intention viewed as a pathway to complete the unlawful act in the case of Queen V Sabib Ali.

In the case of State of Harayana V Pradeep Kumar and Others, the respondent was present at the time of the commission of the murder and believed to be the main conspirator was acquitted by honourable court. It was stated that some persons were charged under the murder of Krishana Kumar Khandelwal who was a main protectionist and majority of the party member were supporting him. Therefore, when the state appealed against the acquittal of Pradeep Kumar, the acquittal was rejected by the Supreme Court.

 

The Distinction Between Section 34 and Section 149

SECTION 34	SECTION 149
SECTION 34 Explanatory clause falls under chapter II of Code dealing with ‘General Exception’ and creates no offence.	Section 149 falls under Chapter VII; which states ‘offences against public tranquillity.
Section 34 covers ‘Common Intention’	Whereas Section 149 covers ‘Common Objective’
Under this section the person should be jointly liable for the commission of the act by several persons to commit the criminal act in furtherance with common intention and the court should be satisfied with the accused has performed certain part while executing the criminal activity.	Whereas under section 149 there is no requirement of participation in the commission of the criminal offence, its is based on the constructive guilty and this section. Mere member of the illegal assembly at the time of the commission of the act has been done by any other member of the assembly.
Section 34 can be invoked even if the criminal activity is been performed by two persons or only two persons are involved in it.	Whereas Section 149 cannot be invoked until the involvement of unlawful assembly to subsist at list 5 or more individuals must be a part of the comity.

 

Conclusion

The concept of Joint liability embodied under section 34 of Indian Penal Code. This section gives us only the definition of joint liability and it doesn’t give the punishment for the act performed. This section has to be read with various other section for the clear understanding of the concept like section 120A which states the definition of criminal conspiracy, section 120B which underlines the punishment for the same and section 149 which deals with unlawful assembly. On the other hand, section 34 cannot be applied on its own and it has to be applied with some other provision so as to make a person jointly liable for the offence committed.