Charge Under Section 149 IPC Can Be Altered To Section 34 IPC If Common Intention Among Accused Is Proved

THE SUPREME COURT HAS HELD THAT THE CHARGE U/S 149 OF IPC CAN BE ALTERED TO THAT U/S 34 OF IPC, PROVIDED THAT THE COMMON INTENTION AMONG ACCUSED IS PROVED.

WHAT ARE SECTION 149 AND 34 IN IPC?

• Section 149 of Indian Penal Code, 1860
• "Every Member Of Unlawful Assembly Guilty Of Offence Committed In Prosecution Of Common Object"
• This section provides that if there is an ‘unlawful assembly’ of people for achieving a common objective, each member of that assembly will be guilty of the offence committed by any member of it.
• "If an offence is committed by any member of an unlawful assembly in prosecution of the 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 the committing of that offence, is a member of the same assembly, is guilty of that offence."
• The requirement for an "unlawful assembly" is that it consists of at least 5 members.

WHAT ARE SECTION 149 AND 34 IN IPC?

• Section 34 of Indian Penal Code, 1860
• "Acts Done By Several Persons In Furtherance Of Common Intention"
• This section provides that if an offence is committed by several persons and it is done with a common intention, each of those persons is equally liable for that offence.
• The main difference between Section 149 and 34 is that Section 149 can apply only when there is an "unlawful assembly" consisting of at least 5 members. On the other hand, no such requirement in Section 34.
• "When a criminal 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."

PRESENT CASE

• In the present case, which the Supreme Court was seeing, 7 people were charged for Murder under Section 307 of IPC
• They were charged under Section 149 of IPC considering their common objective
• However, 3 of the accused were acquitted from the aforesaid charge under Section 307, and thus only 4 of now could be brought under criminal liability
• Thus, Section 149 could no more be applied since there is a requirement of at least 5 members under it

SUPREME COURT'S HOLDING

• Since the charge under Section 149 could not be applied for bringing them under criminal liability, the Supreme Court allowed the charge to be altered to that under Section 34
• It allowed such alteration if it is proved that the accused persons had common intention while committing the offence (Murder in present case), a requirement under Section 34.
• Reliance was placed on Nallabothu Venkaiah v. State of Andhra Pradesh (2002) where it was held that "...charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."

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