“The provisions of Section 149 of the IPC, 1860 relate to the question of offence while Section 34 is a question of evidence.” Give reasons for the statement.

Section 149: Common Object and Liability

Section 149 of the IPC deals with the liability of members of an unlawful assembly for a common object. It states that if an unlawful assembly has a common object, every person who is a member thereof is guilty of an offence for doing that act in prosecution of the common object, even if that act was not specifically intended by all members. The key element here is the ‘common object’ – a pre-arranged plan or purpose shared by the members of the assembly. The prosecution must prove the existence of an unlawful assembly and a common object. Liability extends to all members, regardless of their direct participation in the specific act, as long as it was in furtherance of the common object.

Key Features of Section 149:

• Focus on Offence: It directly establishes the offence committed by members of an unlawful assembly.
• Common Object is Crucial: The existence of a common object is the cornerstone of liability.
• Vicarious Liability: Members are held liable even without directly participating in the act.

Example: If a group of individuals assembles with the common object of rioting, and one member throws a stone causing grievous hurt, all members of the assembly are liable for the grievous hurt, even if they didn't throw the stone themselves. This is because the act was in prosecution of the common object.

Section 34: Common Intention

Section 34 of the IPC deals with acts done by several persons in furtherance of a common intention. It states that when a criminal act is done by several persons in furtherance of a common intention, each of those persons is liable as if the sole act was done by him. Unlike Section 149, Section 34 requires a pre-meditated plan and a meeting of minds. The prosecution must prove that the accused shared a common intention *before* the act was committed. The common intention must be to commit the specific act, not merely to be part of an unlawful assembly.

Key Features of Section 34:

• Focus on Evidence: It aids in establishing the mental state (mens rea) of the accused.
• Pre-meditation Required: A prior agreement and common intention are essential.
• Active Participation: While not requiring direct physical involvement, a clear demonstration of intent is necessary.

Example: If two individuals plan to rob a bank, and one stands guard while the other enters and commits the robbery, both are liable for the robbery under Section 34, as they acted in furtherance of a common intention. The prior planning is crucial here.

Comparative Analysis: Offence vs. Evidence

The fundamental difference lies in their application. Section 149 establishes the *offence* itself by imputing liability to members of an unlawful assembly based on a common object. It doesn't require proof of individual intent beyond being part of the assembly. Section 34, however, is a question of *evidence*. It helps the prosecution prove that the accused shared a common intention and acted in furtherance of it. It doesn't create a new offence but strengthens the case by establishing the mental element required for the offence.

Feature	Section 149	Section 34
Primary Focus	Offence (Liability)	Evidence (Mens Rea)
Requirement of Prior Planning	Not necessarily required; common object suffices	Essential; pre-meditated common intention
Nature of Liability	Vicarious liability for members of an unlawful assembly	Joint liability based on shared intention
Key Element	Common Object	Common Intention

Case Law: In State of Maharashtra v. Mohamad Hussain & Ors (1968), the Supreme Court clarified the distinction between Sections 149 and 34, emphasizing that Section 149 operates on the principle of vicarious liability, while Section 34 requires proof of a common intention.