Both the sections deal with liability for constructive criminality, i.e., liability for an offence not committed by the person charged. Section 149 deals with joint liability on common object while Section 34 deals with joint liability on common intention.
Section 149 is thus wider than Section 34. Section 34 does not lay down any limit to the number of persons combining, but Section 149 fixes a minimum of five to form an unlawful assembly. Section 149 creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object, namely, one of those named in Section 141 (unlawful assembly) and then the doing of acts by members of it in prosecution of that object. There is a difference between object and intention for though their object is common, the intention of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Sec. 34, is replaced in Sec.
149 by membership of the assembly at the time of committing of the offence. Both sections deal with combination of persons, who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap, but Section 149 cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts.
Section 34 refers to cases in which several persons intend to do and do an act; it does not refer to cases where several persons intend to do an act and some one or more of them do an act; it does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act. In the latter class of cases Section 149 may be applicable but Section 34 is not. On the other hand, if several persons numbering five or more, both do an act and intend to do it, both Section 34 and Section 149 may apply. The basis of constructive guilt under section 149 is mere membership of an unlawful assembly; the basis under Section 34 is participation in some action with the common intention of committing a crime. In a case to which Section 149 does not apply, all the accused persons can be found guilty of the offence constructively under Section 34 only on a finding that each of them took some part or other in or towards the commission of the offence.
Thus, there is a clear distinction between Section 34 and Section 149. [The Law of Crimes: Ratan Lai and Dhirajlal Thakorc, p. 351,18th edition.] In the given problem, it appears that the injured member is not liable for the subsequent murder. The reason is that after his retirement, he could not be said to have remained a member of the unlawful assembly. He having ceased to be a member of the unlawful assembly, constructive liability for murder in pursuance of common object cannot be fastened on to him under Section 149. He is also not liable under Section 34 for he took no part in the further fight which resulted in death.
To impute common intention under Section 34, it must be shown that the accused took some part or the other in furtherance of the common intention. The injured man here did nothing to further common intention but retired as a wounded man. So the principle of Section 34 also cannot be invoked to fasten constructive guilt upon him.