There is not much substantial difference between conspiracy, as defined in Section 120-A and acting on a common intention, as contemplated in Section 34. While in the former, the gist of the offence is bare engagement and association to break the law even though the illegal act does not follow, the gist of the offence under Section 34, is the commission of a criminal act in furtherance of a common intention of all the offenders which means that there should be unity of criminal behaviour resulting in something for which an individual would be punishable, as if it were all done by himself alone.
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All the accused against whom the prosecution alleges that there was unity of criminal behaviour actuated by a common intention to extort a confession can, therefore, be jointly tried under Section 223 Cr. P.C., 1973. The evidence as to conspiracy under Section 120-B having been rejected, the same evidence could not be used for finding a common intention proved under Section 34.
ADVERTISEMENTS:
Where the only evidence against the accused of his being a member of the conspiracy consists of the commission of the offences themselves by others it cannot be said that he was in the conspiracy. Section 34 enunciates a principle of liability. It is not an offence by itself. Section 120-A refers to an offence i.e., an agreement to commit an offence.