JOINT LIABILITY

Note 1-
Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaces the
analogous Section 34 of the Indian Penal Code, 1860 (IPC). It reads:
“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.”
This provision deals not with a specific offence, but rather establishes a rule of
joint liability for criminal acts committed in furtherance of a shared purpose.
Essentials of Common Intention under Section 3(5) BNS, 2023
1. Prior Meeting of Minds
 There must be a pre-conceived plan or understanding among the
accused, which can be formed well before or even shortly before the
incident.
 No formal agreement is necessary; it is sufficient that there is
a conscious and concerted action towards the criminal objective.
 Example:
If A and B decide to beat up C, and A holds C while B punches him, both are
equally liable—even if B alone caused the injury
 Case Law:
State of Rajasthan v. Shobha Ram, (2023) SCC OnLine SC 1169 The Court
reiterated that even a spontaneous meeting of minds just before the act can
suffice to constitute common intention.
2. Mental Element (Mens Rea)
 All participants must share the same criminal intent.
 Mere physical presence at the crime scene is not sufficient unless it can be
shown that the person shared the knowledge and intent to commit the
offence.
 Example:
If X and Y are following Z to intimidate him and X suddenly stabs Z, Y cannot
be held liable unless it’s shown that he shared the intent to harm.
 Case Law:
Mohd. Javed v. State of UP, 2024 SCC Online SC 92 The Supreme Court held
that mental concurrence with the main accused must be proved through
conduct and surrounding circumstances.
3. Active Participation
 Each accused must contribute towards the commission of the offence,
either actively or passively.
 Passive presence without contribution is not enough unless presence itself
emboldens the actual perpetrator.
  Example:
If A plans a robbery and B waits outside in a car to help escape, B is an active
participant.
 Case Law:
Raju v. State (Govt. of NCT of Delhi), 2024 SCC OnLine Del 617 The Delhi
High Court held that even chasing the victim to corner him amounted to
active participation under common intention.
4. Causative Link
 There must be a direct connection between the common intention and
the criminal act.
 The act must be shown to have been committed in furtherance of the
common plan.
 Independent or stray acts not linked to the pre-arranged plan will not invite
joint liability.
 Example:
If A and B plan to injure C, but A alone decides to shoot C fatally, B will not be
liable unless he knew of the gun and agreed to the use.
 Case Law:
State of MP v. Amrit Lal, 2023 LiveLaw (SC) 782 The Court distinguished
between acts in furtherance of common intention and stray acts, holding only
the former attracted Section 34 IPC / Section 3(5) BNS liability.
5. Contemporaneous Formation
 Common intention need not always be premeditated. It may be formed
at the spur of the moment, provided all accused act in concert.
 Post-crime approval or association is not sufficient.
 Example:
During a sudden fight, A and B attack C simultaneously without prior
planning. If mutual support is visible, joint liability can be invoked.
 Case Law:
Vikas Kumar v. State of Bihar, 2023 SCC OnLine Pat 988 The High Court
emphasized that simultaneous intent formed at the moment of the attack
was enough to hold all participants jointly liable.
Burden of Proof
 The prosecution bears the entire burden to prove the existence of
common intention beyond reasonable doubt.
 Direct evidence is rare; hence, the Courts often rely on circumstantial
evidence, including:
 The accused’s conduct before, during, and after the crime.
 Nature of the act committed.
 Motive, proximity, and presence at the scene.
  Mere suspicion, proximity to the crime, or passive presence is not
sufficient to establish liability under Section 3(5) BNS.
 Case Law:
Ajay Thakur v. State of Uttarakhand, 2024 LiveLaw (SC) 120 The Supreme
Court clarified that while common intention can be inferred from
circumstances, it must rise above conjecture and be backed by consistent
evidence.
Comparison: Section 34 IPC vs. Section 3(5) BNS

Point of Section 34 IPC Section 3(5) BNS, 2023

Comparison

Statutory “Acts done by several “Criminal act done by

Language persons…” several persons…”

Nature Rule of evidence Rule of evidence

Basis for Joint Common Intention Common Intention

Liability

Need for Specific No No

Offence

Time of Before or at the moment of Before or at the moment of

Formation crime crime

Proof Through conduct and Through conduct and

circumstantial evidence circumstantial evidence

Key Takeaways
 Section 3(5) BNS, 2023 introduces no material departure from Section 34
IPC, but continues the jurisprudential trend of strict scrutiny of joint criminal
liability.
 Courts must ensure individual criminal responsibility is not diluted in the
garb of common intention.
 Recent judgments emphasize that each accused must actively and
mentally participate in the criminal plan for Section 3(5) to apply.
 The distinction between common intention and common object
(under Section 149 IPC/Section 187 BNS) remains important in group
crimes.
Summary Table with Examples

Element Explanation Example

Mutual plan
Prior Meeting of Minds A & B decide to rob a shop
before/during the act

Awareness and shared A supports B in beating C

Mental Element
intention with intention
 Element Explanation Example

Involvement in any A holds door while B steals

Active Participation
form inside

Crime flows from B stabs only after both

Causative Link
shared plan decide to attack

Contemporaneous Intention arises on the A & B join fight instantly

Formation spot and attack victim

Conclusion:
The doctrine of common intention under Section 3(5) of the Bharatiya Nyaya
Sanhita, 2023 is a crucial legal principle ensuring that all persons acting
together with a shared criminal purpose are held equally liable for the
resulting offence. Rooted in the erstwhile Section 34 of the Indian Penal Code, this
provision continues to uphold the idea of joint culpability in cases where multiple
individuals commit an act in furtherance of a collective objective.
It operates not as a substantive offence but as a rule of evidence, allowing courts
to infer liability based on collective action and mental alignment among co-
accused. The prosecution must, however, rigorously prove the existence of a
prior or contemporaneous meeting of minds, active participation, and a
clear causative link to the act committed.
Indian courts, through various rulings, have clarified that mere presence at the
scene of crime or passive knowledge is not enough—the accused must have
intentionally associated themselves with the criminal act. The standard remains
that of proof beyond reasonable doubt, and any ambiguity regarding individual
intent must operate in favour of the accused.
In conclusion, Section 3(5) of BNS reinforces collective responsibility in
criminal law while maintaining due safeguards against wrongful convictions. It
underscores the principle that shared intention transforms individual acts
into collective culpability, thereby ensuring justice in offences committed in
unison.
Note 2- Group Liability under BNS
Group liability is a principle that holds multiple individuals involved in a criminal act
accountable, regardless of the individual roles they play. In criminal law, this
ensures that people who act together with a shared intention or objective are
equally responsible for the consequences. The Bharatiya Nyaya Sanhita, 2023
(BNS), India's reformed criminal code, addresses these liabilities under different
sections, ensuring that all individuals participating in or contributing to a crime are
punished.

A. Joint Liability (Section 3(5) of BNS): Joint liability applies when two or
more people act together with a common intention to commit a criminal act.
In such cases, each person involved is treated equally liable for the crime,
even if only one of them performed the physical act.
o Key Elements of Joint Liability:

 Common Intention: All individuals must share the same intent

or goal to commit the crime.
 Multiple Participants: At least two people must be involved.
 Criminal Act: The act must be executed as a result of their
shared intention.

o Example of Joint Liability: Two friends plan a robbery: If two people

plan and rob a bank, even if one person stands guard while the other
enters the bank, both are equally liable for the robbery.
o Illustration: A and B decide to rob a shop. A keeps watch while B
steals valuables. Even though A didn't steal anything directly, both are
equally responsible under Section 3(5) of BNS because they acted with
a common intention.

B. Criminal Knowledge or Intention (Section 3(6) of BNS): This section

holds individuals liable when a criminal act is committed with knowledge or
intent that makes the act illegal. Even if different people perform different
actions, each one is treated as though they committed the crime themselves.
o Key Elements:

 Knowledge/Intention: The crime must be committed

knowingly or intentionally.
 Participation: Everyone involved is held liable, regardless of
their individual role.

o Example: A group of people plans to defraud someone. If each

member knowingly plays a part—such as one person falsifying
documents and another communicating with the victim—both are
equally liable for the fraud.
C. Cooperation in Offense (Section 3(8) of BNS): This section applies when
a crime is committed through multiple acts by several people working
together. Anyone who intentionally contributes to the crime is liable for the
entire offense.
o Key Elements:

 Multiple Acts: The offense involves a series of actions.

 Cooperation: Participants deliberately cooperate in carrying
out the crime.
 Equal Liability: Each person is responsible for the entire crime,
even if they did not perform all the acts.

o Example: A group is involved in a scam: One person handles funds,

another creates fake profiles, and a third contacts victims. Each person
is equally liable for the entire scam.

D. Abettor's Liability (Section 54 of BNS): Under Section 54, anyone who

instigates, aids, or supports a criminal act is held equally liable as the main
offender, even if they did not directly commit the crime.
o Key Elements:

 Presence at the Scene: The abettor must be present during

the offense.
 Support or Instigation: The abettor provides help or
encouragement to the principal offender.

o Example: Providing a weapon: If a person gives a gun to a robber and

is present during the robbery, they are equally liable for the robbery.

E. Constructive Liability (Section 190 of BNS): Constructive liability occurs

when members of a group or unlawful assembly are held responsible for
actions taken by any member of the group in furtherance of a common
unlawful objective.
o Key Elements of Constructive Liability:

 Unlawful Assembly: The group must consist of at least five

persons (as defined in Section 189 of BNS).
 Common Object: The unlawful act must be committed to
pursue the group's shared goal.
 Participation: All individuals in the assembly at the time of the
crime are held liable.

o Example of Constructive Liability: Five people plan arson: If five

people form a group to set fire to a building and one of them actually
starts the fire, all members are liable for the offense.
 o Illustration: A mob of six people attacks a house with the intention of
harming its residents. Even if only one person from the mob hits a
resident, the entire group is liable under Section 190 because the act
was committed to further their shared objective.

F. Dacoity With Murder (Section 310 of BNS): Under Section 310, if a

murder occurs during a dacoity (a gang robbery), all members involved in the
dacoity are held liable for the murder, regardless of who actually committed
the killing.
o Example: During a dacoity, one gang member kills a guard. Even if
the others didn't plan the murder, all members are held liable for the
killing under Section 310.

G. Lurking House Trespass (Section 331 of BNS): If a group trespasses or

breaks into a house and death or serious injury occurs, all participants are
liable for the outcome under Section 331.
o Example: If a group enters a house to steal and a resident dies during
the act, all participants are liable for the death, even if only one person
directly caused it.

Landmark Supreme Court Judgments Relevant to Group Liability

 Mehboob Shah v. Emperor (1945):
o Facts: Two men attacked a victim, and only one dealt the fatal blow.

o Ruling: Both were held liable under joint liability since they acted with
a common intention.

Legal aid services

 Pandurang v. State of Hyderabad (1955):
o Facts: A murder was committed by a group, but it was unclear who
planned it.
o Ruling: The court emphasized that common intention requires prior
agreement or planning.

 Kirpal Singh v. State of U.P. (1954):

o Facts: A fight escalated into murder, but the intention to kill arose on
the spot.
o Ruling: Joint liability can form even during the commission of the act.

The Bharatiya Nyaya Sanhita, 2023 addresses both joint and constructive liability,
ensuring that individuals acting together in a crime are equally accountable.
Whether it is planning a robbery, participating in a scam, or being part of an
unlawful assembly, the law ensures that each member is held responsible for their
role.
Note 3- Criminal liability
Criminal liability is defined as something wherein there is accountability and
responsibility to another by way of legal criminal sanction[1]. The term criminal
responsibility refers to a person's ability to understand his or her conduct when a
crime is committed. In other words, what a person thinks when he commits a crime,
or what result is anticipated or expected when a crime is committed. Laws define
crimes as an act or omission (actus reas) and a mental state (mens reas). Criminal
responsibility relates to the mental state element of a crime.

The general rule of criminal liability is that it primarily attaches to the person who
actually commits an offence, and only such person can be held guilty and punished
for the offence. But according to Section 3(5), when several persons do a criminal
act in furtherance of the common intention of all, each such person is liable for that
act in the same manner as if it were done by him alone.

Section 3(5) deals with a situation where an offence requires a particular criminal
intention or knowledge and is committed by several persons. Each of them who
joins the act with such knowledge or intention is liable in the same way as if it were
done by him alone with that intention or knowledge. The liability of individuals
under this circumstance is called Joint Liability. The principle of Joint Liability defined
in section 3 (5) is as follows:

Principles:
Section 3 (5)- Acts done by several persons in furtherance of common
intention-
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.
S.3 (5) of BNS deals with the doing of separate acts, similar or diverse, by several
people if all are done in furtherance of common intention, each person is liable for
the result of them all, as if he had done them himself.
Ingredient of Section 3 (5):
The S.3(5) having the following major ingredients
1. Commission of a Criminal Act
According to the composition of this section, there is essential that a criminal act
must be done. The criminal act is commonly known as that act which is prohibited
by law and is carried out in violation of the limits prescribed by law is a criminal act.
2. Prior meeting of minds in furtherance of Common Intention:
The most important ingredient is a prior meeting of mind of all persons involved in
the act committed. It is essential that the act done by several persons should be in
furtherance of the common intention of all the persons involved. It may happen
even at a single moment or during the commission of an offence. If it is proved that
what the several accused did are clearly individual acts ‘done of their own accord
rather than acts done in furtherance of a prior meeting/pre-arranged plan or
arrangement, the liability of each accused can be in respect of his own individual
act and not under S. 3 (5) NBS To constitution common intention it is very necessary
that the intention of each one of them be known to rest of them and shared by
them.
3. Offence by several persons:
The criminal act must be done by several persons. Common intention is the
prearranged plan of several persons. The S.3 (5) is only applied when the accused is
more than one.
4. Principle of joint liability:
Section 3 (5) does not create any distinct offence but nearly lays down the principle
of joint liability.
Common Intention and Similar Intention
Common intention does not mean similar intentions for several persons. To
constitute common intention it is necessary that the intention of each one of them
be known to the rest of them and shared by them. This section 3 (5) is only a rule of
evidence and does not create a substantive offence. This section only applies with
other penal sections which deal with the punishment of the offence[2].
In the case of Dukhmochan Pandey v. State of Bihar[3], the complainant had sent
about 20 labourers to his field to transplant paddy. On the mid-day, the accused
party came as a mob of about 200 people armed with various deadly weapons.
They asked labourers to stop the work, and when the complainant objected to this,
the two accused directed the mob to kill the labourers. The mob started assaulting
the labourers, and as a result, these two labourers died. When the police party
reached, the mob fled from the spot. The death was established to have been
caused by injuries inflicted by shock and haemorrhage caused by injuries inflicted
with sharp-pointed weapons.
The Supreme Court, in this case, held that: “Common intention which developed at
the spur of the moment is different from the similar intention actuated a number of
a person at the same time….the distinction between a common intention and
similar intention may be fine but is nonetheless a real one and if overlooked, may
lead to a miscarriage of justice….”
The mere presence of the accused together is not sufficient to hold that they shared
the common intention to commit the offence in question. It is necessary that the
intention of each one of ‘several persons’ be known to each other for constituting
common intention[4].
Interpretations
From the various interpretations of Apex Court and guideline given in different
cases, some interpretations could be drawn to impose Joint Liability under section
34 (Now section 3(5) BNS). These are –
i. To establish common intention premeditation of minds is necessary. There should
be a prior meeting of minds which activated common intention and criminal act
should have been done in furtherance of common intention.
ii. There may be a situation in which premeditation was not present, but intention
developed at the spur of the time, but it should be shared among one another.
iii. To prove common intention is very hard because it is the mental thinking of the
accused at that point of time. So it has to be culled out from the facts and
circumstances of each case.

There is a difference between common intention and similar intention, and s.3 (5)
can be invoked only when the accused shares a common intention and not a similar
intention.
Unless the common intention is proved, an individual will be liable for his own act
and not otherwise. They will be dealt with under s.3 (9) of IPC. And if there is any
doubt, the benefit of the doubt should be given to the accused[5].

Judicial Response
One of the earliest cases came before the court under s.34 (Now section 3(5)
BNS)under the principle of Joint Liability was Barendra Kumar Ghosh v. King
Emperor[6]. This case is also known as the ‘Post Master Case’. In this case, the
accused Barendra with other three persons went to Shankaritola post office at
about 3.30 pm on the 3rd August 1923 armed with firearms. The accused stood
outside the post office while the other three entered the post office through the
backdoor of office. They asked postmaster Amrita Lal Roy to give the money which
he was counting. When he refused, then others three opened fire from the pistol
and fled from the place. As a result of which he died almost immediately. Seeing
others running the accused also ran away by air firing with his pistol. But he was
chased and caught by a post office assistant. He was charged with others under
s.302 (murder to postmaster) (now section 103 BNS) and s.394 (causing hurt in
doing robbery) (Now 309(6) BNS) with s.34(Now section 3(5) BNS) in the common
intention of all. He contended that he was only standing guard outside the post
office and he did not have the intention to kill the postmaster. Calcutta High Court
confirmed his conviction of murder under s.302 with s.34. In the appeal before the
Privy Council, Lord Sumner dismissed the appeal against the conviction and held
that – “criminal acts means that unity of criminal behaviour which results in
something for which an individual would be responsible if it were all done by himself
alone, that is, in criminal offence.”

The other important case that came before the Supreme Court was Rangaswami v.
State of Tamil Nadu[7]. The occurrence took place at about 11.45 pm on 16.08.1973
in Big Bazar Street, in which one Jayaram was murdered. In this case, the session
court convicted A-1 under s. 302 (now section 103 BNS)and sentenced him to
death. A-2 and A-3 were charged under s. 307 (now section 109 BNS) with s.34
(now section 3 (5) BNS)and sentenced to rigorous imprisonment of 8 years by a
session judge. The High Court, considering the fact, altered the decision of the
session court and enhanced the sentences of A-2 and A-3 to imprisonment for life
under s. 302 with s.34. And the death sentence of A-1 was modified for
imprisonment for life. Against this conviction, A-3 appealed to the Supreme Court
and contended that he was only in a friendly relationship with A-1 and A-2, but he
did not share common intentions with them. It was by mere chance that he
appeared at the spot of occurrence, and he did not participate in the offence. In this
case, there was a prior enmity between the deceased and A-1 and A-2 because the
deceased was accused of murdering the brother of A-1, and he was actually on bail.
Supreme Court held that even though the presence of A-3 was established he did
not share common intention, and he was unfamiliar with the plan. Therefore, he
was acquitted of all of the charges.

Common Object
The offence dealing with Group Liability or Vicarious Liability of members comes
under Chapter XI of the Bhartiya Nyaya Sanhita. This chapter deals with offences
against Public Tranquility from s.189 to s.197. The first section of this chapter,
s.189, defines Unlawful Assembly, for which there should be five or more persons
and some common objects for which they have made that assembly.

Section 189. Unlawful assembly-An assembly of five or more persons is

designated an “unlawful assembly“ if the common object of the persons composing
that assembly is-
First- To overawe by criminal force, or show of criminal force, the Central or any
State Government or Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public servant; or
Second - To resist the execution of any law, or of any legal process; or
Third -To commit any mischief or criminal trespass, or other offence; or

Fourth- By means of criminal force, or show of criminal force, to any person, to

take or obtain possession of any property, or to deprive any person of the
enjoyment of a right of way, or of the use of water or other incorporeal rights of
which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth- By means of criminal force, or show of criminal force, to compel any person
to do what he is not legally bound to do, or to omit to do what he is legally entitled
to do.
Explanation – An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.

Ingredients of Unlawful Assembly-

(i) Commission of an offence: The first importance essential of this section is the
commission of an offence by any member of an unlawful assembly. S. 190 can only
be applied if a person of an unlawful assembly committed a crime.
(ii) five or more person member of unlawful assembly: According to the
essential of S. 190, the offence must be committed by five or more members of
unlawful assembly. Here, we understand the meaning of unlawful assembly which
as under:
(a) According to Black’s Law Dictionary: ‘A meeting of three or more persons who
intend either to commit a crime or to carry out some act, lawful and unlawful that
will constitution a breach of the peace”.
(b) According to S.189 I.P.C.; According to that section, unlawful assembly means
the assembly must consist of five or more persons having one of the five specified
objects as their common object.
When the number of the persons reduces from five for trial for the reason that some
were acquitted for the charges then the s. 189 will become inapplicable. But if there
is a clear indication that some other unidentified persons are involved in the crime
then this section can be applied.

In Ram Bilas Singh v. State of Bihar[8], Supreme Court held that:

“it is competent to a court to come to the conclusion that there was an unlawful
assembly of five or more persons, even if less than that number have been
convicted by it if:

i. the charge states that apart from the persons named, several other unidentified
persons were also members of the unlawful assembly whose common object was to
commit an unlawful act …..

ii. or that the first information report and evidence show such to be the case even
though the charge does not state so.

iii. or that though the charge and prosecution witnesses named only the acquitted
and the convicted accused persons there is other evidence which discloses the
existence of named or other persons”

(iii) In Prosecution of Common Object:

Some offences must be committed by any member of unlawful assembly in

prosecution of the common object of that assembly. Object means the purpose, and
it will be common when it is shared by the members of the unlawful assembly. A
common object may be formed at any stage by all or a few members of the
assembly. The explanation of this section shows it clearly. However, the common
object is entertained in the human mind, so there can be no evidence to prove
directly about this. It is a question of the facts and can be culled out on the basis of
the facts and circumstances of each case. It can be determined from the nature of
the assembly, the kinds of arms and their uses by it, behaviour and the language of
the members of the assembly used before and after the incident. If only four out of
the five assembled persons have a common object and not a fifth, then that
assembly is not an unlawful assembly. Simple onlooker or family of the parties
cannot become a member of unlawful assembly unless they actively participated or
encouraged the violence.

In Moti Das v. Bihar[9] Supreme Court held that pre-concert is not necessary. An
assembly may be lawful in beginning but may turn into unlawful later.
Being a member of Unlawful assembly is itself a crime and s.191 prescribes the
punishment of six months, or fine, or both for being a member of that assembly.
In Bhudeo Mandal v. State of Bihar[10], the Apex Court held that before convicting
any person with the aid of s.149 (now 190 BNS), the evidence must clearly establish
not only the common object but also show that the common object was unlawful.
In Ram Dhani v. State[11], there was a dispute over land and the complainant party
resorted to cutting crop grown by the accused party. The later were more than five
in number and assembled to prevent the cutting. The court held that the persons
acting in self-defence of the property cannot be members of an unlawful assembly.
And so they could not be said to form an unlawful assembly.
(iv) Knowledge of Happening of an Offence:

The member of an unlawful assembly is also liable where the offence was
committed such as the member of the assembly knew to be likely to be committed
in prosecution of that object.
The word ‘knew’ is used in the second part of the s. 190, which implies more than a
possibility but less than might have known. An offence committed in prosecution of
common object would generally be an offence which the members of the assembly
knew was likely to be committed[12]. This phrase means that the offence
committed was immediately connected with the common object of the unlawful
assembly, of which the accused were members. The word ‘in the prosecution of
common object’ means that the offence committed was immediately connected
with the common object of the assembly or in order to attain a common object[13].

In Rambilas Singh and others v. State of Bihar[14], the case of the prosecution was
that deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them
plucking Khesari crops from his field. And so he abused them and snatched away
the plucked plants and their baskets. In retaliation for it, the 16 accused persons
had lay in wait for him on that night and attacked him at about 9.30 P.M. when he
was returning home with his brother PW-22 and two other witnesses PWs 1 and 18
after attending a barat. PW-22 stated that 16 persons surrounded Kumar Gopal
Singh and then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal
Singh as a result of which he died. The Session Judge acquitted all the persons A-1
to A-15 who were charged under s.302 with s.149, but convicted A-16 (Dinesh
Singh) who was charged directly under s.302. In the High Court, A-1 and A-9 were
acquitted while A-2 and A-6 died during the pendency of the appeal. The High Court
convicted the rest of the accused A-3, A-4, A-5, A-7, A-8, A-10 to A-15. On appeal,
further Supreme Court set aside the conviction of accused by High Court under
s.302(now section 103 BNS) with s.149 (Now 190 BNS) and held that in order to
convict persons vicariously under Section 34 (now 5(3)) or Section 149 IPC, it is not
necessary to prove that each and every one of them had indulged in overt acts.
Even so, there must be material to show that the overt act or acts of one or more of
the accused was or were done in furtherance of the common intention of all the
accused or in the prosecution of the common object of the members of the unlawful
assembly. In this case, such evidence is lacking and hence the appellants cannot be
held liable for the individual act of Dinesh Singh.

Principle:

S. 190 BNS deals with the doctrine of vicarious liability and recognize the doctrine
of vicarious liability and recognize the principle of joint in the doing of a criminal act
and is an exception to the general rule that a person is liable only for his own acts”.
Once an assembly has become unlawful then all things done in the prosecution of
the common unlawful object of that assembly are chargeable against every
member thereof. The liability of every member extends not only to the acts
intended by all to be done but also to those offences which are likely to be
committed to achieving the common object.

Difference between Section 3(5) & 190:

Section 3(5) does not create any specific offence but only lays down the principle of
joint criminal liability.
Whereas s.190 creates specific offence and being a member of an unlawful
assembly is itself a crime, which is punishable under s.191.
2. ‘Common intention’ used in s.3 (5) is not defined anywhere in BNS,

while ‘common object’ in s.190 must be one of the five ingredients defined in s. 191
of BNS.

3. Common intention requires a prior meeting of mind and unity of intention and
overt act has been done in furtherance of the common intention of all.

A common object may be formed without a prior meeting of mind when the
common object of the members of the unlawful assembly is one but the intention of
participants is different. It only requires that criminal act has been done in
furtherance of the common object.
4. For invoking s.3(5) it is sufficient that two or more persons were involved.
However, there has to be a minimum of five persons to impose s.190.
5. The crucial factor of s.3(5) is ‘participation’ while there is no need of active
participation in s.190 of BNS.

Note 4 – Principle of Criminal Liability

The principle of criminal liability is that the person who commits an offence is
responsible for that and he can only be held guilty for that offence. Normally
criminal liability is an individual liability because it requires proof of both mens
rea and actus reus. But crime need not be done individually. Many times criminal
acts of serious nature are done in a group. When several persons are involved in
the prosecution of a criminal act, it becomes difficult to distinguish the role of
different participants if the result of all actions combined is the intended criminal
consequence. Sections 3(5) to 3(9), 190, 61(1), 148, 310(3) and 331(8) of the
Bharatiya Nyaya Sanhita, 2023 (BNS) deals with joint criminal liability. Sections 3(5)
to 3(8) deal with the provisions which fix criminal liability on the basis of common
intention and common object. In this article, we shall discuss the concept of group
or joint criminal liability

Offence committed by groups of persons are of frequent occurrence and courts are
called upon to determine the liability of each member for the crime committed by
the entire group or by any member or members thereof.

Group liability is a term used for people who have committed an act in pursuance of
a common intention, where each of the persons is liable in the same manner, as
this act was done by them alone. The Indian Penal Code contains a few provisions
laying down principles of joint and constructive liability in this behalf. Amongst
these Sections 3(5) BNS and 190 BNS present constantly recurring problems in the
matter of interpretation of the language used in those sections.

Section 3(5) BNS:

Acts done by several persons in furtherance of common intention:

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.

Ingredients of Section 3(5) BNS:

o Criminal act done by several persons

o The act is done in furtherance to common intention
o The nature of participation is irrelevant.

Common Intention:

Intention means guilty mind, ‘purpose of desire to bring about a contemplated

result or foresight that certain consequences will follow from the conduct of the
person.’ When two or more persons share this guilty desire it is common intention.
The term ‘common intention’ means a prior concert, i.e. a meeting of minds and
involvement of all group members in the execution of that plan. The acts performed
by each participant may vary in personality but must be carried out with the same
common intention.

If A, B and C make a plan to kill D and in the execution of the crime, A buys a
poison, B mixes it in food and C gives it to D as a result of which D dies, it would be
unjust to hold only C liable for murder. To deal with such cases, criminal law has
provisions for joint liability or group liability or vicarious liability. As a result of this
law, a person becomes vicariously liable for the result of the action of the group of
which he is a member.

Characteristics of Common Intention:

 o Common intention is different from same or similar intention
o It should be Prior or Antecedent to the Occurrence
o It may develop during the course of the occurrence and could develop on the
spot
o It is different from same or similar Intention

Common intention denotes the meeting of mind of the persons accused of an

offence. This requires prior concert. It can also develop on the spot after the
offenders have gathered there.

In Surendra Chauhan v. State of Madhya Pradesh, AIR 2000 SC 1436 case,

a doctor was neither competent to terminate pregnancy nor had the approval of the
government. His clinic lacked the basic instruments necessary for the purpose. The
victim was taken to that clinic by a person for termination of the pregnancy of the
victim and she died in the process. The doctor and the person who took her to the
clinic were held liable for the death of the victim as the crime was committed in
furtherance of the common intention. In this case, the two accused knew that the
clinic did not have the facility for termination of pregnancy and the doctor did not
have the competence to complete the procedure without hazard. Still, they
concerted and carried on the termination of the pregnancy of the victim. Hence
there was the common intention of the two accused to undertake a procedure
illegally and in furtherance of their common intention, they subjected the victim to
the abortion process as a result of which the victim dies. Hence there was a
common intention, an act was done in furtherance of the common intention and
each of the two accused participated in the criminal act. One brought the victim to
the clinic and the other applied the procedure on the victim.

In Kripal Singh v. State of Uttar Pradesh, AIR 1954 SC 706 case, there was a
dispute over land between the accused and the victim. One morning the three
accused tried to stop labourers from working in the field which the labourers tried
to resist. When the victim intervened two accused hit him with sharp weapons. The
third accused stabbed the victim with a spear blade which struck the victim in the
jaw. The victim died on the spot. The court held that the three accused were liable
under s. 326 read with s. 34. However, the third accused alone was liable for
murder. The common intention which developed on the spot was to attack the
victim with sharp weapons. The other two accused did not intend to murder the
victim.

In Barendra Kumar Ghose v King-Emperor, AIR 1924 Cal 545 case, four men
attacked the office of the postmaster while he was counting money. Three of them
entered the office and demanded the money. Thereafter they opened fire at the
postmaster and fled with the money. Appellant who was one of the party was
standing outside the office all this time. He was visible from inside and could see
what was happening inside. The defence of the appellant was that he was
frightened and he did not participate in the crime and was merely standing outside
the office. Lord Summer observed: “the leading feature of s. 34 of the Indian Penal
Code is ‘participation’ in action. To establish joint responsibility for an offence, it
must of course be established that a criminal act was done by several persons; the
participation must be in doing the act, not merely in its planning. A common
intention–a meeting of minds–to commit an offence and participation in the
commission of the offence in furtherance of that common intention invites the
application of s. 34 IPC (S. 3(5) BNS). But this participation need not in all cases be
by physical presence. In offences involving physical violence, normally the presence
at the scene of the offence of the offenders sought to be rendered liable on the
principle of joint liability may be necessary, but such is not the case in respect of
other offences where the offence consists of diverse acts which may be done at
different times and places.” The Court held that his participation was sufficient to
make him vicariously liable for the actions of the other participants in the group.
Whether the accused had participated or not has to be decided on the basis of facts
surrounding the case.

In Jaikrishnadas Manohardas Desai v. The State of Bombay, AIR 1960 SC

833 case, J M Desai and his co-appellant were the Managing Director and a Director
cum technical Expert respectively of a cloth dyeing company Parikh Dyeing and
Printing Mills Ltd. The company entered into a contract with the Textile
Commissioner undertaking to dye a large quantity of cloth which was supplied to
the company for that purpose. In pursuance of the contract certain quantity of cloth
was dyed and delivered to the Textile Commissioner by the company but it failed to
dye and deliver the balance of cloth which remained in its possession and was not
returned to the Textile Commissioner in spite of repeated demands. Ultimately the
two appellants were prosecuted for criminal breach of trust under S. 409 IPC (S.
316(5) BNS) read with S. 34 of the Indian Penal Code (S. 3(5) BNS) and were
convicted for the same in a trial by jury. In appeal, the High Court found that the
two appellants were liable to account for the cloth over which they had dominion,
and having failed to do so each of them was guilty of the offence of criminal breach
of trust. In this case, the Court observed: “The essence of liability under S. 34 of
the Indian Penal Code (S. 3(5) BNS) is the existence of a common intention
animating the offenders and the participation in a criminal act in furtherance of the
common intention. The physical presence at the scene of the offence of the
offender sought to be rendered liable under S. 34 IPC (S. 3(5) BNS) is not, on the
words of the statute, one of the conditions of its applicability in every case.”

Difference Between Common Intention and Same Intention:

Common intention is different from same or similar intention. ‘To constitute

common intention it is necessary that the intention of each person be known to all
the others and be shared by them.’

In Mahboob Shah v. Emperor, AIR 1945 PC 118 case, Allah Dad and few others
were trying to collect reeds from the bank of the Indus river. They were warned by
Mahboob Shah against collecting reed from lands belonging to him. Ignoring the
warning the deceased collected reeds but was stopped by Qasim Shah, nephew of
Mahboob Shah while he was placing them on the boat. Qasim Shah was hit by the
victim by a bamboo pole. On hearing Qasim Shah’s cries for help, Mahboob Shah
and his son Wali Shah came armed with their guns. Wali Shah fired at the victim
who died instantly and Mahboob Shah fired at another person causing him some
injuries. Lahore High Court sentenced Mahboob Shah with the murder of the victim
under s. 302 IPC (S. 103(1) BNS) read with s. 34 IPC (S. 3(5) BNS). But on appeal
Privy Council set aside the conviction for murder for Mahboob Shah stating that
common intention required pre-arranged plan and it has to be proved that the
criminal act was done in concert pursuant to a prearranged plan. Here the two
accused might be having the same or similar intention but not the common
intention and since the firing of Mahboob Shah did not kill anyone he was not held
liable for murder by the application of s. 34 IPC (S. 3(5) BNS).

Section 3(6) BNS:

When such an act is criminal by reason of its being done with a criminal
knowledge or intention:
Whenever an act, which is criminal only by reason of its being done with a criminal
knowledge or intention, is done by several persons, each of such persons who joins
in the act with such knowledge or intention is liable for the act in the same manner
as if the act were done by him alone with that knowledge or intention.

Section 3(7) BNS:

Effect caused partly by act and partly by omission:

Wherever the causing of a certain effect, or an attempt to cause that effect, by an

act or by an omission, is an offence, it is to be understood that the causing of that
effect partly by an act and partly by an omission is the same offence. Illustration A
intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly
by beating Z. A has committed murder.

Section 3(8) BNS:

Co-operation by doing one of several acts constituting an offence

When an offence is committed by means of several acts, whoever intentionally co-

operates in the commission of that offence by doing any one of those acts, either
singly or jointly with any other person, commits that offence.

Illustrations

A and B agree to murder Z by severally and at different times giving him small
doses of poison. A and B administer the poison according to the agreement with
intent to murder Z. Z dies from the effects of the several doses of poison so
administered to him. Here A and B intentionally co-operate in the commission of
murder and as each of them does an act by which the death is caused, they are
both guilty of the offence though their acts are separate.

Section 3(9) BNS:

Persons concerned in criminal act may be guilty of different offences:

Where several persons are engaged or concerned in the commission of a criminal

act, they may be guilty of different offences by means of that act.

Illustration:

A attacks Z under such circumstances of grave provocation that his killing of Z

would be only culpable homicide not amounting to murder. B, having ill-will towards
Z and intending to kill him, and not having been subject to the provocation, assists
A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is
guilty of murder, and A is guilty only of culpable homicide.

Section 190 BNS:

Every member of unlawful assembly guilty of offence committed in prosecution of
common object: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.

Acts under Section 3(5) BNS must be carried out with a single purpose, but criminal
acts under Section 190 BNS must be carried out with a common object. Section 3(5)
BNS requires active engagement, no matter how minor or inconsequential but
Section 190 BNS, however, simply being a member of an unlawful assembly is
enough to bring criminal charges.

in Amar Singh v. State of Haryana, AIR 1973 SC 2221 case, where the
conviction for an offence under Section 302 (S. 103(1) BNS) read with Section 34
IPC (S. 3(5) BNS), despite the fact that the accused was charged under Section 302
IPOC (S. 103(1) BNS) read with Section 149 IPC (S. 190 BNS), was not illegal
because the facts proved and evidence adduced would have been the same if the
accused had been charged under Section 302 (S. 103(1) BNS) read with Section 34
of the Indian Penal Code, 1860 (S. 3(5) BNS).

In Barendra Kumar Ghosh v. Emperor, (1925) 27 BOMLR 148 case, the

distinction between Sections 149 IPC (S. 90 BNS) and 34 IPC (S. 3(5) BNS), was
pointed out. It was observed that Section 149 IPC (S. 190 BNS) postulated an
assembly of five or more persons having a common object, namely, one of those
objects named in Section 141 IPC (S. 189(1) BNS), and then the doing of acts by
members of the assembly in prosecution of that object or such as the members
knew were likely to be committed in prosecution of that object. It was pointed out
that there was a difference between common object and common intention; though
the object might be common, the intention of the several members might differ.
The leading feature of Section 34 (S. 3(5) BNS) is the element of participation in
action, whereas membership of the assembly at the time of the committing of the
offence is the important element in Section 149 IPC (S. 190 BNS). The two sections
have a certain resemblance and may to a certain extent overlap, but it cannot be
said that both have the same meaning.

In Nanak Chand v. State of Punjab, AIR 1955 SC 274 case, where the
prosecution had argued that s. 149 does not create any offence and merely
provides for constructive guilt similar to s. 34 of the IPC. Negating the contention of
the prosecution, the Supreme Court stated that section 34 is merely explanatory
and does not create any specific offence but same is not true about s. 149. The
Court observed that the principal element in section 34 of the Indian Penal Code is
the common intention to commit a crime. In furtherance of the common intention
several acts may be done by several persons resulting in the commission of that
crime. In such a situation section 34 provides that each one of them would be liable
for that crime in the same manner as if all the acts resulting in that crime had been
done by him alone.’ There is no question of common intention in section 149 of the
Indian Penal Code. An offence may be committed by a member of an unlawful
assembly and the other members will be liable for that offence although there was
no common intention between that person and other members of the unlawful
assembly to commit that offence provided the conditions laid down in the section
are fulfilled. Thus if the offence committed by that person is in prosecution of the
common object of the unlawful assembly or such as the members of that assembly
knew to be likely to be committed in prosecution of the common object, every
member of the unlawful assembly would be guilty of that offence, although there
may have been no common intention and no participation by the other members in
the actual commission of that offence.

In Chikkarange Gowda And Ors. vs State Of Mysore, AIR 1956 SC 731 case,
where a mob of about 100 persons rushed towards a house at noon where two
brothers Putte Gowda and Nanje Gowda were found. The mob sprinkled kerosene
oil on the roof and started burning the house. When the inmates of the house came
out the two brothers were brutally assaulted and this resulted in their death. Four
appellants were members of the mob. Appellant 1 had hit Putte Gowda on Abdomen
with a cutting instrument, appellant 4 hit Putte Gowda on the knee with a chopper.
Second appellant hit Nanje Gowda with a spear and third appellant hit Nanje Gowda
on the head with axe. The appellants along with several others were charged under
section 148, 302 and 302 with ss. 34 and 149 on the ground that the common
object of the assembly was to kill Putte Gowda. However, it was found that the
common object of the assembly was only chastisement of Putte Gowda. The
question was whether four appellants can be held liable for separate common
intention of causing death of Putte Gowda? The Supreme Court held that appellant
1 and 4 could not be held guilty of murder on the principle of joint liability under
section 34 because they were not given any notice and reasonable opportunity to
present their case on separate common intention of three persons of causing death
of Putte Gowda and Nanje Gowda as separate from common object of the unlawful
assembly which was chastisement only. Hence they had to be judged for their
individual actions which went beyond the common object of the unlawful assembly.
None of the injuries caused by the two appellants was fatal in nature. Hence they
were held liable under ss. 326 and 148 IPC only. Appellant 2 was charged with
causing spear wound to Nanje Gowda which was not found to exist in the medical
evidence, hence he was also charged only under s. 148. Appellant 3 had hit Nanje
Gowda on head with axe which was found to sufficient to cause death and hence he
was held guilty under section 302 IPC.

Distinguish Between Common Intention and Common Object:

Common Intention Common Object

There is a pre-existing Common object refers to the end
understanding and agreement result or the main purpose of
between two or more individuals to committing the crime. It is the
commit a crime together. objective or goal that the accused had
in mind when committing the crime
Common intention is established Common object is established during
before the commission of the crime the commission of the crime as end
as pre-agreement for crime. goal of committing crime.
Common intention does not have to Common object must be the same as
be the same as the actual intention the actual intention of the accused, as
of the accused due to pre- it refers to the objective or goal
agreement.
Common intention can be inferred Common object must be proven
from the actions and statements of through evidence, as it refers to the
the accused objective or goal of committing crime.
Common intention is often used in Common object is often used in cases
cases involving conspiracy and involving crimes such as murder,
criminal breach of trust, as it refers theft, and rioting, as it refers to the
to a pre-existing agreement objective or goal of the crime that is
between individuals to commit a being committed.
crime.
The punishment for common The punishment for common object is
intention is the same as the the same as the punishment for the
punishment for the intended crime committed crime.

Section 310(3) BNS:

Dacoity with murder:

If any one of five or more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall be punished with
death, or 1[imprisonment for life], or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.