As a general rule the person who commits the crime is held resposible and has to suffer consequences. However, Section 3(5) and 190 of BNS make an exception to this general rule by imposing criminal liability on persons who 'in furtherance of common intention' or 'Prosecution of common object' participated in the commission of offence. In such circumstances each of them becomes jointly liable.
Section 3(5) to Section 3(9) of BNS lay down liability of individual for their concerted criminal behaviour. Section 3(5) provides that 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. The expression 'in furtherance of common intention of all' was added by Amendment of 1870.
The principle incorporated in Section 3(5) is called principle of joint liability. In Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 Privy Council held that every person engaged in the commission of crime is held resposible by virtue of his or her partcipation in the criminal act, even if the particular act in question was not performed by one or other member of the group.
Section 3(5) of BNS does not create a specific offence. It only lays down a rule of evidence that if two or more persons commit a crime in furtherance of a common intention each of them will be liable jointly on the principle of joint liability [Gurudutt Mal v. State of Uttar Pradeseh, AIR 1965 SC 257].
The object of Section 3(5) is to find out the acts committed by individual members or to find out what part was taken by each of them in furthrance of common intention of all. It is intended to meet the situation wherein all the co-accused have also done something to constitute the commission of a criminal act.
Essential ingredients of Section 3(5)
i. Commission of some criminal act
ii. By more than one person
iii. In furtherance of common intention of all
iv. Each person is liable for the act as if it is done by him alone.
The term 'act' in Section 3(5) includes single act as well as series of acts [See Section 2(1)]. This is based on the principle that when several persons are engaged in committing a criminal act there is possibility that different members have committed different acts. Therefore, even though a particular act is committed by one individual, where common intention exists and they had all acted in furtherance of that common intention then all of them are liable for the offence.
Section 3(5) incorporates the principle of joint and constructive liability. It is a joint liability because all the accused can be jointly tried for the said offence and can be jointly held liable. It is called a constructive liability because the liability of the main accused is constructed upon the liability of the other accused. The main offence is committed by one person and other are held constuctively liable for the main offence.
When an offence is committed by one person and the liability of another person has to be created then there need to be established a link between the person who committed the offence and the one who has to be made liable along with the main accused. According to Section 3(5) this connecting link is common intention before the commission of offence and at the time of commission of offence the other accused should have actively participated in the commission of offence.
In Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1 Supreme Court held that to apply Section 34 of IPC [now Section 3(5) Of BNS], apart from the fact that there should be two or more accused, two factors must be established.
i. Firstly, common intention and
ii. Secondly, partcipation of accused in commission of offence.
If common intention is proved but no overt act is attributed to the individual accused Section 3(5) BNS will be attracted as it essentially involves vicarious liability but if participation of accused in crime is proved but common intention is absent, Section 3(5) BNS cannot be invoked.
Common intention
The essence of joint liability lies in common intention. Common intention implies a prior concert or prior meeting of minds. Once such agreement is formed they become mutual agents of each other and whatever is done by one of them with respect to common intention will be said to be done by another.
In Mahboob Shah v. Emperor, AIR 1943 PC 118 (Indus River case) the court held that common intention implies a pre-arranged plan, prior meeting of minds or prior consultation between all persons constituting the group. It must be proved that the criminal act was done in pursuant to the pre-arranged plan.
For example, A and B goes to kill X. B stood on the door so that X does not escape. A killed X by stabbing him. In this case both A and b will be liable for murder.
Supreme Court in Ashok Kumar v. State of Punjab, AIR 1977 SC 109 held that essence of liability under Section 34 IPC [Section 3(5) of BNS] is simultaneous consensus of mind of person participating in criminal action to bring about a particular result. Unless common intention is proved, individual offenders will be liable only for their individual acts. Proof of common intention is rarely available. It has to be culled out from the facts and circumstances of the case.
In Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (Post Office case) the court held that even if a person who does not do anything but if he has common intention he will be liable. The court held that Section 34 deals with doing separate acts, similar or diverse by several persons, if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. The court went on to hold that even if person did nothing and stood outside the door then also he will be liable if he shared common intention. The court said 'they also serve who only stand and wait'.
In Rishidev Pandey v. State of U.P., AIR 1955 SC 331 and Pandurang v. State of Hyderabad, AIR 1955 SC 216 Supreme Court held that common intention can develop on the spot also during the course of the commission of the offence. Common intention can be inferred from the conduct of the accused and the circumstances of the case. However, in such cases Supreme Court has held that unless there is clear proof and cogent evidence of common intention, Section 3(5) cannot be attracted [Sheoram Singh v. State of Uttar Pradesh, AIR 1972 SC 2555]. Supreme Court in State of Uttar Pradesh v. Rajvir Singh, (2007) 15 SCC 545 held that mere presence of accused together is not sufficient to hold that they shared common intention to commit the offence in question.
In Krishnamurthy @ Gunodu v. State fo Karnataka, (2022) 7 SCC 521 Supreme Court held that Section 3(5) to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the acutal act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurence. The manner in which the accused arrived, mounted the attack, nature and types of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 3(5) are satisfied. It was also held by the Court that Section 34 [Now Section 3(5) of BNS] or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.
In Mahboob Shah v. Emperor AIR 1934 PC 118 the court laid down the following principles:-
1. Essence of liability under Section 3(5) of BNS is found in 'common intention'.
2. To invoke Section 34 [Now Section 3(5) of BNS] it must be shown that act was done in furtherance of common intention.
3. Common intention implies pre-arranged plan and it must be proved that criminal act was done in concert pursuant to pre-arranged plan.
4. For intention to be common it must be known to all members and must also be shared by them.
In furtherance of common intention
In furtherance of common intention means any offence which is committed in order which is committed in order to fulfill the objective of their common intention. Therefore, if any other offence apart from the main offence which is agreed to be committed by formation of common intention is committed to support or felicitate the commission of the offence agreed upon, then all the other accused would be jointly and constructively liable for the commission of that offence.
In Girja Shankar v. State of Uttar Pradesh, AIR 2004 SC 1808 observed that Section 34 [Now Section 3(5) of BNS] does not say 'common intention of all' or 'intention common to all'. Under this Section the essence of liability is to be found in the existence of common intention animating the accused leading to doing of a criminal act in furtherance of such intention.
For example, A, B and C agree to kill X. After killing X they are returning back they are chased by Y. B kills Y also. In this case all of them i.e., A, B and C will be liable for murder of Y also.
Difference between similar intention and common intention
Common intention requires the proof of the fact that the accused had entered into an agreement with the main accused to commit the offence together. There has to be a clear evidence of said agreement. Apart from it active participation will also require to be proved. In case of similar intention each one will be held liable for their individual acts and not jointly for the acts of others.
In Pandurang v. State of Hyderabad, AIR 1955 SC 216 Supreme Court differentiated between similar intention and common intention. The court held that several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the specific section because there was no prior meeting of minds to form a pre-arragned paln. Common intention requires a pre-arranged plan or prior meeting of mind before person can held jointly liable.
Physical presence of all accused
Participation of everyone in the group in the criminal act is a dominant feature of liability under Section 3(5). However, Supreme Court in Virendra Singh v. State of MP, (2010) 8 SCC 407 held that participation need not in all cases by physical presence.
In Shree Kantia v. State of Bombay, AIR 1955 SC 287 Supreme Court had held that physical presence and active participation in crime is necessary but in J.N. Desai v. State of Bombay, AIR 1960 SC 889 Supreme Court observed that the physical presence and active participation is not necessary in all cases. In offences involving physical violence presence of accused apart from participation is essential. However, in other cases involving non-physical violence like misappropriation, cheating etc physical presence could not be a condiction precedent.
Necessity of overt act to be proved
Supreme Court in Krishnan v. State of Kerala, AIR 1997 SC 383 held that establishment of overt act in not the requirement of law to allow Section 34 [now Section 3(5) of BNS] to operate, what is to be established by the prosecution that all persons shared the common intention.
Unlawful Assembly
Section 189(1) defines an unlawful assembly while Section 189(2) states as to who can be said to be a member of an unlawful assembly and provides punishment to a member of an unlawful assembly. The basic object of criminalizing unlawful assembly is to discourage vociferous assemblage of persons inorder to preserve public peace.
The Five Ingredients of an Unlawful Assembly
For a group to be an "Unlawful Assembly," the following five conditions must be present:
Assembly of Five or More Persons:
There must be a gathering of five or more persons.
This is the fundamental numerical requirement. If the number drops below five, the assembly ceases to be "unlawful" under this section.
Common Object:
The members must share a common object. This means they have a shared purpose or goal that they intend to accomplish. This common object can be pre-planned or formed spontaneously on the spot.
The Object Must Be One of the Five Specified unlawful Purposes:
The common object must be to commit one of the following five acts:
(a) To overawe by criminal force: To use or show criminal force against the Central or State Government, Parliament, State Legislature, or any public servant in the lawful exercise of their power.
(b) To resist the execution of any law or legal process: To oppose the execution of any law in force or any legal process (such as a court order).
(c) To commit any mischief, criminal trespass or other offence: The object can be to commit any offence, with "mischief" and "criminal trespass" being specifically mentioned as common examples.
(d) To take possession of any property, or to deprive any person of any right, by criminal force: To enforce a right or claim over property, or to deprive someone of a right, by using criminal force.
(e) To compel any person by criminal force to do what he is not legally bound to do, or to omit what he is legally entitled to do: To force someone to act against their legal will.
Such Object is to be Accomplished by Criminal Force or Show of Criminal Force: The assembly must intend to use, or show the use of, criminal force to accomplish its common object. The plan or intention to use force is a key component.
Punishment for Membership (Section 189(2), BNS)
Section 189(2) states that whoever is a member of an unlawful assembly shall be punished with:
Imprisonment of either description for a term which may extend to six months,
or with a fine,
or with both.
First and foremost condition for unlawful assembly is requirement of five or more persons. An assembly of less than five persons cannot be termed as unlawful assembly and cannot be the basis of an offence.
However, Supreme Court in Mohan Singh v. State of Punjab, AIR 1963 SC 174 opined that the acquittal of some of five or more persons named in the chargesheet and tried and thereby reducing the number to less than five does not necessarily either displace or effect the validity of the charge under Section 149 [Now section 190 of BNS], if the court is able to reach to the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five who have not been identified and so have not been named.
Common object
Common object means the ultimate goal or the purpose for which various persons agreed together. The word 'object' means the purpose of design to do a thing aimed at and that the object must be 'common' to the persons who comprise the assembly. The object must be shared and possessed by all the members of the assembly. Law does not declare mere assembly of men illegal. In order to make the assembly illegal it has to be proved that the members of the assembly had a common object as set out in Section 189(1)
The object of the assembly must be possessed and shared by all members of the assembly. The common object of the assembly should be one of the mentioned in Section 189(1). The members should be aware of the common object and they should concur in it. Common object should be inferred from facts and circumstances of each case.
In Bhagwan Jagannath Markad v. State of Maharashtra, AIR 2016 SC 4531 Supreme Court held that sharing of common object is the mental attitude which is to be gathered from acts of person and result thereof.
The expression 'in prosecution of common object' postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. The expression is to be construed as equivalent to 'in order to attain common object' [Vijay Pandurang Thakre v. State of Maharashtra, AIR 2017 SC 897].
In Muthu Naicker v. State of Tamil Nadu, AIR 1978 SC Supreme Court held that a person who is present in the unlawful assembly as a curious spectator does not become one of the members of that unlawful assembly. In Madan Singh v. State of Bihar, Supreme Court held that mere presence in an unlawful assembly will not render a person liable unless and until he was actuated by common object i.e. he was aware of the common object of unlawful assembly.
According to Explanation appended to Section 189(1), an assembly may be lawful at the time of its inception or even sometime thereafter, but may become unlawful subsequently on adoption of one of the common objects. The time of forming an unlawful assembly intent is immaterial.
Liability of the basis of Common object
Section 190 incorporates the principle of constructive liability on the basis of the common object of an unlawful assembly regarding the commission of an offence or the knowledge of the member of an unlawful assembly of likelihood of the commission of an offence. Following are the ingredients of Section 190 -
(1) Offence must be committed by the member of an unlawful assembly.
(2) It must be committed in prosecution of the common object of that assembly.
(3) It is such as the members of that assembly knew to be likely to be committed.
Section 190 incorporates the principle of vicarious liability. It holds a person liable for an offence which he might not have actually committed. Section 190 consist of two parts. The first part denotes an offence committed by a member of an unlawful assembly in prosecution of the common immediately with the common object of the unlawful assembly. The second part consists of commission of an act which may not necessarily be the common object of the assembly if the members of the assembly knew that the act is likely to be committed [Gangadhar Beher v. State of Orissa, AIR 2002 SC 3633].
Supreme Court in Rabindra Mahto v. State of Jharkhand, AIR 2006 SC 887 held that the basis of constructive liability under Section 149 [Now Section 190 of BNS] is mere membership of unlawful assembly. Every person who happens to be a member of that assembly is liablie for the commission of the crime committed in prosecution of the common object being a member of it irrespective of the fact whether he actually committed the criminal act or not.
In Ram Tahal v State of Uttar Pradesh, AIR 1972 SC 254 Supreme Court held that Section 149 [Now Section 190 of BNS] provides that every member of unlawful assembly having a common object is responsible for acts committed by any other member of the assembly and is guilty of substantive offence.
In Umesh Singh v. State of Bihar, (2000) 6 SCC 89 Supreme Court held that the accused whose case falls within the terms of Section 149 [Now Section 190 of BNS] cannot take a defence that he did not with his own hand commit the offence. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined.
Supreme Court explained Section 149 [Now Section 190 of BNS] in Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725. The Court held that if an unlawful assembly is formed with the common object of committing of offence as mentioned in Section 141 [Now Section 189(1) of BNS] and if the offence is committed in prosecution of the common object by any of the member of unlawful assembly, all members of the assembly will be vicriously liable
Difference between Section 3(5) and 190 of BNS
Supreme Court in Nanak Chand v. State of Punjab, AIR 1955 SC 274 explained that Section 34 and 149 [Now Section 3(5) and 190 of BNS] are distinct, Principle element of Section 34 [Now Section 3(5) of BNS] is common intention. If furtherance of common intention may persons have committed the crime then each of them would be liable for that crime in manner as if it was done by them alone. There is no question of common intention in Section 149 [Now Section 190 of BNS]. An offence may be done by a member of unlawful assembly and other members will be liable for the offence although there is no common intention between the person and the members of unlawful assembly. Crucial difference between common intention and common object is that while common intention requires prior meeting of mind, common object can be without these ingredients.
Rioting and Affray
Section 191(1) defines 'rioting' and Section 194(1) defines affray. Section 191(1) provides that whenever force is used by an unlawful assembly or by any member of unlawful assembly in prosecution of common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Following are the essential ingredients of Section 191(1):-
1. There must be an unlawful assembly.
2. Force or violence was used by members of unlawful assembly.
3. Such force or violence was used in prosecution of the illegal common object.
Actual force must be used. A mere show of force is not sufficient. The prerequisite for application of this provision is that there should have been an unlawful assembly according to Section 189(1).
Section 194(1) defines 'affray'. According to it when two or more persons by fighting in a public place, disturb public peace, they are said to commit affray. It postulates commission of assault and breach of peace. A mere quarrelling or abusing in public place without exchanding blows will not constitute affray. Both parties need to participate in fight. Section 194(1) has following essentials:
1. Fight between two or more persons.
2. It should be in public place.
3. There should be disturbance of public peace in consequence of it.
Conclusion
In conclusion, while criminal law generally adheres to the principle of individual liability, the Bharatiya Nyaya Sanhita (BNS) incorporates crucial doctrines of collective responsibility to address group criminality. Sections 3(5) and 190 of the BNS are pivotal in this regard, creating significant exceptions to the general rule. Section 3(5) establishes the principle of joint liability, which is anchored in the existence of a "common intention"—a pre-arranged plan or a meeting of minds—among the accused. Under this section, if a criminal act is committed by a group in furtherance of this shared intention, each participant is liable for the entire act as if they had committed it alone, regardless of their specific role. This is a rule of evidence that facilitates convicting all conspirators for the collective outcome of their planned actions.
In contrast, Section 190 deals with the liability of members of an "unlawful assembly" and is based on a "common object." This provision imposes vicarious or constructive liability simply by virtue of membership in an assembly of five or more persons with one of the unlawful objects specified in Section 189(1). If any member of this assembly commits an offence in prosecution of this common object, every member is held liable, even without a prior agreement to commit that specific offence. The key distinction lies in the requirement of a prior meeting of minds for "common intention" under Section 3(5), whereas "common object" under Section 190 can be formed spontaneously and is inferred from the assembly's purpose.
These provisions, along with related offences like rioting and affray, are essential tools for the justice system. They recognize that the danger and impact of collective criminal action are magnified, and thus, the law justly holds all participants accountable for the foreseeable consequences of their concerted behaviour, ensuring that individuals cannot escape liability by hiding within a group.
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