About this topic
The central idea of this topic is simple: a plan can divide the work, but the law refuses to divide the guilt. When people commit a crime together, the law can hold each of them responsible for what the group did, even for a blow struck by another person.
- Joint liability – liability of each person for the act of the group.
- Constructive liability – another name for the same idea, because the law places liability on a person who did not personally do the act.
Two tools: the team and the crowd
The B.N.S. provides two separate tools for group liability. They are best pictured as a team and a crowd.
| Point | Team | Crowd |
|---|---|---|
| Legal concept | Common intention | Common object |
| Provision | Section 3(5), B.N.S. | Sections 189 and 190, B.N.S. |
| Picture | A relay team in athletics: the runners settle the plan before the race, each runs a different stretch, and when the baton crosses the finishing line the medal goes to every runner. | Spectators who suddenly rush onto the field when a match turns ugly: nobody planned it, but once they share a purpose, every person in that rush is part of it. |
Three problems to keep in mind
The following three problems are solved at the end of these notes, after the law has been studied.
Problem 1 – The man at the switch. Three men agree to kill a moneylender in a small town. One of them, Prince, waits beside the electricity transformer at the end of the moneylender's lane. When his partners flash a torch, he pulls the switch and the whole lane goes dark. The two partners break in and stab the moneylender to death. Prince never entered the house and never touched the victim. Is he guilty of murder?
Problem 2 – Two enemies and one victim. At a crowded bus stand, Farhan and Aadil, who have never met each other, both recognise a man they separately hate. At the same moment, each of them pulls out a knife and stabs him. The man dies, and the doctor says that only the wound given by Farhan was fatal. Aadil also wanted the man dead. Is Aadil guilty of murder?
Problem 3 – A march that turned. Twelve residents of a housing society in Indore walk peacefully to a builder's site office with a complaint about a blocked drain. The manager tears it up and laughs. One resident shouts, "break everything". Nine others join him and start smashing windows and furniture. In the chaos, one of them picks up an iron rod and fractures the arm of a security guard who tries to stop them. Two residents step back at once and walk away. Later, the police can identify only four of the ten who joined in. Was this an unlawful assembly? Who were its members? Can a man who only broke a window be punished for the guard's fracture?
Common intention: Section 3(5) of the B.N.S.
Text of the provision
"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."
Note the closing words, "as if it were done by him alone". A person who did only one small part of the criminal act is treated as if he had done the entire act with his own hands.
Meaning of the key words
- Several persons – two or more persons.
- Act – under Section 2 of the B.N.S., an act includes a series of acts. So a group's criminal act can be built from many small acts.
- Illegal omissions – under Section 3(4) of the B.N.S., words referring to acts extend also to illegal omissions. So even a deliberate failure to act can be one person's share in the criminal act.
- Furtherance – advancing or promoting the shared plan.
Section 3(5) creates no offence of its own
Section 3(5) works like a plug adapter. By itself, it powers nothing. It must be plugged into a real offence, such as murder under Section 103(1). The charge then reads: murder under Section 103(1) read with Section 3(5). The adapter only decides who else shares the liability for that offence.
Section 3(5) versus criminal conspiracy (Section 61): Section 3(5) is only a rule of liability and creates no offence. Under Section 61, by contrast, an agreement to commit an offence is itself a crime, even before anything is done.
When does a group become a team? The four questions
To decide whether common intention exists, courts ask four questions:
- Did their minds meet?
- When did their minds meet (and with whom)?
- How far did the plan reach?
- What did each person do?
Question 1: Did the minds meet?
Common intention is not defined anywhere in the B.N.S. The courts have filled this gap. They insist on a prior meeting of minds: a plan shared by all the accused before the act.
Pandurang v. State of Hyderabad (Supreme Court, 3 December 1954, decided under Section 34 of the old Indian Penal Code, which carried the same rule): Ramchander was attacked in the fields near a river and died on the spot. Five men were accused. Three of them, Pandurang, Tukia and Bhillia, carried axes. The medical evidence showed that the fatal injury was on the neck, and witnesses said Bhillia struck it. Tukia crushed the victim's jaw with a blow that could also have killed. Pandurang caused only a light wound on the scalp. All three were sentenced to death for murder by the courts below. Pandurang's murder conviction could stand only if he had shared a common intention with the others. The evidence of a grudge concerned the other accused, not Pandurang, and the eyewitnesses arrived only after the attack began, so nobody could say what happened before it.
Held (Justice Vivian Bose): "Care must be taken not to confuse same or similar intention with common intention." Several people may attack one man at the same moment, each wanting him dead, and each may even strike a fatal blow; yet without a prior meeting of minds there is no common intention, and each is liable only for the injury he himself caused. The plan need not be elaborate and may form suddenly, but an inference of common intention must be a necessary inference from the circumstances, never a convenient guess.
Result: Pandurang's murder conviction was set aside. He was convicted only for his own act, voluntarily causing grievous hurt with a dangerous weapon under Section 326 of the old Code, and his death sentence became ten years of rigorous imprisonment. The murder convictions of Tukia and Bhillia stood, although their death sentences were reduced because the High Court judges had disagreed.
Principle: Same or similar intention is not common intention; a prior meeting of minds is essential. This principle now guides Section 3(5) of the B.N.S., and Pandurang's act would today fall under Section 118(2) of the B.N.S.
Same or similar intention is not common intention. Common intention requires a prior meeting of minds. Where there is only a similar intention, each accused is liable only for his own act. This is the warning in Pandurang that every student must remember.
Companion rule: different offences from one act – Section 3(9)
When people take part in one act with different states of mind, the law can label each of them differently.
"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."
The illustration in the B.N.S.: two men attack a third. The first acts under grave provocation, so his offence is only culpable homicide not amounting to murder. The second was never provoked; he bore ill will towards the victim, intended to kill him and helped in the killing, so he is guilty of murder. One death, two offences, because there were two minds.
Question 2: When did the minds meet, and with whom?
The meeting of minds must come before the act, though it may happen only a moment before. There must also be at least one other person with whom the accused shared the plan.
Krishna Govind Patil v. State of Maharashtra (Supreme Court, 23 January 1963, decided under the old Indian Penal Code): Vishwanath had actively helped his nephew defend himself in an earlier murder trial, and the nephew was acquitted. Four men connected to the victims of that earlier case bore a grudge against him. One night, as Vishwanath walked along a field embankment, the four were said to have come from behind with long sticks, one fitted with a blade, and beaten him to death. The trial court acquitted all four. On the State's appeal, the High Court found it doubtful whether the first, third and fourth accused had taken part and acquitted them, but convicted the second accused of murder read with Section 34, reasoning that one or more of the others might have joined him. His appeal asked: if my companions did not act with me, with whom did I share a common intention?
Held (Justice Subba Rao): The plan may develop on the spot, during the incident, but "the said plan must precede the act constituting the offence." A court must reach a definite conclusion that the accused had a prior concert with one or more persons, named or unnamed. Here the acquittal of the other three meant, in law, that they had not acted with him, and there was no evidence of any unknown partner. His conviction was set aside and he was set at liberty.
Principle: A man cannot act jointly with nobody. The plan must precede the act, and there must be a definite finding of prior concert with one or more persons, named or unnamed. The same reasoning applies today under Section 3(5).
A plan formed on the spot. During a quarrel over parking outside a cinema hall, Farhan opens the boot of his car, hands his cousin an iron rod, and steps in front of the other man so that he cannot run away. The cousin strikes. No words were needed. The rod passing from hand to hand and the blocked escape route show a plan born in seconds, but born before the blow. That is enough for common intention.
How common intention is proved
A plan in the mind leaves footprints in conduct. Courts look at whether the accused:
- arrived together;
- chose weapons in advance;
- divided the roles; and
- acted together afterwards, for example by fleeing together or sharing the loot.
These footprints usually decide the case.
Question 3: How far does the plan reach?
The criminal act must be done in furtherance of the common intention. The question is what happens when the group makes a mistake.
Shankarlal Kacharabhai v. State of Gujarat (Supreme Court, 21 September 1964, decided under the old Indian Penal Code): One January evening in 1961, in a village in Gujarat, a group of armed men came to a square near a pan shop. Several carried muzzle loading guns, and others carried sticks and sharp-edged weapons. The courts found that their common intention was to kill a man named Madha. Another man, Rama, was dressed in clothes like the ones Madha usually wore. Four of the accused took him for Madha and fired, and Rama died. The defence argued that nobody intended to kill Rama, and that a mistake cannot be in furtherance of a common intention.
Held: The word furtherance means "advancement or promotion." When the men fired at Rama believing him to be Madha, they were carrying their plan forward, so the mistake did not break the link. If one member kills someone else to settle a private score of his own, that is not in furtherance of the common intention; but a killing caused by an honest mistake about identity is. The murder convictions read with Section 34 were upheld.
Principle: A killing caused by an honest mistake of identity while carrying out the common plan is in furtherance of the common intention. The same rule applies today under Section 3(5).
Private score versus honest mistake: a member who kills someone to settle his own private score does not act in furtherance of the common intention; a member who kills the wrong person by an honest mistake about identity does.
The plan sets the outer wall of liability
Three friends agree only to steal a car from a parking lot at night. The owner wakes up and runs out. One of them, who had secretly carried a knife, stabs him to death. The other two never knew about the knife and never agreed to hurt anyone. The court will ask whether the killing was within the common intention of all three. If it was not, the other two are not automatically guilty of murder: they answer for what they actually planned, and the man with the knife answers for the murder.
Question 4: What must each person do?
Under Section 3(5), each accused must take part in the criminal act in some way. But taking part does not mean striking the blow.
Barendra Kumar Ghosh v. King Emperor (Privy Council, then the final court of appeal for India): On 3 August 1923, at the Shankharitola post office in Calcutta, the sub-postmaster was counting money in a back room. Armed men appeared at the door, demanded the money and fired pistols at him. He died almost at once. As the men ran off, Barendra Kumar Ghosh was chased by people from the area; he fired his pistol while running and was finally caught. He was tried for murder under Section 302 read with Section 34 of the Indian Penal Code. His defence was that he had stood outside in the courtyard, had been promised that nobody would be killed, and was there only for show. His lawyers argued that Section 34 could apply only to a person who himself did the act that caused death.
Held (Lord Sumner): A jury had convicted him, and the conviction was upheld. A criminal act under this provision is "that united criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone." The section covers separate acts, similar or diverse, done by several persons in furtherance of a common intention, and each of them is liable for the result of all. If two men pull opposite ends of a rope tied round a third man's neck until he dies, neither can escape by saying that his own pull, by itself, was only an attempt. Borrowing from the poet Milton: in crimes as in other things, "they also serve who only stand and wait." Even if Barendra Kumar Ghosh had done nothing but stand outside the door, he was guilty of murder.
Principle: Participation need not be the fatal blow; standing guard in furtherance of the common intention is enough. Today this principle lives in Section 3(5) read with Section 103(1).
"They also serve who only stand and wait." Under Section 3(5), a person who only stands guard or keeps watch in furtherance of the common intention is as liable as the person who strikes the fatal blow.
Common object: unlawful assembly under Section 189
The crowd provisions sit in the Chapter of the B.N.S. on offences against the public tranquillity, which simply means public peace.
Definition: Section 189(1)
"An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is"
It then lists five objects:
- Clause (a): "to overawe by criminal force, or show of criminal force, the Central Government 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"
- Clause (b): "to resist the execution of any law, or of any legal process; or"
- Clause (c): "to commit any mischief or criminal trespass, or other offence; or"
- Clause (d): "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 right of which he is in possession or enjoyment, or to enforce any right or supposed right; or"
- Clause (e): "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."
Memory aid: the five P's
| Clause | P | What it targets |
|---|---|---|
| (a) | Power | Those who hold public power |
| (b) | Process | Resisting the process of law |
| (c) | Punishable acts | Punishable acts such as mischief or trespass |
| (d) | Property | Grabbing property or rights by force |
| (e) | Pressure | Pressuring a person into doing, or not doing, something against his legal rights |
An incorporeal right is a right with no physical body, such as a right of way across someone's land.
Two conditions make an unlawful assembly: (1) five or more persons, and (2) a common object that falls within one of the five clauses of Section 189(1).
Explanation: a lawful assembly may become unlawful
"An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
A crowd needs no advance plan. Its object can change in a moment.
Moti Das v. State of Bihar (Supreme Court, 6 May 1954, decided under the old Indian Penal Code): Two sides were disputing the right to cultivate certain land. On 30 November 1947, the accused came to the disputed fields with about 100 to 150 labourers and 30 or 40 men armed with sticks, and began cutting the paddy. Sonu Gop, who claimed to be the rightful cultivator, ran to a nearby police outpost and came back with a head constable and two constables. When he went ahead to protest, Moti Das ordered an assault. Sonu Gop fled, but Misri Das caught up with him and struck him with a spear, and others beat him with sticks. The defence argued that the crowd had come only to harvest, that nobody even knew Sonu Gop would turn up, and so there was no pre-concert and no common object.
Held (Justice Vivian Bose): Assuming the assembly was lawful at the start, it became unlawful the moment Moti Das called on the others to assault Sonu Gop and they responded by chasing him. "Previous concert is not necessary." The Court also accepted a limit: an illegal act by one or two members, which the others do not go along with, does not change the character of the whole assembly. The convictions for rioting, and for rioting armed with a deadly weapon, were upheld.
Principle: A lawful assembly can become unlawful on the spot, without previous concert. This principle now sits in the Explanation to Section 189(1), and rioting is punished under Section 191 of the B.N.S.
Who is a member: Section 189(2)
"Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly and such member shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
Membership has two locks:
- Knowledge of the facts which make the assembly unlawful; and
- A deliberate choice to join the assembly or to stay in it.
A passer-by caught in the middle of a crowd opens neither lock, so he is not a member.
Liability of every member: Section 190
"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."
The two circles
- Inner circle: offences committed in prosecution of the common object, that is, offences committed to achieve it.
- Outer circle: offences that the members knew were likely to be committed while pursuing that object, even if nobody aimed at them.
If an offence falls inside either circle, every person who was a member of the assembly at that moment is guilty of it. He need not have lifted a finger: membership at the time of the offence is enough.
Section 190 creates a specific offence
In the post office case (Barendra Kumar Ghosh), Lord Sumner pointed out that this provision, unlike the rule of common intention, creates a specific offence. The Supreme Court repeated this in Pandurang. So the crowd rule is not a mere adapter: each member is guilty of the very offence that was committed.
Group murder on specified grounds: Section 103(2)
The B.N.S. has added a sharper rule for one kind of group killing:
"When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine."
This is the law's direct answer to murder by a group acting on such grounds. Here the Section itself fixes the punishment for every member.
When fewer than five are convicted
An unlawful assembly needs five persons. The question is what happens if fewer than five are finally convicted.
Ram Bilas Singh v. State of Bihar (Supreme Court, 29 January 1963, decided under the old Indian Penal Code): In a dispute over a structure in a village, Ram Bilas Singh was said to have arrived in a truck on the morning of 22 April 1957 with a mob of 40 to 50 people, including his two sons. He was said to have shot Laldev Singh in the chest, but the shot that killed him was said to have come from one of the men later acquitted. Seven persons were tried; four were acquitted, and only the father and his two sons were convicted with the help of Section 149 of the old Code. They argued that only three of them remained, and they could not be punished for the acts of men the courts had acquitted.
Held: The real question is whether the assembly in fact had five or more members, not how many are convicted. Fewer than five can be convicted in three situations (listed below). But the High Court had never decided whether an unlawful assembly existed apart from the acquitted men, or what its other members had done, and it could not pin on the appellants the acts of men whose acquittal had become final. The Supreme Court set aside the High Court's judgment and sent the case back for a fresh decision.
Principle: Conviction of fewer than five is possible if the assembly in fact had five or more members. The same principle applies today under Section 190.
Fewer than five persons can be convicted in these three situations:
- Where the charge itself says that, apart from the named accused, other unidentified persons were also members, and the court accepts the evidence for it.
- Where the charge is silent, but the first information report and the evidence show other members.
- Where the charge and the witnesses name only the accused, but other evidence reveals more members.
In the second and third situations, the accused must not have been prejudiced.
Common intention and common object compared
| Question | Common intention (team) – Section 3(5) | Common object (crowd) – Sections 189 and 190 |
|---|---|---|
| How many people? | Only two are needed | At least five |
| What binds them? | A common intention, which can relate to any criminal act | A common object, which must fall within the five P's of Section 189 |
| When must the bond form? | Before the act, even if only seconds before | At any stage, with no previous concert at all |
| What must each person do? | Take part in the act in some way, even by standing guard | Only be a member at the time of the offence |
| How far does liability reach? | As far as the shared plan | As far as the two circles: offences aimed at, and offences known to be likely |
| Is it an offence by itself? | No; it is an adapter that creates no offence | Yes; it creates a specific offence, and even simple membership is punishable under Section 189(2) |
How the differences shape the prosecution's case
- When fewer than five people took part, only common intention is available.
- With a large group, common object can be easier to prove, because no plan and no individual act need be proved.
- Where a charge based on common object fails, a court may still convict with the help of common intention, if the facts prove a shared plan and the accused has not been prejudiced.
The three problems solved
Problem 1: The man at the switch
Prince is guilty of murder read with Section 3(5). The three men agreed to kill, the plan existed before the act, and darkening the lane was his share of it. Like the man standing outside the post office in Barendra Kumar Ghosh, he served the plan without ever touching the victim.
Problem 2: Two enemies and one victim
Aadil is not guilty of murder through common intention. He and Farhan never met and never agreed. They had similar intentions, not a common one, exactly as the Court warned in Pandurang. Each answers for his own act:
- Farhan, whose wound was fatal, faces murder.
- Aadil, whose wound was not fatal but who meant to kill, can face attempt to murder under Section 109(1), if his intention is proved.
Problem 3: A march that turned
- Unlawful assembly: The march began lawfully, but it became an unlawful assembly the moment ten residents answered the call to smash the office, because their common object became mischief under clause (c) of Section 189(1).
- Members: Those ten are members. The two who stepped back at once never chose to join, so they are not members.
- Rioting: Because force was used, the ten are also guilty of rioting under Section 191.
- Broken windows: These fall inside the inner circle of Section 190, so every member is guilty of that mischief.
- Fractured arm: This depends on the outer circle. If the court finds that an angry crowd smashing a guarded office knew that anyone trying to stop them was likely to be hurt, every member is guilty of that grievous hurt too. If it was one man's sudden act that nobody expected, he alone answers for it.
- Only four identified: This does not defeat the case, because the evidence shows that ten took part, as the Supreme Court explained in Ram Bilas Singh.
Quick revision
- A team (common intention, Section 3(5)) needs a plan before the act and a part during it.
- A crowd (common object, Sections 189 and 190) needs five people, an unlawful object, and membership at the moment of the offence.
