“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

91

(..9..)

LAW RELATING TO JOINT OFFENDERS

(Common Intention) (S. 3 Clauses (5) to (9))

QUESTION BANK

Q1. Explain and discuss fully the concept of common intention embodied in

the BNS.?

Q.2. What is common intention? Distinguish it from the common object?

SHORT NOTES

1. Common Intention,

2.

State the difference between ‘common intention’ and ‘common object’.

SYNOPSIS

I]

INTRODUCTION:

II]

PRINCIPLES GOVERNING JOINT LIABILITY:

A)

Same Liability:

1) Act done in furtherance of ‘Common Intention’ (S. 3 (5)):

-Group Murder on Identity Grounds (Mob Lynching) (S. 103 (2)-

- The distinction between “Common Intention” under S. 3 (5) and

“Common Object” under S. 190 of BNS

a) Specific Offence:

b)

c)

Active Participation:

Scope:

“Law Master’s Publication”

‘Joint Offenders’

Minimum Number of Persons

The distinction between S.3 (5) and 61 (1):

Effects Caused Partly by Act and Partly by Omission (S. 3 (7):

Prof. Santosh D. Bhosale

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d)

2)

3) Cooperation by Doing One of Several Acts Constituting an Offence

(S.3 (8):

B)

Different Liabilities:

1)

2)

An Act Done with Criminal Knowledge or Intention (S.3 (6)):

Persons Concerned in Criminal Acts may be Guilty of Different

Offences (S. 3 (9):

I]

INTRODUCTION:

When an offence is committed by one person only, no question comes as to

determining his guilt, but when it is committed by more persons than one, the

question arises as to how far each is liable to that offence. The question becomes

more difficult to answer when an offence does not consist of a single act or

omission but a series of acts and omissions performed by different persons in

concurrence (jointly) with others. Under the BNS, the provisions relating to joint

offenders appear in Chapter I. Section 3 clauses 5, 6, 7, 8 and 9 of the BNS replace

respective sections 34 to 39 of the I.P.C. The BNS brought no substantive changes

to the existing legal principles for joint offenders. The core concepts of joint

liability from the IPC, 1860, have been retained and simply re-numbered.

However, the BNS did introduce a new, specific offence for group-based killing

(mob lynching), which can be seen as a new provision for joint offenders.

In Mohd. Usman V/s State of Maharashtra

(A.I.R. 2011 S.C. (CRI) 214)

The Supreme Court held the conviction of the accused and his sisters valid under

S. 34 (IPC). The court observed that the deceased was a stout and healthy woman,

perhaps physically stronger than her husband, and it is obvious that accused No. 3

and 4, the sisters, have also helped in the deceased’s killing. The presence of

kerosene and blood stains on the sisters' skirts proves their involvement in the

offence of murder.

II]

PRINCIPLES GOVERNING JOINT LIABILITY:

The law of joint offenders under BNS, 2023, is based on two broad

principles:

1. Same liability – Where all offenders are equally liable for the same offence.

2. Different liabilities – Where offenders may be guilty of different offences

depending on their intention, knowledge, or role.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

93

A)

1)

Same Liability:

Act done in furtherance of ‘Common Intention’ (S. 3 (5)):

When a criminal act is done by several persons in furtherance of the

common intention of all, each person is liable for that act in the same manner as

if he did it alone.

This rule, therefore, is also called the rule of ‘Constructive criminality,’ i.e.,

the liability of all for the act of one or some of them.

For the application of S. 3 (5), the following elements are necessary

i)

Criminal act.

ii)

Done by several persons, that is to say, each one of them must be a

participant in some or other act connected with their common

intention.

iii)

In furtherance of common intention.

S. 33 (5) applies in the case when it is proved that the criminal act is done

by any one or some of the accused persons in furtherance of the common intention.

The ‘common intention’ means a prior concert or a prearranged plan for the

accused persons to commit the offence. Such a common intention should have been

formed before the commission of the crime, but it may have also developed at the

time of the actual commission of the crime.

In Sachin Jana V/s State of W.B.¹⁵

Held: The true concept of the section is that if two or more persons intentionally do an act

jointly, the position in law is just the same as if each of them has committed it individually.

Acts done by them need not be the same or identically the same. S. 34 (Old IPC section)

applies even if no injury is caused by the particular accused himself.

Suppose A, B, C, and D all joined in committing Z’s murder; A alone has

murdered Z. A, B, C, and D are all guilty of murder.¹¹.

¹⁵2008 All MR 1177 (SC)

11

In Giriraj Shankar V/s. State of U.P (AIR 2004 SCW 810)

Supreme Court observed that- “the true concept of S. 34 is that if two or more persons intentionally do an act jointly, the position

in law is just the same as if each of them has done it individually by himself. The provision of S. 34 is intended to meet a case in which

it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all

or to provide exactly which part was taken by each of them.”

Reg. V/s. Cruse 1838

Facts: - A constable and his assistants went to arrest at a house in which there were many persons. B, C, D and others came from the

house, pushed and moved the constable and his assistants off and one of them gave blow to them.

Held: - Each of their party was equally responsible for the blow whether he actually struck it or not.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

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In Barendra Kumar Ghosh V/s Emperor¹²

Facts: A gang of robbers killed a postmaster by firing pistols at him and fled away.

One of them was found with a pistol in his hand. In a murder trial, he contended

that he was standing outside and had not fired at the deceased. He was compelled

to join the others for the alleged robbery and had no intention to kill the postmaster.

Held: The postmaster was killed in furtherance of the common intention of

all other dacoits, and therefore, the accused was guilty of murder whether he fired

the fatal shot or not.

Group Murder on Identity Grounds (Mob Lynching)

(S. 103 (2)-

If five or more persons commit murder on the grounds of caste, religion,

language, or personal belief, all are liable jointly to imprisonment for life or death.

This expands the concept of joint liability to modern forms of group violence.

The distinction between “Common Intention” under S. 3 (5) and

“Common Object” under S. 190 ¹³of BNS-

S.3 (5) explains “common intention” and S.190 “common object”.

Both these sections relate to vicarious liability and sometimes overlap with

each other. However, there are the following points of difference between these

two, viz

a) Specific Offence:

S.3 (5) does not by itself create any specific offence, whereas S.190 creates a

specific offence.

b)

Active Participation:

Some active participation, especially in a crime involving physical violence,

is necessary under S.3 (5). But S.190 does not require ‘active participation’,

and the liability arises by reason of mere membership of an unlawful

assembly as defined under S. 189 (1).

c)

Scope:

S.190 contemplates a common object which is undoubtedly wider in its scope

and amplitude than ‘common intention’ under S.3 (5).

Minimum Number of Persons

d)

S.3 (5) does not fix a minimum number of people to form ‘common intention’,

¹²1925. Calcutta High Court.

¹³S. 190, provides that ‘every member of unlawful assembly is guilty of an 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, which is

known likely to be committed in prosecution of that common object, every person who, at the time of committing of that offence is a

member of the same assembly is guilty of that offence.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

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whereas S.190 requires that there must be at least five persons to form

‘common object’.

The distinction between S. 3 (5) and 61 (1)¹⁴:

There is not much difference between “conspiracy”, as defined in S.61 (1),

and “in furtherance of the common intention of all” in S. 3 (5). The parties to an

agreement are guilty of “criminal conspiracy’ even though the conspired act is not

committed; mere agreement to break the law brings the case under the offence of

‘criminal conspiracy’ whereas the commission of a criminal act is the gist of the

offence under S.3 (5).

2)

Effects Caused Partly by Act and Partly by Omission (S. 3 (7):

When an offence is an effect partly of an act of commission and partly of an

act of omission, it is the same offence.

Illustration

‘A’ intentionally causes ‘Z’s death, partly by illegally omitting to give him food

and partly by causing physical hurt, i.e., by beating Z, A has committed murder.

3) Cooperation by Doing One of Several Acts Constituting an Offence

(S.3 (8):

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

intentionally cooperates in the commission of that offence by doing any one of

those acts, either singly or jointly with any other persons, commits that offence.

Illustration

(a) 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

the intent to murder Z. Z dies from the effects of the several doses of poison so

administered to him. Here, A and B intentionally cooperate 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.

(b) ‘A’ and ‘B’ are joint jailors and, as such, have the charge of Z, a prisoner,

alternatively for six hours at a time. A and B, intending to cause Z’s death,

knowingly cooperate in causing that effect (i.e., death) by illegally omitting (each

during the time of this attendance) to furnish Z with food (supplied to them for that

¹⁴S. 61 (1):- Definition of criminal conspiracy “When two or more persons agree to do, or cause to be done. (i) an illegal act or, (ii)

an act which is not illegal, by illegal mens, such an agreement is designated a criminal conspiracy provided that no agreement except

an agreement to commit an offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or

more parties to such agreement in pursuance thereof.

Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

96

purpose). Z dies of hunger. Both A and B are guilty of murder.

(c) A a jailor has the charge of Z, a prisoner. A, intending to cause Z’s death,

illegally omits to supply Z with food; in consequence of which Z is much reduced

in strength, but the starvation is not sufficient to cause his death. A is dismissed

from his office, and B succeeds him. B, without collusion or co-operation with A,

illegally omits to supply Z with food, knowing that he is likely thereby to cause

Z’s death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate with

B. A is guilty only of an attempt to commit murder.

B)

1)

Different Liabilities:

An Act Done with Criminal Knowledge or Intention (S.3 (6)):

S.3 (6) is complementary to S. 3 (5) because it supplements the principle of

joint liability embodied in S.3 (5). S.3 (6) states that when an act is criminal

because it is done with a criminal intention or knowledge, each of such persons

who join in the act with the same knowledge or intention is responsible for the act

in the same manner as if it were done by him alone.

In other words, the measure of liability is dependent upon the basis of

intention or knowledge of the accused, e.g., A and B beat C, in consequence of

which C dies. It is proved from the nature of injuries inflicted by A that he intended

to kill C since A had inflicted a fatal knife blow in ‘C’s abdomen. Whereas B only

intended to cause simple hurt in as much as B has inflicted slight injuries in C’s

legs and arms accordingly. A would be liable for causing the murder of C, whereas

B for causing simple hurt only.

The difference between S.3 (5) and S. 3 (6) is that S.3 (5) deals with cases

where a criminal act is done by participation in intention, whereas S.3 (6) deals

with cases where a criminal act is done by reason of participation in action.

Similarly, under the Narcotic Drugs and Psychotropic Substances Act, 1985

(NDPS Act), the punishment for abetment, criminal conspiracy, and attempt to

commit an offence is the same as the punishment for the offence itself. This ensures

that all individuals involved in a drug trafficking or possession network are held

jointly and severally liable.

2)

Persons Concerned in Criminal Acts may be Guilty of Different

Offences (S. 3 (9):

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

criminal act, they may be guilty of different offences using their act.

Thus, unlike S. 3 (5), S.3 (9) deals with cases where the act is done with

different intentions.

“Law Master’s Publication”

‘Joint Offenders’

Prof. Santosh D. Bhosale

97

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.

References-

1. “Bharatiya Nyaya Sanhita” https://devgan.in/bns/section/3/

2. “Changes Brought Forth by the Bharatiya Nyaya Sanhita, 2023”

https://foxmandal.in/changes-brought-forth-by-the-bharatiya-nyaya-sanhita-

2023/#:~:text=However%2C%20through%20an%20amendment%20adding,with

%20death%20or%20life%20imprisonment

3. Professional’s “The Bharatiya Nyaya Sanhita, 2023” Bare Act, 2024.

4.

Master Joint and Constructive Liability in JUST 10 minutes

https://www.youtube.com/watch?v=bKYbxuyyl0E

5. Introduction to Common Intention,

https://www.google.com/search?q=Joint+offenders+under+BNS%2C+2023&rlz

=1C1YTUH_enIN1044IN1044&oq=Joint+offenders+under+BNS%2C+2023&g

s_lcrp=EgZjaHJvbWUyBggAEEUYOdIBCTg2MTRqMGoxNagCCLACAQ&so

urceid=chrome&ie=UTF-#fpstate=ive&vld=cid:bdf92a55,vid:pUp3lR5zaq4,st:0

6. “Joint Liability under BNS”,

https://www.youtube.com/watch?v=x7GCzsvaH44