(..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) Active Participation:
c) Scope:
d) Minimum Number of Persons
The distinction between S.3 (5) and 61 (1):
2) Effects Caused Partly by Act and Partly by Omission (S. 3 (7):
3) Cooperation by Doing One of Several Acts Constituting an Offence (S.3 (8):
B) Different Liabilities:
1) An Act Done with Criminal Knowledge or Intention (S.3 (6)):
2) 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.
A) Same Liability:
1) 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.
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.
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 13 of 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).
d) Minimum Number of Persons
S.3 (5) does not fix a minimum number of people to form ‘common intention’, 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 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) Different Liabilities:
1) 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.
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&gs_lcrp=EgZjaHJvbWUyBggAEEUYOdIBCTg2MTRqMGoxNagCCLACAQ&sourceid=chrome&ie=UTF-#fpstate=ive&vld=cid:bdf92a55,vid:pUp3lR5zaq4,st:0
6. “Joint Liability under BNS”, https://www.youtube.com/watch?v=x7GCzsvaH44