The most foundational belief in Criminal law is the principle that a person deserves to be punished only for his acts committed with a criminal mind and not for the acts of others. Just dessert, on the other hand, states that justice is done when a person is punished in proportion to the gravity of the criminal act committed by him.

Now, when the crime is committed by a sole offender, it's easy enough to both identify the culpability of his acts and also to determine the extent of his mental fault. However, when the crime is committed by a group, the process that suffices in individual cases may be faced with great difficulty in identifying the exact extent of contribution of each individual and also the extent of their mental fault.

Suppose, for example, that 'A' and 'B' conspired to snatch 'C's Purse. While A held her down, B snatched her purse and made away. How can we determine the liability of 'A' in this case? It would be gross injustice if he were only held liable for Wrongful restraint and not for the offence of theft.

It is thus that Indian Penal law carves out exceptions to the general law, and the participants of the offending group are held jointly liable irrespective of the exact role they played, as long as they participated in the execution of the offence, and shared "common intention"i or "common object"ii.

Section 3(5)

Section 3(5) of BNS(earlier section 34 of IPC) is part of the general explanations provided under section 3. That means that unlike other sections(including other sections relating to joint liability) which create a substantive offense(and provide punishment for the same), section 3(5) as a general explanation only lays down a rule of interpretation that may be applied when considering other sections of BNS.

The section states that when a crime is committed by a group in furtherance of "common intention", each person would be jointly liable as if they had committed the offence by themselves.

Thus, the section does away with any difficulty of criminal contribution that may arise in cases of group offences, by essentially creating legal fiction and imposing the same liability on each member of the group irrespective of the extent of actual contribution to the offending act,iii or the precise subjective mens rea, as long as they were allied in the end goal and had participated in the commission of the offense in some capacity.

Thus, the essential parts of the section can be reduced to three:

1. Involvement of several persons (i.e. of a group) in commission of criminal act
2. Each member must share a common intention for which the crime is to be committed
3. Each has participated in its furtherance

"Act" in this case is not limited to a singular act, but, according to section 2(1) and 2(25)iv includes series of acts as well as criminal omissions.

One of the first cases which delved into the scope of section 3(5) of BNS[section 34 of IPC then] was in Barendra Kumar Ghose vs King-Emperor.v

The Privy Council Ruled:
"Section 34 deals with the doing of 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;... '[C]riminal act' 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 a criminal offence."

Thus, irrespective of what the contribution of each member was, they will share equally in the liability.

Common Intention
In general parlance, "common intention" may be used synonymously with "same" or "similar" intention, and also could be confused with mens rea. However, common intention as used in section 3(5) of BNS has a distinct and separate meaning.

In Mahboob shah v. Emperorvi, Privy Council observed that common intention under section 34 IPC[section 3(5) BNS] implies a pre-arranged plan, and there is a substantial difference between terms common intention and "same" or "similar" intention.

Thus, pre-mediation and prior meeting of minds are necessary for the creation of common intention.
Same intention or similar intention, while sounding similar, refer to different concepts altogether.
For example, 'A', 'B', and 'C' conspired to commit a mass shooting at the town square. While 'A' and 'B' were gunsmen, 'C' was responsible for driving them in and out of the scene. Here, each three were operating in furtherance of a pre-arranged plan, and therefore can be said to be working in furtherance of common intention.

In contrast, had 'A', 'B', and 'C' never conspired together, and independently, without the knowledge of each other, decided to commit mass shootings at the same place. In this case too, they all participated in the same and common offence, and each shared the same intention. Yet the same intention was separate, and can't be considered to be "common intention" as there was no "meeting of mind". Thus, in this case, joint liability would not be attracted.

In State of Uttar Pradesh vs Rohan Singh, the court held that "common intention" is not interchangeable with same or similar intention, as the responsibility and nature of conviction will change based on them. The members, the court held, must share common intention and not similar intention.


Common intention is also separate from mens rea. While mens rea refers to the immediate mental element of the crime, common intention is the plan and common intent, thus more similar to motive than intent. vii

Proof Of Common Intention
The prosecution aiming to establish joint liability under section 3(5) must first prove the existence of common intention. Now, proof of common intention may not be easily available "for even the devil knows not the intention of man". Where direct evidence of shared common intention is available (like in the form of recorded correspondence) then that can be used to prove the common intention.

But in a large category of cases, such convenient evidence will not be available; in such cases, circumstantial evidence can be relied upon to ascertain common intention. viii However, care must be shown when relying exclusively on circumstantial evidence in order to prove common intention. The circumstantial evidence relied upon must not only be compatible with the guilt of the accused, but it must also be incompatible with the innocence of the accused. ix

The prosecution may rely upon the way the crime was committed, and also upon their conduct prior to and after the commission of the Act.

Participation
Participation in the commission of the act must have taken place for the joint liability to arise. However, the exact extent of contribution of any individual member will not be the concern of the court as long as they had at least some part in it. This participation need not be overt, though overt participation is most common. Even Covert participation would attract liability if common intention can be attributed.

For Example, a person who, by using binoculars and a Mobile phone, guides the principal offenders in committing a mass shooting and subsequent escape will be liable even though he didn't participate in any overt act per se. If such was not the case, then a great number of criminals would escape conviction. Great masterminds and financial backers will remain immune while poor goons suffer even on behalf of their masters.

Section 3(5) And Its Relation With Section 61 And Section 190
All of these three sections deal with joint criminal liability, however, they are different in their scope as well as essentials. It must be reinstated that section 3(5) as a section is not penal in nature and only has evidentiary value in interpreting other sections. However, section 190 of BNS(earlier section 149 under IPC) creates a substantive offence.

Liability under section 190 is attracted when the group in question numbers five or more, which is a greater sum than the "several people" as required by section 3(5). Further, unlike "common intention" as required by 3(5), section 190 requires that the unlawful assembly must have gathered for the "common objects" that are provided by the section.

Section 61 of BNS, on the other hand, deals with conspiracy. The previous section of IPC 120A has undergone slight modification under BNS, and now includes the word "Common objects". Thus, now criminal conspiracy could occur only when the conspirators share a "common object" between them. Just like section 190, section 61 creates a substantive offence which is punishable in itself.

As for scope, section 3(5)[when read alongside some other penal section] has a wider scope than Section 190. The latter section is concerned only with unlawful assembly, and to attract it, the participants must number five or more, whereas liability under section 3(5) arises with just two or more members. This difference becomes important as if the charge under section 190 is dismissed because of the size of the group, it can be substituted with section 3(5) instead.

On the other hand, sections 3(5) and 61 are more similar to each other than section 190. In cases of joint liability under section 3(5), criminal conspiracy would exist alongside in most, if not all the cases, and similarly in cases where criminal conspiracy occurs, joint liability too would be attracted between participants, irrespective of whether they are principals or accessories.

The main difference between the two sections rests primarily in the fact that section 61 makes the conspiracy itself punishable, whereas joint liability under section 3(5) comes into the picture only when the criminal act has already been committed.

Common Intention And Common Object
Different sections relating to joint liability in BNS use two similar-sounding terms, "common intention" and "common object". However, these terms are no substitute for each other.
Common intention under section 3(5) refers to a pre-arranged plan and denotes a meeting of minds. However, common object refers, in general, to an object of crime that the perpetrators sought to achieve in common.

As such, common object doesn't require prior meeting of minds. Especially in the context of section 190 of BNS, to attract liability the "common object" of the assembly must correspond with the list of objects provided for. Only when the assembly of 5 or more persons has gathered for the mentioned objects could the assembly be declared "unlawful".

Thus, while similar sounding, these terms can not always substitute each other. Though views have been expressed that there is some overlap between the two sections,x Nonetheless, when a charge under one section whose essential is "common object" is substituted with another which demands "common intention" to be proved, the differences between them must be accounted for.

Concluding Remarks
Practical concerns require the law to dispense with one of the foundational believes of subjective criminal liability, yet when punishing an accused because of joint liability under section 3(5), it must be borne in the mind that the guilt, not so much as real, is fictional; and the proof not so much as direct, is instead inferred by the court.

Law commissionsAnd the government have overtime, found no fault with section 34 of IPC, and its retention in BNS proves that the legislature continues to view liability under section 34 to be a necessary evil, if evil at all. Yet not all members of a criminal group may be cut out from the same cloth, and more often than not, in a group, the more seasoned criminals may force the younger members to partake in criminal acts, or they may be forced to partake in it out of peer pressure.

Even when contributing to the act, some members may only play a minor supportive role while the actual crime is committed by others. Would it be fair to punish a young member of the group whose task it was to watch out for the police outside the building, alongside and with same severity as the seasoned criminals who actually went inside the building and committed rape and murder?

Clearly, the supportive members, while no doubt at fault, their fault can not be treated as being on the same level as that of principal offenders. Thus, it would serve justice better if section 3(5) is not relied upon blindly, and the extent of involvement is considered, if not in determining guilt, then at least in determining the punishment.

End Notes:

1. Section 3(5) of Bharatiya Nyaya Sanhita, 2023.
2. Section 61 and 190 of Bharatiya Nyaya Sanhita, 2023.
3. PSA Pillai, Criminal Law (15th edition), page 253.
4. Earlier jointly included in section 33 of IPC.
5. Barendra Kumar Ghose vs King-Emperor, AIR 1924 CAL 545
6. Mahboob Shah v. Emperor, AIR 1945 PC 118.
7. PSA Pillai, Criminal Law (15th edition), page 256.
8. Raju Padurang Mahale vs State of Maharashtra, (2004) Cr LJ 1441 (SC).
9. Ramu Appa Mahapatar v. State of Maharashtra (2025 INSC 147), Rotesh v State of Rajasthan, (2007) Cr LJ 758 (SC)
10. Karnail Singh v. State, AIR 1954 SC 204
11. Law Commission of India, "42nd Report: Indian Penal Code", Government of India.