Section 3(5) of the Bhartiya Nyaya Sanhita, 2023 (BNS) replaces the
analogous Section 34 of the Indian Penal Code, 1860 (IPC). It reads:
“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.”
This provision deals not with a specific offence, but rather establishes
a rule of joint liability for criminal acts committed in furtherance of a
shared purpose.
Essentials of Common Intention under Section 3(5) BNS, 2023
1. Prior Meeting of Minds
There must be a pre-conceived plan or understanding among the
accused, which can be formed well before or even shortly
before the incident.
No formal agreement is necessary; it is sufficient that there is
a conscious and concerted action towards the criminal objective.
Example:
If A and B decide to beat up C, and A holds C while B punches him,
both are equally liable—even if B alone caused the injury
Case Law:
State of Rajasthan v. Shobha Ram, (2023) SCC
The Court reiterated that even a spontaneous meeting of minds
just before the act can suffice to constitute common intention.
2. Mental Element (Mens Rea)
All participants must share the same criminal intent.
Mere physical presence at the crime scene is not sufficient unless it
can be shown that the person shared the knowledge and intent to
commit the offence.
Example:
If X and Y are following Z to intimidate him and X suddenly stabs Z,
Y cannot be held liable unless it’s shown that he shared the intent
to harm.
Case Law:
Mohd. Javed v. State of UP, 2024
The Supreme Court held that mental concurrence with the main
accused must be proved through conduct and surrounding
circumstances.
3. Active Participation
Each accused must contribute towards the commission of the
offence, either actively or passively.
Passive presence without contribution is not enough unless
presence itself emboldens the actual perpetrator.
Example:
If A plans a robbery and B waits outside in a car to help escape, B is
an active participant.
Case Law:
Raju v. State (Govt. of NCT of Delhi), 2024
The Delhi High Court held that even chasing the victim to corner
him amounted to active participation under common intention.
4. Causative Link
There must be a direct connection between the common
intention and the criminal act.
The act must be shown to have been committed in furtherance of
the common plan.
Independent or stray acts not linked to the pre-arranged plan will
not invite joint liability.
Example:
If A and B plan to injure C, but A alone decides to shoot C fatally, B
will not be liable unless he knew of the gun and agreed to the use.
Case Law:
State of MP v. Amrit Lal,
The Court distinguished between acts in furtherance of common
intention and stray acts, holding only the former attracted Section
34 IPC / Section 3(5) BNS liability.
5. Contemporaneous Formation
Common intention need not always be premeditated. It may be
formed at the spur of the moment, provided all accused act
in concert.
Post-crime approval or association is not sufficient.
Example:
During a sudden fight, A and B attack C simultaneously without
prior planning. If mutual support is visible, joint liability can be
invoked.
Case Law:
Vikas Kumar v. State of Bihar, 2023
The High Court emphasized that simultaneous intent formed at the
moment of the attack was enough to hold all participants jointly
liable.
Burden of Proof
The prosecution bears the entire burden to prove the existence of
common intention beyond reasonable doubt.
Direct evidence is rare; hence, the Courts often rely
on circumstantial evidence, including:
The accused’s conduct before, during, and after the crime.
Nature of the act committed.
Motive, proximity, and presence at the scene.
Mere suspicion, proximity to the crime, or passive presence is not
sufficient to establish liability under Section 3(5) BNS.
Case Law:
Ajay Thakur v. State of Uttarakhand, 2024
The Supreme Court clarified that while common intention can be
inferred from circumstances, it must rise above conjecture and be
backed by consistent evidence.
Comparison: Section 34 IPC vs. Section 3(5) BNS
Point of Section 3(5) BNS,
Section 34 IPC
Comparison 2023
Statutory “Acts done by several “Criminal act done by
Language persons…” several persons…”
Nature Rule of evidence Rule of evidence
Basis for Joint
Common Intention Common Intention
Liability
Need for
Specific No No
Offence
Time of Before or at the Before or at the
Formation moment of crime moment of crime
Through conduct and Through conduct and
Proof circumstantial circumstantial
evidence evidence
Key Takeaways
Section 3(5) BNS, 2023 introduces no material departure
from Section 34 IPC, but continues the jurisprudential trend of strict
scrutiny of joint criminal liability.
Courts must ensure individual criminal responsibility is not diluted
in the garb of common intention.
Recent judgments emphasize that each accused must actively and
mentally participate in the criminal plan for Section 3(5) to apply.
The distinction between common intention and common object
(under Section 149 IPC/Section 187 BNS) remains important in
group crimes.
Summary Table with Examples
Element Explanation Example
Mutual plan
Prior Meeting of A & B decide to rob
before/during the
Minds a shop
act
A supports B in
Awareness and
Mental Element beating C with
shared intention
intention
Involvement in A holds door while
Active Participation
any form B steals inside
B stabs only after
Crime flows from
Causative Link both decide to
shared plan
attack
A & B join fight
Contemporaneous Intention arises on
instantly and attack
Formation the spot
victim
Conclusion:
The doctrine of common intention under Section 3(5) of the Bhartiya
Nyaya Sanhita, 2023 is a crucial legal principle ensuring that all persons
acting together with a shared criminal purpose are held equally liable for
the resulting offence. Rooted in the erstwhile Section 34 of the Indian
Penal Code, this provision continues to uphold the idea of joint
culpability in cases where multiple individuals commit an act in
furtherance of a collective objective.
It operates not as a substantive offence but as a rule of evidence,
allowing courts to infer liability based on collective action and mental
alignment among co-accused. The prosecution must, however, rigorously
prove the existence of a prior or contemporaneous meeting of minds,
active participation, and a clear causative link to the act committed.
Indian courts, through various rulings, have clarified that mere presence
at the scene of crime or passive knowledge is not enough—the accused
must have intentionally associated themselves with the criminal act. The
standard remains that of proof beyond reasonable doubt, and any
ambiguity regarding individual intent must operate in favour of the
accused.
In conclusion, Section 3(5) of BNS reinforces collective responsibility in
criminal law while maintaining due safeguards against wrongful
convictions. It underscores the principle that shared intention transforms
individual acts into collective culpability, thereby ensuring justice in
offences committed in unison.
