Study Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B., LL.M. (Disputes Resolution), UGC–NET, Ph.D. (pursuing)
Four men attack one. Each strikes a separate blow. Each of them, quite independently, wants the victim dead. He dies — but the post-mortem cannot say which blow killed him.
Can any of them be convicted of murder?
The Supreme Court's answer is one of the most counter-intuitive propositions in Indian criminal law: no. Not one of them. Because four men who each independently intend to kill do not share a common intention — they share a similar one, and the difference is the difference between a murder conviction and an acquittal.
Now change one fact. Make it thirty men in a mob with one shared object, and let one of them fire the fatal shot. Every one of the other twenty-nine may be convicted of murder, without a single overt act attributed to any of them.
Two doctrines of vicarious criminal liability, sitting a hundred and eighty sections apart in the Sanhita, producing opposite results on facts that look alike. This is common intention under s 3(5) and common object under s 190 of the Bharatiya Nyaya Sanhita, 2023 — and confusing them is the most common error in the criminal trial court.
The BNS position in one line: both provisions were carried over from the Indian Penal Code in substance, but they were renumbered in opposite directions — s 34 collapsed into a sub-section of s 3, while s 149 became a standalone s 190. The doctrines did not move. Every judgment you know still governs.
Contents
- The Section Map
- Section 3(5) — Common Intention
- A Rule of Evidence, Not an Offence
- Prior Concert — and the Spur of the Moment
- Common Intention Is Not Similar Intention
- The Second Limb: Participation
- Section 189(1) — Unlawful Assembly
- Section 190 — Common Object
- Membership Is Enough
- The Five-Person Rule and the Acquittal Problem
- The Six Points of Distinction
- Substituting the Charge
- Distinguishing Abetment and Conspiracy
- Points to Remember
- Frequently Asked Questions
1. The Section Map
| Provision | IPC, 1860 | BNS, 2023 | Note |
|---|---|---|---|
| Common intention | s 34 | s 3(5) | Now a sub-section of the general explanations |
| Like or same intention | s 35 | s 3(6) | Unchanged |
| Co-operation in one of several acts | s 37 | s 3(8) | Unchanged |
| Different offences from the same act | s 38 | s 3(9) | Unchanged |
| Unlawful assembly | s 141 | s 189(1) | Same five objects, relettered (a)–(e) |
| Being a member of an unlawful assembly | ss 142 & 143 | s 189(2) | Offence and punishment merged |
| Common object | s 149 | s 190 | Word for word identical |
| Rioting | ss 146–148 | s 191 | Consolidated into sub-sections |
| Abetment — act abetted committed | s 109 | s 49 | Unchanged |
| Criminal conspiracy | ss 120A & 120B | s 61 | Definition and punishment consolidated |
2. Section 3(5) — Common Intention
Section 3(5), BNS, 2023 (formerly s 34, IPC):
"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."
The three ingredients
- A criminal act must be done by several persons;
- The criminal act must be done in furtherance of the common intention of all; and
- There must be participation of all persons in furthering that common intention.
Note the width of "criminal act." Read with the Sanhita's definition of "act" as including a series of acts, the expression covers an entire sequence of acts done in succession and so closely connected that they cannot be separated from one another with different intentions assigned to each. That is precisely the situation the provision exists to meet — cases where it is impossible to say which member of a group did what.
Historically, the provision is traced to Reg v Cruise, where a constable went to arrest A and three others came out of the house and drove him off with a blow. The court held each of the three equally liable for the blow, regardless of which one struck it. The words "in furtherance of the common intention" were not in the original section at all — they were inserted by amendment in 1870.
3. A Rule of Evidence, Not an Offence
The proposition to open every answer with: s 3(5) does not create a substantive offence. It lays down the principle of joint criminal liability, and nothing more.
In Barendra Kumar Ghosh v King Emperor, the classic formulation: the provision 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."
In Gurdatta Mal v State of Uttar Pradesh, the Supreme Court put it in terms worth memorising:
"It is well settled that section 34 does not create a distinct offence: it only lays down the principle of joint criminal liability. The necessary conditions for application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention."
And in State of Madhya Pradesh v Deshraj, the Court identified what it exists for:
"The distinctive feature of the Section is the element of participation in action… The provision 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 prove exactly what part was taken by each of them."
The practical consequence
Because it is a rule of evidence and not an offence, s 3(5) applies even where no specific charge under it has been framed, if the evidence shows a pre-arranged plan to commit a criminal act. Absence of a charge is not by itself fatal, unless prejudice to the accused is shown.
4. Prior Concert — and the Spur of the Moment
The general rule: a pre-arranged plan
In Pandurang v State of Hyderabad, Bose J laid down the orthodoxy:
"…a common intention pre-supposes a prior concert. It requires a pre-arranged plan before a man can be vicariously convicted for the criminal act of another… Accordingly, there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the specific section because there was no prior meeting of minds to form a pre-arranged plan."
That is the answer to the puzzle at the head of this article. Where there is no prior concert, each accused is liable only for the injury he himself caused — and if the prosecution cannot prove his particular blow was the fatal one, he cannot be convicted of murder at all, however clearly his intention to kill is established.
The qualification: it may form on the spot
But prior concert need not be much prior. In the same case, Bose J made clear that the plan need be neither elaborate nor long in the making. His example: a man shouts to bystanders to help him kill someone, and they by word or act extend support and actually join him. There has been a meeting of minds — "however hastily formed or rudely conceived, a pre-arranged plan has come into existence."
In Kripal v State of Uttar Pradesh — a long-standing family property dispute ending in a spear wound to the jaw — the Court held:
"The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Whether… all the individuals concerned have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have developed… is a question that has to be determined on the facts."
Significantly, on those facts the Court found the common intention established went only to beating the deceased with dangerous weapons likely to cause grievous hurt. The fatal stabbing was the individual act of one accused, actuated by pre-existing enmity. He alone was convicted under s 302.
The caution: where common intention is said to have formed on the spot, there must be cogent material on which the court can hold the others vicariously liable. Absent that, each is liable only for his own acts.
5. Common Intention Is Not Similar Intention
This is the distinction that decides cases, and the one most often lost.
In Dukhmochan Pandey v State of Bihar, a mob of roughly 200 armed persons descended on a field where about 20 labourers were transplanting paddy and ordered them to stop. Two accused fired into the group; the mob then assaulted the labourers. Two died. The question was whether a mob whose common object was to stop the work had developed, on the spot, a common intention to commit murder.
"…common intention which developed at the spur of the moment is different from a similar intention actuated in a number of persons at the same time… The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one, and if overlooked, may lead to miscarriage of justice."
The Court held that the mere fact that the accused were armed was not enough to attribute a common intention to murder. It required evidence sifted to identify acts flowing from a "meeting of minds and fusion of ideas."
The rule stated flatly
- Common intention and similar intention are two different concepts of law. They are not synonymous.
- It is necessary that the intention of each of several persons be known to each other for a common intention to exist.
- The same intention held by several persons does not become a common intention unless they share it with each other.
- Mere presence together is not sufficient to hold that the accused shared a common intention.
- Where persons holding the same or similar intention are merely physically present at the same time and place, they are not jointly responsible. Each is liable only for his own acts.
The free-fight problem
Joint liability is at its most difficult where two hostile groups fight each other. In Balaur Singh v State of Punjab, both courts below found a free fight and held each assailant accountable for his own acts. On the murder conviction, the Court held that in a free fight — with movement of bodies and cross-assault, each side a participant or expected participant — it is difficult to ascribe to one accused the intention to cause injuries sufficient to cause death. The conviction was altered from s 302 to s 304 Part II.
6. The Second Limb: Participation
Common intention alone is not enough. Participation in the criminal act is a condition precedent to joint liability under s 3(5). This is the element that most sharply separates it from common object, where no participation is required at all.
Participation, however, does not always mean presence at the spot with a weapon in hand. It can extend to acts of encouragement, help, protection and support. The point is that every member charged must be a sharer in the joint act that results from their combined activity.
7. Section 189(1) — Unlawful Assembly
Section 189(1), BNS, 2023 (formerly s 141, IPC): an assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing it is —
| Object | Substance |
|---|---|
| (a) | To overawe by criminal force, or show of criminal force, the Central Government, any State Government, Parliament, a State Legislature, or any public servant in the exercise of lawful power |
| (b) | To resist the execution of any law or legal process |
| (c) | To commit any mischief or criminal trespass, or other offence |
| (d) | By criminal force or show of criminal force, to take possession of property, or deprive a person of a right of way, use of water or other incorporeal right, or to enforce any right or supposed right |
| (e) | By criminal force or show of criminal force, to compel a person to do what he is not legally bound to do, or omit what he is legally entitled to do |
Three ingredients
- An assembly of five or more persons;
- They must have a common object; and
- The common object must be one of the five specified.
The list is closed. This is a structural limit with no counterpart in s 3(5): common intention is undefined and therefore unlimited in operation, while common object cannot go beyond the five objects in s 189(1). If the object of the assembly is not one of the five, there is no unlawful assembly, and s 190 cannot be invoked at all.
The Explanation matters: an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. Previous concert is not required. The object may be adopted at the beginning or develop at the spot eo instanti.
Two illustrations of the boundary. In Gajanand v State of Uttar Pradesh, two groups of pandas at Benaras fought over offerings; the appellants' party had retaliated only when attacked, and a lawful assembly does not become unlawful merely by responding in self-defence. And in Mariadasan v State of Tamil Nadu, where a deceased who intervened in a sudden altercation was assaulted in the heat of passion, no unlawful assembly was ever formed — the suddenness of a quarrel militates against a common object being entertained. Each accused was liable only for his own acts.
In Sukha v State of Rajasthan, the converse: villagers rushed to a spot fearing marauders — lawful. When they began beating the suspects, the object was exceeded and became unlawful. Private persons are no more entitled to beat suspected thieves than the police is.
8. Section 190 — Common Object
Section 190, BNS, 2023 (formerly s 149, IPC) — reproduced word for word:
"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 limbs
Liability attaches if either is satisfied:
- The offence was committed in prosecution of the common object; or
- The offence was such as the members knew to be likely to be committed in prosecution of that object.
There must be a nexus between the common object and the offence committed. Because the provision fastens vicarious responsibility, it is to be strictly construed: even acts incidental to the common object must have been within the knowledge of the other members as likely to be committed in prosecution of it.
Common object is inferred from the facts — the nature and number of injuries, the manner of executing the object, and the acts and conduct of the accused.
It creates a substantive offence
Unlike s 3(5), s 190 is a substantive offence. In Nanak Chand v State of Punjab, the accused was charged under s 302 read with s 149 but convicted under s 302 simpliciter, with a death sentence. The Supreme Court quashed it:
"Under this section a person who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly… although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object… Therefore, when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed."
And in State of Haryana v Shakuntla, the Court stressed that whenever a conviction is recorded with the aid of s 149, the evidence must disclose not only the nature of the common object but also that the object was unlawful.
9. Membership Is Enough
This is where the two doctrines part company most sharply.
In Masalti v State of Uttar Pradesh — a faction fight in which some 35 armed persons went to the deceased's house intending to kill the male members of a rival family, and five died — it was argued that only those who actually fired should be convicted of murder. The Court rejected this. What must be proved against an alleged member is that:
- He was one of the persons constituting the assembly; and
- He shared the common object as defined in the section.
No specific overt act need be attributed to him. Once membership is established, mere membership is sufficient to hold him vicariously liable.
But membership must still be proved
The counterweight is Baladin v State of Uttar Pradesh: mere presence in an assembly does not make a person a member of an unlawful assembly, unless it is shown that he did or omitted something making him a member, or intentionally joined it. Presence alone does not fasten liability unless he was actuated by a common object, and that object is one of the five enumerated.
Two applications:
- Prabhakar Shankar Sawant v State of Maharashtra — a morcha of 300–400 persons, initially peaceful, from which some began pelting stones. The prosecution had to prove the accused were part of the assembly at the time it became unlawful. It did not; they were acquitted.
- Sudhir Samanta v State of West Bengal — a village land rivalry with many present. Membership is a sine qua non; three accused were acquitted for want of any evidence of membership or role.
10. The Five-Person Rule and the Acquittal Problem
An assembly of fewer than five is not an unlawful assembly, and cannot found a conviction under s 190. This creates a recurring trial-court problem: what happens when acquittals drop the number below five?
| Case | Holding |
|---|---|
| Mohan Singh v State of Punjab | Five named accused; two acquitted. With no evidence of other unnamed or unidentified persons, the remaining three could not be convicted as members of an unlawful assembly. But acquittal of some does not necessarily displace the charge, if the court can conclude the assembly nevertheless comprised five or more who were not identified or named. |
| Ram Bilas Singh v State of Bihar | Set out when conviction survives despite the number falling below five — including where the charge itself states that, apart from those named, several other unidentified persons were also members. |
| Subran @ Subramanian v State of Kerala | Six named; two acquitted without any finding of unknown participants, leaving four. The existence of an unlawful assembly is a necessary postulate for invoking s 149. Convictions under s 149 set aside; each convicted for his individual acts. |
| Amar Singh v State of Punjab | Seven accused reduced to four by acquittals. Below five; acquitted of the s 149 offences. |
The parallel rule under s 3(5) is different and more forgiving. If acquittals reduce the accused to one, s 3(5) cannot be used — unless it is proved he shared a common intention with persons other than the acquitted. But where two or more remain and are proved to have shared the common intention, liability holds: in Bharwad Mepa Dana v State of Bombay, four remained after acquittals and were held to have shared a common intention with others whose identity was never established. It is even possible to convict a solitary accused under s 302 with the aid of s 34 where all others have been acquitted.
11. The Six Points of Distinction
This is the table to memorise.
| Point | Common Intention — s 3(5), BNS (s 34, IPC) | Common Object — s 190, BNS (s 149, IPC) |
|---|---|---|
| 1. Nature | Lays down a principle of joint liability only. Creates no separate offence. | Creates a specific, substantive offence, located in the chapter on offences against public tranquillity. Membership of an unlawful assembly is itself punishable. |
| 2. Scope | "Common intention" is undefined and therefore unlimited in operation. | "Common object" cannot go beyond the five objects specified in s 189(1). |
| 3. Meeting of minds | Requires a prior meeting of minds and unity of intention. | May be formed without either. The object may be shared while the intentions of participants differ. |
| 4. Participation | Participation is the crucial factor — and a condition precedent. | Membership is sufficient. No active participation or contribution is needed. |
| 5. Number | Two or more persons suffice. | A minimum of five persons is essential. |
| 6. Overt act | Some overt act, however small, is a pre-requisite. | Mere membership of the unlawful assembly fixes liability. |
Nanak Chand on the distinction
"There is a clear distinction between the provisions of sections 34 and 149… The principal element in section 34 is the common intention to commit a crime… There is no question of common intention in section 149. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there is no common intention between that person and other members to commit that offence, provided the conditions laid down in the section are fulfilled."
Beg J in Om Prakash v State
The clearest judicial statement of the contrast:
"Whereas section 34 does take into account the fact of the participation of every individual offender… as well as his mental state… section 149 completely ignores both these factors…
The 'criminal act' contemplated in section 34 is a joint act which is the result of several persons individually acting in a particular manner. Every individual member charged with the aid of section 34 must therefore be a sharer in the joint act…
[U]nder section 149 a person might be liable for the offence even though he himself did not actually join in perpetrating it, nor was the offence committed in his immediate presence…
[U]nder section 149 the entire emphasis, both in respect of the physical act as well as the mental state, is placed on the assembly as a whole; whereas under section 34 the weight in respect of both is divided and is placed both on the individual member and on the entire group."
12. Substituting the Charge
A practical question that arises constantly: the accused is charged under s 190 (s 149) but the assembly turns out to be under five. Can the court convict with the aid of s 3(5) instead?
Yes — in the right case. In Chittarmal with Moti v State of Rajasthan, the Supreme Court held:
"…section 34 as well as section 149 deal with liability for constructive criminality, i.e. vicarious liability of a person for acts of others. Both… deal with combinations of persons who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap… If the common object does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention, then the substitution… must be held to be a formal matter."
Amar Singh v State of Haryana and Bhoor Singh v State of Punjab both confirm that a conviction under s 302 read with s 34, on a charge framed under s 302 read with s 149, is not illegal where the facts and evidence would have been the same and no prejudice is shown. Absence of a specific s 34 charge is an irregularity, not an illegality.
The test, in one line: substitution is permissible where the common object necessarily involved a common intention. Where it did not, substitution prejudices the accused and must be refused.
13. Distinguishing Abetment and Conspiracy
A third and fourth doctrine sit alongside these two, and examiners like to test all four together. In Noor Mohammad Mohd Yusuf Momin v State of Maharashtra, the Supreme Court set them apart:
| Provision | Essence |
|---|---|
| s 3(5), BNS (s 34, IPC) |
Joint liability in the doing of a criminal act. The essence is the existence of a common intention, and it is attracted by participation in the commission of the offence in furtherance of that intention. |
| s 49, BNS (s 109, IPC) |
Abetment. May be attracted even if the abettor is not present when the offence abetted is committed — provided he instigated it, engaged in a conspiracy pursuant to which some act took place, or intentionally aided the offence. |
| s 61, BNS (ss 120A–120B, IPC) |
Criminal conspiracy — an agreement to do an illegal act, or a legal act by illegal means. It differs from other offences in that the mere agreement is itself an offence, even if no step is taken to carry it out. Wider in amplitude than abetment by conspiracy. |
On the facts of Noor Mohammad the conviction with the aid of s 109 was confirmed — the appellant had actively instigated the killing — but the conviction under s 302 read with s 34 was set aside, because he was not present at the spot. That single outcome captures the distinction better than any definition: abetment survives absence; common intention does not.
14. Points to Remember
- s 3(5) creates no offence; s 190 does. This single difference explains points 4, 5 and 6 of the comparison table.
- Two or more for common intention; five or more for common object. The most examined line in the topic.
- Common intention needs a prior meeting of minds. Common object needs none.
- Participation vs membership. Under s 3(5) you must have done something. Under s 190 you need only have belonged.
- Common object is a closed list of five. Common intention is unlimited.
- Common ≠ similar. Pandurang and Dukhmochan Pandey. Four men each independently intending to kill share no common intention.
- Both may form on the spot — but a common intention formed on the spot needs cogent material, and a sudden quarrel militates against a common object.
- Mere presence is never enough under either provision (Baladin; and "mere presence together" under s 34).
- Watch the acquittals. Below five, s 190 collapses unless unidentified members were pleaded. s 3(5) survives down to two.
- Substitution turns on prejudice. Permissible where the common object necessarily involved a common intention (Chittarmal).
- Abetment survives absence from the spot; common intention does not (Noor Mohammad).
- Give both numbers. "Section 190, BNS (formerly s 149, IPC)" — trial courts are working across both for years yet.
15. Frequently Asked Questions
What is the difference between common intention and common object?
Common intention (s 3(5), BNS) requires a prior meeting of minds and participation by each accused, needs only two or more persons, and creates no separate offence. Common object (s 190, BNS) requires five or more persons in an unlawful assembly, needs no meeting of minds and no participation — mere membership suffices — and is a substantive offence confined to the five objects listed in s 189(1).
Which BNS section replaced Section 34 of the IPC?
Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, reproduced word for word. Section 35, IPC became s 3(6); s 37 became s 3(8); s 38 became s 3(9).
Which BNS section replaced Section 149 of the IPC?
Section 190. Unlawful assembly (s 141, IPC) is now s 189(1).
Is Section 34 a substantive offence?
No. It lays down the principle of joint criminal liability and is treated as a rule of evidence. Because of that, it may be applied even where no specific charge under it was framed, provided the evidence shows a pre-arranged plan and no prejudice is caused. Section 149 is different — it is a substantive offence.
Can common intention develop on the spot?
Yes. Pandurang and Kripal both hold that a pre-arranged plan may be "hastily formed or rudely conceived." But there must be cogent material from which the court can find a simultaneous consensus of minds, as distinct from simultaneous but independent intentions.
How many people are needed for common intention?
Two or more. For common object, a minimum of five.
What happens if acquittals reduce the accused below five?
Ordinarily the charge under s 190 fails, since an unlawful assembly is a necessary postulate (Subran; Amar Singh v State of Punjab). It survives only if the court can find that the assembly nevertheless comprised five or more, including unidentified or unnamed persons — which is why the charge itself should plead them (Mohan Singh; Ram Bilas Singh).
Can a person charged under Section 149 be convicted under Section 34?
Yes, where the common object necessarily involved a common intention — the substitution is then a formal matter. Where it did not, substitution would prejudice the accused and is impermissible (Chittarmal).
Is an overt act necessary?
Under s 3(5), yes — some overt act, however small. Under s 190, no: once membership and sharing of the common object are established, no specific overt act need be attributed (Masalti). But mere presence without membership is not enough (Baladin).
Did the BNS change these doctrines?
No. Both provisions were carried into the Sanhita in substance unchanged — s 190 word for word. Only the numbering moved, and the five objects of an unlawful assembly were relettered from "First to Fifth" into clauses (a) to (e).
Conclusion
Return to the two scenarios. Four men, each independently intending to kill, striking separately, with no prior concert and no proof of whose blow was fatal: no common intention, no joint liability, and quite possibly no murder conviction against anyone. Thirty men in an assembly with one shared unlawful object, one of whom fires: every member guilty of murder, no overt act required.
The Sanhita has changed neither result. What it has done is move the two provisions further apart on the page — s 34 folded into a sub-section of the general explanations at s 3(5), s 149 promoted to a section of its own at s 190 — while leaving the words, and therefore a century and a half of authority, exactly where they were.
Which means the old discipline still applies. Before you invoke either, ask the two questions the Supreme Court has been asking since Barendra Kumar Ghosh: was there a meeting of minds, and did this accused do something? If the answer to both is yes, you are in s 3(5). If the answer to both is no but there were five of them sharing one of the five objects, you are in s 190. If neither fits, each man answers for his own act — and nothing more.
Disclaimer: These notes are prepared for educational purposes for law students, judiciary and AIBE aspirants, and practitioners, and do not constitute legal advice. Statutory provisions have been summarised and, in places, paraphrased for clarity; readers must verify the exact language against the enacted text of the Bharatiya Nyaya Sanhita, 2023 and the Indian Penal Code, 1860 before relying on it in argument or examination. Section numbering is subject to amendment and should be checked afresh. Case holdings are stated in summary form and are drawn from the standard commentary; readers should consult the full reports before citation. The application of joint liability is intensely fact-specific, and no summary can substitute for the record in a given case.
