📘 Legal Provision

Section 3(5) of the Bharatiya 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 OnLine SC 1169 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 SCC OnLine SC 92 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 SCC OnLine Del 617 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, 2023 LiveLaw (SC) 782 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 SCC OnLine Pat 988 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 LiveLaw (SC) 120 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 Comparison	Section 34 IPC	Section 3(5) BNS, 2023
Statutory Language	“Acts done by several persons…”	“Criminal act done by several persons…”
Nature	Rule of evidence	Rule of evidence
Basis for Joint Liability	Common Intention	Common Intention
Need for Specific Offence	No	No
Time of Formation	Before or at the moment of crime	Before or at the moment of crime
Proof	Through conduct and circumstantial evidence	Through conduct and circumstantial 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
Prior Meeting of Minds	Mutual plan before/during the act	A & B decide to rob a shop
Mental Element	Awareness and shared intention	A supports B in beating C with intention
Active Participation	Involvement in any form	A holds door while B steals inside
Causative Link	Crime flows from shared plan	B stabs only after both decide to attack
Contemporaneous Formation	Intention arises on the spot	A & B join fight instantly and attack victim

✅ Conclusion:

The doctrine of common intention under Section 3(5) of the Bharatiya 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.