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Joint and constructive liability under BNS (Bharatiya Nyaya Sanhita)| Difference between Section 3(5) and Section 190 BNS

Joint and constructive liability is incurred when more than one persons are engaged in a crime. In this article, we will focus on the concept of joint and constructive liability from the perspective of Bharatiya Nyaya Sanhita, 2023 (BNS).


1. Joint Liability under Section 3(5) of BNS Bharatiya Nyaya Sanhita, 2023 :


Section 3(5) of BNS establishes joint criminal liability when two or more individuals act in furtherance of a common intention. Key elements of section 3(5) are common intention, involvement of multiple persons, and the commission of a criminal act.


2. Constructive Liability under Section 190 of BNS:


Section 190 of BNS talks about constructive liability, an extension of joint liability, holding every member of an unlawful assembly responsible for offenses committed in pursuit of their common object. The essentials include the commission of the offense by any member, a known common object, and membership at the time of the offense. Section 189 of BNS defines an unlawful assembly as a group of at least five persons with an unlawful common object.


Elements of Section 190 of BNS:


1. Offense committed by a member of an unlawful assembly.


2. Commission of the offense in pursuance of the common object.


3. Membership of the same assembly at the time of the offense.


3. Criminal Knowledge or Intention under Section 3(6) of BNS:


Section 3(6) of BNS establishes joint criminal liability based on criminal knowledge or intention. When an act is criminal only due to its execution with criminal knowledge or intention, each person joining in the act is liable as if they committed it alone.


4. Co-operation in offense under Section 3(8) of BNS:


Section 3(8) of BNS addresses offenses committed through several acts, stating that whoever intentionally cooperates in the commission of an offense commits that offense. The essentials include a criminal act committed by multiple acts, intentional cooperation, and participation in any of the acts constituting the offense.


5. Section 54 of BNS - Abettor's Liability:


Section 54 of BNS introduces the liability of an abettor, stating that if present at the scene during the offense's commission, the abettor is equally liable to the principal offender. When read in conjunction with Section 3(5) of BNS, it creates joint liability for both the abettor and the principal offender.


6. Section 310 of BNS - Dacoity with Murder:


Section 310 of BNS deals with dacoity as well as dacoity with murder, establishing joint liability for all individuals involved in such dacoity if murder occurs during the act.


7. Section 331 of BNS - Lurking House Trespass:


Section 331 of BNS constitutes punishment for house trespass and house breaking. It also talks about joint criminal liability when death or grievous hurt results from persons jointly involved in lurking house trespass or breaking a house by night.


Difference between Section 3(5) of BNS and Section 190 of BNS:


1. Number of persons:


Section 3(5) BNS requires two or more persons, while Section 190 BNS necessitates a minimum of five persons in an unlawful assembly.


2. Specific offense:


Section 3(5) BNS does not create a specific offense, whereas Section 190 BNS establishes a specific offense and imposes vicarious liability on all members.


3. Common intention vs. common object:


Section 3(5) BNS requires common intention, while Section 190 BNS requires a common object specified in Section 189 BNS.


4. Prior meeting of minds:


Section 3(5) BNS mandates a prior meeting of minds, while Section 190 BNS does not require such a prior arrangement.


Let us see some case laws under Bharatiya Nyaya Sanhita, 2023 (BNS)


1. Birendrakumarghosh V. King Emperor:


- Background: This case is commonly known as the "postman case." The incident involved the murder of a postman.


- Observation: The court noted that a person standing outside the post office to give signals to his accomplices would be liable. The critical aspect was that the offense was committed in pursuance of a common intention, emphasizing that physical presence at the murder scene was not the sole determining factor for liability.


- Legal Implication: The case highlighted the importance of common intention and established that even if a person is not physically present at the place of murder, they can be held liable if the offense is committed in pursuit of common intention.


2. Mehboob Shah V. Emperor:


- Background: In this case, the court dealt with a criminal act committed in furtherance of common intention.


- Observation: The court emphasized that the criminal act must be in pursuance of the common intention shared by the individuals involved.


- Legal Implication: This case reinforced the idea that for joint criminal liability, the offense must be committed in pursuit of the common intention of all involved parties.


3. Kirpal Singh V. State of U.P:


   - Background: This case dealt with the development of common intention on the spot.


   - Observation: The court observed that common intention may develop spontaneously on the spot during the commission of the act.


   - Legal Implication: It established that common intention need not always be pre-planned and can evolve in the course of the criminal act, recognizing the dynamic nature of joint criminal liability.


4. Pandurang V. Hyderabad:


- Background: The case involved an examination of the scope of common intention.


- Observation: The court observed that for constituting common intention, a pre-arranged plan or a prior meeting of minds is essential.


- Legal Implication: The case clarified that the concept of common intention involves a level of premeditation and coordination, highlighting the need for a shared plan among the individuals participating in the criminal act.


FAQs on Joint and Constructive Liability under Bharatiya Nyaya Sanhita, 2023 (BNS):


1. What is Joint Liability under Section 3(5) of BNS?


- Joint Liability under Section 3(5) of BNS occurs when two or more individuals act with a common intention, involving key elements such as common intention, multiple persons, and the commission of a criminal act.


2. What is Constructive Liability under Section 190 of BNS?


- Constructive Liability under Section 190 of BNS extends joint liability, holding every member of an unlawful assembly responsible for offenses committed in pursuit of their common object. Key elements include the commission of the offense, a known common object, and membership at the time of the offense.


3. What are the Elements of Section 190 of BNS?


- The essentials include the offense being committed by a member of an unlawful assembly, in pursuance of the common object, and the membership of the same assembly at the time of the offense.


4. How does Section 3(6) of BNS establish Criminal Knowledge or Intention?


- Section 3(6) of BNS establishes joint criminal liability based on criminal knowledge or intention. If an act is criminal due to its execution with criminal knowledge or intention, each person joining in the act is liable as if they committed it alone.


5. What does Section 3(8) of BNS Address?


- Section 3(8) of BNS addresses offenses committed through several acts. It states that whoever intentionally cooperates in the commission of an offense commits that offense, with essentials including a criminal act committed by multiple acts, intentional cooperation, and participation in any of the acts constituting the offense.


6. Explain Section 54 of BNS - Abettor's Liability.


- Section 54 of BNS introduces the liability of an abettor, stating that if present at the scene during the offense's commission, the abettor is equally liable to the principal offender. When read with Section 3(5) of BNS, it creates joint liability for both the abettor and the principal offender.


7. What does Section 310 of BNS Address?


- Section 310 of BNS deals with dacoity and dacoity with murder, establishing joint liability for all individuals involved in such dacoity if murder occurs during the act.


8. Explain Section 331 of BNS - Lurking House Trespass.


- Section 331 of BNS constitutes punishment for house trespass and house breaking. It also addresses joint criminal liability when death or grievous hurt results from persons jointly involved in lurking house trespass or breaking a house by night.


9. What is the Distinction between Section 3(5) and Section 190 of BNS?


- Key distinctions include the number of persons required, creation of specific offenses, the requirement of common intention vs. common object, and the necessity of a prior meeting of minds.


Joint and constructive liability under BNS (Bharatiya Nyaya Sanhita)| Difference between Section 3(5) and Section 190 BNS


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