• Section 3(5) of Bharatiya Nyaya Sanhita recognises the principle of vicarious liability in criminal law. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence

Exact proposition of law as contained in Section 3(5) BNS:

• • When a criminal actis 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

• For the applicability of this section to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of this section for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused having such intention.

• What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention.

• The section speaks of doing “a criminal act by several persons.” As per Section 2(1) the word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts.

• Hence, under Section 3(5), one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.

• Section 3(5) lays down a principle of joint liability in the doing of a criminal act.

• The section does not say “the common intention of all” nor does it say “an intention common to all”. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

• To invoke the aid of Section 3(5) successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.

• The common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.

• It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.

• Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial.

• The inference of common intention within the meaning of the term in Section 3(5) should never be reached unless it is a necessary inference deducible from the circumstances of the case.

• Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment.

• To attract Section 3(5) two postulates are indispensable:

1. 1. The criminal act (consisting of a series of acts) should have been done, not by one person.
   2. Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

• Looking at the first postulate, the accused who is to be fastened with liability on the strength of Section 3(5) BNS should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessary be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act.

• Section 3(5) 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.

There is one more provision of law which similarly fastens vicarious liability: section 3(6) BNS:

• Section 3(6) BNS says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”.

Exact proposition of law as contained in Section 3(6) BNS:

• • • Whenever an act
      • which is criminal only by reason of it being done with criminal knowledge or intention
    • is done by severalpersons
    • each of such persons who joins in the act with such knowledge or intention
    • is liable for the act
      • as if the act were done by him alonewith that knowledge or intention

• The section differs from Section 3(5) only regarding one postulate. In place of common intention of all such persons (in furtherance of which the criminal act is done), as required in Section 3(5), it is enough that each participant who joins others in doing the criminal act, has the required mens rea.