Whether every member of an unlawful assembly is guilty of an offence which is committed in prosecution of the common object? Why?

The Logic of Constructive Liability

The foundational question — why should a passive member be guilty for another's act? — is answered by the logic of membership itself. When a person knowingly joins and remains in an unlawful assembly, he consciously places himself in a group that has adopted an illegal common object. He contributes his presence, his numbers, his moral support, his intimidating influence on the victim. The law regards this as a voluntary assumption of risk. He who joins a dangerous venture shares in its consequences.

The Supreme Court, in Shambhu Nath Singh v. State of Bihar (AIR 1960 SC 725), articulated this principle with lasting clarity: Section 149 is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object, or for such offences as the members knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with a common object and that object is committed by any member, all other members are guilty even though there was no common intention as such between them to commit it individually.

This was the same logic that Lord Sumner invoked in Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) — "They also serve who only stand and wait" — a line borrowed from Milton that has since become the most quoted maxim in the entire law of constructive criminal liability. Barendra was standing outside the post office while others shot the Sub-Postmaster dead. His standing and waiting was itself participation in the shared criminal enterprise.

The Two Gateways of Section 190 BNS

The text of Section 190 BNS contains two distinct limbs, and the distinction between them is not merely textual — it has critical practical significance for every trial involving an unlawful assembly.

The First Limb: Prosecution of the Common Object

The first limb holds every member guilty if the offence was committed in prosecution of the common object of the unlawful assembly. Here, the offence need not have been planned in advance. What is required is a direct and proximate connection between the offence committed and the shared illegal object that brought the assembly together.

In Mizaji v. State of Uttar Pradesh (AIR 1959 SC 572), five persons armed with a pistol, spear, and lathis assembled with the common object of taking forcible possession of a disputed agricultural field — an object falling squarely under clause (d) of Section 141 IPC. When the opposing party resisted and one member fired a pistol killing the deceased, the Supreme Court held without hesitation that the murder was immediately connected with the common object of taking forcible possession at any cost. The members of the assembly had made it clear they would do whatever it took to achieve their object. Every member was accordingly convicted for murder.

In State of Rajasthan v. Nathu (2003 5 SCC 537), five accused armed with deadly weapons entered the complainant's house by breaking a wall, and finding him absent, butchered his children instead. The Supreme Court set aside the acquittal recorded by the High Court. It was not necessary to record a finding as to which specific accused caused any particular fatal injury. Once it was proved that death was caused in prosecution of the common object, every member of the unlawful assembly became vicariously liable for murder.

The Second Limb: Knowledge That an Offence Was Likely

The second limb operates in a different and somewhat wider territory. Even if the offence was not specifically the common object of the assembly, every member who knew that such an offence was likely to be committed in prosecution of the common object is equally guilty of it. The word "knew" in the second limb is crucial — it is not mere suspicion or possibility; it demands positive knowledge of the likelihood.

As the Supreme Court clarified while examining both limbs, the distinction between them cannot be blurred. In the words of the court, "the word knew used in the second branch implies something more than a possibility and cannot be made to bear the sense of might have been known. Positive knowledge is necessary." There may thus be cases which fall within the second limb but not the first — for instance, where one member uses a weapon that was concealed and unknown to others, or where the act committed was an unplanned escalation that only some members could foresee.

The practical illustration from the source material is illuminating. Six persons enter a house at night to commit theft. While the others search for valuables on the ground floor, one member goes upstairs and rapes a maid. The question is: are all six liable for rape? The theft falls squarely within the common object under the first limb. But rape was neither the common object nor, on these facts, something that the others necessarily knew was likely to be committed. Accordingly, only the person who committed the rape bears liability for it under the second limb — provided the others had no knowledge of its likelihood. This illustration, drawn from the logic of Section 149, demonstrates that the second limb creates a genuinely fact-specific inquiry.

Ingredients That Must Be Established

Section 190 BNS does not operate automatically upon proof of mere presence. To hold any member of an unlawful assembly vicariously liable under this section, the prosecution must establish the following:

First — The person was a member of an unlawful assembly within the meaning of Section 189(1) and (2) BNS. Membership requires awareness of the facts that render the assembly unlawful and an intentional joining or continuation in it. A person who merely happens to be standing in the vicinity is not a member.

Second — The assembly was constituted of five or more persons sharing a common object falling within one of the five categories of Section 189(1) BNS.

Third — An offence was committed by any one or more members of that assembly.

Fourth — The offence was committed either (a) in prosecution of the common object, or (b) was known to be likely to be committed in pursuit of that object.

Fifth — The accused was a member of the assembly at the time of the commission of the offence. A person who had already left the assembly before the offence was committed cannot be fastened with liability.

This fifth requirement was examined closely in Mohan Singh v. State of Punjab (AIR 1963 SC 174), where five named persons were charged with murder as members of an unlawful assembly. Two were acquitted on benefit of doubt, bringing the assembly below the required number of five. The Supreme Court held that the remaining three could not be convicted as members of an unlawful assembly unless evidence showed that other unidentified persons were also present. The requirement that there must have been five or more persons at the time of the offence must be established — it is not merely presumed.

Mere Presence Is Not Enough: The Critical Caveat

Section 190 BNS must not be read as a licence to rope in every person who happened to be at the scene. The Supreme Court has, in a long line of decisions, firmly held that mere presence at the place of occurrence does not make a person a member of an unlawful assembly, unless it is affirmatively shown that he shared the common object and was actuated by it.

In Baladin v. State of Uttar Pradesh (AIR 1956 SC 181), the Supreme Court examined the case of each individual accused charged with murder as members of an unlawful assembly. After close scrutiny, it set aside the convictions of four accused — Thakur Das, Ishwari Prasad, Mulloo, and Jagdish — to whom no overt act could be attributed, nor could any specific participation be established. Their mere presence at the scene was insufficient to brand them as members of the unlawful assembly.

Similarly, in Shivjee Singh v. State of Bihar (AIR 2009 SC 417), the Supreme Court reiterated with equal force that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. This caveat is not a concession to accused persons — it is the guarantee against misuse of a powerful provision.

The case of Eknath Ganpat Aher v. State of Maharashtra illustrates this risk eloquently. The Supreme Court, while setting aside convictions, noted the well-known tendency in group rivalry cases to rope in as many persons as possible, and directed courts to sift the evidence with great care, giving benefit of doubt where individual participation remains unproved.

The Distance Between Section 190 (Common Object) and Section 35 (Common Intention)

A complete understanding of Section 190 BNS requires appreciation of how it differs from Section 35 BNS — the provision dealing with joint liability in furtherance of a common intention. These are two entirely separate doctrines operating on different premises, and their confusion, as Sir Madhavan Nair warned in Mahaboob Shah v. Emperor (AIR 1945 PC 148), "will result in miscarriage of justice."

The Supreme Court captured this distinction perfectly in Chittarmal v. State of Rajasthan (AIR 2003 SC 796): common intention denotes action in concert and necessarily postulates a prior meeting of the minds — a pre-arranged plan — while common object does not necessarily require proof of prior concert. Similarly, in Shiv Ram v. State of Uttar Pradesh (AIR 1998 SC 49), the court affirmed that the unlawful assembly could develop a common object in the spur of the moment even while five persons were committing the gravest acts of violence.

The practical implication is that under Section 190 BNS, a person's membership is his participation. The state need not prove that he struck a blow, wielded a weapon, or shouted an exhortation. It must prove only that he was a knowing, willing member of the unlawful assembly when the offence was committed in furtherance of the common object that he shared.

Daya Kishan and the Limits of Constructive Liability

No account of Section 190 BNS would be complete without acknowledging the Supreme Court's restraint in Daya Kishan v. State (Punjab & Haryana), where it cautioned against mechanical application of the provision. In that case, the accused was a member of an unlawful assembly whose common object was to teach a lesson to one Sanjay. One member, Pohla, fired a shot that killed a different person entirely — Rajesh. The court held that since the common object was limited to causing injury to Sanjay, and since there was no evidence that the accused knew Pohla would fire at anyone else, the accused could not be convicted for Rajesh's murder under Section 302 read with Section 149 IPC. The act of Pohla in shooting at Rajesh was treated as his individual act, entirely disconnected from the common object of the assembly.

This decision underlines a principle of enduring importance: the link between the offence committed and the common object of the assembly must be real and established, not assumed. An entirely personal and independent act by one member — unconnected to the shared illegal purpose — does not render every other member guilty of it. The width of Section 190 BNS is considerable, but it has a boundary: the nexus to the common object is that boundary.

An Illustration That Brings It All Together

Five persons share a common object of causing assault on a rival. They assemble armed with lathis. During the assault, one of them spontaneously stabs the victim with a knife he had been carrying, which the others knew about. The victim dies. Under the first limb of Section 190 BNS, the murder is in direct prosecution of the common object of causing serious bodily harm. Under the second limb, even if it is argued that murder was not the precise common object, the members knew the knife was being carried and that its use in a violent assault was likely to cause death. Every member is accordingly liable for murder under Section 302 read with Section 190 BNS.

Change the facts slightly: the knife was completely concealed, and the others had no knowledge of it whatsoever. Now the first limb is strained and the second limb fails — there was no knowledge of the likely commission of murder. The members would be liable for assault or rioting, but the mantle of murder cannot, on these facts, be placed on those who had no knowledge of the fatal weapon or its likely use.

Why Every Member is Guilty

The policy rationale for imposing such broad liability is rooted in practical reality. In collective violence, it is almost impossible to identify the precise individual blows, acts, and specific contributions of each member in the heat of mob action. Requiring individual proof of each member's specific act would make the provision nugatory and leave the most dangerous offenders — those who carefully keep their hands clean while directing others — beyond the reach of the law. The law therefore treats membership with knowledge as the substituted form of participation. It is the price of choosing to remain part of an assembly whose character has become unlawful. As the Judicial Committee of the Privy Council observed in Barendra Kumar Ghosh — the man who stands and waits while others act in pursuit of a shared criminal purpose is not innocent. He enables. He encourages. He completes the numbers. He serves — and the law holds him for it.