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Bharatiya Nyaya Sanhita (BNS) · General Principles of Criminal Liability

Common Object Constructive Liability

Common Object and Constructive Liability of Unlawful Assembly under BNS: Sections 189 and 190 with Landmark Cases

A mob of thirty people gathers to attack a rival group. In the ensuing violence, one member of the mob fires a fatal shot, killing a person. Can all thirty be convicted of murder, even though only one pulled the trigger? A crowd assembles to forcibly occupy disputed land. During the confrontation, some members assault the occupants, causing grievous hurt. Are all members liable for the grievous hurt? These questions engage one of the most important doctrines in Indian criminal law: the constructive liability of members of an unlawful assembly for offences committed in prosecution of the common object. Under Section 190 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 149 IPC), every member of an unlawful assembly is guilty of any offence committed by any member in prosecution of the common object of the assembly, or which the members knew was likely to be committed in prosecution of that object. This doctrine of 'constructive' or 'vicarious' liability is a powerful tool for prosecuting mob violence, riots, and group crimes, where identifying the specific perpetrator of each act is often impossible. This module walks through the definition of unlawful assembly (Section 189), the concept of common object, the constructive liability framework (Section 190), the distinction from common intention (Section 3(5)), and the extensive jurisprudence from Masalti onwards.

1. Introduction

The problem of group crime

Group crime poses a specific challenge for criminal law:

  • In mob violence, riots, and group attacks, multiple persons act together.
  • Often, only one or a few members physically commit the fatal or serious act.
  • Identifying the specific perpetrator of each act is frequently impossible.
  • Yet all members of the group contributed to the collective violence.

If liability were limited to those who physically committed each act, most members of a violent mob would escape liability, and group crime would go largely unpunished.

The doctrine of constructive liability

The doctrine of constructive liability addresses this problem:

  • Every member of an unlawful assembly is liable for offences committed in prosecution of the common object.
  • Liability attaches by virtue of MEMBERSHIP, not by virtue of the specific physical act.
  • This ensures that all members of a violent mob can be held accountable.

The statutory framework

The framework operates through two sections:

  • Section 189: defines unlawful assembly (five or more persons with a common object).
  • Section 190: establishes constructive liability (every member liable for offences in prosecution of the common object).

2. Section 189 BNS: Unlawful Assembly

Text of Section 189

Section 189(1) and (2) BNS (formerly Section 141 IPC)

(1) An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is:

  • (a) to overawe by criminal force, or show of criminal force, the Central Government or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant;
  • (b) to resist the execution of any law, or of any legal process;
  • (c) to commit any mischief or criminal trespass, or other offence;
  • (d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right;
  • (e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

The five common objects

An assembly is unlawful if its common object is one of the five:

  • Overawing the government or a public servant by criminal force.
  • Resisting the execution of law or legal process.
  • Committing mischief, criminal trespass, or other offence.
  • Taking possession of property or enforcing a right by criminal force.
  • Compelling a person to do what they are not legally bound to do.

The five-person requirement

An unlawful assembly requires five or more persons:

  • Fewer than five cannot constitute an unlawful assembly.
  • If the number falls below five (e.g., some are acquitted), the unlawful assembly may cease to exist.
  • However, if the evidence shows five or more were involved (even if not all are identified/convicted), the assembly is established.

3. The Concept of Common Object

The common object is central to the doctrine:

  • The object shared by the members of the assembly.
  • It must be one of the five objects in Section 189.
  • It distinguishes an unlawful assembly from a lawful gathering.

Key features of common object:

  • It is the object of the ASSEMBLY, shared by its members.
  • It may be formed before or at the time of the assembly.
  • It may develop during the course of events.
  • It is inferred from the circumstances - the conduct of the members, the weapons carried, the words spoken, the events.

Common object is distinct from common intention:

  • Common object is a broader concept - it is the object of the assembly.
  • Common intention (Section 3(5)) requires a meeting of minds and a shared intention.
  • A member may share the common object without necessarily sharing a specific common intention for each act.

4. Section 190 BNS: Constructive Liability

Text of Section 190

Section 190 BNS (formerly Section 149 IPC)

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

Section 190 has two limbs:

  • First limb: an offence committed 'in prosecution of the common object'.
  • Second limb: an offence 'such as the members knew to be likely to be committed in prosecution of that object'.

Either limb makes every member liable. The first limb covers offences directly in furtherance of the common object; the second covers offences that were the likely consequence of prosecuting the common object.

Every member liable

The crucial effect of Section 190:

  • Every person who is a member of the assembly at the time of the offence is guilty of that offence.
  • This is regardless of whether they personally committed the offence.
  • Liability attaches by virtue of membership, not physical participation in the specific act.

This is the doctrine of constructive (or vicarious) liability - every member is 'constructively' liable for the offence, even if they did not physically commit it.

5. The First Limb: In Prosecution of Common Object

The first limb of Section 190 covers offences committed 'in prosecution of the common object':

  • The offence is directly in furtherance of the common object.
  • It is the means of achieving or the direct result of pursuing the common object.

Illustration:

  • If the common object is to kill a person, and a member kills that person, all members are liable for murder (first limb).
  • If the common object is to forcibly occupy land, and members assault the occupants to achieve this, all members are liable for the assault (first limb).

The first limb requires a direct nexus between the offence and the common object - the offence must be committed to prosecute (advance/achieve) the common object.

6. The Second Limb: Knew to be Likely

The second limb of Section 190 covers offences 'such as the members knew to be likely to be committed in prosecution of that object':

  • The offence was not the direct object, but was a likely consequence of prosecuting the common object.
  • The members knew it was likely to be committed.

Illustration:

  • If the common object is to forcibly beat a person (not to kill), but the members knew that death was a likely consequence (e.g., they were armed with deadly weapons), and a member kills the person, all members may be liable for murder (second limb).
  • If the common object is to commit robbery, and the members knew that resistance might lead to violence, offences committed during such violence may attract the second limb.

The second limb significantly extends liability - members are liable not only for the direct object but for offences they knew were likely consequences. The knowledge of likelihood is key: the members must have known (from the circumstances, the weapons, the nature of the enterprise) that the offence was a likely outcome.

7. The Requirements for Constructive Liability

For constructive liability under Section 190, the following must be established:

  • An unlawful assembly of five or more persons.
  • A common object (one of the five in Section 189).
  • The accused was a member of the assembly at the time of the offence.
  • An offence was committed by a member.
  • The offence was committed in prosecution of the common object (first limb) OR was known to be likely (second limb).

All these must be established. The prosecution must prove:

  • The existence of the unlawful assembly and its common object.
  • The accused's membership of the assembly.
  • The commission of the offence in prosecution of (or as a likely consequence of) the common object.

8. Membership of the Unlawful Assembly

Membership of the unlawful assembly is crucial for constructive liability:

  • The accused must have been a member at the time of the offence.
  • Mere presence at the scene is not sufficient - the person must be a member sharing the common object.
  • A bystander or a person present by accident is not a member.

Establishing membership:

  • Participation in the assembly's activities.
  • Sharing the common object.
  • Presence coupled with conduct indicating membership.

The courts are careful to distinguish members from mere bystanders:

  • Mere presence in a crowd does not establish membership.
  • There must be evidence of the person's association with the assembly and its common object.
  • This prevents innocent bystanders from being swept up in constructive liability.

📖 Masalti v. State of Uttar Pradesh, AIR 1965 SC 202

The Supreme Court laid down an important safeguard: where a large number of persons are accused, the court should require that at least two or three witnesses consistently identify each accused before convicting them on the basis of constructive liability. This prevents wrongful convictions of persons merely present in a crowd. Rule: corroboration requirement for identifying members.

9. Distinction from Common Intention (Section 3(5))

Aspect

Common Intention (Section 3(5))

Common Object (Sections 189/190)

Basis

Common Intention (3(5)): shared intention + participation

Common Object (189/190): membership of unlawful assembly + common object

Number

Common Intention: two or more

Common Object: five or more

Mental element

Common Intention: meeting of minds, shared intention

Common Object: shared object (broader)

Participation

Common Intention: some participation required

Common Object: membership sufficient (no physical act needed)

Nature

Common Intention: a rule of evidence/principle of liability

Common Object: a substantive offence framework

The key distinctions:

  • Common intention requires a MEETING OF MINDS and a SHARED INTENTION; common object requires a SHARED OBJECT (broader).
  • Common intention requires TWO OR MORE persons; unlawful assembly requires FIVE OR MORE.
  • Common intention requires some PARTICIPATION; common object liability attaches by MEMBERSHIP alone.
  • Common intention is narrower and more demanding; common object is broader.

Overlap and combination:

  • The two may overlap - a group may have both a common intention and a common object.
  • Charges may be framed under both (Section 3(5) and Section 190).
  • Where the number is fewer than five, only common intention (Section 3(5)) applies.
  • Where membership of an unlawful assembly is established, Section 190 applies even without proof of specific shared intention.

10. Masalti v State of Uttar Pradesh (1964)

📖 Masalti v. State of Uttar Pradesh, AIR 1965 SC 202

A leading case on constructive liability. A large group attacked and killed several members of a rival faction. The Supreme Court considered the framework for convicting members of an unlawful assembly. The Court held: (i) constructive liability under Section 149 IPC applies to every member of the unlawful assembly; (ii) where a large number are accused, courts should require consistent identification by at least two or three witnesses before convicting on constructive liability; (iii) the common object may be inferred from the circumstances. Rule: constructive liability framework with corroboration safeguard.

Masalti established key principles:

  • The application of constructive liability to large-scale mob violence.
  • The corroboration safeguard (two or three consistent witnesses per accused) to prevent wrongful convictions.
  • The inference of common object from circumstances.
  • The balance between holding mob members accountable and protecting the innocent.

The Masalti safeguard is significant: in cases involving large mobs, courts require that each accused be consistently identified by multiple witnesses, preventing the wholesale conviction of persons merely alleged to be present.

11. The Scope and Limits of Constructive Liability

The scope of constructive liability:

  • It extends to all offences committed in prosecution of the common object.
  • It extends to offences known to be likely consequences (second limb).
  • It makes every member liable regardless of their specific act.

The limits:

  • The person must be a member of the unlawful assembly (not a mere bystander).
  • The assembly must have five or more members.
  • The offence must be in prosecution of (or a known likely consequence of) the common object.
  • An offence entirely unconnected with the common object does not attract constructive liability (e.g., if a member commits a private offence unrelated to the assembly's object, other members are not liable).

Important safeguards:

  • The Masalti corroboration requirement for large mobs.
  • The requirement of proof of membership, not mere presence.
  • The requirement of a nexus between the offence and the common object.

📖 Maina Singh v. State of Rajasthan, (1976) 2 SCC 827

The Supreme Court considered a case where the number of proven members of the unlawful assembly fell below five. The Court held that where fewer than five persons are established to be members, the unlawful assembly (and hence constructive liability under Section 149) may not be sustained, though the individuals may still be liable under common intention (Section 34) if that is established. Rule: minimum-five requirement and alternative common-intention liability.

12. Landmark Cases and Consolidated Judgments

📖 Masalti v. State of Uttar Pradesh, AIR 1965 SC 202

Discussed above. Constructive liability framework with corroboration safeguard.

📖 Maina Singh v. State of Rajasthan, (1976) 2 SCC 827

Discussed above. Minimum-five requirement and alternative common-intention liability.

📖 Mizaji v. State of Uttar Pradesh, AIR 1959 SC 572

The Supreme Court elaborated the second limb of Section 149. The Court held that where members of an unlawful assembly carry deadly weapons and know that the common object may require the use of such weapons resulting in death, they are liable for murder under the second limb even if killing was not the primary object. Rule: second-limb liability for known likely consequences.

📖 Lalji v. State of Uttar Pradesh, (1989) 1 SCC 437

The Supreme Court elaborated the framework for common object and constructive liability. The Court held that the common object may be formed at any stage and may be inferred from the conduct of the members and the surrounding circumstances. Rule: common object inferred from circumstances.

📖 Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657

The Supreme Court elaborated the distinction between Section 149 (common object) and Section 34 (common intention). The Court held that the two are distinct, though they may overlap, and clarified the elements of each. Rule: distinction between common object and common intention.

📖 Ramachandran v. State of Kerala, (2011) 9 SCC 257

The Supreme Court held that mere presence in an assembly is not sufficient; there must be evidence that the accused shared the common object. The Court emphasised the need to distinguish members from bystanders. Rule: mere presence insufficient; shared common object required.

📖 Roy Fernandes v. State of Goa, (2012) 3 SCC 221

The Supreme Court considered the framework for constructive liability where the common object was disputed. The Court held that the nature of the common object determines the extent of constructive liability. Rule: nature of common object determines liability.

📖 Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731

The Supreme Court held that for constructive liability, the offence must be connected with the common object; an offence entirely outside the common object does not attract Section 149. Rule: offence must be connected to common object.

📖 Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381

The Supreme Court comprehensively elaborated the framework for Section 149, including the two limbs, the requirement of membership, and the inference of common object. Rule: comprehensive framework for constructive liability.

Consolidated Landmark Judgments

  • Masalti v. State of Uttar Pradesh, AIR 1965 SC 202. Corroboration safeguard.
  • Maina Singh v. State of Rajasthan, (1976) 2 SCC 827. Minimum-five requirement.
  • Mizaji v. State of Uttar Pradesh, AIR 1959 SC 572. Second-limb liability.
  • Lalji v. State of Uttar Pradesh, (1989) 1 SCC 437. Common object inferred.
  • Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657. Distinction from common intention.
  • Ramachandran v. State of Kerala, (2011) 9 SCC 257. Mere presence insufficient.
  • Roy Fernandes v. State of Goa, (2012) 3 SCC 221. Nature of common object.
  • Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731. Offence connected to common object.
  • Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381. Comprehensive framework.
  • Yunis v. State of Madhya Pradesh, (2003) 1 SCC 425. Membership framework.
  • Allauddin Mian v. State of Bihar, (1989) 3 SCC 5. Framework for common object cases.
  • Charan Singh v. State of Uttar Pradesh, (2004) 4 SCC 205. Second-limb application.
  • Dev Karan v. State of Haryana, (2008) SC. Framework for identifying members.
  • State of Uttar Pradesh v. Kishanpal, (2008) 16 SCC 73. Common object framework.
  • Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607. Constructive liability framework.

Frequently Asked Questions

What is an unlawful assembly under Section 189 BNS?

Section 189 BNS (formerly Section 141 IPC) defines an unlawful assembly as an assembly of FIVE OR MORE persons whose common object is one of five: (a) to overawe the government or a public servant by criminal force; (b) to resist the execution of any law or legal process; (c) to commit mischief, criminal trespass, or other offence; (d) by criminal force, to take possession of property, deprive a person of a right, or enforce a right; (e) by criminal force, to compel a person to do what they are not legally bound to do (or omit what they are legally entitled to do). The essential elements: five or more persons, and a common object that is one of the five specified. The five-person requirement is crucial - fewer than five cannot constitute an unlawful assembly. The common object distinguishes an unlawful assembly from a lawful gathering.

What is constructive liability under Section 190 BNS?

Section 190 BNS (formerly Section 149 IPC) establishes constructive liability: '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 crucial effect: EVERY member of the unlawful assembly is guilty of the offence, regardless of whether they personally committed it. Liability attaches by virtue of MEMBERSHIP, not physical participation in the specific act. This is the doctrine of constructive (or vicarious) liability - it allows all members of a violent mob to be held accountable for offences committed in prosecution of the common object, even where only one or a few physically committed the fatal or serious act.

What are the two limbs of Section 190?

Section 190 has two limbs, either of which makes every member liable. FIRST LIMB: an offence committed 'in prosecution of the common object' - the offence is directly in furtherance of the common object (e.g., if the common object is to kill a person and a member kills them, all members are liable for murder). SECOND LIMB: an offence 'such as the members knew to be likely to be committed in prosecution of that object' - the offence was not the direct object but was a likely consequence that the members knew about (e.g., if the common object is to beat a person, but the members were armed with deadly weapons and knew death was a likely consequence, and a member kills the person, all members may be liable for murder). The second limb significantly extends liability to offences that are known likely consequences of prosecuting the common object. In Mizaji v State of Uttar Pradesh (1959), the Court applied the second limb where members carrying deadly weapons knew killing was a likely consequence.

How is common object different from common intention?

The key distinctions between common object (Sections 189/190) and common intention (Section 3(5)/formerly Section 34): (i) NUMBER - common object requires FIVE OR MORE persons; common intention requires TWO OR MORE; (ii) MENTAL ELEMENT - common object requires a shared OBJECT (broader); common intention requires a MEETING OF MINDS and shared INTENTION (narrower, more demanding); (iii) PARTICIPATION - common object liability attaches by MEMBERSHIP of the unlawful assembly (no physical act needed); common intention requires some PARTICIPATION in the criminal act; (iv) NATURE - common object is a substantive framework tied to unlawful assembly; common intention is a principle of joint liability. The two may overlap, and charges may be framed under both. Where fewer than five persons are involved, only common intention applies. In Bhanwar Singh v State of Madhya Pradesh (2008), the Supreme Court elaborated the distinction, holding the two are distinct though they may overlap.

What is the Masalti corroboration safeguard?

In Masalti v State of Uttar Pradesh, AIR 1965 SC 202, the Supreme Court laid down an important safeguard for cases involving large mobs. Where a large number of persons are accused of being members of an unlawful assembly, the court should require that each accused be consistently identified by at least TWO OR THREE witnesses before convicting them on the basis of constructive liability. The rationale: in large-scale mob violence, there is a risk of wrongful conviction of persons merely alleged to be present or falsely implicated. The corroboration requirement (multiple consistent witnesses per accused) prevents the wholesale conviction of persons based on unreliable or interested testimony. This safeguard balances the need to hold mob members accountable (through constructive liability) against the need to protect innocent persons from being swept up in group prosecutions. It is a crucial evidentiary safeguard in constructive liability cases involving large numbers of accused.

Can a mere bystander be held liable under Section 190?

No. Constructive liability under Section 190 requires MEMBERSHIP of the unlawful assembly, not mere presence at the scene. The accused must have been a member of the assembly (sharing its common object) at the time of the offence. A mere bystander, a person present by accident, or a curious onlooker is NOT a member and does not attract constructive liability. Establishing membership requires evidence of the person's association with the assembly and its common object - participation in the assembly's activities, sharing the common object, or presence coupled with conduct indicating membership. In Ramachandran v State of Kerala (2011), the Supreme Court held that mere presence in an assembly is not sufficient; there must be evidence that the accused shared the common object, and the court must distinguish members from bystanders. Combined with the Masalti corroboration safeguard, this ensures that innocent persons present at the scene of mob violence are not wrongly convicted under the constructive liability framework.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

  • Rioting under BNS: Sections 191 to 195 that address the use of force by an unlawful assembly.
  • Common Intention under BNS: Section 3(5) that provides joint liability based on shared intention, distinct from common object.
  • Mob Violence and Lynching under BNS: Section 103(2) where constructive liability applies to mob killings.
  • Public Tranquillity under BNS: Chapter XI (Sections 189-197) of which unlawful assembly is the foundation.

Quick Summary

Sections 189 and 190 of the Bharatiya Nyaya Sanhita, 2023, establish the framework for unlawful assembly and constructive liability. Section 189 (formerly Section 141 IPC) defines an unlawful assembly as an assembly of five or more persons with a common object to: (i) overawe the government or a public servant by criminal force; (ii) resist the execution of law or legal process; (iii) commit mischief, criminal trespass, or other offence; (iv) take or obtain possession of property by criminal force; or (v) compel a person to do what he is not legally bound to do. Section 190 (formerly Section 149 IPC) establishes constructive liability: if an offence is committed by any member of an unlawful assembly in prosecution of the common object, or such as the members knew to be likely to be committed in prosecution of that object, every person who is a member of the assembly at the time of the offence is guilty of that offence. The key elements: (i) membership of an unlawful assembly of five or more; (ii) a common object; (iii) an offence committed in prosecution of the common object or known to be likely. Constructive liability under Section 190 is distinct from common intention under Section 3(5) (which requires a shared intention and participation, not merely membership and common object). Leading cases include Masalti v State of Uttar Pradesh, Maina Singh, and Mizaji v State of Uttar Pradesh.