This note provides a comprehensive overview of Section 3(5) of the Bharatiya Nyaya Sanhita (BNS)

drawing upon the source material from section 3.7 to 3.35, adhering strictly to the requested structure,
content requirements, and case law inclusion.

LONG NOTE ON SECTION 3(5) OF THE BHARATIYA NYAYA SANHITA, 2023

[s 3.7] Object of Section 3(5)

Section 3(5) of the BNS is designed to address situations where it is difficult to distinguish between the
criminal acts of individual members of a party or to precisely prove the specific part each member took,
provided they acted in furtherance of a common intention of all. The rationale behind holding all
members guilty is that the presence of an accomplice or accomplices provides encouragement, support,
protection, and confidence to the person actually engaged in committing the illegal act. Consequently,
every person involved is held responsible due to their participation in the criminal act, even if they did
not personally perform the specific act in question.

[s 3.8] Principle

Section 3(5) does not create a specific offence. Instead, it lays down a rule of evidence that establishes
the principle of group (or joint) liability. If two or more individuals commit a crime in furtherance of a
common intention, they are jointly liable. When an illegal act is committed conjointly, it is considered the
same as if each person had executed the act separately, and thus, each individual is constructively liable
for the act as if they had done it alone.

Case Law (1/10): Reg v Cruse, 1838 C&P 541 This section incorporates the common sense principle of
joint liability established in Reg v Cruse. Facts: A police constable, accompanied by assistants, went to A’s
house intending to arrest him. B, C, D, and others emerged from the house, struck the police constable,
and drove him and his assistants away. Principle: The court applied the doctrine of joint liability, holding
that each member of the group (B, C, and D) was equally responsible for the blow, regardless of who
actually struck it.

[s 3.9] Ingredients of section 3(5)

For Section 3(5) to apply, three mandatory conditions must be satisfied:

1. A criminal act must be done by several persons.

2. There must be a common intention of all to commit that criminal act.

3. There must be participation of all in the commission of the offence in furtherance of that
common intention.

[s 3.10] Criminal act done by several persons

The phrasing “when a criminal act is done by several persons” should be interpreted broadly to include
“when criminal acts are done by several persons”. The specific acts carried out by different
confederates may vary, but all must participate and engage in the criminal enterprise. Participation
includes actions like standing guard to prevent aid to the victim or otherwise facilitating the execution of
the common design. Such a person commits an "act" just as much as those physically committing the
planned crime.

In cases involving physical violence, it is essential for Section 3(5) application that the instigator or aider
be physically present at the actual scene of the crime to facilitate or promote the joint criminal venture.
This presence is considered tantamount to actual participation. The essence of this section is a
simultaneous consensus of the minds of the participants to achieve a specific result, and this consensus
can even develop on the spot.

[s 3.11] Common intention

The existence of a common intention to commit a criminal act in furtherance of a shared objective is the
core of joint liability under Section 3(5).

 Prior Concert: The term "common intention" necessitates prior concert, which means a previous
meeting of minds and participation by all group members in executing that predetermined plan.

 Actuation: Although the acts performed by each participant may differ in character, they must all
be actuated by the same common intention.

 Sudden Development: The plan need not be elaborate or require a long time interval; it can be
chalked out suddenly, but prior concert regarding the design must exist, ensuring each member
is aware of the act to be committed.

Illustration of Common Intention: A, along with B and C, proceeds to D’s house seeking revenge for an
insult. They open fire on D’s family. The shots fired by B and C kill D, while A’s shots miss. Since the act of
firing was done in furtherance of the common intention to take revenge, A is equally liable for murder
as B and C.

Illustration of Lack of Common Intention (Difference in Liability): X, Y, and Z intend only to inflict simple
hurt on A. During the beating, X, who bears previous enmity towards A, stabs him, causing death. Since
the common intention was only to inflict simple hurt, the stabbing is not in furtherance of that shared
intention. Hence, Y and Z would be liable only for causing simple hurt (Section 115, BNS), while X would
be liable for murder (Section 103, BNS).

Case Law (2/10): Mahboob Shah v Emperor Facts: The deceased, Allah Dad, collected reeds despite
warnings from Mohammad Shah. Qasim Shah (Mohammad’s nephew) tried to stop him and was struck
by Allah Dad. Qasim shouted for help, and Wali Shah and Mahboob Shah (appellant) appeared with
loaded guns. When Allah Dad and a friend tried to flee, Wali Shah fired at Allah Dad, killing him.
Mahboob Shah fired at the friend, causing slight injuries. The Lahore High Court convicted Mahboob
Shah for murder under Section 302 read with Section 34, IPC. Principle: The Privy Council overturned the
murder conviction for Mahboob Shah. It was observed that to invoke Section 34 (erstwhile IPC), the
criminal act must be done by one accused in furtherance of the common intention of all. Common
intention implies a pre-arranged plan, and there was no evidence that Mahboob Shah was acting in
concert with Wali Shah pursuant to such a plan when they rushed to the scene.

Case Law (3/10): Kripal Singh v State of Uttar Pradesh Facts: Due to a land dispute, three accused (A, B,
and C) rushed at laborers going to X’s field. X intervened and was attacked. B and C attacked his legs,
causing him to fall. A then stabbed the fallen X in the head with a spear, resulting in fatal injury. Principle:
The Supreme Court held that while A was guilty of murder (S. 302, IPC) due to the deliberate, fatal blow,
the common intention that developed on the spot for B and C was only to beat X with weapons likely to
cause grievous injuries, not to kill. Therefore, B and C were guilty under Section 326 read with Section 34
(grievous injuries), but not murder.

Important Principle: Common intention can be inferred from the conduct of the accused and the
circumstances of the case. However, unless there is cogent evidence and clear proof of such common
intention, vicarious liability under Section 34 (IPC) cannot be sustained. As stated by Lord Sumner in
Barendra Kumar Ghosh v King Emperor, in crimes, “they also serve who only stand and wait”.

[s 3.12] Participation in the Criminal Act – Harbans Kaur

Participation in the criminal act of the group is a condition precedent for establishing joint liability under
Section 3(5). There must be some overt act demonstrating a common intention to commit the offense.

Case Law (4/10): Zabar Singh v State of Uttar Pradesh Principle: For the application of Section 34 of the
erstwhile Indian Penal Code, 1860, it is essential for the court to find that the accused shared a common
intention and participated in the commission of the crime. A conviction based on Section 34 is
unjustified without clear and acceptable evidence of previous concert and participation in a joint
criminal act.

The law generally requires the accused to be present on the spot during the crime and take part in its
commission. However, the accused need not be physically present at the exact spot; remaining in the
vicinity, ready to help or warn co-criminals, may suffice. In crimes of diverse nature, such as forgery,
deceit, or conspiracy, physical presence at the actual location of the occurrence may not be required.

Important Point: Mere presence or rushing to the spot, without other evidence regarding conduct, is
insufficient to establish common intention to participate in a crime. Presence only makes a person a
participant if it is established that the presence was with the intention of lending weight to the
commission of the joint crime.

[s 3.13] Mere Presence of accused not indicative of common intention: Sahrunnisa

Case Law (5/10): State of Uttar Pradesh v Sahrunnisa Facts: This case involved the gruesome ritual
sacrifice of two young boys driven by superstitious belief, committed by A1 (father) and A2
(daughter/paternal aunt). A3 (Sahrunnisa, the mother/wife) and A4 (husband of A2) were present as
mute spectators. The Sessions Court convicted A3 and A4 using Section 302 read with Section 34, IPC.
The High Court acquitted them, and the State appealed. Principle: The Apex Court dismissed the appeal,
holding that mere presence by itself cannot be criminal in nature such that common intention is
attributed. A3 and A4 committed no overt act. A3, as a poor Mohammedan lady whose family members
were overpowered by superstition, likely saw the deaths out of fear or superstitious psyche, and her
failure to oppose the acts does not prove common intention.

[s 3.14] Test for conviction under section 3(5)

Section 3(5) (Section 34, IPC) can still be invoked even if some co-accused are acquitted. The conviction is
sustainable if it can be proven, either through direct evidence or inference, that the remaining accused
committed the offence in pursuance of a common intention of the group.
Case Law (6/10): Wasim Khan v State of Uttar Pradesh Facts: Three accused were convicted under S.
302 read with S. 34, IPC. The High Court acquitted two based on reasonable doubt regarding their
identity. It confirmed the conviction of the remaining single accused. Principle: The court confirmed that
a single accused could be convicted by applying Section 34 of the erstwhile IPC, provided it was
established beyond doubt that the accused shared the common intention to commit the offense with
some person other than the one who was acquitted (i.e., with two other unidentified persons).

[s 3.15] Involvement of co-accused attracts section 34, IPC (Section 3(5) of the Bharatiya Nyaya
Sanhita, 2023)

BNS/IPC Comparison: Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, is the equivalent of Section 34
of the erstwhile IPC.

Case Law (7/10): Uttar Pradesh v Smt Aqeela Facts: Smt. Aqeela, who bore enmity towards the
deceased and was fighting a legal case against him, along with her son and his associate, attacked the
deceased. They first threw acid (which hit others), and Aqeela then assisted her sons in assaulting the
deceased by knife by catching hold of him. Principle: The circumstances fully proved that all three
accused shared the common intention for committing the murder of the deceased.

[s 3.16] Termination of pregnancy by incompetent doctor: Surendra Chauhan

Case Law (8/10): Surendra Chauhan v State of Madhya Pradesh Facts: Doctor “S” was not qualified to
terminate A’s pregnancy, and his clinic lacked government approval and basic abortion facilities. “C” took
“A” to S’s clinic specifically for pregnancy termination. A’s death resulted from the procedure due to the
doctor’s incompetency and lack of facilities. Principle: A’s death was caused by S in furtherance of the
common intention of both S and C.

[s 3.17] Distinction between “same” or “similar” intention and “common intention”

This distinction, though often thin, is real and substantial. To establish common intention, the specific
intention of each person must be known to all the others and shared by them. This mutuality of
knowledge and shared purpose is not required in the case of same or similar intention.

Case Law (9/10): Gaya Prasad Ramlal v State of Maharashtra Facts: R and M were assaulted. The attack
on R was sudden and accentuated by the appellant shouting “maro” “maro” (beat, beat). One accused
was armed with a knife. The shout proved that the appellant shared the intention of the other two
accused to commit the murder of R. Principle: The appellant’s explicit shout established beyond doubt
that he shared the common intention to commit the murder.

[s 3.18] Absence of involvement of co-accused will not attract section 34, IPC (Section 3(5) of the
Bharatiya Nyaya Sanhita, 2023)

BNS/IPC Comparison: Section 3(5) of BNS aligns with Section 34, IPC.

Case Law (10/10): Prem Sagar v Dharambir Facts: Co-accused “K” was alleged to have followed the
deceased and prevented his escape. However, the eye-witness accepted in cross-examination that it was
accused “D” who caused the deceased’s fall. There was no other evidence against K. Principle: The Apex
Court allowed the appeal, noting that the prosecution had not linked K to the occurrence in a manner
that attracted Section 34 of the erstwhile IPC. Mere instigation alone, without active involvement in the
criminal act, will not attract Section 34.

[s 3.19] Charge under section 34 of the erstwhile IPC presupposes sharing of common intention:
Krishnan (2003)

Section 34 (erstwhile IPC) was designed to address cases where it is difficult to determine the specific
acts of individual members or the exact part played by each. The principle of joint liability means that if
separate acts, whether similar or diverse, are done by several persons in furtherance of a common
intention, each person is liable for the result as if he had done the entire act himself. This is because
“that act” and “the act” in the latter part of the section include the whole section covered by a ‘criminal
act’ in the first part.

 Krishnan v State of Karnataka (2003): Four persons attacked the deceased over an illicit
relationship. One inflicted a fatal blow to the head; the others caused cut injuries to the neck
and shoulder (non-fatal). The court rejected the argument that those causing non-fatal injuries
should be exonerated, holding that although the acts differed, they were actuated by one and
the same common intention and thus attracted Section 302 read with Section 34.

[s 3.20] Non-framing of charge would not vitiate the conviction if no prejudice is caused to the
accused: Lallan Rai (2003)

Procedural law serves justice. In Lallan Rai v State of Bihar, the Apex Court held that the non-framing of
a charge under Section 34 of the erstwhile IPC does not vitiate the conviction (e.g., under S. 302/34 IPC)
if no prejudice is caused to the accused. The essence of Section 34 is the simultaneous consensus of
mind of persons participating in the criminal action. Where evidence showed concerted action—accused
encircling the victim and inflicting injuries with deadly weapons—the element of Section 34 was brought
in, justifying conviction even without the explicit charge.

[s 3.21] Criminal act in furtherance of common intention does not mean “common intention of all” or
“intention common to all”: Israr

The criminal liability under Section 34 (erstwhile IPC) rests on the existence of a “common intention in
furtherance of a criminal act”, rather than strictly requiring “common intention of all” or “intention
common to all”. If convicted under S. 302/34, the accused is legally liable for the resulting death as if he
alone committed the act. Crucially, Section 34 is applicable even if no injury has been caused by the
particular accused. It is not necessary to prove some overt act on the part of the accused to apply
Section 34.

[s 3.22] Credibility of a witness

The trustworthy and reliable evidence of eyewitnesses cannot be dismissed simply because they are
friends or relatives of the deceased. Relationship is not a factor that affects the credibility of a witness,
as relatives are often unlikely to falsely implicate an innocent person.

[s 3.23] Age No bar for giving testimony

A child witness of a tender age may be allowed to testify if they possess the intellectual capacity to
understand questions and provide rational answers. The statement of a minor witness (e.g., a 12-year-
old sole witness to murder) cannot be rejected on the ground of her age if her evidence is concise,
precise, specific, and vivid.

 Falsus in uno Falsus in omnibus: This legal maxim (false in one thing, false in all) is not
applicable in India; it functions merely as a rule of caution, not a mandatory rule of evidence.

 Ramdeo Kahar v State of Bihar: The court upheld murder convictions under S. 302/34, IPC, even
though the accused killed the wrong person (Mauji Yadav instead of the intended target Patali).
The court held that this mistaken identity was insufficient to conclude they lacked the intent to
commit murder, especially since common intention can develop suddenly, and they fired shots
together to prevent a chase.

[s 3.24] Distinction between common intention [section 3(5)) and common object (section 190) of
BNS]

Both sections 3(5) (Common Intention) and 190 (Common Object) deal with constructive criminal
liability imposed on a person for an act done by their associates. However, their scope and extent are
distinct.

[s 3.25] Section 3(5) is Explanatory while section 190 creates a specific offence

BNS/IPC Comparison: Section 3(5) is an explanatory clause in Chapter I of the BNS and creates no
specific offence. Section 190, conversely, is found in the chapter dealing with Offences Against Public
Tranquillity and creates a specific offence related to membership in an unlawful assembly.

 Intention vs. Object: In Section 3(5), the principal element is the common intention of several
persons to commit a crime. In Section 190, the requirement is only a common object. Object is a
different state of mind; while the object of members of an unlawful assembly may be common,
their intentions may differ.

 Pre-concert: Common intention presupposes prior consent and meeting of minds (a

prearranged plan). A common object may be formed without such prior consent.

 Chittarmal v State of Rajasthan: The Apex Court emphasized that common intention requires
action in concert and postulates a prior meeting of the minds, while common object does not
necessitate proof of pre-concert. In this case, although charged under S. 302/149, IPC, the court
found only common intention and convicted the appellants under S. 302 read with S. 34,
acquitting the rest.

[s 3.26] Section 34 of erstwhile IPC applicable even if no injury has been caused by particular accused
himself

This principle affirms that an individual can be held vicariously liable even if their specific act did not
cause the injury or death, provided common intention is established.

 Hardeep Singh v State of Haryana: Three appellants faced trial for murder. Two (Hardeep Singh
and Harjinder Singh) struck fatal blows to the head after the deceased fell. Jaswinder Singh
assaulted only the arm (a non-vital part). While the appeals of the first two were dismissed (S.
302), Jaswinder Singh’s conviction was altered from murder (S. 302) to culpable homicide not
amounting to murder (S. 304, Part II, IPC) because he did not attack a vital part.
[s 3.27] Distinction between “participation” and “membership”

The essential feature of Section 3(5) is participation in action; the accused must take some part in the
actual commission of the offence. In contrast, Section 190 (common object/unlawful assembly) replaces
this element with the requirement of membership in the unlawful assembly at the time the offense is
committed by another member.

[s 3.28] Difference in number of participants

Section 3(5) can be invoked even if only two persons are involved in a crime. Section 190 (unlawful
assembly) requires a minimum of five or more members.

[s 3.29] Difference in operation of section 3(5) and section 190

Section 3(5) requires some overt act, however small, for its provisions to operate. Under Section 149
(IPC equivalent of 190 BNS), mere membership in the assembly is sufficient to fix criminal liability.

 Subed Ali v The State of Assam: Appellant 1 stopped the deceased, who was then assaulted by
Appellant 3. Appellant 1, along with others, chased and brutally assaulted the deceased when he
fled. The court dismissed the appeal, holding that no further evidence was required regarding
Appellant 1's common intention, even if no initial act of assault was attributed to him.

[s 3.30] Overt act(s) must be done in furtherance of common intention or common object of all—
Appeal allowed—Conviction set aside—Supreme Court—1989

While not every vicariously liable person must indulge in an overt act, the acts of those who do must be
in furtherance of the common intention.

 Rambilas Singh v State of Bihar: The conviction of co-accused for murder was set aside because
there was no evidence they knew the principal accused carried a knife when they surrounded
the deceased. If their common intention was murder, they would not have come unarmed or
rested content with a single stab wound.

 Krishnamurthy @ Gunodu v State of Karnataka:

o Facts: A group attacked Venkatarama. A1 (Krishnamurthy) violently assaulted the victim

after he fell down, stamping on his neck and chest, fracturing ribs and causing fatal
injuries. A2 and A3 only participated in pulling the victim down to the ground.

o Principle: The court partially allowed the appeal for A2 and A3. They were convicted only
for simple hurt (S. 323 read with S. 34, IPC), not murder, because they did not participate
in the brutal, fatal assault inflicted by A1 after the fall. It could not be held that A2 and
A3 had premeditated or shared the common intention regarding the highly violent and
fatal manner in which A1 subsequently acted.

[s 3.31] Act done with a criminal knowledge

Section 3(6) of BNS is complementary to Section 3(5) and deals with joint liability based on criminal
intention or knowledge. If an act is criminal due to knowledge or intention, each person who joins with
the same knowledge or intention is responsible. If intentions/knowledge differ, liability is determined
individually.
  S. 3(5) is based on joint intention and applies often to offences where intention is presumed
from the act.

 S. 3(6) is based on like intention and concerns cases where intention or knowledge must be
expressly proved.

Illustration of Criminal Knowledge (S. 3(6)): A, B, and C attempt to take forcible possession of land. One
commits murder. If A intended murder, B intended to plunder the crop, and C merely joined to watch the
fun, their guilt differs based on their individual intention or knowledge. A cannot be charged for robbery,
and B and C cannot be charged for murder, as they lacked a common intention regarding the ultimate
fatal act.

[s 3.32] Effect caused partly by act and partly by omission

When an offence results from a combination of an act and an omission, the legal consequence is the
same as if the offence was committed by an act or an omission alone.

Illustration: A intentionally causes Z’s death partly by illegally omitting to provide food and partly by
beating him. A has committed murder, as the combined effect of the act and the omission resulted in Z's
death.

[s 3.33] Co-operation in doing several acts constituting offence – Principle

Section 3(8) BNS applies when an offence is committed through several acts. Whoever intentionally
cooperates in the commission of that offense by performing any single act in the series is deemed to
commit that offence. In cases like conspiracy, the measure of criminal liability is the cumulative effect of
the acts, not just the individual share of the conspirator.

[s 3.34] Distinction between section 3(5) and section 3(8)

Section 3(5) is triggered by a criminal act done in furtherance of a common intention (unity of criminal
behavior), resulting in each participant being liable as if they did the whole act alone. Section 3(8)
addresses cases where several persons intentionally co-operate in an offence comprised of several acts.
Lord Sumner noted that intentional co-operation may not be the same as common intention. Intentional
co-operation includes action that contributes to the offense and is done with consciousness, even
without showing the explicit common intention to commit the resulting offense.

[s 3.35] Persons, concerned in criminal Act may be guilty of different offences depending on Role
Played by each of them – Principle

Section 3(9) BNS is the converse of Section 3(5). While S. 3(5) fixes joint liability based on common
intention, S. 3(9) addresses situations where persons commit a criminal act but not in furtherance of a
common intention, leading them to be guilty of different offenses based on their respective roles and
intentions.

Illustration (Different Intentions): Two out of three accused attack a victim with weapons,
demonstrating an intention to kill (guilty of murder). The third accused, who did not use his weapon,
joined the others with the knowledge that the assault was likely to result in murder, but lacked the
intention to kill. Applying principles related to Section 38 (erstwhile IPC), the third accused would be held
guilty of the lesser offense of culpable homicide (Section 304, Pt II).
Illustration (Provocation/Intent): A attacks Z under grave and sudden provocation (culpable homicide).
B, who harbors ill-will and intends to kill Z (and was not provoked), assists A in killing Z. A is guilty of
culpable homicide (S. 304, IPC) due to provocation, while B is guilty of murder (S. 302, IPC) due to his
specific intention to kill.

Analogy for Joint Liability (Section 3(5)): The principle of joint liability under Section 3(5) is like a team
effort in a relay race. Even if only one runner carries the baton across the finish line (the principal act), all
runners on the team who participated in the concerted effort (common intention and participation)
share equally in the victory (liability), regardless of who ran the final, decisive leg.

Section 190

This note details Section 190 of the Bharatiya Nyaya Sanhita (BNS), 2023, concerning the joint liability of
members of an unlawful assembly, drawing strictly from the provided source material up to section
190.6.

LONG NOTE ON SECTION 190 OF THE BHARATIYA NYAYA SANHITA, 2023

[s 190] Every member of unlawful assembly guilty of offence committed in prosecution of common
object.—

Section 190 of the Bharatiya Nyaya Sanhita (BNS) states that 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.

BNS/IPC Comparison: Section 190 of the Bharatiya Nyaya Sanhita, 2023, is the equivalent of Section 149
of the erstwhile Indian Penal Code, 1860. There is no change in the language of the provision; it has
been retained as it is.

[s 190.1] Principle of Joint liability of members of an unlawful assembly

Section 190 incorporates the fundamental principle of vicarious liability. This section holds a person
responsible for an offence that they might not have personally committed, solely by virtue of their being
a member of an unlawful assembly.

The principle dictates that every member of an unlawful assembly sharing a common object is
responsible for criminal acts committed by any other member of that assembly. An accused whose case
falls within the terms of this section cannot claim that they did not commit the offence with their own
hand. Everyone involved must be considered to have intended the probable and natural results of the
combined acts in which they participated.

Case Law (1/10): Umesh Singh v State of Bihar (Principle) The Supreme Court stated in Umesh Singh
that an accused whose case falls within the terms of Section 149, IPC (S. 190, BNS) cannot rely on the
defence that he did not personally commit the offence, provided the act was committed in prosecution
of the common object or was known to be likely to be committed.

[s 190.2] Criminal liability for an act will be determined according to the object of the member of the
assembly

The application of criminal liability under Section 190 is intrinsically linked to the common object of the
assembly. Liability depends on whether the resultant offense was part of the original common object or
a known likelihood thereof.

Case Law (2/10): Bhimrao v State of Maharashtra Facts: An unlawful assembly was formed with the
common object of causing an assault on the deceased, Prabhakar. Some members entered Prabhakar’s
house and assaulted him, causing fatal grievous injuries. Other appellants stood outside the house and
did not participate in the physical assault. The High Court convicted those who entered under Section
304, Part II, IPC, and convicted those outside under Section 326 read with Section 149, IPC (grievous
injuries). Principle: The Supreme Court ruled that since the original object was only to cause assault, and
the subsequent fatal violence was an act that was not the original common object and developed only
in regard to those who entered the house, the fatal act could not be attributed to the appellants
standing outside. They were only held guilty of the lesser charge of causing assault (Section 352 read
with Section 149, IPC).

[s 190.3] Scope and applicability of section 190 (Section 149 of the erstwhile Indian Penal Code, 1860)

Section 190 applies when two crucial factors are present: the assembly must be an unlawful assembly
(requiring five or more persons and an illegal common object under S. 189 BNS), and the offense
committed must be either in the direct prosecution of that common object or such that the members
knew it was likely to occur.

Case Law (3/10): Umesh Singh v State of Bihar Facts: Approximately 20 accused, armed with guns and
lathis, assembled and went to the khalihan (a place where crops are thrashed) of Bhola Singh to forcibly
take away paddy. They announced that any resistance would be met with serious consequences, possibly
resulting in death. During the confrontation, one accused snatched a 1.5-year-old child from a lady and
threw the child to the ground, causing death. Principle: The Supreme Court upheld the conviction of the
appellants under Section 302 read with Section 149, IPC. It was held to be futile to contend that the
conviction was bad, as the appellants were members of an unlawful assembly armed with deadly
weapons, and since they had declared they were willing to take life if resisted, the murder was
considered a probable result of their common object (to steal paddy through force).

Case Law (4/10): Roy Fernandes v State of Goa Facts: The incident stemmed from a sudden dispute over
the proposed fencing of property. The appellant and four companions rushed to the spot to prevent the
other party from fencing the property, resulting in murder. The three co-accused were acquitted by
giving them the benefit of doubt. Principle: The Court held that the acquittal of three accused did not
negate the existence of an unlawful assembly. However, the Court noted that the accused had not come
to the place of occurrence with the common object of killing the deceased.

[s 190.4] Ingredients
To hold a member of an unlawful assembly liable under Section 190, two specific conditions must be
fulfilled:

1. The offence must have been committed by one or the other member of the assembly in
prosecution of the common object of the unlawful assembly.

2. The offence must be such as the members of the unlawful assembly knew it to be likely to be
committed in prosecution of the common object.

The first clause involves direct intention; the second clause covers offenses that are probable
consequences, even if not explicitly planned. Thus, a person is constructively made liable for an offence
they did not actually commit.

Case Law (5/10): Shambhu Nath Singh v State of Bihar Principle: This case sets out the definitive test for
vicarious liability under the parallel IPC section. If an offence is committed in prosecution of the common
object, all members are vicariously liable. Furthermore, if an offence is committed that the members
knew to be likely to be committed, every member who had that knowledge is guilty. The Court observed
that members may have community of object up to a point, after which they may differ, meaning the
effect of Section 190 (S. 149, IPC) may be different on different members of the same assembly,
depending on their individual knowledge and scope of the common object.

[s 190.5] Each member of an unlawful assembly is vicariously liable for the criminal act committed by
others

The principle of vicarious liability ensures that once an unlawful assembly has been established and
continues to share the common object, each member is liable for the criminal act committed by any
individual member in prosecution of that object. It is not required to record a specific finding as to which
particular accused caused the fatal injury.

Case Law (6/10): State of Rajasthan v Nathu Facts: Five accused, driven by animosity, carried formidable
arms (weapons) and entered the complainant’s house by breaking a wall to eliminate him. Finding him
absent, they murdered his children. The High Court had acquitted four accused, distinguishing their role
from the one who struck the fatal blow. Principle: The Apex Court rejected the High Court’s distinction.
The common object to kill (the complainant or family members in his absence) was inferable from the
formidable weapons and the aggressive behavior of breaking the wall to gain entry. Once proved that
death was caused in prosecution of the common object, all members were held vicariously liable for
murder.

Case Law (7/10): Kamta Yadav v State of Bihar Facts: Five accused, armed with a lathi and bhala
(spears), were ploughing disputed land when one exhorted others to kill the informant. When the
informant's relatives (including the deceased, Ramayan Yadav) intervened, Hiralal Yadav inflicted a fatal
bhala injury on the deceased's chest and abdomen. Other accused assaulted the relatives with a bhala
and lathi. Principle: The Supreme Court dismissed the appeal and upheld the conviction under Section
302 read with Section 149, IPC. The presence of six eye-witnesses, including three injured witnesses,
substantiated the involvement and proved the concerted action and shared common intention to
commit the assault and murder.
Case Law (8/10): State of Rajasthan v Hozikhan Facts: Ten accused were found present and
participatory in an assault on the deceased, Suresh Babu. The evidence did not specify which accused
caused which particular injury leading to death. Principle: The Apex Court confirmed that when all 10
accused were present and participated in the assault, the common intention of all accused is believed
regardless of weapons of offence. However, where the specific evidence failed to link the accused
directly to the fatal injuries, the court restored convictions for grievous hurt (S. 326/149, IPC) but upheld
the acquittal on the murder charge (S. 302/307, IPC).

Case Law (9/10): Munishamappa v State of Karnataka Facts: Driven by political rivalry, accused (A1
along with others) assembled armed with lethal weapons to search for BJP workers passing through a
junction. The victim, Suresh Babu, a BJP supporter, was pulled from a bus and fatally assaulted by A1
(who inflicted 26 injuries), while A2 and A3 beat him indiscriminately. The High Court had previously
questioned if the object was specifically murder. Principle: The Supreme Court held that the common
object was evident from the aggressive manner in which they returned armed and the injuries inflicted
in concert. The common object was established as the attack on any BJP supporter passing through the
junction. The Court upheld the conviction under Section 304 Part I read with Section 149, IPC.

[s 190.6] Mere Presence in an Unlawful Assembly will not make a Person Liable Unless there is a
Common Object

A key limitation on Section 190 is that mere presence in an unlawful assembly is insufficient to establish
liability unless there is a common object and the person was actuated by that common object.

Furthermore, for liability under the second part of Section 190 (offense "known to be likely"), the
element of knowledge is crucial: the word “knew” implies positive knowledge, going beyond a mere
possibility ("might have been known").

Case Law (10/10): Daya Kishan v State of Haryana Facts: The appellant (Daya Kishan) was a member of
an unlawful assembly formed with the common object only to teach Sanjay a lesson and injure him.
Another member, Pohla @ Sat Narayan, immediately shot and killed the deceased, Rajesh, upon
reaching the incident site. The appellant was convicted for murder using S. 149, IPC. Principle: The Apex
Court set aside the murder conviction against Daya Kishan. The Court found that the act of firing the fatal
shot was Pohla’s individual act. Since the common object was limited to injuring Sanjay, the prosecution
failed to prove that the appellant knew Rajesh’s death was likely to be caused by any member, especially
as there was no prior enmity between the appellant and Rajesh. Mere membership, even where
another member possessed a gun, was deemed insufficient to attribute knowledge or common object
to commit murder of Rajesh.

Illustrative Summary of Section 190:

Section 190, BNS acts like a collective safety net for the law. Imagine five or more persons intending to
trespass onto a field to steal crops (common object under S. 189). While trespassing, one member
unexpectedly sets fire to the farmer’s house nearby to ensure they are not caught.

 Scenario 1 (Direct Prosecution): If the original common object was to commit both theft and
arson, all five members are guilty of arson (Section 190, Clause 1).
  Scenario 2 (Likelihood/Knowledge): If the original object was only theft, but all members were
armed with flammable material and knew that using violence, including fire, was a likely
consequence if they met resistance, then all members are still guilty of arson (Section 190,
Clause 2), regardless of who lit the match.

This section shifts the focus from the individual offender to the group’s collective criminal enterprise,
ensuring that every person who lent moral support or aid to the common object shares the resulting
criminal liability.

This long note draws exclusively on the provided sources to detail Sections 45 through 45.5.3 of the
Bharatiya Nyaya Sanhita (BNS), 2023, regarding Abetment, incorporating all relevant illustrations and
BNS/IPC comparisons.

[s 45] Abetment of a thing

The offenses of abetment, criminal conspiracy, and attempt are grouped together under Chapter IV
(Sections 45 to 62) in the Bharatiya Nyaya Sanhita (BNS), 2023. This is a change from the Indian Penal
Code, 1860 (IPC), where these offenses were covered under different chapters.

Section 45 defines who abets the doing of a thing. A person abets the doing of a thing, who:

 (a) Instigates any person to do that thing; or

 (b) Engages with one or more other person or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the
doing of that thing; or

 (c) Intentionally aids, by any act or illegal omission, the doing of that thing.

Comparison between BNS and IPC: Section 45 of the BNS, 2023, corresponds to Section 107 of the
erstwhile IPC, 1860, and has been revamped.

 The clauses defining abetment are numbered as (a), (b) & (c) in the BNS, 2023, rather than
‘Firstly’, ‘Secondly’ & ‘Thirdly’ as found in the IPC, 1860.

 In the illustration provided under this section, the words ‘court of justice’ have been substituted
with ‘court’ in the BNS, 2023.

Explanation 1 (Instigation): A person is said to instigate the doing of a thing if they voluntarily cause or
procure, or attempt to cause or procure, a thing to be done by wilful misrepresentation, or by wilful
concealment of a material fact which they are bound to disclose.

 Illustration: A, a public officer, is authorized by a warrant from a Court to apprehend Z. B,

knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2 (Aid): Whoever, either prior to or at the time of the commission of an act, does anything
in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to
aid the doing of that act.
[s 45.1] Principle and scope of abetment

A crime may be committed by a single person or by two or more persons. When several persons are
associated, the degree of culpability depends on the mode of participation. The law recognizes
gradations of guilt based on how a person might be associated in the act of a crime.

Liability for abetment under this chapter is based on the principle that many crimes would be impossible
without the support and encouragement received from others who prepare the ground and facilitate
the commission. Consequently, the Code penalizes all those who have lent their support and assistance
in one form or the other to the commission of a crime.

[s 45.2] Hindu law

According to Hindu textual criminal law, when a serious crime (like murder) is committed, persons other
than the actual murderer might also be liable as accessories (helpers). These accessories could be liable
for half the punishment prescribed for the offense.

Examples of such accessories include:

1. The arambhakrta: He who commences or sets the ball rolling.

2. Doshbhaka: Participator.

3. Asraya: He who harbours or gives shelter to the assassin.

4. Sahaya: He who aids.

5. Marganudesaka: He who points the way.

6. Anumodaka: He, who supports.

In contrast, the person who hires the assassin and pays them for the crime is to be awarded four times
the punishment prescribed for the offense.

[s 45.3] English law

English law classifies criminals according to the role played by each participant.

[s 45.3.1] Principal in the first degree

This is the person who actually commits the crime. This includes the person who gets the crime
accomplished through an innocent agent.

[s 45.3.2] Principal in the second degree

This is the person who, being present at the commission of the crime, aids and assists in its commission.
The distinction between the first and second categories of principals is generally of little practical
consequence since both are liable to be awarded equal punishment.

[s 45.3.3] Accessory before the fact

This person is absent at the time the crime is committed, but counsels, procures or commands another
to commit the crime. An accessory before the fact may be tried as though they themselves had
committed the crime.

[s 45.3.4] Accessory after the fact

This person, knowing the fact that a particular person has committed a crime, harbours and assists him
in escaping punishment.

[s 45.4] Indian Law

The Bharatiya Nyaya Sanhita makes no distinction between principals in either the first or second
degree. All those who are present at the scene and participate are liable either as the actual offender
under specific sections of the Sanhita, or under the provisions governing joint and constructive liability
(Sections 3(5) and 190, BNS).

The Nyaya Sanhita makes a broad distinction between a principal and an abettor. The abettor
corresponds roughly to an accessory before the fact. When the role played by an individual is that of an
accessory after the fact, the BNS, 2023, provides for a substantive offence in such cases.

[s 45.5] Essentials and meaning of abetment

Abetment means the instigation of a person to do (or not to do) an act in a certain way, or aid given by
some person to another in doing an act which is an offence.

To constitute the offense of abetment, three things are essential:

1. There must be an abettor.

2. He must abet.

3. The act abetted must be an offence.

According to Section 45, BNS, a person abets the doing of a thing when he: (i) Instigates a person to
commit an offence; or (ii) Engages with one or more persons in a conspiracy to commit an offence; or
(iii) Intentionally aids a person by any act or illegal omission to commit an offence or illegally omits the
doing of an act which would prevent the commission of the offence.

[s 45.5.1] Abetment by instigation

A person instigates another when he incites, urges, encourages, goads, solicits or provokes him to do an
act prohibited by law. Advice only amounts to instigation when it is intended to actively suggest or
stimulate the commission of an offence. Mere acquiescence does not amount to instigation.

 Example (Mere Acquiescence): If A says to B, “I am going to kill C,” and B replies, “Do as you
wish and take the consequences,” whereupon A kills C, B cannot be said to have instigated A.

 Instigation may also take place by wilful misrepresentation or wilful concealment of a material
fact that one is bound to disclose (Explanation 1 to section 45).

Case Law & Facts:

  Queen v Mohit, (1871) 3 NWP 316:

o Facts: Persons followed a woman who was preparing herself to become a sati on the
funeral pyre of her husband and chanted, "Rama, Rama".

o Held: They were held guilty of abetment by instigation to lead the woman to commit
suicide, as their approval of the woman’s act, demonstrated by their participation in the
procession, gave encouragement to the lady to commit suicide.

 Illustration (Instigation by Misrepresentation): A, a public officer, is authorised by a warrant

from a Magistrate’s court to arrest Z. B knowing that fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by
instigation the arrest of C. B knew that C was not Z and deliberately misrepresented the fact to
the public officer.

[s 45.5.2] Abetment by conspiracy

Abetment by conspiracy occurs if a person enters into an agreement with one or more persons to do an
illegal act, or a legal act by illegal means, and some act is done in pursuance thereof.

 Illustration: A, a servant, enters into an agreement with thieves to keep the doors of his master’s
house open in the night so that they might commit theft. A, according to the agreed plan keeps
the doors open and the thieves take away the master’s property. A is guilty of abetment by
conspiracy for the offence of theft. But should the thieves not come, A will not be liable under
this section.

[s 45.5.3] Abetment by aid

Abetment by aid requires that a person intentionally renders assistance or gives aid by doing an act or
omitting to do an act. Active conduct on the part of the abettor is required; mere intention to render
assistance is not sufficient. The act constituting the offense must be accomplished in pursuance of this
active conduct.

Aid may be given through an act of commission or an act of illegal omission.

 Example (Aid by Commission): A incites B to kill C by uttering the words maro maro (beat beat)
and D puts a knife in A’s hand. Here D is guilty of abetting by aiding to commit the offense.

 Example (Aid by Omission): If a police officer knowing that certain persons were likely to be
tortured for the purposes of extorting confession, keeps himself away from the place, he is liable
for abetment to the offence of extortion by an act of omission.

 Example (Aid prior to the act): A priest who officiates at a bigamous marriage was held to have
intentionally aided in the commission of a marriage prohibited by law.

Explanation 2 states that aid occurs when a person, by an act done either prior to, or at the time of the
commission of an act, intends to facilitate, and does in fact facilitate, the commission thereof.

Important Point: It is generally not necessary for the offense of abetment that the act abetted must be
committed, except in the specific case of a person abetting an offence by intentionally aiding another to
commit that offence. An act done after the offense is completed does not amount to abetment.
This note details the provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, concerning the definition
and scope of the Abettor (Section 46), extraterritorial abetment originating in India (Section 47), and
extraterritorial abetment targeting India (Section 48).

Note on Case Law Constraints: Per the instruction to use only case laws cited within the main text
narrative (and nothing from footnotes) between Section 46 and the comments on Section 48, no relevant
case laws were found in the provided source excerpts for this specific range. Consequently, the
requirement to add five case laws and a case law per subheading cannot be met.

[s 46] Abettor

Section 46 of the Bharatiya Nyaya Sanhita, 2023, defines an abettor.

A person is an abettor who abets:

 The commission of an offence; or

 The commission of an act which would be an offence, if committed by a person capable by law
of committing an offence with the same intention or knowledge as that of the abettor.

Comparison between BNS and IPC: Section 46 of the BNS, 2023, corresponds to Section 108 of the
erstwhile Indian Penal Code, 1860. The provision has been retained as it is, with no change.

Explanation 1.— Abetment of illegal omission.—The abetment of the illegal omission of an act may
amount to an offence although the abettor may not himself be bound to do that act.

 Illustration: A, a student instigates B, a police officer, to illegally abstain from duty to prevent the
commission of a cognizable offence which was being committed in his presence. A has abetted
the commission of an act of which the police officer is guilty, though the student who instigated
him, being a private person, might not have been guilty of that offence, as it was not his duty to
interfere.

Explanation 2.— Effect of abetment is immaterial.—To constitute the offence of abetment, it is not
necessary that the act abetted should be committed, or that the effect requisite to constitute the
offence should be caused.

 Illustration (a): A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit

murder.

 Illustration (b): A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers

from the wound. A is guilty of instigating B to commit murder.

Explanation 3.— Person abetted need not be capable of committing an offence.—It is not necessary that
the person abetted should be capable by law of committing an offence, or that he should have the same
guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

 Illustration (a): A, with a guilty intention, abets a child or a lunatic to commit an act which would
be an offence, if committed by a person capable by law of committing an offence, and having the
 same intention as A. Here A, whether the act be committed or not, is guilty of abetting an
offence.

 Illustration (b): A, with the intention of murdering Z, instigates B, a child under seven years of
age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the
absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing
an offence, A is liable to be punished in the same manner as if B had been capable by law of
committing an offence, and had committed murder, and he is therefore subject to the
punishment of death.

 Illustration (c): A instigates B to set fire to a dwelling-house (sic dwelling house). B, in

consequence of the unsoundness of his mind, being incapable of knowing the nature of the act,
or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s
instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a
dwelling-house (sic dwelling house), and is liable to the punishment, provided for that offence.

 Illustration (d): A, intending to cause a theft to be committed, instigates B to take property

belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B
takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting
under this misconception, does not take dishonestly, and therefore does not commit theft. But A
is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.

Explanation 4.— Abetment of an abetment is an offence. Abetment of an offence being an offence, the
abetment of such an abetment is also an offence.

 Illustration: A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and

C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence
with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to
the same punishment.

Explanation 5.— Abettor need not concert in abetment by conspiracy.—It is not necessary to the
commission of the offence of abetment by conspiracy that the abettor should concert the offence with
the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the
offence is committed.

 Illustration: A concerts with B a plan for poisoning Z. It is agreed that A shall administer the
poison. B then explains the plan to C mentioning that a third person is to administer the poison,
but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to
B for the purpose of its being used in the manner explained. A administers the poison; Z dies in
consequence. Here, though A and C have not conspired together, yet C has been engaged in the
conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence
defined in this section and is liable to the punishment for murder.

[s 46.1] Abettor

Section 46 BNS defines an abettor as a person who abets:

1. The commission of an offence.

 2. The commission of an act which would be an offence, if committed by a person capable of
committing an offence in law.

An abettor may fall into any of the categories defined in Section 45, meaning they can be an instigator,
or a conspirator, or helper in the commission of a crime.

[s 46.2] Essentials

To constitute the offense of abetment under Section 45, three things are essential:

1. There must be an abettor.

2. He must abet.

3. The abetment must be an offence or an act which would be an offence, if committed by a person
capable in law of committing the offence with the same intention or knowledge as that of the
abettor.

Important Points:

 If the thing abetted is not an offence, the person abetting will not be termed an abettor within
the meaning of Section 46 and cannot be held liable to punishment. For example, instigating
someone to kill stray dogs is not an offence, so the instigator is not an abettor.

 It is not necessary for the offence of abetment that the person abetted be capable in law of
committing an offence, or that they have the same guilty intention as the abettor.

 A person may employ a child below seven years of age or a lunatic to commit an offence. In such
cases, the agent (child or lunatic) is not punishable (exempted under BNS sections 20 and 22,
respectively) and is treated as an innocent agent, while the person directing them to do the
illegal act is liable as an abettor.

[s 47] Abetment in India of offences outside India

Section 47 addresses abetment that starts within India but targets acts outside India.

A person abets an offence within the meaning of this Sanhita who, in India, abets the commission of any
act without and beyond India which would constitute an offence if committed in India.

Comparison between BNS and IPC: Section 47 of the BNS, 2023, corresponds to Section 108A of the
erstwhile Indian Penal Code, 1860. The language of the section remains the same, but the word ‘Code’ is
replaced by ‘Sanhita’.

 Illustration: A, in India, instigates B, a foreigner in country X, to commit a murder in that country,

A is guilty of abetting murder.

[s 47.1] Abetment in India of offences outside India

Section 47 acts as another explanation of what constitutes an abetment, complementing Section 46. The
principle is that a person is guilty of abetment if they abet the commission of an act outside India,
provided that act would constitute an offence if done in India. For instance, if A, in India, instigates B, a
foreigner in Nepal, to commit murder in Nepal, A is guilty of abetting murder.
[s 48] Abetment outside India for offence in India

Section 48 covers abetment that originates outside India but targets acts within India.

A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the
commission of any act in India which could constitute an offence if committed in India.

 Illustration: A, in country X, instigates B, to commit a murder in India, A is guilty of abetting

murder.

Comments/Principle: This provision is a newly added offence under the Sanhita.

 It significantly broadens the scope of criminal abetment by including any individual who aids in
the commission of a crime in India, regardless of their nationality or place of residence.

 This provision relies on the principle of extraterritorial jurisdiction, enabling the prosecution of
Indian citizens residing abroad and foreign nationals with no connection to India.

 If an abettor outside India instigates the commission of an offense in India, they are liable for the
offence of abetment.

 A crucial limiting factor is that the enforcement of the sentence depends on the existence of an
international treaty with the respective country.

Conceptual Clarification:

Sections 47 and 48 address the flow of criminal intent across borders. If you imagine a dam regulating
criminal liability:

 Section 47 (Abetment in India of offences outside India): The criminal intent flows out from
India, making the instigator in India liable even if the downstream action (the offense) happens
abroad, provided that action is illegal in India.

 Section 48 (Abetment outside India for offence in India): This section builds a new structure to
capture criminal intent flowing into India from abroad, ensuring that an overseas planner is
liable for the resulting crime committed within India, regardless of their origin or nationality.

This note draws on the provided source material to detail the provisions of the Bharatiya Nyaya Sanhita
(BNS), 2023, regarding the punishment for abetment, specifically covering Sections 49, 50, and 51, which
deal with scenarios where the act abetted is committed, or where the act is committed with a different
intention, or where a different act is committed entirely.

Note on Case Law Constraints: Based on the constraints requiring the citation of case laws only from the
main text of the specified sections (49 through 51.2), no relevant case laws were found in the provided
source material for this range. Therefore, the requirement to add five case laws and at least one case law
per subheading cannot be fulfilled.

[s 49] Punishment of abetment if the act abetted is committed in consequence and where no express
provision is made for its punishment
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and
no express provision is made by this Sanhita for the punishment of such abetment, be punished with
the punishment provided for the offence.

Explanation: An act or offence is said to be committed in consequence of abetment, when it is

committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which
constitutes the abetment.

Illustrations:

 (a) A instigates B to give false evidence. B, in consequence of the instigation, commits that
offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

 (b) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and
delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy,
administers the poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of
murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for
murder.

Comparison between BNS and IPC: Section 49 of the BNS, 2023, corresponds to Section 109 of the
erstwhile Indian Penal Code, 1860 (IPC). There is no change; the provision has been carried forward as it
is. However, Illustration (a) of the IPC, 1860, is deleted in the BNS, 2023.

[s 49.1] Punishment of abetment where no express provision is made

Sections 49 and 50 of the BNS prescribe punishment for abetment where the act abetted is committed in
consequence of abetment. Section 49 is of a general nature.

The crucial point of this section is that if the act abetted is committed in consequence of abetment, and
the Sanhita has made no express provision for the punishment of that specific abetment, the abettor
will be held liable for the same punishment provided for the particular offence abetted. In these cases, it
is assumed there is no variation between the abettor and the actor, as both work with the same
intention and knowledge.

[s 49.2] Ingredients

To invoke Section 49, three essential requirements must be met:

1. There must be abetment of an offence.

2. The act abetted must have been committed in consequence of abetment.

3. There must be no express provision in the Sanhita for the punishment of such abetment.

[s 50] Punishment of abetment if person abetted does act with different intention from that of abettor

Whoever abets the commission of an offence shall, if the person abetted does the act with a different
intention or knowledge from that of the abettor, be punished with the punishment provided for the
offence which would have been committed if the act had been done with the intention or knowledge of
the abettor and with no other.

Comparison between BNS and IPC: Section 50 of the BNS, 2023, corresponds to Section 110 of the
erstwhile IPC, 1860. There is no change, and the provision has been retained as it is.

[s 50.1] Punishment of abetment when person abetted does act with a different intention

Section 50 supplements Section 49. This section clarifies that a variation in the intention or knowledge of
the person abetted does not affect the liability of the abettor.

The abettor is held liable for the act abetted in the same manner and to the same extent as long as the
act done is the same as the act abetted. The abettor is punished according to their own original
intention or knowledge, even if the person who committed the act acted with a different mens rea.

 Illustration (Based on Section 46, Explanation 3): A, intending to cause theft, instigates B to take
property belonging to Z out of Z’s possession. A induces B to believe the property belongs to A. B
takes the property believing it to be A's (in good faith). B does not commit theft (as he lacked
dishonest intention), but A is guilty of abetting theft, and is liable to the same punishment as if B
had committed theft.

[s 51] Liability of abettor when one act abetted and different act done

When an act is abetted and a different act is done, the abettor is liable for the act done, in the same
manner and to the same extent as if he had directly abetted it:

Provided the act done was a probable consequence of the abetment, and was committed under the
influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the
abetment.

Illustrations:

 (a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose.
The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which
is by the side of that of Z. Here, if the child was acting under the influence of A’s instigation, and
the act done was under the circumstances a probable consequence of the abetment. A is liable in
the same manner and to the same extent as if he had instigated the child to put the poison into
the food of Y.

 (b) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft
of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting
the theft; for the theft was a distinct act, and not a probable consequence of the burning.

 (c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery,
and provides them with arms for that purpose. B and C break into the house, and being resisted
by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the
abetment, A is liable to the punishment provided for murder.
Comparison between BNS and IPC: Section 51 of the BNS, 2023, corresponds to Section 111 of the
erstwhile IPC, 1860. There is no change, and the provision has been retained as it is.

[s 51.1] Liability of abettor when different act is done

Sections 49 and 50 address scenarios where the act done is the act abetted, whereas Section 51 applies
the abettor's liability when the act done is different from the act abetted.

This section articulates the principle of constructive liability. Since the person abetted is seen as working
as the agent of the abettor (the principal), the abettor is legally responsible for their deeds. This liability
is founded on the established criminal law principle that "every man is presumed to intend the natural
and probable consequence of his act".

Section 51 extends the abettor’s liability to an act that was not contemplated by them, provided that act
was the probable consequence of the original abetment. The abettor is liable for the committed act if: (i)
It was a probable consequence of the abetment, and (ii) It was committed under the influence of the
abetment, or in pursuance of the conspiracy which constituted abetment.

[s 51.2] Probable consequence

A probable consequence is defined as an act which is likely, or which can reasonably be expected to
follow from another act.

The underlying rationale is that a person cannot escape liability by claiming they did not authorize an act
whose consequence they would have foreseen. Conversely, if an unusual or unexpected consequence
occurs that a reasonable man cannot be expected to foresee, such consequence cannot be described as
a probable one, and the abettor would not be liable for the improbable act. The question is whether the
unintended act was a likely result that could reasonably be expected to arise from the act initially
instigated.

This note details the provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, concerning the specialized
rules of punishment for abettors, specifically covering Sections 52, 53, and 54.

Note on Case Law Constraints: Based on the constraints provided, which require case laws to be sourced
strictly from the main text of the excerpts covering Sections 52, 53, and 54 (excluding footnotes), only
two case laws could be identified and cited with context or facts provided in the main text (Nawabali v
Emperor and Mathurala Adi Reddy v State of Hyderabad). Consequently, the requirement to add five
total case laws and at least one case law per subheading cannot be met.

[s 52] Abettor when liable to cumulative punishment for act abetted and for act done

If the act for which the abettor is liable under Section 51 (liability when one act is abetted and a different
act is done) is committed in addition to the act abetted, and the two acts constitute distinct offences,
the abettor is liable to punishment for each of the offences.

Comparison between BNS and IPC: Section 52 of the BNS, 2023, corresponds to Section 112 of the
erstwhile Indian Penal Code, 1860. The language of the provision is slightly modified: the phrase ‘last
preceding section’ is substituted with ‘Section 51’.
Illustration: A instigates B to resist by force a distress made by a public servant. B, in consequence, resists
that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the
distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily
causing grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely
voluntarily to cause grievous hurt in resisting the distress A will also be liable to punishment for each of
the offences.

[s 52.1] Abettor liable to cumulative punishment

Section 52 extends the doctrine of constructive criminality and provides for cumulative punishment in
cases that fall under Section 51.

The section mandates that the abettor would be liable to punishment for both the offence originally
abetted and for the offence that was the probable consequence of the abetment, provided that a
cumulative sentence could legally be passed in that particular case.

Important Points on Cumulative Liability:

1. Dual Liability: The abettor faces liability for two distinct offences: the original abetted act and
the different act committed as a probable consequence.

2. Act vs. Consequence: If the act committed is not the probable consequence of the act abetted,
the abettor will not be responsible for the cumulative punishment. For example, if A abets B to
assault C and B kills C, A is liable for abetment of murder, but not necessarily for abetment of
hurt, because murder cannot be stipulated as the probable consequence of abetment of a
simple assault in that situation.

Case Law & Facts:

 Nawabali v Emperor, 1928 Cal 752

o Facts/Context: When A, by putting B in fear of death, induces B to burn a stock of corn

belonging to Z, which is kept inside the house where Z is sleeping, A is held liable both
for abetting B to burn the corn stock and also for putting B under fear of death.

[s 52.2]

(Content specifically under this subheading is not provided in the source material for this section.)

[s 53] Liability of abettor for an effect caused by the act abetted different from that intended by the
abettor

When an act is abetted with the intention on the part of the abettor of causing a particular effect, and
the resulting act (for which the abettor is liable in consequence of the abetment) causes a different
effect from that intended by the abettor, the abettor is liable for the effect caused.

The abettor is liable in the same manner and to the same extent as if he had abetted the act with the
intention of causing that new effect, provided he knew that the act abetted was likely to cause that
effect.
Comparison between BNS and IPC: Section 53 of the BNS, 2023, corresponds to Section 113 of the
erstwhile Indian Penal Code, 1860. There is no change, and the provision has been retained as it is.

Illustration: A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes

grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to
cause death, A is liable to be punished with the punishment provided for murder.

[s 53.1] Liability of abettor for an ‘effect’ caused by an abetted act

Section 53 is complementary to Section 51. It extends the abettor’s liability to situations where the act
performed remains the same, but the ultimate effect of that act is different from what was intended by
the abettor.

Key Principle: The abettor is held responsible for the unintended (but resulting) effect, provided the
condition of knowledge is met: the abettor must have known that the act abetted was likely to cause
that different effect.

For instance, if A instigates B to cause grievous hurt to Z, and Z subsequently dies, if A knew the grievous
hurt was likely to cause Z’s death, A is liable for abetment to murder.

[s 54] Abettor present when offence is committed

Whenever any person, who is absent would be liable to be punished as an abettor, is present when the
act or offence for which he would be punishable in consequence of the abetment is committed, he shall
be deemed to have committed such act or offence.

Comparison between BNS and IPC: Section 54 of the BNS, 2023, corresponds to Section 114 of the
erstwhile Indian Penal Code, 1860. There is no change, and the provision has been retained as it is.

[s 54.1] Liability of an abettor’s presence

Section 54 establishes that if an abettor is present when the offence abetted is committed, he shall be
deemed to have himself committed such offence. In such cases, the abettor is liable to the same
punishment as that accorded to a principal offender.

Crucial Ingredients:

1. Prior Abetment is Essential: This section is only attracted if circumstances amounting to

abetment of a particular offence has first been proved.

2. Presence Must be Supportive: The actual presence of the abettor must be coupled with the
prior abetment to amount to the commission of the offence.

3. Proximity Requirement: The abettor must be sufficiently near to give assistance (near enough
to afford assistance, should such occasion arise).

4. Mere Presence Insufficient: Mere presence alone will not render a person liable under this
section.

5. Legal Presumption: The participation in the crime is established by the legal presumption (juris
et de jure) that actual presence plus prior abetment can mean nothing else but participation.
Case Law & Facts:

 Mathurala Adi Reddy v State of Hyderabad, AIR 1956 SC 177

o Principle: This case supports the proposition that the meaning of Section 54 is that, if
the nature of the act done constitutes abetment, then if the abettor is present, he is
deemed to have committed the offence himself. It affirmed that the presumption of
participation arises from the combination of actual presence and prior abetment.

Conceptual Analogy: Section 54 operates like an accelerator pedal on liability. If a driver (the principal
offender) is already set to commit a crime due to the prior planning or encouragement provided by a
passenger (the abettor), the mere physical presence of that passenger at the scene of the crime acts as
the final "acceleration," immediately converting the passenger's secondary liability (abetment) into
primary liability (commission of the crime itself).

This note provides a comprehensive analysis of Sections 55, 56, and 57 of the Bharatiya Nyaya Sanhita
(BNS), 2023, which delineate the specific punishments for abetment based on the nature of the offense
and whether the ultimate act was committed.

Note on Case Law Constraints: Based on the strict instruction to use only case laws cited within the main
text (and exclude footnotes) corresponding to Sections 55 through 57.1, no eligible case laws were found
in the provided source material for this specific range. Therefore, the requirements to add five case laws
and at least one case law per subheading cannot be fulfilled.

[s 55] Abetment of offence punishable with death or imprisonment for life

Section 55 addresses the punishment for abetting extremely severe offenses (punishable with death or
imprisonment for life) in scenarios where the abetted act is not committed.

Provision: Whoever abets the commission of an offence punishable with death or imprisonment for life
shall, if that offence be not committed in consequence of the abetment, and no express provision is
made under this Sanhita for the punishment of such abetment, be punished as follows:

1. If the offense is NOT committed: The abettor is punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine.

2. If HURT is caused: If any act for which the abettor is liable in consequence of the abetment
causes hurt to any person, the abettor shall be liable to imprisonment of either description for a
term which may extend to fourteen years, and shall also be liable to fine.

Illustration: A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have
been subject to the punishment of death or imprisonment for life. Therefore, A is liable to imprisonment
for a term which may extend to seven years and also to a fine; and if any hurt be done to Z in
consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen
years, and to fine.
Comparison between BNS and IPC: Section 55 of the BNS, 2023, corresponds to Section 115 of the
erstwhile Indian Penal Code, 1860 (IPC). The provision remains materially the same, but the phrase
‘Code’ is replaced by ‘Sanhita’.

[s 55.1] Abetment of offences punishable with death or life imprisonment

Sections 55 and 56 provide the specific yardstick for punishment when the offence is not committed in
consequence of the abetment, contrasting with Section 49, which applies when the offense is
committed.

Section 55 deals with cases where no express punishment is separately provided for the abetment of
offenses punishable with death or life imprisonment.

Key Scenarios Based on Abetment of Murder (as an example):

1. Offence Committed: If B murders Z, both A (abettor) and B (actor) are subject to death or
imprisonment for life under BNS Section 103 read with Section 49.

2. Offence Not Committed: A is liable to imprisonment up to seven years and fine,.

3. Hurt Caused: If hurt is caused to Z in pursuance of the abetment, A is liable to imprisonment up

to fourteen years and fine,.

[s 56] Abetment of offence punishable with imprisonment

Section 56 sets the punishment for abetting offenses punishable only with imprisonment (not death or
life imprisonment) when the abetted offense is not committed.

Provision: Whoever abets an offence punishable with imprisonment shall, if that offence be not
committed in consequence of the abetment, and no express provision is made for its punishment, be
punished as follows:

1. General/Private Person: Imprisonment of any description provided for that offence for a term
which may extend to one-fourth part of the longest term provided for that offence; or with fine,
or with both.

2. Public Servant Involved: If the abettor or the person abetted is a public servant whose duty it is
to prevent the commission of such offence, the abettor shall be punished with imprisonment for
a term which may extend to one-half of the longest term provided for that offence; or with fine,
or with both.

Illustrations:

 (A) A instigates B to give false evidence. Here, if B does not give false evidence, A has
nevertheless committed the offence defined in this section, and is punishable accordingly.

 (B) A, a police-officer, whose duty it is to prevent robbery, abets the commission of robbery. Here,
though the robbery be not committed, A is liable to one-half of the longest term of imprisonment
provided for that offence, and also to fine.
  (C) B abets the commission of a robbery by A, a police-officer, whose duty it is to prevent that
offence. Here, though the robbery be not committed, B is liable to one-half of the longest term of
imprisonment provided for the offence of robbery, and also to fine.

Comparison between BNS and IPC: Section 56 of the BNS, 2023, corresponds to Section 116 of the
erstwhile IPC, 1860. While there is no material change in the provision, the word ‘Code’ is replaced with
‘Sanhita’, and Illustration (a) found in IPC Section 116 is deleted.

[s 56.1] Abetment of offences punishable with imprisonment

Section 56 specifically provides punishment when the offense is not committed. The section makes a
crucial distinction in punishment based on the status of the person involved in the abetment.

Enhanced Penalty for Public Servants: This section imposes greater responsibility and an enhanced
penalty on public servants whose statutory duty is to prevent the crime, compared to ordinary
individuals,. This is based on the principle that "if the law protectors themselves break the law, they
should be dealt with more severely than others".

The specific punishments for a non-committed offense are:

1. Private Individual: One-fourth of the longest term of imprisonment prescribed for the offence.

2. Public Servant: One-half of the longest term of imprisonment prescribed for the offence.

[s 57] Abetting commission of offence by public or by more than ten persons

Section 57 deals with an aggravated form of abetment, focusing on the wide scale of the instigation
rather than the severity of the underlying crime.

Provision: Whoever abets the commission of an offence by the public generally or by any number or
class of persons exceeding ten, shall be punished with imprisonment of either description for a term
which may extend to seven years and with fine.

Illustration: A affixes in a public place a placard instigating a sect consisting of more than ten members
to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while
engaged in a procession. A has committed the offence defined in this section.

Comparison between BNS and IPC: Section 57 of the BNS, 2023, corresponds to Section 117 of the
erstwhile IPC, 1860.

 Punishment Enhanced: The punishment prescribed in the BNS is enhanced to seven years and
with fine.

 IPC Punishment: The erstwhile IPC, 1860, under Section 117 provided for a lower punishment of
up to three years, or fine, or both,.

[s 57.1] Abetting public or more than ten persons

The offense under Section 57 is an aggravated form of abetment and is applicable when the abetment
targets the public generally or a group exceeding ten persons.
The punishment is imprisonment that may extend to seven years and fine. The section is applicable, for
instance, when an accused instigated workers to form an unlawful association and to collect funds.

This note comprehensively details the provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, concerning
the special forms of abetment involving the concealment of criminal designs, specifically covering
Sections 58, 59, and 60.

Note on Case Law Constraints: Based on the constraints provided, only one case law (Queen v Jhugroo)
was explicitly cited within the main text narrative covering Sections 58 to 60.1. Therefore, the
requirement to add five total case laws and at least one case law per subheading cannot be met solely
using information from the main text of the sources.

[s 58] Concealing design to commit offence punishable with death or imprisonment for life

Section 58 addresses the concealment of a criminal design related to serious offenses.

Provision: Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the
commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any
act or omission, or by the use of encryption or any other information hiding tool, the existence of a
design to commit such offence or makes any representation which he knows to be false respecting such
design shall,—

The punishment prescribed depends on whether the offense is committed:

 (a) If that offence be committed: Punishment is imprisonment of either description for a term
which may extend to seven years, and the offender shall also be liable to fine.

 (b) If the offence be not committed: Punishment is imprisonment of either description, for a
term which may extend to three years, and the offender shall also be liable to fine.

Illustration: A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a
dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the
Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in
pursuance of the design. A is punishable under this section.

Comparison between BNS and IPC: Section 58 of the BNS, 2023, corresponds to Section 118 of the
erstwhile Indian Penal Code, 1860. There is no material change in the provision. The provision has been
rearranged with two sub-sections (a) and (b) in the BNS. Notably, the BNS provision specifically
incorporates language regarding concealment “by the use of encryption or any other information
hiding tool”.

[s 58.1] Concealing design to commit capital offences etc. – Principle

Sections 58 to 60 deal with a special form of abetment by way of aid in the concealment of a design to
commit an offence. The essence of this offense is the facility thereby given to offenders for the
commission of the offence.
This provision involves the participation of two or more persons, specifically the concealment by one
person of the existence of a criminal design on the part of another. These sections (58 to 60) deal with
concealment prior to the commission of an offence.

[s 58.2] Concealment

Concealment, to be punishable under this section, must be the result of active conduct, distinguished
from passive non-disclosure. Mere denial of the existence of a design to commit an offence does not
constitute concealment in law.

Concealment can be achieved either by misrepresentation or by non-disclosure. There must be an

obligation on the part of the person concealing the offence to disclose it. The act of concealment must
be an intentional act or committed at least with the knowledge that it will aid the commission of the
offence.

 Case Law: Queen v Jhugroo, (1865) 4 WR (Cr) 2

o Context: This case supports the principle that if A, knowing of a design to commit
dacoity, voluntarily conceals the existence of the design with the knowledge that such
concealment would facilitate its commission, A is guilty of an abetment of dacoity.

[s 58.3] Punishment

Section 58 prescribes punishment for the concealment of a design to commit an offence punishable with
death or imprisonment for life.

 If the offence is committed: Imprisonment extending up to seven years and fine.

 If the offence is not committed: Imprisonment extending up to three years and fine.

[s 59] Public servant concealing design to commit offence which it is his duty to prevent

Section 59 provides for enhanced punishment when a public servant conceals a criminal design that they
are duty-bound to prevent.

Provision: Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will
thereby facilitate the commission of an offence which it is his duty as such public servant to prevent;
voluntarily conceals by any act or omission or by the use of encryption or any other information hiding
tool, the existence of a design to commit such offence, or makes any representation which he knows to
be false respecting such design, shall,

The punishment varies based on the severity and outcome of the underlying offence:

 (a) If the offence be committed (and not punishable with death or life imprisonment):
Imprisonment of any description provided for the offence, for a term which may extend to one-
half of the longest term of such imprisonment, or with fine, or with both.

 (b) If the offence be punishable with death or imprisonment for life (and is committed):
Imprisonment of either description for a term which may extend to ten years.
  (c) If the offence be not committed: Imprisonment of any description provided for the offence
for a term which may extend to one-fourth part of the longest term of such imprisonment, or
with fine, or with both.

Illustration: A, an officer of police, being legally bound to give information of all designs to commit
robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give
such information, with intent to so facilitate the commission of that offence. Here A has by an illegal
omission concealed the existence of B’s design, and is liable to punishment according to the provision of
this section.

Comparison between BNS and IPC: Section 59 of the BNS, 2023, corresponds to Section 119 of the
erstwhile IPC, 1860. There is no material change in the language of the provision. However, the structure
has been reorganized: the first and second paragraphs of the IPC section have been merged, and the
remaining unnumbered paragraphs in IPC Section 119 have been arranged as sub-sections (a), (b), and
(c) in the BNS.

[s 59.1] Public servant concealing design to commit offences

Section 59 is adapted from Section 58 and is applicable exclusively to public servants. This section
prescribes an enhanced penalty for public servants whose duty is to prevent the commission of crime.
This is based on the principle that "if the law protectors themselves break the law, they should be dealt
with more severely than others".

A public servant is liable to enhanced punishment only if they conceal a design to commit an offence
which they are under an obligation to prevent.

Punishment Summary:

 Offence Committed (Capital/Life): Punishment up to ten years.

 Offence Committed (Other Imprisonment): Punishment up to one-half of the longest term of

imprisonment.

 Offence Not Committed: Punishment up to one-fourth part of the longest term of

imprisonment.

[s 60] Concealing design to commit offence punishable with imprisonment

Section 60 provides punishment for concealment of designs related to offenses punishable only with
imprisonment (excluding death or life imprisonment).

Provision: Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the
commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal
omission, the existence of a design to commit such offence, or makes any representation which he
knows to be false respecting such design shall,—

The punishment is determined by the longest term of imprisonment prescribed for the offense:

 (a) If offence be committed: Imprisonment extending to one-fourth of the longest term of such
imprisonment, or with fine, or with both.
  (b) If the offence be not committed: Imprisonment extending to one-eighth of the longest term
of such imprisonment, or with fine, or with both.

Comparison between BNS and IPC: Section 60 of the BNS, 2023, corresponds to Section 120 of the
erstwhile IPC, 1860. There is no material change in the language of the provision. Similar to Section 59,
the original paragraphs have been merged, and the remaining text has been arranged as sub-sections (a)
and (b).

[s 60.1] Concealing design to commit offences punishable with imprisonment

Section 60 is complementary to Section 58.

 Section 58 addresses concealment of capital/life imprisonment offenses.

 Section 60 addresses concealment of offenses punishable only with imprisonment (other than
life imprisonment).

Offenses punishable only with fine are excluded from the purview of Sections 58 to 60 of the BNS, 2023,
as they are considered too trivial.

The proportional punishments under Section 60 are:

 If the offense is committed: One-fourth of the longest term of imprisonment.

 If the offence is not committed: One-eighth of the longest term of imprisonment prescribed for
that offence.

This comprehensive note details the offense of Criminal Conspiracy as defined in Section 61 through
Section 61.9 of the Bharatiya Nyaya Sanhita (BNS), 2023.

Note on Case Law Constraints: A total of ten case laws cited in the main text of the source material have
been included, with facts or context provided where available. The constraints requiring at least one case
law per specific subheading have been met where the source material provided relevant citations under
that subheading or a closely associated principle (e.g., Sections 61.2, 61.4, and 61.8 lack explicit case law
citations in the source text).

[s 61] Criminal conspiracy

Criminal conspiracy, along with abetment and attempt, has been grouped under Chapter IV (Sections 45
to 62) in the Bharatiya Nyaya Sanhita, 2023, unlike the structure found in the erstwhile Indian Penal
Code, 1860.

Provision (Section 61(1)): A criminal conspiracy is designated when two or more persons agree with the
common object to do, or cause to be done:

1. an illegal act, or

2. an act which is not illegal by illegal means.

Proviso: No agreement, except an agreement to commit an offence, shall amount to a criminal

conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object.

Provision (Section 61(2) - Punishment): Whoever is a party to a criminal conspiracy:

 (a) To commit an offence punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards shall, where no express provision is made in
this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he
had abetted such offence.

 (b) Other than a criminal conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not exceeding six months, or with
fine or with both.

Comparison between BNS and IPC: Section 61 of the BNS, 2023, corresponds to Sections 120A
(Definition) and 120B (Punishment) of the erstwhile IPC, 1860. The language of the section remains the
same. The BNS merely divides the content into two clauses: (1) definition and (2) punishment under sub-
clauses (a) and (b).

Judicial Observation: The Supreme Court has noted that the unlawful agreement and not its
accomplishment is the essence of the crime of conspiracy. Agreement is essential, and mere
knowledge, or even discussion, of the plan is not, per se, enough. Suspicion should never be allowed to
take the place of legal proof.

 Case Law: State (NCT of Delhi) v Navjot Sandhu.

[s 61.1] Evolution of ‘Conspiracy’ as an offence under the Indian Penal Code, 1860

Conspiracy originated primarily as a civil wrong in Common law but was later made punishable as a
criminal wrong. The Star Chamber gave it a more concrete form, making such an agreement a
substantive offence even when no act was done in pursuance of it.

Under English law, the crime consists when two or more persons agree together to do something
contrary to law, or wrongful and harmful towards another person, or to use unlawful means in carrying
out an object not otherwise unlawful.

 Case Law (Principle): Mulcahy v R

o Principle: A conspiracy consists not merely in the intention of two or more but in the
agreement of two or more to do an unlawful act by unlawful means. So long as a
design rests in intention only, it is not indictable. When two persons agree to carry it into
effect, the very plot is an act in itself.

Conspiracy was punishable in India only in two forms prior to 1913: (i) conspiracy by way of abetment,
requiring an overt act, and (ii) conspiracy involved in specific offences (like Section 121A, IPC). The
Criminal Law Amendment Act of 1913 added Chapter VA to the IPC (now Section 61 BNS), giving an
extended effect to the law of conspiracy in India and making it a substantive offence.

[s 61.2] ‘Conspiracy’ as an offence under the Bharatiya Nyaya Sanhita, 2023

The BNS deals with criminal conspiracy in several ways:

 1. As a substantive offence (Section 61).

2. As a form of abetment (Section 45).

3. To wage, attempt or abet waging of war against the Government of India (Section 147 and
148).

4. Involvement in certain offences (e.g., assembling for purposes of committing dacoity, Section
310(5)).

The key difference lies in the necessity of an overt act:

 Under Section 45 (abetment by conspiracy), an act or illegal omission must take place in
pursuance of the conspiracy.

 Under Section 61 (substantive offence), for an agreement to commit an offense, the mere
agreement suffices; no overt act is necessary.

[s 61.3] Conspiracy—Meaning

A criminal conspiracy involves a joint evil intent. It is the agreement between two or more persons to do
an illegal act, or a legal act by illegal means. The very agreement is an offence and is punishable.

 Case Law & Facts: State (CBI/SIT) v Nalini (Rajiv Gandhi murder case)

o Principle: The Apex Court held that an agreement between two or more persons to do
an illegal act amounts to criminal conspiracy. Every conspirator need not have taken
active part in every conspiratorial act.

o Facts/Context: The charge involved 26 accused (and others) who conspired between
1987 and 1992 in Sri Lanka and India. The objects included infiltrating India
clandestinely, using unauthorized arms and explosives, setting up unauthorized wireless
sets, carrying out acts of terrorism, and specifically assassinating Rajiv Gandhi and
others. The conspiracy also covered causing disappearance of evidence and harbouring
the accused.

 Case Law & Facts: Sanichar Sahani v State of Bihar

o Facts/Context: The appellant was charged with criminal conspiracy and murder
(Sections 120B/300 IPC) for allegedly conspiring with his father and brother to commit
murder because the deceased did not fulfill a demand for "Rangdari" (money) made
over the telephone.

o Held: The Supreme Court dismissed the appeal, holding that the charge for criminal
conspiracy and murder was not prejudicial against the appellant, especially since he
raised no timely objection to the charge.

[s 61.4] Ingredients

The essential ingredients of ‘Criminal Conspiracy’ are:

1. There must be an agreement between two or more persons who are alleged to conspire.
 2. The agreement must be to do or cause to be done: (i) an illegal act, or (ii) an act which may not
itself be illegal by illegal means.

Important Proviso: An agreement to commit an offense (a punishable wrong) requires no overt act
beyond the agreement itself. However, if the object of the conspiracy is merely an illegal act not
amounting to an offence (e.g., furnishing grounds for a civil action), then some act besides the
agreement must be done in pursuance thereof.

[s 61.5] An illegal act

The word "illegal" is defined comprehensively under BNS Section 2(15):

 "Illegal" is applicable to everything which is an offence, or which is prohibited by law, or which

furnishes ground for a civil action.

This broad definition means that an illegal act may even include a case of civil trespass punishable as a
criminal conspiracy.

 Case Law: Ram Narain Poply v CBI (2003)

o Principle: The Supreme Court held that to convict parties for conspiracy, mere proof of
agreement between two or more to do an unlawful act or an act by unlawful means is
enough. When two agree to carry it into effect, the very plot is an act by itself. The law
aims to curb the mischief gained by the combination of means.

[s 61.6] Requirement of two or more persons

Since conspiracy is fundamentally an agreement, it necessitates at least two persons. One person alone
cannot conspire.

However, a person may be indicted alone for conspiring with persons who are unknown, dead,
uncaught, incapable of committing the crime (e.g., a minor or lunatic), or immune or have been
pardoned.

 Case Law (Principle): Duguid

o Principle/Context: The rule requiring two conspirators does not apply unless one is
actually acquitted. If D is charged with conspiring with E, and E is exempt due to a claim
of right or personal exemption (like being a head of state), D may still be convicted of
conspiracy.

 Case Law & Facts: Topandas v State of Bombay

o Facts/Context: The appellant (Topandas) and three named co-accused were charged
under Section 120B IPC for conspiring to use forged documents to secure import
licenses. The Magistrate acquitted all four, but the High Court convicted the appellant.

o Held: The Supreme Court held that the appellant could not be convicted of conspiracy
when his alleged co-conspirators were acquitted. For a sole remaining accused to be
convicted, the charge must explicitly state and prove that he conspired with some other
person not tried upon that indictment (e.g., someone absconding, insane, or minor).
  Case Law (Context): Afsan Guru (Parliament Attack case)

o Principle: The Apex Court noted that conspiracy is mostly proved by circumstantial
evidence. Courts must determine the guilt by adopting an inferred approach where both
the existence and the object of the conspiracy are inferred from the circumstances and
the conscious conduct of the accused.

 Case Law & Facts: Bimbadhar Pradhan v State of Orissa

o Facts/Context: The appellant (a government servant) and four subordinates were

charged under Section 120B/409/477A IPC for conspiring to misappropriate government
funds and falsifying records. One accused turned approver (granted immunity), and the
remaining four named co-accused were acquitted.

o Held: The conviction of the appellant was held to be perfectly legal and justified,
distinguishing it from Topandas. Since, besides the acquitted persons, there was also the
approver (who satisfied the requirement of a second conspirator), the legal requirement
of the conspiracy agreement was met.

[s 61.7] Appraisal of law of conspiracy

The justification for conspiracy as an inchoate crime is that it enables preventive action and helps
establish a fixed intention to commit a crime. It dispenses with the difficult requirement of proximity
necessary in the law of attempt.

However, the law of conspiracy has drawn judicial caution due to its wide ambit and elasticity. Fitzgerald
J emphasized that the law of conspiracy is "a branch of our jurisprudence to be narrowly watched, to be
zealously guarded, and never to be pressed beyond its true limits". Its dangerous nature stems from
the fact that its doctrine is often vague and uncertain, lending itself to potential abuse in the hands of
the Government.

 Case Law (Context): R Venkatakrishnan v CBI

o The Apex Court elaborately discussed the law relating to conspiracy and its application in
a particular case.

[s 61.8] Punishment of criminal conspiracy

Section 61(2) BNS classifies conspiracy for punishment into two categories:

1. Serious Offences (Section 61(2)(a)): Conspiracy to commit an offense punishable with death, life
imprisonment, or rigorous imprisonment of two years or upwards. The punishment is the same
as if the offender had abetted such offence.

2. Lesser Offences (Section 61(2)(b)): Conspiracy to commit all other offenses (including those
punishable only with fine) or illegal acts not amounting to offenses. The punishment is uniform:
imprisonment not exceeding six months, or fine, or both.

[s 61.9] Proving the offence of ‘Conspiracy’

Due to the private and secret nature of conspiracy, direct evidence in proof of a conspiracy is seldom
available; it must often be proved by circumstantial evidence.

For conspiracies related to serious crimes (as contemplated under Section 61(2)(a)), mere proof of an
agreement is enough to secure a conviction. In this situation, proof of an overt act by the accused is not
necessary. The essential ingredient is the agreement between the conspirators to commit the crime.

While express agreement need not be proved, the evidence must show some kind of physical
manifestation of agreement. Evidence of merely transmitting thoughts or sharing the unlawful act is
insufficient.

 Case Law (Principle): Ram Narain Poply

o Principle: A conspiracy is a continuing offence which continues to subsist till it is

executed, rescinded, or frustrated by choice or necessity. During its subsistence,
whenever any one of the conspirators does an act or series of acts, he would be held
guilty.

Conceptual Analogy: Criminal Conspiracy, particularly for serious offenses, is like charging a battery for a
remote detonation. The agreement (the mental component) is the act of successfully connecting the
wires and charging the battery. Once the charge is established, liability is incurred immediately. Unlike
abetment (where, for some types, you need to see the first spark or action taken), in conspiracy for
serious crimes, the potential for harm created by the powerful agreement itself is what the law
punishes, even if the detonator (the overt act) is never pressed.