Introduction

Let us understand the concept of General Defences before we proceed to the

concept of mistake of fact and Mistake of law.
General defences mean the set of defence i.e. excuses that help a person to escape
his liability if his action qualified under the given provision of defences. If the
defendant fails to prove why he has to do that act, he cannot escape from his
liability. There are some specific defences which are available for the wrongful
acts:

1. Volenti non-fit injuria

2. Plaintiff, himself the wrongdoer
3. Inevitable accident
4. Act of God
5. Private defence
6. Mistake
7. Necessity
Mistake
There are two types of mistake which a normal person can do according to tort:

1. Mistake of Law
2. Mistake of Facts
In general, the mistake of law is no defence to the violation of the law. It is
presumed that all people know and understand the law of the land, except minors,
lunatics or insane. There are few other rare exceptions to this rule.
A mistake of fact can be an exception in reducing or eliminating the liability of the
person. A person cannot escape his liability for intentional mistakes. A criminal
defendant can argue that he/she never intended to commit the crime. The criminal
act that occurred as a result of the mistake of fact as per the situation demands or
misunderstanding. Such exception is only allowed when there’s a mistake of fact,
but the mistake of law is not considered as a defence.
Meaning of Mistake of Facts
A mistake of fact arises when a person does any act but misunderstood some fact
that negates an element of the crime.
A mistake of fact as a defence applies to various crimes. If the criminal defendant
can prove that he does the act due to a mistake of fact or misunderstood some fact
that negates an element of the crime.
Illustration
A takes his Labrador to the park every day so that he can play off leash with other
dogs. One day, A lost sight of his dog for a few minutes. Well, he relocated the dog
and walked towards the home. At home, he noticed a mark on the dog and came to
the conclusion that it is not his dog, he mistakenly took another person’s dog with
him. Here, A will not be liable because he gets the defence of mistake of facts.
In general, Mistake, whether of fact or of law, is no defence to the action of tort.
When any person wilfully interferes with the rights of others, he has no defence
that he believed that his actions were justified. Likewise, no one under a mistake of
fact defames someone or enters anyone’s property.
If it is repeatedly told to an individual that it is not his property, he could not take
it. It would no longer be a reasonable defence for him.
Illustration
A and B are playing games on a laptop in B’s house. At the time A leaves, he took
the laptop from the table, believing that it was his laptop. B repeatedly told A that
it was not his property and belonged to him. If then also A leaves with B’s laptop,
in that situation A cannot take the defence of mistake of fact.

The mistake of fact can be used as a defence due to mens-rea as one of the
important essentials. The mistake of fact must be honest and reasonable i.e., bona
fide in nature. A defendant can not claim later that he or she was under the mistake
of fact when she/he actually knew about the situation.
Illustration
A, jokingly, hit normally on B’s head from behind assuming him as C, his friend.
Here A can take the defence of mistake of fact, as his act can be taken as a
reasonable act because he was standing behind B and honestly assumed B as C.
The State of Maharashtra v. Mayer Hans George, 1965 AIR 722, 1965 SCR (1)
123
In this case, A is an officer of the court. Court ordered him to arrest Y. A arrest Z,
as he believes Z to be Y. Here, A can take the ground of good faith or a bona fide
intention as a defence in the mistake of fact.
There are some exceptions when the defendant may be able to avoid his liability:
A Mistake of Fact and not A Mistake of Law
This phrase means a defence of mistake of fact can be excusable but the defence of
mistake of law is not excusable. It is assumed that every person knows the law of
the country he resides in. if a person says, I do not know the law and does the act,
it is not excusable.
However, if a person did a wrongful act by mistake of fact with a good intention
and honest belief that he was bound to do, he may be excused.
Illustration
Situation 1
A is 17 years old went to buy wine from the wine shop. B, the owner of the shop
honestly believed that A was above 18 years of age and as per law 18+ person can
legally have wine. C, a policeman caught B for illegally selling wine to a child.
Here B can take advantage of the mistake of fact because he honestly believes A to
be 18+.
Situation 2
A has possession of a rifle without a licence. B, a policeman caught him. He asked
for the defence of mistake of law i.e. he was unaware of the law. Here, A does not
get any defence because it is assumed that every person knows the law of the land
he resides in.
Good Intention
The word good faith here means the act is done with due care and proper attention.
It also includes the genuine beliefs of a person. The burden of proof lies upon the
accused, who wants to take the shelter of good faith.
Illustration
A enters on one way from the wrong side. A police officer caught him. He pleaded
the mistake of fact because he was unaware that it was a one way. Here A does not
get the defence because he should take proper care and attention, as there was a
signboard present on the road which a reasonable man can easily see.
In good faith and believed to be justified by the law
A person can take the defence only when he acts in good faith and with good
intention and believes that his act is justified by law.
In Keso Sahu v. Saligram Shah
In this case, the court held that the accused showed that he in good faith and
believing that the offence of smuggling rice was going on in the plaintiff’s house
and thus he brings the cart and Cartman to the police station. The said suspicion
was proved to be wrong. The accused can take the defence of mistake of fact as he
is doing the act in good faith and believing it to be justified by law.
The word justified, according to Black’s law dictionary means the act “Done on
adequate reason sufficiently supported by credible evidence, when weighed by the
unprejudiced mind, guided by common sense and by correct rule of law”.
In Dhaki Singh v. State
The accused shot an innocent person mistaking him to be a thief, although he
believes that he is bound to nab the thief. According to the officer’s finding, he
was not in the position to apprehend him, fired at him. Here, he cannot take the
defence of mistake of fact as the act done by him was not justified.
Mistake of Law
When a person commits any tort and asks for the defence that he does not know
the law, that does is considered as a defence. Court thinks that every person knows
the law of the country that’s why the mistake of law is not considered as a defence
in IPC as well as in tort. The mistake of law is not considered as a defence.
Illustration
A murdered B, in this case, A cannot apply for the defence of mistake of law i.e. he
was not aware of crime/law related to the murder.

A Mistake of Fact and Mistake of Law in I.P.C.

Mistake of Fact
Under section 76 of Indian Penal Code,(BNS S. 14) the maxim ‘ignorantia facti
doth excusat ignorantia juris non-excusat’ it means, a person has done an act
which by law is an offence, under a misconception of facts, leading him to believe
in good faith that he was commanded (bound by the law.)
Illustration
A, a police officer gets information that G is a gangster and running business of
drugs. A went to arrest G but arrests B believing that he is G. Here A is acting
under the command of the law and can take the defence of mistake of fact.
Section 79 Indian Penal Code, (BNS 17) deals with the act of the person, by
mistake of fact believing himself justified by law. If the criminal defendant can
prove that he does the act due to a mistake of fact or misunderstood some fact, that
will negate an element of the crime.
In Chirangi v. the State of M.P., (1952)53 CrLJ 1212 (M.P.)
In this case, a widower holding axe accompanied by his son, went to woods to
gather ‘siadi’ leaves. After some time, his nephew discovered that the accused was
sleeping under the tree and the child was missing. Later the child was found dead.
It was transpired in evidence that the accused at the time being was seized of the
state of mind in which he visualized that a tiger was going to attack him as by
mistake he killed his son considering his son as the tiger. The court stated that it
was a mistake of fact that immunized him from liability. He had no intention to kill
his son.
State of Orrisa v. Khora Ghasi
The accused while guarding his field shot an arrow on the moving object in a good
faith that it was a bear, but the shot results in the death of a person. Here, he gets
the immunity under the mistake of fact.
Mistake of Law
The mistake of law is not considered as a defence. When a person commits any tort
and asks for the defence that he does not know the law, the court does not
considers it as a defence.
In Grant v. Borg (1982) 1 WLR 638 HL
In this case, the person was charged under the Immigration Act 1971, for staying
beyond the time limit by the leave. Here, he cannot apply for the defence i.e.
mistake of law.
Various perspectives on the concept of mistake of fact and mistake of law
The Equivalence View
Under this view, the mistake of law is treated in the same way as the mistake of
fact. If murder requires knowledge that one has, in fact, caused the death of a
human being, it should also require knowledge of how the homicide status defines
“human being”.
Illustration
A mistakenly believed that killing a fetus inside mother womb is not an offence, he
would not be liable.
The Liberal View
Under this view, the ignorance or mistake of law is considered as a defence,
subject to reasonable grounds. The act should be done negligently.
Illustration
A, a doctor, while operating a patient, fails to remove his ring from the hand and
the ring negligently remains in the patient’s stomach. Recently a law is passed that
doctors have to remove all the accessories before the operation. A demands
defence as he doesn’t know about this law because it is recently passed. Here A is
not liable because the act has been done negligently and not in bad faith.
Moderate View
As per this view, Mistake of Law is sometimes a defence. it is based on reasonable
grounds; mens rea might be required to that satisfy the elements of the crime.
One endorses a defence of reasonable ignorance of the law but not a defence of
reasonable mistake of law.
Illustration
A, a foreigner in India, is caught drinking in a public place. Here he can take the
defence, because he acted in good faith, believed that it is not a crime as similar in
his country. But, if he knows that keeping a gun without a licence is a crime in
India and still kept it, in this situation he is liable.
Conservative View
Under this approach, the Mistake of Law is never a defence because it is assumed
that everyone knows the law of the land in which he resides. The mistake of fact
can be in some cases considered as a defence, where the act is done in:
 1. Good faith.
2. The act is justified.
3. The person considered that the act he has done is justified by law.
Conclusion
In General, the mistake of law is no defence to a violation of the law. It is
presumed that all people know and understand the law of the land, except minors,
lunatics or insane. There are few other rare exceptions to this rule. On the other
hand, the mistake of fact can be considered as a defence if a person does any act,
which he honestly believed to be justified by law.
Judicial Acts
Judicial acts are those acts which are derived from normal exercise of judicial
power within proper jurisdiction. They can also be called as “Act of a judge”. The
section 77 and 78 of the Indian Penal Code (BNS 15, 16)exempts a judge in cases
where he proceeds irregularly in the exercise of powers which the law bestows on
him as well as where he, in good faith, exceeds his jurisdiction and has no lawful
powers.
Object of the Sections
A separate section was included in the general exception of Indian Penal Code for
judges especially because a judge has to be indifferent and unbiased while
delivering the judgements. Therefore in order to render justice, judges decisions
cannot be under scrutiny because even if the judgements pronounced are wrong or
not in favour, then the judicial review is a tool for reviewing the judgment. But if
the acts are challenged then judges will be bound to act according to the will of the
people or government.
Acting Judicially
The phrase “acting judicially”(BNS 15) is an essential ingredient for the offence to
attract the particular exception to immune the acts of a judge while acting under
judicial capacity. When the act done or ordered is in a judicial capacity, his
protection is absolute and no enquiry can be entertained against him even if the act
done was erroneously or illegally done.
Exercise of Power Believed in Good Faith to be Given by Law
A judge acting in good faith is entitled to the immunity provided by Section 77,
(BNS 15) even if the court has no jurisdiction to convict an accused. Moreover,
the Judicial Officers Protection Act, 1850 protects judicial acts from civil suits if
the act done was in good faith that the court had competent authority as well as
jurisdiction while doing that act.
Acts Done Pursuant to Judgment or Order of Court
According to Section 78 (BNS 16)of the General Exception, if any act is done by
any person in furtherance of a judgement or order of a Court of Justice, then he/she
shall be protected under this Section.
In a case of Kapur Chand v. State of Himachal Pradesh, a search warrant was
issued against a minor married girl by her mother for her recovery. The mother of
the girl obtained a search warrant under Section 100 of Cr. P. C. The magistrate
having recorded the statement of the girl directed her to be given to her husband.
Here, if the husband and his companions try to make her sit in a car, they would
not commit offence as they are fully protected under Section 78 of IPC.
The only difference between Section 77 and 78 is that the judicial acts may be
protected under Section 78 even if the authorised court has no jurisdiction but in
Section 77, the Judge must act within his jurisdiction to be protected by it.
Abstract
The mens rea or mental element of the crime is one of the integral elements of the
definition of any crime. But the doctrine of Strict liability is a departure from this
requirement of mens rea. It has given rise to many strict liability offences with the
changing time. With this in mind, this article examines the doctrine of strict
liability and its rise in two common law countries i.e. UK and USA. Arguments of
scholars and reasoning put forward by judges in favour and against the strict
liability offences are also discussed. Certain offences where courts are likely to tilt
towards strict liability doctrine i.e. absence of mens rea are also listed. Lastly the
development of strict liability offences, an examination of offences in the Indian
Penal Code, 1860 and enactment of certain special statutes by Parliament to
implicitly recognise the strict liability offences are discussed.
• Strict liability
Introduction
The fundamental principle of criminal liability is that there must be a wrongful
act- actus reus combined with a wrongful intention. In criminal law, mens rea is a
technical term, generally taken to mean some blameworthy mental condition, the
absence of which on any particular occasion negates the condition of crime. It is
one of the essential ingredients of criminal liability. Actus non facit reum nisi mens
sit rea, “the act itself does not make a man guilty unless his intentions were so” is a
doctrine as old as criminal itself. But there are certain offences where a defendant
can be convicted notwithstanding that he did not have any mens rea. These
offences are generally referred to as offences of strict liability. J. Herring gives a
very simple definition of strict liability offence as follows:
“A defendant is guilty of a strict liability offence if by a voluntary act he causes the
prohibited result or state of affairs and in this case, there is no need to prove that
the defendant had a particular state of mind.”
A strict-liability doctrine is a rule of criminal responsibility that authorizes the
conviction of a morally innocent person for violation of an offence, even though
the crime, by definition, requires proof of a mens rea. An example is the rule that a
person who is ignorant of, or who misunderstands the meaning of a criminal law
may be punished for violating it, even if her ignorance or mistake of law was
reasonable.
One must not confuse strict liability doctrine in criminal law with tort strict
liability. Difference between both is given below.
Difference between strict liability in Tort Law and Criminal Law
Rule of strict liability in tort was first laid down by the House of Lords in Rylands
v. Fletcher, where also it held that a person may be liable for harm even though he
was not negligent, or he had no intention to cause harm or he may have done some
positive efforts to avert the same. While remedy in tort is damages, in criminal law
the defendant is punished. Tort damages are understood as a form of taxation on
dangerous enterprise or imposed as a “cost of doing business”. This view of
sanction is compatible with the notion of liability without wrongdoing; one need
not do anything wrong to incur a tax or a business cost. But strict liability in
criminals cannot be imposed by analogous meaning. Being sentenced to jail or
even being censured by the court- cannot be thought of as a tax or doing business.
For convenience, the phrase “strict liability” used henceforth is to be understood in
a criminal sense.
To better understand the evolution of strict liability offence, we will consider its
position in two common law countries the United Kingdom and the United States
of America.
Strict liability offences in the United Kingdom (UK)
In Sweet vs. Parsley a teacher had rented her house. The tenants were caught
smoking cannabis within the premises, which was not permitted by law. The
teacher was found guilty by the trial court for the violation of the provisions of the
Dangerous Drugs Act, 1965 for mismanagement of the premises. The teacher
appealed on the ground for lack of knowledge about the activities of tenants and
argued that it was not foreseeable for her to anticipate such activities. The court
attempted to differentiate true crime with regulatory offence without any proper
categorization and acknowledged that strict liability was appropriate for regulatory
offence. The court added that generally, mens rea is essential for the offence to
which real stigma is attached. The court considered the instant case as ‘true crime’
and the accused was not held liable by the appellate court for lack of mens rea on
the ground that the stigma would cause her to lose her job.
In Harrow London BC v. Shah the defendant was convicted for selling a lottery
ticket to a person under the age of 16, even though he was not aware that the
purchaser was under 16 nor was it obvious that the person was underage.
Recent decisions in R v. K and B (a Minor) v. Director of Public Prosecutions
(DPP), the House of Lords have strengthened their position in favour of mens
rea and all the pre-decided cases have to be read in light of them. Hence courts are
required to read mens rea into a statute unless either:

1. There is a clear wording in the statute indicating that the offence is to be

one of the strict liability.
2. There is a ‘compellingly clear’ inference that the offence is to be one of the
strict liability.
Strict liability offences in the United States of America (USA)
In the USA creation of strict liability crimes began in 1920s and 1930s. Strict
liability crimes are mostly seen in the motor vehicle codes, hunting regulations,
and food and liquor laws of most of the states. This nullifies the defence taken by
the bartender that the person to whom he sold his liquor looked 22 when in fact the
person was only 17 or the driver of an overweight truck can’t argue that the
company for which he works had faulty scales.
In cases of federal criminal statutes, the U.S. supreme court has consistently
maintained a position that strict liability crimes are not preferred and that Congress
must make it clear if it wishes to eliminate the mens rea requirement from a
criminal statute.
In Staples v. United States the court held that in a prosecution under the National
Firearms Act, which requires registration of automatic weapons that meet the
definition of “firearms” under the act, the prosecution must prove that the accused
knew the weapons he possessed constituted a firearm under the act. As a matter of
fact, the defendant had owned an automatic rifle, which qualified as a firearm that
must be registered under the act. The main argument of the prosecution was that
the statute stated simply that it was a crime to possess or receive a firearm that was
not registered, the prosecution was not required to prove that the defendant knew
the weapon in his possession qualified as a firearm under the Act. The Court
reasoned that the act – possession of rifle was not clearly dangerous, the statute
should be construed as a requiring that the defendant knew the weapon in his
possession was the one that must be registered, which is different from the case
involving firearms like grenades, as any person would know that a grenade is
inherently dangerous.
In United States v. Zhou, A had accessed celebrities health records after he had
been terminated from employment, hence he was not authorised to access those
records. He was convicted under the statute which made it a crime for a person
“who knowingly and in violation of statute accesses patient health information”.
He was convicted and he appealed contending that neither there was evidence that
he intended to use or sell the records in any manner, nor prosecution had proved
that he knew that his actions violated the statute. But the court rejected his
arguments holding that the only knowledge required under the statute was
knowledge that the defendant was obtaining an individual record.
Major application of strict liability crimes in the UPA is in the laws that seek to
protect the children. Age of the minor is an essential element in the crimes such as
sexual intercourse with a child, violation of liquor law or child pornography laws
and giving or selling a minor a pistol, drugs, cigarettes, and so on. As these laws
seek to protect children, many states have taken away the defence of “mistake of
age”. Here defendants can’t argue that they made an honest mistake about the age
of the child. Hence the State is only required to prove that defendants committed
the forbidden act. In State v. Jabowski defence of honest but mistaken belief as to
the age of the victim in statutory rape charge (even though the victim
misrepresented her age) was not available and in State v. Fan, employing minors
for nude dancing was enough for conviction and mistaken belief as to the age of
the child was not available.
In certain cases, the mistake of fact can serve as a defence to criminal liability,
but in strict liability crimes, this defence of mistake is not allowed as liability
depends on the doing of a forbidden act without any requirement for the state
or government to prove any mental fault. In United States v. Feola, in
assaulting a federal officer, the defendant was not allowed to use the honest
but mistaken belief that he did not know the victim was a federal officer.
When will a court not presume mens rea
In the following circumstances, the court is likely to thwart the requirement
of mens rea and apply the doctrine of strict liability.

1. If some sections of a statute refer explicitly to a mens rea requirement and

others do not, that may indicate that those sections which do not are meant
to be taken to be strict liability. However, this will not be a conclusive
factor.
2. The court will not only examine the statute in question, but also other
statutes which cover analogues offences, in an attempt to ascertain the will
of parliament. Sometimes the court may also examine the legislative
history of the statute, statements of members of legislatures while debating
the law (before it became law and was a bill) and reports of the committees
to ascertain the mens rea requirement.
3. The court will consider the social context of the offence. If it is not
intended to be ‘truly criminal’ and more in the nature of a regulatory
offence then that may be a factor indicating that the offence is to be one of
strict liability. Court will consider the following factors in deciding a ‘truly
criminal’ offence.
4. The severity of punishment and the level of stigma attached to conviction
for that offence.
5. Whether the offence is aimed at preventing a very serious danger. When an
activity involves a potentially grave social harm, it is more likely to be an
offence of strict liability.
6. Whether rendering the offence one of strict liability will assist in
discouraging the activity. In Barnfather v. Islington London court held that
just because strict liability will make it easier to prove and enforce will not
itself be sufficient argument, but if it persuades potential defendants to
change their behaviours then that would be an argument in favour of strict
liability.
 7. Whether offence applies generally to members of the public at large or to
those who engage in a particular kind of activity. It is less likely to be one
of strict liability if the offence is addressed to members of the public at
large.
Arguments in favour strict liability offences

1. Special governmental purpose- Protection of the public:

2. It is based on protectionism or ‘social defence’ as one of the primary aims

of the criminal law is the protection of fundamental social interests. Certain
areas like sale of food, medical drugs and alcohol pose a risk to others,
hence companies or a person which is about to engage in a potentially
dangerous activity, through strict liability, we cannot just make it to take
reasonable steps to prevent harm, but to do everything that it possibly can
do. Imposition of strict liability and not negligence, may courage the
company to pull out every step to prevent pollution.
3. The offence is civil in nature and no proof of culpability is needed:
Here, the offence is merely a civil offence, and fine is imposed regardless of
culpability, proven or presumed, in order to stimulate more careful behaviour in
the future. It would follow that the matter should altogether be taken out of the
criminal court and treated as an administrative matter, analogous to the imposition
of penalties for the late submission of income tax returns.
4. The offence is criminal but the occurrence of result generates a convincing
presumption of culpability:
Here, the element of liability need not be proven at all at trial. The occurrence of
the objective event, namely marketing of impure drugs or food, raises a
presumption of culpable neglect by the supervisory personnel.
5. Wrongdoer runs the risk of their conduct turning out worse than they expected.
This can be understood from one example, if a man makes a malicious assault on
another, and the victim turns out to be a public officer, the wrongdoer should be
held accountable for the aggravated offence of assaulting a police officer.
Arguments against strict liability offences
Some scholars argue that there is no evidence that the strict liability crimes are
more effective than negligence-based offences in preventing harmful activities and
it will be unjust to convict defendants who have acted in an entirely reasonable
way but unpredictably caused harm. To convict such defendants will weaken the
stigma that attaches to a criminal conviction and endangers the distinction between
criminal and civil law. This will also have the effect of discouraging people from
engaging in socially beneficial commercial activities. But after considering both
the arguments, arguments in favour of imposing strict liability in certain offences is
more stronger.
Position of strict liability offences in India
One of the reasons why strict liability doctrine is not as developed in India as it is
in the UK is, in Britain, criminal law is not contained in single code promulgated
by the legislative body, but it is a conglomerate mass of rules based upon the
ancient common law of England modified and extended by the authoritative
decisions of the judges in the long passage of history, and vastly enlarged by the
addition of statutory enactments made by parliament from time to time. On the
contrary penal laws in India are exhaustively codified leaving no scope for the
judiciary to go beyond statutes.
If we examine the Indian Penal Code, 1860 (hereinafter IPC) then, chapter IV
(general exception) mainly deals with matters of the existence of which negate the
existence of such an intent. The definition of offences generally contains reference
to evil intent so as to exclude all acts where such an intent is not present. Even
where the definition is silent regarding intent, it has been held that on general
principles an evil intent must be imported into the definitions of all strictly criminal
offences.
The general doctrine of mens rea is not of very great importance where, as in India,
the law is codified and offences are carefully defined so as to include the mens
rea in the definition itself. The definitions in the Indian penal code along with the
chapter of general exceptions are perhaps sufficient to exclude all cases to which
a mens rea cannot be attributed. IPC defies offences with great care and precision
and the chapter in general exceptions is very comprehensive.
If definitions of offences are analysed in IPC, they generally comprise the
following principal elements:

1. A human being,
2. An intention on the part of such a human being to cause a certain
consequence considered injurious to individuals or to society, which for the
sake of brevity can be called an evil intent,
3. The act willed,
 4. The resultant evil consequence.
As to (b)-the evil intent- it is indicted generally by the use of such words as
intentionally, voluntarily, fraudulently, dishonestly, malignantly, wantonly,
maliciously etc.
But there are a few cases where the words indicating intention are not used in
defining an offence. But these are either cases where the acts with their
consequence are so harmful to the state or society that it has been deemed just and
expedient to punish them irrespective of any intention to cause those
consequences, or cases where the acts themselves are of such a character that they
raise a violent presumption that whoever willed the act must have intended the
consequences. Section 121 (Waging, or attempting to wage war, or abetting
waging of war, against the Government of India), 124A (Sedition), 359-363
(Kidnapping and Abduction) are examples of former. While Section 232
(Counterfeiting Indian coin) is an example of later.
Analysis of IPC crimes suggest that these crimes are traditional common law
offences that deal with offences against the person, property, state and public
morals. All these offences consist of specific acts of aggression that have been
recognised as crimes per se or mala in se as opposed to mala prohibita. The
distinction between an act that is malum in se and act that is malum in
prohibitum has been fully recognised in America where crimes have been defined
according to their nature into crimes mala in se and crimes mala prohibita.
Analysis of Indian Judgements
In J. K. Industries Ltd. vs. Chief Inspector of Factories and Boilers, the Supreme
Court observed,
“The offences under the Act (the Factory Act 1948) are not a part of general penal
law but arise from the breach of a duty provided in a special beneficial social
defence legislation, which creates absolute or strict liability without proof of
any mens rea. The offences are strict statutory offences for which establishment
of mens rea is not an essential ingredient. The omission or commission of the
statutory breach is itself the offence. Similar type of offences based on the
principle of strict liability, which means liability without fault or mens rea, exist[s]
in many statutes relating to economic crimes as well as in laws concerning the
industry, food adulteration, prevention of pollution etc…”
The finding of this case was approved in the recent decision of Hemant
Madhusudan Nerurkar vs. State of Jharkhand.
In Union of India vs. M/s Ganesh the court recognized three exceptions of mens
rea liability i.e. all cases of public nuisance; acts not criminal in the real sense but
prohibited in the public interest; and civil rights enforced through criminal law.
The very strong public interest clubbed with a comparatively moderate penalty
justifies extending criminal responsibility to cases where there is no mens rea.
Indian Courts have held that mens rea is an integral part of the definition of crime,
hence whenever there is no specific mention of it, courts presume its requirement
unless a statute expressly or by necessary implication exclude mens rea.
Indian courts have justified the non-requirement of mens rea on the grounds that
many of the Acts impose only payment of fines as punishment or even if
imprisonment is provided, very rarely do courts award it and conviction under
public welfare offences does not attach to itself the same kind of social stigma and
damage to reputation that conviction under IPC would attract.
General trend is seen that modern legislative bodies often choose not to create
“true” crimes, especially in the areas of traffic, liquor, purity of food, hunting, and
narcotic offences, but rather to enact statutes that do not require any proof of mens
rea, as it is legislature’s interest in promoting public safety that justifies strict
regulation of acts that threaten that public safety. India also seems to follow that
path. Professor Jerome Hall has rightly preferred to call strict liability offences as
offences relating to ‘economic law’ or ‘administrative regulations’, instead of
penal offences.

Corporate Criminal Liability in India

Introduction
A company can only act through human beings and a human being who commits
an offence on account of or for the benefit of a company will be responsible for
that offence himself. The importance of incorporation is that it makes the company
itself liable in certain circumstances, as well as the human beings- Glanville
Williams
Section 11 of Indian Penal Code, 1860 (the Code) define person. It reads “the
word person includes any Company or Association or a body of persons, whether
incorporated or not.” Further section 2 of the Code provides that “Every person
shall be liable to punishment under this Code.” Thus, section 2 of the Code
without any exception to body corporate, provides for punishment of every person
which obviously includes a Company. Therefore, by reading of these two provision
concept of corporate criminal liability can be derived, though it is not the sole
legislation which provides for the punishment of corporate body, Companies Act,
2013, Income Tax Act, etc.
Corporations have now became an integral part of our society, and with
development of corporations they have become significant actor in our economy,
our society runs in the risk of getting victimized by these corporation, and
therefore they should be deterred too. Imposition of punishment, upon offenders of
any kind, can be understood by various rationale of criminal law jurisprudence, but
deterrence is the rationale that is applicable to such economic entities as
corporations.[1] Corporations have their own identity, they have separate legal
personality and they are different from their members[2], and this is sufficient to
makes it possible to held them liable and censure them.[3]

Criminal Liability is the quality or state of being legally obligated or accountable;

legally responsible to another or to society which is enforceable by criminal
punishment.[4] And therefore, Corporate Criminal Liability means the extent to
which a Corporation as a legal person can be held criminally liable for its acts and
omissions and for those of the natural persons employed by it. This paper is
intended to examine various nuances related to corporate criminal liability, and at
the end to provide various recommendation which should be incorporated in in
legislations.
Twin Model of Corporate Criminal Liability
A. Derivative Model
This model is individual centred model. It derives to attach the liability to the
corporation only because an individual connected to the corporation incurred some
liability for which the individual is to be punished, but since it is connected to the
corporation the liability is put on the corporation to having that individual with it
and letting it incurred some liability.[5] Derivative model can be understood in two
sub-categorises: a) Vicarious Liability; b) Identification Doctrine.

1. Vicarious Liability
The concept of vicarious liability is based on two latin maxims- first, qui facit per
alium facit per se, it means that he who acts through another shall deemed to have
acted on his own, and second, respondeat superior which means let the master
answer. In Bartonshill Coal Co. v. McGuire[6], Lord Chelmsford LC said: ‘every
act which is done by an employee in the course of his duty is regarded as done by
his employer’s orders, and consequently is the same as if it were his employer’s
own act.’
Vicarious liability generally applies to civil liability but Massachusetts court
in Commonwealth v. Beneficial Finance CO.[7], held three corporations criminally
liable for a conspiracy to bribe, the first company, for the acts of its employee, the
second, for the act of its Director, and the third, for the acts of the Vice-President
of a wholly owned subsidiary. The Court seemed to believe that corporate criminal
liability was necessary since, a corporation is a legal fiction comprising only of
individuals. US courts are not the only courts which have incorporated the concept
of vicarious liability in the cases of criminal liability, but now this model has been
rejected considering it to be unjust to condemn one person for the wrongful
conduct of another.[8]

1.
Identification Doctrine
This doctrine is an English law doctrine which tries to identify certain key persons
of a corporation who acts in its behalf, and whose conduct and state of mind can be
attributed to that of the corporation. In case of Salomon v. Salomon & Co.
[9] House of Lords held that corporate entity is separate from the persons who acts
on its behalf. The Courts in England had in various judgments like DPP v. Kent &
Sussex Contractors Ltd.,[10] R v. ICR Haulage Ltd.,[11] ruled that the corporate
entities could be subjected to criminal liability and the companies were held liable
for crimes requiring intent. Judgment like these led to the promulgation of
‘identification doctrine’.
As to the liability of these key persons who act on behalf of company, it was held
in Moore v. Brisler[12] that the persons who are identified with the corporations
must be acting within the scope of their employment or authority. The conduct
must occur within an assigned area of operation even though particulars may be
unauthorised. It will be wise to infer that identification doctrine is narrower in
scope than the vicarious liability doctrine, instead of holding corporation liable for
act of any employee, identification doctrine narrows it down to certain persons.[13]
B. Organizational Model
Unlike derivative model which focuses on individual, organizational model takes
corporation into consideration. Offences require mental state (mens rea) to commit
a crime along with physical act (actus reus), but the problem that arises while
holding corporations criminally liable is how a corporation which is juristic person
could possess requisite mental state to commit a crime.
Derivative model was one way to attribute mental state to corporation. Other way
could be by proving that there existed an environment in the corporation which
directed, tolerated, led-on, and even encouraged the non-compliance of specific
law which made it offence.[14] Moreover, physical act that too is required to
complete the requirement of commission of an offence can be derived rather be
proved from the act of its employees, officers, directors, etc. Thus, culture of a
corporation is to be seen while determining its criminal liability.
Corporate culture may help for commission of an offence requiring mental state
by- firstly, providing the environment or necessary encouragement that it was
believed by the offender working in the corporation that it was perfectly alright to
commit that offence, or corporation has psychologically supported the commission
of offence; secondly, it is quite possible that the corporation created an
environment which led to commission of crime. Both ways it was the corporation
and its working culture that let the offence committed.
III. Deadlocks of Corporate Criminal Liability
A. Imprisonment
As has been discussed above that a company is recognized as a juristic person, and
being a person it has to face the punishment that has been provided by the various
acts. There are various provisions in Companies Act, 2013 itself which hold a
company liable for its wrongdoing. However, there are provisions which provides
mandatory imprisonment for a person including company, such as Section 447 of
Companies Act, 2013 Act, Section 420 of The IPC, 276B of The Income Tax Act
etc.
The Courts found themselves in dead end in these kind of situations where a
company is charged under sections which provides for necessary imprisonment, as
the company being a legal person cannot be imprisoned for its criminal acts, it can
only be punished with fine and not otherwise. The Supreme Court has to face
similar difficulty in case of M.V. Javali vs. Mahajan Borewell & Co. and
Others[15], The Company was found guilty under Section 276B read with 278B of
The Income Tax Act, which gives mandatory punishment of at least 3 months, but
the Court found itself in a fix about how to imprison a company. J. Mukhrjee said
that, “Even though in view of the above provisions of Section 278B, a company can
be prosecuted and punished for an offence committed under Section 276B the
sentence of imprisonment which has got to be imposed there under cannot be
imposed, it being a juristic person and we are of the opinion that the only
harmonious construction that can be given to Section 276B is that the mandatory
sentence of imprisonment and fine is to be imposed where it can be imposed
namely on persons coming under categories (ii) and (iii) above, but where it
cannot be imposed, namely on a company, fine will be the only punishment.”
Therefore, the solution as of now is that a person is juristic person then punishment
relating to imprisonment would not apply to it instead he will be liable for fine.
The court can do one thing though, if it cannot imprison a corporate body but it can
charge greater amount of fine in such cases in comparison to what it charges to the
person who are capable of being imprisoned for the same offence.
B. Mens rea
Another problem faced by the Judges was how to try a company for the offences
where mens rea was an essential. How can a juristic person have a mental element
to commit a crime? The trend was such that the company was only tried for cases
where mens rea was not an essential and it was accepted that it cannot be tried for
offences where mens rea is required.
In the case of Motorola Inc. vs. Union of India[16] the Bombay High Court
quashed a proceeding against a corporation for alleged cheating, as it came to the
conclusion that it was impossible for a corporation to form the requisite mens rea,
which was the essential ingredient of the offense. Thus, the corporation could not
be prosecuted under section 420 of the IPC, but this idea of company not
possessing mens rea came to an end Lord Denning’s view in the case of H.R.
Bolton (engg.) Co. Ltd. vs. T.J. Graham[17] was accepted that “A company may in
many ways be likened to a human body. They have a brain and a nerve centre,
which controls what they do. They also have hands, which hold the tools and act in
accordance with directions from the centre. Some of the people in the company are
mere servants and agents who are nothing more than hands to do the work and
cannot be said to represent the mind or will. Others are directors and managers
who represent the directing mind and will of the company and control what they
do. The state of mind of these managers is state of mind of company and it treated
by law as such. So you will find that in case where the law requires personal fault
as a condition of liability in tort, the fault of the manager will be the personal fault
of company.”
The concept of alter ego was evolved subsequently in India to tackle with the
problem. The alter ego doctrine revolves around the concept of personification of
the legal body. The Corporation is considered to be the alter ego of the individual.
Therefore, the corporation can be rendered liable for the criminal act of the
individual done in his scope of work. Mens rea of the individual is considered to
be the mens rea of the corporation itself. In the case of The Assistant
Commissioner, Assessment-II, Bangalore & Ors. vs. M/s. Velliappa Textiles Ltd. &
Anr[18], the Supreme Court has held that, “Though, initially, it was supposed that
Corporation could not be held liable criminally for offences where mens rea was
requisite, the current judicial thinking appears to be that the mens rea of the
person in-charge of the affairs of the Corporation, the alter ego, is liable to be
extrapolated to the Corporation, enabling even an artificial person to be
prosecuted for such an offence.”
Thus, this doctrine of alter ego allowed the courts to frame corporate houses for the
offences which had mens rea as an essential ingredient, and it is now less tiresome
for the court to hold a corporation criminally liable.
Recommendation and Conclusion
The 47th law commission report has recommended various solutions to deal with
such problem:

1. Some discretion is to be given to judges to impose penalties as they deem

fit for the case.
2. Para 8(3) of the47th law commission report recommended that, “in every
case in which the offence is punishable with imprisonment only or with
imprisonment and fine, and the offender is the corporation, it shall be
competent to the court to sentence such offender to fine only.”

 In every case in which the offence is punishable with imprisonment and any
other punishment not being fine and the offender is a corporation, it shall
be competent to the court to sentence such offender to fine.

Joint liability under IPC

Introduction
A person who genuinely commits a crime is usually held legally accountable for
their actions and punished accordingly. The criminal responsibility concept states
that the individual who commits an offence is liable and may alone be declared
guilty. However, Sections 34(BNS 3(5)) and 149 (BNS 190) of the Indian Penal Code,
1860, create an exception to the norm, placing criminal culpability on the culprit
and their associates who collaborated in the commission of the crime in support of
a common intention or prosecution of a common aim. Each of them becomes
jointly accountable in such a scenario. The Supreme Court of India had viewed the
same in the notable case of Ramesh Singh alias Photti v. State of Andhra
Pradesh (2004). This article provides a detailed analysis of the concept of joint
liability under the Indian Penal Code, 1860.
Scope of joint liability under Section 34 BNS (3(5)) of the BNS 2023 ,Section 34 ,
BNS (3(5)) of the Indian Penal Code, 1860 lays down the provision for joint
liability in cases where different persons share a common intention. Section 34
, BNS (3(5)) reads as, “acts done by several persons in furtherance of common
intention”. In order to understand the term ‘act’ in this context, a look into its
preceding section needs to be made. Section 33 , BNS (2(1))defines the term
‘act’ and ‘omission’.
Relation between Sections 33 BNS (2(1)) and 34 BNS (2(25))
Sections 33 , BNS (2(1)) and 34 , BNS (3(5)) make it clear that the word
“criminal act” refers to more than a single act and encompasses a sequence of acts
carried out in rapid succession and intertwined in such a way that they cannot be
distinguished from one another, with various motives imputed to successive acts.
When seen in this light, it is evident that the sections are meant to address
situations in which it is impossible to discern between the unlawful conduct of
individual members of a group who all act in support of a common goal. The
Supreme Court of India while deciding in the case of Shri Ganesh v. State of
Mysore (1958), had observed that Section 34 BNS (3(5)) codifies the common-
sense notion that if two or more people do anything together, it is the same as if
they did it separately. Therefore, the three main elements that constitute Section 34
are as follows:

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

2. The unlawful conduct must serve to enhance everyone’s shared intention.
3. All people must take part in achieving the shared intention.
These three elements guide a court in assessing whether or not the person accused
in front of it is jointly accountable with others. While the first two aspects
pertaining to the activities that are attributable to the accused and must be shown as
such, the third element refers to the consequences of such actions. The Apex
Court’s view in the case of Shyamal Ghosh v. State of West Bengal (2012) stated
that once the criminal conduct and common purpose have been established, the
rule of constructive culpability enshrined in Section 34 of the Indian Penal Code ,
BNS 3 (5) kicks in. It must be proven that a person has done something with others
before he may be held accountable to others. Every member of the group charged
with Section 34 assistance is required to take part in the criminal conduct.
Barendra Kumar Ghosh v. King Emperor (1925)
The case of Barendra Kumar Ghosh v. King Emperor (1925) was one of the early
cases where the scope of Section 34 (BNS 3(5))of the Indian Penal Code, 1860 was
taken into consideration by Lord Sumner of the Privy Council. In this case, the
accused had appeared before the Privy Council after his conviction for murder
under Section 302 BNS (103)read with Section 34 BNS (3(5)) of the 1860 Code
was upheld by the Calcutta High Court. The appeal was dismissed as the Privy
Council made the following observation.
Section 34 BNS (3(5)) deals with the commission of separate acts, similar or
diverse, by several persons; if all are done in furtherance of a common intention,
each person is liable for the result of all as if he had done them himself; for ‘the
act’ and ‘that act’ in the latter part of the section must include the entire action
covered by a criminal act ‘in the first part’ because they refer to it. In other terms, a
‘criminal act’ is a collection of criminal acts that culminate in something that an
individual would be responsible for, if it were all done by himself, i.e., a criminal
offence.
Common intention in light of the Indian judiciary
The Supreme Court of India while deciding on the case of Goudappa v. State of
Karnataka (2013) had observed that it is a common sense premise that if numerous
people are accused of committing criminal conduct, all such individuals are likely
to have actively provided encouragement, assistance, protection, and support, as
well as actively participated or otherwise engaged in the illegal act itself. Thus,
even though a specific act was performed by an individual, if there was a common
intention and they all participated in support of that intention, they are all held
accountable for the offence committed.
The top court’s view in the 1977 case of Ashok Kumar v. State of Punjab was that
the purposeful joint criminal act by multiple individuals in furtherance of a
common intention is the essence of joint culpability under Section 34. BNS (3(5))
Thus, the essential is the simultaneous agreement of the minds of all involved in
the unlawful conduct to achieve a certain objective.
While delivering the judgment in the case of State of Uttar Pradesh v. Rohan
Singh (1994), the Supreme Court had noted that the terms “common intention” and
“same or similar intention” are not interchangeable. Not only will responsibility
alter depending on the nature of the purpose, but so will the character of the
conviction and punishment to be handed down. Only when the accused have a
“shared intention”, not whether they have a “similar intention”, may Section 34
BNS (3(5)) be employed.
The decision made by the Apex Court in the 2011 case of Nand Kishore v. State of
Madhya Pradesh made it clear that mens rea, as defined in criminal law, is distinct
from common intention. Although the common intention may be incidental or
ancillary to mens rea, both are different from each other.
Joint liability and free fight : an established relation
One of the most challenging parts of joint liability law is determining the liability
of various members of a group of persons separated into mutually antagonistic or
hostile groupings, especially when there is a free fight between them. This is
because, in addition to determining the exact involvement of each individual
member of the attacking party, the court must also determine if common intention
can be proved. The concept of joint liability in the context of the free fight can be
understood with reference to the case of Balaur Singh And Others Etc. Etc. vs State
Of Punjab And Others (1995). Although the trial court as well as the high court in
this case concluded that there was a free fight and therefore each and every
individual will be held responsible and guilty of the act committed, the Supreme
Court differed from this conclusion. The Court held that in a free fight, the victims
and assailants, who are themselves participants or expected participants in the
cross assault on each other, it will be difficult to attribute to one of the defendants
the intent to cause injuries severe enough to result in death. As a result, the
conviction was changed from Section 302 to Section 304 (II), and the punishment
was reduced from life to seven years of imprisonment.
Section 34(BNSP 3(5)) vis a vis Section 149 )(BNS 190)of the Indian Penal Code,
1860
Common intention under Section 34 is the foundation of culpability, whereas a
common object is the basis of liability in Section 149 BNS 190. Section 34 BNS
(3(5)) does not define common intention and is thus unrestricted, but the common
object is specified in Section 149 BNS 190 and is confined to the five unlawful
objects listed in Section 141 (189(1))of the Code. Acts under Section 34 BNS
(3(5))must be carried out with a single purpose, but criminal acts under Section
149 BNS 190 must be carried out with a common object. Section 34 BNS
(3(5))requires active engagement, no matter how minor or inconsequential but
Section 149 BNS 190, however, simply being a member of an unlawful assembly
is enough to bring criminal charges.
The consequence of incorrectly prosecuting a person under Section 149 IPC BNS
190 and afterwards substituting Section 34 BNS (3(5)) does not fatally impair the
prosecution case, since the replacement must be regarded to be a formal issue and
does not fundamentally affect the prosecution case unless prejudice is given to the
accused. This was held in Amar Singh v. State of Haryana (1973), where the
conviction for an offence under Section 302 BNS 103 read with Section 34, BNS
(3(5)) despite the fact that the accused was charged under Section 302 BNS 103
read with Section 149 BNS 190, was not illegal because the facts proved and
evidence adduced would have been the same if the accused had been charged
under Section 302 BNS 103read with Section 34 BNS (3(5)) of the Indian Penal
Code, 1860.
Landmark judgments
Courts have time and again interpreted the legislative intent behind Section 34 of
the Indian Penal Code, 1860, in order to break down the provision in simple terms.
A list of three cases in recent times has been discussed hereunder, focusing
specifically on the ratio decidendi of the same.

Chhota Ahirwar v. the State of Madhya Pradesh (2011)

A bench of Justices Indira Banerjee and S. Ravindra Bhat of the Supreme Court of
India while discussing the case of Chhota Ahirwar v. The State of Madhya
Pradesh (2011), made the following observations:

1. Only the individual who really commits the crime can be found guilty and
sentenced in line with the law, according to established criminal law
principles. Section 34 BNS (3(5)) is the only provision that establishes a
principle of shared accountability in criminal conduct, the core of which is
found in the presence of a common intention, inciting the primary accused
to do the criminal act in pursuit of that goal.
2. Even when different acts are performed by two or more people in the
service of a shared goal, each individual is responsible for the outcome of
all the acts as if they were all performed by all of these people. Section 34
is only a rule of evidence that applies the idea of shared criminal
culpability, but it does not constitute a separate, substantive offence.
3. Acting in cooperation is what common intention entails. The existence of a
planned plot must be shown either by the accused’s actions, circumstances,
or any other damning information. It is insufficient to share the same
intention independently of one another.
Nagendran (M.25/16) v. State (2018)
Section 34 BNS (3(5)) of the IPC is not a substantive or separate offence. It is a
rule of evidence that establishes vicarious, constructive, and joint culpability and
so establishes the norm for criminal conduct committed by a group of people. It
establishes a legal exception to the general rule. This has been observed by the
Madras High Court in the well-known case of Nagendran (M.25/16) vs
State (2018).
The Court went further to state that the presence of the element of involvement in
the crime, rather than a specific overt act, is needed of an accused to draw Section
34. BNS (3(5)) This type of engagement might be construed as facilitation, help,
or assistance. The presence of an accused is essential in an act involving bodily
harm or violence to attract Section 34 IPC BNS (3(5)). It would be sufficient to
simply be present, even if there was no physical activity. To put it another way,
such a presence would imply active engagement. As a result, depending on the
circumstances, involvement might be active or passive. The behaviour during the
course of the action or at the moment of the last act might be used to determine the
previous concert. Even if it is feasible to believe in the reality of a meeting of
minds on the spur of the moment, it should be shown. Evidence must be seen as a
whole in order to attract Section 34 BNS (3(5)) and thus there is no requirement for
first-hand evidence.
Asif Khan v. State of Maharashtra & Anr. (2019)
A bench of Justices K Joseph and A Bhushan had laid down the purpose behind
invoking Section 34 BNS (3(5)) of the Indian Penal Code, 1860 while deciding on
the case of Asif Khan v. State of Maharashtra & Anr. (2019).
The Court clarified that Section 34 does not say “the common intentions of
all” nor does it say “an intention common to all ”. The heart of the culpability,
according to the provision, is found in the existence of a common intention
energising the accused, which leads to the commission of a criminal act in pursuit
of that intention. To successfully invoke Section 34 BNS (3(5)), it must be
demonstrated that the criminal act complained of was committed by one of the
accused persons in furtherance of the common intention of all; if this is
demonstrated, liability for the crime may be imposed on any one of the accused
persons in the same manner as if the act had been committed by him alone.
This being the case, it was clear to the Court that common intention within the
meaning of the aforementioned section implies a pre-arranged plan, and that in
order to convict the accused of an offence under the section, it must be proven that
the criminal act was committed in concert pursuant to the pre-arranged plan. As
has frequently been stated, obtaining direct evidence to show an individual’s
purpose is difficult, if not impossible; in most situations, it must be inferred from
his act or behaviour or other pertinent circumstances of the case.
General principles of criminal liability: mens rea and actus reus, mens rea in
statutory offences, Joint And Constructive Liability
Maintenance of peace and order is essential in any society for human beings to live
peacefully and without fear of injury to their lives, limbs and property. This is
possible only in States where the penal law is effective and strong enough to deal
with the violators of law. In fact, the identity of a State depends on how effective it
discharges its primary function of keeping peace in the land by maintaining law
and order. People in a State can afford to be without a highly developed system of
constitutional law, or property law, but they could ill afford to remain without a
system of penal law.

This (Penal) is the law on which men place their ultimate reliance for protection
against all the deepest injuries that human conduct can inflict on individuals and
institutions. By the same token, penal law governs the strongest force that we
permit official agencies to bring to bear on individuals. Its promise as an
instrument of safety is matched only by its power to destroy (Professor Wechsler).

Criminal law is a branch of public law. It authorizes the infliction of State

punishment. In the criminal proceedings, State is a party as crime is not only a
wrong against the individual but also against the whole society. Criminal law is
confined within very narrow limits, and can be applied only to definite overt acts
or omissions capable of being distinctly proved, which acts or omissions inflict
definite evils. Crime is what the State has, by an act of the Legislature, definitely
declared as punishable. In other words, there is no such thing as crime apart from
legislative recognition thereof.

The criminal law of India is codified in the Penal Code, 1860, and in the Criminal
Procedure Code, 1973. Whereas the Penal Code is the substantive law, the
Criminal Procedure Code is the adjective or procedural law. The provisions of the
Penal Code does not affect the provisions of any special or local law.

Though by virtue of Sec. 2 of the Penal Code every person is liable to punishment
under the Penal Code, the criminal courts have no jurisdiction to try certain
persons even if they have transgressed the provisions of the Code, viz. President
and Governors, Foreign Sovereigns, Ambassadors, Diplomatic agents, Alien
enemies, Foreign army and Warships. The word person includes a company or
association. Thus, a corporation is liable to punishment under the Code. In criminal
law, the principal or master can be held responsible for the acts of his agents or
servants only where it is proved that he had instigated or otherwise abetted the acts
of the person who actually committed the crime.

Concept and Definition of Crime

Since the dawn of human civilization, crime has been a baffling problem. There is
hardly any society which is without the problem of crime. Violation of norms and
rules do occur in a society. Durkheim in his book Crime as a Natural
Phenomenon said:
A society composed of persons with angelic qualities would not be free from
violations of the norms of that society.

The concept of crime is essentially concerned with the social order. A sense of
mutual respect and trust for the rights of others regulates the conduct of the
members of society inter se. Although most people believe in peace and harmony,
yet there are a few who deviate from this normal behavioural pattern. This imposes
an obligation on the State to maintain normalcy in society, which it performs
through the instrumentality of law.

The Penal Code nowhere defines what a crime is. A crime can be said to be an act
of commission or omission, contrary to law, tending to the prejudice of a
community, for which punishment can be inflicted as the result of judicial
proceedings taken in the name of the State. When a person commits a wrong, he is
said to be liable for it. Criminal liability arises when a person commits an act
which is criminal in nature. A criminal offence is only committed when an act,
which is forbidden by law, is done voluntarily. It is only voluntary acts which
amount to offences.
Actus Reas and Mens Rea
In law, crime consists of two elements - actus reus and mens rea. The former
represents the physical aspect of crime and latter represents its mental aspects.

Actus reus has been defined as such result of human conduct as the law seeks to
prevent. An act may be positive or negative (omission). Mens rea is a loose term of
elastic signification and covers a wide range of mental states and conditions, the
existence of which would give a criminal hue to actual reusThere might be actus
without mens rea. Thus, for example, if an infant of 2 years while playing with a
loaded pistol lets it go and kills another person, there is actus reus without mens
rea. There might also be mens rea without actus reus. In ethics or religion an evil
deed may be committed in mind and might constitute a wrong, even though it has
not manifested itself in physical conduct.

It may further be noted that mens rea as such is not punishable. Thus if A has
intention to kill B, A cannot be brought to the court on that ground; some act has to
be done by A e.g., if A is discovered with a loaded gun in the compound of B, then
A has done some act and he may be guilty. There are some exceptions to the
general rule that intention as such is no crime, e.g. intention to commit some
treason (crime against State) or conspiracy to commit a crime.

However, sometimes an act alone is sufficient to constitute a crime without the

existence of mens rea. The guilty intent is not necessarily that of intending the very
act or thing done or prohibited by law, but it must at least be the intention to do
something wrong. Criminal intention is the purposive ness or design of
committing an act forbidden by criminal law without just cause or excuse. An
act is intentional when it is the outcome of the determination of the persons will
and is foreseen and desired by the person.

Thus, mens rea requires both a will direct to a certain act and knowledge as to the
consequences that will follow from a particular act.

English jurists give the name of mens rea to the volition which is the motive force
behind the criminal act. Sometimes it is used to refer to a foresight of the
consequences of the act and at other times to the act per se irrespective of its
consequences.

In some cases it stands for a criminal intention of the deepest dye, such as is visible
in a designed and premeditated murder committed with a full foresight of its fatal
consequences. In other cases it connotes mental conditions of a weaker shade such
as are indicated by words like knowledge, belief, criminal negligence or even
rashness in disregard of consequences.

Thus, the mental elements of different crimes differ widely. Mens rea means in the
case of murder, malice aforethought; in theft an intention to steal; and in rape, an
intention to have forcible connection with a woman without her consent. In some
cases, it denotes mere inattention e.g. in case of manslaughter by negligence.

How to establish mens rea - It is difficult to give a portrait of the accusers

mind or intention at the given moment as intention is an abstract idea, it is
difficult to establish it and the help is taken of surrounding facts or factors:

i. Previous relation between the accused and the victim, any object of hostility
between them.
ii. Existence of instigation i.e. whether accused was hired and what prompted
him to commit crime.
iii. Whether the accused had something to gain out of the whole affair.

Thus, guilty intention is always preceded by a motive or real causal factors.

Actus non facit reum, nisi mens sit rea

The fundamental principle of penal liability is actus non facit reum, nisi mens sit
rea, i.e., the act itself is not criminal unless accompanied by a guilty mind.
It may be noted that mens rea must extend to all the three parts of an act, viz.

i. The physical doing or not doing,

ii. The circumstances, and
iii. The consequences. If the mens rea does not extend to any part of the act,
there will be no guilty mind behind the act.

Thus, there are basically three factors of proving criminal liability:

1. Origin in some mental or bodily activity,

 2. Its circumstances, and
3. Its consequences.

Criminal liability has to be established by the proof of some act which is dangerous
from the legal point of view and at the same time, the proof of actual damage
which is commonly necessary in cases of civil liability is not required. Criminal
liability is mainly penal (i.e. punishment is a predominant feature of criminal
proceedings).

As far as measure of criminal liability is concerned, three factors are taken into
account in determining the appropriate measure of punishment-

i. Motive behind the crime,

ii. Magnitude of offence, and
iii. Character of offender

As intention is an abstract idea, it is difficult to establish it and the help is taken of

surrounding facts or factors.

Mens rea (Guilty mind) and Motive (Why the act was done).

Motive is something which prompts a man to form an intention. In other words, it

is ulterior intention; while intention is immediate mental condition. Intention
relates to means whereas motive relates to the end. Motive though not a sine qua
non for bringing the offence home to the accused, is relevant on the question of
intention. Motive is basically a clue to the intention.

Where there is clear proof of motive for the crime, this lends additional support to
the courts finding that the accused was guilty but the absence of clear proof of
motive does not necessarily lead to the contrary conclusion. There may be an
offence without a motive in same way in which the strongest motive may not impel
a person to commit an offence. It may be noted that purity of motive cannot
absolve a person from criminal liability. Thus, if a person decides to kill his
starving children because he feels that they will pass on to a better world, his
motive is good but his intention is wrong.

Motive for an act cannot become a litmus test to determine the criminal
characteristics. Where there is direct evidence against the accused, the motive
becomes immaterial. But where there is circumstantial evidence, absence of motive
is favourable to the accused. In criminal law, the general rule is that motive is
irrelevant and only intention is relevant. However, the motive becomes relevant in
certain cases.

In criminal attempts, it is the motive which makes the act wrongful though the act
in itself may not be wrongful. Further, motive becomes relevant in cases where a
particular intention forms a part of the definition of a criminal offence. In civil
liability (e.g. defamation and malicious prosecution) motive assumes relevance.

Distinction Between Intention and Motive: intention differs from motive and
law takes notice of intention only.

1. There can be no crime of any nature without an evil mind. Every crime
requires a mental element. Even in strict or absolute liability some mental
element is required.
Motive though not a sine qua non for bringing the offence home to the
accused, is relevant on the question of intention. Motive is something which
prompts a man to form an intention. Motive alone is of no moment in the
absence of other incriminating circumstances. If evidences of murder are
clinching and reliable, conviction can be based even if the motive is not
established.
2. Intention means, to have in mind a fixed purpose to reach a desired
objective, so it indicates that a man is consciously shaping his conduct so as
to bring about a certain event. Thus, intention is the purpose or design with
which an act is done.

Motive is the emotion which impels a man to do a particular act. But many a
murders have been committed without any known or prominent motive.
3. If intention is criminal, law provides punishment even though the act is done
with the best of motive. In Emperor v. Raghu Nath Rai (1892) 15 All 22, a
Hindu took away a calf from a Mohammedans house without his knowledge
and consent in order to save it from slaughter. The accused was held guilty
of theft and rioting although he acted with the best of motive to save the life
of the sacred cow.

Motive is relevant only in ascertaining the guilt of the accused as it is directed to

the ultimate end, good or bad, which a person hopes to secure. As such motive,
object or design of a person should never be confused with his intention.

Distinction Between Knowledge and Intention

According to Sec. 39, IPC BNS (2(33)), A person is said to cause an effect
voluntarily when he causes it by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it. That means a man
is presumed to intend the probable consequences of his acts. Sec. 39 BNS (2(33)),
takes into account not only intention, but also knowledge and reasonable
grounds of belief.

Voluntarily causing an effect embraces:

a. With intention to cause the effect,

b. With the knowledge of likelihood of causing the effect, and
c. Having reason to believe that effect is likely to be caused.

If the doer of an act knows or believes that dangerous result will emerge from his
act, he will be said to have acted with the most direct intention to hurt. Knowledge
means having mental cognition of a thing or it is the awareness or expectations of
the consequences of an act. The main difference between knowledge and intention
is that in the former the consequence is not desired whereas in the latter it is
desired.

Knowledge denotes a bare state of conscious awareness of certain facts in which

the human mind might itself remain supine or inactive whereas intention connotes
a conscious state in which mental faculties are roused into activity and summed up
into action for the deliberate purpose of being directed towards a particular and
specific end which the human mind conceives and perceives before itself (Kesar
Singh v. State of Haryana (2008) 15 SCC 753).

Illustration:
A sets fire by night to an inhabited house in a large town for the purpose of
facilitating robbery and thus causes the death of a person. Here, A may not have
intended to cause death, but he knew that death was a probable consequence.

Dishonestly and Fraudulently

Dishonestly, according to Sec. 24 BNS (2(7)), means, Whoever does anything
with the intention of causing wrongful gain to one person or wrongful loss to
another is said to do that thing dishonestly.

According to Sec. 23, BNS (2(38)), a person is said to gain wrongfully when he
either retains or acquires property wrongfully. Similarly, losing wrongfully means
that the person is either wrongfully kept out of any property or is deprived of
property. The gain or loss must be material and not remote.

Thus, if a creditor in order to compel his debtor to discharge the debt takes his
goods without his consent, he will be guilty of theft for causing wrongful loss to
the debtor (Queen -Empress v. Chum Chunga ILR (1845) 22 Cal 1017),
According to Sec. 25, A person is said to do a thing fraudulently if he does that
thing with intent to defraud but not otherwise. No definition of fraud has been
given in the IPC.
The words with intent to defraud indicate not a bare intent to deceive but an
intent to cause a person to act (or omit to act), as a result of deception played upon
him, to his disadvantage and the words intent to defraud are not synonymous with
the words intent to deceive and require some action resulting in some disadvantage
which but for the deception, the person deceived would have avoided.

According to Sir J.D. Mayne:

of course there can be no intention to defraud where no wrongful result was
intended or could have arisen from the act of accused.

According to Sir James Stephen, a particular conclusive test as to the fraudulent

character of a deception for criminal purposes is this: Did the author of the deceit
derive any advantage from it which he could not have had if that truth been
known? If so, it is hardly possible that advantage should not have had an
equivalent in loss or risk of loss, to someone else, and if so, there was fraud.

In a case, a person obtained admission to the matriculation examination as a

private candidate producing before the Registrar a certificate purporting to have
been signed by the headmaster of a recognised High School that he was of good
character and had attained the age of 20 years. It was found that the candidate had
fabricated the signature of the headmaster. The court held that the accused was
guilty of forgery, as the accused intended to derive an advantage from his deceit
and an injury must result to the University and through it to the public from his act
(Kotamaraju Venkatarayddu v. Emperor ILR 28 Mad 90).

In another case, the accused purchased a motor car with her own money in the
name of her minor daughter by signing the minors name and also received
compensation for the claims made by her in regard to the two accidents to the car.
The claims were true claims and she received the moneys by signing in the claim
forms and also in the receipt her minor daughters name. It was held that the entire
transaction was that of the accused and it was only put through in the name of her
minor daughter for reasons best known to herself. On the evidence as disclosed,
neither was she benefited nor the insurance company incurred loss in any sense of
the term.

The accused had not acted fraudulently (Simla (Dr.) v. Delhi Admn. AIR 1963
SC 1572).
The Apex Court observed:
To summarise: the expression defraud involves two elements, namely, deceit and
injury to the person deceived. Injury is something other than economic loss i.e.
deprivation of property (movable or immovable), or of money and it will include
any harm whatever caused to any person in body, mind, reputation or such others.
In short, it is a non-economic or nonpecuniary loss.

A benefit or advantage to the deceiver will almost always cause loss or detriment
to the deceived. Even in those rare cases where there is a benefit or advantage to
the deceiver, but no corresponding loss to the deceived, the second condition is
satisfied.

Difference between Fraudulently and Dishonestly

Both terms are not synonymous and denote two different things. A dishonest act is
not necessarily fraudulent.

The difference between the two was pointed out in Queen v. Abbas Ali (ELR
(189893) 25 Cal 512) by a full Bench of the Calcutta High Court. In this case, the
accused had forged a certificate in order to qualify himself for the examination of
Engine Driver. It was observed that fraudulently does not cover the same ground
and that intention to defraud does not necessarily involve deprivation of property.

Similarly, the Patna High Court observed that, if there is an intention by the deceit
practised to cause wrongful loss that is dishonestly, but even in the absence of such
an intention, if deceitful act wilfully exposes anyone to risk of loss, there is fraud
(Sukbamoy Maitra v. R. AIR 1938 Pat 165).

For example, in Queen-Empress v. Soshi Bhusan (ILR (1891-93) 15 All 210), the
accused applied for admission to LL.B (Final) class in Benaras Hindu University
alleging that he had attended LL.B (Previous) class in Lucknow Canning College.
He was admitted and required to produce a certificate in support of proof of having
passed LL.B (Previous) exam. He produced a forged certificate and it was held that
he acted fraudulently.

Similarly, a person acts fraudulently, if not dishonesty, when he lawfully entided to

possess arms and ammunition signs the prescribed certificate of purchase of the
same in the name of another and with an address not his own (P.C. Causley v. R.
ILR (1916) 43 Cal 42).

Shamshul Huda had differentiated between fraudulently and dishonestly

thus:

i. Fraud involves deception necessarily while dishonesty does not.

ii. Dishonestly necessarily involves the idea of injury to property as well as
injury of every other kind i.e. injury to body, mind or reputation.
iii. A dishonest intention is intention to cause loss of specified property
belonging to a particular person. Fraudulently on the other hand may refer to
injury in respect of unspecified property, to unknown and unascertained
persons.
To this, the following may be added:
iv. Wrongful gain or wrongful loss of property is necessary for dishonesty but
not for fraud.
v. An act may be dishonest and yet not fraudulent. In other words, a dishonest
act is not necessarily a fraudulent act.

It may be noted that the word fraudulently has been used in the IPC at many places
but the words fraudulently and dishonestly have jointly been used in Secs. 209,
246, 247, 415, 421,422, 423,424, 464, 471 and 496 of IPC.
Mens rea when Not Essential: Strict Liability
Although mens rea is a sacrosanct principle of criminal law, it can be waived in
certain circumstances. The following are the exceptional cases in which mens rea
is not required in criminal law:
Mens rea is not essential in respect of five offences in I.P.C., namely:

 Sec. 121 BNS (147), (waging war),

 Sec. 124 A BNS (148 (sedition),
 Secs. 359 BNS 137and 363 BNS 137 (kidnapping and abduction), and
 Sec. 232 BNS (121(counterfeiting coins).

Thus, where the accused is charged with kidnapping a minor girl, his plea that he
honestly believed that the girl was not minor was not accepted by the court.
Similarly, a person who attempts to pass a counterfeit currency note or in whose
possession such notes were found, should not be permitted to raise plea that he was
not aware of notes being counterfeit, unless the person is an ignorant and illiterate
villager.

Where a statute imposes strict liability, the presence or absence of a guilty mind is
irrelevant. Several modem statutes passed in the interests of public safety and
social welfare impose such strict liability, e.g. The Motor Vehicles Act; The Arms
Act; Narcotic Drugs and Psychotropic Substances Act, 1985; The Public Liability
Insurance Act, 1991; etc. Similarly, in other statutory offences like bribing,
smuggling, Forex violations, sale of adulterated articles, etc., the guilty mind is not
taken into account by the courts.

The underlying principle of justification for such statutory offences is pointed out
by Roscoe Pound: Statutory crimes express the needs of society. Such statutes are
not meant to punish vicious will, but to put pressure on the thoughtless and
inefficient to do their whole duty in the interest of public health, safety or morals.

The underlying principle of justification for such statutory offences is pointed out
by Roscoe Pound: Statutory crimes express the needs of society. Such statutes are
not meant to punish vicious will, but to put pressure on the thoughtless and
inefficient to do their whole duty in the interest of public health, safety or morals.
When it is difficult to prove mens rea, where the penalties are petty fines and
where a statute has done away with the necessity of mens rea on the basis of
expediency, strict liability in criminal law may be imposed, e.g. parking offences.

Public nuisance is another exception to the doctrine of mens rea.

Another exception that might be mentioned here is related to the maxim Ignorance
of the law is no excuse. If a person violates a law without the knowledge of the
law, it cannot be said that he has intentionally violated the law, though he has
intentionally committed an act which is prohibited by law.

In Halsbury Laws of England it is stated that if a statutory crime is silent with

regard to mens rea, there is a presumption that mens rea is essential. The
presumption can be rebutted either by terms of statute or by the subject matter with
which it deals.

It is of utmost importance for the protection of liberty of a subject that the court
should always bear in mind that unless a statute rules out mens rea as a constituent
part of a crime, the court should not find a man guilty of an offence against the
criminal law, unless he has a guilty mind.

In other words, absolute liability is not to be presumed but ought to be established

or found out by referring to the object and subject matter of statute (Brend v.
Wood, 1946 J.P. 316; Hariprasad Rao v. State AIR 1951 SC 204).

In State of Maharashtra v. M. H. George (AIR 1965 SC 722), it was held:

Merely because a statute deals with a grave social evil is not sufficient to infer
strict liability, it must also be seen that whether imposition of strict liability would
assist in the enforcement of regulations. Unless this is so, there is no reason in
penalising him and it cannot be inferred that the legislature imposed strict liability
merely in order to find a luckless victim.

In this case, RBI placed some restrictions on the entry of gold into India, thus
superseding its earlier notification. The accused reached Bombay (on the way to
Manila), where the gold bars were recovered from his jacket. The accused pleaded
that he had no mens rea and that he had no knowledge of the RBI notification.
After considering the object and subject matter of statute (FERA, 1947), their
Lordship held that there was no scope for the invocation of the doctrine of mens
rea in this particular case. The very object and the purpose of the Act would be
frustrated if the accused should be proved to have knowledge that he was
contravening the law, before he could be held to have contravened (as per Majority
opinion; the Minority opinion (J. Subha Rao) was that the object would not be
defeated).

In Nathulal v. State (AIR 1966 SC 43), it was held that object of statute would not
be defeated by reading mens rea into the provisions of the Essential Commodities
Act, 1955. The appellant, a dealer in food grains had made an application for a
licence but no intimation was given to him that his application was rejected. He
purchased food grains from time to time and submitted returns to the licence
department. One day, a food inspector checked his godowns and found food grains
stored without any licence. The conviction of the accused was set aside as he had
no mens rea.

The Supreme Court held: There is a presumption that mens rea is an essential
ingredient in every criminal offence; but this may be rebutted by the express words
of a statute creating the offence or by necessary implication. However, mens rea by
necessary implication can be excluded from a statute only where it is absolutely
clear that the implementation of the object of a statute would otherwise be defeated
and its exclusion enables those put under strict liability by their act or omission to
assist the promotion of the law.

The nature of mens rea that will be implied in a statute creating an offence depends
upon the object of the Act and provisions thereof. Thus, the general rule that there
must be a mind at fault before there can be a crime, is not an inflexible rule.

In conclusion, it can be said that the ultimate factor which the court keep in mind
while judging the exclusion of mens rea is a balance between individual liberty and
public order. According to Sir J. Stephens, the doctrine of mens rea is misleading
as the doctrine originated when criminal law practically dealt with offences which
were not defined. Today, however, each crime has a precise definition.
As far as offences under the Indian Penal Code are concerned, every offence is
defined and the definition states not only what the accused must have done, but the
state of his mind with regard to the act when he was doing it. For example, theft
must be committed dishonestly, cheating must be committed fraudulently, murder
must be committed either intentionally or knowingly, and so on. Thus, there is no
room for the general doctrine of mens rea in the Indian Penal Code. Each definition
of the offence is self-sufficient.

All that the prosecution has to do, in India, is to prove that a particular act
committed by the accused answers the various ingredients of the offence in the
particular section of the I.P.C.

Joint And Constructive Liability

The law relating to joint liability is contained in Secs. 34-38, BNS 3(5), 3(8) IPC.
There are three more sections in the Code which deal with joint or constructive
liability, viz. Sec. 149 BNS 190 (Unlawful assembly), Sec. 396 BNS 310 (Dacoity
with murder), and Sec. 460 BNS (331) (House-breaking by night with murder or
grievous hurt).

The joint or group liability is also called constructive liability, i.e. liability of all for
the acts of one or some of them. Suppose A, B, C, and D join to commit Zs
murder. If they merely join, and do nothing else, they would be guilty of the
offence of criminal conspiracy even though nobody is murdered. But if A alone
commits that murder, law will fix on all of them constructive liability for the act of
A.

Constructive liability in criminal law means the liability of a person for an offence
which he has not actually committed. This must not, however, be confused with
vicarious liability, which is the liability one incurs for the acts of a servant or an
agent during the course of the service. Here, unlike the constructive liability,
neither the common intention nor the common object need be proved. Vicarious
liability in criminal law is an exception rather than a rule. But, constructive liability
in criminal law is a well-recognized principle.
A mortal stroke, though given by one of the party, is deemed in the eyes of the law
to have been given by every individual abetting. The person actually giving the
stroke is no more than the hand or instrument by which the other strike. The
principle of vicarious/ joint liability is stated in Sections 34 BNS (3(5)), and 149
BNS 190 of the Indian Penal Code, 1860.

The underlying principle is not a well-recognized canon of criminal jurisprudence

that the courts cannot distinguish between co-conspirators, nor can they inquire as
to the part taken by each in the crime. Where parties go with a common purpose to
execute a common object, each and everyone becomes responsible for the acts of
each and every other in execution and furtherance of their common purpose; as the
purpose is common so must be the responsibility.

Section 34 BNS (3(5)), : Common Intention

Sections 34-38 BNS 3(5), 3(8)lay down the following four important principles
governing joint offenders, i.e. persons who join together to commit a crime:

i. Act done by several persons in furtherance of common intention (Sec. 34).

ii. Act done with criminal knowledge or intention (Secs. 35&36).
iii. Co-operation in acts constituting an offence (Sec. 37).
iv. Persons concerned in criminal act may be guilty of different offences (Sec.
38).

Section 34 says: BNS (3(5)), When a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is liable for that in
the same manner as if it is done by him alone.

Sec. 34 BNS (3(5)), is framed to meet cases in which it may be difficult to

distinguish between the acts of individual members of a party, or to prove exactly
what part played by each of them (R. v Cruse, 1838). If the intention or purpose is
common, so must be the responsibility. Thus, the common belief that more the
people, less the guilt has in law, no application to the act or commission of a crime.
Sec. 34, BNS (3(5)), thus, discourages group criminals.
Sec. 34. BNS (3(5)), Acts done by several persons in furtherance of common
intention - When a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in the same
manner as if it is done by him alone.

Sec. 34 BNS (3(5)), is an instance of what is called constructive criminality, i.e.,

liability of all for the acts of one or some of them. Sec. 149 BNS 190 also deals
with constructive criminality.

Principle - Sec. 34 BNS (3(5)), is an interpretative provision and embodies the

principle that if two or more persons intend to do a thing jointly, it is just the same
as if each of them had done it individually. If the intention or purpose is common,
so must be the responsibility.

Sec. 34 BNS (3(5)), is a rule of evidence and does not create a substantive offence;
its object is to find out the acts committed by individual members or to find out
what part was taken by each of them in furtherance of common intention of all.

Rationale - The common belief that more the people, less the guilt has in law, no
application to the act or commission of a crime. Gravity of a crime cannot be
diluted because it is committed by several persons, nor can the quantum of liability
be redistributed among the doers because it is very difficult to pinpoint the separate
participation of each. If the law allows such distribution of liability, no one would
get the punishment intended by the law. And, it would encourage group criminals.

Sec. 34 BNS (3(5)), is framed to meet cases in which it may be difficult to

distinguish between the acts of individual members of a party, or to prove exactly
what part played by each of them. The reason why all are deemed guilty in such
cases is that the presence of accomplices gives encouragement, support and
protection to the person actually committing the act.

Essential Ingredients of Sec. 34 BNS (3(5)),

Before a person can be held liable for the acts of another person under Sec.
34, BNS (3(5)), two points have to be established, viz.-
 a. That there was common intention, in the sense of a pre-arranged plan,
between the two, and
b. That the person sought to be made liable had, in some way participated in
the act.

Common intention and participation, both are necessary for the application of Sec.
34. BNS (3(5)), Common intention necessarily implies a pre-arranged plan or prior
concert or prior meeting of minds. Thus, there is a sharing of purpose which is
lacking in a case where several persons have the same/similar intention
(Pandurang v. State of Hyderabad AIR 1955 SC 216; Mahboob Shah v.
Emperor, 1945).

It may be noted that common intention can be formed at the spur of the moment;
but the plan must precede the act constituting the offence. Thus, where during a
fight a person calls the bystanders to help him kill a person and they join him; there
is then necessary meeting of minds or formation of a pre-arranged plan though
hastily formed (Krishna Govind v. State of Maharashtra AIR 1963 SC 1413).

To participate means to take part, and part in an act may be taken by doing
something which advances or helps the common cause or achievement. Besides
pre-planning, what is required is an element of physical presence at the scene of
occurrence coupled with actual participation which can be of passive character
(such as standing by the door). The emphasis in Sec. 34 is on the word done - it is
essential that they join in the actual doing of the act and not merely in planning its
preparation (Ramaya v. State of Bombay (1954) 57 Bom LR 632 (SC)).

The use of words in furtherance of common intention suggests that Sec. 34 BNS
(3(5)), is applicable also where the act actually done is not exactly the act jointly
intended by the conspirators to be done. The common intention can be to do an act,
and another act can be done in furtherance of the common intention (e.g. a
preliminary act or a necessary act after achieving the common intention). Thus, the
shooting of a wrong man or the Sentry could be said to be in furtherance of
common intention (Shankar Lai v. State of Gujarat AIR 1965 SC 1260).
However, the act should not be extraneous (outside) of the common intention, or is
done in opposition to it.
Common intention is a question of fact.
Although it is subjective, it can be inferred from the facts and circumstances. Thus,
mere presence at the scene of the crime may not always amount to participation in
the crime. Likewise, where the accused ran away with his companion (on the
latters bicycle) it could not be said that they participated in the act together and had
a common intention (Malkhan Singh v. State of UP. AIR 1975 SC 12).

Besides pre-planning, actual participation in the crime is necessary to make case of

joint liability. It has been held that participation does not mean participation in the
actual doing or commission of a crime, if a person is directing entire operation
from some distance, he would be deemed to be participating in the crime (J.M.
Desai v. State of Bombay AIR 1960 SC 889; Tukaram v. State of
Maharashtra AIR 1979 SC 185). This is the case when the offence consists of
diverse acts which may be done at different times and places. It may be noted that
participation may be in a passive way (viz. standing by the door).

Secs. 141 BNS(189(1) -149 BNS (190) : Unlawful Assembly and Common
Object
According to Sec. 141, BNS(189(1) an assembly of 5 or more persons is
designated as unlawful assembly, if the common object of the persons comprising
that assembly is to overawe by criminal force the Government or Legislature or a
public servant, or to resist the execution of any law or legal process, or to commit
any mischief, criminal trespass or other offence, or to take forcibly possession of
any property, or to deprive any person of the enjoyment of incorporeal right (right
of way or use of water), or to enforce any right or supposed right, or to compel any
person to do what he is not legally bound to do, etc. The use of the criminal force
or the show of criminal force is necessary.

Explanation to Sec. 141 BNS(189(1) lays down that an assembly which was not
unlawful when it assembled may subsequently become unlawful. It may be noted
that a lawful assembly does not become an unlawful one because of its refusal to
obey an order to disperse.

Sec. 142 BNS 189(2)lays down that whoever being aware of facts which render
any assembly an unlawful assembly, intentionally joins it or continues in it is said
to be a member of such assembly.
The object of this section is to prevent resort to criminal force by five or more
persons to do any of the acts set out in this section. As regards the offence of
unlawful assembly, the following points may be noted:

i. The assembly must consist of five or more persons.

ii. An assembly which is not unlawful in its inception does not become an
unlawful assembly because of its refusal to obey an order to disperse.
Moreover, it does not become unlawful by reason of its lawful acts exciting
others to do unlawful acts.
iii. At the same time, an assembly which is lawful in its inception may become
unlawful by subsequent acts of its members. But an illegal act of one or two
members, not acquiesced in by the others, does not change the character of
the assembly (Mod Das v. State of Bihar AIR 1954 SC 657).
iv. When two factions fight, the members do not become members of an
unlawful assembly, because they have no common object. An offence under
Sec. 141 BNS(189(1) cannot be said to be committed when two opposite
factions commit a riot and fight, as it cannot be said that both the parties had
any common object.

Allauddin Mian v. State of Bihar (AIR 1989 SC 1456) - Where common object
of the unlawful assembly was to kill A and it was not necessary to kill B and C
who were not any hindrance to the accused Nos. 1 and 2 in accomplishing their
common object, it was held that accused Nos. 3 to 6 could not be convicted for the
injuries caused to B and C by accused Nos. 1 and 2, with the aid of Sec. 149.

Soofi Abdul Mazid v. State (1989 Cr LJ NOC 134) - Where an assembly was
formed to take forcible possession of mosque properties and one of the members of
the assembly without provocation or instigation by any other member committed
murder, the other members of the assembly could not be convicted of the offence
of murder.

Muhu Naicker v. State (AIR 1978 SC 1647) - Where a large crowd collected all
of whom were not shown to be sharing the common object of the unlawful
assembly, a stray assault by any one accused on any particular witness could not be
said to be an assault in prosecution of the common object of the unlawful
assembly, so that the remaining accused could be imputed the knowledge that such
an offence was likely to be committed in prosecution of common object of the
assembly.

Section 149 BNS(190 )says: 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 member of that assembly knew to be likely to be committed in prosecution
of that object, every person who, at the time of committing of that offence, is a
member of the same assembly, is guilty of that offence. Thus, Sec. 149 BNS(190)
is another instance of constructive liability.

The following important points may be noted:

i. Common object does not require prior concert (pre-arranged plan) and
common meeting of minds before the attack; an unlawful common object
may develop at the spot after the assembly gathers. It is enough if it is
adopted by all members i.e. they concur in it.
ii. Each of the members of the unlawful assembly, irrespective of the
participation in the commission of the act, is liable for the act as if he
actually participated in committing it.
iii. The phrase in prosecution of the common object means that the offence
committed was immediately connected with the common object. But, the
words do not mean during the prosecution of the common object. Thus, if an
unlawful assembly goes with the common object of theft, and there
unknown to others, a member rapes someone, the offence of rape cannot be
attributed to all five. Similar is the case when one of the members murders a
peaceful intervener; the others cannot be liable.
iv. Where the common object to commit an offence was different from the
offence which was actually committed, the member not actually committing
the offence will be liable for that offence only if he knew (beforehand) that
such offence was likely to be committed in the course of the prosecution of
the common object (Mizaji v. State of U.P. AIR 1959 SC 572).
v. The expression know does not mean a mere possibility, such as might or
might not happen; it imports a high degree of probability. It indicates a state
of mind at the time of the commission of the offence and not the knowledge
acquired in the light of subsequent events. Thus, in case of free fight, Sec.
 149 could not be invoked. When two opposite factions commit a riot and
fight, it cannot be said that both the parties had any common object.
vi. Once the common object ceases to exist, Sec. 149 cannot apply. Thus, where
a wounded man had ceased to be member of the unlawful assembly when he
retired wounded, he cannot be made liable for the subsequent murder under
Sec. 149. BNS(190)
vii. The court could charge, try and convict less than 5 persons under Sec. 149
BNS(190)provided it comes to the conclusion that 5 or more persons
participated in the incident, and some of them could not be identified (Maina
Singh v. State of Rajasthan AIR 1976 SC 1084).

However, where six persons were charged under Sec. 302/149; two were acquitted,
the remaining four cannot be convicted under Sec. 149 BNS(190) (provided it is
proved that there were no other persons identified or identifiable).

Thus, an unlawful assembly should consist of 5 or more named persons, unless

there is evidence of participation by other persons not identified or identifiable.
Where out of the five accused, four were acquitted, the remaining fifth accused
would be responsible for the offence committed by him personally without regard
to the participation of others. Sec. 34 BNS 3(5)or Sec. 149 BNS(190)could not be
invoked in such a case.

Distinction between Sec. 34 BNS 3(5)and Sec. 149 BNS(190)

The two sections have a certain resemblance and may to an extent overlap (both
sections deal with constructive criminality). However, there are certain differences
between the two, viz:

i. Sec. 34 BNS 3(5) is a rule of evidence and enunciates the principle of joint
liability, but does not create an offence. Sec. 149 BNS(190)creates a specific
substantive offence.
ii. Under Sec. 34, BNS 3(5) the number of persons is immaterial. Under Sec.
149, BNS(190) five (or more) persons should have entertained the common
object.
iii. Common intention under Sec. 34 BNS(3(5)) is different from common
object under Sec. 149. BNS(190) The former necessarily postulates a pre-
arranged plan, while the latter not. Further, a mere membership of an
unlawful assembly (under Sec. 149) BNS(190)is enough and it is not
 necessary that one should have participated in the commission of the act.
This is not so under Sec. 34. BNS(3(5)) Even knowledge on the part of a
member of unlawful assembly will be enough under Sec. 149. BNS(190)

Common object, thus, is wider in scope and amplitude than common

intention. The object of an unlawful assembly might be common, but the
intention of the several members might differ. Thus, where the accused came
armed with deadly weapons, it is reasonable to infer that they knew death
was likely to be caused in the prosecution of common object. But, a
common intention to kill could not be inferred.
iv. The common object of the unlawful assembly must be one of the objects
mentioned in Sec. 141, the common intention may be any intention, for the
purpose of Sec. 34.
v. Under Sec. 34, some active participation is necessary. But under Sec. 149,
the liability arises by reason of mere membership of unlawful assembly.

Actus Me Invito Factus Non Est Mens Actus: Definition and Meaning
In criminal law, the phrase “Actus me invito factus non est mens actus,” is
frequently used as a defense. The idea behind this maxim is that if someone is
pressured into performing an act that they ordinarily wouldn't do or have no
intention of performing but are nonetheless forced to do it, the act cannot be
claimed to be their own because it was not voluntary or free. What is the
meaning of Actus me invito factus non est mens actus?

A Latin legal proverb read as "Actus me invite factus non est meus actus,"
essentially defined as, "the act any person commit against his/her will is not his/her
act."

Illustration

B threatens to shoot A if she doesn't attack C. In this case, if A attacks C, it will be

claimed that A's action was not voluntary and was instead coerced, making it not
her own.
Actuse me invito factus non est mens under IPC,1860

In the Indian Penal Code, 1860, the maxim “actus non facit reum nisi mens sit rea”
has been incorporated in two key ways:

 Through the explicit inclusion of the necessary mental state (mens rea) in the
legal definition of an offense.
 By way of the "General Exceptions" listed in Chapter 5 of the Code, some of
them, such as factual error, an accident, infantile infancy, and insanity,
contest the presence of mens rea.

Case Laws

People of the Philippines v. Juan Salvatierra

Fact: Only three of the five accused were brought to justice for conspiring to break
into Hichiro Kubota and Elizabeth Hammond's home on the evening of 1988, steal
800,000, and commit double homicide as well as attempted homicide. Once inside,
the accused had sex with Hichiro Kubota's maid, Hazel Arjona, inflicted fatal
wounds that contributed to their deaths, and attempted to stab Marilyn Juguilon,
the other maid. Trinidad was exonerated, but Constantino and Salvatierra were
found guilty since the other two defendants managed to escape. As a result,
defendant Eric Constatino, the driver of the deceased Hichiro Kubota, filed an
appeal on the ground that he had acted out of an uncontrollable fear following his
alleged coercion into committing the crime for which they were all charged.
Ruling: The judgment of the trial court was upheld by the Higher Court. The
standards under which the defendant's statement of the alleged application of
duress upon him by his accomplices could have meaningful value as evidence are
far from being met. The Court ruled that in order for duress to be legitimately used,
it must be based on a genuine, impending, or realistic fear for one's own life or
limb and cannot be hypothetical, irrational, or imagined.

According to the legal maxim actus me invito factus non est meus actus, which
translates to "an act done by me against my will is not my act," freedom is
completely absent in this situation. The accused must have been subjected to such
extreme coercion that there was no chance for him to flee or force himself to take
any action in self−defense.

The actions taken by the defendant, as described by the victims in their capacity as
witnesses, unequivocally show that he worked together with his other co−accused
to carry out their illegal scheme. Further evidence of his guilt may be found in his
swift flight to and months−long stay in Sorsogon following the tragedy.

Conclusion

Actus non facit reum nisi mens sit rea, a Latin proverb, has been a driving force in
the development of criminal law. This maxim embodies the fundamental principles
of the criminal justice system. This dictum is not simply contained in criminal
statutes; rather, it has also found application in a number of the decisions covered
in this article. If this adage had never been coined, the criminal justice system
would have been rendered inoperable.

ABETMENT BNS 45-57

Introduction
The Indian Penal Code covers many crimes done by one or more persons, where
some may be the perpetrators, while some may just be aiding the crime. Provoking,
encouraging, or aiding someone is a criminal act punishable under the Indian Penal
Code (IPC) as abetment. Chapter V of the Indian Penal Code, 1860 talks about
abetment, and the law is very clear in this regard. Anyone who aids or leads the
crime cannot use the defence of no-presence of actus reus to get away from the
punishment associated with it. Delving into the realm of abetment, it becomes
essential to comprehend the profound implications and legal ramifications
associated with this offence. As we embark on this exploration, we uncover the
provisions of Sections 109 to 120 of the Indian Penal Code, 1860 (IPC), which
intricately outline the penalties meted out for abetment. This article discusses the
offence of abetment as mentioned under Section 107 of IPC and its punishment in
detail.

Exploring the legal implications of Section 107 IPC in Indian law

Section 107-120 of the Indian Penal Code, 1860 talks about the crime of abetment
and its punishment in detail. There are four stages of a crime discussed below:

 Intention: A human being is held liable for an offence they commit being a
legal entity that they are with a motive in mind. This simply means that a
person has a sense of legal responsibility tied to themselves by birth.
Actions are a result of intentions that develop due to certain reasons. A non-
criminal behaviour becomes criminal if there is any kind of criminal
intention/ mens rea behind it. However, ascertaining the true intentions of
an individual can prove to be an invisible challenge, making it currently
impossible to definitively establish criminal liability.
 Preparation: Preparation refers to the act of making some arrangements or
taking steps to commit a particular offence preceding its actual
commission. Preparation is not punishable under the law because you
cannot prove whether or not the accused prepared the acts for the specific
crime or not. The test of locus poenitentiae is used to determine this, which
simply means that a person has the chance to withdraw from the criminal
act before it is completed.
 Attempt: An action made in furtherance of intention and preparation is
called an attempt to commit that specific offence. An attempt to commit a
crime or preliminary crime is punishable under the Indian Penal Code
under Section 511. An attempt can also be described as a preliminary crime
to determine the criminal liability of a person. There is a thin line between
attempt and preparation which is differentiated by doing some tests
like locus poenitentiae, proximity tests, social danger test, and equivocality
tests.
 Commission: A crime is accomplished when the attempt to commit that
crime is successful which is punishable under the code in several sections
depending on the crime thus committed. The criminal liability of a person
arises at the stage of the commission or accomplishment of the particular
offence because, at this stage, the crime committed poses a danger.
Abetment may take place at any stage amongst the above-mentioned stages, and
the mere instigation, commission, or aiding of an offence is punishable for
abetment under the Indian Penal Code, where the commission of the offence is not
necessarily taken into consideration for the punishment to be upheld.
What is abetment under Section 107 IPC
Abetment in criminal jurisprudence means the act of insisting, provoking or
encouraging any person to commit an offence, where the person abetting (abettor)
is different from the perpetrator. According to Section 107 of IPC, 1860, there are
three essential elements of abetment. The three elements of abetment namely
instigation, provocation, and active involvement are explained further.
For example, A instgates B to cause grievous hurt to C and B refuses to do so.
Here, A will be held liable for the offence of abetment to rape. If on A’s instigation
B causes grievous hurt to C, A will be guilty to abet B of causing grievous hurt.
In the case of Emperor v. Parimal Chatterjee(1932), the Apex Court held that for
the crime of abetment to be constituted, there must be an abettor who should abet
for the crime being prosecuted, which shall also be an offence that is punishable
under law.
Section 107 of the IPC defines abetment of a thing that consists of three acts,
namely instigation, conspiracy, or intentional aid. In the case of Malan v. State of
Maharashtra(1957), the Bombay High Court laid down the essentials of the crime
under Section 107 of the IPC; the person should instigate any other person to
commit the offence, the person conspires with nobody to commit the offence, or he
individually aids anyone to commit the offence. This has been discussed in detail
further in the article.
Abetment and mens rea
Abetment occurs when someone willingly encourages, insists, or aids another
person to commit an offence. In cases of abetment, the presence of mens rea is a
precondition necessary for the offender to be punished. Mens Rea is the guilty
mind or criminal intent of a person to commit a specific crime. It is impossible to
commit an offence of abetment without the presence of a mens rea on the part of
both the abettor and the principal offender.
The person abetting must have complete knowledge of the crime he/she will
commit as a result of the said abetment. Only after establishing the presence of
both the elements, mens rea, and whether or not the accused had the knowledge of
the crime, the accused shall be charged with the offence of abetment.
The presumption of mens rea cannot be applied universally in every case. In case
of strict liability offences, the presumption of mens rea is not required to constitute
an offence. In deciding a case for mens rea exemption, the court will consider the
severity of the punishment and the stigma attached to it. One big example of such
an offence is statutory rape, which occurs when a person comes into sexual contact
with a minor. Here, any circumstance or the existence of mens rea does not matter.
Whether or not the person was aware of the age of minor or not, the person will be
held liable for statutory rape.
To further explain the above point, let us take an example of Section 292 of the
Indian Penal Code, 1860 which states that the sale of obscene books is illegal. In
offences like these where strict liability is put on individuals regardless of the
intention or knowledge of the crime, the court shall not be bound to evaluate the
mens rea of the offender.
Essentials of abetment under Section 107 IPC
As laid down under Section 107 of the IPC, the abetment contains three acts as
follows:
Abetment by instigation

 A person is said to instigate another person for a bad cause as well as a good
cause when that person suggests another person to do a criminal act by any
means, expressly or impliedly, by implication, encouragement, or willful
representation which shall also lead to concealment of a material fact.
 For example, Anna has a long-standing dispute with Rohan over a piece of
property, and she wants to take possession of the land through illegal
means. Anna approaches John to ask him to instigate Rohan to sell the
property, who is unaware of her ulterior motives. Therefore, John continues
to persuade Rohan to sell his property to Anna, however, Rohan is aware of
Anna’s malafide intention and doesn’t fall for her trap. Here, Anna is liable
for abetment by instigation, and not John because she had a clear malafide
intention.
 When advice given actively suggests or stimulates the commission of an
offence, only then somebody commits the offence of instigation. It may be
anything going from words said to mere gestures of bribing, beating,
harassing, or even murdering someone. The prosecution cannot prove that
the actual cause for the abetment was instigation because no human tribunal
can figure out how the degree of instigation present in the mind of the
abettor while abetting affected the circumstances of the case.
 Section 108 of the IPC, lays down specific provisions for the instigation by a
specific individual and the severity of the punishment. In the case of a
minor offence, the punishment can extend up to three years, a fine, or both;
in the case of a major offence, the punishment can extend up to ten years,
life imprisonment, or both.
Abetment by conspiracy
When one or more people are engaged together in any conspiracy focussed on
doing a particular thing it might lead to an offence. If the effort committed amounts
to the crime, then that is abetment by conspiracy; if the act does not amount to the
crime, then that is conspiracy punishable under Section 120A of the IPC which
states the definition of criminal conspiracy. There shall thus be three essentials for
abetment by conspiracy:

 There are two or more people who commit the conspiracy.

 An illegal act, therefore, shall occur only by that conspiracy.
 Such an act must take place at the moment of the conspiracy.
For example, there are two friends, Harvey and Donna, who want to rob a
convenience store together. Harvey has the layout of the store, and Donna has a
gun, therefore they make an agreement that Donna will enter the store to rob the
cashier, and Harvey will keep a lookout. They take another friend Mike with them
to be their driver, who agreed to help them escape but is not taking part in the
robbery, even after knowing the plan. Here, Mike is guilty of abetment by
conspiracy because he abetted the commission of the crime by being the getaway
driver for Harvey and Donna, even though he did not directly participate in the
crime.
The abettor need not take part in the crime, the mere engagement of the abettor is
sufficient to constitute abetment because a common object has been sought in
furtherance of the subject, even though there isn’t a common intention. In the
second clause of this Section, a criminal offence must take place, which must arise
from that conspiracy to form an abetment by conspiracy, which is what postulates
from the four stages of crime.
Abetment by aiding and illegal omission

 Abetment by aiding occurs when the abettor actively does something to aid
the commission of an offence. Under Section 107, intentional aid given by
a person involves active participation in the crime and not just an intention
to participate. Just like abetment by instigation, abetment by aid is
punishable only if the abettor had the mens rea (intention and knowledge)
of the crime he was aiding in. Intent is the main component required to
constitute a case against abetment by aiding in a court of law.
 In the case of State of Maharashtra v. Mohammad Yakub Abdul Razak
Memon (2013), the Apex Court held that to prove abetment by instigation
 or aiding, the appellant must prove beyond a reasonable doubt the presence
of the required mens rea for the offence. A similar view was held in the
case of Brij Lal v. State of Rajasthan (2016), wherein the Apex Court held
that the mere presence and assistance of the accused at the crime scene is
not sufficient to prove the offence of abetment by aiding.
 In general parlance, abetment by aiding as a crime committed by an abettor
when he/she intentionally aids in the facilitation of the conduct of the crime
done by the perpetrators. If a person merely aids in the commission of an
offence non-intentionally, he/she will not be liable or abetment at all. For
example, if a person calls another person as a friend to the place of the
crime and the latter has no knowledge about it and mistakenly aids in the
commission of the crime, he/she will not be liable for abetment by aid for
there was no malafide intention established in the mind of the accused.
Illegal omission

 Section 107 defines an act done by illegal omission as abetment, which

means that when a person violates his/her legal obligations to do
something, he is responsible for abetment by illegal omission. If somebody
knows that a crime is being committed or will be committed, and fails to
take action to stop that crime, they are guilty of abetment by illegal
omission.
 Illegal omission can be defined in several ways which can constitute the
failure to report a crime that a person is an eyewitness of, failure to prevent
a crime that the accused has the duty to care for, and failure to perform a
legal duty by taking certain actions or steps that are required by law.
 Let’s say there is a construction company working on a building project and
is required to follow certain safety standards by law for the workers’ safety.
Regardless, the company starts cutting off corners in the costs of the safety
measures to put into something else. Due to the company’s illegal
omission, a worker falls from the building and suffers serious injuries.
Since the company was aware of the necessities of the workers but still
chose not to pay heed to the situation, they are liable for abetment by the
illegal omission of the death of their worker. The company failed to
perform its legal duty towards the public and its workers, which led to the
commission of such a heinous crime.
Section 107 IPC punishment
For understanding the punishment for abetment, it is necessary to understand what
an abettor is. Section 108 talks about who an abettor is and what specific acts
amount to abetment.
Section 108
Section 108 of the Indian Penal Code, 1860 gives five such propositions related to
the abetment of an act.

 If a person abets the illegal omission of a duty of another person, the abettor
will be held liable of the illegal omission of that duty, even though the
abettor wasn’t directly liable to care for that illegal omission.
 To constitute the offence of abetment the act abetted may or may not be
committed, or the effect required to commit that particular offence should
be committed. Let’s say A instigates B to murder C, and B refuses to do so.
Therefore, A is guilty of abetting B to commit murder. If C manages to
survive, A will still be guilty of abetment to murder.
 It is not necessary that the person abetted should be capable by law of
committing the particular offence or that he should share the same guilty
knowledge or intention as that of the abettor. The person abetted need not
have the same intention or mens rea as that of the abettor to commit a
particular offence being charged of. Let’s say A, with a guilty intention,
abets a child or a lunatic to commit an illegal act if committed by a person
capable by law to commit such an act while having the same intention as A.
Here, A will be liable for abetment of that offence, even if the offence took
place or not.
 If the abetment of the abetment of an offence is committed by the abettor,
he/she will be liable. Let’s say A instigates B to instigate C to commit
suicide. Now, B instigates C to commit suicide under the orders of A. Here,
A is liable for the same punishment as B because both of them instigated C
to commit the offence.
 A person shall be held liable in the case of abetment by conspiracy if he/she
does or does not come into contact with the people committing the office.
Even if the abettor merely takes art in such commission indirectly, he/she
shall be held liable. Let’s say A concerts A plans with B to poison C,
wherein A shall administer the poison. Now, B explains this plan to D
without mentioning A’s name and expects him to procure the poison, which
he does for the purpose of the plan. As a result, A administers the poison,
and C dies. Here, A and D did not conspire together, though D did engage
 in the conspiracy in the pursuance of which C was murdered. Therefore, D
is also liable for murder like A and B.
Section 109
Section 109 of the Indian Penal Code, 1860 lays down punishment of abetment if
the act abetted is committed in consequence and when no express provision is
made for its punishment. If the act is committed as a result of the abetment of an
individual and no express provision is made to lay down the punishment of that
abetment, the person shall be punished with the punishment provided for the
offence.
An act is committed as a consequence of abetment by a person or group of people
instigating the other person or a group of people, which might also be a result of a
conspiracy. Mere aid also constitutes the offence talked about, which might be
bailable or non-bailable and cognizable or non-cognizable.
Examples:

1. Harvey offers a bribe to Donna who is a public servant to reward her for her
favour given to him while exercising her official duties. Donna accepts the
bribe willfully, committing the offence mentioned under Section 161 of
IPC. Here, Harvey will be held liable for abetment of the offence
mentioned under Section 161.
2. Mike instigates Rachel to give false evidence to a jury, which Rachel does as
a consequence of the instigation, thereby committing an offence. Here,
Mike will be held guilty of abetting the offence and will also be liable for
the same punishment as Rachel.
This provision can also be explained by this illustration, let’s say Louis and Scottie
conspire to poison Alex. In pursuance of this, Louis procures and delivers it to
Scottie, who administers the poison to Alex in Louis’ absence. Consequently, Alex
dies deeming Louis guilty of murder and Scottie guilty of abetting the offence of
murder by conspiracy. Here, both Louis and Scottie will be punished for murder.
The motive of this Section is to tell that the offence of abetment is not punished
separately in the IPC but is punishable with the offence committed in furtherance
of the said abetment. In the case of Kulwant Singh @ Kulbansh Singh vs State of
Bihar (2007), the Apex Court held that
“Section 109 applies even when the abettor is not present…… .mere help in the
preparation of the offence which is not even committed is not under the ambit of
Section 109.”
By the above-mentioned, active participation and a malafide intention are
necessary to constitute the offence of abetment.
Section 110
Section 110 of the Indian Penal Code , BNS (50) states the punishment for the
abetment of an offence where the person abetted does an act with a different
intention from that of the abettor. The person abetting the commission of an
offence shall be punished, if the person abetted does the act with a different
intention as that of the abettor, with the punishment entitled for the offence he was
abetting for in the first place, and no other. The presumption would be laid as if the
person abetted committed the crime with the intention of the abettor.
Section 111
Section 111 of the Indian Penal Code , BNS (51) states the liability of an abettor if
the act done is different from the act abetted. When the abetted act differs from the
act done, the abettor shall be liable for the act done in the same manner as he
would be liable for the abetted act if that would have taken place. The act so done
should be a probable cause of the abetment so administered and was committed as
a result of the instigation, aid, or conspiracy of the abetment in question. There
exists a direct inference between the abetment and the act so done.
Let’s say Gretchen instigates Sean to put poison in Dana’s food and gives him
poison for that purpose. Sean, though, in consequence of the instigation, by
mistake puts the poison in Samantha’s food. Here, Gretchen will be liable in the
same manner as if she had instigated Sean to put the poison into Samantha’s food.
Section 112
Section 112 of the Indian Penal Code ,BNS 52states the cumulative punishment for
the act abetted and the act done. This Section lays down that if the act for which
the abettor is liable in Section 111 of the IPC, in addition to the act abetted,
constitutes a distinct offence, the abettor will be held liable for all of the offences.
Let’s say A instigates B to resist distress by force made by a public servant, which
he does. During the course of action, he causes voluntary grievous hurt toward the
officer. Now, B committed both the crime of causing distress and voluntarily
causing grievous hurt, for which he is liable to be punished for both. Here, A will
also be held liable for both offences if he knew that, while resisting distress, B was
likely to cause grievous hurt.
Section 113
Section 113 , BNS 53 states the liability of an abettor if the act abetted caused a
different effect than intended by the abettor at the time of abetment. In simple
terms, the person abetted as a result of the abetment commits some other offence
than what he was abetted for. The abettor abets the commission of a particular
offence. Though, the person being abetted does some other offence, that the abettor
did not have the intention of. In such a case, the abettor shall be liable for the act
that actually happened in the same manner as he would have been if the act abetted
at the start was committed. It is also essential for the abettor to know that his
instigation might also lead to some other act for the abettor to be punishable under
this provision.
Let’s say Levi instigates Anya to cause grievous hurt to Bond, in consequence of
which she does the same, due to which Bond dies. Here, if Levi knew that the act
he abetted would most likely cause death, he would be liable for murder.
Section 114
Section 114 of the Indian Penal Code , BNS 54 states the punishment for when the
abettor is present when the offence is committed. Whenever anyone who shall be
punished with the offence of abetment for a particular crime is present at the scene
of the crime, they shall be deemed to have committed that offence, and shall be
punishable with the punishment of that offence.
There exists a thin line between the objective under Section 34 and Section 114 of
the Indian Penal Code. Under Section 34, the offender need not be present at the
time of the offence. It is possible to participate in an offence even from a distance
with the common intention. Whereas, in Section 114, the presence of the abettor at
the crime scene is a necessary condition. The acts done separately by the principal
offenders are tried under Section 34 of the Code.
Whereas under Section 114, BNS (54) the abettor must have already rendered
himself liable before the commission of the act as an abettor. Section 34, BNS 3(5)
applies to all offences committed under the Indian Penal Code, whereas Section
114 , BNS (54) is applicable only to Sections 107 BNS(45), 109(BNS49),
115(BNS55), and 116(BNS56). Section 34 (BNS 3(5) does not at all provide a
concept for a separate offence, whereas Section 114 BNS (54) provides a separate
statutory offence.
Section 115
Section 115 of the Indian Penal Code BNS (55) deals with offences punishable
with death or imprisonment for life if the offence is not committed. Whoever abets
an offence punishable with death or imprisonment for life in this Code and that
offence is not committed in consequence of the abetment, the punishment for such
abetment shall extend up to seven years in prison with a fine. If the act causing
harm is done in consequence and for any act thereforth that makes the abettor
liable for causing hurt to a person is done, the abettor shall be held responsible and
would be punished for imprisonment up to fourteen years and liable to a fine.
Let’s say Harold instigates Stephen to murder Charles, but the offence is not
committed. Now, if Stephen murdered Charles, he would be held liable for
punishment of imprisonment for life or death. Therefore, Harold is liable for
imprisonment of up to seven years and a fine. If any hurt was inflicted upon
Charles, Harold will be liable to a sentence of fourteen years with a fine.
Section 116
Section 116 of the Indian Penal Code BNS (56) deals with offences punishable
with imprisonment if the offence is not committed. If the abettor or the possible
perpetrator is a public servant whose duty is to prevent the offence or the
commission of the offence, the punishment for the same shall extend up to one-half
of the longest term, or with fine as stated for the offence, or both. Now, If the
abettor abets the commission of an offence, liable with imprisonment, and if that
offence is not committed, and no other express provision is made in consequence,
the abettor shall be punished for any description provided for that offence for a
term that may be one-fourth of the longest term for that particular offence, or with
a fine, or both.
Let’s say Kevin offers a bribe to Ava, who is a public servant, for some favour she
gave him in the exercise of her official duty. But, Ava refuses the bribe ultimately.
Kevin is liable for punishment under this Section.
Section 117
Section 117 of the Indian Penal Code BNS (57) states the punishment for abetting
the commission of an offence by the public or by ten or more people in total.
Whoever commits or abets an offence by influencing the general public or a
number or class of people exceeding ten shall be punished under this Section. The
punishment shall be up to three years of imprisonment, fine, or both.
Let’s say William affixes a placard instigating a sect consisting of more than ten
members to meet at a place specified in a public place. He wants to attack the
members of an adverse sect by instigating them. Here, William will be liable for
the above-mentioned offence.
Section 118
Section 118 of the Indian Penal Code BNS (58) deals with punishment for
concealment of designs for the offence punishable with death or imprisonment for
life. Whoever intends to facilitate or knows that he/she will thereby facilitate the
commission of an offence punishable with death or imprisonment with life;
willfully conceals the existence of a design is liable for punishment. The
techniques used to do that might include an act or omission, encryption, or a hiding
tool for this purpose. They must know that the representation he is making is false
to conceal the existence of the design.
Here, the offence may or may not be committed for which a fine may be imposed
accordingly with the desired punishment. Let’s say it is committed, the abettor
shall be punished with imprisonment of a term of up to seven years. If not
committed, then the abettor shall be punished with imprisonment of up to three
years, or with fine, or both.
For example, Paula, knowing that dacoity is about to be committed at a place,
falsely informs the Magistrate that it is to be committed at another place. This act
of misleading the Magistrate to a whole new opposite direction with the intent to
facilitate the crime led to the commission of the dacoity at the place where it was
supposed to be. Here, Paula will be held liable under the Section because of the
concealment of the design.
Section 119
Section 119 of the Indian Penal Code, 1860, states down the punishment for the
offence of a public servant concealing design to commit an offence which is his
duty to prevent. Whosoever being a public servant intends, facilitates, or knows
that he will, by his actions, thereby facilitate the commission of an offence he is
supposed to stop will be punished under this Section. The act can be of voluntary
concealment by any act or omission or encryption of the existence of a design to
commit such an offence. If the public servant makes any representation that he
knows is false will be held liable.
Now, if the offence is committed, the punishment for such abetment shall be one-
half of the longest term of the offence, or with a fine, or both. If the offence is
punishable by death, the punishment for such abetment may extend to ten years.
If the offence is not committed, the punishment for such abetment shall extend up
to one-fourth of the longest punishment of the offence supposed to be committed.
Let’s say, Esther, a police officer, is bound to give information of all designs about
the commission of any robbery that she gets informed about. She gets to know that
Tara designs to commit robbery, and she omits to give the information with the
intent to facilitate the commission of that offence. Here, Esther has concealed
Tara’s design by illegal omission and is liable for punishment under this
Section.
Section 120
Section 120 of the Indian Penal Code, 1860, deals with the punishment of
concealment of designs with a punishment of imprisonment. Whoever intends to or
facilitates to or knows it to be likely that he/she might facilitate an offence
punishable with imprisonment voluntarily conceals, by an illegal omission or act,
the existence of such a design for that particular offence. The person shall be
punishable even if he/she makes any representation that he/she knows to be false in
accordance with that design.
If the offence is committed, the punishment for that abetment shall extend up to
one-fourth of the longest punishment of the offence committed as a result. If the
offence is not committed, the punishment for the same shall extend up to one-eight
of the longest punishment for that offence, or with fine, or
both.

Judicial pronouncements
Pandala Venkataswami (1881)
This ruling came in 1881 and changed the landscape for abetment laws in India.
The Madras High Court held the liability of a person who prepares an intended
false document in collaboration with others. He/she, if asks for the intended facts
to be written in the false document or buys any stamp for the purpose of that
document, shall be liable for the abetment of forgery. The simple reasoning
provided by the Court depended upon the circumstances of preparation
administered leading to such forgery.
Emperor v. Mohit Kumar Mukerjee (1871)
Sati is a historical Hindu practice where if a woman’s husband dies, she shall die
too by setting herself on fire. In this case, a bunch of people kept pestering and
pushing a woman to commit sati by chanting the name of the Holy Ram. They
followed the woman to the fire and kept chanting Ram Ram. The Calcutta High
Court held everybody who followed the woman while chanting was held guilty of
abetment.
Queen-Empress v. Sheo Dial Mal (1984)
This case is the landmark case for abetment, and the Allahabad Court held that
criminal instigation may be direct or it may be brought through letter. Let’s assume
that a person writes a letter to another person instigating him/her to murder
someone else. Now, if the latter receives the letter relating to the contents of such
instigation, abetment by the former will be charged from thereforth on.
Swamy Prahaladas v. the State of M.P. & Anr., 1995
In the case of Swamy Prahaladas v. the State of M.P. & Anr. (1995), the Apex
Court stated that mere comments spoken in the spur of a moment do not constitute
a mens rea for which a person shall be held liable for abetment by incitement
because something said in rage is not what is sufficient to prove a malafide
intention. To prove that the said words were an abetment, it needs to be proved
beyond a doubt that such words were a form of instigation which depends from
case to case. For the case of abetment by instigation to be challenged in a court of
law, the person must have urged, encouraged, provoked, or incited another person
to commit the substantial offence.
Madan Mohan Singh v. State of Gujarat, 2010
In the case of Madan Mohan Singh v. State of Gujarat (2010), the deceased had
undergone bypass surgery for his heart before the incident took place. The accused
used to tell the victim to do his errands and constantly harassed him. He rebuked
the victim continuously and threatened to fire him. The accused in the case was the
superior officer of the deceased and gave certain orders which the deceased could
not comply with, after which the accused threatened the deceased that he would
suspend the deceased. Listening to all the harsh comments by the accused, the
deceased committed suicide. The Apex Court held the accused not guilty of
abetment by instigation by stating that if every higher official is held responsible in
law for discharging their duties, then no direct nexus can be drawn as to what
should not be considered as abetment.
Protima Dutta v. State of West Bengal, 2015
In the case of Protima Dutta v. State of West Bengal (2015), the callous treatment
of the petitioner’s husband and mother-in-law lead to her committing suicide. The
Supreme Court held in favour of the petitioner even though there was no explicit
instigation due to the illicit treatment by her family which incited her to commit
suicide.
Thakore Nitaben v. State of Gujarat, 2017
In the case of Thakore Nitaben v. State of Gujarat, the Gujarat High Court held
that mens rea is the most important constituent to commit the offence of abetment.
The court also stated that,
“intentional aiding and therefore active complicity is the gist of the offence of
abetment under the third paragraph of Section 107.”
The bench held something substantial in the judgement. Just because there are
vague allegations put forward on the accused, they cannot be held liable for
abetment under Section 107. Abetment of the offence of commission of suicide is a
serious offence.
Assumptions regarding the harassment of the victim, which are not proved or do
not have a direct nexus, do not constitute as abetment. There needs to be a more
proximate proof or allegation beyond a reasonable doubt, that the accused abetted
the commission of a particular offence by their words or actions. These requisite
ingredients are missing in this case.
Sanjay @ Sanju Singh vs The State of Madhya Pradesh, 2019
In this case, the accused fought with his wife and yelled at her to go die. As a
result, the wife killed herself a few days later. The Madhya Pradesh High Court
held that mere words spoken in a fit of rage do not constitute abetment.
Commission of the offence by abetment shall have some close proximity in date of
the occurrence to prosecute a person. Several days months back brawls or
arguments cannot be constituted as abetment. The accused was held not guilty of
the offence on the grounds that the allegations put on him were unsustainable.

Criminal conspiracy under BNS

Introduction
Conspiracy means a combination of two or more persons for unlawful purposes. It
is an agreement between two or more persons to commit an illegal act. Criminal
conspiracy is a substantive offence under the Indian Penal Code, 1860(I.P.C.).
Generally, the accused is charged with the offence of criminal conspiracy along
with the charge of some other substantive offence under the I.P.C. or any other
law. Chapter V-A of the I.P.C. as inserted in 1913 deals with the offence of
criminal conspiracy. In this article, the author will attempt to analyse the
substantive offence of criminal conspiracy with the help of relevant case laws.
Background
Originally, the term ‘conspiracy’ was used to refer to the acts of agreement of two
or more persons to institute a false legal case against someone or to carry on legal
proceedings in a vexatious or improper way.
In Poulterer’s case(1611), the criminal aspect of conspiracy was developed for the
first time by the Star Chamber and conspiracy was recognised as a substantive
offence.
Brief facts of the case are: One Walters along with other defendants imputed a
false charge of robbery on Stone and did everything possible to ruin his family’s
reputation. Rumours were spread that Stone was a gentleman thief and a knave.
However, Stone had an alibi and brought some 30 people to attest that he was in
London on the day the alleged robbery took place. The jury found an ignoramus
and Stone was discharged. Thereafter, Stone brought an action before the Star
Chamber to clear himself of the imputations levelled against him and vindicate his
reputation. The defendants attempted to settle the matter out of court and also tried
to persuade Stone to drop the suit. However, when the process started, the
defendants accused Stone of barratry and also intimated some of his witnesses. The
court held that the mere presence of conspiracy among the defendants, irrespective
of whether Stone was falsely indicted or acquitted is the gist of the offence and can
be considered a crime.
The House of Lords in Mulcahy v. R.(1868) stated that “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 such a design rests in intention only it
is not indictable….” Thus, two or more persons must agree to carry it into effect
and the very plot is an act in itself punishable for a criminal object or the use of
criminal means.
Before the insertion of Chapter V-A, conspiracy under I.P.C. was punishable only
in two forms-

1. By way of abetment under Section 107 I.P.C.

2. By way of involvement in a certain offence (Section 310, Section
401, Section 400 I.P.C.)
Then, in 1870, Section 121A was added which provided punishment for conspiracy
to commit offences punishable by Section 121 i.e. conspiracy to wage or attempt to
wage war against the Government of India.
It is thus clear that conspiracy per se was not a crime under I.P.C. before 1913. The
Criminal Law Amendment Act of 1913 inserted Chapter V-A in the I.P.C. which
introduced criminal conspiracy as a substantive offence.
Definition of Criminal Conspiracy
Section 120A I.P.C.
Section 120A of the I.P.C. defines criminal conspiracy as an agreement of two or
more persons to do or cause to be done-

1. An illegal act, or;

2. An act that is not illegal by illegal means.
Section 43 of the I.P.C. defines the term ‘illegal’ as everything that is an offence or
is prohibited by law or furnishes ground for a civil action.
The Proviso attached to Section 120A provides that a mere agreement to commit
an offence shall amount to criminal conspiracy and no overt act or illegal omission
is required to be proved. Such overt act is necessary only when the object of the
conspiracy is the commission of an illegal act not amounting to an offence. It is
immaterial whether the illegal act is the ultimate object of such agreement or is
merely incidental to that object.
Ingredients

1. Two or more persons agree to do or cause to be done an illegal act or an act

which is not illegal by illegal means i.e. there must be at least 2 persons
who conspire. However, a person may be indicted alone for the offence of
criminal conspiracy if the other co-conspirators are unknown, missing or
dead.
2. Joint evil intent to do an illegal act or an act that is not illegal by illegal
means is necessary.
Punishment of criminal conspiracy
Section 120B of I.P.C. provides for punishment of criminal conspiracy-

1. Where the criminal conspiracy is to commit a serious offence: In cases

where the conspiracy is to commit an offence-

1. Punishable with death,

2. Imprisonment for life or
3. Rigorous imprisonment for a term of two years or upwards
4. and where no express punishment is provided under the Code for such
conspiracy,
every person who is a party to such a criminal conspiracy shall be punished in the
same manner as if he had abetted such offence.
 2. Criminal conspiracy to commit offences other than those covered in the first
category: Whoever is a party to such a criminal conspiracy shall be
punished with imprisonment of either description for a term not exceeding
six months or with fine or with both.

Proof of conspiracy
The offence of criminal conspiracy can be proved by either direct or circumstantial
evidence. A conspiracy is usually hatched in a secret and private setting which is
why it is almost impossible to produce any affirmative evidence about the date of
the formation of the criminal conspiracy, the persons involved in it or the object of
such conspiracy or how such object is to be carried out. All of this is more or less a
matter of inference.
Section 10 of Indian Evidence Act, 1872
Section 10 of the Indian Evidence Act contains the principle that once a conspiracy
to commit an illegal act is proved, an act of one conspirator becomes the act of
another. Section 10 deals with the admissibility of evidence in a conspiracy case. It
provides that anything said, done or written by any one of the conspirators in
respect of their common intention is admissible against all the conspirators for
proving the existence of the conspiracy or that any such person was a party to the
conspiracy. However, the following conditions are to be satisfied before such fact
can be admitted-

1. There should be reasonable ground to believe that two or more persons have
conspired to commit an offence or an actionable wrong.
2. Anything said, done or written by any one of them about their common
intention will be evidence against the others provided it is said, done or
written after the time when such intention was first formed by any one of
them.
Case Laws
Parveen v. State of Haryana (2021) SC
The brief facts of the case are: Four accused were being escorted by the police
from the Central Jail, Jaipur by train to be produced in the Court of CJM, Bhiwani.
On reaching the Railway Station Nangal Pathani, four young boys entered their
compartment, attacked the police party and tried to rescue the accused. The
accused, who were in custody also tried to escape and an attempt was also made to
snatch the official carbine. It was alleged that one of the accused fired upon the
Head Constable, who got injured and later succumbed to his injuries. One accused
was apprehended and the other three fled. The accused were charged under
offences Sections 224, 225, 332, 353, 392, 307, 302, 120-B of the IPC and for
certain offences under the Arms Act. The accused were held guilty by the Sessions
Court and on appeal, the High Court of Punjab and Haryana confirmed their
conviction. The appellant Parveen @ Sonu filed an appeal in the Supreme Court.
The Hon’ble Supreme Court held that it is not safe to hold a person guilty for
offences under Section 120B I.P.C. in absence of any evidence to show a meeting
of minds between the conspirators for the intended object of committing an illegal
act. The Court ordered the acquittal of the appellant and held that it is not safe to
maintain the conviction of the accused on the alleged confessional statements of
the co-accused in absence of any other corroborative evidence.
Kehar Singh and others v. State (Delhi Administration) (1988) SC
The Hon’ble Supreme Court, in this case, has held that the most important
ingredient of the offence of conspiracy is an agreement between two or more
persons to do an illegal act. Such an illegal act may or may not be done in
pursuance of the agreement, but the very agreement is an offence and is
punishable.
Major E.G. Barsay v. The State of Bombay (1962) SC
In this case, it was held that an agreement to break the law constitutes the gist of
the offence of criminal conspiracy under Section 120A IPC. The parties to such an
agreement are guilty of criminal conspiracy even if the illegal act agreed to be
done by them has not been done. The Court also held that it is not an ingredient of
the offence of criminal conspiracy that all the parties should agree to do a single
illegal act and a conspiracy may comprise the commission of several acts.
Ram Narain PoplI v. C.B.I. (2003) SC
In this case, the Supreme Court held that mere proof of the agreement between two
or more persons to do an unlawful act or an act by unlawful means is enough to
convict the parties for criminal conspiracy under Section 120B.
 Attempt to Commit Crime Is In Itself an Offence Under BNS

Introduction
‘Attempt’ in general meaning is said to be an effort to achieve tasks or
activities. “An ‘Attempt to crime’ is when someone tries to commit a crime but
fails. ‘Law of Attempt’ under IPC prevents offenders from attempting the offence
again and helps keep society safer.
‘Attempt’ is not defined in the Indian Penal Code. Section 511 of the IPC only
dealt with punishment for attempting to commit offences.

‘A’ makes an attempt to steal some valuable things by breaking a box and finds
after opening the box, that there is nothing in it. In this case, there is no crime
occurred but it is punishable under the Indian Penal Code because it is considered
as an “Attempt to Commit a crime”.

What is an Attempt to Commit a Crime?

Attempt to commit a crime occurs when a person makes a proper mindset to do a
criminal act and put a step forward for fulfilling by arranging the means and
methods necessary for the commission of that crime but fail to do so.
A person with a proper mindset to commit a crime and also put a step forward to
commit that crime by arranging the means and methods necessary for the
commission but fails. Then we will say that the person has attempted to commit a
crime.
Why is an Attempt to Commit a Crime Punishable?
An attempt to commit a crime is a crime under the Indian Penal Code. Every
attempt, falls short of success must create a threat in the mind of people which by
itself is an injury and the moral guilt of the offender is the same as if he had
succeeded. According to Section 511 of the IPC, only half of the punishment is
awarded because the injury is not as great as if that crime had been committed.
An Attempt to Commit a Crime – An Inchoate Crime?
The term “inchoate” means “undeveloped”, “just begun”, “incipient”, “in an initial
or early stage”.
Inchoate offences cannot be understood in isolation and must be read in
conjunction with substantive offences. A characteristic feature of these offences is
that they are committed even if the substantive offence does not reach a stage of
completion and no consequence ensues.
Thus, if the offence of crime has not been completed, even then a person can be
guilty of an attempt to commit a crime.
Actus reus and mens rea are essentials for a commission of any crime.
Actus reus: Action or conduct which is an element of a crime,
Mens rea: The intention or knowledge of wrongdoing that constitutes part of a
crime.
Here, actus reus to commit a crime is not completed but mens rea to commit the
same crime is completed in an attempt and therefore attempt itself would be said to
have been committed at this stage.
However, some scholars disagree with the usage of the term “inchoate” because
according to them, offences like a conspiracy, attempt, and incitement are
complete in themselves although they form steps in the process of reaching an end,
that is Actual commission.

The BNS 2023 and the Law of Attempt

The word attempt is not defined in IPC but there are some cases in which the
Supreme Court has tried to clear the concept of attempt.
In the case of Koppula Venkata Rao vs State of A.P. the Supreme Court has said
that ‘Attempt’ should be taken as ordinary meaning. The ordinary meaning of
‘Attempt’ to commit an offence is an act or series of acts which leads inevitably to
the commission of the offence unless something which the doer of the act neither
foresaw not intended happens to prevent this.
Section 511 of IPC deals with “Punishment for attempting to commit offences
punishable with imprisonment for life or other imprisonments”.
This section deals with the one-half of imprisonment for life or one-half of fine as
provided for offences or both.
Click here

Stages in the Commission of an Offence

There are four stages in the commission of an offence:

 intention to commit an offence;

 preparation to commit an offence;
 attempt to commit an offence; and
 the actual commission of the offence.

1. Intention: Everyone cannot prove malice by looking at the brains of

criminals. It is a psychological factor. It is impossible to know exactly the
intention of a person. However, the acts of people and the context in which
they act are often used to clearly indicate the intention of a person. So, it is
not punishable.
But there are some exceptions in which ‘Intention to commit a crime’ are
punishable. These exceptions are:
i) Waging war against the Government (Section 121,122,123)
ii) Sedition (Section 124 A)
2. Preparation: Preparation means ‘to arrange the means or measure for intending
criminal act’. It is difficult to prove that the preparation was made for committing
an offence.
For example: ‘A’ buys a knife for the purpose of killing ‘B’ but after some time,
his intention to kill ‘B’ has changed and he used that knife in the kitchen. In this
way, we can not be held liable for arranging means and measure for murder. So,
mere preparation is not punishable under IPC.
But there are some exceptions in which mere preparation is punishable in IPC:
i) Preparation to commit Dacoity (Section 399);
ii) Preparation for counterfeiting coins and government stamps;
iii) Waging war (Section 122).

3. Attempt: Attempts to commit a crime are basically a positive step toward

committing the contemplated crime after preparations have been made. The
trail cannot be cancelled. Once an attempt is made, the perpetrator cannot
change his/her mind and return to its original state without committing a
crime.
4. Commission of Crime: The actual commission of the offence leads to
criminal liability. If the accused succeeds in his attempt, the offence is
accomplished. If he missed then it is considered as an attempt.
“If ‘A’ shoots ‘B’ by pistol to kill him. If ‘B’ dies, then ‘A’ is liable for murder. If
‘B’ is injured, then ‘A’ is liable for Attempt to murder”.
“If ‘A’ makes an attempt to pick the pocket of ‘Z’ by inserting his hand into Z’s
pocket. ‘A’ fails in the attempt in reason of Z’s having nothing in his pocket. But
‘A’ is guilty under Section 511 of the ‘Indian Penal Code’ because he has
attempted to commit the offence by putting a positive step towards the commission
of the offence.
An Attempt to Commit all Offence: Approach of the BNS 2023
There are four different ways to deal with an offence in the Indian penal code:

 In some cases, the commission of offences and attempt to commit that

offence have been dealt with the same section and the same punishment is
prescribed for [Link] provisions are contained in Sections
 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198,
200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460.
 Attempt to commit offence and commission of the same offence, both have
separate punishment in Indian penal code e.g. Section 302 BNS (103) dealt
with punishment of murder and Section 307 BNS (109) dealt with an
attempt to murder.
 Section 309 BNS (226) dealt with punishment of attempt to commit suicide.
 There are some cases where no specific provisions are made regarding an
attempt. Section 511 BNS (62) of the IPC deals with such type of cases,
which provided that accused shall be punished with ½ of the longest term
of imprisonment mentioned for the offence or with fine mentioned for
offence or both.
Attempt
Stages in the Commission of an Offence
and Essential Elements
An attempt is defined in the case of Aman Kumar v. State of Haryana as follows:

Attempt consist in it the intent to commit the crime.

 If any person failed to achieve that intention.
Abhayanand Mishra v state of Bihar
In this case, the Supreme Court has described essential elements of ‘Attempt’ as
follows:
i) Accused has an intention or means rea to commit the intended offence.
ii) He has taken a step forward (that is an act or step which was more than
preparatory to the commission of the intended offence towards the commission of
the contemplated offence).
iii) He failed to commit that intended offence by any reason.
When does Preparation end and Attempt Begin?
In Aman Kumar v State of Haryana, the Supreme Court held that the word
‘Attempt’ is to be used in its ordinary meaning. There is a difference between
intention to commit offence and preparation. Attempt begins and preparation ends.
It means when any step is taken towards committing that offence is considered as
ends of preparation and begins of attempt.
Tests for Determining Whether an Act Amounts to a Mere Preparation or an
Attempt to Commit an Offence
At what stage an act or series of acts is done toward the commission of act
intended would be an attempt to commit an offence. Some principles have been
evolved to solve that issue:
(a) The Proximity Rule: Proximity in Relation to Time and Action or to Intention?
The Proximity test examined how much the defendant close to completing that
offence. Measured difference is the distance between preparation for the offence
and successfully completion of that offence. In the case of Commonwealth v.
Hamel, it was held that the proximity rule amount left to be done, not what has
already been done, that is analyzed.
(b) The Doctrine of Locus Poenitentiae
It deals with those cases in which an individual made preparation to commit the
crime but changes his mind at the end, thereby pulling out at the last instant. Such
intentional withdrawal prior to the commission or attempt to commit the act will be
termed as mere preparation for the commission of the crime and no legal liability
will be imposed.
(c) The Equivocality Test
‘Equivocality Test’ is used to differentiate between preparation and attempt in
a criminal case. When a person’s conduct, in itself, shows that the person actually
intends to carry out a crime without reasonable doubt, then the conduct is
a criminal attempt to commit that crime.
An act is proximate if it indicates beyond reasonable doubts what is the end
towards which is directed. The Act to commit a specific crime is constituted when
an accused person does an act which is a step towards the commission of that
crime and doing of such an act cannot reasonably be regarded as having another
purpose than the commission of that specific crime.
(d) Attempting an Impossible Act
If a person attempts to commit a crime which is impossible, then also it will be
punishable under the Indian Penal Code.
If a person attempts to kill someone by empty gun, or steal something from an
empty pocket, or steal jewels from empty jewel box. Then it is considered as an
impossible attempt of committing that crime but here intention to commit the
crime is present and also a step is taken towards completion of that crime. Thus it
is considered as ‘attempt to crime’ under Section 511 of the IPC.
SECTION 62. Of attempt
62. Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for
life or imprisonment, or to cause such an offence to be committed, and in such attempt does any
act towards the commission of the offence, shall, where no express provision is made by this
Sanhita for the punishment of such attempt, be punished with imprisonment of any description
provided for the offence, for a term which may extend to one-half of the imprisonment for life
or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or
with such fine as is provided for the offence, or with both.
Illustrations. (a) A makes an attempt to steal some jewels by breaking open a box, and finds after
so opening the box, that there is no jewel in it. He has done an act towards the commission of
theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket.A fails in
the attempt in consequence of Z’s having nothing in his pocket. Ais guilty under this section
BNS 109.
(1) Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable either to imprisonment for life, or
to such punishment as is hereinbefore mentioned.
(2) When any person offending under sub-section (1) is under sentence of
imprisonment for life, he may, if hurt is caused, be punished with death or with
imprisonment for life, which shall mean the remainder of that person’s natural
life.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if
death ensued, A would be guilty of murder. A is liable to punishment under this
section.
(b) A, with the intention of causing the death of a child of tender years, exposes it
in a desert place. A has committed the offence defined by this section, though the
death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the
offence. A fires the gun at Z. He has committed the offence defined in this
section, and, if by such firing he wounds Z, he is liable to the punishment
provided by the latter part of sub-section (1).
(d) A, intending to murder Z by poison, purchases poison and mixes the same
with food which remains in A’s keeping; A has not yet committed the offence
defined in this section. A places the food on Z’s table or delivers it to Z’s servants
to place it on Z’s table. A has committed the offence defined in this section.
BNS 110.
Whoever does any act with such intention or knowledge and under such
circumstances that, if he by that act caused death, he would be guilty of culpable
homicide not amounting to murder, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both;
and, if hurt is caused to any person by such act, shall be punished with
imprisonment of either description for a term which may extend to seven years, or
with fine, or with both.
Illustration.
A, on grave and sudden provocation, fires a pistol at Z, under such circumstances
that if he thereby caused death, he would be guilty of culpable homicide not
amounting to murder. A has committed the offence defined in this section.
BNS 226.
Whoever attempts to commit suicide with the intent to compel or restrain any
public servant from discharging his official duty shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with both,
or with community service.