Conspiring Minds and Criminal Designs

The Bharatiya Nyaya Sanhita (BNS), 2023, modernizes criminal law in India. The important provisions on abetment, criminal conspiracy, and attempt focus on punishing not just the act but also its preparation and support.

When is a person said to abet the doing of a thing?

A person abets the doing of a thing when he:

• instigates any person to do that thing; or
• engages with one or more persons in a conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or
• intentionally aids, by any act or illegal omission, the doing of that thing.

What does it mean to instigate the doing of a thing?

A person who, by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Is there an illustration of abetment by instigation?

A, a public officer, is authorised by a warrant from a court to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here, B abets by instigation the apprehension of C.

When is a person said to aid the doing of an act?

Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

What is required to constitute abetment?

To constitute abetment, there must be a course of conduct or action of intentionally aiding or facilitating another person to end life. (Common Cause v. Union of India, (2018) 5 SCC 1)

Is abetment by conspiracy the only form of abetment?

No. Abetment by conspiracy is only one form of abetment. There can be alternate charges such as abetment by instigation and intentional aiding even if there is no conspiracy. (Somasundaram v. State, (2020) 7 SCC 722)

Who is called an abettor?

A person is an abettor if he abets either the commission of an offence or the commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Is abetment of an illegal omission also an offence?

Yes. The abetment of the illegal omission of an act may amount to an offence even though the abettor may not himself be bound to do that act.

Is it necessary for the act abetted to be committed to constitute abetment?

No. To constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.

Are there any illustrations of abetment where the act is not completed or the result is different?

• A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
• A instigates B to murder D. B stabs D in pursuance of the instigation. D recovers. A is guilty of instigating B to commit murder.

Must the person abetted be capable of committing the offence?

No. It is not necessary that the person abetted should be capable by law of committing an offence or have the same guilty intention or knowledge as the abettor.

Are there any examples where the abetted person is not capable of committing an offence?

• A, with guilty intention, abets a child or person of unsound mind to commit an act that would be an offence if done by someone legally capable. A is guilty whether the act is committed or not.
• A instigates B, a child under seven, to do an act that causes Z’s death. Though B cannot commit an offence legally, A is liable as if B had committed murder.
• A instigates B, of unsound mind, to set fire to a house. B acts under the instigation but has no legal capacity. A is guilty of abetment.
• A instigates B to take property from Z, inducing B to think it is A’s property. B takes it believing so and commits no theft. A, however, is guilty of abetting theft.

Is abetment of an abetment also an offence?

Yes. The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Is it necessary that all co-conspirators directly conspire with the person who commits the offence?

No. It is sufficient if a person engages in a conspiracy in pursuance of which the offence is committed, even without directly conspiring with the perpetrator.

Is there any illustration of this kind of conspiracy?

Yes. A and B plan to poison Z, with A administering the poison. B tells C about the plan, not naming A. C agrees, procures the poison, and gives it to B. A administers it and Z dies. Though C did not conspire with A, he is guilty.

Is abetment in India of an offence committed outside India punishable?

Yes. A person in India who abets the commission of an act outside India, which would be an offence if committed in India, is guilty of abetment.

Is there any illustration?

Yes. A, in India, instigates B, a foreigner in country X, to commit a murder there. A is guilty of abetting murder.

Is abetment outside India of an offence committed in India punishable?

Yes. A person who, outside India, abets the commission of an offence in India, is guilty of abetment.

Is there any illustration?

Yes. A, in country X, instigates B to commit a murder in India. A is guilty of abetting murder.

What is the punishment for abetment of an offence punishable with death or imprisonment for life if the offence is not committed?

If a person abets the commission of an offence punishable with death or imprisonment for life and the offence is not committed, they shall be punished with imprisonment up to seven years and shall also be liable to fine.

What if the abetment is by a public servant whose duty it is to prevent the offence?

If such abetment is committed by a public servant whose duty it is to prevent the offence, the punishment shall be imprisonment for life or imprisonment up to ten years and fine.

Are there any illustrations?

• A instigates B to murder C. The offence is not committed. A is liable to imprisonment up to seven years and fine.
• A, a police officer, instigates B to commit murder. B does not commit the offence. A is liable to imprisonment for life or ten years and fine.

What is the punishment for abetment of an offence punishable with imprisonment if the offence is not committed?

If a person abets an offence punishable with imprisonment and the offence is not committed, they shall be punished with imprisonment for a term that may extend to one-fourth of the longest term provided for the offence, or with such fine as provided, or both.

Are there any illustrations?

• A instigates B to commit house trespass. B does not comply. A is liable to one-fourth of the longest term for that offence.
• A instigates B to steal from C. B does not commit theft. A is liable accordingly.

What is the punishment if a public servant abets an offence they are legally bound to prevent?

They shall be punished with imprisonment up to five years, or with fine, or both.

Is there an illustration?

Yes. A, a police officer, is legally bound to prevent robbery. He aids the commission of a robbery. A is guilty of abetment and punishable accordingly.

What is the punishment for abetment if the person abetted is a public servant whose duty is to prevent the offence?

If the person abetted is a public servant whose duty is to prevent the offence and he fails in such duty in consequence of abetment, the abettor shall be punished with imprisonment up to three years, or with fine, or both.

Is there an illustration?

Yes. A attempts to bribe B, a police officer, to let a thief escape. B agrees and lets the thief escape. A is guilty of abetting the escape of a person in lawful custody.

What is the punishment for abetment of offences punishable with imprisonment if the offence is committed?

The abettor shall be punished with the same punishment as is provided for the offence abetted.

Does it matter if the person abetted is a child or a person of unsound mind?

No. The abettor is punishable as if the offence were committed by someone legally capable.

Are there any illustrations?

• A instigates B, a child, to cause grievous hurt. B does so. A is liable for grievous hurt.
• A aids a child in committing theft. The child commits the act. A is liable for theft.
• A aids B, of unsound mind, to kill Z. B does so. A is liable for murder.

What is a criminal conspiracy?

A criminal conspiracy is when two or more persons agree with a common object to do, or cause to be done an illegal act; or an act which is not illegal by illegal means. Such an agreement is designated as a criminal conspiracy.

Is an agreement alone enough to constitute a criminal conspiracy?

No, the proviso states that no agreement, except an agreement to commit an offence, shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Does it matter whether the illegal act is the ultimate object or incidental to the object of the agreement?

No. According to the explanation, it is immaterial whether the illegal act is the ultimate object of the agreement or is merely incidental to that object.

What is the punishment for a criminal conspiracy other than one to commit an offence punishable with death, life imprisonment, or rigorous imprisonment for two years or more?

In such cases, the punishment shall be imprisonment of either description for a term not exceeding six months, or with fine, or with both.

What are the essential ingredients to prove a charge of criminal conspiracy?

To prove the charge, the prosecution must establish that:

• Two or more persons agreed to do or cause to be done an illegal act,
• Or an act which is not legal, by illegal means.

It is immaterial whether the illegal act is the ultimate object or merely incidental to that object. (Saju v. State of Kerala, (2001) 1 SCC 378)

Can there be separate or overlapping conspiracies within a larger criminal conspiracy?

Yes. There may be a general conspiracy and separate ones. A larger conspiracy can include smaller ones developed in successive stages involving different accused persons. For instance, if defalcations are made in various years by different combinations of accused persons, separate trials are legally permissible. (State of Jharkhand v. Lalu Prasad, (2017) 8 SCC 1)

What is necessary to prove a conspiracy?

There must be an agreement between parties to do an unlawful act. Since direct evidence is hard to obtain, an inference may be drawn from established facts. However, there must be some material to reasonably connect the alleged conspiracy to the act done in pursuance. (Vijayan v. State of Kerala, (1999) 3 SCC 54)

Are separate trials necessary if conspiracy leads to distinct offences?

Yes. If a general conspiracy results in different offences across various regions or times (e.g., multiple killings), there should be separate trials and punishments. A single trial for all could allow the accused to escape punishment for specific acts, which is not the intent of the law. (State of Jharkhand v. Lalu Prasad, (2017) 8 SCC 1)

How is conspiracy generally proved in court?

Criminal conspiracy is usually proved by circumstantial evidence, as it is often planned in secrecy. Each conspirator plays a role in achieving the common objective. The collective conduct and circumstances are examined rather than isolating each accused’s role. The acts must clearly and consciously reflect participation in the common design. (State (NCT of Delhi) v. Shiv Charan Bansal, (2020) 2 SCC 290)

Is abetment by conspiracy the only form of abetment?

No. Abetment by conspiracy is only one form. There can be alternate forms such as abetment by instigation or intentional aiding, even in the absence of a conspiracy. (Somasundaram v. State, (2020) 7 SCC 722)

What is the punishment for attempting to commit an offence punishable with life imprisonment or other imprisonment?

Whoever attempts to commit an offence punishable by the BNS with imprisonment for life or other imprisonment, or attempts to cause such offence to be committed, and does any act towards its commission, shall:

• If no express provision is made 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.

Is there any example of an attempt that constitutes an offence?

A makes an attempt to steal some jewels by breaking open a box. He finds, after opening the box, that there are no jewels. Since he did an act toward committing theft, he is guilty.

What if an attempt fails due to circumstances beyond the control of the offender?

Even then, the offender is guilty.

A attempts to pick Z’s pocket by thrusting his hand into the pocket. He fails because Z has nothing in the pocket. A is still guilty because he performed an act towards the commission of the offence.

Therefore, by covering abetment, conspiracy, and attempt, the BNS ensures accountability even before a crime is completed, strengthening the legal system’s preventive framework.

Muneeb Rashid Malik is an Advocate.

He tweets @muneebmalikrash.