LAW OF CRIMES

UNIT 3
TOPIC 1

ATTEMPT
•An attempt is known as preliminary crime or
inchoate crime as it is something which is not yet
complete. ‘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. 

•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.
 The following are the essentials of an attempt
to commit a crime-
•  There must be “an intention to commit a
crime”
• Act so done must be “in furtherance of that
intention” or “towards the accomplishment of
that crime”
• The act must be “an incomplete work” or “fall
short of a completed crime”
• Hence when the above essentials are fulfilled it is proved that the act done
was an attempt to commit a specific crime or crimes and is held to be
punishable.
• In other words, the punishable act is when the preparation ceases and
attempt begins to achieve that intended result. Such an act is not required
to be “a penultimate act” but any act which is ““towards the commission
of the crime” coupled with an intention to do accomplish it.
 SCHOLARLY DEFINITIONS
(a.) STEPHEN : “An attempt is an act done with
intent to commit a crime, forming a part of a series
of acts which would constitute the actual
commission if it was not interrupted.”
(FOR EXAMPLE: Poisoning with intention to cause
death, if not interrupted death would have occurred)
(b.) MAYNE : “An attempt is a direct movement
towards commission of an act after preparation has
been made.”
(c.) COPEN CJ in Queen v MCPHERSON : “An
attempt is something that falls short of the
commission.” 
ATTEMPT PUNISHABLE UNDER PENAL
LAW
• There are various provisions in the Indian Penal Code
which punish the attempt of a crime. There are four
ways in which an attempt is made punishable under
the penal law in India.
They are:
1. The first way in which attempt is penalised is the
category of crimes where the punishment for the
attempt of that offence is expressly provided by
the penal law and also “the penalisation of crime
as well as its attempt in the same section”, such as-
• OFFENCES AGAINST THE STATE : s. 121,s.
124, s. 124-A, s. 125, s. 130
• OFFENCES AGAINST THE PUBLIC
TRANQUILLITY : s. 152, s. 153-A
• OFFENCES RELATING TO COINS AND
GOVERNMENT STAMPS s. 239-241 and s. 251)
• OFFENCES RELATING TO EXTORTION,
ROBBERY AND DACOITY :s. 385, s. 387, s. 389,
s. 391, s. 397, s. 398)
• CRIMINAL TRESPASS (s 460)
2. The attempt in the second category is separately
dealt and has a separate section for actual crime
and its attempt and punishable respectively, such
as-
• ATTEMPT TO COMMIT MURDER (S 307)
• ATTEMPT TO COMMIT ROBBERY (S 393)

3. This category punishes only the attempt and

doesn’t / can’t punish the crime itself, such as:
• ATTEMPT TO COMMIT SUICIDE (S 309)
 4. The last category is where it gives punishment
for an attempt of those crimes whose
punishment is not given expressly by the law,
which is :
•  ATTEMPT TO COMMIT OFFENCES, FOR
WHICH NO SPECIFIC PUNISHMENT IS
PROVIDED IN THE IPC (S 511)

• Section 511 of the IPC only deal with punishment

for attempting to commit offences and doesn’t
define the term Attempt.
511. Punishment for attempting to commit offences punishable
with imprisonment for life or other imprisonment.—
Whoever attempts to commit an offence punishable by this
Code 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 Code 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. A is guilty under this
section.
• FOR EXAMPLE: If a person purchases a weapon or
gun and keeps it ready and loaded, with the intention to
use it on a particular person but no overt action is made
against that person. Then it is at the stage of preparation
yet, and not punishable.
But if he tries to shoot or use the weapon by his overt
actions or if is caught arrested with a loaded gun or
pistol or ready weapon before he is able to complete the
attack or if the attack or attempt fails, then he has
committed the offence of attempt to murder
• 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. 
 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
• ACTUAL COMMISSION
(Accomplishment) of the offence.
 LETS DISCUSS EACH OF THESE STAGES IN
DETAIL:
1) INTENTION: Everyone cannot prove malice by
looking at the brains of criminals. It is a psychological
factor. So, it is not punishable. (In detail, we have
already discussed about Mens Rea)
2) PREPARATION: 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.
• The second stage of the commission of a crime is
preparation. The term preparation has not been
defined in the code. This means devising means is
always necessary for the commission of a crime.
The preparation consists of arranging or building
things that are needed to commit the crime. At this
stage, the intention to cause harm starts manifesting
itself in the form of physical actions, it is, however,
possible for the person to abandon his course of
action without causing any harm to anyone.
• Generally speaking, a preparation to commit a crime is not punishable. It is difficult for
the prosecution to prove that necessary preparation has been made for the
commission of the offence. In most cases, the prosecution has failed to prove the
question of preparation for the commission of the particular crime.
• For instance, if a person is having a loaded pistol, it may have the intention of self-
defence or to kill some other person, mere having loaded pistol does not frame any
charge.
• Exceptions:
In the Indian Law, Mere Preparation to commit an offence is punishable in the
following offences.
*Waging War
*Preparation to commit a dacoity
*Preparation for counterfeiting coins and Government stamps
*Possessing counterfeit coins,
*false weight or measurement and forged documents.
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.
• FOR EXAMPLE: “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”.

• FOR EXAMPLE: “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. 
 CASE LAW: ABHAYANAND MISHRA  V
STATE OF BIHAR, 1962 SCR (2) 241
• RATIO DECIDENDI: In this case, the Supreme
Court has described essential elements of ‘Attempt’
as follows:
• Accused has an intention or means rea to commit
the intended offence.
• 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).
• He failed to commit that intended offence by any
reason.
 CASE LAW: SATVIR SINGH VS. STATE OF
PUNJAB (AIR 2001 SC 2828)
• RATIO DECIDENDI: It was observed that Section
511 of the Indian Penal Code makes attempt to
commit an offence punishable. The offence attempted
should be one punishable by the Code with
imprisonment. The conditions stipulated in the
provision for completion of the said offence are-
(i)the offender should have done some act towards
commission of the main offence;
(ii) such attempt is not expressly covered as a penal
provision elsewhere in the Code. Thus attempt on the
part of the accused is sine qua non for the offence
under Section 511, IPC.
 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: (The state of being near) This
Principle says that how proximate the act done by one is to
complete the crime intended by that person. That is, if there is
an act or series of acts done by the accused which is/are
considered to be an attempt towards crime by the court then
such act or acts may not be the final act to accomplish the
intended crime. But may be so closely connected to the
accomplishment and which according to the law is proximate
enough to the final crime intended.
• In the case of R v. Taylor (1895 I F & F 511)
the accused who had the intention and made
preparation to set the haystack ablaze. Took a
matchstick and lit it but then put it off for the
reason of being watched. When the accused was
caught for his act. He contended that he was
merely preparing for such an act but did not
attempt as the matchstick was put off and it was
still in his control whether to fire it or not.
The court rejected the contention and held that as the
act of firing the matchstick was the overt act which
was towards the accomplishment of the crime and was
considered an attempt to arson.
The mere fact that the match stick was put off due to
the fear of be due to the fear of being watched was
irrelevant.
In the case of R v. Raisat Ali, ((1881) ILR 7 Cal
352.) a prisoner ordered for making of 100 forms
which are similar to the former receipt forms
used by Bengal Coal Company to some Burdwan
Press. First proof was altered and and correct
while the second proof was suggested for
corrections and alterations similar to that of the
forms of company. Police caught hold of them
and charged them for attempted forgery under
section 464 of IPC.
The court held that the act was not an attempt as the
forms did not have the name of the company nor its
seal. This shows that the act was not considered by the
court to be proximate to the act of forgery i.e. when
there are the name and seal of the company, then it was
ready or able to cheat people with forged forms.
Hence this case too helped in better understanding what
is the difference between attempt and preparation.
(B)THE DOCTRINE OF LOCUS POENITENTIAE (feeling
of sorry)

• 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.
Emperor Vs. Ram Saran: -
The accused in order to forge a document in the name of X set his servant S
asking him to misrepresent himself as X before the stamp window and
procure the stamp paper in X’s name. The servant was arrested and further
progress was stopped. It was held that it was a prepration
Emperor Vs. Ramakhor:-
A women on account of the quarrel with her father and brother ran towards
a well shouting that she would jump in it and commit suicide. She was coght
when she reacged the well. It was held that she was not guilty of attampt to
commit suicide. She should have done something so that she may have
fallen in it i.e by trying to jump from the parapet Wall.
(C) THE EQUIVOCALITY TEST  (Uncertain, Doubtful)
• ‘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.
• This test is a mingle of the above two principles. This test
requires the unequivocal intention through the act done
which is considered to be fulfilling beyond a reasonable
doubt that the end is towards the intended crime.
In the case of State v. Parasmal (AIR 1969 Raj 65)
• The accused received an order on buying diesel of good quality and they asked the
customer to come the next day. That night the accused were seen mixing the diesel
with kerosene and were charged with the offence by the next day.
The accused claimed that what they did was mere preparation. Then the court
observed that when they knew that the customer was going to come the next day
and in furtherance, the accused tried to add diesel and kerosene night its itself so
that they are not caught or seen by the customer. And they did so to act in a way to
cheat that diesel was of good quality.
Hence this shows how equivocally they acted in furtherance of their intention. Thus,
the test was observed to be useful in determining the equivocality.
(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 and will be considered as ‘attempt to
crime’ under Section 511 of the IPC.
• The law which is given to us deals with the attempt to commit a crime which
is possible to be achieved. Further, some of the rules laid down by various
jurists is that if an act is towards the commission of the crime, i.e, at the verge
of being committed then it is considered as an attempt of that particular act.
then what if the crime is an impossible event to take place? what if that crime
can never be achieved in the first place? Will that free the wrongdoer?
Yes, the law does not leave the attempter of crimes which is
impossible to achieve as an innocent. This is evident from the
illustrations provided by the lawmakers of our penal code in section
511.
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. A is guilty under this section.
Impossibility can occur due to mainly three reasons i.e., legal
impossibility, where the act done by the accused is not considered a crime
in the eyes of law and which the accused may or may not be aware of
Physical Impossibility, where the accused is physically not able to make
that crime a possible event. And Impossibility due to inefficiency, where
the accused having chosen a manner or mode to commit a crime is
inefficient to make that event possible.
Munah Binti Ali v. Public Prosecutor  (1958) 24 Malayan Law Journal 159(CA)

In the case of R v. Shivpuri, ([1986] 2 All ER 334 (HL)

the accused was arrested by the Customs Officers for being doubtful that he was
carrying prohibited items. Later on, the accused said that he was carrying with him
prohibited drugs which on scrutiny turned out to be snuff powder and not drugs.
The mere fact that he did not know what exactly he was in possession of was
immaterial as he had the knowledge that he was dealing in something prohibited by
law to do so. Thus in the purview of section 1 of the act, he was held convicted.
 TOPIC 2
ABETMENT
• The term 'ABET' in general usage means to assist,
advance, aid, conduce, help and promote or to
counsel; to countenance; to encourage; induce
another.

• In usual parlance, a person is held to be liable only

if he or she has personally committed a crime.
Detouring from the usual concept, the concept of
Abetment says, that he who has helped the criminal
or provided him with any assistance in any form can
also be  held to be liable. 
• CHAPTER 5 OF THE INDIAN PENAL CODE,
1860 DEALS WITH OFFENCES RELATING
TO ABETMENT. Abetment basically means the
action of instigating, encouraging or promoting a
person into committing an offence. It can also mean
aiding the offender while he is committing a crime.

• FOR EXAMPLE: one person may procure a gun

and hand it over to another who may shoot
somebody with it. The former person is guilty of
abetment, while the latter commits murder.
107. Abetment of a thing.—A person abets the
doing of a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person
or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the
doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal
omission, the doing of that thing.
 Explanation 1.—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.
Illustration
• A, a public officer, is authorised by a warrant from a Court of Justice to
apprehend Z, B, knowing that fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.
• Explanation 2.—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.
• The definition of abetment under Section 107, IPC
requires a person to abet the commission of an
offence. THIS ABETMENT MAY OCCUR IN
ANY OF THE THREE METHODS THAT THE
PROVISION PRESCRIBES. They are:

• (1) INSTIGATING a person to do that thing; or

• (2) engaging with another person (or persons) in
a CONSPIRACY to do that thing; or
• (3) INTENTIONALLY AIDING a person to do
that thing.
• ABETMENT BY INSTIGATION: The word
'instigate' literally means to urge, provoke, incite, or
encourage to do an act and a person is said to
instigate another when he actively suggests or
stimulates him to the act by any means, or language,
direct or indirect, whether it take the form of express
solicitation or of hints, encouragement or a willful
misrepresentation or willful concealment of a
material fact.
• Advice amounts to instigation only when intended to
actively suggest or stimulate the commission of an
offence.
The meaning of ‘instigate’ is to incite, urge, provoke or bring about by
persuasion to do anything which the law prohibits. The act of instigating a
person could take any form. It may be by conduct. There must be a proximate
causal connection between instigation and the act committed as a result. Also, a
person may be instigated by suggesting, stimulating, supporting, hinting or
insinuating the commission of the act
The instigation must be related to the thing that was committed and not with
the thing that was likely to have been done by the person in pursuance of
instigation. The mere utterance of words, without the necessary intent to incite
a person, words said in the middle of a quarrel or in a spur of the moment
because of anger does not constitute ‘instigation’.
Giving approval for an act could also amount to instigation. Although passive and
unresponsive approval may not necessarily amount to instigation, there are specific
instances wherein providing approval has been considered as instigating the act.
For example, committing sati where the woman is applauded by the family
members for entering the funeral pyre of her husband as an act of encouraging the
woman to commit suicide.
Act of wilfully misrepresenting or concealing material facts which a person is bound
to disclose thereby causing or procuring a thing to be done has been held to
amount to instigation.
For example- Where a public officer is authorized by a warrant to
apprehend a criminal, and A knowing these facts and that B is not
the criminal concerned here, wilfully represents to the public
officer that B is the criminal, as a result of such conspiracy and
thus mere agreement is not sufficient for conviction.
However, in case of criminal conspiracy, the very agreement or
plot is the act to establish the conviction of the participants of
the conspiracy.
• Instigation to commit an offence is an act of inciting
or urging or prompting a man to do a thing
prohibited by law. An act, in order to be called
instigation requires that some active role must be
played by the abettor. Mere acquiescence or silence
does not amount to instigation.
• For example, A says to B, “I am going to stab C.” B
replies, “You may do as you wish and take the
consequences.” A goes and stabs C. B cannot be said
to have instigated A to stab C.
There might be occasions when the approval of an act
leads to an instigation in the particular circumstances
of the case. In Queen v Mohit, it was held that the
persons who followed a woman preparing herself for
sati to the pyre, and chanted “Rama Rama”, were
guilty of abetment by instigation to lead that woman
to commit suicide. The very fact that such persons
approved of the woman’s act by participating in the
procession gave encouragement to the woman to
commit suicide.
(2) ABETMENT BY CONSPIRACY

Conspiracy basically means an agreement between

two or more persons to commit an unlawful act.
Thus, the conspirators must actively agree and prepare
themselves to commit that offence. Furthermore, the
act which the conspirators conspire to commit itself
must be illegal or punishable.
Commission of abetment by engaging with one or
more persons in a conspiracy to commit an offence
constitutes the offence of abetment by conspiracy.
It is important to note that conspiracy and abetment by conspiracy
are distinct offences. Abetment by conspiracy requires that the act
or illegal omission abetted must take place as a result of such
conspiracy and thus mere agreement is not sufficient for conviction.
However, in case of criminal conspiracy, the very agreement or plot
is the act to establish the conviction of the participants of the
conspiracy.
A person is said to abet the commission of an offence by
conspiracy if he enters into an agreement with one or
more persons to do a legal act by illegal means, or to do
an illegal act, and some act is done in pursuance thereof.
For instance, A, a servant enters into an agreement with
thieves to keep the doors of his master’s house open in
the night so that they might commit theft. A, according to
the agreed plan, keeps the doors open and the thieves
take away his master’s property. A is guilty of abetment by
conspiracy for the offence of theft.
(3) ABETMENT BY AIDING
The third manner in which abetment may take
place is by intentionally aiding the offender in
committing that offence. This generally
happens when the abettor facilitates the crime
or helps in committing it. The intention to aid
the offender is very important.
A person is said to abet the commission of an offence if he
intentionally renders assistance or gives aid by doing an act
or omitting to do an act prohibited by law. Mere intention to
render assistance is not sufficient. There must be some
active conduct on the part of the abettor and the act must
be accomplished in pursuance thereof.
A incites B to kill C by uttering the words “maro, maro”
(“beat him, beat him”) and D puts a knife in B’s hand. Here,
both A and D are guilty of abetting the offence of murder,
one by instigation and the other by aiding to commit the
offence.
Aid may be given both by an act of commission
as well as by an act of illegal omission.
For instance, if a police officer keeps himself
away from place knowing that certain persons
were likely to be tortured for the purpose of
extorting confession, he is liable for abetting the
offence of extortion by an act of omission.
 A person who abets by intentionally aiding commits certain acts enumerated
hereunder:
• Doing an act directly assisting the commission of the crime
• Illegally omitting to do a thing which one is bound to do
• Doing an act which may facilitate the commission of a crime by another
Mere presence of the abettor is not sufficient to constitute the offence of
abetment by intentional aid unless his presence is intended to have the effect
of aiding. Also, if the person does not know about the offence being committed
then his facilitation in doing the ‘thing’ does not amount to aiding.
In the case of Ram Kumar v. State of Himachal
Pradesh, where a head constable dragged a 19-year-old
married girl and her husband to the police station and
thereafter took her to another room and raped her, while
another constable kept an eye on the hapless husband who
helplessly heard the screams of his wife. The court found the
constable who kept an eye on the husband to have facilitated
and thereby abetted the rape by his conduct.
 CASE LAW : IN QUEEN V. MOHIT ((1871) 3
NWP 316)

RATIO DECIDENDI: The persons who followed a

woman preparing herself to be a sati on the pyre of
her husband and chanted, Rama, Rama were held
guilty of abetment by instigation to lead that
woman to commit suicide. Their approval of the
woman's act by participation in the procession gave
encouragement to the lady to commit suicide. A
person may incite another by threats or pressure as
well as by persuasion.
CASE LAW: JAMUNA SINGH V. STATE
OF BIHAR(AIR 1967 SC 553 )
RATIO DECIDENDI : The offence of
abetment is complete when the alleged abettor
has instigated another or engaged with another
in a conspiracy to commit the offence. It is not
necessary for the offence of abetment that the
act abetted must be committed.
CASE LAW : IN RAM KUMAR V. STATE OF
HP(AIR 1995 SC 1965)
RATIO DECIDENDI: The Supreme Court
considered the case of a constable who dragged a
young newly married 19-year-old girl and her
husband from the latter's brother's house. In the
police station, the head constable took the girl to a
room, repeatedly beat her and committed rape on
her, while the other constable kept watch in outside
holding the hapless husband, who was helplessly
hearing the frantic screams of his wife.
The Supreme Court held that the constable by his
conduct had abetted rape and therefore, did not merit
acquittal.
108. Abettor.—A person abets an offence, who 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.
Explanation 1.—The abetment of the illegal omission of an
act may amount to an offence although the abettor may not
himself be bound to do that act.
Explanation 2.—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.
Illustrations
(a)A instigates B to murder C. B refuses to do so. A is guilty of
abetting B to commit murder.
(b)A instigates B to murder D. B in pursuance of the instigation
stabs D. D recovers from the wound. A is guilty of instigating B
to commit murder.
Explanation 3.—It is not necessary that the person abetted
should be capable by law of committing an offence, or that he
should have the same guilty intention or knowledge as that of
the abettor, or any guilty intention or knowledge.
• Illustrations

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

(b) A, with the intention of murdering Z, instigates B, a child under seven

years of age, to do an act which causes Z's death. B, in consequence of the
abetment, does the act in the absence of A and thereby causes Z's death.
Here, though B was not capable by law of committing an offence, A is liable
to be punished in the same manner as if B had been capable by law of
committing an offence, and had committed murder, and he is therefore
subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house. B, in consequence of the
unsoundness of his mind, being incapable of knowing the nature of the
act, or that he is doing what is wrong or contrary to law, sets fire to the
house in consequence of A's instigation. B has committed no offence, but
A is guilty of abetting the offence of setting fire to a dwelling-house, and
is liable to the punishment provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take
property belonging to Z out of Z's possession. A induces B to believe that
the property belongs to A. B takes the property out of Z's possession, in
good faith, believing it to be A's property. B, acting under this
misconception, does not take dishonestly, and therefore does not
commit theft. But A is guilty of abetting theft, and is liable to the same
punishment as if B had committed theft.
• Explanation 4.—The abetment of an offence being an offence, the
abetment of such an abetment is also an offence.
Illustration
• A instigates B to instigate C to murder Z. B accordingly instigates C to
murder Z, and C commits that offence in consequence of B's instigation. B
is liable to be punished for his offence with the punishment for murder;
and, as A instigated B to commit the offence, A is also liable to the same
punishment.
• Explanation 5.—It is not necessary to the commission of the offence of
abetment by conspiracy that the abettor should concert the offence with
the person who commits it. It is sufficient if he engages in the conspiracy
in pursuance of which the offence is committed.
Illustration
• A concerts with B a plan for poisoning Z. It is agreed that A
shall administer the poison. B then explains the plan to C
mentioning that a third person is to administer the poison, but
without mentioning A's name. C agrees to procure the poison,
and procures and delivers it to B for the purpose of its being
used in the manner explained. A administers the poison; Z dies
in consequence. Here, though A and C have not conspired
together, yet C has been engaged in the conspiracy in
pursuance of which Z has been murdered. C has therefore
committed the offence defined in this section and is liable to
the punishment for murder.
 Section 108 specifically deals with abetment of an ‘offence’ unlike Section 107 which dealt
with abetment of a ‘thing’. The section lays down the definition of an abettor as being a
person who abets:
• The commission of an offence
• Commission of an act which if committed by such a person would be an offence under the
law
It is important to note that this Section will not find its application for cases where the thing
abetted is not an offence. Another important point with reference to Section 108 is that it
does not contemplate that the person abetted shall be capable under the law to commit an
offence or that such person must possess the same guilty intention as that of the abettor.
108A. Abetment in India of offences outside
India.—A person abets an offence within the
meaning of this Code who, in [India], abets
the commission of any act without and
beyond [India] which would constitute an
offence if committed in [India]. 
Illustration
A, in [India], instigates B, a foreigner in Goa, to
commit a murder in Goa, A is guilty of
abetting murder.]
 SECTION 108 IPC DEFINES ABETTOR as a
person who abets:
• (i) The Commission of An Offence, or
• (ii) The commission of an act which would be an
offence, if committed by a person capable of
committing an offence in law.

• An abettor may be either an instigator, or a

conspirator, or helper in the commission of a crime
as defined in S. 107 of the Penal Code.
 PUNISHMENT FOR ABETMENT UNDER
THE INDIAN PENAL CODE
• The Penal Code in its abetment laws clearly lays
down the sections pertaining to punishments. They
are covered as follows:

• In SECTION 109 OF THE IPC, the one who

abets an offence is given the same punishment as
that of the principal perpetrator of the crime if the
actus reus of the principal offender has occurred as
a result of the inducement made by the abettor.
• SECTION 110 OF IPC gives that even if the
individual abetted commits the offense with an
intention different than the intention possessed by
the main perpetrator of the crime, yet the abettor
will be charged with the punishment provided for
the offence abetted.

• SECTION 112 OF IPC expands the guidelines

articulated in the previous section. Under it, the
abettor is held liable for the offense abetted and
also the offense committed.
• SECTION 113 OF IPC ought to be read together with
Section 111. Section 111 accommodates the doing of
the actus reus which is not the same as the one abetted,
though this section manages the situation when the
actus reus done is equivalent to the guilty act abetted
however its impact is not the same.
• SECTION 114 OF IPC is possibly only brought into
activity when conditions adding up to abetment of a
specific wrongdoing have first been proved, and after
that the presence of the accused at the commission for
that wrongdoing is demonstrated furthermore.
• Ss. 115 and 116 OF IPC provide for punishment
where the offence is not committed in consequence of
the abetment
CASE LAW: STATE OF MAHARASHTRA
V. PANDURANG RAMJI, (1971) ILR BOM
1061

• RATIO DECIDENDI: To constitute an 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 used. It is not required for
abetment that the person abetted should be capable by
law of committing an offence, or that he should have
any guilty intention or knowledge or should commit an
offence.
 CASE LAW: SHRI RAM & ANOTHER VS
THE STATE OF UTTAR PRADESH 1975 AIR
175
RATIO DECIDENDI: A priest, who officiated at a
bigamous marriage, was held to have intentionally
aided it but not the persons who were merely
present at the celebration or who permitted its
celebration in their house. The mere presence at the
scene of bigamous marriage would not amount to
conspiracy. Something more than the presence
needs to be proved.
It is worthwhile to note here the distinction
among sections 34, 109 and 120B. In the case
of Noor Mohammad Yusuf Momin v State of
Maharashtra, AIR 1971 SC 885, the Apex court
has elaborated the difference which has been
provided hereunder,
“So far as Section 34, Indian Penal Code, is concerned, it embodies the principle of joint liability in the doing of a criminal act,
the essence of that liability being the existence of a common intention. Participation in the commission of the offence in
furtherance of the common intention invites its application.

Section 109, on the other hand, may be attached even if the abettor is not present when the offence abetted is committed,
provided that he has instigated the commission of the offence or engaged with one or more persons in a conspiracy to
commit an offence and and pursuant to that conspiracy some act or illegal omission takes place.

Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act
which is not illegal by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is
taken to carry out that agreement.
 TOPIC 3
CRIMINAL CONSPIRACY
 120A. Definition of Criminal Conspiracy.
When two or more persons agree to do, or cause to be
done,—
(1)an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy: 
Provided 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. (Overt Act)
 Explanation.—It is immaterial whether the illegal act
is the ultimate object of such agreement, or is
merely incidental to that object.
120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal
conspiracy to commit an offence punishable with death, 1[imprisonment for life] or
rigorous imprisonment for a term of two years or upwards, shall, where no express
provision is made in this Code for the punishment of such a conspiracy, be punished
in the same manner as if he had abetted such offence.
 
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be punished with imprisonment
of either description for a term not exceeding six months, or with fine or with
both.]
A conspiracy occurs when two or more people agree to
commit an illegal act and take some step toward its
completion. Conspiracy is an incohate crime because it does
not require that the illegal act actually have been completed.

For instance, a group of individuals can be convicted of

conspiracy to commit burglary even if the actual burglary
never happens. Conspiracy is also unique in that,
unlike attempt, a defendant can be charged with both
conspiracy to commit a crime, and the crime itself if the
crime is completed.
Elements of a Conspiracy
Conspiracy first requires a showing that two or more people were in agreement
to commit a crime. This agreement does not have to be formal or in writing. All
that is required is that the parties had a mutual understanding to undertake an
unlawful plan. Second, all conspirators must have the specific intent to commit
the objective of the conspiracy. This means that someone who is entirely
unaware that she is participating in a crime cannot be charged with conspiracy.
For instance, if two sisters agree to rob a bank and ask their brother to drive
them to the bank without informing him of their intent to commit a crime, he
cannot be charged with conspiring in the robbery. This specific intent
requirement does not require that each individual knows all the details of the
crime or all of the members of the conspiracy. As long as an individual
understands that the act being planned is a criminal one and proceeds
nonetheless, he can be charged with conspiracy.
• Section 120A of Indian Penal Code gives definition
as to what constitutes criminal conspiracy- “when
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, SUCH AN AGREEMENT IS
DESIGNATED AS CRIMINAL CONSPIRACY.
• The main essence of conspiracy that is embodied in
section 120A of Indian Penal Code is the unlawful
agreement and ordinarily the offence is complete
when the unlawful agreement is framed.
• The nature and scope of Criminal Conspiracy are
limited to conspiring to do an illegal act by two or
more persons.
• NO ONE PERSON CAN CONSTITUTE THE
OFFENCE. IT REQUIRES TWO OR MORE
PERSONS TO AGREE TO DO SOME ACT.

• THE UNDERLYING PURPOSE OF THE

SECTIONS WAS TO PREVENT ANY
ILLEGAL ACT FROM HAPPENING BEFORE
THE CONSTITUTION OF A CRIMINAL ACT.
• It is not necessary that there should be some overt act in
furtherance of the agreement made.

• Further, SECTION 120B OF INDIAN PENAL CODE

PRESCRIBES PUNISHMENT FOR THE OFFENCE
OF CRIMINAL CONSPIRACY.
It simply says that every person who is a part of criminal
conspiracy for offences punishable with death,
imprisonment for life or rigorous imprisonment for two
years or upwards will be punished in the same was as if
that person has abetted the offence and whoever is a party
to any other conspiracy will be punished with
imprisonment for a period not more than six months or
fine or both.
 PROOF OF CONSPIRACY
 The crime is inherently psychological in nature. The
proof of such an act is also difficult. It can be
ascertained by the fact that some act was kept a
secret. However, this does not constitute an essential
element of the conspiracy.

 It can be done through:

• DIRECT EVIDENCE OR;
• CIRCUMSTANTIAL EVIDENCE
• CAS LAW: QUINN V. LEATHERN, [1901] AC 495
RATIO DECIDENDI: That inference is generally
deduced from the acts of the parties in pursuance of the
predetermined acts. In such a crime, circumstantial and
direct evidence turn out to be the same because there
has not been an act, yet. The act is only being
conspired.
• CASE LAW : BHAGWAN SWAROOP LAI
BISHAN LAI V. STATE OF
MAHARASHTRA,1965 SC.
RATIO DECIDENDI: The Doctrine of Agency also
comes into play in this scenario. The fact that there was
an agency in the conspiracy may prove that there was
involvement of this person in the act.
 CASE LAW: RAJIV KUMAR V STATE OF UP
(DATE OF JUDGMENT: 2.08.2017)
RATIO DECIDENDI: The court took out some basic
necessary ingredients in order to constitute
conspiracy,  
• There must be two or more persons;
• There must be an illegal act or an act in an illegal
way;
• There must be a meeting of minds;
• There must be an agreement regarding the same
thing.
• The ingredients must be present in any act in order
to constitute it as a crime of criminal conspiracy. 
 CASE LAW: RAM NARAYAN POPLI V CBI,
(2003) 3 SCC 641
• RATIO DECIDENDI: The court laid down several
aspects of Criminal Conspiracy,
• (a) an object to be accomplished,
• (b) a plan or scheme embodying means to accomplish
that object,
• (c) an agreement or understanding between two or
more of the accused persons whereby, they become
definitely committed to cooperate for the
accomplishment of the object by the means embodied
in the agreement, or by any effectual means
 TOPIC 4
JOINT AND CONSTRUCTIVE
LIABILITY
 Section 34
• 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
were done by him alone.
 Common intention and common object
Principle of constructive criminality: - S.34-38 IPC are
interrelated and they give law relating to joint
offenders or joint liability. These sections relate to
acts done by several persons in furtherance of
common intention. S.34 is an example of
constructive criminality, i.e., liability of all for the
acts of one or some of them. S.149, 396 and 460 also
deal with constructive criminality. Important feature
of S.34 is the element of participation in action.
• Ordinarily, a person is liable for criminal acts done by him. No one can be
responsible for wrong committed by another. However, Section 34 and
149 are exceptions to this rule.
• Acts done by several persons in furtherance of common intention
(constructive liability or joint liability or Vicarious liability) S. 34 is a rule of
evidence.
• Essentials of S. 34 :-
• A) criminal act is done by several persons (may be more than 2, 5, or even
more)
• B) such act is done in furtherance of the common intention of all; and
• C) each of such persons is liable for that act in the same manner as if it
were done by him alone.
• S. 34 is a rule of evidence and it does not create a substantive
offence.
• S. 34 implies a pre arranged plan. In the absence of common
intention or pre arranged plan, S. 34 has no application.
(Mehboob Shah v. King Emperor)
• Intention and participation; Physical presence is not a sine qua
non in all cases. Over seeing the crime through binocular/
mobile/internet is also possible.
• In furtherance of common intention:- furtherance means ‘action
of helping forward’
• Common Intention:- means a pre oriented plan and acting in
pursuance to the plan
• The following ingredients must be proved to attract S.34
IPC: -

• 1) Where a criminal act is done by several persons.

• 2) In furtherance of common intention of all, in the
sense of a pre-arranged plan.
• 3) The person sought to be held liable must have
participated in some manner in the crime.
• (section 34 has a magnetic force to attract other
accused persons, making them equally liable )
• S.34 IPC is a rule of evidence, which creates joint
liability for all in which it is difficult to distinguish
between acts of different individuals. That is why
all are deemed guilty of the offence.
• Thus, common intention and physical presence is
essential to attract S.34. If a person is standing
outside as a guard and theft is committed inside
the house, the person standing outside will be
equally punished since he has common intention.
• The gist of S.34 is the commission of a criminal act in furtherance of
common intention of all the offenders, which means that there
should be unity of criminal behavior resulting in something for which
an individual would be punishable if it were all done by him alone.
• Common intention u/s 34 implies a pre-arranged plan and acting in
pursuance of the plan. This common intention must be prior in time
to the commission of offence. Common intention does not mean
similar intention. For common intention, it is necessary that the rest
of them should know intention of each one of them.
• E.g., When people start beating the driver after accident, they have
similar intention but not common intention, since there was no prior
meeting of mind.
• Distinction between common intention, same intention or
similar intention:-
Common intention should not be confused with same
intention or similar intention. Persons who have common
intention must have the “same intention”. To make it common
intention it must be indicated in some way by words or acts
between the persons who share it. Such indications may be
inferred from circumstances. There is not much substantial
difference between conspiracy and acting on a common
intention. While in the conspiracy the gist of the offence is
bare agreement and association to break the law, even
though the illegal act does not follow.
• THE CONCEPT OF JOINT LIABILITY WAS
EVOLVED IN THE CASE OF REG V. CRUISE

RATIO DECIDENDI: In this case police had gone to

arrest A at his home. B, C and D were also present at
that time. When all the three persons saw police
coming, they came out of the house and gave a blow
on the police and they drove them away. The court
held that all the three are liable for the blow even if
the blow was given by only one person.
 SECTION 34, IPC
• Scope of the Principle of Joint Liability is Provided
under Section 34, IPC.
• The section only provides for the constitution of
joint liability, not the punishment.
• This section is only a rule of evidence and does
not constitute a substantive offence.
• It provides for the principle of constructive liability.
• As this section is not an offence in itself, this section
is always read with other sections under the Indian
Penal Code, 1860.
 ELEMENTS OF SECTION 34, IPC
• 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 the
• act were done by him alone.”
FOR EXAMPLE: If A and B do a criminal act in
furtherance of their common intention, each of them
is guilty of that offence of which he would have been
guilty if he alone had done the whole criminal act.
• The law makes no distinction between the parties
played by them in doing the criminal act, each is
guilty of the same offence.
• FOR EXAMPLE: A person may only stand guard to
prevent any person coming to help the victim or
otherwise to facilitate the execution of the offence,
but such a person also commits an act as must as his
co-participants who actually commit the planned
crime.

• Here the term Common intention refers to the

common design for two or more persons acting
together to do the physical act which comprises the
offence.
• There is also a canon in the criminal jurisprudence
that the courts cannot distinguish between the
conspirators and it is possible for them to see what
part is played by which conspirator in the
commission of the crime, so each person is held
jointly liable for the acts of another.

• Since section 34 is itself not an offence, so every

time when any criminal act is done by two or
more persons, then both the sections i.e. section
for that criminal offence and section of joint
liability is applied.
• As no offence is prescribed under section 34 of
ipc, this section is always read with other
sections of ipc. Some of the sections in which the
concept of joint liability is discussed in ipc are
section 34, section 120A and 120B, section 149 of
IPC.
 CASE LAW:  RANGASWAMY V. STATE OF
TAMIL NADU, AIR 1989 SC 1137

RATIO DECIDNEDI: In this case the accused no. 3

was convicted by the trial court for committing
offences contrary to section 302 r/w section 34 of
IPC. He came to the Supreme Court with the
pleading that he was only with friendly terms with
accused no.1 and accused no. 2 and he did not shared
common intention with them to kill the deceased. He
said that it was by chance that he was present at the
site of offence and he had not participated in the
commission of the offence. The occurrence of crime
took place in bazaar.
• The court held that presence of accused no. 3 was
established at the site of offence but there is no
evidence to show that he shared a common intention
with the other two accused. The Supreme Court
acquitted accused no. 3 of the charges.
• Hence, To establish common intention
premeditation of minds is necessary. There should
be prior meeting of minds which activated
common intention and criminal act should have
been done in furtherance of common intention.
• There may be situation in which premeditation was
not present, but intention developed at the spur of the
time, but it should must been shared among one
another.
 CASE LAW: BARENDRA KUMAR GHOSH V.
KING EMPEROR, (1925) 27 BOMLR 148
• RATIO DECIDENDI:It was one of the earliest cases
where the court convicted another person for the act
of another done in furtherance of common intention.

• The facts of the case are, a group of armed persons

entered in the police station on 3rd August, 1923.
They demanded money from the post master where he
was counting the money. They fired from the pistol at
the postmaster, due to which the postmaster died on
the spot. All of the accused ran away without taking
money.
• The Police was able to catch Barendra Kumar
Ghosh who was standing outside the post office as
a guard.

• Barendra’s contention was that he was only

standing as a guard but the calcutta high court
convicted him for murder under section 302 r/w
section 34 of indian penal code.

• When he appealed in the Privy Council, his appeal

was rejected.
• In Mahboob Shah v. King Emperor, Allahadad, Hamidullah and others
were warned not to collect reeds from his land by Mohd. Shah but
they paid no heed to his warning. Allahadad and others with 15
bundles of reeds were returning home by boat. Gulam Kasim Shah
asked the party to hand over the reeds collected from his uncle’s
land. But Allahadad did not comply.
• Gulam Kasim Shah stopped the boat and pushed Allahadad, who in
turn picked up a pole and struck the former, who shouted for help.
• On hearing the call, Mahboob Shah and Wali Shah who were out for
hunting appeared at the scene with guns and on seeing them,
Allahadad and Hamidullah tried to run away but Wali Shah shot dead
Allahadad and Hamidullah was injured by the gun shot fired by
Mahboob Shah.
Mahboob Shah, Gulam Kasim Shah, Mohd. Shah and Wali Shah
were challaned by the police. Wali Shah absconded and could
not be arrested. The session court acquitted Mohd. Shah but
Mahboob Shah was convicted u/s 302/34 IPC and sentenced to
death for murder of Allahadad. (actually he was killed by Wali
Shah) He was also convicted u/s 307 for attempt of murder of
Hamidullah. Gulam Kasim was also convicted but in appeal he
was acquitted by the HC. But HC maintained the conviction of
Mahboob Shah who appealed to the PC against his conviction
u/s 302/34 IPC. But no appeal was filed before the PC against
his conviction u/s 307. His appeal was allowed and he was
acquitted of the offence u/s 302 IPC.
It was held by the PC that Mahboob Shah had not taken
part in killing of Allahadad, there was no evidence of
any pre-arranged plan to murder any person and from
circumstances also, it could not be said that Mahboob
Shah acted in concert with Wali Shah, the absconder.
On these findings PC held that S.34 IPC was not
applicable and Mahboob Shah cannot be convicted for
murder committed by Wali Shah.
Thus, Mahboob Shah was acquitted of offence u/s 302
IPC.
Common Intention May Also Develop On The Spot: Exception
To The General Rule-Generally, it is said that, “a common
object may develop on the spot but a common intention
cannot”. But, in certain circumstances common intention also
may develop suddenly on the spot and such common
intention may be inferred from the facts and circumstances of
the case and conduct of the accused persons. Following cases
are illustrative on this point-
In Kripal Singh v. State of U.P., AIR 1954 SC 706;
the Supreme Court held that a common intention
may develop on the spot after the offenders have
gathered there. A previous plan is not necessary.
Common intention may be inferred from the
conduct of the accused and the circumstances of
the case.
 Section 149
. Every member of unlawful assembly guilty of offence
committed in prosecution of common object.—If an offence
is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly,
or
such as the members of that assembly knew to be likely to be
committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of that
offence.
• 141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the
common object of the persons composing that assembly is—

• First.—To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament
or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

• Second.—To resist the execution of any law, or of any legal process; or

• Third.—To commit any mischief or criminal trespass, or other offence; or

• Fourth.—By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

• Fifth.—By means of criminal force, or show of criminal force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to do.

• Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful
assembly.
Elements Of Section 149:- 
The essence of offence under Section 149 is assembly of several (five or more)
persons having one or more of the common objects mentioned in Section 141
and it could be gathered from the nature of the assembly, arms used by them
and the behaviour of the assembly at or before scene of occurrence. Section 149
creates joint liability of all members of an unlawful assembly for criminal act
done by any member in prosecution of the common object of the said assembly.
So the essential ingredients of Section 149 are:
1. There must be an unlawful assembly, as defined in Section 141;
2. Criminal act must be done by any member of such assembly;
3. Act done is for prosecution of the common object of the assembly or such
which was likely to be committed in prosecution of Common Object.
4. Members have voluntarily joined the unlawful assembly and knew the
common object of the assembly.
5. Mere presence and sharing of common object of the assembly makes a
person liable for the offence committed even if he had no intention to commit
that offence.
The Section is divided into two parts-
In Prosecution Of The Common Object:- The words “in
prosecution of the common object” show that the offence
committed was immediately connected with the common object
of the unlawful assembly of which accused were members.
The act must have been done with a view to accomplish the
common object of the unlawful assembly.
2. Members Knew To Be Likely:- The second part relates to a situation where
the members of the assembly knew that the offence is likely to be
committed in prosecution of the common object. A thing is likely to happen
only when the situation is like “it will probably happen” or “may very well
happen”.
The word ‘knew’ indicates a state of mind at the time of commission of an
offence, knowledge in this regard must be proved. The word ‘likely’ means
some clear evidence that the unlawful assembly had such a knowledge.
 DIFFERENCE BETWEEN COMMON
INTENTION AND COMMON OBJECT
• Both Section 34 and s.149 imposes vicarious liability
on each person for acts not necessarily done by them.
However, there is a difference in the scope and nature
of operation of the two offences.
• The charge of s.149 is substituted by s.34 of IPC,
especially when some accused are acquitted and
number of the accused falls below five. The main
differences between the two sections are as follows:
• Section 34 does not create any specific offence but
only lays down the principle of joint criminal
liability.
• Whereas s.149 creates specific offence and being a
member of an unlawful assembly is itself a crime,
which is punishable under s.143.

• ‘Common intention’ used in S.34 is not defined

anywhere in IPC, while ‘common object’ in s.149
must be one of the five ingredients defined in S. 141
of IPC.

• Common intention requires a prior meeting of

mind and unity of intention and overt act has been
done in furtherance of the common intention of
all.
• A common object may be formed without a prior
meeting of mind when the common object of the
members of the unlawful assembly is one but the
intention of participants is different. It only requires
that criminal act has been done in furtherance of the
common object.

• For invoking S.34 it is sufficient that two or more

persons were involved. However, there have to be
a minimum of five persons to impose S.149.

• The crucial factor of S.34 is ‘participation’ while

there is no need of active participation in S.149 of
IPC.
 SECTION 149, IPC
• Section 149 of Indian Penal Code deals with offence in
which every member of an unlawful assembly is guilty
of offence committed in prosecution of common object.
• The punishment under section 149 is same as that of
the offence which is committed in the unlawful
assembly.
• If the prosecution wants to prove a person under
section 149 , then it has to prove the presence of the
person at the site and his participation in the assembly.
This section creates a constructive liability on the
members of the unlawful assembly for the unlawful
acts committed in pursuance of the common object.
• Object means the purpose, and it will be common
when it is shared by the members of the unlawful
assembly. A common object may be formed at any
stage by all or a few members of the assembly.

 CASE LAW: MOTI DAS V. BIHAR (1954) CR

LJ 1708 (SC)
RATIO DECIDENDI: The Supreme Court held that
pre-concert is not necessary. An assembly may be
lawful in beginning but may turn into unlawful later.
• Being a member of Unlawful assembly is itself a
crime under s.143
 D/B SECTION 34 AND 114,IPC
• There is a very fine line between Section 34 and
Section 114 of the Indian Penal Code.

• As per Section 34, where a criminal act is done by

numerous people, in promotion of the basic aim of
all, every one of them is liable as though it were
finished by himself alone; so that if at least two or
more people are present, helping and abetting in the
commission of the murder, each will be tried as the
main perpetrator of the crime, however it probably
won’t be clear which of them really perpetrated the
crime.
• Whereas Section 114 alludes to the situation where
an individual by abetment, prior to the commission
of the wrongful act, renders himself obligated as
an abettor, Is present when the actus reus takes
place, however takes no active part in its doing.

• A joint act falling under Section 34 however does

not include a mere order from one person to
another and the carrying out of that order by the
other which may only be instigation of the latter’s
act.
• The scope of S.34 and 149 IPC was explained in
Noor Mohammed v. State of Maharastra – 1970
SCC (Cr.) 274 as follows: -
• “So far as S.34 IPC is concerned, it embodies the
principle of joint liability in the doing of a criminal
act, the essence of that liability being the existence
of a common intention. Participation in the
commission of the offence in furtherance of the
common intention invites the application of S.34”
S.149 IPC on the other hand, may be attracted
even if the abettor is not present when the
offence abetted is committed provided that he
has instigated the commission of the offence or
has committed an offence or has engaged with
one or more other persons in a conspiracy,
some act or illegal omission takes place or has
intentionally aided the commission of an
offence by an act or illegal omission.”
• The distinction was very beautifully described by the SC in Devi Lal v.
State of Rajasthan, AIR 1944 SC as follows: -
The words “in furtherance of the common intention of all”, are
most essential part of S.34 of the IPC. This common intention
should be anterior in time to the commission of the crime. On the
other hand, S.149 IPC speaks of an offence being committed by any
member of an unlawful assembly in prosecution of the common
object of that assembly. The session court fell in to the error of
convicting the appellants u/s 302 read with S.34 of the IPC by
holding that if a number of persons assault another member with a
stick mercilessly, their intention can only be to murder that man or
at least they should know that they are likely to cause death of the
person concerned.
This aspect of there being likely to cause
death would be relevant u/s 149 and not u/s
34 of the IPC for the obvious reason that u/s
34 it has to be established that there was the
common intention before the participation by
the accused.
The SC held in Khem Karen v. State of U.P. 1974
SCC (Cr.) 639, that although the surviving
accused who have been convicted are only
three. S.149 and in any case S.34 IPC will rope in
the appellants by way of constructive liability.
Here also the accused appellants can claim no
possible prejudice by the invocation of S.34 IPC
even if twenty out of twenty-three have been
acquitted and only 3 were convicted.
In view of the fact that a large number of accused
have been acquitted, the remaining who have been
convicted are less than five, can not vitiate the
conviction u/s 149 read with the substantive
offence if as in this case the court has taken care to
find that there are other persons who might not
have been identified or convicted but were part to
the crime and together constituted the statutory
number, i.e., five. On this basis, the conviction u/s
307 read with S.149 has to be sustained.
In Hira Lal Mallick v. State of Bihar, AIR 1977
SC 2236, it has been held that when a crime is
committed by the concerted action of some
persons, constructive liability implicates each
participant, but the degree of criminality may
vary depending not only on the injuries but
also on the part played and the circumstances
present, making a personalized approach with
reference to each.
• Conclusion: -
The main distinction between S.34 and 149 IPC
is that u/s 149 IPC there need not to be a prior
meeting of minds and it is enough that each
accused has the same object in view and they
have formed an unlawful assembly to commit
that crime. S.34 applies to cases where several
persons do the crime in furtherance of
common intention.
 Section (34) Section (149)

1. Common Intention 1.Common Object

2. Active participation is necessary. 2. No need of active participation.

3. Minimum 2 persons but no maximum 3. Minimum of 5 persons should have

number fixed. the same common object.

4. Pre-arranged plan is necessary 4. Pre-arranged plan not necessary

THANK YOU.