B.N.S.: Complete Notes

About this subject

Criminal Law explains why the law punishes one person and lets another go free, even when both have done something that looks the same from the outside.

Criminal Law is therefore not merely a list of prohibited acts and punishments. Criminal liability depends on what the person did, what was going on in the person's mind, the surrounding circumstances, the defences the law allows, the part played by other people, and the precise ingredients of the particular offence.

The course covers, in order: what a crime is and the building blocks of criminal liability; crimes that are not yet complete (inchoate offences); situations in which the law excuses or justifies conduct that would otherwise be an offence; and the application of these principles to offences against the human body and offences against property. The subject is substantive Criminal Law: what an offence is and when a person is liable for it. Procedure and evidence are referred to only where they help in understanding an offence.

B.N.S. and the IPC

The change of codes

For more than 160 years, the substantive criminal law of India was contained in the Indian Penal Code of 1860 (IPC). On 1 July 2024 the codes were replaced:

Old law	Replaced by
Indian Penal Code, 1860 (IPC)	B.N.S., 2023
Code of Criminal Procedure	B.N.S.S., 2023
Indian Evidence Act	B.S.A., 2023

What has been carried over

B.N.S. did not throw away the structure of the IPC. Most basic definitions (culpable homicide, murder, theft, extortion, robbery, cheating, abetment and the general exceptions) have been carried into B.N.S. with the same or almost the same words. What has changed in many places is the section number, and in some places the law itself: the general exceptions now begin at Section 14, murder is in Section 101, and theft is in Section 303.

New ideas in B.N.S.

• Murder by a group of five or more persons on grounds like race, caste, community, language or personal belief.
• The offence of snatching.
• Community service as a punishment for some minor offences.
• A separate offence of sexual intercourse obtained by deceitful means.

How to Read a Section of B.N.S.

Most offences are built in the same way:

1. Definition: states the ingredients of the offence.
2. Explanations: clarify the meaning of particular words.
3. Illustrations: short examples written into the statute itself, using persons called A, Z and so on. They cannot override the words of the section, but courts treat them as valuable guides to its meaning.
4. Exceptions and provisos: cut down the reach of the definition.
5. Punishment: often in a separate subsection.

Meaning of Crime

No jurist has produced a definition of crime that fits every case. Crime is not a natural object like a stone or a tree. An act becomes a crime because the community, through its law, decides that the act is so harmful to society that the State itself must respond with punishment. Murder, theft and cheating are crimes in almost every society, but some acts have been crimes in one period and not in another.

Crime and civil wrong

Point	Civil wrong	Crime
Who proceeds	The person wronged, in a civil court	The State: police investigate and the prosecution is conducted in its name
Aim	To put the victim back in the position he should have been in, usually by payment	To punish the offender
Focus	The loss of the victim	The guilt of the offender and the harm to society

Crime and offence

Crime is the broader idea: a wrong which society condemns and the law punishes. Offence is the precise legal word. Under Section 2(24) of B.N.S., offence means a thing made punishable by B.N.S.; in certain chapters and sections it also covers things punishable under special or local laws.

No crime and no punishment without law

The maxim nullum crimen sine lege, nulla poena sine lege means that a person can be punished only for an act that the law already declared to be an offence, and only with the punishment that the law already provided. Criminal Law in India works inside a constitutional frame:

• Article 20(1): no conviction except for violating a law in force at the time of the act, and no penalty greater than the one in force at that time.
• Article 20 also protects a person from being prosecuted and punished twice for the same offence, and from being compelled to be a witness against himself.
• Article 21: no deprivation of life or personal liberty except according to procedure established by law, which must be fair, just and reasonable.

Elements of Criminal Liability

Traditionally, four elements are identified:

1. a human being who does the act;
2. a guilty mind (mens rea);
3. a guilty act or omission (actus reus); and
4. an injury, meaning harm caused to a person, to society or to property.

The two elements studied most closely are the guilty act (actus reus) and the guilty mind (mens rea).

Actus reus

Actus reus is the external, physical side of the offence: the conduct of the accused, the circumstances in which it takes place and, very often, the consequence that follows. If any one external part is missing, the actus reus of that offence is missing.

The act must be voluntary

Omissions

• Section 3(4) of B.N.S.: words referring to acts also extend to illegal omissions.
• Section 2(15) of B.N.S.: a person is legally bound to do whatever it is illegal in him to omit.

Mens Rea: The Guilty Mind

Mens rea is the guilty mental element required for an offence. In simple terms, Criminal Law often asks not only what the accused did, but also what was happening in the accused's mind when the act was done. The classic maxim is actus non facit reum nisi mens sit rea: an act does not make a person guilty unless the mind is also guilty.

Different mental states

Mens rea is not a single mental state. The law uses different mental states for different offences, from the highest to the lowest:

Mental state	Meaning
Intention (the highest)	Acting in order to bring about a particular result
Knowledge	Awareness that a particular consequence is certain or likely
Rashness	Running a risk with awareness of it
Negligence	Failing to take the care that a reasonable person would take

B.N.S. builds these mental states into the definitions of offences through words like intentionally, knowingly, voluntarily, dishonestly, fraudulently and reason to believe. Several are defined in Section 2; for example, a person acts dishonestly when he intends to cause wrongful gain to one person or wrongful loss to another.

Intention and motive

Intention	Motive
The immediate aim of the act	The deeper reason behind it
A guilty intention is enough for liability	A good motive does not erase a guilty intention, though it may matter in sentencing; a bad motive cannot create an offence where the required intention is absent

Concurrence of Act and Mind

A requirement students often forget: the guilty act and the guilty mind must exist together. The mental element must accompany the act that causes the prohibited result; a guilty mind at one time and the act at another is not enough.

The decision has been much debated. Courts have since taken a different view where the accused intended to kill from the very beginning, treating the attack and the disposal of the supposed body as one continuous transaction.

Strict Liability: When Mens Rea Is Not Required

In offences of strict liability the law does not ask about the mind at all, or asks only partly. They are usually created by special public-welfare statutes on food adulteration, weights and measures, pollution, customs, foreign exchange and traffic rules. The reason is practical: these laws protect the public at large, the harm can be widespread, and requiring proof of a guilty mind in every case could make the law almost impossible to enforce.

The majority drew a second lesson: ignorantia juris non excusat, ignorance of the law does not excuse. A person cannot escape liability by saying that he did not know the law, because the law, once validly made and published, is taken to be known to everyone. The principle returns under mistake of law in the general exceptions.

Joint Liability: Co-perpetration and Constructive Liability

When several persons plan a robbery, one may break the door, another keep watch and a third take the money. If each were punished only for what his own hands did, the watcher would escape, although the robbery could not have happened without him. The law answers this through co-perpetration and constructive liability.

Co-perpetration

Two or more persons are together the principal offenders because each takes part in committing the offence. Under Section 3(8), when an offence is committed by several acts, whoever intentionally cooperates in its commission by doing any one of those acts commits that offence.

Constructive liability

A person is held liable for an act physically done by someone else, because of his connection with that act through a shared intention or a shared object. The two main provisions are Section 3(5) (common intention) and Section 190 (common object of an unlawful assembly).

Common Intention under Section 3(5)

When a criminal act is done by several persons in furtherance of the common intention of all, each is liable for that act as if it were done by him alone. These are the same words as Section 34 of the IPC, so the case law on Section 34 still guides.

Requirements

1. A criminal act done by several persons.
2. A common intention shared by all of them.
3. The act done in furtherance of that common intention, so that each person sought to be held liable has participated in some way.

The meaning of participation was explained by the Privy Council in the following case.

The leading authority on the second requirement, common intention itself, is also a Privy Council decision.

Later Supreme Court decisions add that the plan may be formed suddenly, even on the spot, just before the act, but it must still be a shared plan.

Further points

• Rule of liability, not an offence: Section 3(5) fixes liability on several persons for an offence defined elsewhere, so a charge is framed as, for example, murder read with Section 3(5).
• Proof by inference: common intention is almost always inferred from conduct before, during and after the incident, such as arriving together, carrying weapons, acting in a coordinated way and leaving together.

Common Object and Unlawful Assembly: Sections 189 and 190

Unlawful assembly: Section 189(1)

An assembly of five or more persons is unlawful if their common object is one listed in the section, including:

• overawing the government or a public servant by criminal force;
• resisting the execution of any law or legal process;
• committing mischief, criminal trespass or any other offence;
• taking possession of property by criminal force;
• compelling a person by criminal force to do what he is not legally bound to do.

By an explanation, an assembly lawful when it gathered may later become unlawful: a peaceful crowd that decides to burn a shop becomes an unlawful assembly at that moment.

Membership: Section 189(2)

Mere presence in a crowd is not membership. A person becomes a member when, being aware of the facts that make the assembly unlawful, he intentionally joins it or continues in it. A passer-by who stops to watch is not a member; a person who knowingly joins the crowd carrying a stick for the attack is.

Liability of every member: Section 190

Section 190 corresponds to Section 149 of the IPC. Where an offence is committed by any member of an unlawful assembly, every person who is a member of that assembly at the time of the offence is guilty of it, if the offence was:

1. committed in prosecution of the common object; or
2. one the members knew to be likely to be committed in prosecution of that object.

Common Intention and Common Object Compared

Basis	Common intention: Section 3(5)	Common object: Section 190
Number of persons	Two or more	An unlawful assembly: at least five
Mental bond	Prior meeting of minds; a shared plan, even if formed on the spot	No prior concert in the same sense; members need only share the same object, even without discussing a plan
Participation	Each accused must participate in some way in the criminal act	Membership at the time of the offence is enough, even if the member did nothing with his own hands
Nature of provision	Only a principle of joint liability; creates no separate offence	Makes every member guilty of the offence committed by any member; membership of an unlawful assembly is itself an offence under Section 189
Range of liability	The criminal act done in furtherance of the common intention	Offences in prosecution of the common object, and also offences known to be likely in prosecution of it

Inchoate Offences

Inchoate means "just begun" or "not yet complete". An inchoate offence is one the law punishes even though the main crime the accused had in mind was never completed. The reason: he has already shown a dangerous intention and taken real steps towards harm. If the police had to wait until the victim was actually dead, Criminal Law would fail in its duty to protect society.

Stages of a Crime

1. Intention: the mental decision to commit the crime. Not punished. A person who only thinks about killing his enemy has done nothing punishable; thoughts cannot be proved easily, and the law does not punish people for what they merely think.
2. Preparation: arranging the means needed for the crime, e.g. buying a knife, collecting poison, studying the victim's route. As a general rule not punished, because it is usually ambiguous (a knife may be bought to cut vegetables or to kill) and even one who prepares with a bad intention may change his mind.
3. Attempt: the person has gone beyond preparation and started actually carrying out the crime, but it is not completed. Punishable.
4. Completion: the intended offence is fully committed.

Exceptions: preparation itself punished

Where the intended crime is extremely serious, B.N.S. punishes preparation itself:

• Collecting men, arms or ammunition with the intention of waging war against the Government of India: Section 149.
• Making preparation to commit dacoity: Section 310(4).
• Making or possessing instruments for counterfeiting coins or currency.

Attempt under B.N.S.

1. Specific provisions: attempt to murder (Section 109), attempt to commit culpable homicide (Section 110), attempt to commit robbery (Section 309(5)).
2. General provision, Section 62 (old Section 511 of the IPC), for all other offences. It applies when a person attempts to commit an offence punishable with imprisonment for life or imprisonment, and in such attempt does any act towards its commission, where no express provision is made for that attempt. Punishment: imprisonment up to one-half of the imprisonment for life, or one-half of the longest term provided for the offence; or, instead, the fine provided for the offence; or both.

Common thread: while the matter remains within the accused's control and he can still quietly stop, it is usually preparation; when he does an act that sets the crime in motion, it is attempt.

Tests for Attempt

Test	What it asks
Proximity	Is the act sufficiently close to the completed crime, so that but for some interruption the offence would have been committed? Difficulty: "close" is a matter of degree.
Locus poenitentiae (place or opportunity for repentance)	While the accused can still change his mind and withdraw voluntarily, his acts are usually only preparation. Once he has gone so far that the crime would have happened but for outside interference, it is attempt.
Equivocality	Does the act, by itself, clearly show the criminal intention? If it could equally be innocent, it is preparation; if it unequivocally points to the crime, it is attempt. Buying a match box is equivocal; pouring petrol on a house door at midnight and striking a match is not.

No single test answers every case. Indian courts have not adopted any one of them as a rigid formula; they use them as aids, looking at the act together with the other circumstances that reveal the accused's intention.

Supreme Court decisions

Point	Malkiat Singh (1968)	Mohd. Yakub (1980)
Stage reached	Truck about fourteen miles short of the border	Silver being unloaded at a lonely creek, motor boat at hand
Result	Preparation: acquitted	Attempt: convicted
Approach	Locus poenitentiae: acts harmless if the accused went no further	Proximity measured by intention; Malkiat Singh's harmlessness test to be read with the facts of that case

Attempt to Commit the Impossible

Problem: the accused does all he intended, but the crime could not possibly be completed, e.g. A puts his hand into B's pocket to steal a wallet, but the pocket is empty.

Limit 1: harmless means chosen by the accused

In the same way, a person who tries to kill his enemy by reciting a curse does not attempt murder.

Limit 2: no attempt to commit an imaginary crime

Section 62 speaks of attempting an offence. If the intended act would not be an offence even if everything happened as the accused imagined, there is nothing to attempt.

Situation	Attempt?
Failure due to facts unknown to, or a factor independent of, the accused (empty box or pocket; poison replaced by someone else)	Yes
Accused himself chooses completely harmless means (harmless substances; a curse)	No
Intended act is no offence at all (kite on a holiday)	No

Attempt to Commit Suicide under B.N.S.

The old IPC punished attempt to commit suicide; B.N.S. has no general offence of attempting suicide. Section 226 punishes only an attempt to commit suicide made with intent to compel or restrain a public servant from discharging his official duty. Abetment of suicide remains a serious offence under Sections 107 and 108.

Abetment

Criminal Law also punishes the person who encourages, plans or helps an offence: the abettor. Abetment is in Sections 45 to 60 of B.N.S., the core provisions being Sections 45 to 57.

1. Instigation

To provoke, urge, encourage or goad someone to do an act. There must be active suggestion or encouragement; casual advice, or words spoken in anger without intending the other to act on them, are usually not instigation. Explanation 1 to Section 45: one who, by wilful misrepresentation or wilful concealment of a material fact he is bound to disclose, causes or procures a thing to be done, also instigates it.

2. Conspiracy

The abettor joins an agreement to do the thing, and some act or illegal omission takes place in pursuance of it. (Contrasted below with criminal conspiracy as a separate offence.)

3. Intentional aiding

Explanation 2 to Section 45: whoever, before or at the time of the act, does anything to facilitate its commission, and thereby facilitates it, aids the act.

• The aid must be intentional: if A lends his car to B for a family trip and B, without A's knowledge, uses it for a theft, A has not aided the theft.
• Mere presence at the scene is not aiding, unless intended to encourage or support the offender.
• Aiding may be by illegal omission: a watchman bound to lock the gate who deliberately leaves it open for thieves aids the theft.

Important features

• Section 46: abetment is complete even if the act abetted is never committed. If A instigates B to murder C and B refuses, A is still guilty of abetting murder.
• The person abetted need not be capable by law of committing the offence, or share the abettor's guilty mind. If A instigates a child below seven to put poison in Z's food and Z dies, the child commits no offence, but A is punishable as if the child were capable and had committed murder.
• Abetment of an abetment is also an offence.
• Sections 47 and 48: abetment across borders: a person in India abetting an act abroad, or a person abroad abetting an act in India.

Liability of an Abettor

Section	Situation	Liability
49	Act abetted committed in consequence of the abetment; no express provision for that abetment	Same punishment as the offence (A instigates B to commit theft; B commits it; A punishable as for theft)
51	Person abetted does a different act	Liable for the act done as if he had directly abetted it, if it was a probable consequence of the abetment
52	Act done is in addition to the act abetted	Punishable for both
53	Act abetted causes a different effect	Liable if he knew the act abetted was likely to cause that effect
54	Abettor (liable as such if absent) is present when the offence is committed	Deemed to have committed the offence himself
55	Offence punishable with death or life imprisonment, not committed	Up to 7 years; up to 14 years if hurt is caused
56	Offence punishable with imprisonment, not committed	Up to one-fourth of the longest term; one-half if the abettor or person abetted is a public servant bound to prevent the offence
57	Abetting an offence by the public generally or by more than ten persons	Punishable

Criminal Conspiracy

Conspiracy came into Indian law from English common law. The IPC as first enacted punished it mainly as a form of abetment; in 1913 a separate chapter made criminal conspiracy a substantive offence. The idea is now in Section 61 of B.N.S.

• Proviso: an agreement to commit an offence is enough by itself. An agreement to do any other illegal act, or a legal act by illegal means, is criminal conspiracy only when some act besides the agreement is done by one or more parties in pursuance of it.
• Explanation: it is immaterial whether the illegal act is the ultimate object of the agreement or only incidental to it.

The very heart of conspiracy is the agreement.

Punishment: Section 61(2)

• Conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or more: punished as if the party had abetted that offence, unless B.N.S. makes an express provision.
• Any other criminal conspiracy: imprisonment up to six months, or fine, or both.

Proof of Conspiracy

Conspiracies are hatched in secret, without written agreements. Direct evidence (e.g. a participant who turned approver) is occasional; proof usually rests on circumstantial evidence: whether the conduct, meetings, communications, movements and acts of the accused, taken together, point clearly to an agreement. Not every conspirator need know every detail, take part in every stage, or even know every other conspirator; each must have agreed to the common design.

Criminal Conspiracy and Abetment by Conspiracy Compared

Point	Criminal conspiracy (Section 61)	Abetment by conspiracy (Section 45)
Agreement alone	Itself the offence where the object is an offence	Not enough; an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing
Nature	Separate, substantive offence	Only a mode of abetment, tied to the thing abetted; punishment depends on the offence abetted and whether it was committed
Object	Any illegal act, or a legal act by illegal means	Only an offence

Explanation 5 to Section 46: the abettor need not have planned the offence directly with its actual perpetrator; it is enough that he engaged in the conspiracy in pursuance of which it was committed.

General Exceptions: Why the Law Recognises Them

Criminal Law does not only extend liability; it also recognises cases where a person who has apparently satisfied every element of an offence's definition is still not guilty.

• Location: Chapter III, Sections 14 to 44 of B.N.S. (old Sections 76 to 106 of the IPC).
• "General" because they apply to every offence in B.N.S.
• Section 3(1): every definition of an offence, penal provision and illustration is understood subject to the general exceptions, though not repeated in each. The definition of theft is read with the silent words "unless a general exception applies".

Excusable Acts and Justifiable Acts

Point	Justification	Excuse
Meaning	The act was right, or at least permitted, in the circumstances; the law approves of it or does not disapprove	The act was harmful and undesirable, but this particular person should not be blamed
Examples	Private defence (reasonable force against a murderous attack is not wrongful); acts under a legal duty; judicial acts; acts with valid consent	A child of six who sets fire to a house; unsoundness of mind preventing knowledge of the act; genuine mistake of fact; pure accident
Private defence against the act	Not available	Available against certain excused acts

Mistake of Fact

Section 14	Section 17
Nothing is an offence done by a person bound by law to do it, or who by mistake of fact (not of law) in good faith believes himself bound by law	Nothing is an offence done by a person justified by law, or who by mistake of fact in good faith believes himself justified by law
He thinks the law requires him to act	He thinks the law permits him to act
Illustration: a court officer ordered to arrest Y, after due enquiry, believes Z to be Y and arrests Z: no offence	Illustration: A sees Z doing what appears to be a murder and in good faith seizes Z to hand him to the authorities: no offence, even if Z was acting in self-defence

Conditions

1. The mistake must be one of fact.
2. The belief must be in good faith: under Section 2(11), nothing is done or believed in good faith without due care and attention, so a careless mistake does not help.
3. Because of that belief, the accused believed himself bound or justified by law in doing the act.

Mistake of fact and mistake of law

Mistake of fact: a wrong belief about what actually happened or exists (who a person is, whether a thing belongs to someone). Mistake of law: a wrong belief about what the law says. Sections 14 and 17 expressly exclude mistake of law, reflecting ignorantia juris non excusat (ignorance of the law is no excuse).

Judicial Acts and Acts Done under Court Orders

• Section 15: protects a Judge acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law; otherwise every Judge imposing imprisonment could be accused of wrongful confinement. It covers even an honest mistake about the extent of his power.
• Section 16: protects those carrying out a court's judgment or order (a jailor keeping a convict in custody; an officer executing a warrant). Nothing done in pursuance of a judgment or order, while in force, is an offence, even if the court lacked jurisdiction, provided the person believes in good faith that it had jurisdiction. The officer need not sit in judgment over the court's jurisdiction.

Accident

Section 18: nothing is an offence which is done by accident or misfortune, without criminal intention or knowledge, in doing a lawful act in a lawful manner, by lawful means and with proper care and caution. Every element matters.

Necessity

Section 19: nothing is an offence merely because it is done with the knowledge that it is likely to cause harm, if done without any criminal intention to cause harm and in good faith to prevent or avoid other harm to person or property. Explanation: whether the harm to be prevented was so serious and imminent as to justify or excuse the risk is a question of fact.

Infancy

Criminal liability assumes a person who can understand the nature of his act and choose to do it; very young children cannot.

Point	Section 20	Section 21
Age	Under seven years	Above seven and under twelve years
Rule	Nothing done by such a child is an offence	Nothing is an offence done by such a child who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion
Nature	Absolute: incapacity is conclusively presumed, even if a child of six appears to understand exactly what he is doing (doli incapax: incapable of criminal wrongdoing)	Qualified: not general intelligence, but whether this child understood this act on this occasion, judged from his conduct

Insanity

Section 22 (same as old Section 84 of the IPC): nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. One of the most important and most misunderstood exceptions.

The Supreme Court has said old Section 84, now Section 22, is in substance the same as these rules; the one difference is that the Indian section also protects one incapable of knowing that his act is contrary to law.

Ingredients of Section 22

1. Unsoundness of mind;
2. existing at the time of doing the act;
3. by reason of which the accused was incapable of knowing the nature of the act, or that it was wrong, or that it was contrary to law.

Medical Insanity and Legal Insanity

Medical insanity	Legal insanity
Any mental illness or disorder recognised by doctors, e.g. depression, anxiety, schizophrenia, personality disorder	Narrower: only where, at the time of the act, unsoundness of mind was so severe that the person could not know the nature of the act, or that it was wrong or contrary to law
Concerned with diagnosis	Concerned with responsibility; what Section 22 requires

The crucial time

The relevant moment is the time of the act. Illness months before, or arising afterwards, is irrelevant unless unsoundness of mind existed at that very moment; but the court looks at the condition before and after the act to understand his condition at the time.

Unsoundness of Mind (Section 22): What It Does Not Cover

Section 22 does not cover:

• Irresistible impulse, where a person knows the act is wrong but cannot control himself.
• Mere emotional disturbance, anger, jealousy or eccentric behaviour.

Intoxication (Sections 23 and 24)

Intoxication is closely connected to insanity, because it can also disturb the mind. But the law treats it very differently depending on whether the intoxication was involuntary or voluntary.

Involuntary intoxication (Section 23)

Nothing is an offence which is done by a person who, at the time of doing it, by reason of intoxication, is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law. Condition: the thing which intoxicated him must have been administered to him without his knowledge or against his will. The test is the same as the test for insanity.

Voluntary intoxication (Section 24)

A person who chooses to drink cannot use his own drunkenness as a shield. For offences that require a particular knowledge or intent, a person who acts while intoxicated is dealt with as if he had the same knowledge as he would have had if sober, unless the intoxicant was administered to him without his knowledge or against his will.

Point	Section 23 (involuntary)	Section 24 (voluntary)
Intoxicant	Administered without his knowledge or against his will	Taken by his own choice
Effect	No offence if he was incapable of knowing the nature of the act, or that it was wrong or contrary to law	No shield: knowledge is presumed as if sober; intention must still be found on the evidence

Consent (Sections 25 to 31)

B.N.S. 2023 deals with consent in Sections 25 to 30, and Section 31, on communication made in good faith, belongs to the same family. A person can agree to suffer some harm, and in such cases the person who causes the harm should not be punished. Boxers, wrestlers and patients all consent to some harm.

Section 25: Consent to harm not intended or known to be likely to cause death or grievous hurt

It is not an offence if:

• the act is not intended, and not known by the doer to be likely, to cause death or grievous hurt;
• it causes harm to a person above eighteen years of age; and
• that person has consented, expressly or impliedly, to suffer that harm or to take the risk of it.

Section 26: Act done in good faith for the benefit of the consenting person

Section 26 goes further. It covers acts done in good faith for the benefit of the person who consents. The act may even be known to be likely to cause death, as long as it is not intended to cause death.

Section 27: Child under twelve or person of unsound mind, with the guardian's consent

Section 27 covers acts done in good faith for the benefit of a person under twelve years of age, or a person of unsound mind, with the consent of the guardian. A parent can consent to a necessary operation on a young child. The protection never extends to intentionally causing death or attempting to cause death. It also does not extend to doing anything known to be likely to cause death, or voluntarily causing or attempting to cause grievous hurt, for any purpose other than preventing death or grievous hurt or curing a grievous disease or infirmity; nor to abetting an offence to which it would not extend.

Section 28: When consent is not real consent

Consent is not valid if it is given:

1. under fear of injury or under a misconception of fact, but only if the person doing the act knows, or has reason to believe, that the consent was given because of that fear or misconception;
2. by a person who, because of unsoundness of mind or intoxication, cannot understand the nature and consequence of what he consents to;
3. by a person under twelve years of age, unless the context shows otherwise.

Section 29: Acts that are offences independently of harm

The consent exceptions do not apply to acts which are offences independently of any harm they cause to the consenting person. Causing miscarriage, except in good faith to save the woman's life, is the example: her consent does not make it lawful.

Section 30: Good faith act for a person's benefit without consent

An act done in good faith for a person's benefit is protected even without consent, when it is impossible for that person to give consent and there is no guardian from whom consent can be obtained in time.

Explanation: mere monetary benefit is not benefit within these sections. A person cannot harm someone and then defend himself by saying that he did it to make him rich.

Section 31: Communication made in good faith

No communication made in good faith is an offence because of any harm it causes to the person to whom it is made, if it is made for that person's benefit. A doctor who, in good faith, gives his opinion that a patient cannot live is not guilty if the patient dies of shock.

Compulsion by Threats (Section 32)

Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats. Each condition is strict:

1. The threat must be of instant death to that person, not of hurt or future harm.
2. The threat must exist at the time of the act and must reasonably cause the apprehension that instant death will otherwise be the consequence.
3. The person must not have placed himself in that situation of his own accord, or out of fear of some lesser harm.

Murder is never covered: the law expects a person to give up his own life rather than take an innocent life. The two explanations to Section 32 make the last condition clear.

Trivial Acts (Section 33)

Section 33 expresses the principle de minimis non curat lex: the law does not concern itself with trifles. Nothing is an offence by reason of harm so slight that no person of ordinary sense and temper would complain of it. Whether harm is slight depends on all the circumstances, including the nature of the injury, the position of the parties, and the knowledge or intention with which the act was done.

The Right of Private Defence (Sections 34 to 44)

The right of private defence is the most important justification in Criminal Law. The State must protect life and property, but the police cannot be everywhere. When a person faces an unlawful attack and there is no time to obtain the authorities' help, the law allows him to protect himself and others.

What may be defended (Section 35)

Subject to the restrictions in Section 37, every person has a right to defend:

• Body: his own body and the body of any other person, against any offence affecting the human body.
• Property: his own or any other person's property, movable or immovable, against theft, robbery, mischief or criminal trespass, or an attempt to commit them.

The right is not limited to protecting oneself. A stranger may defend a victim being attacked on the street.

Restrictions on the right (Section 37)

1. Public servants: no right of private defence against an act done by a public servant, or by his direction, acting in good faith under colour of his office, even if the act is not strictly justifiable by law, provided the act does not reasonably cause apprehension of death or grievous hurt.
2. Recourse to authorities: no right when there is time to have recourse to the protection of the public authorities.
3. Necessary harm only: most important, the right in no case extends to inflicting more harm than is necessary for the purpose of defence.

When death may be caused

Death may be caused in private defence, but only in the serious situations listed in B.N.S.

Defence of the body (Sections 38 and 39)

Under Section 38, the right extends to voluntarily causing death or any other harm to the assailant if the offence occasioning the right is:

1. an assault that may reasonably cause the apprehension of death;
2. an assault that may reasonably cause the apprehension of grievous hurt;
3. an assault with the intention of committing rape;
4. an assault with the intention of gratifying unnatural lust;
5. an assault with the intention of kidnapping or abducting;
6. an assault with the intention of wrongfully confining a person, in circumstances that may reasonably make him fear that he will be unable to get help from the public authorities for his release;
7. throwing or administering acid, or an attempt to do so, which may reasonably cause the apprehension of grievous hurt.

In all other cases, Section 39 extends the right to causing any harm other than death.

Defence of property (Sections 41 and 42)

Under Section 41, the right extends to causing death in four situations:

1. robbery;
2. house-breaking after sunset and before sunrise;
3. mischief by fire or explosive on a building, tent or vessel used as a human dwelling or for keeping property;
4. theft, mischief or house-trespass in circumstances that may reasonably cause apprehension of death or grievous hurt.

In other cases of theft, mischief or criminal trespass, Section 42 allows any harm other than death.

When the right begins and ends

Body (Section 40)

The right begins as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence, even though the offence has not been committed, and continues as long as that apprehension continues. A person does not have to wait to be struck first.

Property (Section 43)

The right begins when a reasonable apprehension of danger to the property begins, and continues:

Against	The right continues
Theft	Until the offender has escaped with the property, or the help of the public authorities is obtained, or the property is recovered
Robbery	As long as the offender causes or attempts to cause death, hurt or wrongful restraint, or the fear of instant death, hurt or restraint continues
Criminal trespass or mischief	As long as the offender continues the trespass or mischief
House-breaking after sunset and before sunrise	As long as the house-trespass that began with the house-breaking continues

Risk of harm to an innocent person (Section 44)

If a person facing a deadly assault cannot effectively defend himself without risk of harm to an innocent person, his right extends to running that risk.

Reasonable apprehension and proportionality

• Reasonable apprehension: the question is not whether the danger was actually as serious as the defender believed, but whether a reasonable person in his position would have apprehended that danger.
• Proportionality: the force used must not be more than necessary, but a person facing sudden danger cannot be expected to measure his response with perfect precision.

Exceeding the right

A person who had the right but used more force than necessary and caused death gets no complete acquittal, but is not treated as a murderer either. Under Exception 2 to Section 101 the killing is culpable homicide not amounting to murder if he acted in good faith, without premeditation, and without any intention of doing more harm than necessary for defence.

Aggressors, pleading and burden

• Not for the aggressor: a person who starts a fight cannot claim private defence when his victim fights back. When two groups deliberately come together to fight, neither can usually claim the right, because both are aggressors.
• No formal plea needed: if the evidence on record, including the prosecution's own evidence, shows that the accused acted in private defence, the court can consider the plea even if he did not raise it in so many words.
• Burden: on the accused, but only on a balance of probabilities.

Unit Four: Offences Against the Human Body

After the general principles (act, mind, joint liability, inchoate liability and defences) come the specific offences. B.N.S. 2023 arranges offences in a new order:

• Chapter V (from Section 63): offences against women and children, including sexual offences.
• Chapter VI (from Section 100): offences affecting the human body, including culpable homicide, murder, hurt, kidnapping and abduction.

Homicide and Culpable Homicide (Section 100)

Homicide means the killing of a human being by a human being. Not every homicide is a crime: killing in the lawful exercise of private defence, or causing death by pure accident, is homicide but not punishable. Punishable homicide is graded according to the mental state of the killer, and that grading is the key to this entire topic.

The offence has two parts:

• Physical part: causing the death of a human being by doing an act.
• Mental part, in three alternative forms: (1) intention to cause death; (2) intention to cause such bodily injury as is likely to cause death; (3) knowledge that the act is likely to cause death. If any one accompanies the act and death results, there is culpable homicide.

Explanations to Section 100:

1. A person who causes bodily injury to someone already suffering from a disorder, disease or bodily infirmity, and thereby hastens that person's death, is deemed to have caused the death.
2. Where death is caused by bodily injury, the person causing the injury is deemed to have caused the death even if proper treatment might have prevented it.
3. Causing the death of a child in the mother's womb is not homicide. But causing the death of a living child, any part of which has been brought forth, may be culpable homicide, even if the child has not breathed or been completely born.

Murder (Section 101)

Section 101 (old Section 300 of the IPC) says that, except in the cases excepted, culpable homicide is murder in four situations. B.N.S. 2023 labels them clauses (a), (b), (c) and (d); the old IPC called them firstly, secondly, thirdly and fourthly, names still found in judgments.

Clause (IPC name)	The act by which death is caused is done
(a) Firstly	With the intention of causing death
(b) Secondly	With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused (special knowledge about the victim)
(c) Thirdly	With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death
(d) Fourthly	With knowledge that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and without any excuse for incurring that risk

Culpable Homicide and Murder: The Distinction

If both culpable homicide and murder include intention to cause death, what exactly is the difference?

Two routes decide whether a culpable homicide falls inside the smaller circle:

1. Compare the mental state with the four clauses of Section 101. If none is satisfied, it is culpable homicide not amounting to murder.
2. Even if a clause is satisfied, check whether any of the five exceptions to Section 101 applies. If one does, it is again culpable homicide not amounting to murder.

Comparing the mental states limb by limb

Section 100 limb	Matching clause of Section 101	Difference
Intention to cause death	Clause (a)	Exact match: murder unless an exception applies
Intention to cause bodily injury likely to cause death	Clause (b)	Adds special knowledge about the particular victim
Intention to cause bodily injury likely to cause death	Clause (c)	Raises the degree of probability: injury sufficient in the ordinary course of nature to cause death
Knowledge that the act is likely to cause death	Clause (d)	Higher degree: act so imminently dangerous that it must in all probability cause death, and done without any excuse for running that risk

Three degrees of culpable homicide

Degree	What it covers	Punishment
Highest	Murder	Section 103
Middle	Culpable homicide not amounting to murder done with intention to cause death, or to cause bodily injury likely to cause death, where an exception applies or the injury intended falls short of the murder clauses	Section 105, first part: imprisonment for life, or imprisonment of not less than five years which may extend to ten years, and fine
Lowest	Only knowledge that the act was likely to cause death, without any such intention	Section 105, second part: imprisonment up to ten years and fine

Clause (c) of Section 101 and the Virsa Singh Test

The third clause is the one most often used in practice, because killers rarely admit that they intended death.

The prosecution must prove:

1. quite objectively, that a bodily injury is present;
2. the nature of the injury;
3. an intention to inflict that particular bodily injury, that is, it was not accidental or unintentional, and some other kind of injury was not intended;
4. that the injury of that type is sufficient to cause death in the ordinary course of nature. This step is purely objective and has nothing to do with the intention of the accused.

Clause (d) of Section 101: Imminently Dangerous Acts

The fourth clause covers cases with no intention to cause any particular injury to any particular person, where the act is so dangerous that death is almost certain: firing into a crowd, driving a vehicle at high speed into a procession, or setting fire to an occupied house at night. The words "without any excuse" matter: if a person runs such a risk for a lawful and pressing reason, the fourth clause may not apply.

Transferred Intention (Section 102)

Section 102 deals with transferred malice. If a person does something which he intends or knows to be likely to cause death, and thereby causes the death of a person whose death he neither intended nor knew to be likely, the culpable homicide is of the same description as if he had killed the intended person.

The Exceptions to Murder

Section 101 has five exceptions. In each, even though the killing satisfies one of the four clauses, the law reduces it from murder to culpable homicide not amounting to murder.

Exception 1: Grave and sudden provocation

Culpable homicide is not murder if the offender, while deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or of any other person by mistake or accident.

Provisos: the provocation must not be:

1. sought or voluntarily provoked by the offender as an excuse for killing or harming anyone;
2. given by anything done in obedience to the law, or by a public servant in the lawful exercise of his powers;
3. given by anything done in the lawful exercise of the right of private defence.

Explanation: whether the provocation was grave and sudden enough is a question of fact.

• Grave: serious enough to make a reasonable person lose self-control.
• Sudden: it comes without warning, and the killing follows before there is time to cool down.
• Actual loss of self-control at the time of the killing. If there was time for passion to cool and he killed after deliberation, the exception will not help.

The four Nanavati principles:

1. Test: would a reasonable man, belonging to the same class of society as the accused, and placed in the same situation, be so provoked as to lose his self-control?
2. In India, words and gestures may also amount to grave and sudden provocation.
3. The mental background created by the previous act of the victim may be taken into account.
4. The fatal blow must be clearly traced to the influence of passion arising from that provocation, and not to a time after the passion has cooled and there has been room for premeditation and calculation.

Exception 2: Private defence exceeded

Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes death, without premeditation and without any intention of doing more harm than is necessary for defence.

Exception 3: Public servant exceeding his powers

A public servant, or a person aiding a public servant acting for the advancement of public justice, who exceeds his legal powers and causes death, is covered if he acted in the good faith belief that the act was lawful and necessary for the due discharge of his duty, and without ill will towards the person killed.

Exception 4: Sudden fight

Culpable homicide is not murder if committed without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation: it does not matter which party offered the provocation or committed the first assault. The protection is lost by taking undue advantage, such as attacking an unarmed man with a weapon, continuing to strike a person who has fallen down, or acting in a cruel manner.

Exception 1: Grave and sudden provocation	Exception 4: Sudden fight
One person provokes and the other loses self-control	A mutual fight; both parties are in the heat of passion
The offender must actually be deprived of the power of self-control by the provocation	No question of who provoked whom; it does not matter which party offered the provocation or committed the first assault

Exception 5: Consent

Culpable homicide is not murder when the person whose death is caused, being above eighteen years of age, suffers death or takes the risk of death with his own consent. A classic example is a suicide pact, where one partner kills the other at the other's genuine request.

Punishment for Murder and Related Provisions

• Section 103(1): murder is punished with death or imprisonment for life, and the offender shall also be liable to fine. Under settled law, the death penalty is imposed only in the rarest of rare cases, when the alternative of life imprisonment is unquestionably ruled out.
• Section 103(2) (new): when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of the group is punished with death or imprisonment for life, and shall also be liable to fine. This responds to murders committed by mobs.
• Section 104: a person who commits murder while under a sentence of imprisonment for life is punished with death or imprisonment for life, which shall mean the remainder of that person's natural life.
• Section 106: causing death by a rash or negligent act not amounting to culpable homicide. This is a separate offence, not a degree of culpable homicide; for example, causing death by careless driving without the intention or knowledge required by Section 100. Punishment: up to five years; for a registered medical practitioner causing death by negligence while performing a medical procedure, up to two years. New Section 106(2), for a driver who causes death and escapes without reporting it, provides up to ten years, but the Central Government has not yet brought it into force.

Kidnapping (Section 137)

Kidnapping is the first of the offences that interfere with a person's liberty and with the authority of guardians. Under Section 137(1), kidnapping is of two kinds:

1. Kidnapping from India (clause (a)): whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on that person's behalf. This applies to a person of any age.
2. Kidnapping from lawful guardianship (clause (b)): whoever takes or entices any child or any person of unsound mind out of the keeping of the lawful guardian, without the guardian's consent.

B.N.S. 2023 uses the word child, and Section 2(3) defines a child as any person below the age of eighteen years.

Point	Old IPC	B.N.S. 2023
Boy	Protected only if under sixteen	Protected if under eighteen
Girl	Protected if under eighteen	Protected if under eighteen

Kidnapping from Lawful Guardianship (continued)

Ingredients

1. The victim must be a child or a person of unsound mind.
2. The accused must take or entice that person.
   • Taking: causing the child to go with the accused. Force is not required.
   • Enticing: inducing the child, by persuasion, promises or temptation, to leave the guardian.
3. The taking or enticing must be out of the keeping of the lawful guardian.
4. It must be without the consent of the guardian.

Keeping of the lawful guardian

"Keeping" does not require the child to be physically inside the guardian's house. A child who has gone to school, to the market or to a friend's house remains in the guardian's keeping, because the guardian's control and protection continue.

By the Explanation, a lawful guardian includes any person lawfully entrusted with the care or custody of the child, such as a school teacher, a hostel warden, or a relative entrusted with the child.

Consent of the child is irrelevant

Exception

The clause does not extend to a person who in good faith believes himself to be the father of an illegitimate child, or believes himself entitled to the lawful custody of the child, unless the act is committed for an immoral or unlawful purpose.

Punishment and graver forms

• Section 137(2): imprisonment up to 7 years and fine.
• Section 139: kidnapping a child for begging.
• Section 140: kidnapping or abducting for murder, ransom, secret confinement or slavery.

Taking and Enticing

Three Supreme Court decisions settle when the accused has taken or enticed a child who leaves home on her own while the accused only goes along.

Proof of age

The prosecution must prove that the child was below 18 at the time of the taking or enticing. In many cases the age, proved through school records, birth certificates or medical opinion, decides whether the offence is made out at all.

Abduction

Section 138: whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Ingredients

1. The person must be compelled or induced to go from any place.
2. The means must be force (physical force used to make the person go) or deceitful means (any trick or false representation).

Punishable only with a purpose

Unlike kidnapping, abduction by itself is not punished; it is punishable only when done with a particular purpose, for example:

• Section 140: abduction in order to murder, for ransom, for secret and wrongful confinement, or for grievous hurt or slavery.
• Section 87: kidnapping or abducting a woman to compel her marriage against her will, or to force or seduce her to illicit intercourse.

A continuing offence

A person is abducted not only when first moved but every time he is moved from one place to another by force or deceit. If A forcibly takes B from one city to another and then to a third, the abduction continues throughout. Kidnapping from lawful guardianship, by contrast, is complete the moment the child is taken out of the guardian's keeping and does not continue.

Kidnapping and Abduction Compared

A very commonly tested distinction.

Basis	Kidnapping from lawful guardianship	Abduction
Age of the victim	Only a child under 18 or a person of unsound mind	A person of any age
Means	Only taking or enticing; no force or deceit required	Force or deceitful means required
Consent	Child's consent irrelevant; only the guardian's consent matters	No abduction if the person freely consents to go with full knowledge of the facts
Interest protected	Right of the guardian	Liberty of the person abducted
Nature	Complete on removal from the guardian's keeping; a substantive offence by itself	Continuing offence; punishable only when done with a purpose stated in B.N.S.

Sexual Offences: Rape

These offences are among the gravest violations of dignity and bodily autonomy. The central idea running through the topic is consent.

Definition (Section 63)

• Section 63 of B.N.S. corresponds to old Section 375 of the IPC as amended in 2013.
• It is gender-specific: an offence by a man against a woman. Under Section 2(35), a woman is a female human being of any age.
• Its four clauses describe a range of penetrative and other sexual acts. The definition is deliberately broad, not limited to one physical act, and penetration to any extent is enough.

The seven circumstances

The physical act becomes rape only if done in any of these circumstances:

1. Against her will.
2. Without her consent.
3. With her consent, obtained by putting her or any person in whom she is interested in fear of death or hurt.
4. With her consent, when the man knows he is not her husband and she consents believing he is another man to whom she is, or believes herself to be, lawfully married.
5. With her consent, when at the time she is unable to understand the nature and consequences of the act because of unsoundness of mind, intoxication, or a stupefying substance given by him or through another.
6. With or without her consent, when she is under 18.
7. When she is unable to communicate consent.

Circumstances 1 and 2 cover absence of will or consent; 3 to 5 cover consent that is not real consent (fear, mistaken identity, inability to understand), closely following the rule on invalid consent in Section 28; 6 makes consent legally irrelevant below 18; 7 covers inability to communicate consent.

The Meaning of Consent

• Unequivocal: clear, not ambiguous.
• Voluntary: free from force, fear or pressure.
• Specific: agreeing to one thing is not agreeing to everything.
• No resistance is not consent.

Consent and submission

Consent is a free and positive act of the will, given with knowledge of what is agreed to. Submission is merely yielding out of helplessness, fear or being overpowered. Every consent involves a kind of submission, but not every submission is consent: a woman who stops resisting because she is terrified, or is in her assailant's custody, has submitted, not consented. The law came to reflect this only after a much-debated decision.

• The judgment caused a nationwide outcry; legal scholars wrote an open letter to the Chief Justice criticising it.
• 1983: Parliament introduced stricter punishment for custodial rape and a presumption about absence of consent in certain aggravated cases, now in Section 120 of B.S.A.
• 2013: consent itself was defined. Explanation 2 directly rejects the reasoning of that decision: absence of physical resistance is not consent, and a woman in police custody who submits out of helplessness has not consented.

The Two Exceptions to Section 63

• Exception 1: a medical procedure or intervention is not rape.
• Exception 2: sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18, is not rape.

The words "not being under eighteen years of age" did not appear in this form in the old IPC; they reflect a Supreme Court decision.

Two further points

• Section 67 punishes a husband who has sexual intercourse with his wife without her consent while she is living separately, under a decree of separation or otherwise.
• Whether the marital exception for adult wives is constitutionally valid is pending before a three-judge bench of the Supreme Court, which in September 2026 listed the matter for final hearing. Until it decides, Exception 2 remains law.

Consent Obtained by Deceit

Under Section 28, consent given under a misconception of fact is not valid if the accused knew or had reason to believe it was given because of that misconception. The difficulty arises where a woman agrees to a sexual relationship on a promise to marry that the man later refuses to keep.

False promise	Broken promise
False from the very beginning, made only to obtain consent, with no intention of keeping it	Genuinely intended at the time, but not kept because of changed circumstances
Consent may be vitiated by misconception of fact	Does not convert a consensual relationship into rape

A long consensual relationship between two adults does not become rape merely because it ends without marriage.

Section 69 (new provision)

Whoever, by deceitful means or by a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her, not amounting to rape, is punishable with imprisonment up to 10 years and fine. "Deceitful means" includes inducement for, or false promise of, employment or promotion, and marrying by suppressing identity.

Punishment and Aggravated Forms of Rape

Section 64(1): rigorous imprisonment (RI) of not less than 10 years, which may extend to imprisonment for life, and fine.

Section 64(2): aggravated situations

Cases where the offender abuses a position of power or the victim is especially vulnerable.

Position of the offender

• A police officer, within his police station or on a woman in his custody.
• A public servant, on a woman in his custody.
• A member of the armed forces, in an area of deployment.
• The staff of a jail, remand home, hospital or similar institution.
• A relative, guardian, teacher, or person in a position of trust, authority, control or dominance.

The victim or the circumstances

• Rape during communal or sectarian violence.
• Rape of a woman known to be pregnant.
• Rape of a woman incapable of giving consent, or suffering from mental or physical disability.
• Rape causing grievous bodily harm or endangering life.
• Repeated rape of the same woman.

Punishment: rigorous imprisonment of not less than 10 years, extendable to imprisonment for life meaning the remainder of natural life, and fine.

Other provisions

Provision	Situation	Punishment
Section 65	Woman under 16	RI not less than 20 years, extendable to the remainder of natural life, and fine
Section 65	Woman under 12	Same minimum; may also be death
Section 66	Person guilty under Section 64 inflicts, in the course of the rape, injury causing death or a persistent vegetative state	Not less than 20 years, up to the remainder of natural life, or death
Section 68	Person in authority or a fiduciary relationship, public servant, or manager of a jail, remand home, institution or hospital abuses his position to induce or seduce a woman in his custody or charge to intercourse not amounting to rape	RI not less than 5 years, up to 10 years, and fine

Gang Rape (Section 70)

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of them is deemed to have committed rape.

• Punishment: RI not less than 20 years, extendable to the remainder of natural life, and fine.
• Woman under 18: imprisonment for the remainder of natural life and fine, or death, for each person.

Section 70 is a provision of constructive liability: it need not be proved that each member personally committed the physical act. It applies the logic of common intention with special force to a grave offence.

Sexual offences against children are dealt with in detail by the Protection of Children from Sexual Offences Act, 2012, which is gender-neutral and protects every child below 18. In practice both laws are often applied together.

Offences Against Property: The Basic Vocabulary

Chapter 17 of B.N.S. contains offences against property. Five are studied here: theft, extortion, robbery, dacoity and cheating, all relying on these Section 2 definitions.

Dishonestly, wrongful gain and wrongful loss

• Dishonestly (clause 7): doing a thing with the intention of causing wrongful gain to one person or wrongful loss to another.
• Wrongful gain (clause 36): gain by unlawful means of property to which the person gaining is not legally entitled.
• Wrongful loss (clause 37): loss by unlawful means of property to which the person losing it is legally entitled.
• Clause 38: one gains wrongfully by wrongfully acquiring or retaining property, and loses wrongfully by being wrongfully deprived of it or kept out of it.

Fraudulently (clause 9)

Doing a thing with intent to defraud, but not otherwise. Dishonestly concerns wrongful gain or loss of property; fraudulently concerns deceit. As the courts explain, the deceiver aims at some advantage for himself or some injury to the deceived, which need not always be a loss of property.

Movable property (clause 21)

Property of every description, except land and things attached to the earth or permanently fastened to anything attached to the earth.

Valuable security (clause 31)

A document by which a legal right is created, extended, transferred, restricted, extinguished or released, or by which a person acknowledges that he is under a legal liability or does not have a certain legal right. Examples: a promissory note, a cheque, a bond, a sale deed.

Theft

Five ingredients: (1) dishonest intention to take; (2) movable property; (3) in the possession of some person; (4) taken without that person's consent; (5) moving of the property in order to such taking.

1. Dishonest intention

This is the heart of theft, and it must exist at the time of moving the property. If A takes Z's umbrella from a stand honestly believing it to be his own, there is no theft. But an intention to keep the property permanently is not required: if A takes Z's property intending to keep it until Z pays a reward for its return, A has committed theft.

2. Movable property

Land cannot be stolen. Under Explanation 1, a thing attached to the earth becomes capable of being stolen once severed; under Explanation 2, the moving effected by the same act which causes the severance may itself be theft. If A cuts down a tree on Z's land intending to take it dishonestly, theft is committed the moment the tree is severed.

3. Possession

Theft is an offence against possession, not just ownership, so even an owner can steal his own property.

Section 3(3) of B.N.S.: property in the possession of a person's spouse, clerk or servant, on account of that person, is in that person's possession.

4. Absence of consent

Explanation 5: consent may be express or implied, given by the person in possession or by anyone authorised by him. If A's friend takes a book from A's shelf to read, believing A would not mind, there may be implied consent and no theft.

5. Moving the property

Theft is complete as soon as the property is moved, however slightly, with dishonest intention; it need not be carried away.

• Explanation 3: a thing is moved by removing an obstacle that prevented it from moving, or by separating it from another thing, as well as by actually moving it.
• Explanation 4: one who causes an animal to move moves that animal and everything that moves because of it.

Punishment and snatching

• Section 303(2): imprisonment up to 3 years, or fine, or both. Second or subsequent conviction: RI of at least 1 year and up to 5 years, with fine.
• Community service (a humane innovation): where the stolen property is worth less than ₹5,000 and the person is convicted for the first time, he is punished with community service, when he returns the value or restores the property.
• Snatching (Section 304), a new separate offence: theft where the offender suddenly, quickly or forcibly seizes or grabs movable property from a person.

Extortion

Ingredients: (1) intentionally putting a person in fear of injury (2) to that person or anyone else; (3) thereby dishonestly inducing delivery; (4) actual delivery of property, a valuable security, or a signed or sealed thing convertible into one.

Injury

Section 2(14): any harm whatever illegally caused to any person in body, mind, reputation or property. So the fear need not be of physical harm.

Delivery and punishment

Extortion is complete only on actual delivery by the person put in fear. Punishment under Section 308(2): imprisonment up to 7 years, or fine, or both. If the victim refuses, there is no extortion, though the accused may be punished for putting the person in fear in order to commit extortion under Section 308(3), (4) or (6).

Theft and Extortion Compared

Basis	Theft	Extortion
Consent	Taken without the owner's consent	Owner consents and delivers, but consent is obtained by fear
Who moves the property	The offender	The victim delivers it
Property	Only movable property	Not limited to movable property: "any property", plus a valuable security or signed or sealed document
Fear	Not an element	Fear of injury is the very core

Robbery

Section 309(1): in all robbery there is either theft or extortion. Robbery is an aggravated form of one of them.

Theft as robbery (Section 309(2))

Theft is robbery if, in order to commit it, while committing it, or while carrying away or attempting to carry away the stolen property, the offender for that end voluntarily causes or attempts to cause to any person death, hurt or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint. Two elements: the violence or fear must be for the purpose of the theft, and at the time of the theft.

Extortion as robbery (Section 309(3))

Extortion is robbery if the offender, at the time of committing it, is in the presence of the person put in fear, commits it by putting that person in fear of instant death, instant hurt or instant wrongful restraint to that person or someone else, and thereby induces him then and there to deliver the thing extorted. By the Explanation, the offender is present if sufficiently near to put the other in fear of instant death, hurt or restraint. So three elements: presence, instant harm, delivery then and there.

Robbery differs from	Because of
Simple theft	Violence or fear of instant violence used for the purpose of the theft
Simple extortion	Presence of the offender, the instant nature of the threat, and immediate delivery

Punishment

• Section 309(4): RI up to 10 years and fine; up to 14 years if committed on a highway between sunset and sunrise.
• Section 309(5): attempt to commit robbery.
• Section 309(6): if any person voluntarily causes hurt in committing or attempting robbery, he and every other person jointly concerned are punishable with imprisonment for life or RI up to 10 years, and fine (joint liability).

Dacoity

Section 310(1): when five or more persons conjointly commit or attempt to commit robbery, or where those conjointly committing or attempting it, together with those present and aiding, amount to five or more, every person committing, attempting or aiding commits dacoity.

Requirements: (1) robbery or an attempt at it; (2) five or more persons, counting those present and aiding (such as one keeping watch outside or waiting in a vehicle to help the others escape); (3) acting conjointly, that is together, in concert, for the common purpose of the robbery.

Punishment and related offences

• Section 310(2): imprisonment for life or RI up to 10 years, and fine.
• Section 310(3), dacoity with murder: if any one of five or more persons conjointly committing dacoity commits murder in so doing, every one of them is punishable with death, imprisonment for life, or RI not less than 10 years, and fine, even if the others did not intend or take part in the murder. One of the strictest rules of constructive liability in B.N.S.
• Section 310(4): preparation to commit dacoity, one of the rare cases where preparation is punished.
• Section 310(5): assembling for the purpose of committing dacoity.
• Section 310(6): belonging to a gang associated for habitually committing dacoity.

Cheating

Section 318(1) (old Section 415 of the IPC). The foundation of every case is deception: a false statement, false conduct, or (by the Explanation) a dishonest concealment of facts. The definition has two branches.

1. Property branch: by deceiving any person, fraudulently or dishonestly inducing him to deliver any property to any person, or to consent that any person shall retain any property. Example: A falsely pretends to be a government officer and induces Z to give him goods on credit, which A never intends to pay for. A cheats.
2. Harm branch: by deceiving a person, intentionally inducing him to do or omit anything he would not do or omit if not deceived, where the act or omission causes or is likely to cause damage or harm to him in body, mind, reputation or property. No delivery of property is needed. Example: A, falsely claiming to be a qualified doctor, induces Z to undergo a dangerous treatment that harms Z's health. A cheats under the second branch.

Punishment

Provision	Situation	Punishment
Section 318(2)	Cheating	Up to 3 years, or fine, or both
Section 318(3)	Cheat knows wrongful loss is likely to a person whose interest he was bound by law or a legal contract to protect	Up to 5 years, or fine, or both
Section 318(4) (old Section 420 of the IPC)	Person deceived dishonestly induced to deliver property, or to make, alter or destroy a valuable security	Up to 7 years and fine

Section 319, cheating by personation: cheating by pretending to be some other person, real or imaginary, or representing that he or another person is someone else.

The Time of the Dishonest Intention

Cheating and Breach of Contract

A practically vital distinction: those who fail to pay, deliver or complete work are often accused of cheating, as a criminal case puts more pressure than a civil suit.

The test: was there a dishonest intention at the very beginning of the transaction? If yes, it may be cheating. If the intention was honest at the beginning and the failure came later, it is a breach of contract, remediable in a civil court.

Courts infer the initial intention from all the circumstances, such as use of a false name or address, a cheque from a closed account, disappearing immediately after receiving the money, or making the same promise to many people knowing it cannot be kept. But a mere failure to pay or perform, without more, does not prove dishonest intention at the start, and the criminal law should not be used as a tool to recover money in what is really a civil dispute.

Cheating: deception by a claim of divine powers

Deception can take many forms, including a false claim of supernatural power.

Cheating completes the offences against property and the specific offences.

Bringing it all together

The real strength of Criminal Law under B.N.S. 2023 lies in seeing how its parts fit together. The aim is to understand not just what the law says, but why it says it.

Actus reus and mens rea

Every criminal case begins with two questions:

1. What did the accused do? The actus reus: external conduct, circumstances and consequences.
2. What was in his mind when he did it? The mens rea, or guilty mind: intention, knowledge, rashness or negligence, depending on how the offence is defined.

Strict liability: only in offences of strict liability, created for special reasons of public welfare, does the law sometimes dispense with the guilty mind; even then, courts presume mens rea is required unless the statute clearly excludes it.

Who is liable

Criminal Law reaches beyond the person whose hand did the act.

• Common intention (Section 3(5) B.N.S.): partners in a shared plan are equally liable for what any of them does in furtherance of it.
• Common object (Section 190 B.N.S.): every member of an unlawful assembly is liable for offences committed in prosecution of its object, or known to be likely.
• Abetment: reaches those who instigate, conspire or intentionally aid.
• Criminal conspiracy (Section 61 B.N.S.): the very agreement to commit an offence is punished.

How early the law steps in

Intention alone is never punished; preparation is usually not punished; liability begins when the accused moves from preparation to attempt. Tests: proximity, locus poenitentiae and equivocality.

General exceptions

The general exceptions answer when a person who appears to fit the definition of an offence should still go free. Some acts are justified; others are excused.

Justified	Excused
Private defence; acts under a legal duty	Young children; persons who, because of unsoundness of mind, could not know the nature or wrongfulness of their acts; genuine mistake of fact; pure accident

Vital distinctions: medical insanity versus legal insanity; voluntary versus involuntary intoxication.

Specific offences

Offences against the human body

A killing is graded by the killer's state of mind: murder at the top, then the two degrees of culpable homicide not amounting to murder, then death by negligence. The five exceptions reduce murder to culpable homicide.

Kidnapping	Abduction
Protects the guardian's custody of a child	Protects every person's liberty against force and deceit

Sexual offences are built around free, voluntary and unequivocal consent.

Offences against property

Offence	Essence
Theft	Taking without consent
Extortion	Delivery obtained by fear
Robbery	Theft or extortion aggravated by instant violence or the fear of it
Dacoity	Robbery by five or more persons acting together
Cheating	Obtaining property or causing harm by deception, with dishonest intention present from the very beginning

Connecting threads

Idea	Where it appears
Guilty mind	Theft (dishonest intention); cheating (intention at the time of the promise); murder (the four clauses of Section 101)
Joint liability	Common intention, common object, gang rape, dacoity
Consent	General exceptions, kidnapping, sexual offences, theft
Fear	Compulsion, extortion, robbery

Once these connecting threads are seen, Criminal Law stops being a long list of sections and becomes one coherent system.

Method for any problem

For any problem in Criminal Law, whether in an examination hall or in a courtroom, ask the same questions in the same order:

1. What exactly was done?
2. What was the mental state at that moment?
3. Which offence does the conduct fit, ingredient by ingredient?
4. Who else is liable, and on what principle?
5. Was the offence complete, or only attempted, abetted or conspired?
6. Does any general exception justify or excuse the conduct?

Quick revision

• A claimed divine power, falsely represented to obtain money, can be deception for cheating (1999).
• Actus reus and mens rea must coexist; strict liability is the exception, and mens rea is still presumed.
• Joint liability: common intention (Section 3(5) B.N.S.), common object (Section 190 B.N.S.), abetment, criminal conspiracy (Section 61 B.N.S.).
• Intention never punished, preparation usually not, attempt is; an impossible attempt is still an attempt.
• General exceptions either justify or excuse; medical insanity is not legal insanity; private defence never permits punishment or revenge.
• Killing is graded by mental state: murder, two degrees of culpable homicide not amounting to murder, death by negligence; the five exceptions reduce murder to culpable homicide.
• Kidnapping protects the guardian's custody of a child; abduction protects every person's liberty against force and deceit.
• Theft: taking without consent; extortion: delivery by fear; robbery: plus instant violence or its fear; dacoity: robbery by five or more; cheating: deception with dishonest intention from the beginning.
• Recurring threads: guilty mind, joint liability, consent and fear.
• Problem method: act, mental state, offence by ingredients, liability of others, complete or inchoate, general exception.