Section 34 and 120B IPC in BNS: Sections 3(5) and 61 Explained

Section 34 IPC (common intention) is now Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS), and Sections 120A and 120B IPC (criminal conspiracy) are now Section 61 BNS. Section 3(5) is not an offence by itself; it makes each participant liable for a crime done jointly. Section 61 is a separate offence that is complete on agreement in most cases.

Look up any section: type an old or new section number into the free IPC to BNS converter to see its counterpart instantly.

Section 3(5) BNS: common intention

When a criminal act is done by several persons in furtherance of the common intention of all, each of them is liable for that act as if he alone had done it. The wording is carried over from Section 34 IPC; only its place has changed. It now sits as a sub-section of Section 3 (General explanations) of the BNS rather than as a standalone section.

Ingredients

• A criminal act done by more than one person.
• A common intention shared by all, meaning a prior meeting of minds. It may form on the spot, just before the act.
• Participation by each accused in some way in carrying out that intention. Presence and support can be enough; each person need not strike a blow.

Because Section 3(5) is only a rule of liability, it is always read with a main offence, for example “Section 103(1) read with Section 3(5) BNS”.

Section 61 BNS: criminal conspiracy

Section 61(1) defines criminal conspiracy as an agreement between two or more persons to do, or cause to be done, an illegal act, or a legal act by illegal means. Section 61(2) gives the punishment.

Ingredients

• Two or more persons.
• An agreement between them.
• The object is an illegal act, or a lawful act by illegal means.
• Where the object is not itself an offence, some act besides the agreement must be done by one or more parties in pursuance of it (the overt act proviso).

So an agreement to commit an offence is punishable even if nothing more happens. The Explanation adds that it does not matter whether the illegal act is the ultimate object or only incidental to it.

Punishment

• 61(2)(a): for a conspiracy to commit an offence punishable with death, life imprisonment or rigorous imprisonment of two years or more, where no express provision exists, the conspirator is punished as if he had abetted that offence.
• 61(2)(b): any other criminal conspiracy is punishable with imprisonment up to six months, or fine, or both.

What changed from the IPC

• Section 34 to Section 3(5): Same rule, new location. All Section 34 case law continues to apply.
• Sections 120A and 120B to Section 61: The definition and punishment are merged into one section with sub-sections. The two-tier punishment and the overt act proviso are retained.
• Evidence rule: Section 10 of the Indian Evidence Act (statements and acts of a conspirator in reference to the common design) is now Section 8 of the Bharatiya Sakshya Adhiniyam, 2023.
• Common object: Section 149 IPC (unlawful assembly) is now Section 190 BNS.

Acts done before 1 July 2024 continue under the IPC provisions.

Important case law

• Barendra Kumar Ghosh v. King-Emperor, AIR 1925 PC 1: A man who stood guard outside while others shot a postmaster was held liable for murder. Participation need not be the fatal act itself; in the Privy Council’s words, “they also serve who only stand and wait”.
• Mahbub Shah v. Emperor, AIR 1945 PC 118: Common intention needs a prior meeting of minds. Same or similar intention held independently is not enough.
• Pandurang v. State of Hyderabad, AIR 1955 SC 216: Common intention may develop on the spot, but it must exist before the act and must be proved, not assumed from the fact that several people attacked together.
• Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609: Conspiracy is rarely proved by direct evidence. The agreement can be inferred from proved circumstances and the conduct of the accused.
• State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659: A person who knows the unlawful object and agrees to it is a conspirator, even without knowing every detail or every other conspirator.

Common confusions

Common intention vs criminal conspiracy

• Section 3(5) needs a criminal act actually done jointly. Section 61 is complete on agreement (for an offence), even if the act never happens.
• Section 3(5) creates no offence; Section 61 is an offence with its own punishment.
• Physical participation matters in Section 3(5). A conspirator under Section 61 may never be present at the scene.

Common intention vs common object (Section 190 BNS)

• Section 3(5) needs two or more persons and a prior meeting of minds.
• Section 190 needs an unlawful assembly of five or more persons and a common object; no prior concert is required.
• Section 190 is a separate offence-creating provision; Section 3(5) is not.

For the general public: what to do

• If you are named with others in an FIR: Check whether Section 3(5) or Section 61 is added. Your liability depends on the main offence, so bail and court follow that offence.
• Defence points: Absence from the scene, lack of any prior meeting of minds, or no evidence of agreement are common grounds raised at the bail and discharge stages.
• Complainants: Preserve call records, messages, CCTV footage and witness names that show planning or joint action. These help prove the shared intention or agreement.

Exam angle

• 34 IPC = 3(5) BNS; 120A/120B IPC = 61 BNS; 149 IPC = 190 BNS; 10 IEA = 8 BSA.
• Section 3(5) is a rule of evidence and liability, not an offence (Barendra Kumar Ghosh).
• Overt act is needed only where the object of conspiracy is not an offence.
• 61(2)(b): six months, or fine, or both; non-cognizable and bailable.
• Mahbub Shah: similar intention is not common intention.

Frequently asked questions

What is the new section for 34 IPC?

Section 34 IPC is now Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, with the same wording.

What is the new section for 120B IPC?

Criminal conspiracy (Sections 120A and 120B IPC) is now Section 61 BNS. Section 61(1) defines it and Section 61(2) punishes it.

Is Section 61 BNS bailable?

It depends on the object. A conspiracy to commit a serious offence follows that offence; any other conspiracy under 61(2)(b) is bailable and non-cognizable.

Can a person be punished under Section 3(5) alone?

No. Section 3(5) must be read with a substantive offence such as murder or robbery.

What is the difference between Section 3(5) and Section 190 BNS?

Section 3(5) needs two or more persons with a prior shared intention. Section 190 needs an unlawful assembly of five or more with a common object.

Quick quiz

Sources

• Bharatiya Nyaya Sanhita, 2023: Sections 3(5), 61 and 190 (India Code)
• Bharatiya Nagarik Suraksha Sanhita, 2023: First Schedule
• Bharatiya Sakshya Adhiniyam, 2023: Section 8
• Barendra Kumar Ghosh v. King-Emperor, AIR 1925 PC 1
• Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609

This page is for education and general information, not legal advice for a specific case.