Abstract: This article examines three provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS) Section 103 (murder), Section 3(5) (common intention), and Section 61(2) (criminal conspiracy) using a recent, ongoing Pune investigation as an illustration. It is written for readers with a general interest in criminal law and does not assume prior familiarity with the new code.
A note on scope: The investigation discussed below remains pending. The persons under investigation are entitled to the presumption of innocence, and nothing in this article should be read as a comment on guilt. To limit that risk, this article does not name the accused; every reported fact is treated as an unproven allegation, recounted only to the extent necessary to illustrate how the three provisions would operate if the prosecution's version were established. Readers should not rely on any factual statement below as judicially determined.
The Facts, in Brief
According to press reports and preliminary police disclosures, Ketan Agarwal, a Pune-based realtor, died after falling from Lohagad Fort on 18 June 2026, in circumstances first treated as accidental. The investigation was reportedly reopened as a murder inquiry after digital and forensic material, said to include CCTV footage, call records and deleted messages, revealed inconsistencies with that initial account. Agarwal's fiancée (“A-1”) and a man she is alleged to have been involved with (“A-2”) were subsequently arrested. As reported, the prosecution's theory rests on an allegation of a pre-arranged signal and coordinated conduct between the two at the time of the fall. Both remain under investigation, and a chargesheet is awaited. The account above is offered only in summary; the doctrinal discussion that follows should be read as addressing what would follow if such facts were established, not as an assertion that they have been.
Section 103 BNS: What Counts as Murder
Section 103(1) of the BNS is the direct successor to Section 302 of the IPC. It punishes murder with death or life imprisonment, along with a fine. Section 101 defines the four circumstances in which culpable homicide amounts to murder:
– an act done with the intention of causing death;
– an act done with the intention of causing a bodily injury the offender knows to be likely to cause death;
– an act done with the intention of causing an injury sufficient, in the ordinary course of nature, to cause death; or
– an act done with the knowledge that it is so imminently dangerous that it must, in all probability, cause death, without any excuse for incurring that risk.
If the prosecution's account were established, the first limb would be the most naturally applicable: a push administered with the intention of causing death, from a height capable of causing death, requires comparatively little further inferential work. The second and third limbs would function as fallbacks if intention to kill specifically were contested; even if the defence argued the intention was only to cause serious injury, an injury sufficient to cause death in the ordinary course of nature could still sustain a murder charge under the third limb. The fourth limb, aimed at inherently dangerous acts without a specific target, is less likely to be the operative provision here, since the allegation concerns a targeted act against one person rather than indiscriminate danger.
The harder question, if a conviction follows, is sentencing. Section 103(1) allows a court to choose between life imprisonment and death, and that discretion has been shaped by a specific line of Supreme Court authority rather than left to individual instinct.
– Bachan Singh v. State of Punjab1: Upheld the death penalty’s constitutional validity, but confined its use to the "rarest of rare" cases, where life imprisonment is unquestionably foreclosed after weighing aggravating and mitigating circumstances.
– Machhi Singh v. State of Punjab2: Elaborated Bachan Singh's balance-sheet test into five broad categories — the manner of commission, the motive, the socially abhorrent nature of the crime, its magnitude, and the personality of the victim — against which a case is tested before the death penalty is considered.
– Manoj v. State of Madhya Pradesh3: Required trial courts and the State to actively collect mitigating material, including psychiatric and psychological evaluation, socio-economic background, and jail conduct reports, before sentencing, rather than treating the mitigating side of the balance sheet as an afterthought.
Read together, these three judgments mean that aggravating facts, such as premeditation or a staged accident, address only half the sentencing inquiry. A court would also be required to actively examine an accused's background, psychological profile, and capacity for reform before any death sentence could be considered; the absence of that inquiry has itself become a ground of appeal in recent years.
Section 3(5) BNS: When Are Two People Equally Guilty?
Not everyone accused of murder delivers the fatal act personally. Section 3(5) of the BNS, carried forward almost word for word from Section 34 of the IPC, makes each participant in a joint criminal act liable as though they had committed it alone. It is not a separate offence but a rule for sharing liability within a group. Two things must be shown before it applies:
– Common intention: a shared plan or understanding, formed at any point before the act, even moments earlier, but never after.
– Participation: some active step by the accused that furthers that shared plan.
The Supreme Court has kept this rule on a tight leash:
– Virendra Singh v. State of Madhya Pradesh4: Common intention means a "simultaneous consensus" of minds around a specific criminal outcome, not the same as several people independently wanting the same thing.
– Suresh v. State of U.P.5: Mere presence near a crime, without doing anything to further it, is not enough.
– Constable 907 Surendra Singh v. State of Uttarakhand6: Presence alongside a co-accused who fired the fatal shot did not, by itself, prove a shared intention to kill.
If the prosecution’s version were proved, the case against A-1 would not rest on mere presence. An act of positioning herself away from the victim at a coordinated moment would itself be a step furthering the plan, not proof of guilt by itself, but conduct that would place the allegation closer to the coordinated-role precedents than to the "bystander" cases in which Section 3(5) has failed to attach liability.
Section 61(2) BNS: Conspiracy- Punishing the Agreement Itself
Section 61 of the BNS restates the law on criminal conspiracy that Sections 120A and 120B of the IPC once held. An agreement between two or more people to commit an illegal act, or a legal act by illegal means, is a criminal conspiracy. Where the planned offence carries death, life imprisonment, or at least two years' rigorous imprisonment, every conspirator is punished as though they had abetted that offence.
What separates conspiracy from common intention is timing. Common intention under Section 3(5) attaches only once the act is actually carried out; conspiracy under Section 61(2) is complete the moment the agreement is made, whether or not the plan succeeds. Because agreements are rarely written down or witnessed, courts rely heavily on inference:
– Yash Pal Mittal v. State of Punjab7: The agreement itself is the essence of the offence. Conspirators need not know every detail of the plan; a shared commitment to the unlawful goal is enough.
– State of Tamil Nadu v. Nalini8: Decided in the Rajiv Gandhi assassination case, this judgment held that conspiracy is almost never proved by direct evidence and must usually be pieced together from conduct and surrounding circumstances.
A related question is whether an accused can be convicted of criminal conspiracy under Section 61(2) and of the substantive offence under Section 103 arising out of the same transaction. Indian courts have generally answered this in the affirmative. In Kehar Singh v. State (Delhi Admn.)9, decided after the assassination of Prime Minister Indira Gandhi, the Supreme Court upheld convictions for both criminal conspiracy and the substantive offence of murder arising from the same facts, treating conspiracy as a distinct offence that survives alongside a conviction for the completed act. Courts nonetheless examine the ingredients of each offence separately; a conviction under one does not automatically follow from the other.
A Fourth Category: Abetment
These three provisions do not exhaust the BNS's toolkit for joint and vicarious liability. Sections 45 to 60 of the BNS, restating the IPC's abetment provisions, create a related fourth category: liability for instigating, conspiring toward, or intentionally aiding an offence without necessarily being present at, or personally committing, the act. Abetment overlaps conceptually with both common intention and conspiracy, but is typically invoked where a person's role is confined to encouragement or facilitation rather than coordinated execution. Nothing in the reported facts of this case suggests abetment is the operative charge, but the distinction is worth noting for a complete picture of the BNS's architecture of joint liability.
Why This Matters Beyond This Case
Two broader points follow from this investigation. First, prosecutions that would once have been framed under IPC Sections 302, 34 and 120-B must now be pleaded under their BNS equivalents, and matters straddling the 1 July 2024 transition date require care in identifying which code governs a given charge. Second, cases built substantially on circumstantial and digital evidence, such as call records, deleted communications, and forensic reconstruction, are becoming increasingly common, and the evidentiary standards courts have developed for inferring common intention and conspiracy from conduct, as in Nalini and Kehar Singh, are likely to see growing use as digital forensics plays a larger role in criminal investigation generally.
Conclusion
Together, the three provisions discussed above let the law follow an alleged crime from planning to execution: Section 103 defines the offence and its punishment; Section 3(5) shares liability for the completed act among everyone who took part; and Section 61(2) reaches back to punish the agreement that preceded it, independent of whether the act was ultimately carried out. Abetment under Sections 45 to 60 supplies a related but distinct fourth category for those who encourage or facilitate an offence without direct participation. As the discussion above shows, none of these provisions operates as a simple label; each carries its own evidentiary threshold, developed and refined by the Supreme Court over decades, and each would need to be independently satisfied on the facts as they are ultimately proved at trial. The investigation that prompted this discussion remains open, and this article takes no position on its outcome.
References
1. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 — Upheld the constitutionality of the death penalty for murder under the erstwhile Section 302 IPC (now Section 103 BNS), holding that it may be imposed only in the “rarest of rare” cases, after weighing aggravating and mitigating circumstances.
2. Machhi Singh v. State of Punjab, (1983) 3 SCC 470 — Elaborated the Bachan Singh balance-sheet test into five categories concerning the manner, motive, magnitude and social impact of the crime and the personality of the victim, to be weighed before imposing the death penalty.
3. Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353 — Directed trial courts and the State to collect comprehensive mitigating material, including psychiatric, psychological, and socio-economic evaluation and jail conduct reports, before sentencing an accused to death.
4. Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407 — Held that common intention under Section 34 IPC (now Section 3(5) BNS) denotes a simultaneous consensus of minds to bring about a particular criminal result, distinct from a similar intention held independently by different persons.
5. Suresh v. State of U.P., (2001) 3 SCC 673 — Held that mere presence or proximity to the scene of a crime, without active participation, is insufficient to attract joint liability under Section 34 IPC (now Section 3(5) BNS).
6. Constable 907 Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433 — Held that common intention cannot be presumed merely from association or presence alongside a co-accused; there must be evidence of a prior meeting of minds and participation in furtherance of that intention.
7. Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540 — Held that the agreement to commit an offence is itself the gist of the offence of criminal conspiracy under Section 120-B IPC (now Section 61(2) BNS), and that conspirators need not know every detail of the plan.
8. State of Tamil Nadu v. Nalini, (1999) 5 SCC 253 — Held, in the Rajiv Gandhi assassination case, that criminal conspiracy can rarely be proved by direct evidence and is ordinarily established through inference drawn from the conduct and surrounding circumstances of the parties.
9. Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 — Upheld convictions for both criminal conspiracy and the substantive offence of murder arising from the same transaction in the assassination of Prime Minister Indira Gandhi, holding that conspiracy remains a distinct offence even where the conspirators are also convicted for the completed act. This article is intended for general legal information and academic commentary on the Bharatiya Nyaya Sanhita, 2023, and does not constitute legal advice on, or a comment on the merits of, any pending investigation or trial.
