🔍 Section 128 – Punishment for Abetment of Offences under the Bharatiya Nyaya Sanhita (BNS), 2023

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📘Section 128 – Punishment for Abetment of Offences under the Bharatiya Nyaya Sanhita (BNS), 2023

 📘 Introduction

The concept of abetment lies at the heart of criminal law. Often, a crime is not committed by one person alone; others may play roles in encouraging, aiding, or even conspiring behind the scenes. The Bharatiya Nyaya Sanhita (BNS), 2023, addresses this with Section 128, which deals specifically with the punishment for abetment.

Section 128 replaces and modernizes the older provisions found in Sections 107–109 of the Indian Penal Code (IPC), 1860, while retaining the essence of criminal culpability for those who play a secondary yet significant role in the commission of a crime.

This blog explores Section 128 in depth—its legal meaning, practical application, illustrations, key judgments, and procedural elements.

📜 Text of Section 128 – BNS, 2023

“Whoever abets the commission of an offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made in this Sanhita for the punishment of such abetment, be punished with the punishment provided for the offence.”

“Explanation: An act or offence is said to be committed in consequence of abetment when it is committed in pursuance of the abetment and in order to the doing of the thing abetted.”

🧩 Key Ingredients of Section 128

To invoke Section 128, the following elements must be present:

  1. Abetment must occur — involving instigation, conspiracy, or aid.

  2. The offence must be committed in consequence of that abetment.

  3. No specific punishment provision exists elsewhere in the BNS for that particular abetment.

  4. The abettor shall be punished the same as the principal offender.

🧠 What is Abetment?

Abetment is a criminal act of encouragement, which may take various forms. Under Indian law, abetment involves:

  • Instigating someone to do an unlawful act.

  • Engaging in a conspiracy and some act or illegal omission takes place.

  • Aiding in the actual commission of the crime.

Let’s understand these individually.

🔍 Types of Abetment Explained

1. Instigation

Encouraging, inciting, provoking, or pushing someone to commit a crime.

🔹 Example: Telling a person to set fire to a building and convincing them to do so.

2. Conspiracy

Agreeing with others to commit an illegal act and taking some active steps toward its execution.

🔹 Example: Three people planning a robbery, and one arranging a getaway vehicle.

3. Intentional Aid

Helping, supporting, or facilitating the commission of a crime.

🔹 Example: Supplying weapons to someone with the knowledge that they will use it for murder.

🔎 Illustration of Section 128

Let’s take a real-world-inspired hypothetical:

A instigates B to poison C. B poisons C, and C dies. Here, A is liable under Section 128 for abetment of murder, as the murder occurred in consequence of A’s instigation.

If B had refused and no murder took place, A would be liable for attempt to abet, which may be dealt with under other provisions or general principles.

🧑‍⚖️ Landmark Case Laws on Abetment

1. Sanjay v. State of Maharashtra (2021)

Held that instigation must be clear and active. Mere silence or presence is not abetment unless there is evidence of encouragement or assistance.

2. R v. Saunders (1573)

In this historic English case, Saunders gave his wife a poisoned apple to kill her, but their daughter ate it and died. He was held liable—establishing that abetment carries culpability even if consequences deviate from the plan.

3. Arun Kumar v. State of U.P. (2016)

SC ruled that a suicide committed due to continued harassment by husband/in-laws was a case of abetment to suicide, even without direct instruction.

📊 Comparison: BNS vs IPC on Abetment

Parameter IPC Sections 107–109 BNS Section 128
Terminology Abetment, instigation, aiding Same
Structure Fragmented in multiple sections Consolidated
Punishment Same as for main offence Same
Specificity Some overlap/confusion Streamlined for clarity

The BNS 2023 simplifies and consolidates the law, making it easier to apply consistently.

⚖️ Punishment under Section 128

If the act abetted is committed, and no other BNS provision specifically provides punishment for abetment:

  • The abettor is punished exactly as if they had committed the offence.

  • This applies even if the abettor was not physically present at the crime scene.

🔸 Examples:

  • If A abets B to commit dacoity, and B commits it, A gets the same punishment as B.

  • If A aids in a robbery but doesn’t enter the premises, A still gets the same punishment as the robber.

🧠 Mens Rea (Criminal Intent) in Abetment

For a conviction under Section 128, the mental element is critical.

  • The abettor must have knowingly and intentionally instigated, conspired, or aided.

  • Mere presence or passive knowledge isn’t enough.

🔍 Example: If a person overhears a plan to murder but does not participate or support it, he is not an abettor.

🛡️ Procedural Aspects under Section 128

Attribute Description
Cognizable Yes (depends on main offence)
Bailable Varies with offence abetted
Triable by Court competent to try the main offence
Compoundable Generally, no

🧪 Difference Between Abetment, Attempt, and Conspiracy

Concept Focus Example Punishable Under
Abetment Encouraging/helping Supplying poison Sec 128
Attempt Incomplete execution Firing but missing target Sec 127
Conspiracy Secret agreement Planning a bank heist Sec 61 (BNS) or 120A IPC

🌍 Global Comparative Law: Abetment

Country Legal Concept
USA Principals and accomplices equally liable
UK Aiding, abetting, counselling, or procuring
Canada Encouraging or assisting as a crime
Australia Secondary liability doctrine applies

India’s BNS mirrors international practices where abetment carries the same punishment as the principal offence when the crime is committed.

🔎 Real-World Scenarios of Section 128

1. Terror Financing

Funding a terrorist operation is abetment, even if the abettor doesn’t pick up a weapon.

2. Suicide Due to Harassment

Repeated emotional and physical abuse leading to suicide may lead to abetment charges.

3. Honor Killings

A father encouraging others to kill his daughter due to relationship issues would be an abettor.

🧱 Role of Evidence in Abetment Cases

In abetment, evidence of communication is key.

  • Text messages, recordings, financial transactions, or eyewitness testimony can establish instigation or aid.

  • Courts look for a direct nexus between abettor’s conduct and the crime committed.

❗ Misuse & Legal Safeguards

⚠️ Potential Misuses:

  • Framing someone as an abettor due to personal enmity

  • Police overreaching in assigning blame to multiple people

✅ Legal Safeguards:

  • Courts demand strict proof of intention and act

  • Presumption of innocence remains with the accused

  • Burden of proof lies with the prosecution

🧑‍⚖️ Courtroom Tests for Abetment

Judges often ask:

  1. Did the accused actively participate in instigation or help?

  2. Was the crime a direct result of their abetment?

  3. Is there clear communication linking the accused to the act?

  4. Is the punishment proportionate to their role?

These help distinguish true abettors from those who are merely connected by proximity.

💡 Educational Note: Difference Between Joint Liability & Abetment

  • Joint liability (Sec 34, BNS): Multiple people act together in a common intention.

  • Abetment (Sec 128, BNS): One may not act directly but instigates or helps.

In joint liability, all are principal offenders.
In abetment, the abettor is liable because of aiding the principal.

✅ Conclusion

Section 128 of the Bharatiya Nyaya Sanhita (BNS), 2023 ensures that justice does not escape those who remain behind the scenes but still play a role in crimes. Whether through words, actions, or resources—if someone causes another to commit an offence, they should be held equally accountable.

The law maintains a delicate balance—protecting the innocent from false accusations while punishing those who actively promote crime. Courts must always examine intention, connection, and consequence before convicting anyone under this powerful provision.

With India’s move toward a modern criminal code, Section 128 reaffirms that crime is not just about who pulls the trigger—but also who loaded the gun, or gave the order.

📖 Coming Up Next:

➡️ Section 129 – Criminal Conspiracy

 

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