A knows Z to be behind a bush. B does not know it. A intending to cause Z's death, induces B to fire at the bush. B fires and kills Z. What offence, if any, is committed by A?

The Illustration Within the Code

Before analysing the legal position, it must be noted with some emphasis that the problem described — A knows Z to be behind a bush, B does not know it, A intending to cause Z's death induces B to fire at the bush, B fires and kills Z — is Illustration (b) to Section 299 of the Indian Penal Code, 1860, reproduced verbatim as Illustration (b) to Section 100 of the Bharatiya Nyaya Sanhita, 2023. The conclusion the Code itself supplies is plain and direct: "Here B may be guilty of no offence, but A has committed the offence of culpable homicide."

This illustration was first brought into academic prominence in Emperor v. M.S. Moorty (Halva Case) (1912, Madras High Court), where the Court observed that contributory action by a third person will not prevent the act of the original offender from constituting culpable homicide, and drew upon this very illustration to establish the point. That case involved an accused who mixed poison into sweetmeat to kill one person, the sweetmeat was accidentally consumed by another, and death resulted — yet the Court held the accused liable for murder. The illustration of A, Z, and B was used in that judgment to demonstrate that the causal chain leading to death need not run directly from the offender's own hands. The Code, the Madras High Court confirmed, contemplates and punishes the causing of death through the instrumentality of an unknowing third party.

The Innocent Agent: Why B Commits No Offence

The legal position of B must be addressed first, because understanding why B escapes liability is the very foundation for understanding why A is fully punished.

B fires at a bush. He believes he is shooting at a target — perhaps an animal or an empty thicket. He has no knowledge that a human being is concealed behind the bush, and he has no intention whatsoever to cause the death of any person. Without these two elements — intention or knowledge, as required by Section 299 IPC / Section 100 BNS — there can be no culpable homicide. The mens rea, the guilty mind which is the bedrock of criminal liability under the rule actus non facit reum nisi mens sit rea (an act does not make a person guilty unless the mind is guilty), is wholly absent in B.

B is what the law calls an innocent agent — a person who physically executes an act that causes harm but who, because of a material absence of knowledge, commits no criminal offence in doing so. The doctrine of the innocent agent is one of the most important concepts in criminal law. English criminal law, from which this doctrine partly derives, classifies a person who commits a crime through an innocent agent as a "principal in the first degree" — meaning the true criminal is not the hand that held the gun, but the mind that directed it. The Bharatiya Nyaya Sanhita and the Indian Penal Code give effect to this doctrine with equal clarity. Section 46, BNS (Section 108, IPC) expressly provides in its Explanation 3 that "it is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge."

Illustration (b) to Section 46, BNS (Section 108, IPC) illuminates this exactly: "A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z's death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death." The principle is identical whether the innocent agent is a child, a lunatic, or, as in the problem before us, a person who is simply ignorant of a critical fact.

The Position of A: Culpable Homicide Through Instigation

A's position is the opposite of B's in every respect. A knows Z is behind the bush. A induces B to fire. A's purpose is the death of Z. Every ingredient of criminal liability that B lacks, A possesses in full measure.

The act of A constitutes abetment by instigation under Section 45(a) of the BNS (corresponding to Section 107, First Clause, IPC). A person is said to instigate another when he incites, urges, provokes, or goads him to do an act prohibited by law. Here, A deliberately and with murderous intent induces B to fire at the bush, concealing from B the material fact — the presence of Z — which would have made B's act a homicide. This concealment of a material fact is explicitly recognised as a mode of instigation under Explanation 1 to Section 45, BNS (Explanation 1 to Section 107, IPC), which states that a person who, "by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." A's wilful concealment of Z's presence behind the bush, combined with his positive inducement of B to fire, is abetment by instigation in its most direct form.

But the analysis does not rest only on abetment. The Code — through the very illustration we are examining — treats A as the principal offender of culpable homicide, not merely as an abettor of an act done by another. The reason is that A has, through B as his unknowing instrument, caused Z's death. Causation is the primary requirement of Section 299 IPC / Section 100 BNS. The section does not require that the offender himself deliver the fatal blow. It requires that he cause death by doing an act — and inducing an innocent party to fire a lethal shot at a concealed victim is as much the "doing of an act" as pulling the trigger oneself. The doctrine underlying this conclusion is the same as that applied under Section 301 IPC (Section 102 BNS) dealing with the transfer of malice: the law looks at the intention and knowledge of the person who set the causal chain in motion.

The Precise Charge: Culpable Homicide or Murder?

The illustration to Section 299 IPC / Section 100 BNS tells us A has committed culpable homicide. But the question that immediately follows is whether A's act rises to the level of murder under Section 300 IPC / Section 101 BNS.

The answer, on the facts given, is almost certainly yes — and the governing provision is Section 300(1) IPC / Section 101(a) BNS: culpable homicide is murder if the act by which death is caused is done with the intention of causing death. A knows Z is behind the bush. A induces B to fire "intending to cause Z's death". There is nothing equivocal or conditional about A's intention. A does not merely know that death is likely — A desires, designs, and engineers Z's death. There is a settled intention to kill a named individual, and the means chosen are calculated to achieve precisely that end. This is murder in its most unambiguous form.

Under Section 49 of the BNS (Section 109, IPC), when abetment is committed and the act abetted is actually done in consequence, the abettor is punishable with the punishment prescribed for the offence itself. Since the act abetted — intentional killing — constitutes murder under Section 300/101(a), A is punishable under Section 103 BNS (Section 302 IPC) with death or imprisonment for life. As the illustration to Section 46, BNS (Section 108, IPC) governing the murder of Z by a child at A's instigation demonstrates, the law visits on the instigator the full punishment of the principal offence. A is therefore liable to be punished in the same manner as if he had himself committed murder — which is to say, with death or life imprisonment.

The Question of B's Complete Exoneration

One must pause to confirm, with equal emphasis, the complete innocence of B. The illustration explicitly says "B may be guilty of no offence." The word "may" here does not introduce uncertainty — it acknowledges that the question of B's liability depends on the facts as B understood them. On the facts given, B had no knowledge whatsoever of Z's presence, no intention to kill anyone, and no guilty mind of any description. He was, as far as B was concerned, firing at a bush at someone's request — perhaps thinking it was target practice or an act of entertainment. There is no element of negligence in the problem as stated that would attract even Section 304A IPC / Section 106 BNS (causing death by negligence). B is fully exonerated.

The contrast is stark and deliberate: the very same act of firing the gun — physically identical — is, in B's hands, a morally neutral act, and in A's conception, an act of murder. This is the most vivid illustration the Code provides of the principle that criminal liability is not about the act alone, but always and inescapably about the state of mind behind it.

The Doctrine of Contributory Causation

The Madras High Court's judgment in Emperor v. M.S. Moorty (1912) established the important complementary principle that contributory action by a third party does not sever the causal connection between the original offender's act and the victim's death. In that case, it was the girl Rajalakshmi who picked up and ate the poisoned sweetmeat that the intended victim had discarded. Her contributory act — picking up the sweetmeat — did not insulate the accused from liability. The Court drew upon the bush illustration directly to make this point: "that contributory action by a third person will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have occurred without such contributory action, is clear from the second illustration."

The principle of law is therefore settled: where A sets a lethal causal chain in motion through the act of an innocent person, A cannot escape liability by pointing to the third party's physical participation as a "supervening cause" that breaks the chain of causation. The chain of causation is broken only when an intervening act is independent, voluntary, and unforeseeable. Here, B's act of firing is none of these — it is directly induced by A, it flows from A's instigation, and it is the very instrument by which A intended to achieve his criminal purpose.

The Governing Provisions: A Summary

To bring the entire analysis into focus, the following provisions govern A's liability:

• Section 100, BNS / Section 299, IPC — A has caused death by doing an act with the intention of causing death. The act is inducing B to fire. The death is Z's. Culpable homicide is established.

• Section 101(a), BNS / Section 300(1), IPC — Culpable homicide is murder when the act is done with the intention of causing death. A's intention was precisely that.

• Section 45(a), BNS / Section 107 First Clause, IPC — A abetted the act by instigation, and by wilful concealment of Z's presence as required under Explanation 1 to that provision.

• Section 46, BNS / Section 108, IPC, Explanation 3 — The innocent agency of B does not relieve A of liability. A is punishable to the same extent as the principal offender.

• Section 49, BNS / Section 109, IPC — The act abetted having been committed in consequence of abetment, A is punishable with the punishment for murder.

• Section 103, BNS / Section 302, IPC — A is punishable with death or imprisonment for life and fine.

The Conclusion: A is Guilty of Murder

A is guilty of murder. He knew Z was behind the bush. He intended Z's death. He used an innocent human being as a lethal instrument to accomplish that end — concealing, by wilful omission, the very fact that would have prevented B from pulling the trigger if it had been disclosed. B, firing in ignorance, commits no offence. The entire moral weight of the killing rests on A, and the law, with characteristic precision, places the entire criminal burden there too. A is liable to be punished under Section 103 of the Bharatiya Nyaya Sanhita, 2023, corresponding to Section 302 of the Indian Penal Code, 1860, with death or imprisonment for life, as if he himself had fired the fatal shot — which, in the eyes of the law, he did.