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ABETMENT[1]

Table of Contents

(Ss. 107 TO 120)

QUESTION BANK

Q.1. Who is an abettor under the I.P.C? Distinguish between ‘abetment’ and

‘criminal conspiracy’.

Q.2. Define ‘Abetment’ and discuss in details the liability of an abettor.

Q.3. Define abetment and explain the various methods by which abetment is

possible and point out the punishment for abetment.

Q.4. Explain ‘criminal conspiracy’ and distinguish between criminal

conspiracy and abetment.

SHORT NOTES

Criminal conspiracy
Abetment
Abetment and Criminal Conspiracy

SYNOPSIS

I] Introduction

II] Abetment (S 107)

1) Abetment by instigation

2) Abetment by conspiracy

3) Abetment by aid

III] Abettor (S.108)

IV] Abetment in India of offences committed outside India (S108A)

V] Punishments for different kinds of offences. (Ss. 109 to 120).

1) Same punishment provided to the offence (S.109).

2) Punishment when person abetted, act with different

intention (S.110)

3) Liability when one act abetted and different act is

committed (S.111 & 113)

4) Cumulative punishments (S. 122)

5) Abettor present when offence is committed (S. 114).

6) Abetment of offence punishable with death or

imprisonment for life (if not committed) (S.115 & 116)

7) Abetment by public or by more than ten persons

(S.117)

8) Penalty in case of abetment by concealment (S.118-120)

I] INTRODUCTION:-

A person who does not commit a crime may help bring it about and thereby be guilty of the offence of abetment. In English law, he is called as an ‘accessory before the fact’.

Many a time, the crime could not have been committed without the aid, assistance, encouragement, and support received from others. Therefore, mere abetment is punishable because it leads to crime. Chapter V of the I.P.C. from Ss. 107 to 120 deals with the offence of abetment.

II] ABETMENT (S. 107)

It provides that the abetment may be committed in any one of the three

ways, namely

i) by instigating the commission of an offence or
ii) by engaging in a conspiracy to commit it.

iii) by intentionally aiding the commission of an offence.

It is not necessary for abetment that the act abetted should have been actually committed.

1) Abetment by Instigation[3]:-

Instigation to commit an offence is ‘an act inciting or urging or promoting a man to do a thing prohibited by law’. Mere advice per se does not necessarily amount to instigation. There must be some active suggestion, support or stimulation to the commission of the act.

Explanation, 1 of this section, provides that instigation may also occur by willful misrepresentation or willful concealment of material facts that a man is bound to disclose.

Illustration

A public officer is authorised by a warrant from a court of law to arrest Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z and thereby intentionally caused A to apprehend C. Here, B abets by instigating the arrest of C. B., knowing the fact that C is not Z, willfully misrepresent the public officer to believe a thing that was false.

In Queen V/s Mohit Pandya[4]

Facts:- A person (accused) followed a woman preparing herself for sati to the pyre and chanted Rama, Rama. He was charged with abetment to commit suicide by instigation.

Held:- The accused was held guilty of abetment by instigation to commit suicide. The court observed that the very fact that the accused person approved the woman’s act by participating in the procession and chanting Rama-Rama gave encouragement to a woman to commit suicide.[5].

2) Abetment by Conspiracy[6]: –

Conspiracy is “an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means”. To constitute an offence of abetment through conspiracy, some overt act in furtherance of the conspiracy is necessary to be proved because the mere intention is not punishable in law.

3) Abetment by Aid[7]: –

A person is said to abet the commission of an offence if he ‘intentionally renders assistance’ or ‘gives aid by doing an act’ or ‘omitting to do an act prohibited by the law.’ To constitute the offence of abetment by aid, there must be some active conduct on the part of the abettor, and the act must be accomplished in pursuance thereof. Such aid must have been given prior to or at the time of the commission of an offence.

For Instance, If A incites B to kill C by uttering the words ‘beat him, beat him’, and D puts the knife in B’s hand. In consequence, B killed C. Here, both A and D are guilty of abetting the offence of murder, A by instigation, and D by aiding to commit the offence.

In Emp. V/s Malan[8]

Facts:-The accused held antarpath (cloth between bride and bridegroom which is required in Hindu marriages) during the performance of the marriage, which he knew was a void marriage.

Held: – This amounts to an act of intentional aid and, therefore, is punishable.

III] ABETTOR (S. 108):-

“A person is said to be an abettor if he abets the commission of an offence or the commission of an act, which would be an offence if committed by a person capable of committing that offence.”

Five explanatory clauses attached to this section are as follows: –

1) The abetment of the illegal omission of an act may amount to an offence although the abettor (being a private person) may not himself be bound to do that act[9].

Thus, if a public servant is guilty of an illegal omission of duty (made punishable by the Code) and the private person instigates him, he abets the offence of which the public servant is guilty, although the abettor, being a private person, could not himself have been guilty of that offence.

2) To constitute an offence of abetment, it is not necessary that the act

abetted should be committed or that the effect requisite to constitute

the offence should be caused.

Illustration

i) A Instigates B to murder C. B refuses to do so. A is guilty of abetting

B to commit murder.

ii) A Instigates B to murder D. B, in pursuance of the instigation, stabs D.

D recovers from the wound. A is guilty of instigating B to commit murder.

3) It is not necessary that the person abetted should be capable, by law, of committing that offence or that he should have the same guilty intention or knowledge that of the abettor[10].

Illustration

a) A, with a guilty intension, abets a child or a lunatic to commit an act which

would be an offence, if committed by a person capable (by law) of

committing an offence, and having the same intension as A. Here A,

whether the act be committed or not, is guilty of committing an offence.

b) A, with the intension 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, he is

therefore subject to the punishment of death[11].

4) The abetment of an offence being an offence, the abetment of such an

abetment is also an offence[12]:-

Illustration

A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder, and, as A instigated B to commit the offence, A is also liable to the same punishment.

5) It is not necessary for the commission of an offence of abetment by a conspiracy that the abettor should concert the offence with the person

who commits it. It is sufficient if he engages in the conspiracy in

pursuance of which the offence is committed:-

Illustration

Concerts with B about the plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person will administer the poison, but without mentioning A’s name. C agrees to procure the poison and procures and delivers it to B for the purpose of his being used in the manner explained. A administers the poison; Z dies as a consequence. Here, though, A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has, therefore, committed the offence defined in this section and is liable to the punishment for murder.

IV] ABETMENT IN INDIA OF OFFENCES OUTSIDE INDIA (S.108 A)

This section is an explanation of the previous section. It provides that a person would be guilty of an abetment if he abets the commission of an act outside India, which, if done in India, would constitute an offence.

Illustration

A, in India, instigates B, a foreigner in America, to commit a murder in America. A is guilty of abetting murder.

V] PUNISHMENTS FOR DIFFERENT KINDS OF ABETMENTS

(Ss. 109 to 120)

Ss. 109 to 120 lay down certain rules for punishment for different kinds of abetment. The conviction of an abettor is in no way dependent on the conviction of the principal offender because abetment is a substantial offence in itself. The punishment varies according to circumstances.

1) Same punishment provided to the offence (S. 109): –

If the act abetted is committed, and it constitutes an offence, but no express punishment is provided for the punishment of its abetment, he shall be punished with the punishment provided for the offence [Vinod Kumar V/s State of Hariyana (Laws (S.C.) 2015-1-14]

Illustration

a) A offers a bribe to B, a public servant, as a reward for showing A some

favour in the exercise of B’s official function. B accepts the bribe. A has

abetted the offence defined under section 161.

b) A instigates B to give false evidence. B, in consequence of the instigation,

commits that offence. A is guilty of abetting that offence, and is liable to

the same punishment as B.

c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the

poison and delivers it to B in order that he may administer it to Z. B, in

pursuance of the conspiracy administers the poison to Z in A’s absence

and thereby causes Z’s death. Here B is guilty of murder. A is guilty of

abetting that offence by conspiracy, and is liable to the punishment for

murder

2) Punishment, when a person abetted, does act with a different intention ( S. 110): –

It provides that though the person abetted commits the offence with a different intention or knowledge yet, the abettor will be punished with the punishment provided for the offence abetted.

Thus, if A instigates B to commit the murder of C to kill C, and in consequence, B kills C. If it is found that B is of unsound mind, nevertheless, A has committed an offence of abetment to murder.

3) Liability when one act is abetted, and a different act is committed (Ss.111 and 113): –

If the act abetted is different from the one committed, the abettor is liable for it, though is committed under the influence of abetment and (offence committed) is a probable consequence of abetment (S 111).

Illustration

i) A instigates a child to put poison in the food of Z and gives him poison for that purpose. The child, in consequence of the instigation, by mistake, puts the poison into the food of Y, who was by the side of that of Z. Here if the child was acting under the influence of A’s instigation, and the act done was under the circumstance of the probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y.
ii) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft there. A, though guilty of abetting the burning of the house, A is not guilty of abetting the theft, for the theft was a distinct act, not a probable of burning.[13]

So also, the liability of the abettor is the same if the effect produced is different from that intended by the abettor (S.113)

Illustration

A instigate B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder.

4) Cumulative punishments[14] (S. 112): –

The abettor shall be liable to cumulative punishment for the act abetted and for the act done if the latter is a distinct offence.

Illustration

A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. In offering resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offences of resisting the distress and the offence of voluntarily causing grievous hurt, B is liable to punishment for both of these offences; and if A knew that B was likely to cause grievous hurt in resisting the distress, A will also be liable for punishment for each of the offences.

5) Abettor present when the offence is committed (S. 114): –

If the abettor is present when the offence abetted is committed, he shall be deemed to have committed that act or offence. However, mere presence will not render a person liable. He must be sufficiently near to give assistance.

6) Abetment of an offence punishable with death or imprisonment for life (if not committed) (S.115):-

Suppose an offence punishable with death or imprisonment for life is abetted, and no express provision is made to punish such abetment. In that case, the abettor shall be imprisoned for up to 7 years and a fine if the offence is not committed. But if an act causing harm is done in consequence, the imprisonment shall extend to 14 years (S.115).

[Note- Whenever the sentence “imprisonment up to …. years” is mentioned, it is to be taken as “imprisonment which may extend to …. years”]

Illustration

A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life. Therefore, A is liable to imprisonment for a term that may extend to seven years and a fine. If any harm is done to Z as a consequence of the abetment, he will be liable to imprisonment for a term that may extend to fourteen years and a fine.

If, in such a case, the offence is punishable with mere imprisonment, the abettor shall be punished with imprisonment, which may extend to one-fourth of the longest term provided for that offence.

If an abettor or person abetted be a public servant whose duty it is to prevent offence – punishment may extend to one half (S.116):-

i) A offers a bribe to B, a public servant, as a reward for showing A

some favour in the exercise of B’s official functions. B refuses to

accept the bribe. A is punishable under this section.

ii) A instigates B to give false evidence. Here, if B does not give false

evidence, A has nevertheless committed the offence defined in this

section and is punishable accordingly.[15]

7) Abetment by the public or more than 10 persons (S. 117): –

Abetting the commission of an offence by the public or by more than 10 persons is punishable with imprisonment of up to 3 years.

8) Penalty in case of abetment by concealment (Ss. 118 to 120): –

118 to S. 120 provide punishment in case of abetment by concealment. If a person conceals of design to commit an offence or knowing the existence of a design to commit such offence, gives false information of such design, he is said to have abetted the commission of an offence by concealment.

Illustration

A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this section.

a) If such offence abetted is punishable with death or imprisonment for life:-
i) if the offence is committed– abettor shall be punished with

imprisonment up to 7 years, or

ii) if the offence is not committed– abettor shall be punished

with imprisonment up to 3 years (S. 118).

b) If such offence abetted is punishable with imprisonment: –
i) if an offence is committed– the abettor shall be imprisoned for up to one-fourth of the imprisonment provided for the offence.
ii) if the offence is not committed– the abettor shall be punished with one eight of the longest term of imprisonment provided that offence (S. 120)
c) If the such offence is abetted by public servant:-
i) if the offence is committed- the abettor shall be punished with

imprisonment of one-half of the maximum imprisonment provided

for that offence.

ii) if the offence is not committed- the abettor shall be punished with

imprisonment up to one-fourth of the maximum imprisonment

provided for that offence.

iii) if offence abetted is punishable with death or imprisonment for life-

abettor shall be punished with 10 years of imprisonment.(S.119).

CRIMINAL CONSPIRACY[16] (Ss. 120A & 120B)

I] INTRODUCTION:-

This Chapter V-A was added afterwards, i.e., in 1913, in the Indian Penal Code. Before the addition of this chapter, the conspiracy was not punishable per se, except in a few offences like waging war against the Government of India, etc., that too if any overt act or actual commission of the act was made in pursuance of the conspiracy.

However, this chapter brought two important changes in existing law (i.e., conspiracy under S. 107): first, mere conspiracy (per se) was made punishable. Second, no overt act or commission of an actual crime is required to punish the offender for conspiracy.

II] DEFINITION OF CRIMINAL CONSPIRACY (S. 120A):-

When two or more persons agree to do or cause to be done,

i) an illegal act, or,
ii) a legal act by illegal means-

Such an agreement is called a criminal conspiracy (except an agreement to commit a criminal conspiracy). Provided, to constitute criminal conspiracy, some act besides the agreement to commit a crime is necessary.

Further, whether the illegal act is the ultimate object of such conspiracy or is merely incidental to such object is immaterial.

Ingredients of this Offence: –

The following are the ingredients of the offence of criminal conspiracy, viz-

1) that there must be an agreement between two or more persons.

2) that the agreement should be –

i) for doing an illegal act or
ii) for doing a legal act by illegal means.

These ingredients are sufficient to prove criminal conspiracy, but in the case of conspiracy other than to commit a criminal act (i.e., to commit a tort, breach of contract, trust, etc.), any party to the conspiracy needs to do some overt act to punish these persons under this section.

In Topan Das V/s State of Bombay[17]

Facts: The appellant (i.e., Topandas), along with the other three accused (who are acquitted), were charged with conspiring to use forged documents of imports to grant an import licence. The court convicted only this appellant (accused), acquitting the other accused for conspiracy.

The Supreme Court held that the appellant alone could not be convicted of the offence of conspiracy when his alleged co-conspirators were acquitted of the offence. There must be at least two persons to commit the offence of conspiracy.

The distinction between Criminal Conspiracy and Abetment: –

1) Abetment is committed in various ways mentioned in S.107. Whereas

Conspiracy is one of the components of abetment.

2) Abetment per se is not a substantive offence. Whereas criminal conspiracy

is a substantive offence in itself.

3) Abetment can be made by one or several persons. Whereas conspiracy

cannot be made by one person alone, i.e., there must at least be two

persons to commit office of conspiracy.

III] PUNISHMENT FOR CONSPIRACY (S. 120 B):-

It provides that if the offence conspired is punishable with death, imprisonment for life, or rigorous imprisonment for two years or more, the conspirator shall be punished as an abettor, but in any other case, he shall be punished with imprisonment up to six months or fine or both.

*****

[1] गुन्हयास प्रोत्साहन देणे. [अपराध को बढ़ावा देना।]

[3] गुन्हयास चेतावणी देऊन प्रोत्साहन देणे [चेतावनी देकर अपराध को बढ़ावा देना]

[4] 1871. 3 NWP 316. In Sheo DialMal (1894) 16 All 389

Held: – Where one person instigates another to the commission of an offence through the letter sent through post, the offence of abetment through instifation is completed as soon as the contents of the letter become known to the addressee.

[5] In Manoranjan Das V/s. State of Jharkhand (2004 AIR SCW 3558)

Facts– ‘A’ a person (accused) merely introduced, B (a co-accused), to the Bank for opening of an account, and B after six months presented bogus drafts and withdraw amount. No evidence against ‘A’ of his alleged involvement is adduced, nor is he instigated co-accused to present bogus draft.

Held– A is not liable for abetment by instigation, (merely by introducing accused to Bank) and hence not liable for loss, to the Bank.

[6] गुन्हयास कट रचून प्रोत्साहन देणे [अपराध करने की साजिश करके अपराध को प्रोत्साहन]

[7] गुन्हयास मदत करून प्रोत्साहन देणे [किसी भी अपराध के कृत्य में सहायता करके प्रोत्साहन देणा]

[8] 1957 B.L.R. 428.

[9] देणारा स्वत: एखादी कृती करण्यास बांधलेला नसला तरीही ती कृती बेकायदेशीरपणे टाLण्यास चेतावणी देने हा अपराध ठरतो [यहां तक कि अगर देने वाला खुद कोई कार्य करने के लिए बाध्य नहीं है, तो भी उसे उस कार्य को गैरकानूनी तरीके से करने से रोकने की चेतावनी देना अपराध है।]

[10] चेतावणी दिलेल्या व्यक्तीकडे अपराध करण्याची कायदेशीर क्षमता असली पाहीजे किंवा त्या व्यक्तीमध्ये चिथावणी देनारेचा गुन्हेगारी उददेश किंवा जानीव किंवा इतर कोनताही उददेश किंवा जानीव असण्याची अवश्यक्ता नाही [आगाह किए गए व्यक्ति के पास अपराध करने की कानूनी क्षमता होणा, या व्यक्ति का आपराधिक इरादा या जानबूझकर या कोई अन्य इरादा या उत्तेजना का ज्ञान होना जरुरी नाही]]

[11] c) A instigates B, to set fire to a dwelling house. D in consequence of unsoundness of his mind, being in-capable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling- house, and he is liable to the punishment provided for that offence.

d) A, intending to cause a theft to be committed, instigates B, to take property belonging to Z out of Z’s possession. A induces B to believe that the property belong to A, B takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconceptions, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and A is liable to the same punishment as if B had committed theft.

[12] गुन्हयास प्रोत्साहण देणे हा अपराध असल्यामुळे अशा प्रोत्साहणास प्रोत्साहण देणे हा सुध्दा अपराधच आहे. [जैसे अपराध को बढ़ावा देना अपराध है वैसे ही ऐसे प्रोत्साहन को बढ़ावा देना भी अपराध है।]

[13] c) A instigates B and C to break into a inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for the murder.

[14] एकत्रित शिक्षा [एकत्रित शिक्षा]

[15] c) A, a police-officer, (whose duty it is to prevent robbery), abets the commission of robbery. Here though the robbery be not committed, A is liable to one-half of the longest term of imprisonment provided for the offence, and also to fine.

d) B abets the commission of a robbery by A, a police-officer, whose duty it is to prevent that offence. Here, though the robbery be not committed, B is liable to one-half of the longest term of imprisonment provided for the offence of robbery and also to fine.

[16] गुन्हयासाठी शढ्यंत्र/ कट [अपराध करने की साजिश]

[17] AIR 1956 SC 33