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“Law Master’s Publication”
‘Abetment’
Prof. Santosh D. Bhosale
(..10..)
ABETMENT
(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 detail 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
1. Criminal conspiracy
2. Abetment
3. Abetment and Criminal Conspiracy
SYNOPSIS
I]
Introduction
II]
Abetment (S 107)
1)
2)
3)
Abetment by instigation
Abetment by conspiracy
Abetment by aid
III] Abettor (S.108)
IV]
V]
Abetment in India of offences committed outside India (S108A)
Punishments for different kinds of offences. (Ss. 109 to 120).
1) Same punishment provided to the offence (S.109).
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Prof. Santosh D. Bhosale
2)
3)
Punishment when person abetted, act with different
intention (S.110)
Liability when one act abetted and different act is
committed (S.111 & 113)
4)
5)
6)
Cumulative punishments (S. 122)
Abettor present when offence is committed (S. 114).
Abetment of offence punishable with death or
imprisonment for life (if not committed) (S.115 & 116)
Abetment by the public or by more than ten persons
(S.117)
7)
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)
ii)
by instigating the commission of an offence or
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:-
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
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Prof. Santosh D. Bhosale
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
public officer to believe a false thing.
the
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..
2)
Abetment by Conspiracy: -
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: -
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.
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
1
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.
3
1957 B.L.R. 428.
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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
.
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.
It is not necessary that the person abetted should be capable, by law, of
3)
committing that offence or that he should have the same guilty intention or
knowledge that of the abettor
.
Illustration
A, with a guilty intension, abets a child or a lunatic to commit an act which
a)
b)
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.
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.
4)
The abetment of an offence being an offence, the abetment of such an
abetment is also an offence:-
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
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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.
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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
the same punishment as B.
liable to
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)
(Ss.111 and 113): -
If the act abetted is different from the one committed, the abettor is liable for
Liability when one act is abetted, and a different act is committed
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
4 c) A instigates B and C to break into an inhabited house at midnight for 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.
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Prof. Santosh D. Bhosale
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 instigates 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 (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
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Prof. Santosh D. Bhosale
the longest term provided for that offence.
If an abettor or person abetted be a public servant whose duty it is
prevent offence - punishment may extend to one half (S.116):-
to
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.
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): -
S. 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 the 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, the abettor shall be punished with
imprisonment up to 7 years, or
ii)
if the offence is not committed, the abettor shall be punished
with imprisonment up to 3 years (S. 118).
b)
c)
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
eighth of the longest term of imprisonment provided that offence (S. 120)
If such offence is abetted by a 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
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Prof. Santosh D. Bhosale
provided for that offence.
if the offence abetted is punishable with death or
imprisonment for life-
iii)
The abettor shall be punished with 10 years of imprisonment. (S.119).
CRIMINAL CONSPIRACY (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)
2)
that there must be an agreement between two or more persons.
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 be
punished under this section.
Facts: The appellant (i.e., Topandas), along with the other three accused (who are
5 AIR 1956 SC 33
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Prof. Santosh D. Bhosale
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)
2)
3)
Abetment is committed in various ways mentioned in S.107. Whereas
Conspiracy is one of the components of abetment.
Abetment per se is not a substantive offence. Whereas criminal conspiracy
is a substantive offence in itself.
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 the offence 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.
*****