(..10..)
ABETMET
(Ss. 45 TO 61 )
QUESTION BANK
Q.1. Who is an abettor under the I.P.C? Distinguish between âabetmentâ and
âcriminal conspiracyâ.
Q.2. Define âAbetmentâ 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 âcriminal conspiracyâ and distinguish between criminal
conspiracy and abetment.
SHORT NOTES
1. Criminal conspiracy
- Abetment
- Abetment and Criminal Conspiracy
SYNOPSIS
I] INTRODUCTION
II] ABETMENT (S. 45) (S. 107 of IPC)
1) Abetment by Instigation
2) Abetment by Conspiracy
3) Abetment by Aid
III] ABETTOR (S. 46) (S. 108 of IPC)
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 (Explanation 1).
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 (Explanation 2).
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 (Explanation 3).
4) The abetment of an offence being an offence, the abetment of such an abetment is also an offence (Explanation 4)
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 (Explanation 5)
IV] ABETMENT IN INDIA OF OFFENCES OUTSIDE INDIA (S. 47) (S.108 A of IPC) -
V] PUNISHMENTS FOR DIFFERENT KINDS OF ABETMENTS (Ss. 49 to 60)
1) Same punishment provided to the offence (S. 49)
2) Punishment, when the person abetted, does act with a different intention ( S. 50)
3) Liability when one act is abetted, and a different act is committed (S 51)
4) Cumulative punishments (S. 52)
5) Abettor present when the offence is committed (S. 54)
6) Abetment of an offence punishable with death or imprisonment for life (if not committed) (S.55)
7) Abetment by the public or more than 10 persons (S. 57)
8) Penalty in case of abetment by concealment (Ss. 58 to 60)
a) If such offence abetted is punishable with death or imprisonment for life (S. 58)
b) If such offence abetted is punishable with imprisonment (S. 60)
c) If such an offence is abetted by a public servant (S. 59)
CRIMINAL CONSPIRACY (Ss. 61)
I] INTRODUCTION
II] DEFINITION OF CRIMINAL CONSPIRACY (S. 61 (1)).
Ingredients of this Offence
The distinction between Criminal Conspiracy and Abetment
III] PUNISHMENT FOR CONSPIRACY (S. 61 (2))-
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 an âaccessory before the factâ.
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 a crime. Chapter IV of the BNS i.e. âOf Abetment, Criminal Conspiracy and Attemptâ, from Ss. 45 to 62 (Chapter V of the I.P.C. from Ss. 107 to 120) deals with the offence of abetment. The BNS retains the core provisions of abetment but also introduces specific new offences like abetment of suicide of a child/mentally ill, etc.
II] ABETMENT (S. 45) (S. 107 of IPC)-
BNS retain the core definition of abetment from IPC. 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-
Instigation to commit an offence is âan act inciting or urging or promoting a man to do a thing prohibited by lawâ. 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
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 womanâs act by participating in the procession and chanting RamaRama gave encouragement to a woman to commit suicide.
2) Abetment by Conspiracy-
Conspiracy is âan agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful meansâ. To constitute an offence of abetment through conspiracy, some overt act in furtherance of the conspiracy must 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 âintentionally renders assistanceâ or âgives aid by doing an actâ or âomitting to do an act prohibited by the law.â To constitute the offence of abetment by aid, there should be some active conduct on the part of the abettor, and the act should 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 âbeat him, beat himâ, and D puts the knife in Bâs 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
Facts: The accused held an 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. 46) (S. 108 of IPC)-
An âabettorâ is the person who abets an offence. âA 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.â
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 (Explanation 1).
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 (Explanation 2).
As per the explanation, a person can be guilty of abetment even if the person he abetted does not actually commit the crime.
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 (Explanation 3).
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 Zâs death. B, in consequence of the
abetment, does the act in the absence of A and thereby causes Zâs 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 (Explanation 4)
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 Bâs 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 (Explanation 5)
Illustration
A concert with B, a 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 Aâs name. C agrees to procure the poison and procures and delivers it to B for his use 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. 47) (S.108 A of IPC)
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. 49 to 60)
Ss. 49 to 60 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.
The punishment for abetment depends entirely on what offence was abetted, whether the offence was actually committed, and the nature of the abettor (e.g., public servant).
1) Same punishment provided to the offence (S. 49)
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.) 2015114]
Illustration
a) 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 Aâs absence
and thereby causes Zâs 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 the person abetted, does act with a different intention (S. 50)-
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 (S 51)-
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.
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 Aâs 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 Zâs 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.
So also, the liability of the abettor is the same if the effect produced is different from that intended by the abettor (S.53)
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 (S. 52)-
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. 54)-
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 assist.
6) Abetment of an offence punishable with death or imprisonment for life (if not committed) (S.55)-
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 fined if the offence is not committed. But if an act causing harm is done in consequence, the imprisonment shall extend to 14 years.
[Note: Whenever the sentence âimprisonment up to âŚ. yearsâ is mentioned, it is to be taken as âimprisonment which may extend to âŚ. yearsâ]
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 (S. 56).
If an abettor or person abetted is a public servant whose duty it is to prevent offence, punishment may extend to one-half (S. 56)
i) A offers a bribe to B, a public servant, as a reward for showing A
some favour in the exercise of Bâs 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. 57)-
Abetting the commission of an offence by the public or by more than 10 persons is punishable with imprisonment up to 7 years.
8) Penalty in case of abetment by concealment (Ss. 58 to 60)-
S. 58 to S. 60 provide punishment in cases of abetment by concealment. If a person conceals a 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 (S. 58)-
Whoever intends to facilitate or knows it to be likely that he will thereby facilitate the commission of an offence 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.
b) If such offence abetted is punishable with imprisonment (S. 60)-
i) if an offence is committed, the abettor shall be imprisoned for up to onefourth 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 for that offence.
c) If such an offence is abetted by a public servant (S. 59)-
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 the offence abetted is punishable with death or imprisonment for life abettor shall be punished with 10 years of imprisonment.
CRIMINAL CONSPIRACY (Ss. 61)
I] INTRODUCTION.
The law on criminal conspiracy in BNS, 2023, under S. 61, largely retains and clubs together the essence of the corresponding provisions in the Indian Penal Code, 1860 (Sections 120A and 120B). The chapter on criminal conspiracy defines âcriminal conspiracyâ, provides punishment for it and provides the distinction between conspiracy to commit an âoffenceâ and âother illegal acts. We will discuss them as follows-
II] DEFINITION OF CRIMINAL CONSPIRACY (S. 61 (1)).
When two or more persons agree with the common object, 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 that the agreement to commit an offence, no other agreement can be called âcriminal conspiracyâ. The other agreements to be called criminal conspiracy, some overt 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 (apart from mere agreement) to be punished under this section.
In Topan Das V/s State of Bombay
Facts: The appellant (i.e., Topandas), along with the other three accused (who were 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 of conspiracy.
The Supreme Court held that the appellant alone could not be convicted of the offence of conspiracy when his alleged coconspirators 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.45, 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 a 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. 61 (2))-
The punishment for criminal conspiracy is divided into two distinct parts based on the nature and the object of the conspiracy. If the offence conspired is serious i.e. punishable with death, imprisonment for life, or rigorous imprisonment for two years or more, and no separate punishment is provided by the BNS, the conspirator shall be punished as an abettor, but in any other case (non-serious), he shall be punished with imprisonment up to six months or fine or both.
In Conclusion, we may say the most significant change brought by the BNS in the topic of conspiracy is the re-sectioning and consolidation of the provisions, placing criminal conspiracy as one of the inchoate offences alongside Abetment and Attempt in Chapter IV.
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