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(..10..)
ABETMET
(Ss. 45 TO 61 )
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
1. Criminal conspiracy
2. Abetment
3. Abetment and Criminal Conspiracy
SYNOPSIS
I]
II]
INTRODUCTION
ABETMENT (S. 45) (S. 107 of IPC)
1)
2)
3)
Abetment by Instigation
Abetment by Conspiracy
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
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to do that act (Explanation 1).
2) To constitute an offence of abetment, it is not necessary that the act
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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)
2)
Same punishment provided to the offence (S. 49)
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)
5)
6)
Cumulative punishments (S. 52)
Abettor present when the offence is committed (S. 54)
Abetment of an offence punishable with death or imprisonment for
life (if not committed) (S.55)
7)
8)
Abetment by the public or more than 10 persons (S. 57)
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)
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CRIMINAL CONSPIRACY (Ss. 61)
INTRODUCTION
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I]
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
‘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 a crime. Chapter IV of the BNS i.e. “Of
Abetment, Criminal Conspiracy and Attempt”, 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 ‘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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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.
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 RamaRama gave
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 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 ‘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 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
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.`
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.
2 In Manoranjan Das V/s. State of Jharkhand (2004 AIR SCW 3558)
Facts ‘A’ a person (accused) merely introduced, B (a coaccused), 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 coaccused 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.
3 Explanation 2.
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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 “abettor” is the person who abets an offence. “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 (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,
4
1957 B.L.R. 428.
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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
b)
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 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 (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 A’s 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
5 c
)
A instigates B, to set fire to a dwelling house. D in consequence of unsoundness of his
mind, being incapable 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.
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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
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
the
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
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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)
(S 51)-
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.
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
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.
6 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.
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Illustration
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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 “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 (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 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
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evidence, A has nevertheless committed the offence defined in this
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.
7 c) A, a policeofficer, (whose duty it is to prevent robbery), abets the commission of robbery.
Here though the robbery be not committed, A is liable to onehalf 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 policeofficer, whose duty it is to prevent that
offence. Here, though the robbery be not committed, B is liable to onehalf of the longest term of
imprisonment provided for the offence of robbery and also to fine.
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c) If such an offence is abetted by a public servant (S. 59)-
i)
ii)
if the offence is committed, the abettor shall be punished with
imprisonment of one-half of the maximum imprisonment provided
for that offence.
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
‘criminal conspiracy’, provides punishment for it and provides the distinction
between conspiracy to commit an ‘offence’ and ‘other 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)
ii)
an illegal act, or,
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 ‘criminal conspiracy’. 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)
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 (apart
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from mere agreement) to be punished under this section.
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)
2)
3)
Abetment is committed in various ways mentioned in S.45, 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 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.
*****
8 AIR 1956 SC 33