IPC – Abetment – Part – 07

(1) INTRODUCTION OF ABETMENT  

Who advise, abet or instigate any person to commit an offence is called abettor. When the person advice, abet or instigate any person with a plan of execution is called conspirator. Chapter V of the Indian Penal Code (sections 107 to 120) deals with general principle of abetment of offence.  Sometimes you will find that IPC has defined abetment of an offence as a specific offence i.e. abetment of suicide of child or insane person under section 305 and abetment of suicide under section 306, these are specific offences. Generally, abetment is not a specific offence but it will be a supportive offence read with specific offence. In this session we are going to study the general principles of abetment of a specific offence.

(1.1) NATURE OF OFFENCE OF ABETMENT  

When several persons take part in the commission of an offence, each one of them may contribute in a manner and degree different from the others to the commission of it. The offence may be committed by the hands of one person at the instigation of another person, while some other may only be present for offering help at the time of commission of it, and still others may help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of the persons to determine their degree of culpability. However several gradations of action do not necessarily imply different measures of guilt with a view to distinctions in punishment. Criminal conspiracy is a substantive offence for a very simple reason that one cannot conspire with one self.

• The abetment of an abetment of an offence is no more and no less than the abetment of an offence.
• A person who has been convicted of an offence as principal cannot also be punished for abetting it.
• The offence of abetment is a substantive one and the conviction of an abettor is, therefore, in no way depend on the conviction of principal.
• Failure to prevent the commission of an offence is not an abetment of that offence.
• Abetment of offence under other laws.- The offence of aiding and abetting is applicable to all statutory offences unless specifically excluded by statute.

(1.2) ENGLISH LAW   

In English Law, differently treat the principle offender who may be of first degree and accessories who may be second degree. The Indian penal code makes a brad distinction between principals and abettors but does not recognize the accessory after the fact except that offender has been made a substantive offence in some cases.

(1.3) EXTRATERRITORIAL JURISDICTION

Section 108-A deals with jurisdictional issue when abetment in India of offences outside India.  It says that a person abets an offence within the meaning of this Code who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India. To illustrate ‘A’, in India, instigates B, a foreigner in Nepal, to commit a murder in Nepal. A is guilty of abetting murder.

(2) MEANING OF ABETMENT

Section 107 of IPC defines ‘abetment of a thing’. It says that a person abets the doing of a thing, who –

(i)     Instigates any person to do that thing; or

(ii)    Engages with one or more other person or persons in any conspiracy for the dong of that  thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(iii)   Intentionally aids, by any act or illegal omission, the doing of that thing.

It can be said that section 107 states that a person can make abetment in three ways – (i) by instigate (ii) by engagement through conspiracy and (iii) by helping the actor with aids.

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.[1] The ratio of the cases decided by the Supreme Court is clear that in order to convict a person for abetment of an offence, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the person to do that act.

The abettor is a person who works behind the act with criminal intention of doing that act which is an offence. The role of abettor may be any of three ways by instigation, by conspiracy or by aids. Abettor is the person who influences the mind of another to do that act. The offence by abettor shall be over when he completes his instigation, conspiracy or provides aids for the commission of particular offence. It is immaterial whether instigated person has committed that act or not, or committed in same plan or changed the plan according to circumstances, or he has committed lesser or sever offence. In all the circumstances, the abettor is liable for the abetment of that offence which he had abetted. The imposition of sentence may differ in if the act be not committed.

(2.1) ABETMENT BY INSTIGATION

A person abets the doing of a thing, who instigates any person to do that thing is liable as an abettor. The section itself explain that a person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration.- A, a police officer, is authorized by a warrant from a Court to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and there by intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. As ‘A’, the police officer is working in good faith and following order of the court his act is exempted from criminal liability.

Instigation means the act of inciting another to do a wrongful act. One may abate the commission of an offence by counseling, suggesting, encouraging, procuring or commanding another to do an act. To instigate means to actively suggest or stimulate by any means or language, direct or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement, or to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be reasonable certainty in regard to the meaning of the words which an inciter may use. Instigation may be direct or it may be by a letter or by making e-mail or sending SMS or sending information through any electronic form.

Instigation is the gist of abetment under first para of section 107. The dictionary meaning of the word “instigation” is to goad, urge forward, provoke, incite or encourage to do ‘an act’. In order to constitute abetment by instigation some active proceeding towards the preparation of the crime is necessary. The Supreme Court held that in the absence of any direct evidence to show that the appellant had by his acts instigated or provoked the deceased to commit suicide, the offence could not be brought within the ambit of ‘abetment to commit suicide’.[2]

A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.[3] In a dispute between the husband and wife, the appellant husband uttered “you are free to do whatever you wish and go wherever you like”. Thereafter, the wife of the committed suicide, it was not held a case of abetment.

Mere acquiescence, silent assent or verbal permission would not constitute instigation. A tells B that he intends to murder C, B says do as you like, A kills C, here B cannot be said to have instigated. It is not fulfilling the requirement of actively to suggest or stimulate the commission of an offence.

(2.2) ABETMENT BY CONSPIRACY

Abetment of conspiracy is committed when two or more persons encourage in conspiracy for the doing of a thing. And an act or illegal omission takes place in the pursuance of the conspiracy and in order to the doing of that thing. Thus in order that abetment by conspiracy may be constituted, three things are necessary: (i) a conspiracy between two or more persons; (ii) an act or illegal omission must take place in the presence of that conspiracy; and (iii) such an act or illegal omission must also take place in order to the doing of the thing conspired.

Second clause of section 107 of IPC, has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abatement by conspiracy that the abettor should concert the offence with the person who commit it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration.- A concerts 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 is to 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 its being used in the manner explained. A administers the poison; Z dies in 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.

(2.3) ABETMENT BY INTENTIONALLY AIDS

Who intentionally aids by any act or illegal omission, the doing of that thing. It is also clarified that a person is said to aid the doing of an act who, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

In order to constitute abetment, the abettor must be shown to have ‘intentionally’ aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. Intentional aid and therefore active complicity is the gist of the offence of abetment under the third paragraph of section 107.

It would be clear if we read clause 3 of section 107 with explanation 2, that a person cannot be held guilty of aiding the doing of an act when the act has not been done at all. Mere intention to facilitate is not sufficient to constitute abatement, unless the act which is intended to facilitate actually took place. Similarly, mere presence at the commission of an office does not amount to intentional aid, unless it was intended to have that effect.

A mere helping doesn’t amount of abatement, until the person who provides the aid does not know that an offence was being committed or constituted. Illustration- A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C provide the aid, but he did not know that A wanted to kill B. So he would not be held liable for abatement.

Aid by illegal omission.- When law impose a duty on someone and he intentionally for adding some one in an illegal, failed to discharge his duty he shall be liable for abatement. Explanation I of section 108 made it clear by stating that the abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

In a case of custodial rape, husband and wife taken to police custody, were kept in separate rooms. The wife was raped by the head constable while accused constable kept watch over the husband and did nothing in saving the woman. The constable is liable for abetment of custodial rape.

(3) ABETTOR AND TREATMENT OF ABETTOR   

(3.1) WHO IS ABETTOR 

Section 108 defines abettor for the purpose of imposing liability for abetting an offence. It says that a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Abettor is liable even act be not committed.- To constitute the 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.

For example – A instigated B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. Another illustration clarify that where 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.

The person abetted may be legally incapable.- It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Illustration.- A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. Here, though B was not capable by law of committing an offence. A  is liable to be punished in the same manner as if B  had been capable by law of committing  an offence, and had  committed murder, and he is therefore  subject to the punishment of death.

On the other hand, A, intending to cause a theft to be committed, instigates B to take property belonging to Z out  of Z’s  possession, in good faith, believing it to be A’s property B, acting under this misconception, does not take dishonesty, and therefore  does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B and committed theft.

Abetment of an abetment.- The abetment of an offence being an offence, the abetment of such an abetment is also as 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 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.

(3.2) TREATMENT OF ABETTOR BY IPC  

The IPC sections 109 to 120 prescribed various liability of an abettor, which differs in two situations basically (i) if that offence be committed or (ii) if that offence be not committed. Let us understand the liability through the table.

The table reveals that sections 109 to 120 imposes different liabilities on abettor – (i) same (equal) to the abetted offence (sections 109-114); (ii) Specific punishment (sections 115, 117, 118 and first part of section 119); (iii) one-half of the maximum punishment (sections 119 part I); (iv) one-fourth of the maximum punishment (sections 116, 119 Part II, 120 part I); and (v) one-eighth of the maximum punishment provided for the abetted offence (section 120 part II).

(4) PRINCIPLES TO DETERMINE LIABILITY OF AN ABETTOR

Plain reading of this chapter reveals that punishment determined after considering – different situations, acting of person abetted, constructive liability of an abettor, nature of conduct, etc.

(4.1) LIABILITY DEPENDS ON THE ACT OF ABETTOR 

Common reading of sections 109 and 110 explain that if the act abetted is committed in consequence of its abetment or even if person abetted does act with different intention from that of abettor – his role is equal to the person acting on abetment. Therefore, the abettor is liable for the same punishment as prescribed for the offence abetted. Illustration- 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.

(4.2) CONSTRUCTIVE LIABILITY IN DIFFERENCE SITUATIONS

Sections 111 to 114 impose constructive liability on the abettor, even when the offence is not committed in the same manner or a same offence.

Section 111 fixes the liability of abettor when one act abetted and different act done. The abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it.

Illustration.- A instigates a child to put poison into 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, which is 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 circumstances a 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.

Section 112 says that abettor is liable to cumulative punishment for act abetted and for act done. It fixed more than one count of offence and the abettor is liable to punishment for each of the offences.

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

Section 113 fixed the liability of abettor for an effect caused by the act abetted different from that intended by the abettor. The abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.

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.

Section 114 imposes liability on abettor if offence was committed in the presence of abettor. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

A conviction under section 114 of IPC cannot stand where the abetment charged necessarily requires the presence of the abettor. To come within the section, the abetment must be complete apart from the mere presence of the abettor.

Mere presence of the accused at the ceremony knowing that the offence of bigamy was being committed and the throwing of the holy rice over the couple and distributed pan after the ceremony, did not amount to abetment of bigamy. Instigation must have reference to the thing that was done.

Mere association of the persons who are charged for an offence of abetment of the principal offender in the absence of any matter to show that there was an instigation by petitioners or that there was any intention either in aiding or in commission of the offence, it cannot be said that they have committed an offence of abetment. In all probability they would have been passive witnesses to what principal offenders were doing. [4]

(4.3) LIABILITY ON NATURE OF OFFENCE

Section 115 has three parts, in first it says that when abetment of offence is punishable with death or imprisonment for life and offence not committed, the abettor shall be punished with up to seven years’ imprisonment with fine. It is less than the punishment for abetted offence. On the other hand, it raised the punishment, if act causing harm be done in consequence of abetment. The abettor shall be liable to imprisonment up to fourteen years and fine. It is to be remembered that the liability is just double in case the act causing harm. Here, the accused has not completed the abetted offence but lesser than that.

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 of either description for a term which may extend to seven years and also to a fine; and if any hurt be done to Z in consequence of the abetment, he shall be liable to imprisonment up to 14 years and fine.

(4.4) LIABILITY ON RESPONSIBILITY OF ABETTOR

Section 116 impose liability of an abetment of offence punishable with imprisonment —if offence be not committed, the abettor shall be punished with one-fourth imprisonment of the longest term provided for that offence. But, it will aggravated form if abettor or person abetted be a public servant whose duty it is to prevent offence and will be punished with one-half imprisonment of the longest term provided for that offence.

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 that offence, and also to fine.

(4.5) ABETMENT BY PUBLIC

Section 117 imposes less punishment when a person abetted the offence from the public (more than ten). The abettor shall be punished with imprisonment up to three years, or with fine, or with both. Illustration – A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in a procession. A has committed the offence defined in this section.

Allegations of conspiracy in committing murder by group of 30 to 40 persons even though a strong suspicion raised regarding involvement of respondent where incident led to murder, prosecution evidence inconsistent- reversal of acquittal was proper.

(4.6) ABETMENT BY CONCEALING DESIGN

Sections 118 to 120 deal with abetment of offence by concealing design to commit an offence. Section 118 says that when a person abetting an offence by concealing design to offence punishable with death or imprisonment for life – (i) if offence be committed- he shall be punished up to seven years’ imprisonment, and (ii) if the offence be not committed – he shall be punished with up to three years’ imprisonment.

(a)     Concealing design to commit offence punishable with death or imprisonment for life (section 118) –

(i)     If that offence be committed, – imprisonment up to seven years and fine.

(ii)    If the offence be not committed – imprisonment up to three years and fine.

(b)    Concealing design to commit offence punishable with imprisonment (section 120)

(i)     If the offence be committed – imprisonment for a term up to one-fourth as provided for the offence, or with fine, or with both.

(ii)    If the offence be not committed, imprisonment for a term up to one-eighth, as provided for the offence, or with fine, or with both.

This concealing of information is aggravated form of sections 118 and 120 if it is concealed by the public servant. Section 119 says that when public servant concealing design to commit offence which it is his duty to prevent:

(a)     If offence be committed –

(i)     If the offence is punishable with imprisonment, up to one-half of the longest term of such imprisonment as provided for that offence; and

(ii)    If offence be punishable with death or imprisonment for life, with imprisonment of either description up to ten years.

(b)    If offence be not committed, shall be punished with imprisonment up to one-fourth of the longest punishment.

Illustration.- A, an officer of police, being legally bound to give information of all designs to commit  robbery which may come o his knowledge, and knowing that B designs to commit robbery, omits to gives such information, with intent to facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B’s design, and is lovable to punishment according to the provision of this section.

It is abetment by omission. The person has not actively abate the offence but his liability is imposed for concealing the information which he is suppose to inform the police under section 39 of the Code of Criminal Procedure. Therefore, he has abetted the offence but liable for less than active abettor.

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[1]     Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750.

[2]     Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707.

[3]     Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618.

[4]      Karuppiah Servai v. Nagavalli Ammal, 1982 Mad LJ (Cri) 19 : (1982 Cri LJ 1362)