Offence of Abetment

Offence of Abetment | Overview

• Introduction
• Abetment of a thing: S. 107
• Abettor: S.108
• Punishment for Abetment: S. 110-114

Chapter V of the Indian Penal Code deals with the offences related to abetment. The English have similar laws governing the liability of person involved in abetting the commission of an offence.

I. Introduction

A person not committing a crime himself, may still encourage, urge, command, request, induce or assist a third party in committing the wrong and as a result of such commission be guilty of the offence of abetment. The meaning of abetment as has been given in Corpus Juris Secundum is:

“To abet has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel, induce or assist, to encourage or to set another on to commit.”[1]

The Indian Penal Code therefore while using the word ‘abetment’, distinguishes the person abetting the commission of an act and the person who is the actual perpetrator of the action.

Chapter V of the Indian Penal Code deals with the offences related to abetment. The English have similar laws governing the liability of person involved in abetting the commission of an offence. The English law has categorized three types of accessories involved:

• Accessories before fact
• Accessories at the fact
• Accessories after the fact

Further, there are parties known as ‘Principals in the first degree’ who are directly connected with the perpetrating the crime i.e. by themselves or by using an innocent agent. ‘Principals of second degree’ are the persons who abet and assist the principle offender, and who may be actually or constructively present at the scene of a crime.

IPC recognises both the principals of second degree and accessories at the fact denoting essentially the same kind of offenders and has termed them as abettors in Chapter V.

II. Abetment of a thing: S. 107

Section 107 provides for abetment of a thing and the ingredients required to constitute the abetment of such thing by a person are:

• Instigation of another to commit such thing
• Engaging with one or more persons to do that thing by conspiring
• Aiding by act or by illegal omission with an intention to do that thing

An offence of abetment, therefore, may constitute instigation, intentional aid or conspiracy. This Section makes the abetment of a ‘thing’ an offence and not necessarily an abetment of an ‘offence’. This means abettor can be made solely liable in some cases, although the person who has been abetted may be completely innocent.

It is important to note that the offence of abetment can only be established if the existence of mens rea is proved. The provisions related to the offence of abetment require the presence of knowledge about the act and its effect thereof before a conviction can be made.

If a person lending his support, does not know or has no reason to gauge that the act which he is assisting for is a criminal act, the implications thereof cannot bind him and he cannot be called an abettor.[2] However, the presence of mens rea is not an absolute pre-condition to establishing the offence of abetment as there could be instances where a statute explicitly mentions regarding it.

For example, sell of obscene books under section 292, IPC or where strict liability exists in social legislations or public welfare, mens rea is not required.

• Instigation

The meaning of ‘instigate’ is to incite, urge, provoke or bring about by persuasion to do anything which the law prohibits.[3] The act of instigating a person could take any form. It may be by conduct.[4] There must be a proximate causal connection between instigation and the act committed as a result.[5] Also, a person may be instigated by suggesting, stimulating, supporting, hinting or insinuating the commission of the act.[6]

The instigation must be related to the thing that was committed and not with the thing that was likely to have been done by the person in pursuance of instigation. The mere utterance of words, without the necessary intent to incite a person, words said in the middle of a quarrel or in a spur of the moment because of anger does not constitute ‘instigation’.[7]

Giving approval for an act could also amount to instigation. Although passive and unresponsive approval may not necessarily amount to instigation, there are specific instances wherein providing approval has been considered as instigating the act. For example, committing sati where the woman is applauded by the family members for entering the funeral pyre of her husband as an act of encouraging the woman to commit suicide.[8]

Act of wilfully misrepresenting or concealing material facts which a person is bound to disclose thereby causing or procuring a thing to be done has been held to amount to instigation.

For example- Where a public officer is authorized by a warrant to apprehend a criminal, and A knowing these facts and that B is not the criminal concerned here, wilfully represents to the public officer that B is the criminal, as a result of which B is apprehended. Here A abets by instigating the apprehension of B.

• Conspiracy

Commission of abetment by engaging with one or more persons in a conspiracy to commit an offence constitutes the offence of abetment by conspiracy.

It is important to note that conspiracy and abetment by conspiracy are distinct offences. Abetment by conspiracy requires that the act or illegal omission abetted must take place as a result of such conspiracy and thus mere agreement is not sufficient for conviction. However, in case of criminal conspiracy, the very agreement or plot is the act to establish the conviction of the participants of the conspiracy.[9]

• Intentional Aiding

A person who abets by intentionally aiding commits certain acts enumerated hereunder:

1. Doing an act directly assisting the commission of the crime
2. Illegally omitting to do a thing which one is bound to do
3. Doing an act which may facilitate the commission of a crime by another

Mere presence of the abettor is not sufficient to constitute the offence of abetment by intentional aid unless his presence is intended to have the effect of aiding. Also, if the person does not know about the offence being committed then his facilitation in doing the ‘thing’ does not amount to aiding.

In the case of Ram Kumar v. State of Himachal Pradesh,[10] where a head constable dragged a 19-year-old married girl and her husband to the police station and thereafter took her to another room and raped her, while another constable kept an eye on the hapless husband who helplessly heard the screams of his wife. The court found the constable who kept an eye on the husband to have facilitated and thereby abetted the rape by his conduct.

III. Abettor: S.108

Section 108 specifically deals with abetment of an ‘offence’ unlike Section 107 which dealt with abetment of a ‘thing’. The section lays down the definition of an abettor as being a person who abets:

• The commission of an offence
• Commission of an act which if committed by such a person would be an offence under the law

It is important to note that this Section will not find its application for cases where the thing abetted is not an offence. Another important point with reference to Section 108 is that it does not contemplate that the person abetted shall be capable under the law to commit an offence or that such person must possess the same guilty intention as that of the abettor.

Explanation 1: Abetment of illegal omission is an offence

When a private person instigates a public servant to leave a crime scene and the public servant leaves a duty which he was bound to do. Here the public servant has committed an illegal omission and the public servant has abetted the illegal omission, despite the fact that the person was not bound to serve that duty.

Explanation 2: Abetted Act Need not be Committed

The offence abetment is completed with instigation and does require the effect expected as a result of it to follow. Also despite the fact that the other person who was being abetted has not committed the act or has refused to do it.

Explanation 3: Person Abetted Need not be Capable of Committing an Offence

This section does not contemplate that the person abetted shall be capable under the law to commit an offence or that such person much possess the same guilty intention as that of the abettor. For example – an injury could be caused by using an innocent agent such as a child or a lunatic and so the abettor will not be absolved of his guilt who uses such tools for perpetrating an offence.

Explanation 4: Abetment of an Abetment is an offence

Abetment of an abetment is an offence in case the principle or the substantive offence is an offence. However, it is not necessary that the offence should be committed.

Explanation 5: Abettor need not Concert in the Abetment by Conspiracy

The conspiracies are not required to have complete knowledge or awareness of the details of the scheme to constitute their liability under this Section. Although Section 108A which was inserted by an amendment to IPC in the year 1898 provided that if an act has been abetted outside India, it will still be punishable if committed inside India.

IV. Punishment for Abetment: S. 110-114

Section 109 lays down the provision of such acts of abetments wherein a person having being abetted has committed such offence pursuant to the abetment and there is no specific provision related to the abetment of such an offence in IPC. In such cases, the punishment will be equivalent to the punishment as is provided for such offence which has been abetted.[11]

The extent of liability of an abettor is dependent upon four factors:

• What act he had abetted
• With what intention
• Act which was committed
• With what intention it was committed

Section 110 comes into play when the act which has been committed with an intention different from the intention of the abettor abetting the commission of such act. However, when an entirely different act is committed Section 111 is to be applied. Section 113 will come into play when the effect produced by the commission of the act which was abetted by the abettor is different from what he had intended to produce. A charge under Section 114 will lie when abettor is actually present during the commission of the offence which he has abetted to take place.

It is worthwhile to note here the distinction among sections 34, 109 and 120B. In the case of Noor Mohammad Yusuf Momin v State of Maharashtra,[12] the Apex court has elaborated the difference which has been provided hereunder:

“So far as Section 34, Indian Penal Code, is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application.

Section 109, on the other hand, may be attached even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or engaged with one or more persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place.

Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement.”

Quantum of Punishment when offence abetted is punishable with death or imprisonment: S.115 -116

Abetment of offences which are punishable with either death or life imprisonment are covered under the purview of Section 115 subject to such acts having abetted must not have taken place. As a consequence of the instigation if no offence is committed, then the instigator is convicted and charged with imprisonment for seven years, however, in case hurt is caused as a result of the abetment then the abettor is punished with fourteen years of imprisonment.

Section 116 covers such cases wherein the abetment of offence is with respect to the offence which is punishable with imprisonment and the offence is not committed. In such cases, the abettor is guilty of imprisonment for one-fourth of the maximum term of imprisonment provided for that offence or fine, or both.

Concealing Designs or Plans to Commit offences: S.118-120

Sections 118, 119 and 120 deal with abetment by way of concealing the design of commission of crimes. The element of crime in such cases lies in the act of concealment, despite having knowledge of the plans of the commission of the offence and thereby facilitating and enabling the commission of such offence. Two ingredients are required to be established to constitute conviction under these provisions:

• Existence of a criminal design on the part of persons who intend to commit the crime
• Concealment of such design by others

There must be an active intent to conceal the design and possession of knowledge that such non-disclosure will assist in perpetrating the offence. These provisions basically envisage three things:

• Concealment by an act or illegal omission and this must be voluntary
• Making a false representation knowingly with regards to the design or plan to commit an offence.

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[1] Kartar Singh v State of Punjab [1994] Cr LJ 3139 [SC]

[2] AIR 1957 All 184

[3] Ramabtar Agarwalla v State [1983] Cr LJ 122 [Ori]

[4] Ram Kumar v State of Himachal Pradesh AIR 1995 SC 1965

[5] State of Gujarat v Pradyuman Raman Lal Mehta [1999] Cr LJ 736 [Guj]

[6] Baby John v State AIR Tr&Coch 251

[7] Goura Reddy v State of Andhra Pradesh [2003] 12 SCC 469

[8] Tej Singh v State of Rajasthan AIR 1958 Raj 169

[9] Pramatha Nath Talukdar v Saroj Ranjan Sarkar AIR 1962 SC 876

[10] AIR 1995 SC 1965

[11] State v Savithri [1976] Cr LJ 37 [Mad]

[12] AIR 1971 SC 885

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