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Abetment under Indian Penal Code | Company Vakil

Abetment under the Indian Penal Code

Introduction

When one or more persons are involved in a crime then liability depends on their participation in committing the crime. This is the rule of joint liability. One another important rule is that law has the knowledge of abettor, who has given support in committing the crime. This rule is applied in Hindu Law and is very ancient. In India, whenever there is a crime by one or more persons, criminals are divided between doer and the helper who is known as abettor. The crime of abetment comes under section 107 to 120 of the IPC.

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Section 107 of IPC defines abetment to do a thing

Section 108 talks about as to when the offence of abetment is complete.

Section 108-A gives the code extra territorial jurisdiction for an offence committed in a foreign country.

Section 109 state the term of punishment whereas

Section 110 prescribes the punishment for a criminal act which is abetted with a  different set of knowledge and intentions and committed with a different set of knowledge and intention.

Section 111 penalizes the unintended probable consequence of abetment which is supplemented by section 113.

Section 114 makes the abettor liable for the main offence if he is present at the time of the commission of an offence.

Section 115 and 116 penalizes abetment distinctively, in case the offence is not committed.

Section 117 deals with abetment of offences by the public generally or large groups of persons.

Section 118 prescribes the penalty for concealing the existence of a design in another to commit a grave offence.

Sections 119 and 120 provide for punishment in the case of public servants and others respectively for concealment of a design in another person to commit the offence not covered by S. 118.

Under IPC, a person becomes liable as an abettor when:

He instigates another to commit a crime

Engages in conspiracy with another to commit a crime

Some act is done in furtherance of such conspiracy

Intentionally aids another in order to facilitate the commission of a crime.

Term ‘Abet’ means to assist, advance, aid, conduce, help and promote. In Kartar Singh v/s State of Punjab Supreme Court has defined ‘Abet’ as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to countenance; to encourage; induce, or to assist to encourage or to set another one to commit.

Meaning of Abetment

Abetment occurs when a person:

Incites any person to do a criminal activity

Example: A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Case: Gurbachan Singh v. Sat Pal Singh, AIR- 1990

A newly wedded girl died of burns. The father of deceased had stated in FIR that the deceased committed suicide because of harassment and constant taunt for insufficient dowry.  It was held by the SC that the deceased had committed suicide at the instigation of her husband and in laws and it was not a case of accidental death.

Engages with one or more person to do such criminal conspiracy Example: A concerts with B a plans 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 deliver it to B for the purpose explained ‘A’ administers the poison and Z dies.  Here A and C have not conspired together, yet C has therefore committed the offence and is liable for punishment. Case  : Rup Devi v. State : 1955. The deceased & his wife had strained relationship.  The wife had illicit intimacy with the accused.   The deceased was scheduled to go to ‘Sadhu” on a particular day.  The wife told the accused about this programme even though she knew that the accused was waiting for the opportunity to kill her husband and taking the opportunity he killed him.  It was held that the wife was not guilty of abetment by conspiracy, even though her conduct was open to censure.

There is an intention of providing aid in the criminal activity Example: If the servant keeps the gate open of the master’s house so that thrives may enter and thieves do not come, he cannot be held to  have abetted the commission of theft. Case law: Ram Kumar v. State of H.P. 1995. The 19 years old prosecutrix was taken to the police station by the accused that kept watch over her husband while she was raped by the co-accused. In this custodial rape the accused turned deaf ears towards the cries of the prosecutrix and did nothing to help her. The SC implied abetment of the accused for abetment of rape.

Meaning of Abettor:

According to Section 108 of Indian Penal Code, a person can become an abettor in 2 ways:

When he/she abates the commission of an offence. Example: Where he abets ‘B’ to commit murder of ‘Z’. Here A is an abettor.

When he abets the commission of an offence it is committed by a person capable by law to commit an offence with same intention or knowledge as that of the abettor.

Example:

“A” abets B, a five year old child, to commit murder of Z, he is still an abettor under the 2nd category because even though the child will not be guilty of anything by virtue of the protection given to him by section 82 of the IPC.

‘A’ instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.

‘A’ instigates B to Murder D.  B in pursuance of the instigation stabs D.  D recovers from wound.  A is guilty of instigation B to commit murder.

‘A’ with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law lof committing an offence and having the same intention as A.  Here A, whether the act be committed or not is guilty of abetting an offence.

A ‘ instigates B to instigate C to murder Z.  B accordingly instigates C to murder Z and C commits that offence in consequences of B’s instigation.  B is liable to be punished for his offence with the punishment for murder and as A instigated B to committed the offence.  A is liable to the same punishment.

‘ A’ concerts with B a plan of 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 & deliver lit to B the purpose of its being used in the matter explained.  ‘A” administers the poison, Z dies in consequence, Here though A and C did not conspired together, Yet C has been engaged in the conspiracy in pursuance of which Z had been murdered. C has therefore committed the offence defined in the section and is liable to the punishment of murder.

Chapter V

Let us understand the stages of crime first and abetment later. Following are the stages:

Formation of mens Rea

Preparatory phase

Acting in accordance with the preparation or ‘Attempt’

Injury caused

Strategies or Ingredients of Abetment

There are three strategies or ingredients of committing the crime:

Instigating

Engaging

Aiding

Instigating

Provoking, urging, persuading and inciting a person to commit a crime means Instigating. In abetment by instigation, it is mandatory to have some active participation of the abettor in the initial or preparatory phase of the crime. One may abet the commission of an offence by counselling, suggestions, encouraging, pouring or commanding another to do an act.

Illustration:

A and B discovering that C intended to commit theft in Z’s house. Arrange together to persuade him to steal there from certain articles form them. Here A and B will be liable for abatement and C for theft.

Mere acquiescence, silent assent or verbal permission wold 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.

Reason- it was meant actively to suggest or stimulate the commission of an offence.

Willful misrepresentation for Concealment

Section 107 of IPC says that instigation may be constituted of willful misrepresentation or willful concealment of a material fact by one who is bound to disclose it.

A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Instigation may be direct or indirect

Instigation may be direct or it may be by a letter. Where A writes a letter to B instigating thereby to murder C, the offence of abatement by instigation is completed as soon as the contents of the letter become know to B. if the letter never reaches B, it is only an attempt to abet but not abatement.

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(2) Engaging

Abetment by Engagement or conspiracy consists of 2 or more person engaged in a conspiracy for committing crime which is illegal thing/act or illegal omission.

Following are the conditions to fulfil for abetment by engaging:

Conspiracy between 2 or more persons

An act or illegal omission may take place of that conspiracy

Conspiracy means an agreement between 2 or more persons:

To do an illegal act, or

To do an act which his not illegal by illegal means.

(3) Aiding

A person abets the doing of a thing who intentionally aids, by an act or illegal omission, the doing of that thing. Also, a person cannot be held guilty of aiding the doing of an act when the act has not been done at all. Only intention is not sufficient until and unless act is actually taken place. Illustration-

A servant keeps open the gate of his master’s house, so that thieves may come, and thieves do notcome. But the servant intended and informed thieves the door is open and they can come, he would be held liable for abatement.

Mere giving of aid:

Mere providing help does not amount to abetment, until the person who provides the aid does not know that 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 abetment.

Mere presence does not amount to aiding

Only presence at the commission of an offence does not amount to Aid, until and unless it was intended to have the effect, there need to be awareness that an offence is about to be committed or an active support or hold some position, authority or rank in committing offence.

Aid by illegal omission

When law impose duty on someone and he intentionally do something illegal, failed to discharge the duty. He shall be liable for abetment.

Punishment for Abetment

Under Indian Penal Code, Section 109 to 120 prescribes certain rules for punishment. The act abetted is committed in consequence of abetment is given in section 109 and 110 and where the punishment where offence is not committed in consequence of the abetment is given in section 115 and 116.

Chapter VII

Offences against an officer, soldier, sailor or airman in the army, navy or air force of Government of India.

Ingredients:

Abetment of committing a mutiny by an officer (officer, soldier, sailor or airman in the army, navy or air force of Government of India)

Attempting to seduce any officer from his allegiance or his duty

Chapter XVI

Abetment to Suicide

Section 306, IPC reads as if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine. The definition of abetment in section 306 needs to conform with the definition given under section 107 of the IPC.

If A persuades B to kill himself and he does it, then according to this section, A would be liable as an abettor. Direct involvement is mandated by the accused in such abetment to suicide. Recent developments regarding abetment of suicide:

Mens rea to commit the offence is a sine qua non fo conviction under Section 306 IPC

Just because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.

To convict a person for abetment of suicide, a clear mens rea is required.

Relevant case laws on Abetment

In Jamuna Singh v. State of Bihar

This was a case of abetment of fabrication of false evidence. Accused pleaded that the fabrication had not taken place and hence he was not guilty. Court held that the offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed

In Saju v. State of Kerala

A young woman, Jameela, was found killed. At the time of her death, the deceased was in advance stage of pregnancy. Upon trial the two accused were found guilty of the offences of murder and abetment. The Supreme court held that there is no direct evidence either regarding abetment or the criminal conspiracy attributable to the appellant. Both the offences are held to be proved on the basis of circumstantial evidence. The court further held that to prove the charge of abetment, the prosecution is required to prove that the abettor had instigated for the doing of a particular thing or engaged with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aided by an act of illegal omission, doing of that thing. The prosecution failed to prove the existence of any of the ingredients of S. 107 IPC.

In Ram Kumar v. State of HP

The Supreme Court considered the case of a constable who dragged a young newly married 19-year-old girl and her husband from the latter’s brother’s house. In the police station, the head constable took the girl to a room, repeatedly beat her and committed rape on her, while the other constable kept watch in outside holding the hapless husband, who was helplessly hearing the frantic screams of his wife. The Supreme Court held that the constable by his conduct had abetted rape and therefore, did not merit acquittal.

Sanjay Singh Sengar v. State of Madhya Pradesh

In this case the prosecution alleged that the appellant told the deceased ‘to go and die’ and hence is liable for the offence of abetment. Supreme Court held that uttering such phrases in anger itself does not constitute the ingredient of ‘instigation’. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the word uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Hence the accused would not be guilty.

Summary

Law and human behaviour goes hand in hand. It is divided into criminal and non-criminal behaviours. Any non-criminal behaviour becomes criminal when there is criminal intention behind it. Concept of abetment widens the horizons of criminal law. The advisor or counsellor of the crime committed, who is responsible for sowing the seeds of such a crime, should definitely be punished as had he not been there, particular offence would never have been committed.

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