Author: Akshat Garg
Law keeps a check on human behavior. It categorizes them into criminal and non-criminal behaviours. However, every non-criminal behaviour even something as simple as buying a knife for your kitchen becomes criminal when there are criminal intentions behind it.
The concept of abetment widens the horizons of criminal law to incorporate these criminal intentions and penalize them even when the person who bought the knife did not actually kill anyone but handed it over to someone else to do it. To explain the concept of abetment, the word ‘abet’ should be given deep scrutiny. In general use, it means to aid, advance, assist, help, and promote.
In the case of Sanju v. State of Madhya Pradesh(1)the honorable Supreme court defined ‘abet’ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit. The definition of ‘abet’ as laid down, makes it clear that abetment only occurs when there is at least two person involved, which further directs us towards the arrangement and operation of the act.
In usual parlance, a person is held to be liable only if he or she has personally committed a crime. Detouring from the usual concept, the concept of Abetment says, that he who has helped the criminal or provided him with any assistance in any form can also be held to be liable. This article will discuss at length, the nitty-gritty of Abetment laws in India.
MEANING OF ABETMENT
In common parlance, the word ‘abet‘ signifies help, co-activity and support and incorporates within its ambit, illegitimate reason to commit the crime. So as to bring an individual abetting the doing of a thing under any of the conditions specified under Section 107 of the Indian Penal Code, it isn’t just important to demonstrate that the individual who has abetted has participated in the means of the transactions yet additionally has been associated with those means of the transaction which are criminal. The term ‘abetment’ in criminal law indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or the principal offence or the principal offender.
ABETMENT UNDER INDIAN PENAL CODE
Abetment is constituted by:
- Instigating a person to commit an offence; or
- Engaging in a conspiracy to commit it; or
- Intentionally aiding a person to commit it.
The offense of abetment by instigation relies on the intention of the individual who abets and not upon the act which is finished by the individual who has abetted. The abetment might be by instigation, connivance, or purposeful aid as given under Section 107 of the Indian Penal Code However, the words articulated in an angry state or omission without any intention cannot be termed as instigation.
For an individual to be called liable for Abetment, and so as to proceed against an individual for a criminal offense under Section 107, the prosecution must claim the component of mens rea. Negligence or carelessness can’t be named to be abetment in order to punish the liable, according to the arrangement of penal laws.
So as to establish abetment, the abettor must have appeared to “deliberately” support the commission of the wrongdoing. In such a case we need to just prove that the wrongdoing charged couldn’t have been done without the association as well as the intervention of the supposed abettor isn’t sufficient with the prerequisites of Section 107.
When we talk about a sting operation that is typically carried out in public interest, it must be noted that the same is done by instigating the accused.
Thus the person in question, who is generally honest, is tricked into carrying out wrongdoing on the confirmation of secrecy and confidentiality of the transaction bringing up the potential issues with respect to how such a victim can be considered in-charge of wrongdoing, which he would not have done had he not been given the assurance. In such conditions, should the individual, i.e., the sting administrator be held criminally liable for commission of the offense? This is a bewildering question when there is a claim that the sting administrator is asserted to have committed the abetment of the offense.
The Supreme Court in Rajat Prasad v. C.B.I saw that wrongdoing does not stand crushed or exonerated just in light of the fact that its benefit extends to the general public at large.
Suppose an individual failed to prevent an offense from taking place, so the inquiry emerges as to whether this failure will add up to Abetment or not. This situation of law later has been attested by the Supreme Court, which anyway held that even though he isn’t an accomplice, the Court would even now need proof on material specifics, as he is the main observer of the wrongdoing and as it is dangerous to hang the accused on his sole declaration, except if the Court feels persuaded that he is talking reality.
Such confirmation need not, be that as it may, be, on the subject of the actual commission of the offense; what the law requires is that there ought to be such support of the material piece of the story connecting the person who is blamed with the wrongdoing as will assure a reasonable man that the man can be viewed as an honest person and his statement can be relied upon. Often, abetment may also consist of passive assistance.
For example, in a case where the accused was found with a spear on the scene of the fight, his participation in the fight was proved. It was immaterial whether or not they actually made use of their weapons, they were still held liable for the injuries caused to the defendant party.
In the case of Tuck v. Robson, a publican( the person who manages a pub or a bar) by not making any effort to make his customers leave the premises after the pub was closed, was said to have aided the crime of abetment of consumption of the liquor after the hours in which it was permitted. Similarly, let’s talk of a situation wherein an owner of a car who was not driving on that particular instance and had entrusted the task of driving the car to his friend that day. The friend was involved in driving in a very haphazard manner and the owner of the car was charged with abetment because he had failed to stop the driver from indulging in such driving.
On having analysed the law, It was seen that an act involving any sort of assistance or inducement was needed in order to book a person for abetment. Thus if we talk about a case wherein mere abstention from preventing an offence is said to have happened, it is generally not considered enough in order to book a person for abetment. But in a case where a person is in direct control of the conduct of the other person and then he fails to prevent the other person from committing the offence, it will constitute abetting.
The aforementioned provision of law hypothesizes the presence of one, who perpetrated the offense. It is important to talk about, in a nutshell, the ramifications of the articulation ‘Perpetrator’. For the most part it is clear who the culprit is, he is the person who, with the significant mens rea, shot the deadly shot in the homicide, or indulges in sexual intercourse or appropriates the property in robbery. Obviously, there can be more than one perpetrator, as where two men by their joint violence murder the other individual.
Two individuals may likewise be joint culprits, where each with the relevant mens rea does acts which together comprise an adequate representation of the actus reus of an offense; for instance, in an offense including driving, A and B have been held both to drive, where A was inclining over and controlling the steering while B worked the foot pedals the gears. On the off chance that an individual makes use of an innocent agent so as to obtain the commission of an offense, that individual, not the agent, is the culprit, despite the fact that he is absent at the location of the wrongdoing and does nothing with his very own hands.
An innocent agent is one who performs the actus reus of an offense yet is himself lacking responsibility, either by reason of inadequacy or infancy or in light of the fact that he needs mens rea or has a safeguard, for example, pressure.
A striking case of innocent agency is the case where a girl, following up on her mom’s guidelines, gave some powder to her dad to calm his cold. Obscure to the little girl, it was a toxic substance and consequently the father died.
It was held that the mother was the culprit of the wrongdoing since the little girl who was coming up short on the mens rea, was an innocent agent by means of whom, the mother had carried out the wrongdoing. Obviously if, as the report takes note of, the little girl had realized that the powder was poison, she would have been blameworthy as the culprit and the mother as an accessory.
A bribe-giver is an accessory, just when he gives it with the aim of acquiring some favour which was not possible to acquire by legitimate means, yet the person who offers it to aid detention of a crime is not an accessory, the important mens rea being missing. People giving unlawful gratification under stress, dread and compulsion are not accomplices.
It isn’t vital for each situation that the key wrongdoer put up at the same trial must be indicted for the offense charged before the abettor can be sentenced for abetment of that offense. Each case must be decided to keep in mind its own set of facts.
By and large, the facts demonstrate that there can be no conviction for abetment when the prosecution has neglected to substantiate the commission of the essential offense, but the conviction of the abettor for his act of abetment would be perfectly justified, even when the principal offender is acquitted, provided the evidence on record satisfactorily establishes that the offence was committed in consequence of abettor’s act of abetment.
A case may arise in which, on the evidence of the same witness, whose evidence has been found to be insufficient for the conviction of the principal offender, the conviction of the abettor would be quite proper.
So far as the principal offender is concerned, the same evidence may be suffering from an infirmity from which it may not suffer so far as the abettor is concerned, and in such a case, though the Court may have acquitted the principal offender by giving him the benefit of doubt, it would be perfectly justified in convicting the abettor, by reason of the fact that the same considerations which applied to the principal offender do not apply equally to the case against the abettor.
PUNISHMENT FOR ABETMENT
For the public at large, the very concept of Abetment being tried as a separate offence and being punishable might sound really bizarre because it is so imbibed in most people that only the perpetrators of the crime will be punished. The Penal Code in its abetment laws clearly lays down the sections, explaining extensively, the different walks of punishments that the abetment laws notify. They are covered as follows:
In Section 109 of the Indian Penal Code, the one who abets an offence is given the same punishment as that of the principal perpetrator of the crime if the actus reus of the principal offender has occurred as a result of the inducement made by the abettor. Section 109 of the Penal Code is applicable in case no separate provision is made for the punishment of such an abetment.
Section 109 of the Penal Code ends up being relevant regardless of whether the abettor is absent when the offense abetted is committed given that he has instigated the commission of the offense or has connected with at least one or more different people in a conspiracy to commit an offense and in accordance with that conspiracy, some unlawful act or unlawful exclusion happens or has purposefully helped the commission of an offense by an act or illicit oversight.
This section explains that if the Penal Code has not independently accommodated the punishment of abetment as such then it is punishable with the discipline accommodated for the original offense. Law does not expect instigation to be in a specific structure or that it should just be in words. The instigation might be by behaviour or conduct. Whether there was instigation or not, is an inquiry to be settled on the distinct facts of each case.
It isn’t essential in law for the prosecution to demonstrate that the real intention in the brain of the individual abetting was instigation and that was it, provided there was instigation and the offense has been committed or the offense would have been committed if the individual who was the main offender had the same intention and knowledge as the thing that was likely to have been done by the person who is instigated.
It is only if this condition is satisfied that an individual can be blameworthy of abetment by instigation. Further the actus reus abetted ought to be done as a consequence of the abetment or in pursuance as given in the Explanation to this Section.
Section 110 of the Indian Penal Code gives that even if the individual abetted commits the offense with an intention different than the intention possessed by the main perpetrator of the crime, yet the abettor will be charged with the punishment provided for the offence abetted. The liability of the individual abetted isn’t influenced by this section.
Section 111 of the Indian Penal Code continues the development on abetment laws around the phrase “each man is deemed to intend the corollary outcomes of his act.” If one man actuates another to execute specific wrongdoing, and that other, in pursuance of such instigation, executes not just that wrongdoing but carries out another wrongdoing in the advancement of it, the former is criminally liable as an abettor in regard of such last-mentioned wrongdoing, in the event that it is one which, as a person with the intelligence of a reasonable man, at the time of inducement would have known to be committed in order to carry out the original crime.
Section 112 of the Indian Penal Code expands the guidelines articulated in the previous section. Under it, the abettor is held liable for the offense abetted and also the offense committed. Joint scrutiny of Sections 111, 112 and 133 make it richly evident that if an individual abets another in the commission of an offense and the chief goes further from there on and accomplishes something more which has an alternative outcome from that planned by the abettor and makes the offense an aggravated one, the abettor is liable for the consequences of the acts of his principal.
The essence of the issue is an enquiry of this sort is whether the abettor as a sensible man at the time that he is being instigated or has been purposefully supporting the main perpetrator would have predicted the likely results of his abetment.
Section 113 of the Indian Penal Code ought to be read together with Section 111. Section 111 accommodates the doing of the actus reus which is not the same as the one abetted, though this section manages the situation when the actus reus done is equivalent to the guilty act abetted however its impact is not the same.
Section 114 of the Indian Penal Code is possibly only brought into activity when conditions adding up to abetment of specific wrongdoing have first been proved, and after that, the presence of the accused at the commission for that wrongdoing is demonstrated furthermore. Section 114 talks about the case, where there has been the wrongdoing of abetment, however, were additionally there has been real commission of the wrongdoing abetted and the abettor has been present there, and the manner by which it manages such a case is this. Rather than the wrongdoing being still abetment with circumstances of aggravation, the wrongdoing turns into the very wrongdoing abetted. The section is clearly not punitory.
Section 114 isn’t relevant for each situation in which the abettor is present at the commission of the offense abetted. While Section 109 is a section which talks about abetment, Section 114 applies to those cases in which not only is the abettor present at the time of the commission of the offense but abetment was done beforehand and done independently of his presence.
There is a very fine line between Section 34 of the Indian Penal Code and Section 114 of the Indian Penal Code. As per Section 34, where a criminal act is done by numerous people, in promotion of the basic aim of all, every one of them is liable as though it were finished by himself alone; so that if at least two or more people are present, helping and abetting in the commission of the murder, each will be tried as the main perpetrator of the crime, however, it probably won’t be clear which of them really perpetrated the crime.
Section 114 alludes to the situation where an individual by abetment, prior to the commission of the wrongful act, renders himself obligated as an abettor, is present when the actus reus takes place, however, takes no active part in its doing. A joint act falling under Section 34 however does not include a mere order from one person to another and the carrying out of that order by the other which may only be the instigation of the latter’s act.
Section 115 of the Indian Penal Code criminalizes the abetment of specific offenses which are either not committed at all, or not committed in pursuance of abetment or only in part committed.
The detainment discussed in this section is for a term which may stretch out to seven years, and will likewise be obligated to fine. What’s more is that, if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years and shall also be liable to fine.
TYPES OF ABETMENT
(1) Abetment by Instigation
Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Instigation may take place either directly or indirectly, by written or oral words, or even by gestures and hints.
The instigation must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or a simple suggestion. The Instigator need not even possess mens rea (a guilty intention to commit the crime).
Explanation 1 of this Section throws some lights on what instigation may mean in this context. It says that instigation may generally happen even by:
(a) wilful misrepresentation; or
(b) willful concealment of a material fact which a person is bound to disclose.
For example, a court directs Amit, a police officer, to arrest Raj under an arrest warrant. Brijesh informs Amit that Chandan is Raj despite knowing that he is not. Under this misrepresentation, Amit ends up arresting Chandan instead of Raj. In this case, Brijesh is guilty of abetting Amit in wrongfully apprehending Chandan.
(2) Abetment by Conspiracy
Conspiracy basically means an agreement between two or more persons to commit an unlawful act. Merely intending to commit an offence is not sufficient for this purpose.
Thus, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable.
For example, in dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.
(3) Abetment by Aiding
The third manner in which abetment may take place is by intentionally aiding the offender in committing that offence. This generally happens when the abettor facilitates the crime or helps in committing it. The intention to aid the offender is very important.
For example, merely giving food or clothing to an alleged offender may not be punishable. But giving him food , clothing and shelter to help him hide from the police or commit a crime is punishable.
DIFFERENCE BETWEEN ABETMENT AND COMMON INTENTION
|1. Abetment is a stand alone offence and can be punished all by itself.||1. Common intention is no offence on its own and has to be read with in consonance of other crimes.|
|2. The accused may not be present at the crime scene .||2. Common Intention, his presence is an indispensable element and participate whether actively or passively.|
|3. The crime need not be committed.||3. The crime must be committed.|
- Sanju alias Sanjay Singh v. State of Madhya Pradesh – in the case the Apex Court quashed the charge sheet for offence under Section 306 of IPC to hold that the words uttered in a quarrel or on the spur of moment, such as “to go and die” cannot be taken to be uttered with mens rea. It is in a fit of anger or emotion.
- S.S. Chheena vs. Vijay Kumar Mahajan and another – In this case, the Supreme Court made some remarkable observations on law pertaining to abetment of suicide under Section 306 of IPC. The Court ruled that:
- 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.
- There has to be a clear mens rea to commit the offence.
- It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
- Madan Mohan Singh vs. State of Gujarat and another – In this case it was opined that in order to bring out an offence under Section 306 of IPC, specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required.
- Gurcharan Singh vs. State of Punjab – In this recent case, the Apex Court observed that the basic ingredients of Section 306 of IPC are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment.
Abetment as a provision has been sufficient both from the view of the offence as well as the penalty for the offenders of abetment. However, with the development of technology and looking at the current scenario, the legislation of India has tried to bring the required changes in this provision. Through the Information Technology (Amendment) Act, 2008, the section has been amended so as to give a wider meaning to the act and omission by the use of encryption or any electronic method.
Therefore, we can say that abetment as an offence is a just and fair law that enhances the principles of natural justice in the legal system.
1. (2002) 5 SCC 371
2. (2010) 8 SCC 628
3. (2017) 1 SCC 433