Author: Ekta Varshney, A.M.U
In Criminal Law, a person can be made liable only for his act( an illegal act or omission of duty) but when the act has been committed by another person who has been instigated, urged, or induced then the theory is known as of Abetment.
A person who does not himself commit a crime known as Abettor, may, however, command, urge, encourage, induce, request, or help a third person (principal offender) to bring it about and thereby be guilty of the offence of abetment.
Chapter V of the IPC provides the law governing the liability of all those to have abetted the commission of offences.
According to section 107, A person abets the doing of a thing when he:
(1) Instigates a person to commit an offence; or
(2) Engages with one or more persons in a conspiracy to commit an offence; or
(3) Intentionally aids a person by any act or illegal omission to commit an offence or illegally omits the doing of an act that would prevent the commission of the offence.
Abetment By Instigation
The first form of abetment is by instigation. The word ‘instigate’ literally means to provoke, incite, urge on, or bring about by persuasion to do anything.
Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. For establishing the offence of Abetment, there needs to be a close causal connection between instigation and the act committed.
A mere association of the accused with the perpetrator of an offence does not make him an abettor unless it is proved that he instigated or had intention either in aiding or in the commission of the offence.
A mere word, without necessary intent to incite a person, uttered in a quarrel or in a spur of the moment or in anger does not constitute ‘instigation’.
Generally, passive or unresponsive approval may not necessarily be considered to be instigation, but there are some instances when approval has been held to be instigation, as when the widow was heeding towards the pyre of her husband, the family members were raising slogans whereby gave her encouragement to commit suicide.
Explanation 1 of Section 107, provides another form of instigation i.e. by wilful misrepresentation or wilful concealment of a material fact which one is bound to disclose thereby causing or procuring a thing to be done has been held to be instigation.
For instance: a person who is obliged to disclose a fact keeps quiet and thereby renders abets the commission of the act.
Abetment By Conspiracy
The second leg of the definition of abetment is the abetment by engaging with one or more persons in a conspiracy to commit an offence.
Difference between Criminal Conspiracy And abetment by conspiracy
Section 120A of the code deals with Criminal Conspiracy while Section 107 talks about Abetment by Conspiracy. The distinguish between the two settles on the onset of An Agreement, as in Criminal Conspiracy a mere agreement will make the persons liable while in case of Abetment by Conspiracy some Overt Act is necessary to hold the accuse guilty of Offence
The Supreme Court explained the distinction between conspiracy referred to in the second clause of s 107, and the provision of conspiracy in s 120-A is that in the former offence, a mere combination of persons or existence of an agreement between them is not enough. An act or illegal omission should have taken place in pursuance of the conspiracy and in order for the commission of the conspiracy, conspired for; in the latter offence, the mere agreement, if it is one to commit an offence, is sufficient. The persons who are initially guilty of conspiracy to commit an offence become guilty of abetting the offence as soon as an act or illegal omission takes place in pursuance of the conspiracy. To prove the charge of abetment by conspiracy, the prosecution is required to prove that the abettor had instigated 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 or illegal omission, doing of that thing. Criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy.
Abetment by Intentional Aiding
By virtue of thirdly of s 107, a person abets the doing of a ‘thing’ who ‘intentionally aids’ the doing of that thing. Intentional aid consists of any of the following three components:
(1) Doing of an act directly assisting the commission of the crime; or
(2) Illegally omitting to do a thing which one is bound to do; or
(3) Doing an act which may facilitate the commission of the crime by another.
Clause 3rd of s 107 provides that an act, which merely amounts to aiding the commission of an offence, does not amount to abetting an offence unless that act was done with intent to aid the commission of the ‘thing’. A person, for example, invites another casually or for a friendly purpose and that facilitates the murder of the invitee does not make him an abettor unless the invitation was extended with intent to facilitate the commission of the murder.. Mere knowledge on part of a person that his act would facilitate the commission of the offence also does not make him an abettor. Similarly, the mere presence of a person at the commission of a crime does not amount to ‘intentional aid’ unless it is shown that he, through his presence, intended to have the effect.
Abetment by Illegal Omission
When a person is bound legally to do a thing but deliberately refrains from doing that, then the person will be liable for abetment by illegal omission. Where the accused, a husband who did not dissuade his wife from committing suicide when she threatened to do so and actualtted suicide by setting fire to her clothes, he could not be held guilty of ‘illegal omission’. To held person guilty of abetment by ‘illegal omission’, it is required to prove that the accused was not intentionally aided the commission of the offence by his non-interference but also that his omission led to a breach of legal obligation. Thus, where a Head Constable of Police, perceiving that his subordinates were about to torture a prisoner for extorting confession, purposely left the place so as not to be a witness of what occurred, it was held that he was guilty of the abetment of the offence that was committed in his absence. He certainly omitted to do that which he was bound to do. It was illegal for him to go away in order that the crime should be committed. What is crucial to note is that the illegal omission should be of an act that the person is in law expected to do. Thus, when the law imposes on a person a duty to discharge, his illegal omission to act renders him criminally liable.
Facilitating the Commission of a Crime
A person is held to abet a crime if he, by way of assistance or supply of a thing or otherwise, helps facilitate the crime committed by another. In the case of Eshan Meah, Bedoo while dealing with the labourers said in the heat of the moment that he wished he had a fatal weapon to teach a labourer a lesson. Eshan Meah handed over to Badoo, a dao. Badoo hit a coolie. Eshan Meah was rightly held guilty of abetment of the offence of causing grievous hurt. In Ram Kumar v State of Himachal Pradesh, a constable, dragged a 19-year old girl and her husband, in the police station, the Constable took the girl to a room, repeatedly beat her and committed rape on her, while another constable kept watching outside holding the hapless husband, The Supreme Court held that the constable, who kept watch on the husband, by his conduct facilitated abettor and thereby abetted rape.
An abettor is a person who abets an offence, or the commission of an act which would be an offence if committed by a person capable by law of committing such offence with the same intention or knowledge as that of the abettor.
SCOPE AND INGREDIENTS OF SECTION 108
The major difference between ss 107 and 108 is that while the former covers the ‘doing of a thing’, the latter provision covers the abetment of an ‘offence’ specifically. Thus, s 108 defines abettor to be a person who abets:
(1) the commission of an offence; or
(2) the commission of an act which would be an offence if committed by a person capable of committing an offence in law.
The abettor could be either an instigator, or a conspirator, or a person giving aid to the commission of a crime as defined in s 107.
Section 108A was brought up by an amendment, under this section a person will be made liable for the offence committed in India but abetted outside India. If an Offence has been committed in India but the incitement, the urge for the same took place outside the criminal territorial boundaries of India.
Liability of An Abettor
Section 109 lays down punishment where the act abetted is committed in consequence of abutment and where no express provision is made for its punishment.
In such a case, the abettor would be punished with the punishment provided for the offence.
For instance :
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.
Section 110. When the person abetted does the act with different intent from that of abettor. Then the abettor will be punished with the punishment provided for that offence if the act had been done with the intention or knowledge of the abettor and with no other.
Section 111. Where the offender doesn’t commit the offence for which he has been abetted rather than commits a different offence, then the abettor is liable for the act done, in the same manner, and to the same extent as if he had directly abetted it :
Section 112:When the principal offender has committed an offence in pursuance to the offence abetted, then the abettor is liable to punishment for each of the offences.
For instance:’ A’ abetted B to commit theft in the house of C, B along with the theft, killed C.Here A would be liable for both the offences.
Section 113. If the act committed has induced a different effect as to which the abettor has intended then 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.
Section 114. If the abettor is present at the site of the offence abetted, then the Abettor shall be deemed to have committed such an act or offence.
Quantum of Punishment by Section 109,115 &116
There are three provisions providing for the quantum of punishment liable for different cases of abetment.
Section 109 lays down a punishment that can be imposed when the act committed is in the consequence of the act abetted.
While Sections 115 and 116 provide for punishments when the offence is not committed in consequence of abetment.
Section 115.covers those abetments which are of offences for which the punishment is death or life imprisonment, and in which the acts abetted have not taken place. Moreover, no specific provision should have been made in the Code for the punishment of such abetment. There are three probable outcomes of the abetment:
(1) First, the act abetted may have been completed.
(2) Secondly, if the offence is not committed, then the abettor or instigator would be liable for
imprisonment up to a term of seven years;
(3) Finally, if the hurt is caused as a result of the abetment, then in such cases, the abettor or instigator could be liable for imprisonment which may extend to 14 years and also fine.
Section 116.covers such abetments of offences which are liable for imprisonment other than life imprisonment. In such cases, the imprisonment may be for a term which may extend to one-fourth of the maximum term of imprisonment provided for that offence, or with fine as provided for that offence, or both.
A special provision made is in the case of a public servant, whose duty it is to prevent offences, who themselves abet the commission of an offence. In such cases, the public servant is liable to a term of imprisonment up to one-half of the longest term provided, apart from fine.
- PSA Pillai: Criminal Law,12th Edition
- Ram Kumar vs. State of Himachal Pradesh, AIR 1995 SC 1965
- Kehar Singh v State (Delhi Administration) AIR 1988 SC 1883 [LNIND 1988 SC 887]
- Eshan Meah, (1874) 12 WR 527.
- Emperor vs Mohit Kumar Mukerjee, (1925) ILR 52 Cal 881