Abetment

 

DEFINITION-

The Cambridge dictionary defines abetment as the act of helping or encouraging someone to do something wrong or illegal: Such acts will be treated as abetment to fraud. It would be wrong to treat the offence of abetment lightly.

Black’s law dictionary distinguishes between aid and abet. It describes that the only difference between the two terms is that the former does not imply guilty knowledge or malicious intent, whereas the word "abet" implies the knowledge of the wrongful purpose and mens rea in the commission of the crime. But how to conclude that abetment is committed? To under stand it let us see section 107 of the IPC that defines the abetment of a thing.

107.Abetment of a thing.

A person abets the doing of a thing, who—

First—Instigates any person to do that thing; or

Secondly—Engages with one or more other person or persons in any conspiracy for the doing 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

Thirdly—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1—A person who, by wilful misrepresentation, or by wilful 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.

Explanation 2.—Whoever, 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.

For committing abetment there has to be certain conditions satisfied. A person has to:

1. Instigate any person to do that thing or
2. Engage with one or more person and conspire to commit an act or omit an act or
3. Intentionally aid by omission or commission.

The important factor in abetment is the intention of the person who abets the offence and not the offence per se.

Instigation means to provoke or encourage any person to do an act. The act or intention of instigation has to be interpreted from the facts of the case. The instigation need not be with only words, but can also with actions. For example, a person set such conditions that the other person was left with nothing but to commit suicide. In such a case the act of instigation shall be constituted from the act of setting up such situations that led to the person’s suicide.

However, words uttered in a fit of anger, emotion or without the intention to actually follow the consequences, cannot constitute instigation. To conclude instigation, provoke, incite, urge or encourage such terms should match to the situation. Provoke can mean to wait for action or reaction both. For example, you keep irritating a person until he reacts shall be provocation.

Examples-

1.     Vedprakash Bhaiji v. State of MP, 1995 Cr LJ 893 (MP) - Imagine I am a creditor (bank) and you are a debtor. You owe me Rs. 3,00,000. I keep pressurizing you for repaying my money. In that pressure you commit suicide. Can I be held liable for abetting suicide?

 

Answer is No. Since the action of claiming money was not wrong, and therefore there cannot be a case of section 306 i.e. abetment to suicide.

 

Intentionally aiding the offence means not actually committing the offence that is in question by helping the offender commit it or aiding the commission.

 

2.     Ram Kumar v State of HP, AIR 1995 SC 1965 - A husband and a wife were arrested for Naxalite involvement (crime against state). The wife was raped by the head constable number 1. Constable number 2 was checking the corridors so that nobody could come inside. He even watched over the husband so that he could not try to protect his wife. The court upheld that the constable number 2 was an abettor.

 

3.     Consider (HYPOTHETICALLY) a police officer who was supposed to arrest Arnab Goswami for some offence. Morendra Nodi was asked about Arnab Goswami’s identity. Morendra knowing that Smit Ahan is not Arnab Goswami, wrongfully misrepresented Smit to be Arnab. He told the police officer that Smit is Arnab. Police officer arrested Smit believing that he is Arnab. In this case since Morendra Nodi instigated the police officer to commit the offence of wrongful confinement of innocent, Morendra has committed offence of abetment.

Now that we have understood that what is the act of abetment, we need to understand who is an abettor. In general terms abettor is a person who abets a thing. Any person who commits abetment of a thing he is an abettor. Section 108 of IPC defines abettor as,

“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.”

Illustration- A instigates B to kill C. B stabs C with a knife. A is guilty of abetting the offence. In this case the offence is murder. The act is stabbing C with a knife. In this case if the act of stabbing would have been committed by A with the same knowledge and intention he had while instigating B, then such an act would have been a crime in Indian law and therefore A is an abettor. Abettor in general terms is the person who abets the commission of an offence or such an act which if done with a knowledge or intention would be punishable.

Explanation 1—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.

Consider an example where a private person instigates a public officer/ servant/ police officer to leave a crime scene. This is an offence by illegal omission and therefore, the police offence is liable for the illegal omission whereas the private person is liable for abetting the illegal omission by the committed by the police officer.

Explanation 2—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, Devanshi instigates your friend to kill you. But being a good friend, he refuses to kill you. Devanshi would be liable for instigation i.e. abetment.

Consider another example, Devanshi instigates your friend to give you drugs in order to prevent you from taking your exams. Your friend gives you a little dose of sleeping pills. After 2 hrs passed, you made it to your exams. Devanshi would be liable for abetment.

These examples describe that even though the commission of offence that was instigated to you by the abettor might not be completed or even committed, but even if he instigates you, he shall be held liable for abetment.

Explanation 3—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.

Consider a simple example, Aditi tells your little brother who is six to switch off your grandmother’s ventilator in the hospital. The little brother who does not have any intention or even knowledge about the consequence of such act, switches off the ventilator switch. Aditi would be held liable for abetment.

Imagine you and your girlfriend are on a trip to Goa. She tells a lunatic beggar boy to kill you and gives her incentive that killing you would be very much fun. Although the boy did not have any mens rea nor he was interested in your life, he killed you for fun. Your girlfriend would be held liable for abetting your murder.

As under law, commission of any offence under insanity, lunatic behaviour, child under 7 years and others is considered a non-offence. Therefore, these people who were abetted the little brother and the lunatic boy would not be held guilty of any offence.

Explanation 4—The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Consider four friends. Namita, Nalini, Aarushi and Kashish.

Nalini has a plan to kill Kashish. She tells that to Namita. Namita instigates Aarushi to kill Kashish. Now Nalini and Namita both would be liable for abetting kashish’s murder. Even if Aarushi refuses to kill Kashish because of friendship, then also Namita and Nalini would be liable for abetting kashish’s murder.

Explanation 5—It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

A planned the offence of killing B with his partners X, Y, Z. A did not actually/physically commit the offence but planned the whole thing and instigated his partners against B. A has committed offence of abetment.

IPC has declared abetment as an offence. But what is the punishment of this offence?

Section 109 of the IPC states the liability of the offence of abetment. The punishment of the abetted offence should be as described. But if there is no specific provision that specified the punishment for such abetment of offence, then the punishment for the commission of such offence shall be imposed on the abettor like he committed the offence itself. If there is no such provision then the abettor shall be held liable with the punishment of the offence abetted. For example, A abets B to suicide. Now abetment of suicide has been specifically mentioned in the IPC and the punishment has laid down under section 306 of IPC i.e. imprisonment up to 10 years and shall also be liable to fine. Therefore, when abetment of suicide is committed abettor is punished under section 306. But if say abettor commits a murder. There is no specific provision that prescribes a punishment for abetment of murder. Therefore, the punishment of the offence of murder shall be imposed on the abettor. Another question that has to be answered is what punishment should be given to the person who was abetted?

If A abets B to kill C. In that instigation B kills C with a sword. As given in section 109, A shall be punished by either specific provision or by punishment for the offence abetted. But we need to evaluate what punishment will B be liable for. There are three conditions to be understood:

1. When offence committed is the same as the offence abetted – section 109

The act committed by the person who was abetted shall be punished for the act committed. If A instigates B to commit murder. In the consequence B stabs C. C dies. B is liable for murder and A is also liable for murder.

2. When the offence committed is different from the offence abetted – section 111

Girja Prasad Singh And Ors. v. Emperor (1934) 57 All 717 – if A instigated B to lathi charge C. B committed C’s murder. A shall not be held liable for murder.

A instigates B to commit murder of C. B commits murder but also robs C’s money. A is held liable for murder but not for theft because he did not instigate or abet the offence of theft. It was B’s intention to commit theft. Therefore, B shall be held liable for murder and theft.

Section 112 – Cumulative liability of offences is when the act done is more than the act instigated. For example, in above case cumulative liability is applied on B as he committed theft as well as murder and therefore would be liable for cumulative punishment.

However, if A knew that B would be committing the offence of theft, then A should be held liable for both the offences.

Consider another example, if A instigates B to kidnap C. In consequence of kidnapping B voluntarily causes grievous hurt to C. B shall be liable for cumulative punishment of kidnapping and grievous hurt. If A knew about that B would be causing grievous hurt to C then A shall also be held liable for joint or cumulative punishment. But if A was unaware about the commission of grievous hurt then A shall be held liable only for the offence of kidnapping which he instigated.  

3. Section 110- When the offence committed is with different intention than the abettor’s

A abets B to murder C. B already hated C and wanted to kill him. Soon after A instigates him B kills C. A still would be held liable for abetment.

Consider B has already murdered C. Nobody knows about it yet. A comes to B and instigates him to kill C. In such a case still, A would be liable for abetment since A did not knew about C’s death and the fact that A is abetting C’s murder, A shall be held liable for abetment.

4. Section 115 - If abetted offence is not committed (abetted offence should have prescribed penalty of imprisonment for life or death penalty)

Imagine A instigated B to murder Z. B refuses. Since B did not commit any offence, he would not be liable for any act. Whereas A according to section 115 would be liable for punishment under specific provision if it is mentioned somewhere in the code or else with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

It has to be understood that the proviso condition for offences under section 115 is only for those offences which has the prescribed punishment of death penalty or life time imprisonment under the code, like murder.

4.1  If the abetted offence is not completed but in consequence hurt is committed

Imagine A instigated B to murder Z. B agrees but could not murder Z but gave a knife blow to Z which constituted hurt. B would be liable for the offence committed. If B would have committed the offence of murder and Z would have died than A would have given the punishment for murder as defined under section 302 of IPC i.e. death penalty, or imprisonment for life and shall also be liable to fine. But since A only hurt the victim, A would be liable for imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

5. S. 116 - if the abetted offence is not committed (abetted offence should have prescribed penalty of imprisonment)

If A abets B for an offence which has a prescribed punishment of imprisonment, then if B refuses to commit the offence, then A shall be held liable for imprisonment for a term of one-fourth of the longest term of the prescribed punishment for that offence or with fine as under prescribed punishment of that offence or both. For example, if for an offence punishment prescribed is maximum 7 years imprisonment and 600 rupees fine. In this case, the punishment shall be one fourth of 7 years or 600 rupees fine or both.

5.1  if the abetted person or abettor is a public servant

In such a case where abettor or abetted person is the person to prevent the commission of such offence, then in such cases the punishment should be:

a.      imprisonment similar to the punishment of the offence; or imprisonment for a period from one year to the one-half of the longest term of the prescribed punishment for that offence; or

b.     with fine;

c.      or with both.

With the commission of any act, there might be various consequences of the same. There might be certain effects of every action caused. Similarly, if there are certain consequences or effects due to the commission of abetted offence, then it shall be the responsibility of the abettor if he knew about the causing of such effects as has been stated under section 113 of the IPC.

“Liability of abettor for an effect caused by the act abetted different from that intended by the abettor – When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect 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.”

Consider the following example, A instigates B to abduct C. While abducting B hurts C. If A knew that the effect of such abduction would result in hurt to C, then A shall be held liable for both the offences.

Section 114 – Imagine A was physically present at the crime scene in the above example. He although did not commit the offence by his own hands but was there at the whole time with B while abduction. In such a case, A shall be deemed to have committed the offence himself. But if A was not physically present at the crime scene then A shall be held liable for abetment.

(K. Syed) Muhammad Levvai v. Unknown AIR 1931 Mad 247– It should be noted that section 114 of the IPC is evidential in nature and not punitive because it establishes a presumption which is irrebuttable that actual presence plus prior abetment can mean nothing else but prior participation.

Kulwant Singh v. State of Bihar (2007) 15 SCC 670 – The effect of this provision is that when the abettor is present at the crime scene he is presumed to have participated in the commission of the offence. He may not have done the offence himself physically but is deemed to have done by himself. Thus, actual presence plus prior abetment can mean nothing else but participation.

ACTUAL PRESENCE  +  PRIOR ABETMENT  =  PARTICIPATION

 

This presumption is the irrebuttable argument assumed in section 114 and brings the case under section 34 i.e. conspiracy. This was the dictum of the Supreme Court in Mathurala Adi Reddy v State of Hyderabad AIR 1956 SC 177.

Section 117 – what if there is more than one offender?

Section 117 states that,

“Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

A instigates youngsters in a village to fight against the government and to plant a bomb in the parliament. The youngsters in the village were more than ten students. A shall be held liable under abetment for the punishment prescribed under section 117.

BY

LAWVASTUTAH

References

1. PSA Pillai: Criminal Law, 12th Edition
2. Ratanlal & Dhirajlal, 36th Edition (July, 2019)