This article is written by
from Guru Gobind Singh Indraprastha University. Section 107 of the IPC talks about abetment and the punishment for abetment which has been discussed in Chapter V of the Indian Penal Code, 1860. This article gives a detailed analysis and overview of the law of abetment.
It has been published by Rachit Garg.
The Indian Penal Code covers many crimes done by one or more persons, where some may be the perpetrators, while some may just be aiding the crime. Provoking, encouraging, or aiding someone is a criminal act punishable under the Indian Penal Code (IPC) as abetment. Chapter V of the talks about abetment, and the law is very clear in this regard. Anyone who aids or leads the crime cannot use the defence of no-presence of actus reus to get away from the punishment associated with it. Delving into the realm of abetment, it becomes essential to comprehend the profound implications and legal ramifications associated with this offence. As we embark on this exploration, we uncover the provisions of Sections 109 to 120 of the Indian Penal Code, 1860 (IPC), which intricately outline the penalties meted out for abetment. This article discusses the offence of abetment as mentioned under of IPC and its punishment in detail.
Section 107-120 of the Indian Penal Code, 1860 talks about the crime of abetment and its punishment in detail. There are four stages of a crime discussed below:
Abetment may take place at any stage amongst the above-mentioned stages, and the mere instigation, commission, or aiding of an offence is punishable for abetment under the Indian Penal Code, where the commission of the offence is not necessarily taken into consideration for the punishment to be upheld.
Abetment in criminal jurisprudence means the act of insisting, provoking or encouraging any person to commit an offence, where the person abetting (abettor) is different from the perpetrator. According to Section 107 of IPC, 1860, there are three essential elements of abetment. The three elements of abetment namely instigation, provocation, and active involvement are explained further.
For example, A instgates B to cause grievous hurt to C and B refuses to do so. Here, A will be held liable for the offence of abetment to rape. If on A’s instigation B causes grievous hurt to C, A will be guilty to abet B of causing grievous hurt.
In the case of (1932), the Apex Court held that for the crime of abetment to be constituted, there must be an abettor who should abet for the crime being prosecuted, which shall also be an offence that is punishable under law.
Section 107 of the IPC defines abetment of a thing that consists of three acts, namely instigation, conspiracy, or intentional aid. In the case of (1957), the Bombay High Court laid down the essentials of the crime under Section 107 of the IPC; the person should instigate any other person to commit the offence, the person conspires with nobody to commit the offence, or he individually aids anyone to commit the offence. This has been discussed in detail further in the article.
Abetment occurs when someone willingly encourages, insists, or aids another person to commit an offence. In cases of abetment, the presence of mens rea is a precondition necessary for the offender to be punished. Mens Rea is the guilty mind or criminal intent of a person to commit a specific crime. It is impossible to commit an offence of abetment without the presence of a mens rea on the part of both the abettor and the principal offender.
The person abetting must have complete knowledge of the crime he/she will commit as a result of the said abetment. Only after establishing the presence of both the elements, mens rea, and whether or not the accused had the knowledge of the crime, the accused shall be charged with the offence of abetment.
The presumption of mens rea cannot be applied universally in every case. In case of strict liability offences, the presumption of mens rea is not required to constitute an offence. In deciding a case for mens rea exemption, the court will consider the severity of the punishment and the stigma attached to it. One big example of such an offence is statutory rape, which occurs when a person comes into sexual contact with a minor. Here, any circumstance or the existence of mens rea does not matter. Whether or not the person was aware of the age of minor or not, the person will be held liable for statutory rape.
To further explain the above point, let us take an example of S which states that the sale of obscene books is illegal. In offences like these where strict liability is put on individuals regardless of the intention or knowledge of the crime, the court shall not be bound to evaluate the mens rea of the offender.
As laid down under Section 107 of the IPC, the abetment contains three acts as follows:
When one or more people are engaged together in any conspiracy focussed on doing a particular thing it might lead to an offence. If the effort committed amounts to the crime, then that is abetment by conspiracy; if the act does not amount to the crime, then that is conspiracy punishable under which states the definition of criminal conspiracy. There shall thus be three essentials for abetment by conspiracy:
For example, there are two friends, Harvey and Donna, who want to rob a convenience store together. Harvey has the layout of the store, and Donna has a gun, therefore they make an agreement that Donna will enter the store to rob the cashier, and Harvey will keep a lookout. They take another friend Mike with them to be their driver, who agreed to help them escape but is not taking part in the robbery, even after knowing the plan. Here, Mike is guilty of abetment by conspiracy because he abetted the commission of the crime by being the getaway driver for Harvey and Donna, even though he did not directly participate in the crime.
The abettor need not take part in the crime, the mere engagement of the abettor is sufficient to constitute abetment because a common object has been sought in furtherance of the subject, even though there isn’t a common intention. In the second clause of this Section, a criminal offence must take place, which must arise from that conspiracy to form an abetment by conspiracy, which is what postulates from the four stages of crime.
For understanding the punishment for abetment, it is necessary to understand what an abettor is. Section 108 talks about who an abettor is and what specific acts amount to abetment.
gives five such propositions related to the abetment of an act.
lays down punishment of abetment if the act abetted is committed in consequence and when no express provision is made for its punishment. If the act is committed as a result of the abetment of an individual and no express provision is made to lay down the punishment of that abetment, the person shall be punished with the punishment provided for the offence.
An act is committed as a consequence of abetment by a person or group of people instigating the other person or a group of people, which might also be a result of a conspiracy. Mere aid also constitutes the offence talked about, which might be bailable or non-bailable and cognizable or non-cognizable.
This provision can also be explained by this illustration, let’s say Louis and Scottie conspire to poison Alex. In pursuance of this, Louis procures and delivers it to Scottie, who administers the poison to Alex in Louis’ absence. Consequently, Alex dies deeming Louis guilty of murder and Scottie guilty of abetting the offence of murder by conspiracy. Here, both Louis and Scottie will be punished for murder.
The motive of this Section is to tell that the offence of abetment is not punished separately in the IPC but is punishable with the offence committed in furtherance of the said abetment. In the case of (2007), the Apex Court held that
“Section 109 applies even when the abettor is not present…… .mere help in the preparation of the offence which is not even committed is not under the ambit of Section 109.”
By the above-mentioned, active participation and a malafide intention are necessary to constitute the offence of abetment.
states the punishment for the abetment of an offence where the person abetted does an act with a different intention from that of the abettor. The person abetting the commission of an offence shall be punished, if the person abetted does the act with a different intention as that of the abettor, with the punishment entitled for the offence he was abetting for in the first place, and no other. The presumption would be laid as if the person abetted committed the crime with the intention of the abettor.
states the liability of an abettor if the act done is different from the act abetted. When the abetted act differs from the act done, the abettor shall be liable for the act done in the same manner as he would be liable for the abetted act if that would have taken place. The act so done should be a probable cause of the abetment so administered and was committed as a result of the instigation, aid, or conspiracy of the abetment in question. There exists a direct inference between the abetment and the act so done.
Let’s say Gretchen instigates Sean to put poison in Dana’s food and gives him poison for that purpose. Sean, though, in consequence of the instigation, by mistake puts the poison in Samantha’s food. Here, Gretchen will be liable in the same manner as if she had instigated Sean to put the poison into Samantha’s food.
states the cumulative punishment for the act abetted and the act done. This Section lays down that if the act for which the abettor is liable in Section 111 of the IPC, in addition to the act abetted, constitutes a distinct offence, the abettor will be held liable for all of the offences.
Let’s say A instigates B to resist distress by force made by a public servant, which he does. During the course of action, he causes voluntary grievous hurt toward the officer. Now, B committed both the crime of causing distress and voluntarily causing grievous hurt, for which he is liable to be punished for both. Here, A will also be held liable for both offences if he knew that, while resisting distress, B was likely to cause grievous hurt.
states the liability of an abettor if the act abetted caused a different effect than intended by the abettor at the time of abetment. In simple terms, the person abetted as a result of the abetment commits some other offence than what he was abetted for. The abettor abets the commission of a particular offence. Though, the person being abetted does some other offence, that the abettor did not have the intention of. In such a case, the abettor shall be liable for the act that actually happened in the same manner as he would have been if the act abetted at the start was committed. It is also essential for the abettor to know that his instigation might also lead to some other act for the abettor to be punishable under this provision.
Let’s say Levi instigates Anya to cause grievous hurt to Bond, in consequence of which she does the same, due to which Bond dies. Here, if Levi knew that the act he abetted would most likely cause death, he would be liable for murder.
states the punishment for when the abettor is present when the offence is committed. Whenever anyone who shall be punished with the offence of abetment for a particular crime is present at the scene of the crime, they shall be deemed to have committed that offence, and shall be punishable with the punishment of that offence.
There exists a thin line between the objective under Section 34 and Section 114 of the Indian Penal Code. Under Section 34, the offender need not be present at the time of the offence. It is possible to participate in an offence even from a distance with the common intention. Whereas, in Section 114, the presence of the abettor at the crime scene is a necessary condition. The acts done separately by the principal offenders are tried under Section 34 of the Code.
Whereas under Section 114, the abettor must have already rendered himself liable before the commission of the act as an abettor. Section 34 applies to all offences committed under the Indian Penal Code, whereas Section 114 is applicable only to Sections 107, 109, 115, and 116. Section 34 does not at all provide a concept for a separate offence, whereas Section 114 provides a separate statutory offence.
deals with offences punishable with death or imprisonment for life if the offence is not committed. Whoever abets an offence punishable with death or imprisonment for life in this Code and that offence is not committed in consequence of the abetment, the punishment for such abetment shall extend up to seven years in prison with a fine. If the act causing harm is done in consequence and for any act thereforth that makes the abettor liable for causing hurt to a person is done, the abettor shall be held responsible and would be punished for imprisonment up to fourteen years and liable to a fine.
Let’s say Harold instigates Stephen to murder Charles, but the offence is not committed. Now, if Stephen murdered Charles, he would be held liable for punishment of imprisonment for life or death. Therefore, Harold is liable for imprisonment of up to seven years and a fine. If any hurt was inflicted upon Charles, Harold will be liable to a sentence of fourteen years with a fine.
deals with offences punishable with imprisonment if the offence is not committed. If the abettor or the possible perpetrator is a public servant whose duty is to prevent the offence or the commission of the offence, the punishment for the same shall extend up to one-half of the longest term, or with fine as stated for the offence, or both. Now, If the abettor abets the commission of an offence, liable with imprisonment, and if that offence is not committed, and no other express provision is made in consequence, the abettor shall be punished for any description provided for that offence for a term that may be one-fourth of the longest term for that particular offence, or with a fine, or both.
Let’s say Kevin offers a bribe to Ava, who is a public servant, for some favour she gave him in the exercise of her official duty. But, Ava refuses the bribe ultimately. Kevin is liable for punishment under this Section.
states the punishment for abetting the commission of an offence by the public or by ten or more people in total. Whoever commits or abets an offence by influencing the general public or a number or class of people exceeding ten shall be punished under this Section. The punishment shall be up to three years of imprisonment, fine, or both.
Let’s say William affixes a placard instigating a sect consisting of more than ten members to meet at a place specified in a public place. He wants to attack the members of an adverse sect by instigating them. Here, William will be liable for the above-mentioned offence.
deals with punishment for concealment of designs for the offence punishable with death or imprisonment for life. Whoever intends to facilitate or knows that he/she will thereby facilitate the commission of an offence punishable with death or imprisonment with life; willfully conceals the existence of a design is liable for punishment. The techniques used to do that might include an act or omission, encryption, or a hiding tool for this purpose. They must know that the representation he is making is false to conceal the existence of the design.
Here, the offence may or may not be committed for which a fine may be imposed accordingly with the desired punishment. Let’s say it is committed, the abettor shall be punished with imprisonment of a term of up to seven years. If not committed, then the abettor shall be punished with imprisonment of up to three years, or with fine, or both.
For example, Paula, knowing that dacoity is about to be committed at a place, falsely informs the Magistrate that it is to be committed at another place. This act of misleading the Magistrate to a whole new opposite direction with the intent to facilitate the crime led to the commission of the dacoity at the place where it was supposed to be. Here, Paula will be held liable under the Section because of the concealment of the design.
, states down the punishment for the offence of a public servant concealing design to commit an offence which is his duty to prevent. Whosoever being a public servant intends, facilitates, or knows that he will, by his actions, thereby facilitate the commission of an offence he is supposed to stop will be punished under this Section. The act can be of voluntary concealment by any act or omission or encryption of the existence of a design to commit such an offence. If the public servant makes any representation that he knows is false will be held liable.
Now, if the offence is committed, the punishment for such abetment shall be one-half of the longest term of the offence, or with a fine, or both. If the offence is punishable by death, the punishment for such abetment may extend to ten years.
If the offence is not committed, the punishment for such abetment shall extend up to one-fourth of the longest punishment of the offence supposed to be committed.
Let’s say, Esther, a police officer, is bound to give information of all designs about the commission of any robbery that she gets informed about. She gets to know that Tara designs to commit robbery, and she omits to give the information with the intent to facilitate the commission of that offence. Here, Esther has concealed Tara’s design by illegal omission and is liable for punishment under this Section.
, deals with the punishment of concealment of designs with a punishment of imprisonment. Whoever intends to or facilitates to or knows it to be likely that he/she might facilitate an offence punishable with imprisonment voluntarily conceals, by an illegal omission or act, the existence of such a design for that particular offence. The person shall be punishable even if he/she makes any representation that he/she knows to be false in accordance with that design.
If the offence is committed, the punishment for that abetment shall extend up to one-fourth of the longest punishment of the offence committed as a result. If the offence is not committed, the punishment for the same shall extend up to one-eight of the longest punishment for that offence, or with fine, or both.
This ruling came in 1881 and changed the landscape for abetment laws in India. The Madras High Court the liability of a person who prepares an intended false document in collaboration with others. He/she, if asks for the intended facts to be written in the false document or buys any stamp for the purpose of that document, shall be liable for the abetment of forgery. The simple reasoning provided by the Court depended upon the circumstances of preparation administered leading to such forgery.
Sati is a historical Hindu practice where if a woman’s husband dies, she shall die too by setting herself on fire. In this case, a bunch of people kept pestering and pushing a woman to commit sati by chanting the name of the Holy Ram. They followed the woman to the fire and kept chanting Ram Ram. The Calcutta High Court everybody who followed the woman while chanting was held guilty of abetment.
This is the landmark case for abetment, and the Allahabad Court held that criminal instigation may be direct or it may be brought through letter. Let’s assume that a person writes a letter to another person instigating him/her to murder someone else. Now, if the latter receives the letter relating to the contents of such instigation, abetment by the former will be charged from thereforth on.
In the case of (1995), the Apex Court stated that mere comments spoken in the spur of a moment do not constitute a mens rea for which a person shall be held liable for abetment by incitement because something said in rage is not what is sufficient to prove a malafide intention. To prove that the said words were an abetment, it needs to be proved beyond a doubt that such words were a form of instigation which depends from case to case. For the case of abetment by instigation to be challenged in a court of law, the person must have urged, encouraged, provoked, or incited another person to commit the substantial offence.
In the case of (2010), the deceased had undergone bypass surgery for his heart before the incident took place. The accused used to tell the victim to do his errands and constantly harassed him. He rebuked the victim continuously and threatened to fire him. The accused in the case was the superior officer of the deceased and gave certain orders which the deceased could not comply with, after which the accused threatened the deceased that he would suspend the deceased. Listening to all the harsh comments by the accused, the deceased committed suicide. The Apex Court held the accused not guilty of abetment by instigation by stating that if every higher official is held responsible in law for discharging their duties, then no direct nexus can be drawn as to what should not be considered as abetment.
In the case of (2015), the callous treatment of the petitioner’s husband and mother-in-law lead to her committing suicide. The Supreme Court held in favour of the petitioner even though there was no explicit instigation due to the illicit treatment by her family which incited her to commit suicide.
In the case of , the Gujarat High Court held that mens rea is the most important constituent to commit the offence of abetment. The court also stated that,
“intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.”
The bench held something substantial in the judgement. Just because there are vague allegations put forward on the accused, they cannot be held liable for abetment under Section 107. Abetment of the offence of commission of suicide is a serious offence.
Assumptions regarding the harassment of the victim, which are not proved or do not have a direct nexus, do not constitute as abetment. There needs to be a more proximate proof or allegation beyond a reasonable doubt, that the accused abetted the commission of a particular offence by their words or actions. These requisite ingredients are missing in this case.
In this , the accused fought with his wife and yelled at her to go die. As a result, the wife killed herself a few days later. The Madhya Pradesh High Court held that mere words spoken in a fit of rage do not constitute abetment. Commission of the offence by abetment shall have some close proximity in date of the occurrence to prosecute a person. Several days months back brawls or arguments cannot be constituted as abetment. The accused was held not guilty of the offence on the grounds that the allegations put on him were unsustainable.
Abetment, as defined under Section 107 of the Indian Penal Code, 1860, is a gruesome offence of instigating, encouraging, and aiding a crime. Chapter XVI of the Act is dedicated to defining abetment and the punishment for abetment. The punishment of abetment differs according to the several offences committed or not committed and the circumstance of each case and scenario. It has to be noted that abetment is not an absolute crime and is read with the offence committed or supposed to be committed thereforth.
Abetment and abatement are familiar words, and people always mix these two up. Abetment is the act of instigating, encouraging, or aiding the commission of an offence. Whereas abatement literally means the reduction or lessening of something, perhaps in the strength of power.
As also held by the Supreme Court previously in the case of (1969), the charge for abetment cannot be laid if the substantive offence being accused of cannot be laid by the prosecution.
A Bench of Justices M.R. Shah and Aniruddha Bose has already confirmed in a Supreme Court ruling of that mere words spoken in quarrels with one another cannot possibly result in instigations. Nobody can be held guilty of the offence under Section 306 of the IPC just because the person quarrelled with the deceased that day.
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It has been published by Rachit Garg.
Introduction
The Indian Penal Code covers many crimes done by one or more persons, where some may be the perpetrators, while some may just be aiding the crime. Provoking, encouraging, or aiding someone is a criminal act punishable under the Indian Penal Code (IPC) as abetment. Chapter V of the talks about abetment, and the law is very clear in this regard. Anyone who aids or leads the crime cannot use the defence of no-presence of actus reus to get away from the punishment associated with it. Delving into the realm of abetment, it becomes essential to comprehend the profound implications and legal ramifications associated with this offence. As we embark on this exploration, we uncover the provisions of Sections 109 to 120 of the Indian Penal Code, 1860 (IPC), which intricately outline the penalties meted out for abetment. This article discusses the offence of abetment as mentioned under of IPC and its punishment in detail.
Exploring the legal implications of Section 107 IPC in Indian law
Section 107-120 of the Indian Penal Code, 1860 talks about the crime of abetment and its punishment in detail. There are four stages of a crime discussed below:
- Intention: A human being is held liable for an offence they commit being a legal entity that they are with a motive in mind. This simply means that a person has a sense of legal responsibility tied to themselves by birth. Actions are a result of intentions that develop due to certain reasons. A non-criminal behaviour becomes criminal if there is any kind of criminal intention/ mens rea behind it. However, ascertaining the true intentions of an individual can prove to be an invisible challenge, making it currently impossible to definitively establish criminal liability.
- Preparation: Preparation refers to the act of making some arrangements or taking steps to commit a particular offence preceding its actual commission. Preparation is not punishable under the law because you cannot prove whether or not the accused prepared the acts for the specific crime or not. The test of locus poenitentiae is used to determine this, which simply means that a person has the chance to withdraw from the criminal act before it is completed.
- Attempt: An action made in furtherance of intention and preparation is called an attempt to commit that specific offence. An attempt to commit a crime or preliminary crime is punishable under the Indian Penal Code under . An attempt can also be described as a preliminary crime to determine the criminal liability of a person. There is a thin line between attempt and preparation which is differentiated by doing some tests like locus poenitentiae, proximity tests, social danger test, and equivocality tests.
- Commission: A crime is accomplished when the attempt to commit that crime is successful which is punishable under the code in several sections depending on the crime thus committed. The criminal liability of a person arises at the stage of the commission or accomplishment of the particular offence because, at this stage, the crime committed poses a danger.
Abetment may take place at any stage amongst the above-mentioned stages, and the mere instigation, commission, or aiding of an offence is punishable for abetment under the Indian Penal Code, where the commission of the offence is not necessarily taken into consideration for the punishment to be upheld.
What is abetment under Section 107 IPC
Abetment in criminal jurisprudence means the act of insisting, provoking or encouraging any person to commit an offence, where the person abetting (abettor) is different from the perpetrator. According to Section 107 of IPC, 1860, there are three essential elements of abetment. The three elements of abetment namely instigation, provocation, and active involvement are explained further.
For example, A instgates B to cause grievous hurt to C and B refuses to do so. Here, A will be held liable for the offence of abetment to rape. If on A’s instigation B causes grievous hurt to C, A will be guilty to abet B of causing grievous hurt.
In the case of (1932), the Apex Court held that for the crime of abetment to be constituted, there must be an abettor who should abet for the crime being prosecuted, which shall also be an offence that is punishable under law.
Section 107 of the IPC defines abetment of a thing that consists of three acts, namely instigation, conspiracy, or intentional aid. In the case of (1957), the Bombay High Court laid down the essentials of the crime under Section 107 of the IPC; the person should instigate any other person to commit the offence, the person conspires with nobody to commit the offence, or he individually aids anyone to commit the offence. This has been discussed in detail further in the article.
Abetment and mens rea
Abetment occurs when someone willingly encourages, insists, or aids another person to commit an offence. In cases of abetment, the presence of mens rea is a precondition necessary for the offender to be punished. Mens Rea is the guilty mind or criminal intent of a person to commit a specific crime. It is impossible to commit an offence of abetment without the presence of a mens rea on the part of both the abettor and the principal offender.
The person abetting must have complete knowledge of the crime he/she will commit as a result of the said abetment. Only after establishing the presence of both the elements, mens rea, and whether or not the accused had the knowledge of the crime, the accused shall be charged with the offence of abetment.
The presumption of mens rea cannot be applied universally in every case. In case of strict liability offences, the presumption of mens rea is not required to constitute an offence. In deciding a case for mens rea exemption, the court will consider the severity of the punishment and the stigma attached to it. One big example of such an offence is statutory rape, which occurs when a person comes into sexual contact with a minor. Here, any circumstance or the existence of mens rea does not matter. Whether or not the person was aware of the age of minor or not, the person will be held liable for statutory rape.
To further explain the above point, let us take an example of S which states that the sale of obscene books is illegal. In offences like these where strict liability is put on individuals regardless of the intention or knowledge of the crime, the court shall not be bound to evaluate the mens rea of the offender.
Essentials of abetment under Section 107 IPC
As laid down under Section 107 of the IPC, the abetment contains three acts as follows:
Abetment by instigation
- A person is said to instigate another person for a bad cause as well as a good cause when that person suggests another person to do a criminal act by any means, expressly or impliedly, by implication, encouragement, or willful representation which shall also lead to concealment of a material fact.
- For example, Anna has a long-standing dispute with Rohan over a piece of property, and she wants to take possession of the land through illegal means. Anna approaches John to ask him to instigate Rohan to sell the property, who is unaware of her ulterior motives. Therefore, John continues to persuade Rohan to sell his property to Anna, however, Rohan is aware of Anna’s malafide intention and doesn’t fall for her trap. Here, Anna is liable for abetment by instigation, and not John because she had a clear malafide intention.
- When advice given actively suggests or stimulates the commission of an offence, only then somebody commits the offence of instigation. It may be anything going from words said to mere gestures of bribing, beating, harassing, or even murdering someone. The prosecution cannot prove that the actual cause for the abetment was instigation because no human tribunal can figure out how the degree of instigation present in the mind of the abettor while abetting affected the circumstances of the case.
- , lays down specific provisions for the instigation by a specific individual and the severity of the punishment. In the case of a minor offence, the punishment can extend up to three years, a fine, or both; in the case of a major offence, the punishment can extend up to ten years, life imprisonment, or both.
Abetment by conspiracy
When one or more people are engaged together in any conspiracy focussed on doing a particular thing it might lead to an offence. If the effort committed amounts to the crime, then that is abetment by conspiracy; if the act does not amount to the crime, then that is conspiracy punishable under which states the definition of criminal conspiracy. There shall thus be three essentials for abetment by conspiracy:
- There are two or more people who commit the conspiracy.
- An illegal act, therefore, shall occur only by that conspiracy.
- Such an act must take place at the moment of the conspiracy.
For example, there are two friends, Harvey and Donna, who want to rob a convenience store together. Harvey has the layout of the store, and Donna has a gun, therefore they make an agreement that Donna will enter the store to rob the cashier, and Harvey will keep a lookout. They take another friend Mike with them to be their driver, who agreed to help them escape but is not taking part in the robbery, even after knowing the plan. Here, Mike is guilty of abetment by conspiracy because he abetted the commission of the crime by being the getaway driver for Harvey and Donna, even though he did not directly participate in the crime.
The abettor need not take part in the crime, the mere engagement of the abettor is sufficient to constitute abetment because a common object has been sought in furtherance of the subject, even though there isn’t a common intention. In the second clause of this Section, a criminal offence must take place, which must arise from that conspiracy to form an abetment by conspiracy, which is what postulates from the four stages of crime.
Abetment by aiding and illegal omission
- Abetment by aiding occurs when the abettor actively does something to aid the commission of an offence. Under Section 107, intentional aid given by a person involves active participation in the crime and not just an intention to participate. Just like abetment by instigation, abetment by aid is punishable only if the abettor had the mens rea (intention and knowledge) of the crime he was aiding in. Intent is the main component required to constitute a case against abetment by aiding in a court of law.
- In the case of (2013), the Apex Court held that to prove abetment by instigation or aiding, the appellant must prove beyond a reasonable doubt the presence of the required mens rea for the offence. A similar view was held in the case of (2016), wherein the Apex Court held that the mere presence and assistance of the accused at the crime scene is not sufficient to prove the offence of abetment by aiding.
- In general parlance, abetment by aiding as a crime committed by an abettor when he/she intentionally aids in the facilitation of the conduct of the crime done by the perpetrators. If a person merely aids in the commission of an offence non-intentionally, he/she will not be liable or abetment at all. For example, if a person calls another person as a friend to the place of the crime and the latter has no knowledge about it and mistakenly aids in the commission of the crime, he/she will not be liable for abetment by aid for there was no malafide intention established in the mind of the accused.
Illegal omission
- Section 107 defines an act done by illegal omission as abetment, which means that when a person violates his/her legal obligations to do something, he is responsible for abetment by illegal omission. If somebody knows that a crime is being committed or will be committed, and fails to take action to stop that crime, they are guilty of abetment by illegal omission.
- Illegal omission can be defined in several ways which can constitute the failure to report a crime that a person is an eyewitness of, failure to prevent a crime that the accused has the duty to care for, and failure to perform a legal duty by taking certain actions or steps that are required by law.
- Let’s say there is a construction company working on a building project and is required to follow certain safety standards by law for the workers’ safety. Regardless, the company starts cutting off corners in the costs of the safety measures to put into something else. Due to the company’s illegal omission, a worker falls from the building and suffers serious injuries. Since the company was aware of the necessities of the workers but still chose not to pay heed to the situation, they are liable for abetment by the illegal omission of the death of their worker. The company failed to perform its legal duty towards the public and its workers, which led to the commission of such a heinous crime.
Section 107 IPC punishment
For understanding the punishment for abetment, it is necessary to understand what an abettor is. Section 108 talks about who an abettor is and what specific acts amount to abetment.
Section 108
gives five such propositions related to the abetment of an act.
- If a person abets the illegal omission of a duty of another person, the abettor will be held liable of the illegal omission of that duty, even though the abettor wasn’t directly liable to care for that illegal omission.
- To constitute the offence of abetment the act abetted may or may not be committed, or the effect required to commit that particular offence should be committed. Let’s say A instigates B to murder C, and B refuses to do so. Therefore, A is guilty of abetting B to commit murder. If C manages to survive, A will still be guilty of abetment to murder.
- It is not necessary that the person abetted should be capable by law of committing the particular offence or that he should share the same guilty knowledge or intention as that of the abettor. The person abetted need not have the same intention or mens rea as that of the abettor to commit a particular offence being charged of. Let’s say A, with a guilty intention, abets a child or a lunatic to commit an illegal act if committed by a person capable by law to commit such an act while having the same intention as A. Here, A will be liable for abetment of that offence, even if the offence took place or not.
- If the abetment of the abetment of an offence is committed by the abettor, he/she will be liable. Let’s say A instigates B to instigate C to commit suicide. Now, B instigates C to commit suicide under the orders of A. Here, A is liable for the same punishment as B because both of them instigated C to commit the offence.
- A person shall be held liable in the case of abetment by conspiracy if he/she does or does not come into contact with the people committing the office. Even if the abettor merely takes art in such commission indirectly, he/she shall be held liable. Let’s say A concerts A plans with B to poison C, wherein A shall administer the poison. Now, B explains this plan to D without mentioning A’s name and expects him to procure the poison, which he does for the purpose of the plan. As a result, A administers the poison, and C dies. Here, A and D did not conspire together, though D did engage in the conspiracy in the pursuance of which C was murdered. Therefore, D is also liable for murder like A and B.
Section 109
lays down punishment of abetment if the act abetted is committed in consequence and when no express provision is made for its punishment. If the act is committed as a result of the abetment of an individual and no express provision is made to lay down the punishment of that abetment, the person shall be punished with the punishment provided for the offence.
An act is committed as a consequence of abetment by a person or group of people instigating the other person or a group of people, which might also be a result of a conspiracy. Mere aid also constitutes the offence talked about, which might be bailable or non-bailable and cognizable or non-cognizable.
Examples:
- Harvey offers a bribe to Donna who is a public servant to reward her for her favour given to him while exercising her official duties. Donna accepts the bribe willfully, committing the offence mentioned under . Here, Harvey will be held liable for abetment of the offence mentioned under Section 161.
- Mike instigates Rachel to give false evidence to a jury, which Rachel does as a consequence of the instigation, thereby committing an offence. Here, Mike will be held guilty of abetting the offence and will also be liable for the same punishment as Rachel.
This provision can also be explained by this illustration, let’s say Louis and Scottie conspire to poison Alex. In pursuance of this, Louis procures and delivers it to Scottie, who administers the poison to Alex in Louis’ absence. Consequently, Alex dies deeming Louis guilty of murder and Scottie guilty of abetting the offence of murder by conspiracy. Here, both Louis and Scottie will be punished for murder.
The motive of this Section is to tell that the offence of abetment is not punished separately in the IPC but is punishable with the offence committed in furtherance of the said abetment. In the case of (2007), the Apex Court held that
“Section 109 applies even when the abettor is not present…… .mere help in the preparation of the offence which is not even committed is not under the ambit of Section 109.”
By the above-mentioned, active participation and a malafide intention are necessary to constitute the offence of abetment.
Section 110
states the punishment for the abetment of an offence where the person abetted does an act with a different intention from that of the abettor. The person abetting the commission of an offence shall be punished, if the person abetted does the act with a different intention as that of the abettor, with the punishment entitled for the offence he was abetting for in the first place, and no other. The presumption would be laid as if the person abetted committed the crime with the intention of the abettor.
Section 111
states the liability of an abettor if the act done is different from the act abetted. When the abetted act differs from the act done, the abettor shall be liable for the act done in the same manner as he would be liable for the abetted act if that would have taken place. The act so done should be a probable cause of the abetment so administered and was committed as a result of the instigation, aid, or conspiracy of the abetment in question. There exists a direct inference between the abetment and the act so done.
Let’s say Gretchen instigates Sean to put poison in Dana’s food and gives him poison for that purpose. Sean, though, in consequence of the instigation, by mistake puts the poison in Samantha’s food. Here, Gretchen will be liable in the same manner as if she had instigated Sean to put the poison into Samantha’s food.
Section 112
states the cumulative punishment for the act abetted and the act done. This Section lays down that if the act for which the abettor is liable in Section 111 of the IPC, in addition to the act abetted, constitutes a distinct offence, the abettor will be held liable for all of the offences.
Let’s say A instigates B to resist distress by force made by a public servant, which he does. During the course of action, he causes voluntary grievous hurt toward the officer. Now, B committed both the crime of causing distress and voluntarily causing grievous hurt, for which he is liable to be punished for both. Here, A will also be held liable for both offences if he knew that, while resisting distress, B was likely to cause grievous hurt.
Section 113
states the liability of an abettor if the act abetted caused a different effect than intended by the abettor at the time of abetment. In simple terms, the person abetted as a result of the abetment commits some other offence than what he was abetted for. The abettor abets the commission of a particular offence. Though, the person being abetted does some other offence, that the abettor did not have the intention of. In such a case, the abettor shall be liable for the act that actually happened in the same manner as he would have been if the act abetted at the start was committed. It is also essential for the abettor to know that his instigation might also lead to some other act for the abettor to be punishable under this provision.
Let’s say Levi instigates Anya to cause grievous hurt to Bond, in consequence of which she does the same, due to which Bond dies. Here, if Levi knew that the act he abetted would most likely cause death, he would be liable for murder.
Section 114
states the punishment for when the abettor is present when the offence is committed. Whenever anyone who shall be punished with the offence of abetment for a particular crime is present at the scene of the crime, they shall be deemed to have committed that offence, and shall be punishable with the punishment of that offence.
There exists a thin line between the objective under Section 34 and Section 114 of the Indian Penal Code. Under Section 34, the offender need not be present at the time of the offence. It is possible to participate in an offence even from a distance with the common intention. Whereas, in Section 114, the presence of the abettor at the crime scene is a necessary condition. The acts done separately by the principal offenders are tried under Section 34 of the Code.
Whereas under Section 114, the abettor must have already rendered himself liable before the commission of the act as an abettor. Section 34 applies to all offences committed under the Indian Penal Code, whereas Section 114 is applicable only to Sections 107, 109, 115, and 116. Section 34 does not at all provide a concept for a separate offence, whereas Section 114 provides a separate statutory offence.
Section 115
deals with offences punishable with death or imprisonment for life if the offence is not committed. Whoever abets an offence punishable with death or imprisonment for life in this Code and that offence is not committed in consequence of the abetment, the punishment for such abetment shall extend up to seven years in prison with a fine. If the act causing harm is done in consequence and for any act thereforth that makes the abettor liable for causing hurt to a person is done, the abettor shall be held responsible and would be punished for imprisonment up to fourteen years and liable to a fine.
Let’s say Harold instigates Stephen to murder Charles, but the offence is not committed. Now, if Stephen murdered Charles, he would be held liable for punishment of imprisonment for life or death. Therefore, Harold is liable for imprisonment of up to seven years and a fine. If any hurt was inflicted upon Charles, Harold will be liable to a sentence of fourteen years with a fine.
Section 116
deals with offences punishable with imprisonment if the offence is not committed. If the abettor or the possible perpetrator is a public servant whose duty is to prevent the offence or the commission of the offence, the punishment for the same shall extend up to one-half of the longest term, or with fine as stated for the offence, or both. Now, If the abettor abets the commission of an offence, liable with imprisonment, and if that offence is not committed, and no other express provision is made in consequence, the abettor shall be punished for any description provided for that offence for a term that may be one-fourth of the longest term for that particular offence, or with a fine, or both.
Let’s say Kevin offers a bribe to Ava, who is a public servant, for some favour she gave him in the exercise of her official duty. But, Ava refuses the bribe ultimately. Kevin is liable for punishment under this Section.
Section 117
states the punishment for abetting the commission of an offence by the public or by ten or more people in total. Whoever commits or abets an offence by influencing the general public or a number or class of people exceeding ten shall be punished under this Section. The punishment shall be up to three years of imprisonment, fine, or both.
Let’s say William affixes a placard instigating a sect consisting of more than ten members to meet at a place specified in a public place. He wants to attack the members of an adverse sect by instigating them. Here, William will be liable for the above-mentioned offence.
Section 118
deals with punishment for concealment of designs for the offence punishable with death or imprisonment for life. Whoever intends to facilitate or knows that he/she will thereby facilitate the commission of an offence punishable with death or imprisonment with life; willfully conceals the existence of a design is liable for punishment. The techniques used to do that might include an act or omission, encryption, or a hiding tool for this purpose. They must know that the representation he is making is false to conceal the existence of the design.
Here, the offence may or may not be committed for which a fine may be imposed accordingly with the desired punishment. Let’s say it is committed, the abettor shall be punished with imprisonment of a term of up to seven years. If not committed, then the abettor shall be punished with imprisonment of up to three years, or with fine, or both.
For example, Paula, knowing that dacoity is about to be committed at a place, falsely informs the Magistrate that it is to be committed at another place. This act of misleading the Magistrate to a whole new opposite direction with the intent to facilitate the crime led to the commission of the dacoity at the place where it was supposed to be. Here, Paula will be held liable under the Section because of the concealment of the design.
Section 119
, states down the punishment for the offence of a public servant concealing design to commit an offence which is his duty to prevent. Whosoever being a public servant intends, facilitates, or knows that he will, by his actions, thereby facilitate the commission of an offence he is supposed to stop will be punished under this Section. The act can be of voluntary concealment by any act or omission or encryption of the existence of a design to commit such an offence. If the public servant makes any representation that he knows is false will be held liable.
Now, if the offence is committed, the punishment for such abetment shall be one-half of the longest term of the offence, or with a fine, or both. If the offence is punishable by death, the punishment for such abetment may extend to ten years.
If the offence is not committed, the punishment for such abetment shall extend up to one-fourth of the longest punishment of the offence supposed to be committed.
Let’s say, Esther, a police officer, is bound to give information of all designs about the commission of any robbery that she gets informed about. She gets to know that Tara designs to commit robbery, and she omits to give the information with the intent to facilitate the commission of that offence. Here, Esther has concealed Tara’s design by illegal omission and is liable for punishment under this Section.
Section 120
, deals with the punishment of concealment of designs with a punishment of imprisonment. Whoever intends to or facilitates to or knows it to be likely that he/she might facilitate an offence punishable with imprisonment voluntarily conceals, by an illegal omission or act, the existence of such a design for that particular offence. The person shall be punishable even if he/she makes any representation that he/she knows to be false in accordance with that design.
If the offence is committed, the punishment for that abetment shall extend up to one-fourth of the longest punishment of the offence committed as a result. If the offence is not committed, the punishment for the same shall extend up to one-eight of the longest punishment for that offence, or with fine, or both.
Judicial pronouncements
Pandala Venkataswami (1881)
This ruling came in 1881 and changed the landscape for abetment laws in India. The Madras High Court the liability of a person who prepares an intended false document in collaboration with others. He/she, if asks for the intended facts to be written in the false document or buys any stamp for the purpose of that document, shall be liable for the abetment of forgery. The simple reasoning provided by the Court depended upon the circumstances of preparation administered leading to such forgery.
Emperor v. Mohit Kumar Mukerjee (1871)
Sati is a historical Hindu practice where if a woman’s husband dies, she shall die too by setting herself on fire. In this case, a bunch of people kept pestering and pushing a woman to commit sati by chanting the name of the Holy Ram. They followed the woman to the fire and kept chanting Ram Ram. The Calcutta High Court everybody who followed the woman while chanting was held guilty of abetment.
Queen-Empress v. Sheo Dial Mal (1984)
This is the landmark case for abetment, and the Allahabad Court held that criminal instigation may be direct or it may be brought through letter. Let’s assume that a person writes a letter to another person instigating him/her to murder someone else. Now, if the latter receives the letter relating to the contents of such instigation, abetment by the former will be charged from thereforth on.
Swamy Prahaladas v. the State of M.P. & Anr., 1995
In the case of (1995), the Apex Court stated that mere comments spoken in the spur of a moment do not constitute a mens rea for which a person shall be held liable for abetment by incitement because something said in rage is not what is sufficient to prove a malafide intention. To prove that the said words were an abetment, it needs to be proved beyond a doubt that such words were a form of instigation which depends from case to case. For the case of abetment by instigation to be challenged in a court of law, the person must have urged, encouraged, provoked, or incited another person to commit the substantial offence.
Madan Mohan Singh v. State of Gujarat, 2010
In the case of (2010), the deceased had undergone bypass surgery for his heart before the incident took place. The accused used to tell the victim to do his errands and constantly harassed him. He rebuked the victim continuously and threatened to fire him. The accused in the case was the superior officer of the deceased and gave certain orders which the deceased could not comply with, after which the accused threatened the deceased that he would suspend the deceased. Listening to all the harsh comments by the accused, the deceased committed suicide. The Apex Court held the accused not guilty of abetment by instigation by stating that if every higher official is held responsible in law for discharging their duties, then no direct nexus can be drawn as to what should not be considered as abetment.
Protima Dutta v. State of West Bengal, 2015
In the case of (2015), the callous treatment of the petitioner’s husband and mother-in-law lead to her committing suicide. The Supreme Court held in favour of the petitioner even though there was no explicit instigation due to the illicit treatment by her family which incited her to commit suicide.
Thakore Nitaben v. State of Gujarat, 2017
In the case of , the Gujarat High Court held that mens rea is the most important constituent to commit the offence of abetment. The court also stated that,
“intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.”
The bench held something substantial in the judgement. Just because there are vague allegations put forward on the accused, they cannot be held liable for abetment under Section 107. Abetment of the offence of commission of suicide is a serious offence.
Assumptions regarding the harassment of the victim, which are not proved or do not have a direct nexus, do not constitute as abetment. There needs to be a more proximate proof or allegation beyond a reasonable doubt, that the accused abetted the commission of a particular offence by their words or actions. These requisite ingredients are missing in this case.
Sanjay @ Sanju Singh vs The State of Madhya Pradesh, 2019
In this , the accused fought with his wife and yelled at her to go die. As a result, the wife killed herself a few days later. The Madhya Pradesh High Court held that mere words spoken in a fit of rage do not constitute abetment. Commission of the offence by abetment shall have some close proximity in date of the occurrence to prosecute a person. Several days months back brawls or arguments cannot be constituted as abetment. The accused was held not guilty of the offence on the grounds that the allegations put on him were unsustainable.
Conclusion
Abetment, as defined under Section 107 of the Indian Penal Code, 1860, is a gruesome offence of instigating, encouraging, and aiding a crime. Chapter XVI of the Act is dedicated to defining abetment and the punishment for abetment. The punishment of abetment differs according to the several offences committed or not committed and the circumstance of each case and scenario. It has to be noted that abetment is not an absolute crime and is read with the offence committed or supposed to be committed thereforth.
Frequently Asked Questions (FAQs)
In what way do abetment and abatement differ?
Abetment and abatement are familiar words, and people always mix these two up. Abetment is the act of instigating, encouraging, or aiding the commission of an offence. Whereas abatement literally means the reduction or lessening of something, perhaps in the strength of power.
Can an abetment charge sustain if a substantive offence is not established?
As also held by the Supreme Court previously in the case of (1969), the charge for abetment cannot be laid if the substantive offence being accused of cannot be laid by the prosecution.
Can a quarrel convict anyone under the offence of abetment or Section 306 of the IPC?
A Bench of Justices M.R. Shah and Aniruddha Bose has already confirmed in a Supreme Court ruling of that mere words spoken in quarrels with one another cannot possibly result in instigations. Nobody can be held guilty of the offence under Section 306 of the IPC just because the person quarrelled with the deceased that day.
References
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