Law and You > Criminal Laws > Indian Penal Code > Abetment Under the Indian Penal Code (Ss. 108 to 109)
In this article, we shall discuss the offence of abetment under the Indian Penal Code, 18690.
List of Sub-Topics:
- Introduction
- Definition of Abetment (S. 107)
- Abetment by Instigation
- Abetment by Conspiracy
- Abetment by Aiding
- Punishment for Abetment (S. 109)
When more than one person contributes to committing an offence, each person’s involvement may vary. This variation may be either in the manner or in the degree to which the involvement occurs. One such involvement is due to abetment for crime. The term ‘abet’ means to assist, encourage or provoke someone to commit a wrong thing. Thus, the simple meaning of Abetment is to help someone in the commission of an offence. For example, one person may procure a gun and hand it over to another who may shoot somebody with it. The former person is guilty of abetment, while the latter commits murder. Abetment is not solely related to the actual offence but the abetment is a separate offence in itself and the punishment has been provided for it.
In Sanju v. State of Madhya Pradesh, (2002) 5 SCC 371 case, the 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 persons involved, which further directs us towards the arrangement and operation of the act.
Chapter V of the Indian Penal Code, 1860 containing Sections 107 to 120 deals with provisions concerning abetment. These sections define various types of abetments, such as instigation, conspiracy, and aiding, and prescribe abetment punishment based on the severity of the crime committed. The sections also include guidelines for determining abettor’s liability when the crime committed differs from the one intended or planned by the abettor.
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Section 107 IPC:
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.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
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.
According to Section 108, 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.
Section 108A puts abetment of offences to be committed outside India on the same footing as the abetment of offences to be committed in India. Under this section, although the offence abetted may be committed outside India, the abetment itself must be committed in India. Illustration: A, in India, instigates B, a foreigner in Nepal, to commit a murder in Nepal. A is guilty of abetting murder.
Comments:
In Muthammal v. Maruthathal, 1981 MLJ 287 case, the Court observed that Section 107 does not define any offence but only explain the meaning of ‘abetment’. Abetment is a preparatory act and denotes active complicity on the part of the abettor at a point of time prior to actual commission of the offence.
In State of Gujarat v. P. R. Mehta, 1999 Cr LJ 736 (Guj) (DB) case, the Court observed that the doing of an act with knowledge of facilitation to commit the crime would constitute abetment. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing.
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.
When any of these requirements exists, the offence of abetment is complete. Sometimes a person may commit more than one of these three circumstances in a single offence.
In Malan v. State of Bombay, AIR 1960 Bom 393 case, the Court observed that an act of abetment may take place in one or more of the following ways: (1) instigation, (2) conspiracy, or (c) intentional aid.
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 been abetted. It is to be noted that the words articulated in an angry state or omission without any intention cannot be termed as instigation. Negligence or carelessness can’t be named to be abetment. Thus, the core element for constituting the offence of Abetment is the “Mens Rea” of the person. It is essential that the person shall have deliberate intention while instigating or supporting the main accused to do the act. The Abetment can be assessed from facts-to-facts basis and mainly ascertained by the conduct of the person.
In Pramod Shriram Telgote v. the State of Maharashtra, 2018 SCC On Line Bom 1456 case, the Supreme Court held that the explicit “mens rea” to do the offence is a sine qua non (the most essential thing) for doing conviction under Section 107 of the IPC.
In Sanju v. State of Madhya Pradesh, (2002) 5 SCC 371 case, where there was a bitter quarrel between husband and wife. The husband in anger said to her wife go and die. The wife committed suicide after 2 days. The court held that the husband doesn’t have the required mens -ria for the offence. Thus, he is not liable for the offence of abetment.
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Kinds of Abetment:
Abetment by Instigation:
The act of urging or inciting someone to commit a crime is referred to as instigation. A person is said to ‘instigate’ another to an act, when he actively suggests or stimulates him to the act by any means of language. The word said in a state of anger or during a heated conversation with no such intention of the subsequent offence doesn’t fall within the scope of Instigation. It is very essential that during instigation, the abettor must have full knowledge of the committed offence. The instigation may be direct or indirect, but in either case it is necessary to show that the mind of person instigated was affected thereby.
In Prem Narain v. State, AIR 1957 All 177 case, the Court observed that there has to be a reasonable certainty in regard to the meaning of the words used by the instigator in order to determine whether or not there was instigation, but it is not necessary to prove the actual words used for the incitement.
In C.P. Malik v. State, 1999 Cr LJ 4525 (Del) case, where accused persons went to the house of the deceased, hurled abuses at her, the words used by them were highly provocative and stimulating, the deceased as a result committed suicide, the acts of the accused persons amounted to instigation and they were held liable to be convicted under section 306 read with section 107, IPC.
In R. v. Sheo Dial, 16 ILR All 389 case, the Court held that if the instigation is by means of a letter sent through post, the offence of abetment by instigation is completed as soon as the contents of such letter become known to the addressee, and the offence is triable at the place where such letter is received.
In Nazir v. Emperer, AIR 1927 All 730 case, the Court observed that a mere acquiescence or permission does not amount to instigation. Instigation necessarily connotes some active suggestion or support or stimulation to the commission of the act itself.
It is also equally noted that if a person deliberately tries to conceal important information or by his fraudulent conduct tries to gain a thing, then he is also liable for the offence of instigation. For example, there is a search warrant in the name of B. The police came there but C deliberately presented himself as B. Then he is liable for the offence of instigation.
In Lakshminarayan v. State, (1962) MPLJ 246 case, the Court held that a wilful misrepresentation of a fact amounts to an abetment of an act within the meaning of section 107, explanation 1.
Mere verbal permission or silent assent would not constitute instigation. But in some circumstances, the silent approval of an offence also falls in the definition of abetment by instigation. A large number of dowry death cases fall under this. For example, A wife goes for Sati. The people surrounding her didn’t say a word and let the event occur. They were liable for abetment to suicide.
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Abetment by Conspiracy:
Section 120-A of the Indian Penal Code contains provisions relating to conspiracy. Conspiracy is a species of association or union of two or more persons for some common purpose. Conspiracy is frequently regarded as a preparatory offence because it occurs before the commission of the actual crime. It is a serious offence under the law because it involves criminal planning and coordination among individuals, demonstrating a high level of criminal intent and a potential threat to public safety. Merely intending to commit an offence is not sufficient for this purpose. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable.
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.
In Emperor v. Abdul Hamid, AIR 1944 Lah 380 case, the Court observed that conspiracy consists in a combination and agreement by persons to do some illegal act or effect a legal purpose by illegal means.
For constituting abetment by conspiracy there shall necessarily be three things
- A conspiracy between two or more persons;
- An act or illegal omission must take place in pursuance of that conspiracy;
- Such an act or illegal omission must also take place while doing the conspired thing.
For example, A, a servant, makes a conspiracy with some thieves to do the robbery. The servant while facilitating the act needs to keep the doors of the master’s house open in the night so that the thieves can commit the offence. A, as per the agreed plan keeps the doors open and the thieves take away the master’s valuable property. Now, in this case, A is guilty of abetment by conspiracy.
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Abetment by Aiding:
Aiding is a type of abetment in the Indian Penal Code, which refers to the act of providing material assistance or support to someone who is committing a crime. For constituting this offence, the person shall facilitate the commission of the offence through his conduct or by providing necessary help in any other manner. As per explanation 2 of section 107, the support or facilitation can be given prior to or at the time of the commission of an act. It is essential to highlight that the Aid may be given by an act or by illegal omission.
For constituting abetment by aiding there shall necessarily be three things
- Doing an act that directly assists the commission of the crime; or
- Illegal omission of a duty you are bound to do, or
- Doing any act facilitates the commission of a crime.
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.
In Ramnath v. Emperor, 1926 Cr LJ 362 case, the Court held that the mere giving of the aid will not make the act of abetment an offence if the person who gave the aid did not know that an offence was being committed or contemplated.
In Ram Kumar v. State of Himachal Pradesh, AIR 1995 SC 1965 case of custodial rape by co-accused, the victim was forcibly taken to the police station by the accused who kept watch over the husband of the victim while she was being raped by the co-accused. The accused did not do anything and turned a deaf ear towards the cries of the victim. The Supreme Court upheld the conviction of accused for abetting commission of rape with the aid under section 107.
In Shyam Bahadur v. State of Bihar, AIR 1967 Pat 312 case, the Court observed that simply doing nothing is not an act, and unless there is a duty to do something, it cannot be said that it is an illegal omission. Also, mere failure to prevent commission of an offence is not, by itself, an abetment in the absence of anything to show that the accused helped in, or instigated, the commission of the offence.
In Ram v. State of U.P., AIR 1975 SC 175 case, where a person may invite another for a friendly purpose or casually and that may facilitate the murder of invitee, but unless the invitation is extended with the intention to facilitate the murder, the host cannot be said to have abetted the murder.
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Section 109 IPC:
Punishment for Abetment:
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation:
An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Illustrations:
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official functions. B accepts the bribe. A has abetted the offence defined in section 161.
(b) 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.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.
Abetment of certain offences is punishable under specific Sections of IPC or under other laws. For example, abetment of suicide is punishable under Section 306. When no provision is made for the abetment of offence then Section 109 IPC is applicable.
Ingredients of Section 109 IPC:
- there must be abetment of an offence;
- the act abetted must have been committed in consequence of the abetment; and
- there must be no express provision in the Code for punishment of such abetment.
In Emperor v. Lavji Mahajan, AIR 1939 Bom 452 case, the Court held that if a person abets commission of murder by public, the murder is committed in consequence of the abetment; the appropriate provision for such an offence would be section 109, IPC.
Conclusion:
Under the IPC, abetment is a serious offence because it involves actively facilitating the commission of a crime. Individuals must understand the legal implications of abetment and avoid engaging in such activities to protect themselves and others. Law enforcement agencies take abetment very seriously, and those found guilty of abetment can expect serious legal consequences.
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