INDIAN PENAL CODE PROJECT

ABETMENT

Submitted to : Submitted by :
Mr. Aquib Husain AnanyUpadhyay
B.A.LLB(Hons)
2ndYear
Self Finance

Faculty of Law
Jamia Milia Islamia
New Delhi
 Acknowledgement
It gives me immense pleasure and gratitude to thank my Indian Penal
Code teacher Mr. Aquib Husain who has helped me in each possible
way that one could . My project without him help would had been a
much difficult task.
I would like to thank staff of the faculty of law library of Jamia
Millia Islamia for helping me in searching valuable information .

Your’s Sincerely
Anany Upadhyay
 INTRODUCTION

Under the Penal Code a person becomes liable as an abettor if he instigates

another to commit a crime, or engages in a conspiracy with another to commit a
crime and some act is done in furtherance of such conspiracy or if he
intentionally aids another in order to facilitate the commission of a crime. The
term 'abet' in general usage means to assist, advance, aid, conduce, help and
promote. The word 'abet' has been defined as meaning to aid; to assist or to give
aid; to command, to procure, or to counsel; to countenance; to encourage;
induce, or assist, to encourage or to set another one to commit.1

The term 'abetment' in criminal law indicates that there is a distinction between
the person abetting the commission of an offence (or abettor) and the actual
perpetrator of the offence or the principal offence or the principal offender.
Chapter V of the IPC on 'Abetment' provides for the law covering the
responsibility of all those considered in law to have abetted the commission of
offence. The chapter on abetment contains 15 sections. Section 107 which
defines abetment generally speaks of three kinds of abetment, viz., abetment by
instigation, abetment by conspiracy and abetment by aid. Section 108 explains
as to when an abetment of an offence takes place, and S. 108-A provides for the
case of abetments-in India of an offence committed in a foreign country.
Section 109 prescribes the punishment for the offence of abetment when the
offence abetted is committed, while S. 110 prescribes the punishment for
abetment where the person abetted commits the act with a different intention or
knowledge from that of the abettor.

Section 111 provides for cases of abetment resulting in a different offence but
which is a probable consequence thereof. Section 112 provides for cumulative
punishment in cases covered by S. 111. Section 113 which is supplementary to

1
Kartar Singh v. State of Punjab, 1994 Cri LJ 3139.
S. Ill provides for punishment in cases where the act abetted causes a different
effect from that intended by the abettor. Section 114 provides for cases where
the abettor is present at the time of the offence, and makes him liable for the
main offence and not merely as an abettor. Sections 115 and 116 prescribe for
the punishment in cases where the offence abetted is not committed. Section
117 deals with abetment of offences by the public generally or large groups of
persons. Section 118 prescribes the penalty for concealing the existence of a
design in another to commit a grave offence. Sections 119 and 120 provide for
punishment in the case of public servants and others respectively for
concealment of a design in another person to commit the offence not covered by
S. 118.

According to S. 107, IPC, a person abets the doing of a thing when he:

(i) Instigates a person to commit an offence; or

(ii) Engages with one or more persons in a conspiracy to commit an offence; or

(iii) Intentionally aids a person by any act or illegal omission to commit an

offence or illegally omits the doing of an act which would prevent the
commission of the offence.

The Supreme Court while considering the validity of TADA 19872, stated that
'when mens rea is not essential in the substantive offence, the same is also not
necessary in the abetment thereof. However, in the specific context of the
provision of 'abetting' provided in S. 2 (l)(a) of TADA , the Supreme Court held
thus:3

“Actual knowledge or reason to believe on the part of the person to be roped in

with the aid of that definition should be read into it...and clause (1) of the

2
Terrorist and Disruptive Activities (Prevention Act) 1987.
3
Supra note 1.
definition 2(l)(a) should be read as meaning 'the communication or association
with any person or class of persons with the actual knowledge or having reason
to believe that such person or class of persons engaged in assisting in any
manner terrorist and disruptionist activities; so that the object and purpose of
that clause may not otherwise be defeated and frustrated.”

ABETMENT BY INSTIGATION

The word 'instigate' literally means to goad, urge forward, provoke, incite, or
encourage to do an act and a person is said to instigate another when he actively
suggests or stimulates him to the act by any means, or language, direct or
indirect, whether it take the form of express solicitation or of hints, insinuation
or encouragement or a wilful misrepresentation or wilful concealment of a
material fact. It is not necessary that t express words should be used to indicate
what should be done by the person to whom the directions are given. While
there has to be a reasonable certainty in regard to the meaning of the word s
used in order to decide whether there was incitement, it is not necessary in law
to prove the actual words used. Advice amounts to instigation only when
intended to actively suggest or stimulate the commission of an offence. Mere
acquiescence does not amount to instigation. Thus the word denotes incitement
or urging to do some drastic or unadvisable action or to stimulate or incite.
Presence of mens rea, therefore, is the necessary concomitant of instigation. It is
common knowledge that the words uttered in a quarrel or in a spur of the
moment cannot be taken to be uttered with mens rea required to constitute
instigation as they are uttered in a fit of anger and emotional state.4

In Queen v. Mohit5 the persons who followed a woman preparing herself to be a

sati on the pyre of her husband and chanted, Rama, Rama were held guilty of
abetment by instigation to lead that woman to commit suicide. Their approval of

4
Swamy Prahaladdas v. State ofM.P. & Am., 1995 Supp. (3) SCC 43.
5
(1977) Cr LJ 96 Cal.
the woman's act by participation in the procession gave encouragement to the
lady to commit suicide.

Incitement to commit any criminal offence, even an offence triable only

summarily, amounted to a misdemeanour at common law. It was highly
anomalous that the mere incitement should be regarded as more serious than the
actual commission of the offence, even though the use of the greater powers of
sentencing might be defensible where the incitement was to commit a large
number of summary offences.

For the purpose of the first two clauses of the S. 107, it is immaterial whether
the person instigated commits the offence or not or the persons conspiring
together actually carry out the object of the conspiracy6 or the act abetted must
be committed. The offence of abetment is a separate and distinct offence. As
observed by the Supreme Court in Jamuna Singh v. State of Bihar7

“The offence of abetment is complete when the alleged abettor has instigated
another or engaged with another in a conspiracy to commit the offence. It is not
necessary for the offence of abetment that the act abetted must be committed.”

It is only in the case of the person abetting an offence by intentionally aiding

another to commit that offence that the charge of abetment against him would
be expected to fail when the person alleged to have committed the offence is
acquitted of that offence. Where , several person s constituting an unlawful
assembly, some only were armed with sticks, and one of them was not so
armed, but picked up a stick and used it, the person w h o gave a general order
to beat, was held guilty of abetting the assault made by them. In cases where the
abetment consists of instigation or conspiracy, it is immaterial for the conviction
of the abettor whether the person instigated commits the offence or not.

6
Faguna Kanto v. State of Assam, 1959 Cr LJ 917.
7
AIR 1967 SC 553 at 554.
Where a forged receipt had been brought into existence and it was intended by
the parties that it should be attested by a certain person and that person attested
it subsequently, it was held that in view of the said intention, the offence of
forgery was complete once it was so attested. Therefore, the person was held
guilty of abetment.8

Instigation as a form of abetment has generally been one of the essential

considerations in cases involving death of young brides or women within seven
years after marriage, as a consequence of dowry harassment. The apex court has
laid down that before anybody can be punished for abetment of suicide, it must
be proved that the death in question was a suicidal death.9

In Protima Dutta v. State of WB10 a charge under S. 306 read with S. 34, IPC
was laid against the mother-in-law of the deceased and her husband of having
abetted the commission of suicide by instigating and inciting her. The evidence
revealed many circumstances which showed that the mother in-law suggested to
the deceased by conduct, language direct or indirect expressions to commit
suicide. Although, it did not amount to express solicitation, but her cruel
conduct towards the deceased over the months made the deceased suffer
mentally. Therefore, the series of conduct amounting to actively suggesting or
stimulating the deceased to commit suicide, it was held, clearly amounted to
instigation. Where one person instigates another to the commission of an
offence by means of a letter sent through the post, the offence of abetment by
instigation is completed as soon as the contents of such letter become known to
the addressee. If the letter never reaches him the act is only an attempt to abet.

In the context of bride-burning and dowry related deaths, S. 306 which provides
for abetment of suicide, is often pressed into service. Here too, abetment is in

8
AIR 1942 Mad 92 (93).
9
Wazir Chand v. State of Haryana, AIR 1989 SC 378.
10
(1977) 81 Cal WN 713,
terms of promoting, encouraging and thereby instigating suicides. A plethora of
cases exists on this aspect.11

In Ram Kumar v. State of MP, which considered the case of suicide committed
by a woman who was married for twenty years during which her husband
continuously treated her cruelly and demanded divorce. The husband had been
convicted by the trial court for abetting the suicide under S. 306, IPC and
sentenced to four years rigorous imprisonment and fine of Rs 1000.

The high court held that while asking for divorce by itself cannot be called
provocation to commit suicide, it is the cruelty and the overall atmosphere
created by cruelties precedent and antecedent of such demands of divorce,
which are material and which had the effect of leading the deceased person to
take poison to end her life. The word 'instigate', it was held, should not be given
restricted meaning to actual words spoken, but ought to be given a wider
meaning commensurate with the 'ordinary experiences of life'.

While every case has to be examined against the specific circumstances and
facts of that case, in the present case, it was the cruel conduct of the accused
husband which provoked his wife to commit suicide. Hence, he was rightly
convicted of abetment to commit suicide under S. 306 IPC, and the sentence
was not interfered with.

In Ram Kumar v. State of HP12 the Supreme Court considered the case of a
constable who dragged a young newly married 19-year-old girl and her husband
from the latter's brother's house. In the police station, the head constable took
the girl to a room, repeatedly beat her and committed rape on her, while the
other constable kept watch in outside holding the hapless husband, who was
helplessly hearing the frantic screams of his wife. The Supreme Court held that

11
State of Punjab v. Iqbal Singh, AIR 1991 SC 153.
12
AIR 1995 SC 1965.
the constable by his conduct had abetted rape and therefore, did not merit
acquittal.

In Saju v. State of Kerala13 a young woman, Jameela, was found killed. At the
time of her death, the deceased was in advance stage of pregnancy. Upon trial
the two accused were found guilty of the offences punishable under Ss. 120-B
and 302 besides S. 109 of the Indian Penal Code. Aggrieved by the judgment of
the Sessions Court, both the accused persons filed appeal before the High Court,
which was dismissed. The apex court held that there is no direct evidence either
regarding abetment or the criminal conspiracy attributable to the appellant. Both
the offences are held to be proved on the basis of circumstantial evidence.
Hence, the appellant could not have been convicted and sentenced with the aid
of S. 120-B or S. 109 IPC.

The court further held that to prove the charge of abetment, the prosecution is
required to prove that the abettor had instigated for the doing of a particular
thing or engaged with one or more other person or persons in any conspiracy for
the doing of that thing or intentionally aided by an act of illegal omission, doing
of that thing. The prosecution failed to prove the existence of any of the
ingredients of S. 107 IPC.

13
(2001) 1 SCC 378.
 ABETMENT BY CONSPIRACY

A person is said to abet the commission of an offence by conspiracy, if he enters

into an agreement with one or more persons to do a legal act by illegal means,
or to do an illegal act, and some act is done in pursuance thereof. A conspiracy
to do a thing is a combination of two or more persons with a common design of
doing a specific thing. It has been held that where a criminal conspiracy
amounts to an abetment under S. 107, it is unnecessary to invoke the provisions
of Ss. 120-A and 120-B, as the Cod e has made a specific provision for the
punishment of such a conspiracy.

ABETMENT BY AID

A person is said to abet the commission of an offence, if he intentionally

renders assistance or gives aid by doing an act or omitting to do an act. Mere
intention to render assistance is not sufficient. There must be some active
conduct on the part of the abettor and the act must be accomplished in
pursuance thereof.

Aid may be given both by an act of commission as well as by an act of illegal

omission. For instance, if a police officer knowing that certain persons were
likely to be tortured for the purposes of extorting confession, keeps himself
away from the place, he is liable for abetment to the offence of extortion by an
act of omission.

It was held that unless it is shown that the commission of the crime was not
possible without the specific aid rendered by a person, he would not be liable
for an offence under this section.
Aiding and abetting of an offence are different from actual participation in a
crime. Hence, where the accused have been charged with actual participation in
a crime but are only found to have aided and abetted the commission of the
crime, they cannot be convicted of the crime charged.

However, insignificant the aid may be, it would be abetment if it was given
with the requisite intention or knowledge. The test is not to determine whether
the offence would or would not have been committed if the aid had not been
given but whether the act was committed with the aid of the abettor in question.

ABETTOR

It is not necessary to make the abettor liable that the crime abetted should be
committed or the effect desired should be produced. However, as the Supreme
Court pointed out in Fagunanath v. The State14 that in the case of abetment by
intentional aid, unless the person who is abetted is found guilty of the offence
charged the abettor cannot be punished. Explanation 2 to S. 107 of the Penal
Code provides: "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."

The liability of the abettor extends to all acts which are probable consequences
of the act abetted and even to consequences which though not intended were
nevertheless known to be likely to ensue. Section 108 IPC defines abettor as a
person who abets: (i) the commission of an offence, or (ii) the commission of an
act which would be an offence, if committed by a person capable of committing
an offence in law. An abettor may be either an instigator, or a conspirator, or

14
1959 (2) MLJ (SC) 18.
helper in the commission of a crime as defined in S. 107 of the Penal Code. The
abetment must be an offence or an act, which would be an offence, if committed
by a person capable in law of committing the offence with the same intention or
knowledge as that of the abettor.15

The abetment of an illegal omission of an act may amount to an offence

although the abettor may not himself be bound to do that act. To constitute
an 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 used. It
is not required for abetment that the person abetted should be capable by law of
committing an offence, or that he should have any guilty intention or knowledge
or should commit an offence. Abetment of an offence being an offence, the
abetment of such an abetment is also an offence. It is not necessary in abetment
by conspiracy that the abettor should plan the offence with the person abetted.

ABETMENT OF OFFENCES OUTSIDE INDIA

Section 108A was added in the Penal Code in 1898 with a view to overrule a
decision of the Bombay High Court in the case of Queen Empress v.
Ganapatrao Ramachandra16 in which it was held that the abetment in India by an
Indian citizen of an offence committed in a foreign country was not punishable
under the Code. The section states that a person would be guilty of an abetment,
if he abets the commission of an act outside India, which if done in India, would
constitute an offence.

Sections 109 to 120 prescribe certain rules as to punishment for different kinds
of abetment. Sections 109 and 110 prescribe punishment of abetment, if the act

15
Emperor v. Parimal Chatterjee, (1932) AIR Cal 760 (761).
16
(1984) ILR 19 Bom 105.
abetted is committed in consequence of abetment, whereas Ss. 115 and 116
provide for punishment where the offence is not committed in consequence of
the abetment. Sections 109 and 110 provide for punishment in cases in which
the act done is the act abetted. In Jai Narain Mishra v. State of Bihar17 the
Supreme Court considered the case of an accused who was accused of
instigating others belonging to the Mishra community to attack members of the
Tiwari family of village Bareja in Chapra district. The trial court had originally
acquitted all the accused.

On appeal by the state government, the Patna High Court convicted them for
offences under Ss. 147, 148, 323, 324, 326 and 307 read with S. 109 IPC.
However, when the Supreme Court examined the evidence, it found that the
witness while tendering evidence during trial had stated that the accused had
instigated others to kill him, in the statement made by him recorded as dying
declaration, he had stated that the accused had only instigated others to 'assault
the rascal'.

This, the court felt, warranted a substitution of conviction from S. 307 to S. 324
read with S. 109 IPC. The sentence of two years imposed by the high court was,
however, not disturbed, as it was felt appropriate for the offence committed.

In Harabailu Kariappa v. State of Karnataka18, there was a dispute between the

deceased Kushalappa and two other persons over cutting of trees from the forest
land near the land of the accused, which resulted in the murder of the deceased.
However, the court held that while the evidence proved clearly the direct role of
the accused and there was no evidence to prove that the offence committed by

17
AIR 1972 SC 1764.
18
1996 Cri LJ 321 (Kan).
him was with the abetment. Hence, the person charged with abetment was
acquitted.

In Joseph Kurian v. State of Kerala19 the apex court held that S. 109 of IPC is by
itself an offence though punishable in the context of other offences. When his
direct involvement in these crimes could not be established, it is difficult to
uphold the view of the high court that he could lopsidedly be taken to have
answered the charge of abetment and convicted on that basis. There would, as is
plain, be serious miscarriage of justice to the accused in causing great prejudice
to his defence. The roles of the perpetrator and abettor of the crime are distinct
and stand apart from each other.

Section 111 holds the abettor liable when the act done is different from the act
abetted. The section enunciates the principle of constructive liability. As the
person abetted is working as an agent of the principal, the abettor is responsible
in law for his deeds. The liability of the abettor under this section is based on
the well-established principle of criminal law that 'every man is presumed to
intend the natural and probable consequence of his act'. A natural and probable
consequence of an act is one which is likely or which can reasonably be
expected to follow from such an act. Section 111 extends the liability of an
abettor in respect of an act done, which was not contemplated by the abettor,
provided the later act was the probable consequence of the act abetted, and is
committed under the influence of the abetment. But an unusual act, which could
not be expected to ensue as a result of abetment cannot be said to be the
probable consequence of an act abetted. In other words, the abettor is liable for
the act committed, if:

19
(1994) 6 SCC 535.
(i) it was a probable consequence of the abetment, and
(ii) it was committed
(a) under the influence of the abetment, or
(b) in pursuance of the conspiracy which constituted abetment.
Whenever any person, who if absent would be liable to be punished as an
abettor, if present when the act or offence for which he would be punishable in
consequence of the abetment is committed, he shall be deemed to have
committed such act or offence.

DISTINCTION BETWEEN CONSPIRACY IN SS. 34, 107, CLAUSE (2)

AND S. 120A, IPC

To constitute an offence under clause (2) to S. 107, IPC-(abetment by

conspiracy)-an act or illegal omission must take place in pursuance of the
conspiracy, whereas under S. 120A, IPC, a mere agreement is enough if the
agreement is to commit an offence.

The Supreme Court elaborated on the difference between Ss. 34, 109 and 120-
B, IPC in the case of Noor Mohammad Mohd Yusuf Monin v. State of
Maharashtra.20 This case involved the conviction of the appellant along with
three others to a conspiracy to kill a neighbour Mohammand Yahya, with whom
the appellant had been having a dispute over the right of passage and the right to
collect water from a tap nearby. The trial court originally found only the person
who was alleged to have stabbed the deceased, guilty of offence under S. 302
and acquitted the other three. However, on an appeal against the acquittal filed
by the state, the appellant and two others were convicted for offences under S.
302 read with S. 34, IPC, and additionally, the appellant in the above case for

20
offence under S. 302 read with S. 109, IPC and sentenced to life imprisonment.
Since the conviction under S. 302 read with Ss. 34 and 109, IPC was challenged
on the ground of insufficiency of evidence because of which grave injustice was
done to the appellant, the Supreme Court entered into a detailed examination of
the evidence on record. While discussing the manner in which the appellant had
instigated the killing of the deceased and other circumstances, the court
elaborated the distinction between the various sections as under-

“So far as S. 34, Indian Penal Code, is concerned, it embodies the principle of
joint liability in the doing of a criminal act, the essence of that liability being the
existence of a common intention. Participation in the commission of the offence
in furtherance of the common intention in its application. Section 109, Indian
Penal Code on the other hand may be attracted even if the abettor is not present
when the offence abetted is committed, provided that he has instigated the
commission of the offence or has engaged with one or more persons in a
conspiracy to commit an offence and pursuant to that conspiracy some act or
illegal omission takes place or has intentionally aided the commission of an
offence by an act or illegal omission.”

Though there is close association of conspiracy with incitement and abetment,

the substantive offence of criminal conspiracy is defined in S. 107, IPC. A
conspiracy from its very nature is generally hatched in secret. It is, therefore,
extremely rare that direct evidence in proof of conspiracy can be forthcoming
from wholly disinterested quarters or form utter strangers.
 CONCLUSION

The chapter on abetment contains 15 sections. Section 107 which defines

abetment generally speaks of three kinds of abetment, viz., abetment by
instigation, abetment by conspiracy and abetment by aid. Section 108 explains as
to when an abetment of an offence takes place, and S. 108-A provides for the case
of abetments-in India of an offence committed in a foreign country. Section 109
prescribes the punishment for the offence of abetment when the offence abetted
is committed, while S. 110 prescribes the punishment for abetment where the
person abetted commits the act with a different intention or knowledge from that
of the abettor. Section 111 provides for cases of abetment resulting in a different
offence but which is a probable consequence thereof. Section 112 provides for
cumulative punishment in cases covered by S. 111. Section 113 which is
supplementary to S. Ill provides for punishment in cases where the act abetted
causes a different effect from that intended by the abettor. Section 114 provides
for cases where the abettor is present at the time of the offence, and makes him
liable for the main offence and not merely as an abettor. Sections 115 and 116
prescribe for the punishment in cases where the offence abetted is not committed.
Section 117 deals with abetment of offences by the public generally or large
groups of persons. Section 118 prescribes the penalty for concealing the existence
of a design in another to commit a grave offence. Sections 119 and 120 provide
for punishment in the case of public servants and others respectively for
concealment of a design in another person to commit the offence not covered by
S. 118.

Further criminal conspiracy can be proved by circumstantial evidence. Indeed, in

most cases, proof o conspiracy is largely inferential thought the inference must
be founded on solid fact. Surrounding circumstances and antecedent and
subsequent conduct, among other factors, constitute relevant material. In fact
because of the difficulties in having direct evidence of criminal conspiracy, once
reasonable ground is shown for believing that two or more persons have
conspired to commit an offence then anything done by anyone of them in
reference to their common intention after the same is entertained becomes,
according to the law of evidence, relevant for providing both conspiracy and the
offences committed pursuant thereto.
 Bibliography
Act Referred:

Indian Penal Code 1860

Books Referred:

 Indian Penal Code, Bare Act, 1860.

 Criminal law, PSA Pillai, Lexis Nexis.

Websites Referred:
 www.manupartra.com
 www.legalservicesindia.com
 www.indiankannon.org
 www.scconline.com