Abetment | Law Optional Notes for UPSC PDF Download

Introduction 

• The legal system plays a vital role in regulating human conduct by distinguishing between lawful and unlawful actions. Even seemingly innocuous actions, such as purchasing a kitchen knife, can be deemed criminal when undertaken with criminal intent.
• The concept of abetment broadens the scope of criminal law to encompass these criminal intentions and impose penalties, even if the individual buying the knife did not personally commit any harm but provided it to another person to do so. To clarify the concept of abetment, it is essential to closely examine the term 'abet.' In everyday language, abet means to support, facilitate, assist, aid, or encourage.
• In the case of Sanju v. State of Madhya Pradesh, the esteemed Supreme Court defined 'abet' as encompassing actions like aiding, assisting, commanding, procuring, counseling, countenancing, encouraging, or inciting another person to commit a crime. This definition makes it evident that abetment requires the involvement of at least two individuals, which leads us to consider the planning and execution of the criminal act.
• Traditionally, an individual is held responsible only if they have directly committed a crime. However, departing from this conventional notion, the concept of abetment suggests that those who have aided a criminal or provided any form of assistance can also be held accountable. This article will delve into the intricacies of abetment laws in India.

Definition of Abetment

In everyday language, the term 'abet' implies providing assistance, cooperation, and backing, encompassing even an unlawful motive for committing a crime. To establish that an individual is abetting the commission of an act under any of the circumstances outlined in Section 107 of the Indian Penal Code, it is essential not only to demonstrate the person's involvement in the process of the transaction but also their engagement in the aspects of the transaction that are unlawful.

Abetment as Defined in the Indian Penal Code

• Abetment is established by:
  • Inciting a person to commit an offense.
  • Participating in a conspiracy to commit the offense.
  • Intentionally aiding a person in committing the offense.
• In the case of abetment by instigation, the key factor is the abettor's intent, not the actions of the person being abetted. The abetment can take the form of instigation, conspiracy, or deliberate assistance, as outlined in Section 107 of the Indian Penal Code. However, angry words or omissions without intent are not considered instigation.
• To hold an individual liable for abetment and to proceed with a criminal case under Section 107, it is necessary to establish mens rea, or a guilty mind. Negligence or carelessness cannot be equated with abetment under penal laws.
• To prove abetment, the abettor must be shown to have knowingly supported the commission of the crime. It is not enough to show that the crime could not have been committed without the abettor's involvement or intervention; the abettor's connection with the criminal act must be established.
• In cases of sting operations conducted in the public interest, it is important to consider the moral dilemma of holding an otherwise innocent person responsible for a crime committed under the assurance of secrecy and confidentiality. The question arises as to whether the sting operator should be criminally liable for abetting the offense.
• The Supreme Court, in the case of Rajat Prasad v. C.B.I, determined that a crime is not exempted from liability merely because it serves the public good.
• If an individual fails to prevent an offense from occurring, the question arises whether this failure constitutes abetment. The Supreme Court has affirmed that in such cases, evidence regarding material facts is required, particularly when the individual is the primary witness to the crime. It is risky to convict the accused based solely on their testimony unless the court is convinced that they are telling the truth.
• Abetment may also involve passive assistance. For example, in a case where the accused was found with a weapon at the scene of a fight, their participation in the fight was proven. It did not matter whether they actually used the weapon; they were held responsible for the injuries inflicted on the opposing party.
• In the case of Tuck v. Robson, a publican who did not make any effort to clear his customers from the premises after closing time was considered to have aided the crime of serving alcohol after hours. Similarly, if an owner of a car entrusted it to a friend who drove recklessly, the owner could be charged with abetment for failing to stop the dangerous driving.
• The law requires some form of assistance or inducement to establish abetment. In cases where an individual merely refrains from preventing a crime, it is generally not sufficient to charge them with abetment. However, if a person directly controls another's actions and fails to prevent the commission of a crime, it constitutes abetment.
• The term 'Perpetrator' is significant in the context of the law. Usually, it is clear who the perpetrator is, as they have the necessary mens rea, such as firing a fatal shot in a murder, engaging in sexual intercourse, or participating in a robbery. However, there can be multiple perpetrators in cases where multiple individuals collectively commit the crime.
• If a person uses an innocent agent to commit a crime, the person who orchestrates the crime is considered the perpetrator, even if they are not physically present at the scene of the crime. An innocent agent is someone who performs the actus reus of an offense but is not liable due to reasons like incompetence, infancy, lack of mens rea, or coercion.
• In some cases, individuals offering bribes with the intention of obtaining favors that cannot be obtained through legal means are considered accessories, but those offering bribes to aid in the commission of a crime are not, as they lack the necessary mens rea.
• It is not always necessary for the principal offender to be convicted before an abettor can be convicted of abetment for the same offense. Each case must be considered based on its own facts. If the evidence on record satisfactorily proves that the offense was committed as a result of the abettor's actions, the abettor can be convicted even if the principal offender is acquitted due to insufficient evidence. In some cases, the same witness's evidence may be inadequate for the principal offender's conviction but sufficient for the abettor's conviction, depending on the specific circumstances of the case.

Punishment for Abetment as per the Indian Penal Code

The concept of abetment, as a separate offense with its own penalties, might seem unusual to the general public, as it is widely believed that only the actual perpetrators of a crime are punished. The Indian Penal Code outlines the provisions for abetment and their corresponding punishments as follows:

• Section 109 of the Indian Penal Code states that the one who abets an offense will receive the same punishment as the principal perpetrator of the crime if the actus reus (guilty act) of the principal offender occurs as a result of the inducement made by the abettor. Section 109 applies when no separate provision is provided for the punishment of abetment.
• Section 109 of the Penal Code remains applicable even if the abettor is absent when the abetted offense is committed, as long as they instigated the commission of the offense or were involved in a conspiracy with others to commit an offense, and as a result of that conspiracy, some unlawful act or omission occurs, or they intentionally assisted the commission of the offense through an act or illegal omission.

This section clarifies that the law does not require instigation to take a specific form or be expressed only in words; it can also manifest through behavior or conduct. Whether instigation occurred or not is determined based on the unique circumstances of each case.
In legal terms, it is not necessary for the prosecution to prove that the abettor's sole intention was instigation, as long as instigation occurred, and the offense was committed or would have been committed by the principal offender if they had the same intention and knowledge as the person who was instigated.
For an individual to be guilty of abetment by instigation, these conditions must be met. Additionally, the actus reus that is abetted should be a consequence of the instigation or as specified in the Explanation to this Section.

• Section 110 of the Indian Penal Code states that even if the abettor has a different intention than the principal offender of the crime, the abettor will be subject to the punishment provided for the offense abetted. The liability of the abettor is not affected by this section.
• Section 111 of the Indian Penal Code further elaborates on abetment laws with the phrase "each man is deemed to intend the corollary outcomes of his act." If one person induces another to commit a particular crime, and the latter, as a result of this inducement, not only commits that crime but also commits another crime in furtherance of it, the former is criminally liable as an abettor regarding the latter crime. This is the case if, as a reasonable person at the time of inducement, they should have known that such an act would be committed to accomplish the original crime.
• Section 112 of the Indian Penal Code expands on the rules set forth in the previous section. Under this section, the abettor is held responsible for the offense abetted and the offense actually committed. A combined reading of Sections 111, 112, and 113 makes it clear that if an individual abets another in the commission of an offense, and the principal offender goes beyond that to commit an act with a different consequence than intended by the abettor, making the offense more severe, the abettor is held liable for the outcomes of the principal's actions.

The key issue in such cases is whether, as a reasonable person at the time of instigation or intentional support, the abettor would have foreseen the likely consequences of their abetment.

• Section 113 of the Indian Penal Code should be read in conjunction with Section 111. Section 111 addresses the actus reus that is different from the abetted act, while this section deals with situations where the actus reus is the same as the abetted act but has a different effect.
• Section 114 of the Indian Penal Code comes into play when there is abetment of an offense and when the abettor is present at the commission of both the abetted crime and the actus reus. In such cases, instead of treating the offense as abetment with circumstances of aggravation, the abettor is liable for the very crime they abetted. This section is not punitive in nature.

Section 114 is not applicable in cases where the abettor is present at the commission of the abetted offense. Section 109 deals with abetment, whereas Section 114 applies to cases in which abetment occurred earlier and independently of the abettor's presence at the scene of the crime.

There is a fine distinction between Section 34 and Section 114 of the Indian Penal Code. Under Section 34, when a criminal act is committed by multiple individuals in furtherance of a common objective, each of them is held liable as if they had committed the act individually. If two or more individuals are present, assisting and abetting in a murder, each will be tried as the principal offender, even if it is unclear who actually committed the crime.

Section 114 applies to situations where a person, through abetment prior to the commission of the wrongful act, renders themselves liable as an abettor, is present at the time of the actus reus, but takes no active part in its execution. A joint act under Section 34 does not include a mere command from one person to another and the execution of that command by the latter, as this may constitute the instigation of the latter's act.

• Section 115 of the Indian Penal Code criminalizes the abetment of specific offenses that are either not committed at all, not committed in pursuance of abetment, or only partially committed. The punishment under this section can extend to seven years of imprisonment and a fine. If the abettor's actions cause harm to any person, they will be subject to imprisonment for up to fourteen years, along with a fine.
• 'Express Provision' refers to sections that specifically address abetment of offenses punishable by death or life imprisonment.
• 'Such Abetment' refers to the abetment of the offense mentioned in the respective section, which is an offense punishable by death or life imprisonment.
• Section 116 of the Indian Penal Code deals with the abetment of an offense punishable by imprisonment but does not have a corresponding section for offenses punishable by a fine only.

Abetment can result in three distinct outcomes:

• No offense may be committed, and in this case, the wrongdoer is liable under Section 115 and 116 for mere abetment to commit a crime. 
• The very act at which abetment is targeted may be committed, and the abettor will be tried under Sections 109 and 110. 
• Some act different but related to the abetted act may occur, in which case the abettor will be subject to the penalties of Sections 111, 112, and 113.

Sections 116 and 306 of the Indian Penal Code

• Section 116 of the Indian Penal Code deals with "abetment of an offense punishable with detention if the offense is not committed." However, it's important to note that the core offense under Section 306 is, in fact, abetment itself. In other words, if there is no abetment, there is no question of the offense under Section 306 coming into play. Abetment of abetment is not a foreseeable concept, so there cannot be an offense under Section 116 in conjunction with Section 306.
• The Supreme Court, in the case of Satvir Singh v. State of Punjab, has not unequivocally stated that an offense under Section 306, read with Section 511 of the Penal Code, can never be committed. Suicide, suicide attempts, and the abetment of suicide are treated differently by the law. Therefore, an individual who abets the commission of a failed suicide attempt cannot be held liable only under Section 309, read with Section 116 of the Penal Code. To properly apply the legal framework, they must be held culpable under Section 306 in conjunction with Section 511 of the Penal Code.
• Section 117 of the Penal Code addresses abetment by the public or by a group of more than ten individuals. Abetment has a reference both to the person or people being abetted and to the offense or offenses whose commission is abetted. This section deals with the former, regardless of the nature of the offense being abetted, while Section 115 deals with the latter, without regard to the person being abetted.
• Under this section, it is sufficient to demonstrate any form of instigation or other methods of abetment, even if no intended effect or any other effect results from it. The crux of a charge under this section is the abetment, the incitement to general lawlessness, not the specific offense whose commission is incited. This section covers all offenses and is a general provision for abetment involving a group of more than ten people.
• In a case where more than ten people are incited to commit an offense punishable by death, the offense falls under Section 115 as well as under this section. Abetment of the commission of murder, whether by an individual or by a group of more than ten individuals, falls under Section 115.
• In the latter case, it may also fall under this section, but as this section prescribes a lesser penalty, Section 115 is the more appropriate provision for such an offense. Although both sections are applicable, separate sentences cannot be imposed under both sections for the same criminal act, and the conviction should be based on the section that carries the higher penalty.
• The former Chief Court of Oudh had held that it is illegal to proceed under this section, which allows for a higher penalty for an offense for which a lighter and separate penalty is provided by the provisions of Section 9 of the Indian Salt Act.
• It's important to note that a mere intention or preparation to instigate is neither instigation nor abetment. To constitute an offense under this section by distributing leaflets, it is necessary for the public to have read the leaflets or for the leaflets to have been exposed to the public's view.

Chapter V - Abetment in Criminal Law

Before delving into the concept of abetment, it's essential to understand the various stages of the commission of a crime in criminal law. These four stages include:

• Formation of mens rea (guilty mind).
• The preparatory phase.
• Acting in accordance with the preparation or "Attempt."
• The actual injury or harm caused.

Different penal codes may follow different paths to determine the degrees of guilt for various stages and subsequently assign appropriate punishments. In some cases, one person may commit an offense at the instigation of another, while someone else may only be present to assist at the time of the offense, and yet another person might aid the principal wrongdoer in procuring the tools. Therefore, it becomes necessary to differentiate the nature and degree of participation. Like other inchoate offenses, abetment is considered a preliminary crime and not a standalone offense.

Abetment itself cannot be classified as an offense; it is more of a concept that forms the basis for constructing offenses such as abetment to commit a crime and abetment to suicide. The rationale behind this concept is to expand the scope of criminal law to include penal sanctions for the preparatory stages of a crime. Chapter V of the Indian Penal Code (IPC) addresses the different gradations of a criminal act, considering that the abettor is a different person and not directly involved in the act.

Sections 107 to 120 in Chapter V of the IPC define the crime, specify punishment durations, and provide other details related to abetment. For instance:

• Section 107 of the IPC defines abetment to do a thing and was further elaborated in the case of Kishori Lal v. State of M.P.
• Section 108 explains when the offense of abetment is considered complete.
• Section 108-A grants the IPC extra-territorial jurisdiction for offenses committed in foreign countries.
• Section 109 outlines the punishment terms, while Section 110 prescribes penalties for a criminal act that is abetted with different knowledge and intentions than the one actually committed.
• Section 111 addresses the unintended probable consequences of abetment and is supplemented by Section 113.
• Section 114 holds the abettor liable for the main offense if present at the time of its commission.
• Sections 115 and 116 delineate penalties for abetment when the offense is not actually committed.
• Section 117 deals with abetment of offenses by the public at large or large groups of individuals.
• Section 118 prescribes penalties for concealing the existence of a design in another person to commit a serious offense.
• Sections 119 and 120 provide for punishment in the case of public servants and others for concealing a design in another person to commit an offense not covered by Section 118.

The offense of abetment is considered a separate and distinct offense provided in the IPC. A person is said to abet the commission of a crime when they instigate someone to commit that crime, engage in a conspiracy with others to commit it, or intentionally aid the commission of the crime through an act or omission. These elements form the basis of abetment as a complete crime. Treating abetment as a distinct offense reinforces the idea of punishing the preparatory stages of a crime, ensuring that the law serves as a deterrent in both theory and practice.

Elements of Abetment

• Abetment is contingent on the abettor's intention rather than the actual actions of the person they are aiding. In the context of the first two clauses of this section, it doesn't matter whether the person who was incited actually commits the offense or whether individuals involved in a conspiracy carry out the conspiracy's objectives. However, when a person intentionally aids another in committing an offense, the charge of abetment against them could fail if the person accused of committing the offense is acquitted.
• A notable case, Faguna Kanta Nath v. State of Assam, involved the appellant being tried for abetting an offense under Section 165A. In this case, the officer accused of committing the offense was acquitted, and it was determined that the appellant's conviction for abetment was not valid. However, in a subsequent case, Jamuna Singh v. State of Bihar, it was deemed undesirable to conclude that an abettor cannot be punished if the person who actually committed the offense is acquitted. The court stated that the abettor's culpability depends on the nature of the offense abetted and the manner of abetment. In cases of intentional aiding, the abettor may need to be acquitted along with the principal offender.
• The Supreme Court has emphasized that, to convict someone for abetment of suicide, it must be proven that the death in question was indeed a suicide. The offense of abetment is considered a separate and independent offense. In situations where the offense occurs as a result of the abetment, but there is no provision for punishing such abetment, the abettor should be punished alongside the offender for the original offense.

Abettor

• Abetment under the Indian Penal Code requires active involvement by the abettor prior to the actual commission of the offense. It is essential for the crime of abetment that the abettor significantly aids the principal offender in the commission of the offense. The Code does not punish mere concurrence in another person's criminal acts unless there is active participation that contributes to the criminal act or purpose.
• The definition of an abettor is provided in Section 108 of the Indian Penal Code. An abettor, as per this section, refers to a person who abets either the commission of an offense or the commission of an act that would be an offense if committed by a person without any physical or mental incapacity. This means that the abettor must be an instigator, a conspirator, or an intentional helper. In the absence of concrete evidence showing her involvement, the appellant cannot be held guilty solely because her brother engaged in criminal activities in her house. The section is accompanied by five explanations, which are explained as follows:

Explanation 1 

If a public servant commits an offense due to an unlawful omission of duty, and a private individual incites the public servant, then the abettor is guilty of the offense committed by the public servant, even if the abettor, being a private person, could not have committed that offense personally.

Explanation 2 

The guilt of the abettor depends on the nature of the abetted act and the manner in which the abetment was carried out. The actual commission of the abetted act is not necessary for the offense of abetment. Abetment is complete even if the person abetted refuses to perform the act, involuntarily fails to do it, or does it without the expected result occurring. In the offense of abetment by instigation, the abettor's intention is what matters, not the actual actions of the person being abetted.

Explanation 3 

This explanation clarifies that the person being abetted does not need to have a guilty intention when committing the abetted act. It applies to abetment in general, with no indication that it only pertains to abetment by instigation and not other forms of abetment. The offense of abetment is based on the abettor's intent in employing someone to act on their behalf.

Explanation 4 

This explanation should be understood as follows: "When abetment of an offense itself becomes an offense, abetting such abetment is also an offense." Therefore, the argument by the accused that there cannot be abetment of abetment is not valid in criminal jurisprudence, as per Explanation 4 in Section 108 of the Penal Code.

Rationale of Punishing those involved in an Abetment

• It is evident that a group of criminals poses a greater threat than an individual criminal. To understand this scenario better, we can analyze why a team or gang of criminals has a higher likelihood of success compared to a lone criminal.
• Firstly, a single person committing a crime would face limitations in executing the crime, as they may not be able to foresee all possible contingencies in advance. Their actions would be based on a narrow and limited plan.
• In contrast, think about the numerous possibilities a gang of criminals can explore. Each member can contribute their ideas, and collectively, they can create a highly sophisticated and foolproof plan. Additionally, one aspect that is often overlooked is the motivational aspect of the crime. When someone acts alone, they have limited means to boost their motivation. However, when a group of people is on a mission together, maintaining motivation is much easier and more consistent.

Differences between Abetment and a Common Intention

• Abetment is an independent offense that can be punished on its own, while a common intention is not an offense by itself and must be considered in conjunction with other crimes.
• In the case of abetment, the accused may not be physically present at the scene of the crime, but in the case of common intention, their presence is essential, whether they are actively or passively involved.
• Abetment does not require the actual commission of the crime, whereas common intention necessitates the crime to be committed.

Types of Abetment under the Indian Penal Code

Abetment by 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, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement.
• The law does not require that instigation, in a case of abetment by instigation, should be in particular form or that it should be only in words and may not be by conduct; for instance, a mere gesture indicating beating or a mere offering of money by an arrested person to the constable who arrests him, may be regarded as instigation, in the one case to beat and in the other to take a bribe. Whether there was instigation or not, is a question to be decided on the facts of each case. It is, however, not necessary in law, for the prosecution to prove that the actual operative cause in the mind of the person abetted was the instigation, and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed, if the person committing the act had the same knowledge and intention as the abettor. It is impossible for any human tribunal to decide exactly how much the instigation actually weighed in the mind of the person abetted, when he committed the act or offence. The mere commission to bring the notice of the higher authorities, offences committed by other persons, may form the foundation for disciplinary action against him in a departmental way, but it cannot in law amount to abetment of the offence committed by his fellow clerk.
• Instigation is to urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out.
• Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
• Thus, to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or ‘urging forward’. In order to hold a person guilty of abetting it must be established that he had intentionally done something which amounted to instigating another to do a thing. Instigation may also be of an unknown person. A mere permission does not amount to instigation.

Wilful Misrepresentation or Wilful Concealment

Explanation 1 to this section says that a person who (1) by wilful misrepresentation, or (2) 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. Instigation by ‘wilful concealment’ is where some duty exists which obliges a person to disclose a fact.

Harassment from the Superior Officers

• Deceased was a qualified engineer who had suffered persistent harassment and humiliation and also had to endure continuous illegal demands made by the accused and upon non-fulfilment of which he would be mercilessly harassed by the accused by a prolonged period of time. Such harassment coupled with the utterance of words to the effect that, had there been any other person in his place, he would certainly have committed suicide. In Madan Mohan Singh v. State of Gujarat, the deceased was a driver in the Microwave Project Department.
• He had undergone a bypass surgery for his heart, just before the occurrence of such incident, his doctor had advised him against performing any stressful duties. The accused was a superior officer to the deceased. When the deceased failed to comply with the orders of the accused, the accused became very angry and threatened to suspend the deceased, rebuking him harshly for not listening to him. The accused also asked the deceased how he still found the will to live, despite being insulted so. The driver committed suicide. 
• For the purpose of bringing home any charge against the accused, the Supreme Court stated that there must be allegations to the effect that the accused had either instigated the deceased in some way, to commit suicide, or engaged with some other persons in a conspiracy to do so, or that the accused had in some way aided any act or illegal omission o cause the said suicide. If the making of observations by a superior officer, regarding the work of his subordinate, is termed as abetment to suicide, it would become almost impossible, for superior officers to discharge their duties as senior employees.
• No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether the circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide.

Abetment by Conspiracy

• ‘Conspiracy’ consists in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. So long as such  design rests in intention only, it is not indictable. When two carry it into effect, the very plot is an act itself, and the act of each of the parties, promise against promise, capable of being enforced, if lawful, is punishable if for a criminal object or for the use of criminal means. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Where parties concert together, and have a common object, the act of one of the parties, done in furtherance of the common object and in pursuance of the concerted plan, is the act of all. 
• Before the introduction of conspiracy, except in cases provided for by Section 121A, 311, 400, 401, 402 of the Code, was a mere species of abetment when an act or an illegal omission took place in pursuance of that conspiracy, and amounted to a distinct offence for each distinct offence abetted by conspiracy.
• For an offence under the second clause of this section a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of that conspiracy, and amounted to a distinct offence for each distinct offence abetted by conspiracy.
• For an offence under the second clause of this section, a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of the conspiracy. But for an offence under section 120 A of the Indian Penal Code, a mere agreement is enough if the agreement is to commit an offence.
• Let us discuss the difference between Abetment and Conspiracy. Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, An illegal act or an act which is not illegal by illegal means. It differs from other offences because mere agreement is made an offence even if no step is taken to carry out that agreement.
• Though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated under Section 107 of the Indian Penal Code. There is no analogy between Section 120 B and Section 109 of the Indian Penal Code. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment.

By illegal omission

• The definition of abetment as given in Section 107 of the Penal Code not only includes instigation but also intentional aiding by an illegal omission. Accordingly, the appellant, being the person responsible for creating circumstances provoking or forcing the victim to take the extreme step to avoid a more miserable life and not making any attempt to save her life, was liable to be convicted for the offence of abetment of suicide.
• In a case where a lady advocate was attending the chamber of her senior advocate, the accused. On the day of the incident she was talking with the accused at her residence. At that moment in his presence, she poured kerosene on her and set herself on fire. The accused did nothing to save her. It was held that this did not amount to “illegal omission” and he was not held guilty of abetment to suicide. 

Abetment of offences under other laws

The offence of aiding and abetting is applicable to all statutory offences unless specifically excluded by statute and accordingly it was held to apply to offences created by the English Public Order Act 1986. Abetment of an offence under the Prevention of Corruption Act, 1988 can be made by a non-public servant. Abettors are to be prosecuted through trial under the Prevention of Corruption Act. 

Attempt

• Merely because the section opens with the words “ if any person commits suicide” it cannot be held that in a case of unsuccesful suicide there is no attempt to abet the commission of suicide. Suicide and its attempt, on the one hand, and abetment of commission of suicide and its attempt on the other are treated differently by law and therefore the one who abets the commission of an unsuccessful attempt to commit suicide cannot be held to be punishable merely under Section 309 read with Section 116  of the IPC.
• To implement the scheme of law he has got to be held punishable under Section 306 of the Indian Penal Code read with Section 511 of the Penal Code. The Supreme Court has never laid down in Satvir Singh v. State of Punjab that under no circumstance, an offence under Section 306 of the Penal Code read with Section 511 of the Penal Code can be committed. The Supreme Court did not have the occasion to consider whether a conviction for an offence of attempt to abet the commission of suicide is punishable under Section 306 read with Section 511 of the Penal Code. 

Act done with Criminal Intimidation is not Abetment

Illegal gratification, unfortunately, is a normalized practice in the system. Now this, practice makes the bribe giver an accomplice to some illegal act even if the bribe is extorted from them. The honourable Supreme Court clarified this dilemma in the case of Dalpat Singh v. State of Rajasthanby stating that :

Those who gave illegal gratification to the appellants (Reserve Police constables) cannot be considered as accomplices as the same (bribe) was extorted from them.

Broadly it can be said that the three strategies of committing the crime of Abetment are by

• Instigating
• Engaging
• Intentional Aiding

Instigating

• Instigating someone literally means to incite, provoke, urge or bring about by persuasion to do anything. The word ‘instigate’ has been interpreted in the case of Sanju v. State of M.P. One might argue that the actus reus and the mens reus do not merge to a single person, therefore, abetment to do a thing should not be an offence. In abetment by instigation, there has to be some active involvement of the abettor towards the preparatory phase of the crime.
• This is broadly considered as the actus reus in the crime of abetment, combined with the intention of getting something done or illegally omitted would constitute a complete criminal offence. However, there needs to be sufficient proof that the individual has willfully influenced and coerced the individual to commit a crime but at the same time, it is not necessary for the person abetted to have the same guilty intention or knowledge. The person abetted can totally have a different set of intention and knowledge, still, the offence is committed because the preparatory phase is being dealt with in isolation to the execution phase.
• The entire liability of the abettor is decided within the first two stages of the crime. Now even if the execution gets a different result, the crime has been committed. Advice amounts to instigation only when intended to actively suggest or stimulate the commission of an offence. Mere acquiescence does not amount to instigation. Presence of mens reus is a necessary concomitant of instigation.
• In any event, in determining the criminal responsibility of the defendant in the case, it becomes necessary to determine not only the criminality of an order/suggestion/proposition in itself but also as to whether or not such an order was criminal on its face. Criminal law also rests on the fact that most times people have a free will.
• Lord Kenyon in the case of Higgins said that, “a mere intent to commit evil is not indictable, without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act sufficient to constitute an overt act of high treason.”

Commission of the offence is not necessary for the first two clauses of Section 107

• It is immaterial whether the person instigated goes ahead to commit the crime or a group conspiring together executes the object of the conspiracy. Abetment as an offence is complete in itself a distinct. When the alleged abettor has instigated another or engaged with another in a conspiracy to commit an offence. It is not necessary for the offence of abetment that the act abetted must be committed.

Mere verbal permission or silent assent would not constitute instigation

• If A tells B that he intends to loot a bank C, B says do as you like, A succeeds in looting the bank C, here B cannot be said to have instigated.

Willful misrepresentation or Concealment is sufficient to constitute abetment

• 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.

Direct or Indirect Instigation

• Where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. The instigation would be indirect when instead of such an order a person raises a slogan “Cowards die many times before their death, the valiant die but once” will intend to provoke. This is direct instigation whereas indirect instigation would be A instigating B to commit a crime not by saying so but by harping upon the wrongs he has suffered.

Engaging

Means being actively involved in the suggestion or stimulation of the commission of the crime such as in a conspiracy. The sections 120A and 107 of the Indian Penal Code dealing with the offences of conspiracy have clearly stated the difference between the two. The case of Noor Mohammad Momin v. State of Maharashtra[20] shows the difference between criminal conspiracy and abetment to conspiracy. Criminal conspiracy has a wider jurisdiction than abetment by a conspiracy. An individual is guilty of conspiracy with the mere agreement between a group of people to commit an offence.

Ingredients of Abetment by Conspiracy

• A conspiracy between two or more person.
• An act or illegal omission may take place in furtherance of that conspiracy.

Under chapter V a mere combination of person or agreement is not enough, an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them.[21] Explanation 2 of Section 107 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It has been held that where a criminal conspiracy amounts to an abetment under Section 107, it is unnecessary to invoke the provisions of Section 120A and 120B, as the Indian Penal Code makes specific provision for the punishment of such a conspiracy.

• A, a servant enters into an agreement with thieves to keep the door of his master’s house open in the night so that they might commit theft. A, according to the agreed plan keeps the doors open and the thieves take away the master’s property. A is guilty of abetment by the conspiracy for the offence of theft. But should the thieves not come; A will not be liable under this section.

Intentional Aiding

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.

Ingredients

• 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.

For instance, two factory workers begin quarrelling and the owner in a fit of anger shouts that if he had a weapon he would teach them a lesson. Now, if another labourer in the factory on hearing this hands him a weapon and the owner subsequently injures them with it, the labourer who supplied the weapon which facilitated the act is guilty of abetment through assistance.
A person, it is trite, abets by aiding, when by any act done either prior to, or at the time of the commission of an act, he intends to facilitate and does in fact facilitate the commission thereof, would attract the third clause of Section 107 of the Penal Code. Doing something for the offender is not abetment.
Doing something with the knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment. In order to constitute abetment by aiding within the meaning of the third paragraph of Section 107, the abettor must be shown to have intentionally aided the commission of the crime.
A person may invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But, unless it is shown that the invitation was extended with a view to facilitate the commission of the murder, it cannot be said that person extending the invitation had abetted the murder.
The language used in this section is “intentionally aids” and therefore, active complicity is the gist of the offence of abetment under the third paragraph of Section 107 of the Indian Penal Code. Abetment includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing.
On facts held, in the instant case, there was no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.
Where the principal offender killed the victim with a knife provided by the defendant who later claimed that he thought the knife would be used only to threaten, the defendant’s conviction for murder was upheld, the Court of Appeal saying that the trial judge was correct to direct the jury that the defendant could be so convicted if he contemplated that the principal offender might kill or cause serious bodily harm to the victim as part of their joint enterprise.
It is also not necessary to show that the secondary party to a conspiracy to murder intended the victim to be killed provided it is proved that he contemplated or foresaw the event as a real or substantial risk.
Mere absence from the scene of the crime cannot amount to unequivocal communication of withdrawal from the enterprise. The accused was recruited with certain others by a person to kill his wife. At a predetermined time she was taken to the agreed place and killed. The accused was not present when the killing took place. It was held that he was rightly convicted in that he had lent encouragement and assistance before the commission of the crime. 

Merely being present at the crime scene does not amount to aiding

Unless the intention was to have an effect by being present or the person was aware that an offence is about to be committed or he actively supports or holds some position, rank in committing of the offence.

Chapter VII

This chapter relates to the offences against an officer, soldier, sailor or airman in the army, navy or air force of Government of India. In addition, these words are common to all the sections right from Section 131 to 140.

Ingredients

• Abetment of committing a mutiny by an officer(officer, soldier, sailor or airman in the army, navy or air force of Government of India)
• Attempting to seduce any officer from his allegiance or his duty.

Mutiny is the uprising against the lawful authorities in the army. It can be very well compared to sedition. The concept of abetment in this chapter is analogous to Chapter V and Chapter XVI. The only difference being Chapter VII comes under the category of offences against the state, hence severe penal sanctions.

Chapter XVI

Abetment to Suicide

Instigation as a form of abetment has generally been the most essential consideration in cases of abetment to suicide and dowry death. Another important consideration to charge anyone for abetment to suicide is to prove beyond doubt that the death in question is a suicidal death. Section 306, IPC reads as if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine. The definition of abetment in section 306 needs to conform with the definition given under section 107 of the IPC.
If A persuades B to kill himself and he does it, then according to this section, A would be liable as an abettor. Proving the direct involvement by the accused in such abetment to suicide is necessary. However, abetment of suicide is a long mental process and rarely easy to prove. A conviction cannot be handed over under 306 unless clear mens rea is proved. The elements that need to be satisfied in order for an offence to come under section 306 IPC are suicidal death, and abetment thereof held in Sangarabonia Sreenu v. State of Andhra Pradesh.
Let us look at some of the recent developments regarding Abetment to Suicide which put forth the ingredients of the offence as well.
Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Deceased committed suicide by hanging himself because of the alleged illicit relationship between his wife and the accused. Accused took the wife of deceased away from the house of her brother and kept her with him for four days. There is definitely a proximity and nexus between the conduct and behaviour of the accused and wife of deceased with that of suicide committed by the deceased.
Where a married girl committed suicide by burning herself in her in-law’s house, her in-laws were held guilty of abetment because they were persistently torturing her for inadequate dowry and had gone to the extent of accusing her of illegitimate pregnancy. The judge in this case held that all these tortures and taunts caused depression in her mind and drove her to take the extreme step of putting an end to her life by sprinkling kerosene oil on herself and setting it afire.
Section 306 of the Penal Code prescribes punishment for abetment of suicide while Section 309 of the Penal Code punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the purview of Section 306 of the Penal Code.
In another case of the same kind, a husband persistently demanded more money from his wife, quarrelling with her everyday. On the fateful day when she happened to say that death would have been better than this, she heard only this in reply that her husband would feel relieved if she ended her life. Immediately thereafter he set herself on fire. The husband was held guilty of instigating her to commit suicide. Where the deceased committed suicide within 35 days from the date of her marriage, and the allegation of cruelty was also fully established, accused is found guilty.

• Clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC
• Merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.
• In order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence.

Relevant Case Laws

The law of abetment has undergone major changes very recently. The changes are laid out by the landmark cases below:

• In Pramod Shriram Telgote v. State of Maharashtra , it was held that “clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC”. 
• In Channu v. State of Chattisgarh, it was held that “merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.”
• In Gurucharan Singh v. State of Punjab, it was held that “in order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence.”

Conclusion

Thus, contrary to popular belief, not only the perpetrator of the crime but also his or her accomplice will be liable in the case.