Overview: Abetment | Criminal Law - CLAT PG PDF Download

Introduction

• The Indian Penal Code (IPC) addresses various crimes involving one or more individuals, where some may be the main offenders while others may simply assist in the crime. Provoking, encouraging, or aiding someone in committing a crime is considered abetment and is punishable under the IPC. Chapter V of the IPC, 1860, specifically deals with abetment, clarifying that those who aid or lead in a crime cannot use the defense of absence of actus reus (criminal act) to escape punishment.
• Understanding abetment is crucial as it carries significant legal implications. Sections 109 to 120 of the IPC outline the penalties for abetment in detail. This article focuses on the offence of abetment as described in Section 107 of the IPC and elaborates on its punishments.

Abetment Explained

• Abetment involves actively encouraging or assisting someone in committing a crime.
• It is important to note that even if the main act is not carried out, those who abet can still be held legally responsible.

Legal Provisions

• Sections 109 to 120 of the IPC lay down specific punishments for various forms of abetment.
• These sections detail the circumstances under which a person can be charged with abetment and the corresponding penalties.

Focus of the Article

• The article aims to provide a comprehensive understanding of abetment as per Section 107 of the IPC.
• It will delve into the nuances of the offence and the legal consequences that follow.

Exploring the Legal Implications of Section 107 IPC in Indian Law

Section 107-120 of the Indian Penal Code, 1860 elaborates on the crime of abetment and its associated punishments. The stages of a crime are explained as follows:

1. Intention

• A person is held accountable for an offense they commit based on their legal identity and underlying motive. This implies that individuals bear legal responsibility from birth. Actions stem from intentions shaped by various factors. Non-criminal behavior transforms into criminal activity when driven by criminal intent (mens rea). However, accurately determining an individual's true intentions poses a significant challenge, complicating the establishment of criminal liability.

2. Preparation

• Preparation involves making arrangements or taking steps to commit an offense before its actual execution. Legally, preparation is not punishable because proving the specific intent behind the preparations is difficult. The concept of locus poenitentiae, allowing individuals the opportunity to withdraw from the criminal act before its completion, is utilized in this context.

3. Attempt

• An action taken in furtherance of intention and preparation constitutes an attempt to commit a specific offense. Under Section 511 of the Indian Penal Code, attempts to commit a crime are punishable. Attempt can be seen as a preliminary crime to establish an individual's criminal liability. Differentiating between attempt and preparation involves tests such as locus poenitentiae, proximity tests, social danger tests, and equivocality tests.

4. Commission

• A crime is considered committed when the attempt to carry it out is successful, and this is punishable under various sections of the code depending on the specific crime. Criminal liability arises at the stage of commission because this is when the act poses a tangible danger.

Abetment

• Abetment can occur at any of the aforementioned stages. The mere act of instigating, aiding, or committing an offense is punishable under the Indian Penal Code, irrespective of whether the offense is actually committed.

Understanding Abetment Under Section 107 IPC

Abetment in criminal law refers to the act of encouraging, provoking, or assisting someone to commit an offense. According to Section 107 of the Indian Penal Code (IPC), 1860, there are three key elements of abetment: instigation, provocation, and active involvement. Let's explore these concepts further.

Key Elements of Abetment

• Instigation: This involves urging or encouraging someone to commit an offense.
• Provocation: Provoking someone to commit an offense.
• Active Involvement: Being actively involved in the commission of the offense.

Example: Imagine A urges B to seriously harm C, but B refuses to do so. In this case, A can be held liable for abetment. If B, on A's insistence, harms C, A would be guilty of abetting B in causing harm.

Legal Precedents

• In the case of Emperor v. Parimal Chatterjee (1932), the court emphasized that for abetment to occur, there must be an abettor who encourages the commission of a punishable offense.
• Section 107 of the IPC outlines abetment through acts like instigation, conspiracy, or intentional aid. The Bombay High Court, in the case of Malan v. State of Maharashtra (1957), clarified the essentials of abetment under this section.

Essentials of Abetment

• To establish abetment, one must demonstrate that a person instigated another to commit an offense, conspired with no one to commit the offense, or individually aided someone in committing the offense.

Abetment and Mens Rea

Abetment involves the act of encouraging, instigating, or assisting someone in committing an offense. For an individual to be held accountable in cases of abetment, the presence of mens rea is essential. Mens Rea refers to the criminal intent or guilty mind of a person aiming to commit a specific crime. It is imperative that both the abettor and the principal offender possess mens rea for the offense of abetment to be established.

Key Points about Abetment and Mens Rea

• The individual abetting must have full awareness of the crime they are facilitating through their actions.
• Before charging someone with abetment, it is crucial to establish the presence of both mens rea and the knowledge of the crime on the part of the accused.
• Mens rea is not universally applicable in all cases. In strict liability offenses, it is not necessary to prove mens rea for an offense to be established.
• When determining cases exempt from mens rea, courts consider the severity of the punishment and the stigma associated with it.
• An example of a strict liability offense is statutory rape, where the age of the minor is irrelevant to the perpetrator's knowledge or intent.
• Section 292 of the Indian Penal Code, 1860, which prohibits the sale of obscene books, illustrates a scenario where strict liability applies, and mens rea is not evaluated.

Essentials of Abetment under Section 107 IPC

According to Section 107 of the Indian Penal Code (IPC), abetment involves three key acts:

1. Abetment by Instigation

Abetment by instigation occurs when a person encourages or persuades another to commit a criminal act, either explicitly or implicitly. This can be through direct suggestion, encouragement, or willful misrepresentation that conceals a material fact.

Example: Imagine Anna wants to illegally acquire a piece of land from Rohan. She asks John to convince Rohan to sell the property, unaware of Anna's true intentions. If John persuades Rohan to sell the property to Anna, he is not liable for abetment because he is unaware of Anna's malicious intent. However, Anna is guilty of abetment by instigation because of her clear ulterior motive.

• Instigation involves actively suggesting or stimulating the commission of an offense, which can range from verbal prompts to actions like bribing, beating, or even threatening someone. Proving instigation as the cause for abetment can be challenging, as it is difficult to determine the degree of instigation in the abettor's mind and its impact on the case.
• Section 108 of the IPC outlines specific provisions for instigation by individuals and the corresponding penalties. For minor offenses, the punishment may extend up to three years, a fine, or both. In the case of major offenses, the punishment can be up to ten years, life imprisonment, or both.

Abetment by Conspiracy

Abetment by conspiracy occurs when two or more individuals conspire to commit a specific act, which may lead to an offense. If their efforts result in a crime, it constitutes abetment by conspiracy. However, if the act does not amount to a crime, it falls under the definition of criminal conspiracy as outlined in Section 120A of the Indian Penal Code (IPC).

For abetment by conspiracy to be established, three essential elements must be present:

• Presence of Two or More People: There must be at least two individuals involved in the conspiracy.
• Illegal Act Resulting from the Conspiracy: The conspiracy must lead to the commission of an illegal act.
• Timing of the Act: The illegal act must occur at the moment of the conspiracy.

Example Scenario

• Imagine two friends, Harvey and Donna, planning to rob a convenience store together. Harvey has detailed knowledge of the store's layout, while Donna is armed. They agree on their roles: Donna will enter the store to rob the cashier, and Harvey will act as the lookout. They enlist another friend, Mike, to drive them away after the robbery. Although Mike is not directly participating in the robbery, he is guilty of abetment by conspiracy because he is facilitating the crime by being the getaway driver.

In abetment by conspiracy, the abettor does not need to be actively involved in the crime. Their mere engagement in the conspiracy is sufficient to constitute abetment. This is based on the idea that a common objective is being pursued, even if there is no common intention. The second clause of this section emphasizes that a criminal offense must occur as a result of the conspiracy to establish abetment by conspiracy, aligning with the four stages of crime.

Abetment by Aiding and Illegal Omission

Abetment by Aiding

• Abetment by aiding involves actively assisting in the commission of a crime. Under Section 107 of the Indian Penal Code, intentional aid requires active participation, not just an intention to help.
• Similar to abetment by instigation, abetment by aiding is only punishable if the abettor possesses mens rea(intention and knowledge) regarding the crime they are assisting.
• Intent is crucial in establishing a case of abetment by aiding in court.
• In the case of State of Maharashtra v. Mohammad Yakub Abdul Razak Memon (2013), the Supreme Court emphasized that proving abetment by instigation or aiding necessitates demonstrating the required mens rea beyond a reasonable doubt.
• Similarly, in the case of Brij Lal v. State of Rajasthan (2016), the court stated that mere presence and assistance at the crime scene are insufficient to establish abetment by aiding.
• In simple terms, abetment by aiding occurs when someone intentionally helps facilitate a crime committed by others. If a person unintentionally assists in a crime, they are not liable for abetment.
• For instance, if someone unknowingly aids in a crime without malicious intent, they cannot be held accountable for abetment by aiding.

Illegal Omission

• Illegal omission, as defined in Section 107, refers to abetment when a person fails to fulfill their legal obligations to take action. If someone is aware of a crime being committed or about to be committed and does not act to prevent it, they are guilty of illegal omission.
• Illegal omission can encompass various scenarios, such as failing to report a crime witnessed, failing to prevent a crime due to a duty of care, or neglecting to perform a legal duty by taking necessary actions mandated by law.
• For example, if a construction company is legally required to adhere to safety standards for workers but cuts corners on safety measures, leading to a worker's injury, the company is liable for illegal omission. By disregarding their legal duty towards public and worker safety, the company contributes to a serious incident.

Understanding Punishment for Abetment under Section 107 IPC

To grasp the punishment for abetment, it's crucial to comprehend the role of an abettor. Section 108 of the Indian Penal Code (IPC) delineates who an abettor is and the specific acts that constitute abetment.

Section 108 of the Indian Penal Code, 1860:

• Section 108 outlines five key propositions regarding abetment.
• If a person abets the illegal omission of another person's duty, the abettor will be held liable for that illegal omission, regardless of direct responsibility.
• To establish abetment, the act may or may not be committed, or the necessary effect for the particular offence should be achieved. For instance, if A encourages B to murder C, and B declines, A is still guilty of abetting the murder, even if C survives.
• The person abetted does not need to be legally capable of committing the offence or share the same guilty knowledge or intention as the abettor. For example, if A with malicious intent encourages a child or a mentally ill person to commit an illegal act, A will be liable for abetment regardless of the offence's occurrence.
• If an abettor instigates another to commit an offence, both will be equally liable. For instance, if A prompts B to urge C to commit suicide, A and B are both liable for the same punishment.
• In cases of abetment by conspiracy, a person can be held liable whether or not they directly interact with those committing the offence. For example, if A plans with B to poison C, and B involves D in the plan without mentioning A, all three are liable for murder.

Section 109 of the Indian Penal Code, 1860

Section 109 of the Indian Penal Code (IPC), 1860 deals with the punishment for abetment when the act abetted is committed as a consequence, and when there is no specific provision for its punishment.

Key Points of Section 109

• If a person abets an act and that act is committed as a result of the abetment, the abettor can be punished even if there is no specific provision for punishing the abetment.
• The punishment for the abettor will be the same as the punishment provided for the offence committed.

Understanding Abetment

• Abetment involves instigating or aiding another person or group to commit an act, which could also be a result of a conspiracy.
• Mere assistance in the commission of the act, whether bailable or non-bailable, cognizable or non-cognizable, constitutes abetment.

Examples Illustrating Section 109

• Example 1: Harvey offers a bribe to Donna, a public servant, to reward her for a favor. When Donna accepts the bribe, she commits an offence under Section 161 of the IPC. In this case, Harvey is liable for abetting the offence under Section 161.
• Example 2: Mike instigates Rachel to provide false evidence to a jury, and Rachel does so as a result of the instigation, committing an offence. Mike is guilty of abetting the offence and is liable for the same punishment as Rachel.
• Example 3: Louis and Scottie conspire to poison Alex. Louis procures the poison and delivers it to Scottie, who administers it to Alex in Louis' absence. Alex dies, making Louis guilty of murder and Scottie guilty of abetting the murder by conspiracy. Both are punished for murder.

Objective of Section 109

• The objective of Section 109 is to establish that abetment is not punished separately in the IPC but is punishable along with the offence committed as a result of the abetment.
• In the case of Kulwant Singh @ Kulbansh Singh vs State of Bihar (2007), the Supreme Court clarified that Section 109 applies even if the abettor is not present at the scene of the crime.
• Active participation and malicious intent are essential to constitute the offence of abetment.

Section 110

Section 110 of the Indian Penal Code outlines the punishment for abetting an offence when the person abetted acts with a different intention from that of the abettor.

• If the person abetted commits the act with an intention different from that of the abettor, the abettor shall be punished with the penalty prescribed for the offence he originally intended to abet, and no more.
• The assumption is that the person abetted acted with the intention of the abettor.

Section 111

Section 111 of the Indian Penal Code addresses the liability of an abettor when the act performed differs from the act abetted.

• If the act done differs from the act abetted, the abettor shall be liable for the act done in the same way as he would be liable for the act he abetted, as long as the act done was a probable consequence of the abetment and resulted from the instigation, aid, or conspiracy involved in the abetment.

For example, if Gretchen urges Sean to poison Dana but he mistakenly poisons Samantha instead, Gretchen is liable as if she had instructed Sean to poison Samantha.

Section 112

Section 112 of the Indian Penal Code pertains to the cumulative punishment for the act abetted and the act done.

• This section states that if the act for which the abettor is liable under Section 111, along with the act abetted, constitutes a separate offence, the abettor will be held accountable for all offences.

For instance, if A encourages B to resist a public servant's distress, and B causes grievous hurt to the officer in the process, A will be liable for both offences if he knew B was likely to cause grievous hurt while resisting distress.

Section 113

Section 113 of the Indian Penal Code deals with the liability of an abettor when the act abetted results in a different outcome than intended.

• If the person abetted commits a different offence from what the abettor intended, the abettor will be liable for the actual act in the same manner as if the act abetted was committed.
• It is crucial for the abettor to be aware that their instigation could lead to a different act for them to be punishable under this provision.

For instance, if Levi urges Anya to inflict grievous hurt on Bond, and as a result, Bond dies, Levi would be liable for murder if he knew the act he abetted could likely lead to death.

Section 114

Section 114 of the Indian Penal Code addresses the punishment when the abettor is present at the scene of the offence.

• If a person abetting a specific crime is present at the scene of the crime, they are deemed to have committed the offence and will be punished accordingly.
• The distinction between Section 34 and Section 114 lies in the necessity of the abettor's presence. Under Section 34, participation in an offence is possible even from a distance with a common intention. In contrast, Section 114 requires the abettor to be present at the crime scene.
• Section 34 applies to all offences under the Indian Penal Code, while Section 114 is applicable only to specific sections such as 107, 109, 115, and 116. Section 34 does not create a separate offence, whereas Section 114 establishes a distinct statutory offence.

Section 115

Section 115 of the Indian Penal Code pertains to abetting an offence punishable by death or life imprisonment when the offence is not committed.

• If someone abets an offence punishable by death or life imprisonment and the offence is not committed as a result of the abetment, the punishment for such abetment can extend up to seven years in prison along with a fine.
• If any harm is caused as a result of the abetment, the abettor can be held responsible and punished with imprisonment up to fourteen years and a fine.

For example, if Harold encourages Stephen to murder Charles, but the murder does not take place, Harold could be sentenced to up to seven years in prison and a fine. If any harm was inflicted on Charles, Harold could face fourteen years of imprisonment and a fine.

Section 116

Section 116 of the Indian Penal Code deals with the punishment for abetting an offence that is not committed.

• If the abettor or the potential perpetrator is a public servant whose duty is to prevent the offence, the punishment can extend up to half of the longest term for the offence, or a fine, or both.
• If the abettor abets the commission of an offence liable to imprisonment, and that offence is not committed, the abettor shall be punished as described for that offence for a term that may be one-fourth of the longest term for that particular offence, or with a fine, or both.

For example, if Kevin offers a bribe to Ava, a public servant, for a favour she provided in her official duty, and Ava ultimately refuses the bribe, Kevin is liable for punishment under this Section.

Section 117

Section 117 of the Indian Penal Code addresses the punishment for abetting the commission of an offence by the public or by a group of ten or more people.

• Whoever commits or abets an offence by influencing the general public or a class of people exceeding ten shall be punished under this Section.
• The punishment can be up to three years of imprisonment, a fine, or both.

For instance, if William posts a placard inciting a sect of more than ten members to gather at a specified location with the intent to attack members of an opposing sect, he will be liable under this Section.

Section 118

Section 118 of the Indian Penal Code pertains to the punishment for concealing designs for an offence punishable with death or life imprisonment.

• Whoever intends to facilitate or knows that they will facilitate the commission of an offence punishable with death or life imprisonment by willfully concealing the existence of a design is liable for punishment.
• The methods used for concealment may involve an act or omission, encryption, or a hiding tool. The person must know that the representation they are making is false to conceal the design.

In cases where the offence is committed, the abettor may face imprisonment of up to seven years. If the offence is not committed, the abettor could be punished with imprisonment of up to three years, a fine, or both.

For example, if Paula, aware of an impending dacoity at a certain location, misleads the Magistrate into believing it will occur elsewhere, she will be held liable under this Section for concealing the design.

Section 119

Section 119 of the Indian Penal Code outlines the punishment for a public servant concealing a design to commit an offence that it is their duty to prevent.

• A public servant who intends, facilitates, or knows that they will facilitate the commission of an offence they are supposed to stop by concealing the design will face punishment under this Section.
• The act can involve voluntary concealment through any action, omission, or encryption of the existence of a design to commit such an offence. If the public servant makes a false representation, they will be held liable.

If the offence is committed, the punishment for such abetment will be half of the longest term for the offence, or with a fine, or both. In cases where the offence is punishable by death, the punishment for such abetment may extend to ten years.

If the offence is not committed, the punishment for such abetment may extend up to one-fourth of the longest punishment for the supposed offence.

For instance, if Esther, a police officer, is required to report any designs of robbery she becomes aware of, and she fails to provide this information with the intent to facilitate the crime, she will be liable for punishment under this Section for concealing Tara's design.

Section 120

Section 120 of the Indian Penal Code deals with the punishment for the concealment of designs related to an offence punishable with imprisonment.

• Whoever voluntarily conceals the existence of a design for an offence punishable with imprisonment, knowing that their actions might facilitate such an offence, shall be punishable.
• The concealment can occur through illegal omission or act, and even if the person makes a false representation regarding the design, they shall be held accountable.

If the offence is committed, the punishment for the abetment shall extend up to one-fourth of the longest punishment for the offence resulting from the concealment. If the offence is not committed, the punishment shall extend up to one-eighth of the longest punishment for the offence, or a fine, or both.

Judicial Pronouncements

Pandala Venkataswami (1881)

• The Madras High Court ruled that a person involved in preparing a false document with others could be liable for abetment of forgery.
• If someone requests specific facts to be included in a false document or purchases a stamp for it, they are guilty of abetment.
• The court's reasoning focused on the circumstances of preparation leading to the forgery.

Emperor v. Mohit Kumar Mukerjee (1871)

• A woman was pushed to commit sati by a group chanting the name of Holy Ram after her husband’s death.
• The Calcutta High Court held that those chanting were guilty of abetment.

Queen-Empress v. Sheo Dial Mal (1984)

• This landmark case established that criminal instigation could be direct or through a letter.
• If someone receives a letter instigating them to commit a crime, the sender can be charged with abetment.

Swamy Prahaladas v. the State of M.P. & Anr., 1995

• The Apex Court clarified that spontaneous comments made in anger do not constitute mens rea for abetment.
• To prove abetment by instigation, it must be shown that the words were a form of instigation.
• Instigation varies from case to case and requires urging, encouraging, provoking, or inciting another to commit the substantial offense.

Madan Mohan Singh v. State of Gujarat, 2010

• In this case, the deceased, who had previously undergone heart bypass surgery, was constantly harassed and threatened by his superior officer, the accused.
• The accused's harsh treatment and threats led the deceased to commit suicide.
• However, the Apex Court found the accused not guilty of abetment by instigation.
• The Court reasoned that holding every superior officer responsible for discharging their duties would not establish a direct link to abetment.

Protima Dutta v. State of West Bengal, 2015

• The case involved the suicide of the petitioner’s husband due to the treatment he received from the petitioner’s mother-in-law.
• The Supreme Court ruled in favor of the petitioner, stating that even without explicit instigation, the harsh treatment by her family led to the suicide.

Thakore Nitaben v. State of Gujarat, 2017

• The Gujarat High Court emphasized that mens rea is crucial for abetment.
• Intentional aiding and active complicity are key elements of abetment under Section 107.
• Vague allegations against the accused do not establish liability for abetment.
• Proving abetment of suicide requires substantial evidence of the accused's involvement.

Sanjay @ Sanju Singh vs The State of Madhya Pradesh, 2019

• In this case, the accused had a dispute with his wife and told her to go die.
• Following this, the wife committed suicide days later.
• The Madhya Pradesh High Court ruled that words spoken in anger do not amount to abetment.
• For abetment, there must be a close temporal connection between the words and the act.
• Arguments or fights that occurred a long time before the incident cannot be considered abetment.
• The accused was acquitted because the allegations against him were not sustainable.

Conclusion