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INDIAN LAW ON ABETMENT

Introduction and Definition

Corpus Juris Secundum defines abet as to aid; to assist or give aid; to command, to procure, or to counsel; to countenance; to encourage, counsel or induce; to encourage or to set another on to commit. As per the definition given in the Chapter, abetment may or may not be an offence.

Law recognizes gradations of guilt and associates various degrees of culpability with the mode of participation. Is it not true that many crimes would be impossible but for the support and encouragement from others who perhaps are not actively participating in the commission of the crime. Hindu law goes to the extent of prescribing for the abettor four times the punishment for the offence.

English law classifies the participants in a crime as Principal in first degree (the one who actually commits the crime or gets it done through an innocent agent) and Principal in the second degree ( the one who is present at the commission of the crime and aids/assists). The classification has little practical significance as the punishment will be the same. Concepts like accessory before and after the fact are also recognized under the English law.

The Indian law, through the IPC, does not make any distinction between Principals of the first and second degree. All present and participating in the commission of a crime are liable as the actual offender or under the principles of constructive liability (Sec(s). 34 & 149). The Penal Code makes a broad distinction between a principal and an abettor. Mens Rea is a precondition here. Knowledge about the act and its effect is essential to make a person an abettor. Still there are cases where the statute itself provides that no mens rea is needed, for e.g., sale of obscene books or strict liability under the public welfare or social legislation.

Abetment

Section 107 of the IPC deals with abetment of a thing: If anyone instigates any person or engages in any conspiracy and some act is done in pursuance of that and lastly intentionally aids by an act or illegal omission, the doing of the act, he is said to abet.

Explanation I of the section includes wilful misrepresentation or by wilful concealment under the term ‘instigate’. Explanation II includes facilitation at the time of commission or prior to that in the term ‘aid’.

Ingredients

For the offence of abetment, there must be an abettor, he must abet and the act abetted must be an offence. The section 107, IPC says that the person abets when he: a)	instigates a person to commit crime; When one incites, urges, encourages, goads, solicits or provokes to do an act prohibited by law or when an advice actively suggests or stimulates that is instigation. Chanting ‘Ram, Ram’ is instigation when it is to lead a woman to commit sati. People involved in causing dowry deaths  and parents not taking any steps to protect their children in danger  are abettors. Conduct, language and direct or indirect expressions, duration come within the purview of this definition. Passive and unresponsive approvals are not considered to be instigation generally. For instance, A tells B that he wants to kill C. B tells him that if he kills C, he will liable for the consequences of the same. A murders B, C will not be liable for the same.

b)	engages in a conspiracy to commit an offence; It will be abetment especially if an act is committed in the furtherance of the conspiracy. In the offences of conspiracy, the very agreement or the plot is an act in itself and forms the gist of the offence as was held in the Sarkar case. Where a servant conspires with thieves to leave the door open so as to facilitate theft, he will guilty of abetment by conspiracy for the offence of theft if the theft actually takes place. If the thieves don’t show up, he will not be liable under this section.

c)	intentionally aids any person to commit an offence by any act or illegal omission. If a person intentionally renders assistance or gives aid by doing an act or omitting to do an act, it will constitute abetment. Mere intention to render assistance is not enough, there has to be some active conduct. A police officer keeping himself away so that certain people can be tortured and confessions be extracted, will be liable for abetment to the offences of extortion by an act of omission. Here, the act would not have happened at all but for the assistance. It is not possible for the law to punish a person for abetting a certain crime when the person alleged to have committed that offence in consequence of the abetment has been acquitted when the abetment is by intentionally aiding.

When the substantive offence is not established, the charge of abetment also fails. It may be noted that under Section 120 A, a mere agreement is enough, if it is to commit a crime.

The Abettor

Section 108: Abettor – A person who abets either the commission of an offence or the commission of an act that would be an offence, will be an abettor if committed with the same knowledge or knowledge by another person.

Explanation 1 says that the abetment of an illegal omission will amount to offence though the abettor was not bound to do so. The effect of the abetment is immaterial as Explanation 2 clarifies that is not necessary that the act abetted should be committed. A instigates B to kill C and B refuses to do so. A is guilty of abetting B to commit murder. Explanation 3 makes it clear that it is not necessary that the person abetted should be capable of committing an offence or that he should have the same intention or knowledge as the abettor. Children and Lunatics as it is are exempted under Sections 82 and 84.If A assists a child to commit an act that would be a crime if committed by a person capable by law of committing an offence, he will be liable for abetting an offence whether it is committed or not. The 4th explanation states that the abetment of abetment of an offence is also an offence. A instigates B to instigate C to murder D. When D is murdered by C, A will also be liable as much as B. Explanation V talks about how engaging in the conspiracy in pursuance of which the offence is committed is enough and that abettor concerting the offence with the person who actually commits it is not essential. If A & B have a plan to kill C and B gets D to deliver some poison to kill C and does not mention A’s name to D. D has committed the offence defined under Section 108.

Abetment Outside of India

108A: Abetment in India of offences outside of India would constitute an offence if committed in India. This Section was added to overrule the Bombay High Court decision that said if offence committed outside India, person not liable. For example, if A instigates a foreigner, B, commit an offence while in Goa. A is guilty of abetment.

Variations and Combinations in the concept of Abetment

Even the English Law fixes the criminal liability on accomplices: “Whoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punishment as a principal offender.”

Sections 109-120 prescribe the principles for assessing the extent of punishment liable to be imposed on various types of abettors. There are four factors that come into play for determining the extent of the liability: 1) What act was abetted?					 2) What was his intention in abetting? 3) What was the act that was committed?					 4) With what was the act committed? There are many combinations of intentions and the actual act committed. Thus, the various provisions.

Section 109: If there is no express provision for punishment for abetment if the act abetted is committed, the abettor should be punished with the punishment provided for the offence abetted. For instance, if A instigates B to give false evidence and the latter does so, A will be liable for the same punishment as B.

Where the person abetted does the act with a different intention from that of the abettor, he will be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other as given in Section 110. This shows that any variation between the intention and knowledge of the abettor and those abetted is of no significance for the purpose of fixing liability so long as the act done is the same as the act abetted. The abetted was an innocent agent; he will be treated as respondent superior; if particeps criminis, then he will be liable.

Section 111 talks about the liability of the abettor when one act was abetted and a different one was done. He is liable as if he had abetted that very act itself. Proviso, however, lays down that the act done must be a probable consequence of the abetment or was due to the abettor’s aid or instigation. The principal of constructive liability, i.e., every man is presumed to intend the natural and probable consequence of his act is enunciated here. ‘Probable’ cause has been put in after a lot of thought so as to prevent the abettor for being liable for unusual and unexpected consequences. An illustration: A suggests to a child that he should poison B and then gives the child some poison. The child puts the poison in B’ food. A is liable.

The abettor is liable for cumulative punishment for the act abetted and the act done which was a probable consequence of the abetment as per Section 112. Similarly the abettor is liable in the same manner and extent if the effect intended for by the abettor was a different one from the one actually caused as given in section 113.

If the abettor is present when the offence was being committed, he shall be deemed to have committed such an act/offence as per the section 114. The punishment given will be the same as accorded to the principal offender. The actual presence, coupled with the prior abetment amounts to the commission of the offence. Mere presence will not make a person liable though a presumption of participation rises if the abettor is near enough to provide help in case of need. The section is evidentiary in nature and not punitive. Presence throughout the event is also not mandatory. This section comes into play only once abetment with respect to the crime has been proved, and then the element of presence of accused has to be proved in addition. Even if there was mere instigation by a person, if it was by a person at the scene, the person will be liable.

Punishments Section 115 lays down that one who has abetted an act that is punishable by death or life imprisonment will get imprisonment that can extended up to seven years and be liable for fine too if the offence was not committed. If the offence is committed, the abettor will be liable for imprisonment that can extend up to 14 years and also be liable for fine.

Section 116 deals with punishment for abetment in commission of offences that are punishable with imprisonment. If the offence is not committed, the abettor can be given imprisonment up to 1/4th of the longest punishment prescribed for the offence, be liable for fine or both. If the abettor is a public servant whose duty was to prevent the offence, he is liable for imprisonment up to 1/2 of the maximum period prescribed, for fine or both. The section imposes greater responsibility on the public servants. The Law Commission of India even suggested in its 42nd report on the IPC that the punishment should be made equal to that provided for the offence, but no steps have been taken with regards to the same.

Section 117 deals with abetting commission of offence by public or by more than 10 persons and prescribes imprisonment that may extend up to 3 years, fine or both.

Section 118 deals with the situation where a person facilitates the commission of an offence punishable with death or life imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such and offence or makes misrepresentations. If the offence is committed the person will be liable for imprisonment for a term that may extend to 7 years and be liable for fine. If the offence is not committed, be liable for imprisonment up to a period 3 years and be liable for fine. The concealment must be an active conduct distinguished from passive non disclosure. Mere denial is not punishable, if knowledge that non disclosure is aiding a crime or any intentional act is required for concealment to be punishable under law.

Concealment within Chapter V Section 118 to 120 deal with concealment prior to the commission of crime and sections 202 and 203 deal with subsequent concealment.

Section 119 talks about concealment by a public servant wherein it was his duty to prevent the offence. If the offence is committed, he is liable for 1/2 of the longest imprisonment period prescribed, fine or both. If the offence is punishable with death, the term can extend up to 10 years. If the offence is not committed, he will be liable for 1/4th of maximum imprisonment or fine or both. The underlying concept is that if the law protectors themselves break the law, they should be dealt with more severely.

Conclusion

Chapter 5 is of immense importance. It is rare that offences are committed without help, support and encouragement of others. It is an effort to make people liable for their misdeeds aimed at self-benefit. The planning, the effort and implementation does not come easy to many. The people assisting the wrong doers whether in committing the crime or in getting away are equally guilty as but for their participation, the crime could not have taken place. After all, a robbery is just as successful as the getaway and the look outs keeping trouble at bay, which is not possible without help from outside factors.