This article has been written by Sanju Jha (pursuing Ba. Llb from Rnb Global University, Bikaner)
Introduction
Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.
Law keeps a check on human behaviour. It categorizes them into criminal and noncriminal behaviours. However, every non-criminal behaviour even something as simple as buying poison for insects it will become criminal when there are criminal intentions behind it. The concept of abetment widens the horizons of criminal law to incorporate these criminal intentions and penalize them even when the person who bought the poison did not actually kill anyone but handed it over to someone else to do it. To explain the concept of abetment, the word ‘abet’ should be given a deep scrutiny. In general use, it means to aid, advance, assist, help and promote.
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In the case of SANJU V. STATE OF MADHYA PRADESH
[1] The honourable Supreme Court defined ‘abet’ as meaning to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit.
[2] The definition of ‘abet’ as laid down, makes it clear that abetment only occurs when there are at least two people involved, which further directs us towards the arrangement and operation of the act.
In usual parlance, a person is held to be liable only if he or she has personally committed a crime. Detouring from the usual concept, the concept of Abetment says, that he who has helped the criminal or provided him with any assistance in any form can also be held to be liable.
MEANING OF ABETMENT
In common parlance, the word ‘abet‘ signifies help, co-activity and support and incorporates within its ambit, an illegitimate reason to commit the crime. So as to bring an individual abetting the doing of a thing under any of the conditions specified under Section 107 of the Indian Penal Code, it isn’t just important to demonstrate that the individual who has abetted has participated in the means of the transactions yet additionally has been associated with those means of the transaction which are criminal.
ABETMENT UNDER IPC
Chapter 5 of the Indian Penal Code, 1860 deals with offences relating to abetment.
Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.
When more than one person contributes to committing an offence, each person’s involvement may vary. This variation may be either in the manner or in the degree to which the involvement occurs.
For example, one person may procure a gun and hand it over to another who may shoot somebody with it. The former person is guilty of abetment, while the latter commits murder.
DEFINITION OF ABETMENT
The definition of abetment under Section 107, IPC requires a person to abet the commission of an offence. This abetment may occur in any of the three methods that the provision prescribes.
The Section says that abetment basically takes place when a person abets the doing of a thing by:
(1) Instigating a person to do that thing; or (2) engaging with another person (or persons) in a conspiracy to do that thing; or (3) intentionally aiding a person to do that thing.
When any of these requirements exist, the offence of abetment is complete. Sometimes a person may commit more than one of these three circumstances in a single offence.
(1) Abetment by Instigation
Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Instigation may take place either directly or indirectly, by written or oral words, or even by gestures and hints. The instigation must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or a simple suggestion. The Instigator need not even possess mens rea (a guilty intention to commit the crime).
(2) Abetment by Conspiracy
Conspiracy basically means an agreement between two or more persons to commit an unlawful act. Merely intending to commit an offence is not sufficient for this purpose. Thus, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable.
For example, in dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.
(3) Abetment by Aiding
The third manner in which abetment may take place is by intentionally aiding the offender in committing that offence This generally happens when the abettor facilitates the crime or helps in committing it. The intention to aid the offender is very important. For example, merely giving food or clothing to an alleged offender may not be punishable. But giving him food, clothing and shelter to help him hide from the police or commit a crime is punishable.
PUNISHMENT FOR ABETMENT
Abetment of certain offences is punishable under specific Sections of IPC or under other laws. For example, abetment of suicide is punishable under Section 306. However, when no specific provision exists, the abettor will be punished with the punishment prescribed for that particular offence he has abetted.
SECTION.108 ABETTOR
Abetment under the Penal Code involves active complicity on the part of the abettor at a point of time prior to the actual commission of that offence, and it is of the essence of the crime of abetment that the abettor should substantially assist the principal culprit towards the commission of the offence. Nowhere, is concurrence in the criminal acts of another without such participation therein as helps to give effect to the criminal act or purpose is punishable under the Code.
The definition of an Abettor is laid out in Section 108 of the Indian Penal Code. Abettor under this section, means the person who abets (1) the commission of an offence, or (2) the commission of an act, which would be an offence if committed by a person not suffering from any physical or mental incapacity. In the light of the preceding section, he must be an instigator or a conspirator or an intentional helper.
Merely because the accused’s brother was carrying out criminal activities in her house, the appellant cannot be held guilty unless there is some material to show her complicity. The section is coupled with five explanations which are discussed below:
S. 108-A. ABETMENT IN INDIA OF OFFENCES OUTSIDE INDIA.
108-A. Abetment in India of offences outside India.—A person abets an offence within the meaning of this Code who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India.
Illustration
A, in India, instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of abetting murder.
SECTION 109 IPC EXPLAINED
This particular Section 109 of the Indian Penal Code specifies that if no separate or particular provision is provided for the punishment of abetment of an offence, then, the same shall be punishable with the punishment provided for the original offence in the IPC.
Punishment of Abetment under Section 109
Punishment for abetment of certain offences has been stated in specific sections of the IPC (or under other statutes/laws). Abetment for suicide, for example, is punishable under Section 306. However, the IPC does not mention punishment for abetment of each and every offence and this is where Section 109 comes to the rescue. According to Section 109, if no specific provision for punishment of a particular Section has been made under the Indian Penal Code, the punishment that is prescribed for that particular offence (which has been abetted) shall be considered.
Nature of Offence under Section 109
The nature of the offence, i.e. bailable, non-bailable, cognizable, non-cognizable, compoundable or non-compoundable under Section 109 depends upon the nature of the offence committed under the Indian Penal Code.
SECTION 110 IPC PUNISHMENT OF ABETMENT IF THE PERSON ABETTED DOES ACTS WITH A DIFFERENT INTENTION FROM THAT OF THE ABETTOR
Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, 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.
SECTION 111 IPC LIABILITY OF ABETTOR WHEN ONE ACT ABETTED AND DIFFERENT ACT DONE.
Section 111 of the Indian Penal Code continues the development on abetment laws around the phrase “each man is deemed to intend the corollary outcomes of his act.” If one man actuates another to execute specific wrongdoing, and that other, in pursuance of such instigation, execute not just that wrongdoing but carries out another wrongdoing in the advancement of it, the former is criminally liable as an abettor in regard of such last mentioned wrongdoing, in the event that it is one which, as a person with the intelligence of a reasonable man, at the time of inducement would have known to be committed in order to carry out the original crime.
SECTION 112 IPC ABETTOR WHEN LIABLE TO CUMULATIVE PUNISHMENT FOR ACT ABETTED AND FOR ACT DONE.
Section 112 of the Indian Penal Code expands the guidelines articulated in the previous section. Under it, the abettor is held liable for the offence abetted and also the offence committed. Joint scrutiny of Sections 111, 112 and 133 make it richly evident that if an individual abets another in the commission of an offence and the chief goes further from there on and accomplishes something more which has an alternative outcome from that planned by the abettor and makes the offence an aggravated one, the abettor is liable for the consequences of the acts of his principal.
The essence of the issue is an enquiry of this sort is whether the abettor as a sensible man at the time that he is being instigated or has been purposefully supporting the main perpetrator would have predicted the likely results of his abetment.
SECTION 113 IPC LIABILITY OF ABETTOR FOR AN EFFECT CAUSED BY THE ACT ABETTED DIFFERENT FROM THAT INTENDED BY THE ABETTOR.
Section 113 of the Indian Penal Code ought to be read together with Section 111. Section 111 accommodates the doing of the actus reus which is not the same as the one abetted, though this section manages the situation when the actus reus done is equivalent to the guilty act abetted however its impact is not the same.
SECTION 114 ABETTOR IS PRESENT WHEN OFFENCE IS COMMITTED
Whenever any person who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
SECTION 115. ABETMENT OF OFFENCE PUNISHABLE WITH DEATH OR IMPRISONMENT FOR LIFE
If offence not committed, concurrence in the criminal acts of another without such participation therein as helps to give effect to the criminal act or purpose, is punishable under the Code.
The definition of an Abettor is laid out in Section 108 of the Indian Penal Code. Abettor under this section, means the person who abets
(1) the commission of an offence, or (2) the commission of an act, which would be an offence if committed by a person not suffering from any physical or mental incapacity. In the light of the preceding section, he must be an instigator or a conspirator or an intentional helper.
Merely because the accused’s brother was carrying out criminal activities in her house, the appellant cannot be held guilty unless there is some material to show her complicity. The section is coupled with five explanations which are discussed below:
SECTION 116 IPC – INDIAN PENAL CODE – ABETMENT OF OFFENCE PUNISHABLE WITH IMPRISONMENT
If offence be not committed according to section 116 of Indian penal code, Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence;or with such fine as is provided for that offence, or with both; If abettor or person abetted be a public servant whose duty it is to prevent offence? and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.
SECTION 117 IPC ABETTING COMMISSION OF OFFENCE BY THE PUBLIC OR BY MORE THAN TEN PERSONS
Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Illustration
A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place, for the purpose of attacking the members of an adverse sect, while engaged in procession. A has committed the offence defined in this section.
PENALTIES PROVIDED IN SECTIONS 118, 119 AND 120, INDIAN PENAL CODE 1860
According to SECTION 118, any person who intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence shall be punished with death or imprisonment for life. This section also covers that if any person voluntarily conceals by any act or omission or by any other hiding tool, the nature or the process by which the act will be committed, then he/she shall be liable under this section. If the act which is concealed, if committed shall be punished with imprisonment for seven years or fine and if the act if, not committed, shall be punished for three years or fine.
According to SECTION 119 lays emphasis on the guilty of a public servant for committing abetment. If a public servant intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence, which is his duty to prevent, shall be liable under this section. If the act is committed, then the public servant shall be punished with one half of the longest term of such imprisonment or with fine or both. If the act is not committed, then the public servant shall be punished with one-fourth of the longest term of such imprisonment or with fine or both.
According to SECTION 120, if any person who intentionally facilitates or has sufficient knowledge that he/she will thereby facilitate the commission of an offence which has punishment of imprisonment and he/she voluntarily conceals or makes false representation, then if the act is committed, shall be liable for one fourth of the longest term of punishment or fine or both and if the offence is not committed, then he/she shall be liable for one-eighth of the longest term of punishment or with fine or with both.
Case Study
NOOR MOHAMMAD MOMIN V. STATE OF MAHARASHTRA AIR 1971 SC 885
In this appealed case, Noor Mohammad Mohim is accused under section 109 of the Indian Penal Code for abetting other three accused for committing the murder of Mohd Nahya for the passage and the right to tap water. The question before the court was the accused i,e, Noor Mohammad Mohim shall not be liable under Section 109 of IPC.
In this landmark case, the Supreme Court of India held that the ambit of Section 120A i.e., criminal conspiracy is wider than the section under abetment. It covers wider amplitude of illegal commission or omission of an act. Moreover, it was also held that the presence of abettor-accused is not always necessary for abetment by conspiracy in this case.
CONCLUSION
Abetment as a provision has been sufficient both from the view of the offence as well as the penalty for the offenders of abetment. However, with the development of technology and looking at the current scenario, the legislation of India has tried to bring the required changes in this provision. Through the Information Technology (Amendment) Act, 2008, the section has been amended so as to give a wider meaning to the act and omission by the use of encryption or any electronic method.
Therefore, we can say that abetment as an offence is a just and fair law which enhances the principles of natural justice in the legal system.
