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AIDING AND ABETMENT LAWS IN INDIA


Authored By- Tanvi Gupta

Keywords: Abetment, instigation, illegal omission, conspiracy, and punishment

Abstract

Abetment refers to inducing someone or aiding someone for the commission of a crime. The abetment can occur in one or more ways such as instigation, conspiracy, and intentional aid. There cannot occur abetment without knowledge or intention. The abettor of the offence may or may not be present at the time of the commission of a crime. The punishment for abetment is can be imprisonment, life imprisonment, or death sentence depending on the gravity of offence. The abetment can also be done by concealing facts before or after the commission of a crime. Furthermore, it can be done by any individual or public or any public servant.

Introduction

When any person doesn’t commit any crime himself, he can either induce or command or induce any third person to commit a particular crime and hence, being guilty of the offence of abetment. The term abetment in criminal law indicates the difference between the person abetting the commission of a crime and the principal offender. Under English law, the person who assists or aids others is known as accessories. Accessories are further classified into three types: before the fact, at the fact, and after the fact. The purpose of recognizing laws for abetment is to punish everyone who instigates or support any commission of a crime.

Meaning and definition of Abetment

Chapter V of IPC, 1860 throws light on the liability for the crime of Abetment. Abetment as defined under section 107 of IPC, 1860 refers to either instigating any person or engaging one or more persons in conspiracy or intentionally aid by an act or omission. Abet generally refers to assist, advance, or aid. Section 108 defines Abettor as 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.

The major difference between Section 107 and 108 of IPC, 1860 is the former describes the “abetment of a thing” while, latter defines “abetment of an offence”. Section 107 and 108 works hand in hand, if a person who has abetted a thing is not an offence, he will not be liable for abetment and won’t be punishable under law.

There is an element of Mens Rea present in abetment. Mens Rea is a Latin word meaning “guilty mind” or mental element in crime. As can be gauged from a plain reading of section 107 of IPC, it is clear that there must be instigation or conspiracy or intentional aiding to commission a crime. It is held in various cases that to prove a person guilty it is not only important to prove that he took part in an innocent process but also connect him to the criminal intent. However, it was held in the case of Bachchan Lal vs The State[1] if a person is aiding someone without an intent or knowledge of end result, he cannot be referred as an abettor. The position is different in cases where mens rea is not necessary to be present there the court held “when no mens rea is essential in the substantive offence, the same is also not necessary in the abetment thereof”[2]

Abetment by Instigation

A person is said to ‘instigate’ another to an act when he actively suggests or stimulates him to act by any means of language. Instigate means to provoke, incite, or to urge to do anything. However, it is not necessary that those words must instigate the other but they should be suggestive of consequence by words or conduct. For making a person guilty of abetment it is necessary either to prove he instigated or had the intention in the commission of the offence. A mere silent spectator without intent cannot be referred to as an abettor. Instigation may be personal or through a letter or a third party. When instigation is made through a letter, it is referred to as abetment from the moment the letter is received and suit can be filed where the letter is received. Another form of instigation is by approving an act. Also, instigation can be made by willful misrepresentation or concealment of facts which was the duty of others to disclose. Advice per se cannot be abetment until it was actively suggesting for the commission of a crime.

Abetment by Conspiracy

The second form of abetment is by engaging one or more persons in a conspiracy of a thing. Three elements which need to be fulfilled for abetment by conspiracy are firstly involvement of abettor with one or more person; secondly, the conspiracy was abetted for a thing; and an act or illegal omission has taken place in presence of conspiracy for a thing. The abettor doesn't need to concert the offence with the person who commits it. The difference between conspiracy under Section 120-A and abetment by conspiracy under Section-107 is in the latter one there must be an unlawful act or illegal omission to constitute an offence. However, in conspiracy mere agreement of a thing leads to offence. Hence, it can also be deduced when a conspirator withdraws from any conspiracy before commissioning of an act, he won’t be held liable.

Abetment by Intentional Aiding

To constitute abetment, the abettor must be shown to have ‘intentionally’ aided the commission of an offence. Three components that may constitute Intentional aiding are: either doing of an act directly assisting the commission of a crime, or illegally omitting to do something he or she is bound to, or doing an act which may facilitate the commission of a crime. Mere failure on part of a person to stop the commission of an act doesn’t lead to abetment until the presence of mens rea.

To prove an act by “illegal omission” it is important to prove that a person tried to refrain from doing a thing he was legally bound to do. When the law imposes a duty on a person, his discharge of such duty leads to a criminal offence. For example, if a person gives a car to a minor for driving and an accident occurs; he will be liable for the abetment of illegal omission.

Presence of Abettor when the offence is committed

Section 114 of IPC, 1860 lays down three essentials: firstly, abetment should be before the offence; secondly, it should be complete itself and, the abettor must be present at the time of the commission of an offence. It has been stated that prior abetment and actual presence is irrebuttable and referred to as prior participation.

Punishment of Abetment

The law of abetment can be further classified into four subheads, the act abetted, the intention of an act done, the abettor, and the principal offender. Section 109 of IPC, 1860 lays down punishment for abetment. To invoke this section there must be abetment of an offence which is a consequence of an act abetted and lastly, there should be no expressed punishment for such abetment in any other law. It is invoked when there is no difference between intention and act. However, a person is liable under Section 110 if, the person who abetted an act has different knowledge or intention from the abettor. This doesn’t deduce that a person abetted won’t be liable. If he is innocent, he will be held respondeat superior. If he was an equal participant, he will be held the same as his mentor.

Section 111 provides for punishment when the act abetted is different from the act done. It states that the abettor will be liable in the same manner to the same extent as if he had directed to abetted it. For example, if X instigated A to kill Y and A by mistake kills Z; then X will be held liable as he was to kill Y.

Under section 112 an abettor may render himself liable for two offences when he only intended to bring about one, if the one which he intended caused another which he ought to have anticipated, and if the two are distinct offences to be subject to distinct punishments. In Section 112 the punishment of abettor is contingent on the act. However, in Section 113 the requirement for “knowledge of the likelihood of the effect” has been provided. In this section fact of a case play a major role.

Section 115 covers those abetments whose punishment is death or life imprisonment and which act abetted does not take place. On the other hand, Section 116 covers the abetment of another type of offence whose punishment is other than life imprisonment. Imprisonment is one-fourth of the maximum term of imprisonment. However, for a public servant whose duty under law is to prevent crime but he abets crime, he is liable for half of maximum imprisonment.

Section 117 lays down the punishment of abetment committed by the public. If any act is done by a person exceeding ten. It deals with an aggravated form of abetment and refers to offences abetted by the public generally.

Section 118- 120 deals with punishment for abetment by concealing design to commit crimes. It deals with concealment before the commission of a crime. Concealment must be the result of active conduct as distinguished from passive non-disclosure. Section 119 is an adaptation of section 118 and it applies to public servants whose duty is to prevent the commission of a crime. However, Section 202 and 203 of IPC, 1860 which deals with concealment after the commission of the offence.

Conclusion

Section 108A puts abetment of offences to be committed outside India on the same footing as the abetment of offences to be committed in India. Abetment has been prevalent in India from the time dowry and sati practices existed. There have been a plethora of cases where husband and mother- in- law have abetted women by instigating to commit death. There are instances which prove that the deceased had no other recourse than to commit suicide, it amounts to abetment by instigation. There were several reforms suggested by the fifth commission and those reforms were upheld by fourteen commission and also approved relevant clauses of the bill. However, the amendment bill lapsed due to the dissolution of the Lok Sabha.



[1] AIR 1957 All 184 [2]Kartar Singh vs State of Punjab, (1994) Cr. LJ 3139 (SC)