Legal Provisions Regarding “Abettor” in India – Section 108 of IPC

Explanation-1:

The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation-2:

To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Illustrations:

(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.

(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder.

Explanation-3:

It is not necessary that the person abetted should be capable by-law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Illustrations:

(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence.

(b) A, with the intention of murdering Z, instigates B, a child under seven years of the age, to do an act which causes Z’s death. B, in consequence of the abetment, does that act in the absence of A and thereby causes Z’s death.

Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is, therefore, subject to the punishment of death.

(c) A, instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation.

B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence.

(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A.

B takes the property out of Z’s possession, in good faith, believing it to be A’s property.

B, acting under this misconception, does not take dishonestly, and therefore, does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.

Eplanation-4:

The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Illustration:

A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment.

Explanations:

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 is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Illustration:

A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name.

C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence.

Here, though A and C have not conspired together yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has, therefore, committed the offence defined in this Section and is liable to the punishment for murder.

Important Points:

A. Where the act abetted is not an offence, the question of offence does not arise. IPC provides punishment only for the abetment of an offence, and not for abetment for mere facts and which are not offences.

B. To constitute the offence of abetment, it is not necessary that the act abetted should be committed or completed or that the effect requisite to constitute the offence should be caused.

C. To constitute the offence of abetment it is not necessary that the person abetted should be capable, by law of committing an offence he may be a minor or a person of unsound mind, etc.

D. The person abetted need not have the same guilty intention or knowledge as that of the abettor.

E. Deep Chand vs. Sampath Raj (AIR 1970 Mys. 34)

The client had given information and instructions to his counsel to ask the witness certain amatory questions during the cross-examination. Relying on the information received from the client, the advocate asked the defamatory questions in the Court. The Court convicted the client not only as an abettor but also as principal offender also.

F. Bribery:

Giving a bribe to a public servant is an offence under Sec. 161. The person, who gives the bribe, is guilty of abetment. If a person, who gives bribe in response of demand accompanied by threats is not an abettor. A person who gives illegal gratification to a public servant even on demand is guilty of abetment under Sec. 109.

G. Abetment in India of offences outside India:

Sec. 108-A explains that 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 an offence if committed in India.

Sec. 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.

H. Punishment of abetment:

Sec. 109 explains the punishment of abetment.

Sec. 109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment:

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation:

An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Illustrations:

(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official function. B accepts the bribe. A has abetted the offence defined in Section 161.

(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence and is liable to the same punishment as B.

(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy and is liable to the punishment for murder.

Problem:

A instigates B and C to murder Z. All the three were prosecuted under Section 302 read with Section 109. The trial Court altered the charges and convicted B and C under Section 304 r//w S. 109, but convicted A under Section 302 r/w 109. Discuss.

Solution:

In Goura Venkata Reddy vs. State of A.P. (2003) 12 SCC 469) case, the Supreme Court held that on facts, conviction of all accused-appellants under Section 302 IPC altered to Sec. 304 IPC. Hence the appellant/accused, which had instigated the other accused persons would be liable to be convicted under S. 304 r/w S. 109 and not under S. 302 r/w 109.

I. Sec. 110 prescribes punishment of abetment if person abetted does act with different intention from that of abettor.

Sec. 110. Punishment of abetment if person abetted does act with different intention from that of 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.

J. Sec. 111 explains the liability of abettor when one act abetted and different act done.

Sec. 111. Liability of abettor when one act abetted and different act done:

When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it:

Proviso:

Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.

Illustrations:

(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z.

Here, if the child was acting under the influence of A’s instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as the food of Y.

(b) A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning.

(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z.

Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for murder.

K. Sec. 112 explains about an abettor when liable to cumulative punishment for act abetted and for act done.

Sec. 112. Abettor when liable to cumulative punishment for act abetted and for act done:

If the act for which the abettor is liable under the last preceding Section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences.

Illustration:

A instigates B to resist by force a distress made by a public servant. B, in consequence resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress.

As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of the offences.

L. Sec. 113 explains about the liability of abettor for an effect caused by the act abetted different from that intended by the abettor.

Sec. 113. Liability of abettor for an effect caused by the act abetted different from that intended by the abettor:

When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect.

Illustration:

A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z, dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death; A is liable to be punished with the punishment provided for murder.

M. Sec. 114 explains about the abettor present when offence is committed

Sec. 114. Abettor present when offence is committed:

Whenever any person, who is 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.

N. Sec. 115 explains about the abetment of offence punishable with death or imprisonment for life if offence not committed.

Sec. 115. Abetment of offence punishable with death or imprisonment for life — if offence not committed:

Whoever abets the commission of an offence punishable with death or imprisonment for life, 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 either description for a term which may extend to seven years, and shall also be liable to fine;

If act causing harm be done in consequence and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

Illustration:

A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life. Therefore, A is liable to imprisonment for a term which may extend to seven years and also to a fine; and, if any hurt be done to Z, in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine.

O. Sec. 116 states abetment of offence punishable with imprisonment if offence be not committed.

Sec. 116. Abetment of offence punishable with imprisonment — if offence be not committed:

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.

Illustrations:

(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official function. B refuses to accept the bribe. A is punishable under this Section.

(b) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless committed the offence defined in this Section, and is punishable accordingly.

(c) A, a police officer, whose duty it is to prevent robbery, abets the commission of robbery. Here, though the robbery be not committed, A is liable to one-half of the longest term of imprisonment provided for that offence, and also to fine.

(d) B abets the commission of a robbery by A, a police officer, whose duty it is to prevent that offence. Here, though the robbery be not committed, B is liable to one-half of the longest term of imprisonment provided for the offence of robbery, and also to fine.

Problem:

Z instigates N to give false evidence before The District Judge in a Murder case. N refuses to do so. Has Z committed any offence?

Solution:

Yes, Z has committed the offence of “Abetment”, even though refuses to solve falseevidence. The problem given above is identical with illustration (b) appended to Section 116.

Problem:

D offers Rs. 10,000/- to Q an Engineer in RW.D. Showing official favour for his works. Q refuses to accept the money and complains. Has D committed any offence? Comment.

Solution:

Yes, D has committed the offence under Section 116. The problem is identical with illustration (a) appended to Sec. 116.

P. Sec. 117 explains about abetting commission of offence by the public or by more than ten persons.

Sec. 117. 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 a procession. A has committed the offence defined in this Section.

Q. Sec. 118 states the concealing design to commit offence punishable with death or imprisonment for life if offence be committed or if offence be not committed.

Sec. 118. Concealing design to commit offence punishable with death or imprisonment for life:

Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design.

If offence be committed:

Shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years; or

If offence be not committed:

If the offence be not committed, with imprisonment of either description, for a term which may extend to three years; and in either case shall also be liable to fine.

Illustration:

A, knowing that a dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this Section.

R. Sec. 119 explains about the public servant concealing design to commit offence which it is his duty to prevent if offence be committed; if offence be punished with death etc., if offence be not committed.

Sec. 119. Public servant concealing design to commit offence which it is his duty to prevent:

Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design.

If offence be committed:

Shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as if provided for that offence, or with both;

If offence be punishable with death, etc:

Or, if the offence be punishable with death or imprisonment for life, with imprisonment of either description for a term which may extend to ten years;

If offence be not committed:

Or, if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

Illustration:

A, an officer of police, being legally bound to give information of all designs to commit robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B’s design, and is liable to punishment according to the provision of this Section.

S. Sec. 120 explains the concealing design to commit offence punishable with imprisonment if offence be committed; or if offence be not committed.

Sec. 120. Concealing design to commit offence punishable with imprisonment:

Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design,

If offence be committed shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and,

If offence be not committed if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

T. Problem:

A instigates B to burn Z’s house. B sets fire to the house and at the same time commits theft of property. Explain the liability of A.

Solution:

This problem is identical with illustration (b) of Sec. 111. A is guilty of abetting the burning of the house. However, he is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning.

U. Problem:

A instigates B to commit robbery in the house of X. B enters into the house of X, and kills X when he is resisted by him. What is liability of A?

Solution:

This Problem is identical to the illustration (c) of Sec. 111. Here, the murder was the probable consequence of the abetment; A is liable to the punishment provided for murder.

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