Section 107 of Indian Penal Code, 1860 – Explained!

Abetment by instigation

According to the first clause of section 107 of the Code a person abets the doing of a thing who instigates any person to do that thing. What is instigation has, however, not been defined by the Code. But the first explanation under this section, which should be read with the first clause, states that person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

The illustration attached to this explanation also makes the explanation amply clear. A person is said to instigate another when he incites, urges, encourages, goads, solicits, provokes, counsels, procures or commands him to do something. Mere advice generally is not instigation but it may be so where the intention is to actively suggest or stimulate the doing of something.

Where the husband and the mother-in-law of the deceased, by direct and indirect words and conduct treated her cruelly, an actively suggested suicide, as a result of which she committed suicide, they were held guilty of abetment by instigation to commit suicide.

The relations between a married couple were strained and the husband was residing away from the marital home. The wife believed that the husband’s employer was to be blamed for this. She tried to pursuade her husband to return home and threatened that if he would not do so she would bum herself to death. The husband did not respond and asked her to do her best. When she lighted the match on herself in front of her husband and his employer, neither tried to stop her as a result of which she died of burns.

It was held that the two could not be held liable for abetment by instigation to commit suicide as there was no instigation on their part and there was no law under which they were obliged to put off the fire. The court remarked that the law could not be different; otherwise innocent persons would have to be held liable if they failed to comply with unreasonable demands of others.

Where an officer handed over the keys of a cash box to his subordinate clerk who opened the same in his absence and absconded with the money, it was held that only this much of evidence was not enough to hold the officer guilty of abetment by instigation, conspiracy of aiding as his act at most could be said to be negligence or failure in the observance of the office rules.

The Supreme Court has held that it cannot be the law that a person can never be convicted of abetting an offence when the person alleged to have committed that offence in pursuance of that abetment has been acquitted. It is only in case of abetment by intentional aiding that conviction for abetment cannot be maintained when the person alleged to have committed the offence is acquitted of that offence.

The giver of a bribe to a public servant is an abettor of the offence of ‘accepting illegal gratification by a public servant’ whether the bribe is given voluntarily or in response to a demand made.

Where instigation to commit an offence has been given by a letter, the offence of abetment is complete only when the contents of the letter come to the knowledge of the person who is being instigated. Similar rule will apply for instigation through telephone. If the letter or the communication never reaches, it will be a case of attempt of abetment by instigation.

The deceased had ended her life by self-immolation about two years after her marriage when none of the members of the family of her in-laws was present in the house. It was not proved by evidence that it was a case of humiliation and harassment of the woman on account of non-fulfilment of additional demand of dowry.

While holding the mother-in-law of the deceased not guilty of abetment of suicide the Madhya Pradesh High Court observed that the extreme step was probably taken out of frustration and pessimism due to the deceased’s own sensitiveness and sentimentalism.

On the other hand, where the husband used to demand money from his wife almost every day when they used to quarrel also, and on the fateful day the wife reacted by saying that she would prefer death to life in this world to which the husband retorted that she would provide him quicker relief if she died the very same day immediately after which she set herself on fire and died, the very same day immediately after which she set herself on fire and died, the Supreme Court held the husband guilty of abetment by instigation to commit suicide.

In another case, a newly wedded girl died of burns. The evidence of her father and sisters indicated that the deceased had complained about harassment and torture by her in­ laws for bringing insufficient dowry. The in-laws, on the other hand, had been accusing her of carrying an illegitimate child.

The father of the deceased had stated in the F. I. R. itself that the deceased committed suicide because of harassment and constant taunts and torture. There was delay in giving medical assistance to the deceased and the information of the incident was also not promptly communicated to her father.

No burn injuries were found on the finger tips of any member of the family of the accused. It was held by the Supreme Court that the deceased had committed suicide at the instigation of her husband and in-laws and it was not a case of accidental death.

The accused was a member of an unlawful assembly the common object of which was to attack a certain hut and commit assault on remonstrance. He had given order to another member to set fire to the hut which was set on fire and was burnt. This other member was, however, acquitted of the charges under section 436/109 of the Code as the evidence against him by the witnesses was disbelieved.

But their evidence that he had ordered the hut to be burnt and the hut has been burnt were believed. He was thus convicted under sections 436/109. The Supreme Court held that there was nothing wrong in law to believe part of the statements and disbelieve some other parts and, therefore, his conviction was not illegal.

In Cyriac v. Sub Inspector of Police, Kaduthuruthy, the Kerala High Court observed that a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by goading or urging forward. The deceased owed Rs. 200/- to the accused. The accused persons cannot be said to have abetted deceased to commit suicide by merely telling him in public “Why are you remaining as a burden to earth; why can’t you go and die” etc. This is insulting and abusive but not abetment by instigation to commit suicide.

Abetment by conspiracy

The second clause of this section states that a person abets the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. The language is clear to the effect that the basis of abetment by conspiracy is ‘engagement’ between the abettor and other person or persons in conspiracy for the doing of the thing and not ‘agreement’ as stated in section 120-A for criminal conspiracy.

Agreement means putting an intention into effect and naturally, therefore full details of every bit of an act is known to all conspirators. Such is not the case in ‘engagement’ which means that even though all the smallest details of the act are not known, yet one is associated by and large actively in the plan at some stage. Explanation 5 to section 108 of the Code and the illustration appended therein help one to understand as to what really is meant by ’engagement’. The explanation says that 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. The illustration is: A concerts with  plan for poisoning Z. It is agreed that A shall administer the poison.  then explains the plan to Ñ mentioning that a third person is to administer the poison, but without mentioning A’s name. Ñ agrees to procure the poison, and procures and delivers it to  for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence.

Here, though A and Ñ have not conspired together, yet Ñ has been engaged in the conspiracy in pursuance of which Z has been murdered. Ñ has, therefore, committed the offence defined in this section and is liable to the punishment. In this illustration it is worth noting that Ñ does not know who is to administer the poison and when it will be administered, but he does know that the poison would be used for an unlawful purpose and even then he allows himself to be a part of it. This is how he engages in the conspiracy and is, therefore, guilty of abetment by conspiracy.

The distinction between the crimes of abetment by conspiracy and criminal conspiracy has been dealt with under section 120-A of the Code.

In Queen v. Mohil Pandey, a married woman whose husband had died prepared herself to commit suicide in presence of the accused persons who followed her to the funeral pyre and remained there with her step-sons chanting ’Ram Ram’ and one of the accused persons admitted that he had told the woman to say ’Ram Ram’ and she would become ’sati’. It was held that since the above facts proved active connivance and unequivocal countenance of the suicide by the accused person, all were liable for abetment by conspiracy to commit suicide justifying the inference of an engagement on their part.

In Rup Devi v. State, the deceased and his wife had strained relationship. The wife had illicit intimacy with the accused. The deceased was scheduled to go to a ’sadhu’ on a particular day. The wife told the accused about this programme of her husband even though she knew that the accused was waiting for an opportunity to kill him. The accused ambushed and killed him. It was held that on the basis of this much evidence the wife could not be held guilty of abetment by conspiracy even though her conduct was open to censure.

The decision has been criticised on the ground that a complicity between the woman and the accused is easily deducible from the facts of the case. It, however, seems that the court hesitated to draw the conclusion of an engagement between the two which is necessary to convict the woman of abetment by conspiracy and also that the evidence as it existed was not enough to show that the act had taken place in pursuance of that conspiracy.

Where certain persons prepared a copy of an intended false document, bought stamp paper with a view to prepare such a document and asked for certain information regarding a fact which they had an intention to insert in that false document, it was held that all these evidence showed that they were acting under an engagement to commit forgery because these acts were done to facilitate the commission of that offence.

Abetment by aiding

The third clause of this section states that a person abets the doing of a thing who intentionally aids, by any act or illegal omission the doing of that thing. The clause should be read with the second explanation according to which whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Mere aiding is not enough under this clause.

The same must be intentional. The abettor must aid intentionally by any act or illegal omission the doing of that thing. An illegal omission takes place where there is a legal duty to act but the person fails to act. The Explanation clarifies that aiding is possible only either prior to or at the time of commission of an act and not after an act has already been committed.

It also explains that in abetment by aiding something must be done in order to facilitate the commission of an act and also that such doing must facilitate the commission thereof. This, therefore, means that mere intention to facilitate coupled with an act calculated to facilitate is not sufficient to constitute abetment by aiding unless the act which is intended to facilitate in fact takes place and is facilitated thereby. Huda gives an illustration that if a servant keeps open the gates of his master’s house so that thieves may enter, and thieves do not come, he cannot be held to have abetted the commission of theft.

Where the accused persons tried their utmost to dissuade a woman from committing suicide by becoming ‘sati’, and even informed the police about it, but ultimately finding it impossible to dissuade her, complied with her and helped her in the process, it was held that they were liable for abetment by intentional aiding of suicide.

Where the accused allowed an illegal marriage to take place at the accused’s house, no liability for abetment by aiding exists because the facility given must be such as is essential for the commission of the offence in question. On similar grounds giving consent to be present in an illegal marriage, or being actually present in it or giving facility by grant of accommodation for such a marriage to take place will not make one liable for abetment by aiding, but a priest who solemnized an illegal marriage intentionally and thereby facilitated such marriage to take place was held liable for abetment by aiding.

Where a person supplies food to a person whom he knows to be engaged in committing crime, that by itself does not make him liable for abetment by conspiracy. But if the food has been given in order to make him undertake a journey to the place where the crime is scheduled to be committed, or to enable him to conceal himself at a convenient place while waiting for the appropriate moment to commit the crime, the act of giving food may amount to facilitating the commission of the crime which does facilitate it.

Where the accused entered into a parlour without having knowledge as to what kind of a film was going to be exhibited there, he could not be held liable for abetment by aiding obscenity even if blue film was being exhibited there.

Where a head constable intentionally went away from the place knowing fully well that third degree methods would be used against a person there with a view to extort confession from him, it was held that he was guilty of abetment by aiding.

Where a married pregnant woman had not eaten anything for three or four days before committing suicide and the atmosphere in their home before the suicide was very tense and her husband and in-laws did not pursuade her to eat, it was held that husband and the in-laws could not be said to have abetted her by aiding to commit suicide and it seemed to be a case of a sensitive woman not being able to put up with the normal pressures of life.

In Daya Ram Phukan v. State, a person was charged with having accepted a bribe of Rs. 100/- from another and the accused with abetment by aiding of this offence. The charge of bribery could not be proved and the person was acquitted of the charge. The Assam High Court held that with the acquittal of the alleged principal offender the accused could not be held guilty of committing the offence of abetment by aiding. The decision of the Supreme Court in Faguna Kanta Nath v. State, was thus relied on in this case.

In Sundar v. State of U.P., the Allahabad High Court held that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed the same has been acquitted.

In Trilochan Singh v. Karnail Singh, the respondent was charged, inter alia, with having entered into an agreement with two influential leaders of the Harijans that if the Harijans voted for him he would donate a sum of Rs. 1500/- towards construction of a ‘dharmshala’ for them. The amount was paid on this understanding in presence of the accused who was charged with the offence of abetment.

The Punjab High Court held that the failure on the part of the accused to inform the authorities about the transaction did not make him liable for abetment by aiding as there was no legal obligation on him to inform the authorities about it and not informing them, therefore, did not amount to illegal omission. The decision would remain the same even if the accused had intentionally done so because even then it would not be an illegal omission on his part.

In Tej Singh v. Stated a widow was walking along with other persons at the funeral procession of her husband with the intention of committing ‘sati’. The processionists were chanting ‘sati mata ki jai’. About 100 or 150 processionists surrounded the police with a view to prevent it from acting. The funeral pyre was lit with the widow sitting on it. Twelve accused persons had been identified who had taken active part right from the stage when the widow’s husband had died. The Rajasthan High Court convicted all the twelve persons holding that all of them had intentionally aided the widow to commit ‘sati’.

A Police Officer is under a legal duty to provide shelter to a person who is under his custody, and to arrest such persons who are committing assault on such persons with the intention of causing grievous hurt to him, and if he fails in his duty it is an illegal commission on his part. If such failure is intentional, he is guilty of abetment by intentional aiding.

Where the accused sought the aid of a servant to commit theft in the servant’s master’s house, and the servant, with the consent of his master, and for procuring the arrest of the accused, aided him in carrying out his intention, it was held that though theft could not be committed yet the accused was guilty of abetment of theft.

In Ram Kumar v. State of Himachal Pradesh, the 19 year old prosecutrix was taken to the police station by the accused who kept a watch over her husband while she was being raped by the co-accused. In this custodial rape the accused turned deaf ears towards the cries of the prosecutrix and did nothing to help her. The Supreme Court upheld the conviction of the accused for abetment of rape.

In Central Bureau of Investigation v. V. C. Shukla, the Supreme Court held that where no prima facie case was made out against one of the accused of having committed an offence under section 7 of the Prevention of Corruption Act, 1988 the question of another accused committing an offence under section 12 for abetment by aiding does not arise.

An abetment being a complete offence in itself its attempt is punishable under section 511 of the Code.

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