The section deals with the situation when the abettor is present while the act or the offence abetted is being committed and in such a situation he shall be deemed to have committed the act or the offence. The use of the expression ‘shall be deemed to have committed’ in this section creates a legal fiction which means that even though the abettor himself does not commit the act of the offence, the law shall presume that the same has been done or committed by him.
For this section to apply it is necessary that the abettor’s liability as an abettor is first established. If same is not the case, the section can have no application. The section incorporates what in English law is known as ‘principal in the second degree’. The principle underlying this section is that actual presence of the abettor plus prior abetment on his part which makes him liable as an abettor, can mean nothing except his own participation in the act or the offence.
The section is brought into operation when circumstances amounting to abetment of a particular act or crime, for which he is liable as an abettor, have first been proved, and then the presence of the abettor at the commission of the act or the offence is proved in addition.
Sections 34 and 114 of the Code
Section 34 says that whenever a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for the same as if the act were done by him alone. On the other hand, section 114 deals with such cases only where an abettor has first committed an abetment for which he is liable as an abettor, and then he is present while the act or the offence for which he is liable as an abettor is being committed, and in such cases he shall be deemed to have committed the act or the offence. The distinction is fine, real and appreciable.
Sections 109 and 114 of the Code
Section 109 states that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by the Indian Penal Code for the punishment of such abetment, be punished with the punishment provided for the offence. On the other hand, according to section 114, whenever any person, who if absent would be liable to be punished as an abettor, is present while the act abetted is being done or committed, the law shall presume that it is he who has committed the act.
Therefore, while the former lays down the principle that an abettor, whose act abetted has been committed in consequence of the abetment and there is no specific provision in the Code for its punishment, shall be punished with the punishment of the offence itself, the latter emphasises the principle that an abettor when present at the time of commission of the act abetted, shall be deemed to have committed the act provided initially he was liable as an abettor.
The accused, on the basis of the false affidavit, attempted to take possession of a truck belonging to the complainant. Though he did not put his thumb impression on the affidavit as the deponent, he did identify a person as the deponent before the Oath Commissioner on the basis of which identification the Oath Commissioner attested the document.
The accused was held liable for the abetment of forgery under section 467 read with section 114 of the Code because the identification of the deponent by the Oath Commissioner was necessary for the bringing of a complete forged document into existence.
The accused by impersonating the real owner got registered a sale-deed in respect of a mortgaged property. In this task she was aided by another person in whose favour the sale was made. When the mortgagor filed a suit for redemption and a criminal complaint against the accused and the other person, the sale-deed was not put up in defence in the redemption suit.
The Supreme Court held that the offence under section 193 of the Code had not been committed since the fabricated sale-deed was not put up in evidence in the redemption suit but the accused and the other person were both guilty of forgery under section 467 and section 467 read with section 114 of the Code.
Mere allegation that the accused were present in the bigamous marriage and they threw sacred rice over the couple and blessed them both does not make them guilty under sections 494 and 114 of the Code as there was nothing to show that they intentionally aided the commission of the offence of bigamy.
Where the ‘antarpat’ was held by the accused and it was done with full knowledge that the marriage was a bigamous marriage, the act of the accused falls within the purview of explanation 2 of section 107 of the Code even though the act of holding the ‘antarpat’ was done prior to the performance of marriage, as abetment by aiding may also take place prior to the commission of the offence as per this section and the second explanation.