ABETMENT

Under the Penal Code a person becomes liable as an abettor if he instigates

another to commit a crime, or engages in a conspiracy with another to
commit a crime and some act is done in furtherance of such conspiracy or if
he intentionally aids another in order to facilitate the commission of a crime.
The term 'abet' in general usage means to assist, advance, aid, conduce, help
and promote. The word 'abet' has been defined as meaning to aid; to assist
or to give aid; to command, to procure, or to counsel; to countenance; to
encourage; induce, or assist, to encourage or to set another one to commit. 6

The term 'abetment' in criminal law indicates that there is a distinction

between the person abetting the commission of an offence (or abettor) and
the actual perpetrator of the offence or the principal offence or the principal
offender. Chapter V of the IPC on 'Abetment' provides for the law covering
the responsibility of all those considered in law to have abetted the
commission of offence. The chapter on abetment contains 15 sections.
Section 107 which defines abetment generally speaks of three kinds of
abetment, viz., abetment by instigation, abetment by conspiracy and
abetment by aid. Section 108 explains as to when an abetment of an offence
takes place, and S. 108-A provides for the case of abetments-in India of an
offence committed in a foreign country. Section 109 prescribes the
punishment for the offence of abetment when the offence abetted is
committed, while S. 110 prescribes the punishment for abetment where the
person abetted commits the act with a different intention or knowledge
from that of the abettor. Section 111 provides for cases of abetment
resulting in a different offence but which is a probable consequence thereof.
Section 112 provides for cumulative punishment in cases covered by S. 111.
Section 113 which is supplementary to S. I l l provides for punishment in
cases where the act abetted causes a different effect from that intended by
the abettor. Section 114 provides for cases where the abettor is present at
the time of the offence, and makes him liable for the main offence and not
merely as an abettor. Sections 115 and 116 prescribe for the punishment in

6. Kartar Singh v. State of Punjab, 1994 Cri LJ 3139; See also Sanju v. State of Madhya
Pradesh, (2002) 5 SCC 371.
ABETMENT 149

cases where the offence abetted is not committed. Section 117 deals with
abetment of offences by the public generally or large groups of persons.
Section 118 prescribes the penalty for concealing the existence of a design in
another to commit a grave offence. Sections 119 and 120 provide for
punishment in the case of public servants and others respectively for
concealment of a design in another person to commit the offence not
covered by S. 118.
According to S. 107, IPC, a person abets the doing of a thing when he:
(i) Instigates a person to commit an offence; or
(ii) Engages with one or more persons in a conspiracy to commit an
offence; or
(iii) Intentionally aids a person by any act or illegal omission to commit
an offence or illegally omits the doing of an act which would
prevent the commission of the offence.
An act done under criminal intimidation cannot constitute an abetment.
Thus, where money was obtained by extortion, by way of bribe, the person
who gave the money would not be an abettor of the offence of taking
bribe. 7 But the offence of abetment will not require any kind of metis rea
where the provision relating to the substantive offence itself makes no
reference to mens rea and abetment of the offence is coupled together with
the main offence itself in the same provision. 8 It was held by the Orissa
High Court 9 that the giver of a bribe would be an abettor even if he gave it
in response to a demand accompanied by threats. This view cannot be
considered good law. There can be no criminal intention or mens rea on the
part of the giver in such a case as held in Dulpat Singh v. State of Rajasthan10
wherein the Supreme Court observed11:
Those who gave illegal gratification to the appellants (Reserve
Police constables) cannot be considered as accomplices as the
same (bribe) was extorted from them.
The Supreme Court while considering the vahdity of TADA, 1987, n stated
that 'when mens rea is not essential in the substantive offence, the same is

7. Dalpat Singh v. State ofRajasthan, AIR 1969 SC 17 (20): 1969 Cri LJ 262; see also AIR
1952 Orissa 289 (299): 1952:Cri LJ 1533 (DB).
8. (1909) 9 Cri LJ 393 (397) (DB) (Cal).
9. Biswabhusan Naik v. The State, AIR 1952 Orissa 289 (299) : 1952 Cri LJ 1533 (DB).
[Vol. 1] 3 IPC 42.
10. Dalpat supra note 7.
11. Ibid.
12. Terrorist and Disruptive Activities (Prevention Act) 1987 popularly referred to as
TADA Act.
13. Supra note 1, para 69 at 451; see also State of Maharashtra v. Abdul Aziz,, AIR 1962
Bom 243.
150 ESSAYS O N THE INDIAN PENAL CODE

also n o t necessary in t h e a b e t m e n t thereof. 1 3 H o w e v e r , in t h e specific

context of the provision of 'abetting' provided in S. 2 (l)(a) of T A D A , the
Supreme C o u r t held thus: 1 4
[ A ] c t u a l k n o w l e d g e o r r e a s o n t o believe o n t h e p a r t of t h e
person t o be roped in w i t h the aid of that definition s h o u l d be
read i n t o it...and clause (1) of the definition 2(l)(a) s h o u l d be
read as m e a n i n g ' t h e c o m m u n i c a t i o n or association w i t h a n y
person or class of persons w i t h the actual knowledge or having
reason t o believe that such person or class of persons engaged in
assisting in any m a n n e r terrorist and disruptionist activities; so
that the object and purpose of that clause m a y n o t otherwise be
defeated and frustrated.

II

Abetment by instigation: T h e w o r d 'instigate' literally means t o goad, urge

forward, p r o v o k e , incite, or encourage to d o an act and a p e r s o n is said t o
instigate a n o t h e r w h e n he actively suggests or stimulates h i m t o the act by
a n y m e a n s , or language, direct or indirect, w h e t h e r it t a k e t h e f o r m of
express solicitation or of hints, insinuation or encouragement 1 5 or a willful
m i s r e p r e s e n t a t i o n o r willful c o n c e a l m e n t of a m a t e r i a l fact. 1 6 It is n o t
necessary t h a t express w o r d s s h o u l d be used t o indicate w h a t s h o u l d be
d o n e b y the person t o w h o m the directions are given. 1 7 While there has t o
be a reasonable c e r t a i n t y in regard t o t h e m e a n i n g of t h e w o r d s used in
o r d e r t o decide w h e t h e r there was incitement, it is n o t necessary in law to
p r o v e t h e actual w o r d s used. 1 8 Advice a m o u n t s t o instigation o n l y w h e n
i n t e n d e d t o actively suggest or stimulate t h e c o m m i s s i o n of an offence.
M e r e acquiescence does not a m o u n t to instigation. T h u s the w o r d denotes
incitement or urging to do some drastic or unadvisable action or to stimulate
or incite. Presence of mens rea, therefore, is the necessary c o n c o m i t a n t of
instigation. It is c o m m o n knowledge that the words uttered in a quarrel or in
a spur of the m o m e n t cannot be taken to be uttered with mens rea required to
c o n s t i t u t e instigation as t h e y are u t t e r e d in a fit of anger a n d e m o t i o n a l
state. 1 9

14. Kartar Singh, supra note 1, para 80 at 453.

15. (1977) 81 Cal W N 713 (723);1977 Cri LJ (NOC) 96 (DB) ; AIR 1923 Bom 44 (2)
(46): 23 Cri LJ 466; AIR 1924 Lah 440 (444) : 26 Cri LJ 1352 (DB).
16. See Explanation 1.
17. (1977) 81 Cal W N 713 (723): 1977 Cri LJ (NOC) 96 (DB).
18. AIR 1957 All 177 (183): 1957 Cri LJ 337 (DB).
19. See Swamy Prahaladdas v. State ofM.P. & Am., 1995 Supp. (3) SCC 438; Mahendra
Singh v. State ofM.P., 1995 Supp. (3) SCC 731; Ramesh Kumar v. State o/Chhattisgarh,
(2001) 9 SCC 618 : 2001(4) RCR (Cri.) 537 (SC); Seeta Hemchandra Shashittal v. State of
Maharashtra, (2001) 4 SCC 525.
ABETMENT 151

In Queen v. Mohit20 the persons who followed a woman preparing

herself to be a sati on the pyre of her husband and chanted, Rama, Rama
were held guilty of abetment by instigation to lead that woman to commit
suicide. Their approval of the woman's act by participation in the procession
gave encouragement to the lady to commit suicide.
A person may incite another by threats or pressure as well as by
persuasion. 21 Incitement may be by expression or implication. The mere
incitement of another to commit an indictable offence is a common law
misdemeanour, whether the incitement is successful in persuading the other
to commit, or to attempt to commit the offence or not. It was so held in the
leading case of Higgins22 where Lord Kenyon said:23
It is argued, that a mere intent to commit evil is not indictable,
without an act done; but is there not an act done, when it is
charged that the defendant solicited another to commit a felony?
The solicitation is an act: and the answer given at the bar is
decisive, that it would be sufficient to constitute an overt act of
high treason.
Incitement to commit any criminal offence, even an offence triable only
summarily, amounted to a misdemeanour at common law. It was highly
anomalous that the mere incitement should be regarded as more serious
than the actual commission of the offence, even though the use of the
greater powers of sentencing might be defensible where the incitement was
to commit a large number of summary offences.24
For the purpose of the first two clauses of the S. 107, it is immaterial
whether the person instigated commits the offence or not or the persons
conspiring together actually carry out the object of the conspiracy 25 or
the act abetted must be c o m m i t t e d . The offence of abetment is a
separate and distinct offence. 26 As observed by the Supreme Court in

20. (1871) 3 NWP 316, Protima Dutta, (1977) Cr LJ 96 Cal p. 55 Husband and mother-in-
law were held guilty of abetment of suicide of the deceased (lady), to whom the
accused by their conduct and by direct and indirect words suggested that she
committed suicide. In State v. Walden, (1982) 53 NC App 196; 280 SE 2d 505, the
Supreme Court of Carolina (USA) held that a mother is guilty of aiding and abetting
the assault on the ground that she was present when her child was assaulted, but
failed to take reasonable steps to prevent the assault.
21. Rac Relations Board v. Applin, [1973] QB 815 at 827, CA, Civil Div., per Lord Denning
MR, followed in Invicta Plastic Ltd v. Clare, [1976] RTR 251, [1976] Crim LR 131,
DC.
22. (1801) 2 East 5.
23. Id. at 170.
24. As in Curr, [1968] 2 QB 944, [1967] I ALL ER 478, CA; SHC 246.
25. Faguna Kanto v. State ofAssam, 1959 Cr LJ 917: AIR 1959 SC 673.
26. 1972 Pat LJR 158 (Pr 12).
 4

152 ESSAYS OF INDIAN PENAL CODE

Jamuna Singh v. State of Bihar?7

T h e offence of a b e t m e n t is complete w h e n the alleged a b e t t o r
has instigated another or engaged with another in a conspiracy to
c o m m i t t h e offence. It is n o t n e c e s s a r y for t h e offence of
abetment that the act abetted must be committed.
Similarly in Madan Raj v. State ofRajasthan2i the Supreme C o u r t observed: 2 9
As a general rule a charge of abetment fails w h e n the substantive
offence is n o t established against the principal but there m a y be
exception. A b e t m e n t of an offence being a distinct offence b y
itself, the question w h e t h e r a conviction for a b e t m e n t can be
made in a case where the accused is charged w i t h the substantive
offence o n l y a n d n o separate charge for a b e t m e n t has b e e n
framed will depend u p o n the circumstances of each case. If the
accused had notice of the facts, which constituted abetment, and
if there had been n o prejudice to the accused b y the omission t o
frame a separate charge for abetment, he can be c o n v i c t e d for
a b e t m e n t even t h o u g h the charge for the m a i n offence fails.
It is o n l y in the case of the person abetting an offence by intentionally
aiding a n o t h e r t o c o m m i t that offence that the charge of a b e t m e n t against
h i m w o u l d be expected t o fail w h e n the person alleged t o have c o m m i t t e d
t h e o f f e n c e is a c q u i t t e d of t h a t o f f e n c e . 3 0 W h e r e , s e v e r a l p e r s o n s
constituting an unlawful assembly, some only were armed w i t h sticks, and
one of t h e m was not so armed, but picked u p a stick and used it, the person
w h o gave a general o r d e r t o beat, was held guilty of a b e t t i n g t h e assault
m a d e b y t h e m . 3 1 In cases w h e r e the a b e t m e n t consists of i n s t i g a t i o n or
conspiracy, it is immaterial for the conviction of the a b e t t o r w h e t h e r the
p e r s o n instigated c o m m i t s the offence or not. 3 2
W h e r e a forged receipt had been b r o u g h t i n t o existence a n d it was
intended by the parties that it should be attested by a certain person and that

27. AIR 1967 SC 553 at 554 : 1967 Cri. LJ 541. [See also (1887) 10 Mys. LR No. 398 0.
1087 (1088). (Abetment of fabrication of false evidence.)]
28. AIR 1970 SC 436 at 439 : 1970 Cri LJ 519.
29. AIR 1956 Andh 31 (32) : 1958 Cri LJ 37 (DB); see also AIR 1953 Madh Bha 17 (20)
: 1952 Cri LJ 246; AIR 1952 Raj 123 (128): 1952 Cri LJ 1136 (DB); AIR 1948 All 79
(79): 48 Cri LJ 1007; 1947 Rang LR 137; AIR1931 Oudh 274 (276) : 32 Cri LJ 905
(DB); AIR 1928 Lah 382 (390) : 30 Cri LJ 18 AIR 1915 Low Bur 39 (45): 16 Cri LJ
676 (DB); (1903) 7 Cal W N 556; (1895) ILR 19 Bom 105 (109) (DB); (1874) 1 Bom
HCR (AC) 240 (241, 242).
30. Jamuna Singh v. State ofBihar, AIR 1967 SC 553.
31. Hemcmt Kumar Mondal v. State ofW.B., 1993 Cr LJ 82 (Cal).
32. AIR 1967 SC 553 (554, 555): 1967 Cri LJ 541; A 1924 SC 673 (675, 676): 1956 Cri LJ
917; AIR 1924 Bom 303 (304): 25 Cri LJ 1102 (DB); (1910) 11 Cri LJ 264 (266) (DB)
(Bom).
ABETMENT 153

person attested it subsequently, it was held that in view of the said intention,
the offence of forgery was complete once it was so attested. Therefore, the
person was held guilty of abetment. 33
Instigation as a form of abetment has generally been one of the essential
considerations in cases involving death of young brides or women within
seven years after marriage, as a consequence of dowry harassment. The apex
court has laid down that before anybody can be punished for abetment of
suicide, it must be proved that the death in question was a suicidal death. 34
In Protima Dutta v. State ofWB35 a charge under S. 306 read with S. 34, IPC
was laid against the mother-in-law of the deceased and her husband of
having abetted the commission of suicide by instigating and inciting her.
The evidence revealed many circumstances which showed that the mother-
in-law suggested to the deceased by conduct, language direct or indirect
expressions to commit suicide. Although, it did not amount to express
solicitation, but her cruel conduct towards the deceased over the months
made the deceased suffer mentally. Therefore, the series of conduct
amounting to actively suggesting or stimulating the deceased to commit
suicide, it was held, clearly amounted to instigation. 36 Where one person
instigates another to the commission of an offence by means of a letter sent
through the post, the offence of abetment by instigation is completed as
soon as the contents of such letter become known to the addressee.37 If the
letter never reaches him the act is only an attempt to abet.
In the context of bride-burning and dowry related deaths, S. 306 which
provides for abetment of suicide, is often pressed into service. Here too,
abetment is in terms of promoting, encouraging and thereby instigating
suicides. A plethora of cases exists on this aspect.38 Iqbal Singh's^ case was
referred to and relied upon by the Madhya Pradesh High Court in Ram
Kumar v. State o/MP,w which considered the case of suicide committed by a
woman who was married for twenty years during which her husband
continuously treated her cruelly and demanded divorce. The husband had
been convicted by the trial court for abetting the suicide under S. 306, IPC
and sentenced to four years rigorous imprisonment and fine of Rs 1000. The
high court held that while asking for divorce by itself cannot be called

33. AIR 1942 Mad 92 (93): 43 Cri LJ 227.

34. Wazir Chand v. State ofHaryana, AIR 1989 SC 378; Ramesh Chandra Mondal v. State,
1991 Cr LJ 2520 Cal.
35. (1977) 81 Cal WN 713.
36. 1977 Cri LJ (NOC) 96 (Cal).
37. Sheo Dial Mai v. State ofU.R, (1894) 16 All 389.
38. See for example State ofPunjab v. Iqbal Singh, AIR 1991 SC 1532 and Pawan Kumar v.
State ofHaryana, AIR 1998 SC 958, para 22 at 965.
39. AIR 1991 SC 1532.
40. 1998 Cri LJ 952, para 28 at 959.
154 ESSAYS OF INDIAN PENAL CODE

provocation to commit suicide, it is the cruelty and the overall atmosphere

created by cruelties precedent and antecedent of such demands of divorce,
which are material and which had the effect of leading the deceased person
to take poison to end her life. The word 'instigate', it was held, should not
be given restricted meaning to actual words spoken, but ought to be given a
wider meaning commensurate with the 'ordinary experiences of life'. While
every case has to be examined against the specific circumstances and facts of
that case, in the present case, it was the cruel conduct of the accused-
husband which provoked his wife to commit suicide. Hence, he was rightly
convicted of abetment to commit suicide under S. 306 I P C , and the
sentence was not interfered with.
In Ram Kumar v. State of HP,*1 the Supreme Court considered the case
of a constable who dragged a young newly married 19-year-old girl and her
husband from the latter's brother's house. In the police station, the head
constable took the girl to a room, repeatedly beat her and committed rape
on her, while the other constable kept watch in outside holding the hapless
husband, who was helplessly hearing the frantic screams of his wife. The
Supreme Court held that the constable by his conduct had abetted rape and
therefore, did not merit acquittal.
In Saju v. State ofKerala,42 a young woman, Jameela, was found killed. At
the time of her death, the deceased was in advance stage of pregnancy.
Upon trial the two accused were found guilty of the offences punishable
under Ss. 120-B and 302 besides S. 109 of the Indian Penal Code. Aggrieved
by the judgment of the Sessions Court, both the accused persons filed
appeal before the High Court, which was dismissed. The apex court held
that there is no direct evidence either regarding abetment or the criminal
conspiracy attributable to the appellant. Both the offences are held to be
proved on the basis of circumstantial evidence. Hence, the appellant could
not have been convicted and sentenced with the aid of S. 120-B or S. 109
IPC. The court further held that to prove the charge of abetment, the
prosecution is required to prove that the abettor had instigated for the doing
of a particular thing or engaged with one or more other person or persons in
any conspiracy for the doing of that thing or intentionally aided by an act of
illegal omission, doing of that thing. The prosecution failed to prove the
existence of any of the ingredients of S. 107 IPC. 43

41. AIR 1995 SC 1965, para 3 at 1966.

42. (2001) 1 SCC 378.
43. See also K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217; P.N. Krishna Lai v.
Government of Kerala, 1995 supp (2) SCC 187; State ofA.P. v. Kuna Satyanarayana,
(1998) 8 SCC 268; Wattan Singh v. State ofPunjab, (2004)3 SCC 700; Ramesh Kumar v.
Chhatisgarh, (2001) 9 SCC 618.
ABETMENT 155

III

Abetment by conspiracy:^ A p e r s o n is said to abet the c o m m i s s i o n of an

offence b y c o n s p i r a c y , if he enters i n t o an agreement w i t h one or m o r e
persons t o d o a legal act by illegal means, or t o do an illegal act, and some
act is d o n e i n p u r s u a n c e t h e r e o f . A c o n s p i r a c y t o d o a t h i n g is a
c o m b i n a t i o n of t w o o r m o r e p e r s o n s w i t h a c o m m o n design of d o i n g a
specific thing. 4 5 It has been held that where a criminal conspiracy amounts
t o an a b e t m e n t u n d e r S. 107, it is unnecessary to invoke the provisions of
Ss. 120-A a n d 120-B, as t h e C o d e has m a d e a specific p r o v i s i o n for the
p u n i s h m e n t of such a conspiracy. 4 6

IV

Abetment by aid: A person is said t o abet the commission of an offence, if he

intentionally renders assistance or gives aid b y doing an act or o m i t t i n g to
do an act. Mere intention t o render assistance is not sufficient. T h e r e must
be s o m e active c o n d u c t o n t h e p a r t of t h e a b e t t o r and t h e act m u s t be
accomplished in pursuance thereof.
Aid m a y be given b o t h b y an act of commission as well as by an act of
illegal o m i s s i o n . F o r i n s t a n c e , if a police officer k n o w i n g t h a t c e r t a i n
persons were likely t o be tortured for the purposes of extorting confession,
keeps himself away from the place, he is liable for abetment t o the offence
of e x t o r t i o n 4 7 b y an act of omission.
a) T h e act or omission which constitutes the aid must have been done
intentionally; 4 8
b) T h e aid m u s t have been given either prior t o or at the time of the
c o m m i s s i o n of the offence abetted. 4 9

44. For detail see chapter on conspiracy.

45. 1979 Pun Re No. 18 (Cr.) p. 47 (49, 51) (FB).
46. AIR 1960 Pat 459 (468): 1960 Cri LJ 1360 (DB) (A IR 1938 Bom 481. Not foil.)
AIR 1936 Pat 346 (348): 37 Cri LJ 893 (DB) AIR 1915 Cal 719 (524): 16 Cri LJ 9
(DB). [See also A IR 1957 SC 381 (389) : 1957 Cri LJ 559.)]
47. Faguna Kama Nath v. State ofAssam, AIR 1959 SC 673.
48. AIR 1919 Oudh 160 (175): 20 Cri LJ 465 (DB). Where two persons set out to
accomplish a particular act an dagree that, if the necessity should arise, they would
resort to the use of the fire-arms with which they provide themselves with, and on
the necessity arising one of them indulges in shooting, the other must be treated as
having abetted the shooting, as this takes place in pursuance of the common
intention which inspired the two persons.
49. AIR 1978 Raj LW 1: 1977 W L N 655 (660), (661). Any act done after the offence
has been committed will not amount to abetment by aide.g., driving away
the principal offender after the crime has been committed. 1970 Mad LJ (Cri) 379
(Mys).
156 ESSAYS OF INDIAN PENAL CODE

It was held that unless it is shown that the commission of the crime was
not possible without the specific aid rendered by a person, he would not be
liable for an offence under this section.50
Aiding and abetting of an offence are different from actual participation
in a crime. Hence, where the accused have been charged with actual
participation in a crime but are only found to have aided and abetted the
commission of the crime, they cannot be convicted of the crime charged.51
However, insignificant the aid may be, it would be abetment if it was given
with the requisite intention or knowledge. The test is not to determine
whether the offence would or would not have been committed if the aid had
not been given but whether the act was committed with the aid of the
abettor in question. 52

Abettor: It is not necessary to make the abettor liable that the crime abetted
should be committed or the effect desired should be produced. However, as
the Supreme Court pointed out in Fagunanath v. The Stated in the case of
abetment by intentional aid, unless the person who is abetted is found guilty
of the offence charged the abettor cannot be punished. Explanation 2 to S.
107 of the Penal Code provides: "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." The liability of the abettor extends to all acts
which are probable consequences of the act abetted and even to
consequences which though not intended were nevertheless known to be
likely to ensue. Section 108 IPC defines abettor as a person who abets: (i)
the commission of an offence, or (ii) the commission of an act which would
be an offence, if committed by a person capable of committing an offence in
law. An abettor may be either an instigator, or a conspirator, or helper in the
commission of a crime as defined in S. 107 of the Penal Code. The abetment
must be an offence or an act, which would be an offence, if committed by a
person capable in law of committing the offence with the same intention or
knowledge as that of the abettor. 54
The abetment of an illegal omission of an act may amount to an offence
although the abettor may not himself be bound to do that act.To constitute

50. 1971 Cri LJ 1378 (1380, 1381) (Delhi).

51. (1975) 16 Guj LR 994 (999).
52. AIR 1966 Bom 393 (395, 396): 1960 Cri LJ 1189; AIR 1934 Rang 30 (31) : 35 Cri LJ
863. (Bringing food to dacoits before commission of dacoity$ ^
53. 1959 (2) MLJ (SC) 18.
54. Emperor v. Parimal Chatterjee, (1932) AIR Cal 760 (761); (1939) 34 Cr LJ 78. See
Nelson's Indian Penal Code, 7th ed. (1981), Vol. I, p. 275.
ABETMENT 157

an 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
used. 55 It is not required for abetment that the person abetted should be
capable by law of committing an offence, or that he should have any guilty
intention or knowledge or should commit an offence. Abetment of an
offence being an offence, the abetment of such an abetment is also an
offence. It is not necessary in abetment by conspiracy that the abettor
should plan the offence with the person abetted.

VI

Abetment of offences outside India: Section 108A was added in the Penal Code in
189856 with a view to overrule a decision of the Bombay High Court in the
case of Queen Empress v. Ganapatrao Ramachandra,57 in which it was held that
the abetment in India by an Indian citizen of an offence committed in a
foreign country was not punishable under the Code. The section states that
a person would be guilty of an abetment, if he abets the commission of an
act outside India, which if done in India, would constitute an offence.
Sections 109 to 120 prescribe certain rules as to punishment for
different kinds of abetment. Sections 109 and 110 prescribe punishment of
abetment, if the act abetted is committed in consequence of abetment,
whereas Ss. 115 and 116 provide for punishment where the offence is not
committed in consequence of the abetment. Sections 109 and 110 provide
for punishment in cases in which the act done is the act abetted. In Jai
Narain Mishra v. State of Bihar^ the Supreme Court considered the case of
an accused who was accused of instigating others belonging to the Mishra
community to attack members of the Tiwari family of village Bareja in
Chapra district. The trial court had originally acquitted all the accused. On
appeal by the state government, the Patna High Court convicted them for
offences under Ss. 147, 148, 323, 324, 326 and 307 read with S. 109 IPC.
However, when the Supreme Court examined the evidence, it found that the
witness while tendering evidence during trial had stated that the accused had
instigated others to kill him, in the statement made by him recorded as dying
declaration, he had stated that the accused had only instigated others to
'assault the rascal'. This, the court felt, warranted a substitution of
conviction from S. 307 to S. 324 read with S. 109 IPC. The sentence of two
years imposed by the high court was, however, not disturbed, as it was felt
appropriate for the offence committed. 5

55. Labi? Singh, (1974) ILR 1 Punj 449; State ofMaharashtra v. Pandurang Ramji, (1971)
ILR Bom 1061.
56. Indian Penal Code (Amendment Act 4 of 1898) S.3.
57. (1984) ILR 19 Bom 105.
58. AIR 1972 SC 1764.
59. Id., para 13 at 1766-67.
158 ESSAYS OF INDIAN PENAL CODE

In Harabailu Kariappa v. State ofKarnataka,60 there was a dispute between

the deceased Kushalappa and two other persons over cutting of trees from
the forest land near the land of the accused, which resulted in the murder of
the deceased. However, the court held that while the evidence proved
clearly the direct role of the accused and there was no evidence to prove
that the offence committed by him was with the abetment. Hence, the
person charged with abetment was acquitted.
However, the Supreme Court in Mahendra Rai vMitbilesb Rai,bl set aside
the judgment of the Patna High Court acquitting the first accused and
second accused of murdering a 12-year-old boy as there was discrepancy in
timings in preparation of the inquest report and the absence of names of the
assailants in the same. After reassessing the evidence, the Supreme Court
observed that the high court was in error on coming to a finding of
innocence, as the facts established clearly that while the second accused held
the boy who was sleeping in a cot under a mango tree in an orchard near his
house, the first accused cut his neck with a kakut (chaff cutter). Thus, the
Supreme Court affirmed the conviction of the trial court of offence under
S. 302, IPC against Al and under S. 301 read with S. 109, IPC against A2. 62
In Joseph Kurian v. State ofKerala^ the apex court held that S. 109 of IPC
is by itself an offence though punishable in the context of other offences.
When his direct involvement in these crimes could not be established, it is
difficult to uphold the view of the high court that he could lopsidedly be
taken to have answered the charge of abetment and convicted on that basis.
There would, as is plain, be serious miscarriage of justice to the accused in
causing great prejudice to his defence. The roles of the perpetrator and
abettor of the crime are distinct and stand apart from each other. Further, in
Wakil Yadav v. State of Bihar64 the Supreme Court laid down that an offence
under S. 109 is a distinct offence.
Section 111 holds the abettor liable when the act done is different from
the act abetted. The section enunciates the principle of constructive liability.
As the person abetted is working as an agent of the principal, the abettor is
responsible in law for his deeds. The liability of the abettor under this
section is based on the well-established principle of criminal law that 'every
man is presumed to intend the natural and probable consequence of his act'.
A natural and probable consequence of an act is one which is likely or which
can reasonably be expected to follow from such an act. Section 111 extends
the liability of an abettor in respect of an act done, which was not

60. 1996 Cri LJ 321 (Kan).

61. 1997(1) Crimes 41.
62. W.,para 17 at 45-46.
63. (1994) 6 SCC 535 at 543-44, para 13.
64. (2000) 10 SCC 500.
ABETMENT 159

contemplated by the abettor, provided the later act was the probable
consequence of the act abetted, and is committed under the influence of the
abetment. But an unusual act, which could not be expected to ensue as a
result of abetment cannot be said to be the probable consequence of an act
abetted. In other words, the abettor is liable for the act committed, if:
(i) it was a probable consequence of the abetment, and
(ii) it was committed-
(a) under the influence of the abetment, or
(b) in pursuance of the conspiracy which constituted abetment. 65
Whenever any person, who if absent would be liable to be punished as
an abettor, if 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.
There are three essential ingredients of S. 114:
1) The abetment should be prior to the commission of the offence;
2) The abetment must be complete by itself;
3) The abettor must be present at the time of the commission of the
act.
If these ingredients are present, the section provides that the abettor
shall be deemed to be liable for the punishment as if he had himself
committed the offence. Thus, the section applies to a case where a person
abets the commission of an offence sometime before it takes place and
happens to be present at the time when the offence takes place and the
abettor helps in the commission of the offence. In such a case, the person is
guilty of committing the offence itself and not merely of abetment. 66
Based on this principle, the Supreme Court in State of Ka.ranata.ka v.
Hemareddy,117 set aside the judgment of the Karnataka High Court and
acquitted the appellant who was charged with offences under S. 467 read
with S. 114, IPC, for forging some documents in respect of an alleged sale of
some agricultural land. The appellant was alleged to have helped the other
accused Pyatal Bhimakka, to impersonate another person. Bhimakka, wife of
Nagappa, the real owner of the land in question who had died in 1953,
forged a document and t o o k her to the sub-registrar's office (where
documents of sale, mortgage etc., are registered), helped her affix the thumb
to the document and get it registered. The High Court had acquitted the
appellant, although on facts it held that the offence under S. 457 read with

65. Nanboo Keder v. State ofMadbya Pradesh, AIR 1962 MP 91.

66. A N Saha (ed), Basil's Indian Penal Code, vol 1, 8th edn, 1998, referring to AIR 1937
Pat 317, AIR 1927 Mad 115, AIR 1934 Lah 813.
67. AIR 1981 SC 1417, para 6 at 1420.
160 ESSAYS OF INDIAN PENAL CODE

S. 114, IPC had been proved on a technicality, namely, on the question

whether a private complaint could have been filed or whether the criminal
complaint should have been filed under S. 195(l)(b) of Criminal Procedure
Code, by the court before which a civil dispute over the same land had been
instituted. The Supreme Court, however, confirmed the conviction under
S. 467 read with S. 114, IPC against the appellant and sentenced him to one
year's rigorous imprisonment. 68
It should be noted that S. 114 is evidentiary in nature and not punitive
because it established a presumption which is irrebuttable that actual
presence plus p r i o r abetment can mean n o t h i n g else but p r i o r
participation. 69
The effect of the provision is that if a person is present at the
commission of the offence, he is deemed to have committed it, not that he
has actually committed it. Thus, actual presence plus prior abetment can
mean nothing else but participation. That is the irrebutable presumption
raised by S. 114 and brings the case under S. 34, IPC. This was the dictum
of the Supreme Court in Mathurala Adi Reddy v. State of Hyderabad7 In this
case, a group of about five to six people armed with guns, allegedly
communist, came to the village during night abducted some persons and
killed them. It was the prosecution case that the appellant instigated others
to fire, when he allegedly saw a group of people coming, resulting in firing
causing two deaths. The Supreme Court felt that the very fact that the
accused were armed, and were moving about in a planned manner indicated
that they already had a common intention. This, the Court said, is much
more than instigation. Three eye witnesses had deposed saying that they
heard the appellant say, 'people are collection, let us fire' which brings out
the common intention clearly.
But if the evidence makes out no more than mere instigation, it is, even
so, instigation by a person who is present at the scene of the offence when
it is committed. In such a case, the instigator is deemed to commit the
murder by virtue of S. 114, Indian Penal Code. 71 The principle evolved in
the above case was referred to by the Orissa High Court to confirm in
Godabarish Mohapatra v. State of Orissa,72 the conviction by the trial court of
one, Chandrasekar for offences under Ss. 302, 324 and 326 read with S. 114,
IPC. In that case, one Chandrasekar, wanted to eliminate the deceased and
his family with whom he had a property dispute. For this purpos^, he
arranged for three other people to attack the deceased with weapons. On

68. Id., para 15 at 1426.

69. AIR 1931 Mad 247, AIR 1933 Mad 123, referred to in supra note 66 at 298.
70. AIR 1956 SC 177.
71. Id., para 4 at 180.
72. 1999(2) Crimes 32 (Orissa).
ABETMENT 161

the day of occurrence when the deceased and his family were retuning from
a festival, the accused attacked them. Under the instigation of Chandrasekar,
the other three accused inflicted blows with lethal weapons on the deceased
killing him and injuring others in his family. Since he was instigating the
other accused while remaining on the scene, he was deemed under S. 114,
IPC to have committed the murder and sentenced to the life sentence which
was confirmed by the high court. 73
A priest, who officiated at a bigamous marriage, was held to have
intentionally aided it but not the persons who were merely present at the
celebration or who permitted its celebration in their house. The mere
presence at the scene of bigamous marriage would not a m o u n t to
conspiracy. 7 4 Something more than the presence needs to be proved. 75
Direct evidence of any instigation or aid is not necessary. It is a matter,
which can be deduced from the circumstances. 76
An interesting provision in relation to abetment is the provision for the
punishment of a special kind of abetment - abetment of concealment of a
design to commit a crime. If a person knowing of a design to commit a
crime and intending to facilitate the commission thereof voluntarily conceals
such a design, he is liable to punishment.77 This provision lays down the law
clearly in a matter where considerable doubt was expressed in England in a
judgment of the House of Lords. 78

VII

Distinction between conspiracy in Ss. 34, 107, clause (2) and S. 120A, IPC: To
constitute an offence under clause (2) to S. 107, I P C - ( a b e t m e n t by
conspiracy)-an act or illegal omission must take place in pursuance of the
conspiracy, whereas under S. 120A, IPC, a mere agreement is enough if the
agreement is to commit an offence.
The Supreme Court elaborated on the difference between Ss. 34, 109
and 120-B, IPC in the case of Noor Mohammad Mohd YusufMonin v. State of
Maharashtra.79 This case involved the conviction of the appellant along with
three others to a conspiracy to kill a neighbour Mohammand Yahya, with
whom the appellant had been having a dispute over the right of passage and
the right to collect water from a tap nearby. The trial court originally found
only the person who was alleged to have stabbed the deceased, guilty of

73. /at, para 12 at 40.

74. Karuppial v. Nagawalli, 1982 Mad LJ (Cr) 19: 1982 Cr LJ 1362.
75. ShnRam v. State ofU.R, AIR 1975 SC 175.
76. ILR (1967) 1 Ker 30 (45) (DB).
77. See Ss. 118-120 of the Penal Code.
78. Sykes v. Director ofPublic Prosecutions, 1961 3 All ER 33.
79. AIR 1971 SC 885.
162 ESSAYS OF INDIAN PENAL CODE

offence under S. 302 and acquitted the other three. However, on an appeal
against the acquittal filed by the state, the appellant and two others were
convicted for offences under S. 302 read with S. 34, IPC, and additionally,
the appellant in the above case for offence under S. 302 read with S. 109,
IPC and sentenced to life imprisonment. Since the conviction under S. 302
read with Ss. 34 and 109, IPC was challenged on the ground of insufficiency
of evidence because of which grave injustice was done to the appellant, the
Supreme Court entered into a detailed examination of the evidence on
record. While discussing the manner in which the appellant had instigated
the killing of the deceased and other circumstances, the court elaborated the
distinction between the various sections as under: 80
So far as S. 34, Indian Penal Code, is concerned, it embodies the
principle of joint liability in the doing of a criminal act, the
essence of that liability being the existence of a c o m m o n
intention. Participation in the commission of the offence in
furtherance of the common intention in its application. Section
109, Indian Penal Code on the other hand may be attracted even
if the abettor is not present when the offence abetted is
committed, provided that he has instigated the commission of
the offence or has engaged with one or more persons in a
conspiracy to commit an offence and pursuant to that conspiracy
some act or illegal omission takes place or has intentionally aided
the commission of an offence by an act or illegal omission.
Turning to the charge under S. 120-B, IPC, criminal conspiracy was
made a substantive offence in 1913 by the introduction of Chapter VA in
the Indian Penal Code. Criminal conspiracy postulates an agreement
between two or more persons to do, or cause to be done, an illegal act, or an
act, which is not illegal, by illegal means. It differs form other offence in that
mere agreement is made an offence even if no step is taken to carry out that
agreement.
Though there is close association of conspiracy with incitement and
abetment, the substantive offence of criminal conspiracy is defined in
S. 107, IPC. A conspiracy from its very nature is generally hatched in secret.
It is, therefore, extremely rare that direct evidence in proof of conspiracy
can be forthcoming from wholly disinterested quarters or form utter
strangers. But, like other offences, criminal conspiracy can be proved by
circumstantial evidence. Indeed, in most cases, proof o conspiracy is largely
inferential thought the inference must be founded on solid fact. Surrounding
circumstances and antecedent and subsequent conduct, among other factors,
constitute relevant material. In fact because of the difficulties in having
direct evidence of criminal conspiracy, once reasonable ground is shown for
ABETMENT 163

believing that two or more persons have conspired to commit an offence

then anything done by anyone of them in reference to their common
intention after the same is entertained becomes, according to the law of
evidence, relevant for providing b o t h conspiracy and the offences
committed pursuant thereto. 81 The requirement under S. 34 of the Code is
something more than what Section 109 contemplates. Actual participation in
the offence in addition to other ingredients that go to make an offence
under S.109 is necessary to attract the provisions of S. 34. 82

81. Id., para 7 at 888.

82. 1969 Ker LJ 215 (219).