“PUNISHMENT FOR ABETMENT OF AN OFFENCE”

SUBMISSION IN FULFILMENT OF THE COURSE TITLED CRIMINAL LAW – 1 FOR

OBTAINING THE DEGREE B.B.A., LL.B. (HONS.) DURING THE ACADEMIC YEAR
2019-20

SUBMITTED BY: -
Aridaman Raghuvanshi
Roll No.: 2013
3rd Semester

SUBMITTED TO: -

Assistant Professor of Law

Dr. Fr. Peter Ladis F.

SEPTEMBER, 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA - 800001
 DECLARATION BY CANDIDATE

I, ARIDAMAN RAGHUVANSHI, student of Chanakya National Law University

hereby declare that the work reported in the B.B.A.LL.B.(HONS.) project report
entitled: PUNISHMENT FOR ABETMENT OF AN OFFENCE submitted at
Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Dr.Fr. Peter Francis Ladis. I have not
submitted this work elsewhere for any other degree or diploma. I am responsible
for the contents of my Project Report.

(Signature of the Candidate)

NAME: Aridaman Raghuwanshi

ROLL NO: 2013

COURSE: B.B.A., LL.B. (Hons.)

SEMESTER: 2019-2020 (3rd).

SESSION: 2018-2023.

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr.Fr. Peter Francis Ladis whose guidance
helped me a lot with structuring of my project. I take this opportunity to express
my deep sense of gratitude for his guidance and encouragement which sustained
my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands
that helped me out at every stage of my project.

THANK YOU

NAME: Aridaman Raghuwanshi

ROLL NO: 2013

COURSE: B.B.A., LL.B. (Hons.)

SEMESTER: 2019-2020 (3rd)

SESSION: 2018-2023

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CONTENTS

DECLARATION BY CANDIDATE ........................................................................................ 2

ACKNOWLEDGEMENT ......................................................................................................... 3
CHAPTER 1: INCHOATE OFFFENCES: AN ANALYSIS .................................................... 5
1. I HISTORICAL BACKGROUND .................................................................................... 6
1. II ABETMENT:- ................................................................................................................ 6
1. III ATTEMPT:- .................................................................................................................. 7
1. IV CRIMINAL CONSPIRACY:- ...................................................................................... 8
OBJECTIVES OF THE STUDY ........................................................................................... 9
HYPOTHESIS ....................................................................................................................... 9
RESEARCH QUESTIONS ................................................................................................... 9
RESEARCH METHODOLOGY........................................................................................... 9
SOURCES OF DATA: ........................................................................................................ 10
LIMITATIONS OF THE STUDY: ..................................................................................... 10
CHAPTER 2: ABETMENT OF AN OFFNECE UNDER IPC, 1860 ..................................... 11
2. I TYPES OF ABETMENT .............................................................................................. 12
2. II ABETTOR ................................................................................................................... 16
2. III ABETMENT OF OFFENCES OUTSIDE INDIA ..................................................... 17
CHAPTER 3: PUNISHMENT FOR ABETMENT OF AN OFFNECE ................................. 18
CHAPTER 4: CONCLUSION ................................................................................................ 21
CHAPTER 5: BIBLIOGRAPHY ............................................................................................ 22

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 CHAPTER 1: INCHOATE OFFFENCES: AN ANALYSIS

In criminal law, there are four stages to the commission of any crime

i. Formation of mental element or mens rea.

ii. Preparation for the commission of the crime
iii. Acting on the basis of such preparations
iv. Commission of the act resulting in an event proscribed by law.1

Different legal systems choose to punish an individual at different stages of the commission of
the crime. Such a choice will be made depending upon the emphasis given by the legal system
to prevent and discourage crimes. There are sometimes when the individual incites another to
commit a crime for him, thus absolving him of any actus reus and thereby any responsibility
for the crime. Through the offence of incitement and abetment, the legal system takes a strong
stand against any wrongful act of an individual that leads to the commission of a crime. Thus,
the main rationale behind inchoate crimes is to discourage individuals from the commission of
a crime not only themselves, but also through the incitement. They are those crimes which are
crimes with a small anomaly in them. In essence, inchoate offences are not the major offences
themselves. They are the steps taken or the actions committed in pursuance of action. These
steps are punishable themselves and are known broadly as inchoate offences.

In such offences, it is not the main aim that is being punished, but is the act or thought in
pursuance of the main aim that is punished. It is of the belief that the offences that the individual
wishes to commit is of such grievous nature that in case of failure to commit the said crime, it
is in the public interest to prosecute the acts done in pursuance of the crime. People prosecuted
for the commission of inchoate crimes do not commit direct harm through the actions
undertaken, but for the harm that they could have caused if the act had been committed.
Inchoate crimes are basically incomplete crimes are acts involving the tendency to commit, or
to indirectly participate in a criminal offense.2 The general inchoate offences are described as
the inchoate offences of attempt, conspiracy and incitement, but they are not self-contained
offences.

1
K.N. Chandrasekharan Pillai, Uncompleted Crimes: Attempt, Conspiracy and Abetment, General Principles of
Criminal Law, Eastern Book Company, Second Edition, 2011
2
Law Commission of Ireland Report, Consultation Paper on Inchoate Offences, lrc CP 48 – 2008)

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1. I HISTORICAL BACKGROUND
The list of inchoate crimes as we have today are a very recent addition to the legal system prior
to which it was widely believed among judicial circles that every crime necessarily entails
criminal liability for attempting it.3 There was however felt a need to include a head of inchoate
crimes much before, in the 16th century in England when there was seen that there was a major
threat to peace and law. In the time of lawlessness, there was understood to be only one way to
deal with this problem. English jurists felt that in order to prevent such gross violations of the
law, there was a need to take a sterner approach with reference to the prosecution of crimes.
They therefore felt the need for the prosecution of not just those crimes which actually cause a
real harm to another individual. They included incomplete offences which meant that they
began prosecuting those people who took a step towards commission of a wrongful act but
were prevented in some way from actually committing the act they had initially set out to do.
It was only in the 18th century however that there were included more crimes under inchoate
crimes than just attempt. With R v. Higgins4 in the 19th century, there arose a need in the eyes
of the people to add more subjects under the head of inchoate crimes. Intention was for the first
time given the status of an inchoate crimes and the scope of this topic broadened.

The one problem with such offences was that there was a defense available to the offenders
whereby in some cases, they could cite „impossibility’ as a defense. The Criminal Attempts
Act, 1981 however removed all doubts in the minds of the jurists. The main provision of this
act was to remove “impossibility” as a defense to an inchoate crime. This was considered as a
very step in the history of development of inchoate crimes.

As stated previously, inchoate crimes in the beginning had only one crime under its head, that
being the offence of attempt. However, gradually there arose to be many further additions to
the number of inchoate offences. The offences of abetment, conspiracy and incitement have
joint attempt under this head.

1. II ABETMENT5:-
The offence of abatement is committed when a person does not commit the crime he
wishes to commit, by himself, but urges or persuades another to commit the act.6 In
order for the act committed to be abatement, one must merely provide support,
command or order another to commit the act and must not be the one to commit it

3
R v Schofield (1784) Cald 397.
4
(1801) 2 East 5
5
Section 107 of Indian Penal Code, 1860.
6
K I Vibhuti, Abetment, PSA Pillai’s Criminal Law, 198, Lexis Nexis Butterworths Wadhwa, 11th edition.

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 himself. Laws relating to the definition of the crime, punishment duration and other
particulars are mentioned from Section 107-120 in Chapter V of the Indian Penal Code.
The rationale stated behind the punishing of abetment is that it helps in the commission
of a crime. One may argue that the act of abetment does not really have an actus reus
and therefore should not constitute an offence as the very essence of every criminal law
is that there needs to be a merger of mens rea and actus reus for there to be a crime.

1. III ATTEMPT:-
As stated earlier, there are different stages of a crime and different legal systems Choose
to prosecute individuals at different stages. An attempt to commit a crime is where an
individual has the requisite mens rea and sets out commit the offence but falls short of
such a commission. Section 511 of the IPC, 1860 deals with the attempt to commit an
offence. Previously, if the act that might have been committed turns out to be
impossibility, then the individual would not be liable to attempt to commit the crime.
There has then been a change in the law which facilitates that even though the act
intended is an impossibility, if the individual commits an act in furtherance of the
wrongful act, he will be liable for the offence of attempt to commit that crime.
Since for the commission of crime the element of mens rea and actus reas both are to
be fulfilled but in the case of attempt only mens rea can be proved but without the actus
reus how can a person be punished for that offence.
The law however makes an exception in this case stating that the belief of the person
that he is about to commit the crime that he intends to do along with the requisite mens
rea is enough to constitute an offence. There is however no concrete case in Indian legal
history which deals with impossibility in the offence of attempt. The Doctrine of Locus
Poenitentiae7 is a very important doctrine in relation to the law governing attempt. It
deals with those cases in which the individual made preparations to commit the crime
but changes his mind at the end, thereby pulling out at the last instant. Such intentional
withdrawal prior to the commission or attempt to commission of the act will be termed
as a mere preparation for the commission of the crime and not an attempt or the
commission to the commission of the crime and no legal liability will be imposed on
him.8

7
Locus Penitentiae is a Latin phrase associated with contractual law which means opportunity to withdraw from
a contract or obligation before it is completed or to decide not to commit an intended crime. This signifies
repentance in the context of criminal law and provides an opportunity of withdrawing from a projected contract,
before the parties are finally bound or of abandoning the intention of committing a crime.
8
Re Bhavaji AIR 1950 Mad 44; Re Narayanaswamy Pillai AIR 1932 Mad 507.

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The Proximity Rule
The Proximity Rule states that the act or a series of acts, in order to be designated as an
attempt to commit an offence, must be sufficiently proximate to the accomplishment of
the intended substantive offence.9

1. IV CRIMINAL CONSPIRACY:-
With the times, the law governing conspiracy has been changing in the context.
Conspiracy is presently being governed by Sections 120 A and 120 B of the IPC. With
the number of conspiracies taking place in the national scene in Indian law, there has
been a regular need for a change in the laws governing thereby increasing its
complexity. As stated earlier, the difference between Section 107 and 120 A are of a
very complex and difficult kind, thereby making it increasingly difficult for one to
understand the law of conspiracy.
The main ingredients of the Section 120 A of the IPC are as follows:
i. There should be two or more person
ii. There should be an agreement between them.
iii. The agreement must be to do either an illegal act or a legal act by illegal
means.10

The major requirement of a criminal conspiracy is an agreement between individuals.

It is the sine qua non of every conspiracy. The individual need not be there for the entire
conspiracy. He can come in at any time of the conspiracy and leave before the actual
act is completed. In order for the prosecution of an offender for the offence of criminal
conspiracy, the provisions of Section 120B need be read with some of the provisions of
Sections 120A.
In the decision reported as State of Maharashtra & Ors. v. Som Nath Thapa & Ors.,11
illuminating on this grey area, the Supreme Court observed that for a person to conspire
with another, he must have knowledge of what the co-conspirators were wanting to
achieve and thereafter having the intent to further the illegal act takes recourse to a

9
K I Vibhuti, Attempt, PSA Pillai’s Criminal Law, 185, Lexis Nexis Butterworths Wadhwa, 11th edition
10
Bijoyananda Patnaik v. Brinnand, AIR 1970 Cal 110; Noor Mohammad Momin v. State of Maharashtra, AIR
1971 SC 885, (1971) Cr LJ 793 (SC).
11
(1996) 4 SCC 659.

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 course of conduct to achieve the illegal end or facilitate its accomplishment. Except for
extreme cases, intent could be inferred from knowledge.

Inchoate offences are a new breed of offences which are different from all other
offences in the Indian Penal Code and these offences are mainly to discourage the
commission of the original intended offence. These offences discourage people from
committing a grievous offence as a failure to commit the offence will still lead to their
prosecution under the law for a sizable amount of time. Inchoate offences are therefore
those offences whose main reason for establishment was the public interest. Public
would now think twice before the commission of an offence. Even if they failed to
achieve their end goal, they would be prosecuted in a less rigorous but still a fairly harsh
manner.

OBJECTIVES OF THE STUDY

 The researcher’s prime aim is to explain abetment as defined under IPC, 1860.
 The researcher aims to descriptively provide a critical overview of the types of
punishment as discussed under IPC, 1860.
 The researcher’s main goal is to discuss the kind of punishment awarded for abetment
and its jurisprudence.

HYPOTHESIS

 The quantum of punishment given to abettor for the abetment of an offence should not
be at par with the principal offender.
 Abetment per se is not punishable but abetment of an offence is punishable.

RESEARCH QUESTIONS

What is Abetment of an offence as given in Indian Penal Code, 1860?

RESEARCH METHODOLOGY

The researcher will do doctrinal type of research in which he will go through the primary as
well secondary sources. The researcher through this methodology will be able to get an exact
picture of the problem in question. The doctrinal method helps in doing a comparative study
of the topic. This methodology helps in going through not only the work of one eminent person
but of many other too. This helps in getting the bird’s eye view of the subject. To satisfy the
need of the project, the researcher will go through section by section and clause by clause of

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each section in question. Then, the researcher will cross checked the commentary of those
provisions. This methodology will be the most effective way in preparing the project.
SOURCES OF DATA:

The researcher will be relying on both primary and secondary sources to complete the project.
 PRIMARY SOURCES:

1. Acts
 Indian Penal Code.
 Indian Evidence Act.
 SECONDARY SOURCES:

1. Websites and Blogs.

2. Newspapers.
3. Magazines.
4. Books and research paper.

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project. Due to
time constraints researcher made use of library of CNLU and online resources available at
CNLU e-resources.

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 CHAPTER 2: ABETMENT OF AN OFFNECE UNDER IPC, 1860

Section 107 defines Abetment of thing- A person abets the doing of thing, who-

First. - Instigates any person to do that thing; or

Secondly.- Engages with one or more other person or persons in conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order
to do that thing; or

Thirdly. - Intentionally aids, by any act or illegal omission the doing of that thing.

Explanation 1. – A person who, by wilful misrepresentation, or by wilful concealment of a

material fact which he is bound to disclose, voluntarily causes or attempts to cause or procure,
a thing to be done, is said to instigate the doing of that thing.

Explanation 2. – 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 facilitate the commission
thereof, is said to aid the doing of that act.

Abetment is an offence as defined under section 107 of Indian Penal Code, 1860. Abetment in
its literal sense means, the instigation of a person to do (or not to do) an act in a certain way,
or aid given by some person to another either of his own accord or under the provisions
governing joint and constructive liability. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.

1. Abetment of thing- Ingredients :-Abetment as defined by the section is constituted

by:-
a) Instigating a person to commit an offence.
b) Engaging in a conspiracy to commit it.
c) Intentionally aiding a person to commit it.

What constitute an offence of abetment is actual complicity which proceeds the actual
commission of the offence by the principal offender either through substantial assistance or
through some word or action.12

12
1970 Mad LJ Cr 379 (Mys).

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Mere negligence of a person which facilitates the commission of an offence is not abetment13.
It is not enough that an act on the part of alleged abettor happens to facilitate the commission
of crime.

2. Accomplice and abetment. - A person in order to be an accomplice must have taken

part in an offence. He must aid and abet within the meaning of section 107 and not
merely take no step to prevent the offence.
3. Abetment and mens rea. –the legislature contemplated that unless a person
communicates his intention by words, gesture or conduct expressly directed to the
person who is intended by him to be influenced to do the forbidden thing, he cannot be
held to abet the latter.
4. Preparing to abet is not abetment. - Mere intention not followed by any act cannot
constitute any offence, and an indirect preparation which does not amount to an act
which amounts to a commencement of the offence does not constitute either a principal
offence or an attempt or abetment of the same. The intention of either of the accused
while they were staying at S did not constitute any offence, and their removal with the
girl to T did not by itself constitute an abetment.
5. Where the person instigated does not commit the offence.- According to section
107, a person abets the doing of a thing when he instigate any person to do a thing or
engages with one or more person or persons in any conspiracy for the doing of that
thing or intentionally aids, by any act or illegal omission the doing of that thing. In
either of the first two cases it is immaterial for the conviction of the abettor whether the
person instigated commits the offence or not or the persons conspiring together actually
carry out the object of the conspiracy.

2. I TYPES OF ABETMENT

1. Abetting a person instigating him to do a thing.-

The word ‘instigate’ in the Concise Oxford Dictionary is defined as ‘urge on, incite, bring about
by persuasion’ and in Webster as ‘urge forward, provoke with synonyms of stimulate, urge,
spur, provide tempt, incite, impel, encourage, animate.

There is no doubt that there has to be a reasonable certainty in regard to the meaning of the
words used by the inciter in order to judge whether or not there was incitement, but it is not

13
1974Cr LJ 217

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necessary in law to prove the actual word for the incitement. Thus, where the court is
reasonably certain of the meaning which A wished to convey by his words to his co-accused B
and know how B reacted after hearing the words spoken to him by A, the immediate reaction
in a particular manner by B to the words addressed to him by A, affords a good deal of
guarantee that the words used by A were words of incitement.14

A person is said to instigate another to an act when he actively suggests or stimulates him to
the act by any means or language direct or indirect, whether it takes the form of express
solicitation, or of hints, insinuation or encouragement. It is not necessary that express or direct
words should be used to indicate what exactly should be done by the persons to whom direction
are given.

a) Instigation by conduct. - A bribe may be asked for as effectually in implicit

as in explicit terms. If B has found a willing listener, there can be no
reasonable doubt that his offer to arrange the basiness, if A wished it, in the
manner suggested by ‘kar-rawai’ which he understood to be the giving and
taking of money, would have been accepted. Not only B have succeeded in
his attempt to obtain an gratuity but he would have caused A to commit an
offence punishable under Section 16. The law does not require that
instigation should be in a particular form or that it should be only in words
and may not be by conduct; for instance a mere gesture indicating ‘beat’ or
a mere offering of money by an arrested person to the constable who arrests
him may be regarded as instigation, in the one case to beat and in the other
to take bribe- whether there was instigation or not is a question to be decided
on the facts of such case. It is impossible for any human tribunal to decide
exactly how much the instigation actually weighed in the mind of the person
abetted when he committed the act or offence.
b) Abetment by wilful misrepresentation or wilful concealment. – It cannot be
said that the mere omission to bring to the notice of the higher authorities
offences committed by another person amounts to an abetment of those
offences; to take a concrete case, if a clerk does not report to the superior
authorities what is known to him about his fellow clerks’ taking bribes such
omission does not amount to abetment of bribery. It may form the foundation

14
AIR 1957 All 177 (Prem Narian): Cr LJ 337.

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 for disciplinary action against him in a departmental way, but it cannot in
law amount to abetment of the offence committed by this fellow clerk. 15

2. Abetment by engaging in a conspiracy. –

In order to constitute the offence of abetment by conspiracy there must be a combining together
of two or more persons in the conspiracy, and an act or illegal omission must take place in
pursuance of that conspiracy and in order to the doing of that thing. It is not necessary that the
act abetted should be caused. Nor is it necessary 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. If two or more persons conspire to commit the murder of ten
or more person or to stole the watches belonging to ten or more persons, and one or more of
them commits the murders or theft in pursuance of that conspiracy, the others will be guilty of
as many abetment of murders or abetments of thefts as have been committed. The test is not
whether the instigation or conspiracy constituted one act, but whether the act or acts abetted by
instigation or conspiracy would, if committed by a person capable in law of committing an
offence with the same intention or knowledge as that of the abettor, amount to one offence of
abetment, but in the latter case as many offences of abetment, as the number of substantive
offence. Section 10, Evidence Act, has no bearing on the question as to how far conspiracy to
commit an offence or actionable wrong is an offence under I.P.C.

The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act
which is not by illegal means. When the agreement is commit an offence, the agreement itself
become the offence of criminal conspiracy. Where, however, the agreement is to do an act
which is not an offence or an act which is not illegal by illegal means, some acts besides the
agreement is necessary. Therefore the distinction between offence of abetment of conspiracy
and offence of criminal conspiracy, so far as the agreement to commit an offence is concerned,
lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal
omission must take place in pursuance of conspiracy and in the order of doing of the thing
conspired for. But in the offence of criminal conspiracy, the very agreement or plot is an act in
itself and is the gist of an offence. Put very briefly the distinction between the offence of
abetment under the second clause of section 107 and that of criminal conspiracy under section
120A.

15
AIR 1938 Mad 996: MWN 908: 40.

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 3. Abetment by intentionally aiding. -

In the case of abetment by aid a person can be said to abet by aiding only when by the
commission of an offence and does facilitate the commission thereof. Therefore where the
person is charged with abetment by aid of an offence under section 161 and the person charged
with offence is acquitted on the ground that he had not committed the offence, no question of
intentionally aiding by any act or omission the commission of that offences arises. Therefore
where the acquittal is right or wrong the conviction of the abettor also cannot be allowed to
stand in the circumstances.16 Holding ‘antarpat’ during the performance of bigamous marriage
which he knew to be void under section 494 amounts to intentional aid undr explanation 2 of
section 107.

In order to constitute abetment the abettor must be shown to have intentionally aided the
commission of crime. Mere proof that the crime could not have been committed without the
interpretation of the alleged abettor is not enough. Intentional aiding and complicity is the gist
of offence.

Illustration: -

A, B and C are friends. A and B has fallen out, so much so that A is determined to shoot B. A
goes to the house of C and on some pretext or other induces C to call B to his house. C has not
the least idea that A would shoot B on his arrival. B arrives and is murdered by A. A committed
murder. Can it be given that C is guilty of abetment because he ‘intentionally aided’ A? C did
gave his aid in calling B to his place but he never knew why A wanted him to send for B.
Whatever C did, he did intentionally, for his intention certainly was that B should Come. But
it was not C’s intention that crime should be committed. C cannot be held guilty of abetment
of the offence of murder.

a) Presence at and facilitating the commission of a crime. – Abettor must be

shown to have intentionally aided the crime. It is not enough that the abettor’s
act happened to facilitate the commission of the crime. Mere presence on the
occasion of the commitment of an offence does not amount to abetment within
the meaning of section 107, unless there is an obligation cast by the law upon
the persons present to prevent the commission of the offence.17

16
AIR 1959 SC 673.
17
AIR 1918 Pat 584: 19 Cr LJ 63.

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 b) Aiding by illegal omission. – In order to convict a person of abetment by
illegal omission it is necessary to show that the accused intentionally aided
the commission of the offence by his non-interference, and that the omission
involved a breach of a legal obligation. Abetment by omission would only be
punishable if the omission were an illegal omission. In order to convict a
person of abetting the commission of a crime, it is not only necessary to prove
that he has taken part in those steps of the transaction which are innocent but
in some way or other it is absolutely necessary to connect him with those steps
of the transaction which are criminal. Alleged omission to intervene or raise
an alarm on the part of an unwilling spectator does not constitute an abetment.

2. II 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 State,18 in this 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 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. 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.

18
AIR 1959 SC 67.

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To constitute 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. 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.

2. III ABETMENT OF OFFENCES OUTSIDE INDIA

Section 108A was added in the Penal Code in 1898 with a view to overrule a decision of the
Bombay High Court in the case of Queen Empress v. Ganapatrao Ramachandra 19, 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.

19
(1931) 33 BOMLR 1169.

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 CHAPTER 3: PUNISHMENT FOR ABETMENT OF AN OFFNECE

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 Bihar20, 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.

In Harabailu Kariappa v. State of Karnataka,21 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’s case 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

20
AIR 1972 SC 1764, 1973 (0) BLJR 241, 1972 Cr LJ 469, (1971) 3 SCC 762, 1972 (4) UJ 183 SC.
21
1996 (2) ALT Cri 119, 1996 Cr LJ 321, ILR 1995 KAR 3052, 1995 (4) Kar LJ 169.

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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.

In Joseph Kurian v. State of Kerala,22 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
23
stand apart from each other. Further, in Wakil Yadav v. State of Bihar, 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 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.

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.

22
1995 AIR, 4 1994 SCC (6) 535.
23
1999 Cr LJ 5000, (2000) 10 SCC 500.

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There are three essential ingredients of S. 114:

i. The abetment should be prior to the commission of the offence;

ii. The abetment must be complete by itself;
iii. 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.

Based on this principle, the Supreme Court in State of Karanataka v. Hemareddy24, 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 took 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 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.

It should be noted that S. 114 is evidentiary in nature and not punitive because it established a
presumption which is irrefutable that actual presence plus prior abetment can mean nothing
else but prior participation.

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.

24
1981 AIR 1417, 1981 SCR (2) 695.

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 CHAPTER 4: CONCLUSION

Therefor in the light of study conducted by the researcher. It is can be concluded now that
punishment for abetment of an offence is punishable in the same manner as if he himself have
committed the offence.

Moreover the researcher concludes that the hypothesis taken up by him stands unproved. Since
based on the studies carried out for this project the researcher concludes that "the abettor not
only abets the commission of an offence but also tries to get the the offence committed in such
a manner wherein no actus reus on his part could be ascertain". So that he could be let go of
his liabilities this is the underlying intend of the abettor as based on the studies the researcher
believes. If seen in another manner it appears as if the abettor of an offence not only intends to
get an offence committed but also keep himself away from that crime it appears as if he tries
to distort the evidence and put some sell sword. The one getting abetted seems to be on unequal
footing than that of abettor. Since the person abetted would not do that act in cases of
categorically instigation, and intentional aid wherein it’s the abettor who becomes the primary
source of facilitating or initiating the crime. It can be said that the person abetted does not have
normal criminal intent and his intent is wrongfully ensured so by the abettor.

Therefore the researcher suggest that in cases wherein the proximity of commission of the
crime without the act of abetment is absent in such cases the punishment awarded to the person
so abetted should not be equal to the abettor as the intention of abettor is originally not an
outcome of his own mind rather an influence made upon him ensures such an intent

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 CHAPTER 5: BIBLIOGRAPHY

The researcher has consulted following sources to complete the final draft:

PRIMARY SOURCES

o CASE LAWS.
o INDIAN PENAL CODE.
o INDIAN EVIDENCE ACT.
o OTHER LEGISLATIONS.

SECONDARY SOURCES:
 BOOKS:
1. Prof. S.N.Mishra; Indian Penal Code; Central Law Publications, Allahabad,
Eighth Edition (September) 2016.
2. K.D. Gaur; A Text Book of The Indian Penal Code, Universal Law
Publishing Company Pvt. Limited, New Delhi, Sixth Edition 2014.
3. Ratanlal and Dhirajlal; The Indian Penal Code; Wadhwa and Company,
Nagpur; 33th Edition Reprint 2017.
4. O.P. Srivastava; Principles of Criminal Law, Eastern Book Company,
Lucknow, Seventh Edition 1997 Reprint 2014.
5. Prof. V.B. Raju; Indian Penal Code; Eastern Book Company, Lucknow,
Fourth Edition 1982.

Among others.

 SCC Online Legal Research

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