ABETMENT BY INSTIGATION, CONSPIRACY, AND AIDING: A COMPARATIVE STUDY BY - JATIN VERMA & SADHANA
ABETMENT BY
INSTIGATION, CONSPIRACY, AND AIDING: A COMPARATIVE STUDY
AUTHORED BY - JATIN VERMA
Contact no. 7988060511
Uttam Nagar
Gali No4 Gohana, Sonipat, Haryana
CO- AUTHOR - SADHANA
Contact no. 8307892744
VPO Ahar near government hospital
Tehsil Israna PNP
ABSTRACT
Abetment is a criminal offence under
the Indian Penal Code (IPC) that involves assisting, encouraging or instigating
someone to commit a crime. Abetment can take three forms: abetment by
instigation, abetment by conspiracy and abetment by aiding. This study aims to
compare and contrast these three forms of abetment and analyze their legal
implications and challenges. The study will examine the definitions, elements,
examples and punishments of each form of abetment under the IPC and relevant
case laws. The study will also explore the differences and similarities between
abetment and other related concepts such as criminal conspiracy, common
intention and common object. The study will conclude with some suggestions for
improving the law on abetment and preventing its misuse or abuse.
Chapter V of the Indian Penal Code,
1860 is the first offense which starts in Indian Penal Code, 1860 stating that
the mastermind behind the commission of offense should not be set free on the
mere ground that the actus rea has not been done by the person behind the
offense committed or yet to be committed. The concept of abetment has widened
the scope of criminal law to incorporate these criminal intentions and penalize
them according to the provision laid down under Chapter V of the Indian Penal
Code, 1860.
There are four stages of crime which
are read as below:
For any offense being committed or
instigates by other for their commission there should be a human being, Human
being plays an important role in any kind of criminal act being done by himself
or either made other to do so and be liable for the same.
·
Intention
and knowledge plays and important role in any criminal act being done by human
being. However a non- criminal behavior as simple as buying a knife for
household use becomes criminal when there is any kind of criminal intension behind
getting the knife.Non of the act can be considered itself a crime if done with
guilty mind.
·
After
the formation of an intension mere execution is necessary which is followed by
actusreai.e the act done in return of the intension formed causing injury to
others.
·
Last
stage is the offense itself which is the result of any kind of criminal
intention and criminal act punishable under law. Eg: Murder, Rape, Robbery,
etc.
So, in the middle of the above four
stages, abetment may take place. at the very initial stage of planning where
the intention is developed by one person but the act is done by another as a
result of instigation for the commission of an offense. Abetment is a
substantive offense where the commission of the offense is not considered, one
is held liable for mere instigating, conspiring, and aiding other for the
commission of the offense.
Importance
of Complicity:
(Section 107) Sections 107-120 of the
Indian Penal Code 1860 speak of incitement. According to Article 107, which
explains the meaning of incitement, “incitement” generally means instigating,
aiding or encouraging the criminal intent to be carried out. Incitement
consists of three acts set out in Article 107:
Incitement by incitement: It is generally said that one can motivate
another in two ways: motivate one for a good cause and motivate another for a
bad cause, which is incitement to incitement and therefore independent of the
act incited for that incitement responsible for. be committed or not. A person
will “incite” any act that voluntarily induces or causes or attempts to induce
or cause an act by willful misrepresentation or willful concealment of a
material fact that he or she is required to disclose. This is called aid. Figure: A, an officer, is authorized by court
order to arrest Z. B knows that the fact that C is not Z willfully makes A
aware that C is Z, and therefore willfully brings about both A should capture
C. Here B incites the arrest of C by incitement.
Incitement
to conspiracy:
Incitement to conspiracy is the involvement of one or more persons in a
conspiracy to commit the cause when an unlawful act or omission is made in
furtherance of that conspiracy. Complicity by conspiracy is merely said to
exist when there is a conspiracy between two or more persons to commit a crime.
If the act is committed it amounts to incitement by conspiracy, if not
committed it will amount to conspiracy and will be punishable. not for
complicity in a conspiracy under Sections 120A and. Aid: The third type of aid is an aid to
willful assistance (by unlawful act or omission) in the commission of a
criminal offense. Clarification 2 of section 107 clarifies that a person who
assists in the performance of an act, whether before or during the commission
of an offense, does everything possible to facilitate the commission of that
act.
Who is the abettor? Section 108 of
the Indian Penal Code 1860 speaks of an instigator, i.e. implicitly. The five proposed involvements in Article 108
of the CPI are worded as follows: Article - Incitement to commit a criminal
offense may constitute a criminal offense without the need for the instigator
to be compelled to do so. Thus, if a public official has committed an unlawful
act and was instigated by a private individual, he is an accomplice in the
crime that he himself committed, even if the client, as a private individual,
could not have committed the crime himself.
·
Canon
It is not necessary to recognize the illegality of the incitement, whether or
not the incitement was committed. The crime of sedition depends on the intent
of the instigator and not on the actual action of the instigator.
·
For
instigation to be a criminal offense, the instigator must not have the legal
capacity to commit the crime, have the same intent to commit the crime, or have
the same level of knowledge as the instigator. Incitement is a material crime,
regardless of the intent or conscience of the accomplice. The mere incitement
to commit a criminal offense is necessary and does not constitute aid. and
whether the instigator encourages the action, whether it is legal or not.
Example: A, with intent to commit a crime, induces a child or mentally ill
person to do what would be a crime if committed by a person legally capable of
committing the crime, and with the same intent as A. Here Weather, guilty
whether or not there is incitement to commit a criminal offense. Article - If inciting a crime is a crime,
then instigating such a crime is a crime. Figure: A instigates B at and
instigates C to murder Z.B then instigates C to kill Z and commits the crime at
B's instigation. For the crime, B is guilty of murder, and since A instigates B
to commit the crime, A is also punished with the same penalty.
·
It
is not necessary for the crime of the criminal organization to be recognized if
the instigator coordinated the crime with the perpetrator. It is enough that he
is held responsible if he participates in the conspiracy within which the crime
was committed.
Penalty for aiding and abetting under
the Indian Penal Code 1860: Sections 109
to 120 of the Indian Penal Code 1860
deal with the penalties for incitement which are as follows:
Section
109(IPC):
Punishment of incitement, if the act of incitement has effects and its
punishment, is not expressly provided for If a person instigates a crime and
the act of instigation is due to instigation, and this law does not expressly
provide for the penalty of instigation, he shall be punished with the penalty
provided for instigation and commission.
Conversely, in some cases of incitement, a sanction is expressly
provided for. It should be made clear that an act or crime is considered to
have been committed as a result of incitement if it was committed as a result
of incitement, criminal conspiracy, or complicity which constitutes incitement.
Depending on whether the crime of incitement is recognizable or not, whether
released on bail or not, it is judged by the judge and not cumulative. Figure:
A misleads B into making a false
statement. B commits a crime at the instigation of A. In this case, A is guilty
of inciting a criminal offense and is liable for the same criminal offense as B. An offers B, a government official, a
bribe as a reward for doing A an official favor. B accepts the bribe. A is the
perpetrator of an offense and responsible for an offense under Article 161 of
the CPI. Art.
Section
110(IPC): Penalty
of incitement when the instigator acts for a purpose other than that of the
instigator: Art.
This article provides for the
punishment of the instigator, i. H. for the instigator, if the act is committed
with knowledge or intent different from that of the perpetrator, shall be
punished with the penalty provided for the offense that would have been
committed if the act had been committed with the same intent and committed with
the same knowledge as the perpetrator. An instigator commits a criminal offense
and to commit an act cannot defend himself simply because the act committed
after instigating was carried out with a different intention and knowledge than
the perpetrator; he is also responsible for the punishment. Depending on
whether the crime of incitement is recognizable or not, whether released on
bail or not, it is judged by the judge and not cumulative.
Section 111(IPC): Responsibility of the instigator in
instigating one act and performing another: No. When instigating and committing
another act, the instigator is liable for the instigating act in the same way
as for the direct instigating, provided that the act can be caused by the
instigating and was committed under the influence of the instigating, charged
with aiding and abetting instigating. And if an act is committed that is
unlikely to be instigated, the instigator is not liable for any other crime
committed. Incitement to act is recognizable or unrecognizable, with or without
guarantee, arbitral and non-cumulative.
Illustration: Get a child to put poison in food Z and give him poison in
return. By poking, the child mistakenly mixed poison into Y's food, which was
kept next to Z's food, resulting in Y's death. Here A reacts in the same way
and to the same extent as if he had instigated the child to poison Y, since the
child acts under the instigation.
Section 112(IPC): The instigator who is threatened
with an aggregate penalty for an act of incitement and a crime committed: Section 112 is an extension of Section 111 of
the Indian Penal Code. According to Art. 111, if the offense committed is
different from the act of incitement, but belongs to the probable consequences
of the incitement committed under the influence of the incitement or
participation in the commission of the act. The instigator is responsible for
the act in the same way as the immediate instigator. Furthermore, the cumulative word used here in this article would indicate that
the act of incitement and the act taken for the purpose of incitement go beyond
nature and thus give rise to an additional act leading to an additional offense
on the part of the instigator.
The main difference between Section
111 and Section 113 is that Section 111 states that when committing an act of
incitement and another act and in Section 113 the incitement and the act
committed are the same but the cause of the effect is different. Depending on
whether the crime of incitement is recognizable or not, whether released on
bail or not, it is judged by the judge and not cumulative.
Section
114(IPC):
Instigator present at commission of crime:
This article provides that when a person who is absent as an instigator who would be subject to a
sanction and is exposed to the commission of an act or crime as a result of
instigation for which he would be subject to a sanction, the law resumes
establishes that the instigator himself
committed such a crime and act. And the instigator is punished for the
crime committed, not for instigating the crime. Depending on whether the
offense of incitement to hatred is recognizable or unrecognizable, on bail or
not, subject to judicial judgment and not cumulative.
Penalties under Sections 115, 116,
117, 118, 119, and 120 of the Indian Penal Code 1860:
Section 115: Incitement to commit a crime
punishable by the death penalty or life imprisonment - if the crime was not
committed: - If the offense was not
committed by incitement.7 years in prison + fine The harmful act is punished
with 14 years imprisonment + fine
Section
116(IPC):
Incitement to commit a crime punishable by imprisonment - if the crime was not
committed: Act not committed as an accessory – longer sentence for the act/fine
/ both. When the instigator is an
official charged with preventing the vice. is the longer penalty for the
offense/fine/both.
Section
117(IPC):
Incitement to commit a crime by the company or more than ten people: Anyone who
incites the commission of an offense by the community, or by a number or group
of persons greater than ten, shall be punished with imprisonment for not more
than three years or a fine, or both. Depending on whether the crime of
incitement is recognizable or not, whether released on bail or not, it is
judged by the judge and not cumulative.
Penalty for concealing intent or intent to commit a crime:
Sections 118, 119, and
120 of the Indian Penal Code 1860 provided a penalty for the willful
concealment of a purpose by an unlawful act or omission which resulted in the
commission of an offense punishable under those sections.
Section
118(IPC):
Concealing intention to commit an offense punishable by the death penalty or
life imprisonment: If the offense is
committed by incitement, 7 years imprisonment/fine If the offense was not
committed by incitement – ??3 years imprisonment/fine
Section 119(IPC): The official conceals the intention
to commit a crime, for which he must prove: If the offense is committed by
incitement, the longer penalty applies to the offense/fine/both.
If the offense was not committed by
incitement, the longer penalty applies to the offense/fine/both.
If a crime has been committed, it is
punishable by the death penalty or imprisonment for up to ten years.
Section
120(IPC): Concealing the intention to commit a criminal
offense is punishable by imprisonment:
If a crime is committed by incitement, the longer sentence for the
crime/fine/both. If the offense was not
committed as an accessory, 1/8th the higher penalty for the offense/fine/both.
Case
Laws
Rangasami
Gounder v. State of Madras (1950) 51 Cri LJ 1052[1]: In this
case, the accused was convicted of abetment to murder. The court held that
abetment can be established by direct or indirect evidence. Direct evidence is
when the abettor is seen or heard inciting or encouraging the commission of the
offense. Indirect evidence is when the abettor's conduct shows that he or she
intended to bring about the commission of the offense.
Mohan Singh
v. State of Punjab (1967) 1 SCR 1028[2]: In this
case, the accused was convicted of abetment to suicide. The court held that
abetment to suicide can be established by showing that the accused had
knowledge that the victim was likely to commit suicide and that the accused's
conduct was a substantial factor in causing the victim to commit suicide.
State of
Andhra Pradesh v. P.N. Raju (1994) 4 SCC 388[3]: In this
case, the accused was convicted of abetment to dowry death. The court held that
abetment to dowry death can be established by showing that the accused had
knowledge that the victim was likely to be subjected to cruelty and that the
accused's conduct was a substantial factor in causing the victim to be
subjected to cruelty.
Conclusion:
Abetment is said to be a substantive
offense that is punishable in itself respective of whether the act abetted is
committed or not. When any act is done as a consequence of instigation,
conspiracy, and aid, the person performing such act is held liable under Indian
Penal Code, 1860 but the person behind the commission of an act will also be
held liable for abetment as the instigation for such commission has been done
by that person.
Therefore, we say that abetment as an
offense is a just and fair law that enhances the principle of natural justice
in the legal system. As explained above there are four stages of crime and
abetment may take place at the initial level of planning and is punishable with
that imprisonment or fine or both as may be expressed in the provision.
Reference’s
·
IPC
Prof. S.N. MISRA
·
SCC
Online
·
Bare
Act