By Adv. Nikita Vaigankar
The lawmakers made the law in such a manner that it can cover wider horizons and will be able to penalize a criminal who has not himself committed a crime with his hands but has provoked another to do it with an illicit intention. The element of mens rea plays a very crucial role in this crime, as the criminal who commits this crime presumes that he can get away with this by keeping his hands clean, but his dirty mind traps him in and he ends up standing behind bars.
Abetment, in general, is covered by Chapter V of the IPC and the term has been defined under Section 107 of the IPC, which states that when a person instigates any person to do any act, engages with other/s to do such thing, illegally and intentionally omits to do such thing. However, the Indian judiciary has made several attempts to interpret the concept of abetment in various situations. In the case of Gangula Mohan Reddy v. the State of A.P., the court elaborated on abetment as “abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing without a positive act on the part of the accused.”
Abetment is often called a “preliminary crime” because it is the first thing that happens whenever any crime is committed due to abetment. In a particular crime inspired by abetment, there are many hidden stages as well as hidden people in it. For example, the one who commits the actual crime on the crime scene may be assisted by a person standing beside him who may have provoked him with an illicit intention without actually showing his involvement. There may be an abettor behind the scene who may have made arrangements for the weapons and provided them to the culprit. Therefore, it is very essential to punish such people who use their intelligence to commit crimes without being visible.
Who is an Abettor?
The Indian Penal Code lays down the definition of abettor in section 108 and states that an abettor is a person who abets the commission of an offense or an act which would be called an offense ultimately and is committed by a person capable of doing it with the same intention as the abettor.
The first explanation of the section states that even if there is an illegal omission on the part of the person who was instigated by the abettor, it will be called an offense. This may happen in cases of influencing public servants not to perform any duty. Here, the abettor is not authorized to commit or omit the act, but he uses the public servant as a tool to carry out his task.
The second explanation for this section is very important in explaining that the commission of an act and abetment for committing that act are two different things, and while considering punishment, both should be looked at independently of each other. Even if the act that was abetted does not occur, or if the person responsible for commission refuses or fails to do so, the abettor is still liable. The moment an act is abetted with the illicit intention of being turned into criminal activity, the abettor shall be held liable. For example, Rohan instigates Rahul to commit the murder of Ram, but Rahul refuses to do so. Here, though the act has not been committed, Rohan is guilty of abetting Rahul to commit murder. This discloses the substantive nature of this offense, which does not consider whether the crime was committed or not, but holds the abettor liable for abetting and plotting the ways of commission of the crime.
The third explanation for this section makes it very clear that the intention of the abettor is a very crucial thing, and the intention of the person committing the crime carries less weightage because sometimes the abettor might take advantage of the incapability of a person, like unsoundness, and use them as a weapon to commit the crime. Here, though an unsound person may not be held guilty for the commission of the crime, the abettor surely will be held to instigate the innocent minds and accomplish their task. For example, Ankit instigates his nephew, Aryan, who is 5 years old, to pour poison in the juice of Mohan, by making his nephew believe that it is an energy booster. His minor nephew does the same, which kills Mohan. Here, Aryan is not capable of committing an offense, but Ankit is liable to be punished in the same manner as if Aryan was capable of killing Mohan and is therefore liable to be punished.
Explanation four says that “the abetment of an offense being an offense, the abetment of such an abetment is also an offence”. This technical explanation can be simplified through an illustration. Suppose Santosh instigates Sahil to provoke Anil to murder Tushar, and if, out of this provocation from Sahil, Anil kills Tushar, then Anil, Sahil, and even Santosh will be liable for the same punishment because Santosh has abetted an abetment which has turned into a criminal offense.
Explanation five clears our doubts with respect to the liability of a person who is a participant in a conspiracy but played a very small role, even without knowing who the prime offender was who committed the actual crime. For example, Meena, Reena, and Seema conspire together to kidnap the daughter of a well-known businessman. They needed a vehicle to do the task, so Reena tells her friend John about this. John at once agrees to lend them his vehicle for the kidnapping purpose. Here, John may not know Meena and Seema, but since he readily agreed on his own to lend his vehicle for kidnapping purposes, he is liable for the punishment of kidnapping.
Variants of abetment under IPC
IPC identifies abetment as a very complex term, and it has tried to inculcate various kinds of it to leave no stone unturned.
It considers the concept of instigation as the basic ingredient of abetment and identifies it as being present in almost all cases, as the other word for instigation, facilitating, provocation, motivation, encouragement, and assistance itself is abetment. Instigating another person would mean stimulating others’ thought processes and encouraging that person to do something which the instigator aims to do but refrains from doing because of the fear of being caught or due to certain hurdles blocking his/her way. Instigation does not compel instigation to be in express form only; it also identifies the same to be even in the simplest manner. For example, when Sam by mistake pushes Max, Max, in turn, says bad words to Sam. Siya, who is standing beside Sam, signals him with a fist and makes a gesture to beat Max. Sam, in a fit of anger and upon instigation, hits Max. In this context, even a signal can be considered an instigation.
Simple permission or a piece of advice, on the other hand, is not considered an instigation. In the same example, if Sam had asked Siya whether he should hit Max and if Siya had agreed, it would not be termed an instigation. Therefore, it is very important for instigation to be proven that the instigator or abettor should urge forward by himself or herself, participating actively in order to provoke the other person.
Similarly, if a person only has thought of assisting someone in committing a crime but has not conveyed or expressed his/her thoughts to anyone, and the crime occurs, the person who had those thoughts is not liable. For example, if Supriya has thought of abetting Tushar to kill Soniya, but she has not conveyed her thoughts to Tushar yet, Surprisingly, it so happens that on one fine day, Sonia gets killed by none other than Tushar. Here, Supriya cannot be held liable for abetment as she never abetted Tushar to do what he did.
Aside from instigation, abetment can occur when a person voluntarily and intentionally misleads another or conceals something from the other that he should disclose at that time if he has the information. The IPC identifies such a situation in Section 107, explanation 1, which discusses wilful misrepresentation and willful concealment of material facts. For example, a squad appears for the demolition of a particular illegal structure belonging to Ajay. As a result of their confusion, they decided to enlist the assistance of Mayank, a local resident. Mayank purposely misguides them so that instead of pointing out Ajay’s structure, he points out Vijay’s structure so that he would be able to take revenge for his rivalry with Vijay. Here, since Mayank has willfully misrepresented the officials and concealed the fact, in spite of having knowledge of the same, he is liable for the punishment of abetment.
The term “conspiracy” refers to an attempt by two or more people to carry out a plan using illegal means. If we go to see this in the context of abetment, such conspiracy acts are a way of abetment to do any unlawful act as it requires constant planning and execution. However, mere abetment is not always consistent, as abetment would incur even thought to do any unlawful act for some purpose, be it a failure, it is still termed abetment, while conspiracy is the planning along with the execution of the same by committing a certain act or causing to commit a certain act either by the conspirator or any other person through him/her.
Section 107 in its third part covers the area of abetment by intentional aid. It covers a situation when abetment is done by aiding or helping the perpetrator to commit the crime. For example, providing a weapon to facilitate murder, a servant keeping the gates of the master’s house open in order to aid thieves in committing theft, etc.
However, it should be noted that the section expressly states that the aid shall be intentional and, therefore, it does not cover situations where there is no intention, which is a universal rule. In the above example, if the servant kept the gates open by mistake and without having any idea that the thieves were about to enter his master’s house and was looking for an opportunity to sneak in, then the servant shall not be liable for abetment by aiding as it is not an intentional aid. Here, intention or knowledge of the act plays a very important role in identifying it as an abetment. The relevance of the aid, which is intentional and a gist of the abetment, can be reflected in the recent judgment in the case of Sreenath Suswaram vs. Balchand (2022), in which the Andhra Pradesh High Court clearly stated that in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed in a better way without the aid of the alleged is not enough to hold the alleged person liable. A person may, for example, invite another casually or for a friendly purpose, and that may facilitate the murder of the invitee. However, unless the invitation was extended with the intent to facilitate the commission of the murder, the person who invited cannot be said to have aided in the commission of the murder.
Similarly, mere presence on the crime scene would not be presumed as an abetment by intentionally aiding the commission of the crime unless it is intended to that effect. So, unless it is shown that the commission of the crime was not possible without the specific aid provided, which was intentional, it cannot be conclusively considered as an abetment.
A very important point to note in the case of abetment by intentional aid is that, here, the liability of an abettor is co-extensive with that of the principal offender, which means that if the offense against the principal offender is not proved, the abettor also cannot be held liable. As an illustration, let us consider that Suresh provides an iron rod to Mahesh in order to hit Ramesh, but Mahesh ultimately does not hit Ramesh. Here, since Mahesh is released for not causing any injury to Ramesh, Suresh also cannot be held liable for abetment. However, this is not the same situation in abetment of other kinds, as intention plays a crucial role in those cases, notwithstanding the failure of the commission of the crime, as we have already seen in the second explanation of Section 108 of the IPC.
The third part of Section 107 also covers the concept of abetment done by illegally omitting or refusing the commission of any act which has to be done. For example, Asha attempts to commit the murder of Usha. Asha’s friend, Disha, has reasonable time and opportunity to stop Asha from doing so. But Disha instead illegally omits to stop Asha. Hence, Disha is liable for abetment of Usha’s murder. However, it should be made clear that mere failure to act or react to something where the person ought to act, does not make him/her an abettor. In the same example given above, if Disha was threatened by Asha not to stop her, then Disha would not be held liable in spite of having a reasonable opportunity to stop Asha. However, a threat should be identified as an immediate threat to which any reasonable person would be threatened and would be deterred from doing something that he or she would have done otherwise. To make it clear, the Madhya Pradesh High Court recently commented that threatening can’t be termed as abetment when the threatened person had other remedies to get away with the threat.
Abetment to Suicide
Abetment can also be incurred when a person in an influential or superior position harasses his/her inferior subject in such a manner that his/her subject is bound to commit suicide. This kind of abetment has been identified under Section 306 of the IPC. However, simply shouting at someone by someone in a superior position, such as a boss, teacher, or even parent/s, to point out that person’s mistake does not constitute harassment and is not covered by this section. If, for example, in a heated argument between husband and wife, the husband tells the wife to go and die and the wife commits suicide, it will not be considered as an abetment as there was no intention by the husband. But if a husband brings poison and hands, it over to his wife in the same situation and tells her to drink it and die, and if the wife does the same, then the husband would be liable.
In the very recent case of Geo Varghese v. State of Rajasthan and others (2021), the appellant teacher was not held liable for the suicide by the student, who even left a suicide note mentioning the name of the appellant saying Thanks but no further explanation. The appellant was accused by the mother of the deceased student of harassing and humiliating the deceased student in front of others. The court said that “I, a student is simply reprimanded by a teacher for an act of indiscipline and continues to act of indiscipline to the notice of the principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, can the said teacher be held liable for the same and charged and tried for the offense of abetment of suicide under section 306 IPC. In the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be a travesty of justice, to ask the appellant-accused to face the trial.”
In another case decided in 2020, Gurcharan Singh v. State of Punjab, the Supreme Court explicitly ruled that the ingredients of mens rea in cases of abetment must be very visible and conspicuous, rather than simply presumed to be present.
This stance of the court in recent times makes it clear that in the cases of suicide by abetment, strict tests are levied and applied in order to identify abetment, as in these cases, there is always a thin line of difference between the innocent and the wrongdoer. The rationale behind adopting such a view may be that there are very rare occasions when a person is influenced or instigated by others to commit suicide, as there may be ample opportunities for anyone to self-reflect and decide what is right and wrong for themselves, and they cannot just go with the flow created by others in order to attempt suicide.
Punishment for Abetment under the IPC
The Indian Penal code punishes the abettor as he bears a similar responsibility as the prime accused who gets caught red-handed. Section 109 of the IPC punishes an abettor of the same offense in the same manner as the person who has indulged in actus reus. This section is very relevant when it is found that the person who has committed an act was a mere puppet of the instigator who is absent from the crime scene. To illustrate this further, let us take the example of Ram, who is a prime eye-witness in the trial of ‘X’, who is the accused. Shyam, being a close friend of ‘X’, instigates Ram to give false evidence in court. In response to the provocation, Ram makes a false statement in court. Here, Shyam has committed an offense of abetment and is liable to the same punishment as Ram.
The lawmakers did not miss out on the abettor who abetted the crime, but not with the intention that the crime should happen. Therefore, section 110 of the IPC was inserted, which provides punishment for the abettor in such a situation. This situation can be better explained with the help of the case of Matadin vs. the State of Maharashtra, wherein the deceased victim was stabbed in the stomach and on the back by one of the accused, namely Ramsingh, upon the instigation of Matadin, who, during a dispute with the deceased victim, said “maar saale ko.” However, the footing of the case of Matadin was that while saying those words, his intention was not that the deceased should be killed since there was no premeditation nor was there any earlier enmity between them. But the court realized that Matadin was fit to be prosecuted under section 110 of the IPC because, though he was not sharing a common intention with Ramsingh to kill the accused, he provoked Ramsingh and, given the fact that Matadin was aware of Ramsingh’s possessing a knife, there was a high possibility that upon those instigating words, Ramsingh could very well have put that knife into use for assaulting the deceased victim.
Further, Section 111 of the IPC makes a very interesting move as it punishes the abettor for not only instigating a particular crime but also for the other crime which the accused has committed connected to that crime, and the abettor knew that there was a possibility of the commission of an additional criminal act. To illustrate this, suppose Siya instigates Riya to commit a theft in the house of person “A” and provides Riya with a gun in order to carry out the theft. ‘A’ catches Riya while committing theft. Riya fires a gun and kills “A”. In this situation, it can be realized that the murder of “A” is the probable consequence of the abetment, and therefore, Siya is also liable for the abetment of murder.
Section 112 of the IPC states that the abettor is liable to cumulative punishment for the act abetted and for the act done in addition to the abetted act, which constitutes a distinct offense. The abettor is liable to punishment for each of the offenses.
Section 113 of the IPC signifies the level of liability of an abettor for an act committed by the perpetrator which was not intended by the abettor. It is very important to read this section along with Section 111 of the IPC as the abettor has to be made liable for the effect caused due to the actus reus, even though the said effect was not intended but it was known that there was a probability of its occurrence.
Whenever the abettor is present at the time of the commission of an offense, he is liable not only for the abetment of the offense, which was done previously, but also for the actus reus, and it is presumed in such a situation that he is deemed to have committed the crime as an abettor. This situation is rather different from Section 34 of the IPC, which speaks about common intention and holds each person liable for the same as if the act were done by him alone.
Sections 115 and 116 of the IPC prescribe punishment to the abettor who abetted in committing a particular crime, but the crime was not committed or was committed in part. While Section 117 of the IPC discusses the punishment for an abettor who aids and abets the general public or a group of more than ten people in committing a specific crime,
Critically speaking, the concept of abetment should be limited in its scope because even though an abettor sows the seed of a plant called crime through his malicious intentions, it always depends upon the person who is being instigated whether to water that plant or leave it to die. In other words, the offender who is actually being persuaded to commit the crime has to decide on his own whether he should commit the crime or not. Just because somebody tells you to jump into the well, you cannot jump in without giving it a second thought on your own and introspecting your step as to whether it is going in the right direction or not.
Moreover, in the cases of abetment of suicide, it is very complicated to understand whether the suicide was due to abetment or not because attempting suicide is the extreme step one can take and it depends on the mental strength of a person also. As a result, one cannot be held liable for abetment based solely on reasonable doubt or unjustified probability. In the recent case of Maam Gujjar and Maam Hussain vs. the State of Punjab, which was a petition for the anticipatory bail of the petitioner and was decided in the month of January 2022, the Punjab-Haryana High Court again took the widely accepted stand that the conduct of any person may be a bad one, but that is not the ground for someone to get instigated to commit suicide and one cannot be held liable merely on the basis of suspicion.
However, the universal view, which is hard to deny, is that the crime of abetment shall not go unpunished and shall not be ignored in any manner as it is very essential that the liability of an abettor be fixed as when abetment is an ingredient in any crime, it makes that crime more serious in nature as there is the involvement of more than a single criminal mind, due to which, the execution of the crime becomes more effective as they together tend to leave less proof behind by widening their imagination towards the scope of the possibilities that might negatively affect their crime.
If we go to see, most of the crimes do not occur directly; they need the formation of the intention and preparation of the plan to commit the crime. Therefore, to cover these stages of crime, the concept of abetment was identified and included in the IPC so that the criminal is caught right from the point of time when he/she sows seeds of abetment into the mind of another. Hence, no one can escape the clutches of punishment by merely sparkling light and being a silent spectator to watch that light being turned into flames.
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