Section 107 (Abetment of a thing)

A person can be said to abet another person commit a crime in the following ways:

1. Firstly, by instigating¹ the other person to commit the crime.
2. Secondly, by conspiring² or planning together with one or more other people to commit the crime. If the crime actually happens as part of carrying out the conspiracy, all the conspirators have abetted the crime.
3. Thirdly, by intentionally helping other person in committing the crime through actions or non-actions (omissions).

Explanation 1
Someone who purposely lies or hides important facts that they should have disclosed, and because of this lie/hidden facts the crime ends up happening or is attempted, they are said to have instigated the crime.

Illustrations for Explanation 1

In this illustration, there was a actual person named Z whom a public officer A was authorized by a court warrant to apprehend (arrest). B knew about the warrant to apprehend Z. However, B also knew that C was not actually the person named Z in the warrant. Still, B deliberately lied to A and said that C was the person named Z in the warrant. Because of this lie by B, A ended up apprehending (arresting) C wrongly, thinking he was apprehending the actual person Z.

In this situation, even though B did not directly apprehend or arrest C, B can be said to have abetted or helped in the apprehension (arrest) of C. This is because B instigated or encouraged the apprehension of C through his deliberate lie to A.

Explanation 2: Whoever does anything before or during the commission of a crime, in order to make it easier for that crime to happen, and because of their actions the crime does get committed, is said to have aided (helped) in doing that act.

Explanation 2
Whoever does anything before or during the commission of a crime, in order to make it easier for that crime to happen, and because of their actions the crime does get committed, is said to have aided (helped) in doing that act.

Diagram

Section 108 (Abettor)

A person can be said to abet an offence in two situations:

1. If they abet or help the actual commission of a crime. This means helping another person directly commit the criminal act.
2. If they abet or help an act which would be a crime if done by a person who is legally allowed to commit that crime.³

Explanation 1:
Abetting can also mean helping or encouraging the non-commission of an act that someone is legally bound to do. This non-commission itself can be a crime.

Explanation 2
It is not necessary for the abetted act to actually take place or be completed. Even just abetting or helping is enough to constitute the offense of abetment. The intended result of the crime does not need to occur.

Illustrations for Explanation 2

(a) A convinces B to kill C. But B says no. A is responsible for encouraging B to commit murder.
(b) A convinces B to kill D. B follows A’s advice and stabs D. Luckily, D survives the attack. A is guilty of persuading B to commit murder.

Explanation 3:
It is not necessary for the person who was abetted to actually be capable of committing the crime themselves or to have the same intentions as the abettor.
Some key points:
- The person who was abetted (person B) does not need to legally be able to commit the crime themselves. For example, a child or someone who is mentally ill.
- Person B also does not need to have the same intentions or knowledge as the abettor (person A).

Illustrations for Explanation 3

(a) If person A abets/instigates a child or mentally ill person to do something that would be a crime if done by a capable adult, then person A is still guilty of abetting a crime even if the act was not actually committed.

(b) If person A instigates a young child to kill someone and the child does it, person A is still liable for murder even though the child was too young to be legally capable of committing murder.

(c) If person A instigates a mentally ill person who does not understand their actions to set a house on fire, person A is still guilty of abetting arson even though the mentally ill person committed no crime.

(d) If person A instigates person B to steal property while misleading B into thinking it belongs to A, then B takes it innocently but A is still guilty of abetting theft.

Explanation 4
Abetting a crime is itself a crime.So, abetting someone who is abetting a crime is also a crime.

Illustrations for Explanation 4

• A instigates B to instigate C to murder Z
• B then instigates C to murder Z as a result of A’s instigation
• C commits the murder as a result of B’s instigation
• Both B and A are liable for abetting/instigating the murder, even though A did not directly instigate C.

Explanation 5
For someone to be guilty of abetting a crime by conspiracy, they do not have to conspire directly with the person who actually commits the crime.It is enough if they engage in the overall conspiracy that results in the crime.Illustrations for Explanation 5

💡 Abet, legally allowed, non-commission, same intension, take place*, capable abettee*, abetting to abet*, indirect conspiracy.

Section 108A (Abetment in Bangladesh, of offences outside it)

If someone abets or supports the commission of a crime from within Bangladesh, even if the actual crime happens outside of Bangladesh, they can still be guilty of abetment.

Illustration

If someone in Bangladesh encourages a foreigner in Goa to commit a murder in Goa, the person in Bangladesh is guilty of abetting the murder.

💡 Abetment in Bangladesh = Act abroad.

Section (109+110+111)

Section 109 (Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment)

If someone helps or encourages another person to commit a crime and that crime happens as a direct result of their assistance, the person who abetted the crime can be punished just like the person who actually committed the crime, unless there is a specific punishment mentioned for abetment in the law.

Illustration

(a) A person named A offers a bribe to a public servant named B, asking B to do something illegal in return for the bribe. B accepts the bribe and performs the illegal act. In this case, A has abetted the offense of bribery, which is defined in section 161 of the law.

(b) A person named A encourages another person named B to give false evidence in a court case. As a result of A’s encouragement, B goes ahead and commits the offense of giving false evidence. In this example, A is guilty of abetting the offense, and they will be punished in the same way as B.

(c) A person named A and another person named B conspire together to poison a person named Z. A, as part of the conspiracy, obtains the poison and gives it to B so that B can administer it to Z. B follows the plan and administers the poison to Z when A is not present, causing Z’s death. In this situation, B is directly guilty of the crime of murder. However, A is guilty of abetting the crime because they were part of the conspiracy and provided the means for the crime to happen. As a result, A will face the same punishment as B for the crime of murder.

💡 Punishment of the abettee = Punishment of the abettor. (If not stated by law)

Section 110 (Punishment of abetment if person abetted does act with different intention from that of abettor)

If someone abet another person in committing a crime, they will be punished as if they had the same intention or knowledge as the person who committed the crime, even if their intention was different and the person did a different crime.

Example

Suppose there are two friends, John and Mark. John wants to steal a car, and he tells Mark about his plan. Mark agrees to help John and provides him with tools to break into the car. However, unbeknownst to Mark, John changes his mind and decides to use the tools to break into a house instead.

According to this law, if John is caught and convicted for breaking into the house, Mark, who aided John in the crime, will also be punished. Mark’s punishment will be the same as the punishment for breaking into a house, even though his intention was to help John steal a car, not break into a house.

💡 Punishment of the abettee = Punishment of the abettor (Even if different act done with different intension or knowledge by the abettee.

Section 111 (Liability of abettor when one act abetted and different act done)

If the abettor abets one act but a different act is actually committed, the abettor can still be held responsible for the act that was committed.

There are two conditions for holding the abettor responsible for the different act:

1. The act done must have been a probable consequence of the abetment. This means it must have been reasonably foreseeable or likely to happen due to the abetment.
2. The act done must have been committed under the influence of the instigation/encouragement of the abettor OR with the help provided by the abettor OR as part of the conspiracy that constituted the abetment.

Illustration

A person A instigates (encourages) a child to poison Z’s food. A gives the poison to the child for this purpose. However, due to the instigation, the child mistakenly poisons the food of Y (a person next to Z) instead of Z. In this case, even though a different person (Y) was poisoned instead of the intended victim (Z), A can still be held criminally responsible for poisoning Y. This is because: 1. Poisoning Y was a probable consequence of A’s instigation 2. The child acted under A’s influence and mistakenly poisoned Y while trying to poison Z as instigated by A.

(b) A instigates B to burn down Z’s house. When B sets fire to the house, he also commits theft of some property inside the house. In this case, A can be held responsible for abetting the burning of the house because that is what was instigated. However, A cannot be held responsible for the theft committed by B. This is because theft was a completely separate and distinct crime from the burning of the house. It was not a probable consequence of just the burning. The burning and theft were two separate acts.

(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery. A provides them arms to carry out the robbery. When B and C break into the house, they are resisted by Z, an inmate of the house. In response, B and/or C end up murdering Z. In this situation, if the murder of Z was a probable consequence of A’s abetment of the robbery, then A can be held criminally responsible for murder to the same extent.

This is because the murder occurred during the course of the robbery that A had instigated and provided arms for. So it can be considered a probable consequence of A’s original abetment of the robbery.

💡 Liability of abetee = Liability of abettor (If foreseeable or for instigation or for the help of the abettor, or part of the conspiracy.)

Section 114 (Abettor present when offence is committed)

Whenever an abettor is present at the scene when the crime they abetted is committed, they will be considered as having committed that crime themselves.

Section (115+116) [Punishment of Abetment]

Section 115 (Abetment of offence punishable with death or imprisonment for life- if offence be not committed; if act causing harm be done in consequence)

Whoever abets a crime punishable by death or life imprisonment will face punishment even if that crime is not actually committed.

For abetting such a serious crime, the punishment will be imprisonment up to 7 years and fine.

If the abetted act causes hurt to someone even if it falls short of the intended crime, the abettor can be imprisoned up to 14 years and fined.

Illustration

A instigates B to murder Z. The murder is not committed. Had B murdered Z as instigated, he would face death or life imprisonment. Since the murder was abetted but not completed, A can be imprisoned up to 7 years and fined for abetting it. If in the process of attempting the murder, any hurt is caused to Z, A can be imprisoned up to 14 years and fined.

Section 116 (Abetment of offence punishable with imprisonment- if offence be not committed; if abettor or person abetted be a public servant whose duty it is to prevent offence)*

This section deals with punishment for abetting an offence that is punishable by imprisonment.

If the abetted offence is not actually committed due to the abetment, and no other specific punishment is prescribed, the abettor will face the following punishment:

• Imprisonment up to 1/4th of the maximum term prescribed for the abetted offence. OR
• The fine prescribed for the abetted offence. OR
• Both imprisonment and fine.

The punishment is more severe if the abettor or abettee is a public servant whose duty is to prevent that offence. In that case, the punishment is imprisonment up to 1/2 of the maximum term prescribed for the abetted offence.

Illustration

(a) A offers a bribe to a public servant B to get his favour, but B refuses. A is liable for abetment.
(b) A instigates B to give false evidence, but B does not. A is still liable for abetment.
(c) A policeman abets robbery but it is not committed. A is liable to 1/2 of maximum term for robbery.
(d) B abets robbery by another policeman whose duty is to prevent it. Even though robbery is not committed, B is liable to 1/2 of maximum term.

Trick (115+116)

💡 Abetting a crime punishable by death or life imprisonment = Imprisonment up to 7 years and fine. (If offence not committed) - Abetting caused hurt to someone = Imprisoned up to 14 years and fined. (If offence not committed) - Abetting a crime punishable by imprisonment = Imprisonment up to 1/4th, or fine, or both for the offence made. (If offence not committed)

Abetment Under the Penal Code: A Comprehensive Guide

Understanding the Concept of Abetment

In everyday language, “abetting” implies supporting, encouraging, or assisting someone, often with a wrongful purpose. Legally, abetment holds a more specific meaning.

According to Corpus Juris Secundum, a prominent legal encyclopedia, “to abet” encompasses actions like:

• Aiding: Providing material or non-material assistance.
• Assisting: Actively helping in the execution of a plan.
• Commanding: Issuing orders or instructions.
• Procuring: Obtaining something necessary for the act.
• Counseling: Providing advice or guidance.
• Countenancing: Approving or encouraging through silence or inaction.
• Encouraging: Inspiring or motivating the act.
• Inducing: Persuading or influencing the decision to act.

Essential Elements of Abetment

To establish abetment under Section 107 of the Indian Penal Code (IPC), the prosecution must prove two key elements:

1. Active Participation: The abettor must have actively participated in some way in the steps leading to the crime. This doesn’t necessitate direct involvement in the final act, but rather a connection to the criminal activity.
2. Criminal Intent: The abettor must have intended for their actions to contribute to the crime. The actual outcome of their actions, whether the crime is successful or not, is immaterial in determining abetment. The crucial factor is the abettor’s intent at the time of their involvement.

As held in the case of Kartar Singh v State of Punjab (1994 3 SCC 569), the focus is on the abettor’s intention, not the outcome of the abetted act. Even if the instigated person doesn’t commit the crime or a conspiracy fails to materialize, the offense of abetment is still complete.

Forms of Abetment

Section 107 of the IPC outlines three distinct forms of abetment:

1. Abetment by Instigation: This involves actively encouraging or inciting someone to commit an offense. Instigation doesn’t require explicit instructions. It can be achieved through:
   • Direct or indirect language: Using words to suggest, encourage, or provoke the act.
   • Conduct: Actions or gestures that signal approval or encouragement.
   • Hints or insinuations: Communicating a desired outcome subtly.
   The case of Amiruddin (1922) 24 Bom LR 534 provides a clear definition of instigation, emphasizing the active role played by the abettor in stimulating the commission of the offense.
2. Abetment by Conspiracy: This occurs when two or more individuals agree to commit an illegal act or a legal act using illegal means. The act of agreement itself, if for a criminal objective, constitutes the offense. As defined in the landmark case of Mulcahy [(1868) LR 3 HL 306 317], the essence of conspiracy lies in the agreement. The execution of the plan is not necessary for the offense to be complete. However, for an offense under Section 120A, mere agreement is sufficient even if no further action is taken.
3. Abetment by Aid: This involves intentionally facilitating the commission of an offense by providing assistance before or during the act. Key to this form of abetment is the intent to make the crime possible or easier. Mere presence at the scene or passive knowledge of the crime is not enough. The case of Shri Ram v State of UP (AIR 1975 SC 175) established that intentional aiding, implying active complicity, is crucial for establishing abetment by aid. The assistance provided must be linked to the intention of facilitating the crime.

Abetment of Suicide: A Specific Case

Abetment principles also apply to suicide under the IPC. The case of Ramesh Kumar v State of Chhattisgarh (AIR 2001 SC 3837) clarifies that creating circumstances that leave a person with no option but to commit suicide can constitute abetment. The following must be proven:

1. Persistent Torment: The accused must have persistently irritated, annoyed, or pressured the deceased through words, actions, or even deliberate silence.
2. Intent to Provoke: The accused’s actions must have been carried out with the intention of driving the deceased to suicide.

Mens Rea: A Critical Element

For any form of abetment, establishing mens rea—criminal intent—is essential. The prosecution must prove beyond a reasonable doubt that the abettor acted with the specific intention of facilitating the crime. Negligence or unintentional actions, while potentially leading to civil liability, do not constitute abetment under criminal law.

Who is Deemed an Abettor?

Section 108 of the IPC clarifies that an abettor is anyone who:

1. Abets the commission of an offense, or
2. Abets an act that would be an offense if committed by a person of sound mind.

This definition encompasses all three forms of abetment: instigation, conspiracy, and aiding.

Key Explanations and Provisions

• Explanation 1 (Section 108, IPC): Even if a person is incapable of committing a specific offense themselves (e.g., a private citizen instigating a public servant to commit a crime unique to that position), they can still be liable for abetment if they instigate someone else to do it.
• Explanation 2 (Section 108, IPC): The act of abetment is complete even if the person being abetted refuses, fails, or the desired outcome isn’t achieved. The focus is on the abettor’s intention, not the success or failure of the intended crime.
• Explanation 3 (Section 108, IPC): The person committing the act doesn’t need to have criminal intent. For example, someone might unknowingly deliver a harmful substance on the instructions of another, resulting in an unintended poisoning. The person giving the instructions could be liable for abetment, even though the deliverer was unaware of the substance’s true nature.
• Explanation 4 (Section 108, IPC): Abetting an act of abetment is also a criminal offense. For example, if ‘A’ instigates ‘B’ to help ‘C’ commit murder, ‘A’ can be held liable for abetting ‘B’s act of abetment.
• Abetment as a Substantive Offence (Gallu Saheb v State of Bihar, AIR 1958 SC 813): This landmark case clarifies that abetment is an independent crime in itself. An abettor can be convicted even if the principal offender is acquitted, as the abettor’s liability stems from their own actions and intentions.
• Extra-Territorial Jurisdiction (Section 108A, IPC): This provision extends the IPC’s reach beyond India’s borders. Abetment within India that leads to an offense outside India can still be prosecuted in Indian courts.

Punishment for Abetment

• Section 109, IPC: This section stipulates that if the abetted offense is committed as a consequence of the abetment, and the IPC doesn’t specify a particular punishment for that specific abetment, the abettor faces the same punishment as the principal offender.
• Case Law (NMMY Momin, AIR 1971 SC 885): The abettor need not be present at the crime scene for Section 109 to apply. As long as their instigation, conspiracy, or aid led to the crime’s commission, they are liable.

Key Distinctions and Important Considerations

• Failure to Prevent is Not Abetment (Kulwant Singh v State of Punjab, [(2007) 15 SCC 670]): Simply failing to stop a crime doesn’t automatically constitute abetment. Active involvement or a deliberate act to facilitate the offense is necessary.
• Section 110, IPC: Even if the person abetted carries out the act with a different intention or level of knowledge than the abettor, the abettor’s liability remains under the original abetment charge.
• Section 111, IPC: If, during the commission of an abetted crime, the person abetted commits additional crimes that were a foreseeable consequence of the original abetted act, the abettor can be held liable for those additional crimes as well.
• Section 114, IPC: If an abettor is present at the crime scene, even without actively participating, the law presumes they are aiding the commission of the offense and they can be punished as if they were the principal offender.
• Distinguishing Section 34 and 114, IPC: While both deal with shared criminal liability, Section 34 focuses on a common intention formed beforehand, where everyone is equally liable, whereas Section 114 focuses on an abettor who is present at a crime they helped instigate, even if they didn’t physically participate.
• Section 115, IPC: This section covers abetment where the intended crime is not committed, is not committed as a direct result of the abetment, or is only partially carried out.

Conclusion

Understanding the complexities of abetment law is crucial for ensuring justice is served. This guide, while providing a comprehensive overview, should not be considered a substitute for professional legal advice. If you require legal assistance or have questions about a specific case, consulting with a qualified legal professional is always recommended.

1. “Instigate” means to encourage or provoke someone to take action. For example, if Person A tells Person B to steal something, Person A is instigating the theft. ↩︎
2. “Conspire” means to plan or work together secretly. So, if Person A and Person B make a secret plan to cheat on an exam, and they actually carry out the plan, they are abetting each other in the cheating. ↩︎
3. For example, let’s say there’s a law that only people over 18 can buy alcohol. If an adult buys alcohol and gives it to a teenager, the adult is abetting the teenager to commit a crime. The adult is helping the teenager do something that the teenager is not allowed to do. ↩︎