Abetment under Section 107, IPC – Instigation, Conspiracy, Aid

Sometimes, indirectly participating in committing an offence itself may also become a punishable offence. In such crimes, the offenders do not directly involve themselves in the offence. However, their abetment can become punishable in itself. These offences relate to Section 107, IPC under the chapter of abetment.

Section 107, IPC

Chapter 5 of the Indian Penal Code, 1860 deals with offences relating to abetment. Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.

When more than one person contributes to committing an offence, each person’s involvement may vary. This variation may be either in the manner or in the degree to which the involvement occurs.

For example, one person may procure a gun and hand it over to another who may shoot somebody with it. The former person is guilty of abetment, while the latter commits murder.

Definition of Abetment The definition of abetment under Section 107, IPC requires a person to abet the commission of an offence. This abetment may occur in any of the three methods that the provision prescribes.

The Section says that abetment basically takes place when a person abets the doing of a thing by:

1. Instigating a person to do that thing; or
2. Engaging with another person (or persons) in a conspiracy to do that thing; or
3. Intentionally aiding a person to do that thing.

When any of these requirements exists, the offence of abetment is complete. Sometimes a person may commit more than one of these three circumstances in a single offence.

Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Instigation may take place either directly or indirectly, by written or oral words, or even by gestures and hints.

The instigation must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or a simple suggestion. The Instigator need not even possess mens rea (a guilty intention to commit the crime).

Explanation 1 of this Section throws some lights on what instigation may mean in this context. It says that instigation may generally happen even by:

1. Wilful misrepresentation; or
2. Wilful concealment of a material fact which a person is bound to disclose.

For example, a court directs Amit, a police officer, to arrest Raj under an arrest warrant. Brijesh informs Amit that Chandan is Raj despite knowing that he is not. Under this misrepresentation, Amit ends up arresting Chandan instead of Raj. In this case, Brijesh is guilty of abetting Amit in wrongfully apprehending Chandan.

Conspiracy basically means an agreement between two or more persons to commit an unlawful act. Merely intending to commit an offence is not sufficient for this purpose.

Thus, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act which the conspirators conspire to commit itself must be illegal or punishable.

For example, in dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.

The third manner in which abetment may take place is by intentionally aiding the offender in committing that offence. This generally happens when the abettor facilitates the crime or helps in committing it. The intention to aid the offender is very important.

For example, merely giving food or clothing to an alleged offender may not be punishable. But giving him food, clothing and shelter to help him hide from the police or commit a crime is punishable.

Abetment of certain offences is punishable under specific Sections of IPC or under other laws. For example, abetment of suicide is punishable under Section 306. However, when no specific provision exists, the abettor will be punished with the punishment prescribed for that particular offence he has abetted.

Para 11 : Under S.109 the abettor is liable to the same punishment which may be inflicted on the principal offender; (1) if the act of the latter is committed in consequence of the abetment, and (2) no express provision is made in the IPC for punishment for such an abetment. This section lays down nothing more than that if the IPC has not separately provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to S.109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (1) instigation, (b) conspiracy, or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under S.120A is bare agreement to commit an offence. It has been made punishable under S.120B. The offence of abetment created under the second clause of S.107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by S.107 (secondly), “engages in any conspiracy …. for the doing of that thing, if an act or omission took place in pursuance of that conspiracy”. The punishment for these two categories of crimes is also quite different. S.109, IPC is concerned only with the punishment of abetment for which no express provision has been made in the IPC. The charge under S.109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under S.120B for which a charge under S.109 is unnecessary and inappropriate. [See Kehar Singh and Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883] (1989 CriLJ 1). Intentional aiding and active complicity is the gist of offence of abetment.

1. The provision under which the definition of abetment has been explained is ……….
2. An instigator need not possess……… while abetting an offence.
3. Abetment of ………. has a specific punishment under Section 306.
4. Abetment may happen by instigation, ……….. or aid.

Answers: (1) Section 107, IPC (2) mens rea (3) suicide (4) conspiracy