Abetment under Section 107 of Indian Penal Code: Instigation, Conspiracy, and Aiding:

Written By: Shruthi Reddy.

Edited By: Maryam Sana.

The word “abet” means encouraging, assisting, or provoking to commit a crime. To explain in simple terms, the word abetment means to help someone commit an offence. Here the word offence means any act which is punishable by law. Abetment is a separate offence, and the punishment for the same has been provided. Abetment is not solely related to the actual offence. In the Indian Penal Code, 1860, chapter five explains the provisions of abetment, and it provides the liability along with suitable punishment, whereas section 107. defines the meaning of abetment. In the definition of abetment, there are mainly three ingredients, as follows –

  • Firstly the person is Instigated to do a thing
  • Secondly, there should be the engagement of two or three people who are entering into a conspiracy for doing a thing.
  • Thirdly the person should aid to do an act in doing the act or illegal omission, but with intention.

The primary element of abetment is the mental element, the mens rea. For constituting the offence of abetment, the mens rea is considered the core element. It is even more critical than actus reus, the physical act. Mens rea is nothing but the guilty intention behind doing the act; thus, it becomes essential that there be some intention present behind it, which is considered to support or instigate that act. The abetment of the act can be calculated from fact to fact basis, and it is most importantly based on the person’s conduct. At the same time, it is also important to note that carelessness or mere negligence cannot make a person guilty in the facilitation of the crime under section 107. Even the very involvement of the person does not fulfil the requirement of abetment. The person must have a guilty state of mind while doing the act. The Supreme Court has held that the mens rea is an essential element than actus reus in the case of Pramod Shriram Telgote v. the State of Maharashtra. In the case of Sanju v State of Madhya Pradesh, the case was there was a bitter quarrel between husband and wife. In anger, the husband told his wife to go and die. After two days, the wife committed suicide. The court, in this case, held that there was the absence of mens rea, that is, the intention or the mental element, as whatever the husband said was in anger, and he never meant it or never intended it. Thus he was held not liable in the present case. This case is considered a landmark case concerning abetment.

There are three types of abetment, namely Abetment by Instigation, Abetment by Conspiracy, Abetment by Aiding which is explained as follows –

Abetment by Instigation –

The act of provoking, inciting or encouraging someone to commit an offence is instigation. In deciding matters related to instigation, the court is supposed to look into the facts of the case to figure the element of provocation. As stated in the above landmark case, any word said in heated conversation or state of anger is not considered abetment, which also does not fall under instigation as there is a lack of intention behind the same. The abettor is supposed to have complete knowledge regarding the offence committed, which is considered an essential instigation. Even the silent approval of an offence comes under the definition of abetment. For example, when the crime of Sati is committed, if the people around her are quiet without uttering a single word, then due to the lack of taking any action is taken as supporting her in doing such an act. An example of abetment by instigation is when there is a search warrant in the name of X; when the police came, and a person named Y was there, but if he deliberately presented himself as X, he is liable for the offence of abetment by instigation. Another essential aspect of being noted is that explanation one of the section means that the instigation may happen in the following ways-

  • Wilful Representation – When a person does wilful representation, it means he is wilful, which means he knowingly represents himself as something he is not.
  • Wilful representation of a material fact – When a person is bound to disclose a fact but chooses not to do so wilfully, then it is said to be doing abetment by instigation by wilfully representing a false fact to be true.

The example of abetment by instigation has been explained above: a person misrepresents himself.

Abetment by Conspiracy –

The second element of abetment is through conspiracy. To hold a person liable under abetment by conspiracy, three essentials are necessary to be proved, which are explained as follows-

  • There should be a conspiracy between two or more persons.
  • In pursuance of that conspiracy, there must be an illegal commission or an act.
  • While doing the conspiracy, the illegal omission must also take place.

The three essentials mentioned above must be fulfilled to hold a person liable for abetment by conspiracy. An example of abetment by conspiracy is when A, a servant at B’s house, conspires to commit robbery and some thieves. To commit that robbery, he is supposed to see that the door of the house is open and that the master of the house, who is B is asleep. If he acts as said and the robbery is committed as planned, then A becomes liable for committing a robbery by abetting by conspiracy. The first essential is fulfilled as there were more than two persons, and secondly, robbery is an illegal act that is punishable by law. The third important that is the act which is the robbery took place, and hence he becomes liable for abetting by conspiracy.

Abetment by Aiding –

For holding a person liable under abetment by aiding, there must be a facilitation of the offence by the person either by providing help in any manner or through his conduct. Then he is said to be liable under abatement by aiding. According to the explanation in section 2 of section 107, the help is given, or support can be at the time of the offence or before the crime. The aid given must be by an illegal omission or an act that is punished by the law. The example for aiding by the act – X instigates Y to commit suicide, and in due time Z hands over poison in Y’s hand and Y commits suicide, here X and Z are liable. X is responsible for abetment by instigation, and Z is accountable for provocation by intentional aiding. Z is liable for deliberate aiding as he knew that what he was giving, poison, could kill someone if consumed. When Z went and kept the poison in Y’s hand, and when he consumed the poison, the act of committing suicide, Z became liable for intentional aiding. An example of abetment by aiding by doing a show that involves illegal omission is a police officer’s responsibility to stop a person from committing a wrong or crime. When a police officer sees a person committing a crime, he is bound to stop him from doing so, but even after knowing that it is wrong, he is encouraging him to do that act intentionally.

An abettor is a person who abets in the commission of an illegal act, and the meaning of abettor has been explained under section 108 of the Indian Penal Code. According to section 107 , an abettor can be a helper, conspirator or instigator.

Punishment for Abetment-

For any person who commits any crime, punishment is provided to prevent it from happening in the future. In the same way, the punishment is provided for committing abetment. The sentence for abetment specifically deals with sections 109 to 120  of the Indian Penal Code. Punishment for abetment and the extent of liability for the same is based on four factors which are as follows-

  1. The intention with which he had abetted – This means that he had abetted the act or the reason he intended to do a particular action against the law.
  2. The act he had abated – The deals mainly with the act the offender has reduced.
  3. The act which was committed – This deals with the act which was committed that led to abatement.
  4. The intention why the act was committed – The difference between the first factor is that the first deals with the intention the abettor had in mind while he abated, while the fourth factor deals with the intention with which he had committed. The main difference is the abetment and commission of the act in the first and the fourth factor.

While understanding the concept of abetment under section 107 of the Indian Penal Code, it is very evident that committing the crime is punishable and taking part in it makes it equally punishable. The offender need not directly be involved in the crime by taking part even through indirect means; he can be held liable for the offence of abetment. As already mentioned, section 5 of the Indian Penal code deals with the offences related to abetment, and it has been mentioned that the act of the aiding the offender makes the aider the offender as he is directly or indirectly involved in the crime by helping in the omission of the crime. As mentioned earlier, there were three types of abetment by instigation, abetment by conspiracy and abetment by aiding. The primary purpose of the law is prevalent in the first place is to check the actions done by humans. An offence is an act punishable by law, and the offences are divided into two types, namely criminal and non-criminal. For a show to be called Criminal Act, the most essentials are mens rea and actus reus, nothing but the mental element or the intention behind doing an act and the physical conduct, respectively. For example, suppose a person – A wants to kill someone – B by poisoning. In that case, if he proceeds on doing so by mixing it with the food, he is said to commit the offence of murder as there was a mental element present and the physical conduct that is the mixing of the poison has also been there, which makes him a criminal offender. In the present example, the concept of abetment can be explained when a third person is brought into the scenario if the person who is mixing the poison that is A who also intends to kill the person takes hep of the third person – C in any way.

In the same way, C knew that poison is to kill a person, and if C helps A by either getting the poison or by administering it to B, then C will become liable for abetting A for murdering B. The types of abetment and the essentials of the same were already explained in this article and the importance of mens rea while abetting has also been explained. The punishment for the abetment and the important factors for determining the degree have also been mentioned. Hence, it can be concluded that to understand the abetment’s central concept, it is important first to know that the main person who is committing the illegal omission and the person aiding him in doing so is punishable. The accomplices shall also be punished along with the principal offender.   

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