Abetment And Joint Liability Under Ipc Law

General Essay
----- Pragalbha Priyakar
This portion of the article forms the Second section of the project, where the offences related
with joint or constructive liability under the Indian Penal Code and their nuances are closely
examined and experimented so as to fathom their nexus with the culpable element of abetment.
However, since opinions of jurists are not abundantly available on the issue, the author employs
to analyse the matter in the light of various judgements rendered by the Indian courts.

Common intention and the role of Abetment

As has been already stated, sec. 34 of the Indian penal Code, encapsulates the principle of
constructive or joint liability in commission of a criminal act; by virtue of the fact that all
offenders harboured a common intention. Thus, the cases which revolve around this provision of
Indian Penal Code may also stretch their reach to penalise the offenders for abetment as well.
Whenever, the issue of Common intention crops up; it becomes imperative to reveal the methods
employed by the offenders - in respect of meeting of minds; thereby, giving rise to a common
intention. In these regards, the interplay of intentions of various persons in a group liability can
be understood with respect to an act of abetment; as mentioned under sec. 107. This provision
may be attracted, even if the abettor is not present when the offence abetted is committed,
provided that he has instigated the commission of the offence [1] . This proposition becomes
extremely relevant for the purpose of Joint liability where a plan fabricated by a master-mind is
executed by others who participate in the crime, whereas he abstains from doing so. It was
initially held that sec. 34 essentially requires participation in crime, whereas mere instigation was
sufficient for abetment under sec. 107 [2] . However, such a situation could have left sufficient
room for the offenders as mentioned in the above instance, to go unpunished. Thus, physical
presence which was considered to be an element of the participation of crime in the well-known
case of Barendrakumar Ghose v. King Emperor [3] , was later adjudged not to be a condition
requisite for the purpose of Joint Liability under sec. 34 [4] .

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To this it must be noted, that for offences which involve physical violence, it is imperative and
obvious that physical presence of the accused would be an essential fact. However, as has
already been made clear, in instances where non-physical violence was called into question, for

example in cheating and misappropriation, it would be completely unreasonable for physical

presence to be a prerequisite in establishing joint liability [5] .
In concurrence to this issue, in Barendra Kumar Ghosh v. King Emperor, Privy Council stated
the nuances of the elements of a crime charged under sec. 34 and their interplay with the offence
of abetment. The court held:
"As to sec. 114, it is a provision which is only brought into operation when circumstances
amounting to abetment of a particular crime have first been proved, and then the presence of the
accused at the commission of that crime is proved in addition as laid down in Abhi Misser v.
Lachmi Narain [1900 (27) Cal.566]. Abetment does not in itself involve the actual commission
of the crime abetted. It is a crime apart. sec. 114 deals with the case where there has been the
crime of abetment, but where also there has been actual commission of the crime abetted and the
abettor has been present thereat, and the way in which it deals with such a case is this. Instead of
the crime being still abetment with circumstances of aggravation, the crime becomes the very
crime abetted. The sec.tion is evidentiary, not punitory. Because participation de facto (as this
case shows) may sometimes be obscure in detail, it is established by the presumption juris et de
jure that actual presence plus prior abetment can mean nothing else but participation. The
presumption raised by sec.114 brings the case within the ambit of sec.34 [6] ."
What necessarily follows from this observation of the court, is the fact that only in instances
where, abetment by an offender does not amounts to the actual commission of the offence, can
he be held guilty of the offence in question, as well as abetment. However, where an offender
abets another towards the commission of an offence and this leads to that anothers participation
in the offence in question, the offender who abetted cannot be penalised for abetment if his
abetment standing alone, counts as participation with respect to the offence in question.
However, at various places it has been argued that even after assuming the fact that presence at
the scene is pre-requisite to attract sec. 34 and that such propinquity is absent, it has been
adjudged that sec. 107, which is different in one sense, still comes into play to rope in the
accused [7] .
Essentially, it is crucial that several persons join in the actual doing of the act and not merely in
planning and preparation [8] . The antithesis is between the preliminary stages, the agreement,
the preparation and the planning, which is covered under sec. 109, and the stage of commission
when the plans are put into effect and carried out. Since, sec. 34 of the code is concerned with
the latter [9] - which is the result or the outcome of the preliminary stages, it fully encompasses
within its ambit the instigation offered by the offender amongst themselves, which constitutes
abetment. Again, it is not necessary that the person abetted should be capable by law of
committing an offence, or that he should have the same guilty intention or knowledge as that of
the abettor, or any guilty intention or knowledge, but these elements are the pre-requisites of
liability under, sec. 34. Thus, considering the above propositions, it is to be comprehended that
joint liability under sec. 34 subsumes greater dimensions with respect to the offence of abetment
and in this way subsumes within itself the nuances of abetment as well.

b. The Interplay of Abetment with Common object of an

Unlawful Assembly
Where several persons are proved to have combined together for the same illegal purpose, any
act done by one of the parties in pursuance of the original concerted plan, and with reference to
the common object, is, in the contemplation of the law, the act of all [10] . Each party is an agent
of the others in carrying out the objects of the conspiracy, and doing anything in furtherance of
the common design [11] . In this case, there exists a strong presumption that each of them would
have instigated all of them, thereby amounting to abetment [12] . Thus, similar to the position of
law as is moulded under sec. 34, the provision under sec. 149 is already impregnated with the
element of abetment which doesnt puts an imperative on the penal laws to punish the offender
for abetment separately.

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This may be understood using an illustration, where four persons combine to attack with lathis
their common enemy. Here, each is abetting the conduct of the other within the meaning of sec.
107 [13] . However, it is not essential that there should have been an agreement in express terms
as to what the principal in the first degree should do; but, the aider and abettor will be
responsible for anything done in the joint enterprise which the evidence shows was within the
contemplation [14] . Thus, in cases where several persons have come together for the purpose of
committing some breach of peace, their general resolution must be considered, and if it appears
upon evidence either to have been actually and explicitly entered into by the confederates, or
may be reasonably collected from their number, equipment or behaviour at or before the scene of
action or that some kind of violence in certain eventualities be resorted to, then every individual
in the group will be involved in the guilt of any who do any such act which has thus been
established to have been within the contemplation of the group [15] .

C. Evolution of criminal Conspiracy from the offence of

Abetment
Now, if we analyse the provisions of criminal conspiracy under sec. 120A, it may be deduced,
that if a person engages himself; with one or more other persons in a conspiracy to commit an
offence and persuant to that conspiracy, some illegal act or illegal omission takes place, or has
intentionally aided the commission of an offence by an act or illegal omission, the role of
abetment persists within the present context. This is due to the fact that whenever the act of
sharing an unlawful design takes place in a criminal conspiracy, the act of abetment is manifested
between the offenders. Here, it must be taken into account that criminal conspiracy differs from
other offences in the sense that mere agreement is made an offence even if no step is taken to

carry out that agreement. Though, there is a close association of conspiracy, with incitement and
abetment but, the substantive offence of criminal conspiracy similar to the rule of evidence under
sec. 34, is somewhat wider in amplitude than abetment by conspiracy as contemplated by sec.
107 [16] . Here, what must be taken care of is the fact that an accused who only keeps the
common intention in his mind, but is not involved in actual commission of any act - overt or
covert at the scene, cannot be convicted with the aid of sec. 34, IPC. It is only in such cases that
the provisions in sec. 109, be invoked so as to cash such non-participating accused [17] .
Moreover, a view different to this argued that sec. 120A and 120B have been introduced to fill a
gap in sec. 107 to expand the realms of abetment [18] . These provisions did not find a place in
the IPC before the 27 March 1913, when the Indian Criminal law (Amendment) Act 1913; which
inserted them in the IPC under Chapter V-A, became law [19] . These sections have no
retrospective effect and a conviction under sec. 120B cannot stand if the offence was committed
before that section came into force, though the accused may be convicted of abetment under sec.
109 [20] .
This has been elaborated at length in King Emperor v. Tirumal Reddi, by Ayyangar J. Who
observed:
"Under the Indian Criminal Law, conspiracy is a mere species of abetment when an act or an
illegal omission takes place in pursuance of that conspiracy and amounts to a distinct offence for
each distinct offence abetted by conspiracy.Under the English Law, the agreement of
combination to do an unlawful thing or to do a lawful thing by unlawful means amounts in itself
to a criminal offence. The Indian Penal Code follows the English law of Conspiracy only in a
few exceptional cases which are made punishable u/s 311 (Thug), sec. 400 (Belonging to a gang
of dacoits), Sec. 401 (Belonging to a aging of thieves), sec. 402 (being a member of an assembly
of dacoits), sec. 121A (Conspiring to wage war). In these cases where any act is done or not or
offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also
be punishable separately for every offence committed in furtherance of the conspircay. In all
other cases, conspiracy is only one species of abetment of an offence as that expression is
defined and explained in sec. 108 and stands on the same footing as abetment by intentional
aiding. In regards to both these species of abetment an act or illegal omission; in pursuance of
the conspiracy or for the purpose of intentional aiding is essential" [21] .
Thus, if an offence alleged to be the object of the conspiracy has been committed, the conspiracy
amounts to an abetment under sec. 107 and it has been argued that it is unnecessary to invoke the
provisions of sec. 120A and 120B because the code has, in sec. 109 and 114, made specific
provisions for the punishment of such conspiracy [22] .
Here, it is also not necessary to take into account that all persons so engaging, in the criminal
conspiracy should have joined in the scheme from the initial stage but, those who come in at a
later stage are equally guilty, provided the agreement is proved [23] . But if the offence, which is
the object of the conspiracy, or one which naturally flows from it, is actually committed, it must
have been committed in consequence of the conspiracy and it must therefore, be proved that the
accused was engaged in the conspiracy down to the time when the offence was committed, or
when the act was put in course of actual execution [24] . Therefore, the distinction between

abetment by conspiracy and criminal conspiracy, so far as the agreement to commit an offence is
concerned, lies in this that for abetment by conspiracy, mere agreement is not enough while in
the offence of criminal conspiracy, the very agreement or plot is, in itself, an act and is the gist of
the offence [25] . It is substantive offence in itself [26] and has nothing to do with
abetment [27] .
As has already been said, where parties go with a common purpose to execute a common object,
each and everyone becomes responsible for the acts of each and every other in execution and
furtherance of their common purpose; as the purpose is common, so must be the responsibility.
In such cases, all are guilty of the principal offence and not of abetment [28] . In combinations of
this kind a mortal stroke, though given by one of the party, is deemed in the eye of the law to
have been given by every individual present and abetting. The person actually giving the stroke
is no more than the hand or instrument by which the others strike [29] . This in turn, depends on
the fact that in group offences, it becomes often unclear to demarcate liabilities due to the ability
of offenders to execute their individual subjective intentions [30] . But a party, not cognizant of
the intention of such a persons companion to commit murder is not liable, though he has joined
his companion to do an unlawful act; by virtue of the fact that there was an absence of Common
intention [31] .
Q. Define abetment. What are its different kinds and
punishments provided under P.P.C .(2003)(2002)(2004/S)
Q. Define abetment? What punishments has been provided
for
it.(2000)(2005/S)
Q. Define abetment and abettor what punishments is
provided if the act abetted is committed in consequence of
abetment.(1998)
Q. Define abetment and discuss the liability of a abettor in
different
circumstances(2007/A)
1.
Introduction:
Abetment is an instigation to a person to do an act in a
certain way or aid some other person in doing an act which
in
an
offence.
Abetment can be committed only when there is positive
evidence of either instigation or conspiracy or intentional
aid. At English common law it is committed by the
principal
in
the
2nd
degree.
2.
Definition
of
abetment:
(i)Black
s
law
Dictionary:
: To encourage, incite or set another to commit a crime.:
(ii)
case
law
Definition
:
Muthammal
Va
Maruthathal:
(1981)
: Abetment is a preparatory act and connotes active
complicity on the part of the abettor at a point of time prior

to
the
actual
commission
of
the
offence.
(iii)
Definition
u/sea
107
P.P.C:
A person abets the doing of a thing who:
First instigates any person to do that thing, or
Secondly engages with one or more other person or persons
in any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that conspiracy
and in order to the doing of that thing, or
Thirdly intentionally aids, by an act or illegal omission, the
doing
of
that
thing.
3.Relevant
provisions:
Following are the relevant provisions of P.P.C regarding the
concerned
topic
Section
107
to
120P.P.C
4.Essentials
of
abetment:
(i)
There
must
be
an
abettor
(ii)He
must
abet
(iii)
The
abetment
must
be
an
offence
5.Modes
to
constitute
abetment
u/sec107:
There are three modes to constitute an abetment.
(i)
By
instigation
(ii)
By
conspiracy
(iii)
By
Ailing
(I)
Abetment
by
instigation:
The word instigate means to goad or urge forward.
Instigation shows some sort of advice for the commission
of an act, which if dose would be an offence. Advice can
become instigation only if it is found that it was meant
actively to suggest or stimulate the commission of an
offence.
(i) Misrepresentation or concealment as abetment:
According to explanation 1 of sec107,a person who by
willful misrepresentation or by willful concealment of an
material fact which he is bound to disclose voluntarily
causes or procures or attempts to cause or procures a thing
to be dose, is said to instigate the doing of that of that
thing.
Illustration:
A knows that B is not c there is warrant for the arrest of
c. He represents the offices executing the warrant that B
is C. and thereby causes the officer to arrest B the

officer is guilty of wrongful restraint but A is guilty of

abetment.
(II)
Abetment
by
conspiracy:
(i) Definition of conspiracy u/sec 120-A P.P.C:
When two or more persons agree to do or cause to be done:
(1)
An
illegal
act,
or
(2) An Act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy.
Case
Law
1998
P.C
r.
L.
J
1486
It was held that to constitute criminal conspiracy there must
be agreement of two or more person to do an act which is
illegal or which is to be done by illegal means
(ii)
Conspiracy
amount
to
abetment:
Conspiracy can only amount to abetment if an act or illegal
omission takes place in pursuance of the conspiracy:
(iii) Concert with person abetted not necessary:
According to explanation 5 to sec 108, concert of abettor
with the person abetted is not necessary. It is sufficient if he
engages in the conspiracy in pursuance of which the
offence
is
committed.
(III)
Abetment
by
aid:
If a person joins another in the commission of a crime by
which he is benefit and which it would not be possible to
commit but for his aid, he is guilty of the commission of
the
crime
of
abetment.
According to explanation 2 of sec 107, a person abets by
aiding, when by any act done either prior to or at the time
of the commission of the act, he intends to facilitate and
dose in fact facilitate the commission thereof,
Illustration:
A village magistrate who was present while certain police
constable were wrongfully beating the person, and who not
stop the criminal act being committed in his presence he
abetted within the meaning of this section.
6.
Abettor
u/sec.
108:
A person abets an offence who abets either the commission
of an offence or the commission of an act which be an
offence, if committed by a person capable by law of
committing an offence with the same intention or
knowledge
as
that
of
the
abettor:

(I) Abettor
may
be
innocent
as
principal:
According to explanation 1 of sec. 108, a person can be
held guilty as abettor, thought as a principal he omission of
an act to a public servant by private person.
(II) Act abetted need not tom be committed:
According to explanation 2 of section 108, to constitute the
offence of abetment, it is not necessary that the act abetted
should be committed or that the effect requisite to
constitute
the
offence
should
be
ca
used.
Illustration:
A instigates B to murder c. B refuses to do so A is
guilty
abetting
B
to
commit
murder.
(III)
Capacity
of
person
abetted:
According to explanation 3 of sec 108 the person abetted
need not have any guilty intention in committing the act,
nor should he be necessarily capable by law of committing
an offence, thus a child or a lunatic who are supposed by
law incapable to commit an offence may be abetted by
another person who is capable law to commit an offence
with guilty intention and the abettor is guilty. Whether the
act
is
actually
committed
or
not.
(Iv)
Abetment
of
an
abetment:
According to explanation 4 of sec. 108, when the abetment
of an offence is an offence, the abetment of such abetment
is
also
an
offence.
Illustration:
A instigates B to instigate C to murder Z. B
accordingly instigates C to murder Z and C murder, Z
All are liable C is for murder, B for abetting murder and
A for
abetting
the
abetment
of
murder.
7.
Punishments
of
abetment:
(I) Where no punishment is provided for abetment u/sec
109:
If no express provision in the code for the punishment of a
particular abetment is made and the act abetted is
committed in consequence of the abetment. The abettor
shall be awarded the same punishment prescribed for the
offence and the abettor of an offence referred to in chapter
XVI shall be liable to punishment of Tazir specified for
such offence including death except in case of Ikrah iTam.

(II) Where offence committed with different intention of

abettor
u/sec110:
Where offence is committed with different intention or
knowledge from that of abettor, the punishment awarded to
the abettor will be the same as provided for the offence of
which
he
abetted,
and
will
on
other.
(IV) Act done is. Different from one abetted u/sec 111:
When an act is abetted and a different act is bone, the
abettor is liable for the act done in the same manner and to
the same extent as if he had directly abetted it. But it is
necessary that the act done was a probable consequence of
the
abetment.
(Iv) Where different effect cause from act abetted u/sec
113:
Where the act done is the same as the act abetted but its
effect than the abettor is liable for the effect caused
provided he know that the act abetted was likely to cause
that
effect.
(v) Presence of abettor when offence is committed u/sec .
114:
If abettor is found present at the scene when offence was
committed, he shall be punishable in the same manner as if
he
himself
has
committed
the
offence.
(V) Abetment of offence punishable with death or
imprisonment for life, if offence not committed u/sec. 115:
If abetment is for not offence punishable with death or
imprisonment for life and no express provision for its
punishment is made, the abettor shall be punished as under.
(i) If offence is not committed. 7years and fin
(ii) If act done cause hurt to any person 14years and fine
(VI) Abetment of offence punishable with imprisonment if
offence
not
committed
u/sec
116:
If abetment is the for the offence punishable with
imprisonment and no express provision for its punishment
is made, the shall be punished as under.
(i) If offence is not committed Imprisonment of any
description
provided
For that offence for a term which may
Extend to one- fourth part of the longest
Term provided for that offence. Or with fine
Or
with
both

(ii) If abettor is public servant Imprisonment of any

description
for
a
term
Which may extend to one half of the longest
Term provided for that offence. Or with fine
Or with both
(VIII)Abetting commission of offence by the public or by
more
then
10
person
u/sec117:
Whoever abets the commission of an offence by the public
generally or by any number or class of person exceeding
ten, shall be punished with imprisonment of either
description for a term which may extend to 3 years or with
fine
or
with
both.
(IX)Concealment of design to commit offence:
Section 118 to 120 penalize the concealment of design to
commit the offence in the following manner.
(i) Offence Punishable With Death or Imprisonment for
Life
u/sec
118:
If offence is punishable with death or imprisonment for life
and
the
same
is
A, Committed Imprisonment that may extend to 7 years
and
fine
B, Not committed Imprisonment that may extend to 3 years
and fine
(ii) Offence committed by public servant u/sec 119:
If a public servant intending to facilitate or knowing it to be
likely that he will thereby facilitate the commission of an
offence which it is his duty as such public servant to
prevent, the punishment shall be
If offence is committed he shall be punished with
imprisonment for a term which may extend to one half of
the longest term provided for the offence or with fine or
both and if it is punishable with death or imprisonment for
life, the punishment may extend to 10 years.
If offence is not committed, he shall be punished with
imprisonment for a term which may extend to one-fourth
part of the longest term provided for the offence or with
fine or both.
(iii)Offence Punishable With Imprisonment U/sec 120:
If offence is punishable with imprisonment only and the

offence is
a. Committed. Imprisonment that many extend to one
fourth provide for the offence
With or without fine
b. Not committed Imprisonment that may extend to one
eight of the longest term
Provided for the offence with or without fine.
8. Conclusion:
To conclude, I can say, that abetment is a substantive
offence. The offence of abetment is possible thought the
offence abetted is not committed. It is a Crime apart or a
distinct offence not a mere minor offence.