Abetment and Joint Liability Under Ipc Law General Essay

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] .

This essay is an example of a student's work Disclaimer This essay has been submitted to us by a student in order to help you with your studies. This is not an example of the work written by our professional essay writers. 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 another’s 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 doesn’t puts an imperative on the penal laws to punish the offender for abetment separately.

This essay is an example of a student's work Disclaimer This essay has been submitted to us by a student in order to help you with your studies. This is not an example of the work written by our professional essay writers. 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 person’s 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.