Principal & Accessory
A crime may be committed by one person or more than two people, when several persons commit a criminal act, there is a need to make a necessary distinction between them based on the degree of culpability. The degree will depend on the level of participation in the crime. The law recognises this and the level of liability is conferred by determining the roles of the criminals in the commission of the crime. English law makes a distinction between the principal and the accessories; principals of first and second degrees, and between accessories before and after the fact. The person or persons who commit the act is a principal in the first degree and whoever aids or abets the actual commission of a crime is the principal in the second degree. An accessory before the fact is the one who expressly or impliedly incites, counsels, procures, encourages or commands any person to commit a crime, such a person if present at the commission of crime is a principal in the second degree. An accessory after the fact of the crime has knowledge that a crime has been committed he receives, comforts or assists the criminal, for him to escape from punishment.
The word abet as defined in the Merriam Webster dictionary means to actively second and encourage, usually in wrongdoing. This word finds its origin in the French term abeter, and is debated to be possible of Germanic origin. The IPC deals in detail on the offence of abetment in Chapter V from Section 107- 120. The term is defined in the India Penal Code under Section 107 which states:
Abetment of a thing.—A person abets the doing of a thing, who—
Firstly— 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;
Thirdly— intentionally aids, by any act or illegal omission, the doing of that thing.
Let us understand this with an illustration, A, a public officer is authorized by a warrant from a Court of Justice to apprehend Z. B knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend. Here B abets by instigation the apprehension of C.
Section 108 defines an Abettor
Abettor.—A person abets an offence, who abets either the commission of an offence or the commission of an act which would 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.
Explanation 1.—The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2.—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 caused.
Essentials and Meaning of Abetment
The definition of abetment is not a hard one to grasp, we understand from the definition that there needs to be an instigation or a conspiracy, there need to be two parties involved, the instigator and the abettor, the act or omission needs to be illegal, there should be a presence of both mens reas and actus reas to be convicted for the offence of Abetment. Thus the essentials are:
- Instigating a person to commit an offence
- Engage with one or more person in a conspiracy to commit an offence; or
- Intentionally aiding a person by any act or illegal omission to commit an offence
Thus abetment can broadly be divided into three classifications, let us understand these through case laws & illustrations:
Abetment by Instigation
Instigation as the word implies, is the act of inciting another to do a wrongful act. To prove instigation it is necessary to show that was some active proceeding which encouraged the person to commit the crime.
In the case of Queen v. Mohit, the persons who followed a woman preparing herself to be a sati on the pyre of her husband and chanted Rama, Rama were held guilty of abetment by instigation to lead the woman to commit suicide. They approved of the act of sati by their participation in the process and encouraged her to commit suicide.
Abetment by Conspiracy
Conspiracy is usually understood as an agreement between two or more persons to cause something illegal to be done, criminal conspiracy under section 107 has a more restricted meaning.
A, a servant enters into an agreement with thieves to keep the doors of his master’s house open in the night, so they might commit theft.. A is guilty of abetment by conspiracy for the offence of theft. If the thieves do not commit the act of theft, A will not be held liable
Abetment by aid
A incites B to kill Z, by telling him to kill him, kill him, and gives him a knife for him to commit the act. Here both A and B will be guilty of abetting the offence of murder, one by instigation and the other by aiding to commit the offence.
Aiding & Criminal Conspiracy
It is stated that anyone who at time of the commission of crime or before it, does anything to facilitate the commit is said to aid the doing of that act. This explanation reveals that mere intention to facilitate is not enough to constitute abetment. Going by the definition mentioned in section 107, if a servant keeps the gate of his master’s house open so that thieves may come to steal, if they don’t he cannot be held liable. But if he encourages, tempts, provokes another then he instigates the act and will be held for abetment. Aid may be given by doing an act or by omission. When a police officer, who knows that a person is going to be tortured to get a confession, he still does not intervene, here he will be held guilty of abetment within the meaning of the case Queen v. Kali Churn( 21 W.R. Cr. 11)
A conspiracy under law is the agreement between two or more people to do an illegal act by illegal means. Before the passing of the Criminal Law Amendment Act, 1913 a conspiracy was punishable only if the act was done but this was changed and now the definition is when two or more persons agree to do or cause to be done an illegal act or an act which is illegal, such an agreement is designated a criminal conspiracy and is punishable.
Chapter V of the IPC on Offence of abetment must be read with the chapters of general explanations and general exceptions. Principals and accessories can be tried together both in England and India. In England the procedure is regulated by the accessories and abettors Act, 1861, and in India by the Code of Criminal Procedure 1973. Abetment is not a petty offence and thus section 109, 115 and 116 deal the punishments for the same that range from death, life imprisonment, fine or both.
Frequently Asked Questions
Can a husband and wife be conspirators?
It may be mentioned inpassing that in English law a man and his wife cannot be indicted for conspiring together alone, because legally they are deemed to be one person, but such an indictment will not be barred in India
What is the scope of the chapter on abetment?
This section is intended to make evidence, communications between different conspirators, while the conspiracy is going on with reference to the carrying out of the conspiracy. This section covers abetment on a very wide scale and the classifications thus assist the scope of this chapter.
When is abetment complete?
Abetment is complete in abetment by conspiracy or aid as soon as the instigation or conspiracy has taken place.
What is the difference between abetment and section 34?
It will be useful to refer to section 34 of the IPC to determine the relative culpability of those who merely abet and who fall within section 107. Section 34 provides when an act is done by several people in furtherance of a common intention, there need not be a common intention in abetment.
“The views of the authors are personal“
The Indian Penal Code, K.D. Gaur, fourth Edition, Universal Law Publishing Co. p,195-210Cecil Turner.J. (2013), Kenny’s Outlines of Criminal Law, Cambridge: Cambridge University PressTextbook of Criminal Law, Glanville Williams, fourth Edition, Sweet & Maxwell South Asian Edition Mahmood Rooholamini, Concept of Abetment in the IPC (2013), 10 J. Pol. & L. 162 (2017).Wong Yi Jin, A Dominant Intention Test for Abetment by Aiding – A Look at Daw Aye Aye Mu at Daw Aye Than v. Public Prosecutor, 19 Sing. L. Rev. 121 (1998).Syed Shamsul Huda. Principles of the Law of Crimes in British India (1919).