Of Abetment.pdf

OF ABETMENT Chapter IV BNS (Section 45-Section 60), IPC (Section 107- Section 120) PRINCIPAL AND SCOPE OF ABETMENT A crime may be commited by a single person or by more persons. When several persons are associated with the commission of a crime the degree...

OF ABETMENT Chapter IV BNS (Section 45-Section 60), IPC (Section 107- Section 120) PRINCIPAL AND SCOPE OF ABETMENT A crime may be commited by a single person or by more persons. When several persons are associated with the commission of a crime the degree of culpability of each will depend on his mode of parcipitation in the crime, for the law recognises gradations of guilt bases on variety of ways in which a person might be associated in the act of crime. Liability under this chapter of abetment is based on the principal that many crimes would be impossible but from the support and encouragement received from others who, though not actively cooperating actively in the crime, still prepare the ground and facilitate the commission. The Sanhita penalises all those who may have lent their support and assistance in one form or another to the commission of the crime. ENGLISH LAW With reference to participation in the crime English Law classify criminals into: 1) Principal in Ist degree: Who actually commits the crime 2) Principal in IInd Degree: Who is present in the crime and aids and assists into the commission of the crime. 3) Accessory before the fact: Who though absent at the time of commission of crime, counsels, procures, or command other to commit crime. 4) Accessory after the fact: Who harbours offender in escaping punishment. However, BNS does not make out much difference among above mentioned categories of criminals. Principal in IInd degree and accessory before fact is known as abettor in BNS. Section 45 of BNS defines abetment of a thing and Section 46 explains ‘Abettor’ MEANING OF ABETMENT A person is said to instigate another when he incites, encourages, solicits, provokes, councels, or command to do something. According to Section 45, BNS- Abetment is constituted in any of the following ways: 1. By instigating a person to commit an offence. 2. By engaging in a conspiracy to commit it. 3. By intentionally aiding a person to commit it. Abetment by instigation The term instigation is not defined in the Sanhita. So to understand the meaning we need to take the literal or dictionary meaning which means to provoke or solocit an act. Abetment by instigation takes place when a person is intimidated, encouraged, motivated, or pushed to commit a crime. The offence of abetment depends upon the intention of the person who abets, and not upon the actual act done by the person abetted. Abettor may not himself be bound to do the act. Queen v. Mohit (1871) 3 NWP 316 Everyone following the victim who is about to commit sati and chanting ‘sati maa ke jai’, they all are approving the act of sati. Their participation gave approval and encouragement to the victim preparing herself to be a sati. All are liable for abetment of sucide by instigation. Can silence amount to instigation: It may amount to instigation. A mere permission does not amount to instigation. Eg. where A ask approval of B to commit an offence and B is a public servant. B does not deny. B’s silence is equivallent to his approval. Instigation can be oral, writting, direct or indirect or by conduct but actively encourages the person to commit the act. Instigation may also be to an unknown person. Can an advice be an instigation: It depends on the relationship between the persons, the nature of advice, the time and context in which it was given. The intention is to actively suggest or stimulate the doing of the thing. In order to hold a person guilty of abetting it must be established that he had intentionally done something which amounted to instigating another to do a thing. Instigation by a letter: Where instigation to commit an offence by letter, the offence of abetment is complete when the content of the letter comes to the knowledge of the person who is being instigated. The moment the letter is read by B sent by A to commit an offence, the offence of abetment is complete. It is immaterial that B refuses to act on B’s letter  (Queen Empress v. Sheo Dayal Mal (1894) 16 All 389). Where the letter does not reaches B. A is liable for attempt of abetment by instigation (R v. Ransford 1874 EL). Similar rule will apply for instigation through telephone. For offence of abetment by instigation the intention of abettor is necessary. Mere instigation is a complete offence. It is not necessary that the desired result is produced. Abetment to sucide: Where a newly married women dies. The evidences indicates that the deceased had compalined about harassment and torture by her in-laws for bringing insufficient dowry. It was held that the accused were leable for abetment of sucide by instigation ( Gurubachan Singh v. Satpal Singh, AIR 1990 SC 209). Explanation I of Section 45 BNS A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration, A, a public officer, is authorized by a warrant by court of justice to apprehend Z. B, knowing that fact that C is not Z, willful represent to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C Abetment by Conspiracy Abetment by conspiracy takes place when two or more people are engaged in conspiring when an act or illegal omission takes place in pursuance of that conspiracy and in order to the doind of that act. The basis is that there is an engagement between the abettor and other person or persons in conspiracy for doing of that thing. Essentials:- Involves more than one person. There is meeting of minds (ad idem) It is not necessary that the abetted act has to be completed. Any act done to proceed the conspiracy further, it will amount to abetment. Eg., A, a servant, enters into an agreement with thieves to keep the doors of his master’s house open in the night so that they might commit theft. A, according to the agreed plan keeps the doors open and the thieves take away the master’s property. A is guilty of abetment by conspiracy for the offence of theft. Explanation V of Section 46 It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Illustration. A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder. Abetment by Aiding The third manner in which abetment may take place is by intentionally aiding. A person intentionally aids, by any act or illegal omission, the doing of that thing. Aiding is possible only either prior to or at the time of the commission of the act. In intentional aiding there is some act done. Merely being present at the place of commission of the offence does not amount to aiding. Unless the intention was to have an effect by being present or the person was aware that an offence is about to be committed or he actively supports or holds some position, rank in committing of the offence. Eg. A, a women goin to commit ssti. B another women of the village hearing the connotion, comes out and saw that women A who was being lead to sati. B was agahast and tooshocked to react. Here B is not liable for any offence. But where some persons are bringing wood, pouring ghee on A. They are committing the offence of abetment by intentional aiding. Where the accused allowed the illegal marriage to take place at the accused’s house. No liability for abetment by intentional aiding exists because the facilities given must be such as is essential for the commission of the offence in question (Queen v. Kudum, 1864 W. R. 13). But the priest who solemnized an illegal marriage intentionally and thereby facilitated  such marriage to take place was held liable for abetment by aiding (Emperor v. Umi (1882) 6 Bom 126). Aid may be given by both an act of commission as well as by an act of illegal omission. Where a head constable intentionally wents away from the place knowing the fact that third degree methods would be used to extract confession. It was held that he was guilty of abetment by intentionally aiding (Emperor v. Kalicharan (1873) 21 WR (Cr) 11). Aiding due to Coercion: Any person who aids the commission of the offence under coercion or a reasonable fear of death to his lfe does not come under the perview of the word ‘intentional’ ( Shri Ram v. State of UP 1975 SC). Explanation 2 of Section 45, BNS Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Intentional aiding can be done before the offence is committed or during the offence is committed. The act facilitatates the offence. The act actually facilitatates the offence. Eg. Where robbers plan to loot a bank. They ask the security guard to keep the door open. The security guard did the same but due to Bank manager who was on the round, the security guard thereafter closes the door. Here the security guard facilitated the act but could not actually facilitated the offence. Remember: It is necessary that the abetted act is completed in abetment by intentional aiding but not in abetment by instigation and conspiracy (CBI v. VC Shukla 1970 SC). The charge of abetment fails if the principal acused is acquited specially in case of abetment by aiding (Faguna Kanta v. State of Assam AIR 1959 Sc673) Where A was charged with the principal for abettment by aiding to cause miscarriage to a women. The principal was acquited. It was held that if the principal offendor is acquited, the abettor too shall be acquited since there was abetment of no offence. ABETTOR Section 46: Who abets either the commission of an offence Who abets the commission of an act which would be an offence Commited by a person capable of law to commit 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. Illustrations. (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. (b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder. Explanation 3: 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. Illustrations. (a) A, with a guilty intention, abets a child or a person of unsound mind to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence. (b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death. (c) A instigates B to set fire to a dwelling-house. B, in consequence of his unsoundness of mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’s instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence. (d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s possession, in good faith, believing it to be A’s property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft. Explanation 4: The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Abetment of abetment is also an offence Illustration. A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment. Explanation 5: It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. This explanation is only applicable to abetment by conspiracy Illustration. A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder. Section 47 and Section 48 of BNS extends the aplicability of offence abetment outside India. Section 49 makes the liability of abettor co-extensive with the principal provided the act is committed in consequence of abetment and has not been expressely made punishable by any other provisions of the sanhita. Illustrations. (a) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B. (b) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A’s absence and thereby causes Z’s death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.  Section 50 makes it clear that liability of the abettor is not affected even if the person abetted does the act with different intention or knowledge Section 51 says that liability of abettor when one act is abetted but different act is done. The abettor is liable even if even if the act done is different from the act abetted provided that the act done is the probable consequence of the abetment. Section 52 is the extension of section 51 where an additional act is done then there will be a cumulative punishment of each offence. Section 113 provides that the abettor is liable if the act abetted is different and a different effect is caused from what was indended by the abettor. The abettor is liable for the effect caused in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Illustration: A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder. Under section 54 if the offence is commited in presence of the abettor , he shall be deemed to have committed the very offence. Punishment for Abetment Section 56 to 60 deals with the amount of punishment an abettor is liable for. When the offence is punishable with death or imprisonment for life: 1. If offence is not commited: Imprisonment which may extend to seven years and fine 2. If any hurt is cause: Imprisonment which may extend to fourteen year and fine When the offence is punishable with imprisonment: 1. If offence is not commited: Imprisonment up to one-fourth of the longest term prescribed for the offense, or a fine, or both. 2. If offence is commited by a public servant: Imprisonment up to one-half of the longest term prescribed for the offense, or a fine, or both. Abetting Commission of Offence by Public or More than Ten Persons: Imprisonment of up to 7 years and a fine Concealing design to commit offence punishable with death or imprisonment for life: 1. If offence is commited: Imprisonment which may extend to seven years and fine. 2. If offence is commited: Imprisonment which may extend to three year and fine Public servant concealing design to commit offence which it is his duty to prevent: 1. If offence is commited: Imprisonment which may extend to one-half of the longest term prescribed for the offense, or a fine provide for the offence, or both. 2. If offence is commited: Imprisonment which may extend to three years and fine: Imprisonment up to one-half of the longest term prescribed for the offense, or a fine provide for the offence, or both. 3. The offence is punishable with death or imprisonment for life: Imprisonment which may extend to ten years. Concealing design to commit offence punishable with imprisonment: 1. If offence is commited: Imprisonment of one-forth of the imprisonment provided for the offence or a fine provide for the offence, or both. 2. If offence is commited: Imprisonment to one-eighth of the longest term of such inprisonmnet and fine provide for the offence, or both.