ABETMENT AND CRIMINAL CONSPIRACY

Abstract

The article insights into the ingredients relating to Abetment and criminal conspiracy. The liabilities on the abettor in various circumstances are discussed in detail. The various ways of abetment and how criminal conspiracy can be made punishable with respect to the act of abetment is also showcased. Other offences such as euthanasia and String operations has been discussed by analysing the liability under abetment and criminal conspiracy.

Introduction

Law lays down the parameters of imposing criminal and non-criminal liability on a person keeping a check on the person’s behaviour. Every criminal offence has a basic requirement of two ingredients i.e. Mens rea and Actus rea. The most common form in which a crime occurs includesMens rea (intention to commit a crime), Preparation to execute the crime, attempt to commit, and actus rea (successful commission of the crime). With the involvement and standard interpretations of these ingredients, the Court decided the liability to be criminal or non-criminal.

Abetment

Abetment or ‘to abet’ under S.106 IPC was also defined in the judgement of Sanju v. State of Madhya Pradesh[1]as an act of assisting, aiding, to guide or command, or to encourage any person in the commission of a particular illegal act or an omission. As it requires aiding by one to support or counsel another, it is understood that a minimum of 2 individuals are required for the arrangement and operation of the act.

For instance- A wants to kill C. B provides A with a gun so that A can kill C. With the gun, A shoots C and B dies. Here, the act of aiding by the abettor[2] (B) is called the act of abetment whereas, act by the abetted (A) is called as the abetted act (i.e. killing of C).

If person A here succeeds in his act of killing C, then B would be guilty of abetting under S.109 of IPC that states if the abettor abets any act or an offence, and the act abetted is committed in consequence by the abetted, then the abettor would be liable. The punishment for such an abetment would be the same as that of the offence/act abetted provided that the offence has no express provision by this code. The offences constituting abetment that are expressly stated and have different punishments from the abetted offences are particularly S. 121, 125, 171D, 131-135, 138, 236, 305-306, 354-B, 477A IPC. Moreover, the vastness of S.109 is that it can also be attracted for the Non-IPC offences which have not made abetment for such special offences as explicitly punishable[3].

Liability on abettor in various circumstances

It was stated in the case of Barendra Kumar V. The King Emperor[4] that the liability on the abettor for the act of abetment would be same irrespective of the fact that whether the consequent abetted act was successful or a failure. Moreover, the Apex court ruled out the same in the case of FagunaKanta Nath V. the State of Assam[5]. For instance, if the offence of rape (i.e. S.376 IPC) is committed by the abetted due to the abetment by an abettor, then the abettor would be held guilty U/s 376/109 of the IPC irrespective of the fact that actual rape took place or not. It should be noted that the capability of an abettor to commit the abetted crime is not a barrier to make him liable for his act of abetment[6].

The liability of abetting does not depend on the physical presence of the abettor at the time of the abetted offence. U/s 114 IPC, abettor would be considered as equivalent to participation in the abetted offence even if he is not present in actual. The liability on abettor of his act of abetment depends upon the harm caused by the abetted act as mentioned U/s. S.115 & 116 IPC.

S.115(1) – punishment for abetment of an offence punishable with death sentence/ life imprisonment = upto 7 yrs. imprisonment + fine (if no hurt is caused)

S115(2) = upto 14years imprisonment + fine (if hurt caused)

S.116(1)- punishment for abetment of an offence punishable with imprisonment = ¼ of the imprisonment + fine

S.116(2)- upto ½ of imprisonment if abettor/abetted is a public servant

Ways of Abetting

  • Abetment by instigation[7]– An act of causing something to happen. It actively stimulates an individual to act by any means of language, direct or indirect, whether it takes the role of express solicitation, or of hints, insinuation, or encouragement. Mens rea (Intention) is the main ingredient required and therefore, negligence and carelessness cannot be made liable under instigation.
  • Abetment by aid[8]– Intentionally aiding a person to commit an offence.The case of FagunaKanta Nath V. State of Assam[9]raised an issue that whether the abettor would be held liable when the abetted is acquitted of committing an offence. The paddy inspector and his assistant got acquitted of the charge of taking bribe U/s 161 of the IPC but still, the abettor (who paid the bribe amount) was held liable U/s 165A IPC for abetment (by aid) of offence U/s 161 & 165 of the IPC. The only way for the abettor to escape liability is the offence aided not been proved to have been committed.

In the case of Tejsingh V. State of Rajasthan[10], the victim committed Sati due to the abetment by family members and villagers. Some of the members took the plea of alibi in defence which was rejected by the Court as physical presence is not necessary for abetment. The court ruled that it might have been own decision of the victim to do Sati but the accused by applauding her decision with slogans (abetment by instigation) such as “Sati Ki Jai”; allowed her to proceed the funeral pyre (abetment by aid) and subsequently prevented police officers from doing their duty to restrict the victim. (abetment by aid). Therefore, the accused was found guilty U/s 306 IPC and was awarded a punishment of 6 months which got increased to 5 years rigorous imprisonment as a result of abetment by instigation.

Abetment of Suicide and Euthanasia

Whoever will abet the act of commission/attempt to suicide, he would be liable for abetting the suicide[11] and would be punished with imprisonment upto 10 years and fine.  The abettor in the case of Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi)[12] kept on irritating and annoying the deceased by words, deeds, and wilful omission or conduct forcing the deceased to pay his business dues and complete the transactions. the intention of the accused to provoke, urge, or to encourage the deceased to commit suicide was proved as mens rea is a necessary concomitant of instigation. Therefore, the accused was held liable for abetment of suicide by instigation.

The act or practice of painlessly putting to death persons suffering from incurable and distressing disease as an act of mercy is called as Euthanasia[13]. The question arises that whether the killing of a person in bona fide intention or abetment of suicide in Euthanasia cases are punishable or not and to which extent under the Indian Criminal Law.

Some terms must be understood before determining the liabilities and parameters for the same.

Voluntary Euthanasia- with the consent of the deceased.

Non-voluntary Euthanasia– without the consent of the deceased when the deceased is not in a state to give any consent.

Involuntary Euthanasia– against the will of the deceased.

Passive Euthanasia– it is an act which leads to the killing of a person directly and is of more heinous nature e.g. overdosing with drugs or medicines.

Active Euthanasia– it is an omission by removing life-giving supports and letting the person die.

 ACTIVE EUTHANASIAPASSIVE EUTHANASIA
VOLUNTARY EUTHANASIAA consent to B to give him a life-taking injection.A consent to B to withdraw life support systems (ventilator or medics) from A.
NON-VOLUNTARY EUTHANASIAB giving a life-taking injection to A who is not in a position to give any consent.B withdraws life support systems from A who is in no position to give his consent.
INVOLUNTARY EUTHANASIAB gives a life-taking injection to A against the will of A.B withdraws life support system from A against the will of A.

In the case of P Rathinam V. UOI[14], the constitutional validity of S.309 was questioned and held that S.309 IPC ultra vires Art. 21 of the Constitution of India stating that Art. 21 COI includes the right to take one’s own life.  In the subsequent case of Gian Kaur V. State of Punjab[15], the earlier judgement was overruled, and it was held that Art. 21 does not includeright to take one’s own life. The debate on physician-assisted suicide is inconclusive and hence, S.306 & S.309 IPC intra vires the COI. Further, it was held in the landmark judgementof Common Cause V. UOI[16]that active euthanasia was not permissible, and liability of passive euthanasia depends on various circumstances of the case

Criminal Conspiracy

When 2 or more persons agree to do or to cause an illegal act or an omission, such an agreement is called criminal conspiracy[17].Such an agreement or planning despite the failure in commission or non-commission of the illegal act will be punishable and would be held as a criminal conspiracy.

Minimum 2 persons are required for constituting an offence under S.120B. In the case of Bimbadhar Pradhan V. State of Orissa[18], it was held that sole person can be convicted for Criminal Conspiracy U/s 120B if it is proved that other persons (unknown) were involved with him in the crime but are not found yet.

Criminal conspiracy is a continuing offence until the agreement is executed or frustrated or rescinded. Further, the express agreements do not need any proofs, but the physical manifestation of the agreement is necessary to be proved.

Ingredients constituting a criminal conspiracy

S. 10 of the Indian Evidence Act lay down the basic ingredients constituting criminal conspiracy.

S.10 IEA- Doctrine of Agency

  • Reasonable ground to believe that 2 or more persons are involved.
  • Should be in reference to the common intention, NOT in furtherance of the common intention[19].
  • Evidence against one conspirator can be used against other conspirators as well.
  • Evidence of the conspiracy.
  • Evidence of the party’s identity.

Criminal conspiracy is the 3rd way of abetment. It was added as a distinct offence in 1913 (due to assassination attempt on Viceroy Lord Hardinge in 1912 at Chandni Chowk, Delhi). A person abets by criminal conspiracy by engaging with one or more person in a conspiracy and an act takes place in pursuance of that conspiracy. But a person would be only liable for criminal conspiracy if he enters a conspiracy with more than one person to commit an OFFENCE i.e. the fact of minds is made punishable.

Therefore, it is evident that mere conspiracy is not an abetment by conspiracy and therefore was not punishable at all U/s 109 IPC till 1913 except for distinct abetment by conspiracy offences (S.121A, 311, 400 & 401). Moreover, S. 34 IPC can be invoked when 2 or more persons are involved, and they share a common intention to commit an offence.

Conclusion

Both the offences require the existence of a culpable mental state which is a matter of proof from the surrounding facts established by the material on record. A crime does not stand obliterated or extinguished merely because its commission is claimed to be in the public interest. The above is with regards to the sting operations which can also be brought under the offence of abetment as conspiracy[20]. Any such principle would be abhorrent to our criminal jurisprudence.                                        

References


[1] Sanju v. State of Madhya Pradesh, (2002) 5 SCC 37

[2] S.108 IPC

[3] S. 40(2) IPC

[4]Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1

[5]1959 AIR 673, 1959 SCR Supl. (2) 1

[6] S. 108 Explanation 3 + illustration (a), (b) & c.

[7]S107(1) r/w explanation 1 to section.

[8] S.107(3) r/w explanation 2 to section.

[9] Supra note 5

[10]AIR 1958 Raj 169, 1958 CriLJ 967

[11] S.306 IPC r/w S.113-A IEA

[12] 2009 16 SCC 605

[13]Black’s law dictionary. HENRY CAMPBELL BLACK, M. A. 1990

[14] 1994 AIR 1844, 1994 SCC (3) 394

[15] 1996 AIR 946, 1996 SCC (2) 648

[16] (2018) 5 SCC

[17] S.120A of IPC.

[18] 1956 AIR 469, 1956 SCR 206

[19] Mirza Akbar V. Emperor, AIR 1940 PC 176

[20] Rajat Prasad V. CBI (2014) SC

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