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E-Notes Law of Crimes-I Unit-3

Indian penal code (Guru Gobind Singh Indraprastha University)

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E-Notes

Class : BBA LL.B/B.A.LL.B III SEMESTER

Paper Code : LLB205
Subject : Law of Crimes-I
Faculty Name : Ms. Akansha Singh

Unit-III

INTRODUCTION

Criminal Intention is the highest form of blameworthiness of mind or mens rea.

Intention occupies a symbolic place in criminal law. As the highest form of mental
element it applies to murder and the gravest form of crimes in criminal justice
system. The term ‘intention’ is not defined in Indian Penal Code but section 34 of
IPC deals with common intention. The intention made among several person to do
something wrong and act done in that manner in which it was formulated comes
under sanction of section 34 of IPC. Section 34 deals with a situation, where an
offence requires a particular criminal intention or knowledge and is committed by
several persons. Each of them who join the act with such knowledge or intention is
liable in the same way as if it were done by him alone with that intention or
knowledge. The liability of individuals under this circumstance is called Joint
Liability. The principle of Joint Liability defined in section 34 is as follows:

Section 34. Acts done by several persons in furtherance of common intention –

When a criminal act is done by several persons in furtherance of common intention
of all, each of such persons is liable for that act in the same manner as if it were
done by him alone.

In this article the act is referred, which is defined under article 33 as:

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Section 33. ‘Act’, ‘Omission’. – the word ‘act’ denotes as well a series of acts as a
single act: the word ‘omission’ denotes as well a series of omissions as a single
omission.

It is clear from s.34 and s.33 that the term criminal act refers to more than a single
act and would cover an entire series of acts.

Section 34 to section 38 in chapter II of IPC dealing with ‘General Explanation’

state the conditions in which a person may be held constructively liable for the acts
committed by the other members of group.

The chapter VIII of Indian Penal Code refers to ‘Offences against the Public
Tranquillity’ from section 141 to section 160. Offences against public tranquillity
also known as ‘Group Offences’ and lead to disturbance of public peace. S.141
defines ‘Unlawful Assembly’ for which there should be five or more persons, and
the object should be common to all. If five or more persons are doing wrong act with
common objective then liability on each person will be same as it is done by him
alone. This liability on each person is called ‘Group Liability’. Section 149 of IPC
imposes group liability on each and every members of assembly and definedas
follows:

Section 149. Every member of unlawful assembly guilty of offence committed in

prosecution of common object —If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be committed in prosecution
of that object, every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence.

To impose this section under group liability there should be an unlawful assembly,
which is defined under s.141. And the offence should be committed in prosecution
of common object.

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COMMON INTENTION

Common intention implies a pre arranged plan and acting in concert pursuant to the
plan. Common intention comes into being prior to the commission of the act, which
need not be a long gap. To bring this section into effect a pre-concert is not
necessarily be proved, but it may well develop on the spot as between a number of
persons and could be inferred from facts and circumstances of each case.

In Amrik Singh’s Case[i] it has been further held that though common intention may
develop in course of the fight but there must be clear and unimpeachable evidence
to justify that inference. In the case Pandurang v. State of Hyderabad[ii] , Supreme
court emphasised on this point that prior concert need not be something always very
much prior to the incident, but could well be something that may develop on the
spot, on the spur of the moment. In this case Ramchander Shelke (deceased) with his
wife’s sister went to the field. While Ramchander went to riverside the five persons
including three appellant (Pandurang, Tukia, and Bhilia ) attacked on him.
According to eyewitnesses, Pandurang, Tukia and Bhilia were holding axes and
other two accused Tukaram and Nilia had sticks in their hands. The deceased died
on the spot. In this case different eyewitnesses told different story. The trial court
convicted each of accused of charge s.302 with s. 34 and sentenced to death. Appeal
lied in High court and conviction of Pandurang, Tukia, Bhilia was maintained but
other two accused persons sentence was commuted to transportation for life. When
the matter came up to Supreme Court, the learned judge said that each are liable for
their own act. The Apex Court set aside the death sentence of Pandurang and
convicted him instead under s.326, and sentenced for 10 years rigorous
imprisonment. The Supreme Court altered the sentence of Tukia and Bhilia to
transportation for life. The Supreme Court elaborated in this case that:

“In a case like that, each would be individually liable for whatever injury he
caused but none would be vicariously convicted for the acts of any of the others; if
the prosecution cannot prove that his separate blow was a fatal one, he cannot be
convicted of the murder, however clearly an intention to kill could be proved in this
case….”

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The essence of liability to be found in existence of common intention is that the

criminal act complained against was done by one of the accused persons in
furtherance of common intention of all, if this is shown, then the liability for the
crime may be imposed on any one of the persons in the same manner as if the act
were done by him alone.

In the case of Mahboob Shah v. Emperor[iv], the appellant Mahboob shah was of
age 19 and was convicted by Session Judge of the charge s.302 with s.34 for the
murder of Allah Dad. The Session court sentenced him for death. The High Court of
Judicature also confirmed the death sentence. On appeal before Lordship, the
conviction for murder and sentence of death was quashed. It was contended before
appellant that – “when Allah Dad and Hamidullah tried to run away, Wali Shah and
Mahboob Shah Came in front of them… and fired shots” and so there was evidence
of forming common intention at the spur of the moment. Their Lordship was not
satisfied upon this view and humbly advised His Majesty that the appellanthaving
succeeded in his appeal, his appeal should be allowed and his convictionfor murder
and the sentence of death set aside.

Common Intention and Similar Intention

Common intention does not mean similar intention of several persons. To constitute
common intention it is necessary that the intention of each one of them be known to
the rest of them and shared by them. This section 34 is only a rule of evidence and
does not create a substantive offence. This section only applies with other penal
sections which deal with the punishment of the offence.

In the case of Dukhmochan Pandey v. State of Bihar[v] , the complainant had sent
about 20 labours to his field for transplanting paddy. On the mid day the accused
party came as a mob of about 200 people armed with various deadly weapons. They
asked laborers to stop the work, and when the complainant objected to this, the two
accused directed the mob to kill labourers. The mob started assaulted the labourers
as a result of this two labours died. When the police party reached, the mob fled from
the spot. The death was established to have caused by injuries

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inflicted by shock and hemorrhage caused by injuries inflicted with sharp pointed
weapons.

The Supreme Court in this case held that: “Common intention which developed at
the spur of the moment is different from the similar intention actuated a number of
person at the same time….the distinction between a common intention and similar
intention may be fine, but is nonetheless a real one and if overlooked, may lead to
miscarriage of justice….”

Mere presence of accused together is not sufficient to hold that they shared the
common intention to commit the offence in question. It is necessary that the intention
of each one of ‘several persons’ be known to each other for constituting common
intention.

Inferences

From the various interpretations of Apex Court and guideline given in different
cases, some inferences could be drawn to impose Joint Liability under section 34.
These are –

1. To establish common intention premeditation of minds is necessary. There

should be prior meeting of minds which activated common intention and
criminal act should have been done in furtherance of common intention.
2. There may be situation in which premeditation was not present, but
intention developed at the spur of the time, but it should must been shared
among one another.
3. To prove common intention is a very hard, because it is the mental thinking
of the accused at that point of time. So it has to be culled out from the facts
and circumstances of each case.
4. There is a difference between common intention and similar intention, and
S.34 can be invoked only when the accused shares common intention and not
one the similar intention.

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5. Unless common intention is proved, individual will be liable for his own act
and not otherwise. They will be deal as under s.38 of IPC. And if there is any
doubt, the benefit of doubt should be given to the accused.

Cases

One of the earliest cases came before the court under s.34 under the principle of Joint
Liability was Barendra Kumar Ghosh v. King Emperor[vi]. This case is also known
as the ‘Post Master Case’. In this case, the accused Barendra with other three persons
went to Shankaritola post office at about 3.30 pm on the 3rd August 1923 armed
with firearms. The accused stood outside the post office while others three entered
the post office through the backdoor of office. They asked post master Amrita Lal
Roy to give the money which he was counting. When he refused, then others
three opened fire from the pistol and fled from the place. As a result of which he
died almost immediately. Seeing others running the accused alsoran away by air
firing with his pistol. But he was chased and caught by post office assistant. He
was charged with others under s.302 (murder to post master) and
s.394 (causing hurt in doing robbery) with s.34 in common intention of all. He
contended that he was only standing guard outside the post office and he did not
have the intention to kill the post master. Calcutta High Court confirmed his
conviction of murder under s.302 with s.34. In the appeal before the Privy Council,
Lord Sumner dismissed the appeal against the conviction and held that – “criminal
acts means that unity of criminal behaviour which results in something for which an
individual would be responsible, if it were all done by himself alone, that is, in
criminal offence.”

The other important case came before the Supreme Court was Rangaswami v. State
of Tamil Nadu[vii]. The occurrence took place at about 11.45 pm on 16.08.1973 in
Big Bazar Street, in which one Jayaram was murdered. In this case session court
convicted A-1 under s. 302 and sentenced him to death. A-2 and A-3 were charged
under s. 307 with s.34, and sentenced rigorous imprisonment of 8 years by session
judge. While High Court considering the fact altered the decision of session court
and enhanced the sentence of A-2 and A-3 to imprisonment for life under s. 302 with
s.34. And the death sentence of A-1 was modified for imprisonment for life.

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Against this conviction A-3 appealed in Supreme Court and contended that he was
only in friendly relation with A-1 and A-2 but he did not shared common intention
with them. It was by mere chance that he appeared at the spot of occurrence and he
did not participated in offence. In this case, there was a prior enmity between
deceased and A-1 and A-2, because the deceased was accused of murdering the
brother of A-1, and he was actually on the bail. Supreme Court held that even though
the presence of A-3 was established but he did not share common intention and he
was unfamiliar with the plan. Therefore he was acquitted all of the charges.

The other case before Supreme Court was Muthu Naicker and others v. State of
Tamil Nadu[viii]. The dispute arose among the village community of Karpakkam
village when accused no. A-11 Kuppu Naicker who has a well in land bearing Survey
No. 102, wanted to lay a pipe-line to take water to the field bearing No. 186/2
belonging to his wife, Dhanammal. There was another well sunk by the local
Panchayat in Survey No. 170 for the use of the village community and when A-11
wanted to take water from his well in Survey No. 102, an apprehension was
entertained by the residents of the village that there would not be enough water in
the well in Survey No. 170 and there would be water shortage. Gripped by this
apprehension, a majority of the village community resisted the attempt of A-11 to
take water by laying pipelines. Some villagers approached to collector on March 6,
1967, the collector suspended the permission granted to A-11 to lay the pipe lines.
A-11 and his companions ignored the order of collector and continued the digging
of channel. The matter arose on 27 November 1968 at around 2.30 pm when
deceased Gajarajan brother of P.W. 31 was returning from Madras by bus, a crowd
of 50-60 persons including A-1 to A-23 and A-28 attempted to waylay the deceased.
Deceased tried to escape but was chased by them and encircled by the crowd near a
well and was attacked. After completing the investigation police submitted challan
against 28 accused for various offences. The learned session judge giving the benefit
of reasonable doubt, rejected the prosecution case and acquitted all the accused. The
state of Tamil Nadu preferred an appeal in High Court of Madras against A-1 to A-
27. While the acquittal of A-28 was considered as final. The High Court convicted
A-1 to A-7 and A-19 for charge under S.302 with S.34 and sentenced them for life
imprisonment. They preferred criminal

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appeal in Supreme Court. The conviction of accused A-1, A-2, A-4, A-5 under
S.302 with S.34 was confirmed and sentenced to life imprisonment. While
conviction of A-3, A-6, A-7, A-19 under this charge of S.302 was set aside and were
charged with others under Hurt and Grievous Hurt differently. Supreme Court held
that in a local community when something unusual occurs, a good number of people
appear on the scene not with a view to participate in occurrence but as a curious
spectators. In such event mere presence in unlawful assembly should not be treated
that person concerned was a member of unlawful assembly.

COMMON OBJECT

The offence dealing with Group Liability or Vicarious Liability of members comes
under Chapter VIII of the Indian Penal Code. This chapter deals with offences
against Public Tranquillity from s.141 to s.160. The first section of this chapter
s.141 defines Unlawful Assembly, for which there should be five or more persons
and some common objects for which they have made that assembly. The section 141
is:

Section 141. Unlawful assembly —

An assembly of five or more persons is designated an “unlawful assembly“, if the

common object of the persons composing that assembly is—

First – To overawe by criminal force, or show of criminal force, the Central or any
State Government or Parliament or the Legislature of any State, or any public servant
in the exercise of the lawful power of such public servant; or

Second – To resist the execution of any law, or of any legal process; or

Third – To commit any mischief or criminal trespass, or other offence; or

Fourth – By means of criminal force, or show of criminal force, to any person, to

take or obtain possession of any property, or to deprive any person of the enjoyment
of a right of way, or of the use of water or other incorporeal right of

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which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth – By means of criminal force, or show of criminal force, to compel any person
to do what he is not legally bound to do, or to omit to do what he is legally entitled
to do.

Explanation – An assembly which was not unlawful when it assembled, may

subsequently become an unlawful assembly.

From this section we can say that, to constitute an unlawful assembly the following
ingredients is necessary –

1. There should be an assembly of five or more persons.

2. There must be a common object for them.
3. Common object must be one of the five ingredients, specified in the above
section.

When the number of the persons reduces from five for trial for the reason that some
were acquitted for the charges then the s. 141 will become inapplicable. Butif there
is clear indication that some other unidentified persons are involved in the crime
then this section can be applied. In Ram Bilas Singh v. State of Bihar[ix], Supreme
Court held that:

“it is competent to a court to come to the conclusion that there was an unlawful
assembly of five or more persons, even if less than that number have been convicted
by it if: (i) the charge states that apart from the persons named, several other
unidentified persons were also members of the unlawful assembly whose common
object was to commit an unlawful act …..(ii) or that the first information report and
evidence shows such to be the case even though the charge does not states so. (iii)
or that though the charge and prosecution witnesses named only theacquitted and
the convicted accused persons there is other evidence which discloses the existence
of named or other persons”

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The other ingredient of this section is common object. Object means the purpose,
and it will be common when it is shared by the members of the unlawful assembly.
Common object may be formed at any stage by all or few members of the assembly.
The explanation of this section shows it clearly. However common object is
entertained in the human mind so there can be no evidence to prove directly about
this. It is a question of the fact and can be culled out on the basis of facts and
circumstances of each case. It can be determined from the nature of the assembly,
the kinds of arms and their uses by it, behaviour and the language of the members of
the assembly used before and after the incident. If only four out of the five assembled
person have common object and not fifth, then that assembly is not an unlawful
assembly. Simple onlooker or family of the parties cannot become the member of
unlawful assembly unless they actively participated or encouraged the violence.

In Moti Das v. Bihar[x], Supreme Court held that pre-concert is not necessary. An
assembly may be lawful in beginning but may turn into unlawful later.

Being a member of Unlawful assembly is itself a crime and s.143 prescribes the
punishment of six months, or fine, or both for being a member of that assembly.

The section which imposes the liability on each person of the offence committed
by the members of the assembly is section 149 of IPC. The section 149 of IPC is:

Section 149. Every member of unlawful assembly guilty of offence committed in

prosecution of common object — If an offence is committed by any member of an
unlawful assembly in prosecutionof the common object of that assembly, or such as
the members of that assemblyknew to be likely to be committed in prosecution of
that object, every person who,at the time of the committing ofthat offence, is a
member of the same assembly, isguilty of that offence.

In Bhudeo Mandal v. State of Bihar[xi], the Apex Court held that before convicting
any person with the aid of s.149, the evidence must clearly establish notonly the
common object, but also show that the common object was unlawful. In Ram Dhani
v. State[xii], there was a dispute over land and the complainant party

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resorted to cutting crop grown by the accused party. The later were more than five
in number and assembled to prevent the cutting. The court held that – the persons
acting in self defence of the property cannot be members of an unlawful assembly.
And so they could not be said to form an unlawful assembly.

The word ‘knew’ is used in second part of the s. 149, which implies more than
possibility but less than might have known. An offence committed in prosecutionof
common object would generally be offence which the members of the assembly
knew was likely to be committed[xiii]. This phrase means that the offence
committed was immediately connected with the common object of the unlawful
assembly, of which the accused were members. The word ‘in prosecution ofcommon
object’ means that the offence committed was immediately connected with the
common object of the assembly or in order to attain common object.

Cases

In Rambilas Singh and others v. State of Bihar[xiv], the case of prosecution was that
deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them
plucking Khesari crops from his field. And so he abused them and snatched away
the plucked plants and their baskets. In retaliation for it the 16 accused persons had
lay in wait for him on that night and attacked him at about 9.30 P.M. when he was
returning home with his brother PW-22 and two other witnesses PWs 1 and 18 after
attending a barat. PW-22 stated that 16 persons surrounded Kumar Gopal Singh and
then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal Singh as a
result of which he died. The Session Judge acquitted all the persons A-1 to A-15
who were charged under s.302 with s.149, but convicted A-16 (Dinesh Singh) who
was charged directly under s.302. In High Court A-1 and A-9 were acquitted while
A-2 and A-6 died during pendency of the appeal. The High Court convicted the rest
of the accused A-3, A-4, A-5, A-7, A-8, A-10 to A-15. On appeal further Supreme
Court set aside the conviction of accused by High Court under s.302 with s.149 and
held that in order to convict persons vicariously under Section 34 or Section 149
IPC, it is not necessary to prove that each and every one of them had indulged in
overt acts. Even so, there must be material to show that theovert act or acts of one
or more of the accused was or were done in furtherance of

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the common intention of all the accused or in prosecution of the common object of
the members of the unlawful assembly. In this case, such evidence is lacking and
hence the appellants cannot be held liable for the individual act of Dinesh Singh.

In another case of Ram Bilas Singh v. State of Bihar , court held that an accused
person cannot be held liable vicariously for the act of an acquitted person.

DIFFERENCE BETWEEN COMMON INTENTION AND COMMON

OBJECT-

Both the section 34 and s.149 imposes vicarious liability on each person for acts not
necessarily done by them. However there is a difference in the scope and nature of
operation of the two offences. The charge of s.149 is substituted by s.34 of IPC,
especially when some accused are acquitted and number of the accused falls below
five. In this case the court would have to carefully examine the evidence to see
whether some element of common intention exists for which he can be made liable
under s.34. The main differences between the two sections are as follows:

• Section 34 does not create any specific offence but only lays down the
principle of joint criminal liability. Whereas s.149 creates specific offence and
being a member of an unlawful assembly is itself a crime, which is punishable
under s.143.

• ‘Common intention’ used in s.34 is not defined anywhere in IPC,

while
‘common object’ in s.149 must be one of the five ingredients defined in s.
141 of IPC.
• Common intention requires prior meeting of mind and unity of intention and
overt act has been done in furtherance of the common intention of all.
Common object may be formed without prior meeting of mind when the
common object of the members of the unlawful assembly is one but intention
of participants is different. It only requires that criminal act has been done in
furtherance of common object.

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• For invoking s.34 it is sufficient that two or more persons were

involved.
However there have to be minimum five persons to impose s.149.
• The crucial factor of s.34 is ‘participation’ while there is no need of
active
participation in s.149 of IPC.

PROPOSALS FOR REFORM

The Fifth Law Commission of India[xvi] in its report proposed suggestions for
reform of s.34 to clear ambiguity. It proposed that, for better understanding the
phrase ‘several persons’ be substituted by ‘two or more persons’.

Fifth Law Commission[xvii]also proposed to substitute the Third object of s.141 ‘to
commit any mischief or criminal trespass, or other offence’ with ‘to commit any
offence punishable with imprisonment’ to clear ambiguity.

CONCLUSION

Fixing vicarious liability under s.34 or s.149 depends on their method adopted to
furnish the crime. There are two sections dealing with ‘common intention’ and
‘common object’ under two chapters of IPC ‘General Explanation’ and ‘Of Offences
Against Public Tranquillity’ respectively. Sometimes there arises difficulty in
proving with evidences that whether they shared common intention or not. And also
that how many people were the members of Unlawful Assembly with their common
object same. However these ambiguities were removed by the Supreme Court in
different cases, after determining its facts and situation of each case.

To clear and better understanding, Law Commission of India also gave many
suggestions to Legislature for amendment of some part of statute.

Even after so much effort there arises problems of which law will be applicable
amongst the two in some crucial cases, and investigators and charge sheet filers
makes mistakes in this regard.

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BIBLIOGRAPHY

• P S A Pillai’s – CRIMINAL LAW – 11th Edition

• Ratanlal & Dhirajlal – THE INDIAN PENAL CODE – 33rd Edition
• Criminal Law: Cases and Materials – Sixth Edition – K D Gaur
• indiankanoon.org – (CASES)

Edited by Sinjini Majumdar

Amrik Singh v. State of Punjab 1972

AIR 1954 SC 706

Mahboob Shah v. Emperor (1945) 47 Com LR 941

AIR 1998 SC 40

AIR 1925 PC 1

[vii] AIR 1989 SC 1137 ; 1989 Supp (1) SCC 686

AIR 1978 SC 1647

1964 Cr LJ 673 (SC) [x]

(1954) Cr LJ 1708 (SC)

[xi] AIR 1981 SC 1219

[xii] 1997 Cr LJ 2286

[xiii] Chanda v. State of U.P. AIR 2004 SC 2836 ; the expression ‘in prosecution of
common object’ and the word ‘knew’ used in s. 149 were explained.

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[xiv] AIR 1989 SC 1593

[xv] (1964) Cr LJ 673 (SC)

[xvi] Law Commission of India (Forty Second report: Indian Penal Code) 1971

[xvii] ibid

INTRODUCTION

A crime may be committed by one or more persons involved in crime then their
liability depends upon the extent of their participation. Thus this rule of joint liability
comes into existence. But there is an important fact which is that the law has a
knowledge about the abettor, who has given help to another in crime. This rule is
very ancient and was applied in Hindu Law also. In English Law, criminals are
divided in four categories, but in India there is only one distinction between thedoer
and his helper who is known as abettor. The crime of abetment come under section
107 to 120 of the IPC. Section 107 defines ‘abetment of a things’ and section l08
defines about the abettor.

SECTION 107 IPC ‘ABETMENT OF THING :

A person abets the doing of a thing by instigation:-

1. Instigate any person to do that things

2. By conspiracy.
S

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BY INSTIGATION ANY PERSON TO DO THAT THINGS-

According to the first clause of section 107 a person abets of thing that
instigates any person to do that thing. A person is said to instigate another
when he incites, urges, encourages, provokes, counsels, procures or
command him to do something.

EXPLANATION :- A person who by willful misrepresentations or by will full

concealment of a material fact, which he is bound to disclose, voluntary causes or
procures or attempts to cause or procures a thing to be done, is said to instigate the
doing of that things.

ILLUSTRATION:
A Police 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, willfully represents to A that C is Z
and thereby intentionally causes A to apprehend C. Here B abets by instigation the
apprehension of C.

Case: Gurbachan Singh v. Sat Pal Singh, AIR- 1990

A newly wedded girl died of burns. The father of deceased had stated in FIR that the
deceased committed suicide because of harassment and constant taunt for
insufficient dowry. It was held by the SC that the deceased had committed suicide

at the instigation of her husband and in laws and it was not a case of accidental death.
2. ABETMENT BY CONSPIRACY

The second clause of this section states that a person abets the doing of a thing who
engages with one or more other persons in conspiracy for the doing of that thing.
If an act or illegal omission takes place in pursuance of that conspiracy andin order
to doing of that thing then it is called abetment by conspiracy. If an act or illegal
omission takes place in prurience of that conspiracy.

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ILLUSTRATION:-

A concerts with B a plans 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
deliver it to B for the purpose explained ‘A’ administers the poison and Z dies. Here
A and C have not conspired together, yet C has therefore committed the offence and
is liable for punishment.

A case : Rup Devi v. State : 1955.

The deceased & his wife had strained relationship. The wife had illicit intimacy with
the accused. The deceased was scheduled to go to ‘Sadhu” on a particular
day. The wife told the accused about this programme even though she knew that
the accused was waiting for the opportunity to kill her husband and taking the
opportunity he killed him. It was held that the wife was not guilty of abetment by
conspiracy, even though her conduct was open to censure.

3. ABETMENT BY AIDING
The third clause of the section says that,” A person abets the doing of thing who
intentionally aids by any act in the illegal omission of the doing of that thing.

EXPLANATION :- 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 thereby
facilitates the commission thereof, is said to aid the doing of that act.

ILLUSTRATION:- If the servant keeps the gate open of the master’s house so that
thrives may enter and thieves do not come, he cannot be held to have abetted the
commission of theft.

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SECTION 108 OF IPC: ABETTOR

A person can become an abettor in two ways:-

1. When he abates the commission of an offence: Example: Where he abets ‘B’

to commit murder of ‘Z’. Here A is an abettor.

2. When he abets the commission of an offence it is committed by a person capable

by law to commit an offence with the same intention or knowledge as that of the abettor.

Example: “A” abets B, a five year old child, to commit murder of Z, he is still an abettor
under the 2nd category because even though the child will not be guilty of anything by
virtue of the protection given to him by section 82 of the IPC.

To define the abettor the explanation must be read as:-

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.

ILLUSTRATION: ‘A’ instigates B to murder C. B refuses to do so. A is guilty of

abetting B to commit murder.

Explanation 2:- To constitute the offence of abetment it is not necessary that the
particular act of abettor should be committed.

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ILLUSTRATION: ‘A’ instigates B to Murder D. B in pursuance of the instigation

stabs D. D recovers from wound. A is guilty of instigation B to commit murder.

Explanation 3: It is not necessary that the abettor & the person abetted must have
same guilty intention or knowledge.

ILLUSTRATION: ‘A’ with a guilty intention, abets a child or a lunatic to commit

an act which would be an offence if committed by a person capable by law lof
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.

EXPLANATION 4 : The abetment of an offence being an offence the abetment of

such an 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 consequences of B’s
instigation. B is liable to be punished for his offence with the punishment for murder
and as A instigated B to committed the offence. A is liable to the same punishment.

EXPLANATION NO 5: It is not necessary to the commission of the offence of

abetment by conspiracy that the abettor should bi concert the offence with the person
who commits it. It is sufficient if he engages in the conspiracy.

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ILLUSTRATION : ‘ A’ concerts with B a plan of 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 & deliver lit to B the purpose of its being used in the matter
explained. ‘A” administers the poison, Z dies in consequence, Here though A and
C did not conspired together, Yet C has been engaged in the conspiracy in pursuance
of which Z had been murdered. C has therefore committed the offence defined in the
section and is liable to the punishment of murder.

Ram Kumar vs. State of H.P. (1996 SCC 100)

The prosecutrix-a young girl aged 19 years and her husband were arrested by head
constable and a constable. They took wife and husband to the police station. They
confined the wife in a room and her husband in another room.

While the constable was guarding in front of the room, where the husband sat,the
head constable raped the wife. She cried. Her husband and constable heard her
cries.
The trial Court convicted the head constable under Sec. 376, and the constable who
aided for the offence under Sec. 376 (2)(a) read with Sec. 107. On appeal the High
Court upheld the conviction.
The High Court held that the conduct and the consistency of the accused constable
were towards facilitating the crime as otherwise he would have reacted on hearing
the cries of the helpless prosecutrix, his turning deaf ears to her cries was the finale
on his conduct and he must be assumed to have had this end in mind when he
dragged the prosecutrix forcibly to the police station.

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F. “To abet” means “to help in doing something (usually wrong)”, it is

synonymous with instigation, encouragement and incitement.

The person who does the offence directly is called the “Principal”, and-the persons
who help the principal are called “Accessories”. Offenders of Abetment and
Conspiracy are “Accessories before or at the fact”. The accessories are of three
kinds:
(a) Accessory before the fact;
(b) Accessory at the fact; and
(c) Accessory after the fact.
G. Essentials to constitute offence of abetment:

While disposing,

“Goura Venkata Reddy vs. State of A.P. (2003) 12 SCC 469), the Supreme Court
held: “Section 107 IPC defines abetment of a thing. The offence of abetment is a
separate and distinct offence provided in the Act as an offence. A person abets the
doing of a thing when (1) he instigates any person to do that thing; or (2) engages
with one or more other persons in any conspiracy for the doing of that thing; or (3)
intentionally aids, by act or illegal omission, the doing of that thing. These things
are essential to complete abetment as a crime. The word “instigate” literally means
to provoke, incite, urge on or bring about by persuasion to do anything. The
abetment may be by instigation, conspiracy or intentional aid, as provided in the
three clauses of Section 107.”

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Punishment of Criminal Conspiracy (Section 120B of IPC) Punishment of

Criminal Conspiracy:
As per Section 120-B of the Indian Penal Code, 1860, “(1) whoever is a party to a
criminal conspiracy to commit an offence punishable with death, imprisonment for
life or rigorous imprisonment for a term of two years or upwards, shall, where no
express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to

commit an offence punishable as aforesaid shall be punished with imprisonment of
either description for a term not exceeding six months, or with fine or with both.”

For purposes of punishment, Section 120B divides criminal conspiracies into two
classes: (i) A party of a conspiracy to commit a serious offence is punished in the
same manner as if he had abetted the offence, (ii) conspiracies to commit any other
offence and conspiracies to commit illegal acts other than offences are subjected to
imprisonment for a term upto six months with or without fine or both.

Section 120B of the code is required to read with Section 196 of the code. It
mandates a Court not to, without prior sanction of the State Government or the
District Magistrate, take cognisance of a criminal conspiracy to commit an offence
punishable with imprisonment of a term more than two years.

No prior sanction of the concerned State Government or of the District Magistrate is

required when the criminal conspiracy related to an offence punishable with
imprisonment for two or less than two years’ imprisonment. For initiating criminal
proceedings parties to a conspiracy made abroad, requires sanction of the Central
Government. A conspiracy hatched in India to commit an unlawful act outside India
does not require sanction of the Central Government.

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Nature and Scope of the Law of Criminal Conspiracy:

1) Conspiracy is a substantive offence. The offence of criminal conspiracy exists

in the very agreement between two or more persons to commit a criminal offence.

2) ‘Agreement’ is the rock bottom of criminal conspiracy. Its essence is the

unlawful combination.

3) To constitute a conspiracy, meeting of minds of two or more persons for doing an

illegal act or a legal act by illegal means is the first and primary condition.
4) If there are more than two persons involved in a conspiracy and one or some of
the other accused had been acquitted, the remaining accused (even if it is one) could
be convicted under Section 120B of the IPC.

5) The gist of the offence of criminal conspiracy is to break the law.

6) The essence of the agreement to break the law is the agreement to do an illegal
act. By virtue of Section 43 of the IPC, everything : (i) which is an offence; (ii)
which is prohibited by law; and (iii) which furnishes a ground for civil action is
an ‘illegal act’.
7) The essentials of a single conspiracy require that there must be a common
design and a common intention of all to work in furtherance of the common design.
8) When an offence is committed by different persons acting in the same manner but
independently, it cannot be said that there was necessarily a conspiracy.
9) It is not necessary for all the conspirators to know each other.
10) Every conspirator is liable for all the acts of the co-conspirators, even if some
of them had not actively participated in the commission of the offence.

11) When the ultimate offence consists of a chain of actions, it is not necessary for
the prosecution to establish that each of the conspirators had the knowledge of the
conspired act.

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12) Where the agreement between certain persons is a conspiracy to do or
continue to do something which is illegal, the entire agreement must be viewed as a
whole.

13) Conspiracy is a continuing offence and it continues to subsist and

committed, if one of the conspirators does an act or a series of acts now and then.
Proof of Conspiracy:

1) A conspiracy is always hatched in secrecy. It is a matter of common experience

that direct evidence to prove conspiracy is rarely available. It is therefore
impossible to adduce direct evidence of the same. The offence can only be proved
largely from inferences drawn from acts or illegal omissions committed by the
conspirators in pursuance of a common design.
2) Conspiracy is generally a matter of inference to be deduced from special acts or
illegal omissions of the accused done in pursuance of the common intention of the
conspirators and the apparent criminal purpose in common amongst them. There
must be some evidence on record which establishes such a common design.

3) As direct evidence is generally difficult to adduce in cases involving conspiracy

charge, the prosecution generally depend on circumstantial evidencerelying on
evidence of acts of various parties to infer that they were done in reference to their
common intention.
4) It is not necessary to prove that the perpetrators expressly agreed to do or cause
to be done an illegal act as the agreement could be proved by necessary
implication.
5) Conspiracy can be proved by circumstantial evidence, as it is the only type of
evidence that is normally available to prove conspiracy.

6) The conditions for assessing the evidence of co-conspirators as laid down in

a sine qua non of offence of conspiracy.

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