Amity Law School

Submitted by – Tanya Singh

Enrolment no. – A8156121015

Subject – Law of Crimes (Indian Penal

Code)

Submitted to – Ms. Adya Pandey ma’am

Topic – Abetment and Criminal

Conspiracy
Abetment
Provoking, encouraging and aiding anyone for doing any criminal act which is
punishable by law is known as abetment. This article talks about chapter V of
Indian Penal Code, 1860 i.e Abetment. Criminal Law in itself is very clear
while imparting any kind of punishment and holding anyone liable under any
kind of offences.

Chapter V of Indian Penal Code, 1860 is the first offence which starts in Indian
Penal Code, 1860 stating that the mastermind behind the commission of offence
should not be set free on the mere ground that the actusrea has not been done by
the person behind the offence committed or yet to be committed. The concept of
abetment has widens the scope of criminal law to incorporate these criminal
intension and penalise them according to the provision laid down under chapter
V of Indian Penal Code, 1860.

There are four stages of crime which is read as below:

1. For any offence being committed or instigates other for there commission
there should be a human being, Human being plays an important role in
any kind of criminal act being done by himself or either made other to do
so and be liable for the same.

2. Intension and knowledge plays and important role in any criminal act
being done by human being. However a non- criminal behaviour as
simple as buying a knife for household use becomes criminal when there
is any kind of criminal intension behind getting the knife.Non of the act
can be considered itself a crime if done with guilty mind.

3. After the formation of an intension mere execution is necessary which is

followed by actusreai.e the act done in return of the intension formed
causing injury to others.
 4. Last stage is the offence itself which is the result of any kind of criminal
intention and criminal act punishable under law. Eg: Murder, Rape,
Robbery, etc.

So , in middle of the above four stages abetment may take placei.e at the very
initial stage of planning where the intension is develop by one person but the act
is done by other as a result of instigation for the commission of an offence.
Abetment is a substantive offence where the commission of offence is not
considered, one is held liable for mere instigating, conspiring and aiding other
for the commission of the offence.

Meaning Of Abetment: (Section-107)

Section 107-120 of Indian Penal Code 1860, talks about abetment. According to
section 107 which explains the meaning of abetment, in general to abets means
to instigate, to help, to encourage to put in execution his criminal intension.
Abetment consist of three act which is laid down in section 107:

1. Abetment by instigation: In common it is said that one can motivate

other in two possible ways which is motivating one for good cause and
motivating other for bad cause which is abetment by instigation and
hence, held liable for such instigation irrespective of the act abetted be
committed or not.A person instigate the doing of a thing who by wilful
misrepresent, or wilful concealment of a material fact which he is bound
to disclose, voluntarily causes or procure , or attempt to cause or procure
a thing to be done. This is known as abetment by instigation.

Illustration: A, a public officer, is authorised by a warrant by court of

justice to apprehend Z. B, knowing that fact that C is not Z, wilful
represent to A that C is Z ,and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.

2. Abetment by conspiracy: Abetment by conspiracy involves engaging

with one or more person in any conspiracy for the doing of that thing, if
an act or illegal omission takes in pursuance of that conspiracy. Abetment
by conspiracy is only said to be done when there is conspiracy done
between two or more person for commission of an criminal act, if act
committed will amount to abetment by conspiracy, if the same is not
committed will amount to conspiracy and will be punishable under
section 120A and not for abetment by conspiracy.

3. Abetment by aid: The third kind of abetment is abetment by

intentionally aiding (by an act or illegal omission) the doing of any
criminal offence. Explanation 2 to section 107 clarifies that a person is
 said to aid the doing of an act, who either prior to or at the time of
commission of an offence, does anything in order to facilitate the
commission of that act.

Illustration: Aa priest performed the wedding ceremony of a marriage

man with an unmarried women. Here priest is liable for intentionally
aiding and is liable for abetment by aid.

Who Is Abettor?
Section 108 of Indian Penal Code,1860 talks about abettor, a person who abets
an offence, who abets either the commission of an offence, or either the
commission of an act which would be an offence, if committed by a person
capable by law with the same intension or knowledge as that of the abettor.

Five proposition as to Abetment , contained in section 108 of IPC, which

are as follows:

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. Thus if a
public servant is guilty on an illegal omission of duty made punishable by
the code, and a private person instigates him he abets the offence of
which public servant is guilty, although the abettor, being a private
person, could not himself have been guilty of the offence.

2. To constitute the offence of abetment, it is not necessary that the act

abetted is committed or not. The offence of abetment depends upon the
intention of the person who abets, and not upon the actual act done by the
person abetted.

Illustration: A instigates B to murder C. B refuses to do so. A is guilty of

abetting B to commit murder.

3. To constitute the offence of abetment, it is not necessary that the person

abetted should be capable by law of committing an offence, or have the
same guilty intention or knowledge as that of the abettor. Abetment is a
substantive offence irrespective of the criminal intention or knowledge to
be the same as that of abettor, mere instigation to commit a criminal
 offence is necessary and does not consider the abetteei.e to whom abettor
abets to do an act, either capable by law or not.

Illustration: A with a guilty intention, abets a child or a lunatic person 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 weather the act be committed or not, is guilty of abetting an
offence.

4. When the abetment of an offence is 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 commits that offence in consequence of B’s
instigation. B is liable to be punished for the offence with the punishment
for murder and as a instigates B to commit the offence, A is also liable for
the same punishment.

5. To constitute the offence of abetment by conspiracy, it is not necessary

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 will be liable.
6. Section 108A talks about when a person abets an offence within the
meaning of this code who in India, abets the commission of any act
beyond India which would be liable for an offence if committed in India.

Punishment For Abetment Under Indian Penal Code,1860:

From section 109 to section 120 of Indian Penal Code, 1860 deals with
punishment for abetment which are as follows:

Section 109: Punishment of abetment if the act abetted is committed in

consequences, and where no express provision is made for its punishment:
If a person abets an offence, and the act abetted is committed in consequences
of the abetment where no expressed provision is made under this code for the
punishment of such abetment, be punished with the punishment provided for the
offence with is abetted and committed.

Whereas in some case of abetment the express provision is made for the
punishment. It is to be made clear that an act or offence is said to be committed
in the consequences of abetment, when it is committed in consequences of
instigation, or in pursuance of conspiracy, or with aiding, which constitute the
abetment. According as offence abetted is cognizable or non- cognizable,
bailable or non- bailable, triable by court and non -compoundable.

Illustration:

• A instigates B to give false evidence B under the instigation of A

commits an offence. Here A is guilty of abetting the offence, and is liable
for same offence as of B.
• A offers a bribe to B , a public servant, as a reward of showing some
official favour to A. B accepts the bribe A has abetted the offence and is
liable for the offence defined in section 161 of IPC.

Section 110: Punishment of abetment if person abetted does act with different
intension from that of the abettor:
This section laid down the provision for punishment of abetteei.e the person
abetted, if does the act with different knowledge or intension from that of the
abettor, be punished with the punishment provided for the offence which would
have been committed if the act has been done with the same intension and
knowledge of the abettor. The person abetted for the commission of an offence
and commit and act cannot take a defence mere on the ground that the act done
in the consequences of the abetment is done with different intension and
knowledge from that of abettor, he will be equally liable for the punishment.
According as offence abetted is cognizable or non- cognizable, bailable or non-
bailable, triable by court and non- compoundable.

Section 111: Liability of the abettor when one act abetted and different act
done:
When an act abetted and a different act is done, the abettor is liable for the act
done in the same manner as if abetted directly, provided that the act done was
likely to be caused as a course of offence abetted, and was committed under the
influence of instigation, or with aid, or with pursuance of conspiracy which
constitute the abetment. And if any act done which is not the probable
consequences of abetment, the abettor is hereby not liable for any different kind
of offence committed. According as offence abetted is cognizable or non-
cognizable, bailable or non- bailable, triable by court and non compoundable.

Illustration: A instigated child to put poison into the food of Z, and give him the
poison for that purpose. The child in consequence of the instigation, by mistake
put the poison into Y’s food which was kept just next to that of Z which result
in death of Y. Here A is liable in the same manner and the same extent as if he
has abetted the child to poison Y, because child is acting under the influence of
abetment.

Section 112: Abettor when liable to cumulative punishment for act abetted and
for act done:
Section 112 is an extension of section 111 of Indian Penal Code. According to
section 111 if the offence committed is different from that of act abetted but it is
in probable consequences of the abetment, done under the influence of
instigation or aiding for the commission of an act. The abettor is held liable of
the act in the same manner as if abetted directly.

Further it is said that the word cumulative used here in this section states that
the act abetted and act done in pursuance of abetment exceeds in nature and
thereby causing additional act resulting in additional offence of that abetted.
Abettor is liable for the additional offence, if that offence is result of the
probable consequence of abetment.

Section 113: liability of abettor for an effect caused by the act abetted
different from that intended by the abettor:
Intension and knowledge plays an important role in any criminal act done or
abetted. If an act abetted with different intension causing different effect as a
result, abettor will be liable of the effect cause, on the ground that he knew that
the act abetted was likely to cause such effect. Although intension is different
from the act caused but one will be liable for the effect mere on the ground of
knowledge.

The major difference between section 111 and section 113 is that section 111,
says that when one act abetted and difference act is committed and in section
113, the act abetted and committed is same but the effect cause is different.
According as offence abetted is cognizable or non- cognizable, bailable or non-
bailable, triable by court and non-compoundable.

Section 114: Abettor present when offence is committed:

This section states that whenever any person who is absent would liable to be
punished as an abettor, is present when the act or offence is being committed in
consequences of the abetment for which he would be punishable, the law will
resume that the abettor himself has committed such offence and act. And the
abettor will be liable to be punished for the offence committed and not for the
abetment of offence. According as offence abetted is cognizable or non-
cognizable, bailable or non- bailable, triable by court and non- compoundable.
Terms Of Punishment Provided In Section 115, 116, 117, 118, 119, 120 Of
Indian Penal Code, 1860:
Section 115: abetment of offence punishable with death or imprisonment
for life- if offence not committed:
If offence not committed in
7 years of imprisonment +Fine
consequences of abetment.
If act causing harm be done in
14 years of imprisonment +Fine
consequences

Section 116: abetment of offence punishable with imprisonment- if offence

be not committed:
Offence not committed in of the longest term of punishment
consequences of abetment provided for the offence / fine /both.
If abettor be a public servant whose of the longest term of punishment
duty id to prevent offence. provided for the offence / fine /both.

Section 117: Abetting commission of offence by the public or by more than

ten persons:
Any person who abets the commission of offence by the public generally or by
any number or class of person exceeding ten, shall be punished with
imprisonment for the term which may extent to three years, or fine or both.
According as offence abetted is cognizable or non- cognizable, bailable or non-
bailable, triable by court and non- compoundable.

Punishment For Concealing Designs Or Plans To Commit Offence:

Section 118,119 and 120 of Indian Penal Code,1860 laid down the provision for
punishment of concealing the design voluntarily by any act or illegal omission
which lead to the commission of an offence be punishable under these sections.

Section 118: concealing design to commit offence punishable with death or

imprisonment for life:
If offence committed in consequences
7 years of imprisonment/ fine
of abetment
If offence not committed in
3 years of imprisonment/Fine
consequence of abetment

Section 119: Public servant concealing design to commit offence which it is

his duty to present:
If offence committed in consequences of the longest term of punishment
of abetment provided for the offence / fine /both.
If offence not committed in of the longest term of punishment
consequence of abetment provided for the offence / fine /both.
If offence committed which is
punishable with death or imprisonment 10 years of imprisonment.
for life

Section 120: concealing design to commit offence punishable with

imprisonment:
If offence committed in consequences of the longest term of punishment
of abetment provided for the offence / fine /both.
If offence not committed in 1/8 of the longest term of punishment
consequence of abetment provided for the offence / fine /both.

Case Laws:
1. SheoDail Mal, 1894:

This case held that instigation may be direct or it may be through letter.
Where A writes a letter to B instigating thereby to murder C, the offence
of abetment by instigation is complete as soon as the contents of letter
becomes now to B.

2. Queen vs Mohit:

A women prepared herself to become sutti in the presence of the accused

persons. They followed hereto the pyre and stood by her step sons crying
“Ram Ram”. One of the accused also admitted that he told the women to
say “Ram Ram”.It was held that all those that followed her to the pyre
and stood by her crying “Ram Ram” would be guilty of abetment as the
actively abetted her.

3. Pandala Venkatasami 1881:

It was held that if a person prepares, in counjuction with others a copy of

an intended false document and buys a stamp paper for the purpose of
writing such a false document and also ask for information as to fact to be
inserted in such false document, he would be guilty for abetment of
forgery because these are the acts done to facilitate the commission of the
offence.
Conclusion:
Abetment is said to be a substantive offence which is punishable in itself
respective of the act abetted is committed or not. When any act is done as a
consequences of instigation, conspiracy and aid, the person performing such act
is held liable under Indian Penal Code, 1860 but the person behind the
commission of an act will also be held liable for abetment as the instigation for
such commission has been done by that person.

Therefore , we say that abetment as an offence is just and fair law which
enhances the principle of natural justice in legal system. As explained above
there are four stages of crime and abetment may take place at initial level of
planning and punishable with that of imprisonment or fine or both as may be
expressed in the provision.
Criminal Conspiracy
Conspire means to jointly make secret plans for committing an unlawful or
harmful act. When two or more persons agree, either expressly or impliedly, to
do an illegal act or any legal act with illegal means, this comes under the act of
criminal conspiracy. In other words, when two or more persons agree to commit
an offence that is prohibited by law, they will be liable for criminal conspiracy.
It is an offence where not only one person rather two or more than two persons
are required because a single person can not conspire.

Criminal conspiracy is contained under Chapter VA, section 120A and section
120B of the Indian Penal Code, 1860. Section 120A talks about the definition of
criminal conspiracy, and section 120B talks about the punishment for criminal
conspiracy. In this IPC law note, let us learn more in easy to understand words.

What is Criminal Conspiracy

Definition for criminal conspiracy is given under section 120A of the Indian
Penal Code. As per section 120A of IPC:
When two or more person consent to do or have done any illegal act or an act
that is legal by illegal means, they are said to have committed an offence of a
criminal conspiracy.
A criminal conspiracy not only consists of the agreement or meeting
of intention or minds between two or more than two persons but an actual
commission of an unlawful act by unlawful means. It means that only
agreement or intention is not enough to make a person liable for criminal
conspiracy unless they have done something unlawful or illegal by unlawful or
illegal means.
To establish criminal conspiracy charges under section 120A, there must be an
agreement, either expressed or implied. And for that, no proof of direct meeting
or communication is needed. Passive cognisance of conspiracy is not enough.
There must be active cooperation. In other words, joint evil intent is mandatory.
In Bimbdhar Pradhan vs State of Orissa, 1956, the Supreme Court held that one
person could also be convicted for the offence of conspiracy. It is sufficient that
the court proves that two or more than two persons were actually involved in the
criminal conspiracy. Where the prosecution proves that two or more persons
were connected in a conspiracy and they could not be caught, one alone can still
be convicted.
Earlier, one person alone could be held liable for the offence of criminal
conspiracy. However, this rule has been changed in subsequent cases.

In State of Tamil Nadu vs Nalini, 1999, commonly known as the Rajiv Gandhi
assassination case, it was held that the corporation of accused with the main
accused or even his knowledge regarding conspiracy would not make the
accused liable for conspiracy as the agreement is the sine qua non (essential) for
the offence of conspiracy.

Brief History of the Law of Conspiracy in India

Criminal conspiracy was considered a civil offence, initially. The idea behind this
was two-fold:

1. Abetment in any offence; or

2. Conspiracy with criminal intent.
But later on, it began to be considered as a criminal offence. In 1868, the scope
was widened by adding it to Section 121A of the Indian Penal Code, 1862. The
history of criminal conspiracy has evolved through a series of cases.

Essential Ingredients of Criminal Conspiracy, Section 120A, IPC

The essentials of this section can be outlined as:

1. There should be an agreement between two or more persons.
2. Such an agreement should be done-

(a) to do an illegal act, or

(b) or to do a legal act by illegal means.
1. Agreement between two or more persons

There must be an agreement between two or more persons. If the conspirators

commit several offences in accordance with the criminal conspiracy, all of them
shall be liable for the offences, even if some of them did not actively participate
in the commission of the crimes.

2. Illegal act

To make a person liable for the criminal conspiracy, the agreement must be to
do any act which is either forbidden by law or is opposed to the law.

3. Legal act by illegal means

When any act is done even though it is lawful but done by illegal means, it
constitutes criminal conspiracy.

The Supreme Court has outlined the essential ingredients of criminal conspiracy
in R Venkatkrishnan vs CBI as:

1. An agreement between two or more persons.

2. The agreement must be related to doing or causing to be done either:

(a) an illegal act

(b) an act that is not illegal in itself but is done by illegal means.
3. The agreement may be expressed or implied or partly expressed and partly
implied.
4. As soon as the agreement is made, the conspiracy arises, and the offence is
committed.
5. And, the same offence is continued to be committed so long as the
combination persists.

Position of Husband and Wife to Criminal Conspiracy

In English law, if only the husband and his wife conspire to do an illegal act or
legal act by illegal means, they cannot be held liable for criminal conspiracy
because, legally, they are deemed to be one person or one entity. However, in
India, this is not the situation.

Nature and Scope of Section 120B

Section 120B specifies the punishment given to the persons convicted for the
crime of conspiracy. They may be punished with death or rigorous imprisonment.
The nature of this section is punitive. The scope of this section is limited to
providing punishments after the accused has been convicted.

Effect of Acquittal of Accused

In the case of Topan Das v State of Bombay, the court held that the person must
not be alone in conspiring for the offence. The accused was acquitted from the
case because he was the sole person who had conspired for the crime. The
acquittal of this case meant that the person was liable for all the other offences
that had been committed and proved.
Framing of Charge
Charges are framed on the basis of the nature and magnitude of the crime. The
accused is often charged with a substantive offence and along with that, is also
charged for criminal conspiracy. In State of Maharashtra & Ors. v. Som Nath
Thapa & Ors., it was said that the charges will be framed only if the person was
aware of the co-conspirators and their motives. Since there is no way that the
crime can be proved beyond a reasonable doubt, it is necessary to understand that
there is a deemed presumption of the offence if there are overt actions to prove it.

Punishment for Criminal Conspiracy

Punishment for criminal conspiracy is contained under section 120B of the

Indian Penal Code. The punishment for Section 120A (criminal conspiracy)
depends upon the nature of the offence. If the agreement is to commit a serious
offence, the punishment is more severe.

Where a person conspires to commit an offence that is punishable either by

death or by imprisonment of life or by rigorous imprisonment for a term of two
years or above, and no express provision is made in the Code for its
punishment, then he will be liable for punishment in the same manner as if he
had abetted such an offence. Abet means to encourage or assist someone in
doing a crime.

If the conspiracy exists between two or more persons to commit an offence

which is not mentioned above, that is, offences which are not punishable with
death, imprisonment for life or rigorous imprisonment for a term of two or more
than two years, such a person will be punished with the imprisonment of either
description for a term not exceeding six months, or with fine, or with both.

Difference between Section 120B and Section 107, Indian Penal Code 1860
Section 107 of the Indian Penal Code, 1860 states the offence of Abetment.
The section states that:

1. If a person is aiding in an illegal act;

2. Instigates a person to do an illegal act;
3. Engages in a conspiracy and an act is performed in pursuance of the
conspiracy.
Section 120B is suggestive of the punishment of conspiracy. The basic difference
lies in the fact that in one case, there just needs to be a meeting of minds in order
to do an illegal act, abetment requires an act in pursuance of the agreement.

Another point is that abetment involves aiding in a crime or a conspiracy, whereas

criminal conspiracy just requires a meeting of minds.

Proposals for Reform

National commission of Criminal Defence Lawyers has suggested that there must
be reforms regarding conspiracy and proof of the offence. These considerations
are still on the table, which is why the reforms have not been implemented, as of
now