Who is an Abettor ?

Abettor is the one who supports or encourages or instigate others to commit a crime in the same sense, knowledge, and with the same intention as that of the abettor. Abettor tend to engage one or more person or persons to plan any conspiracy for doing that thing and command them to commit illegal omissions and sometimes also provide them with intentional aid, by any act or illegal omission, the doing of that thing.

Term Abettor is described under section 108 of the Indian Penal Court.

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 facilitate the commission thereof, is said to aid the doing of that act.

In legal terms, abettor is a person who abets an offence, who abets the commission of the offence or commission of an act that would be an offence, if committed by a person who is capable by law of committing that offence with the same intention and in the same sense with the same knowledge as that of an abettor.

EXPLANATION

If an abettor abets an offence to someone and due to some reason that act could not be committed, the abettor will still be guilty of abetting an offence.
If committer of an act is minor then abettor will be liable for punishment for which ever offence he/she committed.
If the committer of an offence is of unsound mind or lunatic, being incapable of knowing the nature of the act, then the committer committed no offence. The one who instigates will be guilty of the same.
Whether the act is committed or not by the abetted person or if an act is done in absence of abettor, then also Abettor is guilty of abetting the offence.
Incase, in the process of an abetted act, another different offence is committed along with it and if it’s a probable consequence of abetment, abettor will be liable for both the offences.

It is not necessary that the person abetted should be capable of the law of committing an offence, or that he should have the same guilty intentions or knowledge as that of an abettor, or any guilty intention or knowledge. Or in other words its alright for the abetted person to not have mens rea presents of actus rea is sufficient.

Let’s understand better with some examples:

X instigates Y to burn the house of A, Y, in consequences of unsound mind and being incapable to know the nature of the act, can’t judge what act is wrong or right or whether it is contrary to law, did what was asked for i.e. burned A’s house in consequences of X’s instigation. Y has committed no offence but X is guilty of abetting the offence to set the house on fire and is also liable for the punishment for the same offence(burning the house).

A, intending to cause a theft to be committed, instigate B to take property belonging to Q out of Q’s possession. A induces B to believe that the property belongs to A. So as instigated B took property out of Q’s possession in good faith, with bonafide intentions, believing it to be A’s property. B, acting under this misconception, does not take dishonesty, and therefore B does not commit any theft. But A is guilty of abetting theft and is liable to the same punishment as that of theft.

2. The abetment of an offence being an offence, the abetment of such an abetment is also as offence.

Example-Q instigates Z to commit a theft, further, Z instigates A to commit theft in W’s house. So A commits an offence due to Z’s instigation. Z is liable to be punished for his offence with the punishment for theft; and, as Q instigates Z to commit the crime, A is also liable for the same punishment.

3. It is not necessary for the commission of the offence of abetment by a conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in the pursuance of which the offence is committed.

Section 108A IPC: A person abets an offence within the meaning of this code who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India.

Example: X, an Indian instigates Y, a foreigner in Mumbai, to commit a murder in Mumbai. X is guilty of abetting murder.

4. If the punishment for the abettor is not mentioned or no express provision is made for its punishment then the same punishment should be given for the crime he commit. Example – A instigates B to bring false evidence. B, in consequence of instigation by A, commits that offence. A is guilty of abetting that offence, and is also liable to the same punishment as B.

Section 111 Indian Penal Court: Liability of abettor when one act abetted and different act done.

If one act is abetted and a different act is done then, abettor is liable for the same act in the same manner and to the same extent as if he had abetted it. REASON: the abetted person was doing the act under the influence and in instigation of abettor it is quite possible that in order to fulfill the act given by abettor another act will be done as a probable consequence of the abetment

Example: S instigates child C to put poison into the food of D, and gives him poison for a purpose. C in consequence of the instigation, by mistake, puts poison into the food of E, who was sitting beside D. As C is a child and was acting under the influence of S’s instigation and act done was under the circumstances a probable consequence of the abetment. S is liable in the same matter and to the same extent as if he had instigated the child to put the poison in E’s food.

Another, A instigates B to burn W’s house. B followed the command and set fire to the house and along with it also commit theft of property there. A is guilty of abetting the burning of the house but is not liable for the theft as it was not a probable consequence of burning, it was a different act.

Case law:

In the case of Shashi Bhushan v. State of Orissa 1985 (2) Crimes 160, it has been observed that in a bribery case, the position of bribe-giver is that of an abettor of a crime and that an abettor is an accomplice and the testimony of such a witness must be corroborated by independent and reliable sources.
In the case of Ramesh Kumar (supra), a three-Judge bench of this Court held that the ingredients of Section 306 IPC were not satisfactorily proved so as to implicate and punish the accused for the same. The facts of the case leading to the aforementioned decision had been that the deceased was married to the accused for about a year. The deceased committed suicide by pouring kerosene and setting herself on fire in the kitchen. On the day of incident, the accused had refused to take the deceased to her sister’s house and in the quarrel that ensued, the accused-husband told the deceased-wife that she was free to do whatever she wished to and to go wherever she wanted to. The accused attempted to save her by putting a bedsheet around her body and himself suffered burns consequently. The deceased had written a letter to her husband-accused in her diary that he had made her free to go wherever she liked but she was not having any place to go and now she was free of her word not to commit suicide. In her dying declaration too, she stated that she had a quarrel with her husband who told her to go wherever she wanted to and thereafter, she set herself ablaze. The accused-appellant was convicted by the Trial Court for the offences under Sections 306 and 498-A IPC and his conviction was upheld by the High Court.

Resumably the accused may have said some such thing – you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had “freed” her she thought impulsively that the only thing which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband’s wish. Can this be called an abetment of suicide? Unfortunately, the trial court misspelt out the meaning of the expression attributed by the deceased to her husband as suggesting that the accused had made her free to commit suicide. Making the deceased free – to go wherever she liked and to do whatever she wished, does not and cannot mean even by stretching that the accused had made the deceased free “to commit suicide” as held by the trial court and upheld by the High Court.

Amit Kapoor v. Ramesh chander (2012)
Anju v. State of M.P., (2002) 5 SCC 371
Jamuna Singh v. State of Bihar (1966)

Reference

1. https://indiankanoon.org/doc/89699186/

2.https://www.casemine.com/search/in/abettor%2Bin%2Bthe%2Bcharge

3. https://www.scconline.com/blog/post/tag/abetment-by-instigation/

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