Abetment by conspiracy consists when two or more persons engage in a conspiracy for the doing of a thing and an act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of that thing. Thus in order for abetment by conspiracy may be constituted, three things are necessary :
- A conspiracy between two or more persons;
- An act or illegal omission must take place in pursuance of that conspiracy.
- Such an act or illegal omission must also take place in order to the doing of the thing conspired.
- For example, A, a servant, enters into an agreement with thieves to keep the doors of his master’s 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 the conspiracy for the offence of theft.
Conspiracy means an agreement between two or more persons:- To do an illegal act; or To do a legal act by illegal means.
Thus, it is clear that for an offence under the second clause of Sec. 107 a mere combination of persons or agreement is not enough; an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them. But, for an offence under Sec. 120A – A mere agreement is enough if the agreement is to commit an offence. For abetment by conspiracy under Sec. 107 an overt act or illegal omission in pursuance of that conspiracy must be done even though the agreement is to commit an offence. Clause (2) has to be read together with Explanation 5 to Sec. 108, which provides that it is not necessary to commission the offence of abetment by a conspiracy that the abettor should concert (concert (concert- to arrange or continue by mutual agreement) the offence with the person who commits it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed.
Therefore, the conspirators must actively agree and prepare themselves to commit that offence, it becomes a conspiracy. Furthermore, the act that the conspirators conspire to commit itself must be illegal or punishable.
For example 1) In dowry death cases, the in-laws of the victim are often guilty of abetment by conspiracy. They may do so by constantly taunting, torturing or instigating the victim. Even suicides may take place in this manner through abetment by conspiracy.
2) A, a servant, makes a conspiracy with some thieves to do the robbery. The servant while facilitating the act needs to keep the doors of the master’s house open he night so that the thieves can commit the offence. A, as per the agreed plan keeps the doors open and the thieves take away the master’s valuable property. Now, in this case, A is guilty of abetment by conspiracy.
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 the commission of a criminal act, if act is 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. Abetment by conspiracy is mentioned under section 107 of IPC and it differs from the conspiracy under section 120A of IPC. An offence of abetment by conspiracy requires an act or illegal omission in furtherance of conspiracy whereas, conspiracy given under section 120A requires mere agreement over the commission of a crime.
Abetment of Illegal Omission is an Offence
According to explanation 1 of Section 108, 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. For example, if a public servant is guilty of an illegal omission of duty made punishable by the code, and a private person instigates him, then he abets the offence of which such public servant is guilty, though the abettor could not himself have been guilty of that offence.
Person Abetted Need not be Capable of Committing an Offence
It is not necessary that the person abetted should be capable according to law of committing an offence, or that he should have the same guilty intention or knowledge as that of an abettor. Illustration: A with the guilty intention, abet a child or a lunatic who is incapable under law to commit an offence. Here, even though the act committed or not, will be held liable for abetment.
It is not necessary for the commission of the offence of abetment by conspiracy that the abettor should concert or accord 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. A person who has been convicted of an offence as a principal offender cannot be punished for abetting it under this.
Punishment for abetment
The extent of liability of an abettor is mainly dependent on the following four factors:
- which act he had abetted
- With what intention he abetted
- which act was committed
- With what intention the act was committed
The punishment for Abetment is specifically dealt with in Section 109 to 120 of the IPC.
Section 109 lays down that if IPC has not separately provided for the punishment of abetment as such, then it is punishable with the punishment provided for the original offence. Since law does not provide any specific form or gesture to be followed for instigation, therefore the question whether there is instigation or not is to be decided upon by the facts of the case. For the second clause of abetment, there must be some act or illegal omission in pursuance to that conspiracy and under the scope of section 109, the act which comes under criminal conspiracy, makes the person guilty under section 120B and for cases other than criminal conspiracy, a person is charged with abetment which is generally proved offence. For the intention to aid, the act which is done shall be taken into consideration and accordingly punishment will be given to the offender as well as an abettor.
Noor Mohammad Momin v. State of Maharashtra (1971)
In the instant case, Noor Mohammad is accused of abetment under Section 109 of the code. He, along with 3 others committed a murder for which the Apex Court mentioned that the ambit of criminal conspiracy has a wider range of applicability than the offence of abetment in this case.
The question before the court was the accused i,e, Noor Mohammad Momim shall not be liable under Section 109 of IPC. In this landmark case, the Supreme Court of India held that the ambit of Section 120A i.e., criminal conspiracy is wider than the section under abetment. It covers a wider amplitude of illegal commission or omission of an act. Moreover, it was also held that the presence of the abettor-accused is not always necessary for abetment by a conspiracy in this case
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