Abetment by Instigation

A person is said to ‘instigate’ another to an act, when he actively suggests or stimulates him to the act by any means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement.

The law does not require that instigation, in a case of abetment by instigation, should be in particular form or that it should be only in words and may not be by conduct; for instance, a mere gesture indicating beating or a mere offering of money by an arrested person to the constable who arrests him, may be regarded as instigation, in the one case to beat and in the other to take a bribe. Whether there was instigation or not, is a question to be decided on the facts of each case. It is, however, not necessary in law, for the prosecution to prove that the actual operative cause in the mind of the person abetted was the instigation, and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed, if the person committing the act had the same knowledge and intention as the abettor. It is impossible for any human tribunal to decide exactly how much the instigation actually weighed in the mind of the person abetted, when he committed the act or offence. The mere commission to bring the notice of the higher authorities, offences committed by other persons, may form the foundation for disciplinary action against him in a departmental way, but it cannot in law amount to abetment of the offence committed by his fellow clerk.

Instigation is to urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out.

Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

Thus, to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or ‘urging forward’. In order to hold a person guilty of abetting it must be established that he had intentionally done something which amounted to instigating another to do a thing. Instigation may also be of an unknown person. A mere permission does not amount to instigation.

Wilful Misrepresentation or Wilful Concealment

Explanation 1 to this section says that a person who (1) by wilful misrepresentation, or (2) by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done is said to instigate the doing of that thing. Instigation by ‘wilful concealment’ is where some duty exists which obliges a person to disclose a fact.

Harassment from the Superior Officers

Deceased was a qualified engineer who had suffered persistent harassment and humiliation and also had to endure continuous illegal demands made by the accused and upon non-fulfilment of which he would be mercilessly harassed by the accused by a prolonged period of time. Such harassment coupled with the utterance of words to the effect that, had there been any other person in his place, he would certainly have committed suicide. In Madan Mohan Singh v. State of Gujarat, the deceased was a driver in the Microwave Project Department.

He had undergone a bypass surgery for his heart, just before the occurrence of such incident, his doctor had advised him against performing any stressful duties. The accused was a superior officer to the deceased. When the deceased failed to comply with the orders of the accused, the accused became very angry and threatened to suspend the deceased, rebuking him harshly for not listening to him. The accused also asked the deceased how he still found the will to live, despite being insulted so. The driver committed suicide. 

For the purpose of bringing home any charge against the accused, the Supreme Court stated that there must be allegations to the effect that the accused had either instigated the deceased in some way, to commit suicide, or engaged with some other persons in a conspiracy to do so, or that the accused had in some way aided any act or illegal omission o cause the said suicide. If the making of observations by a superior officer, regarding the work of his subordinate, is termed as abetment to suicide, it would become almost impossible, for superior officers to discharge their duties as senior employees.

No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether the circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide.

Abetment by Conspiracy

‘Conspiracy’ consists in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. So long as such  design rests in intention only, it is not indictable. When two carry it into effect, the very plot is an act itself, and the act of each of the parties, promise against promise, capable of being enforced, if lawful, is punishable if for a criminal object or for the use of criminal means. 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. Where parties concert together, and have a common object, the act of one of the parties, done in furtherance of the common object and in pursuance of the concerted plan, is the act of all. 

Before the introduction of conspiracy, except in cases provided for by Section 121A, 311, 400, 401, 402 of the Code, was a mere species of abetment when an act or an illegal omission took place in pursuance of that conspiracy, and amounted to a distinct offence for each distinct offence abetted by conspiracy.

For an offence under the second clause of this section a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of that conspiracy, and amounted to a distinct offence for each distinct offence abetted by conspiracy.

For an offence under the second clause of this section, a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of the conspiracy. But for an offence under section 120 A of the Indian Penal Code, a mere agreement is enough if the agreement is to commit an offence.

 Let us discuss the difference between Abetment and Conspiracy. Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, An illegal act or an act which is not illegal by illegal means. It differs from other offences because mere agreement is made an offence even if no step is taken to carry out that agreement.

Though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated under Section 107 of the Indian Penal Code. There is no analogy between Section 120 B and Section 109 of the Indian Penal Code. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment.

By illegal omission

The definition of abetment as given in Section 107 of the Penal Code not only includes instigation but also intentional aiding by an illegal omission. Accordingly, the appellant, being the person responsible for creating circumstances provoking or forcing the victim to take the extreme step to avoid a more miserable life and not making any attempt to save her life, was liable to be convicted for the offence of abetment of suicide.

In a case where a lady advocate was attending the chamber of her senior advocate, the accused. On the day of the incident she was talking with the accused at her residence. At that moment in his presence, she poured kerosene on her and set herself on fire. The accused did nothing to save her. It was held that this did not amount to “illegal omission” and he was not held guilty of abetment to suicide. 

Abetment of offences under other laws

The offence of aiding and abetting is applicable to all statutory offences unless specifically excluded by statute and accordingly it was held to apply to offences created by the English Public Order Act 1986. Abetment of an offence under the Prevention of Corruption Act, 1988 can be made by a non-public servant. Abettors are to be prosecuted through trial under the Prevention of Corruption Act. 

Attempt

Merely because the section opens with the words “ if any person commits suicide” it cannot be held that in a case of unsuccesful suicide there is no attempt to abet the commission of suicide. Suicide and its attempt, on the one hand, and abetment of commission of suicide and its attempt on the other are treated differently by law and therefore the one who abets the commission of an unsuccessful attempt to commit suicide cannot be held to be punishable merely under Section 309 read with Section 116  of the IPC.

To implement the scheme of law he has got to be held punishable under Section 306 of the Indian Penal Code read with Section 511 of the Penal Code. The Supreme Court has never laid down in Satvir Singh v. State of Punjab that under no circumstance, an offence under Section 306 of the Penal Code read with Section 511 of the Penal Code can be committed. The Supreme Court did not have the occasion to consider whether a conviction for an offence of attempt to abet the commission of suicide is punishable under Section 306 read with Section 511 of the Penal Code. 

Act done with Criminal Intimidation is not Abetment

Illegal gratification, unfortunately, is a normalized practice in the system. Now this, practice makes the bribe giver an accomplice to some illegal act even if the bribe is extorted from them. The honourable Supreme Court clarified this dilemma in the case of Dalpat Singh v. State of Rajasthan[8] by stating that :

Those who gave illegal gratification to the appellants (Reserve Police constables) cannot be considered as accomplices as the same (bribe) was extorted from them.[9]

Broadly it can be said that the three strategies of committing the crime of Abetment are by

• Instigating
• Engaging
• Intentional Aiding

Instigating

Instigating someone literally means to incite, provoke, urge or bring about by persuasion to do anything. The word ‘instigate’ has been interpreted in the case of Sanju v. State of M.P[10] One might argue that the actusreus and the mensreus do not merge to a single person, therefore, abetment to do a thing should not be an offence. In abetment by instigation, there has to be some active involvement of the abettor towards the preparatory phase of the crime.

This is broadly considered as the actusreus in the crime of abetment, combined with the intention of getting something done or illegally omitted would constitute a complete criminal offence. However, there needs to be sufficient proof that the individual has willfully influenced and coerced the individual to commit a crime[11] but at the same time, it is not necessary for the person abetted to have the same guilty intention or knowledge.[12] The person abetted can totally have a different set of intention and knowledge, still, the offence is committed because the preparatory phase is being dealt with in isolation to the execution phase.[13]

The entire liability of the abettor is decided within the first two stages of the crime. Now even if the execution gets a different result, the crime has been committed. Advice amounts to instigation only when intended to actively suggest or stimulate the commission of an offence. Mere acquiescence does not amount to instigation. Presence of mensreus is a necessary concomitant of instigation.[14]

In any event, in determining the criminal responsibility of the defendant in the case, it becomes necessary to determine not only the criminality of an order/suggestion/proposition in itself but also as to whether or not such an order was criminal on its face. Criminal law also rests on the fact that most times people have a free will.[15]

Lord Kenyon in the case of Higgins[16] said that, “a mere intent to commit evil is not indictable, without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act sufficient to constitute an overt act of high treason.”

Commission of the offence is not necessary for the first two clauses of Section 107

• It is immaterial whether the person instigated goes ahead to commit the crime or a group conspiring together executes the object of the conspiracy.[17] Abetment as an offence is complete in itself a distinct.[18] When the alleged abettor has instigated another or engaged with another in a conspiracy to commit an offence. It is not necessary for the offence of abetment that the act abetted must be committed.[19]

Mere verbal permission or silent assent would not constitute instigation

• If A tells B that he intends to loot a bank C, B says do as you like, A succeeds in looting the bank C, here B cannot be said to have instigated.

Willful misrepresentation or Concealment is sufficient to constitute abetment

• A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Direct or Indirect Instigation

• Where a person gives to an unlawful assembly a general order to beat, it is a case of a direct instigation. The instigation would be indirect when instead of such an order a person raises a slogan “Cowards die many times before their death, the valiant die but once” will intend to provoke. This is direct instigation whereas indirect instigation would be A instigating B to commit a crime not by saying so but by harping upon the wrongs he has suffered.

Engaging

Means being actively involved in the suggestion or stimulation of the commission of the crime such as in a conspiracy. The sections 120A and 107 of the Indian Penal Code dealing with the offences of conspiracy have clearly stated the difference between the two. The case of Noor Mohammad Momin v. State of Maharashtra[20] shows the difference between criminal conspiracy and abetment to conspiracy. Criminal conspiracy has a wider jurisdiction than abetment by a conspiracy. An individual is guilty of conspiracy with the mere agreement between a group of people to commit an offence.

Ingredients of Abetment by Conspiracy

1. A conspiracy between two or more person.
2. An act or illegal omission may take place in furtherance of that conspiracy.

A mere combination of person 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.[21] Explanation 2 of Section 107 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert 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. It has been held that where a criminal conspiracy amounts to an abetment under Section 107, it is unnecessary to invoke the provisions of Section 120A and 120B, as the Indian Penal Code makes specific provision for the punishment of such a conspiracy.[22]

• A, a servant enters into an agreement with thieves to keep the door of his 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. But should the thieves not come; A will not be liable under this section.

Intentional Aiding

A person is said to abet the commission of an offence if he intentionally renders assistance or gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not sufficient.

Ingredients

• Doing an act that directly assists the commission of the crime, or
• Illegal omission of a duty you are bound to do, or
• Doing any act facilitates the commission of a crime.[23]

For instance, two factory workers begin quarrelling and the owner in a fit of anger shouts that if he had a weapon he would teach them a lesson. Now, if another labourer in the factory on hearing this hands him a weapon and the owner subsequently injures them with it, the labourer who supplied the weapon which facilitated the act is guilty of abetment through assistance.[24] 

A person, it is trite, abets by aiding, when by any act done either prior to, or at the time of the commission of an act, he intends to facilitate and does in fact facilitate the commission thereof, would attract the third clause of Section 107 of the Penal Code. Doing something for the offender is not abetment.

Doing something with the knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment. In order to constitute abetment by aiding within the meaning of the third paragraph of Section 107, the abettor must be shown to have intentionally aided the commission of the crime.

A person may invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But, unless it is shown that the invitation was extended with a view to facilitate the commission of the murder, it cannot be said that person extending the invitation had abetted the murder.

The language used in this section is “intentionally aids” and therefore, active complicity is the gist of the offence of abetment under the third paragraph of Section 107 of the Indian Penal Code. Abetment includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing.

On facts held, in the instant case, there was no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.

Where the principal offender killed the victim with a knife provided by the defendant who later claimed that he thought the knife would be used only to threaten, the defendant’s conviction for murder was upheld, the Court of Appeal saying that the trial judge was correct to direct the jury that the defendant could be so convicted if he contemplated that the principal offender might kill or cause serious bodily harm to the victim as part of their joint enterprise.

It is also not necessary to show that the secondary party to a conspiracy to murder intended the victim to be killed provided it is proved that he contemplated or foresaw the event as a real or substantial risk.

Mere absence from the scene of the crime cannot amount to unequivocal communication of withdrawal from the enterprise. The accused was recruited with certain others by a person to kill his wife. At a predetermined time she was taken to the agreed place and killed. The accused was not present when the killing took place. It was held that he was rightly convicted in that he had lent encouragement and assistance before the commission of the crime. 

Merely being present at the crime scene does not amount to aiding

• Unless the intention was to have an effect by being present or the person was aware that an offence is about to be committed or he actively supports or holds some position, rank in committing of the offence.

The offences against an officer, soldier, sailor or airman in the army, navy or air force of Government of India. In addition, these words are common to all the sections right from Section 131 to 140.

Ingredients

1. Abetment of committing a mutiny by an officer(officer, soldier, sailor or airman in the army, navy or air force of Government of India)
2. Attempting to seduce any officer from his allegiance or his duty.

Mutiny is the uprising against the lawful authorities in the army. It can be very well compared to sedition..

Abetment to Suicide

Instigation as a form of abetment has generally been the most essential consideration in cases of abetment to suicide and dowry death. Another important consideration to charge anyone for abetment to suicide is to prove beyond doubt that the death in question is a suicidal death.[25] Section 306, IPC reads as if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term, which may extend to ten years, and shall be liable to fine. The definition of abetment in section 306 needs to conform with the definition given under section 107 of the IPC.

If A persuades B to kill himself and he does it, then according to this section, A would be liable as an abettor. Proving the direct involvement [26] by the accused in such abetment to suicide is necessary.[27] However, abetment of suicide is a long mental process and rarely easy to prove. A conviction cannot be handed over under 306 unless clear mens rea is proved. The elements that need to be satisfied in order for an offence to come under section 306 IPC are suicidal death, and abetment thereof held in SangaraboniaSreenu v. State of Andhra Pradesh.[28]

Let us look at some of the recent developments regarding Abetment to Suicide which put forth the ingredients of the offence as well.

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Deceased committed suicide by hanging himself because of the alleged illicit relationship between his wife and the accused. Accused took the wife of deceased away from the house of her brother and kept her with him for four days. There is definitely a proximity and nexus between the conduct and behaviour of the accused and wife of deceased with that of suicide committed by the deceased. 

Where a married girl committed suicide by burning herself in her in-law’s house, her in-laws were held guilty of abetment because they were persistently torturing her for inadequate dowry and had gone to the extent of accusing her of illegitimate pregnancy. The judge in this case held that all these tortures and taunts caused depression in her mind and drove her to take the extreme step of putting an end to her life by sprinkling kerosene oil on herself and setting it afire.

Section 306 of the Penal Code prescribes punishment for abetment of suicide while Section 309 of the Penal Code punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the purview of Section 306 of the Penal Code.

In another case of the same kind, a husband persistently demanded more money from his wife, quarrelling with her everyday. On the fateful day when she happened to say that death would have been better than this, she heard only this in reply that her husband would feel relieved if she ended her life. Immediately thereafter he set herself on fire. The husband was held guilty of instigating her to commit suicide. Where the deceased committed suicide within 35 days from the date of her marriage, and the allegation of cruelty was also fully established, accused is found guilty.

• Clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC[29]
• Merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.[30]
• In order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence. [31]

 

 

 

 

 

 

 

 

 

Relevant Case Laws

The law of abetment has undergone major changes very recently. The changes are laid out by the landmark cases below:

• In PramodShriramTelgote v. State of Maharashtra , it was held that “clear mens rea to commit the offence is a sine qua non for conviction under Section 306 IPC”. 
• In Channu v. State of Chattisgarh, it was held that “merely because wife committed suicide in matrimonial house, husband and in-laws can’t be charged for abetment to suicide.”
• In Gurucharan Singh v. State of Punjab, it was held that “in order to convict a person for abetment of suicide, there has to be a clear mens rea to commit an offence.”

Conclusion

Thus, contrary to popular belief, not only the perpetrator of the crime but also his or her accomplice will be liable in the case. 

References

1. See Sanju v. State of Madhya Pradesh, (2002) 5 SCC 371.
2.  See Kartar Singh v. State of Punjab, 1994 Cri LJ 3319.
3.  Indian Penal Code, K A Pandey, B M Gandhi, EBC 4th Edition
4.  Law Commission of Ireland Report, Consultation Paper on Inchoate Offences, 2008
5.  See (2007) 10 SCC 797
6.  See State of Kerala V. S. Unnikrishnan Nair, (2015) 9 SCC 639.
7.  See Section 108 IPC, Explanation 2
8.  See Dalpat Singh v. State of Rajasthan, AIR 1969 SC 17 (2
9.  Id
10.  Supra Note 1
11.  Muthammal v. Maruthatla (1981)
12.  See Section 108 IPC, Explanation 3.
13.  See Section 109 IPC
14.  See SwamyPrahaladdas v. State of M.P. & Am., 1995 Supp. (3) SCC 43
15.  See Morissette v. United States, 342 U.S. 246, 250 (1952)
16.  See (1801) 2 East 5.
17.  See Faguna Kanto v. State of Assam, AIR 1959 SC 673.
18.  SUpra note 6.
19.  See Jamuna Singh v. State of Bihar, AIR 1967 SC 553.
20.  AIR 1971 SC 885, (1971) Cr Lj 793 (SC)
21.  See Section 107 IPC, Explanation 2.
22.  AIR 1960 Pat 459 (468)
23.  See FagunaKantaNath v. State of Assam, AIR 1959 SC 673.
24.  (1874) 12 WR 527
25.  See Air 1942 Mad 92 (93)
26.  M. Mohan v. State 2011(3) SCC 626
27.  JagannathMondal v. State of West Bengal
28.  (1997) 4 Supreme 214
29.  PramodShriramTelgote v. State of Maharashtra, Crl. Application (APL) No. 293 of 2013.

30.  See Channu v. State of Chattisgarh, 2017 SCC OnLineChh 1234
31.  See Gurucharan Singh v. State of Punjab, 2016 SCC OnLine SC 1415