~ Diya Gaur
Introduction
Abetment is not direct commission of an offence but the facilitation of one. It is an expression of intentional support for the fulfilment of an act which would constitute an offence under the Indian Penal Code, 1860. Inclusion of abetment as an offence under the Indian Penal Code underpins the fact that a person who has the mens rea for committing a particular offence and acts in furtherance of those aims, cannot be excused on the grounds that he was not the one who undertook the direct and substantive actus reus of the same. Abetment has been extensively dealt with under the code but to scrutinize cases where the acquittal of the principal offender affects the liability of the abettor, sections 107 and108 of IPC are of significance.
Does the Acquittal of the Principal Offender Render the Accused Innocent?
Section 107 delineates three kinds of abetment; by conspiracy, instigation and intentional aiding. It is material that the abettor is involved in the steps of the transaction which are criminal in nature. What is not settled by this section is whether the conviction of the principal offender is necessary by the concerned person for the abettor to be liable under section 107. Therefore, reliance is to be placed on precedents wherein on the basis of facts and circumstances of the case, the court have laid out some pertinent principles.
The first principle which can be propounded is when abetment by aiding is in question, if the offender has been acquitted with no substantive offence established, the abettor may not be held liable for committing an offence that did not happen. This has been illustrated in the case of Trilok Chand Jain v. State of Delhi, where the conviction of the abettor concerning bribery was in question, while the principal offender had been acquitted, no evidence was available against the abettor. This seems to be gauged from the facts and circumstances of the case where the commitment of substantive offence becomes a pre-requisite not just for the actus reus but also for the mens rea. This however seems to be a position reserved for abetment by aiding as opposed to abetment by instigation or conspiracy. Such can be derived from the case of Jamuna Singh v. State of Bihar, wherein the sentence of a person accused of abetting another person to set fire to a hut was reduced, as it was not the instigated person who set fire to the hut and the person who allegedly set it was also acquitted. The judgment read, “It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of the offence.” Furthermore, emphasis has been laid on the fact that if the commission of the offence does not happen then aiding the same ostensibly becomes impossible.
Another category of cases, where acquittal of the abettor on the grounds that no substantive offence has been established against the principal offender has been held to be a rationale is conspiracy cases. In the case of Hardhan Chakrabarty v. Union of India & Anr., a person who was accused of abetting the theft of 250 drums, was acquitted on the grounds that theprincipal offender and eight others who allegedly abetted as well were acquitted. The court placed reliance on several cases, for instance, the case of Topan Das v. State of Bombay, wherein the court held that “one person cannot be held guilty of criminal conspiracy as one cannot conspire with oneself”. Here, it is pertinent to note that the case was referring to criminal conspiracy under section 102-A of the Indian Penal Code and not that of conspiracy by abetment. The essence of applying the same principle is that the factor of involvement of multiple people in the offence is a pre-requisite under both the provisions. A reference to all these cases brings home the point that conviction for abetment is not irrespective of the conviction of the principal offender. However, the same is being dependent on the facts and circumstances of each case and cannot be applied as a general principle.
Section 108 [CE 1] has a different setting pertaining to the materiality of the commitment of substantive offence in deciding the conviction of the abettor. The section explicitly through explanation II clears that abetment is completely a separate offence, and an abettor may be liable irrespective whether substantive offence has been committed or not. This comprehension has been crystallised by illustration (a) attached to the section as well.
The Anomaly and Suggestions for Reform
An anomaly has been presented when the liability of the abettor under sections 107 and 108 is concerned. Under section 108, abetment is being treated as a separate offence, independent of the fact whether the substantive offence has been committed by the principal offender or not. However, under section 107, no such principle has been provided about how far it is relevant or even if it is relevant for the substantive offence to be established against the principal offender for imposing liability on the abettor. Another stark distinction between the two sections is that while section 107 deals with the abetment of a ‘thing,’ section 108 is concerned with the abetment of an ‘offence.’ Abetment is punishable if the substantive offence has been committed under section 109 and if the offence has not been committed under section 115 and 116.
Considering the above-mentioned provisions, there should not be any ambiguity on the present matter. However, it has been introduced by the earlier discussed precedents where the effect of acquittal of accused affected the liability of abettor. It is in the interests of justice that abetment be treated as a separate and independent offence, as when the resolution of the abettor to instigate, aid or participate in a conspiracy for facilitating a crime is definite, the commission of the principal offence should not matter as it depends upon the action and intentions of the principal offender. A direct linkage between their liabilities to the extent of nullifying any liability of the abettor if the principal offender does not commit the crime is not a reasonable one unless the case is one of exceptional circumstances where it is ostensibly impossible for the abetment to have taken place unless the substantive offence has been committed. An illustration of the same can be found in the precedents mentioned above where the abettor was acquitted on such grounds.
Another facet of the same is that ‘instigation’ of the offence stands on a different footing compared to aiding and conspiracy. ‘Aiding’ of an offence constitutes a very active participation, rather a contribution to the commitment of the offence, it is an act closely related to that of the substantive offence. As far as the case of abetment with conspiracy is concerned, the pre-requisite for the same is involvement of two or more people, herein the liability not of the principal offender but the other abettors matter more, if they have been acquitted, a single person alleged of such abetment cannot be held guilty of such conspiracy. It is under the category of instigation that a starker separation may be made between the liabilities.
Since the abetment concerned in both the sections is of different nature and it is a matter of judicial discretion as no watertight definition can be provided for deciding the liability of the abettor when both sections are into play. It has been held by the court that both sections have to be read together. It is a matter to be decided on a case-to-case basis. It is recommended that the abettor be acquitted on such grounds only in exceptional circumstances as the attempt made by the abettor to facilitate a crime, which even though does not happen later, cannot be excused from liability generally as he had the requisite intention and committed an act in furtherance of the same. Another alternative would be to insert a provision that completely separates the offence of abetment under section 107 with the commitment of substantive offence like in section 108. This would, most importantly, bridge the gap between the two sections and put on the same page regarding the linkage between abetment and commitment of substantive offence. Consistency will be ensured not only between these two sections but also concerning other sections prescribing punishments for abetment. However, this will be in contrast with certain judicial precedents that have been discussed above. The counterparts of Sections 107 and 108 in the Bharitya Nyaya Sanhita, 2023 are Sections 45 and 46 respectively with no changes being made with respect to the content of these provisions.
Conclusion
No straitjacket formula can be provided as to when the conviction for abetment would depend on the conviction of the principal offender. An amendment can possibly clear the ambiguity present. As a general rule, it is considered to be in the interests of justice to treat abetment as a separate and independent offence, as both the elements of mens rea and actus reus are well present in the act of abetment, the commitment of the substantive offence should not decide the conviction or acquittal of the abettor. Rather, it can impact the term of imprisonment or sentence of the accused. Regardless, an amendment made in the section can clarify the present ambiguity, reserving this notion to a limited number of cases where mandating the acquittal of a better on the acquittal of the principal offender will be in the interests of justice and suitably reasonable to the exceptional circumstances.
“The article has been authored by Diya Gaur. The author is a third year student at Rajiv Gandhi National Law University, Patiala.”
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