Report No. 42
5.11. Section 108, Explanation .-omitted.-
Explanation 5 and the illustration thereto may be omitted as they relate to abetment by conspiracy which is proposed to be omitted.
1. This hypothetical example is based on a variation of the facts in section 198, Explanation 4, illustration.
2. Muhammad Khuhro, ILR 1945 Ker 275 (O'Sullivan J.).
5.12. Section 108A.-
Section 108A is in substance another explanation of what constitutes abetment of an offence, and may accordingly be combined with section 108. Although according to section 40, section 108A applies only in relation to offences made punishable under the Code, there can be no objection to extending its application to offences punishable under any special or local law.
5.13. Section 108 and 108.-combined and revised.-
In the light of the above discussion, sections 108 and 108A may be combined and revised as below:
108. "Abetting an offence".- (1) A person abets an offence, who abets the doing of a thing which is that offence or which would be an offence if done by a person capable by law of committing that offence with the same intention or knowledge as that of the abettor.
(2) A person abets an offence, who, in India, abets the doing of any act outside India which, if done in India, would constitute that offence.
(3) A person who abets the abetment of an offence abets that offence.
(4) To constitute abetment of an offence, it is not necessar.-
(a) that the act abetted should be committed; or
(b) that the effect requisite to constitute the offence should be caused; or
(c) that the person abetted should be capable by law of committing an offence, or should have any guilty intention or knowledge, or should commit an offence.
(5) To constitute abetment of an offence that consists of an illegal omission of an act, it is not necessary that the abettor should himself be bound to do that act.
Illustration to sub-section (2)
(a) A, in India, instigates B, a foreigner in Nepal, to commit a murder in Nepal. A is guilty of abetting murder.
Illustrations to sub-section (3)
(b) A instigates B to instigate C to murder Z. B accordingly instigates C and C murders Z in consequence of B's instigation. B has committed the offence of abetting murder and is liable to be punished with the punishment provided for murder; and as A instigated B to commit the offence, A is also liable to the same punishment.
(c) If, in the foregoing illustration, C refuses to murder Z, B has committed the offence of abetting murder, and is liable to be punished with imprisonment which may extend to seven years and with fine;1 and as A instigated B to commit the offence, A is also liable to the same punishment.
Illustrations to sub-section (4)
(d) A instigates B to murder Z. B refuses to do so. A is guilty of abetting B to commit murder.
(e) A instigates B to murder Z. B in pursuance of the instigation stabs Z. Z recovers from the wound. A is guilty of abetting B to commit murder.
(f) A, intending to kill Z, instigates B, a child under ten years of age2, to do an act which A knows will cause Z's death. B, in consequence of the instigation, does the act and thereby causes Z's death. Here B was not capable by law of committing an offence, but since his act would be murder if it had been committed by a person of full age with the same intention and knowledge as that of A, A is guilty of abetting murder.
(g) A, intending to take dishonesty an article belonging to C out of his possession, induces B to believe that the article belongs to A and instigates him to take it from C's possession. B does so in good faith believing it to be A's property. Though B has no guilty intention or knowledge, A is guilty of abetting theft."
1. See section 115.
2. As to age, see section 82, as proposed to be amended, para. 4.24 above.
5.14. Section 109 revised.-
The words "by this Code" in section 109 appear to be unnecessarily restrictive and should be omitted. There is no reason why in a case where express provision for punishing the abetment of an offence is made in a special or local law, that provision should not prevail.
In the explanation, the words "or in pursuance of the conspiracy" should be omitted.
Illustration (a) is out of date, since abetment of bribery is now specifically dealt with in section 165A of the Code. The other illustrations also do not appear to be of any value. All illustrations to the section may be omitted.
Section 109 may accordingly be revised as follows.-
"109. Whoever abets any offence shall, if "the act abetted is committed in consequence of the abetment, and no express provision is made for the punishment of such abetment," be punished with the punishment provided for the offence.
Explanation.-An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or with the aid, which constitutes the abetment."
5.15. Section 110.- Section 110 needs no change.
5.16. Section 11.-"probable consequence".-
When exactly can it be said that an act done was a "probable consequence" of the abetment? In deciding this important question, courts have generally adopted the test of "the reasonable man". We considered whether an amendment should be made to the effect that the abettor should have known that the different act was likely to result in the circumstances. The reasonable man's foresight is at present, attributed even in cases where the abettor, in fact, did not foresee the particular consequenc.-even though objectively it was a probable consequence. In our view, however, the present position gives a just and workable test, and need not be disturbed.
We also noticed that where the act done was not a "probable consequence" of the abetment, then neither section 110 nor section 111 would apply, though sections 115 and 116, could be invoked in such a case. We think that this position is satisfactory, and no amendment is required.
Though the second paragraph of section 111 appears as a proviso and is called one in the margin, it is not exactly a proviso in the usual sense. It expresses two essential conditions for the application of the main provision. Section 113 also ends with a clause reading "provided he knew that the act abetted was likely to cause that effect", although this is not printed separately as a proviso. The word "provided" here has the same meaning as "but only if". The meaning will be clearer by re-printing the section in the following form.-
"111. Liability of abettor when one act abetted and different act done.-When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it, provided the act don.-
(a) was a probable consequence of the abetment, and
(b) was committed under the influence of the instigation, or with the aid, which constituted the abetment."
Although illustrations (a) and (c) are not particularly illuminating in regard to the meaning of "probable consequence", there is no harm in retaining them for what they are worth.
5.17. Sections 112 and 113.- No change is needed in section 112 or 113.
5.18. Section 114.-
The need for section 114 which sets out a deeming provision is not very clear. Since the section postulates the actual commission of the act or offence abetted, the abettor is liable under section 119 to be punished with the punishment provided for the offence. What more is gained by laying down that the abettor, if present, shall be deemed to have committed such act or offence?
It is possible that section 114 was of some significance vis-a-vis section 30 of the Evidence Act as it stood before the amendment made in 1891. Under that section, the confession of an accused person could, under certain conditions, be taken into consideration against a co-accused if both were accused of "the same offence". As observed by Gour1.-
"Though an abettor may be legally tried jointly with the principal offender, it was formerly held, that as the abettor was not tried jointly with him for the same offence, a confession made by him was not "admissible in evidence against his co-accused"2. This view was perfectly logical on section 30 of the Indian Evidence Act as it then stood, though even then the tendency was to strain the point in favour of their admissibility, for the Courts could not afford to lose so good a piece of evidence. It was consequently laid down in some cases, that a present abettor, tried conjointly with another, was really being tried for the same offence so that the confession of one was admissible against the other.3 The amendment of the section in 18914 has now legalised this view, as the word 'offence', as used in that section, is enacted to include the abetment of or attempt to commit the offence."
Even assuming that section 114 of the Code could have been used to remove the doubt under section 30 of the Evidence Act, it is obvious that, after the amendment of the latter section in 1891, section 114 is not needed for this purpose.
In an old Bombay case5, a curiously narrow view has been taken of the deeming provision in section 114 in the matter of liability to enhanced punishment under section 75. According to this decision, since section 114 does not say that the abettor "shall have committed such offence", it does not equate the abetment with the offence for the purposes of section 75 of the Code. This reasoning was, however, dissented from in a Rangoon case6, and does not appear to have been followed in any subsequent decision. We do not think that any amendment of section 114 is required on this point.
It is possible that if, under a special law, abetment of an offence is punishable less severely than the main offence even when it is committed in consequence of the abetment, section 114 may be useful as it provides that the abettor, if present when the offence is committed, shall be deemed to have committed that offence. But so far as we could ascertain, there are no provisions in special laws punishing abetment with lesser punishment than the main offence. Either there is no express provision at all in the special law as to abetment, or, if there is a provision, then it lays down the same punishment for abetment as for the principal offence. The utility of section 114 at the present day is, thus, not apparent.
1. Gour Penal Law, 1961, Vol. 1, p. 549.
2. Nur Ahmed, (1874) PR (Cr) No. 8; Amrita Goz'inda, 10 BHCR 497.
3. Bag Shah, (1879) PR (Cr) No. 3; Thakur Singh, (1882) PR (Cr) No. 32; Tejo, (1885) PR (Cr) No. 39.
4. Act 3 of 1891.
5. Emp. v. Kahia Antoo, (1908) 10 Bom LR 26: 7 Cr LJ 32.
6. Emp v. Maung Ln Kali, AIR 1929 Rang 203 (206).
5.19. Omission of "if absent" from section 11.-recommended.-
We notice that the section distinguishes between prior abetment and abetment by participation in the offence. Only the former falls within the section. Whether this requirement of prior abetment is necessary, and why abetment at the time of the commission of the offence should not suffice for the purpose of section 114, is not at all clear. In fact, we see no justification for the distinction made in section 114 between prior abetment and abetment at the time of the offence. No doubt, mere presence at the time of the offence should not bring the section into play. There must be other evidence of abetment. But, in emphasising that aspect, the section has gone to the other extreme.
The words "who, if absent, would be liable to be punished as an abettor", rule out any aid rendered at the time of the offence by an abettor, however, vital the contribution of the abettor may be. A minor instigation prior to the offence, followed by presence, is sufficient, while substantial assistance at the time of the offence does not suffice. (No doubt, in the latter case, section 34 will often come into play; but that is true even of the cases now falling within section 114). The emphasis, in our opinion, ought to be on presence coupled with abetment, and not on a particular type of abetment selected only with reference to its chronological order. We, therefore, recommend the deletion of the words "if absent".
5.20. Section 115 revised.-
Section 115 deals with the punishment for unsuccessful abetment of offences punishable with "death or imprisonment for life". The words "death or imprisonment for life" are ambiguous and if the interpretation placed on similar words in section 497 of the Code of Criminal Procedure, is any guide, these words may cover even "sedition", for which one of the alternative punishment is only three years. As the section prescribes a fairly severe punishment, we think it proper to limit it to capital offences, i.e., offences for which death is the only punishment or one of the punishments provided by law.
Imprisonment under section 115 should, in our view, be rigorous, and not "of either description", as at present. Since only rigorous imprisonment is possible for the main offence, the punishment for abetment also should be rigorous only.
The marginal note to section 115, second paragraph, mentions 'harm', but the section speaks only of 'hurt'. This discrepancy should be corrected.
Where punishment for abetment is provided by any other law, section 115 should not apply. Hence the words "by this Code" should be omitted from the section1.
Accordingly, section 115 may be revised as follows.-
"115. Abetment of capital offences if offence not committe.-if act causing hurt be done in consequence.- Whoever abets the commission of a capital offence shall, if that offence be not committed in consequence of the abetment, and no express provision is made for the punishment of such abetment, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine."
1. See para. 5.14, above.