Abatement under Indian Penal Code

Chapter V, section S 107 to 120, relating with Abatement.

When several person s take part in the commission of an offence, each one of them may contribute in a manner and degree different from the others to the commission of it. The offence may be committed by the hands of one person at the instigation of another person, while some other may only be present for offering help at the time of commission of it, and still others may help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of the persons to determine their degree of culpability. However several gradations of action do not necessarily imply different measures of guilt with a view to distinctions in punishment.

In English Law, differently treat the principle offender who may be of first degree and accessories who may be second degree.

IPC- The Indian penal code makes a brad distinction between principals and abettors but does not recognize the accessory after the fact except that offenders has been made a substantive offence in some cases.

Under IPC abatement is constituted in the following ways:

1. 1. Instigating.
2. 2. Engaging
3. Aiding.

Instigating- Means the act of inciting another to do a wrongful act. One may abet the commission of an offence by counseling, suggestions, encouraging, pouring or commanding another to do an act. In order to constitute abatement by instigation some active proceeding towards the preparation of the crime is necessary. To instigate means to actively suggest or stimulate by any means or language, direct or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement, or to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be reasonable certainty in regard to the meaning of the words which an inciter may use.

Illus-

A and B discovering that C intended to commit theft in Z's house. Arrange together to persuade him to steal there from certain articles form them. Here A and B will be liable for abatement and C for theft.

Mere acquiescence, silent assent or verbal permission would not constitute instigation.

A tells B that he intends to murder C,B says do as you like, A kills  C, here B cannot be said to have instigated.

Reason- it was meant actively to suggest or stimulate the commission of an offence.

Willful misrepresentation or Concealment:

Explanation I of section 107 of IPC says that instigation may be constituted of willful misrepresentation or willful concealment of a material fact by one who is bound to disclose it.

Instigation by Letter: Instigation may be direct or it may be  by a letter. Where A writes a letter to B instigating thereby to murder C, the offence of abatement by instigation is completed as soon as the contents of the letter become know to B. if the letter never reaches B, it is only an attempt to abet but not abatement.

Abatement by Engaging

Abatement by conspiracy: abatement of conspiracy consist when two or more person engage in a conspiracy for doing a thing which is illegal thing or act or illegal omission.

Thus in order to constituted abatement by conspiracy following conditions must be there:

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

Conspiracy means an agreement between two or more persons:

To do an illegal act or

To do an act which is not illegal by illegal means.

Thus clause II of section 107 of IPC, is 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.

But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an offence.

Clause 2 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 abatement by conspiracy that the abettor should concert the offence with the person who commit it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Conviction for conspiracy-

No person can be convicted for conspiracy, if the charge against all other conspirators has failed, or if other alleged conspirators are acquitted.

Abatement by Aid-

A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing.

It would be clear if we read clause 3 of s107 with explanation 2, that a person cannot be held guilty of aiding the doing of an act when the act has not been done at all.

Mere intention to facilitate, is not sufficient to constitute abatement, unless the act which it is intended to facilitate actually take place.

Illustration-

A servant keeps open the gate of his master's house, so that thieves may come, and thieves do not come. But the servant intended and informed thieves the door is open and they can come, he would be held liable for abatement.

Mere giving of aid- A mere giving of help is not amount of abatement, until the person who provides the aid does not know that an offence was being committed or constituted.

Illustration-

A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C provide the aid, but he did not know that A wanted to kill B. So he would not be held liable for abatement.

Mere presence does not amount to aiding-

Mere presence at the commission of an office done not amount to intentional aid, unless it was intended to have that effect., and the present aware that an offence is about to be committed an office, or he actively support or present hold some position, authority, or rank in committing the offence.

Aid by illegal omission-

When law impose a duty on someone and he intentionally for adding some one in an illegal, failed to discharge his duty he shall be liable for abatement.