Abetment and Criminal Conspiracy under English and Indian law

PRINCIPLES OF CRIMINAL LAW: UNIT 5
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1. Explain the provisions relating to abetment in English and Indian law.
In usual parlance, a person is held to be liable only if he or she has personally committed a
crime. Detouring from the usual concept, the concept of Abetment says, that he who has
helped the criminal or provided him with any assistance in any form can also be held to be
liable. A person not committing a crime himself may still encourage, urge, command,
request, induce or assist a third party in committing a wrong and as a result of such
commission be guilty of the offence of abetment.
 ABETMENT UNDER ENGLISH LAW:
At common law the different parties to a crime were carefully classified. The classifications
were broken down in two ways; first, according to the severity of the crime, so that there
were differences between parties to a felony and parties to a misdemeanor, and, second,
according to what stage in the commission of the crime that the party helped the criminal.
Thus, there were differences between people who encouraged the commission of the crime,
people who actually assisted with the commission of the crime, and people who assisted the
criminal after he had completed the crime.
The parties to a felony are classified both according to their role in the execution of the crime,
and whether or not they were present when the crime was actually committed. At common
law, a party to a felony can fall into one of four different classifications:
1. principal in the first degree,
2. principal in the second degree,
3. accessory before the fact, and
4. accessory after the fact.
(1) Principal in the first degree:
A principal in the first degree is the person who actually commits the crime himself or causes
an innocent person to commit the crime for him. For example:-
EXAMPLE (1): Homer buys a gun and uses it to rob the Quickie Mart. Homer is a principal
in the first degree because he has actually committed the crime himself.
EXAMPLE (2): Homer takes his son, Bart, to the Quickie Mart. Homer sends Bart into the
store with a counterfeit twenty dollar bill and instructs him to buy two six-packs of beer and a
pack of cigarettes. Bart has no idea that the money is counterfeit. Since passing counterfeit
notes is a felony, Homer is a principal in the first degree because he has caused an innocent
person, Bart, to commit the crime for him.
(2) Principal in the second degree:

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A principal in the second degree is someone who either encourages the commission, or
assists in the commission, of a crime and who is actually at the scene of the crime when the
crime is being committed.
 Commonwealth vs. Lowrey (1893)
On an indictment for breaking and entering, it appeared in evidence that, in pursuance of
a pre-concerted scheme, A., making a pretence of a wish to purchase an article, got the
night clerk at a shop to let him in at about midnight, and that, while the clerk was in the
cellar getting the article, A. unbolted the door which had been rebolted behind him after
his admission and let in B., who concealed himself and remained behind when A. left,
and afterwards broke open the money-drawer. Held, that in order to convict B. it was not
necessary that he should have touched the door, if he procured himself to be let in by an
accomplice and entered with felonious intent. Held, also, that A., the accomplice inside
the house, was guilty of the same offence.
Even if a person is not actually present at the scene of the crime when the crime is being
committed, they will nevertheless be considered a principal in the second degree if they are
constructively present at the time the crime is being committed. A person is constructively
present if he assists the principal in the first degree at the time the crime is being committed,
but he does so from a distance, even though he is not actually physically present at the scene
of the crime.
EXAMPLE: Homer and Marge put together a plan to rob the First National Bank of
Springfield. While Homer goes inside to rob the bank, Marge takes up a position a thousand
yards away from the bank’s entrance. She has a walkie-talkie and a pair of binoculars and,
with them, she will be able to notify Homer in case any police approach the bank. In this
situation, Marge is considered a principal in the second degree because, even though she is
not physically present at the scene of the crime, she is constructively present at the time and
place that the crime is being committed.
(3) Accessory before the fact:
An accessory before the fact is a person who encourages or aids in the commission of a
felony but is not actually or constructively present at the scene of the crime at the time that
the crime is being committed. In other words, an accessory before the fact provides pre-crime
assistance, and only pre-crime assistance, to the criminal. For example:
EXAMPLE: Homer and Marge put together a plan to rob the First National Bank of
Springfield. A week before Homer is set to commit the crime, Marge stakes the bank out and
draws him detailed maps of the bank’s floor plan. However, when the date of the crime
arrives, Homer goes by himself and Marge remains at home. In this case, because Marge was
neither actually or constructively present at the scene of the crime when it was being
committed, she is not a principal in the commission of the crime. However, because she
provided Homer with pre-crime assistance, she is an accessory before the fact.

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(4) Accessory after the fact:
An accessory after the fact is someone who gives post-crime assistance to the criminal. In
order to be convicted as an accessory after the fact, the defendant must have known that the
person he was helping had committed a felony and he must have given the help with the
intent of interfering with the criminal’s capture, prosecution or conviction. For example:
EXAMPLE: Homer has successfully robbed the First National Bank of Springfield and he
goes to hide out at his friend Barney’s house. Barney hides Homer in his basement and, when
the police knock on Barney’s door and ask if he has seen Homer, Barney tells the police that
Homer had mentioned something about taking a vacation in Florida. He then gives the police
a phony flight itinerary that he says Homer accidentally left at Barney’s house when he came
for a visit the other day. In this situation, because Barney is giving Homer assistance after he
has committed a crime, knowing that Homer has committed the crime and with the intent of
preventing the police from catching Homer, Barney is now an accessory after the fact.
As far as the procedural consequences of the different categorizations are concerned, at
common law an accessory could not be convicted unless the principal himself was convicted
of the crime. Also, an accessory could not be convicted of a higher offense than the principal
was convicted of. However, these rules did not apply to the principals of the crime. A
principal in the second degree could be convicted even if the principal in the first degree was
acquitted. Additionally, the principal in the second degree could be convicted of a higher
offense than the principal in the first degree was convicted of. As far as misdemeanors are
concerned, at common law there was no distinction made between principals and accessories
or between degrees of principals. At common law, the parties to both a felony and a
misdemeanor were typically convicted of the crime itself. In other words, if a defendant had
been an accessory to a murder, he would not have been convicted for being an accessory to
the murder. Rather, he would have been convicted of the actual murder.
Modern statutes treat the classifications of principal and accessory differently. The rule that
parties to crimes under the common law can be convicted of the crime itself has, for the most
part, remained the same. However, the technical distinctions between principals and
accessories have basically been eliminated. For example, people who qualify under the
common law as either principals or accessories before the fact are all considered principals
under modern statutes and can be convicted of the actual crime itself. However, a common
law accessory after the fact cannot be convicted of the crime itself under modern statutes.
Rather, he can be convicted of a separate offense of being an accessory after the fact that
carries a lower penalty than the actual crime.
 ABEMENT UNDER INDIAN LAW:
IPC recognizes both the principles of second degree and accessories at the fact denoting
essentially the same kind of offenders and has termed them as “abettors” in Chapter V.

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 Abetment of a thing: S. 107
Section 107 provides for abetment of a thing and the ingredients required to constitute the
abetment of such thing by a person are:
 Instigation of another to commit such thing
 Engaging with one or more persons to do that thing by conspiring
 Aiding by act or by illegal omission with an intention to do that thing
An offence of abetment therefore may constitute instigation, intentional aid or conspiracy.
This section makes the abetment of a ‘thing’ an offence and not necessarily an abetment of an
‘offence’. This means abettor can be made solely liable in some cases although the person
who has been abetted may be completely innocent.
 Instigation: The meaning of ‘instigate’ is to incite, urge, provoke or bring about by
persuasion to do anything which the law prohibits. The act of instigating a person
could take any form. It may be by conduct. A person may be instigated by suggesting,
stimulating, supporting, hinting or insinuating the commission of the act. Giving
approval for an act may also amount to instigation sometimes. There must be a
proximate casual connection between instigation and the act committed as a result.
 Conspiracy: Commission of abetment by engaging with one or more persons in a
conspiracy to commit an offence constitutes the offence of abetment by conspiracy.
Abetment by conspiracy requires that the act or illegal omission abetted must take
place as a result of such conspiracy and thus mere agreement is not sufficient for
conviction.
 Intentional aiding: A person who abets by intentionally aiding commits certain acts
enumerated hereunder:
(i) doing an act directly assisting the commission of the crime
(ii) illegally omitting to do a thing which one is bound to do
(iii) doing an act which may facilitate the commission of a crime by another.
Mere presence of the abettor is not sufficient to constitute the offence of abetment by
intentional aid unless his presence is intended to have the effect of aiding. Also, if the
person does not know about the offence being committed then his facilitation in doing
the ‘thing’ does not amount to aiding.
In the case of Ram Kumar vs. State of Himachal Pradesh (1995) where a head
constable dragged a 19 year old married girl and her husband to the police station and
thereafter took her to another room and raped her, while another constable kept an eye
on the hapless husband who helplessly heard the screams of his wife. The court found
the constable who kept an eye on the husband to have facilitated and thereby abetted
the rape by his conduct.
 Abettor: (S. 108)

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Section 108 specifically deals with abetment of an offence unlike section 107 which dealt
with abetment of a thing. Section 108 provides that A person abets an offence, who abets
either the commission of an offence, or the commission of an act which would be an offence,
if committed by a person capable by law of committing an offence with the same intention or
knowledge as that of the abettor.
Explanation 1 to 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.
Explanation 2 to section 108 —To constitute the offence of abetment it is not necessary that
the act abetted should be committed, or that the effect requisite to constitute the offence
should be caused.
Example: A instigates B to murder C. B refuses to do so. A is guilty of abetting B to
commit murder.
Explanation 3 to section 108 — It is not necessary that the person abetted should be capable
by law of committing an offence, or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge.
Example: A, with a guilty intention, abets a child or a lunatic to commit an act which
would be an offence, if committed by a person capable by law of committing an
offence, and having the same intention as A. Here A, whether the act be committed or
not, is guilty of abetting an offence.
Explanation 4 to section 108— The abetment of an offence being an offence, the abetment of
such an abetment is also as offence.
Example: A instigates B to instigate C to murder Z. B accordingly instigates C to
murder Z, and C commits that offence in consequence of B’s instigation. B is liable to
be punished for his offence with the punishment for murder; and, as A instigated B to
commit the offence, A is also liable to the same punishment.
Explanation 5 to section 108: —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 is sufficient if he engages in the conspiracy in pursuance of which the offence
is committed.
Example: A concerts with B a plan for poisoning Z. It is agreed that A shall
administer the poison. B then explains the plan to C mentioning that a third person is
to administer the poison, but without mentioning A’s name. C agrees to procure the
poison, and procures and delivers it to B for the purpose of its being used in the
manner explained. A administers the poison; Z dies in consequence. Here, though A
and C have not conspired together, yet C has been engaged in the conspiracy in
pursuance of which Z has been murdered. C has therefore committed the offence
defined in this section and is liable to the punishment for murder.

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 Punishment for abetment: Section 109 - 114
Section 109 provides that whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the
punishment of such abetment, be punished with the punishment provided for the offence.
Section 110 comes into play when the person abetted does act with different intention from
that of abettor. It provides that whoever abets the commission of an offence shall, if the
person abetted does the act with a different intention or knowledge from that of the abettor,
be punished with the punishment provided for the offence which would have been committed
if the act had been done with the intention or knowledge of the abettor and with no other.
Section 111 comes into play when an entirely different act is committed than the one abetted.
It provides that 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 done was a probable consequence of the abetment, and was
committed under the influence of the instigation, or with the aid or in pursuance of the
conspiracy which constituted the abetment.
Example: A instigates a child to put poison into the food of Z, and gives him poison
for that purpose. The child, in consequence of the instigation, by mistake puts the
poison into the food of Y, which is by the side of that of Z. Here, if the child was
acting under the influence of A’s instigation, and the act done was under the
circumstances a probable consequence of the abetment. A is liable in the same manner
and to the same extent as if he had instigated the child to put the poison into the food
of Y.
Section 112 is applied when abettor is liable to cumulative punishment for act abetted and for
act done. It provides that if the act for which the abettor is liable under the last preceding
section is committed in addition to the act abetted, and constitutes a distinct offence, the
abettor is liable to punishment for each of the offences.
Illustration: A instigates B to resist by force a distress made by a public servant. B, in
consequence, resists that distress. In offering the resistance, B voluntarily causes
grievous hurt to the officer executing the distress. As B has committed both the
offence of resisting the distress, and the offence of voluntarily causing grievous hurt,
B is liable to punishment for both these offences; and, if A knew that B was likely
voluntarily to cause grievous hurt in resisting the distress A will also be liable to
punishment for each of the offences.
Section 113 provides the liability of abettor for an effect caused by the act abetted different
from that intended by the abettor. When an act is abetted with the intention on the part of the
abettor of causing a particular effect, and an act for which the abettor is liable in consequence
of the abetment, caused a different effect from that intended by the abettor, the abettor is
liable for the effect caused, in the same manner and to the same extent as if he had abetted the

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act with the intention of causing that effect, provided he knew that the act abetted was likely
to cause that effect.
Illustration A instigates B to cause grievous hurt to Z. B, in consequence of the
instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the
grievous hurt abetted was likely to cause death, A is liable to be punished with the
punishment provided for murder.
A charge under section 114 will lie when abettor is actually present during the commission of
the offence which he has abetted to take place.
 Quantum of Punishment when offence abetted is punishable with death or
imprisonment: (Section 115-116)
Abetment of offences which are punishable with either death or imprisonment for life are
covered under the purview of section 115 subject to such acts having abetted must not have
taken place. As a consequence of instigation if no offence is committed then the instigator us
convicted and charged with imprisonment for 7 years, however, in case hurt is caused as a
result of abetment, then the abettor is punished with 14 years of imprisonment.
Section 116 covers such cases wherein the abetment of offence is with respect to the offence
which is punishable with imprisonment and the offence is not committed. In such cases, the
abettor is guilty of imprisonment for one-fourth of the maximum term of imprisonment
provided for that offence or fine or both.
 Concealing designs or plans to commit offences: (Section 118-120)
Sections 118, 119 and 120 deal with abetment by way of concealing the design of
commission of crimes. The element of crime in such cases lies in the act of concealment,
despite having knowledge of the plans of the commission of the offence and thereby
facilitating and enabling the commission of such offence. Two ingredients are required o be
established to constitute conviction under these provisions:
 Existence of criminal design on the part of persons who intend to commit the crime
 Concealment if such design by others
There must be an active intent to conceal the design and possession of knowledge that such
non-disclosure will assist in perpetrating the offence. These provisions basically envisage two
things:
 Concealment by an act or illegal omission and this must be voluntary
 Making a false representation knowingly with regards to the design or plan to commit
an offence.

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2. Proof of conspiracy and its admissibility.
Section 120B contains the punishment for criminal conspiracy and section 120A defines
criminal conspiracy. Section 120A defines criminal conspiracy.
The essential elements of Section 120A can be understood as follows:
1. Presence of two or more persons
2. Agreement among the said persons
3. To either do or to cause to be done "an illegal act" or "an act by illegal means"
Generally, under criminal law, both mens rea (guilty mind or intention) and actus reus (the
guilty act) must be present in order to constitute an offence. This means that "intention to
commit an offence" is not by itself punishable and it's only when an act is carried out
(pursuant to the intention to commit a crime) that an offence is said to be committed. For
instance, mere intention of a person to carry out theft (without taking any steps to actually
commit the theft), is not punishable; he must carry out an act in furtherance of his intention to
commit theft. However, a unique feature of the offence under section 120A is that an
"agreement to commit an offence" can by itself amount to a criminal conspiracy. This means
that it is sufficient for the prosecution to prove that there was an agreement between two or
more persons to commit an illegal act or an act (not necessarily illegal) by illegal means.
Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself and
punishable separately. Criminal conspiracy is hatched to commit an illegal act which is an
offence punishable under law. It is not essential that the accused person must do an overt act,
and mere agreement between two or more persons to commit an illegal act is sufficient to
constitute the offence of criminal conspiracy. It is also not necessary that the object of the
conspiracy should have been achieved for it to be considered as an offence. Even if the
conspiracy fails on account of abandonment or detection before commission of offence, the
very act of entering into an agreement by the co-conspirators is itself an offence and
punishable under the law.
However, it has to be kept in mind that the standard of proof for the act of criminal
conspiracy is the same as that of any other criminal offence i.e. beyond reasonable doubt.
In the case of State (NCT of Delhi) v. Navjot Sandhu (2005) , it was held that:
“A few bits here and a few bits there on which the prosecution relies cannot be held to
be adequate for connecting the accused in the offence of criminal conspiracy”.
In the case of State of Maharashtra & Ors. v. Som Nath Thapa &Ors. (1996), it was
observed that:
“for a person to conspire with another, he must have knowledge of what the co-
conspirators were wanting to achieve and thereafter having the intent to further the
illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate
its accomplishment.”

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In many cases today, the concept of ‘deemed presumption’ is applied, which is otherwise not
available under the IPC. Undoubtedly, criminal conspiracies are hatched in secrecy and can
only be perceived by actions of the participants, however that should not in any way dilute
the standard of proof of “beyond reasonable doubt” that must be met by the prosecution.
It has never been easy to get direct evidence for proving an offence under Section 120-A,
which defines criminal conspiracy. Considering this fact, Section 10 of the Indian Evidence
Act comes into play. It provides that where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their common intention, after
the time when such intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person was a party to
it.
This section can be divided into two parts: firstly where there is reasonable ground to believe
that two or more persons have conspired to commit an offence or an actionable wrong. Only
when this condition precedent is satisfied, the second part of the section comes into operation
i.e. anything said, done or written by any one of such persons in reference to the common
intention after the time when such intention was first entertained by any one of them is a
relevant fact against each of the persons believed to be so conspiring as well for the purpose
of proving the existence of the conspiracy. It is therefore necessary that a prima facie case of
conspiracy has to be established for application of Section 10. The second part of section
permits the use of evidence which otherwise could not be used against the accused person.
The basic concepts of criminal conspiracy as enumerated above are losing their essence,
resulting in misuse of this provision to the detriment of proper manifestation of law on this
subject. It has been observed that trial courts in India are not following these principles. What
is being done is that first they look for evidence which may be permitted under Section 10 of
the Evidence Act and then apply it to the facts of a case to presume existence of criminal
conspiracy.
It has to be ensured that all the stakeholders of the justice delivery mechanism do their duty
diligently, and in a manner which is in consonance with the concept of criminal law as
settled, followed and practiced.
The police and other investigating agencies, wanting to make someone an accused, in spite of
a case having no evidence, use this age-old formula of invocation of Section 120-B IPC and
bring all named in the charge sheet under its umbrella. The well-established rule of criminal
justice “fouler the crime higher the proof” should always be remembered and followed.
3. Difference between abetment and conspiracy.

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Sr. No. Abetment Conspiracy
1
(Definition)
Section 120A of the Indian
Penal Code defines Criminal
Conspiracy as, “When two or
more persons agree to do, or
cause to be done,
(1) an illegal act, or
(2) an act which is not illegal
by illegal means, such an
agreement is designated a
criminal conspiracy
According Section 107 of the
Indian Penal Code, “A
person abets the doing of a
thing, who –
First - Instigates any person
to do that thing; or
Secondly - Engages with one
or more other person or
persons in any conspiracy for
the doing of that thing, if an
act or illegal omission takes
place in pursuance of that
conspiracy, and in order to
the doing of that thing; or
Thirdly - Intentionally aids,
by any act or illegal
omission, the doing of that
thing.
2
(Example)
A and B made a plan to
murder C; letters passed
between them as to the
movement of C. Here both A
and B are liable for
indictment to a charge of
criminal conspiracy under
this section since there was
an agreement between A and
B to do an illegal act, i.e., to
commit the murder of C.
A, a public officer, is
authorized by a warrant from
a Court of Justice to
apprehend Z, B, knowing
that fact and also that C is not
Z, willfully represents to A
that C is Z, and thereby
intentionally causes A to
apprehend C. Here B abets
by instigation the
apprehension of C.
3 It is an Act or a Planning to
do an illegal act by all the
persons or any of them or by
some of them.
It is an act to instigate or to
provide help to do an illegal
act by the person who is so
instigated.
4 Criminal conspiracy is a
substantive offence by itself,
and is punishable as such.
Abetment is not per se a
substantive offence.

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5 Each accused is a principal
offender.
Abettor is not a principle
offender.
6
(Punishment)
Section 120 of the Indian
Penal Code prescribes
Punishment:
Whoever is a party to a
criminal conspiracy to
commit an offence
punishable with death,
imprisonment for life or
rigorous imprisonment for a
term of two years or
upwards, shall, where no
express provision is made in
this Code for the punishment
of such a conspiracy, be
punished in the same manner
as if he had abetted such
offence.
Whoever abets any offence
shall, if the act abetted is
committed in consequence of
the abetment, and no express
provision is made by this
Code for the punishment of
such abetment, be punished
with the punishment
provided for the offence.
(Section 109)
7 Conspiracy is one of the
methods of abetment.
Abetment may be committed
in various methods/ways viz.,
instigation, conspiracy,
intentional aid etc.
8 Conspiracy can be committed
by two or more.
Abetment can be committed
by one or more.
9 In conspiracy, sanction of
competent authorities is
necessary to proceed against
the conspirators who merely
agreed to commit a crime.
In abetment, sanction of
competent authorities is not
necessary to proceed against
the abettors, who merely
abetted to commit a crime.
4. Sections 34, 109 and 120-A.
The distinction between sections 34, 109 and 120-A of IPC has been elaborated by the SC in
the case of Noor Mohammad Yusuf Momin vs. state of Maharashtra (1971) as follows:
“So far as S. 34, I.P.C. is concerned, it embodies the principle of joint liability in the doing of
a criminal act, the essence of that liability 'being the existence of a common intention.

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Participation in the commission of the offence in furtherance of the common intention invites
its application.
Section 109, I.P.C. on the other hand may be attracted even if the abettor is not present when
the offence abetted is committed provided that he has instigated the commission of the
offence or has engaged with one or more other persons in a conspiracy to commit an offence
and pursuant to that conspiracy some act or illegal omission takes place or has intentionally
aided the commission of an offence by an act or illegal omission.
Turning to the charge under s. 120-B, I.P.C. criminal conspiracy was made a substantive
offence in 1913 by the introduction of Chapter V-A in the Indian Penal Code. 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 in
that 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 by s. 107, I.P.C. A conspiracy from its very nature is generally hatched in
secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested, quarters or from utter strangers. But, like other
offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most
cases proof of conspiracy is largely inferential though the inference, must be founded on solid
facts. Surrounding circumstances and antecedent and subsequent conduct, among other
factors, constitute relevant material. In fact because of the difficulties in having direct
evidence of criminal conspiracy, once reasonable ground is shown for believing that two or
more persons have conspired to commit an offence then anything done by anyone of them in
reference to their common intention after the same is entertained becomes, according to the
law of evidence, relevant for proving both conspiracy and the offences committed pursuant
thereto.”

Abetment and Criminal Conspiracy under English and Indian law

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Abetment and Criminal Conspiracy under English and Indian law