Conspiracy and Abetment -- A Comparison
Aspects of Mens Rea
Joshua Davis Dalus
Roll No: 856
When several persons 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, while some others may only be present for offering help at the time of commission of it, and still others may have illegally omitted to act. The degree of participation in an offence may vary from person to person. It is important, 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. Sections 107- 120B of the Indian Penal Code enumerate the laws against crimes of abetment and conspiracy.
Abetment means the act of approving, encouraging or supporting a person. This term is used for aiding a crime in Indian Penal Code. Abetment is defined in Section 107 of the Indian Penal Code. A person is said to abet another to do a thing if he instigates him, or engages other persons in any conspiracy to do that thing, or if he intentionally aids to do that thing by any act or illegal omission. Under the English law, distinction is made between principal who may be of the first or second degree and the accessories before and after the fact. Principal in the first degree is one who commits and actually takes part in the commission of a crime. Principal in the second degree is one who aids or abets the actual commission of crime. Whoever directly or indirectly incites, counsels procures, encourages, or commands any person to commit felonies accessory before the fact if the felony committed in consequence there of such a person if present at the time of commission of a crime is called the principal in the second degree. Whoever knowing that a felony has been committed by another person, receives comforts or assists him in order to enable him escape from punishment is known as accessory after the fact. This distinction in English law has its relevance only in cases of felony but not in treason or misdemeanour. An abettor is a person who abets an offence. It is also to be noted that it is not necessary that for committing the offence of abetment, the real offence abetted should be committed. Section 107 of the Indian Penal Code says:
“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 of law of committing an offence with the same intention or knowledge as that of the abettor.”1 Abetment is an offence only if the act abetted would itself be an offence if committed, punishable under the IPC or under any other law for the time being in force. However, 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 abettor, or any guilty intention or knowledge.2 Furthermore, if a person abets another to abet an offence, he/she is liable to the same punishment prescribed under the offence. The Indian Penal Code makes a broad distinction between principals and abettor. Under the IPC, abetment is constituted in the following ways: i) By instigating a person to commit an offence; or
ii) By engaging in a conspiracy to commit an offence;
iii) By intentionally aiding a person to commit an offence.
Instigation means the act of inciting another to do a wrongful act. One may abet the commission of an offence by counselling, suggesting, encouraging, procuring or commanding another to do an act. To instigate means to actively suggest or stimulate by any means or language, direct or indirect, whether...
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