The Indian Penal Code Law General Essay

Published Date: 02 Nov 2017

p.227

As has been already stated, sec. 34 of the Indian penal Code, encapsulates the principle of constructive or joint liability in commission of a criminal act; by virtue of the fact that all offenders harboured a common intention. To this, it must be noted that the cases which revolve around this provision of Indian Penal Code, may also stretch their reach to penalise the offenders for abetment as well.

Whenever the issue of Common intention crops up, it becomes imperative to reveal the methods employed by the offenders - in respect of ‘meeting of minds’; thereby, giving rise to a common intention. Section 109 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 [1] . This section requires participation in crime, whereas mere instigation is sufficient for abetment under sec 107. Generally under sec 34, a criminal act must be done in furtherance of a common intention, but, to constitute the offence of abetment it is not necessary that the act abetted should be committed or that the effect required to constitute the offence should be caused.

Again, 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, but these are the pre-requisites of liability under this section. Further, a preconcert and the abettor’s presence at the scene of the offence are not necessary for abetment but, they are necessary under this section [2] .

Section 34, 109 and 120B considered together – p.232

Sec. 34 embodies the principle of joint liability in doing of any criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Sec. 109 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 persuant to that conspiracy some illegal act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Criminal conspiracy 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 a 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 sec. 107 Indian Penal Code. 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 tough the inference may 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 providing both conspiracy and the offences committed pursuant thereto [3] .

The accused who only keeps the common intention in his mind, but does not do any act, overt or covert, at the scene, cannot be convicted with the aid of sec. 34, IPC. There may be other provisions in the IPC like sec. 120B or sec. 109 which could be invoked then to cash such non-participating accused. Thus, participation in crime in furtherance of common intention is sine qua-non sec. 34, IPC [4] .

p.240

It is essential that several persons join in the actual ‘doing of the act’ and not merely in planning and preparation [5] . The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered under sec. 109, and the stage of commission when the plans are put into effect and carried out. Sec. 34 of the code is concerned with the latter [6] . Where the accused persons were found to be armed with firearms as well as other deadly weapons, they went in as a body of persons and participated in the occurrence of the act, in such a situation even sec. 34 IPC is attracted particularly having regard to the fact that four persons were killed and several others received injuries at the hands of the members of the unlawful assembly. The participation of each of the accused member was established. Therefore, all of them shared the common object and sec. 149 was also attracted [7] . The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established s 34 is at once attracted [8] . But the participation need not in all cases be by physical presence [9] .

p.243

Mere distance from the scene of crime cannot exclude culpability under sec. 34 which lays down the rule of joint responsibility for a criminal act performed by a plurality of persons. Criminal sharing, overt or covert, by active presence or by direction from a distance, of the act s the essence of sec 34. Even assuming that presence at the scene is pre-requisite to attract sec 34 and that such propinquity is absent, sec 107, which is different in one sense, still comes into play to rope in the accused [10] .

p. 851 - Persons Participating in stage 3 i.e. – execution are ‘Principal’ – sec. 34-38

One or more persons may be engaged in any one or more of the four stages. Those who take part in the third stage, i.e. the actual execution of the crime, are, under the English Law, called ‘principals’ of the first or second degree, according to whether they do or do not physically commit the unlawful act, but all being punishable alike.

Section 107 and 34 distinguished – p.858

Sec 34 requires participation in crime, whereas mere instigation is sufficient for abetment under this section. Generally, under sec 34, a criminal act must be done in furtherance of a common intention, but to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect required to constitute the offence should be caused. A preconcert and the abettor’s presence at the scene of the offence are not necessary for abetment, but they are necessary under sec 34 [11] .

p. 980

It has been held that secs 120A and 120b have been introduced to fill a gap in sec 107 IPC defining abetment. Under Clause secondly of s 107 a person abets the doing of a thing who engages with others in a conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy. Abetment of an offence is punishable under s 109 or 114 as the case may be, if the offence is committed, or under s 115 and 116 as the case may be, if the offence be not committed; but it is clear that a conspiracy will not amount to abetment unless an act or omission takes place in the pursuance of the conspiracy. Thus, whereas sec 120A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of sec 107, s 120B provides a punishment for criminal conspiracy where no express provision is made in this code for the punishment of such a conspiracy. Therefore, if the offence alleged to be the object of the conspiracy has been committed, the conspiracy amounts to an abetment under sec 107 and it has been held that it is unnecessary to invoke the provisions of sec 120A and 120B because the code has, in sec 109 and 114, made specific provisions for the punishment of such conspiracy [12] .

p. 983 – Section not retrospective in operation

Sec. 120A and 120B did not find a place in the IPC before the 27 March 1913, when the Criminal law (Amendment) Act 1913, which inserted them in the IPC, became law. The sections have no retrospective effect and a conviction under s 120B cannot stand if the offence was committed before that section came into force, though the accused may be convicted of abetment under s 109 [13] .

p.987 – Distinction between Criminal Conspiracy and Abetment by Conspiracy

In order to constitute the offence of abetment by conspiracy, first there must be a combining of two or more persons in the conspiracy; secondly, an act or illegal omission must t

p. 876 – Joint Liability – Each Conspirator is the agent of the other

Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the parties in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of all. Each party is an agent of the others in carrying out the objects of the conspiracy, and doing anything in furtherance of the common design [14] .

Where four persons combine to attack with lathis their common enemy, each is abetting the conduct of the other within the meaning of this section [15] . It is not essential that there should have been an agreement in express terms as to what the principal in the first degree should do; the aider and abettor will be responsible for anything done in the joint enterprise which the evidence shows was within the contemplation. Thus, in cases where several persons have come together for the purpose of committing some breach of peace, their general resolution must be considered, and if it appears upon evidence either to have been actually and explicitly entered into by the confederates, or may be reasonably collected from their number, equipment or behaviour at or before the scene of action, that some kind of violence in certain eventualities be resorted to, then every individual in the group will be involved in the guilt of any who do any such act which has thus been established to have been within the contemplation of the group [16] .

p. 870- Unlawful combination is Conspiracy

A ‘conspircay’ is a species of association or union of two or more persons for some common purpose. When such association is legal, it is termed in law ‘a combination’, as where persons combine in furtherance of their common professional, commercial or industrial interests, and when it is against law and public opinion or by unlawful means, it is styled a ‘conspiracy’, and is thus always used in English Law in mala parte as importing a legal wrong. Before the insertion of s. 120A and 120B in the code, criminal conspiracy was not a substantive offence an was treated only as a species of abetment [17] . In King Emperor v. Tirumal Reddi, Ayyangar J. Observed:

"Under the Indian Criminal Law, conspiracy is a mere species of abetment when an act or an illegal omission takes place in pursuance of that conspiracy and amounts to a distinct offence for each distinct offence abetted by conspiracy. Under the English Law, the agreement of combination to do an unlawful thing or to do a lawful thing by unlawful means amounts in itself to a criminal offence. The Indian Penal Code follows the English law of Conspiracy only in a few exceptional cases which are made punishable u/s 311 (Thug), sec 400 (Belonging to a gang of dacoits), Sec 401 (Belonging to a aging of thieves), sec 402 (being a member of an assembly of dacoits), sec 121A (Conspiring to wage war). In these cases where any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the cconspircay. In all other cases, conspiracy is only one species of ‘abetment of an offence’ as that expression is defined and explained in sec 108 and stands on the same footing as abetment ‘by intentional aiding’. In regards to both these species of abetment an act or illegal omission; in pursuance of the conspiracy or for the purpose of intentional aiding is essential.

Abetment by Conspiracy –

In order to constitute abetment by conspiracy, three things are essential:

The person abetting must engage with one or more other person or persons in a conspiracy

The conspiracy must be for doing the thing abetted; and

An act or illegal omission must take place in pursuance of the conspiracy and in order to do the doing of that thing.

Under the second clause of this section it will be observed that, when thee abetment is by conspiracy, the elements which constitute the offence are, firs, the combining together of two or more persons in the conspiracy, and secondly, an act or illegal omission takes place in pursuance of that conspiracy, and in order to do the doing of that thing [18] . All these elements must combine to constitute abetment by conspiracy [19] .

p.871 – Abettor or Conspirator cannot be punished when Principal Offender acquitted

The petitioner was charged with the offence of abetment by conspiracy of the commission of the offence of theft by one Major Trilok Chand. The High court of Allahabad had clearly held that there was no evidence that Major Trilok Chand has committed the theft, therefore, unless the substantive offence against the Principal Offender is established, the question of Abettor being held guilty under these circumstances doesn’t arise. The petitioner was alleged to have entered into a conspiracy along with 8 others and abetted the commission of the offence. All the other alleged abettors and the Principal Offender Major Trilok Chand were acquitted. The petitioner alone remained in the picture as one having abetted the offence by entering into conspiracy. It is axiomatic that there cannot be a conspiracy of one. It was held that the charge against the petitioner was not sustainable [20] .

p. 874 - Not necessary that all must join for the first stage-

It is also not necessary that all should have joined in the scheme from the first: those who come in at a later stage are equally guilty, provided the agreement is proved. But if the offence, which is the object of the conspiracy, or one which naturally flows from it, is actually committed, it must have been committed in consequence of the conspiracy, and it must, therefore, be proved that the accused was engaged in the conspiracy down to the time when the offence was committed, or when the act was put in course of actual execution [21] .

‘Abetment by Conspiracy’ distinguished from ‘Conspiracy’ – p.872

A conspiracy will not amount to an abetment unless an act of illegal omission takes place in pursuance of the conspiracy. Hence, if the offence, alleged to be the object of the conspiracy, has been committed, the conspiracy amounts to an abetment u/s 107 and, in such a case, it is unnecessary to invoke the provisions of sec 120A and 120B [22] . There may be an element of abetment in a conspiracy, but conspiracy is something more than an abetment [23] . In order to constitute the offence of abetment by conspiracy, first, there must be a combining of two or more persons in the conspiracy; secondly, an act of illegal omission must take place in pursuance of that conspiracy and in order to do that thing. It is not necessary 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. But the gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act, which is not illegal by illegal means. When the agreement is to do commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where however, the agreement is to do an act which is not illegal, by illegal means; some act besides the agreement is necessary. Therefore, the distinction between abetment by conspiracy and criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this that for abetment by conspiracy, mere agreement is not enough while in the offence of criminal conspiracy, the very agreement or plot is, in itself, an act and is the gist of the offence [24] . It is substantive offence in itself [25] and has nothing to do with abetment [26] .

Two or more persons must conspire –p. 872

To commit abetment by conspiracy, two or more persons must conspire and one of them must be the person abetting. A person cannot conspire by himself or abet his own act [27] . To constitute c0onspircay there must be at least two persons engaged therein, and evidence must always be given to prove that there was another person or other persons engaged besides the accused, though his or their names may not be known [28] . So, if one of the two persons charged is acquitted, the conviction of the other for the conspiracy cannot stand [29] .

Persons abetting must engage in Conspiracy –

Abetment by conspiracy ‘consists’ in the combination and agreement of the persons to do some illegal act or effect some purpose which is not illegal by illegal means [30] .

p. 875 – Withdrawl from conspiracy

If a conspirator withdraws from the conspiracy before the offence which is the object thereof is effected by the other parties thereto, he is not liable u/s 100 and 109 or s. 111-113 and to the more severe punishment there under, but he still remains guilty of abetment by conspiracy u/s 115 or 116 [31] .

S K Sarvaria, R A Nelson’s Indian Penal Code, 10th ed., Vol. I, Lexis Nexis Butterworths Wadhwa, Nagpur, 2008.