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Abetment and Criminal Conspiracy

Introduction:-
>> Many people think that planning and arranging the required things to commit a crime but not doing it
later due to any reason is not a crime. But, this area of offences is called “inchoate offences”. These
types of offences are incomplete. Inchoate offences contain the anticipation and preparation required to
commit the crime even when the crime is not committed later. Some examples of inchoate (incomplete)
offences include abetment and criminal conspiracy

>> Chapter V of the Indian Penal Code, 1860 deals with laws related to the people who instigate and
help others in committing crimes. The offence of abetment is the instigation by a person to commit a
crime or an illegal act. It is defined under Section 107 of the Indian Penal Code, 1860. Criminal
conspiracy is the agreement between two or more persons to commit an act by illegal means. It was
added in the year 1870 with the Criminal Amendment Act, 1913, introducing Section 120-A to the Code.

Abetment:-
>> Abetment is simply defined as the instigation or provocation by one person to another to commit a
crime. Engaging in a conspiracy to commit a crime and any act done in furtherance is also said as
abetment. The literal meaning of “abet” is to aid and encourage someone to do an act. The Apex Court
in its judgement of Kartar Singh v. State of Punjab (1961) defined the term ‘abet’ as aid, and to help
others in committing an illegal act. Whereas conspiracy is derived from two latin words ‘con’ meaning
together, ‘spirare’ meaning to breathe.

>> Abetment is discussed from Section 107 to 120 of the Indian Penal Code, 1860. The term abetment
is defined in Section 107, which emphasizes that abetment is the willingness of someone to instigate,
assist, or encourage the execution of his criminal intent.

>> Take an example of three persons A, B, and C. A and B plan on killing C wherein A draws the plan
and sets the traps to kill C. B knowing the whole scenario helps A to create gun traps. This is also
considered an abetment wherein he helped the offender (A) in the commission of crime. The person
instigating, encouraging, or promoting another to do so is called an ‘abettor’. The person who commits
the offence is called the ‘principal offender’. In the above example, A is the principal offender, and B is
the abettor. There is a significant difference between a person abetting and the actual perpetrator of the
offence under criminal law. However, in a criminal conspiracy, A and B make an agreement to kill C and
may or may not contribute equally but help each other as they have the same intention.

Section 107, Abetment of a thing

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.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact
which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing
to be done, is said to instigate the doing of that thing.
Illustration
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that
fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in
order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to
aid the doing of that act.

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Section 108, Abettor
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.—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 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.
Illustrations
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A
is guilty of instigating B to commit murder.

Explanation 3.—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.
Illustrations
(a) 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.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act
which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and
thereby causes Z's death. Here, though B was not capable by law of committing an offence, A is liable
to be punished in the same manner as if B had been capable by law of committing an offence, and had
committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house. B, in consequence of the unsoundness of his mind,
being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law,
sets fire to the house in consequence of A's instigation. B has committed no offence, but A is guilty of
abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that
offence.
(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's
possession. A induces B to believe that the property belongs to A. B takes the property out of Z's
possession, in good faith, believing it to be A's property. B, acting under this misconception, does not
take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the
same punishment as if B had committed theft.

Explanation 4.—The abetment of an offence being an offence, the abetment of such an abetment is
also an offence.
Illustration
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.—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.
Illustration
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
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punishment for murder.

Elements of Abetment:-
Abetment is constituted by:
1. Instigating a person to commit an act punishable, or
2. Engaging in any conspiracy to commit so,
3. Intentionally aiding to commit an offence.

>> Abetment primarily depends on the intention of the abettor. But to be liable for the offence, the
prosecution, under Section 107 of the Indian Penal Code must prove the presence of mens rea (a guilty
mind) with an actus reus (wrongful act). It must be noted that the words uttered by a person in a state of
anger cannot be considered as any type of instigation or encouragement as it is impossible for a
prudent man to control his words in critical moments of anger, whereas in a conspiracy, both the
conspirators will have the knowledge of the commission of a crime. They contribute equally and share
the actions of the conspiracy which makes them liable for the same.

Mens Rea:-
Mens rea (a guilty mind) is an important element in committing any crime. In the case of abetment, both
the persons, i.e., abettor and principal offender must have the mental element, i.e., mens rea. It is
impossible to commit abetment without a guilty mind. An abettor might help with the commission of a
crime in two ways, directly or indirectly. He can directly help by buying and handing the pistol to commit
the offence or help indirectly by the commission of an act which would be an offence amounting to a
crime, whereas in the case of a conspiracy, the mental element is critically examined and the
agreement between the parties to commit a crime is carefully evaluated by the court before convicting a
person. The importance of mens rea is detailed by the honourable Court in the case of Thakore Nitaben
v. State of Gujarat (2017).

Knowledge of Crime:-
Another important element in constituting a crime is the complete knowledge of that crime. It is crucial
to note that the person committing an act that amounts to an offence must hold complete knowledge of
that offence being committed by some other person who will be the principal offender. Any court
hearing the case of abetment critically evaluates the presence of his knowledge of crime and the
mental element (mens rea). If the person has both the elements and has engaged in the offence
deliberately even after knowing the consequences of the act, he will be made liable for the offence of
abetment, whereas in a criminal conspiracy, knowledge is an element examined after the mental
element, the reason being the commission of a crime also depends on the knowledge. In most cases
the conspirators will have complete knowledge of the crime, so the knowledge of the crime is given
second importance.

Types of Abetment:-
The Indian Criminal Law recognizes three types of abetment. They are:
1. Abetment by Instigation
2. Abetment by Conspiracy
3. Abetment by Intentional Aid

1. Abetment by Instigation
Any person instigating/encouraging another to do a crime is said to commit the offence by instigation.
Instigation might be done by doing any act that provokes someone to do something that is illegal. Take
an example of abetment of a child to commit suicide wherein the abettor has done an act like capturing
his private browsing history such that the child has no way of getting out of that situation. This act of the
abettor is known as abetment by instigation where he instigated the child to commit suicide. Even
though he didn’t mean for that to happen, he is liable for abetment.

Jamuna Singh v. State of Bihar (1967)

In the instant case, the Apex Court has mentioned that the offence may or may not be committed but it
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can be tried when the instigation by the abettor is proved. The Court clearly mentioned that the offence
of abetment by instigation can be tried when the instigation happens but it does not require the offence
to be committed.

2. Abetment by Conspiracy
The second type of abetment is abetment by conspiracy wherein the person does an act or an illegal
omission by engaging with two or more persons. Abetment by conspiracy is a case where abetment
and conspiracy both are present in a single case. The prosecution tries the accused for both abetment
and conspiracy. It is at the sole discretion of the court whether to convict the accused for conspiracy or
only for the offence of abetment. Dowry death cases are perfect examples of abetment by conspiracy.

Noor Mohammad Momin v. State of Maharashtra (1971)

In the instant case, Noor Mohammad is accused of abetment under Section 109 of the code. He, along
with 3 others committed a murder for which the Apex Court mentioned that the ambit of criminal
conspiracy has a wider range of applicability than the offence of abetment in this case.

3. Abetment by Intentional Aid

Abetting a person to commit a crime by aiding/helping him with full knowledge directly or indirectly is
abetment by aiding. Take an example of a security guard who wilfully leaves keys at the doorstep so
that the thugs can rob the house. He helped them to get into the house, hence it is abetment by aid.

What Is Criminal Conspiracy:-

>> Conspire means to jointly make secret plans for committing an unlawful or harmful act. When two or
more persons agree, either expressly or impliedly, to do an illegal act or any legal act with illegal
means, this comes under the act of criminal conspiracy. In other words, when two or more persons
agree to commit an offence that is prohibited by law, they will be liable for criminal conspiracy. It is an
offence where not only one person rather two or more than two persons are required because a single
person can not conspire.

>> Criminal conspiracy is contained under Chapter VA, section 120A and section 120B of the Indian
Penal Code, 1860. Section 120A talks about the definition of criminal conspiracy, and section 120B
talks about the punishment for criminal conspiracy. In this IPC law note, let us learn more in easy to
understand words.

Section 120A, Definition of criminal conspiracy

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:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement
in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is
merely incidental to that object.

Section 120B, Punishment of criminal conspiracy

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
1[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.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.

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Definition of Criminal Conspiracy:-
>> Definition for criminal conspiracy is given under section 120A of the Indian Penal Code. As per
section 120A of IPC: When two or more people consent to do or have done any illegal act or an act that
is legal by illegal means, they are said to have committed an offence of a criminal conspiracy.

>> A criminal conspiracy not only consists of the agreement or meeting of intention or minds between
two or more than two persons but an actual commission of an unlawful act by unlawful means. It means
that only agreement or intention is not enough to make a person liable for criminal conspiracy unless
they have done something unlawful or illegal by unlawful or illegal means.

>> To establish criminal conspiracy charges under section 120A, there must be an agreement, either
expressed or implied. And for that, no proof of direct meeting or communication is needed. Passive
cognizance of conspiracy is not enough. There must be active cooperation. In other words, joint evil
intent is mandatory.

>> The primary goal of criminal conspiracy is to commit an offence and achieve the desired result
through illegal means. Criminal conspiracy can take many forms, such as plotting a robbery, carrying
out a murder, or spreading false information to smear someone’s reputation.

Bimbdhar Pradhan vs the State of Orissa (1956)

The Supreme Court held that one person could also be convicted for the offence of conspiracy. It is
sufficient that the court proves that two or more than two persons were actually involved in the criminal
conspiracy. Where the prosecution proves that two or more persons were connected in a conspiracy
and they could not be caught, one alone can still be convicted. Earlier, one person alone could be held
liable for the offence of criminal conspiracy. However, this rule has been changed in subsequent cases.

State of Tamil Nadu vs Nalini (1999):-

Commonly known as the Rajiv Gandhi assassination case, it was held that the corporation of accused
with the main accused or even his knowledge regarding conspiracy would not make the accused liable
for conspiracy as the agreement is the sine qua non (essential) for the offence of conspiracy.

Essential Ingredients of Criminal Conspiracy:-

Section 120A, IPC, The essentials of this section can be outlined as:
1. There should be an agreement between two or more persons.
2. Such an agreement should be done:
(a) to do an illegal act, or
(b) or to do a legal act by illegal means.

1. Agreement Between Two or More Persons

There must be an agreement between two or more persons. If the conspirators commit several
offences in accordance with the criminal conspiracy, all of them shall be liable for the offences, even if
some of them did not actively participate in the commission of the crimes.

2. Illegal Act
To make a person liable for the criminal conspiracy, the agreement must be to do any act which is
either forbidden by law or is opposed to the law.

3. Legal Act by Illegal Means

When any act is done even though it is lawful but done by illegal means, it constitutes criminal
conspiracy.

>> The Supreme Court has outlined the essential ingredients of criminal conspiracy in R
Venkatkrishnan vs CBI as:
1. An agreement between two or more persons.
2. The agreement must be related to doing or causing to be done either:
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(a) an illegal act
(b) an act that is not illegal in itself but is done by illegal means.
3. The agreement may be expressed or implied or partly expressed and partly implied.
4. As soon as the agreement is made, the conspiracy arises, and the offence is committed.
5. And, the same offence is continued to be committed so long as the combination persists.

Position of Husband and Wife to Criminal Conspiracy

In English law, if only the husband and his wife conspire to do an illegal act or legal act by illegal
means, they cannot be held liable for criminal conspiracy because, legally, they are deemed to be one
person or one entity. However, in India, this is not the situation.

Elements of Criminal Conspiracy

In the IPC, the following are the essential elements of criminal conspiracy:

1. Agreement
The first and most important component of criminal conspiracy is an agreement between two or more
people to commit an illegal act or an act that is not illegal but is done illegally. The agreement must be
made between two or more people and must be made before the crime is committed.

2. Intention
The intention to commit the crime is the second component of criminal conspiracy. The parties to the
agreement must share a common intention to commit the illegal act. The intent must be to commit the
crime, not simply to discuss it.

3. Act:
An act in furtherance of the agreement is the third element of criminal conspiracy. This act can be
anything that aids in the commission of the crime, such as the purchase of weapons, the gathering of
information about the victim, or the planning of the crime’s details.

4. Criminality
The act must be illegal, according to the fourth element of criminal conspiracy. The agreement must be
to commit a legally punishable offence. If the act is legal but the means by which it is carried out are
illegal, it can still be considered criminal conspiracy.

5. Parties
The final element of criminal conspiracy is that two or more people must be involved in the agreement.
If the act is carried out by a single person, it does not constitute criminal conspiracy.

Knowledge of the offence:-

Another important element in proving a conspiracy is the presence of complete knowledge of the crime.
The Supreme Court has specified the importance of knowledge of the offence and has given a
statement that having the knowledge is enough to try a person for conspiracy under Section 120A of
the IPC.

State of Maharashtra v. Somnath Thappa (1996)

The Apex Court in the instant case has specified the meaning and the broad essential of criminal
conspiracy as knowledge of the offence. To establish a charge for criminal conspiracy, the accused
must have the knowledge of the crime happening as a consequence of his act. The Court punished the
conspirators who had a guilty intention under Section 120A of the Indian Penal Code.

Section 10 of Indian Evidence Act, 1872:-

>> Section 10 of the Indian Evidence Act, 1872 states that once a conspiracy to commit an illegal act
has been proven, the acts of one conspirator become the acts of other conspirators. As part of a
conspiracy case, evidence must be admissible under Section 10. Any statement, act, or writing of any
conspirator, even if it relates to their common intention, can be used against all of them to prove the
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existence of the conspiracy or prove that they were involved. Prior to the admission of such a fact, the
following prerequisites must be met:
1. Two or more persons must have reasonable grounds to believe they have conspired to commit a
crime or a wrong that can be prosecuted.
2. Any statement, act, or writing made by any one of them about their common intent can be used
against the others only if it was made after the time the intention was first formed.

>> Due to the nature of the crime, it has been held in Badri Rai v. State (1958) that section 10 of the
evidence act has been intentionally drafted so as to allow such acts and statements from the
co-conspirator to be admissible against the entire group of defendants. It takes secrecy and darkness
to conceive and execute a conspiracy. Consequently, it is not realistic for the prosecution to link each
isolated act or statement of one accused with those of the other accused, unless there is some
common link tying them together. In Emperor v. Shafi Ahmed (1925), it was ruled that one conspirator is
responsible for what the other conspirator does in furtherance of the common intention harboured by
them both, and each conspirator is responsible for what acts his fellow conspirator commits.

Punishment for Conspiracy

>> Section 120B of the Indian Penal Code specifies the punishment for criminal conspiracy (IPC).
According to this section, anyone found guilty of criminal conspiracy may be sentenced to imprisonment
for a term of up to six months, a fine, or both.

>> If the purpose of the conspiracy is to commit a criminal offence, the punishment for criminal
conspiracy is specified in the section dealing with the specific offence. For example, if the goal of the
criminal conspiracy is to commit murder, the punishment for criminal conspiracy is the same as for
murder, which is life imprisonment or the death penalty. In addition to the above, the court may also
impose a fine on the accused. The amount of fine can vary depending on the nature and gravity of the
crime.

Landmark Cases
>> To understand criminal conspiracy better, it is essential to look at some examples. In the case of
State of Maharashtra v Somnath Thapa the Supreme Court ruled that knowledge of the commission of
either an illegal act or a legal act through illegal means is required to establish a conspiracy charge.

>> The case of Kehar Singh v State is another example of criminal conspiracy (Delhi Administration).
The accused in this case were charged with criminal conspiracy to assassinate Prime Minister Indira
Gandhi. The court determined that the accused conspired with others to commit the crime and actively
participated in the assassination. The court determined that the accused had committed the crime of
criminal conspiracy, and the penalty was death.

Difference between Abetment and Criminal Conspiracy:-

The following points highlights the difference between abetment and criminal conspiracy:

1. The number of persons committing an offence varies in an abetment and a conspiracy. In an

abetment, one person influences, provokes another to commit an illegal act whereas in a conspiracy
two or more persons enter into an agreement to commit that offence.

2. The offence of conspiracy is substantive whereas abetment is not on its own a substantive offence.

3. Abetment is defined under Section 107 of the IPC. Whereas criminal conspiracy is defined under
Section 120-A of the IPC.

4. To be tried for abetment, the person must have committed the act of aiding or instigating, or helping
the principal offender. But, in the case of a conspiracy, it is irrespective of the commission of the
offence. The prosecution can try a person for having the agreement and the knowledge of the act.

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5. The parties to a conspiracy are called conspirators. But in the case of abetment, there are two
persons called the abettor and the principal offender.

6. Abettor is not a principal offender whereas a conspirator (accused) is a principal offender.

7. Based on the stretch of the offence committed, the magistrate whether to award bail to the accused.

8. Abetment can be done in three ways whereas conspiracy is a method of abetment.

9. It can be said that abetment is the genus, whereas conspiracy is a species.

10.The concept of criminal conspiracy has a wider jurisdiction in most cases than of abetment.

Difference Between Abetment and Criminal Conspiracy:-

1. Parties to abetment are abettor and principal offender

1. Parties to a conspiracy are called conspirators

2. It is defined under Section 107 of the Indian Penal Code, 1860

2. It is defined under Section 120- A of the Indian Penal Code

3. Abettor is not the principal offender

3. A conspirator is the principal offender

4. Abetment is the Genus

4. Conspiracy is the species

5. It is a substantive offence
It is not a substantive offence

6. Abettor may not get the same punishment as the principal offender
6. All the conspirators in a case, get the same punishment

Conclusion:-
>> Choate offences are those that are complete and the 4 stages of the crime, the illegal act is done by
the parties. If the offence is not committed, but all the stages of planning and preparation are done, it is
considered to be an inchoate or incomplete offence. Abetment and criminal conspiracy are two offences
that are mostly seen as inchoate offences.

>> The penal law of India has all the required provisions that a country must have, but the execution of
the same is not being conducted in the right way and lacks professionalism. The laws relating to
criminal conspiracy and abetment need to be revamped so that social welfare can be easily achieved.
The courts should make sure that the quality of justice provided to the public is right as the crime rates
in the country have been increasing massively.

>> In conclusion, criminal conspiracy is a severe criminal offence that involves a group of people
planning and carrying out illegal activities. Section 120A of the IPC defines criminal conspiracy, and the
punishment for this crime is severe. To establish criminal conspiracy, evidence must show that two or
more people agreed to commit an offence.

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