Legal Provisions of Section 108 of Indian Penal Code, 1860.
Abettor:
The first thing which comes to mind about this section is why at all a definition of ‘abettor’ because the Indian Penal Code gives definitions of various crimes only and the definitions of perpetrators of those crimes are not needed. For instance, definitions of theft, murder etc. are given but definitions of theft, murderer, etc. are not needed because one who commits theft is a thief or one who commits murder is a murderer, and so on.
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Therefore, when definition of abetment has been given where is the need to define abettor because one who abets should be an abettor. At the outset, therefore, it seems that a definition of ‘abettor’ should be unnecessary. But a careful reading of section 107 leads to the conclusion that such is not the case. The reason is that section 107 defines ‘abetment of a thing’ and not ‘abetment of an offence’.
There may be many abetments of things which cannot lead to criminal liability because criminal liability accrues only when a crime is committed and all abetments of things can obviously not be abetments of crimes. Therefore, whenever an abetment of a thing will lead to criminal liability had to be stated. What kind of abetment will bear liability has been done with incorporating the definition of ‘abettor’ who is criminally liable.
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That is the reason as to why a separate definition of ‘abettor’ had to be given in the form of a separate section 108. There can be two ways by which a person can become an abettor according to this section—firstly, when he abets the commission of an offence, or secondly, when he abets 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.
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Abetment can be done by either of the three modes prescribed under section 107 of the Code, that is to say, by instigation by conspiracy or by aiding. Therefore, whenever a person abets by any one of these modes the commission of an offence, which is defined under section 40 of the Code, he is an abettor.
Again he will be an abettor even when though he does not abet the commission of an offence but he does abet, by either of the three modes, the commission of an act which would amount to an offence if committed by a person legally capable to commit an offence with the same intention or knowledge as that of the abettor. Thus, where A abets В to commit murder of Z, he is an abettor under the first category as stated above.
On the other hand, if A abets B, a five year old child, to commit murder of Z, he is still an abettor under the second category because, even though the child will not be guilty of anything by virtue of the protection given to him by section 82 of the Code, A has abetted 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.
Even though the section uses an explicit language, the framers of the Code felt the need of appending as many as five explanations with a view to eliminate any possibility of a doubtful interpretation of the language in this section.
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Explanation 1
According to the first explanation 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. For instance, a husband is legally bound to provide food to his wife. He fails to do so and, therefore, it is an illegal omission on his part. If a person abets the husband for committing such illegal omission, he is liable as an abettor even though he, not being the husband of that woman, is not bound to provide food to her.
Similarly, a public servant has certain duty to perform. He makes a breach of the same which naturally is an illegal omission on his part. Where a person abets him to commit such an illegal omission, he becomes liable as an abettor even though not being a public servant he is not bound to do that act.
Explanation 2
The second explanation states that 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. This explanation shows that the effect of an abetment is immaterial. In other words, abetment in itself is a crime. The two illustrations given under this explanation explain the point clearly.
Explanation 3
According to the third explanation 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 of knowledge as that of the abettor, or any guilty intention or knowledge. The legal status of the person abetted has no bearing on the liability of the abettor.
Therefore, even if the person abetted is incapable by law of committing an offence, the abettor is liable for the abetment of the offence. Similarly, it is not necessary that the abettor and the person abetted must have same guilty intention or knowledge, or the person abetted may have any guilty intention or knowledge at all. For instance, the person abetted may not be guilty at all for the act he does in furtherance of the abetment because some defence like mistake of fact, unsoundness of mind or infancy etc. is available to him, but that does not change the liability of the abettor. The four illustrations under this explanation explain the point clearly but they are not meant to be exhaustive.
Explanation 4
This explanation says that the abetment of an offence being an offence, the abetment of such an abetment is also an offence. Since it is not necessary that the offence abetted must be committed before the abettor can be held guilty of abetment, it is clear that abetment is an offence by itself. Therefore, it is an offence like any other offence such as murder, theft etc., and since abetment of an offence is an offence, abetment of such an abetment is also an offence.
Where A instigated B, a bench clerk in a court of a presidency magistrate, to instigate the magistrate to accept a bribe with a view to a acquit an accused in a case before him, and В received the gratification as a police-spy with the intention of getting A arrested; and did in fact instigate as a policy-spy with the money, it was held that A was guilty of abetment of an offence under section 161 read with section 116 of the Code.
Explanation 5
This fifth explanation is applicable only to the offence of abetment by conspiracy. It states that 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. The explanation emphasises that for abetment by conspiracy the important thing is engagement between persons and not concert between them.
The illustration very aptly points out as to what is meant by engagement. In it С procures the poison and delivers it to В with full knowledge that the same would be used for an unlawful purpose. Even though С does not know the full details to be liable for the offence of criminal conspiracy, he is liable for abetment by conspiracy to murder as he has sufficiently engaged himself in this crime.
Is attempt of abetment of an offence possible?
Since abetment of an offence is an offence, an attempt of abetment of an offence is also possible. For instance, A instigates В by a letter to commit murder of X. The letter never reaches B, or if it does reach В but В does not read it. A is guilty of attempt to commit abetment of murder. Similarly, A instigates В by telephone to commit murder of Л” but the telephone becomes dead at B’s side without A knowing about it, A is guilty of attempt to commit abetment of murder. Yet again, if A instigates B, a deaf person, to commit murder of X without A knowing that В cannot hear, A is guilty of attempt to commit abetment of murder. In R. v. Runsford, 3 the accused wrote a letter to X to commit a crime. X did not read the petter. The accused was held guilty of attempting to incite X to commit the crime.