Legal Provisions of Section 109 of Indian Penal Code, 1860.
Punishment of abetment if the act abetted is committed in consequence and where no express provisions is made for its punishment:
This section provides for punishment to be meted out to an abettor. It says that wherever the act abetted has been committed in consequence of the abetment and there is no express provision in the Code regarding punishment of such abetment the abettor shall be punished with the punishment provided for the offence. Since abetment can be only by instigation, by conspiracy or by aiding, the explanation under this section states that act committed in consequence of abetment shall mean act committed in consequence of either of the three modes of committing abetment.
ADVERTISEMENTS:
The word ‘offence’ has the same meaning as provided by section 40 of the Code. The section does not insist that it shall apply only when the abettor is present at the time of commission of the act, but abetment on his part must be proved along with the fact that the act has been committed in consequence of the abetment. With respect to illustration (a), however, it is important to note that sections 161 to 165-A of the Indian Penal Code stand omitted by section 31 of the Prevention of Corruption Act, 1988 with effect from September 9, 1988.
Where the accused abetted others to commit rape but himself did not commit rape but kept a watch while others were committing the crime, a conviction under section 376 read with section 34 should be altered to one under section 376 read with section 109 of the Code.
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Where the accused is charged with committing the offence of abetment by aiding another to commit a particular offence, he cannot be held liable for the same once the alleged main offender is acquitted of the charge of committing that particular offence. This, however, applies to the charge of abetment by aiding only and not to abetment by instigation or abetment by conspiracy.
ADVERTISEMENTS:
Where the accused abetted others to attack the victim with deadly weapons but not to cause his death, he should be held guilty under sections 324 and 109 and not under sections 307 and 109 of the Code. Where the accused who was known to an Oath Commissioner identified a person as another person before him and got an affidavit attested by the Oath Commissioner as if the same was sworn by the right person, it was held that a charge against him under sections 419 and 109 of the Code could not stand as the act was not likely to cause damage or harm to the Oath Commissioner in body, mind, reputation or property.
Where the accused was charged with having committed the offence of criminal breach of trust under section 409 of the Code, but the court was satisfied that instead he had abetted the offence of section 409, he could be convicted for the abetment even though he was not guilty for the main offence under section 409 of the Code.
Private individuals can be prosecuted for abetment of offence of criminal misconduct along with the public servant under section 13(1) (e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code.
In Guggillasanthosh Reddy v. State of Andhra Pradesh, the deceased was the son of the accused. The accused did not want to give him any share in property. The Andhra Pradesh High Court held that only this fact was not sufficient to hold that they were interested in killing their own son by abetting the co-accused to kill him. In an earlier dispute when the co-accused had attacked the deceased, the accused had maintained silence and maintaining silence in a prior incident cannot be taken as a basis for convicting the accused.
ADVERTISEMENTS:
In Munnuswamy v. State of Tamilnadu, one accused was waiting for the deceased at the roadside whereas the other two were following the deceased on bicycle. The deceased who was also on a bicycle was made to stop by all of them. The deceased who started running for life was overpowered by them. Two of them were holding him and on being exhorted to stab the deceased, the third accused inflicted blows on him by a pen knife. Injuries were caused to vital organs like the chest and parietal region resulting in death.
The Supreme Court held the third accused guilty of murder and the first and second accused guilty under section 109 since the manner of the incident disclosed a pre-concerted plan and exhortation to stab shows that the other two accused knew that the third accused carried knife.
In Manoranjan Das v. State of Jharkhand the accused merely introduced the coaccused to a bank for opening an account. The co-accused after six months presented bogus drafts and withdrew amount of money. There was no evidence to show involvement of the accused in the fraud committed by the co-accused nor did he instigate the co-accused to present bogus drafts.
The bank passed the self cheque of the co-accused when there was insufficient money in his credit by acting on the bogus drafts. The Supreme Court held that the accused was not responsible for the loss sustained by the bank and his conviction for abetment of cheating was not proper.
In K. Ashoka v. N. L. Chandrashekar, there was an allotment of a plot of land by a cooperative society. The allegation in the complaint was that a conspiracy was hatched whereby allotment was made in favour of a person who was not entitled to become a member of that society and further that the said allotted plot was assigned in favour of a third party for a huge sum of money. The Supreme Court held the accused guilty under sections 109 and 420 of the Code.
Whether an abetment is cognizable or non-cognizable, bailable or non-bailable, compoundable or non-compoundable depends upon the procedure for the offence abetted. The court which is competent to try the offence which has been abetted is competent to try the abetment also.