PROJECT OF INDIAN PENAL CODE,1860

ANA
LYSI
S
THE
CON
CEPT
OF

SUBMITTED TO: MS. RAJINI MAM SUBMITTED BY: MS. POOJA

(ASSITANT PROF.) COURSE: BCOM.LLB
SECTION: B
ROLL NO.: 18611
INDEX

SR.NO PARTICULARS PAGE

NO.
1 Introduction 4
2 Abetment 5
3 Criminal Consipiracy 10
4 Case Analysis 13
5 Difference between Criminal conspiracy and Abetment 15
6 Conclusion 19
7 Suggestions 20
ACKNOWLEDGEMENT

I would like to thank My Lecturer MS. RAJINI of INDIAN

PENAL CODE, 1860 who gave me the opportunity to work on
the topic of ANALYSIS THE CONCEPT OF CRIMINAL
CONSPIRACY AND DIFFERENTIATE WITH IT
ABETMENT.

POOJA
TABLE OF CASES

Serial no. Cases

1 Davender Pal Singh v. State of NCT of Delhi

2 Faguna Kama Nath v. State of Assam

3 Jamuna Singh v. State of Bihar

4 Mohd. Khalid v. State of West Bengal

Mulcahy v. R

5 State of A.P. v. Cheemalapati Caneswara Rao

State of Maharashtra v. Somnath Thapa
State v. Nalini (Rajiv Gandhi Assassination case)
INTRODUCTION

The very definition and concept of crime vary only according to the values of a
particular group and society, its deals, faith, religious attitudes, customs,
traditions, and taboos, but also according to the form of government, the political,
and economic structure of the society and number of other factors. For instance,
what is an offence against property in a capitalist society may be a lawful way of
living in a socialist society.

People may believe that if they plan to commit a crime, but do not actually go
through with it, they will not be held responsible for a crime. This belief is
mistaken; however, as there are laws set out for specific offences called “inchoate”
offences. Inchoate means that a criminal act was anticipated or prepared for, but not
completed. The major offences which are included in this are Abetment and
Conspiracy.

Indian Penal Code is a piece of comprehensive legislation. The code embodies the
general penal law of the country and is the sole authority with respect to the general
conditions of work, the definitions of the specific offences in the Code, and the
conditions of exemptions from criminal liability. Some crimes are cognizable, and
some are not.1

Traditional and conventional crimes are rooted in time and customs and the Indian
Penal Code represents its core. The Code punishes such acts against persons and
their property as are universally accepted as injurious to all civilized societies and
acts which offend against fundamental principles on which the existence of human
beings as a society rests. These fundamentals are more or less of a permanent nature
and will endure for a long time to come.
1
Cr.P.C., (1973), sec. 2 (c)
The term 'abetment' in criminal law indicates that there is a distinction between the
person abetting the commission of an offence (or abettor) and the actual perpetrator
of the offence or the principal offence or the principal offender. Whosoever, 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 facilitate the commission thereof,
is said to aid the doing of that act.2

Russell remarks the crime of conspiracy “affords support for any who advance the
proposition that criminal law is an instrument of government.”3

The IPC was amended in 1870 to insert S. 120-A IPC. Chapter V-A has been
introduced in the code by the Criminal Law Amendment Act (8 of 1913). The
object of the amendment was to prevent the commission of crimes by nipping them
in the bud. 4As stated above the inclusion of Chapter V-A in the Penal Code was
designed to assimilate the provisions of English law. This chapter was inserted in
the Indian Penal Code in 1913. Conspiracy, at common law, had its origin primarily
as a civil wrong but was later made punishable as criminal wrong.5

ABETMENT

In the Indian Penal Code, Abetment is defined under section 107 as 6

Abetment of a thing - A person abets the doing of a thing, who: -
 Instigates any person to do that thing; or
 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
2
Indian Penal Code, sec. 107
3
Russell on Crimes, vol. 1 (11th Ed.) p. 21
4
State of A.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 67
5
Gour, Hari Singh, Penal Law of India, 11th Edn., Vol. II, 2000, pp. 1101-1135
6
Indian Penal Code, 1860, sec.107
  Intentionally aids, by any act or illegal omission, the doing of that thing.

In a comprehensive way under the Indian Penal Code,

Abetment can be defined as a person becomes liable as an abettor if he instigates
another to commit a crime or engages in a conspiracy with another to commit a
crime and some act is done in furtherance of the such conspiracy or if he
intentionally aids another in order to facilitate the commission of a crime.
The term 'abet' in general usage means to assist, advance, aid, conduce, help and
promote. The word 'abet' has been defined as meaning to aid; to assist or to give
aid; to command, to procure, or to counsel; to countenance; to encourage; induce,
or assist, to encourage or to set another one to commit.7
The term 'abetment' in criminal law indicates that there is a distinction between the
person abetting the commission of an offence (or abettor) and the actual perpetrator
of the offence or the principal offence or the principal offender.
An abettor is a person who 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.
The essentials are:
 There must be an abettor;
 He must abet, and
 The abetment must be an offence or an act which would be an offence if
committed by a person capable in law of committing the offence with the
same intention or knowledge as that of the abettor.8

The chapter on abetment contains 15 sections.

7
Kartar Singh v. State of Punjab, 1994 Cri LJ 3139; See also Sanju v. State of Madhya Pradesh, (2002) 5 S.C.C.
371(India)
8
Emperor v. Parimal Chatterjee, A.I.R. 1932 Cal 760 (761); (1939) 34 Cr LJ 78 (India). See Ne lson’s Indian Penal
Code, 7th Edn., (1981), Vol. I, p. 275
Section 107 which defines abetment generally speaks of three kinds of abetment,
viz., abetment by instigation,
 abetment by conspiracy and
 abetment by aid.
Section 108 explains when an abetment of an offence takes place, and
S. 108-A provides for the case of abetments-in India of an offence committed in
a foreign country.
Section 109 prescribes the punishment for the offence of abetment when the
offence abetted is committed, while
S. 110 prescribe the punishment for abetment where the person abetted commits
the act with a different intention or knowledge from that of the abettor.
Section 111 provides for cases of abetment resulting in a different offence but
which is a probable consequence thereof.
Section 112 provides for cumulative punishment in cases covered by S. 111.
Section 113 which is supplementary to S.111 provides for punishment in cases
where the act abetted causes a different effect from that intended by the abettor.
Section 114 provides for cases where the abettor is present at the time of the
offence and makes him liable for the main offence and not merely as an abettor.
Sections 115 and 116 prescribe for the punishment in cases where the offence
abetted is not committed.
Section 117 deals with the abetment of offences by the public generally or large
groups of persons.
Section 118 prescribes the penalty for concealing the existence of a design in
another to commit a grave offence.
Sections 119 and 120 provide for punishment in the case of public servants and
others respectively for concealment of a design in another person to commit the
offence not covered by S. 118.
ABETMENT BY INSTIGATION

The word 'instigate' literally means to goad, urge forward, provoke, incite, or
encourage to do an act and a person is said to instigate another when he actively
suggests or stimulates him to the act by any means, or language, direct or indirect,
whether it takes the form of express solicitation or of hints, insinuation or
encouragement or willful misrepresentation or willful concealment of a material
fact.
It is not necessary that express words should be used to indicate what should be
done by the person to whom the directions are given. While there has to be a
reasonable certainty in regard to the meaning of the words used in order to decide
whether there was incitement, it is not necessary for law to prove the actual words
used.
Advice amounts to instigation only when intended to actively suggest or stimulate
the commission of an offence. Mere acquiescence does not amount to instigation.
Thus the word denotes incitement or urging to do some drastic or unadvisable
action or to stimulate or incite. The presence of mens rea, therefore, is the necessary
concomitant of instigation. It is common knowledge that the words uttered in a
quarrel or in a spur of the moment cannot be taken to be uttered with mens rea
required to constitute instigation as they are uttered in a fit of anger and emotional
state.9
Instigation as a form of abetment has generally been one of the essential
considerations in cases involving the death of young brides or women within seven
years after marriage, as a consequence of dowry harassment. The apex court has
laid down that before anybody can be punished for abetment of suicide, it must be
proved that the death in question was a suicidal death.10
9
See Swamy Prahaladdas v. State of M.P. & Am., 1995 Supp. (3) SCC 438 (India); Mahendra Singh v. State of M.P.,
1995 Supp. (3) S.C.C. 731 (India); Ramesh Kumar v. State of Chhattisgarh, (2001) 9 S.C.C. 618 : 2001(4) RCR (Cri.)
537 (S.C.) (India) ; Seeta Hemchandra Shashittal v. State of Maharashtra, (2001) 4 S.C.C. 52 (India)
10
Wazir Chand v. State of Haryana, A.I.R. 1989 S.C. 378; Ramesh Chandra Mondal v. State, 1991 Cr LJ 2520 Cal
In Jamuna Singh v. State of Bihar11, the offence of abetment is complete when the
alleged abettor has instigated another or engaged with another in a conspiracy to
commit the offence. It is not necessary for the offence of abetment that the act
abetted must be committed.
It is only in the case of the person abetting an offence by intentionally aiding
another to commit that offence that the charge of abetment against him would be
expected to fail when the person alleged to have committed the offence is acquitted
of that offence.12

ABETMENT BY CONSPIRACY

A person is said to abet the commission of an offence by conspiracy, if he enters

into an agreement with one or more persons to do a legal act by illegal means, or to
do an illegal act, and some act is done in pursuance thereof. A conspiracy to do a
thing is a combination of two or more persons with a common design of doing a
specific thing. It has been held that where a criminal conspiracy amounts to an
abetment under S. 107, it is unnecessary to invoke the provisions of Ss. 120-A and
120-B, as the Code has made a specific provision for the punishment of such a
conspiracy.

ABETMENT BY AID

A person is said to abet the commission of an offence if he intentionally renders

assistance or gives aid by doing an act or omitting to do an act. Mere intention to
render assistance is not sufficient. There must be some active conduct on the part of
the abettor and the act must be accomplished in pursuance thereof.

(India)
11
Jamuna Singh v. State of Bihar, A.I.R. 1967 S.C. 553 at 554 : 1967 Cri. LJ 541 (India)
12
Ibid
Aid may be given both by an act of commission as well as by an act of illegal
omission.
For instance, if a police officer knowing that certain persons were likely to be
tortured for the purposes of extorting confession keeps himself away from the place,
he is liable for abetment to the offence of extortion by an act of omission.13
The act or omission which constitutes the aid must have been done intentionally;

The aid must have been given either prior to or at the time of the commission of
the offence abetted.

CRIMINAL CONSPIRACY

In English law, "if two or more persons agree together to do something contrary to
law, or wrongful and harmful towards another person, or to use unlawful means in
the carrying out of an object not otherwise unlawful, the persons who so agree
commit the crime of conspiracy."14
No overt act in pursuance of the conspiracy is necessary, the illegal combination
itself being the gist of the offence. The overt acts which may follow the conspiracy
form, of themselves, no part of the conspiracy.
In Mulcahy v. R.15 the House of Lords stated, "A conspiracy consists not merely in
the intention of two or more but in the agreement of two or more to do an unlawful
act by unlawful means. So long as such a design rests in intention only it is only
indictable. When two agree to carry it into effect, the very plot is an act in itself and
the act of each of the parties promise against promise actus contra actum capable of
being enforced if lawful, punishable if for a criminal object or for the use of
criminal means." After the judgment of the House of Lords in the case of Mulcahy

13
Faguna Kama Nath v. State of Assam, A.I.R. 1959 S.C. 673 (India)
14
Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-1
15
Muchay v. R (1868) LR 3 HL 30 (England)
v. R.16IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been
introduced in the code by the Criminal Law Amendment Act (8 of 1913). The
object of the amendment was to prevent the commission of crime by nipping them
in the bud.17
120A. Definition of criminal conspiracy - When two or more persons agree to do, or
cause to be done: -
an illegal act, or
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.

So far as the law of present day is concerned the House of Lords has declared:

that the gist of conspiracy is the agreement, whether or not the object is attained
that the purpose of making such agreements punishable is to prevent the
commission of the substantive offence before it has even reached the stage of
attempt and
that it is all part and parcel of the preservation of the Queen's peace within the
realm.18
Conspiracy under the Indian Penal Code originally was punishable only in two
forms, viz., (i) conspiracy by way of abetment and (ii) conspiracy involved in
certain offence. In the former an act or illegal omission must take place in
pursuance of conspiracy in order to punishable while in the latter membership
suffices to establish the charge of conspiracy.
Thus the Indian Penal Code deals with the law relating to criminal conspiracy:

16
Ibid
17
State of A.P. v. Cheemalapati Caneswara Rao, A.I.R. 1963 S.C. 1850; (1963) 1 Cri L J (India)
18
Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v. Owen (1957) 2 WLR 351
at 357
 o as a substantive offence;19
o as a form of abetment (Chapter V, section 107);20
o to wage, attempt or abet waging of war against the Government of
India. (Chapter VI, section 121A);21
o involvement in certain offences, such as assembling for purpose of
committing dacoity.

Before the passing of the Criminal Law Amendment Act of 1913, a conspiracy to do
an illegal act was punishable only when such an act amounted to an offence. It was
also essential in the words of section 107(2) of the Code that an act or illegal
omission should have taken place in pursuance of the conspiracy and in order to the
doing of the act which was the object of the Conspiracy.
The Criminal Law Amendment Act, of 1913 has, however, introduced two rather
drastic changes in this respect. By section 120B punishment is provided for criminal
conspiracies of all kinds viz.,

 whether, according to the requirement of section 107, an overt act has or has
not taken place in pursuance of such conspiracy, and;
 whether, as required by sections 109, 115 or 116, the object of conspiracy is
or is not the commission of an offence.

In Mohd. Khalid v. State of West Bengal22and Davender Pal Singh v. State of NCT
of Delhi23
, the Supreme Court after referring to the American and the English legal position
on the law of conspiracy summarized the broad essential elements of conspiracy
thus:
19
Chapter VA, secs. 120A and 120B, I.P.C. added to the Indian Penal Code by Act VIII of 1913
20
Chapter V, sec. 107(2), I.P.C.
21
Added to the I.P.C. by Act XXVII of 1870, sec.4
22
Mohd. Khalid v. State of West Bengal (2002) 7 S.C.C. 334 (India)
23
Davendera Pal Singh v. NCT of Delhi (2002) 5 S.C.C. 234 (India)
  an object to be accompanied;
 a plan or scheme embodying means to accomplish that object;
 an agreement or understanding between two or more accused persons
whereby, they become committed to corporate for the accomplishment of
the object by the means embodied in the agreement, or by any effectual
means; and
 in the jurisdiction where the statute requires, an overt act.

The court further held that Indian law broadly conforms to the English legal
position on the law of criminal conspiracy. Thus, the provisions of Ss. 120 A &
120B IPC have brought the law of conspiracy in India in tune with the English law
by making the overt act unessential when the conspiracy is to commit any
punishable offence. The provisions, in such a situation, do not require that every
person who is a party to the conspiracy must do some overt act towards the
fulfilment of the object of conspiracy the essential ingredients being an agreement
between the conspirators to commit the crime and if these essentials and
requirements are established, the act would fall within the trapping of the provisions
contained in S. 120B.

CASE ANALYSIS

The use of the word "illegal" in the definition of criminal conspiracy in S.120-A
IPC is extremely comprehensive and would make even a case of civil trespass
indictable, as a criminal conspiracy. In State of Maharashtra v. Somnath Thapa24
Supreme Court explained the ingredients of conspiracy and observed:

―To establish a charge of conspiracy, knowledge about indulgence in either an

illegal act or a legal act by illegal means is necessary. In some cases, the intent of
24
State of Maharashtra v. Somnath Thapa 1996 Cri LJ 2448 : A.I.R. 1996 S.C. 1744 (India)
State (C.B.I/S.I.T) v. Nalini (1999)5 S.C.C. 253 (India)
unlawful use being made of the goods or services in question may be inferred from
the knowledge itself... Finally, when the ultimate offence consists of a chain of
actions, it would not be necessary for the prosecution to establish, to bring home
the charge of conspiracy, that each of the conspirators had to know of what the
collaborator would do, so long as it is known that the collaborator would put the
goods or services to unlawful use.

Thus, even knowledge of an illegal act is enough to hold one guilty of conspiracy.
But as per the Ss. 120A and 120B it is the intent by two or more which is necessary
to constitute conspiracy. The law relating to conspiracy aims at punishing guilty
intentions because no overt act is required for the same. However, it can be inferred
that mem rea is not a necessary ingredient of the charge of conspiracy to commit an
offence.

The Supreme Court in State v. Nalini (Rajiv Gandhi Assassination case)25, dealt at
length with law of conspiracy, reviewed case law, and culled out several principles
governing conspiracy. On the night of 21-5-1991 Rajiv Gandhi, the former Prime
Minister of India was assassinated by a human bomb. This incident was a result of a
conspiracy. Wadhwa, J laid down the following broad principles governing the law
of conspiracy:
Under S. 120 -A IPC offence of criminal conspiracy is committed when two or
more persons agree to do or cause to be done an illegal act or legal act by
„illegal‟ means.
Acts after the achieving of the object of conspiracy may tend to prove that a
particular accused was party to the conspiracy.

Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a

conspiracy by direct evidence.
25
25
State (C.B.I/S.I.T) v. Nalini (1999)5 S.C.C. 253 (India)
Conspirators may, for example, be enrolled in a chain –
An enrolling B, B enrolling C, and so on; and all will be members of a single
conspiracy if they so intend and agree, even though each member knows only the
person who enrolled him and the person whom he enrols.
When two or more persons agree to commit a crime of conspiracy, then regardless
of making or considering any plans for its commission, and despite the fact that no
step is taken by any such person to carry out their common purpose, a crime is
committed by each and everyone who joins in the agreement
It is not necessary that all conspirators should agree to the common purpose at the
same time.
A charge of conspiracy may prejudice the accused because it forces them into a
joint trial and the court may consider the entire mass of evidence against every
accused.
It is the unlawful agreement and not its-accomplishment, which is the gist or
essence of the crime of conspiracy
It has been said that a criminal conspiracy is a partnership in crime, and there is in
each conspiracy a joint or mutual agency for the prosecution of a common plan.
A man may join a conspiracy by word or by deed.

The essence of criminal conspiracy embodied in S. 120A is the unlawful

combination and ordinarily, the offence is complete when the combination is
framed.
DIFFERENCE BETWEEN CRIMINAL CONSPIRACY AND
ABETMENT

 Abetment is a process by which one or more engage or employ other(s) for

the commission of an offence. The former i.e., the person, who abets is called
the „abettor‟, while the latter i.e., the person who commits the offence
with his own hands is called the Principal offender.
  But conspiracy is a process by which an agreement is entered into between
two or more persons for the commission of an illegal act or doing/committing
a lawful/ legal act by illegal means. The parties to the agreement are called
„Conspirators‟
 In the offence of abetment, a mere combination of persons or agreement
between them is not enough but an act or illegal omission must take place in
pursuance of the conspiracy and in order to the doing of the thing conspired
for, But in conspiracy, the mere agreement is enough, if the agreement is to
commit an offence.
 Abetment can be committed by one or more, whereas conspiracy can be
committed by two or more.
 In abetment, sanction of competent authorities is not necessary to proceed
against the abettors, who merely abetted to commit a crime. While in
conspiracy, sanction of competent authorities is necessary to proceed against
the conspirators who merely agreed to commit a crime.
 Abetment is genus while the conspiracy is species.
 Abetment per se is not a substantive offence whereas criminal conspiracy is a
substantive offence by itself and is punishable.
 Abetment may be committed in various methods/ways viz., instigation,
conspiracy, intentional aid etc., but conspiracy is one of the methods of
abetment.
 Crime of Abetment is explained in Sections 107 to 120 of the code while
Crime of Conspiracy is explained in Sections 120- A & 120-B of the Code.
 Section 109 of the code is concerned only with the punishment of abetments
for which no express provision is made under the Penal Code. A charge under
Section 109 should, therefore, be alone with some other substantive offence
committed in consequence of abetment.
 However, the offence of criminal conspiracy is, on the other hand,
an independent offence. It is made punishable under Section 120 В of the code for
which a charge under Section 109 of the Code is unnecessary and, indeed,
inappropriate.

CONCLUSION

Under the Penal Code, a person becomes liable as an abettor if he instigates another
to commit a crime or engages in a conspiracy with another to commit a crime and
some act is done in furtherance of the such conspiracy or if he intentionally aids
another in order to facilitate the commission of a crime. The term 'abet' in general
usage means to assist, advance, aid, conduce, help and promote. The word 'abet' has
been defined as meaning to aid; to assist or to give aid; to command, to procure, or
to counsel; to countenance; to encourage; induce, or assist, to encourage or to set
another one to commit.
Thus, conspiracy is an inchoate crime and is punishable primarily because an
agreement to commit a crime is a decisive act, fraught with potential dangers; but to
bring an agreement to commit a civil wrong within the range of criminal conspiracy
is to stretch the rationale of law to the farthest limit. In its broad reach, it can be
made to do great evil.
The United States of America, France, the United Kingdom and Canada are some of
the countries whose Penal Laws are strengthened by keeping social change in view
for effective control of Law and Order. Every citizen should, with a reasonable
degree of certainty must know the potential penal consequence of any act he/she
commits. Law and order can be maintained through sociological jurisprudence that
is social engineering, as opined by Rosco Pound. The objective and philosophy of
penal law are the same as that of sociological jurisprudence. This is unfortunate, for
the absence of a distinct sentencing phase and the attention to the sentencing
process which enables and impedes the growth of a mature jurisprudence. By
maintaining law and order social welfare can be attained in any society very easily.

SUGGESTIONS
The crime rate in India has been considerably increasing from year to year and the
conviction rate had become very low and that too the courts have been awarding
very merge punishments by using them vide discretionary powers.
There are more chances to get lenient punishment by the proved offenders due to
the loss of the framework of the legislature in fixing the punishment for several
offences in the Code.
There is more probability to apply the personally favoured brain and individual
opinion of the judicial officers while conforming the sentence to the offenders,
due to the wide discretion
available in the present sentencing jurisprudence. So that, there are more chances to
escape the accused from the clutches of the law.
Already Indian Criminal Justice System is working on the motto of “hundred
criminals can be escaped, but one innocent should not be punished”.
In these circumstances, if the minimum punishment is conformed to the penal
statutes in general and in the Indian Penal Code as it is covering a substantial
portion of the offences in India by the legislature through amendments, the trial
court judge will be curtailed by the Statute and he is forced to give punishment
within the limit stipulated by the legislature. Crime is an age-old phenomenon, a
deep-rooted evil, born and developed along with the development of man and
gradually became a universal malady afflicting every society.