ABETMENT & CRIMINAL

CONSPIRACY
Prof. Yophika Thabah
Chapter V to be discussed in two parts:
 Section 107 and 108 IPC
 Provisions proposing liability for abetment in its various
manifestations and results, and the punishments imposed
for the various offences.
 Abetment of a thing- 107
 Abetment of an offence- 108
 Important element: mens rea, exception: Strict Liability offences
 Abetment by instigation:
 Essentials: 1) There needs to be a close causal connection between
instigation and the act committed. 2) The instigation must be with
reference to the thing that was done and not to the thing that was
likely to have been done by the person who is instigated- (also refer
to principle of natural and probable cause)
 Ranganayaki v State by Inspector of Police 2004- Very important
ratio
 Can approval of an act amount to instigation? Can silence be
considered as approval?- Tej Singh v State of Rajasthan AIR 1958
Raj 169
Abetment to commit suicide- legal
jurisprudence
 State of WB v Orilal Jaiswal & Anr 1994
 Ramesh Kumar v State of Chhattisgarh 2001
 Gurjit Singh v State of Punjab 2010
 Ude Singh & Ors v State of Haryana 2010
 Mohan Gangaram v The State of Maharashtra 2017
 M. Arjunan v The State Rep. By Its Inspector of Police 2018

Other relevant judgments:

State of West Bengal v Indrajit Kundu & Ors. 2009: Section 306 IPC
not attracted merely because the deceased was called a ‘call
girl’.
Ritika v State 2019: The act of abetment of suicide could not be
read in isolation and must be read with Section 107 of IPC,
which entails the essentials constituting "abetment".
‘Instigation’ was the first essential constituting abetment.
ABETMENT BY CONSPIRACY
 Essentials:
 There must first be a combining together of two or more
persons in the conspiracy;
 Secondly, an act or illegal omission must take place in
pursuance of that conspiracy, and in order to the doing of
that thing
 ABETMENT BY CONSPIRACY
Section 107
Mere agreement is not enough
An act or illegal omission must take place
in pursuance of the conspiracy and in
order to the doing of the thing conspired
for.
The person may or may not be party to
the agreement, but engaged to do an act
or illegal omission- Explanation 5 of
Section 108
Under Section 109- The abettor is liable
to the same punishment which may be
inflicted on the principal offender if the
act of the latter is committed in
consequence of the abetment, if no
express provision is mentioned in the IPC
Section 120A
The very agreement or plot to commit an
offence is an act in itself
The persons who are initially guilty of
conspiracy to commit an offence become
guilt of abetting the offence as soon as an
act or illegal omission takes place in
pursuance of the conspiracy
An offence of criminal conspiracy on the
other hand is an independent offence
which is made punishable under section
120B IPC
Section 109, may be attracted even if Though there is close association of
the abettor is not present when the conspiracy with incitement and
offence abetted is committed abetment, the substantive offence of
provided that he has instigated the criminal conspiracy is wider in
commission of the offence or has amplitude than abetment by
engaged with one or more other conspiracy as contemplated by s. 107
persons in a conspiracy to commit I.P.C.
an offence and pursuant to that
conspiracy some act or illegal
emission takes place or has
intentionally aided the commission
of an offence by an act or illegal
omission.
ABETMENT BY INTENTIONAL AIDING
 Essentials:
 Doing of an act directly assisting the commission of the
crime, or
 Illegally omitting to do a thing which one is bound to do,
or
 Doing an act which may facilitate the commission of the
crime by another
Rules and liability relating to abetment of
an offence
 Section 108-Covers the abetment of an offence specifically
 Section 109- when there is identity of intention between the abettor and the
person abetted committing the act, and the act was committed as it was abetted,
then the liability of the abettor and the principal offender is equal.
 Section 110: When an act has been committed with an intention different from that
of an abettor, but the act committed is the same as the act abetted
 Doctrine of constructive liability;
a) Section 111: Where the act abetted and the act done is actually different.
b) Section 112: Where the act abetted is committed and also a distinct offence is
committed (Green suggests= principle of ‘natural and probable consequence’)
c) Section 113: Where the act done is the same as the act abetted, but with a different
effect (Blue suggests= requirement for ‘knowledge of the likelihood of the effect’)
 Section 114: When the abettor is present when the offence is committed
i) Abetment should be prior to the commission of the offence
ii) The abetment must be complete by itself; and
iii) The abettor must be present at the time of the commission of the act
Chapter VA to be discussed in two parts
 The essential ingredients of Section 120A
 The punishment provided for under Section 120B
Section 120A IPC
 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.
HISTORY OF THE LAW OF CONSPIRACY IN
INDIA
 Originally, the IPC contained only two provisions for conspiracy:
Section 107 (by an act or omission) & specific provisions involving
offences which included conspiracies to commit them (membership).
Overt act was a pre-requisite
 Mulcahy v R (1868) LR 3 HL 306: “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, or to do a lawful act by unlawful
means” . Overt act not a pre-requisite
 1870- Section 121A was inserted (For acts punishable under S 121):
Limited scope
 Indian Criminal Law (Amendment) Act, 1913- Chap V A (ss
120 A & 120 B)
 After 1913:
 Where overt act is necessary (illegal act or legal act by illegal means); and
 Where overt act is not necessary and an agreement per se is made
punishable (offence)
Halsbury's Laws of England (vide 5th
Ed. Vol.25, page 73)
 The essence of the offences of both statutory and common law
conspiracy is the fact of combination by agreement (Mohd
Hussain v KS Dalip Singhji AIR 1970 SC 45).
 The agreement may be express or implied, or in part express and in
part implied. The conspiracy arises and the offence is committed as
soon as the agreement is made; and the offence continues to be
committed so long as the combination persists, that is until the
conspiratorial agreement is terminated by
completion of its performance or by abandonment or frustration or
however it may be.
 The actus reus in a conspiracy is therefore the agreement for
the execution of the unlawful conduct, not the execution of it.
 It is immaterial whether the illegal act is the ultimate object of such
crime or
is merely incidental to that object. To attract the applicability of
Section 120-B it has to be proved that all the accused had the
intention and they had agreed to commit the crime.
IDES OF MARCH: JULIUS CAESAR
Mohd Khalid v State of West Bengal (2002) 7 SCC 334
& Devender Pal Singh v State (NCT of Delhi) AIR 2002
SC 1661
 An object to be accomplished
 A plan or scheme embodying means to accomplish that object
 An agreement or understanding between the two or more of the accused persons
whereby they become definitely committed to co-operate for the accomplishment of
the object by the means embodied in the agreement, or by any effectual means
 An overt act, in pursuance of the agreement, in case of a non-offence act
 State (NCT of Delhi) v Navjot Sandhu (2005): Circumstances of the case should
indicate the meeting of the minds between the conspirators for the intended object

 State of Tamil Nadu v Nalini & Ors AIR 1999 SC 2640: Where in pursuance of
the agreement, the conspirators commit offences individually or do an act by illegal
means which has a nexus to the object of conspiracy, all of them will be liable for
such offences even if some of them have not actively participated in the commission
of those offences.
 Once the conspiracy is established, they will all be held liable for the offence of
conspiracy, although for indidivual offences, all of them may not be held liable- BG
Barsay v State of Bombay AIR 1961 SC 1762

 Kehar singh & Ors v State (Delhi Admn.) – Indira Gandhi Assasination Case
State through Superintendent of Police,
CBI/SIT v. Nalini and others (1999) 5 SCC 253
 Not only the intention but there has to be agreement to carry out the object of
the intention, which is an offence.
 Persons may be members of single conspiracy even though each is ignorant of the
identity of many others who may have diverse role to play. It is not a part of the
crime of conspiracy that all the conspirators need to agree to play the same or an
active role.
 To prove the charge of conspiracy it is not necessary that intended crime was
committed or not. If committed it may further help prosecution to prove the
charge of conspiracy.
 It is not necessary that all conspirators should agree to the common purpose at the
same time. They may join with other conspirators at any time before the
consummation of the intended objective, and all are equally responsible.
 Prosecution has to produce evidence not only to show that each of
the accused has knowledge of object of conspiracy but also of the
agreement. It is a matter of inference. The agreement could be proven
by necessary implication
 If two or more persons enter into a conspiracy, any act done by any of them
pursuant to the agreement is in contemplation of law, the act of each of them and
they are jointly responsible therefore.
Rule of evidence
 Conspiracy from its very nature is hatched in secrecy and it is,
therefore, extremely rare that direct evidence in proof of
conspiracy can be forthcoming, but like other offences it can
be proved by circumstantial evidence.
 Surrounding circumstances, antecedent and subsequent conduct,
among other factors constitute relevant material.
 In fact, because of the difficulties of 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 any one of them in reference
to their common intention after the same is entertained
becomes, according to the law of evidence relevant for proving
both conspiracy and the offences committed pursuant thereto.
 Mohan v State of Madhya Pradesh 2020: Conspiracy
cannot be assumed from a set of unconnected facts or
from a set of conduct at different places and times
without a reasonable link, the SC observed while
releasing an accused on bail.
Section 10 Indian Evidence Act, 1872
 “Things said or done by a conspirator in reference to common
design where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when
such intention was first entertained by any one of them, is a
relevant fact as against each of the persons believed to so
conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was
a party to it.”

 Hari Om vs State of Uttar Pradesh AIR(1993) SC 294, the

Supreme Court held that it is not necessary that the common
intention to carry out the conspiracy was pre-meditated or
formed prior to the commission of the illegal act.A conspiracy
can be hatched moments prior to the actual offence
 The question you have to ask yourselves is, did they have
the common design, and did they pursue it by common
means, keeping in mind the design being unlawful?