Table of cases

 Jamuna Singh v. State of Bihar

 Mulcahy v. R.
 Mohd. Khalid v. State of West Bengal1
 Davender Pal Singh v. State of NCT of Delhi
 State of Maharashtra v. Somnath Thapa
 State v. Nalini

INTRODUCTION
The very definition and concept of crime varies not 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,
political, 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, that they will not be held responsible for a crime. This belief

1 Mohd. Khalid v. State of West Bengal (2002) 7 S.C.C. 334 (India)

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 country and is the sole authority in respect to the
general conditions of work, the definitions of the specific offences in Code,
and the conditions of exemptions from criminal liability. Some crimes are
cognizable, and some are not.2
Traditional and conventional crimes are rooted in time and customs and 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 being as society rests. These fundamentals are more or
less of a permanent nature and will endure for a long time to come.
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. 3
Russell remarks the crime of conspiracy as, “affords support for any who
advance the proposition that criminal law is an instrument of government.” 4
The IPC 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.5 As 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 lately made
punishable as criminal wrong.6

2 Cr.P.C., (1973), sec. 2 (c)

3 Indian Penal Code, sec. 107
4 Russell on Crimes, vol. 1 (11th Ed.) p. 213
5 State of A.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 67
6 Gour, Hari Singh, Penal Law of India, 11th Edn., Vol. II, 2000, pp. 1101-1135
 ABETMENT
In Indian Penal Code, Abetment is defined under section 107 as:7

Abetment of a thing - A person abets the doing of a thing, who: -

a. Instigates any person to do that thing; or

b. 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
c. Intentionally aids, by any act or illegal omission, the doing of that thing.

In comprehensive way under 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 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.8
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.
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:
(1) There must be an abettor;
(2) He must abet, and
(3) 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.9
7 Indian Penal Code, 1860, sec.107
8 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)
9 Emperor v. Parimal Chatterjee, A.I.R. 1932 Cal 760 (761); (1939) 34 Cr LJ 78 (India). See Nelson’s Indian
Penal Code, 7th Edn., (1981), Vol. I, p. 275
The chapter on abetment contains 15 sections.
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 as to 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 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 take the form of express solicitation or of hints,
insinuation or encouragement or a wilful misrepresentation or wilful
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 in 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. 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.10
Instigation as a form of abetment has generally been one of the essential
considerations in cases involving 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. 11
In Jamuna Singh v. State of Bihar12, 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.

10 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)
11 Wazir Chand v. State of Haryana, A.I.R. 1989 S.C. 378; Ramesh Chandra Mondal v. State, 1991 Cr LJ
2520 Cal (India)
12 Jamuna Singh v. State of Bihar, A.I.R. 1967 S.C. 553 at 554 : 1967 Cri. LJ 541
(India) 13 Ibid
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.13

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.
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
a) The act or omission which constitutes the aid must have been done
intentionally;
b) The aid must have been given either prior to or at the time of the
commission of the offence abetted.

13 Faguna Kama Nath v. State of Assam, A.I.R. 1959 S.C. 673 (India)
 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. 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 v. R. 15 IPC 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.16
120A. Definition of criminal conspiracy - When two or more per-sons
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.

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

(a) that the gist of conspiracy is the agreement, whether or not the
object is attained (b) that the purpose of making such agreements
14 Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-1
15 Ibid
16 State of A.P. v. Cheemalapati Caneswara Rao, A.I.R. 1963 S.C. 1850; (1963) 1 Cri L J (India)
 punishable is to prevent the commission of the substantive offence
before it has even reached the stage of attempt and (c) that it is all part
and parcel of the preservation of the Queen's peace within the realm.17
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:

as a substantive offence;18
as a form of abetment (Chapter V, section 107);21
to wage, attempt or abet waging of war against the Government of India.
(Chapter VI, section 121A);19
involvement in certain offences, such as assembling for purpose of
committing dacoity.

Before passing of the Criminal Law Amendment Act of 1913, a conspiracy to

do an illegal act was punishable only when such 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, 1913 has, however, introduced two rather
drastic changes in the 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.

17 Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v. Owen (1957) 2
WLR 351 at 357
18 Chapter VA, secs. 120A and 120B, I.P.C. added to the Indian Penal Code by Act VIII of
1913 21 Chapter V, sec. 107(2), I.P.C.
19 Added to the I.P.C. by Act XXVII of 1870, sec.4
In Mohd. Khalid v. State of West Bengal20 and Davender Pal Singh v.
State of NCT of Delhi 21 , 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:
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 definitely 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 the 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 each and every person who is 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

1. 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 Thapa22 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

20 Mohd. Khalid v. State of West Bengal (2002) 7 S.C.C. 334 (India)

21 Davendera Pal Singh v. NCT of Delhi (2002) 5 S.C.C. 234 (India)
22 State of Maharashtra v. Somnath Thapa 1996 Cri LJ 2448 : A.I.R. 1996 S.C. 1744
(India) 26 State (C.B.I/S.I.T) v. Nalini (1999)5 S.C.C. 253 (India)
 is necessary. In some cases, intent of 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 an 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.

2. The Supreme Court in State v. Nalini (Rajiv Gandhi Assasination

case)26, dealt at length the 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 conspiracy. Wadhwa, J laid down following broad
principles governing the law of conspiracy:
i. 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.
ii. Acts subsequent to the achieving of the object of conspiracy
may tend to prove that a particular accused was party to the
conspiracy
 iii. Conspiracy is hatched in private or in secrecy. It is rarely
possible to establish a conspiracy by direct evidence.
iv. Conspirators may, for example be enrolled in a chain - A
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.
v. 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 every one who joins in the
agreement
vi. It is not necessary that all conspirators should agree to the
common purpose at the same time.
vii. 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.
viii. It is the unlawful agreement and not its-accomplishment,
which is the gist or essence of the crime of conspiracy
ix. 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.
x. 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 ABETMENT AND
CRIMINAL CONSPIRACY

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

for 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‟.

o But, conspiracy is a process by which an agreement is entered into

between two or more persons for commission of an illegal act or

doing/committing a lawful/ legal act by illegal means. The parties to the
agreement are called „Conspirators‟
o 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,
o But in conspiracy, the mere agreement is enough, if the agreement is to

commit an offence.
o Abetment can be committed by one or more, whereas conspiracy can be

committed by two or more.

o In abetment, sanction of competent authorities is not necessary to

proceed against the abettors, who merely abetted to commit a crime.

o While in conspiracy, sanction of competent authorities is necessary to

proceed against the conspirators who merely agreed to commit a crime.

o Abetment is genus while the conspiracy is species.

o Abetment per se is not a substantive offence whereas criminal

conspiracy is a substantive
o offence by itself and is punishable.
 o Abetment may be committed in various methods/ways viz., instigation,

conspiracy, intentional aid etc., but conspiracy is one of the methods of

abetment.
o 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.
o 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.

6. 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 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, United Kingdom and Canada are the
some of the countries whose Penal Laws are more strengthened by keeping
the 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 the penal law is the
same as that of sociological jurisprudence. This is unfortunate, for the absence
of a distinct sentencing phase and the attention to 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.
7. SUGGESTIONS
Crime rate in India has been considerably increasing from year to year and the
convictions rate hard 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 lose frame work of the legislature in fixing the punishment for several
offences in the Code.
There is more probability to apply the personally favored brain and individual
opinion of the judicial officers while conforming the sentence to the offenders,
due to wide discretion available in the present sentencing jurisprudence. So
that, there are more chances to escape for 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 in the penal
statutes in general and in Indian Penal Code in particular as it is covering
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 age-old phenomenon, a deep-rooted evil, born and developed along with the
development of man and gradually became universal malady afflicting each
and every society.