Section 108 IPC: Abettor - Meaning, Explanations and Illustrations
Section 108 of the Indian Penal Code, 1860 defined an abettor. It covered a person who abetted the commission of an offence or an act which would be an offence if committed by a person legally capable of committing it with the same intention or knowledge as the abettor.
Definition of Abettor Under Section 108 IPC
A person abets an offence where the person abets either the commission of an offence or the commission of an act which would be an offence if it were committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
Section 108 must be read with Section 107 IPC, which described the principal modes of abetment: instigation, the specified form of conspiracy, and intentional aid. Section 108 then explained who is treated as an abettor and clarified several situations in which abetment can exist even though the principal actor does not commit, or cannot legally commit, the contemplated offence.
Five Important Explanations to Section 108 IPC
Explanation 1: Illegal Omission
Abetment of an illegal omission may amount to an offence even though the abettor is not personally bound to perform the omitted act.
Explanation 2: Completion Not Necessary
The act abetted need not actually be committed, and the effect required to constitute the offence need not occur, for abetment to exist.
Explanation 3: Capacity of Person Abetted
The person abetted need not be legally capable of committing an offence and need not possess the same guilty intention or knowledge as the abettor, or any guilty intention or knowledge.
Explanation 4: Abetment of Abetment
Because abetment of an offence is itself an offence, abetting such abetment is also an offence.
Explanation 5: Abetment by Conspiracy
The abettor need not personally concert the offence with the ultimate person who commits it. Engagement in the conspiracy in pursuance of which the offence is committed can be sufficient.
Explanation 1: Abetment of an Illegal Omission
The abetment of an illegal omission of an act may amount to an offence even where the abettor is not personally under a legal duty to do that act.
This explanation separates the legal duty of the person whose omission is abetted from the position of the abettor. The abettor need not personally owe the same duty for liability for abetment of the illegal omission to arise.
Explanation 2: The Act Abetted Need Not Be Completed
For abetment, it is not necessary that the act abetted should actually be committed or that the effect required to constitute the offence should be caused.
Illustration (a): A instigates B to murder C, but B refuses. The statutory illustration treats A as guilty of abetting B to commit murder.
Illustration (b): A instigates B to murder D. B stabs D in pursuance of the instigation, but D recovers. A is nevertheless guilty of instigating B to commit murder.
These illustrations demonstrate that the law of abetment did not invariably depend on successful completion of the offence or occurrence of its intended result.
Explanation 3: Person Abetted Need Not Be Capable of Committing the Offence
The person abetted need not be capable by law of committing an offence and need not have the same guilty intention or knowledge as the abettor, or any guilty intention or knowledge at all.
Child or Person of Unsound Mind
The statutory illustrations show that an abettor may remain liable where the person used to carry out the act lacks legal capacity. One illustration describes a person with guilty intention abetting a child or a person of unsound mind to perform an act which would be an offence if committed by a legally capable person with the abettor's intention.
Child Under Seven Causing Death
Another illustration describes A, intending to murder Z, instigating B, a child under seven years of age, to perform an act causing Z's death. Although B is legally incapable of committing the offence, the illustration treats A as liable as if B had been capable and had committed murder.
Act Done by a Person of Unsound Mind
The section also illustrates A instigating B to set fire to a dwelling-house where B, because of unsoundness of mind, cannot understand the nature or wrongfulness of the act. Although B commits no offence in the illustration, A is guilty of abetting the offence.
Person Acting Under a Misconception
A further illustration concerns A intending theft and inducing B to take Z's property by making B believe in good faith that the property belongs to A. Because B lacks dishonest intention, B does not commit theft; nevertheless, the illustration treats A as guilty of abetting theft.
Explanation 4: Abetment of Abetment Is an Offence
Where abetment of an offence is itself an offence, abetment of such abetment is also an offence.
Illustration: A instigates B to instigate C to murder Z. B accordingly instigates C, and C commits the murder in consequence. The illustration treats B as punishable for his offence and A, who instigated B to commit the abetment, as also liable.
Explanation 5: Abetment by Conspiracy Without Direct Concert
For abetment by conspiracy, it is not necessary that the abettor personally concert the offence with the person who ultimately commits it. It is sufficient if the abettor engages in the conspiracy in pursuance of which the offence is committed.
Illustration: A and B plan to poison Z. B explains the plan to C without naming A. C agrees to procure the poison and delivers it to B for use according to the plan. A administers the poison and Z dies. Although A and C did not directly conspire together, the statutory illustration treats C as engaged in the conspiracy in pursuance of which Z was murdered.
Section 107 and Section 108 IPC: Difference
Section 107 IPC primarily defined the ways in which a thing could be abetted. Section 108 explained the meaning and reach of an abettor, including situations involving an illegal omission, non-completion of the act, lack of legal capacity or guilty intention in the person abetted, abetment of abetment and indirect participation in a conspiracy.
Does Abetment Require the Main Offence to Be Committed?
No. Explanation 2 expressly provided that it was not necessary for the act abetted to be committed or for the requisite effect to occur. The applicable punishment, however, depended on the relevant IPC provision and the facts. Section 109 IPC, for example, dealt with a situation where the act abetted was committed in consequence of the abetment and no express provision was made for punishment of that abetment.
Cross-Border Abetment
Section 108A IPC separately addressed abetment in India of an act outside India which would constitute an offence if committed in India.