Q.

4: ‘A’, with the intention of murdering ‘Z’, instigates ‘B’ (a lunatic) to give poison to
‘Z’. ‘B’, however, takes the poison himself and dies. Discuss the liability of ‘A’ if any, with
relevant provisions and decided cases.
Ans. In the Indian Criminal Law, it is not necessary for any person to himself commit a crime.
Instead, he would be liable if he “abets” a third person to do a thing. The term “abet” is defined n
the Corpus Juris Secundrum as: “to aid; to assist or to give aid; to command, to procure, or to
counsel; to countenance; to encourage, counsel, induce or assist, to encourage or to set another
on to commit.” Such an act is called abetment and it is an offence punishable under the Indian
Penal Code.
S. 107 of the IPC lays down that abetment can be done in the following three ways:
1. Instigation: By instigating another person to do that thing.
2. Conspiracy: By engaging with other person(s) in any conspiracy for doing that thing and
committing an act in pursuant to it.
3. Intentional Aiding: By aiding someone to do that thing through an act or omission.
Thus, to constitute the offence of abetment, any one of the above three ways can be opted by a
person.
For the offence of abetment to be fulfilled, both mens rea and actus reus is necessary. On the one
hand, actus reus can be completed by any one of the above given three ways, mens rea can mean
either intention of causing a desired consequence or knowledge that a consequence would
probably be caused. In Bacchan Lal v. The State1, it was held that if a person does not actually
intend to abet any act, but aids someone in commiting an offence, innocently, due to lack of
knowledge of the act being criminal, it would not amount to abetment. 2 Active and intentional
assistance of the abettor is necessary for the offence.
However, in a few cases, mens rea is not necessary. In offences where the statute makes it clear
that the mens rea is not necessary, mens rea is not required for the abetment of that offence as
well. For example, where strict liability exists, or offences like selling of obscene books under S.
292.
To constitute the offence of abetment, the commission of the thing, for the doing of which the
abetment was done, is not necessary. As soon as the person abets another person, the offence is
completed.
1
AIR 1957 All 184
2
Given Problem:
In the given problem, the following things are to be noted:
1. ‘A’ instigated ‘B’ to poison ‘Z’.
2. ‘A’ had the intention to murder ‘Z’.
3. ‘B’ is a lunatic.
4. ‘B’ takes poison himself and die.
Let us evaluate the above noted points one by one.
‘A’ had the intention to murder ‘Z’. Thus, we see that the first ingredient for the offence of
abetment, i.e. mens rea, is present.
With the intention to murder ‘Z’, ‘A’ instigated ‘B’. In Ramabtar Agarwalla v. State3, it was
observed that ‘to instigate’ means ‘to provoke, incite, or urge someone to do something which
the law has prohibited’. We have already discussed that to instigate a person to do a thing, is
called abetment. Thus, when ‘A’ instigated ‘B’ to poison ‘Z’, the offence of Abetment was
completed.
However, we see that ‘B’, instead of poisoning ‘Z’, takes the poison and dies. Thus, ‘B’ does not
murder ‘Z’, the instigation for which was done by ‘A’. So, the ‘thing’, the doing of which was
instigated by ‘A’ does not actually take place. Still, ‘A’ would be liable for the offence of
Abetment. Explanation 2 of S. 108, IPC, clearly states that, “to constitute the offence of abetment
it is not necessary that the act abetted should be committed.” Thus, to constitute the offence of
abetment in the present case, it is not necessary the ‘B’ should have murdered ‘Z’ through
poisoning. The mere act of intentional instigation is enough to constitute the offence.
This has been explained in the Illustration a) under Explanation 2 of S. 108, which is as follows:
“A instigated B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.”
Thus, even when B does not commit murder, A is still guilty of abetment of murder.
Explanation 3 of S. 108 makes it clear that even if the person abetted is incapable by law of
committing an offence(a minor or a lunatic) or even if he does not have the intention or
knowledge to commit the offence, still the abettor would be liable for the abetment. Thus, no
defense can be taken that ‘B’ was a lunatic and hence no offence would have been committed.

3
1983] Cr LJ 122 [Ori]. 
Taking all the above points in consideration, it can be said that ‘A’ would be liable for abetting
the murder of ‘Z’.

However, A would not be liable of abetting ‘B’ to commit suicide, because neither was his
intention to kill ‘B’, nor did he have the knowledge that ‘B’ would kill himself instead of ‘Z’.
His clear intention was to murder ‘Z’, as mentioned. In State of Gujarat v. Pradyuman Raman
Lal Mehta4 , it was held that there should be a proximate causal connection between the
instigation made and the act committed. Also, the instigation must be related to the thing that
was committed and not with the thing that was likely to have been done by the person in
pursuance of instigation.
In the present case, the instigation was given for something else and the person did something
else. Hence, he would only be liable for the offence instigated by him and not the offence that
was actually committed.

Conclusion:
In the given case, ‘A’ is liable for the offence of abetment, under S. 107, for abetting the murder
of ‘Z’. However, he is not liable for the abetment of suicide committed by ‘B’.

4
 [1999] Cr LJ 736 [Guj].