Preliminary Crimes INTRODUCTION The law of crimes is mostly concerned with the last proximate act that produces the evil effect. However, there may be cases where the desired end is not achieved, That isto say, the offence contemplated by the accused is not committed, or no injury is caused to the person. Nevertheless, the very involvement of a man in such criminal activities is dangerous to the society by reason of its close connection with the contemplated criminal act. This may lead to many undesirable consequences. The Indian Penal Code 1860 has accordingly made provision for the punishment of persons involved in such preparatory acts in order to prevent the crimes from being committed. This is based on the contention that prevention is better than cure. For instance, if A instigates B to murder C, A is held guilty of abetting B to commit murder and is punished accordingly, even if B refuses to act on A's instigation," Likewise, if A enters into a conspiracy with B to administer a dose of poison to C in order to kill C, then A and B are guilty of the offence of criminal conspiracy." Similarly, if 4, intending to murder Z, fies the gun at Z, A is guiley of an attempt to commit murder.’ Such crimes are called either preliminary crimes or incomplete crimes or inchoate ctimes, because each of these crimes is effected as a means of reaching a desired end.‘ The preliminary crimes may be classified into: (i) abetment, (i) criminal conspiracy and ii) criminal attempt. SS }, See the Indian Penal Code 1860, s 108. 2 Ibid, ss 120A, 1208. . 3 Ibid, s 307. See Law Commission of India’s Forty-second Report, on the Indian Penal Code, 1971, chV, pp 111-139. 4 Re Maragatham AIR 1961 Mad 498, 1961 Cr LJ 781. Scanned with CamScanneABETMENT 107. Abetment of a thing, —A person abets the doing of a thing, who , Abetme! - any person to do that things of ¢ other person OF persons jn act or illegal omission takes to the doing of that thing; op First.—Instigates ¢ or mor ag ith on gages wit pram Joing of that thing, if an and in orde by any act or illegal omission, the cing Secondly. conspiracy for the d in pursuance of that conspitacys Thirdly—Intentionally aids, that thing. Explanation 1.—A person who, concealment of a material fact w! causes of procures, or attempts to cause OF procure, to instigate the doing of that thing. by wilful misrepresentation, or by yj hich he is bound to disclose, volun, a thing to be done, is Illustration ‘A, a public officer is authorized by a warrant from a Court of Justice apprehend Z. B, knowing that fact and also that C is not Z, will represents to A that C is Z, and thereby intentionally causes A to appreh C. Here B abets by instigation the apprehension of C. Explanation 2—Whoever, either prior to or at the time of the commissi of an act, does anything in order to facilitate the commission of that act, thereby facilitates the commission thereof, is said to aid the doing of that COMMENTARY The law relating to the offence of abetment is contained in ss 107-120, ch V of IPC. Abetment is punishable because it leads to the commission of a crime. M: crime would net be committed but for the aid, assistance, encouragement suppor — rom others. Abetment may be committed in any one of the ~(i)_by instigating the commission of an offence, or (ii) by engaging in a conspiracy to commit an offence, or ; i) by intentionally aiding the commission of an offence. r Es not ee for abetment that the act abetted should have been a¢ - In other words, a man may be guilty as an abettor, whether the o 5 Faguna Kant Nath v State of Asam AYR 1959 SC 673, 1959 (2) SCR 1 scanned witn Gamstwoe itted or not, provided th ‘thi scr et sto oe a of a man falls within the definition of ob pane bY Imstigacion tpstigation £0 ae an offence is an act of inci se hi hibit a i igo a thing ee Ea ; aw fn act, in order to be called instigation requires that some active re eae pl yes yy the abettor. Mere acquiescence or silence does sr amount £0 instigation. For example, A says to B, ‘I am going to stab C.’ B a, ‘You may do as you wish and take th relies ‘You mi you take the consequences.’ A bi not be said to have instigated A to stab C, 1 cn ting or urging or prompting a man There might be occasions when the approval of an act leads to an instigation in the particular circumstances of the case. In Queen v Mohit,’ it was held that the persons who followed a woman preparing herself for sati to the pyre, and chanted Fama Rama,’ were guilty of abetment by instigation to lead that woman to commit suicide. The very fact that such persons approved of the woman’s act by pamicipating in the procession gave encouragement to the woman to commit suicide. Instigation may also take place by wilful misrepresentation or by wilful concealment of a material fact which a man is bound to disclose. A, a public officer, js authorised by a warrant from a court of law to arrest Z. B knowing that fact and also that C is not Z, wilfully represents to A that Cis Z, and thereby intentionally caused A to apprehend C. Here, B abets by instigation the arrest of C. B knowing the fact that C is not Z, wilfully misrepresented the public officer to believe a thing which was false.” 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. For instance, A, a servant enters into an agreement with thieves to keep the doors of his master’s house open in the night so that they might commit theft. A, according to the agreed plan, keeps the doors open and the thieves take away his master’s property. A is guilty of abetment by conspiracy for the offence of theft. 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 prohibited by law. 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. A incites B to kill C by uttering the words ‘mara, maro’ (‘beat him, beat him’) and D puts a knife in Bs hand. Here, both A and D are guilty of abetting oe § 3Nwr 316, Indian Penal Code 1860, s 107, illustration to Expln 1. scanned witn Famscannthe offence of murder, one by instigation and the other by aiding 0 come offence. ‘Aid may be given both by an act of commission as well a by an act of it omission, For instance, if a police officer keeps himself away from place ke, that certain persons were likely to be tortured for the purpose of ex confession, he is liable for abetting the offence of extortion’ by an act of omission 108. Abettor.—A person abets an offence, who abets cither the commis of an offence, or the commission of an act which would be an offence committed by a person capable by law of committing an offence with same intention or knowledge as that of the abettor. Explanation 1—The abetment of the illegal omission of an act amount to an offence although the abettor may not himself be bound t9 that act. Explanation 2.—To constitute offence of abetment it is not necessary the act abetted should be committed, or that the effect requisite to consti the offence should be caused.’ Illustrations (a) A instigates B to murder C. B refuses to do so. A is guilty of aberti B to commit murder. (b) A instigates B to murder D. B in pursuance of the instigation st D. D recovers from the wound. A is guilty of instigating B commit murder. Explanation 3.—It is not necessary that the person abetted should capable by law of committing an offence, or that he should have the guilty intention or knowledge as that of the abettor, or any guilty intent or knowledge. Illustrations (a) A, with a guilty intention, abets a child or a lunatic to commit act which would be an offence, if committed by a person capable law of committing an offence, and having the same intention 3 Here A, whether the act be committed or not, is guilty of abettl an offence. 8 Indian Penal Code 1860, s 383. 9 ia Singh v Delhi Administration AIR 1988 SC. 1883, (1988) 3 SCC 609, See ch 10 for * 1e case, scanned witn vam:(b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Zs death. Here, though B was not capable by law of committing an offence. A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death. (c) A instigates B to set fire to a dwelling-house, B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A’ instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment, provided for that offence. (d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’ possession. A induces B to believe that the property belongs to A. B takes the property out of Zs possession, in good faith, believing it to be A’s property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft. Explanation 4—The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Illustrations A instigates B to instigate C to murder Z. B accordingly instigates C to murder Zand C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment. Explanation 5.—It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the Petson who commits it. It is sufficient if he engages in the conspiracy in Pursuance of which the offence is committed. oo Illustrations A concerts with B a plan for poisoning Z. It is agreed that A shall administer u i soe : : © poison. B then explains the plan to C mentioning that a third person is to scanned witn GamscannCFC OO TTT administer the poison, but without mentioning ‘ y ee a prod the poison, and procures and delivers it to i e d fe poses vit used in the manner explained. A administers A s a Z dil consequence. Here, though A and C have not conspire’ coe yet C) been engaged in the conspiracy in pursuance of whic Z i been ru Chas, therefore, committed the offence defined in this section, and is fj to the punishment for murder. ‘Abetment in India of Offences Outside India another explanation of what constitutes an abetr The section states that a person would be guilty of an abetment, if he abers commission of an act outside India, which if done in India, would Constiru offence. A, in India, instigates B, a foreigner in Nepal, to commit murder in Ne Ais guilty of abetting murder, since A would have been liable for abetting mu had the person abetted been in India. Section 108A is, in substance, Punishment for Abetment Section 110 makes an abettor liable for the act abetted in the same manner the same extent, even if the person abetted does the act with a different inten from that of the abettor. The variation between the intention and knowledge of abettor and the person abetted is immaterial so long as the act done is the the act abetted. A, intending to cause a theft to be committed, instigates B to take pro belonging to Z out of Z's possession. A induces B to believe that the pro belongs to A. B takes the property out of Z's possession, in good faith believing i be A% property. Since B was acting under misconception of fact and had dishonest intention, he is not liable for theft, but A is guilty of abetting theft, an liable to the same punishment as if B had committed theft. Liability of Abettor When Different Act is Done An abettor is liable for the act he abets and not for any other act that might been committed by the person employed for the purpose. Sections 111 and provide two exceptions to this general rule, Section 111 extends the liability of an abettor in respect of an act done which not contemplated for by the abettor provided, th s the pra consequence of the act abetted, ce hengeeoncam a P scanned witn val“nner and coche same extent as ifA had instigated the child ro pur the poison into “che food of * However, an unusual consequence, which could not be expected to ensue as a result of an act, cannot be said to be the probable consequence of an act of aberment. For instance, A instigates Bto burn Z’ house. B sets fire to the house and at the same time, B commits theft of property. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft, for theft was a distinct act, ad nota probable consequence of the burning. Section 113 is complimentary to s 111. Section 113 extends the liability of an abettor to a situation where the act done causes a different effect from that intended by the abettor. In such a case, the abettor would be liable for the effect caused in the same manner and to the same extent as if he had abetted the act with the intention Sfeausing that effect, provided he knew that the act was likely to cause that effect. > B in consequence of A’ instigation, causes grievous hurt to Z, who dies. Here, if A > knew that the grievous hurt abetted was likely to cause Z5 death, A is liable to be punished for murder. Section 112 provides for cumulative punishment in cases covered under s 111. ‘An abettor is liable to punishment both for the offence that was abetted, as well as for the offence that was the probable consequence of the abetment, provided, cumulative sentence could be passed in that particular case. For instance, when A, by putting B under fear of instant death, induces B to burn a stock of corn belonging to 7, Ais liable both for abetting B to burn the stock of corn, and also for putting B under fear of death. ‘ Section 114 says thae if an abertor is present at the time when the offence abetted is committed, ‘he shall be deemed to have himself committed such offence.’ In such cases, an abettor is liable to the same punishment as that accorded to a principal offender. The actual presence coupled with the prior abetment amounts to the commission of the offence.”® Quantum of Punishment Sections 109, 115 and 116 state the quantum of penalty to be accorded in different cases of abetment. Section 109 says that in the absence of an express provision for the punishment of an act abetted, the abettor shall be subject to the same punishment as that accorded ‘0 the principal offender if the act abetted was committed, provided there was identity of intention in their acts and the offence was committed in pursuance theteof. For instance, if A and B conspire to poison Z, and al, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer itto Zin A’s absence and thereby causes Z's death, B is guilty of murder and A is Builyy of aberting the offence of murder by conspiracy, and is liable to the Punishment for murder. )~™-_— r ° Mathurala Adi Reddy v State of Hyderabad AIR 1956 SC 177, 1956 Cr 134i. scanned witn Famscanni 260 — offences punishable with degh > exprese provision is made For punishment), he nt which may extend upto seven Years and fing 7 Hupto I years of imprisonment and fin, + iF Section 115 provides thar in cases of imprisonment (and where no may be liable co imprisonme' aerabetted has not taken place, and is caused in pursuance thereof. For example, if A instigates First, if B murders Z, both A and imprisonment for life. Secondly, if the offence is not committ aterm which may extend to seven years ant Thirdly, ifhurt is caused to Z in consequence of the abet ment, A would bei to imprisonment, which may extend to 14 years and fine, ; Section 116 provides for punishment in cases of abetment of the off punishable with imprisonment. In case the offence is not committed ; Consequence of the abstment, and no express provision is made for & punishment of such abetment, the abetior is liable to one-fourth ofthe tem Imprisonment or with fine or with both as is provided for the offence. I abettor is 2 public servant, he would be liable to one-half of the punish : provided for that offence. ~ a Bro murder Z, three possibilities may arise; B would be liable to death senteng ed, A would be liable for imptisontneny: d also to a fine. og Abetting Commission of Offence by Public Section 117 contemplates of station where abetment is made for the commis of aa of peas publ gence, or to any class of persons exceeding ten i number In such = cc, an aber it lible to punishment upto tre 8 imprtonmen, or wih or with both. A affixes in a public place a phot ea es ae a 10 members to meet at a certain time ft Penalty in Case of Abetment by Concealment Sections 118 to 120 provide for en. i f person conceals of assign eee alty in cases of abetment by concealment ‘ 7 commit . want design to commit such offence, gives f; se offence, or knowing the existent ? to have abered the commission of en ah mation of such design, give information ia eeemssion of an offence by concealment. The obligt Provided by the CPC.” Tones) tises Only where there is a legal obligatio® Es In such Provisions of ss 118 and 120 cers the abettor is punished accords - tos 119, IPC. happens to be a public servant #° 11 See the Code of C employed in connection wag 973: 5839 and i facts which connection with the affai and 40 for obligati lic and 2 eit might lad tothe commission of sy Ua8* © inform the cbt suo of ence, scanned witn vai nnder of abel ah nf nal offen : of abetment is acquitted, the person accused for aiding him ® nl ied 10 acquittal—conviction set aside—Supreme Court —1959 a Faguna Kanta Nath v State of Assam dra Nath was carrying paddy to sell in the bazaar when he was stopped one Neetor, Khalilur Rafiman, accompanied by the appellant and two others. af gpecor demanded Rs 200 as bribe but he offered Rs 80 but ultimately paid 9 and was forced to execute a promissory note for a sum of Rs 70 in favour of Ue palant. The appellan was ied and convicted under s 165A of IPC for having pected Khalilur Rahman for taking gratification other than legal remuneration in abet of an official act by the latter under s 161, IPC.” The High Court ined the conviction of the appellant. rei maintal perl Kapur and KN Wanchoo, JJ: indhe present case the person who demanded the illegal gratification .. was Khalilur ‘man who had the authority to do or not to do a particular act and all that the _ppllan is alleged co have done was to receive the money atthe instance of Khalilur Fehman for counting and then paid the money to him. ‘The appellant received the money for and on behalf of Khalilur Rahman and the svidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the appellant. If Khalilur Rahman is acquitted, and, therefore, the tffence under s 161 is held not to have been committed then in this case no question of intentionally aiding, by any act or omission, the commission of the offence by the appellane under s 165A, IPC arises. ‘The appeal is allowed; conviction is set aside. Abettor’s conviction is valid even though principal offender might be acquitted because of lack of evidence—Supreme Court—1958 Gallu Sah v State of Bibar* Faas: A was charged under s 436, IPC for setting fire to a hut, and B under s 436 red with 109, IPC for instigating A to set fie to the hut. A was acquitted because sfifemiyin the evidence agains him, but B conviction was upheld bythe High ur, Tewas held that it is not necessary in every case that the principal offender must convicted of the offence charged before the abettor can be convicted of the abetment of that offence. The conviction of B, under s 436 read with s 109, IPC on Whose instigation the hut was set on fire was not bad merely because the evidence not been considered sufficient for conviction of A. ee 2 3 AR 1959 SC.673, 1959 Supp (2) SCR 1. tions 161-165A of the Indian Penal Code 1860 have been repealed by the Prevention of 4 AR, Act 1988 and incorporated in ss 7-12 of the said Act. 1958 SC 813, 1959 SCR 861. scanned with Gamscanne262 CNN Le _ CRIMINAL CONSPIRACY 120A. Definition of criminal conspiracy. —When two or more persons to do, or cause to be done,— (1) an illegal act, o (2) an act which is not illegal by illegal means, such an agreer, designated a criminal conspiracy: Provided that no agreement except an agreement to commit an o shall amount to a criminal conspiracy unless some act besides the agree is done by one or more parties to such agreement in pursuance thereof, Explanation.—Ic is immaterial whether the illegal act is the ultimate of of such agreement, or is merely incidental to that object. 120B. Punishment of criminal conspiracy—(1) Whoever is 2 party criminal conspiracy to commit an offence punishable with death, impriso for life or rigorous imprisonment for a term of two years or upwards, § where no express provision is made in this Code for the punishment of s conspiracy, be punished in the same manner as if he had abetted such offen (2) Whoever is a party to a criminal conspiracy other than a cri conspiracy to commit an offence punishable as aforesaid, shall be punis with imprisonment of either description for a term: not exceeding six moi or with fine or with both. COMMENTARY Chapter V A is a later addition to the IPC, It was added in 1913 by the In Criminal Law (Amendment): Act 1913, as an emergent piece of legislation in to make criminal conspiracy a substantive offence." The gist of the offence of criminal conspiracy is an agreement to do an illegal or legal act by illegal means. No overt act or consummation of crime is requi bring conspiracy within the purview of the criminal law.” ‘The inference, 0 peta a Ar 15 See Gazette of India, 1913, Pe V, p 44, 16 The Indian Penal Code 1860, s 43 reads: ‘Illegal’, 7 : code 1860, legal’, ‘Legally bound to do'—The wor ‘il applicable to everything which isan offence or which is prohibited by law. o¢ which farnih fora civil action; anda person ssid to be ‘legally bo fever eis legal in i 17 Bimbadbar Pradban v State of Orisa AIR 1956 SC. 1 agreement itself wlohe en nd Provisions ofthe section ic is enough to specify the u the means or measures taken by the members of the ieans, the offence is complete. To inv" inlawful object of the group without ment! Broup of conspirators to achieve that obj scanned witn val7-—_ accent f0 commit an offence can, be drawn from the acts or conduc of the Breer charged of criminal conspiracy. Before the enactment of ch VA, conspiracy, in Indi except conspiracy t0 commit offences like waging or attempting, to wage war against the Government of Ing Conspiracy was punishable only when such act the nced tO an offence and some overt act was done in purstiance thereof.” As seated by Huda: ‘An agreement implies the meeting of two minds with reference to a particular matter, dnd so long as, matters are discussed and views are interchanged, but the plan of action has not been settled by the occurrence of any two or more of the conspirators, the stage of criminal conspiracy would not be considered to have been reached.” was not punishable per se, Iris only when two or more persons agree to carry a plan into effect, that the very agreement becomes punishable in law. A and B made a plan to murder C, letters passed between them as to the movement of C. A and B are liable for criminal Fonspiracy since there was an agreement between A and B to do an ill++egal act, namely, to commit murder. Section 120B prescribes punishment for criminal conspiracy. The section has classified conspiracy into two classes, for punishment. In the first case, where no express provision has been made in the code for the punishment of a conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, the person would be liable to be punished in the same manner as if he had abetted such an offence. In the other cases of conspiracy, the punishment contemplated is imprisonment of either description for a term not exceeding six months, or with fine, or with both. Under s 120B IPC for criminal conspiracy when all except one acquitted, conviction of remaining is illegal—Appeal allowed—Conviction set aside—Supreme Court—1956 Topan Das v State of Bombay” Facts: The appellant along with the other three named accused (acquitted) were charged under 5 120B read with ss-471 and 420, IPC for conspiring to use forged documents and thereby induced the Controller of Imports to grant import licences. The magistrate acquitted all the accused. But the High Court, on State appeal, reversed the order of acquittal of the appellant and convicted him for the substantive offence as well as conspiracy to commit such offences under s 120B, IPC bur maintained acquittal of others. 8 Re Mendekar (1972) Cr LJ 978. | : ') The Indian Penal Code 1860, s 121A, provides punishment for conspiracy to commit offences Punishable by s 123 (waging, or attempting to wage war against Government of India ete). The section was added by the Indian Penal Code (Amendment) Act of 1870. 3h Conspiracy is also punishable asa form of abetment under s 107(2), Indian Penal Code 1860, SS Huda, The Principles of Law of Crimes in British India, TLL, 1902, reprine 1982, pp 106, 98-130; See also RC Nigam, Law of Crimes in India, vol 1, pp 154-177; Essays on the Indian Penal Code, gy Tian Law Institute, 1962, pp 87-93; Annual Survey of Indian Law, no VIII, 1972, pp 63, 64. AIR 1956 SC 33, [1955] 2 SCR 881. scanned witn Gamscann