It is not necessary to the commission of offence of abetment by conspiracy that the abettor should concert the offence.....Explain with decided cases.

Question: It is not necessary to the commission of offence of abetment by conspiracy that the abettor should concert the offence with the person who commits the offence. It is sufficient if he engages in conspiracy in pursuance of which the offence was committed. Explain with decided cases. [JJS 2018]

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Answer

Section 108 in Indian Penal Code, 1860 states that “A person 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.”

Explanation 2 appended to Section 108 in IPC states that to constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

For instance, A instigates B to set fire to a dwelling house, and 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 the law, sets fire to the house in consequence of A’s instigation. Thus, 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.

Emphasis is placed on the landmark judgement on Abatement by Conspiracy in Noor Mohammad Momin v. State of Maharashtra, AIR 1971 SC 885. In this case, Noor Mohammad Mohim was accused under section 109 of the Indian Penal Code for abetting the other three accused for committing the murder of Mohd Nahya for the passage and the right to tap water. The question before the court was whether the accused (abettor) i.e., Noor Mohammad Mohim is liable under Section 109 of IPC for committing the offence of abatement by conspiracy.

The Hon’ble Supreme Court while comparing the provision of Conspiracy and Abatement under Sections 120A and 109 of IPC held that the ambit of Section 120A i.e., criminal conspiracy is wider than the section under abetment. It covers a wider amplitude of illegal commission or omission of an act. Furthermore, it was also held that the presence of the abettor-accused is not always necessary for abetment by conspiracy, and he shall be liable merely for conspiring as an abettor in any case.