What offences have been committed in the following cases and by whom? (1) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law of committing an offence and having the same intention as A. The act is not committed.

Question: What offences have been committed in the following cases and by whom?

1. A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law of committing an offence and having the same intention as A. The act is not committed.

2. A knows Z, to be behind a bush. B does not know it. An intending to cause or knowing it to be likely to cause Z’s death induces B to fire at the bush. B fires and kills Z.

3. 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’s instigation.

4. A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s possession in good faith, believing it to be A’s property.

5. A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official functions. B accepts the bribe.

6. A instigates B to give false evidence. B, in consequence of the instigation, commits that offence.

7. A in order to avoid pecuniary injury or personal molestation offers a bribe to a public servant. [H.R.J.S. 2010]

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Answer

1. A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence if committed by a person capable by law of committing an offence and having the same intention as A. The act is not committed.

Section 108 of IPC defines an Abettor as 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. An explanation of the provision is as follows:

Explanation 1: The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2: 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.

Explanation 3: It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

In the present case, A has committed the offence of abetment. Here, though the child was not capable by law of committing an offence, A is liable to be punished in the same manner as if the child had been capable by law of committing an offence, and had committed murder, and he is, therefore, subject to the punishment of death.

2. A knows Z, to be behind a bush. B does not know it. An intending to cause or knowing it to be likely to cause Z’s death induces B to fire at the bush. B fires and kills Z.

Section 299 of IPC defines the offence of Culpable Homicide as— Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge, that he is likely by such act to cause death, commits the offence of culpable homicide.

Here in the present case, A knows Z to be behind a bush. B does not know it. A, intending to cause or knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has committed the offence of culpable homicide.

3. 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’s instigation.

Section 108 IPC defines an Abettor as 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. Explanation 3 of this provision provides that: it is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

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’s 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.

4. A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s possession in good faith, believing it to be A’s property.

Section 108, IPC defines Abettor as 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 3 of this provision provides that: it is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A. B takes the property out of Z’s 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.

5. A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official functions. B accepts the bribe.

Section 109 of the code provides a provision for punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It states that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation of the provision states that an act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment

In the present case, A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B’s official functions. B accepts the bribe. So, A has abetted the offence of corruption defined in Section 161.

6. A instigates B to give false evidence. B, in consequence of the instigation, commits that offence.

Section 109 of the code provides a provision for punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It states that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

The explanation states that: An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Therefore, in the present case, A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence and is liable to the same punishment as B.

7. A in order to avoid pecuniary injury or personal molestation offers a bribe to a public servant. [H.R.J.S. 2010]

As per the case Queen Empress v. Maganlal & Motilal (1890) ILR 14 Bom 115, pp 131-32, Where a public officer was bribed in order to avoid pecuniary injury and personal loss, the person who bribed was held to be guilty of abetment of the offence of taking illegal gratification by the public officer, and the pecuniary injury or loss under fear of which the accused committed the offence, was not held to be an excuse for the commission of the offence, as there was no threat of instant death.

Therefore, A has committed the offence of abetment as per section 94 of IPC read with 107.

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