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 person who commits it. It is sufficient if he engage in the conspiracy in pursuance of which the offence is committed. Illustration. A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. Chas, therefore, committed the offence defined in this section, and is liable to the punishment for murder. 109. Whoever abets any offence shall, if the act Punishment of abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be sion is made for punished with the punishment provided for the offence. abetment if the act abetted is committed in consequence, and where no express provi its punishment. The definition of offence under the amending Act XXVII of 1870 (see s. 40, ante p. 25) now includes offences against special and local laws. It does not, however, include offences against the law of England. Therefore, where the principal offender is only punishable under that law, as, for instance, for an offence against the common law committed on the High Seas, the offence of conspiring in India to commit that offence is not punishable under s. 109. (7 Bomb. CC. 116.) When the principal offender was punishable under a special English Statute, such Statute might perhaps be held to be " a special law," and, if so, the abetment of it in India would be punishable. (See 7 Bomb. C. C. 118.) In the case of Elmstone and others who were indicted for having conspired in Bombay to cause the destruction of a vessel on the High Seas, the indictment being before the passing of Act XXI of 1870, it was held that their crime was not punishable under the Penal Code. Marks the principal offender was convicted under 24 and 25 Vict. c. 97 s. 42. Elmstone was convicted as an accessory before the fact under 9 Geo. IV, c. 74, s. 7, which provides that the offence of the accessory may be inquired of, tried, and determined by any Court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed on the High Seas. (7 Bomb. CC. 130.) Except that the mistake has actually been made, (see 5 R. J. and P. 215.) I should have thought it unnecessary to point out that a person who has been convicted of an offence, as principal, cannot also be punished for abetting it. Explanation.-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Illustrations. (a). 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. A has abetted the offence defined in section 161. (b) 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. (c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here, B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder. Punishment of abetment if the abetted person 110. Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the a different inten- abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor, and with no other. tion from that of the abettor. Sce definition of offence, s. 40, ante p. 25. Liability of abet tor when one act is 111. When an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it; provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Proviso. Illustrations. (a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here, if the child was acting under the influence of A's instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner, and to the same extent, as if he had instigated the child to put the poison into the food of Y. (b) A instigates B to burn Z's house. B sets fire to the house, and at the same time commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning. (c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for murder. See note to s. 34, ante p. 23. Abettor when 112. If the act for which the abettor is liable under the last preceding Section is committed in addition to the act tive punishment abetted, and constitutes a distinct offence, the abettor is liable to liable to cumula for act abetted and for act done. punishment for each of the offences. See definition of offence, s. 40, ante p. 25. Illustration. A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of the offences. 113. When an act is abetted with the intention Liability of abettor for an effect caused by the act abetted different from that intended by the abettor. on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the fact with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Illustration. A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder. 114. Whenever any person who, if absent, would be liable to be punished as an Abettor present committed. when offence is abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. See definition of offence, s. 40, p. 25. In order that a person should be liable as an abettor, when absent, it must be shown that he had aided, instigated, or conspired towards the crime actually perpetrated. (s. 107.) Therefore, where grievous hurt was committed by some prisoners, while others merely stood by, and the evidence showed that the attack was unpremeditated, it was held that those who stood by might be punished as abettors, for aiding in the act under s. 107, c. 3, but could not be punished as principals under s. 114. For if they had been absent they could not have been punished at all. (4 R. C. C. CR. 27.) But quære, for if the prisoners were really aiding, then the act would have been the act of all under s. 34 (ante p. 22), and each would be liable as if he had committed it himself. (See 4 Mad. H. C. Rul. 37.) 115. Abetment of an able with death or transportation for life, if the offence be not committed in consequence of the abetment. Whoever abets the commission of an offence punishable with death or offence punish- transportation for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to a fine; and if any act for which the abettor is liable in consequence of the abetment, and which If an act which causes harm be done in consequence of the abetment. causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. See definition of offence, s. 40, p. 25. Illustration. A instigates B to murder Z. The offence is not committed. If B had murdered Z he would have been subject to the punishment of death or transportation for life. Therefore A is liable to imprisonment for a term which may extend to seven years, and also to a fine; and if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine. Abetment of an offence punish sonment, if the offence be not committed in consequence of the abetment. 116. Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the able with impri- abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence, for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both; and if the abettor or the person abetted is a public servant, If the abettor or the person abetted be a pub lic servant whose duty it is to prevent the offence. whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence or with both. See definition of offence, s. 40, p. 25. Illustrations. (a) 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 refuses to accept the bribe, A is punishable under the Section. (b) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless committed the offence defined in this Section, and is punishable accordingly. |