Abettor. facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act1. 108. 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 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 2. 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. Illustrations. (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. (b) 4 instigates B to murder D. B, in pursuance of the instigation, stabs D. D recovers from the wound. A is guilty of instigating B to commit murder. 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. Illustrations. (a) 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. Here A, whether the act be committed or not, is guilty of abetting an offence. (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, and thereby causes Z's 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. 1 The supplying of necessary food to a person known to be engaged in crime is not per se criminal; secus if food were supplied in order that the criminal might go on a journey to the intended scene of the crime, or conceal himself while waiting for an opportunity to commit it, 2 Mad. 139, Thus if A instigates B, a public servant, to be guilty of an illegal omission of his duty, which omission is punishable by the Code, A is guilty of an offence, M. & M. 86, 87. (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'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. (d) 4, 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. Explanation 4.-The abetment of an offence being an offence, the abetment of such an abetment is also an offence1. Illustration. A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and 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 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. Cagrees 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. C has therefore committed the offence defined in this section, and is liable to the punishment for murder. 109. Whoever abets any offence 2 shall, if the act abetted Abetment is committed in consequence of the abetment, and no express abetted is 1 Where A instigated B to abet A in committing a theft of the property of B's master, and B, with the knowledge and consent of his master and for the purpose of procuring A's VOL. I. K punishment, aided A in removing the 2 Sec. 40, cl. 2. if act in conse committed provision is made by this Code for the punishment of such abetment1, be punished with the punishment provided for the offence. quence and no express provision made for punish ment. Abetment if person abetted Explanation.-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 2. 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. 110. Whoever abets the commission of an offence 5 shall, if the person abetted does the act with a different intention or acts with knowledge from that of the abettor, be punished with the intention punishment provided for the offence which would have been from that committed if the act had been done with the intention or knowledge of the abettor and with no other. different of abettor. Liability of abettor when one act is abetted and dif ferent act done. 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 7. 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. 4, 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. 112. If the act for which the abettor is liable under the last Cumulative punpreceding section is committed in addition to the act abetted, ishment and constitutes a distinct offence 1, the abettor is liable to for act punishment for each of the offences. Illustration. A instigates B to resist by force a distress made by a public servant 2. 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 4 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. abetted and for act done. of abettor 113. When an act is abetted with the intention on the part Liability of the abettor of causing a particular effect, and an act for for effect which the abettor is liable in consequence of the abetment caused by causes a different effect from that intended by the abettor, the different the immediate object of the instigation or conspiracy, the act done by the principal is one which, according to ordinary experience and common sense, the abettor must have foreseen as probable. The determination of this question as to the state of a man's mind at a particular moment must necessarily always be a matter of 1 Sec. 40, cl. 2. act abetted intended. from that abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Abettor present when offence committed. Abetment punishable or trans for life. Illustration.· B, in consequence Z dies in consehurt abetted was A instigates B to cause grievous hurt to Z. of the instigation, causes grievous hurt to Z. quence. Here, if A knew that the grievous likely to cause death, A is liable to be punished with the punishment provided for murder1. 114. Whenever any person who, if absent, would be liable to be punished as an 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 3. 115. Whoever abets the commission of an offence2 punishof offence able with death or transportation for life, shall, if that offence with death be not committed in consequence of the abetment, and no exportation press 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 fine; and if any act for which the abettor is liable in consequence of the abetment, and which 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. 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 im of what the English law calls principals in the second degree.' An illustration is furnished by the case of Lord Audley (3 Howell's St. Trials, 401), who was convicted as a principal of a rape on his own wife, because he aided another to ravish her, 4 Mad. H. C. Rulings, xxxvii. For a conviction under this section, it must be shown that the abetment continued down to the time of the commission of the offence, 10 Bom.497* Supra, p. 25. 5 Sec. 319. |