CHAPTER – II

STATUTORY MEANING, SCOPE AND VARIOUS

DIMENSIONS OF ABETMENT
INTRODUCTION
Since the topic in hand is focussed on Abetment of Suicide, therefore it is
necessary here to know the exact statutory meaning of Abetment and also to analyse that
when an offence amount to Abetment of Suicide. Therefore here in this chapter we will
discuss first of all the meaning of Abetment then we will deeply study the Section 305
and 306 of I.P.C. minutely.

INCHOATE CRIME UNDER I.P.C.

INTRODUCTION
The term crime has not been defined under Indian Penal Code of 1860. But
section 40 of Indian Pedal Code define term offence. It is difficult to define crime
because it is not static, it vary from time to time and from society to society. The thing
which is not a crime today may be a crime tomorrow, For example, earlier Bigamy was
not an offence under Indian Penal Code of 1860 but now it is an offence under section
494 of Indian Penal Code of 1860. A thing may be a crime one society but may not be in
another society for example, adultery is a crime under section 474 of Indian Penal Code
of 1860. But it is no crime in England. Apart from it the new development and
advancement in science and technology also gives rise to new offences which were not in
contemplation of maker of I.P.C. for example cyber law. Many jurists have attempted to
define “Crime” in their own way.
Austin
A wrong which is pursued at the discretion of the injured party or his
representatives is a civil injury, a wrong which is pursued by sovereign or his subordinate
is a crime.
Black Stone
Crime is an act committed or omitted in violation of a public law forbidding or
commanding it. It is a violation of public rights and duties due to the whole community.

50
Sir James Stephen
Crime is an act which is both forbidden by law and revolting to the moral
sentiments of society. (History of Criminal Law).
Prof. Kenny
Crimes are wrongs whose sanction is punitive and is in no way remissible
(capable of being pardoned or remitted) by any private person but is remissible by the
Crown alone if remissible at all.
Huda
Crime is an act that we consider worthy of serious condemnation. (The principles
of law of crimes in British India).
STAGES OF CRIME
There are four stages of crime.
1. Mental Contemplation
2. Preparation
3. Attempt
4 Accomplishment
1. Mental Contemplation: Mental contemplation or intention is the direction of the
conduct towards the object chosen upon considering the motive which suggests
the choice. (James Stephen).
Mental Stage is not punishable because it is not possible to read the mind of a
person and it is absolutely difficult to define contemplation in the mind of the
person.
2. Preparation: It means arranged means and measures necessary for commission
of a crime. Generally it is not punishable because it is impossible to show that
preparation was directed towards wrongful end or was done with an evil intent or
mind. But this is not an absolute rule. Exceptions are there e.g. when offences are
so grave that it would be of utmost importance to stop it at the stage of
preparation itself. That is why it is punishable even before the actual commission
of the crime i.e. at the very preliminary stage i.e. mere preparation. Example of
such offences are Section 233 (making or selling instrument for counterfeiting
coin), 234 (making or selling, instrument for counterfeiting Indian coin), 235

51
 (Possession of instrument or material for the purpose of using the same for
'counterfeiting coin), 399 (making preparation to commit dacoity).
3. Attempt: This is the third stage towards the commission of a criminal act, James
stephen and Prof. Kenny have termed it is “Inchoate Crime”. Chapter XXII
(Section 511) of the Penal Code deals apply to such sections in which punishment
is imprisonment for life or imprisonment for any other term. Where express
provisions are made for attempt of offences then the section would not be
applicable e.g. Sec. 307 (attempt to murder) is a specific offence in itself and
therefore Section 511 would not be applicable in cases relating to attempt to
murder, rather the same would, be dealt as per Sec. 307.
4. Accomplishment: This is the final stage of a crime. Generally most of the crimes
are punishable only after the crime has been committed. Barring a few exceptions
which have been dealt with above (Stage 2 and 3). To take an example if a person
buys a gun with an intent to murder his enemy but keeps the same in his 'pocket.
He would not be guilty at the stage. He would only be culpable after he either
make a direct attempt towards the actual murder or actually commits the murder.
The term “Inchoate Crime” has been used by James Stephen and Prof. Kenny.
Inchoate Crime means incomplete crimes for example preparation, Abetment, conspiracy,
attempt.

HISTORY OF INCHOATE CRIMES

Anticipatory, incipient, incomplete, and preliminary crimes are all other words for
inchoate crimes, acts that imply an inclination to commit a crime even though the crime
is never completed. The word “inchoate” means underdeveloped or unripened. Because
of the social need to prevent crimes before they occur, the common law long ago
established three (3) separate and distinct categories of inchoate crimes - the crimes of
attempt, conspiracy, and solicitation. Over the years, there has been little addition to this
category of crime with the possible exception of 'possession (as in possession of burglar
tools, bomb materials, gun arsenal, etc.) and another, seldom-heard offence based on the
notion of preparation, which has normally not been associated with inchoate crimes.
Traditionally, inchoate crimes have always been considered misdemeanors, but

52
over the years they have been merged into felonies as society has put more power in the
hands of law enforcement and prosecutors to deal with recalcitrant problems such as
organized crime, white collar crime, and drug crime, Traditional rules that exist are: (1) a
person should not be charged with both the inchoate and choate offence, according to the
so-called Doctrine of Merger, with the exception of conspiracy which can be a separate
charge; (2) lesser penalties should ideally be imposed for inchoate crimes, but in many
cases, the penalty should be exactly the same as for the completed offense; (3) inchoate
crimes should have specific intent, spelling out clearly what the mens rea elements are;
and (4) some overt action or substantial step should be required in the direction of
completing the crime. This set of rules is sometimes referred to as the doctrine of
inchoate crimes.
Generally all inchoate crimes is originally incorporated in Indian Penal Code of
1860. For example preparation, Abetment, conspiracy and Attempt. But Criminal
conspiracy was not originally in Indian Penal Code of 1860. It was incorporated in 1913
by way of chapter V A in Indian Penal code of 1860.
The main logic behind making the preparation, Abetment, conspiracy and
Attempt punishable is to prevent the crime at its inception. Precaution is better than cure,
so it is proper to make punishable, the very early stage of a crime.
Originally, the IPC contained only two provisions by which conspiracy was made
punishable. First, the provision of s 107, which made conspiracy by way of abetment
punishable. The other was specific provisions involving offences which included
conspiracies to commit them, as for example, in the definition of a thug (s 310), by way
of belonging to a gang of dacoits (s 400) or thieves (s 401). In the former, an act or illegal
omission had to take place in pursuance of conspiracy before they were liable for
punishment,1 whereas in the latter, membership of a gang of thieves or dacoits was
essential to establish the charge of conspiracy against them. Thus, in the law, as it
originally existed, some overt act by way of furthering the object of the conspiracy on the
part of the accused was a pre-requisite for imposing criminal liability against them.
However, in 1868, the English common law on conspiracy was widened with the

1
For detailed discussion, see the chapter on “Abetment”, and specifically s 107.

53
judgement of the House of Lords in the well-known case of Mulcahy v R,2 in which the
judges ruled:
A conspiracy consists not merely in the intention of two or more but in the
agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.
So long as such a design rests in intention, only it is not indictable. When two agree to
carry in into effect, the very plot is an act in itself, and the act of each of the parties,
promise against promise actus contra actum capable of being enforced in lawful,
punishable if for a criminal object or for the use of criminal means.
The Mulcahy dictum introduced the principle in common law that a mere
agreement of two or more persons to do an unlawful act or a lawful act by unlawful
means was sufficient to attract liability under conspiracy, even if no specific overt act had
been committed. This development of the law in England found echo in the IPC, which
was amended in 1870,3 in which the law of conspiracy was widened by the insertion of s
121A in the IPC, making it an offence to commit any of the offences punishable under s
121 (waging war or attempting to wage war against Government of India). Under this
provision, it was not necessary that any act or omission had actually taken place in
pursuance of the conspiracy. Thus, except in respect of offences specifically mentioned in
s 121A, IPC, conspiracy per se was not made an offence under the IPC.
The position, however, changed with the Indian Criminal Law Amendment Act of
1913.4 It added ch V-A (ss 120A and 120B) to the Penal Code to assimilate- the law of
criminal conspiracy in India with that of England5 and to give extended-effect to the law

2
((1868) LR 3 HL 306. The House of Lords in Mogul Steamship Co v McGregor (1892) AC 25 further
explained that, an agreement which is immoral or against public policy or in restraint of trade, or otherwise
of such a character that courts will not enforce it, is not necessarily a conspiracy. An agreement, to be a
conspiracy, must be to do that which is contrary to or forbidden by law, as to violate a legal right or make
be to do that which is contrary to or forbidden by law, as to violate a legal right or make use of unlawful
methods, such as fraud or violence, or to do what is criminal. Mulcahy was followed in Quinn v Leahem
(1901) AC 495, (1900-03) All ER 1 (HL) and in Rv Brailsford (1905) 2 KB 730.
3
Inserted by the Indian Penal Code (Amendment) Act 1870, s 4. Originally, the IPC made conspiracy
punishable only in two forms, namely, conspiracy by way of abetment (s 107) and conspiracy involved in
certain offences (ss 310, 311, 400; 401 and 402).
4
Act VIII of 1913.
5
However, Han Singh Gour felt that the law of criminal conspiracy introduced by the 1913 Amending Act
is wider than the English law of conspiracy, See, Hari Singh Gour, Penal Law of India, sixth and, Law
Publishers, Allahabad, P. 508. But see, Kehar Singh v State AIR 1988 SC 1883, (1989) Cr LJ I (SC):
Devender Pal Singh v Stage (NCT of Delhi) & Anr (Delhi Administration) (2002) 5 SCC 234, AIR 2002

54
of conspiracy in India. The Statement of Objects and Reasons of the Amending Act
justified thus:
The section of the Indian Penal Code which deal directly with the subject of
conspiracy are those contained in Chapter V and section 121-A of that Code. ...Except in
respect of the particularized in section 121-A, conspiracy per se is not an offence under
Indian Penal Code.
On the other hand by the common law of England, if two or more persons agree
together to do anything contrary to law, or to use unlawful means in carrying out of an
object not otherwise unlawful, the persons who so agree, commit the offence of
conspiracy. In other words, conspiracy in England may be defined as an agreement of
two or more persons to do an unlawful act or to do a lawful act by unlawful means, and
the parties such conspiracy are liable to indictment.
Experience has shown that dangerous conspiracies are entered into in India, which
have for their object aims other that the commission of the offences specified in s 121-A
of the IPC and that the existing law is inadequate to deal with modern conditions. The
present Bill is designed to assimilate the provision of the Indian Penal Code to those of
the England law with the additional safeguard that, in the case of a conspiracy other than
a conspiracy to commit an offence, some overt act is necessary to bring the conspiracy
within the preview of the criminal law. The Bill makes conspiracy a - substantive
offence.....6
Thus, with the inclusion of Sec 120A and 120B, the IPC now encompasses the
law of conspiracy to cover the following:
(i) Conspiracy as a substantive offence (ch VA: ss 120A and 120B);
(ii) Conspiracy as a from the abetment (ch V: s 107 Secondly);

SC 166; Mohd Khalid v State of West Bengal (2002) 7 SCC 334: Nazir Khan & Ors v State of Delhi
(2003) 8 SCC 461.
6
Gazette of India, 1913, Part V, p 44. The fact however that the above changes in the IPC was also brought
about in the context of the growth in anti-British nationalist movement in India and rapidly spreading anti-
colonial struggles in different parts of colonial India. It may be interesting to note here that several penal
laws containing draconian features were passed by the British to repress the growing anti-British freedom
movement. See for example, the Statement of Reasons in passage of the Indian Penal Code (Amendment)
Act 1923 (Act XX of 1923). Tragically, after independence neither framers of the Constitution nor the later
Government through in necessary to repeal these laws. For further criticism see, Shamshul Huda. The
principles of law crimes in British India’, Tagore Law Lectures, 1902, Eastern Book Co, Lucknow, Reprint
1993, ch ‘Criminal Conspiracy’.

55
(iii) Conspiracy to wage, attempt to or abet war against the Government of India (ch
VI: s 121A), and
(iv) Involvement in Specific offences (ch XVI: ss 310 and 311; ch XVII: ss 400, 401
and 402).
INCHOATE CRIMES POSITION IN UK
The Governments policy on the reform of the criminal law on encouraging and
assisting crime is based on the Law Commissions Report on Inchoate Liability for
Assisting and Encouraging crime (Law Com No. 300, CM 6878, 2006).
Part 2 of the Serious Crime Act 2007 creates, at sections 44 to 46, three new
inchoate offences of intentionally encouraging or assisting an offence; encouraging or
assisting an offence believing it will be committed; and encouraging or assisting offences
believing one or more will be committed.
These incitement offences will allow people who assist another to commit an
offence to be prosecuted regardless of whether the assisted or encouraged offence (for
example robbery) is actually committed or attempted.
The Act provides a defence to the offences in Part 2 where the encouragement or
assistance is considered to be reasonable in the circumstances; and an exemption from
liability where the offence encouraged or assisted was created in order to protect a
category of people and the person doing the encouraging or assisting falls into that
category and was the person in respect of whom the offence was or would have been
committed. This would cover for example a child who encourages or assists a sexual
offence of which he or she was to have been the victim.

The offences
The Ministry of Justice Circular No. 2008/04 helpfully covers part 2 of the
Serious Crime Act 2007 providing an overview of the new offences and an explanation as
to the implementation of sections 44 to 67 Of the Act. The Circular should be read in
conjunction with the Act.
These brief notes are to assist Crown Prosecutors and Designated Caseworkers
when, making decisions in respect of Part 2 of the Act to prosecute inchoate offences.
Sections 45 and 46 create new offences of encouraging or assisting an offence or

56
offences believing it, or one or more of them, will be committed. In determining belief in
Sections 45 and 46, prosecutors should refer to the case law on handling stolen goods as
the test is similar.
CPS guidance on the Theft Acts, incorporating the Charging Standard states that:
Belief is something short of knowledge. Thus an accused will believe that the
goods are stolen if : his state of mind is such that, with the knowledge he has, there can
be no other reasonable conclusion except that the property is stolen. If, despite the
circumstances, the accused still refuses to believe what should be obvious, this still
amounts to a belief that the goods are stolen. Suspicion that goods are stolen is not
enough, even when coupled with the fact that an accused shut his eyes to the
circumstances although those matters may be taken- into account by a court when
deciding whether or not an accused had the necessary knowledge or belief. Mere
suspicion alone is however not sufficient.
Section 48(3) ensures that a person can only be found guilty of the offence under
section 46 (encouraging or assisting offences believing that one or more will be
committed) if the offence or offences that the jury find the defendant believed would be
committed are specified in the indictment.
Sections 49(4) and 49(5) set out that a person who encourages and assists
someone else to encourage and assist a third party to carry out an offence can only be
guilty of the offence under section 44, which requires that they intend that the offence be
committed. They cannot be convicted of an offence under either section 45 or 46, which
require only that they believed that the offence would be committed.
Part 2 of the Serious Crime Act 2007 states that an offence is committed contrary
to section 49(7) where a person believes that a criminal offence would be committed if
certain conditions are met. This is consistent with the current law in regard to conspiracy
which allows for qualified agreements to amount to the offence of conspiracy depending
upon the nature of the reservation.
Section 53 restricts the prosecution of offences friable by reason of Schedule 4.
Prosecutors should remember that the Attorney Generals consent must be obtained in
cases in which jurisdiction relies upon the terms of 'Schedule 4. See section 25
Prosecution of Offenders Act 1985. See legal guidance on Consent to Prosecute.

57
 Section 59 abolishes the common law offence of incitement.

INCHOATE CRIME POSITION IN U.S.A

Attempt
1. In the case of an incomplete crime, the person is punishable for an attempt if he,
with the intent to commit the crime, engages in conduct constituting a substantial
step towards the accomplishment of that crime.
2. If the person abandons his effort to commit the crime or otherwise prevents the
accomplishment of the crime, he is not punishable if he completely and
voluntarily has given up his criminal purpose.”
In the United States, there are two ways that you can be charged with a crime.
One way occurs when you actually complete the crime; the other method is when one is
convicted of an inchoate crime, or an incomplete crime. Examples of inchoate crimes
include solicitation, attempt and conspiracy. The most serious inchoate crime is an
attempted crime, which means that the perpetrator tried to commit the crime, but failed.
For example, a drive-by shooting that misses the intended victim is an inchoate crime
called attempted murder. Just because you do not succeed in your plans to commit a
crime does not mean that you cannot be prosecuted.
The second most serious inchoate crime is conspiracy, which is more difficult to
prove. In order to establish conspiracy, the prosecutor must have proof that two or more
people conspired to commit a crime. Correspondence, such as letters, between the two
people would constitute evidence if they discussed their plans to commit a crime in the
letters. One can also be convicted of conspiracy if some step was made toward
committing a crime. For example, obtaining the blueprints of a bank vault could
implicate conspiracy to rob a bank.
And finally, solicitation is the least serious inchoate crime. Solicitation involves
attempting to convince another individual to participate in an illegal activity. Prostitution
is a prime example; if a man walks up to a woman in a bar and offers to pay her $100.00
to have sex with him, he can be found guilty of solicitation. Soliciting drug sales is
another common solicitation offense.
It is not possible to be convicted of both an inchoate crime and an actual crime.

58
For example, if you and-your friend plot to kill an enemy, then actually succeed in the
murder, you can't be charged with both conspiracy and murder. You would be charged
with the more serious of the offenses: murder.
In general, inchoate crimes are-not punished as Severely as for the actual crime,
though often the decision resides within the judge. For example, a judge has the right to-
punish' a man for soliciting a prostitute as severely as if he had actually committed the
crime.
Sometimes, it can be difficult to prosecute-an inchoate crime because in order for
such a charge to, be successful, the prosecutor must be able to prove intent (mens rea).
Intent is the willful desire to commit the crime, and unless there is direct evidence to
show it, the prosecutor might have a hard time For example, if one individual threatens
another, then purchases a handgun the very next day, the act of purchasing the weapon
would be considered intent by some people, but not to others.
If you have been accused of an inchoate crime, your only real help will be found
with an attorney who has experience in these types of cases. The litigation involved with
inchoate crimes is complex, and almost impossible to defend on your own.

MEANING AND SCOPE OF INCHOATE CRIMES

MEANING
As we have already noticed, two elements are always necessary to constitute a
crime, namely, mens rea and actus reus. Where there is only mens rea, there is no crime.
So also, a mere evil intent or design unaccompanied by any overt act (prohibited act),
which is technically called actus reus, in furtherance of such design, is not punishable.
The word actus denotes a deed, a physical result of human conduct. When criminal policy
of a country- regards such a deed as sufficiently harmful, it prohibits it and seeks to
prevent its occurrence by providing a penalty or punishment for its commission. The
deed, so prohibited by law, is known as actus reus, which may be defined to be such
result of human conduct as the law seeks to prevent.
Though actus reus is necessary to constitute a crime, yet there may be a crime
even where the whose of the actus reus that was intoned has not been consummated. For
instance, A shoots at B, but misses the aim, no actus reus is consummated and so there is

59
clearly no murder, but nevertheless a crime has been committed. The law steps in to
punish acts which constitute an early stage in the commission of a crime. But just as only
mens rea is not punished, so neither are the earliest conceivable stages of actus reus. As a
general rule, there is no criminal liability where mens rea. Liability begins only at a stage
when the offender has done some act which not only manifests his mens rea but goes
some way towards carrying it out. These are known as inchoate crimes. 7 Modern authors8
criticism the use of the term “inchoate” a misleading, because the word “inchoate”
connotes something which is not yet completed, and it is, therefore, not accurately used
to denote something, which is itself complete, even though it be a link in the chain of
events leading to some object which is not yet attained. The offence of incitement is fully
performed even though the person incited immediately repudiates the suggested deed. A
conspiracy is committed, although the conspirator has not yet moved to execute the
proposed crime and the performance of a criminal attempt must always have been
reached before the end is gained. In all these instances, it is the ultimate crime which is
inchoate and not the preliminary crime. The position, indeed, being just the same as in the
example of a man who stole a revolver and committed other crimes in 9r0r to effect his
purpose of murder. There the murder was inchoate but theft and other crimes including
the attempt were completed.9 The term “inchoate,” however, has been in use in criminal
law for a very long time and has assumed a technical meaning and, therefore, it has
considered advisable to use it in the title of this chapter.
LITERAL MEANINGS OF INCHOATE CRIMES
inchoate: [in-koe-ate] Adjective
1. In an initial or early stage; incipient. 2. Imperfectly formed or developed: a vague,
inchoate idea.
(Latin inchotus, past participle of inchore, to begin, alteration of incohre) .
- Inchoately (adv.)
- Inchoateness (n.)
Formal: just begun and not yet properly developed

7
Stephen, History of English Criminal Law, Vol. II, p. 229.
8
Kenny (17th Ed.), Edited by J.W.C. Turner, p. 87.
9
Ibid.

60
[Latin incohare to make a beginning]
Business Dictionary:
Inchoate:
Not yet .completed. In inchoate offenses, something remains to be done before the crime
can be accomplished as contemplated.
Real Estate Dictionary:
Inchoate:
Unfinished, begun but not completed. In real estate, this can apply to Dower or
Curtesy rights prior to the death of a spouse. Example: Collins dies, leaving dower rights
inchoate. Her children by a former marriage sue her widower to recover her share of
property he sold. •
Thesaurus:
inchoate:
adjective
Having . no distinct shape: amorphous, formless, shapeless, unformed, unshaped.
* Antonyms:
Definition.; undeveloped, beginning
Antonyms: developed, grown, mature
* Law Encyclopedia:
Inchoate:
Imperfect; partial; unfinished; begun, but not completed; as in a contract not executed by
all the parties. (applicable to United. States law only)

SCOPE OF ABETMENT
A majority of crimes are committed by two or more persons. In most such crimes,
thee sometimes exist persons who by themselves may not participate in the crime, but
through other means, as through instigation, or aid or extending help or cooperation,
enable the others to commit the crime. These persons can be said to facilitate the
commission of the offence or crime. As it is said, just as a man owning properties and
riches needs a sentinel to guard his properties, so does a thief or a criminal need others to

61
assist him in the commission of an offence. This chapter covers the different ways in
which such assistance or abetment may be provided such as to make them liable in
criminal law for punishment.
James Stephen and Prof. Kenny have given the term as "Inchoate crime. Inchoate
crime means incomplete crimes. The instances of inchoate crimes are Accessory,
Facilitation, Compounding a felony, Misprison, Solicitation, Mail Fraud, Stalking etc.
And RICO in U.S.A.
But instance of inchoate crimes under Indian Penal Code of 1860 are Abetment,
conspiracy and Attempt.

ABETMENT
(Indian Penal code 1860, Sections 107 to 120)
INTRODUCTION
A person who does not himself commit a crime, may however command, urge,
encourage, induce, request, or help a third person to bring it about and thereby be guilty
of the offence of abetment. The term ‘abet’ in general usage means to assist, advance,
aid, conduce, help and promote. In Corpus Juris Secundum, the meaning of the word
'abet' has been given as under:
To abet has been defined as meaning to aid; to assist to give aid; to command, to
procure, or to counsel, to countenance, to encourage, counsel, induce, or assist, to
encourage or to set another on to commit.10
Thus, any act of an individual, which aids, helps or assists another to commit a
crime, falls within the off6nce of abetment. The term ‘abetment’, in criminal law, thus
indicates that there is a distinction between the person abetting the commission of an
offence (or abettor) and the perpetrator of the offence or the principal offender.
Parties to a Crime
Chapter V (Of Abetment) of the IPC provides for the law governing the liability
of all those considered in law to have abetted the commission of offences.
At the very outset, it will be useful to compare and contrast briefly the position in
English lay as compared to the Indian position. In English law, persons who themselves

10
Kartar Singh v State of Punjab (1994) Cr LJ 3139 (SC), para 62.

62
are not the main offenders, but who assist or aid them, are known as accessories.11
English law recognizes three types of accessories:
(1) Accessories before the fact;
(2) Accessories at the fact; and
(3) Accessories after the fact.
Further, when there are two or more parties to a crime, then they are classed into:
 Principals in the First Degree, i.e. those who actually commit the crime or offence
with their own hands or through innocent agent;
 Principals in the Second Degree, i.e. Those who are present at the commission of
the crime and extend aid and assistance for its commission;
 Accessories before the fact, i.e., those who through not present in the scene of
occurrence or where the crime in committed, counsel, procure or command
another to commit the crime; and
 Accessories after the fact, i.e. those who knowing that a person has committed an
offence knowingly receive, relieve, comfort, harbour or assist him from escaping
from the clutches of law.
Principals in the first degree are persons who perpetrate a crime directly, i.e.,
through their own hands or through an innocent agent, i.e., a person, like a child below
the age of discretion or a person of unsound mind, who, by reason of either immaturity of
understanding or of impairment of mind, is legaily incompetent to commit a crime.
Tghus, the presence of the principals in the first degree at the occurrence of offences is
not essential.
Accessories at the fact are generally classified as principals of the second degree,
that is as alders and abettors of the principal offender in the commission of the offence,
and who may be actually or constructively present in the scene of occurrence. They do
not actually participate in commission of the crime. But they remain present, actually or
constructively, at the occurrence of the crime and thereby aid, assist, encourage or abet
commission of the crime.

11
For details see, Russell on Crime, AN Cecil Turner (ed), vol 1, 12th edn, Stevens & Sons London, 1964,
p 131, et seq.

63
 The distinction between principals in the first degree and of the second degree is
not so crucial, as both are subjected to same punishment.
However, the IPC does not expressly recognize such a classification of parties to a
crime. Nevertheless: it seems that the classification of parties and the consequential
complicity of parties were there in the mind of the authors of the IPC.
Principals in the second degree and accessories at the fact are thus two
classifications denoting essentially the same type of offenders, and they have been
classed as abettors in this chapter. A distinction is however made as regards the
punishment that is liable to be inflicted on them depending on the nature of participation,
as for example in Sec 144, IPC.
The IPC makes separate provisions to cover the liability of persons who, knowing
well that a person has committed a crime, nevertheless associated with or extend help,
assistance or aid to him to flee from justice,12 as for example in Sec 136, 157, 201, 212,
216, 216A, 310, 411 and 412.
LAW RELATING TO ABETMENT
The chapter on abetment will be examined in two parts. In the first portion, we
shall examine the scope of s 107 providing for abetment and definition of abettor in s
108.In the second part, we shall study the provision proposing liability for abetment in its
various manifestations and results, and the punishments imposed for the various offences.
PART (A)
ABETMENT AND ABETTOR
Section 107 Abetment of a thing.- A Person abet the doing of a thing, who-
First - Instigates any person to do that thing; or
Secondly - Engages with one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. - A person, who by willful misrepresentation, or by willful concealment

12
Under the Indian Penal Code 1860, accessories after the fact are known as ‘harmbourers’. Section 52A
defines the term harbour’ to include ‘supplying of shelter, food, drink, money, cloths, arms, ammonization
or means of conveyance, or assisting of a person by any means, to evade apprehension’.

64
of a material fact which he is bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be done, is said to instigate the doing of that
thing.
Illustration
A, a public officer, is authorized by a warrant from a Court of Justice to
apprehend Z.B., knowing that fact and also that C is not Z, willfully represents to A and
C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigating the
apprehension of C.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.
Principle and Scope of the Provision
A majority of crimes are committed by two or more persons. In most such crimes,
there sometimes exist persons who by themselves may not participate in the crime, but
through other means, as through instigation, or aid or extending help or cooperation,
enable the others to commit the crime. These persons can be said to facilitate the
commission of the offence or crime. As it is said, just as a man owing properties and
riches needs a sentinel to guard his properties, so does a thief or a criminal need others to
assist him in the commission of an offence. This chapter covers the different ways in
which such assistance or abetment may be provided such as to make them liable in
criminal law for punishment.
Section 107 defines abetment of a thing. A person abets the doing of a thing
when; (1) he instigates any person to do that thing; or (2) engages with one or more other
persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or
illegal omission, the doing of that thing. These thing are essential to complete abetment
as a crime.13 The abetment, thus, may be by instigation, conspiracy or intentional aid.
The definition of abetment in the chapter is general in nature. It does not make the
abetment of an ‘offence’ but of a ‘thing’, which may or may not be an offence. This
makes the abettor solely liable in some cases, even though the person abetted may be

13
Malan V State of Maharashtra AIR 1960 Born 393, (1993) Cr LJ 1189 (Born).

65
wholly innocent. Abetment of an offence is provided in s 108. IPC, Abetment implies a
certain degree of involvement of the abettor.
Thus, according to s 107, a person abets the doing of a ting when he:
1. Instigates a person to commit an offence to
2. Engages with one or more persons in a conspiracy to commit an offence; or
3. Intentionally aids a person by any act or illegal omission to commit an offence or
illegally omits the doing of an act which would prevent the commission of the
offence.
IMPORTANT ELEMENT - MENS REA
The essence of abetment is active and intentional assistance of a person to the
perpetrator of an offence. It is therefore essential to keep in mind when considering the
law relating to abetment is the requirement of mens rea as a precondition for liability. As
can be gauged from a plain reading of Sec 107, instigation, engaging with another in a
conspiracy to do a thing or intentionally aiding another are all acts in which the person
abetting knowingly encourages or assists another person in the commission of the
offence. Thus, knowledge about the act and its effect is implicit in the construction of the
provision itself. It is been held in a case14 that in order to convict a person of abetting the
commission of a crime, it is not only necessary to prove that he has taken part in those
steps of the transaction which are innocent, but in some way or other, ‘it is absolutely
necessary to connect him with those steps of the transaction which are criminal.
Similarly, if a person who lends his support does: not known or has no reason to believe
that the act which is aiding or supporting was in itself a criminal act, it cannot be said that
he intentionally aids or facilitates the commission of an offence and that he is an
abettor.15 The Privy Council in Barendra Kumar Ghosh v King Emperor16 held that the
presence of a person at the scene of occurrence does amount to abetment if it is intended
to encourage the commission of the offence. Mere proof that the crime charged could not
have been committed without the interposition of the alleged abettor is not enough.17
The position is, however, different in the case of offence where the statute itself
14
Shrilalv State of
15
AIR 1957 All 184, p 187.
16
AIR 1925 PC 1, p6. For further comments, see ch ‘joint Liability’.
17
Shri Ram v State of Uttar Pradesh AIR 1975 SC 175; State of Rajasthan v Kesa (2002) Cr LJ 432 (Raj).

66
provides that no mens rea is required to make a person liable.
Thus, for an act where the doing of an act itself amounts to an offence, as for
example, in the sale of obscene books or other objects under Sec 292, IPC, or where strict
liability exists in public welfare or social legislations,18 mens rea is not required for
proving abetment. The Supreme. Court while considering the validity of the Terrorist and
Disruptive Activities (Prevention Act) 1987,19concurred with the Bombay High Court
judgment stating that ‘when no mens rea is essential in the substantive offence, the same
is also not necessary in the abetment thereof’.20 However, in the specific context of the
provision of 'abetting' provided in Sec 2 (I)(a) of the TADA, the Supreme Court held that:
..Actual knowledge or reason to believe on the part of the person to be roped in
with the aid of that definition should be read into it... and clause (1) of the definition 2(I)
(a) should be read as meaning ‘the communication or association with any person or class
of persons, with the actual knowledge or having reason to believe that such person or
class of persons is engaged in assisting in any manner terrorist and disruptionists so that
the object and purpose of that clause may not otherwise be defeated and frustrated.21
We shall now consider the individual elements of the provision.

ABETMENT BY INSTIGATION
The first form of abetment is by instigation. The word ‘instigate’ literally means
to provoke, incite, urge on or bring about by persuasion to do anything. It denotes
incitement or urging to do some drastic or unadvisable action to stimulate or incite. A
person is said to instigate another when he urges forward or provokes, incites, urges or
encourages such person to do an act prohibited by law.22
Instigation may be in any form. Law does not require instigation to be in a
particular form or that it should only be in words. The instigation may be by conduct. 23

18
See ch 5: Mens Rea.
19
Popularly referred to as the TADA Act.
20
Kartar singh v State of Punjab (1994) Born 243, in which the Bombay High Court noted Maharashtra v
Abdul Aziz AIR 1962 Born 243, in which the Bombay High Court noted that abetment of the contravention
of the Import and Export (Control) Act 1947 and the contravention of s 5 of the Act were provided for in
the same provision. Hence, both the offences, as also the abetment thereof, was held to be standing on the
same footing and therefore mens rea is not required for abetment.
21
Ibid, para 80.
22
Protima Dutta v State of West Bengal (1977) Cr LJ (NOC) 96 (Cal); Ramabtar Agarwalla v State (1983)
Cr Li 122 (Ori)
23
See Ram Kumar State of Himachal Pradesh AIR 1995 SC 1965, (1995) Cr LJ 3621 (SC).

67
There needs to be a close causal connection between instigation and the act committed.24
A person is said to instigate another to do a thing when he actively suggests, stimulates,
supports, hints or insinuates the commission of the act. 25 A mere association of the
accused with the perpetrator of an offence does not make him an abettor unless it is
proved that he instigated or had intention either in aiding or in commission of the
offence.26 A person who is a silent spectator and rakes no active part in the commission
of offence is not abettor.27 Whether there was instigation, is a question of fact.28
However, it is not necessary in law for the prosecution to prove that the actual operative
cause in the mind of the person abetting was instigation and nothing else, so long as there
was instigation and the offence has. been committed or the offence would have been
committed if the person committing the act had the same knowledge and intention as the
abettor. The instigation must be with reference to the thing that was done and not to the
thing that was likely to have been done by the person who is instigated. It is only if this
condition is fulfilled that a person can be guilty of abetment by instigation.29
A mere word, without necessary intent to incite a person, uttered in quarrel or in a
spur of the: moment or in anger does not constitute instigation.30
Another form of instigation is that of approval of an act. While generally passive
or unresponsive approvals31 may not necessarily be considered to be instigation, there
are specific instances when approval has been held to be instigation, as for example, in
instances of committing sati (suicide), when a widow immolates herself in the funeral
pyre of her husband. When members of the funeral procession of her husband applauded
her resolve by shouting Sati Mata ki Jai, they were held to have instigated her to commit
sari, as their approval of the woman's act by participation in the procession gave her

24
State of Gujarat v Pradyuman Raman Lal Mehta (1999) Cr LI 736 (Gui).
25
Baby John v State AIR 1953 Tr & Coch 251; Nazir Ahmad v Emperor AIR 1927 All 730; Re Lakshmi
Narayan Aiyer AIR 1981 Mad 738.
26
Muthammal v Marufhatla (1981) Cr U 833 (Mad).
27
Trilochan v Karnail AIR 1968 Punj 416, (1968) Cr U 1199.
28
Brij Lal v Prem Chand AIR 1989 SC 1661
29
Ranganayakiv State by Inspector of Police (2004) 12 SCC 521.
30
Ramesh Kumar v State of Chhattisgarh (2001) 9 SCC 618; Sanju @ Sanjay Singh Sengar v State of
Madhya Pradesh AIR 2002 SC 1998, (2002) 5 SCC 371, (2002) Cr U 2796 (SC); .Goura Venkata Ret/dy v
State of Andhra Pradesh (2003) 12 5CC 469; see also Swamy Prahal. addar v State of Madhya Pradesh &
Anr (1995) Supp 3 SCC 438.
31
As for example, when A tells B that he is going to murder C and B tells A that he may do as he wishes,
but that he will be liable for the consequences and A murders C, then merely because B did not actively
dissuade A, he does not become an instigator or abettor by approval.

68
encouragement'ncouragement to commit suicide.32 Another form of instigation is as
provided in expln 1 to s 107, by which a wilful misrepresentation or a wilful concealment
of a material fact which one is bound to disclose thereby causing or procuring a thing to
be done has been held to be instigation. The illustration appended to the explanation
reveals instigation by ‘wilful misrepresentation’. Instigation by ‘wilful concealment’
refers to a case where a person who is .obliged to disclose a fact keeps quite and thereby
renders abets the commission of the act.
Advice per se does not necessarily amount to instigation. Instigation by advice is
however difficult to prove. What has to be shown is that the advice was such that it was
meant actively to suggest, or stimulate the commission of an offence. Or else, general
advice is far too vague an expression to prove allegation.

Instigation in Dowry Death Cases

Instigation as a form of abetment has generally been one of the essential
considerations in cases involving death of young brides or women within seven years
after marriage, as a consequence of dowry harassment. In Protima Dutta v State of West
Bengal,33 a charge under s 306 read with s 34, IPC, was laid against the mother-in-law of
the deceased and her husband of having abetted the commission of suicide by instigating
and inciting her to commit suicide. The evidence revealed many circumstances which
showed that the mother-in-law suggested to the deceased by conduct, language and direct
or indirect expressions to commit suicide. Although, it did not amount to express
solicitation, her cruel conduct towards the deceased over the months made the deceased
suffer mentally. Therefore, the series of conduct amounting to actively suggesting and
stimulating the deceased to commit suicide, it was held, clearly amounted to instigation.
In the context of bride-burning and dowry related deaths, s 306 which provides
for abetment of suicide, is often pressed into service. Here too, abetment is in terms of
promoting, encouraging and thereby instigating suicides. A plethora of cases exists on
this aspect. It will suffice to cite but a few34 in which it has been held that the conduct of
the husband and his relatives in creating such a miserable situation to evolve in which the

32
Tej Singh v State of Rajasthan AIR 1958 Raj 169, pp 171-172,(1 958) Cr U 967 (Raj).
33
(1977) Cr LJ (NOC) 96 (Cal).
34
For example see State of Punjab v lqbal Singh AIR 1991 SC 1532 and Pawan Kumar v State of Haryana
AIR 1998 SC 958.

69
deceased has no other recourse than to commit suicide, in fact, amounts to abetment by
instigation.
State of Pubjab v Iqbal Singh,35 was referred to by the Madhya Pradesh High
Court in ram Kumar v State of Madhya Pradesh,36 which considered the case of suicide
committed by a woman who was married for 20 years during which her husband
continuously treated her cruelly and demanded that she divorce him. The husband had
been convicted by the trail court for abetting the suicide under s 306, IPC, and awarded
him sentence of four years, rigorous imprisonment and imposed a fine of Rs. 1,000. The
high court held that while asking for divorce by itself cannot be called provocation to
commit suicide, it is the cruelty and the overall atmosphere created by cruelties precedent
and antecedent of such demands of divorce, which are material and which had the effect
of leading the deceased person to take poison to end her life. The word ‘instigate’, it was
held, should not be given restricted meaning to actual words spoken, but ought to be
given a wider meaning to commensurate with the ‘ordinary experiences of life’. While
every case has to be examined against the specific circumstances and facts of that case, in
the present case, it was the cruel conduct of the accused husband which provoked his
wife to commit suicide. Hence, he was rightly convicted of abetment to commit suicide
under. Sec 306, IPC, and the sentence was not interfered with.
In K Prema S Rao & Anr v Yadla Sriniuasa Rao & Ors, 37 the Supreme Court held
that a continued and persistent demand, associated with physical torture and harassment,
by a husband of a deceased wife for transfer of a piece of land given to the latter by her
father as stridhan amounts to abetment by willful conduct to commit suicide under Sec
306 of the IPC. It also further ruled that failure to frame a charge under Sec 306 does not
preclude a court from convicting a person there under if facts narrated in the statement of
charges reveal all the necessary and constituting ingredients of Sec 306. A persistent
demand for her consent for re-marriage of a person leading to suicide of a wife and
children is, ruled the Karnataka High Court, enough to convict a person for abetting a

35
For example se State of Pubjab v Iqbal Singh AIR 1991 SC 1532 and Pawan Kumar v State of Haryana
AIR 1998 SC 958.
36
Haryana AIR 1998 SC 958.
37
AIR 2003 SC 11, (2003) 1 SCCC 217, (2003) Cr LJ 69(SC)

70
matrimonial death,38 However, a person cannot be convicted for abetting a suicide
without sufficient proof of his direct involvement in the commission of the crime.39

ABETMENT BY CONSPIRACY
The second leg of the definition of abetment is the abetment by engaging with one
or more persons in a conspiracy to commit an offence. Conspiracy and abetment by
conspiracy are distinct offences. The distinction between an offence of abetment by
conspiracy and the offence of criminal conspiracy, so far as an agreement to commit an
offence is concerned, is that for abetment by conspiracy, mere agreement is not enough.
An act or illegal omission must take place in pursuance of the conspiracy and in order to
the doing of the thing conspired for But in the offence of conspiracy, the very agreement
or plot is an act in itself and is the gist of the offences.40 As the Supreme Court explained,
the distinction between conspiracy referred to in the second clause of Sec 107, and the
provision of conspiracy in Sec 120A is that in the former offence, a mere combination of
persons or existence of agreement between them is not enough.. An act or illegal
omission should have taken place in pursuance of the conspiracy and in order for the
commission of the conspiracy, conspired for in the latter offence, the mere agreement, if
it is one to commit an offence, is sufficient.41 The persons who are initially guilty of
conspiracy to commit an offence become guilty of abetting the offence as soon as an act
or illegal omission takes place in pursuance of the conspiracy. To prove the charge of
abetment by conspiracy the prosecution is required to prove that the abettor had
instigated the doing of a particular thing or engaged with one or more other person or
nelsons in any conspiracy for the doing of that thing or intentionally aided by an act or
illegal omission, doing of that thing.42 Criminal conspiracy is somewhat wider in
amplitude than abetment by conspiracy.43
ABETMENT BY INTENTIONAL AIDING
By virtue of thirdly of Sec 107, a person abets the doing of a ‘thing’ who
38
State of Karnataka v Anni Poojari (2005) Cr LJ 2662 (Kant).
39
Pawan Kumar v State of Haryana AIR 2004 SC 2790, (2004) 12 SCC 257, (2004) Cr LJ 1759 (SC).
40
Pramatha Nath Talukdar v Saroj Ranjan Sarkar AIR 1962 SC 876, (1962) Cr LJ 770 (SC).
41
lbid, para 16. Also see Kedar Singh v State (Delhi Administration) AIR 1988 SC 1883; Ranganayaki v
State by Inspector of police (2004) 12 SCC 521. For further comments on s 120 A, see ch 18: Conspiracy.
42
Saju v State of Kerala AIR 2001 SC 175, (2001) Cr. LJ 102 (SC
43
Bijoyanada Patnaik v Brinnand AIR 1970 Cal 110; Noor Mohammad Momin v State of Maharashta AIR
1971 SC 885, (1971) Cr L.1 793 (SC).

71
‘intentionally aids the doing of that thing. Intentional aid consists of any of the following
three components:
(1) Doing of an act directly assisting the commission of the crime; or
(2) Illegally omitting to do a thing which one is bound to do; or
(3) Doing an act which may facilitate the commission of the crime by-another.
A careful reading of the third clause of Sec 107 along with explanation 2 reveals
that an act, which merely amounts to aiding the commission of an offence, does not
amount to abetting an offence unless that act was done with intent to aid the commission
of the ‘thing’. A person, for example, invites another casually or for a. friendly purpose
and that facilitates the murder of the invitee does not make him an abettor unless the
invitation was extended with intent to facilitate the commission of the murder. It is not
enough that an act on the part of the alleged abettor happens to facilitate the commission
of the crime. Mere knowledge on part of a person that his act would facilitate the
commission of the offence also does not make him an abettor.44 Similarly, mere presence
of a person at the commission of a crime does not amount to 'intentional aid' unless it is
shown that he, through his presence, intended to have the effect. The words 'intentional
aid' used in Sec 107 thirdly warrant active complicity of a person in effecting a crime. A
mere giving aid does not amount to abetment by aid if he does not know that the offence
was being committed or contemplated. Intention to aid the commission of the offence is
the gist of the offence of abetment by aid.45 A person aiding the commission of an
offence under coercion or fear, therefore, does not come within purview of the
provision.46
It is clear from explanation 2 that in order to attract thirdly of Sec 107, the act
must have been done for one cannot be held to have aided the doing of a thing when the
thing has not been done at all! For example, if a servant has kept open the gate of his
master’s house with a view to facilitate the entry of thieves, he cannot be held guilty of

44
Shri Ram v State of Uttar Pradesh AIR 1975 SC 175; Hemanta Kumar v State (1993) Cr. LJ 82 (Cal).
45
Trilok Chand v State of Delhi AIR 1977 SC 666, (1977) Cr LJ 2554 (SC); see also Shri Ram v State of
Uttar Pradesh AIR 1975 SC 175; Ramabatar Aarwalla v State v State of Orissa (1983) Cr LJ 122 (Ori); CS
Varadachari v CS Shanti (1987) Cr LJ 1408 (Mad); Ram Nath v Empeor AIR 1925 All 230.
46
Dalpal Singh v State of Rajasthan AIR 1.969 SC 17, (1969) Cr U 262 (SC): Shri Ram v State of Uttar
Pradesh AIR 1975 SC 175; Ranjitsing Brahmajeeting Sharma v State of Maharashtra & Anr 12005) 5 SCC
294.

72
the offence of probable theft by others. But if the servant, after having opened the door
had invited the thieves to enter the house, he is guilty of abetment in so far as he had
encouraged them by his conduct to Commit theft, So also accomplices standing at a
distance to help thieves in conveying the property stolen are abettors, even if they took no
part in theft and were standing at a distance.

Abetment by illegal Omission

When a person is bound legally to do a thing but deliberately refrains from doing
that, then the person will be liable for abetment by illegal omission. Where the accused, a
husband who did not dissuade his wife from committing suicide when she threatened to
do so and actually committed suicide by setting fire to her cloths, he could not be held
guilty of ‘illegal omission’. 47
To held person guilty of abetment by ‘illegal omission’, it
is required to prove that the accused was not intentionally aided the commission of the
offence by his non-interference but also that his omission led to a breach of legal
obligation. Thus, where a Head Constable of Police, perceiving that his subordinates
were about to torture a prisoner fat extorting confession, purposely left the place so as not
to be a witness of what occurred, it was held that he was guilty of the abetment of the
offence that was committed in his absence. He certainly omitted to do that which he was
bound to do it was illegal for him to go away in order that the crime should be
committec1,48 But a mere presence of a village police officer when the offence of
extortion was committed, it was ruled, would not make him an abettor.49
What is crucial to note is that the illegal omission should be of an act that the person is in
law expected to do. Thus, when the law imposes on a person a duty to discharge, his
illegal omission to act renders him criminally liable. A lorry driver, who allowed a child
to drive, knowing the child did not know driving, resulting in accident, it was held the
driver abetted the offence by illegal omission.50 However, a sheer negligent act though in
contravention of legal rules does not amount to an abetment by ‘illegal omission’.51

47
Ran Kumar v State of Punjab (1983) Cr LI 111 (P&H).
48
Kali Churn Gangooly (1873) 21 WR 11; see also Re Latifkhan (1895) 20 Born 394.
49
Re Gopal Chunder Sirdar (1882) 8 Cal 728.
50
Ramrup v Crown AIR 1951 Cal 36.
51
Subash Chandra Bebarta v State of Orissa (1974) Cr L.J (Ori).

73
Facilitating the Commission of a Crime
A person is held to abet a crime if he, by way of assistance or supply of a thing or
otherwise, helps facilitate the crime committed by another. In the case of Eslan Meah, 52
one Bedoo, who was supervising some labourers and who had got into a quarrel, shouted
in the heat of the moment that he wished he had a fatal weapon to teach a labourer a
lesson. Eshan Meah, who was standing nearby handed over to him a dao with which
Bedoo severely injured the coolie. Eshan Meah was rightly held guilty of abetment of the
offence of causing grievous hurt. The court held that the supervisor had made known his
intentions clearly. Despite this, when another person knowingly handed over a weapon,
he must be presumed to be intentionally doing something in order to facilitate the
commission of the crime, thereby abetting the act.
In Ram Kumar v State of Himachal Pradesh,53 the Supreme Court considered the
case of a constable who dragged a young newly married 19 year old girl and her husband
from the latter's brother’s house. In the police station, the Head Constable took the girl to
a room, repeatedly beat her and committed rape on her, while another constable kept
watch outside holding the hapless husband, who was helplessly hearing the frantic
screams of his wife. The Supreme Court held that the constable, who kept watch on the
husband, by his conduct, had facilitated and thereby abetted rape.

Abetment by Aiding and Corruption Cases

In Central Bureau of Investigation v VC Shukla & Ors, 54 otherwise known as the
Hawala case or the Jam Diaty case involving allegation of large scale bribes paid by an
industrialist family to prominent politicians of different parties, the charges framed
against two politicians, LK Advani and VC Shukla, were quashed by the Delhi High
Court, The CBI filed appeals against the same before the Supreme Court. One of the
issues was the question of abetment of the Jam brothers (who were alleged to have paid
bribe amounts) of the crime. The Supreme Court held that the appropriate provision
covering the offence was the thirdly of Sec 107, and held:
It is thus clear that under the third clause when a person abets by aiding, the act so

52
(1874) 12 WR 527. 79 AIR 1995 SC 1065.
53
AIR 1995 SC 1965.
54
AIR 1998 SC 1406.

74
aided should have been committed in order to make such aiding an offence. In other
words, unlike the first two clauses, the third clause applies to a case where the offence is
committed.55
However, since the Supreme Court had already reached a conclusion that there
was no prima facie cases to prove that Advani and Shukla were parties to the conspiracies
or of having committed an offence under Sec 7 of the Prevention of Corruption Act 1947
(PC Act), the question of the Jams having committed an offence under Sec 12 of that Act
(which is the relevant section providing for abetment of offences under the PC Act) does
not arise.
In another case, again involving corruption cases in special courts against
erstwhile ministers of the Jayalalitha led AJADMK government in Tamil Nadu, some of
their close relatives were charged with abetment of the offences under s 109, JPC, read
with Sec 13(I)(e) of the PC Act. The relatives challenged the charges of abetting their
public servant relatives as being unlawful. However, the trial court, as also the Madras
High Court dismissed their petitions. The Supreme Court in P Naltammal v State (Rep by
Inspector of Police),56 however, elaborately examined the provision of abetment in Sec
107, IPC, along with related provisions in Sec 13, and more specifically Sec 13(1)(e) of
the PC. Act to come to the 'conclusion that non-public servants can indeed abet offences
committed by public servants under Sec 13(1)(e) of the PC Act, and thereafter remanded
the matter for trial to the special court.

ILLUSTRATIVE CASES
When Principal Offender is acquitted in a Case Involving Charge of Abetting by
Aiding
In Trilok Chand Jam v State of Delhi,57 the Supreme Court was considering the
case of a person accused of abetting the principal offender, an inspector in the Delhi
Electricity Supply Undertaking, of receiving a sum of money as bribe for providing
electricity connection to the complainant. However, when the principal offender himself
had been acquitted and exonerated by the trial court of committing the offending act, then

55
Ibid, para 50.
56
AIR 1999 SC 2556.
57
AIR 1977 SC 666; see also, Mahendra Singh Chotelal Bhargad v State of Maharashtra AIR 1988 SC 601.

75
nothing survived of the charge as there was no evidence that the appellant, a lower cadre
employee, had demanded money. It was the particular case of the prosecution that it was
the inspector who had demanded money. Thus, the accusation of the prosecution that the
money was demanded by the appellant labourer for himself (ns the principal offender had
been acquitted) was held to be unsustainable and the person was acquitted. When the
principal offender himself was acquitted, then it was held that the person accused of
aiding could not be convicted.
Effect of Acquittal of Person Committing the Offence on Abettor
In Jamuna Singh v State of Bihar, the Supreme Court considered the issue of
Jamuna Singh, accused of instigating another person to set fire to the hut of another,
thereby committing an offence under Sec 436 read with Sec 109, IPC. However, the but
was set on fire not by the person instigated but another. Further, the Patna High Court had
acquitted Jodha Singh, the person who allegedly set fire to the hut. In considering the
challenge to the continued conviction of the appellant as the main person himself had
been acquitted, the Supreme Court, after a detailed consideration of the case law, held:
It cannot be held in law that a person cannot ever be convicted of abetting a
certain offence when the person alleged to have committed that offence in consequence
of the abetment has been acquitted. The question of the abettors guilt depends on the
nature of the act abetted and the manner in which the abetment was made. The offence of
abetment is complete when the alleged abettor has instigated another or engaged with
another in a conspiracy to commit the offence. It is not necessary for the offence of
abetment that the act abetted must be committed, it is only in the case of a person abetting
an offence by intentionally aiding another to commit that offence that the charge of
abetment against him would be expected to fail when the person alleged to have
committed the offence is acquitted of that offence.58
In this case, the conviction of the accused Jamuna Singh was altered from one
under Sec 436 read with Sec 109, IPC, to offence under Sec 436 read with Sec 115; IPC.
Since the latter offence prescribed a lower sentence, the sentence of eight years’ rigorous
imprisonment for offence under Sec 436 read with Sec 109, IPC, was reduced to four
years.
58
AIR 1967 SC 553, (1967) Cr LJ541 (SC), Paras 6 and 9.

76
 In Madan Raj Bhandari v State of Rajasthan,59 wherein the appellant, who was
charged with having abetted with another in causing miscarriage to a woman, was
convicted even though the woman was acquitted, the Supreme Court, relying upon the
Faguna Kanta, reiterated that ‘a charge of abetment fails ordinarily when the substantive
offence is not established against the principal offender’.
In Sunder v State,60 the Allahabad High Court has ruled that only the charge of
abetment by intentional aid fails when the person alleged to have committed that offence
is acquitted of that offence. Conviction of the alleged abettors accused of abetment by
aiding cannot obviously sustain as it postulates commission of the principal offence. If
the perpetrator commits no offence, the aiding by another person, ostensibly becomes
impossible.61
When Substantive Offence is not Established
When the substantive offence is not established and the principal offender is
acquitted, then generally the abettor cannot be held guilty. In other words, when the
substantive charge fails, then the charge of abetment al fails.
A line of Supreme Court rulings from Faguna Kanta Nath v State of Assam,62
Jamuna Singh v State of Bihar,63 to Madan Raj Bhandari v State of Rajasthan,64 was
considered by the Supreme Court in Haratihan Chakrabarty v Union of India,65 in which
the appellant was convicted for having abetted, with his superior army officer, theft of
250 wheel drums. The officer, who was the principal offender, and eight others who were
accused of abetting him, were acquitted. Therefore, Haradhan Chakrabarty sought
acquittal of the offence of abetment. The court, acquitting the petitioner, held:
...Unless the substantive offence against the principal offender is established, the
question of the abettor being held guilty (under these circumstances) does not arise. The
petitioner is alleged to have entered into a conspiracy along with eight others and abetted
the commission of the offence. All the other alleged abettors are acquitted and the
59
AIR 1970 SC 436.
60
(1995) Cr LI 3481 (All).
61
See Faguna Kanta Nath v State of Assam AIR 1957 SC 673, (1959) .Cr LJ 917 (SC) and Dayaram
Phukan v State of Assam AIR 1967 Assam 66, (1967) Cr I-11270 (Assam).
62
AIR 1959 SC 673, (1959) Cr LJ 917 (SC).
63
AIR 1967 SC 533, (1967) Cr LJ 541 (SC).
64
AIR 1970 SC 436, (1969) 2 SCC 385.
65
AIR 1956 SC 33.

77
principal offender... is also acquitted. And the petitioner alone remains in the picture as
one having abetted the offence by entering into conspiracy. It is axiomatic that there
cannot be a conspiracy of one. In Topan Das v State of Bombay, 66 it was held that two or
more persons must be parties to such an agreement and one person alone can never be
held guilty of criminal conspiracy for the reason that one cannot conspire with oneself.67
Having examined the scope of the provision of abetment in Sec 107, IPC, which
stipulates abetment to commit a thing, we will examine Sec 108 which defines abettors in
relation to ‘offences’ they abet.
The liability of an abettor of a crime is generally co-extensive with the principal a
fender. What constitutes abetment has been comprehensively dealt with in Chapter V of
the Code. If one engages with one or more persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order
to the doing of the thing, abets the doing of that thing. Thus there can be abetment by
conspiracy. Abetment by conspiracy was in the Code from its commencement. At that
time, criminal conspiracy by itself as a substantive offence was not conceived. This
Chapter was introduced in 1913 whereby criminal conspiracy as defined in section 120A
is punishable in the manner provided in section 120B.
So long as a crime generates in the mind, it is not punishable. Thoughts even
criminal in character often involuntary are not crimes. But when the thoughts take the
concrete shape of an agreement to do or caused to be done an illegal act or an act which
is not illegal by illegal means then even if nothing further is done, the agreement is
designated as criminal conspiracy. However, the proviso to section 120A makes it clear
that a bare agreement of the aforementioned -.nature would not amount to an offence of
criminal conspiracy unless-- some act besides the agreement is done by one or more
parties to the agreement in pursuance thereof. It is the next overt step which may
otherwise be of a preparatory nature such as buying arms to implement the criminal
conspiracy that makes it punishable. The act of purchasing arms pursuant to an agreement
to do an illegal act or an act which is not illegal by illegal means shall constitute an
offence. In the earlier days English Common Law frowned upon combination of workers

66
AIR 1956 SC 33.
67
Haradhan Chakrabarty v Union of India AIR 1990 SC 1210, para 9.

78
to achieve the common object. Common Law looked upon combination as criminal in
character. Combination Acts gave it a statutory backing. The view then prevalent was
conspiracy is committed by all who agree to commit a crime, even if they make no move
whatever to carry out their agreements. Society has moved far away from those days.
120A. Definition of criminal conspiracy – When two or more persons agree to do, or
cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
Explanation – It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
1. Amendment – Chapter VA consists of two sections, section 120A and section
120B. This Chapter has been inserted by the Criminal Law Amendment Act, 1913
(Act VIII of 1913), section 3.
2. Definition – Section 120A defines ‘criminal conspiracy’. It states that “When or
more persons agree to do or cause to be done (a) an illegal act; or (b) an act,
which is not illegal by illegal means, such agreement is designated a criminal
conspiracy”.
The above definition has been adopted from the observations of Lord Brampton in
the leading case of Quinn v Leatham68 In that case, the Law-Lord stated:
“If two or more persons agree together to do something contrary to law, or
wrongful or harmful towards another person, or to use unlawful means in the carrying out
of an object not otherwise unlawful, the persons who so agree commit the crime of
conspiracy.”
In Halsbury’s Laws of England,69 it is stated:

68
(1901) AC 495, 528: (1900-03) AlIER 1:17 TLR 749.
69
Halsbury’s Laws of England, (4th edn.), vol. 11 para 58; p. 44.

79
 “Conspiracy consists in the agreement of two or more persons to do an unlawful
act, or to do a lawful act by unlawful means. It is an indictable offence at common law,
the punishment for which is imprisonment or fine or both in the discretion of the court.
The essence of the offence of conspiracy is the fact of combination by agreement.
The agreement may be express or implied, or in part express and in part implied. The
conspiracy arises and the offence is committed as soon as the agreement is made; and the
offence continues to be committed so long as the combination persists, that is until the
conspiratorial agreement is terminated by completion of its performance or by
abandonment or frustration or however it may be. The acrus reus in a conspiracy is the
agreement to execute the illegal conduct, not the execution of it. It is not enough that two
or more persons pursued the same unlawful object at the same time or in the same place;
it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It
is not, however, necessary that each conspirator should have been in communication with
every other.”
3. Scope – This Chapter has introduced into the criminal law, of India a new
offence, namely, the offence of criminal conspiracy. It was introduced by the
Criminal Law Amendment Act, 1913.70 Conspiracy is a substantive offence and
has nothing to do with abetment.' This section provides an extended definition of
criminal conspiracy covering acts which do not amount to abetment by conspiracy
within the meaning of section 107. Where a criminal conspiracy amounts to an
abetment under section 107 it is unnecessary to invoke the provisions of this
section or section 120B, because the Code has made specific provision for the
punishment of such a conspiracy.71 Sections 120A and 120B have brought the law
of conspiracy in India in line with the English law by making the overt act
unessential when the conspiracy is to commit any punishable offence. The most
important ingredient of the offence of conspiracy is the agreement between two or
more persons to do an illegal act. The illegal act may or may not be done in
pursuance of the agreement, but the very agreement is an offence and is
punishable. Reference to sections 120A and 120B would make these aspects clear

70
Act VIII of 1913.
71
Pramatha Nath Talukdar v Saroj Ranjan Sarkar AIR 1962 SC 876: (1862) 1 Cri LI 770 (SC).

80
 beyond doubt. Entering into an agreement by two or more persons to do an illegal
act or legal act by illegal means is the very quintessence of the offence of
conspiracy. ‘Generally a conspiracy is hatched in secrecy and it may be difficult
to adduce direct evidence of the same. The prosecution will often rely on evidence
of acts of various parties to infer that they were done in reference to their common
intention. The prosecution will also more often rely upon circumstantial evidence.
The conspiracy can be undoubtedly proved by such evidence direct or
circumstantial. But the court must enquire whether the two persons are
independently pursuing the same end or they have come together to the pursuit of
the unlawful object. The former does not render them conspirators, but the latter
does. It is, however, essential that the offence of conspiracy required some kind of
physical manifestation of agreement. Express agreement, however, need not be
proved. Nor actual meeting of two persons is necessary. Nor is it necessary to
prove the actual words of communication. The evidence as to transmission of
thoughts sharing the unlawful design may be sufficient. The law does not require
that the act of agreement take any particular form and the fact of agreement may
be communicated by words or conduct. It need not be proved that the parties
actually came together and agreed in terms to pursue the unlawful object or that
there was any express verbal agreement. A tacit understanding between the
conspirators as to what should be done is sufficient. But the relative acts or
conduct of the parties must be conscious and clear to mark their concurrence as to
what should be done. Irrelevant, innocuous, innocent or inadvertent events and
incidents cannot be artfully added together to give an appearance of coherence.72
But it may not be correct to say that a conspiracy cannot be deduced from acts not
in themselves illegal. If in pursuance of a criminal conspiracy the conspirators
commit several offences, then all of them will be liable for the offences even if
some of them had not actively participated in the commission of the offences.73

72
Kedar Singh AIR 1988 SC 1883: 1989 Cri LJ 1 (SC): 1988 SCC (Cri) 711; Harihar Prasad 1972 Cri LJ
707 (SC): 1972 SCC (Cri) 409: (1972) 3 SCC 89; Vijayan AIR 1991 SC 1086: 1999 Cri LJ 1638 (SC):
(1999) 3 SCC 54: 1999 (1) JT 499: (1999) 2 Supreme 76: (1999) 1 crimes 92.
73
State v Krisan Lal Pradhan AIR 1987 SC 773: 1987 Cri U 709 (SC): 1987 SCC (Cri) 270; State v Nalini
AIR 1999 SC 2640: 1999 Cri LJ 3124 (SC): (1999) 5 SCC 253: 1999 (4) JT 106.

81
 According to the definition of criminal conspiracy two or more persons must be
parties to such an agreement and one person alone can never be held guilty of criminal
conspiracy for the simple reason that one cannot conspire with oneself.74 Where the
conspiracy alleged in the charge is one in which only three persons are said to have been
participators and two of them are acquitted, the other is entitled to acquitta1.75 The
offence of criminal conspiracy consists in the very agreement between two or more
persons commit a criminal offence irrespective of the further consideration whether or,
not those offences have actually been committed. The very fact of the conspiracy
constitutes the offence and it is immaterial whether anything has been done in pursuance
of the unlawful agreement.76
Thus, even if there is concurrence in the intention of the accused persons to do
illegal act it is not enough for the purpose of establishing a charge of conspiracy. If two
burglars should decide independently to burgle the same house on the same night, their
independent decisions would not constitute a conspiracy. A conspiracy is not merely
concurrence of wills but a concurrence resulting from agreement between the two.
Agreement is thus the rock bottom of the offence under section 120A.77 Where there is no
meeting of minds there cannot be a conspiracy.78 Conviction cannot be sustained where
the evidence against the accused is flimsy, unreasonable and does not firmly establish his
guilt.79
It is not an ingredient of the offence under this section that all the parties should
agree to do a single illegal act. It may comprise the commission of a number of acts.
Where the accused are charged with having conspired to do three categories of illegal
acts, the mere fact that all of them could not be convicted separately in respect of each of
the offences has no relevancy in considering the question whether offence of conspiracy
has been committed. They can all be held guilty of the offence of conspiracy to do illegal

74
Topandas AIR 1956 SC 23: 1956 Cri U 138 (SC): (1955) 2 SCR 881; Haradhan Chakrabarty v Union of
India AIR 1990 SC 1210: 1990 Cr1 Li 1246 (SC): 1990 SCC (Cri) 280.
75
Bhagat Ran, AIR 1972 SC 1502: 1972 Cr1 Li 909 (SC); Vinayak AIR 1984 SC 1793: (1984) 5 scc 441:
1984 SCC (cr1) 605: Narasinha Rao B H 1995 Cr1 Li 4181 (SC): 1995 AIR SCW 3717.
76
Bimbadhar Prodhan AIR 1956 SC 469: 1956 Cr1 U 831 (SC). See also Hoar Mohammad Mohd. Vusuf
Momin AIR 1971 SC 885: 1971 Cr1 Li 793 (SC): (1970) 1 SCC 696: 1970 SCC (pd.) 274.
77
Nand Kumar Singh AIR 1992 SC 1939: 1992 Cri Li 3587 (SC): 1992 (I) Crimes 647 (SC): 1992 SCC
(Cr1) 538; Jagannath Misra 1974 Cut LT 1263; Daitatrava Narayan Samant 1982 Cr1 LJ 1025 (Born).
78
Union of India v. Prafulla Kumar Samel AIR 1979 SC 366: 1979 Cri LJ 154 (SC): 1979 SCC (Cri) 609.
79
Ramanlal Baldevdas Shah AIR 1992 SC 1916: 1992 CriLJ 3164 (SC): 1092 SCC (Cri) 838.

82
acts, though for individual offences all of them may not be liable. 80 It is not necessary
that each member of the conspiracy must know all the details of the conspiracy.81
In Mohd Hussain Umar Kochra v Dalipsinghji K.S.,82 where the object of the
conspiracy was to smuggle gold from several foreign countries, the Court found that it
was a single general conspiracy and not several separate conspiracies. However, where
different groups of persons co-operate towards their separate ends without any privity
with each other, each combination constitutes a separate conspiracy. The common
intention of the conspirators then is to work for the furtherance of the common design of
his group only.
In the case of assassination of Mr. Rajiv Gandhi by explosion of human bomb,
evidence showed that the accused, thick in conspiracy, bought power battery for
explosion of human bomb, having the knowledge that the said battery was to be used in
the - explosion, his conviction for the offence of conspiracy held sustainable83
4. Object - The Statement of Objects and Reasons stated: “The sections of the
Indian Penal Code which deal directly with the subject of -conspiracy are those
contained in Chapter V and section 121 A of the Code. Under the latter provision
it is an offence to conspire to commit any of the offences punishable by section
121 of the Indian Penal Code or to conspire to deprive the King_ of the
sovereignty of British India or of any part thereof, or to overawe, by means of
criminal force or the show of criminal force, the Government of India or any
Local Government, and to constitute a conspiracy under this section, it is not
necessary that any act or illegal omission should take place in pursuance thereof.
Under section 107 abetment includes the engaging with one or more person or
persons in any conspiracy for the doing of a thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and in order to the doing of that thing.
In other words, except in respect of the offences particularized in section 121A,
conspiracy per se is not an offence under the Indian Penal Code.”

80
Barsay E G Air 1961 SC 1962: (1961) 2 Cri LJ 828 (SC).
81
Dalmia R.K. v Delhi Administration AIR 1962 SC 1821: (1962) 2 Cri LJ 805 (SC): State v Nalini 1999
Cri LJ 3124 (SC): AIR 1999 SC 2640: (1999) 5 SCC 253: 1999 (4) JT 106.
82
AIR 1970 SC 45: 1970 Cri LI 9 (SC): 1970 SCC (Cri) 99.
83
State v Nalini 1999 Cri LJ 3124 (SC).

83
 “On the other hand, by the common law of England if two or more persons agree
together to do anything contrary to taw, or to use unlawful means in the carrying out of-
an object not otherwise unlawful, the persons, who so agree, commit the offence of
conspiracy. In other words, conspiracy in England may be defined as an agreement of
two or more persons to do an unlawful act or to do a lawful act by unlawful means; and
the parties to such a conspiracy are liable to indictment.”
“Experience has shown that dangerous conspiracies are entered into in India
which have for their object aims other than commission of the offence specified in
section 121A of the Indian Penal Code and that the existing law is inadequate to deal with
modem conditions, The present Bill is designed to assimilate the provisions of the Indian
Penal Code to those of the English law with the additional safeguard that in the case of a
conspiracy other than a conspiracy to commit an offence some overt act is necessary to
bring the conspiracy within the purview of the criminal law. The Bill makes criminal
conspiracy a substantive offence, and when such a conspiracy is to commit an offence
punishable with death, transportation or rigorous imprisonment for a term of two years or
upwards, and no express provision is made in the Code, provides a punishment of the
same nature as that which might be awarded for the abetment of such an offence, In all
other cases of criminal conspiracy the punishment contemplated is imprisonment of
either description for a term not exceeding six months or with fine or with both.”84
5. Sections 34 and 120A: Distinction – There is no substantial difference between
conspiracy, as defined in this Section, and acting on a common intention as
contemplated in section 34. While in the former, the gist of the offence is bare
engagement and association to break the law even though the illegal act does not
follow, the gist of the offence under section 34 is the commission of a criminal act
in furtherance of a common intention of all the offenders, which means that there
should be unity of criminal behaviour resulting in something, for which an
individual would be punishable, if it were all done by himself alone. Further
section 120A does not just contain a principle of constructive liability, therefore,
if an accused is found guilty of criminal conspiracy he must be convicted under

84
Gazette of India 1913, Part V, p. 44.

84
 this sectioh.85
6. Sections 107 and 120A: Distinction – Briefly, the distinction between the
offence of abetment under second clause of section 107 of the Code and that of
criminal conspiracy under this section is that in the former offence a mere
combination of persons or an agreement between them is not enough. An act or
illegal omission must take place in pursuance of the conspiracy and in order to the
doing of the thing conspired for; in the latter offence, the mere agreement is
enough if the agreement is to commit an offence.86
7. General conspiracy and separate conspiracies – In order to constitute a single
general conspiracy there must be a common design and a common intention of all
to work in furtherance of the common design. It is not required that a single
agreement should be entered into by all the conspirators at one time. Each
conspirator plays his separate part in one integrated and united effort to achieve
the common purpose. Each one is aware that he has a part to play in a general
conspiracy though he may not know all its secrets or the means by which the
common purpose is to be accomplished. The evil scheme may be promoted by a
few, some may drop out and some may join at a later, stage, 1 but the conspiracy
continues until it is broken up. The conspiracy may develop in successive stages.
There may be a general plan to accomplish the common design by such means as
may from time to time be found expedient. New techniques may be invented and
new means may be devised for advancement of the common plan.87
In fact the steps adopted by one or two of the conspirators without the knowledge
of others will not affect the culpability of others when they are associated with the object
of the conspiracy.88 It is not necessary that a person should be a participant in a
conspiracy from start to finish. Conspirators may appear and disappear from stage to
stage in the course of a conspiracy,89 A conspirator can join the conspiracy at any stage
and similarly leave it at any stage and still will be liable for the acts of the other

85
Noor Mohammad Mohd Yusuf Momin AIR 1971 SC 855: 1971 Cri LJ 793 (SC): (1970) 1 SCC 66: 1970
SCC (Cri) 274; Bimbadhar Pradhan AIR 1956 SC 469: 1956 Cri LJ 831 (SC).
86
Pramatha Nath Talukdar v Saroj Rarijan Sarkar AIR 1962 SC 876: (1962) 1 Cri U 770 (SC).
87
113 Mohd Hussain Umar Kochra v Dalipsinghji KS AIR 1970 SC 45: 1970 Cri Ll 9 (SC): 1970 SCC
(Cri) 99; Kehar Singh AIR 1988 SC 1883 Cri LJ 1 (SC): 1988 SCC (Cri) 711.
88
Yash Pal Mital AIR 1977 SC 2433: 1978 Cri LJ 189 (SC): 1978 SCC (Cri) 5.
89
Singh AIR 1987 SC 149: 1987 Cri U 157 (SC): 1986 SGG (Cri) 511.

85
conspirators. In the instant case,90 when the contract was awarded, the petitioner was one
of the parties to the decision taken by the conspirators. The plea by him that as he retired
from services he cannot be made liable for the subsequent acts of the other conspirators
will not be tenable.91
8. Ingredients – The ingredients of this offence are:–
(1) That there should be an agreement between the persons who are alleged to
conspire; and
(2) That the agreement should be: (i) for doing of an illegal act, or (ii) for doing by
illegal means an act which may not itself be illegal.
The object in view or the methods employed should be illegal as defined in section
43, supra. A distinction is drawn between an agreement ‘to commit an offence, and an
agreement of which either the object or the methods employed are illegal but do not
constitute an offence. In the case of .the former, the criminal conspiracy is completed by the
act of agreement in the case of the latter, there must be some act done by one or more of the
parties to the agreement to effect the object thereof, that is, there must be an overt act.
A mere agreement between two or more persons to do an illegal act, or an act
which is not illegal by illegal means, is of itself a criminal conspiracy. It is one thing to
say that a mere agreement constitutes a conspiracy in certain circumstances, but it is
entirely another thing to say that an agreement having been made it is impossible that the
conspiracy should exist beyond the actual moment of time at which the agreement is
born. It is true that a mere agreement may bring the conspiracy into existence but
nowhere is it said in the Code that after that the offence no longer exists. Criminal
conspiracy may come into existence, and may persist and will persist so long as the
persons constituting the conspiracy remain in agreement and so long as they are acting in
accord, in furtherance of the objects for which they entered into the agreement.92

90
Raghubir Balakrishana Pillai R 1996 Cri LJ 757 (Ker).
91
Chandiram AIR 1926 Sind 174: (1926) 27 Cri LJ 286 (Sind); Lennart Schussler v Director of
Enforcement AIR 1970 SC 549: 1970 Cri LJ 707 (SC): 1970 (1) SCC 152; Yash pal Mital AIR
1977 SC 2433: 1978 Cri LJ 189 (SC): 1978 SCC (Cri) 5; Saju AIR 2001 SC 175: (2001) 1 SCC 378.
92
Chandiram AIR 1926 Sind 174: (1926) 27 Cri LJ 286 (Sind); Lennart Schussler v Director of
Enforcement AIR 1970 SC 549: 1970 Cii Li 707 (SC): 1970 (1) SCC 152; Yash Pal Mimi AIR 1977 SC
2433: 1978 Cr1 Li 189 (SC): 1978 SCC (Cri) 5; Saju MR 2001 SC 175: (2001) 1 SCC 378. See also Kehar
Singh, supra.

86
 Privacy and secrecy are more characteristic of a conspiracy than a loud discussion
in an elevated place open to public view in the garden of a stranger. The prosecution in
order to prove conspiracy alleged that the conspirators discussed their plan before the
witness. The witness was a stranger to the conspirators. The Supreme Court93 found the
above evidence weak as it considered it improbable that the conspirators would throw all
caution to the wind and discuss their conspiracy plan before an utter stranger. The court
also discounted the High Court’s theory that this was done by the accused under the
influence of liquor. Liquor, court said, ‘is no lie detector”.94
9. ‘Agree’ – The gist of the offence of conspiracy is an agreement to break the law.
A formal agreement of the parties concerned is not essential to the formation of a
criminal conspiracy. The parties to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has not been done.95 A
conspiracy consists not merely in the intention of two or more, but in the
agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful
means. So long as such a design rests in intention only it is not indictable. Mere
evidence of association is not sufficient to lead to the inference of conspiracy.96
Just because certain persons hold communist beliefs, or the bare fact that they
were present with persons who were parties to the conspiracy, cannot constitute a
valid foundation for a conviction on a charge of conspiracy. 97 When two or more
agree to carry it into effect, the very plot is an act in itself, and the act of each of
the parties, promise against promise, actus contra actum, becomes capable of
being enforced, if lawful, punishable if for a criminal object or for the use of
criminal means.98 Where there is no conspiracy or meeting of minds between the
parties to circulate false currency but a police officer engineers the crime by an
illegitimate trap no offence of criminal conspiracy is committed by the accused.99

93
Darshan Singh AIR 1983 SC 554: 1983 Cr1 U 985 (SC); 1983 SCC (Cr1) 523.
94
Ibid at 557 (AIR).
95
Barsay E G AIR 1961 SC 1762, 1778; (1961) 2 Cr1 Li 828 (SC); Bhagwan Swarup AIR 1965 SC 682:
(1965) 1 Cri U 608 (SC); Bimbadhar Pradhan AIR 1956 SC 469: 1956 On 1.-1831 (SC).
96
Mulcahy (1868) LR 3 HL 306, 317; Kehar Singh AIR 1988 SC 1883: 1989 Cr1 LI I (SC): 1988 SCC
(Cr1) 711; Mohd Hussain Umar Kochra v Dalipsinghji KS AIR 1970 SC 45, 51: 1970 Cr1 U 9 (SC): 1970
SCC (Cr1) 99.
97
Mahabir Prasad Akela 1987 Cri U 1545 (Pat).
98
Gulab Singh AIR 1916 All 141: 17 Cri Li 431.
99
Karim Kunju 1971 K.LT 672: 1972 Cri U 292 (Ker).

87
 The gist of offence of conspiracy lies not in doing the act or effecting the purpose
for which the conspiracy is formed, nor in attempting to do any of the acts, nor in
inducing others to do them but in the forming of the scheme or agreement
between me parties. An advocate identified one who had prepared a forged
document before the Registrar. The advocate was charged of criminal conspiracy.
It was found that there was no meeting of the minds and hence acquittal was
ordered.100
10. ‘Illegal act’ – Where a person was aware that a large amount of jewellery had
been handed over by a lady to another person in order that he might deposit it for
safe custody in a bank and that that person had pawned that jewellery and kept the
proceeds but did not inform the lady whose property had been misappropriated,
but told her deliberate untruths upon the subject. It was held that both those men
were engaged in a criminal conspiracy.101
To establish a charge of conspiracy knowledge about indulgence in either an
illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful
use being made of the goods or services in question may be inferred from the knowledge
itself. This apart, the prosecution has not to establish that a particular unlawful use was
intended, so long as the goods or services in question could not be put to any lawful use.
When the ultimate offence consists of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so long as it is known
that the collaborator would put the goods or services to an unlawful use.102
If a foreign national is found staying in the country without valid passport and
visa and his movements from one place to another with another accused Al are
established and from the premises occupied by Al, large quantities of arms and
ammunitions, etc. are found, it would be prudent and reasonable to draw inference of
criminal conspiracy.103
11. Unintended aid to do an illegal act – If on the facts known to the alleged

100
Gutta Sriramulu Naidu (1963)2 Cri Li 546 (AP) : (1963) 1 Andh LT 57.
101
Attar Chand 1986 Cri Li 1034.
102
State v Som Nath Thapa AIR 1996 SC 1744 : 1966 Cri Li 2448 (SC)
103
Lal Singh (2001) 3 5CC 221 : 2001 (1) Crimes, 1 15 (SC) : 2001 Cri LJ 978 (SC)

88
 conspirator what he agreed to do was lawful, he is not rendered artificially guilty
by the existence of other facts not known to him giving a different and criminal
quality to the act agreed upon. Therefore, where an auditor was approached by the
members of the Governing Council of a College to issue an expenditure certificate
with regard to the funds expended on the college building on the basis of the
utilisation certificate issued by the Assistant Engineer Public Works Department,
and there was nothing in the bills invoices to arouse his suspicion, he cannot be
deemed to be a party to the conspiracy of the governing council members of
misappropriating the college building funds.104
The accused, a lawyer, identified certain persons as claimants in land acquisition
compensation proceedings and believing their statements to be true agreed to represent
them in such proceedings. The claimants were discovered to make fraudulent claims and
the accused was charged of criminal Conspiracy. However, no evidence was produced to
show that there was a meeting between the lawyer and his clients and proceedings for
criminal conspiracy were quashed.105
12. Illegal acts not amounting to offence – Where there is an agreement to do
something illegal it is immaterial whether the agreements to do any of the acts in
furtherance of the commission of the offence do not strictly amount to an offence
the agreement must be viewed as a whole. A, the managing director of a
company, entered into an agreement with a foreign company for supply of raw
materials. Under the agreement the company was required to over-invoice the
material supplied and to credit the difference in A’s personal account. A also
entered into an agreement with one C for opening his account in a foreign bank
and to deposit in that account the money credited by the foreign company to A's
personal account. C was also required to secretly intimate A about the deposits in
his account. All these agreements were entered into outside India before the
Foreign Exchange Regulation Act or Rule 132B of the Defence of India Rules
came into force. The acquisition of foreign exchange was not an offence at the
time of the agreement between A and C. The question was whether both the

104
Konappa N v Delhi Special Police Establishment (1974) 2 Kar Li 333.
105
Hirelal Jam v Delhi Administration AIR 1972 SC 2598: 1973 Cri 1..J 47 (SC): 1973 SCC (Cri) 309.

89
 accused could be charged for criminal conspiracy under the Penal Code. The
majority answered the question in the affirmative.106
13. ‘Illegal means’ – An agreement to effects something which in itself may be
indifferent or even lawful by unlawful means amounts to conspiracy.107 A woman
who, believing herself to be with child, but not being with child, conspires with
other persons to administer drugs to herself, or to use instruments on herself, with
intent to procure abortion; is liable to be convicted of conspiracy to procure
abortion.108
14. ‘Unless some act besides the agreement is done by one or more parties to
such agreement’ – When the agreement is not for commission of an offence an
overt act in pursuance of the conspiracy is necessary. The law does not take notice
of the intention or the state of mind of the offender and there must be some overt
act to give expression to the intention. Overt acts constituting a conspiracy are
acts either: (1) signifying agreement, or (2) acts preparatory to the offence, and
(3) acts constituting the offence itself. The overt act in a case of conspiracy
consists in the agreement of the parties to do an unlawful act or to do a lawful act
by unlawful means.109
15. Proof – In considering the question of criminal conspiracy it is not always
possible to give affirmative evidence about the date of the formation of the
conspiracy, about the persons who took part in the formation of the conspiracy,
about the object which the conspirators set before themselves as the object of the
conspiracy and about the matter in which the object of the conspiracy was to be
carried out. All this is necessarily a matter of inference. The essence of criminal
conspiracy is an agreement to do an illegal act. Such an agreement can be proved
either by direct evidence or by circumstantial evidence or by both. It is not
necessary that there should be express proof of the agreement, far from the acts

106
Lennart Schussler v Director of Enforcement AIR 1970 Sc 549: 1970 Cr1 Li 707 (SC): 1970 (1) SCC
152.
107
O Connell (1844) 11 CL & F 155, 233.
108
Whitchurch (1890) 24 QBD 420.
109
Lenart v Director of Enforcement AIR 1970 SC 549: 1970 Cri Li 707 (SC); Mohamad Usman
Mohammad Hussain Moniyar AIR 1981 SC 1062: 1981 Cri L4 588 (SC): 1981 SCC (Cr1) 477; Kehar
Singh, supra.

90
 and conduct of the parties the agreement Can be inferred.110 But mere suspicion is
not enough to frame charges against the accused.111
16. Circumstantial evidence – Direct evidence to prove conspiracy is rarely
available Therefore circumstances proved before, during and after occurrence
have to be considered to decide on the complicity of the accused112
17. Circumstantial evidence – Nature of : In those cases of conspiracy where the
prosecution relies only on circumstantial evidence to establish a criminal-
agreement-between the accused persons it is necessary for the prosecution to
prove and establish such circumstances which would only lead to the conclusion
of a criminal conspiracy.113° The facts established must 'rule out any likelihood of
innocence of the accused.114 If there are circumstances compatible with the
innocence of the accused persons the prosecution shall be unsuccessful. It is true
that it is difficult to support. the charge of conspiracy with direct evidence in
every case but if the prosecution relies, upon circumstantial evidence, a clear link
has to be established and the chain has to be completed, otherwise it would indeed
be hazardous to accept a part of the link as a complete one and on the basis of
such incomplete evidence, the allegation of conspiracy cannot be accepted.115
18. Circumstances showing conspiracy– In Mohamad Usman Mohammad Hussain
Maniyar116 the Supreme Court said that for the offence of criminal conspiracy the
prosecution need not necessarily prove that the perpetrators expressly agreed to
do or cause to be done an illegal act. Such an agreement may be proved by
necessary implication. Thus, where the accused were selling explosive substances
without a valid licence for a pretty long time it can be inferred that they agreed to
do and or cause to be done the said illegal act for without such an agreement the

110
Ram Narain AIR 1973 SC 1188: 1973 On U 914 (SC): 1973 SCC (Cr1) 545; Bhagwan Swarup AIR
1965 SC 682: (1965) 1 Cr1 U 608 (SC); Shivnarayan Lo.xminarayan Joshi AIR 1980 SC 439: 1980 Cr1 LI
388 (SC): (1980) 2 SCC 465: (1980) SCC (Cri) 493; Leela Das (Smt,) v Union of India 1999 Cri U 1807
(Cal).
111
Gangaram Kondiba Ingle 2000 Cri U 336 (Born).
112
Ibid. See also Baburao 1971 SCC (CO ) 680: (1971) 3 SCC 432; Han Charan AIR 1964 SC 1184:
(1964)6 SCR 623.
113
Hari Ram 1982 Cr1 U 294 (HP); Dadasaheb Bapusaheb Najk 1982 Cr1 LI 856 (Dom).
114
Jayaram A AIR 1995 SC 2128: '1995 CO Li 3663 (SC): 1995 SCC (Cri) 864.
115
Param Hans Yadav 1987 Cr1 U 789 (SC); Leela Das v Union of India 1999 Cr1 U 1807 (Cal).
116
AIR 1981 SC 1062: 1981 Cri U 588 (SC): 1981 SCC (Cri) 477.

91
 act would not be done for such a long time. The accused company evaded excise
duty, fraudulently and dishonestly and the accused who were responsible for the
day-to-day working of the said company, conspired together and aided and
abetted the commission of the offence by the accused company.117 Where the
victim, who was in dire need of finances was approached by the accused for
helping him by providing the required finance from another accused financier and
after several meetings he was given the requisite cash which on verification was
found to be counterfeit currency, each one of the accused would be held guilty of
the offence of conspiracy.118 Where several consumers lost their eye sight in a
liquor tragedy, all the partners of the firm who had participated in the
management, raising funds, receiving methyl alcohol, mixing it with arrack and
distribution were held to have conspired for the offence.119 Where 16 applicants
did not receive loans in the manner alleged by the accused and all the lower courts
took the view that the offence of conspiracy was made out, the Supreme Court did
not interfere with the concurrent findings.120
Where in execution of a well-laid plan by railway employees, under the cover of a
fabricated letter, a number of wagons were allotted in the name of a fake firm by
violating established rules and procedure. Thus, the railway administration was subjected
to deception as its employees made delivery of the, goods to the person who produced the
railway receipts. The fraudulent acts clearly amounted to cheating even if the railway did
not suffer any loss of freight.1121
Where a large quantity of opium is found from a truck, it can only be within the
special knowledge of the occupants, more so when one bag is found from beneath the
driver's seat. In the absence of any plausible explanation, the accused can be said to have
knowingly possessed the opium and were rightly convicted under section 120B read with
section 9 of the Opium Act.122 A conspiracy to cheat the Central Excise Department of
excise duty payable on non-duty tobacco was deduced when the accused prepared false

117
Mulki Suryanarayaiirao Rau v Gurushai# Gangadhar Kamble 1989 Cri LJ 175 (Born).
118
Nellai Ganesan 1991 Cr1 U 2157 (Mad).
119
Augustine M P 1991 Cii U NOC 25 (Ker).
120
Shambhu Singh 1994 Cri LJ 15S4 (SC).
121
Jagdish Prasad Snivastava 1990 Cri LJ 366 (Pat).
122
Amreek Singh 1990 (3) Crimes 249 (Raj).

92
documents showing that tobacco was despatched by R and warehoused in B’s warehouse
when infact no tobacco was despatched and B had no warehouse. In order to show
warehousing in B's warehouse the signatures of the Central Excise Inspector at the
receiving destination were forged and although the tobacco was not warehoused in B's
store he swore a false affidavit to that effect before in a notary public. 123 Where the
General Manager of a company allowed the concealment of shortage in funds to continue
throughout his regime, he was not permitted to contend that he was unaware of the
conspiracy and therefore innocent.124
During communal riots, appellant, a bus driver, stopped the bus near a mob of
Muslim boys, armed with weapons with a view to facilitate an attack on the passengers
and inspite of the request of the passengers he did not start the bus. Instead he got down
from it, went up to the mob, had discussion with the persons of that mob and thereafter
the mob came near the bus and assaulted the passengers: The court held that an
agreement between the accused and that unlawful assembly was established, therefore,
his conviction under section 120B was upheld.125
19. Circumstances not showing conspiracy – Criminal conspiracy cannot be
inferred from literature and correspondence which advocate anti-social activities
unless such writings establish a link between accused and accused so as to involve
the entire group in a charge of criminal conspiracy.
Conspiracy cannot be assumed from a set of unconnected facts or from a set of
conduct exhibited by different accused persons at different places and times without a
reasonable link. Suspicion, however strong, cannot take the place of legal proof. The
mere circumstance that the three accused appellants were caught together for ticketless
travelling, presumably so that this circumstance might serve as a plea of alibi, cannot lead
to the inference that they had hatched the conspiracy to commit multiple murders.126
Mere association, however, strong cannot make the members, members of
conspiracy without more. In case of assassination of former Prime Minister of India,

123
Mohammad Riaz 1980 Cri LJ 369 (All).
124
Shivnarayan Laxminarayan Joshi AIR 1980 SC 439: 1980 Cri LJ 388 (SC): (1980) 2 SCC 465: (1980)
SCC (Cr1) 493. 52
125
Mehbub.Sa,nsuddin Malik (1996) 10 SCC 480, 496: 1996 Cri LJ 4129\(SC): 1996 AIR SCW 3577.
126
Stare v Moti Ram AIR 1990 SC 1709: 1990 Cr1 U 1710 (SC): 1990 SCC (Cri) 585.

93
Rajiv Gandhi, wireless message showing that only main accused, conspirators were
knowing about the object of conspiracy. Co-accused in his confession said that he had
strong suspicion that the target of the accused persons was Mr. Rajiv Gandhi. The court
held that it would not make him a member of conspiracy.., Mere fact that the main
accused sent message about arrest of accused persons held not sufficient to draw an
inference conspiracy against them.127 Where the accused persons went to a club for fun
and frolic where the accused suddenly fired at the deceased on her refusal to serve–
drinks, the co 'accused were unaware that the accused was carrying a pistol, even though
licensed, there absence of criminal conspiracy. The subsequent conduct of the accused
persons escaping together or thereafter meeting to plan retrieval of the car or the weapon
offence or the harboring of the accused is not suggestive of any conspiracy to murder.128
Mere meeting would by itself not be sufficient to infer the existence of a criminal
conspiracy. There was no suggestion, much less legal evidence to the effect that both the
accused were so intimate which would have compelled Accused 1 to agree to be
conspirator for the killing of the deceased at the instance of the appellant. In the absence
of the existence of circumstances suggesting the hatching of criminal conspiracy,
appellant could not have been convicted with the aid of section 120B. Motive by itself
cannot be a proof of conspiracy.129
20 Inadequacy of defence explanation, effect of – A charge of conspiracy was
framed against a government servant and a medical store owner for preparing
false cash memos of medicines and obtaining reimbursement from the
government. The chemist admitted the preparation of the false memos but
displayed ignorance of the purpose, for which they were used. The explanation
offered by the chemist was disbelieved. However, it was clarified that the
improbability of the defence explanation will not establish the prosecution case
and the accused will be entitled to the benefit of the principle that where
conviction is based on circumstantial evidence it must be of such nature as to
exclude any other inference except the guilt of the accused. 130 It is submitted that

127
State v Nalini 1999 Cri. LJ 3124 (SC): AIR 1999 SC 2640: (1999) 5 SCC 253: 1999 (4) JT 106.
128
State v Siddarth Vashisth 2001 Cri LJ 2404 (Del).
129
Saju AIR 200! SC 175: (2001) I SCC 378.
130
Bhagwandas Keshwani AIR 1974 SC 898: 1974 Cri LJ 751 (SC): 1974 SCC (Cri) 647.

94
 the case requires reconsideration.
21. Failure to correct wrongful acts – Where the complainant reported of demands
of illegal gratification made by the surveyors of an insurance company to its
senior officers and officers refused to intervene in the matter and advised the
complainant to settle his affairs as a worldly wise businessman, it was held that
failure to act may represent bad management but it did not amount to criminal
conspiracy.131
22. No evidence to show agreement – The meeting of minds or the element of
agreement is the essence of the offence punishable under this section.132 The mere
fact that the assailants were the employees of the applicant, they came out from
his office along with his brother with the weapons of assault (they always had free
access to the office), the applicant was not in his office, all these facts taken at
their face value cannot lead to the inference beyond doubt that there was a
meeting of minds between the applicant and the assailants.133 Where there is no
evidence to show that the three, accused had conspired together with the fourth
accused in order to get a ruq qua, forged from him to gain entry into the
deceased’s house, the fourth accused cannot be indicted for criminal
conspiracy.134 Where the accused was charged with cheating by entering into a
conspiracy with the co accused on the ground that insurance policies were got
issued on the basis of false and forged documents and received, premium
commission and. bonus in respect of those policies, the accused was entitled to be
acquitted when the forging of documents was done by the co-accused and there
was no acceptable evidence that the co-accused did that with the knowledge and
consent of the accused.135 Conviction of conspiracy for unauthorized disposal of
stocks and falsification of records in order to pay lower excise duty was quashed
when the charge was not borne out by the records. The Court was hesitant to infer

131
Modi K P v Sinha B K 1978 Bih UR 158.
132
State (Delhi Administration) v Shukia V C AIR 1980 SC 1382: 1980 Cri Li 965 (SC): 1980 SCC (Cr')
561. . lbu
133
Prabhakar N Shetty 1990 (1) Crimes 192 (B )m).
134
State v Sukhbasi AIR 1985 SC 1224.
135
Nand Kumar Singh AIR 1992 SC 1939 : 1932 Cri LJ 3587 (SC. 1992 (1) Crimes 647 (SC): 1992 SCC
(Cr1) 538.

95
 conspiracy when one of the conspirators derived no benefit from the alleged
conspiracy.136 When no satisfactory evidence was produced to connect the
accused with the destruction of the film “Kissa Kursi Ka” criminal conspiracy
could not be said to be proved.137
The essence of conspiracy is that there should be an agreement between persons
to do one or the other of the acts described in the section. Where the accused was charged
of conspiring to approve the purchase of TV, sets at hiked prices but his only act was his
signature on the file subsequent to the direction of the Chief Minister, the act of using the
signature without anything more is not a material to frame a charge against him.138
SCOPE OF CONSPIRACY
(i) Conspiracy is a substantive offence. The offence of criminal conspiracy exists in
the very agreement between two or more persons to commit a criminal offence,
irrespective of the further consideration whether or not the offence has actually
been committed.139
(ii) ‘Agreement’ is the rock bottom of criminal conspiracy. Its essence is the unlawful
combination: It consists of the scheme or adjustment between two or more
persons which may be express or implied or partly express and partly implied.
‘Agreement’ is sine qua non for constituting the offence of criminal conspiracy. It
is complete when the combination is framed to commit an offence.140 It is
immaterial whether anything has been done in pursuance of the unlawful
agreement.141
(iii) To constitute a, conspiracy meeting of minds of two or more persons for doing an
illegal act or an act' by illegal means is the first and primary condition and it is not
necessary that all, the conspirators must known each and every detail of
conspirators takes active part in the commission of each and every conspiratorial

136
Qm Prakash AIR 1979 SC 1266:1980 SCC (Cri) 101.
137
State (Delhi Administration) v Shukia V C AIR 1980 SC 1382:1980 Cri LJ 965 (SC) : 1980 SCC (Cr1)
561.
138
Nedunchezhiran v R 2000 Cri LJ 986 (Mad).
139
Bimbadhar Pradhan v State of Orissa AIR 1956 SC 469, (1956) Cr LJ 831 (SC).
140
Devender Pal Singh v State (NCT of Delhi) & Anr (2002) 6 SCC 234, AIR 2002 SC 1661: Mohd Khalid
v State of West Bengal (2002)' 7 SOC 334.
141
Bimbadhar Pradhan v State of Orissa AIR 1956 SC 469, (1956) Cr Li 831 (SC), see also Devender Pal
Singh v State (NCT of Delhi) (2002) 5 SCC 234, AIR 2002 SC 1661.

96
 acts. In reaching the stage of meeting of minds, two or more persons share
information about doing an act by illegal means. This is the first stage where each
is said to have knowledge of a plan for committing an illegal act or a legal act by
illegal mean. Among those, sharing the information, some or all may form an
intention to do an illegal act or a legal act by illegal means. Those who do form
the requisite intention would be parties to the agreements and would be
conspirators but those who drop out cannot be roped in as collaborators on the
basis of mere knowledge unless they commit acts remissions from which a guilty
common intention can be inferred. It is not necessary that all the conspirators
should participate from the inception to the end of the conspirators should
participate from the inception to the end of the conspiracy; some may join the
conspiracy after the time when such intention was first entertained by any one of
them and some others may quit from the conspiracy. All of them cannot but be
treated as conspirators. Where in pursuance of the agreement the conspirators
commit offences individually or adopt illegal means to do a legal act which has a
nexus to the object of conspiracy, all of them will be liable for such offences even
if some of them have not actively participated in the commission of those
offences.142 Conspirators may appear and disappear from stage to stage in course
of conspiracy.143
(iv) If there are more than two persons involved in a conspiracy, and if it is shown that
the object of the conspiracy has been achieved, then even if some of the other
accused had been acquitted, the remaining accused (even if it is one) could be
convicted under s 12013, IPC.144
(v) The gist of the offence of criminal conspiracy is to break the law. There is no
condition imposed in the provision that all the parties should agree to do a single
illegal act. The conspiracy may comprise the commission of a number of illegal
acts. It is sufficient if the agreement to commit the illegal acts is established. In
such a case, all of them will be held liable for the offence of conspiracy; although

142
State of Tamil Nadu v Nalini & Ors AIR 1999 SC 2640, (1999) Cr LI 3124 (SC); KR Puroshbothaman v
State of Kerala 2005 Indlaw SC 011.
143
Rayhuvir Singh v State of Bihar AIR 1987 SC 149, (1987) Cr LJ 157 (SC).
144
Biribadhar Pradhan v State of Orissa AIR 1956 SC 469, (1955) Cr II 831 (SC).

97
 for individual offences, all of them may not be held liable.145
(vi) The essence of the agreement to break the law is the agreement to do an illegal
act. This implies that to establish the charge of conspiracy, knowledge about the
involvement or indulgence in either an illegal act or a legal act by illegal means is
necessary.146
(vii) The essentials of a single conspiracy require that there must be a common design
and a common intention of all to work in furtherance of the common design. A
single conspiracy is separate and distinct from separate acts committed by
different people without a common purpose. The nature of the role played by each
participant member in such a conspiracy is succinctly stated by the Supreme
Court in Mohd Hussain Umar Kachra v KS Dalip Singhji.147 It said:
The agreement is the gist of the offence. in order to constitute a single general
conspiracy there must be a common design and a common intention of all to work
in furtherance of the common design. Each conspirator plays his separate part in
one integrated and united effort to achieve the common purpose. Each one is
aware that he has a part to play in a general conspiracy though he may not know
all its secrets or the means by which the common purpose is to be accomplished.
The evil scheme may be promoted by a few, some may drop out and some may
join at a later stage, but the conspiracy continues till it is broken up. The
conspiracy may develop in successive stages. There may be a general plan to
accomplish the common design by such means as may from time to time be found
expedient. New techniques may be invented and new means may be devised for
advancement of the common plan. A general conspiracy must be distinguished
from a number of separate conspiracies having a similar, general purpose. Where
different groups of persons cooperate towards their separate ends without any
privities with each other, each combination constitutes a separate conspiracy. The
common intention of the Conspirators is then to work for the furtherance of the
common design of his group only.148

145
BC Barsay v State of Bombay AIR 1961 S 1762, (1961) 2 Cr LJ 828 (SO).
146
State of Maharashtra v Som Nath Thapa AIR 1996 SC 1744.
147
AIR 1970 SC 45.
148
AIR 1970 SC 45, p 51.

98
(viii) When an offence is committed by different persons acting in the same manner but
independently, it cannot be said that there was necessarily a conspiracy. Similarity
of methods followed by them does not establish a planned operation with
Common intention or consensus, hence, no conspiracy can be said to be
established. In any case, since the offences could have been committed by
different persons acting in same manner, but independently, it cannot be said that
there necessarily was a conspiracy.149
(ix) It is not necessary for all the conspirators to know each other. They may adopt
many devices to achieve the common goal of the conspiracy and there may be
division of performances in the chain of actions with one object to achieve the
real end of which every collaborator must be aware of and in which each one of
them must be interested. There may be unity of object or purpose, but there may
be plurality of means, sometimes even unknown to one another, amongst the
conspirators. The only relevant factor is that all means adopted and illegal acts
done must be and purported to be in furtherance of the object of the conspiracy,
even though there may be sometimes misfire or overshooting by some of the
conspirators. Even if some steps are resorted to by some of the conspirators
without the knowledge of the others, it will not affect the culpability of those
others when they are associated with the objects of the conspiracy.150
(x) When the ultimate offence consists of a chain of actions, it is nor necessary for the
prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator has done or would do, so
long as it is known that the collarbone would put the goods or service to an
unlawful use.151 It is also not necessary that each conspirator to either know all
the details of the scheme or participate at every stage of the conspired act.152
(xi) Every conspirator is liable for all the acts of the coconspirators, if they are

149
Fakhruddin v State Madhya Pradesh AIR 1967 SC 1326, (1967) Cr Id 1197 (SC).
150
Yash Pal v State of Punjab AIR 1977 SC 2433, (1977) 4 SCC 540; see also RK Dalmia is Delhj
Administration AIR 1962 SC 1821; Mohd Hussain Umar Kochra v Dalip Singh AIR 1970 SC 45; Nazir
KJ, and Ors v State of Delhi (2003) 8SCC 461.
151
State of Maharashtra v Som Nath Thapa AIR 1996 SC 1744.
152
Ajay Agarwal v Union of India AIR 1993 SC 1637, (1993) Cr LJ 2516; State of Himachal Pradesh v
Kishanlal Pardhan AIR 1987 SC 773, (1987) Cr LJ 709 (SC).

99
 towards attaining the goals of the conspiracy, even if some of them had not
actively participated in the commission of the offences.153
(xii) Where the agreement between certain persons is a conspiracy to do or continue to
do something which is illegal, it is immaterial whether the agreement to do any of
the acts in furtherance of the commission of the offence do not strictly amount to
an offence. The entire agreement must be viewed as a whole and it has to be
ascertained as to what in fact conspirators intended to do or the object they
wanted to achieve. Consequently, even if the acts done by a conspirator in
furtherance of the criminal conspiracy do not strictly amount to an offence he is
liable to be convicted under s 120B.
(xiii) Conspiracy is a continuing offence and it continues to subsist and committed,
whenever one of the conspirators does an act or aseries of acts. So long as its
performance continues, it is continuing offence till it is executed or rescinded or
frustrated by choice or necessity. And during its subsistence, whenever any one of
the conspirators does an act or series of acts, he would be guilty.

JUDICIAL APPROACH ON INCHOATE CRIMES

ABETMENT
Where one person instigates another to the commission of an offence by means of
a letter sent through the post, the offence of abetment by instigations completed as soon
as the contents of such letter become known to the addressee. If the letter never reaches
him the act is only an attempt to abet. (Queen Emp Vs. Sheo Dial Mal, (1894) 16 All.
389).
The Supreme Court has held in the case of Jamuna Singh Vs. State, AIR 1967 SC
533; that it cannot be the law that a person can never be convicted of abetting an offence
when the person alleged to have committed that offence in pursuance of that abetment by
intentional aiding is acquitted of that offence.
Where the husband and the mother-in-law of the deceased by direct and indirect
words and conduct treated her cruelly, and actively suggested suicide, as a result of which
she committed suicide, they were held guilty of abetment by instigation to commit

153
State of Himachal Pradesh v Kishanlal Pardhan AIR 1987 SC 773, (1987) Cr LJ 709.

100
suicide (Protima Duttta Vs. State, 1977 Cr LJ NOC 96 (Cal).
The relations between a married couple were strained and the husband was
residing away from the martial home. The wife believed that the husband’s employer was
to be, blamed for this. She tried to persuade her husband to return home and threatened
that if he would not do so she would burn herself to death. The husband did not respond
and asked her to do her best. When she lighted the match on herself in front of her
husband and his employer, neither tried to stop her as a result of which she died of burns.
It was held that the two could not be held liable for abetment by instigation to commit
suicide as there was no instigation on their part and there was no law under which they
were obliged to put off the fire. The court remarked that the law could not be different;
otherwise innocent persons would have to be liable if they failed to comply with
unreasonable demands of others (Raj Kumar Vs. State 1983 Cr LJ 706).
On the other hand, where the husband used to demand money from his wife
almost every day when they used to quarrel also, and on the fateful day the wife reacted
by saying that she would prefer death to life in this world to which the husband retorted
that she would provide him quicker relief if she died the very same day immediately after
which she set herself on fire and died, the supreme Court held the husband guilty of
abetment by instigation to commit suicide (Brijlal Vs. Prem chand, AIR 1989 SC 1661).
In Pandala Venkatasami, (1881)3 Mad. 4 it was held that if a person prepares, in
conjunction with others a copy of an intended false document and buys; a stamped paper
for the purpose of writing such false document and also asks for information as to a fact
to be inserted in such false document, he would be guilty for abetment of forgery because
these are the acts done to facilitate the commission of the offence.
In Queen Vs. Mohit Pandey (1871) 3 NWP 316 a married woman whose husband
had died prepared herself to commit suicide - in presence of the accused person who
followed her to the funeral pye and remained there with her step-sons chanting ‘Ram-
Ram’ and one of the accused persons admitted that he had told the woman to say ‘Ram-
Ram’ and she would become ‘sati’. It was held that since the above facts proved active
connivance and unequiviocal countenance of the suicide by the accused persons all were
liable for abetment by conspiracy to commit suicide justifying the inference of an
engagement on their part.

101
 In Rup Devi Vs. State 1995 Cr LJ 679 (H.P.) the decreased and his wife had
strained relationship. The wife had illicit intimacy with the accused. The deceased was
scheduled to go to a ‘sadhu’ on particular day. The wife told the accused about his
programme of her husband even though she knew that the accused was waiting for an
opportunity to kill him. The accused ambushed and killed him. It was held that on the
basis of this much evidence the wife could not be held guilty of abetment by conspiracy
even though her conduct was open to censure.
Abetment by Intentionally aiding
The supplying of necessary food to a person known to be engaged in crime is not
per se criminal: but 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 the crime, the supplying of food would be in order to facilitate the commission of
the crime and might facilitate it. (Lingam Rammana (1880)2 Mad. 137).
R. Vs. State (1989) 3 All ER 90 CA It is not necessary that the abettor should be
present at the place of the occurrence. It is not necessary to show that the secondary party
to a conspiracy to murder intended the victim to be killed, provided it is proved that he,
contemplated or foresaw the event as a real or substantial risk. Mere absence from the
scene of the crime cannot amount to unequivocal communication of withdrawal from the
enterprise.
Where a Head Constable, who knew that certain ‘persons were to be tortured for
the purpose of extorting confession, purposely kept out of the way, it was held that he
was guilty of abetment. Kali Charan Gangooly, (373)21 WR (cr.) 11. But the mere fact
that the offence of extortion was committed, in the presence of a village police-officer,
without eliciting any disapproval on his part, was held not to render him liable as an
abettor. (Gopal Chunder Sardar, (1882) 8 Cal. 728).
In a case of custodial rape, husband and wife, taken into police custody, were kept
in separate rooms. The wife was, raped by the head constable while the accused constable
kept watch over the husband and did nothing merely hearing the shrieks of the victim
wife. Conviction of the accused constable for abetting commission of rape was upheld
(Ram Kumar Vs. State of H.P. AIR 1995, SC 1965).
The Supreme Court in Haradhan Chakrabarty Vs Union of India (1990) 2SCC

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143 laid down that “Two or more persons must be parties to such an agreement and one
‘persons alone can never be held guilty of criminal conspiracy for the simple reason that
one cannot conspire with oneself.” It also appears reasonable to hold that these two
persons must be natural persons so that there could be an agreement- between two or
more minds. Thus a Director who is the ‘one man’ of a ‘one man’ company cannot be
convicted of conspiracy with the company in spite of the fact that the company is a
separate entity in law. Similarly, it appears that there cannot be any offence of conspiracy
if two companies with the self-same ‘one man’ Director conspired to do an illegal act. A
company can certainly conspire with two or more of its Directors.
However in Bimbdhar Pradhan Vs. State of Orissa citation Supreme Court
distinguished Topan Das case and held that “it is not essential that more than one person
should be convicted of the offence of conspiracy. It is enough if the court is in a position
to find that two or more persons were actually concerned in the criminal conspiracy. If it
is proved that two or more were engaged in a conspiracy although they could not be
caught, one alone may be convicted.
A conspiracy is always-hatched in secrecy. It is therefore impossible to adduce
direct evidence of the same. The offence can only be proved largely from inferences
drawn from acts or illegal omission committed by the conspirators in pursuance of a
common design. Shivanarayan Laxminarayan Joshi vs. State of Maharashtra AIR 1980
SC 439.
The Supreme Court in the Rajiv Gandhi Assassination case, State of Tamil Nadu
Vs. Nalini AIR 1999 SC 2640 conducted an extensive review of the case laws on the law
of conspiracy and culled out main principles governing the law of conspiracy.
(1) Under section 120A, IPC offence of criminal conspiracy is committed when two
or more persons agree to do or cause to be done an illegal act or legal act by
illegal means. When it is legal act by illegal means, overt act is necessary.
Offence of criminal conspiracy is exception to the general law where intent alone
does not constitute crime. It is the intention to commit crime and joining hands
with persons having the same intention Not only the intention, there has to be
agreement to carry out the object of the intention, which is an offence.
(2) It is rarely possible to establish a conspiracy by direct evidence. Usually, both the

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 existence of the conspiracy and its object have to be inferred from the
circumstances and the conduct of the accused.
(3) There has to be two conspirators and there may be more than that. To prove the charge
of conspiracy, it is not necessary that the intended crime was committed or not.
(4) They may join with the other conspirators at any time before the consummation of
the intended objective, and all are equally responsible.
(5) It is the unlawful agreement and not its accomplishment, which is the gist or
essence of the crime of conspiracy. Offence of criminal conspiracy is complete
even through there is no agreement as to the means by which the purpose is to be
accomplished.
(6) It is said that a criminal conspiracy is a partnership in crime and that each
conspiracy consists of a joint and mutual agency for a protection of a common
plan.
(7) A man may join a conspiracy, by word or deed. However, criminal responsibility
for a conspiracy requires, more, than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge of the conspiracy is
guilty. And who one tacitly consents to the objects of the conspiracy and goes
along with other, conspirators, actually standing and goes along with the
conspirators, to actually standing while the others put the conspiracy into effect, is
guilty though he intends to take no active part in the crime.
In Abhayanand Mishra v. State of Bihar,154 & applied to the Patna University for
permission to appear at the M.A. Examination in English as a private candidate
representing that he was a graduate and that he was teaching in a certain school. In
support of his application he attached certain experience certificate purporting to be from
the Head Master of the School and the Inspector of School. The permission was granted.
Later on it was found that he was neither a graduate nor a teacher and, therefore, the
permission was withdrawn. A was held guilty of attempting to cCheat.
Sudhir Kumar Mukherjee v. State of West Benga1,155 In this case the question
was whether the signing of a challan evidencing receipt of goods without actually
154
AI.R. 1961 S.C. 1698.
155
A.I.R. 1973 S.C. 2655.

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receiving the goods on the part of the accused amounted to attempt to Commit offence
under Section 120-B read with Section 420 and 511 of the Penal Code. The defence plea
was that it was only the stage of preparation because for cheating affixing of stamp to the
challan and again signing of the same by the accused would be necessary. It was held that
in this case quite good amount of money was given to the supplier from the company.
The challan had been prepared, and the initials of the concerned clerk were obtained by
the accused. All this was a definite step towards the commission of the offence of
cheating though the penultimate step of affixing the stamp and singing by the accused in
order to enable the supplier to receive the payment was not completed. The act of accused
was not only preparation but it amounted to attempt.
In State of Maharashtra v. Mohd. Yakub,156 Three persons (i.e. drivers of a jeep
and truck and a cleaner of the truck) were convicted for attempting to smuggle silver out
of India. They were caught on receipt of definite information and were found near a sea
coast which was accessible to sea-faring vessels. On search silver ingots were found
concealed in the trucks. Further the sound of the engine of a mechanized vessel was heard
from a nearby creek. Accused were held guilty of attempting to export silver out of India
by sea.
In Bashirbhai Mohamebhai v. The State of Bombay,157 the accused represented to
Champaklal the complainant that he could duplicate currency notes. The complainant
gave an impression to the accused that he believed that statement and with the knowledge
of the police officers handed over currency notes. The accused was caught, by the police
in the very act of receiving, the currency notes with the alleged materials for duplication.
The accused was held guilty of attempting the cheat. The Supreme Court held that in this
case a false representation had been made and a sum of Rs. 200/- had been obtained from
Champaklal. These clearly are acts done towards the commission of the offence within
the meaning of section 511 of the Indian Penal Code. In fact making the false
representation and the delivery of property are the two ingredients of the offence of
cheating under section 420 I.P Code. Both these ingredients took place in this case and
the accused brought them about. Therefore, it cannot be said that the accused had only

156
1980 Cr. LJ 793.
157
A.I.R. 1960 S.C. 979.

105
made a preparation and not an attempt to commit the offence.
In Queen V. Kalyan Singh,158 one Chaturi calling himself Kheri went to a stamp
vendor accompanied by a man named Kalyan Singh and purchased from him in the name
of Kheri a stamp paper. The two then went to a petition-writer and Chaturi again gave his
name as Kheri, they asked the petition-writer to write for them a bond for Rs. 50 payable
by Kheri to Kalyan Singh. The petition writer commenced to write the bond, but his
suspicion being aroused, did not finish it, but took both Chaturi and Kalyan Singh to the
police station. It was held that the acts amounted to much more than a preparation and
they were acts done towards the commission, of the offence, therefore Chaturi was liable
for attempt to commit forgery.
In Queen v. Peterson,159the accused was charged for publication of bans of
marriage in his attempt, to commit, bigamy. It was held that the act of accused constituted
only preparation any ceremony of marriage was commenced.
In Padala Venkatasama,160 the accused conspired, with other persons for making a
false document and in pursuance of that prepared a draft which he was about id, copy on
an old stamp paper produced for the purpose and applied to a witness to supply to Telugu
date corresponding to the English date which the document was to contain. The act of the
accused amounted, only to preparation and not attempt to force, but he was guilty of
abetment.
In Mula’s161 case D instigated P to personate B and to purchase in B’s name
stamp paper. Consequently the vender endorsed B’s name on the stamp paper as
purchaser acted with the intention that such endorsement night, be used against B in a
judicial proceeding. It was held that the offence of fabricating false evidence had been
actually committed and was convicted of abetting of the commission of such offence was
further held, that the accused procured the false’ endorsement for the purpose of
thereafter using it in a judicial proceeding and he will, therefore, be liable for attempting
to fabricate false evidence.

158
(1894) 16 All. 409.
159
(1876) 1 All. 316
160
(881) 3 Mad. 4.
161
(1879) 2 All. 105.

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