Abstract Indian laws provide various acts which give us the provision on
constructive liability, joint liability of two or more persons and in some
cases, there are persons who may not be directly involved in committing the
offence but through other means like instigating, assisting and cooperating them
enable others to commit a crime. These persons are said to facilitate the
offence. However, they are not free under the law.
They are guilty in the same manner as the person who committed that offence. The
concept of abetment widens the perception of criminal law to incorporate these
criminal and non- criminal intentions and punish them accordingly. But courts
must keep in mind the concept of mental health which depends upon the
environment and the strata from which the persons come from and has
individualistic perception regard being had to one's tolerance and sensitivity.
The abetment must be sufficient enough to actively encourage a person to commit
an offence. Comprehending the term Abetment The concept of abetment, the word
'abet' should be given deep scrutiny so that it is not misused because of other
persons endurance and sensitivity. Chapter V of the Indian Penal Code covers the
different ways in which such assistance or abetment can be committed. The
literal meaning of the term 'abet' is 'to encourage or assist someone to do
something wrong, especially in committing a crime'.
Section 107 of Indian Penal Code defines abetment as:A person is said to abet the doing of a thing, who:
- Instigates any person to do that thing;
- Engages with one or more other person or persons in any conspiracy for
the doing of that thing;
- Intentionally aids, by any act or illegal omission, the doing of that
The term Instigation
means to stimulate a person to do act by means
of language, made directly or indirectly, in the form of express solicitation or
encouragement or mere gesture indicating beating, etc. The fact of the cases
will help us to decide the element of instigation present.
However, a word uttered in a fit of anger or emotion, not intending the further
consequences to follow, is not an instigation
. To understand the
interpretation of abetment the Hon'ble Supreme Court in the landmark cases of
Sanju v. State of M. P
court held mere pronouncing of the phrase "go and
" does not amount to abetment in any form. In heated arguments between
the husband and wife, the husband told his wife go and die
After two days, the wife committed suicide. "The honourable Supreme court
elucidated the word abet
as meaning to aid, to assist or to give aid, to
command, to procure, or to counsel, to countenance, to encourage, or to set
another one to commit." Another critical aspect of abetment is conspiracy.
The definition of 'abet' as laid down , makes it clear that abetment only occurs
when there are at least two persons involved, which further directs us towards
the arrangement and operation of the act with the element of mens rea present
necessarily. For constituting an act of abetment by conspiracy, there must be
two or more people involved in the conspiracy and an illegal act must take place
in pursuance of that conspiracy.
It is not necessary that the one who conspires be engaged in the action to be
carried out. It is sufficient if he or she engages in the conspiracy and have a
common object to do that thing and the act committed is considered to be the
action of all. Therefore, the offence of abetment depends upon the intention of
the person and not upon the knowledge and mere suggestion by a person or not
being able to cope up with situations in life does not make people around the
deceased liable for abetment to suicide.
Lastly, abetment by intentionally aiding is to do an illegal act or omission of
a legal act. In this, the abettor generally facilitates or helps in committing
the crime. There is an intention to assist the offender and some act should be
done in order to help him or her. Here, intentionally aids means the active
connivance in the commission of the act which is the most important ingredient
of the abetment by intentional aiding.
A person may be invited casually and for a friendly purpose, and if he
unintentionally helps his aide to facilitate the commission of a crime, it
cannot be said that the person has abetted the crime. Court has to keep a check
on human behaviour especially when it comes to suspects. It can categorize their
activities into criminal and non-criminal behaviours.
However, every non-criminal behaviour even something as simple as buying a rope
or a knife for your house becomes a criminal act when there are criminal
intentions behind it. The mere proof that the crime charged could not have been
committed without the involvement or the interposition of the abettor is not
enough to charge the accused abettor. The element of intention plays an
important role in determining whether a person is guilty or not.
He must have intentionally done something which amounted to instigation for
another to do an illegal act. Thus, if any person provokes, persuade, conspires,
commands or intentionally helps any person in doing an illegal act or those acts
which are recognised as a crime and is said to abet that person. Co-relating the
Criteria of Mental Health in Suicide Cases of Adultery Suicide is an exceptional
crime where both the accused and victim is the same person affecting himself.
Section 306 of Indian Penal Code deals with abetment of suicide which is read
"If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine". The aforesaid shows that
the crux of the offence under section 306 itself is abetment. Abetment to
suicide involves a mental process of instigating an individual or intentionally
helping a person in taking his life on his very own.
So, to establish abetment, the abettor must have appeared to deliberately
support the commission of the wrongdoing and one should not be accused of other
persons mental health. For example, if a student commits suicide because he
performed poorly in exams than should his teachers be charged under "abetment of
suicide" for setting up tough exam papers or should their parents be charged
under abetment of suicide
" for having high expectations from their
child? Or let's say when the former Chief Minister of Arunachal Pradesh, Kalikho
Pul killed himself because the Supreme Court ruled against him. Can his family
say that the judges "drove him to suicide?" and the answer would always be no.
Furthermore, while correlating the offence of abetment to suicide it is very
important to bring the focal point on the concept of adultery that is a
158-year-old draconian British law read as "Whoever has sexual intercourse with
a person who is and whom he knows or has reason to believe to be the wife of
another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a
term which may extend to five years or with fine or with both. In such a case,
the wife shall not be punishable as an abettor.
The Hon'ble Supreme Court of India in the landmark judicial decision of Joseph
shine v. Union of India
where the five-judge bench led by the Chief Justice of
India Dipak Misra held the above section 497 of Indian Penal Code as
unconstitutional and arbitrary. And the apex court also stated that "the legal
sovereignty of one sex over other sex is wrong.
Although adultery still comes under civil law where a husband or a wife having
an extra-marital affair can either forgive each other or can seek divorce on
this ground but if a person perpetrates suicide due to adultery, be it the
husband or the wife, then the better half can be booked for abetment to suicide.
Given the decision, we must understand that in abetment, the person who had mens
rea, but was not involved in actus reus is punishable and the offence of
abetment depends upon the intention of the person who abets, and not upon the
act which is actually done. "An extra-marital affair may be illegal or immoral,
but it does not necessitate the conviction of a husband or wife for cruelty
towards the other.
For conviction, other fortified ingredients are to be brought home so that it
would constitute a criminal offence. And those fortified ingredients should be
such which showcases that given the mental state of the person the act was so
extraordinary that it could be treated as abetment. Because otherwise when a
person is been cheated on, he or she might lose the mental balance because of
the emotional distress and may not react like a rational person, consequently
even the smallest act or an argument could be abetment for them.
But now as section 497 has been decriminalised which left the victim with no
other option to make his or her partner suffer and, in that rage, or ego the
person might commit suicide to frame his or her partner under section 306. In
the landmark case of Pinakin Mahipatray Rawal v. State of Gujarat,
Court while dealing with whether extra-marital relationship leading to cruelty
within the meaning of section 498A IPC and whether that would amount to abetment
leading to the offence of suicide within the meaning of Section 306 IPC.
The court opined that "extra-marital relationship as such is not defined in the
IPC and in the context of Section 498A the mere fact that the husband has
developed some intimacy with another woman, during the subsistence of a marriage
and failed to discharge his marital obligations, as such would not amount to
"cruelty", but it must be of such a nature as is likely to drive the spouse to
commit suicide to fall within the explanation to Section 498A IPC." Further,
sharing of physical intimacy is a reflection of choice.
To chain the sexual freedom of a person and allow the criminalisation of
consensual relationships is a denial of this right. Mental health varies from
person to person, depending upon the intensity and the degree of endurance, some
may meet with courage and some others suffer in silence, to some it may be
unbearable and a weak, immature or egoistic person may think of ending one's
life. And it is difficult to hold that whether the mental cruelty was of such a
degree that it would drive the person to commit suicide.
It was explained that the courts have to be extremely careful in assessing the
facts and circumstances of each case to ascertain as to whether cruelty had been
meted out to the victim and that the same had induced the person to end his/her
life by committing suicide, with the caveat that if the victim committing
suicide appears to be hypersensitive to ordinary petulance, discord and
differences in domestic life, quite common to the society to which he or she
belonged and such factors, the accused charged with abetment could not be held
To constitute an offence under Section 306, the prosecution shall establish that
a person has committed suicide and the suicide was abetted by the accused. The
prosecution has to establish beyond a reasonable doubt that the act of the
deceased of committing suicide was abetted by the accused. Moreover, in the
cases of extramarital relationship, which if proved, could be illegal and
immoral, but if nothing has been brought out by the prosecution to show that the
accused had provoked, incited or induced the wife to commit suicide than the
charge of section 306 should be ruled out.
Conclusion Mankind lives in an ethnic culture which is based on the value of
belonging to a particular ethnic group. Sexual behaviour is also organized and
regulated by our culture which says that a person can involve in sexual activity
only with the person he or she marries.
And the whole concept of marriage what we are taught while growing up is that we
have to live our life with the same person for our next seven life's. When this
perfect portray of what was taught to us doesn't execute the same way and the
adulterous partner leaves the better half for some other person it becomes a
shattering moment for them and he or she may get devasted emotionally which
leads them to take extreme steps in life.
The existence of offence of adultery in the present era in the form of abetment
to suicide must not be ceased to exist but must applied very carefully courts
cannot prima facie press the charge of section 306 as no person should be
punished for the act not done by him as it is said:
better that ten guilty persons escape than that one innocent suffers.