Law

Aiding a Perpetrator by Facilitation

ABSTRACT:

Criminal offence largely cannot be executed without the profusely aiding done in some or the other manner. Aiding an offence has a wider aspect ranging from availing the weapon to not taking preventive steps, or giving shelter to not reporting the said crime. Aiding takes place in different sphere from case to case. The offence of aiding a crime is as grave as actually committing the crime. A person alleged of aiding a principal offender is charged with same offence as that of the principle offender though the quantum of punishment differs. Aiding takes place in two demeanor first where the presence of aider is material at the crime scene and secondly where aiding is done before the crime. Crimes of mass destruction like terrorist attack to self-generated crime like committing suicide all constitutes aiding. Aiding in most cases is the outcome or execution of the criminal conspiracy. Here the meeting of mind and intention marks one to be convicted or acquitted. Also the lack of statute interpretation and codification has led the crime of aiding depend upon the judicial interpretation. It is likely to be decided with reference to the precedent cases and courts discretion. A short mention of aiding is found in Sec 107 thirdly of Indian Penal Code. Yet the punishment in regard to such crime is highly subjective to the offence committed by the principle offender.  Through this paper the author wishes to put light on the subject matter of aiding by facilitation, its principle aspects and discuss the cases related to the said offence. The research will include marking the areas of offence which consists aiding and punishment for the same.

AIDING A PERPETRATOR BY FACILITATION:

Maya married Jay in the year 2002; they were happily married until Maya heard about the extra marital affair of her husband with his co-worker. After this Jay started torturing Maya mentally and physically and wished to marry his co-worker. Due to all such mental trauma Maya tried to commit suicide. Jay in a view to get rid of his wife brought her poison and placed it within her reach to make sure she consumes the same. Maya died due to poison and Jay was held liable for murdering Maya. The accused contended that his wife committed suicide and was not murdered. The question that arises is whether the act of Jay which helped Maya end her life would be considered as an act of committing murder since the consumption was voluntary yet was facilitated by the accused. Also in a distinct case A, a butcher by profession asks his friend B to get him a big sharp knife to be used in his shop. Relying on this B gets a sharp knife which A used to stab his brother to death. Would B be held liable for aiding A for committing murder?

In the first case Jay will be held liable for abetting his wife to commit suicide as he knew that his facilitation would help Maya end her life. The fact that Jay was aware of the intentions of Maya leads him to be liable for the offence. On the other hand, B will not be held liable though the knife furnished by him was used by A in the act of committing murder because the lack of knowledge of the intentions of A will exempt him from the liability. Therefore, the above two situation which portrays the aiding in the criminal offence will correspond to liabilities depending upon the knowledge of the offence to be committed.

Aiding is an event when a person assists another in a criminal act. The physical presence of the facilitator is immaterial in case of aiding and abetment. When an offence is committed and several persons take part in the commission of it, each person may contribute in a manner and degree different from the others to the doing of the criminal act.[1] The point to keep in regard to differentiate ‘perpetrator or principal and ‘secondary parties’ is that the person who directly and immediately causes the actus reus of the offence is the ‘perpetrator or principal, while those who assist or contribute to the actus reus are ‘secondary parties or accessories’.[2] “Principal of II degree” and “accessories before the fact” are the two terminologies used to describe the aider or the abettor in the crime. The physical presence of ‘principal of II degree’ is material in the crime, though not participating in the crime. Actively helping by aiding at the crime scene would make the accused a principal of II degree. Whereas ‘accessories before the fact’ need not be present at the crime scene, they help in aiding before the offence takes place. Procuring poison for A to kill B is accessory before the fact and mixing poison with food and handing it to A is principal of II degree.

 Under different state laws, aiding and abetment varies from case to case. Act of aiding under Sec 107 thirdly of the Indian Penal Code is described as “A person abets the doing of thing, who intentionally aids, by an act or illegal omission, the doing of that thing.” The ingredients of the act of aiding constitutes of:

  • Crime must be committed by the perpetrator and not by the one aiding the crime.
  • Aider must have knowledge about the intention of the perpetrator
  • Aiding must have been done before or during the commission of the crime.

In the event of X willing to set A’s farm on fire, B with the same intention making available the kerosene and match sticks to X would be charged for aiding in the act of arson. A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting[3]. Depending upon the action of the crime, aiding is directly proportional to the sharing of same criminal intention. Someone aids and abets a crime if he is aware of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.[4] One who stands by to render assistance to the principal actor if this assistance becomes necessary is an aide and abettor if the principal actor knows that the other party is standing by with this design, for he is thereby encouraged to commit the act.[5] The stress is laid on the encouragement element where no actual participation in the crime by the defendant took place but he has been a moving force in the perpetration of the act at the time it was committed.[6] In the same way it seems that a person who counsels the commission of the crime by another, almost inevitably comes to a moment when he is in contact with that other, when he is discussing the offence with that other and when, to use the words of the statues, he counsels the other to commit the offence.[7]

Aiding also takes place by illegal omission where one is bound to do certain things lawfully, yet chooses to do it illegally. Bookie gambling which is illegal in many states can be said as an example of doing illegal act voluntarily. Here aiding the gambler with money and details and acting as an agent for the purpose of facilitating the gambling act amounts to criminal charges. Aiding almost inevitably involves a situation in which a secondary party and the offender are together at some stage discussing the plans which they may be making in the respect of the alleged offence and are in contact so that they know what is passing through the mind of the other.[8] The act of aiding is present in both civil and criminal wrong.

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 for waiting for an opportunity to commit the crime the supplying of food will be in order to facilitate the commission of the crime and might facilitate it.[9] Terrorist attacks are preplanned and wisely executed. There are always number of defendants who at some or the other point facilitate the group by providing shelter before the crime, availing weapons and explosives, scouting directions and areas, issuing fake passports and others identities. David Headly the mastermind of Mumbai Attack in 2008, who is sentenced for imprisonment for 35 years, has acted as an aide to the group of terrorist. He was alleged of availing weapons and disruptive along with this he pleaded guilty of scouting locations for the 2008 attack on Mumbai which helped the terrorist to move freely around the city attacking the crowd rampantly.[10] Aiding in terrorism is one of the important aspects as in case of 1993 Bombay Bombings; Sanjay Dutt was sentenced to 5 years of life imprisonment for possessing weapons and later passing them to the local Muslims to be used in riots to take place after Bombay attack. He was alleged of aiding the terror attack.

To be present and aware that an offence is about to be committed does not constitute abetment unless the person thus present holds same position of rank or influence such that his countenancing that takes place may, under the circumstances, be held a direct encouragement, or unless some specific duty of prevention rests on him, which he leaves unfilled, in such wise that he may be safely taken as having joined a conspiracy for the preparation of the offence.[11] In A case where husband and wife were charged with a criminal offence and were taken into custody, where they both were kept separately. The head constable raped the wife while the accused constable held hard the husband restricting him to prevent his wife from getting raped. The court convicted the accused constable for not preventing the wife getting raped and for aiding by restricting the husband to prevent the same.[12] The accused though not contributed to the crime but his presence along with taking no preventive steps held him liable for the offence. Aiding and abetment is prevalent in case of suicides and dowry deaths. In Krishan LaL v. UOI[13], the deceased who was tortured for dowry by her father-in-law and brother-in-law, committed suicide. It was alleged that the husband of the deceased though being aware of such mental and physical cruelty inflicted on his wife took no measures to prevent her from committing suicide.

The above two cases makes it evident that for aiding a crime one is not bound to provide materials to execute the crime or to provide with shelter before the crime; it can also be related to aiding a crime when a person although being aware of the intentions of the convict and present on the crime scene does not take any measures to prevent the same. The liability and charges for aiding a crime solely depends upon the nature of the crime. Punishment for aiding and abetting a crime is inflicted with the intensity and exploration of the act. In case of murder, aiding the convict with murder weapon and having same intention leads to more severe punishment as compared to the punishment for not acting to prevent the crime. Chapter V of the Indian Penal Code deals with the offence of abetment and punishment relating to abetment and aiding. The liability under the chapter too depends upon the gravity of the act and other circumstances leading to the execution of the act. Sec. 111 imposes criminal liability even when one act is abetted and different act is done. For instance A aids B, a minor to mix poison in the food to be consumed by X. B while executing the crime mixes it in the food of Z who happens to sit beside X; due to poisoning Z dies. Here though A intended to kill X but in consequence of same criminal action Z died, A will be liable for murdering Z. Also in furtherance to the above mentioned crime B adds poison in the food to be consumed by X without any mistake but X shared his food with Z resulting in the death of both X and Z. A will be held liable to punishment for each of the offence.

Whenever a person withdraws from the criminal conspiracy before the execution of the crime if communicated to all other conspirators and no other step is taken by that person in furtherance of the said crime, he cannot be held liable for committing the offence; though he can be convicted for not taking steps to prevent the same. Where one person has counseled another to commit a crime, or is present aiding the other in the commission of it, it may be possible for the secondary party to escape liability by withdrawal before the principal goes on to commit the crime[14]. R v Rook[15] case where three friends conspire to kill C, R being one of the conspirators withdraws from the plan and does not turn up on the said day to execute the crime, although he had previously arranged the weapons and other things required by them. The other conspirators kill C using all the materials availed by R. Court while deciding on the case held R liable for aiding the crime although he was not present at the scene of the crime. Under Sec. 114 of IPC same offence has been discussed where the presence of the abettor or aider is immaterial when the offence is committed.

Section 109 provides that if the Act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence[16]. Abetment and aiding is punishable under IPC where the punishment may exceed to the one half of the longest term of imprisonment provided for that offence, or with a fine provided for that offence, or with both.[17] The apex court has observed that in case where the perpetrator is acquitted for the offence committed, the abettor can still be held liable for the same.  The abettor’s guilt depends upon the nature of the offence abetted and manner of abetment.[18] It was also observed that in case of aiding the aider is acquitted with the acquittal of the perpetrator or the principal offender. A conspires with B and C to kill his wife. To execute the act B bought a packet of sleeping pills and a sharp knife to be used by A. He also arranged a vehicle to carry the dead body away from the crime scene. B was alleged for aiding and abetting the crime though it was an inchoate offence. The court acquitted both A and B as merely a person cannot be charged with merely intending to commit an offence. Attempt is necessary for conviction. As the perpetrator was acquitted the aider cannot be charged for aiding as no offence took place.

Another exemplification where aiding is contested as a severe crime is in suicide. The criminal guilt to be attached to the aiding of suicide is perhaps as confusing a question as the law can present; and when the aid consists merely in furnishing the means of the death if desired, a legal question presented is no less interesting than the ethical problem.[19] Suicide in common law is considered as ‘self murder’. If a person who is aiding suicide is not present at the scene of the act which caused death, he would be an accessory before the fact and would escape punishment for he could not be tried until the principal was first tried and convicted[20]. The effect of this rule is avoided, however, by treating the accessory as the principal, whether present or not, on the theory that the act causing death was his act. Aiding and abetting suicide then is charged as committing murder.[21]

The offence of aiding a perpetrator by facilitation is an offence which lacks statutory provisions in regard to explaining the offence and deciding the punishment. Chapter V of Indian Penal Code deals with the offence of aiding and abetment however, it shows inadequacy in formulating the charge and punishment.  It is largely based on the judicial interpretation and precedents. With the increasing cases of terrorist attack and suicides the part of aiding in such offences should be accorded with proper framing of charge and punishment for the same. As punishment should act as an aid to reform the society; aiding and inciting terrorist attacks shall call for harsh punishment.  Taking cognizance of aiding as an astringent offence the law should reform.

BIBLIOGRAPHY:

  • Ratanlal & Dhirajlal, The Indian Penal Code, published by LexisNexis butterworths Wadhwa, Nagpur, 33rd Edn, reprint 2012.
  • Shamsul Huda’s, Principles of The Law of Crimes, published by Eastern book Company, Lucknow, reprinted with new introduction,2011
  • Elliot and Wood’s Cases and Materials on Criminal Law, Published by Sweet & Maxwell, 10th
  • Criminal Law and procedure: Aiding and Abetting, published by Michigan Law Review, Vol 31, http://www.jstor.org/stable/1281559 Singleton v. State, 106 Ala 49(1894)
  • The Crime of Aiding a Suicide, The Yale law Journal, Vol 30, No. 4 (Feb 1921) pp. 408-413 http://www.jstor.org/stable/787403
  • Law relating to Secondary Offneder, by Shelley Spyrides, http://www.peterjepson.com/law/shelleyA2-3.htm
  • American who aided Mumbai attack sentenced to 35years, By Ed Payne, CNN January 24, 2013 -Updated 1912 GMT (0312 HKT), http://edition.cnn.com/2013/01/24/justice/us-mumbai-terror-sentence/index.html

By: Sakshi Tomar

[1] Ratanlal & Dhirajlal, The Indian Penal Code, published by LexisNexis butterworths Wadhwa, Nagpur, 33rd Edn, reprint 2012.

[2] Law relating to Secondary Offneder, by Shelley Spyrides, http://www.peterjepson.com/law/shelleyA2-3.htm

[3] National Coal board v. Gamble, [1959] Q.B 11 Queen’s bench division

[4] Supra 2

[5] Criminal Law and procedure: Aiding and Abetting, published by Michigan Law Review, Vol 31, http://www.jstor.org/stable/1281559 Singleton v. State, 106 Ala 49(1894)

[6] COMMONWEALTH vs. PETER HURLEY. 455 Mass. 53 April 9, 2009 September 29, 2009

[7] Elliot and Wood’s cases and materials on Criminal Law, published by Sweet & Maxwell, 10th Edn.

[8] Ibid

[9] Lingam v. Ramanna, (1880) 2 Mad 137

[10] American who aided Mumbai attack sentenced to 35years, By Ed Payne, CNN January 24, 2013 — Updated 1912 GMT (0312 HKT), http://edition.cnn.com/2013/01/24/justice/us-mumbai-terror-sentence/index.html

[11] Lakshmi, (1886) Unrep Cr C 303

[12] Ram Kumar v State of H.P. 1955 Cr LJ 3621

[13] Krishan Lal & Ors. v Union of India 1994 Cri LJ 3472

[14] Supra 7

[15] R v. Rook, [1993] 2 ALL ER 955, www.lawteacher.uk.co

[16] Sohan Raj Sharma v. State of Haryana (2008) 2 MLJ (Crl) SC 647

[17] Chapter V, Indian Penal Code, (Act 45 of 1860)

[18] Madan Raj Bhandari v. State of Rajasthan, AIR 1970 SC 436, abettor of inducing miscarriage was acquitted when the person causing miscarriage was acquitted.

[19] The Crime of Aiding a Suicide, The Yale law Journal, Vol 30, No. 4 (Feb 1921) pp. 408-413  http://www.jstor.org/stable/787403

[20] Reg. v. Leddington (i839, Q. B.) 9 Car. & P. 79 The point is discussed in nearly every case of abetting suicide. By statutes in England and several American jurisdictions, advising another to commit suicide is made a substantive indictable offense.

[21] Blackburn v. State, (i872) 23 Ohio, I46;. The abolition of the distinction between aiders and accessories in some jurisdictions has made such a ,party guilty of murder for advising a suicide, whether absent or present at the time of the act, provided the suicide is the result of his advice.

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