Instigation basically means suggesting, encouraging or inciting a person to do or abstain from doing something. Instigation may take place either directly or indirectly, by written or oral words, or even by gestures and hints.
The instigation must be sufficient to actively encourage a person to commit an offence. It should not be mere advice or a simple suggestion. The Instigator need not even possess mens rea (a guilty intention to commit the crime.
Explanation 1 of this Section throws some light on what instigation may mean in this context. It says that instigation may generally happen even by:
(a) wilful misrepresentation
(b) willful concealment of a material fact that a person is bound to disclose.
For example, a court directs Amit, a police officer, to arrest Raj under an arrest warrant. Brijesh informs Amit that Chandan is Raj despite knowing that he is not. Under this misrepresentation, Amit ends up arresting Chandan instead of Raj. In this case, Brijesh is guilty of abetting Amit in wrongfully apprehending Chandan.
Sanju v state of M.P (2002)
This case is one of the landmark cases of Abetment to suicide.
FACTS: there was a fight between the husband and wife. In the heated arguments, the husband told the wife to “go and die”. After two days, the wife committed suicide and there was a dying declaration of the deceased.
JUDGEMENT: mere pronouncing of the phrase “go and die” does not amount to abetment in any form. The element of mens rea has to be present necessarily. Moreover, the suicide was committed two days after the quarrel and hence this shows that the suicide was not the direct result of the fight. Hence, this shows that the husband cannot be held liable for the suicide of his wife under the section of abetment.
Instigation means to suggest or 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 case helps us to decide the element of instigation. However, a word uttered in a fit of anger or emotion, not intending the further consequences to follow, is not an ‘instigation’.
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.
Advice per se does not necessarily amount to instigation. Advice amounts to instigation only if it was meant to actively suggest or stimulate the commission of an offence.
A mere acquiescence or permission does not amount to be guilty of abetment by instigation. It implies the knowledge of the criminality of an act i.e., the abettor must have full knowledge of the act of which he is instigating. The words which were spoken and amounted to permission will depend on the position of the speaker and the occasion on which they are spoken to charge that person for abetment by instigation.
Also, mere presence on the scene as a silent passive spectator does not amount to abetment.
The only condition required to be fulfilled to prove any person to be guilty under this section is by the relevance to the thing that was done and not to the thing that was likely to have been done by the person.
Abetment by instigation is of two types. They are:
- Direct instigation – an act which is done on the direct command and active simulation of another person.
- Instigation by letter – an act committed by instigation through posts or letters. The offence of instigation completes as soon as the addressee i.e., the person who is being abetted comes to know of such a thing.
Instigation in Dowry Death Cases
A person can be held liable under abetment for the cases of dowry death. According to the report of the Indian National CrimeRecords Bureau, in every 90 minutes, there is a death of a woman due to dowry-related matters. There are the following ways in which a person can be held liable for abetment.
- CASE 1: husband/any relative can be held liable as an abettor for instigating his wife to commit suicide.
- CASE 2: The relative of the husband/any person can be held liable for instigating her husband to kill her.
Case 1: Husband/any relative can be held liable as an abettor for instigating his wife to commit suicide
There are cases where the husband/any relatives either directly or indirectly i.e., either by expressed languages or by gestures for dowry or other related matter which instigates the woman to commit suicide.
Illustration 1: There was a woman named Sumana and her husband. Sumana’s husband was not able to repay his loan for a long time. In frustration, he brought poison and said: “consumed it and die”. In that emotional mood, Sumana consumed it and died. It was held that the husband was liable to commit an offence under this section of abetment.
Illustration 2: There was a woman who had a mother-in-law. She used to instigate her through her gestures (not by expressed words), to commit suicide for the dowry which was not up to her demand. Due to repeated cruel actions, the woman suffered mentally which led her to commit suicide. Here, mother-in-law is liable to abetment by instigation.
A similar situation arose in the case of Protima Dutta v. State of West Bengal, where any such gestures or conduct by her mother-in-law led to committing of suicide by the woman.
CASE 2: The relative of the husband/any person can be held liable for instigating her husband/any person to commit any offence against her
Another case where the relative of the husband or any person like the girlfriend, etc. can be held liable to be an abettor for instigating that husband to kill her wife. It happens when there is jealousy, selfishness, etc.
Illustration: There was a husband who was living separately with another woman leaving his wife at her in laws place from where she was not allowed to go anywhere outside the house. Upon the instigation both by his girlfriend for second marriage and by his parents for the dowry money, he murdered his wife. Here, both his girlfriend and the family members of him were held liable under the abetment section for instigation.
Illustration: A, a public officer, is authorized by a warrant by court of justice to apprehend Z. B, knowing that fact that C is not Z, willful represent to A that C is Z ,and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Reference
https://www.scconline.com/blog/post/tag/abetment-by-instigation/
https://www.lawinsider.in/columns/abetment
https://www.legalserviceindia.com/legal/article-2753-abetment.html
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