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ABETMENT AND CRIMINAL CONSPIRACY: AN ANALYSIS
By Nishi Kumari*
ABSTRACT
Law and crime have a long history in the civilization of the society. Crime is basically regarded
as an act which is forbidden by the law of the land. Sometimes an offender himself is the reason
for committing an offence and sometimes it’s some hidden factor/ person who abets an offender
to commit an offence. Both Abetment and Criminal Conspiracy have its roots in Indian Penal
Code,1860. The word 'abet' has been defined as meaning to aid; to assist or to give aid; to
command, to procure, or to counsel; to countenance; to encourage; induce, or assist, to
encourage or to set another one to commit. Whereas, conspiracy is an inchoate crime and is
punishable primarily because an agreement to commit a crime is a decisive act, fraught with
potential dangers. Both the concepts are similar as both aims to commit an offence but still
there are many differences on the technical grounds. This paper aims to analysis the concept of
Abetment and Criminal Conspiracy and therefore to find out the key difference between the
both.
Keywords: Abetment, Conspiracy, Crime
* B.A.LL.B., 3rd year, Rajiv Gandhi National University of Law, Punjab.
ABETMENT AND CRIMINAL CONSPIRACY: AN ANALYSIS
Law and crime have a long history in the civilization of the society. Crime
is basically regarded as an act which is forbidden by the law of the land.
to aid; to assist or to give aid; to command, to procure, or to counsel; to
countenance; to encourage; induce, or assist, to encourage or to set an-
other one to commit. Whereas, conspiracy is an inchoate crime and is pun-
ishable primarily because an agreement to commit a crime is a decisive
act, fraught with potential dangers. Both the concepts are similar as both
-
nical grounds. This paper aims to analysis the concept of Abetment and
the both.
ABSTRACT
LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1
http://legalpediajournal.com
Nishi Kumari
B.A.LL.B., 3rd year, Rajiv Gandhi National University of Law, Punjab.
*
*
Keywords : Abetment, Conspiracy, Crime
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1. INTRODUCTION
The very definition and concept of crime varies not only according to the values of a particular
group and society, its deals, faith, religious attitudes, customs, traditions, and taboos, but also
according to the form of government, political, economic structure of the society and number
of other factors. For instance, what is an offence against property in a capitalist society may be
a lawful way of living in a socialist society.
People may believe that if they plan to commit a crime, but do not actually go through with it,
that they will not be held responsible for a crime. This belief is mistaken; however, as there are
laws set out for specific offences called “inchoate” offences. Inchoate means that a criminal
act was anticipated or prepared for, but not completed. The major offences which are included
in this are: Abetment and Conspiracy.
Indian Penal Code is a piece of comprehensive legislation. The code embodies the general
penal law of country and is the sole authority in respect to the general conditions of work, the
definitions of the specific offences in Code, and the conditions of exemptions from criminal
liability. Some crimes are cognizable, and some are not.2
Traditional and conventional crimes are rooted in time and customs and Indian Penal Code
represents its core. The Code punishes such acts against persons and their property as are
universally accepted as injurious to all civilized societies and acts which offend against
fundamental principles on which the existence of human being as society rests. These
fundamentals are more or less of a permanent nature and will endure for a long time to come.
The term 'abetment' in criminal law indicates that there is a distinction between the person
abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or
the principal offence or the principal offender. Whosoever, 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 facilitate the commission thereof, is said to aid the doing of that act.3
Russell remarks the crime of conspiracy as, “affords support for any who advance the
proposition that criminal law is an instrument of government.”4 The IPC was amended in 1870
as to insert S. 120-A IPC. Chapter V-A has been introduced in the code by the Criminal Law
2 Cr.P.C., (1973), sec. 2 (c) 3 Indian Penal Code, sec. 107 4 Russell on Crimes, vol. 1 (11th Ed.) p. 213
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Amendment Act (8 of 1913). The object of the amendment was to prevent the commission of
crime by nipping them in the bud.5 As stated above the inclusion of Chapter V-A in the Penal
Code was designed to assimilate the provisions of English law. This chapter was inserted in
the Indian Penal Code in 1913. Conspiracy, at common law, had its origin primarily as a civil
wrong, but was lately made punishable as criminal wrong.6
2. ABETMENT
In Indian Penal Code, Abetment is defined under section 107 as:7
Abetment of a thing - A person abets the doing of a thing, who: -
a. Instigates any person to do that thing; or
b. 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
c. Intentionally aids, by any act or illegal omission, the doing of that thing.
In comprehensive way under Indian Penal Code, abetment can be defined as, a person becomes
liable as an abettor if he instigates another to commit a crime or engages in a conspiracy with
another to commit a crime and some act is done in furtherance of such conspiracy or if he
intentionally aids another in order to facilitate the commission of a crime. The term 'abet' in
general usage means to assist, advance, aid, conduce, help and promote. The word 'abet' has
been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel;
to countenance; to encourage; induce, or assist, to encourage or to set another one to commit.8
The term 'abetment' in criminal law indicates that there is a distinction between the person
abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or
the principal offence or the principal offender.
Abettor is a person who abets an offence, who abets either the commission of an offence, or
the commission of an act which would be an offence, if committed by a person capable by law
5 State of A.P. v. Cheemalapati Caneswara Rao, AIR1963 SC 1850; (1963) 1 Cri L J 67 6 Gour, Hari Singh, Penal Law of India, 11th Edn., Vol. II, 2000, pp. 1101-1135 7 Indian Penal Code, 1860, sec.107 8 Kartar Singh v. State of Punjab, 1994 Cri LJ 3139; See also Sanju v. State of Madhya Pradesh, (2002) 5 S.C.C. 371(India)
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of committing an offence with the same intention or knowledge as that of the abettor. The
essentials are:
(1) There must be an abettor;
(2) He must abet, and
(3) The abetment must be an offence or an act which would be an offence, if committed
by a person capable in law of committing the offence with the same intention or
knowledge as that of the abettor.9
The chapter on abetment contains 15 sections.
� Section 107 which defines abetment generally speaks of three kinds of abetment, viz.,
abetment by instigation, abetment by conspiracy and abetment by aid.
� Section 108 explains as to when an abetment of an offence takes place, and S. 108-A
provides for the case of abetments-in India of an offence committed in a foreign
country.
� Section 109 prescribes the punishment for the offence of abetment when the offence
abetted is committed, while
� S. 110 prescribe the punishment for abetment where the person abetted commits the act
with a different intention or knowledge from that of the abettor.
� Section 111 provides for cases of abetment resulting in a different offence but which is
a probable consequence thereof.
� Section 112 provides for cumulative punishment in cases covered by S. 111.
� Section 113 which is supplementary to S.111 provides for punishment in cases where
the act abetted causes a different effect from that intended by the abettor.
� Section 114 provides for cases where the abettor is present at the time of the offence
and makes him liable for the main offence and not merely as an abettor.
� Sections 115 and 116 prescribe for the punishment in cases where the offence abetted
is not committed.
� Section 117 deals with abetment of offences by the public generally or large groups of
persons.
9 Emperor v. Parimal Chatterjee, A.I.R. 1932 Cal 760 (761); (1939) 34 Cr LJ 78 (India). See Nelson’s Indian Penal Code, 7th Edn., (1981), Vol. I, p. 275
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� Section 118 prescribes the penalty for concealing the existence of a design in another
to commit a grave offence.
� Sections 119 and 120 provide for punishment in the case of public servants and others
respectively for concealment of a design in another person to commit the offence not
covered by S. 118.
2.1 ABETMENT BY INSTIGATION
The word 'instigate' literally means to goad, urge forward, provoke, incite, or encourage to do
an act and a person is said to instigate another when he actively suggests or stimulates him to
the act by any means, or language, direct or indirect, whether it take the form of express
solicitation or of hints, insinuation or encouragement or a wilful misrepresentation or wilful
concealment of a material fact.
It is not necessary that express words should be used to indicate what should be done by the
person to whom the directions are given. While there has to be a reasonable certainty in regard
to the meaning of the words used in order to decide whether there was incitement, it is not
necessary in law to prove the actual words used.
Advice amounts to instigation only when intended to actively suggest or stimulate the
commission of an offence. Mere acquiescence does not amount to instigation. Thus the word
denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite.
Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common
knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be
uttered with mens rea required to constitute instigation as they are uttered in a fit of anger and
emotional state.10
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. The apex court has laid down that before anybody can be punished for
abetment of suicide, it must be proved that the death in question was a suicidal death.11
10 See Swamy Prahaladdas v. State of M.P. & Am., 1995 Supp. (3) SCC 438 (India); Mahendra Singh v. State of M.P., 1995 Supp. (3) S.C.C. 731 (India); Ramesh Kumar v. State of Chhattisgarh, (2001) 9 S.C.C. 618 : 2001(4) RCR (Cri.) 537 (S.C.) (India) ; Seeta Hemchandra Shashittal v. State of Maharashtra, (2001) 4 S.C.C. 52 (India) 11 Wazir Chand v. State of Haryana, A.I.R. 1989 S.C. 378; Ramesh Chandra Mondal v. State, 1991 Cr LJ 2520 Cal (India)
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In Jamuna Singh v. State of Bihar12, 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 the 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.13
2.2 ABETMENT BY CONSPIRACY
A person is said to abet the commission of an offence by conspiracy, if he enters into an
agreement with one or more persons to do a legal act by illegal means, or to do an illegal act,
and some act is done in pursuance thereof. A conspiracy to do a thing is a combination of two
or more persons with a common design of doing a specific thing. It has been held that where a
criminal conspiracy amounts to an abetment under S. 107, it is unnecessary to invoke the
provisions of Ss. 120-A and 120-B, as the Code has made a specific provision for the
punishment of such a conspiracy.
2.3 ABETMENT BY AID
A person is said to abet the commission of an offence if he intentionally renders assistance or
gives aid by doing an act or omitting to do an act. Mere intention to render assistance is not
sufficient. There must be some active conduct on the part of the abettor and the act must be
accomplished in pursuance thereof.
Aid may be given both by an act of commission as well as by an act of illegal omission. For
instance, if a police officer knowing that certain persons were likely to be tortured for the
purposes of extorting confession keeps himself away from the place, he is liable for abetment
to the offence of extortion by an act of omission.14
a) The act or omission which constitutes the aid must have been done intentionally;
12 Jamuna Singh v. State of Bihar, A.I.R. 1967 S.C. 553 at 554 : 1967 Cri. LJ 541 (India) 13 Ibid 14 Faguna Kama Nath v. State of Assam, A.I.R. 1959 S.C. 673 (India)
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b) The aid must have been given either prior to or at the time of the commission of the
offence abetted.
3. CRIMINAL CONSPIRACY
In English law, "if two or more persons agree together to do something contrary to law, or
wrongful and 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."15
No overt act in pursuance of the conspiracy is necessary, the illegal combination itself being
the gist of the offence. The overt acts which may follow the conspiracy form, of themselves,
no part of the conspiracy.
In Mulcahy v. R.16 the House of Lords stated, "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 by unlawful means.
So long as such a design rests in intention only it is only indictable. When two 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 capable of being enforced if lawful, punishable if for a criminal
object or for the use of criminal means." After the judgment of the House of Lords in the case
of Mulcahy v. R.17 IPC was amended in 1870 as to insert S. 120-A IPC. Chapter V-A has been
introduced in the code by the Criminal Law Amendment Act (8 of 1913). The object of the
amendment was to prevent the commission of crime by nipping them in the bud.18
120A. Definition of criminal conspiracy - When two or more per-sons 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.
15 Halsbury's Laws of England, (3rd Ed.) vol. 10. p. 310-1 16 Muchay v. R (1868) LR 3 HL 30 (England) 17 Ibid 18 State of A.P. v. Cheemalapati Caneswara Rao, A.I.R. 1963 S.C. 1850; (1963) 1 Cri L J (India)
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So far as the law of present day is concerned the House of Lords has declared:
(a) that the gist of conspiracy is the agreement, whether or not the object is attained
(b) that the purpose of making such agreements punishable is to prevent the commission
of the substantive offence before it has even reached the stage of attempt and
(c) that it is all part and parcel of the preservation of the Queen's peace within the
realm.19
Conspiracy under the Indian Penal Code originally was punishable only in two forms, viz., (i)
conspiracy by way of abetment and (ii) conspiracy involved in certain offence. In the former
an act or illegal omission must take place in pursuance of conspiracy in order to punishable
while in the latter membership suffices to establish the charge of conspiracy.
Thus the Indian Penal Code deals with the law relating to criminal conspiracy:
� as a substantive offence;20
� as a form of abetment (Chapter V, section 107);21
� to wage, attempt or abet waging of war against the Government of India. (Chapter VI,
section 121A);22
� involvement in certain offences, such as assembling for purpose of committing dacoity.
Before passing of the Criminal Law Amendment Act of 1913, a conspiracy to do an illegal act
was punishable only when such act amounted to an offence. It was also essential in the words
of section 107(2) of the Code that an act or illegal omission should have taken place in
pursuance of the conspiracy and in order to the doing of the act which was the object of the
Conspiracy.
The Criminal Law Amendment Act, 1913 has, however, introduced two rather drastic changes
in the respect. By section 120B punishment is provided for criminal conspiracies of all kinds
viz.,
� whether, according to the requirement of section 107, an overt act has or has not taken
place in pursuance of such conspiracy, and;
19 Kenny, Outlines of Criminal Law (Ed. Turner 17th Ed.) p. 89; See also Board of Trade v. Owen (1957) 2 WLR 351 at 357 20 Chapter VA, secs. 120A and 120B, I.P.C. added to the Indian Penal Code by Act VIII of 1913 21 Chapter V, sec. 107(2), I.P.C. 22 Added to the I.P.C. by Act XXVII of 1870, sec.4
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� whether, as required by sections 109, 115 or 116, the object of conspiracy is or is not
the commission of an offence.
In Mohd. Khalid v. State of West Bengal23 and Davender Pal Singh v. State of NCT of Delhi24
, the Supreme Court after referring to the American and the English legal position on the law
of conspiracy summarized the broad essential elements of conspiracy thus:
� an object to be accompanied;
� a plan or scheme embodying means to accomplish that object;
� an agreement or understanding between two or more accused persons whereby, they
become definitely committed to corporate for the accomplishment of the object by the
means embodied in the agreement, or by any effectual means; and
� in the jurisdiction where the statute requires, an overt act.
The court further held that the Indian law broadly conforms to the English legal position on the
law of criminal conspiracy. Thus, the provisions of Ss. 120 A & 120B IPC have brought the
law of conspiracy in India in tune with the English law by making the overt act unessential
when the conspiracy is to commit any punishable offence. The provisions, in such a situation
do not require that each and every person who is party to the conspiracy must do some overt
act towards the fulfilment of the object of conspiracy the essential ingredients being an
agreement between the conspirators to commit the crime and if these essentials and
requirements are established, the act would fall within the trapping of the provisions contained
in S. 120B.
4. CASE ANALYSIS
1. The use of the word "illegal" in the definition of criminal conspiracy in S.120-A
IPC is extremely comprehensive and would make even a case of civil trespass
23 Mohd. Khalid v. State of West Bengal (2002) 7 S.C.C. 334 (India) 24 Davendera Pal Singh v. NCT of Delhi (2002) 5 S.C.C. 234 (India)
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indictable, as a criminal conspiracy. In State of Maharashtra v. Somnath Thapa25
Supreme Court explained the ingredients of conspiracy and observed:
―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... Finally 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 to know 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.
Thus, even knowledge of an illegal act is enough to hold one guilty of conspiracy.
But as per the Ss. 120A and 120B it is the intent by two or more which is necessary
to constitute conspiracy. The law relating to conspiracy aims at punishing guilty
intentions because no overt act is required for the same. However, it can be inferred
that mem rea is not a necessary ingredient of the charge of conspiracy to commit an
offence.
2. The Supreme Court in State v. Nalini (Rajiv Gandhi Assasination case)26, dealt at
length the law of conspiracy, reviewed case law and culled out several principles
governing conspiracy. On the night of 21-5-1991 Rajiv Gandhi, the former Prime
Minister of India was assassinated by a human bomb. This incident was a result of
conspiracy. Wadhwa, J laid down following broad principles governing the law of
conspiracy:
i. Under S. 120 -A 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.
ii. Acts subsequent to the achieving of the object of conspiracy may tend to
prove that a particular accused was party to the conspiracy
25 State of Maharashtra v. Somnath Thapa 1996 Cri LJ 2448 : A.I.R. 1996 S.C. 1744 (India) 26 State (C.B.I/S.I.T) v. Nalini (1999)5 S.C.C. 253 (India)
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iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish
a conspiracy by direct evidence.
iv. Conspirators may, for example be enrolled in a chain - A enrolling B, B
enrolling C, and so on; and all will be members of a single conspiracy if they
so intend and agree, even though each member knows only the person who
enrolled him and the person whom he enrols.
v. When two or more persons agree to commit a crime of conspiracy, then
regardless of making or considering any plans for its commission, and despite
the fact that no step is taken by any such person to carry out their common
purpose, a crime is committed by each and every one who joins in the
agreement
vi. It is not necessary that all conspirators should agree to the common purpose
at the same time.
vii. A charge of conspiracy may prejudice the accused because it forces them into
a joint trial and the court may consider the entire mass of evidence against
every accused.
viii. It is the unlawful agreement and not its-accomplishment, which is the gist or
essence of the crime of conspiracy
ix. It has been said that a criminal conspiracy is a partnership in crime, and there
is in each conspiracy a joint or mutual agency for the prosecution of a
common plan.
x. A man may join a conspiracy by word or by deed.
The essence of criminal conspiracy embodied in S. 120A is the unlawful combination and
ordinarily the offence is complete when the combination is framed.
5. DIFFERENCE BETWEEN ABETMENT AND CRIMINAL
CONSPIRACY
o Abetment is a process by which one or more engage or employ other(s) for commission
of an offence. The former i.e., the person, who abets is called the „abettor‟, while the
latter i.e., the person who commits the offence with his own hands is called the
„principal offender‟.
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o But, conspiracy is a process by which an agreement is entered into between two or more
persons for commission of an illegal act or doing/committing a lawful/ legal act by
illegal means. The parties to the agreement are called „Conspirators‟
o In the offence of abetment, a mere combination of persons or agreement between them
is not enough but an act or illegal omission must take place in pursuance of the
conspiracy and in order to the doing of the thing conspired for,
o But in conspiracy, the mere agreement is enough, if the agreement is to commit an
offence.
o Abetment can be committed by one or more, whereas conspiracy can be committed by
two or more.
o In abetment, sanction of competent authorities is not necessary to proceed against the
abettors, who merely abetted to commit a crime.
o While in conspiracy, sanction of competent authorities is necessary to proceed against
the conspirators who merely agreed to commit a crime.
o Abetment is genus while the conspiracy is species.
o Abetment per se is not a substantive offence whereas criminal conspiracy is a
substantive
o offence by itself and is punishable.
o Abetment may be committed in various methods/ways viz., instigation, conspiracy,
intentional aid etc., but conspiracy is one of the methods of abetment.
o Crime of Abetment is explained in Sections 107 to 120 of the code while Crime of
Conspiracy is explained in Sections 120- A & 120-B of the Code.
o Section 109 of the code is concerned only with the punishment of abetments for which
no express provision is made under the Penal Code. A charge under Section 109 should,
therefore, be alone with some other substantive offence committed in consequence of
abetment.
However, the offence of criminal conspiracy is, on the other hand, an independent offence. It
is made punishable under Section 120 В of the code for which a charge under Section 109 of
the Code is unnecessary and, indeed, inappropriate.
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6. CONCLUSION
Under the Penal Code a person becomes liable as an abettor if he instigates another to commit
a crime, or engages in a conspiracy with another to commit a crime and some act is done in
furtherance of such conspiracy or if he intentionally aids another in order to facilitate the
commission of a crime. The term 'abet' in general usage means to assist, advance, aid, conduce,
help and promote. The word 'abet' has been defined as meaning to aid; to assist or to give aid;
to command, to procure, or to counsel; to countenance; to encourage; induce, or assist, to
encourage or to set another one to commit.
Thus, conspiracy is an inchoate crime and is punishable primarily because an agreement to
commit a crime is a decisive act, fraught with potential dangers; but to bring an agreement to
commit a civil wrong within the range of criminal conspiracy is to stretch the rationale of law
to the farthest limit. In its broad reach it can be made to do great evil.
The United States of America, France, United Kingdom and Canada are the some of the
countries whose Penal Laws are more strengthened by keeping the social change in view for
effective control of Law and Order. Every citizen should, with a reasonable degree of certainty
must know the potential penal consequence of any act he/she commits. Law and order can be
maintained through sociological jurisprudence that is social engineering, as opined by Rosco
Pound. The objective and philosophy of the penal law is the same as that of sociological
jurisprudence. This is unfortunate, for the absence of a distinct sentencing phase and the
attention to sentencing process which enables and impedes the growth of a mature
jurisprudence. By maintaining law and order social welfare can be attained in any society very
easily.
7. SUGGESTIONS
Crime rate in India has been considerably increasing from year to year and the convictions rate
hard become very low and that too the courts have been awarding very merge punishments by
using them vide discretionary powers.
There are more chances to get lenient punishment by the proved offenders due to lose frame
work of the legislature in fixing the punishment for several offences in the Code.
There is more probability to apply the personally favored brain and individual opinion of the
judicial officers while conforming the sentence to the offenders, due to wide discretion
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available in the present sentencing jurisprudence. So that, there are more chances to escape for
the accused from the clutches of the law.
Already Indian Criminal Justice System is working on the motto of “hundred criminals can be
escaped, but one innocent should not be punished”.
In these circumstances, if the minimum punishment is conformed in the penal statutes in
general and in Indian Penal Code in particular as it is covering substantial portion of the
offences in India by the legislature through amendments, the trial court judge will be curtailed
by the Statute and he is forced to give punishment within the limit stipulated by the legislature.
Crime is age-old phenomenon, a deep-rooted evil, born and developed along with the
development of man and gradually became universal malady afflicting each and every society.
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