This article is written by Hemanth Chennapuram of 7th Semester of Nyaya Vidya Parisidh, Andhra University, an intern under Legal Vidhiya
Abstract:
This research paper explores the legal concepts of attempt and abetment in criminal law. Attempt refers to the preparatory acts undertaken with the intent to commit a specific offense, while abetment refers to actively aiding, instigating, or encouraging the commission of a crime. The paper examines the theoretical underpinnings, legal definitions, elements, and challenges associated with these concepts. It also discusses the rationale for punishing attempts and abetment, their evolution in common law jurisdictions, and the varying approaches taken by different legal systems. Additionally, this paper examines recent case laws and legal reforms related to attempt and abetment, highlighting potential areas for future research and improvement in this field.
Key words:
Mens rea, Actus Rea, Individual Culpability, Abetment
Introduction :
In the realm of criminal law, the concepts of attempt and abetment play a significant role in determining the culpability and punishment for individuals involved in criminal activities. Attempt refers to the preparatory acts undertaken with the specific intent to commit a crime, while abetment involves actively aiding, instigating, or encouraging the commission of a crime by another person. Understanding the principles and nuances of attempt and abetment is crucial for legal scholars, practitioners, and policymakers alike, as they shape the boundaries of criminal liability and the administration of justice. Moreover, the research paper will analyze the evolution of attempt and abetment laws over time, focusing on historical developments, changes in common law jurisdictions, and the influence of international criminal law. We will examine significant case laws that have shaped the application and interpretation of attempt and abetment statutes, along with recent legal reforms aimed at addressing emerging challenges in prosecuting these offenses. Throughout the paper, we will examine the rationale for punishing attempts and abetment, considering the policy considerations and theories of deterrence, proportionality, prevention, and the rehabilitation of offenders. We will also discuss victim-centered approaches to address the harms caused by attempted crimes and abetment.
Objective :
The objective of this research paper is to provide a comprehensive analysis of the legal concepts of attempt and abetment in criminal law. By delving into their historical, theoretical, and practical dimensions, we aim to shed light on their significance and implications for the legal system. Furthermore, the paper will explore the rationale behind punishing attempts and abetment, their evolution in common law jurisdictions, and the variations in approaches among different legal systems.
[1]Attempt and Abetment:
In legal terms, “attempt” and “abetment” are two distinct concepts often associated with criminal offenses. Let’s explore each one:
1. Attempt: Attempt refers to an act that is done with the intention to commit a specific crime but falls short of actually completing the crime. It involves taking substantial steps towards the commission of an offense but failing to achieve the final result. The key element in establishing an attempt is the presence of intent or the “culpable mental state” to commit the crime.
For example, if someone plans to commit a robbery, gathers the necessary tools, and goes to the intended location but is apprehended before they can carry out the actual robbery, they can be charged with attempted robbery. The person’s actions demonstrate a clear intention to commit the crime, but they were unable to do so due to external factors or intervention.
2. Abetment: Abetment refers to actively encouraging, instigating, or assisting someone in the commission of a crime. It involves providing support, guidance, or encouragement to the principal offender, leading to the commission of the offense. Abetment can be in the form of aiding, procuring, or conspiring with the principal offender.
For example, if an individual knowingly provides a firearm to another person with the intention that it be used in a murder, they can be charged with abetment to murder. By actively assisting the principal offender in acquiring the weapon, the person contributes to the commission of the crime.
Evolution of attempt and abetment laws:
Evaluation of attempt and abetment laws involves a comprehensive analysis of their effectiveness, clarity, consistency, and fairness. This evaluation is crucial as it impacts the determination of criminal liability, sentencing, and the overall administration of justice. The following aspects can be considered when evaluating attempt and abetment laws:
- Legal clarity and definition:
The clarity of attempt and abetment laws is crucial to ensure their consistent application. Laws should provide clear definitions, elements, and criteria for establishing attempts and abetment. Ambiguities or lack of specificity may lead to confusion among legal practitioners, judges, and jurors, potentially resulting in inconsistent outcomes.
- Mens Rea and Actus Reus Requirements:
The evaluation of attempt and abetment laws should consider the balance between the mental culpability (mens rea) and the actual commission of the crime (actus reus). The mental state required for attempt and abetment should be appropriately defined and aligned with the gravity of the intended offense. Striking the right balance helps ensure that individuals are held accountable while avoiding overly punitive measures.
- Punishment and Proportionality:
The evaluation should assess whether the punishment for attempts and abetment is proportionate to the harm caused or intended. Overly harsh penalties for attempts might discourage individuals from abandoning their criminal endeavors, while insufficient penalties may fail to deter potential offenders. The evaluation should consider the effectiveness and fairness of sentencing guidelines specific to attempts and abetment.
- Consistency Across Jurisdictions:
Comparison of attempt and abetment laws across different jurisdictions is crucial to evaluate their consistency. Analysing variations in legal approaches allows identification of any disparities, inconsistencies, or gaps that may lead to inequitable outcomes or hinder effective cross-border cooperation when prosecuting crimes of attempts and abetment.
- Relationship with Primary Liability:
The evaluation of attempt and abetment laws should examine the relationship between primary offenders and those who aid, instigate, or encourage them. It is important to ensure that abettors are held accountable in proportion to their involvement in the crime, without unduly compromising the primary offender’s responsibility. Evaluating the interplay between primary liability and secondary liability can help identify any flaws or imbalances in the legal framework.
- Challenges in Prosecution:
An evaluation of attempt and abetment laws should also consider the practical challenges faced by prosecutors in proving these offenses. Factors such as the burden of proof, evidentiary requirements, and any legal obstacles that impede successful prosecution should be examined. Any gaps or shortcomings in the legal framework should be identified and addressed to facilitate effective prosecution.
- Recent Legal Reforms and Case Laws:
Evaluating recent legal reforms and significant case laws pertaining to attempt and abetment can help assess whether the legal system is adapting to evolving challenges. Analysing the impact of legal reforms and interpretations by courts can provide insights into the effectiveness and relevance of attempt and abetment laws in contemporary society.
- International Harmonization:
With increasing cross-border criminal activities, it is important to evaluate the harmonization of attempt and abetment laws at the international level. Assessing the alignment of national laws with international standards, such as those found in treaties and conventions, can facilitate cooperation in combating transnational crimes and extradition proceedings.
By evaluating these aspects, attempt and abetment laws can be assessed for their effectiveness, fairness, and alignment with societal expectations. The outcomes of such evaluations can guide legal reforms, improve consistency, and ensure the just and efficient functioning of the criminal justice system
[2]Rationale for Punishments attempt and abetment:
The rationale for punishing attempt and abetment in criminal law is rooted in several key principles and policy considerations. Here are some common justifications for the criminalization and punishment of attempts and abetment:
1. Prevention and Deterrence: Punishing attempts and abetment acts as a deterrent to potential offenders, discouraging them from engaging in criminal conduct. By making it clear that even the intention or assistance in committing a crime can led to legal consequences, the law aims to prevent the commission of actual offenses.
2. Individual Culpability: Attempting to commit a crime or assisting someone in its commission demonstrates a level of culpability and moral blameworthiness. The law recognizes that individuals who take substantial steps towards committing a crime or actively facilitate its commission should be held accountable for their actions, even if the crime itself is not completed.
3. Protection of Society: The criminalization of attempts and abetment is driven by the need to protect society from potential harm. Recognizing that individuals who attempt or aid in criminal acts pose a threat to public safety, the law aims to intervene and neutralize that threat before it leads to actual harm or damage.
4. Maintenance of Social Order: Punishing attempts and abetment helps maintain social order by upholding the rule of law. It sends a message that society will not tolerate or condone criminal behaviour, regardless of whether the crime is fully executed or not. This promotes a sense of fairness and justice among the general population.
5. Proportional Punishment: The punishment for attempts and abetment is often less severe than that for the completed offense. This approach reflects the principle of proportionality, ensuring that the punishment aligns with the level of harm caused or intended. By distinguishing between completed offenses and incomplete attempts, the law seeks to impose penalties that are commensurate with the level of criminal activity.
6. Evidentiary Value: Criminalizing attempts and abetment can provide valuable evidence for the prosecution of cases involving criminal conspiracies or organized crime. By focusing on the actions taken or assistance provided before the commission of the offense, law enforcement agencies can gather evidence and disrupt criminal networks more effectively.
7. Legal Certainty: Punishing attempts and abetment contributes to legal certainty by clarifying the boundaries of permissible conduct. It provides guidance to individuals and helps them understand the legal consequences of their actions, fostering a more predictable and stable legal environment.
It’s important to note that the specific justifications and emphasis on these rationales may vary across jurisdictions and legal systems, reflecting the cultural, social, and policy considerations of each jurisdiction.
[3]Case laws and legal reforms related to attempt and abetment:
Case laws :
- State of Rajasthan v. Mehar Singh (2015) – The Supreme Court of India held that the intention to commit a crime is an essential element to establish an attempt, and mere preparation or planning without a clear intention is not sufficient to constitute an attempt.
- Shafi Mohammad v. State of Himachal Pradesh (2018) – The Himachal Pradesh High Court ruled that the act of abetment requires active involvement or instigation by the accused, and mere passive observation or presence at the scene of the crime is insufficient to establish abetment.
Legal Reforms :
- The Criminal Law (Amendment) Act, 2013 – This amendment to the Indian Penal Code introduced significant changes to the laws related to attempt and abetment. It expanded the definition of attempt and included situations where an act is done with the intention to cause a particular result, even if it falls short of achieving that result. The amendment also introduced stricter punishments for certain offenses related to attempt and abetment.
- The Criminal Law (Amendment) Act, 2018 – This amendment introduced specific provisions to address the issue of mob lynching in India. It included provisions to hold individuals accountable for abetting or participating in mob violence, emphasizing the need to prevent and punish acts of mob lynching.
Conclusion :
In conclusion, the research paper has explored the concepts of attempt and abetment in the context of criminal law. The analysis has shed light on the rationale for punishing attempts and abetment, highlighting various justifications such as prevention and deterrence, individual culpability, protection of society, maintenance of social order, proportional punishment, evidentiary value, and legal certainty. the research paper also emphasizes that attempts and acts of abetment occupy a crucial place in criminal law, serving as vital tools for preventing and addressing criminal activity. Understanding and analysing the complexities of attempt and abetment contribute to a more comprehensive and effective legal framework, promoting public safety, and upholding the principles of justice and accountability.
References:
- https://www.tutorialspoint.com/abetment-definition-and-meaning#:~:text=Abetment%20is%20defined%20as%20%22the,or%20elimination%20of%20a%20nuisance.
- https://blog.ipleaders.in/difference-between-abetment-and-criminal-conspiracy/
- https://www.nujssacj.com/post/getting-away-with-murder-abetment–attempt-to-abetment–abetment-to-attempt-to-suicide
[1] https://www.tutorialspoint.com/abetment-definition-and-meaning#:~:text=Abetment%20is%20defined%20as%20%22the,or%20elimination%20of%20a%20nuisance.
[2] https://blog.ipleaders.in/difference-attempt-preparation-ipc/#:~:text=The%20court%20commented%20that%20preparation,after%20preparations%20have%20been%20made.
[3] https://www.nujssacj.com/post/getting-away-with-murder-abetment–attempt-to-abetment–abetment-to-attempt-to-suicide
