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PETITIONER: JAMUNA SINGH

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 22/09/1966

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR  553            1967 SCR  (1) 469  CITATOR INFO :  F          1990 SC1210  (5,7)

ACT: Indian Penal Code, 1860 (Act 45 of 1860), ss. 436, 109, 115- Acquittal  of  main  offender  under  s.  436-Conviction  of abettor when and how justified.

HEADNOTE: The appellant was convicted by the trial court, inter  alia, of  an offence under s. 436 read with S. 109 of  the  Indian Penal  Code for having instigated one of his  co-accused  to burn a hut.  The High Court acquitted the said co-accused of the  offence under s. 436 but maintained the  conViction  of the appellant for that offence read with s. 109.  In  appeal by  special leave before this Court it was urged that  after the   acquittal  of  the  main  offender   the   appellant’s conviction  for  abetting  the  offence  under  s.  436  was illegal. HELD:(i)  It cannot be held in law that a person  cannot  be convicted of   abetting  a certain offence when  the  person alleged to have committed     that offence-in consequence of the   abetment  has  been  acquitted.The  question  of   the abettor’s guilt depends on the nature of the act abetted and the  manner  in which the abetment was made.  Under  s.  107 I.P.C. a person abets the doing of an act in either of three ways  which can be instigating any person to do an  act;  or engaging  with one or more person in any conspiracy for  the doing of that act; or intentionally aiding the doing of that act.  If a person instigates another or engages with another in  a  conspiracy  for  the doing of  an  act  which  is  an offence.,  he abets such an offence and would be  guilty  of abetment under s. 115 or s. 116 I.P.C., even if the  offence abetted is not committed in consequence of the abetment.  It is  only  in  the case of a 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. [472 A-C; 473 A] Barendra Kumar Ghosh v. The King Emperor L.R. 52 I.A. 40 and Faguna  Kanta  Nath v. The State of Assam,  [1959]  Supp.  2 S.C.R. 1, relied on.

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Gallu  Sah v. The State of Bihar,. [1959] S.C.R.  861,  held inapplicable. (ii)  In the present case the person charged with  the  main offence  under  s. 436 had been acquitted and there  was  no finding  of  the courts below that the fire was set  by  any person who was participating in the incident along with  the appellant  and at his instigation.  The appellant could  not therefore be held guilty under s.436 read with s.109.[474 B] It  had been held by the High Court that the  appellant  had instigated  his co-accused to commit the offence,  under  s. 436  I.P.C.  He must therefore be held guilty under  s.  436 read with s. 115 I.P.C. [474 E] Conviction and sentence altered accordingly.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 238  of 1964. 470 Appeal  by special leave from the judgment and  order  dated July 27, 1964 of the Patna High Court in Criminal Appeal No. 481, of 1963. D. P. Singh, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Raghubar Dayal, J. Jamuna Singh, appeals, by special  leave, against  the  order of the Patna High Court  dismissing  his appeal and confirming his conviction and, sentence under ss. 323 and 436 read with s. 109, I. P. C. Along with the appellant, four other persons were prosecuted for  committing  riot and the offence under  s.  323  I.P.C. Jodha Singh, one of them, was also prosecuted for committing the offence under 436.  I.P.C. The Assistant Sessions  Judge acquitted  one of the five persons and convicted  the  other four  of the offence under s. 323 I.P.C. He  also  convicted Jodha Singh of the offence under s. 436 I.P.C. These  four  convicted persons appealed to the  High  Court. The  High Court acquitted two of the appellants  before  it. It acquitted Jodha Singh of the offence under s. 436  I.P.C. but  maintained  his conviction under s. 323  I.P.C.  Jamuna Singh’s  appeal was dismissed.  He has come up on appeal  to this court. Learned  counsel  for  the appellant did  not  question  the conviction  of  the  appellant under s. 323  I.P.C.  He  has contended  that  the  conviction of the  appellant  for  the offence under s. 436 read with s. 109 I.P.C. is bad in  law, when Jodha Singh, who is said to have set fire to the hut of Baishaki at the instigation of the appellant, has been  held to be not guilty of setting fire to the hut. Before  dealing  with the contention, we may  refer  to  the relevant provisions of the Indian Penal Code.               "  107.  A person abets the doing of a  thing,               who  First-Instigates many person to  do  that               thing;  or, Secondly-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               Thirdly-Intentionally  aids,  by  an  act   or               illegal omission, the doing of that thing.               Explanation   I  -A  person  who,  by   wilful               misrepresentation, or by wilful concealment of               a material fact which he is bound to disclose,

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             voluntarily causes or procures, 471               or attempts to cause or procure a thing to  be               done,  is said to instigate the doing of  that               thing.               Explanation  2-Whoever, 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  facilitates  the               commission  thereof, is said to aid the  doing               of that act.               108.  A  person 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  of  committing an offence with  the  same               intention or knowledge as that of the abettor.               Explanation  2-To  constitute the  offence  of               abetment  it  is not necessary  that  the  act               abetted  should  be  committed,  or  that  the               effect  requisite  to constitute  the  offence               should be caused.                       Illustrations               (a)  A instigates B to murder C. B refuses  to               do  so.  A is guilty of abetting B  to  commit               murder.               109.  Whoever abets any offence shall, if  the               act abetted is committed in consequence of the               abetment, and no express provision is made  by               this Code for the punishment of such abetment,               be  punished with the punishment provided  for               the offence.               Explanation  -an Act or offence is said to  be               committed in consequence of abetment, when  it               is    committed   in   consequence   of    the               instigation, or in pursuance of the conspiracy               or   with  the  aid  which   constitutes   the               abetment.               115.  Whoever  abets  the  commission  of   an               offence punishable with death or  imprisonment               for  life,  shall  if  that  offence  be   not               committed in consequence of the abetment,  and               no express provision is made by this Code  for               the  punishment of such abetment, be  punished               with imprisonment of either description for  a               term  which  may extend to  seven  years,  and               shall also be liable to fine;               and if any act for which the abettor is liable               in  consequence  of the  abetment,  and  which               causes  hurt  to  any  person,  is  done,  the               abettor  shall  be liable to  imprisonment  of               either description for a term which may extend               to fourteen years,and shall also be liable  to               fine. (16 Sup.CI/66-2 472 It  cannot  be  held in law that a  person  cannot  ever  be convicted  of  abetting a certain offence  when  the  person alleged to have committed that offence in consequence of the abetment has been acquitted.  The question of the  abettor’s guilt  depends  on  the nature of the act  abetted  and  the manner in which the abetment was made.  Under s. 107  I.P.C. a  person abets the doing of an act in either of three  ways which  can  be-.  instigating any person to do  an  act;  or engaging  with one or more person in any conspiracy for  the

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doing of that act; or intentionally aiding the doing of that act.  If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he  abets  such an offence and would be guilty  of  abetment under  s. 115 or s. 166 I.P.C., even if the offence  abetted is  not  committed  in consequence  of  the  abetment.   The offence of abetment is complete when the alleged abettor has instigated another or engaged with an other in a  conspiracy to commit the offence.  It is not necessary for the  offence of abetment that the act abetted must be committed.  This is clear from Explanation 2 and illustration (a) thereto, to s. 108 I.P.C. In Barendra Kumar Ghosh v. The King Emperor(1) it was said "Abetment  does not in itself involve the actual  commission of the crime abetted.  It is a crime apart." This  Court reiterated it and said in Faguna Kanta  Nath  v. The State of Assam(2) :               "Under  the  Indian  law  for  an  offence  of               abetment it is not necessary that the  offence               should  have  been committed.  A  man  may  be               guilty  as an abettor whether the  offence  is               committed or not." In  the  present  case,  the  appellant  is  said  to   have instigated  Jodha  Singh to commit the offence  of  mischief under s. 436.  I.P.C. Jodha Singh has been acquitted of  the offence under s. 436.  It can therefore be said that he  did not  set  fire  to the hut  of  Baishaki.   The  appellant’s instigating Jodha to commit the offence under s. 436  I.P.C. did  amount to his abetting the offence under s. 436 and  he would  therefore be guilty of the offence of abetment  under s.  115 I.P.C. since Jodha did not commit the  offence.   It may  be  mentioned that Baishaki’s hut was actually  set  on fire  by  someone,  but another’s setting fire  not  on  the instigation  of  the appellant will not make  the  appellant guilty  of  abetment under s. 109 I.P.C. as the  setting  on fire by another was not in consequence of the abetment.  The appellant  will  therefore not be guilty of the  offence  of abetment  under s. 436 I.P.C. read with s. 109, but will  be guilty  of the offence of S. 436 read with s. 115 I.P.C.  as the   offence  under  s.  436  I.P.C.  is  punishable   with imprisonment for life. (2) [1959] Supp. 2 S.C.R. 1, 5. (1) L.R. 52 I.A. 40, 3. 473 It  is only in the case of a 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.  The case of Faguna Kanta Nath(1) lays  this  down.  The observations of this  Court  in  that case, at p. 7, bring out clearly the distinction in the case of  persons  instigating another or engaging  in  conspiracy with another on the one hand and that of a person aiding the person  in committing a certain offence.   The  observations are:               "It  is  not  the prosecution  case  that  the               appellant  abetted the offence by  instigating               Khalilur   Rahman   to  demand   the   illegal               gratification; nor has the prosecution set  up               or  proved  a case of conspiracy  between  the               appellant   and   Khalilur  Rahman   for   the               commission of an offence under s. 161.  On the               findings  of the Court the appellant  received               the money for and on behalf of Khalilur Rahman               and  the evidence of the complainant  is  that

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             Khalilur Rahman had asked him to hand over the               money to the appellant.  If Khalilur Rahman is               acquitted  and therefore the offence under  s.               161  is held not to have been committed,  then               in  this  case no  question  of  intentionally               aiding by an act or omission the commission of               the offence arises." The  case  reported as Gallu Sah v. The  State  of  Bihar(2) ’referred  to by the Court below, is not applicable  to  the facts of the present case.  There, one Budi was said to have set fire to a hut at the instigation of Gallu Sah.  Budi had been  acquitted by the High Court.  Gallu  Sah’s  conviction for  the  offence under s. 436 read with s, 109  I.P.C.  was affirmed  by  the  High  Court.   This  Court  repelled  the contention  that Gallu Sah’s conviction was bad in law.   It held it to be correct as the hut had been set on fire by one of the persons -of the unlawful assembly of which Gallu  Sah was a member.  The Court observed at p. 866:               "It seems to us, on the findings given in  the               case, that the person who set fire to the  hut               of  Mst.  Rasmani must be one of  the  persons               who were members of the unlawful assembly  and               he  must  have done so in consequence  of  the               order  of  the present appellant.  It  is,  we               think, too unreal to hold that the person  who               set  fire to the hut of Mst.  Rasmani  did  so               irrespective,  or independently, of the  order               given  by  the  present  appellant.   Such   a               finding,  in our opinion, would be unreal  and               completely divorced from the facts of the case               and  it  is  necessary to  add  that  no  such               finding  was  given  either  by  the   learned               Assistant   Sessions  Judge  who   tried   the               appellant or the learned (1) [1959] Supp. 2 S.C.R. 1. (2) [1959] S.C.R. 861. 474               Judge  of  the  High Court.  As  we  read  the               findings of the learned Judge, it seems  clear               to  us that he found that the person  who  set               fire  to  the hut of Mst.  Rasmani did  so  in               consequence  of  the  abetment,  namely,   the                             instigation of the appellant." In the present case, there is no finding of the Court  below and  it cannot be said that the fire was set by  any  person who  was  participating in the incident  along  with  Jamuna Singh and at his instigation.  Three alleged co-accused have been  acquitted and therefore cannot be said to  have  taken part  in  the incident.  Jodha Singh and Jamuna  Singh  took part in the incident according to the findings of the  Court below  and  Jodha  Singh did not set fire to  the  hut.   It follows  that it cannot be held that Baishaki’s hut was  set fire to by any one at the instigation of Jamuna Singh. The  result  is that Jamuna Singh’s conviction  under  S.436 read with s. 109 I.P.C. is not correct in law. Jamuna  Singh’s  instigating  Jodha Singh  to  set  fire  to Baishaki’s  hut is held established by the High.  Court  and makes it an offence under s. 436 read with S. 115 I.P.C. The conviction  of  Jamuna Singh under s. 436 read with  s.  109 I.P.C. can be legally altered to one under s. 436 read  with s. II 5 I.P.C. the latter being a minor offence, The  appellant  was  sentenced  to  eight  years’   rigorous imprisonment  under s. 436 read with s. 109 I.P.C.  and  the offence under s. 436 read with s. II 5 1. P.C. is punishable with   imprisonment  up  to  seven  years  and  with   fine.

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Reduction in sentence is necessary. In the result, we dismiss the appeal against the appellant’s conviction under s. 323 I.P.C. and allow it with respect  to his conviction under s. 436 read with s. 109 I.P.C. which we modify by altering it .to one under s. 436 read with s.  115 I.P.C.  and  reducing the sentence to four  years’  rigorous imprisonment. G. C.                 Appeal allowed in part. 475