Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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