CASE NO.: Appeal (crl.) 834 of 2007 PETITIONER: Kulwant Singh @ Kulbansh Singh RESPONDENT: State of Bihar DATE OF JUDGMENT: 21/06/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 834 OF 2007
(Arising out of SLP (Crl.) NO. 5104 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of Patna High Court. Appeals filed by the
appellant and two co-accused were dismissed by a common
judgment.
3. Accused Uma Shankar was charged for commission of
offence punishable under Section 302 of the Indian Penal
Code, 1860 (in short the ‘IPC’) for having committed murder of
Manji Singh (hereinafter referred to as the ‘deceased’). Accused
appellant Kulwant Singh and Awadh Singh were charged in
terms of Section 302 read with Section 109 IPC for having
abetted the aforesaid murder of the deceased by Uma
Shankar. The trial Court found that the accusations have been
established against the accused persons, Kulwant and Awadh
and accordingly sentenced each for life for the offence
punishable under Section 302 read with Section 109 IPC.
4. Before the High Court the basic stand of the appellants
was that there was absolutely no motive for the gruesome
crime. The first information report (in short the ‘FIR’) has not
been proved to have been filed in the manner as claimed. The
High Court found the evidence to be cogent and credible and
held that no interference was called for.
5. Background facts in a nutshell are as follows:
Manji Singh (hereinafter referred to as ‘the deceased’)
who was a teacher in a non-affiliated Sanskrit School had
suffered expulsion from the Institution. Accused-appellant and
two co-accused and the deceased were agnates and they were
separate in mess and business from each other and were
residing in houses adjacent to each other. As usually happens,
there had been paltry dispute between females of the two
families and as a fall out, after the said incident it was alleged
that while the deceased was feeding cattle near his house,
accused Uma Shankar Singh hurled abuses on him, pursuant
to which accused appellant Kulwant Singh and accused
Awadh Singh came out and exhorted Umashankar Singh to
shoot. As for Umashankar Singh it was alleged that shortly
thereafter he having brought one barrel gun from his house,
pumped bullets in the chest of the deceased who dropped on
the ground. Though all efforts were made by the family of the
deceased for his survival before he could be admitted to Ara
Sadar Hospital, where he was taken by the family members,
he was declared dead and with these accusations fardbeyan of
Kariman Singh was recorded by Shri S.N. Tiwary, ASI of Ara
Town Police Station, following which formal First Information
Report was drawn up at the Police Station. Investigation was
undertaken. Charges were framed and accused faced trial.
As noted above, trial Court convicted the accused which
was upheld by the High Court.
6. In support of the appeal, learned counsel for the
appellant submitted that the relatives of the deceased who are
the so called eye witnesses lodged the first information report
and conviction cannot be made on the evidence of the
relatives. PW-1 was the wife of the deceased. PW-2 and PW-3
who claimed to be eye witnesses were also relatives of the
deceased.
7. Learned counsel for the State submitted that merely
because the eye witnesses are relatives of the deceased, their
evidence should not be discarded and after detailed analysis
the trial Court and the High Court have found the prosecution
version cogent.
8. It is to be noted that PWs 2 and 3 are neighbours of both
the accused and the deceased. No foundation was laid to
substantiate the allegation that the relatives had any special
reason to depose in favour of the prosecution. Since PWs 2
and 3 are neighbours of the accused and the deceased, the
question of their being partial to prosecution does not arise.
That being so, there is no question to discard the veracity of
the prosecution version. The evidence of PWs 2 and 3 was
cogent and the courts below have rightly relied upon their
evidence.
9. There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has
to be shown when a plea of partiality is raised to show that the
witnesses had reason to shield the actual culprit and falsely
implicate the accused. No evidence has been led in this regard.
10. Section 109 IPC reads as follows:-
“109- PUNISHMENT OF ABETMENT IF THE
ACT ABETTED IS COMMITTED IN
CONSEQUENCE AND WHERE NO EXPRESS
PROVISION IS MADE FOR ITS PUNISHMENT.
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.
Illustrations
(a) A offers a bribe to B, a public servant, as
a reward for showing A some favour in
the exercise of B’s official functions. B
accepts the bribe. A has abetted the
offence defined in section 161.
(b) A instigates B to give false evidence. B in
consequence of the instigation, commits
that offence. A is guilty of abetting that
offence, and is liable to the same
punishment as B.
(c) A and B conspire to poison Z. A in
pursuance of the conspiracy, procures
the poison and delivers it to B in order
that he may administer it to Z. B, in
pursuant of the conspiracy, administers
the poison to Z in A’s absence and
thereby causes Z’s death. Here B is guilty
of murder. A is guilty of abetting that
offence by conspiracy, and is liable to the
punishment for murder.”
11. Where a person aids and abets the perpetrator of a crime at
the very time the crime is committed, he is a principal of the
second degree and section 109 applies. But mere failure to
prevent the commission of an offence is not by itself an
abetment of that offence. Considering the definition in Section
109 strictly, the instigation must have reference to the thing
that was done and not to the thing that was likely to have been
done by the person who is instigated. It is only if this condition
is fulfilled that a person can be guilty of abetment by
instigation. Section 109 is attracted even if the abettor is not
present when the offence abetted is committed provided that he
had instigated the commission of the offence or has engaged
with one or more other persons in a conspiracy to commit an
offence and pursuant to the conspiracy some act or illegal
omission takes place or has been intentionally induced the
commission of an offence by an act or illegal omission. In the
absence of direct involvement, conviction for abetment is not
sustainable. (See Joseph Kurian v. State of Kerala. (AIR 1994
SC 34)
12. Section 109 provides that if the act abetted is committed
in consequence of abetment and there is no provision for the
punishment of such abetment then the offender is to be
punished with the punishment provided for the original
offence. Section 109 applies even where the abettor is not
present. Active abetment at the time of committing the offence
is covered by Section 109.
Act abetted in Section 109 means the specific offence
abetted. Mere help in the preparation for the commission of an
offence which is not ultimately committed is not abetment
within the meaning of Section l09. “Any offence” in Section
109 means offence punishable under the IPC or any Special
or Local law. The abetment of an offence under the Special or
Local law, therefore, is punishable under Section 109. I.P.C.
For constituting offence of abetment, intentional and active
participation by the abettor is necessary.
13. There is a distinction between Section 109 and Section
114. Section 114 applies where a criminal first abets an
offence to be committed by another person, and is
subsequently present at its commission. Active abetment at
the time of committing the offence is covered by Section 109.
and Section 114 is clearly intended for an abetment previous
to the actual commission of the crime, that is before the first
steps have been taken to commit it.
Section 114 is not applicable in every case in which the
abettor is present at the commission of the offence abetted.
While Section 109 is a section dealing generally with
abetment, Section 114 applies to those cases only in which not
only is the abettor present at the time of the commission of the
offence but abetment has been committed prior to and
independently of his presence.
14. When the factual scenario is tested on the background of
principles of law set out above, it is clear that Section 109 IPC
has clear application.
15. The appeal is sans merit, deserves to be dismissed which
we direct.
