1966 (9) TMI 168 - SC - Indian Laws

Summary

Issues:
Appeal against conviction under Sections 323 and 436 read with s. 109, I.P.C.

Analysis:
The case involved an appeal against the conviction of the appellant under Sections 323 and 436 read with s. 109, I.P.C. The trial court had convicted the appellant and four others for rioting and offenses under Sections 323 and 436 I.P.C. Jodha Singh was specifically charged with the offense under Section 436 I.P.C. The High Court acquitted two appellants and acquitted Jodha Singh of the offense under Section 436 I.P.C. but upheld his conviction under Section 323 I.P.C. The appellant's counsel did not dispute the conviction under Section 323 I.P.C. but challenged the conviction under Section 436 read with s. 109 I.P.C., arguing that since Jodha Singh was acquitted of setting fire to a hut, the appellant's conviction for abetment was legally flawed.

The Supreme Court analyzed the provisions of the Indian Penal Code related to abetment, specifically Sections 107, 108, 109, and 115. The Court emphasized that abetment is a distinct offense and does not require the actual commission of the crime abetted. The Court referred to previous judgments to highlight that an abettor can be guilty even if the offense abetted is not committed. The Court clarified that abetment is complete once the instigation or conspiracy to commit the offense occurs, irrespective of the actual commission of the offense. The Court also distinguished between instigating an offense and aiding in its commission, noting that in the latter case, the abetment charge might fail if the alleged perpetrator is acquitted.

In the present case, the Court found that the appellant had instigated Jodha Singh to commit the offense under Section 436 I.P.C., even though Jodha Singh was acquitted of that specific offense. The Court held that the appellant's instigation constituted abetment under Section 115 I.P.C. since the offense was not committed due to Jodha Singh's acquittal. The Court clarified that the appellant could not be held liable under Section 109 I.P.C. as the actual setting of fire was not a consequence of the appellant's abetment. Consequently, the Court modified the appellant's conviction from Section 436 read with s. 109 I.P.C. to Section 436 read with s. 115 I.P.C., which carries a lesser punishment.

The Court distinguished the present case from a previous judgment where the conviction under abetment was upheld due to the direct involvement of the accused in the commission of the offense. In this case, since the other alleged co-accused were acquitted and the actual setting of fire was not linked to the appellant's instigation, the conviction under Section 436 read with s. 109 I.P.C. was deemed incorrect in law. Therefore, the Court allowed the appeal in part, upholding the conviction under Section 323 I.P.C. but modifying the conviction under Section 436 to a lesser offense under Section 115 I.P.C. and reducing the sentence accordingly.