# JAMUNA SINGH v. STATE OF BIHAR September 22, 1966

- **Citation:** [1967] 1 S.C.R. 469
- **Court:** Supreme Court of India
- **Decided:** 1966-09-22
- **Case number:** Criminal Appeal No. 481 of 1963
- **Bench:** V. Ramaswami, V. Bhargava, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jamuna-singh-v-state-of-bihar-september-22-1966-3863
- **Pages:** 6

## Headnote

Indian Penal Code, 1860 (Act 45 of 1860),
.vs. 436,
109,
115Acquittal of 1nain offender under s. 436--Convict.iua
of abeltor when
and how justified.
The appellant was convicted by the trial court, .inter a/ia, 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 ce·rtain offence
when the person alleged to have
committed that offence in cob.sequence 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 \Vith one
or more person in any conspiracy fot the doing of that act; or intentionalJy 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
ors. 116 I.P.C., even if the. offence abetted is not committed in consequence of the abetrhent.
It is only in 1he case of a pc-rson 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 Al
Barendra Kun1ar Ghosh v. The King Eazperor, L.R. 52 I.A. 40 and
Faguna Kanta Nath v. The Stale of Assam, [1959]
Supp. 2 S.C.R. I,
relied on.
Ga//u Sah v. The State of Bihar,. [1959] S.C.R. 861, held inapplicable.
(ii) In the present case the person charged \vith 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 Bl
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]
H
Conviction and sentence altered accordingly.

## Text

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JAMUNA SINGH
v.
STATE OF BIHAR
September 22, 1966.
(V. RAMASWAMI, V. BHARGAVA AND
RAGHUBAR DAYAL, JJ.j
Indian Penal Code, 1860 (Act 45 of 1860),
.vs. 436,
109,
115Acquittal of 1nain offender under s. 436--Convict.iua
of abeltor when
and how justified.
The appellant was convicted by the trial court, .inter a/ia, 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 ce·rtain offence
when the person alleged to have
committed that offence in cob.sequence 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 \Vith one
or more person in any conspiracy fot the doing of that act; or intentionalJy 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
ors. 116 I.P.C., even if the. offence abetted is not committed in consequence of the abetrhent.
It is only in 1he case of a pc-rson 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 Al
Barendra Kun1ar Ghosh v. The King Eazperor, L.R. 52 I.A. 40 and
Faguna Kanta Nath v. The Stale of Assam, [1959]
Supp. 2 S.C.R. I,
relied on.
Ga//u Sah v. The State of Bihar,. [1959] S.C.R. 861, held inapplicable.
(ii) In the present case the person charged \vith 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 Bl
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]
H
Conviction and sentence altered accordingly.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Na: 238
of 1964.
470
SUPREME COURT llEPORTS
(1967] l S.C.R.
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
Ragbubar 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 l.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. 3231.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, whoFirst-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, voluntarily causes or procures,
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JAMUNA SINGH V. STATE (Daya/, J.)
or attempts to cause or procure a thing to bedone, 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.
:Ml6 Sup.CI/66-2 .
472
SUPREME COURT REPORTS
[1967] 1 S.C.R.
It cannot be held in law that a person cannot ever be convicted
of abetting a certain offence when the person alleged to have commit·
ted 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. !07 l.P.C. a person abets the doing of an act in eitherof three
ways which can be: instigating any person to do an act; or engag·
ing 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 ins ti·
gates 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 ors. 166 l.P.C., even if the offence
abetted is not committed in consequence of the abetrnent. The
offence of abetment is complete when the alleged abettor has
instigated another or engaged with another 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 l.P.C.
Jn Barendra: Kumar Ghosh v. Thel 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 abetmtHt 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 ha\'e 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
T.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 unders.1091.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 withs. 109, but will be guilty of the offenccofs. 436read
withs. 115 l.P.C. as the offence under s. 436 1.P.C. is punishable
with imprisonment for life.
(I) L.R. 52 I.A. 40, 53.
(2) [1959] Supp, 2 S.C.R. I, S.
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JAMUNA SINGH v. STATE (Daya/, J.)
<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 9f that offence.
The case of Faguna Kanta Nath(') 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 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
(I) (1959] Supp. 2 S.C.R. 1.
(2) [1959] S.C.R. 861.
SUPllEMB COURT RBPORTS
(1967] I S.C.R.
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 he 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 there>-
fore 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 l.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 Hig!i Court and makes it an offence
under s. 436 read with s. 11 S l.P.C. The conviction of Jamuna
Singh under s. 436 read withs. 109 I.P.C. can be legally altered to one
under s. 436 read with s. 115 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. 115 J.P.C. is punishable with imprisonment up to seven
years and with fine.
Reduction in sentence is necessary.
In the result, we dismiss the appeal against the appellant's conviction under s. 3231.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 withs. 1151.P.C. and reducing the sentence
to four years' rigorous imprisonment.
G.C.
Appeal allowed in part.
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