JAMUNA SINGH versus STATE OF BIHAR

Citation: [1967] 1 S.C.R. 469 · Decided: 22-09-1966 · Supreme Court of India · Bench: RAGHUBAR DAYAL · Disposal: Case Partly allowed
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Judgment (excerpt)

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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, 
115-
Acquittal 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 insti-
gated 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 con-
viction 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 con-
victed of abetting a ce·rtain offence 
when the person alleged to have 
committed that offence in cob.sequence of the abetment has been acquit-
ted. 
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 intentional-
Jy 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 consequ-
ence 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 there-
fore 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 maintain-
ed 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 g
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