KULWANT SINGH@ KULBANSH SINGH versus STATE OF BIHAR

Citation: [2007] 7 S.C.R. 1178 · Decided: 21-06-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
KULWANT SINGH@ KULBANSH SINGH 
\'. 
ST A TE OF BIHAR 
JUNE 21, 2007 
B 
[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] 
Penal Code, 1860: 
s.302 rlw s.109-Murder-Allegation that on exhortation by accused-
C Appellant, co-accused fired bullets on deceased-Corrviction of Appellant 
under s.302 rlw 109-Propriety of-On facts, held, proper-Evidence of eye-
witnesses cogent-No reason for them to shield the actual culprit and falsely 
implicate Appellant-s. I 09 clearly applicable. 
D 
E 
F 
G 
H 
s. 109-Applicability of-Discussed 
ss. I 09 and 114-Distinction between-Outlined. 
Evidence-Of relatives of deceased-Appreciation-Held: No 
proposition in law that the relatives are to be treated as untruthful witness. 
According to the prosecution, on exhortation of accused-appellant and 
a co-accused 'A', another co-accused 'U' brought a barrel gun from his house 
and pumped bullets into the chest of the deceased resulting in his death. Trial 
Court convicted Appellant under Section 302 read with Section 109 IPC for 
having abetted the aforesaid murder. High Court upheld the conviction. 
In appeal to this Court, the conviction of Appellant was challenged on 
the ground that the eye witnesses in the ca~e at hand wer~ relatives of the 
deceased and no conviction can be made on their evidence. 
Dismissing the appeal, the Court 
HELD: 1.1. 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 
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question to discard the veracity of the prosecution version. The evidence of A 
PWs 2 and 3 was cogent and the courts below have rightly relied upon their 
evidence. !Para 8111182-B, C) 
1.2. 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 B 
culprit and falsely implicate the accused. No evidence has been led in this 
regard. !Para 9111182-C, DI 
2.1. 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 C 
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 "Y the person 
who is instigated. It is only if this condition is fulfilled that a person can be 
guilty ofabetment by instigation. Section 109 is attracted even ifthe abettor D 
is not present when the offence abetted is committed provided that he had 
instigated the commission of the offel]~e or:-has engaged 'Witk one·or -more 
other persons in a cQnsptracy to commit an offence and pursuant to the 
conspiracy ,some act or illegal omission takes place or has been intentionally 
induc.e<rthe commission of an offence by an act or illegal omission. In the 
absence of direct involvement, conviction for abetment is not sustainable. 
E 
tpara 11) 11183-C, D, E) 
2.2. 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 F 
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. tpara 12) 11183-F) 
2.3. Act abetted in Section 109 means the specific offence abetted. Mere 
help in the preparation for the commission of an offence which is not G 
ultimately committed is not abetment within the meaning of Section 109. "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. l.P.C. For constituting offence 
of abetment, intentional and active participation by the abettor is necessary. 
!Para 12) (1183-G, H; 1184-A) H 
1180 
SUPREME COURT REPORTS 
[2007) 7 S.C.R. 
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A 

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