C.G. Suri, J. - (1.) LABH Singh Petitioner, who was Clerk in the Sub -Post Office at Khanna, has been convicted and sentenced by the Special Judicial Magistrate, Patiala, under Sections 420, 468 and 471, read with Section 109 of the Indian Penal Code, for having abetted the commission of offences of cheating, forgery and use of a forged document as genuine by his co -accused. Two other persons, who had been tried jointly with Labia Singh, had been acquitted by the Magistrate as their identity as accomplices of the Petitioner had not been established.
(2.) DURING the hearing of the appeal filed by the Petitioner in the Court of Session at Patiala, all the facts alleged against him had been admitted and there were no arguments on the merits of the case. The only point of law urged on behalf of the Appellant before the Sessions Judge was that as the principal offenders had been acquitted, there could be no question of the conviction of the abettor. Reliance had in this connection been placed by the Petitioner's counsel on the Supreme Court ruling in Faguna Kanta Nath v. The State of Assam : A.I.R. 1959 S.C. 673, where the Hon'ble Judges had been pleased to oteserwe as. follows: According to Section 107, a person abets the doing of a thing when he instigates any person to do a thing or engages with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aids, by any act or illegal omission the doing of that thing. In either of the first two cases it is immaterial for the conviction of the abettor whether the person instigated commits the offence or not or the persons conspiring together actually carry out the objects of the conspiracy. In the case of abetment by aid, a person can be said to abet by aiding only when by the commission of an act he intends to facilitate the commission of the offense and does facilitate the commission thereof. Therefore, where a person is charged with abetment by aid of an offence under Section 161 and the person charged with the offence is acquitted on the ground that he had not committed the offence, no question of intentionally adding by any act or omission the commission of that offence arises. Therefore, whether the acquittal is light or wrong the conviction of the abettor also cannot be allowed to stand in the circumstances. The rule laid down was obviously intended to dispose of that particular case and was not meant to be of general application in all cases. Two exceptions to this rale may appear to have been noticed in the statute itself as illustration (a) under Explanation 3 to Section 108 and illustration (a) tinder the proviso to Section 111 of the Indian Penal Code, It cannot, therefore, be laid down as a general rule that there could be no conviction of an abettor where the person arraigned as the principal offender had been acquitted. The application or non -application of this rule would depend upon the facts and circumstances of each case. In Gallu Sah v. State of Bihar : A.I.R. 1958 S.C 813, the Hon'ble Judges of the Supreme Court had convicted tie abettor even though the person charged with the commission of the offence abetted had been acquitted It was observed that a witness could be believed with regard to a part of his evidence and disbelieved with regard to another part relating to the co -accused. The maxim of falsus in uno, falsus in omnibus was not applied, it was held that there was no violation of any rule of law in not accepting the evidence of the witnesses in solar as they said that 'B' had set fire to the but and accepting the same evidence in so far as they said that it was the accused who 'had ordered B' to set the hut on fire. This Supreme Court ruling was then cited with approval by the Hon'ble Judges of the Supreme Court in Madan Raj Bhnadari v. The State of Rajasthan : A.I.R. 1970 S.C. 436, It was recognised that there could be exceptions to the general rule laid down by the Calcutta High Court in Umadasi Dasi v. Emperor, A.I.R. 1924 CaL 1081, that a charge of abetment must fail when the substantive offence was not established against the principal.
(3.) THERE was no finding in the case in hand by the Special Judicial Magistrate that the main offences of cheating, forgery and use of a forged document as genuine had not been committed. The finding only was that the identity of the persons committing those main offences was known only to the Petitioner and that the prosecution had not been able to adduce enough evidence to connect the persons arraigned before it as principal offenders with the commission of the main crime. The Petitioner had also admitted before the Sessions Judge during the hearing of the appeal that these offences had been committed. Certain amounts had been withdrawn from the savings fund account of Bhagat Singh, P.W. 10, on the basis of forged withdrawal forms. The Petitioner had identified the persons who had impersonated the depositor on different occasions. The Petitioner had identified these unknown persons as Bhagat Singh. There could, therefore, be no doubt that the offences of forgery and cheating, etc., had been committed by someone known only to the Petitioner. The Petitioner, who had identified those main offenders as Bhagat Singh depositor, was keeping the information to himself and the prosecution had failed to establish the identity of the principal offenders. If the real culprit has got off because of the non -cooperative attitude of the Petitioner, it would not mean that the Petitioner had not abetted the commission of the main offence. The Supreme Court ruling in Faguna Kanta Nath's case (supra) is not of any help to the Petitioner as the finding in that case was that no offence had been committed by the principal accused and that there could, therefore, be no abetment of an offence if it had never been committed. In the case in hand, the main offences of cheating and forgery had admittedly been committed by some persons unknown to us and if they have got off because we could not trace them out correctly that would be no reason for acquitting the abettor when his identity was not at all a matter of any doubt and when the abettor had enabled the main offenders known only to himself to cheat by impersonating the depositor Bhagat Singh, P.W., and by forging the depositor's signatures on some application forms for withdrawal of money from the Saving Bank account of Bhagat Singh, P.W.;