MATHUR, J. - (1.) WE have heard learned Public Prosecutor and perused the judgment of the trial court dated 29. 07. 1999.
(2.) THE accused respondent Ghanshyam was charged for the offence u/ss. 307, 325 and 323 IPC, whereas the accused respondent Ambalal for the offence u/ss. 302 read with 114, 325 read with 114 and 323 read with 114 IPC. THE learned trial court convicted accused respondent Ghanshyam for the offence u/ss. 325 and 323 IPC and sentenced him to three years' rigorous imprisonment. Respondent Ambalal has been acquitted of the offence u/ss. 302 r/w 114, 325 r/w 114 and 323 r/w 114 IPC. The prosecution case as disclosed during the trial is that on 4. 5. 94, while P. W. 1 Laxmi Narain was returning after answering the call of nature, he was intercepted by accused respondent Ghanshyam. After some oral altercation, accused Ghanshyam struck a lathi blow. It is alleged that his father accused respondent Amba Lal exhorted to kill Laxmi Narain as he (Laxmi Narain) had falsely implicated him (Ambalal) in a rape case. The police after investigation laid chargesheet against both the accused persons for the offence u/ss. 307, 307/114, 325, 323 and 341 IPC. However, Shri Bahadur Singh Chandrawat, learned Sessions Judge, Pratapgarh, at the relevant time was of the view that Ambalal instigated Ghanshyam to murder Laxmi Narain and in pursuance of the instigation, lathi blow was given to Laxmi Narain. As such, even though Laxmi Narain survived, Ambalal was guilty of instigating Ghanshyam to commit the murder. The learned trial Judge after referring to Explanation 2 and Illustration (b) of Section 108 IPC framed charge against respondent Ambalal for the offence u/s. 302 r/w 114 IPC by order dated 17. 5. 96. The trial was conducted by Shri P. K. Bhatia, the succeeding Sessions Judge, Pratapgarh. The learned Sessions Judge acquitted respondent Ambalal on the ground that there is omission of allegation of abetment in the F. I. R. He also acquitted accused Ghanshyam of the offence u/sec. 307 IPC but convicted him for the offence u/sec. 325 IPC and allied offences as noticed above. As far as acquittal of accused Ghanshyam for the offence u/sec. 307 IPC is concerned, looking to the evidence on record, in our view, no interference is called for in the order of acquittal. We are not expressing any opinion in detail, else it may prejudice the appeal filed by the accused Ghanshyam challenging his conviction u/sec. 325 IPC. As far as the case of the accused Ambalal is concerned, it is not only surprising but shocking that he was put to trial for the charge of abetting murder of Laxmi Narain u/sec. 302/114 IPC irrespective of the fact that he has not died. The reasoning given by the learned Judge is totally misplaced and perverse. He has acted in a hasty and casual manner. Chapter V IPC deals with the offence of abetment. Section 107 IPC defines abetment, which means intentionally aiding an actual complicity, which precedes the actual commission of offence by principal offender either through substantial assistance to the principal offender or through some words of action, which instigates his commission of the offence. Section 108 provides that for charge of abetment under Penal Code, it must be proved that the accused instigated or aided some other person to commit the offence or to have engaged with another in a conspiracy for the commission of offence. Section 108 IPC reads as follows: " Abettor. 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 1 : The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. 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. (b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder". The learned Judge, who passed the order for adding the charge of offence u/sec. 302/149 IPC appears to have not acquainted with the provisions subsequent to Section 108 IPC as provided under Chapter V. Section 115 IPC is a penal section for the offence of abetment punishable with death or imprisonment for life, in a case, the offence abetted is not committed. Section 115 IPC reads as follows: " Abetment of offence punishable with death or imprisonment for life: 115. If offence not committed.-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; If act causing harm be done in consequence.-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. Illustration A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and, if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine".
(3.) THUS in a case, where abetment of murder is abortive i. e. it does not result in commission of offence, the abettor can be charged for offence u/sec. 115 I. P. C. and not u/sec. 302/114 IPC. The difference between Sec. 114 & 115 IPC, is that while u/sec. 114 IPC, offence is committed in consequence of abetment, as such the abettor is deemed to have committed such offence, but in case of Sec. 115 IPC, the offence abetted is not committed and no express provision is made in the Code for the punishment of such abetment. In the instant case, Sec. 115 para 2 is attracted and not Sec. 302/114 as Laxmi Narain survived but as a consequence of abetment, harm was caused to him. THUS Amba Lal could have been charged, for abetting the commission of offence of murder punishable with death or imprisonment for life by Ghanshyam, but murder having been not committed in consequence of the abetment, however it caused harm to Laxmi Narain and thereby he committed an offence punishable u/sec. 115 (2) IPC. The learned Judge completely lost sight that the first ingredient of offence under Sec. 302 IPC is homicidal death, which is completely missing in the instant case. The Code does not provide constructive liability as provided under Section 114 IPC i. e. "he shall be deemed to have committed such act or offence". The perverse approach of the learned Judge led the accused respondent Ambalal to face trial for abetting the commission of offence of capital punishment. We fail to understand in absence of charge u/sec. 115 IPC, what made the learned Public Prosecutor to opine to challenge the acquittal of accused respondent Ambalal for the offence u/sec. 302/114 IPC by filing an appeal. It is amazing that all the experts well versed in criminal law in the office of the Legal Remembrancer as well as in the office of the Govt. Advocate, have agreed to challenge order of acquittal. This speaks in volume about the casual approach among the officer holding high public offices at respective places. While saying so, we are not oblivious of the fact that "none is free from errors, and the Judges do not claim infallibility" but there is difference between error of law and casualness in approach. This augurs ill for the health of our judicial system. Less said, the better it is. Consequently, there is absolutely no reason to grant Leave to Appeal against the judgment of acquittal passed by the learned Sessions Judge, Pratapgarh. Accordingly, the application for Leave to Appeal is rejected. . ;