Patna High Court
Jadunandan Jha vs Emperor on 23 September, 1936
Equivalent citations: 169IND. CAS.489, AIR 1937 PATNA 317
ORDER Rowland, J.
1. On November 26, 1935, one Dhorai Dhobi was on his way home in the evening when he was waylaid by Madho and Bhutto the along with the petitioner Jadunandan Jha at whose instigation Madho and Bhutto inflicted certain injuries on Dhorai. This was the prosecution case on which the Courts accepting these allegations, Madho and Bhutto were convicted under Sections 324 and 325, Indian Penal Code, respectively, and the petitioner Jadunandan was convicted under Sections 324 and 325 read with. 114. An appeal to the District Magistrate was unsuccessful and the Sessions Judge has declined to refer the case to this Court. Mr. Safdar Imam for the petitioner contends that the suspicion of the trial Court ought to have been aroused by the fact that the petitioner was not named as an accused in the first information report and that the only two eye-witnesses excepting Dhorai himself, are persons who were examined by the investigating officer at a comparatively late stage in the investigation, that is to say, the witness Misri was examined on December 3, 1935, and the witness Kari on December 8, 1935. These are points which would deserve consideration if the matter was open for an investigation of the facts as in an appeal; but I do not feel justified in re-opening the questions of fact decided concurrently by the Courts below.
2. The next point taken is a point of law, It is said that on the findings it was not correct in law to convict the petitioner under Sections 324 and 325 read with S. 114, though it might have been proper to convict him under those sections read with Section 109. For this argument he relies on the observations of the Privy Council in Barendra Kumar Ghosh v. Emperor 52 C. 197 : 85 Ind. Cas. 47 : A.I.R. 1925 P.C. 1 : 26 Cr.L.J. 431 : 52 I.A. 40 : 29 C.W.N. 181 : 26 P.L.R. 50 : 27 Bom.L.R. 148 : 6 P.L.T. 169 : 23 A.L.J. 314 : 41 C.L.J. 240 : 48 M.L.J. 543 : 1 C.W.N. 935 : 3 Pat. L.R. 1 Cr.(P.C.). Their Lordships have said:
As to Section 114, it is a provision which is only brought into operation when circumstances amount into abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition.... Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case, where there has been the crimes of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation the crime becomes the very crime abetted. The section is evidentiary and not punitory. Because participation de facto (as this case shows) may sometimes bo obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by Section 111 brings the case within the ambit of Section 34.
3. Their Lordships refer with approval to Abhi Misser v. Lachmi Narain 27 C. 566 : 4 C.W.N. 546. In that decision the learned Judges said that the mere presence as an abettor of a person at the commission of a crime would not bring him within Section 114 unless it was found that there had been abetment beforehand, and this is said to mean abetment on some previous occasion as distinct from an abetment followed at once by the commission of the crime. The Judges in Abhi Misser v. Lachmi Narain 27 C. 566 : 4 C.W.N. 546 referred to Queen v. Niruni 7 W.R. 49 Cr. and to Queen-Empress v. Chatradhari Goala 2 C.W.N. 49. In the former of these cases it was said:
It is clear that, to bring the prisoner within this section, it is necessary first to make out the circumstances which constitute abetment, so that "if absent" he would have been "liable to be punished as an abettor," and then to show that he was also present when the offence was committed.
4. The Judges did not in this case enter into the question whether it was necessary that there should be any particular interval of time between the abetment and the commission of the offence or that the abetment must necessarily have been on some previous occasion to that on which the crime was committed. And in Queen-Empress v. Chatradhari Goala 2 C.W.N. 49 I can find nothing to support the proposition that to make an accused liable under Section 114 there must have been an independent and antecedent abetment prior to and not part of the same transaction with the actual commission of the crime. In fact, the Judges have said with regard to Chatradhari and Gobordhan:
There is no evidence to show that when Chatradhari and Gobordhan left the masjid, or whatever place they started from in company with Akbar Khan, they shared with Akbar Khan the common object of causing the death of Nawab Feda Ali, or knew that his death was likely to be caused; nor is there any sufficient evidence, after the acquittal of Ramlal, that the number of assailants with a common object was five or more. That being so, we do not think that the charge of constructive murder under Section 302 read with Section 149 can stand. There can, however, be no doubt on the facts established by the evidence, that the charge of constructive murder under Section 302 read with Section 114 is clearly established against these two accused. They were present at the time the murder was committed, they were armed with lathis, but they did nothing to prevent the murder. They must, therefore, be taken to have been present, aiding and abetting the murder within the meaning of Section 107, Indian Penal Code.
5. Those two accused were accordingly sentenced under Section 302 read with Section 114, Indian Penal Code, to transportation for life. There is an obiter dictum of Jenkins, C.J., in Ram Ranjan Roy v. Emperor 42 C. 422 : 27 Ind. Cas. 554 : A.I.R. 1915 Cal. 545 : 16 Cr. L.J. 170 : 19 C.W.N. 28 that to come within Section 114 the abetment must be complete apart from the presence of the abettor and that a conviction under Section 302 read with Section 114 could not stand if the only abetment charged necessarily required the presence of the abettor. These observations of Jenkins, C.J., are made with reference to the words in Section 114, "person who, if absent, would be liable to be punished as an abettor;" and it may be concede ed that it is difficult to apply those words to a person whose abetment consists in actual participation and aid in the commission of the crime. Berendra Kumar Ghosh v. Emperor v. shows that such a person is liable for the crime by virtue of Section 34 in the same manner as if it were done by him alone, and there is no need to invoke Section 114. Where the abetment consists of instigation other considerations may arise. It may well be said that if the active agents had waited till the instigator's back was turned, he would have been liable to be punished as an abettor. If that is so, it goes hard to see why he should not be regarded as a "person who if absent would be liable to be punished as an abettor" within the terms of Section 114. The mere fact that after instigating the act he remains present until and while it is committed need not, on the face of the decisions cited, affect the legal position or render Section 114 inapplicable provided that there has been abetment before the commission of the crime begins. In Madras, in re Jogali Bhaigo Naiks, 27 Cr. L.J. 1198 27 Cr. L.J. 1198 : 97 Ind. Cas. 958 : A.I.R. 1927 Mad. 97 a Division Bench held:
When a person is present and abets another to commit an offence, Section 144, Indian Penal Code, is not applicable to the case. When a person who abets the commission of an offence is present and helps in the commission of the offence he is guilty of the offence and not merely of abetment except in a few cases like rape or bigamy where the person committing the offence alone can be guilty of the offence. Section 114 applies to a case where a person abets the commission of an offence some time before it takes place and happens to be present at the time when the offence is committed, and is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission.
6. This decision was followed in In re Krishnasami Naidu 51 M. 263 : 106 Ind. Cas. 584 : A.I.R. 1927 Mad. 1115 : 20 Cr.L.J. 72 : 53 M.L.J. 760 : 26 L.W. 649 : 39 M.L.T. 589 : 9 A.I.Cr. Rule 271 by a Single Judge. A Division Bench of the Bombay High Court in Ahmad Hasham v. Emperor A.I.R. 1933 Bom. 162 : 143 Ind. Cas. 273 : (1933) Cr. Cas. 474 : 34 Cr.L.J. 559 : 57 B. 329 : 35 Bom. L.R. 210 : Ind. Rul. (1933) Bom. 264 said:
Section 114 applies where a criminal first abets an offence to be committed by another person, and is subsequently present at its commission Active abetment at the time of committing the offence is covered by Section 109, and Section 111 is clearly intended for an abetment previous to the actual commission of the crime, any time, that is, before the first steps have been taken to commit it.
7. In the case before them the Judges amended the finding by substituting Section 109 for Section 114. On the Madras and Bombay authorities it can be argued that in the circumstances of the case it might have been more correct to convict under Section 109 but the accused on either view is liable to exactly the same punishment. I do not see that the interests of justice require any interference on what can only be regarded as a technical ground. Prima facie, it would seem illogical that a man should be deemed to have committed an offence if he has abetted it beforehand but does nothing at the time when it is committed and on the other hand shall not be deemed to have committed that offence if at the time when it is committed he has just abetted it, is still present and is still abetting it. The Rule is discharged.