Bombay High Court
Emperor vs Sonappa Shina Shetty on 6 December, 1939
Equivalent citations: (1940)42BOMLR205
JUDGMENT John Beaumont, Kt., C.J.
1. This is a revision application against the accused's conviction by the Presidency Magistrate, Fourth Court, under Section s 326 and 109 read with Section 111 of the Indian Penal Code. The case raises a question on the construction of Section 111.
2. The facts are that the present applicant and two others considered that they had a moral claim on a man named Ichhanna to extract Rs. 10 from him, and they were proceeding to extract those ten rupees by force. The present applicant and a man named Shanta beat Ichhanna with their fists, and another man named Sunderrao threatened him with a knife. Thereupon Ichhanna's companion, the complainant, intervened, and Sunderrao with his knife stabbed him on the ear and inflicted grievous hurt. Sunderrao has been convicted, and the question is whether the present applicant is guilty of that assault on the complainant by virtue of Section 111 of the Indian Penal Code.
3. Section 111 provides that when an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it. Then there is a proviso in these terms :-
Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
4. It is to be observed that the definition of abetment in Section 107 of the Indian Penal Code includes not merely instigation, which is the normal form of abetment, but also conspiracy and aiding, and those three forms of abetment are dealt with in the proviso to Section 111. The Section comes to this. Where an act is abetted, and the abetment takes the form of instigation of an act, and a different act is done, that different act must be a probable consequence, and committed under the influence of the instigation ; and where the abetment takes the form of aiding or a conspiracy, the different act must be a probable consequence and also with the aid or in pursuance of the conspiracy.
5. The present applicant certainly did not instigate Sunderrao to stab the complainant, nor did he aid in such stabbing; but there was no doubt a conspiracy to assault Ichhanna. If the present applicant is to be liable under Section 111, the Crown must show, not only that the assault on the complainant was a probable consequence of the conspiracy to assault Ichhanna but also that it was done in pursuance of that conspiracy. I do not see how it can be said that the stabbing of the complainant was in pursuance of the conspiracy to assault Ichhanna. The learned Magistrate did not discuss the words " in pursuance of the conspiracy ". He only discussed the question whether the stabbing of the complainant was a probable consequence of the assault upon Ichhanna, and he considered that it was. I am not sure that I should agree with that view ; but, in any case, assuming that it was a probable consequence, I am unable to see how it can be said that the stabbing of the complainant was in pursuance of the conspiracy to assault Ichhanna. In my opinion the present applicant was not liable to be convicted under Section 111 of the Indian Penal Code.
6. The application, therefore, must be allowed. Bail bond cancelled. Fine, if paid, to be repaid.
Sen, J.
7. I agree.