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Showing contexts for: section 118 penal code in P. Gopalakrishnan @ Dileep vs State Of Kerala on 19 April, 2022Matching Fragments
The petitioner is the 1st accused in Crime No.6/2022 of Crime Branch Police Station, (hereinafter referred to as Crime No.6/2022). This Crl.M.C. is filed for quashing all further proceedings pursuant to the FIR registered in the said case, which is produced as Annexure-9. The said crime is registered against him and four others, alleging offences punishable under Sections 506, 116, 118, 120B r/w. Section 34 of the Indian Penal Code (IPC).
18. While considering the said contentions, it is to be noted that some of the crucial offences incorporated in Annexure-9 are under Sections 116 and 118 of the IPC, which relate to the abetment of offences, including the offence punishable with death or imprisonment for life. The offence of 'abetment' is defined under Section 107 IPC which reads as follows:
"107. Abetment of a thing A person abets the doing of a thing, who-
First-Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing."
"When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means."
From the aforesaid provision, it is clear that in order to attract the offence of abetment, as defined under section 107, there must be some positive act or an illegal omission in pursuance of a conspiracy between the accused. Since the offences under sections 116 and 118 are different forms of offences of abetment, the essential requirement for making out the said offences are the same as mentioned above. On going through the contents of Annexure-9, no such positive act or illegal omission is seen. It only mentions a design or agreement without any consequent action or omission. Therefore, it cannot be concluded that the offences under Sections 116 and 118 of IPC are made out from the information furnished. However, the aforesaid provisions can be incorporated if there are allegations against the accused, which would attract the offence under section 120B. This is because, as per section 120B of IPC, the punishment for the criminal conspiracy (in case no express punishment is provided in IPC) is provided in the same manner as if the accused had committed the offence of abetment. Therefore, in such circumstances, if the accused is found to have committed criminal conspiracy to commit an offence for which no express punishment is provided in the IPC, he is deemed to have committed the offence of abetment, for the purpose of imposing punishment. Thus the same depends upon whether the offence under section 120B of IPC is made out and I shall deal with the said question when considering the ingredients of section 120B IPC at a later part of this order.
20. What remains is the offence under Section 120B of IPC. The punishment for the offence under Section 120B IPC in respect of criminal conspiracy to commit an offence with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the IPC for punishment for such conspiracy, be punishable in the same manner as if he had abetted such offence. Thus, it was pointed out that the punishment of section 120B depends upon the offence for the commission of which the conspiracy was hatched. Therefore, it was contended that, in this case, while registering Annexure-9 FIR, no specific offence for which conspiracy is allegedly hatched is seen mentioned. Other than section 120B, the offences alleged are under Sections 116, 118 and 506 of the IPC. Thus the petitioner contends that, since the aforesaid offences are not made out from the information furnished, the offence of conspiracy would not lie independently. It is true that, I had already found that the offences under Sections 116, 118 and 506 of IPC are not attracted from the allegations contained in Annexure-9. However, it is a fact that, subsequently, a further report was submitted by the police incorporating the offence under Section 302 IPC. The contention of the learned Senior Counsel in this regard is that since the conspiracy alleged in Annexure-9 is in respect of the commission of an offence under Sections 116, 118 and 506 IPC, which are not attracted, it cannot be concluded that it reveals any cognizable offence. In such circumstances, the registration of Annexure-9 was illegal, and subsequent inclusion of Section 302 IPC cannot improve the case of the police, contends the learned Senior Counsel for the petitioner. However, I am not inclined to accept the aforesaid contention. This is particularly because what is relevant is not the offences mentioned explicitly in the FIR but what is revealed from the contents of the information furnished therein. Merely because a particular provision of the offence was omitted to be included in the First Information Statement, it cannot be concluded that the aforesaid offence is not attracted. In case the contents of the First Information Report reveal the commission of a particular offence, non mentioning the provision of the said offence is not material, and it would not adversely affect the prosecution case. In Bijumon V. State of Kerala and Anr. [2018 (3)KLT 627, the aforesaid situation was dealt with by this Court in paragraph 18 thereof in the manner as follows: