Abetment is a crime apart and it is not necessary for the offence of abetment that the act abetted must be committed.

Judgment

RAGHUBAR DAYAL, J. : Jamuna Singh appeals, by special leave, against the order of the Patna High Court dismissing his appeal and confirming his conviction and sentence under Ss. 323 and 436 read with S. 109 I. P. C.

2. Along with the appellant, four other person were prosecuted for committing riot and the offence under S. :323 I. P. C. Jodha Singh, one of them, was also prosecuted for committing the offence under S. 436 I. P. C. The Assistant Sessions Judge acquitted one of the five persons and convicted the other four of the offence under S. 323 I. P. C. He also convicted Jodha Singh of the offence under S. 436 I. P. C.

3. These four convicted persons appealed to the High Court. The High Court acquitted two of the appellants before it. It acquitted Jodha Singh of the offence under S. 436 I. P. C. but maintained his conviction under S. 323 I. P. C. Jamuna Singh s.appeal was dismissed. He has come up on appeal to this Court.

4. Learned counsel for the appellant did not question the conviction of the appellant under S. 323 I. P. C. He has contended that the conviction of the appellant for the offence under S. 436 read with S. 109 I. P. C. is had in law, when Jodha Singh who is said to have set fire to the hut of Baishaki at the instigation of the appellant, has been held to be not guilty of setting fire to the but.

5. Before dealing with the contention we may refer to the relevant provisions of the Indian Penal Code.

"107.A person abets the doing of 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 an act or illegal omission the doing of that thing.

Explanation 1. A. person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing.

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Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

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.

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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 instigate B to murder C. B refuses to do so. A is guilty of abetting B to commit murder.

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109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment. be punished with the punishment provided for the offence.

Explanation. - An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation. or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

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115. 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; 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 four