IMPORTANT POINT
To abet commission of offence instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by person who is instigated.

Headnote:(i) Indian Penal Code, 1860-Section 302 r/w 109-Appellant, first wife of deceased living with accused A1, convicted under-A1 was convicted for having given poisonous substance in brandy to deceased who consumed it-Deceased was living with third wife-Abetment-Law does not require instigation to be in a particular form or that it should be in words, it might be by conduct also-Practically no evidence of any abetment to actual act committed-Past incidents were sought to refer to motive but that did not prove any intention to murder deceased much less than any instigation therefor-Conviction was liable to be set aside. (Paras 3 and 11 to 13)
       (ii) Indian Penal Code, 1860-Section 107-Abetment-Instigation need not be in particular form or by words and it could be by conduct-Act abetted should be committed in consequence of abetment or in pursuance of conspiracy as provided in Explanation to Section 109 IPC.
       Held : Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (1) instigation (b) conspiracy or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under Section 120A is bare agreement to commit an offence. It has been made punishable under Section 120B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by Section 107 (secondly), "engages in any conspiracy....for the doing of that thing, if an act or omission took place in pursuance of that conspiracy". The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in the IPC. The charge under Section 109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120B for which a charge under Section 109 is unnecessary and inappropriate. (See Kehar Singh & Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883]. Intentional aiding and active complicity is the gist of the offence of abetment. (Para 11)

Judgement Key Points

Key Points: - (!) - (!) - (!)

What is the correct scope of abetment under Section 107 read with Section 109 IPC, and whether instigation can be by conduct rather than words?

What constitutes a sufficient link between abetment and the act committed for murder, and whether motive or prior incidents alone can sustain a conviction?

What is the role and admissibility of evidence under Section 27 of the Indian Evidence Act in establishing abetment or motive in a murder case?

JUDGMENT

Arijit Pasayat, J.-Appellant who faced trial along with one Selvam was convicted for the offence punishable under Section 302 read with Section 109 of the Indian Penal Code, 1860 (in short the IPC ) and sentenced to imprisonment for life. The first accused Selvam was convicted under Section 302 IPC. The trial Court convicted first accused for having committed murder of Natarajan (hereinafter referred to as the deceased ) on the instigation of A-2 the present appellant.

2. The prosecution version as unfolded during trial is as follows:

On 12.10.1989, at about 5.00 p.m., when the first accused came to the house of the deceased and called the deceased. Gopi (PW-4) replied that the deceased had not returned from the day s work. Therefore, the first accused went away. The deceased returned home at about 6.00 p.m. At about 7.30 p.m. after taking food, the deceased was talking with his third wife, Neela and PW-4. At about 8.00 p.m. the first accused came again and requested the deceased to come out and when the deceased came out of the house, the first accused told him that he was having brandy and invited him for drinking brandy. He also showed a brandy bottle. Therefore, the deceased and the first accused went towards the backyard. While the deceased collected haystick and dropped them in the cattle shed, the first accused poured brandy in a glass of water and also mixed some white material which looked like camphor. After the deceased returned from the cattle shed, at the request of the first accused, the deceased consumed the brandy. The first accused also gave the deceased a plantain, which was taken by the deceased. Immediately thereafter, telling that the was feeling giddy, deceased fell down and fainted. PW-4 and Neela poured water on the face of the deceased. Since he did not get up, they cried. On hearing their cries, Padavattan and Ravi (PWs 2 and 3) went there. PW-4 and Neela informed PWs 2 and 3 that the first accused gave brandy to the deceased and immediately the deceased swooned. PW-2 advised them to take the deceased to the doctor. A country medical practitioner was brought, who after examining the pulse directed them to shift the deceased to the hospital. When the deceased was taken to the hospital, he was declared dead and the body was taken back home.

3. It is to be noted that appellant (A-2) was the first wife of the deceased. After some years she left him and stayed with somebody else. The deceased married for the second time. But Shanti to whom he was married died. Deceased married again and the wife s name was Neela. After this marriage, the accused came back with Gopi (PW 4) and stayed with the deceased. But she went away many times and was living with other men. It is prosecution version that at the relevant time she was staying with Selvam (A-1).

4. PW-1, the Village Administrative Officer of Kumaravadi Village was informed. He rushed to the place at about 7.30 a.m. on 13.10.1989, enquired from PW-4 and the third wife of the deceased and ascertained that the first accused and the second accused (the appellant) have mixed poison in the brandy and gave it to the deceased. Therefore, he went to Salavakkam Police Station and gave report (Ex. P-1) which was registered by PW-13 in Crime No. 222/89 under Section 302 IPC Ex. P-13 is the first information report. The inspector of police. PW-16 took up investigation.

5. On taking up the investigation, Kanniyappan (PW-16) went to the place of occurrence, inspected the same, prepared Ex. P-2, Observation Mahazar and also drew sketch Ex. P-20. He seized M.Os. 1 to 5 viz., Brandy Bottle. Tumbler, Brass Tumbler, Polythene Paper and a piece of white cloth, respectively. He held inquest over the body of the deceased between 12.30 p.m. and 3.30 p.m. and prepared Ex. P-21, inquest report. During inquest, he examined PWs 1 to 3. After inquest he forwarded the body for autopsy. On completion of investigation charge sheet was filed. During trial accused persons pleaded inn

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2004 Supreme(SC) 1304

IMPORTANT POINTTo abet commission of offence instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by person who is instigated.

What is the correct scope of abetment under Section 107 read with Section 109 IPC, and whether instigation can be by conduct rather than words?

What constitutes a sufficient link between abetment and the act committed for murder, and whether motive or prior incidents alone can sustain a conviction?

What is the role and admissibility of evidence under Section 27 of the Indian Evidence Act in establishing abetment or motive in a murder case?

Cases Referred (2)

IMPORTANT POINT
To abet commission of offence instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by person who is instigated.