SHRILAL Vs. STATE

JUDGEMENT

(1.) THE appellant Shri Lal was tried by the Sessions Judge of Morena for offences under Sections 114, 380, 457 and 302, I. P. C. At the end of the trial, the learned Sessions Judge found him guilty under Section 302 read with Section 109, I. P. C. and sentenced him to six years rigorous imprisonment. The accused has now preferred this appeal from Jail against the conviction and sentence. Mr. J. P. Gupta volunteered to appear on behalf of the appellant and we are indebted to him for helping us In the disposal of this appeal.

(2.) THE prosecution story, briefly stated, was that on the evening of 22. 12. 47 at about 7 p. m. the appellant Shrilal, one Hukum Singh and some other seven or eight persons with a view to abduct one Mst. Patha. came to a garden in Morena known as 'madho Prashad ka garden' where Mst. Patha and the complainant Shriya were staying. It was alleged by the prosecution that Mst. Patha was living with Shriya as his mistress and that Hukm Singh wanted her to live with him. On seeing Shri Lal, Hukm Singh and his companion and hearing their commotion, Mst. Patha closed the door of her room. Thereupon, it is alleged that Hukm Singh asked Mst. Patha to open the door and come out; and that when she did not come out the appellant Shri Lai asked Hukm Singh to fire a gun at her. Accordingly Hukm Singh fired the gun he was carrying through a window of the room and injured Mst. Patha. She died immediately afterwards. In the first information report, which was lodged by Shriya soon after the occurrence, Shri Lal, Lal and Hukm Singh were named as the persons responsible for the crime. According to the prosecution, the appellant was absconding for a long time after the alleged occurrence and the other accused persons Lal and Hukm Singh are still in hiding. The appellant denied his complicity in the crime. He pleaded alibi and also said that he had been falsely implicated on account of enmity.

(3.) AFTER hearing the learned Counsel for the appellant and the learned Government Advocate, I think the conviction of the appellant must be quashed on the short ground that the learned Sessions Judge was not justified in convicting the appellant of abetment of the offence of murder, on a charge of committing the offence of murder itself. It has already been pointed out by a Division Bench of this Court in - State v. Gauri Shanker Cri. Appl. No. 11 of 1951 (Madh-B) (A), that it is not permissible for a Court to find the accused person guilty of abetment of an offence, when he is charged only with substantive offence. In that case, the Division Bench approving the decision of a Single Bench in - Narvir Chand v. The State AIR 1952 Madh B 17 (B), observed that: The ingredients that must be proved for the abetment of an offence are quite different from those required to establish the substantive offence. A charge for the substantive offence as such gives no intimation of a trial to be held for abetment. When a person is accused of a substantive offence, he may not be conscious that he will have to meet an imputation of collateral circumstances constituting the abetment of the substantive offence itself. Again having regard to the omission of any reference to an abetment of an offence in Section 238 (2) (A), Criminal P. C. it cannot be held that an abetment of an offence is a minor offence within the meaning of Section 237, Criminal P. C.