STATE OF RAJASTHAN Vs. GHANSHYAM

JUDGEMENT

(1.) WE have heard learned Public Prosecutor and perused the judgment of the trial court dated 29. 07. 1999.

(2.) THE accused respondent Ghanshyam was charged for the offence u/ss. 307, 325 and 323 IPC, whereas the accused respondent Ambalal for the offence u/ss. 302 read with 114, 325 read with 114 and 323 read with 114 IPC. THE learned trial court convicted accused respondent Ghanshyam for the offence u/ss. 325 and 323 IPC and sentenced him to three years' rigorous imprisonment. Respondent Ambalal has been acquitted of the offence u/ss. 302 r/w 114, 325 r/w 114 and 323 r/w 114 IPC.

(3.) THUS in a case, where abetment of murder is abortive i. e. it does not result in commission of offence, the abettor can be charged for offence u/sec. 115 I. P. C. and not u/sec. 302/114 IPC. The difference between Sec. 114 & 115 IPC, is that while u/sec. 114 IPC, offence is committed in consequence of abetment, as such the abettor is deemed to have committed such offence, but in case of Sec. 115 IPC, the offence abetted is not committed and no express provision is made in the Code for the punishment of such abetment. In the instant case, Sec. 115 para 2 is attracted and not Sec. 302/114 as Laxmi Narain survived but as a consequence of abetment, harm was caused to him. THUS Amba Lal could have been charged, for abetting the commission of offence of murder punishable with death or imprisonment for life by Ghanshyam, but murder having been not committed in consequence of the abetment, however it caused harm to Laxmi Narain and thereby he committed an offence punishable u/sec. 115 (2) IPC. The learned Judge completely lost sight that the first ingredient of offence under Sec. 302 IPC is homicidal death, which is completely missing in the instant case. The Code does not provide constructive liability as provided under Section 114 IPC i. e. "he shall be deemed to have committed such act or offence". The perverse approach of the learned Judge led the accused respondent Ambalal to face trial for abetting the commission of offence of capital punishment. We fail to understand in absence of charge u/sec. 115 IPC, what made the learned Public Prosecutor to opine to challenge the acquittal of accused respondent Ambalal for the offence u/sec. 302/114 IPC by filing an appeal. It is amazing that all the experts well versed in criminal law in the office of the Legal Remembrancer as well as in the office of the Govt. Advocate, have agreed to challenge order of acquittal. This speaks in volume about the casual approach among the officer holding high public offices at respective places. While saying so, we are not oblivious of the fact that "none is free from errors, and the Judges do not claim infallibility" but there is difference between error of law and casualness in approach. This augurs ill for the health of our judicial system.