JADUNANDAN JHA Vs. EMPEROR

JUDGEMENT

(1.) On November 26, 1935, one Dhorai Dhobi was on his way home in the evening when he was waylaid by Madho and Bhutto the along with the petitioner Jadunandan Jha at whose instigation Madho and Bhutto inflicted certain injuries on Dhorai. This was the prosecution case on which the Courts accepting these allegations, Madho and Bhutto were convicted under Secs.324 and 325, Indian Indian Penal Code, respectively, and the petitioner Jadunandan was convicted under Secs.324 and 325 read with. 114. An appeal to the District Magistrate was unsuccessful and the Sessions Judge has declined to refer the case to this Court. Mr. Safdar Imam for the petitioner contends that the suspicion of the trial Court ought to have been aroused by the fact that the petitioner was not named as an accused in the first information report and that the only two eye-witnesses excepting Dhorai himself, are persons who were examined by the investigating officer at a comparatively late stage in the investigation, that is to say, the witness Misri was examined on December 3, 1935, and the witness Kari on December 8, 1935. These are points which would deserve consideration if the matter was open for an investigation of the facts as in an appeal; but I do not feel justified in re- opening the questions of fact decided concurrently by the Courts below.

(2.) The next point taken is a point of law, It is said that on the findings it was not correct in law to convict the petitioner under Secs.324 and 325 read with S. 114, though it might have been proper to convict him under those sections read with Section 109. For this argument he relies on the observations of the Privy Council in Barendra Kumar Ghosh V/s. Emperor 52 C. 197 : 85 Ind. Cas. 47 : A.I.R. 1925 P.C. 1 : 26 Cr.L.J. 431 : 52 I.A. 40 : 29 C.W.N. 181 : 26 P.L.R. 50 : 27 Bom.L.R. 148 : 6 P.L.T. 169 : 23 A.L.J. 314 : 41 C.L.J. 240 : 48 M.L.J. 543 : 1 C.W.N. 935 : 3 Pat. L.R. 1 Cr.(P.C.). Their Lordships have said: As to Section 114, it is a provision which is only brought into operation when circumstances amount into abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition.... Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case, where there has been the crimes of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation the crime becomes the very crime abetted. The section is evidentiary and not punitory. Because participation de facto (as this case shows) may sometimes bo obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by Section 111 brings the case within the ambit of Section 34.

(3.) Their Lordships refer with approval to Abhi Misser V/s. Lachmi Narain 27 C. 566 : 4 C.W.N. 546. In that decision the learned Judges said that the mere presence as an abettor of a person at the commission of a crime would not bring him within Section 114 unless it was found that there had been abetment beforehand, and this is said to mean abetment on some previous occasion as distinct from an abetment followed at once by the commission of the crime. The Judges in Abhi Misser V/s. Lachmi Narain 27 C. 566 : 4 C.W.N. 546 referred to Queen V/s. Niruni 7 W.R. 49 Cr. and to Queen-Empress V/s. Chatradhari Goala 2 C.W.N. 49. In the former of these cases it was said: It is clear that, to bring the prisoner within this section, it is necessary first to make out the circumstances which constitute abetment, so that "if absent" he would have been "liable to be punished as an abettor," and then to show that he was also present when the offence was committed.