Holding

The appellant’s exhortation to the shooter amounts to abetment under Section 109 IPC, and the testimony of the deceased’s relatives is admissible, so the conviction stands.

Summary

Kulwant Singh and Awadh Singh were convicted under Section 302 read with Section 109 of the IPC for abetting the murder of Manji Singh by Uma Shankar, who shot the victim after being urged to do so. The appellants challenged the conviction on two grounds: that the eye‑witnesses were relatives of the deceased and therefore unreliable, and that the appellant’s exhortation did not amount to abetment under Section 109. The Supreme Court held that relatives are not per se untruthful witnesses and, in the absence of any evidence of bias, their testimony was admissible. It further clarified that Section 109 applies where the abettor instigates the commission of the offence at the time it is committed, whereas Section 114 deals with prior abetment followed by presence at the crime. The Court found that the appellant’s exhortation to shoot satisfied the criteria for active abetment under Section 109, and that mere failure to prevent the crime is not abetment. Consequently, the conviction was upheld and the appeal dismissed.

Issues considered

The credibility of relatives of the deceased when they serve as eye‑witnesses.
Whether exhortation to commit a murder constitutes abetment under Section 109 IPC.
The applicability of Section 109 versus Section 114 IPC in cases of active abetment.
Whether mere omission or failure to prevent a crime amounts to abetment.

Legislation cited

Indian Penal Code, 1860s. 109, s. 114, s. 302

Subjects

murderabetmentSection 109 IPCSection 114 IPCwitness credibilityrelatives as witnessesIndian Penal Code

Judgment

A KULWANT SINGH@ KULBANSH SINGH ...'
\'.

STATE OF BIHAR

JUNE 21, 2007

B [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]

Penal Code, 1860:

s.302 rlw s.109-Murder-Allegation that on exhortation by accused-
C Appellant, co-accused fired bullets on deceased-Corrviction of Appellant
under s.302 rlw 109-Propriety of-On facts, held, proper-Evidence of eye-
witnesses cogent-No reason for them to shield the actual culprit and falsely
implicate Appellant-s. I 09 clearly applicable.

s. 109-Applicability of-Discussed
D
ss. I 09 and 114-Distinction between-Outlined. )-

Evidence-Of relatives of deceased-Appreciation-Held: No
proposition in law that the relatives are to be treated as untruthful witness.

E According to the prosecution, on exhortation of accused-appellant and t
a co-accused 'A', another co-accused 'U' brought a barrel gun from his house
and pumped bullets into the chest of the deceased resulting in his death. Trial
Court convicted Appellant under Section 302 read with Section 109 IPC for
having abetted the aforesaid murder. High Court upheld the conviction.
F •
In appeal to this Court, the conviction of Appellant was challenged on
the ground that the eye witnesses in the ca~e at hand wer~ relatives of the
deceased and no conviction can be made on their evidence. f
Dismissing the appeal, the Court
fI-
G HELD: 1.1. PWs 2 and 3 are neighbours of both the accused and the
deceased. No foundation was laid to substantiate the allegation that the
relatives had any special reason to depose in favour of the prosecution. Since ,
r
I
PWs 2 and 3 are neighbours of the accused and the deceased,. the question of .
their being partial to prosecution does not arise. That being so, there is no ·~~
H 1178
I
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~
i
KULWANTSINGH@KULBANSHSINGHv.STATEOFBIHAR } }79

question to discard the veracity of the prosecution version. The evidence of A
-· ..I
PWs 2 and 3 was cogent and the courts below have rightly relied upon their
evidence. !Para 8111182-B, C)

1.2. There is no proposition in law that relatives are to be treated as
untruthful witnesses. On the contrary, reason has to be shown when a plea of
partiality is raised to show that the witnesses had reason to shield the actual B
culprit and falsely implicate the accused. No evidence has been led in this
regard. !Para 9111182-C, DI

2.1. Where a person aids and abets the perpetrator of a crime at the
very time the crime is committed, he is a principal of the second degree and
section 109 applies. But mere failure to prevent the commission of an offence C
is not by itself an abetment of that offence. Considering the definition in
Section 109 strictly, the instigation must have reference to the thing that
was done and not to the thing that was likely to have been done "Y the person
who is instigated. It is only if this condition is fulfilled that a person can be
guilty ofabetment by instigation. Section 109 is attracted even ifthe abettor D
is not present when the offence abetted is committed provided that he had
instigated the commission of the offel]~e or:-has engaged 'Witk one·or -more
other persons in a cQnsptracy to commit an offence and pursuant to the
conspiracy ,some act or illegal omission takes place or has been intentionally
induc.e<rthe commission of an offence by an act or illegal omission. In the
absence of direct involvement, conviction for abetment is not sustainable. E
tpara 11) 11183-C, D, E)

2.2. Section 109 provides that if the act abetted is committed in
consequence of abetment and there is no provision for the punishment of such
abetment then the offender is to be punished with the punishment provided F
for the original offence. Section 109 applies even where the abettor is not
present Active abetment at the time of committing ·the offence is covered by
Section 109. tpara 12) 11183-F)

2.3. Act abetted in Section 109 means the specific offence abetted. Mere
help in the preparation for the commission of an offence which is not G
ultimately committed is not abetment within the meaning of Section 109. "Any
offence" in Section 109 means offence punishable under the IPC or any
Special or Local law. The abetment of an offence under the Special or Local
law, therefore, is punishable under Section 109. l.P.C. For constituting offence
of abetment, intentional and active participation by the abettor is necessary.
!Para 12) (1183-G, H; 1184-A) H
1180 SUPREME COURT REPORTS [2007) 7 S.C.R. ......
...
A Joseph Kurian v. State of Kera/a, AIR (1994) SC 34, relied on.
I..
3.1. There is a distinction between Section 109 and Section 114. Section
114 applies where a criminal first abets an offence to be committed by another
person, and is subsequently present at its commission. Active abetment at
the time of committing the offence is covered by Section 109 and Section 114
B is clearly intended for an abetment previous to the actual commission of the
crime, that is before the first steps have been taken to commit it.
!Para 13111184-A, Bl

3.2. Section 114 is not applicable in every case in which the abettor is
present at the commission of the offence abetted. While Section 109 is a
c section dealing generally with a~etment, ·section 114 applies to those cases
only in which not only is the abettor present at the time of the commission of
the offence but abetment has been committed prior to and independently of
his presence. !Para 13) 111,84-B, C)

4. When the factual sceriarl9 is tested on the background of principles
D
of law set out above, it is clear that Section 109 IPC has clear application.
!Para 14111184-C, DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 834 of
2007.
E From the Judgment & Order dated 25.07.2003 of the High Court at Patna
in Criminal Appeal No. 228of1999.

Binay K. Das and Anil Kumar Shrivastava (A.C.) for the Appellant.

Anukul Raj and Gopal Singh for the Respondent.
F
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench
G of Patna High Court. Appeals filed by the appellant and two co-accused were
dismissed by a common judgment.

3. Accused Uma Shankar was charged for commission of offence ·~
punishable under Section 302 of the Indian Penal Code, 1860 (in short the )--
'IPC') for having committed murder ofManji Singh (hereinafter referred to as
H the 'deceased'). Accused appellant Kulwant Singh and Awadh Singh were

r
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KULWANTSINGH@KULBANSHSINGHv.STATEOFBIHAR[PASAYAT,J.) 1181

charged in terms of Section 302 read with Section I 09 IPC for having abetted A
the aforesaid murder of the deceased by Uma Shankar. The trial Court found
that the accusations have been established against the accused persons,
Kulwant and Awadh and accordingly sentenced each for life for the offence
punishable under Section 302 read with Section l 09 IPC.

4. Before the High Court the basic stand of the appellants was that there B
was absolutely no motive for the gruesome crime. The first information report
(in short the 'FIR') has not been proved to have been filed in t~e manner as
claimed. The High Court found the evidence to be cogent and·<tredible and
held that no interference was called for.

5. Background facts in a nutshell are as follows:
c
Manji Singh (hereinafter referred to as 'the deceased') who was a
teacher in a non-affiliated Sanskrit School had suffered expulsion from the
Institution. Accused-appellant and two co-accused and the deceased were
agnates and they were separate in mess and business from each other and D
were residing in houses adjacent to each other. As usually happens, there had
been paltry dispute between females of the two families and as a fall out, after
the said incident it was alleged that while the deceased was feeding cattle
near his house, accused Uma Shankar Singh hurled abuses on him, pursuant
to which accused appellant Kulwant Singh and accused Awadh Singh came
out and exhorted Umashankar Singh to shoot. As for Umashankar Singh it E
was alleged that shortly thereafter he having brought one barrel gun from his
house, pumped bullets in the chest of the deceased who dropped on the
t ground. Though all efforts were made by the family of the deceased for his
survival before he could be admitted to Ara Sadar Hospital, where he was
taken by the family members, he was declared dead and with these accusations F
fardbeyan of Kariman Singh was recorded by Shri S.N. Tiwary, ASI of Ara
Town Police Station, following which formal First Information Report was
drawn up at the Police Station. Investigation was undertaken. Charges were
framed and accuse.d faced trial.

As noted above, trial Court convicted the accused which was upheld G
by the High Court.

6. In support of the appeal, learned counsel for the appellant submitted
that the relatives of the deceased who are the so called eye witnesses lodged
the first information report and conviction cannot be made on the evidence
of the relatives. PW- I was the wife of the deceased. PW-2 and PW-3 who H
\
'
1182 SUPREME COURT REPORTS [2007) 7 S.C.R.

A claimed to be eye witnesses were also relatives of the deceased.
)..
.
~

7. Learned counsel for the State submitted that merely because the eye
witnesses are relatives of the deceased, their evidence should not be discarded
and after detailed analysis the trial Court and the High Court have found the
prosecution version cogent. -·
B
8. It is to be noted that PWs 2 and 3 are neighbours of both the accused
and the deceased. No foundation was laid to substantiate the allegation that
the relatives had any special reason to depose in favour of the prosecution.
Since PWs 2 and 3 are neighbours of the accused and the deceased, the
C question of their being partial to prosecution does not arise. That being so,
there is no question to discard the veracity of the prosecution version. The
evidence of PWs 2 and 3 was cogent and the courts below have rightly relied
upon their evidence.

9. There is no proposition in law that relatives are to be treated as
D untruthful witnesses. On the contrary, reason has to be shown when a plea
of partiality is raised to show that the witnesses had reason to shield. the
actual culprit and falsely implicate the accused. No evidence has been led in
this regard.

10. Section 109 IPC reads as follows:-
E "109- PUNISHMENT OF ABETMENT IF THE ACT ABETTED IS
COMMITTED IN CONSEQUENCE AND WHERE NO EXPRESS
PROVISION IS MADE FOR ITS PUNISHMENT

Whoever abets any offence shall, if the act abetted is committed
in consequence of the abetment and no express provision is made by
F
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
G
the abetment.

Illiustrations
l--
(a) A offers a bribe to B, a public servant, as a reward for showing
A some favour in the exercise of B's official functions. B accepts
H
I
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KULWANTSINGH@KULBANSHSINGHv.STATEOFBIHAR[PASAYAT,J.] 1183

the bribe. A has abetted the offence defined in section 161. A
(b) A instigates B to give false evidence. B in consequence of the
instigation, commits that offence. A is guilty of abetting that
offence, and is liable to the same punishment as B.

(c) A and B conspire to poison Z. A in pursuance of the conspiracy,
procures the poison and delivers it to B in order that he may B
administer it to Z. B, in pursuant of the conspiracy, administers
the poison to Z in A's absence and thereby causes Z's death.
Here B is guilty of murder. A is guilty of abetting that offence
by conspiracy, and is liable to the punishment for murder."

11. Where a person aids and abets the perpetrator of a crime at the very C
time the crime is committed, he is a principal of the second degree and section
I 09 applies. But mere failure to prevent the commission of an offence is not
by itself an abetment of that offence. Considering the definition in Section
109 strictly, the instigation must have reference to the thing that was done
and not to the thing that was likely to have been done by the person who D
is instigated. It is only if this condition is fulfilled that a person can be guilty
of abetment by instigation. Section I 09 is attracted even if the abettor is not
present when the offence abetted is committed provided that he had instigated
the commission of the offence or has engaged with one or more other persons
in a conspiracy to commit an offence and pursuant to the conspiracy some
act or illegal omission takes place or has been intentionally induced the E
commission of an offence by an act or illegal omission. In the absence of
direct involvement, conviction for abetment is not sustainable. (See Joseph
Kurian v. State of Kera/a. Al R ( 1994) SC 34)

12. Section 109 provides that if the act abetted is committed in F
consequence of abetment and there is no provision for the punishment of
such abetment then the offender is to be punished with the punishment
provided for the original offence. Section I 09 applies even where the abettor
is not present. Active abetment at the time of committing the offence is
covered by Section 109.
G
Act abetted in Section 109 means the specific offence abetted. Mere
help in the preparation for the commission of an offence which is not ultimately
committed is not abetment within the meaning of Section 109. "Any offence"
in Section I 09 means offence punishable under the IPC or any Special or
Local law. The abetment of an offence under the Special or Local law, therefore,
is punishable under Section I 09. I.P.C. For constituting offence of abetment, H
1184 SUPREME COURT REPORTS [2007] 7 S.C.R.

A intentional and active participation by the abettor is necessary.
13. There is a distinction between Section 109 and Section 114. Section
114 applies where a criminal first abets an offence to be committed by another
person, and is subsequently present at its commission. Active abetment at
the time of committing the offence is covered by Section 109. and Section 114
B is clearly intended for an abetment previous to the actual commission of the
crime, that is before the first steps have been taken to commit it.

Section 114 is not applicable in every case in which the abettor is
present at the commission of the offence abetted. While Section I 09 is a
C section dealing generally with abetment, Section 114 applies to those cases
only in which not only is the abettor present at the time of the commission
of the offence but abetment has been committed prior to and independently
of his presence.

14. When the factual scenario is tested on the background of principles
D of law set out above, it is clear that Section I 09 !PC has clear application.

,) 5. The appeal is sans merit, deserves to be dismissed which we direct.

B.B.B. Appeal dismissed

I- ')

.,,.'