A.N. Surti, J.
1. This is an appeal against the order of conviction and sentence passed by the learned City Magistrate, 2nd Court Ahmedabad convicting the appellant-accused for the commission of an offence punishable under Sections 379, 114 of the Indian Penal Code. The learned Magistrate has sentenced the appellant-accused to suffer R.I. for six months and to pay a fine of Rs. 100/- in default to suffer R.I. for 15 days. The charge which was levelled against the present accused appears at page 15 of the record and proceedings. It was alleged that appellants Nos. 1 & 2 (original accused Nos. 1 & 2) along with six other persons on or about the 4th day of October, 1972 at Sabarmati committed theft of coal which is the property of Railway Administration valued at Rs. 200/-and abetted each other and that thereby they had committed an offence punishable under Section 379 of the Indian Penal Code. At the very out-set I may state that the learned Magistrate has acquitted the original accused Nos. 3 to 8. The defence of the appellants was that they are not guilty for the charge levelled against them. They stated that at the relevant time they were present when the offence in question took place but they had not given any signal to facilitate the commission of the alleged offence.
2. In order to prove the prosecution case the prosecution had examined one Hanumantlal Sohanlal Warma P.W. 1 exh-4. This witness was working as a Sub-Inspector in the Railway Protection Force at the relevant time. This witness had deposed that on 4th October, 1972 at about 4.00 p.m. he was working at Sabarmati. He had also deposed that on receipt of a telephone message from 'A' cabin that some ladies and children were removing railway coal, and upon theft was being committed he reached to the spot along with Baldevsing, Rakshak Keshavprasadsingh, Rakshak Mathurbhai and others. He saw that 15 ladies were committing theft of coal from the open wagon near 'A' Cabing. He also deposed that appellants Nos. 1 & 2 (accused Nos. 1 & 2) were present and appellant No. 2 gave signal run away. He also deposed that they did not approach anybody as the offenders had run away. He also deposed that near about 2 tons of coal were left at the spot by the offenders who had run away. This very witness in regard to the signal given by the appellant to the offenders as deposed to by the witness in examination in chief. This witness did produce the relevant F.I.R. Exh. 5 which also corroborates the evidence of the witness before the learned City Magistrate. The prosecution had also examined Bhankarji Shikhaji P.W. 2 Exh. 6 who had produced and proved the contents of the Panchnama Exh. 7 which shows, the coal, in fact, was lying at the scene of offence. The prosecution had also examined one Baldevprasadsingh Udayrajsinh P.W. 3 Exh. 8 who had accompanied P.W. 1 at the relevant time. This witness in substance had also deposed that the appellant-accused had given the necessary signal the to other accused persons to run away. The prosecution had also examined Shivprasad Devnarayan P.W. 4 Exh. 9 who also deposed that accused persons were present at the relevant time. The prosecution also examined one Jaswantlal Parsotamdas Patel P.W. Exh. 10 to show that coal, received was fact, in by the Railway Administration on the day in question. In this behalf the witness had produced and proved the contents of Exh. 11 showing in fact, coal was received by the Railway Administration on the day that in question. The prosecution has also examined one Ashandas Hemandas Chandani P.W. 6 Exh. 12 to show that on the day in question the appellant-accused were on duty. The prosecution had also examined Janrudin Mustafa P.W. 7 Exh. 13 who deposed that he had arrested the appellants-accused on the same day. The prosecution also examined Lalmohmad Amarulla P.W. 8 Exh. 14 who was in charge of police investigation. The learned Magistrate had acquitted the original accused Nos. 3 to 8 and had convicted the appellants-accused Nos. 1 and 2 as stated by me in the earlier part of my judgment. It is under these circumstances that the present appeal is filed in this court.
3. Mr. A.D. Shah, Learned Advocate appearing on behalf of the appellants-accused has mainly contended that as the original accused Nos. 3 to 8 are acquitted by the learned City Magistrate, the appellant -accused Nos. 1 and 2 cannot be convicted for the commission of the offence punishable under Section 379 read with Section 114 of the Indian Penal Code. In substance Mr. Shah's submission was that this is not a case where the appellants-accused had instigated accused Nos. 3 to 8 for the commission of the alleged crime. Mr. Shah also said that this is not a case where there was any allegation from the prosecution that the appellants-accused had conspired with original accused Nos. 3 to 8 for the commission of the alleged crime. Mr. Shah also submitted that this is a case where the appellants-accused had merely aided or facilitated the commission of the crime as alleged by the prosecution. The prosecution has alleged that the principal offenders were the original accused Nos. 3 to 8 and the evidence only discloses that when the theft was being committed the appellants-accused were on duty as Sainiks who gave a signal to original accused Nos. 3 to 8 to run away. This is the only role which is alleged by the prosecution against the appellants-accused Nos. 1 & 2. On these facts, Mr. Shih submitted that the appellants-accused Nos. 1 & 2 cannot be convicted for the commission of the offence punishable under Section 379, read with Section 114 of the Indian Penal Code. Mr. Shah invited my attention to Section 107 of the Indian Penal Code which provides as follows:
107. A person abets the doing of a thing, who-
First: Instigates any person to do that thing; or
Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal ommission, the doing of that thing.
Explanation I: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, Voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration.
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z.B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
Mr. Shah submitted that in the instant case, the provisions of Clause (3) of Section 107 are attacted. Mr. Shah submits that in the instant case, there is no evidence to indicate that there was any instigation by the appellants-accused for the commission of the crime in question nor there is any evidence to show that the appellants-accused Nos. 1 & 2 had engaged themselves alongwith other accused persons in conspiracy for committing the crime in question. Mr. Shah submitted that in the instant case the appellants-accused merely facilitate the commission of the crime and, therefore, It can be said that the appellants-accused did aid the doing of the crime in question. Mr. Shah also invited my attention to Section 108 of the Indian Penal Code and illustrations at the foot of that section. Section 108 provides as follows:
108. A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of abettor.
Explanation I: The abetment of the illegal omission of an act may amount to an offence although the abettor may himself be bound to do that act.
Explanation 2: To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Illustration.
(a) A instigates B to murder C.B refuses to do so. A is guilty of abetting B to commit murder.
(b) A instigates B to murder D.B in pursuance of the instigation stabs D.D recovers from the wound. A is guilty of instigating B to commit murder.
Explanation 3: It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
4. The illustration (a) to that section is as under:
(a) A instigates B to murder C.B refuses to do so, A is guilty of abetting B to commit murder.
Explanation 2 of that section provides as under:
Explanation 2: To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Mr. Shah also pointed out to me Section 109 of the Indian Penal Code which provides as follows:
109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by 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 the abetment.
My attention was also drawn to Sections 114 and 115 of the Indian Penal Code which provide as under:
114. Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act of offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act 01 offence.
115. Whoever, abets the commission of an offence punishable with death or imprisonment of life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.
Mr. Shah also invited my attention to the reported decision of the Supreme Court in : 1967CriLJ541 , Jamuna Singh v. State of Bihar. Mr. Shah invited my attention to the contents of paras 6 and 9 of that Judgment. Para 6 of the said judgment provides as follows:
(6). It cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner in which the abetment was made. Under Section 107 I.P.C. a person abets the doing of an act in either of three ways which can be instigating any person to do an act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under Section 115 or Section 116 I.P.C, even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. This is clear from Explanation 2 and illustration (a) thereto, to Section 108 I.P.C.
In para 9 of the said judgment it is provided as follows:
(9). It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence. The case of Faguna Kanta Nath : 1959CriLJ917 lays this down. The observations of this Court in that case, at p. 7 being out clearly the distinction in the case of persons instigating another on the one hand and that of a person aiding the person in committing a certain offence.
4.1 Placing reliance on the aforesaid observations of the Supreme Court Mr. Shah submitted that in the instant case, as stated earlier, it cannot be said that the appellants-accused are guilty for instigating other persons for the commission of the crime in question nor it can be said as stated above, that the appellants-accused have engaged themselves with one or more accused persons in conspiracy for the commission of the crime. Mr. Shah emphasised that the evidence in the instant case does disclose that the appellant-accused persons had intentionally aided the commission of the crime in question. But in the instant case as the original accused persons namely accused Nos. 3 to 8 are acquitted and hence the appellant-accused should be acquitted of the charge levelled by the prosecution. In the instant case, on the basis of the charge as framed, the appellants-accused cannot be convicted. The position would have been otherwise had it been alleged in the charge that the appellant-accused had aided and abetted certain other unknown accused persons. But unfortunately that was not the frame of the charge. Thus inspite of the fact, that I am convinced that on the day in question, the theft of the coal belonging to the Railway Administration had taken place, it is not possible forme to convict the appellant-accused Nos. 1 and 2 as they have merely intentionally aided and facilitated the commission of the crime in question and original accused Nos. 3 to 8 are acquitted. In such cases, the charge should always provide that the offence in question had taken place not only by aiding and assisting the named accused persons but other unknown accused persons also. As a result of the aforesaid discussion, it is not possible for me to agree or accept the ultimate order of conviction and sentence passed against the appellants No. 1 & 2 in Criminal Case No. 2680/72. I set aside the order of conviction and sentence passed by the learned City Magistrate, 2nd Court, Ahmedabad in that case. I allow the appeal filed by the original accused Nos. 1 & 2 and they are acquitted of the charge levelled against them. Fine if paid is ordered to be refunded. Bail bonds cancelled.