IN THE HON’BLE SUPREME COURT OF INDIA

In the matter of
Hardhan chakrabarty
(Appellant)
Vs.

Union of India & Ors.

(Respondent)
DATE OF SUBMISSION -25/10/18

On submission to the Hon’ble Supreme Court of India

Counsel on behalf of the Appellant

Sounak verma

ROLL NO. – 158

Semester -V, Sec- A

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Contents
STATEMENT OF JURISDICTION ...................................................................................................................... V
Statement of facts......................................................................................................................................... 1
Issue Raised................................................................................................................................................... 3
SUMMARY OF ARGUMENTS ......................................................................................................................... 4
Argument Advanced ..................................................................................................................................... 5

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LIST OF ABBREVIATIONS

1. & And

2. Acc. According

3. Govt. Government

4. Ors. Others
5. Hon’ble Honourable

6. Ch. D Chancery Division

7. AIR All India Reporter

8. S.C.R Supreme Court Reports

9. S. Section

10. Vs Versus

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INDEX OF AUTHORITIES

Acts/ Statutes/ Legislations:

 Indian Penal code 1860

Cases:

 Toppan Das v The State of Bombay 1956 AIR 33

 Jamuna Singh v state of orrisa AIR 1967 SC 553
 Madan Raj Bhandari's v state of Rajasthan (1970) 1 SCR 688

Books:

 Ratan lal& dhirajlal’s – Indian Penal Code

 K.D Gaur- Indian Penal Code

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court under Article 32 of the Constitution
of India.

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Statement of facts

1. The petitioner entered the Indian Army in 1939 and served in Burma during the
Second World War and later joined Indian National Army and fought under the
leadership of the Netaji Subhash Chander Rose and on India attaining
independence, he rejoined Indian Army in 1948 and was promoted to the rank of
Hawaldar. He was released from Army service on 15.10.1964 consequent to the
reduction of manpower and consequently he joined Defence Security Corps on
14.9.67 and served till 29.7.78.
2. While serving in Defence Security Corps in 1976 at Pathankot, he along with
Major Trilok Chand who at the relevant time was serving as their Officer and nine
others was charge-sheeted by the Court- martial. The charge against them was that
Trilok Chand committed the theft of 250 wheel drums while getting them loaded
in a civil truck and that the others abetted the commission of the said offence by
conspiracy. Major Trilok Chand was found guilty and out of the nine abetters,
eight abettors were acquitted but petitioner was not aquitted. Major Trilok Chand
was awarded one year imprisonment. The petitioner was dismissed from the
service with an imprisonment of 90 days in civil prison.
3. Major Trilok Chand questioned the proceedings of the Court- martial before the
High Court of Allahabad in Writ Petition No. 13161 of 1981. The High Court
allowed the writ petition and held that there was no evidence that it was Trilok
Chand who removed the wheel drums and consequently the High Court found
that there was no material to support the charge of theft. The review petition
filed by the Union of India was dismissed by the High Court and the S.L.P. No.
9294 of 1987 filed by the Union of India in the Supreme Court was dismissed on
5.10.87. Consequently Major Trilok Chand has been reinstated in the service.

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4. In view of the fact that the main accused has been acquitted and reinstated in
service, the petitioner requested the authorities to review this case and give the
necessary relief but his request was rejected. Hence the present petition was
filed seeking an appropriate writ directing the respondents i.e. Union of India and
the Chief of the Army Staff to restore the petitioner to service with all
consequential benefits and grant of pension.

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Issue Raised

1. Whether the appellant is liable for abetment or not?

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SUMMARY OF ARGUMENTS

CONTENTION-1- Whether the appellant is liable for abetment or not?

No the appellant is not liable for abetment as "two or more persons must be
parties to such an agreement and one person alone can never he held guilty
of criminal conspiracy for the reason that one cannot conspire with oneself.
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. Hence section 107 is not
applicable.

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Argument Advanced

CONTENTION-1- Whether the appellant is liable for abetment or not?

No the appellant is not liable for abetment. If we refer to section 107 of the IPC-
Abetment of a thing.-A person abets the doing of a thing, who-

1 -Instigates any person to do that thing; or

2-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
3-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation-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.
In the present case as all the other alleged abettors are acquitted and the principal
offender Major Trilok Chand is also acquitted and the petitioner alone remains in
the picture as one having abetted the offence by entering into conspiracy. It is
axiomatic that there cannot be a conspiracy of one. In Toppan Das v The State of
Bombay1 it was held that "two or more persons must be parties to such an
agreement and one person alone can never he held guilty of criminal conspiracy for
the reason that one cannot conspire with oneself.

Jamuna Singh v state of orrisa case2 The appellant was convicted by the trial court,
inter alia, of an offence under s. 436 read with S. 109 of the Indian Penal Code for
having instigated one of his co-accused to burn a hut. The High Court acquitted the

1
1956 AIR 33
2
AIR 1967 SC 553

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said co-accused of the offence under s. 436 but maintained the conViction of the
appellant for that offence read with s. 109. In appeal by special leave before this
Court it was urged that after the acquittal of the main offender the appellant's
conviction for abetting the offence under s. 436 was illegal. SC held that "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. 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. 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."

Madan Raj Bhandari's v state of Rajasthan3 is a case where the appellant was
charged with having abetted one Mst. Radha in causing miscarriage to a woman
and that Mst. Radha was acquitted but the appellant was convicted. This Court
referred to the principle laid down in jamuna singh case and held that "the facts of
the present case fell within the rule that a charge of abetment fails ordinarily when
the substantive offence is not established against the principal offender." It may not
be necessary to multiply the discussions on this aspect.

The petitioner was charged with the offence of abetment by conspiracy of the
commission of the offence of theft by Major Trilok Chand. The High Court of
Allahabad has clearly hold that there was no evidence that Major Trilok Chand has
committed the theft; therefore, unless the substantive offence against the principal
3
(1970) 1 SCR 688

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offender is established, the question of abettor being held guilty under these
circumstances docs not arise. The petitioner is alleged to have entered into a
conspiracy alongwith eight others and abetted the commission of the offence. All
the other alleged abettors are acquitted and the principal offender Major Trilok
Chand is also acquitted and the petitioner alone remains in the picture as one
having abetted the offence by entering into conspiracy. It is axiomatic that there
cannot be a conspiracy of one.

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PRAYER FOR RELIEF

Therefore in the light of facts of the case, issues raised, arguments advanced and
authorities cited, the appellant please the the honourable Supreme court to adjudge
and declare that-

1. To allow the appeal.

2. The appellant is not guilty of abetment.
3. The appellant should be restore to service with all consequential benefits and
grant of pension.

All of which is respectfully submitted.

Sounak verma

(Counsel for the Petitioner)

Date: 06.04.2017

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