REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 193 OF 2005
Aizaz & Ors. ...Appellants
Versus
State of U.P. ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Appellants call in question legality of the judgment
rendered by a Division Bench of the Allahabad High Court
upholding the conviction of the appellants for offence
punishable under Section 302 of the Indian Penal code, 1860
(in short the `IPC'). So far as the appellant Aizaz- A1 is
concerned, the High Court also upheld his conviction for
offence punishable under Section 307 read with Section 34
IPC. The two other appellants were found guilty of offence
punishable under Section 302 read with Section 34 IPC and
Section 307 read with Section 34 IPC. It is to be noted that
four persons faced trial though the learned VIIth Additional
Sessions Judge, Meerut found A-1 to A-3 guilty. The High
Court directed acquittal of Imlak (A-4).
2. Background facts as projected by prosecution in a
nutshell are as follows:
All the four accused are inter related and they lived in
village Ikla Rasoolpur, police station Parichhatgarh, district
Meerut. Informant of the case Bashir Mohammed (P.W.1) as
well as Ismail (hereinafter referred to as the `deceased') also
lived in the same village. About 2= years earlier to the date of
occurrence i.e. 4.11.1979 one Riazu disappeared from the
village and could not be traced out. A case was registered at
the police station against appellant Aizaz and others in which
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the deceased was doing pairvi. The appellants had asked the
deceased several times not to appear as a witness in that case
or to do pairvi of the case. Ismail did not agree to it due to
which the appellants bore enmity with him.
In Ikla Rasoolpur, there is a school, namely, Deni Islami
Madarsa. A committee consisting of villagers of Ikla Rasoolpur
and village Khanpur used to manage the affairs of the school.
The deceased and the informant were members of the
committee. There was some dispute regarding the post of
Treasurer. Therefore, a meeting was to take place on
4.11.1979 in village Siyal. The appellants as well as the
villagers of Ikla Rasoolpur knew about the said meeting. On
the date of occurrence, i.e. 4.11.1979 the deceased Ismail and
informant Bashir Mohammad started from village Ikla
Rasoolpur for attending the meeting on a motor cycle. The
deceased was driving the motor cycle while the informant was
a pillion rider. At about 12 noon when they reached near the
field of Prakash Khazoori there was a turning of the road. The
deceased slowed down the speed of the motor cycle. At that
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very time, all the four accused persons emerged from the field
of Prakash. Appellants Aizaz, Ahmad Hasan and Jan Alam
who were armed with country made pistols fired towards the
informant and the deceased on exhortation of Imlak. Imlak
was armed with spear. The gun shot did not hit either the
deceased or the informant. However, the deceased became
panicky and motor cycle fell down on the road. The deceased
left the motor cycle and his chappal and ran from the field of
Khairati towards the village. All the four accused persons
chased him. Informant, Bashir Mohammad also ran towards
them raising cry for help. After pursuing the deceased for
about 100 yards, the accused persons caught hold of the
deceased and pushed him to the ground. The three appellants
pushed him to the ground, while appellant Aizaz fired at the
deceased on the neck. Yakoob (P.W.2), Ian Mohammad (P.W.3)
and one Hafizuddin alias Fauju and Sahimuddin came over
there. The accused persons thereafter went away in the
southern direction. Ismail died instantaneously and blood had
also fallen at the place. Bashir Mohammad prepared a written
report at the place of occurrence. He went to the police station
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on cycle and lodged it at the police station Parichhatgarh on
4.11.1979 at 1.00 P.M. The distance of the police station from
the place of occurrence is three kilometers. FIR was registered
and investigation was undertaken.
After completion of the investigation charge sheet was
filed and since accused persons pleaded innocence, they were
put on trial. Before trial Court the primary stand of accused
was that the prosecution has suppressed the genesis of the
occurrence. The evidence of PWs 1, 2 & 3 according to them
did not inspire confidence. In any event, it was submitted
that Section 34 has no application so far as the A2 and A4 are
concerned. The trial Court did not accept these contentions
and recorded conviction. Before the High Court in appeal the
stands were reiterated. The High Court found that the
evidence was inadequate so far as A4 is concerned, but
confirmed the conviction so far as the appellants are
concerned.
3. In support of the appeal, it is submitted that the
occurrence essentially took part in two stages. Even if there
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was any animosity between A1 and the deceased, A2 and A3
had nothing to do with him. Additionally in the second part
also there was no use of any weapons by appellants Nos. 2 &
3. The only allegation against them is that they held the
deceased and fell him on the ground.
4. Learned counsel for the respondent-State on the other
hand supported the judgment of the trial court and the High
Court.
5. The evidence of PWs. 1, 2 & 3 is clear and cogent. The
trial court and the High Court have analysed the evidence in
great detail and have come to hold that the same has credence
and appear to be truthful. Nothing infirm could be pointed
out to warrant rejection of the evidence. Therefore the trial
Court and High Court were justified in placing reliance on the
evidence of PWs. 1, 2 & 3.
6. Coming to the plea relating to Section 34 the Section
really means that if two or more persons intentionally do a
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common thing jointly, it is just the same as if each of them
had done it individually. It is a well recognized canon of
criminal jurisprudence that the Courts cannot distinguish
between co-conspirators, nor can they inquire, even if it were
possible as to the part taken by each in the crime. Where
parties go with a common purpose to execute a common
object each and every person becomes responsible for the act
of each and every other in execution and furtherance of their
common purpose; as the purpose is common, so must be the
responsibility. All are guilty of the principal offence, not of
abetment only. In a combination of this kind a mortal stroke,
though given by one of the parties, is deemed in the eye of law
to have been given by every individual present and abetting.
But a party not cognizant of the intention of his companion to
commit murder is not liable, though he has joined his
companion to do an unlawful act. Leading feature of this
Section is the element of participation in action. The essence
of liability under this Section is the existence of a common
intention animating the offenders and the participation in a
criminal act in furtherance of the common intention. The
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essence is simultaneous consensus of the minds of persons
participating in the criminal action to bring about a particular
result (See Ramaswami Ayyanagar and Ors. v. State of Tamil
Nadu (AIR 1976 SC 2027). The participation need not in all
cases be by physical presence. In offences involving physical
violence, normally presence at the scene of offence may be
necessary, but such is not the case in respect of other offences
when the offence consists of diverse acts which may be done
at different times and places. The physical presence at the
scene of offence of the offender sought to be rendered liable
under this Section is not one of the conditions of its
applicability in every case. Before a man can be held liable for
acts done by another, under the provisions of this Section, it
must be established that (i) there was common intention in
the sense of a pre-arranged plan between the two, and (ii) the
person sought to be so held liable had participated in some
manner in the act constituting the offence. Unless common
intention and participation are both present, this Section
cannot apply.
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7. `Common intention' implies pre-arranged plan and acting
in concert pursuant to the pre-arranged plan. Under this
Section a pre-concert in the sense of a distinct previous plan
is not necessary to be proved. The common intention to bring
about a particular result may well develop on the spot as
between a number of persons, with reference to the facts of
the case and circumstances of the situation. Though common
intention may develop on the spot, it must, however, be
anterior in point of time to the commission of offence showing
a pre-arranged plan and prior concert. (See Krishna Govind
Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrit
Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465 SC) it has
been held that common intention pre-supposes prior concert.
Care must be taken not to confuse same or similar intention
with common intention; the partition which divides their
bonds is often very thin, nevertheless the distinction is real
and substantial, and if overlooked will result in miscarriage of
justice. To constitute common intention, it is necessary that
intention of each one of them be known to the rest of them
and shared by them. Undoubtedly, it is a difficult thing to
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prove even the intention of an individual and, therefore, it is
all the more difficult to show the common intention of a group
of persons. But however difficult may be the task, the
prosecution must lead evidence of facts, circumstances and
conduct of the accused from which their common intention
can be safely gathered. In Magsogdan and Ors. v. State of U.P.
(AIR 1988 SC 126) it was observed that prosecution must lead
evidence from which the common intention of the accused can
be safely gathered. In most cases it has to be inferred from the
act, conduct or other relevant circumstances of the case in
hand. The totality of the circumstances must be taken into
consideration in arriving at a conclusion whether the accused
had a common intention to commit offence for which they can
be convicted. The facts and circumstances of cases vary and
each case has to be decided keeping in view of the facts
involved. Whether an act is in furtherance of the common
intention is an incident of fact and not of law. In Bhaba Nanda
Barma and Ors. v. The State of Assam (AIR 1977 SC 2252) it
was observed that prosecution must prove facts to justify an
inference that all participants of the acts had shared a
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common intention to commit the criminal act which was
finally committed by one or more of the participants. Mere
presence of a person at the time of commission of an offence
by his confederates is not, in itself sufficient to bring his case
within the purview of Section 34, unless community of designs
is proved against him (See Malkhan and Anr. v. State of Uttar
Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary,
the word "furtherance" is defined as `action of helping
forward'. Adopting this definition, Russel says that "it
indicates some kind of aid or assistance producing an effect in
future" and adds that any act may be regarded as done in
furtherance of the ultimate felony if it is a step intentionally
taken, for the purpose of effecting that felony. (Russel on
Crime 12th Edn. Vol.I pp.487 and 488). In Shankarlal
Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC
1260) this Court has interpreted the word "furtherance" as
`advancement or promotion'.
8. When the factual scenario is analysed in the backdrop of
the principles of law set out above, the inevitable conclusion is
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that the appeal is sans merit, deserves dismissal, which we
direct.
.....................................
....J.
(Dr. ARIJIT PASAYAT)
...........................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
August 12, 2008
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