Imtiaz & Anr Vs. State of Uttar Pradesh  Insc 145 (15 February 2007)
S. B. Sinha & Markandey Katju
(Arising out of SLP(Criminal) No. 4871/2006) MARKANDEY KATJU, J.
This appeal has been filed against the impugned judgment of the Allahabad
High Court dated 4.8.2006 in Criminal Appeal No.1099 of 1981.
Heard learned counsels for the parties and perused the record. By that
decision the High Court has upheld the conviction of the appellant under
Sections 148, 302/149 and 324/149 IPC and sentences them to life imprisonment
apart from other sentences.
The prosecution version, as disclosed by P.W.2 Ali Raja in the F.I.R.
lodged at 9.25 a.m. on 19.12.1979 at P.S. Raunapur Azamgarh was that there
was a dispute between him and the accused (appellants) regarding the flow of
the drainage of his latrine which was disrupted by the accused appellants by
making constructions and by raising the level of their land; that a civil case
filed by him was pending in Court; that on 19.12.1979 at about half past 7 a.m.
he (Ali Raza) and his brothers Abdul Qayum (deceased) and Mustakin (P.W.3) were
cleaning the Nabdan (the filthy water of their latrine); that the accused
appellants Qamaru-Zama, Maqbool, and Imtiaz armed with spears and the accused
appellants Samkadar, Hasnain, Munsafi, Gyasuddin, Sharif, Ramjan, Ayoob, Yusuf
and Anwar armed with lathies, having common object, reached there and forbade
him and his brothers from cleaning their Nabdan; that the witnesses Haju Usman,
Daud and Salauddin also reached there; that he and his brothers did not stop
the said cleaning work whereupon accused appellant Qamaru-Zama, with intention
to commit murder, inflicted a spear blow on Abdul Qayum (deceased) and accused
appellants Maqbool and Imtiaz inflicted spear blows on P.W.3 Mustakin
(injured); that remaining accused surrounded him and his brothers, by swinging
heir lathies and exhorting their companions; that Abdul Qayum and Mustakin
sustaining spears blows, fell on the ground and Abdul Qayum succumbed to his
injury; that many villagers had assembled there; that accused appellants fled
away towards their houses.
The investigating Officer Sri Onkar Singh (P.W.8) reached the spot, prepared
the necessary documents and sent the dead body for postmortem.
The injured Mustakin was sent for his medical examination.
P.W.6 Dr. G.M. Lal conducted autopsy of Abdul Qayum on 20.12.1979 at 3.30 p.m. and found a single ante mortem injury on his corpse.
The injury is reproduced below:
Punctured wound = c.m. x cavity deep on the left side chest, 3"
above the left nipple, margin sharp irregular.
The Doctor found duration of death as one and a half-day. It tallies with
the time of the occurrence. In his opinion, the death occurred due to shock and
hemorrhage as a result of an ante-mortem injury.
The injured Mustakin P.W.3 was medically examined by P.W.6 Dr.
G.M. Lal on 19.12.1979 at 2 p.m. The following injuries were found on his
person:- 1. Lacerated wound 1.5 cm x = cm., on the left side head, 8 cm.
above the lobe of left ear.
Dislocation of right shoulder joint
with traumatic swelling 7 cm. x 4 cm. With deformity. Advised X-ray of right
Punctured wound 1 cm. x = cm. x 1 cm. deep on the left ilium.
Traumatic swelling 3 cm. x 2 cm. on
the left thigh. Advised X- ray.
Injuries No.2 and 4 were kept under observation and X-ray of these injuries
was advised. Injuries No.1 and 3 were found simple. In the Doctor's opinion,
injury no.2 was grevious as there was dislocation of the shoulder.
Injury no.3 was caused by a sharp pointed weapon and the remaining injuries
were caused by a blunt object.
After recording the statements of the witnesses and after the usual
investigation, P.W.8 Omkar Singh (I.O.) submitted the charge sheet Ext. Ka.
18 against all the accused persons for offences under section 147, 148, 149,
325, 324 and 302 IPC.
The case was committed to the Court of Sessions, the charges were framed
against the accused appellants and thereafter eight prosecution witnesses and
one Court witness were examined.
The Trial Court after considering the evidence on record convicted the
appellants under Section 302 and other provisions of the Indian Penal Code.
The appellants filed an appeal before the High Court which has been
dismissed and hence this appeal.
(complainant) deposed on 24.11.1980 that about 11 months ago at about half past
7 a.m. he and his brothers Mustakin and Abdul Qayum were clearning their Nabdan
situated near the boundary wall of Samkadar; that the deceased Abdul Qayum was
digging a pit whereas he and Mustakin were extracting the soil; that meanwhile
accused Qamru Zama, Maqbool, Imtiaz, Sakadar, Hasnain, Munsafi, Mohammed Yusuf,
Gayasuddin, Sharif, Ramjan, Ayoob and Anwar reached there; that accused Qamru
Zama, Maqbool and Imtiaz were armed with spears and the rest were armed with
lathies; that the accused persons forbade him and his brothers from cleaning the
Nabdan but he and his brothers declined to their objections; that the witnesses
Usman, Daud and Salauddin also reached there; that the accused persons said "MAR
DALO SALO KO VA HADDI PASLI TOD DO" whereupon the accused Qamru Zama inflicted a
spear blow on Qayum who sustaining spear injury fell down; that accused Maqbool
and Imtiaz with their spears attacked Mustakin who sustaining injury also fell
down; that he (Ali Raja) succeeded in escaping; that the accused persons had
inflicted a lathi blow also upon Mustakin; that Abdul Qayum had died at the
spot; that the occurrence was witnessed by Usman, Daud, Salauddin, and Yusuf and
also by the accused's relatives Isimdar, Kalwa Hussain, Aihsan and Sadar Uddin;
that after committing the occurrence the accused persons left by the western
(injured) deposed on 25.11.1980 that the occurrence took place one hour after
sun-rise about 11 months back; that he and his brother Ali Raza were cleaning
their Nabdan and his another brother Abdul Qayum was digging a pit; that the
twelve accused persons (Qamru Zama, Maqbool, Imtiaz, Munsafi, Gayasuddin, Mohd.
Yusuf, Hasnain, Sharif, Ramjan, Samkadar, Ayoob and Anwar) after forming an
assembly, reached there; that the accused Qamaru Zama, Maqbool and Imtiaz were
armed with spears whereas the other nine accused persons were armed with lathies;
that the accused persons asked him and his brothers not to clean the Nabdan;
that the witnesses Usman, Salauddin and Daud also reached there; that he and his
brothers did not stop the work even after the objection of the accused persons
whereupon they exhorted "SALO KO JAN SE MAR DO", that accused Qamaru Zama
inflicted a spear injury on the left side of the Qayum's chest; that he (Mustakin)
attempted to flee away but the accused persons encircled him; that accused
Maqbool and Imtiaz inflicted spear blow on him; that the remaining accused
persons who were holding lathies kept him encircled; that any one of them had
inflicted a lathi blow from his back side; that his brother Ali Raza, getting an
opportunity, run away from the place of the occurrence; that Qayum had died on
the spot; that he (witness) also fell down and became unconscious and later
found himself on a cot in front of his door. The witness explained that spear
given by accused Maqbool caused wound in his thigh and spear wielded by accused
Imtiaz could not cause the injury by its pointed side, as he bent down.
that the occurrence took place one hour after sun-rise; that he was at his
tube-well which was hardly 100 yards away from the place of occurrence; that
upon hearing a hue and cry he reached the spot and saw that all the accused were
forbidding the complainant and his brothers Mustakin and Abdul Qayum from
cleaning the Nabdan but they did not pay heed to their objection; that the
accused Qamaru Zama, Maqbool and Imtiaz were armed with spears whereas the
remaining accused were armed with lathies; that Qamaru Zama inflicted spear blow
on Abdul Qayum who sustaining the spear injury fell down; that Ali Raza
succeeded in fleeing away but Mustakin could not make good his escape; that
accused Maqbool and Imtiaz inflicted a spear blow upon Mustakin.
26.11.1980 that the occurrence took place about 11 months back about one hour
after sun-rise; that he was going towards his field from his house; that he saw
that a hot altercation was going on between the accused persons and Ali Raza,
Mustakin and Abdul Qayum; that Abdul Qayum was digging a pit whereas Ali Raza
and Mustakin were cleaning the Nabdan; that the complainant and his brothers did
not stop working even after the objection raised by the accused persons; that
accused Qamaru Zama attacked Abdul Qayum by inflcting a spear blow upon him;
that sustaining the spear wound, Abdul Qayum fell down and died; that accused
Maqbool and Imtiaz inflicted spear blows upon Mustakin; that the remaining
accused persons had surrounded Mustakin and were exhorting that he should not
escape; that getting an opportunity Ali Raza escaped and fled away; that
Mustakin sustained a lathi blow also; that thereafter all the accused persons
A perusal of the evidence shows that the three accused who have been
convicted were armed with spears while the other nine accused were with
On the date and time of occurrence, the complainant Ali Raza and his brother
deceased Abdul Qayum and injured Mustakin were cleaning their Nabdan and
digging a pit. Qamaru Zama armed with a spear (deadly weapon) along with the
appellants who were also armed with spears (and 9 others armed with lathis),
reached their and forbade them from cleaning the Nabdan. The complainant and
his brothers did not stop the cleaning work of Nabdan. Then appellant Qamaru
Zama inflicted the spear blow upon Abdul Qayum and the appellants Imtiaz and
Maqbool inflicted spear blows on Mustakin. The aforesaid occurrence clearly
shows that the act of the accused was premeditated, and not sudden. The holding
of deadly weapons such as spears and their conduct both show that the
appellants reached there with a definite intention. For claiming any exception,
the burden heavily lies upon the accused. The appellants failed to discharge
this burden. The incident, therefore, was not sudden and does not fall within
Exception 4 of Section 300 IPC.
For taking the benefit of the sudden provocation under exception 1 of
Section 300 IPC, it was incumbent upon the appellants to prove beyond doubt
that the complainant or his brothers abused or used any other provocative words
which were sufficient to provoke a reasonable person in ordinary circumstances.
The appellants failed on this count also to prove that the complainant or his
companions abused them or used provocative words as afore-mentioned. We,
therefore, hold that the case does not fall under exception 1 of Section 300
Learned counsel for the appellants submitted that since the appellants had
not attacked the deceased Abdul Qayum, they could only be convicted under
Section 324 IPC and not under Section 302. We do not agree. In our opinion
Section 34 IPC clearly applies to the facts of the case as held by the High
There is no doubt that all the accused came armed with spears and lathies.
It has also come in evidence that all the twelve accused surrounded deceased
Abdul Qayum as well as the injured person Mustakin (PW3). The appellants who
were armed with spears had inflicted a spear wound on Mustakin in his ilium. Hence,
in our opinion, Section 34 clearly applies in this case.
Court held that to convict a person with the aid of Section 34 IPC, it is
necessary to establish that a criminal act was done in concert, pursuant to a
pre-arranged plan. However, it was also observed that it is difficult, if not
impossible, to procure direct evidence to prove the intention of a person.
After all, one cannot enter into the mind of a person to find out his
Hence, the intention has to be inferred from the circumstances of the case.
In the present case it is no doubt true that the appellants attacked the
injured Mustakin and not the deceased Abdul Qayum. However, from the facts of
the case it is clear that all the accused came armed with spears and lathies
and they attacked the deceased and the injured who sustained spear blows and
Abdul Qayum succumbed to his injury.
No doubt the appellants had not inflicted the injury on the deceased but
they had come along with others armed with spears and lathies, and they, in
fact, did attack the injured.
It is well settled that common intention may develop on the spot among a
number of persons and hence pre-concert in the sense of distinct previous plan
is not necessary to attract Section 34 IPC.
Also, it is not necessary to adduce direct evidence of common intention. The
intention may be inferred from the surrounding circumstances and the conduct of
In the present case, we see no reason to disagree with the High Court that
Section 34 IPC was attracted to the facts of the case.
Hence, we find no merit in the appeal which is accordingly dismissed.