Noor Mohammad Mohd. Yusuf Momin Vs.
State of Maharashtra [1970] INSC 73 (24 March 1970)
24/03/1970 DUA, I.D.
DUA, I.D.
HIDAYATULLAH, M. (CJ) RAY, A.N.
CITATION: 1971 AIR 885 1971 SCR (1) 119 1971
SCC (1) 696
ACT:
Criminal law--Difference between conspiracy,
common intention and abetment--Indian Penal Code, (Act 45 of 1860), ss. 34, 109
and 12OB--Scope of.
HEADNOTE:
Four accused were charged with the offences
under s. 120-B (conspiracy to commit murder) and s. 302 read with s. 34.
The fourth accused was also charged under s.
302 read with s. 109 for the offence of abetting the murder committed by the
other three accused. The accused 2 to 4 were related to one another while the
first accused was a servant of the brother of the second accused. There were
constant disputes between the fourth accused and the deceased over a rite of
passage and the right to tap water. The day before the murder the fourth
accused, went to the house of the deceased and exhorted his companions, one of
whom was the second accused, to kill the deceased. On the next day (the day of
the murder) the fourth accused threatened to kill the deceased and later,
accompanied by the 1st and 2nd accused, and followed the deceased when he went
out at about 10 p.m.
Fifteen minutes after the deceased was thus
seen being followed by the accused, the deceased was stabbed. The third accused
tried to persuade the two constables who were proceeding towards the scene when
they heard the disturbance that nothing untoward had happened, but the
constables proceeded to the scene, and, on noticing the wounded body of the
deceased, chased and caught the first accused and recognised the second accused
who had escaped. One of the constables lodged the first information against the
accused 1 to 3. The fourth accused was absconding and after he was arrested,
all the accused were put up for trial. The High Court convicted the first
accused under s. 302 I.P.C., and accused two to four for offences under s.
120-B and s. 302 read with s. 34, I.P.C. The fourth accused was also convicted
for the offence under s. 302 read with s. 109.
In appeal by special leave to this Court by
the 'fourth accused, this Court examined the evidence, contrary to its usual
practice, as it was represented that the evidence did not support the conclusion
of the High Court, and
HELD : The evidence clearly established the
complicity of the appellant in the murder of the deceased, and the charges
under s. 302 read with s. 109 I.P.C. and of conspiracy were fully supported by
the evidence. As regards the charge under s. 302 read with s. 34, though, it
was highly probable that at the time of the actual murder the appellant was
either present with the other three co-accused or was somewhere nearby, the
evidence did not establish beyond reasonable doubt his presence- at or near the
spot when the murder was actually committed, and therefore, he must be given
the benefit of doubt in regard to that charge.
Section 34 embodies the principle of joint
liability in the doing of a criminal act, the essence of that liability being
the existence of a common intention. Participation in the commission of the
offence in furtherance of the common intention invites its application.
120 Section 109, on the other hand, may be
attracted even if the abettor is not present when the offence abetted is
committed provided that he has 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 that conspiracy some act or illegal emission takes place or has intentionally
aided the commission of an offence by an act or illegal omission.
Criminal conspiracy is a substantive offence
under s. 120-B I.P.C. It differs from the other offences in that mere agreement
is made an offence even if no step is taken to carry out that agreement. Though
there is close association of conspiracy with incitement and abetment, the
substantive offence of criminal conspiracy is wider in amplitude than abetment
by conspiracy as contemplated by s. 107 I.P.C.
Conspiracy from its very nature is hatched in
secrecy and it is, therefore, extremely rare that direct evidence in proof of
conspiracy can be forthcoming, but like other offences it can be proved by
circumstantial evidence. Surrounding circumstance and antecedent and subsequent
conduct, among other factors constitute relevant material. In fact, because of
the difficulties of having direct evidence of criminal conspiracy, once
'reasonable ground is shown for believing that two or more persons have
conspired to commit an offence then anything done by any one of them in
reference to their common intention after the same is entertained becomes,
according to the law of evidence relevant for proving both conspiracy and the
offences committed pursuant thereto. (124B-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.24 of 1968.
Appeal by special leave from the judgment and
order dated December 13, 14, 1967 of the Bombay High Court in Criminal Appeal
No. 380 of 1966.
A. S. R. Chari and A. G. Ratnaparkhi, for the
appellant.
G. L. Sanghi and S. P. Nayar, for the
respondent.
The Judgment of the Court was delivered by
Dua, J. In this appeal by special leave we are only concerned with the
conviction of one out of four accused persons jointly tried for the murder of
one Mohd. Yahya.
The appellant Noor Mohammed Mahamed Yusef
Momin, accused no.
4, in the trial court was jointly tried with
three others in the court of the second Additional Sessions Judge, Thana on the
following three charges "That you accused nos. 1 to 4 on or about the 16th
day of April, 1965 at Bhiwandi entered into an agreement to commit the murder
of Mohamed Yahya and that the same illegal act was done in pursuance of the
said agreement and thereby you committed an offence punishable under section
120B of the Indian Penal Code and within my cognizance.
That You accused nos. 1, 2 and 3 on or about
the 17th day of April, 1965 at about 11 p.m.
at Bhiwandi 121 in furtherance of common
intention of you all and accused no. 4 to commit the murder of the deceased
Mahamed Yahya did commit his murder by intentionally causing his death by
assaulting him by knife and thereby committed an offence punishable under S.
302 read with s. 34 of the Indian Penal Code and within my cognizance.
In the alternative you accused no. 4 on 17th
of April, 1965 at Bhiwandi abetted the commission of the offence of murder of
Mahamed Yahya by accused nos. 1 to 3 which offence was committed in consequence
of your abetment and that you thereby committed an offence punishable under
sections 109 and 302 of the Indian Penal Code and within my cognizance."
The trial court convicted Mohd. Taki Haji Hussein Momin, accused no. 1 under s.
302, I.P.C. and sentenced him to imprisonment for life. He was acquitted of the
other charges. His three co-accused were acquitted of all the charges. 'Accused
no. 1 appealed to the Bombay High Court against his conviction whereas the
State appealed against the acquittal of the other three. The High Court, after
considering the evidence on the record, upheld the conviction of accused no. 1
and reversed the order of acquittal of the other three. Accused nos. 2, 3 and 4
(Chinwa Ca, Ahmed Hessan Momin, Abdul Rahamen Bacchu Momin, and Nur Mahamed
Mahamed Yusef Momin respectively) were held guilty of the offence under s.
120-B, I.P.C. as also of the offence under s. 302, read with s. 34, I.P.C.
Accused no. 4 was in addition held guilty of the offence under s. 302 read with
s. 109, I.P.C. Accused nos. 2, 3 and 4 were sentenced to imprisonment for life
both under s. 120-B, I.P.C. and s.
302 read with s. 34, I.P.C. Accused no. 4,
appellant in this Court, was also separately sentenced to imprisonment for life
for the offence under s. 302 read with s. 109, I.P.C.
Incidentally it may be mentioned that
Jaitunbi, widow of the deceased Mohd. Yahya, had also appealed to the Bombay
High Court challenging the acquittal of accused nos. 2, 3 and 4 on all charges
and of accused no. 1 on the charges other than that of murder under s. 302,
I.P.C. This appeal which was treated as an application under S. 417(3), Cr. P.C.
was held not to be maintainable.
As already indicated, this Court granted
special leave only to the appellant who was accused no. 4 in the trial court.
Before narrating the prosecution story the
inter se relationship of the accused persons may be stated. Abdul Rehman Bacchu
Momin. accused no. 3, is the husband of the sister of the appellant Noor
Mohammed's wife. Chinwa alias Ahmed Hessan L11 Sup. CI/70-9 122 Momin, accused
no. 2, is the brother of Kallu, who is the son-in-law of the appellant, accused
no. 4. Mohd. Taki, accused no. 1, is the servant of Kallu. All these persons
are the residents of the same place and the deceased Mohd.
Yahya was a close neighbour of the appellant.
According to the prosecution there were constant disputes between the, appellant
and the deceased over the right of passage and the right to tap water, and it
is not disputed that both sides had made reports and counter-reports with the
police against each other. The climax reached on April 16, 1965 in the morning
at 7 O' clock. On that day Mohd. Yahya, when going out of his house, found that
there was a heap of earth and a cot belonging to the appellant obstructing his
way. A cow belonging to the appellant was also standing in the passage.
In order to clear his way the deceased picked
up a stone and hurled it at the cow. This offended the appellant and he in
retaliation threw a glass which he was holding towards the deceased and also
abused him. The deceased reported this incident to the police station. The
appellant also went to the police station and made a counter-complaint against
the deceased. When the deceased :and the appellant had gone to the police
station the two wives of the appellant abused Jaitunbi, wife of the deceased,
with the result that Jaitunbi also went to the police.station to lodge a
report.
But this report was not recorded. A little
later, the wives, sisters and children of the appellant again abused Jaitunbi
and pelted stones at her. Jaitunbi went to the police station again to lodge a
complaint, the same day at about 10 a.m. When the deceased was lying on a cot
in his house the appellant came up to the door of the former's house asking him
to get down. On enquiry by the deceased as to why he should get down the
appellant replied that he would serve the deceased with his last tea. At that
time the appellant was accompanied by four or five persons including Chinwa,
accused no. 2. It is said that all of them abused the decreased. Chinwa,
accused no., 2, held a knife in his hand which he is stated to have opened by pressing
the button and as he tried- to enter the house of the deceased, the latter's
daughter, Noorjahan, went by the back door to the police station to lodge a
complaint. This part of the story is not admitted by the accused. On
Noorjahan's complaint the police came to the spot in a van and after
interrogating the persons present the police party took with them accused nos.
2 and 3. The appellant is stated to have offered to reach the police station
himself a little later.
In view of these incidents Jaitunbi
apparently felt somewhat frightened and advised her husband, deceased Mohd.
Yahya, to go to Bombay to avoid further clashes with the appellant.
Mohd. Yahya, acting on his wife's advice,
went away to Bombay but 123 returned on the evening of April 17, 1965 bringing
with him some female guests. In those days an Urus was being held near Par Naka
and it appears that it was to attend this Urus that the female guests came with
him. Seeing Mohd. Yahya back from Bombay, the appellant asked his nephew Latif,
who was sleeping on a cot outside the house, to go in, loudly uttering that a
dead body was to be kept on that cot. The deceased who had reached home at
about 9.30 P.M. a little later went out to a pan shop near the Navyug Hotel.
The deceased accompained by two unidentified persons followed him. Soon after,
Mohd. Yahya was stabbed with a knife and this news reached his house. At the
Par Naka two constables, Bhika Bahiram and Suvamasing, who were on duty in
connection with the Urus, on learning of some disturbance near the Navyug Hotel
and noticing some commotion, proceeded to the lane where a crowd had collected.
On the way, accused no. 3 told them that nothing untoward had happened;
but the two constables nevertheless proceeded
further and reached the spot where Mohd. Yahya was lying in injured condition.
Someone from the upper storey of a house nearby shouted that the assailants
were running away. Constable Bhika Behiram asked Suvarnasing to attend to the
injured person and he himself chased the two persons trying to escape. He
caught Mohd. Taki, accused no. 1, in a lane near the municipal office. The
other person who could not be caught was identified by Bhika Bahiram as Chinwa,
accused no. 2, who was known to him. Suvamasing in the mean time, feeling that
Bhika Bahiram would need his help also followed him and found him grappling'
with Mohd. Taki. Both the constables over-powered Mohd. Taki, who had a knife
in his pocket and whose clothes were bloodstained. Mohd. Taki was brought back
to the place where Mohd. Yahya was lying injured. Mohd. Yahya was taken to the
hospital in a bullock cart but he expired soon thereafter. In the report'
lodged by constable Bhika Bahiram, the names of accused nos.
1 and 2 were mentioned and accused no. 3 was
described as an old man with moustaches, wearing a lungi. The appellant was not
arrested, though his statement was recorded during the investigation on April,
19, 1965. He appears to have absconded soon thereafter and was arrested on June
18, 1965.
The case against the appellant is to be
considered in the background of the order of conviction against the other three
co-accused which has become final, this Court having declined special leave
against their conviction.
The High Court, on a consideration of the
entire evidence, came to the conclusion that all the accused (nos. 1 to 4) had
hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay
and it was in pursuance of that conspiracy 124 that he was murdered on the
night of April 17, 1965. The appellant, along with accused nos. 2 and 3, was
also held guilty of an offence under S. 302 read with S. 34, I.P.C. He was
further held guilty of an offence under s. 302 read with S. 109, I.P.C. The
appellants' conviction on all these counts is challenged in this Court.
So far as S. 34, I.P.C. is concerned, it
embodies the principle of joint liability in the doing of a criminal act, the
essence of that liability 'being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common
intention invites its application. Section 109, I.P.C. on the other hand may be
attracted even if the abettor is not present when the offence abetted is
committed provided that he has 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 that conspiracy some act or illegal omission takes place or has
intentionally aided the commission of an offence by an act or illegal omission.
Turning to the charge under s. 120-B, I.P.C. criminal conspiracy was made a
substantive offence in 1913 by the introduction of Chapter V-A in the Indian
Penal Code. Criminal conspiracy postulates an agreement between two or more
persons to do, or cause to be done an illegal act or an act which is not
illegal, by illegal means. It differs from other offences in that mere
agreement is made an offence even if no step is taken to carry out that
agreement. Though there is close association of conspiracy with incitement and
abetment the substantive offence of criminal conspiracy is somewhat wider in
amplitude than abetment by conspiracy as contemplated by s. 107, I.P.C. A
conspiracy from its very nature is generally hatched in secret. It is,
therefore, extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested, quarters or from utter strangers. But,
like other offences, criminal conspiracy can be proved by circumstantial
evidence.
Indeed, in most cases proof of conspiracy is
largely inferential though the inference, must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other
factors, constitute relevant material. In fact because of the difficulties in
having direct evidence of criminal conspiracy, once reasonable ground is shown
for believing that two or more persons have conspired to commit an offence then
anything done by anyone of them in reference to their common intention after
the same is entertained becomes, according to the law of evidence, relevant for
proving both conspiracy and the offences committed pursuant thereto. In the
present case the High Court, after referring to the evidence of Laxmibai, (P.W.
7) and Hari Chavan (P.W. 13) (whom 125 that court expressly described as
independent witnesses) and also of Murlidhar (P.W. 12), expressed its opinion
in these words "All this evidence would show that at least since the 16th
of April, 1965 the accused nos.
2, 3, and 4 were acting in concert and had
something common in their mind. It would also show the presence of the accused
no. 2 with a knife, at the incident of the 16th April, 1965 and his threatening
the deceased with the knife and the acts and words used by the accused no. 4
Mohammad Noora inspiring the accused no. 2 and some other persons who were with
him to beat and kill Mohammad Yahya, the subsequent utterances of the accused
no. 4 when the deceased returned from Bombay on the night of the 17th of April,
1965, the following of the deceased Mohammad Yahya by the accused no. 4 along with
two persons when Mohammad Yahya went out to have a pan, the death of Mohammad
Yahya soon thereafter, then running of the four persons from the scene of the
offence the accused no. 3 misleading the police constable with respect to the
incident, the accused nos. 1 and 2 running away from the scene of the offence
eluding the police constables, the accused no. 1 being caught after some
struggle near the Municipal Office and found with his clothes stained with
blood and having a knife in his shirt pocket, all these circumstances, taken
together, would show that the accused nos. 1 to 4 must have met previously
before causing of the injuries to deceased and must have hatched out a plan of
causing the death of the deceased or causing at least grievous injuries to the
deceased. Otherwise the presence of all the four accused near the scene of the
offence at the time the incident occurred cannot be satisfactorily explained.
The accused no. 4 had known that the deceased had returned from Bombay and the
ominous words he used while asking his nephew Lateef to get down from the cot
would suggest that he had still in mind that idea of doing away with the
deceased and must have collected the other colleagues of his to carry out the
plan which must have been hatched out prior to the incident. That inference can
reasonably be drawn from the circumstances established in the case and it is in
pursuance of that pre-planning to do away with the deceased, all the four
accused must have followed the deceased when he went out that night and the deceased
was stabbed by at least some of these accused persons." The High Court
also believed the evidence of Noorjehan (P.W. 11) and Jaitunbi, (P. W. 5). In
its opinion though these two 126 witnesses were, to a certain extent,
interested their evidence appeared to it to be natural and its tenor did not
show that they were deposing falsely. On a consideration of the entire material
on the record the High Court felt that all the four accused persons must have
hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay
and it was in pursuance of this conspiracy that Mohd. Yahya was murdered on the
night of April 17, 1965. The court took into account the facts that accused no.
1 was caught after some chase near the scene of occurrence, accused no. 2 was
identified though he made good his escape, accused no. 3, who was also
identified by description, tried to mislead the police constables, and that
accused no. 4 was seen following the deceased just before the murder with two
or three persons. On this material the High Court upheld the appellant's
conviction.
Under Art. 136 of the Constitution this Court
does not normally proceed to review and appraise the evidence for itself and
the conclusions of the High Court on questions of fact on appreciation of
evidence are considered to be final.
This is so even if this Court were to feel
that a different view of the evidence is possible. But in this case, as it was
represented that the evidence on the record does not support the conclusion of
the High Court and that grave and substantial injustice had been caused, we
undertook to go into the evidence, with the help of the counsel for the
parties, to satisfy ourselves if there is any sufficient ground for
interference on appeal by special leave. Hari Chavan, (P.W. 13), has deposed
that on April 16, 1965 at about 10.30 a.m. the appellant, while standing near
the steps of Mohd. Yahya's house, exported three of his companions, one of whom
was accused no. 2 who had a knife in his hand, to beat the deceased, the actual
words used being, "Beat him : Kill him : I shall look to the
consequences".
This evidence is corroborated by Laxmibai,
(P.W. 7) and both of these witnesses have been believed by the High Court.
Laxmibai (P.W. .7) actually saw the appellant
with the two others following the deceased about 15 or 20 minutes before the
murder. We are unable to find any cogent ground for disagreeing with the High
Court. On this evidence not only animus on the part of the appellant but also
instigation by him must be held to be fully established. This evidence would
also support the charge of criminal conspiracy against the appellant. Indeed,
the evidence of Jaitunbi (P.W. 5) and Noorjehan (P.W. 1) also shows that the
appellant on April 16, 1965 and on the evening Of April 17, on Mohd.
Yahya's return from Bombay and a short time
before his murder, openly gave expression to his strong feelings of animosity
against the deceased which leaves little doubt that he was thinking of doing
away with Mohd. Yahya's life The admitted strained relations between the
parties which reached the climax on April 16, 1965 and the evidence just
discussed, in our opinion, clearly 127 establishes the complicity of the
appellant in the murder of the deceased. The charges under s. 302 read with S.
109, I.P.C. and of conspiracy are thus fully supportable on the evidence. In
regard to the 'charge under s. 302 read with s. 34, I.P.C. also Jaitunbi (P.W.
5) has deposed that on the date of the occurrence at about 9.30 p.m. the
appellant asked his nephew Latif who was sleeping on the cot outside to go
inside the house because a dead body was to be kept on that cot. Thereafter it
is in the evidence of Laxmibai (P.W. 7), that the appellant accompanied by two
persons followed the deceased when the latter went to the Pan shop.
About 20 minutes later the news of Mohd.
Yahya's murder reached his house. From this evidence it seems highly probable
that at the time of the actual murder of Mohd. Yahya the appellant was either
present with the other three co-accused or was somewhere nearby. But this
evidence does not seem to be enough to prove beyond reasonable doubt his
presence at the spot in the company of the other accused when the murder was
actually committed. For, it may be that after leaving the house he stayed away
and the persons actually taking part in the murder were only the other three
co-accused. We are, therefore, inclined to give to the appellant the benefit of
doubt in regard to the charge under s. 302 read with s. 34, I.P.C. This would,
however, be of little practical benefit to the appellant because he has already
been given the lesser sentence. This appeal is, therefore, accepted only to the
extent that the appellant's conviction under s. 302 read with s. 34 is set
aside. In all other respects this appeal fails and is dismissed.
R.K.P.S. Appeal allowed in part.
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