Aizaz Ors. Vs. State of U.P. [2008] INSC 1347 (12 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 193 OF 2005 Aizaz
& Ors. ...Appellants Versus State of U.P. ...Respondent
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 isconcerned, 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
2the 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 3very 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 4on 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 5 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 6common 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 7essence 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.
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 9prove 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 10 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 11that the appeal is sans merit,
deserves dismissal, which we direct.
.........................................J.
(Dr. ARIJIT PASAYAT)
...........................................J.
Back
Pages: 1 2 3
