Hon'ble Mr. Justice Ajay Rastogi
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 2007 OF 2008
EZAJHUSSAIN SABDARHUSSAIN & ANR. ….Appellant(s)
VERSUS
STATE OF GUJARAT ….Respondent(s)
J U D G M E N T
Rastogi, J.
1. The appellants are assailing their conviction under Section
302 read with section 34 IPC and sentenced to undergo
imprisonment for life passed by the learned trial Court and
confirmed by the High Court under the impugned judgment.
2. On dismissal of appeal upholding conviction under Section
302 read with Section 34 IPC, accused nos. 1 and 2 have not
challenged their conviction and sentence and accused nos. 3 and
4(present appellants) have approached this Court assailing the
1
said judgment and conviction under Section 302 read with
Section 34 IPC.
3. The brief facts necessary for disposal of the appeal are as
follows:
According to the case of the prosecution, accused no.1
Iftekharhussain Sabdarhussain was having a long pending civil
dispute about his flat with the deceased Mohammad Shakil
situated near to the scene of occurrence. On 18th August, 1997
at about 11.00 a.m., Mohammad Shakil(deceased) had operated
electric motor for supply of water in the common overhead tank
situated on top of the building but at that time since water taps
were kept open by accused no. 1 Iftekharhussain Sabdarhussain
in his house, the water could not reach to the tank. The request
of the deceased Mohammad Shakil to close the tap was not
acceptable to accused no. 1 Iftekharhussain Sabdarhussain, due
to which altercation took place between accused no. 1
Iftekharhussain Sabdarhussain and deceased Mohammed Shakil
and both started shouting at each other. According to the
prosecution, after hearing hot altercation, members of the
complainant party(Shamimbanu, Adilahmed, Zaidahmed) came
there and started abusing the member of their family. At this
2
stage accused no. 1 Iftekharhussain Sabdarhussain and accused
no. 2 Shefakathusssain Sabdarhussain went into their house
and brought a knife and gupti in their hand and accused nos. 3
& 4(present appellants) caught hold of Mohammad
Shakil(deceased) and accused no. 1 Iftekharhussain
Sabdarhussain and accused no. 2 Shefakathussain
Sabdarhussain gave a knife and gupti blow to deceased
Mohammad Shakil(deceased) and accused no. 2 Shefakathussain
Sabdarhussain also injured Adilahmed(PW2) who too was
caught hold of by accused nos. 3 & 4(present appellants) and
thereafter they left the scene of occurrence, both Mohammad
Shakil and Adilahmed (being severally injured) were taken to
V.S. Hospital and on receiving telephonic message Mr. Makwana,
Police Inspector rushed to the hospital where he came to know
that Mohammad Shakil had succumbed to injuries and
Adilahmed was admitted in the hospital for treatment and
thereafter recorded the complaint of Shamimbanu(PW1), wife of
deceased Mohammad Shakil at 2.00 p.m. and thereafter sent the
same to Gaikwad Haveli Police Station for registration of offence.
Thereafter, all the four accused were registered in C.R. No.
3
146/1996 for the alleged commission of offence under Sections
302, 307 read with Section 34 IPC.
4. It may be relevant to note that for the selfsame incident
happened around 11.00 a.m. in the morning of 18th August,
1997, accused no. 1 Iftekharhussain Sabdarhussain also made a
cross complaint that he was residing at House No. 521/4/5 in a
small chawl(street) of Saudagar, in Jamalpur area and the
present complainant party was living in front of his house and
the families are known to each other. On 18th August, 1997 at
eleven o’ clock in the morning, he was in the bathroom and he
had kept the tap on, as his house was to be cleaned. Mohammad
Shakil (deceased) came at his house and told him to turn the tap
of water off. Accused no. 1 Iftekharhussain Sabdarhussain told
to do the same after the cleaning work would finish as he was
cleaning his house and not possible for him to off the tap. The
members of the complaint party started using abusive language
and attacked on him and becoming very excited. He also got
excited and used abusive words, then three of them had beaten
him with punch and kick and Mohammad Shakil(deceased) had
beaten him by pipe blow on the back side by coming from behind.
The nearby people had also come. Thereafter, his brother
4
Shefakathussain took him to Police Station by rescuing him
where he lodged his complaint which was registered at 12.10
p.m. In his complaint, he has not recorded the presence of
accused nos. 3 & 4(present appellants) when the alleged incident
took place on 18th August, 1997. The complaint of which the
cognizance was taken for the offence under Section 302 & 307
read with Section 34 IPC was registered at 2.00 p.m. after
the complaint of the accused no. 1 Iftekharhussain
Sabdarhussain on which the FIR was registered at the instance
of the accused no.1 at 12.10 p.m. and after investigation chargesheet came to be filed against members of the complainant party.
5. All the four accused faced trial and held guilty on the ocular
evidence of PWs 1,2,3 & 4 who are the family members of
deceased Mohammad Shakil. No independent witness was
examined by the prosecution despite the fact it was a holiday and
members reside in the adjacent flats as well. Indisputedly, there
is no recovery from the present accused appellants and their
clothes were also not recovered in the course of investigation.
After the trial, all the four accused persons were held guilty
under Section 302 read with Section 34 IPC and the appeal
preferred against their conviction and sentence was also
5
dismissed by the High Court under the impugned judgment
dated 29th February, 2008.
6. Learned counsel for the appellants submits that the Courts
below have committed a serious manifest error in accepting the
testimony of PWs 1,2,3 & 4 who are the interested witnesses in
holding their conviction under Section 302 with the aid of Section
34 IPC on the said evidence and further submits that taking the
prosecution case on its face value based on the evidence of PWs
1,2, 3 & 4, there may be a case against accused nos. 1 & 2 who
could be charged guilty and convicted under Section 302 read
with Section 34 IPC as there was an allegation against them that
they had stabbed the deceased by a knife and gupti. But so far
as present accused appellants are concerned against whom the
only allegation was that both of them had caught hold of
deceased Mohammad Shakil and never assaulted either the
deceased Mohammad Shakil or injured Adilahmed(PW2) and
submitted that an allegation that they caught hold of deceased
and facilitated the two other accused persons to commit the
crime in absence of any corroborating evidence on record, the
finding which has been recorded holding the present accused
6
appellants guilty of offence under Section 302 read with Section
34 IPC is perverse and not sustainable in law.
7. Learned counsel for the appellants further submits that for
the selfsame incident, FIR came to be registered at the first
instance earlier by accused no. 1 Iftekharhussain Sabdarhussain
at 12.10 p.m. Who was the instigator may not be a question to
be examined but accused no. 1 Iftekharhussain Sabdarhussain
in his complaint has recorded the presence of his brother
(accused no. 2 Shefakathussain Sabdarhussain) alone at the time
of the alleged offence being committed. The complaint on which
the present FIR was registered at the instance of the
Shamimbanu(PW 1) wife of deceased Mohammad Shakil was
registered at 2.00 p.m. and to settle the personal scores as the
civil dispute was long pending between the families, all the male
members of their family were implicated and there is no such
overt act which would have been attributed to the present
appellants. In the absence of any independent witness being
examined by the prosecution, which indeed was available as the
date of incident being a holiday and good number of families
residing in the neighbouring flats, appears to be a case of over
7
implication to settle their long pending civil disputes in the courts
of law.
8. Learned counsel further submits that even from the
evidence on record, the presence of the present accused
appellants is itself doubtful as the learned trial Court has
proceeded on assumption that since it was a holiday on account
of Rakshabandhan, their presence cannot be doubted. The
presumption in itself could not be considered to be sufficient to
implicate present accused appellants of their common intention
in committing the commission of offence in holding them guilty
with the aid of Section 34 IPC and this has been the manifest
error committed in convicting the appellants under Section 302
with the aid of Section 34 IPC.
9. Learned counsel further submits that even the presence of
accused appellants together is not sufficient to hold that they
shared common intention to commit the offence. It is necessary
that the person be known to each other but for prosecuting the
common intention, there must be a clear and unimpeachable
evidence to justify that inference. There cannot be universal rule
applicable to cases of this class which can be laid down as to
what presumption may be drawn on any given state of facts.
8
Learned counsel further submits that common intention within
the meaning of Section 34 IPC implies a prearranged plan, and to
convict the accused of an offence, it should be proved that the
criminal act was done in concert pursuant to the prearranged
plan and that the inference of common intention should never be
reached unless it is a necessary inference deducible from the
circumstances of the case. There cannot be a rule of universal
application and each case has to be looked into on its own facts
and circumstances and in support of his submission, learned
counsel has placed reliance on the judgment of this Court
reported in Ramashish Yadav and Others Vs. State of Bihar
1998(8) SCC 555.
10. Learned counsel for the respondent, on the other hand,
while supporting the finding recorded by the learned trial Court
and confirmed by the High Court further submits that the
presence of the accused appellants stood established from the
ocular evidence of PWs 1,2,3 & 4 and all are consistent that both
of them caught hold of the deceased Mohammad Shakil in the
first instance and thereafter caught hold of the injured
Adilahmed(PW2) and aware of the lethal weapons being brought
by other accused persons. They had the common intention not
9
only to injure deceased but the common intention was to commit
murder of the deceased Mohammad Shakil.
11. Learned counsel further submits that the manner in which
the offence has been committed and the role being assigned to
each of the accused clearly shows that the act was done in
furtherance of the common intention of all and each of the
accused is liable for the criminal act. The allegation against the
present accused appellants that they both caught hold of the
hands of the deceased shows that they had the intention to
disable the deceased Mohammad Shakil. Moreover, the
appellants continued holding the hands of the deceased all along
without making any effort to prevent accused no. 1
Iftekharhussain Sabdarhussain and accused no. 2
Shefakathussain Sabdarhussain attacking the deceased, proves
the common intention on their part and that can easily be
discern from the fact that once accused no. 1 Iftekharhussain
Sabdarhussain shouted to beat Adilahmed (PW2), the present
accused appellants left the deceased and caught hold the hands
of Adilahmed(PW2) and facilitated the other accused persons not
only to attack the deceased but to injure (PW2) Adilahmed as
well and as both the present appellants have shared the common
10
intention with other accused persons, they have rightly been
convicted under Section 302 read with Section 34 IPC and placed
reliance of the judgment of this Court in Ramesh Singh alias
Photti Vs. State of A.P. 2004(11) SCC 305 and Goudappa and
others Vs. State of Karnataka 2013(6) SCC 675.
12. Taking assistance thereof, learned counsel for the
respondent further submits that the injuries may not be
attributed to present accused appellants but both have disabled
the deceased Mohammad Shakil and immobilised him thereby
facilitating the attack on the deceased as well as on Adilahmed
(PW2). In such circumstances, the action of the appellants in
facilitating the attack on deceased Mohammad Shakil and by not
preventing accused no. 1 Iftekharhussain Sabdarhussain and
accused no. 2 Shefakathussain Sabdarhussain from assaulting
the deceased Mohammad Shakil leads to the conclusion that the
appellants shared the common intention with accused no. 1
Iftekharhussain Sabdarhussain and accused no. 2
Shefakathussain Sabdarhussain and have rightly been held
guilty under Section 302 read with Section 34 IPC in committing
the offence and needs no interference by this Court.
11
13. To appreciate the argument advanced on behalf of the
learned counsel for the appellants, it may be possible to first take
note to understand the object of Section 34 IPC incorporated in
the Indian Penal Code which has been considered in Ramesh
Singh’s case(supra) as under:
“13. Since common intention essentially being a
state of mind can only be gathered by inference
drawn from facts and circumstances established in a
given case, the earlier decisions involving almost
similar facts cannot be used as a precedent to
determine the conclusions on facts in the case in
hand. This view of ours finds support in a judgment
of this Court in Pandurang v. State of Hyderabad AIR
1955 SC 216 wherein while considering the
applicability of Section 34 IPC this Court held thus :
“But to say this no more than to reproduce the
ordinary rule about circumstantial evidence, for
there is no special rule of evidence for this class of
case. At bottom, it is a question of fact in every case
and however similar the circumstances, facts in one
case cannot be used as a precedent to determine the
conclusion on the facts in another. All that is
necessary is either to have direct proof of prior
concert, or proof of circumstances which necessarily
lead to that inference, or, as we prefer to put it in the
time honoured way, ‘the incriminating facts must be
incompatible with the innocence of the accused and
incapable of explanation on any other reasonable
hypothesis’.
As we have said, each case must rest on its own
facts and the mere similarity of the facts in one case
cannot be used to determine a conclusion of fact in
another.”
12
14. Later, the distinction between Section 149 & Section 34 IPC
has been examined by the Constitution Bench of this Court in
Mohan Singh Vs. State of Punjab AIR 1963 SC 174 as follows:
13. That inevitably takes us to the question as to
whether the appellants can be convicted under
Section 302/34.
Like Section 149, Section 34 also deals with
cases of constructive criminal liability. It provides
that where a criminal act is done by several persons
in furtherance of the common intention of all, each of
such person is liable for that act in the same manner
as if it were done by him alone. The essential
constituent of the vicarious criminal liability
prescribed by Section 34 is the existence of common
intention. If the common intention in question
animates the accused persons and if the said
common intention leads to the commission of the
criminal offence charged, each of the persons sharing
the common intention is constructively liable for the
criminal act done by one of them. Just as the
combination of persons sharing the same common
object is one of the features of an unlawful assembly,
so the existence of a combination of persons sharing
the same common intention is one of the features of
Section 34.
In some ways the two Sections are similar
and in some cases they may overlap. But,
nevertheless, the common intention which is the
basis of Section 34 is different from the common
object which is the basis of the composition of an
unlawful assembly. Common intention denotes
actioninconcert and necessarily postulates the
existence of a prearranged plan and that must mean
a prior meeting of minds. It would be noticed that
cases to which Section 34 can be applied disclose an
element of participation in action on the part of all the
accused persons. The acts may be different; may
vary in their character, but they are all actuated by
the same common intention. It is now wellsettled
that the common intention required by Section 34 is
different from the same intention or similar intention.
13
As has been observed by the Privy Council in Mahbub
Shah v. King Emperor I.L.R. (1945) IndAp 148
common intention within the meaning of Section 34
implies a prearranged plan, and to convict the
accused of an offence applying the Section it should
be proved that the criminal act was done in concert
pursuant to the prearranged plan and that the
inference of common intention should never be
reached unless it is a necessary inference deducible
from the circumstances of the case.
15. The essence of the joint liability during the criminal act in
furtherance of such common intention has been discussed by a
twoJudge Bench of this Court in Ramashish Yadav and
Others(supra) wherein it was held as under:
“….Section 34 lays down a principle of joint liability in
the doing of a criminal act. The essence of that liability
is to be found in the existence of common intention
animating the accused leading to the doing of a
criminal act in furtherance of such intention. The
distinct feature of Section 34 is the element of
participation in action. The common intention implies
acting in concert, existence of a prearranged plan
which is to be proved either from conduct or from
circumstances or from any incriminating facts. It
requires a prearranged plan and it presupposes prior
concert. Therefore, there must be prior meeting of
minds. The prior concert or meeting of minds may be
determined from the conduct of the offenders unfolding
itself during the course of action and the declaration
made by them just before mounting the attack. It can
also be developed at the spur of the moment but there
must be prearrangement or premeditated concert.”
16. It is clear from the principles laid down that however similar
the facts may seem to be in a cited precedent, the case in hand
should be determined on facts and circumstances of that case in
14
hand only and the mere similarity of the facts in one case cannot
be used to determine the conclusion of the fact in another.
Common intention being the state of mind can be gathered by
inference drawn from the facts and circumstances established in
a given case. The cases involving almost similar facts and
circumstances cannot be used as precedent to determine the
conclusions on facts in the case in hand.
17. Taking note of the law as laid down and as understood by
us, it will be apposite to take note of the facts of the case as to
whether prosecution has been able to establish beyond
reasonable doubt the sharing of common intention to commit the
murder of deceased Mohammad Shakil by the accused
appellants.
18. It has come on record that there was a long pending civil
dispute in reference to a flat nearby between the parties and
other families were residing in the housing colony and between
11.00 a.m. and 11.15 a.m. in the morning of 18th August, 1997,
when the altercation took place between accused no. 1
Iftekharhussain Sabdarhussain and deceased Mohammad Shakil
because of the supply of water, both parties started abusing each
other. Accused no. 1 Iftekharhussain Sabdarhussain was also
15
injured in the alleged incident and he also reported his complaint
at 12.10 p.m. on which FIR was registered and after
investigation, chargesheet was filed. Although after the trial, the
complainant party was acquitted vide judgment dated 18th
August, 1999. Accused no. 1 Iftekharhussain Sabdarhussain in
his complaint recorded the presence of his brother(accused no.2
Shefakathussain Sabdarhussain). The complaint on which the
FIR was registered at the instance of complainant Shamimbanu
(PW1), wife of the deceased Mohammad Shakil was at 2.00 p.m.,
apart from the presence of accused nos. 1 Iftekharhussain
Sabdarhussain & accused no. 2 Shefakathussain
Sabdarhussain, the names of accused no. 3 & 4(present
appellants) were also added but no overt act have been attributed
to the present appellants and their presence could be recorded
with an allegation that both of them caught hold of the deceased
Mohammad Shakil having common intention in facilitating the
other accused persons to stab the deceased Mohammad Shakil
by knife and gupti who have been convicted with the present
accused appellants under Section 302 read with Section 34 IPC.
19. That all the four prosecution witnesses, i.e. PWs 1,2,3 & 4
are the interested witnesses being the members of the same
16
family who are living in front of the family of the accused having
their civil dispute pending for a long time and this fact cannot be
ruled out that after they came to know that the FIR has been
registered at the instance of accused no. 1 Iftekharhusssain
Sabdarhussain against the complainant party, they have tried to
entangle all the male members of the accused party and since no
injury could be attributed to the accused appellants, the
allegation was levelled against them that the accused appellants
caught hold of the deceased Mohammad Shakil and
Adilahmed(PW2) with the common intention facilitated by the
accused in committing the crime. There is no independent
witness in the calendar of witness to support the prosecution and
it being a holiday on account of Rakshabandhan, at least when
they were residing in a multistorey building, number of families
must have been residing. There is no incriminating material
which has been placed by the prosecution to have their presence
at the time of commission of crime and to caught hold of the
deceased Mohammad Shakil and (PW2) Adilahmed and even
their clothes were not recovered in support of the ocular evidence
of the interested witnesses, their presence being a holiday do not
inspire confidence.
17
20. Other than the allegation that the accused persons caught
hold of deceased Mohammad Shakil, there is no other instigating
action or overt act attributed to the present accused appellants
actively participating in the commission of crime as alleged and
from the conduct of the accused persons, it seems that there was
no meeting of minds to form of prearranged plan. It is true that
it can be developed at the spur of the moment but there must be
prearrangement and premeditated concert which is the
requirement of law for applicability under Section 34 IPC and
from the case of the prosecution, the mere fact that accused
appellants caught hold of deceased Mohammad Shakil facilitating
the other accused persons to come with a knife and gupti and
gave blows, it cannot be said that the accused appellants shared
common intention with the other accused persons keeping note
of the fact that in the complaint which was in the first instance
registered for the alleged incident by accused no. 1
Iftekharhussain Sabdarhussain, he only recorded the presence of
accused no. 2 Shefakathussain Sabdarhussain but the time
when the complaint was registered at the instance of the present
offence by the Shamimbanu (PW1) at 2.00 p.m., the present
accused appellants were also intentionally implicated. Certainly
18
it creates a doubt of their false implication and their presence
from the prosecution evidence on record appears to be clouded
with suspicion and in our considered view, the present appellants
cannot be held guilty of the offence under Section 302 with the
aid of Section 34 IPC.
21. The judgment relied upon by the learned counsel for the
respondents in Ramesh Singh’s case(supra) was a case where
as per the case of prosecution, there was a death in the family of
A2. They wanted certain “samagri” for the funeral. On 30th
April, 1998 at about 11.00 am, since the deceased refused to give
some samagri, they became annoyed and accused persons went
away and came back together at about 11.45 a.m. and called the
deceased out of the house and while the two accused persons
were holding the hands of the deceased, the other accused
stabbed the deceased on his chest. They came with a common
intention and equally participated in the commission of crime.
However, in the instant case, there was no prearrangement of
mind and altercation took place between accused no. 1
Iftekharhussain Sabdarhussain with the deceased Mohammad
Shakil who was accompanied with accused no.2 Shefakathussain
Sabdarhussain and family members of deceased and in
19
furtherance thereof, accused no. 1 Iftekharhussain
Sabdarhussain and accused no. 2 Shefakathussain
Sabdarhussain brought a knife and gupti and stabbed the
deceased. No presumption can be drawn of common intention by
implicating the accused appellants under Section 34 IPC.
22. Another judgment of this Court referred by the learned
counsel for the respondent in Goudappa and Others(supra). It
was a case where the accused persons were armed with lethal
weapons assembled at one place and the moment the deceased
came out of the house to spit, one of the accused started abusing
him and the other accused persons held the deceased and
facilitated the other accused to give the fatal blow and made no
effort to prevent him from assaulting the deceased and their
common intention clearly emanates from the criminal act in
furtherance of the intention which in the instant case may not be
of any assistance. As already observed, there cannot be a
universal rule in laying down the principles of existence of
common intention of prior meeting or meetings with prearranged
plan. It has to be proved either from the conduct or
circumstances of any incriminating facts which is missing in the
instant case.
20
23. In our considered view, the High Court has committed a
manifest error in holding the appellants guilty under Section 302
read with Section 34 IPC for participating in the commission of
crime. The appellants deserve to be acquitted of the charges filed
against them by giving them benefit of doubt.
24. The appeal is accordingly allowed and the impugned
judgment of the High Court qua the appellants is set aside and
since the appellants are already on bail, their bail bonds stand
discharged.
…………………………J.
(A.M. KHANWILKAR)
………………………….J.
(AJAY RASTOGI)
NEW DELHI
February 15, 2019
21
