Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 539 OF 2013
(Arising out of S.L.P. (Crl.) No. 6354 of 2012)
Syed Yousuf Hussain ... Appellant
Versus
State of Andhra Pradesh
...Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present Appeal by Special Leave is directed
against the judgment of conviction and order of
sentence dated 29.12.2012 in Criminal Appeal No.
466 of 2005 passed by the High Court of Judicature of
Andhra Pradesh at Hyderabad whereby the Division
Page 2
Bench, while maintaining the conviction for the
offences punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of the Prevention of
Corruption Act, 1988 (for brevity “the Act”) read with
Section 34, I.P.C. since the accused-appellant was
convicted along with another accused, namely, Mohd.
Shafi-Ul-Haq, recorded by the Principal Special Judge
for S.P.E. and A.C.B. Cases-cum-IV Additional Chief
Judge, City Civil Court, Hyderabad, in C.C. No. 11 of
1995, reduced the sentence to that of simple
imprisonment for six months for the offence
punishable under Section 7 and to one year under
Section 13(1)(d) read with Section 13(2) of the Act
instead of one year and two years respectively as
imposed by the learned Special Judge with the
further stipulation that both the sentences shall be
concurrent.
3. The facts in a nutshell are that on 4.1.1994, PW-2,
Mohd. Shareef, a driver in the Cuddapah Transport
Company, Hyderabad was driving a lorry bearing No.
AP 04-T-372 in Hyderabad near Tadbund and was
2Page 3
proceeding towards Musheerabad locality via
Santoshnagar cross-road, the places situated in
between Hyderabad-Secunderabad twin cities.
When
the said lorry reached Santoshnagar cross-road, the
accused-appellant (hereinafter referred to as “the
accused”) along with the other accused stopped the
vehicle on the pretext that the lorry had entered the
‘No Entry Zone’.
The accused took away the
documents of the vehicle from the driver, PW-2, and
all excuses fell on deaf ears and a demand was made
for Rs.100/- towards illegal gratification for return of
the documents and not to book a case against him.
PW-2, who was asked to pay the amount by the
evening, did not have any intention to give the bribe
and, accordingly, approached the Deputy
Superintendent of Police, Hyderabad, PW-6, and
lodged a complaint, Ext. P-15, on 4.1.1994 about
3.45 P.M. and the said complaint was registered as
F.I.R., Ext. P-16. PW-6 held a pre-trap proceeding by
securing the presence of four persons including one
S. Prakash, who has been examined as PW-5 by the
prosecution.
As the evening approached, the trap
3Page 4
party along with others and PW-2 reached Kamal
Talkies about 7.00 P.M. where PW-2 met the accused
persons at Chadarghat Junction. As the story further
gets unfurled, PW-2 was asked by the accused to
meet accused No. 2, Mohd. Shafi-Ul-Haq, who, in
turn, directed him to wait at the Traffic Police Station
where the documents of the vehicle were kept.
About 7.20 P.M., PW-2 reached the Traffic Police
Station and the trap party followed him as per the
previous arrangement. Accused No. 2 accepted the
bribe amount of Rs.100/- in the presence of the
present appellant and returned the documents.
Thereafter, on signal being given, PW-6 along with
the trap party reached the place, seized the amount
from the shirt pocket of accused No. 2 and completed
the other formalities. After completing the
investigation, charge sheet was laid before the
learned Special Judge who, on the basis of the
materials brought on record, framed charges against
them on 5.12.1995. The accused persons pleaded not
guilty and claimed to be tried.
4Page 5
4. The prosecution, in order to bring home the guilt of
the accused persons, examined seven witnesses, got
sixteen documents exhibited and marked eleven
material objects. On the basis of the evidence
brought on record, the learned Special Judge came to
hold that the money was recovered from accused No.
2 and there being no cogent, credible and acceptable
explanation given by him and regard being had to
the other circumstances, the presumption as
provided under Section 20 of the Act was attracted.
That apart, the learned Special Judge held that there
was a consensus as regards the demand and
acceptance of the money and, therefore, the
prosecution had brought home the charge against
both the accused persons and, accordingly,
sentenced them as has been stated herein before.
5. On appeals being preferred by the accused persons,
the High Court took note of the fact that though PW-
2, the de facto complainant, had resiled from the
allegations made in Ext. P-15, yet his evidence could
not be totally discarded, especially, the testimony
5Page 6
leading to the trap and recovery. The High Court
scrutinized the evidence of the said complainant and
opined that it was clear from the evidence that the
money was recovered from the accused No. 2 and,
therefore, there was no reason to discard the
genuineness of Ext. P-15 and payment of the amount
to accused No. 2. The learned Judge, as is
demonstrable, has studiedly scanned the evidence of
PWs-5 and 6 and found that their evidence is
consistent with the evidence of PW-2 and, therefore,
the trial court was justified in taking aid of Section 20
of the Act. Because of the aforesaid analysis, it was
opined that the prosecution had proved the
acceptance of the amount by the accused No. 2.
Thereafter, the High Court has analysed the evidence
and recorded a finding that the accused was very
much on the site and had intercepted the vehicle and
taken away the documents of the vehicle and further
was also present in the other room when the
transaction took place and, hence, he was involved in
the commission of the offence. Being of this view, it
6Page 7
sustained the conviction and reduced the sentence
as mentioned earlier.
6. We have heard the learned counsel for the parties. It
is submitted by the learned counsel for the appellant
that the evidence brought on record by the
prosecution is absolutely sketchy and do not even
hazily point out towards the involvement of the
accused. Per contra, learned counsel for the State
would submit with emphasis that the learned trial
Judge as well as the High Court has scrutinized the
evidence in detail and correctly reached the
conclusion that the demand and acceptance was
done with his consent. It is urged by him that he had
abetted in the commission of the crime and definitely
had the intention to demand and accept the bribe.
7. At the very outset, it is obligatory to state that the
Special Leave Petition (Crl.) No. 5867 of 2012,
preferred by the accused No. 2, has been dismissed
by this Court vide order dated 30.7.2012. Thus, the
recovery of the tainted money and the demand and
acceptance of the amount as illegal gratification
7Page 8
which is the sine qua non for constituting an offence
under the Act have been put to rest as far as the
accused No. 2, Mohd. Shafi-Ul-Haq, is concerned.
8. In the present appeal,
what is necessary to be
dwelled upon is the involvement of the accused appellant in the crime in question.
In this regard, we
notice that PW-2, though who has been declared
hostile, has stated in his examination-in-chief at one
point of time that it was a home guard who had
demanded the amount, yet later on, he has deposed
that when he enquired from accused No. 2, he had
told him that the documents would be available at
the police station and at that time, the accused was
present.
In his cross-examination, he has accepted
that both the accused persons were present
together. We may note with profit that the plea
taken that currency notes were thrust in the pocket
of the accused No. 2 has been disbelieved.
The High
Court, as is evident, has accepted the genuineness of
Ext. P-15 and the evidence leading to the payment of
the amount to accused No. 2. After a careful
8Page 9
appreciation and analysis of the evidence, it has
been held by the learned trial Judge that the vehicle
was intercepted by the accused and the same has
been accepted by the High Court. We have
bestowed our anxious consideration and on a keen
scrutiny of the same, we find that PW-2 has admitted
that the vehicle was intercepted. Though he has
adroitly introduced the story of a home guard, yet
the same has not been given any credence and,
rightly so, by the learned trial Judge on consideration
of the totality of the evidence brought on record. It is
worth noting that PW-6, a retired Joint Director of
ACB, has deposed that the accused had demanded a
bribe of Rs.100/- for not booking a case for traffic
violation and, in fact, no case was registered. It is
interesting to note that PW-2, the de facto
complainant, has stated that when he went to
Chadarghat Chowrasta, the accused had asked him
to contact accused No. 2 who was present there. The
accused No. 2 asked him to come to Yakutpura Police
Station as the documents of the vehicle were at the
police station. He has admitted that the accused was
9Page 10
in the central room and the accused No. 2 was in the
adjacent room at the police station. At this juncture,
a reference may be made to the testimony of PW-1,
who was working as Traffic Sub-Inspector during the
relevant period. The learned trial Judge, on analysis
of his evidence, has opined that both the accused
persons were to attend the duty at Shaidabad “T”
Junction, and Shaidabad and Santoshnagar are
adjacent to each other. The trial court has referred
to Ext. P-12, the order book of the Traffic Police
Station, Yakutpura. It is apt to note that on behalf of
the accused, a question was put in cross-examination
that one Sivarama Krishna, S.I., was in-charge from
Chadarghat to Nalgonda Cross-road on that day, and
to nullify the effect of the same, the learned counsel
appearing for the accused, in the course of
argument, had sought the indulgence of the trial
court to substitute the name as “Yousuf Hussain”,
i.e., the accused. Appreciating the cumulative effect
of the aforesaid evidence, the trial Judge had come to
the conclusion that both the accused persons were
on duty at the relevant place at the relevant time
1Page 11
and the vehicle was intercepted and the documents
were taken away by the accused and the same has
been accepted by the High Court.
9. Learned counsel for the appellant has submitted that
the prosecution has failed to establish the common
intention in the present case. Both the accused were
charged for substantive offences in aid of Section 34
IPC. Section 34 IPC is intended to cover a situation
wherein the accused persons have done something
with common intention to constitute a criminal act.
To get Section 34 attracted, certain conditions
precedent are to be satisfied. The act must have
been done by more than one person and they must
have shared a common intention either by omission
or commission in effectuating the crime. It is always
not necessary that every accused must do a separate
act to be responsible for the ultimate criminal act.
What is required is that an accused person must
share the common intention to commit the act. In
Barendra Kumar Ghosh v. King Emperor1
, it has
been held as follows: -
1
AIR 1925 PC 1
1Page 12
“Section 34 deals with the doing of
separate acts, similar or diverse, by
several persons; if all are done in
furtherance of a common intention, each
person is liable for the result of them all,
as if he had done them himself, for ‘that
act’ and ‘the act’ in the latter part of the
section must include the whole action
covered by ‘a criminal act’ in the first part,
because they refer to it.
10. In Mahbub Shah v. Emperor2
, it has been held
thus:-
“Section 34 lays down a principle of joint
liability in the doing of a criminal act. The
section does not say ‘the common
intentions of all’ nor does it say ‘an
intention common to all’. Under the
section, the essence of that liability is to be
found in the existence of a common
intention animating the accused leading to
the doing of a criminal act in furtherance
of such intention. To invoke the aid of
Section 34 successfully, it must be shown
that the criminal act complained against
was done by one of the accused persons in
the furtherance of the common intention
of all; if this is shown, then liability for the
crime may be imposed on any one of the
persons in the same manner as if the act
were done by him alone.”
11. The learned counsel would further submit that there
is no material on record that the accused persons
acted in furtherance of common intention to attract
the liability in aid of Section 34 IPC. The Constitution
2
AIR 1945 PC 118
1Page 13
Bench in Mohan Singh v. State of Punjab3
, while
dealing with the scope of Section 34 IPC, has ruled
thus: -
“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
persons 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.”
12. In Suresh and another v. State of U.P.4
, Thomas,
J. opined that to attract Section 34 IPC, two
conditions precedent are imperative: -
“23. Thus to attract Section 34 IPC two
postulates are indispensable:
(1) The
criminal act (consisting of a series of acts)
should have been done, not by one person,
3
AIR 1963 SC 174
4
(2001) 3 SCC 673
1Page 14
but more than one person.
(2) Doing of
every such individual act cumulatively
resulting in the commission of criminal
offence should have been in furtherance of
the common intention of all such persons.”
13. In Lallan Rai and others v. State of Bihar5
,
relying upon the dictum laid down in Barendra
Kumar Ghosh (supra) and Mohan Singh (supra),
this Court opined that the essence of Section 34 is
simultaneous consensus of the mind of persons
participating in the criminal action to bring about a
particular result. It has been stated therein that such
consensus can be developed at the spot, but in any
case, such a consensus must be present in the
commission of the crime itself.
14. In Rotash v. State of Rajasthan
6
, it has been
opined that the common intention to commit a crime
can be gathered from the totality of the
circumstances.
15. In the case at hand, on a careful appreciation of the
evidence which we have done in the earlier part of
our decision, certain aspects, namely,
(i) interception
5
(2003) 1 SCC 268
6
(2006) 12 SCC 64
1Page 15
of the vehicle at the instance of the accused,
(ii) the
presence of the accused at the place of occurrence
along with accused No. 2,
(iii) the direction given by
the accused to PW-2 to contact accused No. 2 who
was standing nearby at Chadarghat,
(iv) his presence
at the police station in the central room when PW-2
went to meet accused No.2,
(v) recovery of tainted
currency from accused No. 2;
(vi) delivery of
documents of the vehicle; and eventually,
(vii) nonregistration of any case for traffic violation against
PW-2, are absolutely clear.
The conclusion arrived at
by the learned trial Judge which has been concurred
with by the High Court that the accused was involved
in the commission of the crime cannot be found fault
with for the said conclusion is in consonance with the
principles stated in the aforesaid pronouncements.
16. Consequently, we do not perceive any flaw in the
analysis and the ultimate conclusion arrived at by the
learned trial Judge which has been concurred with by
the High Court and, accordingly, the appeal, being
devoid of merit, stands dismissed.
1Page 16
……………………………….J.
[K. S. Radhakrishnan]
….………………………….J.
[Dipak Misra]
New Delhi;
April 05, 2013.
1
