Three accused convicted of murder and attempt to murder with common intention challenged the applicability of Section 34 IPC to two of them. The Supreme Court upheld the concurrent findings on reliable eyewitness testimony and dismissed the appeal.
Appeal dismissed; convictions under Sections 302/34 and 307/34 IPC confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2008] 12 S.C.R. 13
A
v.
STATE OF U.P.
(Criminal Appeal No. 193 of 2005)
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AUGUST 12, 2008
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJJ
B
Penal Code, 1860:
s. 302 rlw s. 34 and s. 307 r/w s. 34 - Prosecution under C - Of four accused - Eye-witnesses to the occurrence - Motive established - Conviction of all the accused by trial court - High Court acquitting one accused and confirming conviction of others - On appeal, held: Conviction justified - Evidence of prosecution witnesses are reliable. D
D
s. 34 - Common intention - Applicability of - Held: Liability under the provision is attracted when there is participation in a criminal act in furtherance of common intention - Participation need not be physical - Mere presence at the E scene of occurrence would not attract the provision - Com- mon intention must be proved - Though common intention may develop on the spot, it must be anterior in point of time to the commission of offence showing pre-arranged plan and prior concert - Common intention is distinct from similar intention. F
Words and Phrases - 'Common intention' and 'Furtherance'_ - Meaning of in the context of s. 34 /PC.
The three appellants-accused alongwith another co- . accused faced trial for murder and attempt to murder of G one person. The motive for the alleged act was that the deceased and the appellant were on inimical terms as the deceased was doing pairvi in a criminal case against one of the accused. The occurrence was seen by the eye-wit-
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[2008] 12 S.C.R.
SUPREME COURT REPORTS
14
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A nesses. Trial Court convicted all the four accused u/s 302 r/w s. 34 and u/s. 307 r/w s. 34 IPC. High Court acquitted A-4 while upheld the conviction of others.
In appeal to this court appellants contended interalia thats. 34 IPC has no application so far A-2, A-3 are is conB cerned.
Dismissing the appeal, the Court
HELD: 1. In view of the factual scenario in the backdrop of the principles of law, the appeal is sans merit. The C 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. ThereD fore the trial Court and High Court were justified in placing reliance on the evidence of PWs. 1, 2 & 3. [Paras 5 and 8] [22,D; 19,E-F]
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2.1 Leading feature of Section 349 PC is the element E 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 essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular F result. [Para 6] [20,C-D] :r
Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu AIR 1976 SC 2027 - referred to.
2:2 The participation need not in all cases-be by G physical presence. In offences involving physical vio. lence, 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 H presence at the scene of offence of the offender sought
15
AIZAZ & ORS. v. STATE OF U.P.
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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. [Para 6] [20, D-E]
2.3 '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. 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 resuit in miscarriage of justice. [Para 7] [20,G-H; 21.A-C]
Amrit Singh and Ors. v. State of Punjab 1972 Crl.L.J. 465 SC - relied on.
A
B
c
D
E
F
Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 1413 - referred to.
.A
2.4 To constitute common intention, it is necessary that intention of each one of the offenders be known to the rest of them and shared by them. The prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. The totality of the circumstances must
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16 SUPREME COURT REPORTS
[2008] 12 S.C.R.
A 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 B act is in furtherance of the common intention is an incident of fact and not of law. 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 c proved against him [Para 7] [21,C,D,F-G; H; 22,A]
Magsogdan and Ors. v. State of UP AIR 1988 SC 126; Bhaba Nanda Barma and Ors. v. The State of Assam AIR 1977 SC 2252 - relied on.
Ma/khan and Anr. v. State of Uttar Pradesh AIR 1975 SC 0 12; Shankar/al Kacharabhai and Ors. v. The State of Gujarat AIR 1965 SC 1260 - referred to.
Oxford English Dictionary; 'Russel on Crime' 12th Edn. Vol.I pp.48.7 - referred to.
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| CaseLaw | Reference | |
|---|---|---|
| AIR 1976 SC 2027 | Referredto | Para 6 |
| 1972 Crl.L.J. 465SC | Relied on | Para 7 |
| AIR 1977SC2252 | Relied on | Para 7 |
| AIR 1988 SC 126 | Relied on | Para 7 |
| AIR 1963SC1413 | Referred to | Para 7 |
| AIR 1965SC1260 | Referred to | Para 7 |
| AIR 1975 SC 12 | Referredto | Para 7 |
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 193 of 2005
From the final Judgment and Order dated 24.11.2003 of
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SUPREME COURT REPORTS
[2008] 12 S.C.R.
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A In lkla Rasoolpur, there is a school, namely, Deni lslami Madarsa. A committee consisting of villagers of lkla 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 TreaBsurer. Therefore, a meeting was to take place on4.11.1979 in village Siyal. The appellants as well as the villagers of lkla 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 lkla Rasoolpur for attending the meeting on a motor cycle. The deceased was driving the G. 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 very time, all the four accused persons emerged from the field of Prakash. Appellants Aizaz, D Ahmad Hasan and Jan Alam who were armed with country made pistols fired towards the informant and the deceased on exhortation of lmlak. lmlak was armed with spear. The gun shot did n"ofhit either the deceased or the informant. However, the deceased became panicky and motor cycle fell down on the road. E·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 towa'rds 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 F; pushed him to the ground, while appellant Aizaz fired at the deceased.on the neck. Yakoob (P.W.2), Ian Mohammad (P.W.3) andone Hafizuddin alias Fauju and Sahimuddin came over there.The accused persons thereafter went away in the southeq1.direction. Ismail died instantaneously and blood had also G, fallen.at the place. Bashir Mohammad prepared a written repor:t atthe place of occurrence. He went to the police station on 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 th place of pccurrence is three kilometers. FIR was registered Hand investigation was undertaken.
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AIZAZ & ORS. v. STATE OF U.P. [DR. ARIJIT PASAYAT, J.]
19
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After completion of the investigation charge sheet was filed A 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 B 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 c so far as the appellants are concerned.
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G
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SUPREME COURT REPORTS
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[2008] 12 S.C.R.
A 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 B this kind a mortal stroke, though given by one of the parties, is deed in the eye of law to have been giveri by every individual present and abetting. But a parfy 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 c 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 essence is simultaneous consensus of the minds of perD sons 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 E 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 F 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 particiG pation are both present, this Section cannot apply.
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21
AIZAZ & ORS. v. STATE OF U.P. [DR. ARIJIT PASAYAT, J.]
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a particular result may well develop on the spot as between a 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 B 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 c thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute comman 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 prove even the intention of an individual D 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 E (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 th~ case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a comF man 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 G 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 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 comm isH
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22 SUPREME COURT REPORTS
[2008) 12 S.C.R.
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K.K.T.
Appeal dismissed.
2 issues framed by the court
Whether the evidence of PWs 1, 2 and 3 was reliable enough to sustain the convictions.
Whether Section 34 IPC applied to the appellants given their alleged participation in furtherance of common intention.
Colour shows how this judgement treated each authority
Ramaswami Ayyanagar and Ors. v. State of Tamil NaduReferred¶6
AIR 1976 SC 2027 · Who else cites this
Amrit Singh and Ors. v. State of PunjabRelied on¶7
1972 Crl.L.J. 465 SC
Krishna Govind Patil v. State of MaharashtraReferred¶7
AIR 1963 SC 1413 · Who else cites this
Magsogdan and Ors. v. State of U.P.Relied on¶7
AIR 1988 SC 126 · Who else cites this
Bhaba Nanda Barma and Ors. v. The State of AssamRelied on¶7
AIR 1977 SC 2252 · Who else cites this
Malkhan and Anr. v. State of Uttar PradeshReferred¶7
AIR 1975 SC 12 · Who else cites this
Shankarlal Kacharabhai and Ors. v. The State of GujaratReferred¶7
AIR 1965 SC 1260 · Who else cites this
3 provisions across 1 enactments
Aizaz
Ahmad Hasan
Jan Alam
State of U.P.
Arijit Pasayat
Mukundakam Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
