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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

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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  

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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  

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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,  chargesheet  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.

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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 hereinbefore.

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  

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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  

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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  

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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  

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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  

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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  

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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

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“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

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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

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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  Rajasthan6,  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

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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) non-

registration 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.

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……………………………….J. [K. S. Radhakrishnan]

….………………………….J.                                            [Dipak Misra]

New Delhi; April 05, 2013.

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