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

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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

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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.

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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

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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 charge­

sheet 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

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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

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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

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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.

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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

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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

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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.

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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.”

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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.

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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

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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

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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

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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.

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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

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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

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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.   

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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

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