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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1565 OF 2012

NAIM AND ANOTHER       …. Appellants

Versus

STATE OF UTTARAKHAND     …. Respondent

J U D G M E N T  

Uday Umesh Lalit, J.

1. This appeal arises out of judgment and order dated 24.07.2012  

passed  by  the  High  Court  of  Uttarakhand  at  Nainital  allowing  

Government Appeal No.386 of 2003 and setting aside the order of  

acquittal  passed  by  the  District  and  Sessions  Judge,  Haridwar  in  

Sessions Trial No.26 of 2000  insofar as the present appellants are  

concerned.

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2 On  07.09.1999  at  about  1.30  pm  the  complainant  Mustafa  

submitted a written report in Police Station Bhagwanpur, Haridwar to  

the effect that in the intervening night between 6th and 7th September  

1999 he along with his brother Behroj, nephew Wasim and father Ali  

Hassan were sleeping in the verandah and that in the night at about  

1200 hrs. he woke up and saw one Sabbir armed with  Palkati,  his  

brother  Kabir  armed  with  pharsa and  one  Naim armed  with  lathi  

coming to the verandah.  Naim allegedly asked where was Ali Hassan,  

whereupon Kabir stated that Ali Hassan was sleeping and exhorted  

that he be killed, after which Sabbir gave a blow by  palkati on the  

neck  of  Ali  Hassan  while  he  was  sleeping.   Ali  Hassan  died  

instantaneously.   Upon  alarm being  raised  these  three  persons  ran  

away and while running they were seen by Farid Akhtar and Taimur.

3. On the basis of the above report Case Crime No.147 of 1999  

under Section 302/504 IPC was registered.  During the investigation  

statements  of  the  complainant  and  other  witnesses  were  recorded.  

Sabbir, Naim and Kabir were arrested and their statements led to the  

recovery of palkati and other weapons.  The post-mortem on the body  

of the deceased was conducted by Dr. O.P. Sharma.  After completion  

of  investigation  Sabbir,  Kabir  and  Naim were  charged  for  having  

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committed the offences under Section 302 read with Section 34 IPC  

and under Section 504 IPC.

4. The prosecution  examined complainant  as  PW-1,  his  brother  

Behroj as PW-2, nephew Wasim as PW-4 and Taimur as PW-3.  The  

earliest version in the form of FIR, which was within few hours of the  

incident naming all the three accused was reiterated by PW-1 Mustafa  

and supported by other three eye-witnesses, namely, PWs 2, 3 and 4.  

However, the trial court was of the view that the fatal blow was dealt  

by Sabbir and though the other two accused, namely, Kabir and Naim  

were present at the place of occurrence, they had not participated in  

the actual assault.  The appreciation by the trial court in this respect is  

quoted hereunder:

“From the depositions of above four witnesses it is clear  that accused Kabir was having farsa and accused Nayeem  was having lathi in hand, but they have not used both the  weapons.  It has been stated for Nayeem that he loudly  said as where is Ali Hassan, only he has to be seen and  Kabir said that Ali Hassan is sleeping here, kill him.  If  all three had come with the intention to cause murder of  Ali Hassan then definitely all  three would have caused  blows but only Sabbir caused blow by palkati and neck  of Ali Hassan cut.  In post mortem report also only one  injury in neck is stated and it is stated that death occurred  due to that.   In post  mortem report  it  is  told only one  incised wound 12 x 7cm x deep backbone, right side of  neck which was 3 cm below from right jaw.  The margins  of wound was clear cut and fourth neck backbone was  

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cut.    All  vessels  and muscles  of  right  side  were  cut.  Apart from this no other injury was found on his body  and it is also not case of prosecution that Nayeem and  Kabir also caused blows.”

5. The trial  court  thus convicted Sabbir  under  Section 302 and  

sentenced him to undergo rigorous imprisonment for life.  The other  

two accused  Naim and Kabir  were  acquitted  of  the  charges  under  

Section 302 read with Section 34 IPC and Section 504 IPC.

6. The  convicted  accused  Sabbir  preferred  an  appeal  against  

conviction,  namely,  Criminal  Appeal  No.285  of  2003  in  the  High  

Court of Uttarakhand at Nainital.  The High Court

affirmed  the  view taken  by  the  trial  court  insofar  as  Sabbir  was  

concerned and dismissed the appeal.   Special  leave petition arising  

therefrom was also dismissed by this Court on 08.03.2010 and thus  

the  case  against  Sabbir  and  his  conviction  and  sentence  stood  

concluded and confirmed.

7. In  the  meantime  the  State,  being  aggrieved  by  the  order  of  

acquittal  insofar  as  Kabir  and  Naim  are  concerned,  preferred  

Government  Appeal  No.386  of  2003.   The  High  Court  after  

appreciating the entire material on record found the approach of the  

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trial court to be completely erroneous in granting the benefit to Kabir  

and Naim.  It was observed that all three accused were armed with  

deadly weapons and had entered the house of the deceased at 1200  

hrs.  in  the  night  and  that  the  essence  of  Section  34 IPC,  namely,  

consensus of minds of two or more persons to participate in a criminal  

act  to  bring about  a  particular  result  was fully evident.   The High  

Court, therefore, set aside the acquittal of said Kabir and Naim and  

convicted  them  under  Section  302  read  with  Section  34  IPC  and  

sentenced them to undergo imprisonment for life.

8. This appeal under Article 134(1)(1)(b) and Article 134(2) of the  

Constitution of India read with Section 379 IPC seeks to challenge the  

view taken by the High Court.

9. Appearing  for  the  appellants  Mr.  P.S.  Datta,  learned  senior  

counsel submitted that the probability of the occurrence in the manner  

suggested by the prosecution was completely doubtful, that there was  

delay of two months in examining PW-2 Behroj under Section 161  

Cr.P.C.,  that no independent witnesses were examined, and that,  in  

any event of the matter, the fundamental aspects of Section 34 IPC  

were completely absent in the case.  The learned senior counsel thus  

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submitted that appeal deserves to be allowed and the accused Kabir  

and Naim ought to be acquitted of the charges leveled against them.  

Mr. Prateek Dwivedi, learned counsel, on the other hand, appearing  

for  the  State  countered  the  submissions  made  on  behalf  of  the  

accused-appellants and supported the view taken by the High Court.

10. In the instant case the FIR lodged by PW-1 within two hours of  

the incident had named all three accused ascribing particular weapons  

in their hands and also definite role to them.  The FIR further stated  

that the incident in question was witnessed by Farid and Taimur and  

that  along  with  the  complainant  his  brother  Behroj  and  nephew  

Wasim were also sleeping in the verandah.  The FIR thus in clear  

terms disclosed not only the identity of the accused but also the role  

played by them, so also the names of the persons who subsequently  

were  examined  as  prosecution  witnesses.   The  entire  case  of  the  

prosecution insofar as the conviction of Sabbir is concerned rested on  

the very same testimony coming from the witnesses which case was  

accepted  right  upto this  Court.   The only discordant  note  that  was  

struck by the trial court was on the applicability of Section 34 IPC  

insofar  as  the  role  ascribed  to  and  played  by  other  two  accused,  

namely, Kabir and Naim.

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11. We must observe that Kabir was armed with pharsa and Naim  

was armed with a lathi, that all three accused had entered the house of  

the  deceased  and  the  complainant  at  midnight  in  the  company  of  

Sabbir who was also armed with a sharp cutting weapon.  When three  

persons separately armed with weapons storm into the house of the  

victim in the dead of the night, merely because only one out of them  

uses  the  weapon  and  gives  the  fatal  blow,  would  not  absolve  the  

others.  The others may not be required to use their weapons but that  

by itself does not change the role of such other accused to that of a  

mere bye-stander.  The circumstances can show that the others shared  

the same intention.  In the instant case the common intention to bring  

about a definite result is evident from the circumstances on record.  

Additionally,  the role of exhortation is also ascribed to the present  

appellants.  In the circumstances, in our considered view, Section 34  

IPC is definitely attracted and the High Court was completely justified  

in  setting  aside  the  order  of  acquittal.   The  order  of  acquittal  as  

regards Kabir and Naim was perverse and unwarranted.  Having thus  

considered  the  matter  in  its  independent  perspective  we  are  not  

persuaded to take a view different from the one which weighed with  

the High Court.   

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12. We,  therefore,  confirm  the  judgment  and  order  of  the  High  

Court and dismiss the present criminal appeal.  The accused, who are  

in  custody,  shall  serve  the sentence  awarded to  them by the  High  

Court.

………………………..J. (Dipak Misra)

………………………..J. (Uday Umesh Lalit)

New Delhi, November 21,   2014

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