NON­REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO(s). 725 OF 2012

PALAKOM ABDUL RAHIMAN     …Appellant(s)

VERSUS

THE STATION HOUSE OFFICER BADIADKA POLICE STATION,  KERALA & ANR.  .…Respondent(s)

WITH

CRIMINAL APPEAL NO(s). 727 OF 2012

J U D G M E N T

Rastogi, J.

1. The present appeals arise out of  the  judgment dated 16th

November, 2007 passed by the High Court of Kerala in Criminal

Appeals convicting the accused appellants(accused  no. 1 and

accused no. 3) for offence under Section 302 read with Section 34

IPC and also under Section 324 IPC and sentenced to undergo

rigorous imprisonment for life.

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2. The accused persons faced trial for double  murder of a

father and son (Assainar & Abdul Rahiman) and causing grievous

injuries to PW­2 Mohammed, son of deceased Assainar.  That in

all, 11 persons were initially charge­sheeted including appellants

for offence punishable under Section 143, 148, 323, 324, 325

and 302  IPC read with Section 149  IPC.  There was separate

charge against accused nos. 1 and 3 for offence under Section

302 read with Section 34 IPC yet alternate charge against

accused no. 3 under Section 302 IPC.

3. After analysing the evidence, learned trial Court convicted

accused nos. 1 and 3 along  with other accused persons for

offence under Section 143, 148, 323, 324 read with Section 149

IPC and for 302 read with Section 149 IPC and sentenced them

to rigorous imprisonment for life vide judgment dated 31st July,

2006.   Accused nos. 1, 2 & 3 preferred joint appeal against the

impugned judgment of the learned trial Court and the High Court

of Kerala after due appraisal of the evidence on record, found all

the three accused guilty and convicted them under Section 302

read  with  Section  34 IPC  and sentenced to  undergo rigorous

imprisonment for life vide impugned judgment dated 16th

November, 2007.

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4. Accused no. 2 died at the later stage and accused nos. 1

and  3  have  preferred their appeals to this  Court against the

impugned judgment.

5. To unfold the case of the prosecution, the incident alleged to

have occurred around 2.15 p.m. on 5th December, 1995 in front

of the  Madrassa building situated in the premises of  Bardar

Masjid, Belincha, Kumbadage village. The fateful day being

Friday, almost all the male members of Jamayath had assembled

for  prayer.  PW­2  Mohammed reached at the  mosque  around

11.30 a.m. and was entrusted with the duty to bring the new

Katheeb Mohammed Musliyar.   The Katheeb had given a letter

with amorous overtones  to one Mimuna.   On the basis of the

majority opinion, the masjid committee terminated the services of

earlier Katheeb of the mosque.   At 1.45 p.m., the prayer speech

was over.   There was a dispute between the committee members

who were in favour of the removal of earlier Katheeb and those

who opposed.   Just after the prayer, new Katheeb made a brief

religious discourse.   Afterwards, people began dispersing.   PW­2

requested them  to remain there and  decide  whether the  new

Katheeb was fit or not.  Inspite of the request made, some people

left the place and around 40 persons including the accused

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remained in the  mosque.  PW­1  made  a  declaration that the

action of the old Katheeb was not proper.  At that time, accused

no. 1 and accused no. 3(appellants herein) along  with other

persons were standing in a group.  PW­1 again said that the old

Katheeb  was  not terminated in accordance  with  his personal

wish but as decided by the committee.  Seeing that situation was

getting tense, PW­1’s brother caught PW­1 and escorted him to

the door and both went out.   Behind them PW­2 and his father

and brother came out of the mosque.  Behind PW­2 and others,

the accused persons also came out in a group.  PW­2’s father and

younger brother hurried along the front courtyard of the

madrassa to reach the road abutting on the eastern boundary of

the compound.   Accused no.  2 who was  just  approaching the

courtyard of  the madrassa suddenly exhorted raising his voice

“There they go! Why simply watch? Go and stab.”   Immediately

accused no. 1 dashed at PW­2’s father Assainar and stabbed him

right on his back with the dagger.  Assainar­on receipt of the stab

swayed on his unsteady steps and finally fell down.   Seeing the

incident,  PW­2’s  brother  Abdul  Rahiman came running  to the

spot and threw a stone at accused no. 1.   It struck him on his

chest.   When Abdul Rahiman reached near, accused no. 1

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stabbed him also on the left side of his neck.  Seeing this, PW­2

hugged accused no. 1 from behind.   Seeing that accused no. 1

was in the grips of PW­2, accused no. 3 dashed to the spot with a

dagger stabbed Abdul Rahiman on his hand.  Abdul Rahiman fell

down.  Accused no. 2 came running to the spot and he with the

dagger  in his hand stabbed PW­2 on his back.  In the  fateful

incident, the Assainar and Abdul Rahiman, father and brother of

PW­2 and PW­4 who were the ocular witnesses of the incident

succumbed to the injuries.  

6. On 6.12.1997 at 10 AM, PW­21  Doctor attached to the

Taluk Headquarters Hospital, Kasargod, conducted postmortem

over the dead body of Assainar with the following injuries:­

“1.An incised  wound  over inter scapular region, right side, close to mid line, 4 X 1 X 4 cm.

2.  Beneath  the first injury ribs 5th  and 6th  ribs  were found fractured.

3.Injury nos.  1 extended to heart and there was an  incised wound  measuring 1.5 X 0.5 X 1 cm to the heart.   The instrument with which the victim was stabbed had entered the heart.

PW­21  Doctor  opinioned that the victim died  of  bleeding from heart and because of the fracture of the ribs.   The injuries noticed by her was the result of a single stab.”

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7. On 6.12.1997 from 10.45 AM onwards, PW­21 Doctor

conducted post mortem examination over the dead body of Abdul

Rahiman and noticed the following anti­mortem injures:­

“1. An incised wound, oblique, 4 cm X 1 cm X 3.5 cm over the left supra clavicular region.

2. An incised wound measuring 3 cm X 2.5 cm X 4 cm over the left scapular region.

3. An abrasion measuring 3 cm X 1 cm X 0.5 cm on the right side of forehead.

It was seen that injury no. 1 resulted in the total severance of the left carotid  artery.   Injury  no.  2 reached the left lung. There was a through and through injury over the apex of the left lung.   There was fracture on 3rd  and 4th  ribs posteriorly, just lateral to the mind clavicular line.   It was also the continuation of the second incised wound referred above. PW­ 21 opinioned that the injuries nos. 1 and 2 were caused by two separate stabs.   The 3rd  injury(aberration) could be the result of fall on the ground.   Injury no. 1  was sufficient in the ordinary course of nature to cause death. It is extremely difficult to arrest bleeding when the carotid artery is injured. Exhibit P­16 is the relevant post mortem certificate.”

8. The prosecution in support of its case recorded the

statements of PW­1 to PW­25 and also placed on record Exhibits

P­1 to P­38  with  material objects  MO­1 to  MO­14 and both

accused no.  1 and accused no.  3  in their  statement recorded

under Section 313 CrPC took the stand that no such incident

had taken place as alleged by the prosecution.

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9. The learned trial Court and also the High Court has

confirmed the guilt of both the accused persons (accused no. 1

and accused no. 3)(appellants herein).   The learned trial Court

convicted the accused appellants for the offence under Section

302 read with Section 149 IPC and also under Section 143, 148,

323, 324 read with Section 149 IPC.  On appeal being preferred

by accused appellants, the High Court found both of them guilty

for the offence punishable under Section 302 read with Section

34 IPC and also under Section 324 IPC.  

10. Learned counsel for the accused no. 3(Palakom Abdul

Rahiman) submits that prosecution solely rested on the theory

that the offences were committed by the unlawful assembly  in

prosecution of the common object of the unlawful assembly, and

once  the theory of  unlawful  assembly did not find  favour, the

accused at least could not have been convicted with the aid of

Section 34 especially  when  the  prosecution story  was  that  he

came into action subsequent to the alleged overt acts by other

accused persons.   Learned counsel further submits that the

finding which has been recorded by the High Court that “we are

of the opinion that accused nos. 1, 2 and 3 are guilty of offence

under Section 302 read  with Section 34 IPC as they shared

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common intention to do away with the Assainar and Abdul

Rahiman.  Their overt acts also proved by witnesses” is erroneous

and there was no corresponding injury in the post­mortem report

which was alleged to have been inflicted by him which proved

that the allegation against him  was false and  he  was falsely

implicated by the prosecution and submits that in the light of the

principles laid down by this Court in Suresh & Anr. Vs. State

of U.P. 2001(3) SCC 673, his conviction with the aid of Section

34 was not sustainable and there was no occasion for common

intention as the only overt act alleged against him was causing a

stab injury on the deceased Abdul Rahiman, which was proved to

be false  by the  medical evidence.  When  the  prosecution  has

failed to explain the injuries on accused nos. 1, 2 and 7 which in

turn did not prove that the incident occurred not as narrated by

the prosecution and there was deliberate attempt on the part of

the prosecution to distort the course of events.

11. Learned counsel for accused no. 1(G. Moideenkutty)

submits that the charge against accused nos. 1 and 3, i.e. charge

under Section 302 read with Section 149 IPC stood concluded

with the finding of the learned trial Court that “accused no. 1 and

accused no.  3 were  not  propelled into  action by any common

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intention to murder Assainar and Abdul Rahiman.  The murders

were committed with the common object of the unlawful

assembly.   Therefore, the offence under Section 302 read with

Section  34 IPC is  not established  against accused  no. 1 and

accused no. 3” and, since the same was not challenged before the

High Court by the State, Section 34 IPC was no more available.

After the finding has been recorded by the High Court holding

that there was no unlawful assembly, at least the accused

appellants could not have been convicted under Section 302 with

the aid of Section 34 IPC.   

12. Learned counsel further submits that even if the case of the

prosecution is taken  on its face value, it  may fall  within the

exception of Section 300 IPC and may not travel beyond Section

304 Part I IPC and both the accused persons have undergone a

sentence of 9 years deserves the indulgence of this Court.

13. Per contra, learned counsel for the State submits that from

the evidence adduced by the prosecution and the attending

circumstances of the case, the prosecution has been able to prove

the common intention of the accused appellants in the

commission of crime and the High Court has rightly convicted

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both the  accused  persons  under  Section  302  with the  aid of

Section 34 IPC.

14. We have considered the rival contentions and perused the

impugned judgment and the material placed on record.   

15. At the outset, it may be noticed that both accused nos. 1

and 3 (appellants herein) were charge­sheeted for offences under

Section 302  read  with  Section 149  IPC and  there  was  also  a

separate  charge against  both of them under Section 302 read

with Section 34 and yet another separate charge against accused

no. 3  under  Section  302 IPC apart from  offences punishable

under Section 143, 148, 323, 324, 325 IPC.  After analysing the

evidence on record, the  learned trial  Court  convicted both the

accused appellants for offence under Section 302 read with

Section 149 IPC but on reappraisal of the evidence on record, the

High  Court confirmed their guilt but convicted both of them

under Section 302 read with Section 34 IPC.

16. On  going through the evidence  of PW­1, though  he  was

declared hostile, the motive is proved. He had signed Exhibit P­1

(F.I. statement) confirming that his statement was correctly

recorded.  He  had stated that the incident started  when the

accused party questioned regarding the termination of Katheeb.

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Therefore, the genesis of the incident as well as the motive was

proved by PW­1.  The alleged incident occurred around 2.15 p.m.

on 5th December, 1995 and statement of PW­1 was recorded at

3.00 p.m. and immediately the FIR came to be registered.

According to him, the accused persons who questioned the

termination of services of Katheeb, were having weapons(dagger)

with them.   

17. Coming to the evidence of PW­2, the ocular witness, who

suffered serious injuries and Exhibit P­8­is his wound certificate

which  was proved by PW­9 the  Doctor.   Exhibit P­8  wound

certificate shows the following injuries:

1. Contused swelling in between the eye brows measure 2” X 2”.

2. Incised wound 2” X 1/2 “ X 3” bleeding over the back­interscapular area.

3. Swelling over the Rt. Angle of mandible present.

4. Bleeding from the  mouth­Abrasions over the lower lip.  Loose Rt. Lower incisor +2.

5. Bleeding from the nose seen.

CT scan shows Rt. Frontol lobe contusion with thin sundural Haematome.

Exploration of chest stab at the (L) interscapular area  done­wound  2”  X  ½”  X  3

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deep­obliquely  cutting the  deeper  muscle  but not entering the plural cavity­Bleeders contused & closed in layers.

18. From the evidence of the prosecution, it can easily be

discerned that the accused persons including accused nos. 1 and

3  and  the complainant  party including  deceased  persons  and

PW­2 and PW­4 alongwith others came to the mosque and after

the prayer was over, a clash occurred regarding the dispute of

removal of Katheeb.   All  the persons including accused nos. 1

and 3 who were standing in the mosque, after the prayer was

over, started questioning PW­1 regarding the removal of earlier

Katheeb.   Both the deceased Assainar and Abdul Rahiman were

supporting the action in removing the earlier Katheeb and when

they were about to leave the mosque, accused no. 2 exhorted to

stab which was heard by PW­2 and PW­4.   According to PW­2,

accused no. 2 called out and stated, “there they go! Why simply

watch?  Go and stab” and at this spur of  moment, common

intention was developed and accused no. 1 and accused no. 3

who were having daggers with them, stabbed deceased Assainar

and Abdul Rahiman.  

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19. A careful analysis and appraisal of the evidence on record

establish the presence of accused no. 1 and accused no. 3 at the

time of occurrence with sharp edged weapon(dagger) with

accused no. 2 who was also armed with sharp edged weapon,

and had shared common intention with accused no. 2 of causing

bodily injuries to the deceased  Assainar and  Abdul  Rahiman

which were sufficient in the ordinary course of nature to cause

death of the deceased.   

20. The true purport of Section 34 IPC is that if two or more

persons intentionally do an act jointly, the position of law is just

the same as if each of them  have  done it individually.   The

process of law is intended to meet a situation in which it may be

difficult to distinguish between acts of individual members of a

party who act in furtherance of the common intention as held by

this  Court in  Chinta Pulla  Reddy and others  Vs.  State  of

Andhra Pradesh  1993 Supp(3) SCC 134 and  Girija Shankar

Vs. State of U.P. 2004(3) SCC 793.

21. The application of principles enunciated in Section 34 IPC,

when an accused is convicted under Section 302 read with

Section 34 IPC, in law means that the accused is liable for the act

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which caused death of the deceased in the same manner as if it

was done by him alone.   As  was observed by this  Court in

Chinta Pulla Reddy  and others case(supra), Section 34 is

applicable even if no injury has been caused by the particular

accused himself.  Applicability of Section 34 has been considered

by this Court in Girija Shankar’s case(supra) as follows:­

“  Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section  is the element of participation  in action. The liability of one person for an offence committed by another  in the course of  criminal  act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who  join  in committing  the crime. Direct proof of common intention is seldom available  and, therefore, such intention can  only  be inferred from  the circumstances appearing from  the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or  meeting of  minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre­arranged or on the spur of the  moment; but it  must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.  As observed in  Ashok Kumar  v.  State of Punjab  (1977) 1 SCC 746, the existence of a common intention amongst the participants in a crime  is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly  must be the same or identically similar. The acts may be different

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in character, but must have been actuated by one and the same common intention in order to attract the provision.”

22. It goes without saying that it would depend on facts of each

case as to whether Section 34 or Section 149 or both the

provisions are attracted.  The non­applicability of Section 149 IPC

is no bar in convicting the accused persons under Section 302

IPC read with Section 34 IPC provided there is evidence which

discloses commission of offence in furtherance of common

intention and this Court had an occasion to consider the scope of

Section 34 IPC and Section 149 IPC in Birbal Choudhary alias

Mukhiya Jee Vs. State of Bihar 2018(12) SCC 440 as follows:­

“There cannot be any quarrel about the law laid down in the aforesaid judgments where subtle distinction is  drawn  between  Section  34  and  Section 149 IPC which deal with “common intention” and “common object” respectively.   At the same time,  it  is also clarified that it would depend on the facts of each case as to  whether  Section 34 or Section 149  IPC or both the provisions are attracted.   It is also held that non­applicability of Section 149 IPC is no bar in convicting the accused persons under Section 302 IPC read with Section 34 IPC, if the evidence discloses commission of offence in furtherance of common intention of them all.  From  the facts  of the  present case, we are satisfied that the courts below have rightly concluded that there was a common intention in committing the offence of kidnapping for ransom, by all the convicted persons.”

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23. In our considered opinion, both the appellants(accused no.

1 and accused no. 3) shared the common intention with accused

no. 2  by causing bodily injuries to the  deceased  which  were

sufficient in the ordinary course of nature to cause death  of

Assainar and Abdul Rahiman.   Section 34 is, therefore, clearly

attracted to the case of accused no. 1 and accused no. 3 even

though the injuries assigned to him(accused no.3) may not be on

the vital part of the body of the deceased, the conviction of

accused no. 1 and accused no. 3 for the offence under Section

302 read with Section 34 IPC is, therefore, well merited and the

sentence of rigorous imprisonment for life imposed upon them is

justified.

24. The submission of the  learned counsel for the appellants

that once the common object has not been established then they

would not have been convicted with the aid of Section 34 IPC is

without substance for the reason that both the accused persons

were charged with Section 302 read with Section 149 IPC and

also under Section 302 read with Section 34 IPC in alternate.  In

the present case, the prosecution has been able to establish the

common intention of the accused persons for their overt acts in

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commission of crime and they have been rightly held guilty for

offence under Section 302 read with Section 34 IPC.

25. The further submission of the learned counsel for the

appellants that even if the case of the prosecution is taken on its

face value, it may fall within the exception of Section 300 IPC and

may not travel beyond Section 304 Part I IPC is without

substance for the reason that prosecution has been able to

establish from the evidence on record beyond reasonable doubt

their common intention and their overt act in the commission of

crime.  The act of either of the accused appellants would not fall

under any of the exceptions of Section 300 IPC as urged by the

learned counsel for the appellants.

26. From the analysis, we are satisfied that the appellants in

furtherance of common intention committed an act of murder of

deceased Assainar and Abdul Rahiman and the High Court under

the impugned judgment has rightly held both the appellants

guilty for offence under Section 302 read with Section 34 IPC.

27. Consequently, both the appeals fail and are accordingly

dismissed.

28. Since both the accused appellants (Palakom Abdul Rahiman

and G. Moideenkutty) are on bail,   their bail bonds stand

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cancelled.  They are directed to surrender forthwith and serve the

life sentence in terms of the impugned judgement dated  16th

November, 2007 passed by the High Court.

29. Pending application(s), if any, stand disposed of.

…………………………J. (A.M. KHANWILKAR)

…………………………J. (AJAY RASTOGI)

NEW DELHI April 09, 2019   

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