Bombay High Court

Syed Iqbal Syed Aziz vs The State Of Maharashtra Through ... on 11 September, 2017

Bench: R. B. Deo

 crapeal246of12.odt                        1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.246 OF 2012


 Syed Iqbal s/o. Syed Aziz
 Aged about 24 years,
 R.o. Kasadpura, Achalpur,
 Tahsil Achalpur, District Amravati                          ....... APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station Officer,
 Police Station Paratwada, 
 Tahsil Achalpur District Amravati                           ......   RESPONDENT

 -------------------------------------------------------------------------------------------
          Ms. F.N. Haidari, counsel for appellant.
          Mr. N.B. Jawade, Addl. Public Prosecutor for State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J.

                                   DATE:                th
                                                     11    AUGUST, 2017.


 ORAL JUDGMENT

 1]               The appellant assails the judgment and order dated

14.3.2012 in Sessions Trial 55 of 2002 delivered by the Additional

Sessions Judge, Achalpur by and under which the appellant is

convicted of offence punishable under section 307 read with

section 34 of Indian Penal Code and sentenced to suffer rigorous

imprisonment for three years and to pay fine of Rs.500/-.

2] Four persons including the appellant were charge-

sheeted for offence punishable under sections 307, 333 read with

section 34 of the Indian Penal Code ("IPC" for short). The

chargesheet was submitted before the learned Judicial Magistrate

First Class, Paratwada who committed the case to the Sessions

Court. Before the Sessions Court, before the charge could be

framed the appellant was declared as absconder and by order

dated 25.2.2009 his trial was separated from the remaining three

accused. The learned Sessions Judge who tried the other three

accused namely, Bismillah Khan Ghotekhan, Sk. Jameel Nazir

Khan and Sk. Salim Shaikh Chotu, was pleased to convict accused

3 Sk. Salim Shaikh Chotu and acquit Bismilla Khan Chotekhan and

Sk. Jameel Nazir Khan for the offence punishable under section

333 and 307 read with section 34 of IPC. The appellant was

apprehended and faced trial for offence punishable under section

307, 333 read with section 34 of IPC. The learned Sessions Judge

framed charge vide Exhibit 192. The appellant (hereinafter

referred to as "the accused") pleaded not guilty and claimed to be

tried.

3] The prosecution examined 9 witnesses, the defence of

the appellant as is discernible from the statement recorded under

section 313 of Code of Criminal Procedure is total denial.

4] Miss. F.L. Haidari, the learned counsel for the accused

would urge, that the learned Sessions Judge committed a grave

error in convicting the accused of offence punishable under section

307 of IPC with the aid of section 34 of IPC. She would urge, that

even if the entire prosecution evidence including the testimony of

the injured Constable (PW3) is taken at face value, the recourse to

section 34 of IPC is manifestly unwarranted. She would urge, that

there is neither a direct nor a circumstantial evidence to suggest

that the appellant shared a common intention with the co-accused

Salim in committing the offence punishable under section 307 of

IPC. The learned counsel Miss. Haidari would invite my attention

to the testimony of the informant Constable (PW2) and the injured

Constable (PW3) to contend that the testimony is restricted to

stating that the injured Constable (PW3) apprehended one Salim

and the accused, and the co-accused Salim whipped out a Knife

and stabbed PW3. She would urge, that it is axiomatic that Salim

stabbed PW3 not with any premeditation, the stabbing was done

on the spur of the moment and the only intent was to escape the

clutches of law. Miss. F.N. Haidari would urge, that in no view of

the matter can it be said that appellant and the co-accused Salim

shared a common intention to inflict the stabbing or Knife injury

on the injured Constable (PW3). She would invite my attention to

the fact that it is not the case of the prosecution that the appellant

- accused was armed with a weapon.

5] Shri. N.B. Jawade, learned APP would support the

judgment impugned. The learned APP would urge, that the fact

that appellant - accused was one of the four miscreants who were

involved in dubious and criminal activities is sufficient to attribute

intention and knowledge to the accused.

6] I have closely scrutinized the record. I have an

endevoured to evaluate the evidence on record in order to satisfy

the conscious of the Court as to whether common intention under

section 34 of IPC can be attributed to the appellant - accused.

Having done so, I am inclined to agree with the submission of the

learned counsel for the accused that there is absolutely nothing on

record to even suggest much less prove beyond reasonable doubt

that the appellant - accused shared a common intention with co-

accused Salim of committing an offence under section 307 of IPC.

7] I am afraid that the conviction of the appellant with

the aid of section 34 of IPC is a serious error and has occasioned a

serious miscarriage of justice. It is too obvious that there was

absolutely no premeditation and one of the four accused who were

apprehended by the Constables decided on the spur of the

moment that escape from the clutches of the Constables be

attempted by causing a stab injury. To attribute common

intention to the other accused, would militate against the

established position of law. It would be apposite to make a

reference to the observations of the Hon'ble Supreme Court in

Pandurang and others ..vs.. State of Hyderabad, AIR 1955 S.C.

216 (Vol.42, C.N. 37), the relevant observations of which read

thus:

"32. Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all:- 'Mahbub Shah v. Emperor, AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can

individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting fo minds to form a pre-arrranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case : AIR 1925 PC 1 at pp 5 & 6(A) and AIR 1945 pc 118 (B). As their Lordships say in the later case, "the partition which divides their bounds is often very thin : nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice".

"33. The plan need not be elaborate, nor is long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre- arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premediated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g. the intention to rescue another and, if necessary, to kill those who oppose".

"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the

attack - not even immediately before. Pandurang is not even of the same caste as the others. Bilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or meeting together subsequently. But, to quote the Privy Council again.

"the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".

But to say this is 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". (Sarkar's Evidence, 8th edition, page