STATE OF GUJARAT v. KATHI AMERU BHIMABHAI — 1984 DIGILAW 180 (GUJ)

A. P. RAVANI, J. ( 1 ) RESPONDENT herein along with another accused (his brother) was charged for offence under sec. 302 read with sec. 34 of the Indian Penal Code. The incident took place on 11/01/1980 at about 4-30 P M. on Diamond Talkies Road at Jetpur (Dist. Rajkot ). It was alleged that the respondent and his brother in furtherance of their common intention caused injuries to one Salim Mohamad with knife which resulted into the homicidal death of said Salim Mohamad the victim. In addition it was also charged that both the accused abetted each other in causing the aforesaid offence of murder and thus they were also charged under sec. 302 read with sec. 109 of the Indian Penal Code. ( 2 ) ON trial the learned Addl. Sessions Judge Rajkot at Gondal acquitted both the accused as per his judgment and order dated 18/07/1980 The State of Gujarat has preferred appeal against the judgment and order of acquittal passed by the learned Addl. Sessions Judge. This Court (Coram: G. T. Nanavati and S. L. Talati JJ.) as per order dated 4/02/1981 admitted the appeal against respondent herein and dismissed the appeal against Respondent No. 2 i. e. Kathi Anak Bhimbhai. In this background contends the counsel for the defence that in view of the fact that the charge against the accused was under sec. 302 read with sec. 34 of the Indian Penal Code only and as there was no substantive charge for offence under sec. 302 and once the acquittal of another accused has become final it would not be permissible to the Court to hold the respondent-accused guilty of offence under sec. 302 read with sec. 34 of the Indian Penal Code. In essence this contention requires to be dealt with in this appeal. ( 3 ) SECTION 34 which lays down the principle of constructive liability reads as follows:"when 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 words in furtherance of the common intention indicate concerted action existence of a pre-arranged plan and prior meeting of minds. The acts committed by the accused may be different and may vary in character. The words in furtherance of the common intention indicate concerted action existence of a pre-arranged plan and prior meeting of minds. The acts committed by the accused may be different and may vary in character. But if they are all actuated by the same common intention which implies a pre-arranged plan the section will be attracted. In short the section embodies the principle of joint liability in doing of a criminal act and the essence of the liability is the existence of a common intention. The main feature of the section is the actual participation of more than one person who must be physically present at the actual commission of the offence acting in concert in pursuance of pre-arranged plan. The section lays down that each of such persons is liable for the act as if it were done by him alone. To attract this section it must be proved that it was conjoint action and that there were more than one person who participated in the crime. It is not necessary that more than one person or that a particular number of persons should be convicted. What is necessary to be proved is that the act should have been done in furtherance of a common intention of the accused along with others either named or unnamed. Conviction of another person is not necessary to attract the principle of constructive liability underlying the provisions of this section. ( 4 ) COUNSEL for the respondent-accused has relied upon a decision of the Supreme Court in the case of Krishna v. State of Maharashtra reported in A. I. R. 1963 S. C. 1413. In that case four persons were charged for offence under sec. 302 read with sec. 34 of the Indian Penal Code for committing murder of the deceased in furtherance of their common intention. All of them were also charged separately for substantive offence under sec. 302 Indian Penal Code. The learned Addl. Sessions Judge before whom the trial was conducted found that the prosecution witnesses were not speaking the truth and the version given by accused No. 2 that he acted in the exercise of right of his private defence was probable one and therefore acquitted all the accused. The High Court in appeal acquitted three of the four accused charged of offence under sec. 302 read with sec. The High Court in appeal acquitted three of the four accused charged of offence under sec. 302 read with sec. 34 of the Indian Penal Code giving them the benefit of doubt in view of the fact that their identity was not established but convicted the fourth under sec. 302 read with sec. 34 of the Indian Penal Code on the ground that he had committed the offence along with one or other of the acquitted accused. ( 5 ) IN this background the Supreme Court held that the conviction of the fourth accused was clearly wrong. When accused were acquitted either on the ground that evidence was not acceptable or by giving them the benefit of doubt the effect in law would be that they did not take part in the offence. Hence the effect of the acquittal of the three accused is that they did not conjointly act with the fourth accused in committing murder. If that is so the fourth accused could not be convicted for having committed the offence jointly with the acquitted persons. ( 6 ) ON the basis of the aforesaid decision of the Supreme Court it is sought to be urged that in the instant case the respondent-accused was charged for offence under sec. 302 read with sec. 34 of the Indian Penal Code on the allegation that he in furtherance of his common intention to cause death of Salim Mohamad gave knife blows to the deceased and thereby committed the offence under sec. 302 read with sec. 34 of the Indian Penal Code. There is no substantive charge under sec. 302 of the Indian Penal Code. Once the other accused i. e. Kathi Anak Bhima is acquitted it is not legally permissible to this Court to hold the respondent guilty for offence under sec. 302 read with sec. 34 of the Indian Penal Code. ( 7 ) THE argument is not only fallacious but it is based on incorrect reading of the decision of the Supreme Court in the aforesaid case. The principle laid down in the aforesaid decision is to be found in para 6 of the judgment which is as follows:"it is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The principle laid down in the aforesaid decision is to be found in para 6 of the judgment which is as follows:"it is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a Court can convict a person under sec. 302 read with sec 34 of the Indian Penal Code it should come to a definite conclusion that the said person had prior concert with one or more other persons named or unnamed for committing the said offence. Thus it would be clear that the principle laid down by the Supreme Court is that there should be 1 prior concert 2 with one or more other persons 3 these persons may be named or unnamed and 4 the concert should be with an object to commit the said offence. While discussing an earlier decision of the Supreme Court in the case of Mohan Singh v. State of Punjab reported in AIR 1963 SC 174 the Supreme Court extracted a passage therefrom and quoted in para 7 of the judgment. ". . . . In such cases the acquittal of one or more persons named in the charge does not affect the validity of the charge under sec. 149 because on the evidence the Court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases the Court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the Court from reaching such a conclusion". Thereafter the Supreme Court further observed:"it will be seen from the said observations that this Court was visualizing a case where there was evidence on the record from which the Court can come to such a conclusion. But there is no legal bar which prevents the Court from reaching such a conclusion". Thereafter the Supreme Court further observed:"it will be seen from the said observations that this Court was visualizing a case where there was evidence on the record from which the Court can come to such a conclusion. It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused but there may be other evidence such as that given by the court-witnesses defence witnesses or circumstantial pieces of evidence which may disclose the existence of named or unnamed persons other than those charged or deposed to by the prosecution witnesses and the Court on the basis of the said evidence may come to the conclusion that others named or unnamed acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence". Thereafter in para 8 of the judgment the Supreme Court pointed out the legal impossibility with regard to the finding arrived at by the High Court. In that Case the High Court acquitted accused Nos. 1 3 and 4 under sec. 302 read with sec. 34 of the Indian Penal Code but convicted accused No. 2 under sec. 302 read with see. 34 1. P. Code for having committed the offence jointly with the acquitted persons. This was erroneous. rather a legal impossibility. Hence the Supreme Court observed. "that is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them the result in law would be the same: it would mean that they did not take part in the offence. The effect of the acquittal of accused 1 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2 accused 2 could not have acted conjointly with them. . . "the Supreme Court further observed:". . . . . . We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the other participants in the crime must in the context refer only to the Cone or other of the said three acquitted accused participated in the offence committed by accused 9. . . . . . We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the other participants in the crime must in the context refer only to the Cone or other of the said three acquitted accused participated in the offence committed by accused 9. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence nor is there any evidence in that regard". From the aforesaid extracted portion of the judgment of the Supreme Court it should be clear that in the case before the Supreme Court the finding arrived at by the court was set aside on the ground that the High Court carne to the conclusion. 1 that accused No. 2 was guilty for committing offence conjointly with the other acquitted persons i. e. accused Nos. 1 3 and 4. 2 This was a legally impossible position. 3 Because the acquitted persons could not have acted conjointly with accused No. 2 nor accused No. 2 could have conjointly acted with the acquitted persons. 4 There was no observation in the judgment of the High Court to indicate that the persons other than the said accused participated in the offence. 5 That there was no evidence in that regard meaning thereby there was no evidence on the point that accused participated in the offence with other participants i. e. other than the acquitted persons. Thus it is clear that had there been evidence to show that accused No. 2 in that case participated in the crime conjointly with other person persons other than the acquitted accused his conviction would not have become a legal impossibility. ( 8 ) IN the case of Sukh Ram v. State of U. P. reported in AIR 1974 SC 323 while dealing with the aforesaid case of Krishna Govind Patil (supra) the Supreme Court in para 10 of the judgment has observed as follows:". . . . . THERE the eye witnesses had deposed that the four accused specifically named had beaten the deceased. None of those witnesses spoke about the participation of any other person. While convicting the appellant the High Court recorded the finding that he along with one or more of the other accused committed the offence. . . . . THERE the eye witnesses had deposed that the four accused specifically named had beaten the deceased. None of those witnesses spoke about the participation of any other person. While convicting the appellant the High Court recorded the finding that he along with one or more of the other accused committed the offence. Obviously the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in our case. Nor was there evidence to the effect that the named accused had committed the crime with one or more other persons. . . . . . "in the aforesaid decision in the case of Sukh Ram (supra) the Supreme Court has considered various other decisions of the Supreme Court on the point. After considering the entire legal position the Supreme Court has come to the conclusion that where the charge specifically mentioned that the murder was committed by the three named individuals but the evidence was led to show that the appellant along with two unknown persons had committed the crime and it was fully established that the appellant was amongst the three assailants of the deceased and that the pistol was fired at the deceased in furtherance of the common intention of all the three assailants no prejudice could be said to have been caused to the appellant by reason of his conviction under sec. 302 read with sec. 34 even though the two other accused specifically named in the charge had been acquitted. The Supreme Court further observed that in such cases the true touch stone is that on a reasonable view of the case has any prejudice been caused to the accused? In the instant case it has not been shown to us that during the course of the trial on the basis of the charge levelled against the accused the accused has been prejudiced. ( 9 ) IN the case of Yeshwant v. State of Maharashtra reported in A. I. R. 1973 S. C. 337 referring to the case of Krishna Govind Patil (supra) the Supreme Court has held as follows:". . . It is clear that in that case the only remaining accused could if at all be convicted under sec. 302 simpliciter. Apparently the evidence was not good enough to sustain the conviction of the remaining accused person singly. . . It is clear that in that case the only remaining accused could if at all be convicted under sec. 302 simpliciter. Apparently the evidence was not good enough to sustain the conviction of the remaining accused person singly. We do not think that this decision which depends upon its own facts as criminal cases generally do lays down any general principle that where the identity of one of the participants is doubtful the whole case must end in acquittal. Such a question belongs to the realm of facts and not of law". In the case of Dharam Pal v. State of U. P. reported in A. I. R. 1975 S. C. 1917 while dealing with the principle of vicarious liability the Supreme Court has held as follows:"the principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts beyond reasonable doubt which makes such a principle applicable". From the aforesaid decisions of the Supreme Court the following principles can be culled out: It cannot be said that whenever the number of convicted persons is reduced to one the case must result in his acquittal also. It all depends upon the facts and circumstances of each case. If the facts and circumstances of the case lead to the conclusion that the accused in furtherance of the common intention with some other persons named or unnamed whether mentioned in the charge or not but with regard to whom there may be some evidence also has participated in the crime then it does not matter matter another person has been convicted or not he would not be absolved from his liability whatsoever on account of constructive liability provided there is sufficient evidence against him to hold him guilty for the same. ( 10 ) ). . . . . . . . . ( 11 ) ). . . . . . . . . ( 12 ) ). . . . . . . . . ( 13 ) ). . . . . . . . . ( 14 ) IN view of the aforesaid medical evidence the following conclusions emerge:1 That the death is homicidal death. 2 That there were eight injuries on the front part of the body and there were nine injuries on the back part of the body. . . . ( 13 ) ). . . . . . . . . ( 14 ) IN view of the aforesaid medical evidence the following conclusions emerge:1 That the death is homicidal death. 2 That there were eight injuries on the front part of the body and there were nine injuries on the back part of the body. 3 That all the injuries were ante-mortem and were possible by sharp-cutting instrument like knife. 4 That whosoever caused injuries has caused the same brutally and in unusual manner which also indicate the force as well as the intention to kill the victim. 5 The seats of the injury namely heart liver kidney lungs and testicles are also required to be noted. This indicates the intention to kill. The aforesaid factors have been pointed out only with a view to keep the same in back-ground while considering the question of common intention of the assailants. These facts have nothing to do with the appreciation of evidence as regards the question as to who is the assailant. That question has to be considered independently of the aforesaid aspects of the medical evidence. ( 15 ) ). . . . . . . . . . . . . . . ( 16 ) ). . . . . . . . . . . . . . . ( 17 ) ). . . . . . . . . . . . . . . ( 18 ) ). . . . . . . . . . . . . . . ( 19 ) ). . . . . . . . . . . . . . . ( 20 ) ). . . . . . . . . . . . . . . . ( 21 ) AS regards the evidence of hostile witnesses is concerned and particularly the evidence of Sitar Karim is concerned on behalf of the prosecution an argument was advanced before the learned Sessions Judge that the evidence of hostile witnesses should be taken into consideration insofar as the same corroborates the other evidence on record. . . . . ( 21 ) AS regards the evidence of hostile witnesses is concerned and particularly the evidence of Sitar Karim is concerned on behalf of the prosecution an argument was advanced before the learned Sessions Judge that the evidence of hostile witnesses should be taken into consideration insofar as the same corroborates the other evidence on record. The learned Sessions Judge repelled this argument in the following terms:"it has been urged by Shri A. C. Shukla that the other details given by the complainant should be taken as corroborative piece of evidence but in my view that cannot be done to the disadvantage of the accused as that would prejudice the defence of the accused. The corroboration of the complaints evidence is to be sought from complaint Hence the evidence of Sitar in other details cannot be used to the detriment of the accused"it is not understood as to how and why the evidence of a particular witness is to cause prejudice to the defence and therefore the same cannot be taken into consideration at all. The evidence of the prosecution witness may be against the accused may not be against the accused but the same has got to be taken into consideration. If it helps the accused well and good. If it does not help the accused and if it is likely to go against the accused it cannot be rejected on the ground that it may prejudice the case of the accused. There is no question of causing prejudice to the accused. If the term prejudice is understood to mean that such evidence will adversely affect the defence of the accused then that type of prejudice will be caused by the entire evidence of the prosecution. That is the function of the prosecution and that is why the prosecution leads the evidence. The prosecution does not lead the evidence to prove the defence case and see that the accused is acquitted of the charges levelled against him. The prosecution has duty to be fair and impartial it cannot suppress or keep back any material which is likely to help the defence of the accused. But there is nothing in law which permits a court to exclude prosecution evidence from consideration on the ground that it will be against the accused. The prosecution has duty to be fair and impartial it cannot suppress or keep back any material which is likely to help the defence of the accused. But there is nothing in law which permits a court to exclude prosecution evidence from consideration on the ground that it will be against the accused. We see no reason why this evidence cannot be taken into consideration by the court on the flimsy ground that it may cause prejudice to the defence. There is nothing on record to show that the accused had not fair opportunity to cross-examine the hostile witnesses. There is nothing to show that the accused had been handicapped in any other manner to impeach the credibility or otherwise of these witnesses. In view of the decision of the Supreme Court in the case of Bhagwan Sing v. State of Haryana reported in AIR 1976 SC 202 the deposition of hostile witness does not completely efface his evidence. It is permissible to base a conviction upon his testimony if corroborated by other reliable evidence. In the case of Sat Paul v. Delhi Administration reported in AIR 1976 SC 294 the Supreme Court has clearly held that in case of witness who has been permitted to be cross-examined by the party calling him as witness it is for the Judge of fact to consider in each case whether as a result of such crossexamination and contradiction the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. The Supreme Court has further observed:" If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the witness as a whole with due caution and care accept in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it. . . . " ( 22 ) THE learned Sessions Judge has not followed the aforesaid decision of Supreme Court appears to have adopted the same line of reasoning even with regard to the evidence of other hostile witnesses and has not taken into consideration their evidence. . . . " ( 22 ) THE learned Sessions Judge has not followed the aforesaid decision of Supreme Court appears to have adopted the same line of reasoning even with regard to the evidence of other hostile witnesses and has not taken into consideration their evidence. In view of the aforesaid position of law laid down by the Supreme court it was not open to the learned Sessions Judge to discard the entire evidence of hostile witnesses. It was his duty to consider whether the evidence of hostile witnesses is otherwise reliable or not and if corroborated by other evidence whether conviction could be based on the same or not Thus the reasoning given by the learned Sessions Judge for discarding the evidence of the aforesaid witnesses does not appeal to us and the same has got to be rejected. ( 23 ) ( 24 ) ( 25 ) ( 26 ) ( 27 ) ( 28 ) ( 29 ) ( 30 ) ( 31 ) FORM the aforesaid discussion of the prosecution evidence the following facts can be held to have been proved;1 That the brother of respondent i. e. Bhankhubhai was killed by deceased Salim and deceased Salim was convicted and that be had undergone imprisonment for seven years and was released from jail before about 3 to 4 months of the incident in question. 2 That the incident took place at 4. 30 p. m. just outside Diamond Talkies. When deceased Salim and Sitar were seeing the pictures hung on the wall two persons together came from behind and gave knife blows to the deceased. Both these persons dragged the deceased on the road and continued to give knife blows on the body of Salim. 3 There are as many as 17 injuries on different parts of the bodyeight injuries are on the front part of the body and nine injuries are on the back part of the body. As per the medical evidence all these injuries are possible by sharp-cutting instrument like knife. Most of the injuries are on the vital parts of the body like heart liver lungs bladder kidney etc. 4 The presence of witness Gani Ismail at the scene of incident is quite natural and he is supported by the evidence of Sitar Babu Chana and Mamad Musa. Most of the injuries are on the vital parts of the body like heart liver lungs bladder kidney etc. 4 The presence of witness Gani Ismail at the scene of incident is quite natural and he is supported by the evidence of Sitar Babu Chana and Mamad Musa. 5 That one of the assailants was the respondent and another assailant could not be identified and therefore another accused namely Anak Bhimbhai has been given benefit of doubt by the trial court as well as by this Court. At the time of admitting this appeal the appeal against Anak Bhimbhai has been dismissed. 6 There is ample evidence on the record to come to the conclusion that the present respondent-accused was armed with a knife and he gave blows on the body of deceased Salim conjointly with someone else. There is ample evidence on record that another assailant was present. He and the respondentaccused wielded knives and gave knife blows on the body of deceased. 7 That both the assailants chased Sitar. This is clear from the evidence of Daud and Gani Ismail. Thus from the aforesaid conclusions it can safely be inferred that the respondent-accused had formed common intention with some other unknown assailant to cause the death of deceased Salim. It is trite knowledge that the intention is a question of subjective proof. But at tee same time this intention has go; to be interred from the objective facts and circumstances of each case. In this case the intention can be inferred from the following facts: ( 32 ) THE respondent-accused had a strong motive against the deceased. That two assailants came from behind and caught the deceased unaware and dragged him on the road and gave knife blows on his body. As many as 17 injuries have been caused. The injuries have been caused on the vital parts of the body. after causing the injury both the assailants chased Sitar when SItar tried to rescue the deceased. Thereafter both the assailants ran away together. Thus the immediate prior conduct and subsequent conduct of the accused and the manner in which blows have been given and the seat of the injuries clearly show that the respondent-accused had harboured the common intention with someone whose identity has not been established to cause the homicidal death of deceased Salim. Thereafter both the assailants ran away together. Thus the immediate prior conduct and subsequent conduct of the accused and the manner in which blows have been given and the seat of the injuries clearly show that the respondent-accused had harboured the common intention with someone whose identity has not been established to cause the homicidal death of deceased Salim. In above view of the matter there is no other conclusion possible except to hold that the respondent accused is guilty of offence punishable under sec. 302 read with sec. 34 of the Indian Penal Code. (Rest of the judgment is not material for the reports.) (KMU) appeal allowed : Acquattal set aside. .