NAIM & ANR Vs. STATE OF UTTARAKHAND
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 504 - Intentional insult with intent to provoke breach of the peace
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1565 of 2012, Judgment Date: Nov 21, 2014
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.
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 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 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."
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 CourtHigh Hi
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 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 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.
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.
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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