Jumman alias Sikandar Ali vs State of Madhya Pradesh

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 12th of January, 1996 passed in Sessions Trial No. 218/92 by the First Additional Sessions Judge, Raigarh. By the impugned judgment, the appellants (A-2 to A-4) and 4th accused-Faruook Mohammed (A-1) were convicted u/S. 302/34 & 307/34 IPC and sentenced to undergo imprisonment for life and R. I. for 7 years with direction to run the sentences concurrently. The facts, briefly stated, are as under:--

Deceased-Chuggaram had a vegetable shop in Sanjay Complex, Raigarh. Roopchand (PW-7) had also a shop near the shop of the deceased. On 24-6-1992 at about 9.30 - 10.00 a.m., the deceased and injured - Rajesh Kumar (PW-9) were sitting in the shop of the deceased. Naushad (A-3) and Arvind (A-4) came to the shop of the deceased. Naushad (A-3) kept his bicycle on stand. The bicycle fell down and some mud got sprinkled over the clothes of the deceased and Rajesh Kumar (PW-9). On this some altercation took place between them. The case of the prosecution is that the above 2 accused (A-3 & A-4) left the place threatening the deceased and thereafter all the 4 accused (A-1 to A-4) came there, Faruook Mohammed (A-1) and Jumman alias Sikandar Ali (A-2) were carrying knifes. These 2 accused (A-1 & A-2) entered into the shop, Faruook (A-1) assaulted the deceased and Jumman (A-2) assaulted Rajesh Kumar (PW-9) by their knifes. The incident was witnessed by Hetram (PW 3) and Roopchand (PW-7). They immediately took the injured persons to the hospital. Chuggaram died on account of injury sustained in his abdominal region, however, Rajesh Kumar (PW-9) survived. Autopsy on the dead body of deceased - Chuggaram was conducted by Dr. P. K. Mishra (PW-7), who found single stab wound on the abdominal region of the deceased. On internal examination, he found that there was cut injury over the left kidney and major vessels going to kidney were also cut. He opined that the cause of death was shock and haemorrhage on account of the above injuries and it was homicidal in nature. The post-mortem report is Ex. P/19. Rajesh Kumar (PW-9) was examined by Dr. Jaiyant Shrivastava (PW-15). Rajesh Kumar (PW-9) had sustained 2 incised wounds, one, on the back portion of right forearm and the other, on the right portion of chest. Dr. Srivastava (PW-15) advised for X-ray examination of the above injuries. X-ray examination was conducted by Dr. B. S. Markam (PW-5) who noticed that there was a fracture on 8th rib. The X-ray plate is Ex. P/4-A and X-ray report is Ex. P/4. The prosecution came with the case that all the accused shared common intention to commit murder of the deceased and to attempt the life of injured - Rajesh Kumar (PW-9), therefore, they were liable for punishment u/S. 302/34 & 307/34 IPC. The learned Sessions Judge relied on the testimonies of Rajesh Kumar (PW-9), Hetram (PW-3) and Roopchand (PW-7) and held that the accused had shared common intention for commission of murder as also for attempting the life of the injured, therefore, they were liable for punishment as above. The accused persons (A-1 to A-4), thus, were convicted and sentenced as above.

Faruook Mohammed (A-1) had filed a separate appeal bearing Criminal Appeal No. 485/96. This appeal came up for hearing on 19-12-2005. No one represented him on the said date. However the Additional Public Prosecutor submitted a written communication to the effect that accused/appellant - Faruook Mohammed s/o late Munna Mistri was released on permanent probation on 5-5-2000 from Central Jail, Raipur. On this information the said appeal was finally disposed of for want of prosecution on 19-12-2005.

Learned counsel for the appellants herein, argued that there is no evidence of sharing common intention, therefore, each accused would be liable for his own act; as far as appellants - Naushad (A-3) and Arvind (A-4) are concerned, their presence at the place of occurrence is doubtful; even if it is held that they were present, no overt act has been attributed to them; about Jumman also Sikandar Ali (A-2), it was argued that he had no intention to commit murder of Rajesh Kumar (PW-9); Rajesh Kumar (PW-9) had received grievous injuries, therefore, he cannot be convicted u/S. 307 IPC.

On the other hand. Mr. J. A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned counsel for the parties at length and have also perused the records of the Sessions case.

Firstly, we shall examine the conviction of the appellants with the aid of Section 34, IPC.

In Aizaz and Others Vs. State of U.P., , the Supreme Court held in Paras-6 & 7:

Coming to the plea relating to Section 34 the Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result (See Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, . The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a prearranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply.

''Common intention'' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil Vs. State of Maharashtra, . In Amrit Singh and Ors. v. State of Punjab ( 1972 Cri LJ 465 SC)) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. v. State of U. P. (AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Sarma and Others Vs. State of Assam, it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Malkhan Singh and Another Vs. State of U.P., In the Oxford English Dictionary, the word "furtherance" is defined as ''action of helping forward'', Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12th Edn. Vol. I pp. 487 and 488). In Shankarlal Kachrabhai and Others Vs. State of Gujarat, the Supreme Court has interpreted the word "furtherance" as ''advancement or promotion''.

Roopchand (PW-7) is brother of the deceased. He is a witness to the incident. The incident took place at about 10.00 a.m. and dehati nalishi (Ex. P-7) was lodged by Roopchand (PW-7) at 12.00 noon. According to the nalishi (Ex. P/7), Naushad (A-3) and Arvind (A-4) came to the shop of the deceased, where their bicycle fell in the mud and mud got sprinkled over the clothes of the deceased and injured on which some altercation took place between them and thereafter, as per nalishi, all the accused came there. Faruook (A-1) and Jumman (A-2) were holding knives and only these 2 accused entered into the shop, and then, Faruook (A-1) gave single blow to the deceased and Jumman (A-2) also gave single blow to the injured. Roopchand (PW-7), in para-2 of his evidence, deposed that in the second round, Faruook (A-1) and Jumman (A-2) came there with knives and they assaulted the deceased and injured in the above manner. In his evidence, he did not depose about involvement of Naushad (A-3) and Arvind (A-4) in the main incident of second round, and he simply added a word that after the incident all the 4 accused persons (A-1 to A-4) ran away to different directions. In appreciation, we find that Roopchand (PW-7) even did not depose that A-3 & A-4 came with the other 2 accused, A-1 & A-2 or they did any overt act on which they would be held responsible for the acts done by Faruook (A-1) and Jumman (A-2).

Rajesh Kumar (PW-9) is an injured witness. About the second incident, he deposed that when he was sitting along with the deceased in his shop, the 4 accused persons (A-1 to A-4) came there and Faruook (A-1) assaulted the deceased by knife and Jumman (A-2) assaulted him (PW-9 - Rajesh Kumar) by knife. According to him the other 2 accused (A-3 & A-4) were also present near the shop.

Hetram (PW-3) is an other eye-witness. Though in examination-in-chief, he deposed that all the accused came together to the shop of the deceased, and accused-Faruook (A-1) and Jumman (A-2) assaulted the deceased and injured in the above manner, but in para-14 of his cross examination, he admitted that accused Arvind (A-4) did not enter into the shop of the deceased; he was standing at a distance of 20-25 feet from his shop. He further admitted in clear words that the accused persons had come one after another and it is not correct to say that all had come together.

On appreciation of entire evidence on record, we find that it was not proved that all the accused persons came together to the place of occurrence or near the place of occurrence, and then 2 of them entered into the shop and committed the offences. On the contrary, it appears that either the 2 accused namely - Naushad (A-3) and Arvind (A-4) did not come in the second round or if they came there, they were standing at a distance of 20-25 feet from the shop of the deceased; they were unarmed; they did not do any overt act. The above evidence, therefore, shows that Naushad and Arvind (A-3 & A-4) did not share common intention with accused Faruook or Jumman (A-1 & A-2) either for commission of murder of the deceased or for attempting the life of the injured.

So far as sharing of common intention by Jumman (A-2) with Faruook (A-1) for commission of murder of deceased Chuggaram is concerned, that also cannot be inferred in light of the evidence of Rajesh Kumar (PW-9), Hetram (PW-3) and Roopchand (PW-7). These witnesses did not depose that Jumman (A-2) either had assaulted the deceased or he in any manner had facilitated Faruook (A-1) to assault the deceased. Though Jumman (A-2) came with Faruook (A-1), but he attacked over Rajesh Kumar (PW-9). For holding Jumman (A-2) liable for commission of murder of the deceased with the aid of Section 34, IPC, it must have been established that there was common intention in the sense of a pre-arranged plan between the two, or such intention had developed on the place of occurrence at the spur of moment prior to commission of the offence. The acts may be different in character, but it should have been proved that they must have been actuated by one and the same common intention in order to attract the provisions of Section 34, IPC, which we do not find in this matter. We are of the view that in the above facts and circumstances of the case, Faruook (A-1) and Jumman (A-2) shall be liable for their own acts; that is to say that Jumman (A-2) cannot be convicted for commission of murder of the deceased with the aid of Section 34, IPC.

Now we shall consider as to what offence Jumman alias Sikandar Ali (A-2) has committed?

Rajesh Kumar (PW-9) deposed that Jumman (A-2) entered into the shop and gave single blow by a knife on his right forearm. The knife caused cut injury over the right forearm as also over the right portion of his chest. Dr. Jaiyant Shrivastava (PW-15), who firstly examined Rajesh Kumar (PW-9), deposed in clear words that those injuries were simple injuries. However he advised for X-ray examination. On X-ray examination, it was found that there was fracture over right 8th rib of Rajesh Kumar (PW-9). It does not come that the injury was endangerous to life.

In Hari Kishan Vs. Sukhbir Singh and Others, , the Supreme Court held that "Under S. 307, IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention."

In the instant case, according to the evidence of Rajesh Kumar (PW-9), Jumman (A-2) had given single blow by knife on his right forearm. This shows that Jumman (A-2) had aimed over the right forearm of Rajesh Kumar (PW-9), and thus, his intention does not appear to be one of commission of murder of Rajesh Kumar (PW-9) and he did not inflict the injury by such intention. We are of the view that in the above facts and circumstances of the case, Jumman (A-2) would not be liable for punishment u/S. 307, but he would be liable for punishment u/S. 326, IPC.

In the result, Cr. A. No. 228/96 and Cr. A. No. 94/96 filed on behalf of appellants - Naushad (A-3) and Arvind (A-4) are allowed. The conviction and sentences awarded to them u/S. 302/34 & 307/34, IPC are set aside. Appellants - Naushad (A-3) and Arvind (A-4) are acquitted of the charges framed against them.

Cr. A. No. 206/96 filed on behalf of appellant - Jumman alias Sikandar Ali (A-2) is allowed in part. The conviction and sentences awarded to him u/S. 302/34 & 307/34, IPC are set aside. Instead thereof, he is convicted u/S. 326, IPC and sentenced to the period already undergone which comes about 5 years. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged.