REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 193 OF 2005

Aizaz & Ors. …Appellants

Versus

State of U.P. …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Appellants  call  in  question  legality  of  the  judgment

rendered  by  a  Division  Bench of  the  Allahabad  High  Court

upholding  the  conviction  of  the  appellants  for  offence

punishable under Section 302 of the Indian Penal code, 1860

(in  short  the  ‘IPC’).   So  far  as  the  appellant  Aizaz-  A1  is

concerned,  the  High  Court  also  upheld  his  conviction  for

offence  punishable  under Section 307 read with Section 34

IPC.   The two other  appellants were found guilty  of  offence

punishable under Section 302 read with Section 34 IPC and

Section 307 read with Section 34 IPC.  It is to be noted that

four persons faced trial though the learned VIIth   Additional

Sessions Judge,  Meerut found A-1 to A-3 guilty.   The  High

Court directed acquittal of Imlak (A-4).

2. Background  facts  as  projected  by  prosecution  in  a

nutshell are as follows:  

All the four accused are inter related and they lived in

village  Ikla  Rasoolpur,  police  station  Parichhatgarh,  district

Meerut. Informant of the case Bashir Mohammed (P.W.1) as

well as Ismail  (hereinafter referred to as the ‘deceased’)  also

lived in the same village. About 2½ years earlier to the date of

occurrence  i.e.  4.11.1979  one  Riazu  disappeared  from  the

village and could not be traced out. A case was registered at

the police station against appellant Aizaz and others in which

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the deceased was doing pairvi. The appellants had asked the

deceased several times not to appear as a witness in that case

or to do pairvi of the case. Ismail did not agree to it due to

which the appellants bore enmity with him.

In Ikla Rasoolpur, there is a school, namely, Deni Islami

Madarsa. A committee consisting of villagers of Ikla Rasoolpur

and village Khanpur used to manage the affairs of the school.

The  deceased  and  the  informant  were  members  of  the

committee.  There  was  some  dispute  regarding  the  post  of

Treasurer.  Therefore,  a  meeting  was  to  take  place  on

4.11.1979 in  village  Siyal. The  appellants as  well  as  the

villagers of Ikla Rasoolpur knew about the said meeting. On

the date of occurrence, i.e. 4.11.1979 the deceased Ismail and

informant Bashir  Mohammad  started  from  village  Ikla

Rasoolpur  for  attending  the  meeting  on  a  motor  cycle.  The

deceased was driving the motor cycle while the informant was

a pillion rider. At about 12 noon when they reached near the

field of Prakash Khazoori there was a turning of the road. The

deceased slowed down the speed of the motor cycle. At that

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very time, all the four accused persons emerged from the field

of Prakash.  Appellants Aizaz,  Ahmad Hasan and Jan Alam

who were armed with country made pistols fired towards the

informant  and the  deceased  on exhortation of  Imlak.  Imlak

was armed with spear.  The gun shot did not hit  either  the

deceased  or  the  informant.  However,  the  deceased  became

panicky and motor cycle fell down on the road. The deceased

left the motor cycle and his chappal and ran from the field of

Khairati  towards  the  village.  All  the  four  accused  persons

chased him. Informant, Bashir Mohammad also ran towards

them  raising  cry  for  help.  After  pursuing  the  deceased  for

about  100  yards,  the  accused  persons  caught  hold  of  the

deceased and pushed him to the ground. The three appellants

pushed him to the ground, while appellant Aizaz fired at the

deceased on the neck. Yakoob (P.W.2), Ian Mohammad (P.W.3)

and one Hafizuddin alias Fauju and Sahimuddin came over

there.  The  accused  persons  thereafter  went  away  in  the

southern direction. Ismail died instantaneously and blood had

also fallen at the place. Bashir Mohammad prepared a written

report at the place of occurrence. He went to the police station

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on cycle and lodged it at the police station Parichhatgarh on

4.11.1979 at 1.00 P.M. The distance of the police station from

the place of occurrence is three kilometers. FIR was registered

and investigation was undertaken.  

After  completion  of  the  investigation  charge  sheet  was

filed and since accused persons pleaded innocence, they were

put on trial.  Before trial Court the primary stand of accused

was that the prosecution has suppressed the genesis of the

occurrence.  The evidence of PWs 1, 2 & 3 according to them

did not  inspire  confidence.   In  any event,  it  was submitted

that Section 34 has no application so far as the A2 and A4 are

concerned.  The trial Court  did not accept  these contentions

and recorded conviction.  Before the High Court in appeal the

stands  were  reiterated.   The  High  Court  found  that  the

evidence  was  inadequate  so  far  as  A4  is  concerned,  but

confirmed  the  conviction  so  far  as  the  appellants  are

concerned.

3. In  support  of  the  appeal,  it  is  submitted  that  the

occurrence essentially took part in two stages. Even if there

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was any animosity between A1 and the deceased, A2 and A3

had nothing to do with him.  Additionally in the second part

also there was no use of any weapons by appellants Nos. 2 &

3.   The  only  allegation  against  them is  that  they  held  the

deceased and fell him on the ground.   

4. Learned counsel  for the respondent-State on the other

hand supported the judgment of the trial court and the High

Court.   

5. The evidence of PWs. 1, 2 & 3 is clear and cogent.  The

trial court and the High Court have analysed the evidence in

great detail and have come to hold that the same has credence

and appear to be truthful.  Nothing infirm could be pointed

out to warrant rejection of the evidence.  Therefore the trial

Court and High Court were justified in placing reliance on the

evidence of PWs. 1, 2 & 3.   

6. Coming  to  the  plea  relating  to  Section  34  the  Section

really  means that if  two or more persons intentionally  do a

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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

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essence is simultaneous consensus of the minds of persons

participating in the criminal action to bring about a particular

result (See  Ramaswami Ayyanagar and Ors. v.  State of Tamil

Nadu (AIR 1976 SC 2027). 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 pre-arranged 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.

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7. ‘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 v.  State of Maharashtra (AIR 1963 SC 1413).  In  Amrit

Singh and Ors. v. State of Punjab (1972 Crl.L.J. 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

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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

Barma and Ors. v. The State of Assam (AIR 1977 SC 2252) it

was observed that prosecution must prove facts to justify an

inference  that  all  participants  of  the  acts  had  shared  a

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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 and Anr. v. State of Uttar

Pradesh (AIR 1975 SC 12). 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

Kacharabhai and Ors. v.  The State of Gujarat (AIR 1965 SC

1260)  this  Court  has  interpreted  the  word  “furtherance”  as

‘advancement or promotion’.

8. When the factual scenario is analysed in the backdrop of

the principles of law set out above, the inevitable conclusion is

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that the appeal  is sans merit, deserves dismissal,  which we

direct.

……….……………………… ….J.

(Dr. ARIJIT PASAYAT)

…………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 12, 2008

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