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CASE NO.: Appeal (crl.)  734 of 2006

PETITIONER: Noor @ Noordhin

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 11/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

WITH CRIMINAL APPEAL NO. 733 OF 2006

S.B. SINHA,  J :

1.      These appeals arise out of a judgment and order dated 13.09.2005  passed by a Division Bench of the High Court of Karnataka at Bangalore in  Criminal Appeal No. 359 of 2005.

2.      Appellant with six others was charged for commission of offences  under Sections 143, 148, 341, 326, 302, 120B read with Section 149 of the  Indian Penal Code for causing death of one Udaya Kumar (deceased) on  19.10.2003.

3.      The case of prosecution is as under.

       19.10.2003 was a Sunday.  The deceased and Sudhakar Bollaje (PW- 4) were going on a motorcycle from Krishnapura to Ganeshpur.  Allegedly,  the motorcycle was stopped near Block No. II of village Kattipalla by a boy  aged about 20 years.  Appellant herein together with Siraj, Jubaid and Iqbal  accompanied by 2-3 persons surrounded the motorcycle.  They were armed  with swords and cricket bats.  Nooruddin, appellant herein, attacked the  deceased with a sword, which he was carrying.  PW-4 attempted to prevent  it and in the process sustained an injury on his left hand.  Udaya jumped  from the motorcycle and ran towards the playground of the school.  While  he was climbing on the steps of the school, the appellant and his associates  chased him and attacked him with swords and bats.  PW-4 was also hit by a  sword on his leg.  He escaped and ran away.

4.      PW-4 allegedly met one Ashok Shetty (PW-11) who examined  himself as PW-11.  They went to Suratkal Padmavathi Hospital wherein he  was admitted.  An information was sent to the police station.  Statement of  PW-4 was recorded.  It was treated to be a First Information Report.   However, a tense situation came into being.  Even an inquest could not be  conducted immediately.   

5.      In his statement before the police, PW-4 took the names of Siraj,  Jubaid and Iqbal.  However, in his deposition, he stated that he had taken  their names wrongly.  According to him, the real culprits are the appellant  herein and Accused Nos. 2 to 7.  All the accused were arrested on  21.10.2003.  Some weapons were allegedly recovered.   

6.      In view of the question involved herein, it is not necessary for us to  notice the evidence of the prosecution witnesses examined on behalf of the  State.  It is suffice to say that the learned Trial Judge inter alia on the

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premise that out of seven accused, apart from the appellant, nobody was  named in the First Information Report, recorded a judgment of acquittal.   Appellant herein was convicted under Sections 143, 148, 341, 326, 302 read  with Section 149 of the Indian Penal Code.  The State did not prefer any  appeal against the said judgment of acquittal.  An appeal was preferred  against the judgment of his conviction before the High Court by the  appellant.  By reason of the impugned judgment, the High Court allowed the  said appeal.  The High Court found the appellant guilty under Section 324  read with Section 34 of the Indian Penal Code and sentenced him to rigorous  imprisonment for one year and also under Section 304, Part I read with  Section 34 sentenced him to undergo rigorous imprisonment for eight years.

7.      Both the appellant and the State are before us.

8.      With a view to appreciate the question involved, we may notice the  first information report.  

       PW-4, the first informant and PW-5, Balakrishan who was also an  eye-witness proved the prosecution case only to the extent of the First  Information Report.  The State in their respective examinations \026 in \026 chief  only proved the contents of the first information report.

9.     It is also relevant to mention that there were two cricket playgrounds.   The incident occurred when a cricket match was being played on one of the  grounds.  Appellant was, however, said to be on the other ground.   According to PWs 4 and 5, a quarrel ensued resulting in injury being caused  to Imthiyaz by the deceased and PW-4, whereafter they were assaulted by  others.  It has not been disputed that Imthiyaz suffered an injury.  It was  proved by PW-17 Dr. Hemalatha and the following injuries were noticed:

"Obliquely running lateral cut lacerated wound  measuring 14 x 5 cms., over the right scapula skin  deep exposing the muscle underneath.  Wound  covered with prulent discharge.  Edges of the  wound show granulation.  Age of the injury is 50  to 58 hours and that he was referred to major  hospital for further treatment."

10.     Admittedly, injuries on the person of Imthiyaz were not explained.  A  plea was taken in that behalf, in their respective examinations, under Section  313 of the Code of Criminal Procedure, by the appellant and Imthiyaz.  Whereas presence of the appellant is disputed, presence of Imthiyaz is, thus,  not disputed.  Despite the same, Imthiyaz has been acquitted.

11.     The High Court acquitted the appellant under Sections 143 and 148 of  the Indian Penal Code.  He has also been acquitted for commission of an  offence under Section 341 of the Indian Penal Code.

       The High Court while agreeing with the findings of the learned Trial  Judge opined that the appellant was one of the persons who had participated  in the attack on Udaya and Sudhakar Bollaje and that the blow was given by  Accused No. 1 with a sword.  It, however, was observed that he had no  intention to kill.  PW-10 categorically stated that the quarrel arose while  playing the game.  Although PW-10 was declared hostile, the High Court  opined:

"As regards the alleged murder of Sri Udaya, it is  submitted by the learned counsel for the appellant  that the circumstances as disclosed by P.W.10 and  as could be deduced indicate the possibility of a  quarrel between the deceased and P.W.4 on the  one side and the alleged culprits on the other side  and since the deceased and P.W.4 could have been  armed, it would be an incident where in a sudden  fight in the heat of moment, fatal injury could have

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been caused to Udaya.  If it is so, the murder  would fall either under section 326 of the IPC, or  under exception (4) of section 300 of the IPC.  As  we observed above, particularly, considering the  evidence of P.W.10, the possibility of Udaya and  P.W.4 coming on the ground is more and in all  probability a quarrel started between Udaya and  P.W.4 on the one side and the accused No. 1 and  others on the other side.  The injuries suffered by  accused No. 2 indicate that possibility, and the  injuries sustained by Udaya and P.W.4 can be  considered as injuries caused by the appellant/  accused No. 1 and his companions in a sudden  fight and in the heat of moment.  The  circumstances do not show that undue advantage  was taken by accused No. 1.  The act though rash  was in the heat of the moment and it squarely falls  under Exception (4) of Section 300 of the IPC, and  consequently the death of Udaya by the act of  accused No. 1 and others would amount to  culpable homicide not amounting to murder.   Having regard to the circumstances disclosed and  the fact that the accused No. 1 and his companions  used swords, it cannot be said that the attack was  not with the intention of killing Udaya.   Consequently, the act falls under Part \026 I of  Section 304 of IPC and not under section 302 of  the IPC."

       Offences under Sections 120-B, 143, 148 and 341 of the Indian Penal  Code have not been proved.   

12.     Section 34 of the Indian Penal Code reads as under:

"34. Acts done by several persons in furtherance of  common intention 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."

13.     A common intention may be developed on the spot.  Although a  person may not be held guilty for having a common object, in a given  situation, he may be held guilty for having a common intention, but such  common intention must be shared with others.  The recital made in the first  information report which has been noticed by us herein clearly goes to show  that the appellant had sought to attack the deceased while he was on his  motorcycle.  The attack was warded off by PW-4.  He suffered an injury.   The deceased thereafter ran to the school building which according to the  sketch map drawn by the investigating officer was at a distance of about 120  feet from the main road.  The dead body of Udaya was found only on the  stair case of the school.  The first information report as also the evidence of  PWs 4 and 5 reveals that the deceased was chased by all the accused.  He  was assaulted by all the accused.  The specific role played by the appellant  has not been disclosed.  Whether the appellant alone was responsible for  causing the death has also not been stated.

14.     The deceased suffered as many as 19 injuries.  Some injuries were  inflicted on vital parts of the body and some were only on the hands and  legs.  There is nothing on record to show that the appellant inflicted any  injury on a vital part of the body of the deceased.  In the aforementioned  situation, in our opinion, Section 34 of the Indian Penal Code would not be  attracted.

15.     Reliance has been placed by Mr. Hegde on Harshadsingh

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Pahelvansingh Thakore v. State of Gujarat [(1976) 4 SCC 640] which has  also been noticed by this Court in Golla Pullanna and Anr. v. State of A.P.  [(1996) 10 SCC 223] and State of U.P. v. Jhinkoo Nai [(2001) 6 SCC 503].   The said decisions are not attracted in this case.  In the said cases, common  intention had been held to have been proved.  Therein, this Court was  dealing with the offence of murder.  As the common intention to commit the  said offence was established, individual roles played by each of the accused  were held to be of not much significance.  The very fact that the appellants  have been convicted only under Section 304 Part I of the Indian Penal Code  itself suggests that they had no intention to commit the murder the deceased  and, thus, the question of common intention in this case does not arise.

16.    We have noticed hereinbefore that all the accused, other than the  appellant, have been acquitted by the learned Trial Judge.  The State did not  prefer any appeal thereagainst.  The prosecution, therefore, cannot say that  the appellant had any common intention with any other accused persons who  were named in the First Information Report.  The matter might be different  where a person is said to have formed common intention with other persons.   The prosecution may succeed in obtaining a conviction against the appellant  for commission of an offence under Section 34 of the Indian Penal Code if  the names of the other accused persons and the roles played by them are   known.  Specific overt act of the accused is not only known but is proved.   In this case the first information report was against known persons.  PW-4,  however, retracted his statement raising a plea of mistake on his part in  taking the names of three persons.  He had also accepted his mistake in  naming his assailant.  Whereas in the first information report, he named  Siraj, in a subsequent statement, he named one Imran.

17.     In Baul and another v. The State of U.P. [1968 (2) SCR 450 : AIR  1968 SC 728], it was held:

"7. No doubt the original prosecution case showed  that Sadhai and Ramdeo both hit the deceased on  the head with their lathies . One is tempted to  divide the two fatal injuries between the two  assailants and to hold that one each was caused by  them. If there was common intention established in  the case the prosecution would not have been  required to prove which of the injuries was caused  by which assailant. But when common intention is  not proved the prosecution must establish the exact  nature of the injury caused by each accused and  more so in this case when one of the accused has  got the benefit of the doubt and has been acquitted.  It cannot, therefore, be postulated that Sadhai  alone caused all the injuries on the head of the  deceased. Once that position arises the doubt  remains as to whether the injuries caused by  Sadhai were of the character which would bring  his case within Section 302. It may be that the  effect of the first blow became more prominent  because another blow landing immediately after it  caused more fractures to the skull than the first  blow had caused. These doubts prompt us to give  the benefit of doubt to Sadhai. We think that his  conviction can be safely rested under Section 325  of the Indian Penal Code, but it is difficult to hold  in a case of this type that his guilt amounts to  murder simpliciter because he must be held  responsible for all the injuries that were caused to  the deceased. We convict him instead of Section  302 for an offence under Section 325 of the Indian  Penal Code and set aside the sentence of  imprisonment for life and instead sentence him to  rigorous imprisonment for seven years."

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18.     Yet again in Sukhram s/o Ramratan v. State of M.P. [1989 Supp (1)  SCC 214], the law has been stated in the following terms:   "10. There is another aspect of the matter which  has also escaped the notice of the High Court when  it sustained the conviction of the appellant under  Section 302 read with Section 34 and Section 436  read with Section 34 IPC while acquitting accused  Gokul of those charges. Though the accused Gokul  and the appellant were individually charged under  Sections 302 and 436 IPC they were convicted  only under the alternative charges under Section  302 read with Section 34 and Section 436 read  with Section 34 IPC by the Sessions Judge.  Consequently, the appellant’s convictions can be  sustained only if the High Court had sustained the  convictions awarded to accused Gokul also.  Inasmuch as the High Court has given the benefit  of doubt to accused Gokul and acquitted him, it  follows that the appellant’s convictions for the two  substantive offences read with Section 34 IPC  cannot be sustained because this is a case where  the co-accused is a named person and he has been  acquitted and by reason of it the appellant cannot  be held to have acted conjointly with anyone in the  commission of the offences. This position of law is  well settled by this Court and we may only refer to  a few decisions in this behalf vide Prabhu Babaji v.  State of Bombay, Krishna Govind Patil v. State of  Maharashtra and Baul v. State of U.P."

19.     Appellant, therefore, cannot be held to be guilty of commission of an  offence under Section 304, Part I read with Section 34 of the Indian Penal  Code.  His conviction can be upheld only under Section 324 of the Indian  Penal Code.   

20.     The appeal filed by the appellant is allowed to the aforementioned  extent and that of the State is dismissed.  While setting aside the conviction  under Section 304, Part I read with Section 34 of the Indian Penal Code, his  conviction under Section 324 of the Indian Penal Code is upheld.  As the  appellant has already undergone the sentence imposed upon him by the High  Court, he is directed to be set at liberty, unless wanted in connection with  any other case.