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PETITIONER: BADRUDDIN

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT:       21/09/1998

BENCH: D.P. WADHWAR, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT QUADRI, J. This criminal appeal, by special leave, is  directed against  the  judgment  of  the  High  Court of Allahabad in Criminal Appeal No.  878 of  1977  dated  24th  July,  1984, confirming  the conviction and sentence of the appellant for offences  under  Sections  302/34  and   323/34,   TPC   and sentencing   him   to   life   imprisonment   and   rigorous imprisonment  for  six  months  respectively  for  the  said offences.  The appellant and three others (Nizamiddin, Hafiz and  Siddiqui),  on  their denial of charges, were tried for offences under Sections 302, 302/34 and 323/34, TPC  by  the learned   IInd  Additional  Sessions  judge,  Azamgarh,  for committing the murder of Shaukat Ali  (hereinafter  referred to as ’the deceased’) on March 19, 1976 at 2 p.m. The gravamen of charge against the appellant is that the said persons of whom Nizamuddin was armed with knife and the appellant Hafiz and Siddiqui  were  armed  with  lathis, beat the  deceased  and  killed  him.   PW-1, Mohammad Umar, PW-3, Ali Hamza and PW-5, Mohammad Hanif are eye  witnesses. Their statements before the court show that Nizamuddin deall blows  with knife and Siddiqui dealt blows with Latgu, Nigd, Ynarm Migd, Gabuf abd Ali Hamza Tried to intervene but  they were attacked with lathis by the appellant and Hafiz.  It is thus  clear  that  no  overl act in regard to assaulting the deceased is attributed to the appellant In the F.T.R.  also, no overt act is attributed to the appellant. Dr.  G.S.Chaturvedi, Senior Physician, who conducted the post-mortem examination on the dead body of the deceased found the following ante-mortem injuries on the body of  the deceases : "I.  Tncised wound oblique 2cm x 1/4cm x  muscle  deep  over left arm below parts 6 cm below tap of shoulder. 2.   Tncised  wound  oblique 4cm x 1cm x scalp deep over the left side of back of head 12cm pack (back)  and  above  left ear. 3.   Stab  wound  oblique 2cm x 1cm x chest cavity deep over left back of chest 2cm below inderior angle of left scaqula. Direction of wound from behind forward and medically cutting the muscle and soft tissues. It had  also  cut  pleurae  and

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lower and of left lung through and through 1-1/4cm x 1/4cm. 4.   Incised  wound  vertical  1-1/4cm x 1/4cm x muscle deep over left side of strive. 5.  Incised wound 2cm x 1/4cm x  muscle  deep  oblique  over left side back chest 24cm below the angle of left scaqula." (Quoted from the parer book) The  death  was  caused  due to the said injuries. All these injuries were caused by a sharp edged weapon.  None  of  the injuries  can  be  said  to have been inflicted with a blunt weapon like lathi. The High Court noted that the relations between  the deceased and others were strained on account of dispute with regard to ’Sahan" (open Yard) of the Mosque of Shah Bhukhari and  that  after Friday’s prayer, there was some altercation between the two groups; the one consisting of the said  four persons  and  other  consisting  of  the  deceased and PW-1. Thereafter, the appellant and the said  three  persons  came armed  with Knife and lathis, as noted above, surrounded the deceased near his door while Nixamuddin death blows  to  him with kinfe Siddiqui  beat  him  with  lathi.    P.Ws.  3 & 5 stated that the  appellant,  Hafiz  and  Siddiqui  inflicted blows to the said three eye witnesses with lathis.  From the above  facts, it is difficult to sustain the conslusion that there was common intention between the appellant  and  other persons to  kill  the  deceased.  Though establishing common intention is a  difficult  task  for  the  prosecution  yet, however difficult it may be the prosecution has to establish by  evidence,  whether  direct or circumstantial, that there was a plan or meeting of  mind  of  all  the  assaitants  to commit  the offence be it per-arranged or on the squr of the moment but it must necessarily be before the  commission  of the crime.    Where direct evidence is not available, it has to be inferred from  the  circumstantial  evidence.  In  the instant  case,  it  is  stated  that  the deceased alone was assaulted by Nizamuddin with knife and Siddiqui with  lathi. The appellant dealt blows with lathi not to the deceased but to  other  witnesses.  There  is  no  case  nor  evidence of exhorlation by him or of the fact that with a view  to  keep the  said  witnesses away from interfering and to facilitate Nizamuddin to kill the deceased the appellant assaulted  the said   withnesses.   Having   regard   to   the   facts  and circumstances of the case, it is not possible to  arrive  at the  conclusion  that the appellant and others shared common intention to kill the deceased Shaukat Ali. Consequently  we are  unable  to  sustain the conviction of the appellant for the offence under  Section  302/34,  TPC.  However,  on  the facts,  we confirm the conviction and sentence under Section 323/34 PTC awarded by the courts below. As the appellant has already served out the  sentence for the offence  convicted, therefore, he is directed to be released forthwith unless he is  required to be detained in any other case. The appeal is accordingly allowed.