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PETITIONER: NOOR MOHAMMAD MOHD. YUSUF MOMIN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/03/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. HIDAYATULLAH, M. (CJ) RAY, A.N.

CITATION:  1971 AIR  885            1971 SCR  (1) 119  1971 SCC  (1) 696

ACT: Criminal   law--Difference   between   conspiracy,    common intention and abetment--Indian Penal Code, (Act 45 of 1860), ss. 34, 109 and 12OB--Scope of.

HEADNOTE: Four  accused were charged with the offences under s.  120-B (conspiracy  to commit murder) and s. 302 read with  s.  34. The  fourth accused was also charged under s. 302 read  with s.  109 for the offence of abetting the murder committed  by the other three accused.  The accused 2 to 4 were related to one  another  while the first accused was a servant  of  the brother of the second accused.  There were constant disputes between the fourth accused and the deceased over a right  of passage  and  the right to tap water.  The  day  before  the murder the fourth accused, went to the house of the deceased and  exhorted  his companions, one of whom  was  the  second accused, to kill the deceased.  On the next day (the day  of the  murder)  the  fourth accused  threatened  to  kill  the deceased and later, accompanied by the 1st and 2nd  accused, followed  the  deceased when he went out at  about  10  p.m. Fifteen  minutes  after  the deceased was  thus  seen  being followed  by  the accused, the deceased  was  stabbed.   The third accused tried to persuade the two constables who  were proceeding towards the scene when they heard the disturbance that  nothing  untoward  had happened,  but  the  constables proceeded to the scene, and, on noticing the wounded body of the  deceased,  chased  and caught  the  first  accused  and recognised  the second accused who had escaped.  One of  the constables lodged the first information against the  accused 1  to 3. The fourth accused was absconding and after he  was arrested,  all the accused were put up for trial.  The  High Court  convicted the first accused under s. 302 I.P.C.,  and accused  two to four for offences under s. 120-B and s.  302 read  with  s.  34,  I.P.C.  The  fourth  accused  was  also convicted for the offence under s. 302 read with s. 109. In  appeal  by special leave to this Court  by  the  ’fourth accused,  this Court examined the evidence, contrary to  its usual practice, as it was represented that the evidence  did not support the conclusion of the High Court, and

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HELD  : The evidence clearly established the  complicity  of the appellant in the murder of the deceased, and the charges under s. 302 read with s. 109 I.P.C. and of conspiracy  were fully  supported  by the evidence.  As  regards  the  charge under s. 302 read with s. 34, though, it was highly probable that  at  the time of the actual murder  the  appellant  was either  present  with  the other  three  co-accused  or  was somewhere  nearby,  the evidence did  not  establish  beyond reasonable doubt his presence- at or near the spot when  the murder  was  actually committed, and therefore, he  must  be given the benefit of doubt in regard to that charge. Section 34 embodies the principle of joint liability in  the doing of a criminal act, the essence of that liability being the  existence of a common intention.  Participation in  the commission  of  the  offence in furtherance  of  the  common intention invites its application. 120 Section 109, on the other hand, may be attracted even if the abettor is not present when the offence abetted is committed provided  that  he  has instigated  the  commission  of  the offence  or has engaged with one or more other persons in  a conspiracy  to  commit  an  offence  and  pursuant  to  that conspiracy  some act or illegal emission takes place or  has intentionally  aided the commission of an offence by an  act or illegal omission. Criminal conspiracy is a substantive offence under s.  120-B I.P.C.  It  differs  from the other offences  in  that  mere agreement  is  made an offence even if no step is  taken  to carry out that agreement.  Though there is close association of conspiracy with incitement and abetment, the  substantive offence  of criminal conspiracy is wider in  amplitude  than abetment  by  conspiracy as contemplated by  s.  107  I.P.C. Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that direct evidence in  proof of conspiracy can be forthcoming, but like other offences it can  be  proved  by  circumstantial  evidence.   Surrounding circumstance  and antecedent and subsequent  conduct,  among other  factors  constitute  relevant  material.   In   fact, because  of  the difficulties of having direct  evidence  of criminal  conspiracy,  once ’reasonable ground is shown  for believing that two or more persons have conspired to  commit an  offence  then  anything  done by  any  one  of  them  in reference  to  their  common intention  after  the  same  is entertained  becomes,  according  to  the  law  of  evidence relevant  for  proving  both  conspiracy  and  the  offences committed pursuant thereto. (124B-H]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.24  of 1968. Appeal  by special leave from the judgment and  order  dated December  13, 14, 1967 of the Bombay High Court in  Criminal Appeal No. 380 of 1966. A. S. R. Chari and A. G. Ratnaparkhi, for the appellant. G. L. Sanghi and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Dua,  J.  In  this  appeal by  special  leave  we  are  only concerned  with  the conviction of one out of  four  accused persons  jointly tried for the murder of one  Mohd.   Yahya. The appellant Noor Mohammed Mahamed Yusef Momin, accused no. 4, in the trial court was jointly tried with three others in the court of the second Additional Sessions Judge, Thana  on the following three charges

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             "That you accused nos.  1 to 4 on or about the               16th  day of April, 1965 at  Bhiwandi  entered               into  an  agreement to commit  the  murder  of               Mohamed  Yahya and that the same  illegal  act               was  done in pursuance of the  said  agreement               and   thereby   you   committed   an   offence               punishable  under section 120B of  the  Indian               Penal Code and within my cognizance.               That  You accused nos. 1, 2 and 3 on or  about               the  17th day of April, 1965 at about 11  p.m.               at Bhiwandi 121               in furtherance of common intention of you  all               and accused no. 4 to commit the murder of  the               deceased  Mahamed Yahya did commit his  murder               by   intentionally   causing  his   death   by               assaulting  him by knife and thereby  committed               an  offence punishable under S. 302 read  with               s.  34 of the Indian Penal Code and within  my               cognizance.               In  the alternative you accused no. 4 on  17th               of   April,  1965  at  Bhiwandi  abetted   the               commission of the offence of murder of Mahamed               Yahya  by accused nos.  1 to 3  which  offence               was committed in consequence of your  abetment               and  that  you thereby  committed  an  offence               punishable  under sections 109 and 302 of  the               Indian Penal Code and within my cognizance." The  trial court convicted Mohd.  Taki Haji  Hussein  Momin, accused  no.  1 under s. 302, I.P.C. and  sentenced  him  to imprisonment  for  life.   He was  acquitted  of  the  other charges.   His  three co-accused were acquitted of  all  the charges.  ’Accused no.  1 appealed to the Bombay High  Court against  his conviction whereas the State  appealed  against the  acquittal  of the other three.  The High  Court,  after considering   the  evidence  on  the  record,   upheld   the conviction  of  accused  no.  1 and reversed  the  order  of acquittal  of  the  other three.  Accused nos. 2,  3  and  4 (Chinwa Ca, Ahmed Hessan Momin, Abdul Rahamen Bacchu  Momin, and Nur Mahamed Mahamed Yusef Momin respectively) were  held guilty of the offence under s. 120-B, I.P.C. as also of  the offence under s. 302, read with s. 34, I.P.C. Accused no.  4 was in addition held guilty of the offence under s. 302 read with  s. 109, I.P.C. Accused nos. 2, 3 and 4 were  sentenced to imprisonment for life both under s. 120-B, I.P.C. and  s. 302 read with s. 34, I.P.C. Accused no. 4, appellant in this Court,  was  also separately sentenced to  imprisonment  for life  for the offence under s. 302 read with s. 109,  I.P.C. Incidentally it may be mentioned that Jaitunbi, widow of the deceased Mohd.  Yahya, had also appealed to the Bombay  High Court  challenging the acquittal of accused nos. 2, 3 and  4 on  all  charges and of accused no. 1 on the  charges  other than  that of murder under s. 302, I.P.C. This appeal  which was treated as an application under S. 417(3), Cr.  P.C. was held not to be maintainable. As already indicated, this Court granted special leave  only to the appellant who was accused no. 4 in the trial court. Before   narrating  the  prosecution  story  the  inter   se relationship  of the accused persons may be  stated.   Abdul Rehman  Bacchu Momin. accused no. 3, is the husband  of  the sister of the appellant Noor Mohammed’s wife.  Chinwa  alias Ahmed Hessan L11 Sup. CI/70-9 122 Momin,  accused no. 2, is the brother of Kallu, who  is  the son-in-law  of  the appellant, accused no. 4.  Mohd.   Taki,

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accused  no. 1, is the servant of Kallu.  All these  persons are  the residents of the same place and the deceased  Mohd. Yahya was a close neighbour of the appellant.  According  to the  prosecution there were constant disputes  between  the, appellant and the deceased over the right of passage and the right  to tap water, and it is not disputed that both  sides had made reports and counter-reports with the police against each  other.   The climax reached on April 16, 1965  in  the morning at 7 O’ clock.  On that day Mohd.  Yahya, when going out of his house, found that there was a heap of earth and a cot  belonging to the appellant obstructing his way.  A  cow belonging to the appellant was also standing in the passage. In order to clear his way the deceased picked up a stone and hurled it at the cow.  This offended the appellant and he in retaliation  threw a glass which he was holding towards  the deceased  and also abused him.  The deceased  reported  this incident to the police station.  The appellant also went  to the police station and made a counter-complaint against  the deceased.  When the deceased :and the appellant had gone  to the  police  station the two wives of the  appellant  abused Jaitunbi,  wife  of  the  deceased,  with  the  result  that Jaitunbi also went to the police.station to lodge a  report. But  this  report  was not recorded.  A  little  later,  the wives,  sisters and children of the appellant  again  abused Jaitunbi  and  pelted stones at her.  Jaitunbi went  to  the police  station again to lodge a complaint, the same day  at about  10 a.m. When the deceased was lying on a cot  in  his house  the  appellant came up to the door  of  the  former’s house asking him to get down.  On enquiry by the deceased as to  why  he should get down the appellant  replied  that  he would  serve the deceased with his last tea.  At  that  time the  appellant  was  accompanied by  four  or  five  persons including Chinwa, accused no. 2. It is said that all of them abused the decreased.  Chinwa, accused no., 2, held a  knife in  his hand which he is stated to have opened  by  pressing the  button  and  as he tried- to enter  the  house  of  the deceased, the latter’s daughter, Noorjahan, went by the back door to the police station to lodge a complaint.  This  part of the story is not admitted by the accused.  On Noorjahan’s complaint  the  police came to the spot in a van  and  after interrogating the persons present the police party took with them  accused nos. 2 and 3. The appellant is stated to  have offered to reach the police station himself a little later. In view of these incidents Jaitunbi apparently felt somewhat frightened  and advised her husband, deceased Mohd.   Yahya, to go to Bombay to avoid further clashes with the appellant. Mohd.   Yahya,  acting on his wife’s advice,  went  away  to Bombay but 123 returned on the evening of April 17, 1965 bringing with  him some  female guests.  In those days an Urus was  being  held near Par Naka and it appears that it was to attend this Urus that  the female guests came with him.  Seeing Mohd.   Yahya back from Bombay, the appellant asked his nephew Latif,  who was  sleeping on a cot outside the house, to go  in,  loudly uttering  that a dead body was to be kept on that cot.   The deceased  who had reached home at about 9.30 P.M.  a  little later  went  out to a pan shop near the Navyug  Hotel.   The deceased  accompained by two unidentified  persons  followed him.  Soon after, Mohd.  Yahya was stabbed with a knife  and this   news  reached  his  house.   At  the  Par  Naka   two constables,  Bhika Bahiram and Suvamasing, who were on  duty in connection with the Urus, on learning of some disturbance near the Navyug Hotel and noticing some commotion, proceeded to  the  lane  where a crowd had  collected.   On  the  way,

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accused no. 3 told them that nothing untoward had  happened; but  the two constables nevertheless proceeded  further  and reached  the  spot where Mohd.  Yahya was lying  in  injured condition.  Someone from the upper storey of a house  nearby shouted  that the assailants were running  away.   Constable Bhika  Behiram  asked Suvarnasing to attend to  the  injured person  and  he  himself chased the two  persons  trying  to escape.   He  caught Mohd.  Taki, accused no. 1, in  a  lane near  the municipal office.  The other person who could  not be caught was identified by Bhika Bahiram as Chinwa, accused no.  2, who was known to him.  Suvamasing in the mean  time, feeling that Bhika Bahiram would need his help also followed him  and  found him grappling’ with Mohd.  Taki.   Both  the constables over-powered Mohd.  Taki, who had a knife in  his pocket and whose clothes were bloodstained.  Mohd.  Taki was brought  back  to  the place where Mohd.   Yahya  was  lying injured.   Mohd.   Yahya  was taken to  the  hospital  in  a bullock cart but he expired soon thereafter.  In the report’ lodged by constable Bhika Bahiram, the names of accused nos. 1 and 2 were mentioned and accused no. 3 was described as an old man with moustaches, wearing a lungi.  The appellant was not  arrested, though his statement was recorded during  the investigation  on  April,  19, 1965.   He  appears  to  have absconded soon thereafter and was arrested on June 18, 1965. The  case against the appellant is to be considered  in  the background  of  the order of conviction  against  the  other three  co-accused which has become final, this Court  having declined special leave against their conviction. The  High Court, on a consideration of the entire  evidence, came  to the conclusion that all the accused (nos. 1  to  4) had  hatched  a plan to commit the murder  of  Mohd.   Yahya after his return from Bombay and it was in pursuance of that conspiracy 124 that  he was murdered on the night of April 17,  1965.   The appellant,  along with accused nos. 2 and 3, was  also  held guilty of an offence under S. 302 read with S. 34, I.P.C. He was further held guilty of an offence under s. 302 read with S.  109,  I.P.C.  The appellants’ conviction  on  all  these counts is challenged in this Court. So  far  as  S. 34, I.P.C. is  concerned,  it  embodies  the principle of joint liability in the doing of a criminal act, the  essence  of that liability ’being the  existence  of  a common  intention.  Participation in the commission  of  the offence  in furtherance of the common intention invites  its application.   Section 109, I.P.C. on the other hand may  be attracted  even  if  the abettor is  not  present  when  the offence abetted is committed provided that he has instigated the  commission  of the offence or has engaged with  one  or more other persons in a conspiracy to commit an offence  and pursuant  to  that conspiracy some act or  illegal  omission takes place or has intentionally aided the commission of  an offence  by  an  act or illegal omission.   Turning  to  the charge under s. 120-B, I.P.C. criminal conspiracy was made a substantive  offence in 1913 by the introduction of  Chapter V-A   in  the  Indian  Penal  Code.    Criminal   conspiracy postulates  an agreement between two or more persons to  do, or  cause to be done an illegal act or an act which  is  not illegal,  by illegal means.  It differs from other  offences in that mere agreement is made an offence even if no step is taken  to carry out that agreement.  Though there  is  close association  of conspiracy with incitement and abetment  the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated  by s.  107,  I.P.C.  A  conspiracy  from  its  very  nature  is

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generally  hatched in secret.  It is,  therefore,  extremely rare  that  direct evidence in proof of  conspiracy  can  be forthcoming  from  wholly disinterested,  quarters  or  from utter   strangers.   But,  like  other  offences,   criminal conspiracy   can  be  proved  by  circumstantial   evidence. Indeed,  in  most  cases  proof  of  conspiracy  is  largely inferential  though the inference, must be founded on  solid facts.    Surrounding  circumstances  and   antecedent   and subsequent conduct, among other factors, constitute relevant material.   In  fact because of the difficulties  in  having direct  evidence  of criminal  conspiracy,  once  reasonable ground is shown for believing that two or more persons  have conspired to commit an offence then anything done by  anyone of  them  in reference to their common intention  after  the same  is  entertained  becomes,  according  to  the  law  of evidence,  relevant  for  proving both  conspiracy  and  the offences  committed pursuant thereto.  In the  present  case the High Court, after referring to the evidence of Laxmibai, (P.W. 7) and Hari Chavan (P.W. 13) (whom 125 that court expressly described as independent witnesses) and also of Murlidhar (P.W. 12), expressed its opinion in  these words               "All  this evidence would show that  at  least               since the 16th of April, 1965 the accused nos.               2,  3,  and 4 were acting in concert  and  had               something common in their mind.  It would also               show the presence of the accused no. 2 with  a               knife, at the incident of the 16th April, 1965               and  his  threatening the  deceased  with  the               knife  and  the  acts and words  used  by  the               accused  no.  4 Mohammad Noora  inspiring  the               accused no. 2 and some other persons who  were               with him to beat and kill Mohammad Yahya,  the               subsequent  utterances  of the accused  no.  4               when the deceased returned from Bombay on  the               night   of  the  17th  of  April,  1965,   the               following  of the deceased Mohammad  Yahya  by               the  accused no. 4 alongwith two persons  when               Mohammad  Yahya  went out to have a  pan,  the               death of Mohammad Yahya soon thereafter,  then               running of the four persons from the scene  of               the  offence the accused no. 3 misleading  the               police constable with respect to the incident,               the  accused nos.  1 and 2 running  away  from               the  scene of the offence eluding  the  police               constables,  the  accused no. 1  being  caught               after some struggle near the Municipal  Office               and found with his clothes stained with  blood               and  having a knife in his shirt  pocket,  all               these  circumstances,  taken  together,  would               show  that the accused nos. 1 to 4  must  have               met previously before causing of the  injuries               to  deceased and must have hatched out a  plan               of  causing  the  death  of  the  deceased  or               causing  at  least grievous  injuries  to  the               deceased.   Otherwise the presence of all  the               four accused near the scene of the offence  at               the  time  the  incident  occurred  cannot  be               satisfactorily  explained.  The accused no.  4               had known that the deceased had returned  from               Bombay  and  the ominous words he  used  while                             asking  his nephew Lateef to get down from  the               cot  would suggest that he had still  in  mind

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             that idea of doing away with the deceased  and               must  have collected the other  colleagues  of               his to carry out the plan which must have been               hatched  out  prior  to  the  incident.   That               inference  can  reasonably be drawn  from  the               circumstances  established in the case and  it               is  in  pursuance of that pre-planning  to  do               away  with the deceased, all the four  accused               must  have followed the deceased when he  went               out that night and the deceased was stabbed by               at least some of these accused persons." The High Court also believed the evidence of Noorjehan (P.W. 11)  and Jaitunbi, (P.  W. 5).  In its opinion though  these two 126 witnesses  were,  to  a  certain  extent,  interested  their evidence appeared to it to be natural and its tenor did  not show that they were deposing falsely.  On a consideration of the  entire material on the record the High Court felt  that all  the  four accused persons must have hatched a  plan  to commit  the  murder of Mohd.  Yahya after  his  return  from Bombay and it was in pursuance of this conspiracy that Mohd. Yahya  was  murdered on the night of April  17,  1965.   The court  took  into account the facts that accused no.  1  was caught  after  some  chase near  the  scene  of  occurrence, accused no. 2 was identified though he made good his escape, accused no. 3, who was also identified by description, tried to mislead the police constables, and that accused no. 4 was seen following the deceased just before the murder with  two or  three persons.  On this material the High  Court  upheld the appellant’s conviction. Under  Art.  136  of the Constitution this  Court  does  not normally  proceed  to review and appraise the  evidence  for itself and the conclusions of the High Court on questions of fact on appreciation of evidence are considered to be final. This is so even if this Court were to feel that a  different view  of the evidence is possible.  But in this case, as  it was  represented  that the evidence on the record  does  not support the conclusion of the High Court and that grave  and substantial  injustice had been caused, we undertook  to  go into  the  evidence, with the help of the  counsel  for  the parties,  to  satisfy ourselves if there is  any  sufficient ground  for interference on appeal by special  leave.   Hari Chavan,  (P.W.  13), has deposed that on April 16,  1965  at about  10.30  a.m. the appellant, while  standing  near  the steps  of  Mohd.   Yahya’s  house,  exported  three  of  his companions, one of whom was accused no. 2 who had a knife in his hand, to beat the deceased, the actual words used being, "Beat  him : Kill him : I shall look to  the  consequences". This evidence is corroborated by Laxmibai, (P.W. 7) and both of  these  witnesses have been believed by the  High  Court. Laxmibai  (P.W. .7) actually saw the appellant with the  two others following the deceased about 15 or 20 minutes  before the  murder.   We are unable to find any cogent  ground  for disagreeing with the High Court.  On this evidence not  only animus on the part of the appellant but also instigation  by him  must  be held to be fully established.   This  evidence would also support the charge of criminal conspiracy against the  appellant.  Indeed, the evidence of Jaitunbi  (P.W.  5) and  Noorjehan  (P.W. 1) also shows that  the  appellant  on April  16,  1965 and on the evening Of April  17,  on  Mohd. Yahya’s  return  from  Bombay and a short  time  before  his murder,  openly  gave expression to his strong  feelings  of animosity  against  the deceased which leaves  little  doubt that he was thinking of doing away with Mohd.  Yahya’s life.

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The  admitted strained relations between the  parties  which reached  the climax on April 16, 1965 and the evidence  just discussed, in our opinion, clearly 127 establishes the complicity of the appellant in the murder of the  deceased.  The charges under s. 302 read with  S.  109, I.P.C.  and of conspiracy are thus fully supportable on  the evidence.   In regard to the ’charge under s. 302 read  with s. 34, I.P.C. also Jaitunbi (P.W. 5) has deposed that on the date  of  the occurrence at about 9.30  p.m.  the  appellant asked  his nephew Latif who was sleeping on the cot  outside to go inside the house because a dead body was to be kept on that  cot.   Thereafter it is in the  evidence  of  Laxmibai (P.W.  7),  that the appellant accompanied  by  two  persons followed the deceased when the latter went to the Pan  shop. About  20  minutes later the news of Mohd.   Yahya’s  murder reached  his  house.   From this evidence  it  seems  highly probable  that  at the time of the actual  murder  of  Mohd. Yahya the appellant was either present with the other  three co-accused or was somewhere nearby.  But this evidence  does not  seem to be enough to prove beyond reasonable doubt  his presence  at  the spot in the company of the  other  accused when the murder was actually committed.  For, it may be that after  leaving  the  house he stayed away  and  the  persons actually taking part in the murder were only the other three co-accused.   We  are, therefore, inclined to  give  to  the appellant the benefit of doubt in regard to the charge under s.  302 read with s. 34, I.P.C. This would, however,  be  of little  practical  benefit to the appellant because  he  has already  been  given the lesser sentence.  This  appeal  is, therefore, accepted only to the extent that the  appellant’s conviction  under s. 302 read with s. 34 is set  aside.   In all other respects this appeal fails and is dismissed. R.K.P.S.                       Appeal allowed in part. 128