1998 JTR(SC) 1009
1998 AIR(SC) 3243 ; 1998 AIR(SCW) 3165 ; 1998 2 ALD(Cri)(SC) 647 ; 1998 37 AllCriC 696 ; 1998 AllLJ 2329 ; 1999 1 BBCJ(SC) 126 ; 1998 CriLR 674 ; 1998 3 Crimes(SC) 256 ; 1998 CrLJ 4591 ; 1998 2 JCC 238 ; 1998 6 JT 488 ; 1999 2 MWN(Cri) 379 ; 1998 4 RCR(Cri) 438 ; 1998 5 Scale 358 ; 1998 7 SCC 300 ; 1998 SCC(Cri) 1619 ; 1998 KHC 1182 ; 1998 7 Supreme 422
1998(7) Supreme 422
Supreme Court of India
(From Allahabad High Court)
D.P. Wadhwa and S.S. Mohammed Quadri, JJ.
Badruddin -Appellant
versus
State of Uttar Pradesh -Respondent
Criminal Appeal No. 290 of 1990
Decided on 21-9-1998
Counsel for the Parties :
For the Appellant : Naresh Kaushik, Mrs. Lalita Kaushik, Advocates.
For the Respondent : Promod Swarup, Prashant Choudhary and A.S. Pundir, Advocates.
Important Point
From the facts it is difficult to sustain the conclusion that there was common intention between the appellant and other persons to kill the deceased. So appellant’s conviction u/ss. 302/34 IPC is not sustainable.
Act Referred :INDIAN PENAL CODE : S.323, S.34, S.302
(A) The accused were charged under Sections 302/34 and 323/34 of the Indian Penal Code for a murder committed during a group assault. Section 302 IPC prescribes the punishment for murder, while Section 34 IPC addresses acts done by several persons in furtherance of a common intention. Section 323 IPC penalizes voluntarily causing grievous hurt with a dangerous weapon, and its conjunction with Section 34 IPC extends liability to acts performed in furtherance of a shared criminal aim. The case turned on whether the accused, who were armed and present during the assault, had joined with others with a common intention to kill, as distinct from merely participating in a group fight where lethal injuries were inflicted by others with sharp weapons.
(B) The core legal principles applied include the distinction between acts of individuals in a group and attributable common intention, the requirement of direct or circumstantial evidence to prove a shared plan, the inapplicability of Section 302 without proof of pre-arranged or spontaneous common intention, and the separate applicability of Section 323 for causing grievous hurt with a sharp weapon. The court underscored that mere presence and participation in an assault do not attract murder liability without evidence of a unified criminal design.
Facts of the case:
Four accused persons assaulted a deceased individual and three intervening eyewitnesses during an altercation stemming from a property dispute near a mosque. The deceased sustained multiple incised and stab wounds inflicted by a knife and sharp weapons, resulting in death. The accused were armed with lathis, and while one accused was armed with a knife, no overt act of killing was attributed to the appellant directly. The eyewitnesses testified to the nature of the injuries and the distribution of weapons among the accused.
Findings of Court:
The High Court found that the injuries were caused solely by sharpedged weapons and could not have been inflicted by the blunt lathis. It concluded that there was no direct or circumstantial evidence to establish a common intention among the accused to kill the deceased, as the appellant had not assaulted the deceased and had instead struck intervening witnesses. The court confirmed the conviction under Section 323/34 for causing grievous hurt while acquitting the appellant of the murder charges under Section 302/34.
Issues:
Whether the appellant could be held liable for murder under Section 302/34 IPC in the absence of evidence showing a common intention to kill, and whether the convictions under Section 323/34 IPC were sustainable on the facts.
Ratio Decidendi:
Liability for murder under Section 302/34 requires proof of a common intention to commit the unlawful act leading to death, which must be established by direct or circumstantial evidence. In the absence of such evidence, convictions cannot stand. However, convictions under Section 323/34 for causing grievous hurt with a sharp weapon are maintainable if the act is done in furtherance of a common intention, even if the ultimate death is not attributable to that common intention.
Result:
The appeal was allowed. The appellant was acquitted of the murder charges under Sections 302/34 IPC but the conviction and sentence under Section 323/34 IPC were confirmed. As the appellant had already served the relevant sentence, he was directed to be released forthwith unless detained in any other case.
(A) The accused were charged under Sections 302/34 and 323/34 of the Indian Penal Code for a murder committed during a group assault. Section 302 IPC prescribes the punishment for murder, while Section 34 IPC addresses acts done by several persons in furtherance of a common intention. Section 323 IPC penalizes voluntarily causing grievous hurt with a dangerous weapon, and its conjunction with Section 34 IPC extends liability to acts performed in furtherance of a shared criminal aim. The case turned on whether the accused, who were armed and present during the assault, had joined with others with a common intention to kill, as distinct from merely participating in a group fight where lethal injuries were inflicted by others with sharp weapons.
(B) The core legal principles applied include the distinction between acts of individuals in a group and attributable common intention, the requirement of direct or circumstantial evidence to prove a shared plan, the inapplicability of Section 302 without proof of pre-arranged or spontaneous common intention, and the separate applicability of Section 323 for causing grievous hurt with a sharp weapon. The court underscored that mere presence and participation in an assault do not attract murder liability without evidence of a unified criminal design.
Facts of the case:
Four accused persons assaulted a deceased individual and three intervening eyewitnesses during an altercation stemming from a property dispute near a mosque. The deceased sustained multiple incised and stab wounds inflicted by a knife and sharp weapons, resulting in death. The accused were armed with lathis, and while one accused was armed with a knife, no overt act of killing was attributed to the appellant directly. The eyewitnesses testified to the nature of the injuries and the distribution of weapons among the accused.
Findings of Court:
The High Court found that the injuries were caused solely by sharpedged weapons and could not have been inflicted by the blunt lathis. It concluded that there was no direct or circumstantial evidence to establish a common intention among the accused to kill the deceased, as the appellant had not assaulted the deceased and had instead struck intervening witnesses. The court confirmed the conviction under Section 323/34 for causing grievous hurt while acquitting the appellant of the murder charges under Section 302/34.
Issues:
Whether the appellant could be held liable for murder under Section 302/34 IPC in the absence of evidence showing a common intention to kill, and whether the convictions under Section 323/34 IPC were sustainable on the facts.
Ratio Decidendi:
Liability for murder under Section 302/34 requires proof of a common intention to commit the unlawful act leading to death, which must be established by direct or circumstantial evidence. In the absence of such evidence, convictions cannot stand. However, convictions under Section 323/34 for causing grievous hurt with a sharp weapon are maintainable if the act is done in furtherance of a common intention, even if the ultimate death is not attributable to that common intention.
Result:
The appeal was allowed. The appellant was acquitted of the murder charges under Sections 302/34 IPC but the conviction and sentence under Section 323/34 IPC were confirmed. As the appellant had already served the relevant sentence, he was directed to be released forthwith unless detained in any other case.
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, IPC and sentencing him to life imprisonment and rigorous imprisonment for six months respectively for the said offences. The appellant and three others (Nizamuddin, Hafiz and Siddiqui), on their denial of charges, were tried for offences under Sections 302, 302/34 and 323/34, IPC 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.
2. 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. P.W. 1, Mohammad Umar, P.W. 3, Ali Hamza and P.W. 5, Mohammad Hanif are eye witnesses. Their statements before the court show that Nizamuddin dealt blows with knife and Siddiqui dealt blows with lathi, Mohd. Umar, Mohd. Hanif and Ali Hamza tried to intervene but they were attacked with lathis by the appellant and Hafiz. It is thus clear that no overt act in regard to assaulting the deceased is attributed to the appellant. In the FIR also, no overt act is attributed to the appellant.
3. 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 deceased :
“1. Incised wound oblique 2cm x 1/4cm x muscle deep over left arm below parts 6 cm below lap of shoulder.
2. Incised 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 inferior angle of left scapula. Direction of wound from behind forward and medically cutting the muscle and soft tissues. It had also cut pleurae and 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 scapula.” (Quoted from the paper 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.
4. 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 P.W. 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 Nizamuddin dealt blows to him with knife, Siddiqui beat him with lathi. P.Ws. 3 and 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 conclusion 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 assailants to commit the offence, be it pre-arranged or on the spur 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 direct evidence of common intention. There is no case nor evidence of exhortation 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 witnesses. 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 IPC. However, on the facts, we confirm the conviction and sentence under Section 323/34 IPC 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.
(N.K.R.) Appeal allowed.
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