Supreme Court of India
AIZAZ & ORS.versusSTATE OF U.P.
- Citation
- 2008 INSC 927
- Decided
- 12 August 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the convictions under Sections 302 r/w 34 and 307 r/w 34 are justified as the prosecution proved a common intention and participation, and the eyewitness evidence is reliable.
Summary
The appellants Aizaz and others were convicted for murder and attempt to murder of Ismail under Sections 302 and 307 read with Section 34 of the Indian Penal Code. The trial court’s conviction was affirmed by the High Court, which acquitted one accused (A-4). On appeal, the Supreme Court examined whether Section 34 applied to the accused and whether the prosecution’s eye‑witness testimony was reliable. The Court held that the evidence of the three prosecution witnesses was clear, credible and sufficient to sustain the convictions. It further explained that liability under Section 34 requires a common intention and participation in the criminal act, which was established from the facts. Consequently, the Court dismissed the appeal and upheld the convictions of all accused under Sections 302 r/w 34 and 307 r/w 34.
Issues considered
- Whether Section 34 of the IPC applies to the accused A-2, A-3 and A-4 in the murder/attempt to murder case.
- Whether the testimony of prosecution witnesses PW1, PW2 and PW3 is reliable and sufficient to support conviction.
- Whether a common intention and participation in furtherance of that intention can be inferred from the facts.
- Whether mere presence at the scene without proof of shared design suffices for liability under Section 34.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 307, s. 34, s. 349
Subjects
murderattempt to murdercommon intentionSection 34 IPCparticipationeyewitness testimonyconviction upheld
Judgment
[2008] 12 S.C.R. 13
AIZAZ & ORS. A
v.
STATE OF U.P.
(Criminal Appeal No. 193 of 2005)
AUGUST 12, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
~ SHARMA, JJJ
Penal Code, 1860:
s. 302 rlw s. 34 and s. 307 r/w s. 34 - Prosecution under C
- Of four accused - Eye-witnesses to the occurrence - Motive
established - Conviction of all the accused by trial court -
High Court acquitting one accused and confirming convic-
tion of others - On appeal, held: Conviction justified - Evi-
dence of prosecution witnesses are reliable. D
s. 34 - Common intention - Applicability of - Held: Li-
ability under the provision is attracted when there is participa-
tion in a criminal act in furtherance of common intention -
Participation need not be physical - Mere presence at the E
scene of occurrence would not attract the provision - Com-
mon intention must be proved - Though common intention
may develop on the spot, it must be anterior in point of time to
the commission of offence showing pre-arranged plan and
prior concert - Common intention is distinct from similar in-
tention. F
Words and Phrases - 'Common intention' and 'Further-
ance_' - Meaning of in the context of s. 34 /PC.
The three appellants-accused alongwith another co-
. accused faced trial for murder and attempt to murder of G
one person. The motive for the alleged act was that the
deceased and the appellant were on inimical terms as the
deceased was doing pairvi in a criminal case against one
of the accused. The occurrence was seen by the eye-wit-
13 H
14 SUPREME COURT REPORTS [2008] 12 S.C.R.
A nesses. Trial Court convicted all the four accused u/s 302 ~
r/w s. 34 and u/s. 307 r/w s. 34 IPC. High Court acquitted
A-4 while upheld the conviction of others.
In appeal to this court appellants contended interalia
thats. 34 IPC has no application so far A-2, A-3 are is con-
B cerned.
Dismissing the appeal, the Court
HELD: 1. In view of the factual scenario in the back-
drop of the principles of law, the appeal is sans merit. The
C 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 cre-
dence and appear to be truthful. Nothing infirm could be
pointed out to warrant rejection of the evidence. There-
D fore the trial Court and High Court were justified in plac-
ing reliance on the evidence of PWs. 1, 2 & 3. [Paras 5
and 8] [22,D; 19,E-F] -...,..._
2.1 Leading feature of Section 349 PC is the element
E of participation in action. The essence of liability under
this Section. is the existence of a common intention ani-
mating the offenders and the participation in a criminal
act in furtherance of the common intention. The essence
is simultaneous consensus of the minds of persons par-
ticipating in the criminal action to bring about a particular
F result. [Para 6] [20,C-D]
:r
Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu
AIR 1976 SC 2027 - referred to.
2:2 The participation need not in all cases-be by
G physical presence. In offences involving physical vio-
.lence, 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
H presence at the scene of offence of the offender sought
AIZAZ & ORS. v. STATE OF U.P. 15
to be rendered liable under this Section is not one of the A
conditions of its applicability in every case. Before a man
can be held liable for acts done by another, under the pro-
visions 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 B
-""'"' liable had participated in some manner in the act consti-
tuting the offence. Unless common intention and partici-
pation are both present, this Section cannot apply. [Para
6] [20, D-E]
2.3 'Common intention' implies pre-arranged plan and c
acting in concert pursuant to the pre-arranged plan. Un-
der this Section a pre-concert in the sense of a distinct pre-
vious 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 refer- D
ence to the facts of the case and circumstances of the situ-
ation. Though common intention may develop on the spot,
it must, however, be anterior in point of time to the com-
mission of offence showing a pre-arranged plan and prior
concert. Care must be taken not to confuse same or simi- E
lar intention with common intention; the partition which
divides their bonds is often very thin, nevertheless the dis-
tinction is real and substantial, and if overlooked will re-
suit in miscarriage of justice. [Para 7] [20,G-H; 21.A-C]
~ Amrit Singh and Ors. v. State of Punjab 1972 Crl.L.J. F
465 SC - relied on.
Krishna Govind Patil v. State of Maharashtra AIR 1963
SC 1413 - referred to.
2.4 To constitute common intention, it is necessary G
.A that intention of each one of the offenders be known to
the rest of them and shared by them. The prosecution
must lead evidence of facts, circumstances and conduct
of the accused from which their common intention can
be safely gathered. The totality of the circumstances must H
16 SUPREME COURT REPORTS [2008] 12 S.C.R.
A 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 de-
cided keeping in view of the facts involved. Whether an
B act is in furtherance of the common intention is an inci-
dent of fact and not of law. Mere presence of a person at
the time of commission of an offence by his confeder-
ates is not, in itself sufficient to bring his case within the
purview of Section 34, unless community of designs is
c proved against him [Para 7] [21,C,D,F-G; H; 22,A]
Magsogdan and Ors. v. State of UP AIR 1988 SC 126;
Bhaba Nanda Barma and Ors. v. The State of Assam AIR 1977
SC 2252 - relied on.
Ma/khan and Anr. v. State of Uttar Pradesh AIR 1975 SC
0
12; Shankar/al Kacharabhai and Ors. v. The State of Gujarat
AIR 1965 SC 1260 - referred to.
Oxford English Dictionary; 'Russel on Crime' 12th Edn.
Vol.I pp.48.7 - referred to.
E Case Law Reference
AIR 1976 SC 2027 Referred to Para 6
1972 Crl.L.J. 465 SC Relied on Para 7
F AIR 1977 SC 2252 Relied on Para 7
AIR 1988 SC 126 Relied on Para 7
AIR 1963 SC 1413 Referred to Para 7
AIR 1965 SC 1260 Referred to Para 7
G
AIR 1975 SC 12 Referred to Para 7
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 193 of 2005
From the final Judgment and Order dated 24.11.2003 of
H
18 SUPREME COURT REPORTS [2008] 12 S.C.R.
A In lkla Rasoolpur, there is a school, namely, Deni lslami
Madarsa. A committee consisting of villagers of lkla Rasoolpur
*
and village Khanpur used to manage the affairs of the school.
The deceased and the informant were members of the com-
mittee. There was some dispute regarding the post of Trea-
B surer. Therefore, a meeting was to take place on 4.11.1979 in
village Siyal. The appellants as well as the villagers of lkla
-;--
Rasoolpur knew about the said meeting. On the date of occur-
rence, i.e. 4.11.1979 the deceased Ismail and informant Bashir
Mohammad started from village lkla Rasoolpur for attending
the meeting on a motor cycle. The deceased was driving the
G. 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 very time, all the four accused per-
sons emerged from the field of Prakash. Appellants Aizaz,
D Ahmad Hasan and Jan Alam who were armed with country made
pistols fired towards the informant and the deceased on exhor- __....
tation of lmlak. lmlak was armed with spear. The gun shot did
n"ofhit either the deceased or the informant. However, the de-
ceased became panicky and motor cycle fell down on the road.
E· The deceased left the motor cycle and his chappal and ran from
the field of Khairati towards the village. All the four accused per-
sons chased him. Informant, Bashir Mohammad also ran to-
wa'rds 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
F; pushed him to the ground, while appellant Aizaz fired at the de- ,.._
ceased.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 south-
eq1.direction. Ismail died instantaneously and blood had also
G, fallen.at the place. Bashir Mohammad prepared a written re-
por:t atthe place of occurrence. He went to the police station 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
th~ place of pccurrence is three kilometers. FIR was registered
H and investigation was undertaken.
AIZAZ & ORS. v. STATE OF U.P. 19
[DR. ARIJIT PASAYAT, J.]
~
After completion of the investigation charge sheet was filed A
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 occur-
rence. The evidence of PWs 1, 2 & 3 according to them did not
inspire confidence. In any event, it was submitted that Section B
,-1
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 inad-
equate so far as A4 is concerned, but confirmed the conviction c
so far as the appellants are concerned.
3. In support of the appeal, it is submitted that the occur-
rence essentially took part in two stages. Even if there was any
animosity between A 1 and the deceased, A2 and A3 had noth-
ing to do with him. Additionally in the second part also there D
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. E
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 F
+ 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 com- G
;
,). mon thing jointly, it is just the same as if each of them had done
it individually. It is a well recognized canon of criminal jurispru-
dence that the Courts cannot distinguish between co-conspira-
tors, 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 H
20 SUPREME COURT REPORTS [2008] 12 S.C.R.
A purpose to execute a common object each and every person
becomes responsible for the act of each and every other in, ex-
ecution and furtherance of their common purpose; as the pur-
pose is common, so must be the responsibility. All are guilty of
the principal offence, not of abetment only. In a combination of
B this kind a mortal stroke, though given by one of the parties, is
d~e~ed in the eye of law to have been giveri by every indi-
vidual present and abetting. But a parfy 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
c 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 participa-
tion in a criminal act in furtherance of the common intention.
·The essence is simultaneous consensus of the minds of per-
D sons participating in the criminal action to bring_ about a par-
ticular 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 physi-
cal violence, normally presence at the scene of offence may be
necessary, but such is not the case in respect of other offences
E 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 applicabil-
ity in every case. Before a man can be held liable for acts done
F by another, under the provisions of this Section, it must be es-
tablished 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 partici-
G pation are both present, this Section cannot apply.
7. 'Common intention' implies pre-arranged plan and act:-
ing 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
H
AIZAZ & ORS. v. STATE OF U.P. 21
[DR. ARIJIT PASAYAT, J.]
~
a particular result may well develop on the spot as between a 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 B
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 c
thin, nevertheless the distinction is real and substantial, and if
overlooked will result in miscarriage of justice. To constitute com-
man 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 prove even the intention of an individual
D
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 E
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 th~ case in hand.
The totality of the circumstances must be taken into consider-
-~ ation in arriving at a conclusion whether the accused had a com- F
man 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 G
) State of Assam (AIR 1977 SC 2252) it was observed that pros-
ecution must prove facts to justify an inference that all partici-
pants of the acts had shared a 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 comm is- H
22 SUPREME COURT REPORTS [2008) 12 S.C.R.
A sion of an offence by his confederates is not, in itself sufficient
to bring his case within the purview of Section 34, unless com-
munity of designs is proved against him (See Ma/khan and
Anr. v. State of UttarPradesh (AIR 1975 SC 12). In the Oxford
English Dictionary, the word "furtherance" is defined as 'action
B 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 fur-
therance of the ultimate felony if it is a step intentionally taken,
for the purpose of effecting that felony. (Russel on Crime 12th
C 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 promo-
tion'.
8. When the factual scenario is analysed in the backdrop
D of the principles of law set out above, the inevitable conclusion
is that the appeal is sans merit, deserves dismissal, which we
direct.
K.K.T. Appeal dismissed.
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