SYED YOUSUF HUSSAINversusSTATE OF ANDHRA PRADESH

                       [2013) 2 S.C.R. 528


A                   SYED YOUSUF HUSSAIN
                                 v.
                 STATE OF ANDHRA PRADESH
                (Criminal Appeal No. 539 of 2013)
                          APRIL 05, 2013
B
      [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        PREVENTION OF CORRUPTION ACT, 1988:

c      ss. 7 and 13(1)(d) read with s.13(2) of the Act, read with
  s. 34 /PC - Demanding and accepting of illegal gratification -
  Conviction of two accused by courts below - Plea of appellant
  that he did not demand nor did he receive the amount - Held:
  It has been established by the evidence on record that both
D the accused persons were on duty at the relevant time and
  place, the vehicle was intercepted, tainted currency notes were
  recovered from co-accused, documents were returned back
  to complainant and no case for any traffic violation was
  registered - Conclusion arrived at by trial court that the
E appellant was involved in commission of the crime, as
  affirmed by the High Court cannot be found fault with - Penal
  Code, 1860 - s.34.

       The appellant and A-2, who were members of Traffic
  Police, were prosecuted for demanding and accepting
F illegal gratification. The case of the prosecution was that
  on 4.1.1994 the vehicle driven by PW-2 was intercepted
  by the appellant and A-2. The appellant took the
  documents of the vehicle. A demand for Rs.100 was
  made to return the documents and not to book any case
G for traffic violations. PW-2 made a complaint. A trap was
  laid. A-2 accepted the bribe in presence of the appellant
  and returned the documents. On signal being given, the
  trap party reached the place and seized the amount from
  A-2. The trial court convicted both the accused persons
H                               528
  SYED YOUSUF HUSSAIN v. STATE OF ANDHRA                 529
                PRADESH

u/ss 7 and 13(1)(d) read with s.13(2) of the Prevention of      A
Corruption Act, 1988 and s. 34 IPC and sentenced each
of them to imprisonment for 1 year u/s 7 and 2 years u/s
13(1 )(d) read with s.13(2) of the Act. The High Court
affirmed the conviction but reduced the sentence to six
months and one year respectively. The SLP of A-2 was            B
dismissed.

   In the instant appeal, it was contended for the
appellant that the prosecution had failed to establish the
common intention.                                               c_
    Dismissing the appeal, the Court

     HELD: On a careful appreciation of the evidence,
certain aspects are absolutely clear, namely, (i)
interception of the vehicle at the instance of the appellant,   D
(ii) the presence of the appellant at the place of
occurrence along with A-2 (iii) the direction given by the
appellant to PW~2 to contact A-2 who was standing
nearby (iv) his presence at the police station in the central
room when PW-2 went to meet A-2, (v) recovery of tainted        E
currency from Aft2; (vi) delivery of docu.ments of the
vehicle; and eventually, (vii) non-registration of any case
for traffic violation against Pw-2: The conclusion arrived
at by the trial Judge which has been concurred with by
the High C.ourt that the" appellant was involved in the         F
commission of the crime, cannot be found fault with.
[para 15] (538-A-D]

     Mohan Singh v. State of Punjab 1962 Suppl. SeR 848
=AIR 1963 SC 174; Suresh and Another v. State of U.P. 2001
( 2) seR 263 = (2001) 3 sec 673; Lal/an Rai and Others v.       G
State of Bihar 2002 (4) Suppl. SCR 188 = 2003 (1) sec 268;
Rotash v. State of Rajasthan 2006 (10) Suppl. SCR 264      =
2006 (12) sec 64. relied on.

                                                                H
    530       SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A       Barendra Kumar Ghosh v. King Emperor AIR 1925 PC
    1; Mahbub Shah v. Emperor AIR 1945 PC 118 • referred to.
                          Case Law Reference:
          AIR 1925 PC 1                 referred to      para 9
B
          AIR 1945 PC 118               referred to      para 10
          1962 Suppl. SCR 848           relied on        para 11
          2001 (2) SCR 263              relied on        para 12
c         2002 (4) Suppl. SCR 188       relied on        para 13
          2006 (10) Suppl. SCR 264 relied on             para 14
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 539 of 2013.
D
        From the Judgment and Order dated 29.02.2012 of the
    High Court of Judicature, Andhra Pradesh at Hyderabad in
    Criminal Appeal No. 466 of 2005.

          Subrat Birla, Subhash Chandra Birla for the Appellant.
E
        D. Mahesh Babu, Mayur R. Shah, Pinaki Shishir for the
    Respondent.


F
                                       .
          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.

        2. The present Appeal by Special Leave is directed
  against the judgment of conviction and order of sentence dated
  29.12.2012 in Criminal Appeal No. 466 of 2005 passed by the
G High Court of Judicature of Andhra Pradesh at Hyderabad
  whereby the Division Bench, while maintaining the conviction
  for the offences punishable under Sections 7 and 13(1 )(d) read
  with Section 13(2) of the Prevention of Corruption Act, 1988
  (for brevity "the Act") read with Section 34, l.P.C. since the
H accused-appellant was convicted along with another accused,
  SYED YOUSUF HUSSAIN v. STATE OF ANDHRA                      531
         PRADESH [DIPAK MISRA, J.]
namely, Mohd. Shafi-Ul-Haq, recorded by the Principal Special         A
Judge for S.P.E. and A.C.B. Cases-cum-IV Additional Chief
Judge, City Civil Court, Hyderabad, in C.C. No. 11 of 1995,
reduced the sentence to that of simple imprisonment for six
months for the offence punishable under Section 7 and to one
year under Section 13(1 )(d) read with Section 13(2) of the Act       B
instead of one year and two years respectively as imposed by
the learned Special Judge with the further stipulation that both
the sentences shall be concurrent.

     3. The facts in a nutshell are that on 4.1.1994, PW-2,
Mohd~ Shareef, a driver in the Cuddapah Transport Company,            C
 Hyderabad was driving a lorry bearing No. AP 04-T-372 in
 Hyderabad near Tadbund and was proceeding towards
 Musheerabad locality via Santoshnagar cross-road, the places
 situated in between Hyderabad-Secunderabad twin cities.
 When the said lorry reached Santoshnagar cross-road, the             D
 accused-appellant (hereinafter referred to as "the accused")
 along with the other accused stopped the vehicle on the pretext
 that the lorry had entered the 'No Entry Zone'. The accused took
 away the documents of the vehicle from the driver, PW-2, and
 all excuses fell on deaf ears and a demand was made for              E
 Rs.100/- towards illegal gratification for return of the documents
 and not to book a case against him. PW-2, who was asked to
 pay the amount by the evening, did not have any intention to
 give the bribe and, accordingly, approached the Deputy
 Superintendent of Police, Hyderabad, PW-6, and lodged a              F
 complaint, Ext. P-15, on 4.1.1994 about 3.45 P.M. and the said
 complaint was registered as F.l.R., Ext. P-16. PW-6 held a pre-
.trap proceeding by securing the presence of four persons
 including one S. Prakash, who has been examined as PW-5
 by the prosecution. As the evening approached, the trap party        G
along with others and PW-2 reached Kamal Talkies about 7.00
P.M. where PW-2 met the accused persons at Chadarghat
Junction. As the story further gets unfurled, PW-2 was asked
by the accused to meet accused No. 2, Mohd. Shafi-Ul-Haq,
who, in turn, directed him to wait at the Traffic Police Station      H
    532.    SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A where the documents of the vehicle were kept. About 7.20 P.M.,
  PW-2 reached the Traffic Police Station and the trap party
  followed him as per the previous arrangement. Accused No. 2
  accepted the bribe amount of Rs.100/- in the presence of the
  present appellant and returned the documents. Thereafter, on
B signal being given, PW-6 along with the trap party reached the
  place, seized the amount from the shirt pocket of accused No.
  2 and completed the other formalities. After completing the
  investigation, chargesheet was laid before the learned Special
  Judge who, on the basis of the materials brought on record,
c framed charges against them on 5.12.1995. The accused
  persons pleaded not guilty and claimed to be tried.

       4. The prosecution, in order to bring home the guilt of the
  accused persons, examined seven witnesses, got sixteen
  documents exhibited and marked eleven material objects. On
D the basis of the evidence brought on record, the learned Special
  Judge came to hold that the money was recovered from
  accused No. 2 and there being no cogent, credible and
  acceptable explanation given by him and regard being had to
  the other circumstances, the presumption as provided under
E Section 20 of the Act was attracted. That apart, the learned
  Special Judge held that there was a consensus as regards the
  demand and acceptance of the money and, therefore, the
  prosecution had brought home the charge against both the
  accused persons and, accordingly, sentenced them as has
F been stated hereinbefore.

       5. On appeals being preferred by the accused persons,
  the High Court took note of the fact that though PW-2, the de
  facto complainant, had resiled from the allegations made in Ext.
G P-15, yet his evidence could not be totally discarded, especially,
  the testimony leading to the trap and recovery. The High Court
  scrutinized the evidence of the said complainant and opined
  that it was clear from the evidence that the money was
  recovered from the accused No. 2 and, therefore, there was
  no reason to discard the genuineness of Ext. P-15 and payment
H
  SYED YOUSUF HUSSAIN v. STATE OF ANDHRA                          533
         PRADESH [DIPAK MISRA, J.]

of the amount to accused No. 2. The learned Judge, as is                  A
demonstrable, has studiedly scanned the evidence of PWs-5
and 6 and found that their evidence is consistent with the
evidence of PW-2 and, therefore, the trial court was justified in
taking aid of Section 20 of the Act. Because of the aforesaid
analysis, it was opined that the prosecution had proved the               B
acceptance of the amount by the accused No. 2. Thereafter,
the High Court has analysed the evidence and recotded a
finding that the accused was very much on the site and had
intercepted the vehicle and taken away the documents of the
vehicle and further was also present in the other room when the           c
transaction took place and, hence, he was involved in the
commission of the offence. Being of this view, it sustained the
conviction and reduced the sentence as mentioned earlier.

     6. We have heard the learned counsel for the parties. It is
submitted by the learned counsel for the appellant that the               D
evidence brought on record by the prosecution is absolutely
sketchy and do not even hazily point out towards the involvement
of the accused. Per contra, learned counsel for the State would
submit with emphasis that the learned trial Judge as well as
the High Court has scrutinized the evidence in detail and                 E
correctly reached the conclusion that the demand and
acceptance was done with his consent. It is urged by him that
he had abetted in the commission of the crime and definitely
had the intention to demand and accept the bribe.
                                                                          F
      7. At the very outset, it is obligatory to state that the Special
Leave Petition (Crl.) No. 5867 of 2012, preferred by the
accused No. 2, has been dismissed by this Court vide order
dated 30.7.2012. Thus, the recovery of the tainted money and
the demand and acceptance of the amount as illegal                        G
gratification which is the sine qua non for constituting an offence
under the Act have been put to rest as far as the accused No.
2, Mohd. Shafi-Ul-Haq, is concerned.

    8. In the present appeal, what is necessary to be dwelled
upon is the involvement of the accused-appellant in the crime             H
    534     SUPREME COURT REPORTS                   [2013) 2 S.C.R.


A   in question. In this regard, we notice that PW-2, though who has
    been declared hostile, has stated in his examination-in-chief at
    one point of time that it was a home guard who had demanded
    the amount, yet later on, he has deposed that when he enquired
    from accused No. 2, he had told him that the documents would
B   be available at the police station and at that time, the accused
    was present. In his cross-examination, he has accepted that
    both the accused persons were present together. We may note
    with profit that the plea taken that currency notes were thrust in
    the pocket of the accused No. 2 has been disbelieved. The
c   High Court, as is evident, has accepted the genuineness of Ext.
    P-15 and the evidence leading to the payment of the amount
    to accused No. 2. After a careful appreciation and analysis of
    the evidence, it has been held by the learned trial Judge that
    the vehicle was intercepted by the accused and the same has
0   been accepted by the High Court. We have bestowed our
    anxious consideration and on a keen scrutiny of the same, we
    find that PW-2 has admitted that the vehicle was intercepted.
    Though he has adroitly introduced the story of a home guard,
    yet the same has not been given any credence and, rightly so,
    by the learned trial Judge on consideration of the totality of the
E
    evidence brought on record. It is worth noting that PW-6, a
    retired Joint Director of ACB, has deposed that the accused
    had demanded a bribe of Rs.100/- for not booking a case for
    traffic violation and, in fact, no case was registered. ft is
    interesting to note that PW-2, the de facto complainant, has
F   stated that when he went to Chadarghat Chowrasta, the
    accused had asked him to contact accused No. 2 who was
    present there. The accused No. 2 asked him to come to
    Yakutpura Police Station as the documents of the vehicle were
    at the police station. He has admitted that the accused was in
G   the central room and the accused No. 2 was in the adjacent
    room at the police station. At this juncture, a reference may be
    made to the testimony of PW-1, who was working as Traffic
    Sub-Inspector during the relevant period. The learned trial
    Judge, on analysis of his evidence, has opined that both the
H   accused persons were to attend the duty at Shaidabad "T"
     SYED YOUSUF HUSSAIN v. STATE OF ANDHRA                  535
            PRADESH [DIPAK MISRA, J.]
Junction, and Shaidabad and Santoshnagar are adjacent to            A
each other. The trial court has referred to Ext. P-12, the order
book of the Traffic Police Station, Yakutpura. It is apt to note
that on behalf of the accused, a question was put in cross-
examination that one Sivarama Krishna, S.I., was in-charge from
Chadarghat to Nalgonda Cross-road on that day, and to nullify       B
the effect of the same, the learned counsel appearing for the
accused, in the course of argument, had sought the indulgence
of the trial court to substitute the name as "Yousuf Hussain",
i.e., the accused. Appreciating the cumulative effect of the
aforesaid evidence, the trial Judge had come to the conclusion      c
that both the accused persons were on duty at the relevant
place at the relevant time and the vehicle was intercepted and
the documents were taken away by the accused and the same
has been accepted by the High Court.

     9. Learned counsel for the appellant has submitted that the    D
prosecution has failed to establish the common intention in the
present case. Both the accused were charged for substantive
offences in aid of Section 34 IPC. Section 34 IPC is intended
to cover a situation wherein the accused persons have done
something with common intention to constitute a criminal act.       E
To get Section 34 attracted, certain conditions precedent are
to be satisfied. The act must have been done by more than one
person and they must have shared a common intention either
by omission or commission in effectuating the crime. It is always
not necessary that every accused must do a separate act to          F
be responsible for the ultimate criminal act. What is required
is that an accused person must share the common intention to
commit the act. In Barendra Kumar Ghosh v. King Emperor1,
it has been held as follows: -

      "Section 34 deals with the doing of separate acts, similar    G
      or diverse, by several persons; if all are done in
      furtherance of a common intention, each person is liable
      for the result of them all, as if he had done them himself,

1.   AIR 1925 PC 1.                                                 H
     536       SUPREME COURT REPORTS                     [2013] 2 S.C.R.

·A         for 'that acr and 'the act' in the latter part of the section must
           include the whole action covered by 'a criminal act' in the
           first part, because they refer to it.

           10. In Mahbub Shah v. Emperor2, it has been held thus:-

B          "Section 34 lays down a principle of joint liability in the
           doing of a criminal act. The section does not say 'the
           common intentions of all' nor does it say 'an intention
           common to all'. Under the section, the essence of that
           liability is to be found in the existence of a common
C          intention animating the accused leading to the doing of a
           criminal act in furtherance of such intention. To invoke the
           aid of Section 34 successfully, it must be shown that the
           criminal act complained against was done by one of the
           accused persons in the furtherance of the common
D          intention of all; if this is shown, then liability for the crime
           may be imposed on any one of the persons in the same
           manner as if the act were done by him alone."

       11. The learned counsel would further submit that there is
  no material on record that the accused persons acted in
E furtherance of common intention to attract the liability in aid of
  Section 34 IPC. The Constitution Bench in Mohan Singh v.
  State of Punjab 3, while dealing with the scope of Section 34
  IPC, has ruled thus: -

F          "Like Section 149, Section 34 also deals with cases of
           constructive criminal liability. It provides that where 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
G          alone. The essential constituent of the vicarious criminal
           liability prescribed by Section 34 is the existence of
           common intention. If the common intention in question

     2.   AIR 1945 PC 118.
H    3.   AIR 1963 SC 174.
     SYED YOUSUF HUSSAIN v. STATE OF ANDHRA                   537
            PRADESH [DIPAK MISRA, J.]
      animates the accused persons and if the said common            A
      intention leads to the commission of the criminal offence
      charged, each of the persons sharing the common intention
      is constructively liable for the criminal act done by one of
      them. Just as the combination of persons sharing the
      same common object is one of the features of an unlawful       B
      assembly, so the existence of a combination of persons
      sharing the same common intention is one of the features
      of Section 34."

     12. In Suresh and Another v. State of U.P. 4, Thomas, J.
opined that to attract Section 34 IPC, two conditions precedent      C
are imperative: -

       "23. Thus to attract Section 34 IPC two postulates are
       indispensable: (1) The criminal act {consisting of a series
       of acts) should have been done, not by one person, but        D
       more than one person. (2) Doing of every such individual
     . act cumulatively resulting in the commission of criminal
       offence should have been in furtherance of the common
       intention of all such persons."
                                                                     E
     13. In La/Ian Rai and Others v. State of Bihat°, relying upon
the dictum laid down in Barendra Kumar Ghosh {supra) and
Mohan Singh {supra), this Court opined that the essence of
Section 34 is simultaneous consensus of the mind of persons
participating in the criminal action to bring about a particular     F
result. It has been stated therein that such consensus can be
developed at the spot, but in any case, such a consensus must
be present in the commission of the crime itself.

      14. In Rotash v. State of Rajasthan 6, it has been opined
that the common intention to commit a crime can be gathered          G
from the totality of the circumstances.

4.   c2001) 3 sec 673.
s. (2003) 1 sec 2ss.
6. (2006) 12 sec 64.                                                 H
    538       SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A          15. In the case at hand, on a careful appreciation of the
  evidence which we have done in the earlier part of our
  decision, certain aspects, namely, (i) interception of the vehicle
  at the instance of the accused, (ii) the presence of the accused
  at the place of occurrence along with accused No. 2, (iii) the
B direction given by the accused to PW-2 to contact accused No.
  2 who was standing nearby at Chadarghat, (iv) his presence
  at the police station in the central room when PW-2 went to
  meet accused No.2, (v) recovery of tainted currency from
  accused No. 2; (vi) delivery of documents of the vehicle; and
c eventually, (vii) non-registration of any case for traffic violation
  against PW-2, are absolutely clear. The conclusion arrived at
  by the learned trial Judge which has been concurred with by
  the High Court that the accused was involved in the commission
  of the crime cannot be found fault with for the said conclusion
  is in consonance with the principles stated in the aforesaid
0
  pronouncements.

           16. Consequently, we do not perceive any flaw in the
  analysis and the ultimate conclusion arrived at by the learned
  trial Judge which has been concurred with by the High Court
E and, accordingly, the appeal, being devoid of merit, stands
  dismissed.

    R.P.                                         Appeal dismissed.