Full Judgment Text
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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.
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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
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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
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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
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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
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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
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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
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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.
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