Important pointExhortation by itself is not enough to prove common intention on the part of the accused.

Headnote:Indian Penal Code, 1860—Section 302/34—Acquittal for offence—Sequence of events as contained in First Information Report materially differs from the statement made by prosecution witnesses—FIR does not even contain any statement to the effect that appellant had inflicted any injury with the stick on head of deceased as alleged by prosecution witnesses—Colour of alleged injury on skull was not noted in the report which would have enabled to ascertain time of the injury—In inquest panchnama, no head injury on the dead body had been noted—In First Information Report nothing has been mentioned about appellant’s role as regard his hitting the deceased with a stick on his head—There was a dispute with regard to a transaction of a land/house—In FIR only one overt act is attributed to appellant that is his exhortation ‘maro maro’—No injury was inflicted on decease after the alleged exhortation—Whether such exhortation by itself may give rise to an inference of sharing of common intention—(No).
       Held : The statements of the witnesses, as noticed hereinbefore, vis-a-vis the allegations made in the First Information Report are contradictory and/or inconsistent with each other. Whereas in the First Information Report nothing has been mentioned about the Appellant’s role as regard his hitting the deceased with a stick on his head, even the sequence of events is different from that stated by PW-1 in his deposition before the court. The statements made in the First Information Report in a case of this nature must be given due importance. Admittedly, there was a dispute with regard to a transaction of a land/house. PW-1 categorically stated that the accused persons became agitated only after the Appellant allegedly hit the deceased with a stick and the Accused Nos. 1 and 2 went into their house and came back with knives which stands contradicted by the statement of PW-5 who alleged that both the Appellant and Accused No. 1 were standing by the side of the road with a stick and open knife in their hands. In the First Information Report only one overt act is attributed to the Appellant that is his exhortation “maro .... maro”. Such exhortation by itself may not give rise to an inference of sharing a common intention to cause death of the deceased Siddique and to cause hurt to PW-5. Such exhortation as alleged in the F.I.R. took place only after injuries had been inflicted by the Accused Nos. 1 and 2. No injury was inflicted on the deceased or PW-3 after the alleged exhortation. (Paras 15 to 17)
       The prosecution has also failed to bring any materials on records to show that there had been any pre-concert or pre-arranged plan so as to hold that the Appellant had any common intention to commit the alleged offence. The First Information Report itself suggests that the accused persons became excited all of a sudden. It has also come on records that the Accused No. 3 Bibiben had also sustained injuries. The learned Sessions Judge himself has found that prosecution has failed to prove her involvement in the matter. If the Appellant exhorted after infliction of injuries were completed, he by no means can be held guilty of sharing a common intention with other accused to commit murder of the deceased or cause injuries to PW-3. On the other hand, if he was the first person to cause injury to the deceased by inflicting a blow on his head by a stick, it is wholly unlikely that he would imagine that the Accused Nos. 1 and 2 would go back to their house to bring the knives and inflict injuries to the deceased and PW-3 and, thus, a case of forming common intention at that time must be ruled out. It is, therefore, not a case where a common intention amongst the accused persons can be said to have been existing either from the beginning or was formed at the spur of the moment. Exhortation, furthermore, by itself is not enough to prove common intention on the part of an accused. (Para 18)
       For the reasons aforementioned, we are of the opinion that the it is a fit case where the benefit of doubt should be given to the Appellant herein. (Para 23)

Judgment

S.B. Sinha, J.—The Appellant herein was convicted for commission of an offence punishable under Section 302/34 of the Indian Penal Code (‘IPC’ for short) and had been sentenced to undergo rigorous imprisonment for life as also a fine of Rs. 500/- and in default thereof to undergo additional three months’ simple imprisonment. He was prosecuted along with three others for sharing common intention for causing death of one Siddique Ahmed Patel and causing simple hurt with sharp cut weapon to Yusuf Adam Patel (PW-3).

2. At about 5.45 p.m. on 29.11.1993, the deceased was allegedly going to a mosque for offering prayer (Namaz). When he was passing by the house of the accused persons situated at village Sarod, all the four accused persons were standing there. A quarrel ensued between them, when the deceased Siddique was asked as to why he had entered into a transaction of the house instead of land to which he answered that he had entered into a transaction with his maternal uncle, whereupon the Appellant herein allegedly inflicted a stick blow on his head, as a result of which he fell down. Accused No. 1 Bilal Ahmed Ibrahim Kabha thereafter inflicted a knife blow on his chest. Yusuf Adam Patel tried to intervene and in the process he was also injured; a knife injury on him was caused by the Accused No. 2. The Accused No. 3, the mother of the Appellant herein, was said to have a sickle in her hand. The deceased and the injured were said to have been taken to the referral hospital at Jambusar, where Siddique was declared dead and the injured was asked to go to Baroda Hospital. A First Information Report was lodged in this behalf by one Mehmood Adam Patel. On completion of investigation, a charge-sheet was filed for offences punishable under Section 302 IPC, Section 302 read with Section 34 IPC, Section 324 IPC, Section 324 read with Section 34 IPC and Section 135 of the Bombay Police Act.

3. Before the learned Sessions Judge nine witnesses were examined on behalf of the prosecution. The learned judge while passing a judgment of acquittal in favour of the Accused No. 3, convicted Bilal Ahmed for commission of an offence punishable under Section 302 IPC. The Accused No. 2 Ahmed Ibrahim Kabha was found guilty for commission of offence punishable under Section 302/34 IPC as also under Section 324 IPC, whereas the Appellant herein was found guilty of commission of offence punishable under Section 302/34 IPC, whereagainst an appeal was filed.

4. During the pendency of the appeal, the Accused No. 2 Ahmed Ibrahim Kabha expired and as a result his appeal stood abated. The High Court of Gujarat by reason of the impugned judgment dismissed the appeals preferred by the Appellant as also Bilal Ahmed. The Special Leave Petition filed by Bilal Ahmed appears to have been dismissed by this Court by an order dated 6.2.2004.

5. Mr. K. Radhakrishanan, the learned Senior Counsel appearing on behalf of the Appellant, would take us to the First Information Report as also the depositions of the witnesses pointing out contradictions and inconsistencies contained therein. The learned counsel would contend that even from the Autopsy of Dr. Raghunandan (PW-2) it would appear that he had not noted the colour of the wound and, thus, was not in a position to state the time of the injury with certainty, nor did he note the exact place of skull vault where the injury had occurred. It was argued that the injury allegedly caused by the Appellant herein with a stick on the head of the deceased had not been noticed by the Investigating Officer in the Inquest Panchnama. The learned counsel would, therefore, urge that the prosecution has not been able to prove beyond any reasonable doubt the role played by the Appellant herein in the incident, nor the alleged intention shared by the Appellant and other co-accused for causing the death of the deceased Siddique, can be said to have been proved.

6. Mr. Yashank Adhyaru, learned Senior Counsel appearing on behalf of the S

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2005 Supreme(SC) 169

Important pointExhortation by itself is not enough to prove common intention on the part of the accused.

Cases Referred (5)