IMPORTANT POINT
Common intention can be inferred from the circumstances.

JUDGMENT

Uday Umesh Lalit, J.

1. This appeal arises out of judgment and order dated 24.07.2012 passed by the High Court of Uttarakhand at Nainital allowing Government Appeal No.386 of 2003 and setting aside the order of acquittal passed by the District and Sessions Judge, Haridwar in Sessions Trial No.26 of 2000 insofar as the present appellants are concerned.

2. On 07.09.1999 at about 1.30 pm the complainant Mustafa submitted a written report in Police Station Bhagwanpur, Haridwar to the effect that in the intervening night between 6th and 7th September 1999 he along with his brother Behroj, nephew Wasim and father Ali Hassan were sleeping in the verandah and that in the night at about 1200 hrs. he woke up and saw one Sabbir armed with Palkati, his brother Kabir armed with pharsa and one Naim armed with lathi coming to the verandah. Naim allegedly asked where was Ali Hassan, whereupon Kabir stated that Ali Hassan was sleeping and exhorted that he be killed, after which Sabbir gave a blow by palkati on the neck of Ali Hassan while he was sleeping. Ali Hassan died instantaneously. Upon alarm being raised these three persons ran away and while running they were seen by Farid Akhtar and Taimur.

3. On the basis of the above report Case Crime No.147 of 1999 under Section 302/504 IPC was registered. During the investigation statements of the complainant and other witnesses were recorded. Sabbir, Naim and Kabir were arrested and their statements led to the recovery of palkati and other weapons. The post-mortem on the body of the deceased was conducted by Dr. O.P. Sharma. After completion of investigation Sabbir, Kabir and Naim were charged for having committed the offences under Section 302 read with Section 34 IPC and under Section 504 IPC.

4. The prosecution examined complainant as PW-1, his brother Behroj as PW-2, nephew Wasim as PW-4 and Taimur as PW-3. The earliest version in the form of FIR, which was within few hours of the incident naming all the three accused was reiterated by PW-1 Mustafa and supported by other three eye-witnesses, namely, PWs 2, 3 and 4. However, the trial court was of the view that the fatal blow was dealt by Sabbir and though the other two accused, namely, Kabir and Naim were present at the place of occurrence, they had not participated in the actual assault. The appreciation by the trial court in this respect is quoted hereunder:

“From the depositions of above four witnesses it is clear that accused Kabir was having farsa and accused Nayeem was having lathi in hand, but they have not used both the weapons. It has been stated for Nayeem that he loudly said as where is Ali Hassan, only he has to be seen and Kabir said that Ali Hassan is sleeping here, kill him. If all three had come with the intention to cause murder of Ali Hassan then definitely all three would have caused blows but only Sabbir caused blow by palkati and neck of Ali Hassan cut. In post mortem report also only one injury in neck is stated and it is stated that death occurred due to that. In post mortem report it is told only one incised wound 12 x 7cm x deep backbone, right side of neck which was 3 cm below from right jaw. The margins of wound was clear cut and fourth neck backbone was cut. All vessels and muscles of right side were cut. Apart from this no other injury was found on his body and it is also not case of prosecution that Nayeem and Kabir also caused blows.”

5. The trial court thus convicted Sabbir under Section 302 and sentenced him to undergo rigorous imprisonment for life. The other two accused Naim and Kabir were acquitted of the charges under Section 302 read with Section 34 IPC and Section 504 IPC.

6. The convicted accused Sabbir preferred an appeal against conviction, namely, Criminal Appeal No.285 of 2003 in the High Court of Uttarakhand at Nainital. The High Court affirmed the view taken by the trial court insofar as Sabbir was concerned and dismissed the appeal. Special leave petition arising therefrom was also dismisse