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1992 Supreme(Gau) 160
GAUHATI HIGH COURT
U.L.Bhat, D.N.Baruah, JJ.
Sarafat Ali and 4 Others -Appellant
Versus
State of Assam -Respondent
Criminal Appeal No. 15 of 1990
Decided On : 10-12-1992
T.C.Majumdar, M.Singh, A.Ahmed
In order to establish a common intention to commit an offence under section 34 IPC, the prosecution must prove that the accused persons shared a common intention to commit the offence and that they participated in the commission of the offence in furtherance of that common intention.
Headnote:
CRIMINAL LAW - MURDER - SECTION 302 IPC - COMMON INTENTION - SECTION 34 IPC - EVIDENCE ACT - SECTION 154 - FIRST INFORMATION REPORT - DELAY IN LODGING - EFFECT - IDENTIFICATION OF ACCUSED - RELIABILITY - CIRCUMSTANTIAL EVIDENCE - SUFFICIENCY.
Fact of the Case:
Twelve accused persons were charged with murder and causing hurt under sections 302 and 324 IPC read with section 34 IPC. The prosecution alleged that the accused persons, armed with deadly weapons, entered a bus and assaulted a passenger, Abdul Hakim, causing his death. The Sessions Court convicted the accused persons under sections 302 and 324 IPC read with section 34 IPC and sentenced them to life imprisonment.
Finding of the Court:
The High Court held that the prosecution had failed to prove the identity of one of the accused persons, and acquitted him. The High Court also held that the prosecution had failed to prove that the accused persons had caused injuries to the other passengers, and acquitted them of the charge under section 324 IPC. However, the High Court upheld the conviction of the remaining accused persons under section 302 IPC read with section 34 IPC, finding that the evidence established that they had participated in a common intention to cause the death of Abdul Hakim.
Issues: 1. Whether the prosecution had proved the identity of all the accused persons beyond reasonable doubt. 2. Whether the prosecution had proved that the accused persons had caused injuries to the other passengers. 3. Whether the evidence established that the accused persons had participated in a common intention to cause the death of Abdul Hakim.
Ratio Decidendi: 1. The High Court held that the prosecution had failed to prove the identity of one of the accused persons beyond reasonable doubt, as there was no reliable evidence to corroborate the testimony of the sole eyewitness who identified him. 2. The High Court held that the prosecution had failed to prove that the accused persons had caused injuries to the other passengers, as there was no medical evidence to support the allegations. 3. The High Court held that the evidence established that the accused persons had participated in a common intention to cause the death of Abdul Hakim, as they had acted in concert to obstruct the bus, enter the bus armed with deadly weapons, and assault Abdul Hakim, causing fatal injuries.
Final Decision: The High Court acquitted one of the accused persons and acquitted all the accused persons of the charge under section 324 IPC. The High Court upheld the conviction of the remaining accused persons under section 302 IPC read with section 34 IPC.
Accused Nos. 1 to 4 and 6 in Sessions Case No. 6 (NL) of 1988 of the Sessions Court, Lakhimpur, North Lakhimpur have filed this appeal against the judgment dated 20.12.89 of the Sessions Judge convicting them under sections 302 and 324, IPC read with section 34 IPC and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/-with default sentence. Accused Nos. 5 and 7 to U have been acquitted and the acquittal is not challenged by the State.
2. Prosecution case is as follows: On the evening of 22.9.81, State Transport Bus No.2580 was coming from North Lakhimpur to Bihpuria via Fatehpur. PW 11 was the driver and PW 12 was the conductor cf the bus. PW 1 Abdul Sabhan Master, his son, now deceased, Abdul Hakim, PWs 2 to 6, PW 14, PW 15 and others were travelling in the bus. The bus left Fatehpur Bazar and reached a small wooden bridge at Sundarikhal at about 6.45 PM. Entry to the bridge was seen blocked by putting a bamboo across it. On the instruction of the conductor, PW 2 alighted from the bus and pushed back the bamboo and got into the bus. Sixth accused armed with dao and others came to the bridge and sixth accused flourishing the dao replaced the bamboo so as to obstruct the passage. The twelve accused alongwith now deceased Yasin and Jabbar and others all armed with deadly weapon like daos, daggers etc. came to the bus. Some of them opened the driver's door and injured the driver. Others broke open the passengers' door of the bus and entered. Meanwhile Abdul Hakim moved near the seat where his father PW 1 was sitting. Some of the accused stabbed Abdul Hakim with daggers and daos. When PW 1 begged them to spare his son's life, some of them stabbed him with daggers. Thereafter they left the place with their weapons. Abdul Hakim, who received bleeding injuries died inside the bus. PW 11 drove the bus with the dead body and some of the passengers to Bihpuria Police Station. PW 18, Officer-in-charge of Laluk Police Outpost, who was present in the Police Station, was put in-charge of the investigation. PW 1 gave Ext. 1 ejahar on the basis of which a case was registered against 14 persons including the present appellants. PWs 1 and 11, the injured, were sent to local hospital for treatmant. After being treated they returned to the station. PW 18 held inquest on the body and thereafter proceeded to the scene and seized certain articles. Post mortem was conducted by PW 16, Sub-divisional Medical Officer attached to North Lakhimpur Civil Hospital. PW 17, SI of Police also questioned the witnesses. Accused persons were duly arrested. PW 17, on completion of the investigation, laid charge sheet against 14 persons including the appellants, of them Yasin and Jabbar died later.
3. The Sessions Judge framed charges under section 148 and 302 read with section 34 and section 324 read with section 34, IPC against the 12 accuseds. They pleaded not guilty. Prosecution examined 18 witnesses, of them PWs 2 to 4, 12 and 13 were declared hostile Defence did not tender oral evidence. Accused, when questioned by.the Sessions Judge, denied the truth of the prosecution evidence. Sessions Judge held that the charge under section 148, IPC has not been proved, that the complicity of accused Nos. 5 and 7 to 12 has not been proved and found the appellants guilty under sections 302 and 324 IPC read with section 34, IPC.
4. According to the prosecution three persons were injured in the occurrence, namely, Abdul Hakim, who succumbed to the injuries and PWs 1 and 11. There is evidence to show that PW 18, Investigating Officer sent PWs 1 and 11 to a hospital for medical examination. Injury certificates relating to PWs 1 and 11 have not been produced in Court and the doctor who examined or treated them was not cited as a witness.
5. PW 16, Medical Officer attached to North Lakhimpur Civil Hospital conducted autopsy over the dead body of Abdul Hakim. He found on the body nine external injuries above the right clavicle, ab
