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IN THE HIGH COURT OF ALLAHABAD
Desai and Beg, JJ.
BASHIR - Appellant
Versus
STATE - Respondents
Criminal Appeal 480 Of 1951
Decided On : 03/19/1953
CRIMINAL LAW - SECTION 302, 323, 447 READ WITH SECTION 34, PENAL CODE - FACT OF THE CASE, FINDING OF THE COURT, ISSUES, RATIO DECIDENDI, FINAL DECISION - INTERPRETATION OF SECTION 34, PENAL CODE - COMMON INTENTION - CRIMINAL ACT - LIABILITY OF CONSPIRATORS - OFFENCE COMMITTED BY CONSPIRATORS - INTENTION OF THE ACTUAL DOER - DISTINCTION BETWEEN COMMON INTENTION AND INTENTION OF THE ACTUAL DOER - PUNISHMENT OF CONSPIRATORS FOR THE CRIMINAL ACT ACTUALLY DONE - APPLICATION OF SECTION 34 TO THE FACTS OF THE CASE - CONVICTION AND SENTENCE OF THE APPELLANT UPHELD - LEAVE FOR APPEAL TO THE SUPREME COURT REFUSED.
Fact of the Case:
The appellant and his three sons were accused of beating and killing Majid. The appellant and his sons had a joint field in the neighbourhood of Majid's field. On the day of the incident, Majid and his son Angan reaped the crops of their field and stored them there. The appellant and his sons were reaping crops of their field at that time. When Angan and Majid went to their field the next morning, they found that some of their crops were missing. They questioned the appellant and his sons about the missing crops, which offended them. The appellant and his sons abused Angan and Majid and rushed at them with lathis and beat them. Angan got two blows with a lathi and stood apart while Majid was struck and knocked down with lathis by the appellant and his sons. The witnesses turned up and the appellant and his sons left off the beating. Majid and Angan were then taken to the police station where within two hours of the occurrence the first information report was lodged by Angan. Majid was taken to the hospital where he died at 11 a.m.
Finding of the Court:
The court found that the appellant and his sons had formed a common intention to assault Majid with lathis and that they had acted in concert to beat him. The court also found that the result of all the acts done by all was the commission of the offence of murder and that all of them were, therefore, responsible for the murder.
Issues: 1. Whether Section 34 of the Penal Code applies to the facts of the case. 2. Whether the appellant and his sons are guilty of the offence of murder under Section 302 of the Penal Code.
Ratio Decidendi: 1. Section 34 of the Penal Code applies when a criminal act is done by several persons in furtherance of the common intention of all. The criminal act is the physical act that has been done, and it must be distinguished from the effect or result or consequence of it. 2. The common intention is the community of purpose or common design or common intent. It is not necessary to find out the exact nature of the common intention in every case. If the common intention was formed by conduct or is to be inferred from conduct, the court can infer only a general outline of the common intention and cannot infer its details. 3. The criminal act done must have been done in furtherance of the common intention. It must be connected with the common intention; it must have been done while, or for the purpose of, executing or carrying out the common intention. 4. If the conditions mentioned in Section 34 are fulfilled, then each of the persons or conspirators is responsible for the whole criminal act done by all of them. If A and B do a criminal act to furtherance of their common intention, each of them is guilty of that offence of which he would have been guilty if he alone had done the whole criminal act. 5. The nature of the offence committed by an accused depends upon the act done by the accused and the effect produced by it and the sole object of Section 34 is to lay down what act will be deemed to be done by the conspirators.
Final Decision: The court maintained the appellant's conviction and sentence and dismissed his appeal. Leave for appeal to the Supreme Court was refused.
( 1 ) THIS is an appeal by Bashir who has been convicted under Section 302, 323 and 447 read with section 34, Penal Code under Section 302, Penal Code he has been sentenced to transportation for life.
( 2 ) THE case against the appellant was very simple, Sardar Khan, Uzair Khan and Wazir Khan were brothers. P. W. Angan is Sardar Khans son, Majid Khan deceased was the son of Uzair khan and Bashir appellant is the son of Wazir Khan. Along with the appellant his three sons ibrahim, Nisar and Hamid were also said to have taken part in the crime but they absconded immediately after the commission of the crime and were not arrested and put on trial. Angan and majid had a joint field in the neighbourhood of the fields of Bashir. On 31-3-1950 Angan and majid reaped the crops of the field and stored them in the field. Bashir and his sons were at that time reaping crops of their field. When next morning Angan and Majid went to their field they found that some of their crops were missing. So they questioned the appellant and his sons who were in their field about the missing crops. This offended the appellant and his sons who abused majid and Angan and rushed at them with lathis and beat them. Angan getting two blows with a lathi stood apart while Majid was struck and knocked down with lathis by the appellant and his sons. The witnesses turned up and the appellant and his sons left off the beating. Majid and angan were then taken to the police station where within two hours of the occurrence the first information report was lodged by Angan. Majid was taken to the hospital where he died at 11 a. M.
( 3 ) THE appellant denied having taken part in the beating and pleaded that he was at home. His defence is that a fight took place between Angan and Majid on one side and his sons on the other.
( 4 ) WALLI Khan, Shan Ahmad, Murli, Badlu, Jangali and Angan examined by the prosecution, supported the prosecution case. They all stated that they had seen Majid being beaten by the appellant and his sons. Walli Khan has a field near the field of Majid and Shafi Ahmad and badlu were working in the field as his labourers. Murli was passing by the field of Majid and jangali was grazing his cattle in the neighbourhood, when the occurrence took place. The statement of Angan is fully corroborated by the first information report made by him at the police station without any delay and also by the injuries found on his person on medical examination. The names of Walli Khan, Shafi Ahmad, Badlu and Murli are mentioned in the report and there is no reason to doubt their presence at the time of the occurrence. All these witnesses are independent, having no reason to favour Angan and Majid or to give false evidence against the appellant and his sons. There are no serious contradictions in the statements made by the witnesses and there is no ground for discarding the evidence of any of them. It is clear from their evidence that Majid and Angan were beaten by the appellant and his sons.
( 5 ) THE appellant examined a doctor to prove that his right fore-arm was fractured. His plea was that he was not in a position to wield a lathi. But the evidence of the doctor does not bear out his plea. His right fore-arm was certainly fractured but it is stated by the doctor that it has movement though not free movement, that the appellant can hold a lathi with his left hand also with the help of the right hand and that he can use a lathi as a weapon with both hands though not with full force. Ail the prosecution witnesses to whom the question was put stated that the appellant used a lathi with both hands. So there is no justification for saying that the appellant could not have wielded a lathi on account of this defect in the right fore-arm. The appellant also examined shanker Lal and Triloki who supported his version by saying that the fight took place with the appellants sons and that the appellant was not present at the time. There are contradictions in the statemen
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