Haider Ali v. State

1. The appellant Haider Ali, pursuant to the charge sheet filed in an FIR no. 388/1995, police station Kirti Nagar, by the impugned judgment dated 29.11.1999 stands convicted under Section 302 of Indian Penal Code, 1860 (IPC) for murder of Shanti and under Section 307 of IPC for attempt to murder Lal Chand (PW-8). The aforesaid conviction of the appellant Haider Ali is predicated on Section 34 of IPC to hold that the appellant would be equally guilty and liable for the acts of one Dinesh @ Daboo, as they had shared common intention.

2. By Order of sentence dated 30.11.1999, the appellant has been sentenced to undergo imprisonment for life, pay fine of Rs. 10,000/-, in 2015:DHC:7538-DB default, suffer simple imprisonment of one year for the offence under Section 302 read with 34 of IPC; and rigorous imprisonment of five years, fine of Rs. 5000/-, in default, undergo simple imprisonment for six months for the offence under Section 307 read with 34 of IPC.

3. Learned Amicus Curiae appearing for the appellant has submitted that the appellant is not disputing the fact that Lal Chand (PW-8) had suffered knife injuries or the factum that the deceased Shanti had suffered homicidal death as a result of knife injuries inflicted on them as proved by the MLC of Shanti (Mark Ex.PW-1/A) and Post-mortem report (Mark Ex. PW-15/A). He submits that the evidence implicates Dinesh @ Daboo as the sole perpetrator, and there is no evidence to hold that Haider Ali was vicariously liable for the acts individually attributed to Dinesh @ Daboo for Haider Ali did not share common intention.

4. Criminal Appeal No. 200/2000 filed by the Dinesh @ Daboo, has been decided and application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 filed by Dinesh @ Daboo has been allowed. The contention that Dinesh @ Daboo was a minor on the date of occurrence has been upheld.

5. Prosecution has not proved the MLC of Lal Chand (PW-8). However, the said Lal Chand in his examination in chief has stated that he was sent to the hospital from the spot i.e. bus stand along with the deceased Shanti where he was medically examined and discharged. It is apparent that he did not suffer serious or grievous injuries.

6. Lal Chand (PW-8) in his examination-in-chief on the question of occurrence has deposed:- “.......On 12.10.1995 at about 8.30 PM I was to go to my house and I with Shanti went to bus stop to fetch a bus. I and Shanti were boarding bus route no. 778. When one of the accused present in Court whose names are Dinesh and Haider put his legs in my way as a result of which I tumbled and was about to fall down. I somehow managed to board the bus with Shanti. When I was purchasing tickets both accused present in Court started abusing me. An altercation followed and quarrel took place. Both accused grappled with me. I was saved by other passengers as my co-employers were travelling in the bus. I reached near exit gate. Both accused were get down from the bus on the next stop. Both accused tried to pull me down from the bus when it reached next stop. I managed to remain in the bus then one of the accused gave me knife blow on my neck as a result of which I fell down on the seat. I cannot tell who of the accused had given me knife blows because it was dark at that time. When I fell down, Shanti came in front of me and he was given knife blow by one of the accused in his abdomen. The accused who had given me knife blow had given knife blow to Shanti also. Both accused then started running......”

7. A careful and studied scrutiny of the aforesaid narration would reveal that it consist of three incidents one after the other which took place in the late evening on 12.10.1995. The first incident was at the bus stop, the second inside the bus when abuses were exchanged and lastly at the exit door, when the appellant Haider Ali and Dinesh were de-boarding at the bus. Lal Chand (PW-8) asserts that he had tumbled while standing because Haider Ali or Dinesh had put his leg in his way. Lal Chand (PW-8) has not stated that he knew Haider Ali or Dinesh from before or that they had some reason or cause to deliberately put his or their legs to cause injury or make Lal Chand (PW-8) fall. It appears that Haider Ali, Dinesh and Lal Chand wanted to board a crowded bus. After entering the bus, at the time of purchasing the ticket an altercation took place. As per the statement made by Lal Chand (PW-8), Haider Ali and Dinesh had abused him, grappled followed and Lal Chand (PW-8) was able to save himself with the help of fellow passengers, who were co-workers. Lastly, Dinesh and Haider Ali, while getting down from the bus at the next stop had pulled Lal Chand (PW- 8), but latter had managed to remain inside the bus. At that stage, and suddenly without any warning, one of the accused gave a knife blow on his neck. Lal Chand (PW-8) fell down on the seat. Lal Chand (PW-8) could not initially identify and state whether Haider Ali or Dinesh had given the said knife blow. After Lal Chand (PW-8) had fallen down, Shanti (the deceased) came in front and received a knife blow in his stomach, indicating that the knife blow was perhaps directed towards PW-8, but had injured Shanti (the deceased). As per the examination-in-chief reproduced above one of the accused had given knife blows. Conspicuously, Lal Chand (PW-8) while referring to the acts of the perpetrator when the knife injuries were inflicted, is absolutely silent and mute about the role of the other and how the second person had behaved. Lal Chand (PW-8) when cross-examined by the Additional Public Prosecutor, had identified the person who had given knife blows as Dinesh and not present appellant i.e. Haider Ali. This part of the testimony of Lal Chand (PW-8) reads:- “It is correct that after I was given knife blow I had caught accused Haider Ali. Present in the court. It is correct that accused Dinesh present in the court had given me knife blows and to Shanti. It is correct that when Dinesh was running away he was chased by the police and was caught and brought back to bus stand. It is correct that accused Haider Ali present in court was also arrested by the police at bus stand and then I was sent to Hospital.”

8. Lal Chand (PW-8) has averred that Dinesh had run away from the spot and was arrested after about half an hour because the police had brought his brother to the police station. Haider Ali was arrested by the police at the bus stand i.e. the spot itself. In the testimony of Lal Chand (PW-8), conspicuously and significantly no role or act at the time of physical violent assault is assigned to Haider Ali. Knife blows were inflicted on Lal Chand (PW-8) and the deceased Shanti by Dinesh. It is not asserted or stated that Haider Ali had caught hold of Lal Chand (PW-8) or had pushed Shanti-the deceased or caught hold of Shanti (deceased). No verbal statement at the time of stabbing, before or afterwards is also attributed to Haider Ali. Haider Ali may have had a quarrel, exchanged abusive words or even grappled with Lal Chand (PW-8), but he did not participate actively or otherwise, when the knife blow was given to Lal Chand (PW-8) or to Shanti (deceased). He was not a passive participant. Use of knife and inflicting of blows was all of a sudden and out of the blue in which the perpetrator who had given the blows had taken out and used the knife. The other person i.e. the appellant Haider Ali, in spite of the earlier quarrel or grapple had distanced himself and was not a participant, though present at the spot. Shanti-the deceased, we also record, was not involved in the grapple with the appellant, Dinesh and Lal Chand (PW-8).

9. In Rajesh Govind Jagesha versus State of Maharashtra; (1999) 8 SCC 428, it was observed that for section 34 IPC to apply, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 could be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. Further in every case, it may not be possible to have direct evidence of a common intention and the same may have to be inferred from the facts and circumstances of each case.

10. In Tukaram Ganpat Pandare versus State of Maharashtra; AIR 1974 SC 514, the Supreme Court reiterated that Section 34 lays down the rule of joint responsibility for a criminal act performed by a plurality of persons. Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the “act” is the essence of Section 34. In some cases mere distance from the scene of crime may not exclude the culpability of the offence.

11. Earlier in Ramaswami Ayyangar versus State of T.N., AIR 1976 SC 2027, the Supreme Court has held that Section 34 is to be read along with proceeding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential for the application of Section 34 in case of an offence involving physical violence that the accused charged must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result.

12. Reference on the said aspect can be made to Lal Chand versus Emperor; AIR 1931 Lah 523, wherein, it has been observed:- “Section 34 laying down the constructive and joint liability for acts done in furtherance of common intention has no application to acts committed in the course of sudden quarrel without any common intention amongst the accused.”

13. In Shreekantiah Ramayya Munipalli versus State of Bombay; AIR 1955 SC 287 it was held: “It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

14. Similarly in Rambilas Singh versus State of Bihar; AIR 1989 SC 1593, it is elucidated: “It is true that in order to convict persons vicariously under S. 34 or S. 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.”

15. Section 34 IPC has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in “furtherance of common intention” of the persons who joins in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true precept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say “the common intentions of all” nor does it say “an intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal “act” in furtherance of such intention.