NAIM & ANR Vs. STATE OF UTTARAKHAND

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1565 of 2012, Judgment Date: Nov 21, 2014

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1565 OF 2012




NAIM AND ANOTHER                                           .... Appellants


                                   Versus


STATE OF UTTARAKHAND                                       .... Respondent



                               J U D G M E N T



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.


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."


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 CourtHigh Hi

 affirmed the view taken by the trial court insofar as Sabbir was  concerned

and dismissed the appeal.  Special  leave  petition  arising  therefrom  was

also dismissed by this Court on 08.03.2010 and thus the case against  Sabbir

and his conviction and sentence stood concluded and confirmed.


7.    In the meantime the State, being aggrieved by the order  of  acquittal

insofar as Kabir and Naim are concerned, preferred Government Appeal  No.386

of 2003.  The High Court after appreciating the entire  material  on  record

found the approach  of  the  trial  court  to  be  completely  erroneous  in

granting the benefit to Kabir and Naim.  It  was  observed  that  all  three

accused were armed with deadly weapons and had  entered  the  house  of  the

deceased at 1200 hrs. in the night and that the essence of Section  34  IPC,

namely, consensus of minds of two  or  more  persons  to  participate  in  a

criminal act to bring about a particular  result  was  fully  evident.   The

High Court, therefore, set aside the acquittal of said Kabir  and  Naim  and

convicted them under Section 302 read with  Section  34  IPC  and  sentenced

them to undergo imprisonment for life.


8.    This appeal under Article  134(1)(1)(b)  and  Article  134(2)  of  the

Constitution of India read with Section 379 IPC seeks to challenge the  view

taken by the High Court.


9.    Appearing for the appellants Mr. P.S. Datta,  learned  senior  counsel

submitted that the probability of the occurrence in the manner suggested  by

the prosecution was completely doubtful, that there was delay of two  months

in examining PW-2 Behroj under Section  161  Cr.P.C.,  that  no  independent

witnesses were  examined,  and  that,  in  any  event  of  the  matter,  the

fundamental aspects of Section 34 IPC were completely absent  in  the  case.

The learned senior  counsel  thus  submitted  that  appeal  deserves  to  be

allowed and the accused Kabir and Naim ought to be acquitted of the  charges

leveled against them.  Mr. Prateek Dwivedi, learned counsel,  on  the  other

hand, appearing for the State countered the submissions made  on  behalf  of

the accused-appellants and supported the view taken by the High Court.


10.   In the instant case the FIR lodged by PW-1 within  two  hours  of  the

incident had named all three accused ascribing particular weapons  in  their

hands and also definite role to them.   The  FIR  further  stated  that  the

incident in question was witnessed by Farid and Taimur and that  along  with

the complainant his brother Behroj and nephew Wasim were  also  sleeping  in

the verandah.  The FIR thus in clear terms disclosed not only  the  identity

of the accused but also the role played by them, so also the  names  of  the

persons who  subsequently  were  examined  as  prosecution  witnesses.   The

entire case of the prosecution  insofar  as  the  conviction  of  Sabbir  is

concerned rested on the very same testimony coming from the witnesses  which

case was accepted right upto this Court.  The only discordant note that  was

struck by the trial court  was  on  the  applicability  of  Section  34  IPC

insofar as the role ascribed to and played by  other  two  accused,  namely,

Kabir and Naim.


11.   We must observe that Kabir was armed with pharsa and  Naim  was  armed

with a lathi, that all three accused had entered the house of  the  deceased

and the complainant at midnight in the company of Sabbir who was also  armed

with a sharp cutting weapon.   When  three  persons  separately  armed  with

weapons storm into the house of the victim in the dead of the night,  merely

because only one out of them uses the  weapon  and  gives  the  fatal  blow,

would not absolve the others.  The others may not be required to  use  their

weapons but that by itself does not change the role of  such  other  accused

to that of a mere bye-stander.  The circumstances can show that  the  others

shared the same intention.  In the instant  case  the  common  intention  to

bring about a definite result is evident from the circumstances  on  record.

Additionally, the role of  exhortation  is  also  ascribed  to  the  present

appellants.  In the circumstances, in our considered view,  Section  34  IPC

is definitely attracted and the  High  Court  was  completely  justified  in

setting aside the order of acquittal.  The order  of  acquittal  as  regards

Kabir and Naim was perverse and unwarranted.   Having  thus  considered  the

matter in its independent perspective we are not persuaded to  take  a  view

different from the one which weighed with the High Court.


12.   We, therefore, confirm the judgment and order of the  High  Court  and

dismiss the present criminal appeal.   The  accused,  who  are  in  custody,

shall serve the sentence awarded to them by the High Court.



                                              .............................J.

                                                           (Dipak Misra)


                                              .............................J.

                                                      (Uday Umesh Lalit)

New Delhi,

November 21,   2014

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