# Faiyaz & Ors. (In Jail) v. State of U.P

- **Citation:** CRIMINAL APPEAL No. 3042 of 1987
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** CRIMINAL APPEAL No. 3042 of 1987
- **Bench:** Arvind Kumar Misra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faiyaz-ors-in-jail-v-state-of-u-p-46457
- **Pages:** 7

## Headnote

Criminal law- Indian Penal Code - Section
302, - Section 302/34 - Appeal against
conviction.

Criminal law- Indian Penal Code -
Section 34 IPC - Common Intention

Held :- All appellants appeared on spot from
sugarcane field possessing country made pistols
and only one shot fired. Pre-concert amongst
appellants
established
by
description
and
manner of incident from the testimony of
witness. All the assailants shared the common
intention to kill the victim. Appellant's claim of
remaining silent on spot- irrelevant.

Appeal rejected. (E-2)

## Text

648 INDIAN LAW REPORTS ALLAHABAD SERIES
I.P.C and Section 4 of Dowry Prohibition
Act beyond any reasonable doubt.

41. The appeal is dismissed.
----------
(2020)03-05ILR A648
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

CRIMINAL APPEAL No. 3042 of 1987

Faiyaz & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Keshav Sahai, Sri Ajay Kumar Pandey

Counsel for the Opposite Party:
A.G.A.

Criminal law- Indian Penal Code - Section
302, - Section 302/34 - Appeal against
conviction.

Criminal law- Indian Penal Code -
Section 34 IPC - Common Intention

Held :- All appellants appeared on spot from
sugarcane field possessing country made pistols
and only one shot fired. Pre-concert amongst
appellants
established
by
description
and
manner of incident from the testimony of
witness. All the assailants shared the common
intention to kill the victim. Appellant's claim of
remaining silent on spot- irrelevant.

Appeal rejected. (E-2)

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.
&
Hon'ble Gautam Chowdhary, J.)

1. By way of the instant criminal
appeal, challenge has been made to the
validity and sustainability of the judgment
and order of conviction dated 21.12.1987
passed by the VII-Additional Sessions
Judge, Meerut, in Sessions Trial No.8 of
1986 (State of U.P. Vs. Faiyaz and others),
under Section 302, 302/34 I.P.C., Police
Station- Kithore, District- Meerut, whereby
all the appellants have been sentenced to
life imprisonment.

2. Heard Sri Ajay Kumar Pandey,
learned counsel for the appellants, Shri
Krishna
Pahal,
learned
Additional
Advocate General assisted by Sri Bhanu
Prakash Singh, learned A.G.A. for the State
and perused the record.

3. Prosecution case is that one
Shaharyab s/o Afsar of village- Jadauda,
P.S.- Kithore, District- Meerut lodged an
F.I.R. at Police Station- Kithore, District-
Meerut on 13.10.1985 at 3:15 p.m. against
accused Faiyaz, Mahfooz, Hasnain and
Tariqat alleging that the informant and his
father Afsar were going to collect fodder
from jungle on 13.10.1985 around 12:00
noon, while they were so proceeding and
reached near the sugarcane filed of Faiyaz.
Suddenly Faiyaz, Mahfooz, Hasnain and
Tariqat, the co-villagers appeared on the
scene from the sugarcane field possessing
country
made
gun
in
their
hands
challenging that they will not spare the
informant side whereupon the informant
and his father got frightened and they tried
to flee away from the scene when Faiyaz
fired with his gun on informant's father due
to which he fell down and the informant
saved himself by fleeing away from the
scene. On hearing the sound of the fire
villagers
Yusuf,
Mahmood,
Muzaffar,
Hisamuddin, Nazar Hussain and Akhtar
arrived on the spot and on seeing these
persons the assailants also secured their
escape and disappeared in the sugarcane
3-5 All. Faiyaz & Ors. Vs. State of U.P.
649
field. Motive imputed in the F.I.R. was one
as some previous altercation/ haggling that
took place between the father of the
informant and the accused side when
Akhlaq wanted to construct the wall whereupon
life threat was extended by the accused. After
the occurrence the co-villagers and the
informant rushed to the spot where the
informant's father fell down then they came to
know that the victim has died. One barrel and
slipper belonging to the accused was also lying
on the spot. This report is Ex. Ka-1. Relevant
entries were made in the concerned check F.I.R.
whereby case was registered at case crime
no.333 of 1985 under section 302 I.P.C. at
Police Station- Kithore, District- Meerut on
aforesaid date and time. The check F.I.R. is Ex.
Ka-3 and the concerned G.D. of the aforesaid
date and time at aforesaid police station is Ex.
Ka-4. Investigation of this case was taken by
Inderdev P.W.-6. He took note of the contents
of the F.I.R. and the concerned general diary
entry and arrived on the spot at around 5:30
p.m. in the jungle of village Jadauda. He
prepared the inquest report on the spot- Ex. Ka5 and apart from that he also prepared relevant
papers. The challan dead body, photo dead
body and letter to C.M.O./R.I. and photo nash
etc. These papers are Ex. Ka-6 to Ka-9. Besides
he also prepared memo of simple and blood
stained clay roll Ex. Ka-12. He also made the
memo of slipper and the barrel found on the
spot Ex. Ka-13. He prepared the site plan Ex.
Ka-14. Besides he also sent the dead body of
the
deceased
Afsar
for
post-mortem
examination to mortuary where P.W.3 Dr. R.
Singh conducted the post-mortem on the
cadaver of the deceased on 14.10.1985 at 11:30
p.m. wherein the following ante-mortem
injuries were noted :-

(i) Guns shot would of entry 1.5 cm x
1 cm x brain cavity deep on back of head 13 cm
behind the right ear. The margins were inverted
and eccohymosed and directing forward.

(ii) Lacerated wound (gun shot
wound of exit) 15 cm x 10 cm x crenial cavity
deep on right side of forehead and upper part of
nose. Cranial cavity open and brain matter
partially absent and communicating to injury
no.1.

4. In the opinion of doctor the cause
of death was shock and haemorrhage as a
result of ante-mortem injury. Post-mortem
report is Ex. Ka-2. The investigation was
completed and charge-sheet Ex. Ka-15 was
submitted.
Subsequently
the
trial
commenced
and
after
hearing
both
prosecution and the accused on point of
charge prima facie ground was found
existing for framing charge under section
302/34 I.P.C. The charge was abjured and
the accused opted for trial.

5. The prosecution produced six
witnesses out of whom P.W.1 Shaharyab,
P.W.2 Yusuf and P.W.4, Hisammuddin-
are witnesses of fact and the rest of the
prosecution witnesses say- Dr. R. Singh is
P.W.3, Ram Saran Singh P.W.5 and the
investigating officer Inderdev P.W.6 are
formal witnesses. Statement of the accused
was recorded under section 313 Cr.P.C.
wherein the accused claimed to have been
falsely implicated on account of enmity. No
evidence whatsoever was led by the
defence. The case was heard on merit and
after evaluating the facts and circumstances
and evidence on record the learned trial
judge passed aforesaid impugned judgment
and order of conviction and sentence dated
21.12.1987, under section 302/34 I.P.C.
and thus sentencing them to imprisonment
for life. Consequently, this appeal.

6. Contention is that the first
information report itself is suggestive of
fact that the informant was not present on
the spot and the natural corollary will be
650 INDIAN LAW REPORTS ALLAHABAD SERIES
that after a blind murder took place and the
informant received the information of the
incident arrived on the spot and in
consultation with the police a false report
was lodged on account of subsisting enmity
suggesting prejudicial bent of mind of the
informant as has emerged in the testimony
of the prosecution witnesses of fact. The
deceased Afsar was having criminal
antecedent
and
was
involved
in
commission of heinous offences. There was
no motive for the present surviving
appellants to have ever indulged in the act
of firing and remaining present on the spot
at the time of the occurrence stated to have
occurred at /around 12:00 noon on
13.10.1985 in the jungle of village Jadauda.
Considering the entire case how can it be
said that the incident took place around
12:00 in the noon and the report was
lodged at 3:15 p.m. at the police station-
Kithore in district- Meerut. The distance
between the place of occurrence and the
police station was stated to be more than 10
kms.

7. The prosecution case is not specific
against the present appellants that they ever
acted
or
reacted
on
the
scene
by
participating in the commission of the
offence and were acting in furtherance of
the common intention of the main accused
Faiyaz. On account of the enmity prejudice
only P.W.1, the informant Shaharyab has
lodged false information with the police.
The point is that for application of common
intention against an accused it would have
to be proved within the four corners of
section 34 I.P.C. that it was also the
common intention of the another coaccused who was present on the spot and
he too interacted to have the plan executed
to a particular end but in this case this
essential ingredient of subsisting common
intention is altogether missing. There is no
specification that all the four accused with
intent to kill Afsar fired from their
respective weapons. Had the prosecution
witness P.W.1, the informant and the son of
the deceased would have been present on
the spot they would have narrated in
particular as to when and in what manner
the shots were fired. But the first
information report is silent about any such
specification of firing. However the case
has been improved in the testimony before
the trial court and the role of firing has
been assigned in the F.I.R. itself to only
one accused Faiyaz whereas the testimony
of P.W.1 is to the magnitude that all fired.
More so, what was the reason that the four
assailants who are claimed to have been
present on the spot all armed with country
made gun will leave the one of the two
persons to escape from the scene so as to
give evidence against the miscreants. This
is particular aspect and a particular
circumstance not properly explained by the
prosecution which naturally gives rise to
fact that P.W.1 Shaharyab was not present
on the spot at the time of the occurrence
and a false case has been cooked up.

8. Regarding the appropriate time of
the alleged occurrence that it in fact took
place around 12:00 noon on 13.10.1985,
the testimony of the doctor witness PW.3
Dr. R. Sing is indicative of the fact that the
death of the victim might have taken place
sometime
in
the
night
intervening
12/13/.10.1985 and the statement is specific
in the cross-examination of the aforesaid
witness.
This
being
the
reasonable
probabilities of the case, how can it be said
with certainty that the occurrence took
place
around
12:00
noon
only
on
13.10.1985. The ''mens rea' as was required
to be proved against the present appellants
qua the main accused Faiyaz has not been
established properly. There is nothing on
3-5 All. Faiyaz & Ors. Vs. State of U.P.
651
the point as to from what distance/ range
the shot was fired. Assuming it to be that
any such occurrence took place even then
the statement of P.W.1 Shaharyab reveals
that at the very particular time when the
shot hit the deceased this witness did not
see that particular occurrence then how can
it be said that the shot fired by Faiyaz hit
the deceased.

9.

Controverting
the
aforesaid
argument learned Additional Advocate
General Shri Krishna Pahal assisted by
learned A.G.A. Shri Bhanu Prakash Singh
have submitted that the case of the
prosecution is well proved under section
302 I.P.C. by virtue of application of
section 34 I.P.C.. Learned counsel also
spelt out section 34 I.P.C. in support of his
claim that in this case the act imputed is
admittedly of criminal nature and the scene
of occurrence is self-explanatory of the
common intention of all the accused. It is
noticeable that the appearance of the
present appellants on the scene is in a
group and all of them are possessing
country made gun and an exhortation was
made on the spot which frightened the
deceased and his son P.W.1 and they tried
to scamper away from the scene however in
the meanwhile fire was opened which hit
the
deceased-
Afsar.
Post-mortem
examination report is indicative of fact that
only one shot was fired. When this
particular aspect was asked by the trial
court itself with P.W.1 then P.W.1
specifically suggested that only one fire
was shot on the spot. However only one
shot completed the task therefore there was
no point in further opening another shot as
no one was impeding his way to execute
the crime. Each and every particular aspect
regarding
the
occurrence,
say-
its
commencement, manner of happening and
its completion has been asked in all niceties
by the defence in the cross-examination of
the informant after strenuous test he
remained intact. Consequently, it cannot be
said that he was not present on the spot and
the prevailing circumstances of this case
are indicative of nothing else than the
criminal bent of mind and the criminal
intent working among all the assailants
present on the spot to execute the plan who
have been stated to be four in numbers.
Learned A.A.G. also urged that there was
no reason for false implication and sparing
the real culprit, may be that there was some
cause for false involvement but that could
not work to the impact that the real culprits
are given a go-bye and only false persons
are named in the F.I.R.. There is no other
person named the F.I.R. nor has anything
adverse
creating
any
doubt
in
the
prosecution story has emerged in the crossexamination of P.W.1 which may render
his testimony unworthy of credit. The case
of the prosecution is proved to the hilt.
Under
circumstances,
conviction
is
justified.

10. We have also considered the rival
submissions. Now in the light of the above,
the core consideration that arises for
adjudication of this appeal relates to fact
whether the prosecution has been able to
establish the charge against the present
appellants and in particular the fact that
P.W.1 the informant was present on the
spot and can it be

11. We can proceed straightway on
the description of the F.I.R.. It proceeds on
to describe that it was 12:00 noon on
13.10.1985 when the informant and the
victim Afsar were proceeding to collect
fodder and as soon as they reached near the
sugarcane field of Faiyaz then Faiyaz,
Mahfooz,
Hasnain
and
Tariqat
(covillagers) all of a sudden appeared on the
652 INDIAN LAW REPORTS ALLAHABAD SERIES
spot emerging out of the sugarcane field
possessing country made gun in their hands
exhorting that no one will be spared
whereupon informant and his father tried to
run away from the scene. In the meanwhile
Faiyaz fired with his gun pointing on the
father of the informant which fire hit him.
He screamed and fell out. On hearing the
noise of the sound of the fire a number of
persons Yusuf, Akhtar Muzaffar and others
arrived
on
the
spot
whereupon
the
assailants secured their escape. Certain
other description has been also given
regarding the point of discontent prevailing
between the sides on account of some
dispute regarding construction of some
wall. Apart from that it has also been
described in the F.I.R. that after that the
informant went up to his father and found
him dead and there was lying some barrel
and slipper scattered on the spot. The report
was lodged on the very same day at 3:15
p.m. at police station- Kithore of district-
Meerut. The written report is Ex. Ka-1 and
on the basis of the same relevant entries
were noted down in the concerned check
F.I.R. Ex. Ka-3 and the concerned G.D. Ex.
Ka-4 and a case was registered against the
accused at case crime no.333/ 1985, under
section 302 I.P.C.. Consequently, the
investigation ensued and it was taken over
by Shri Inderdev Jha- P.W.6 who noted
contents of the F.I.R. and arrived on the
spot around 5:30 p.m. the very same day.
He selected the witnesses for preparation of
the inquest and prepared the inquest report
Ex. Ka-5. Thereafter relevant papers were
also prepared for sending the body for postmortem examination. These papers are Ex.
Ka-6 to Ka-9. Besides he also completed
other formalities and collected the simple
and the blood stained clay from the spot
and prepared memo of the same Ex. Ka-12.
Similarly, he also prepared memo of paper
and barrel Ex. Ka-13. Site plan was also
prepared which is Ex. Ka-14. Thereafter
the investigation was taken over by Shri
Ved Prakash, the second investigating
officer who after recording statement of the
accused filed the charge-sheet which has
been proved by this witness as Ex. Ka-15.

12. That way we can notice that
proper investigation after the lodging of the
F.I.R. culminated into filing of the chargesheet. Contention is that P.W.1 was not
present on the spot and assuming it to be
that he was present, even then the present
surviving appellants have not been imputed
any specific role nor any reactionary role
previous or subsequent imputed so as to
establish that they shared any common
intention to kill Afsar though the fire might
have been caused by main accused Faiyaz.
The contention is that the first informant
was allowed to escape unhurt and no
attempt whatsoever was made to open fire
on him. In that regard we have before us
the testimony of P.W.1. We upon careful
scrutiny of the entire testimony and in
particular the examination-in-chief come
across the fact that the incident as narrated
in the first information report has been
virtually dittoed and on cross-examination
being done various aspects reflecting on
point of involvement of the deceased and
the informant in various criminal cases has
been tried to be brought to the fore but that
had got no relevancy with the description
of the occurrence as has emerged in further
cross-examination as appears on page No.
22 of the paper book, wherein in the first
paragraph on point of the topography of the
place of occurrence each and every
particular relating the incident has been
reasonably connected with the place of
occurrence. All the relevant particulars of
the incident as to what happened when the
offence was being committed and the shot
hit the deceased and where the deceased
3-5 All. Faiyaz & Ors. Vs. State of U.P.
653
fell down has been properly replied and
proved by P.W.1.

13. Contention is that at that very
particular time when the shot hit Afsar, the
informant P.W.1 did not see it. But we
upon scrutiny of testimony of P.W.1 record
our finding that the description of the
occurrence given by P.W.1 is innocuous, in
view of fact that no further crossexamination has been done on the point as
to how he came to know about the fact that
the shot fired by Faiyaz hit Afsar and it was
under these circumstances that the trial
court tried itself to unfold the truth by
asking question to the witness on that point
of occurrence then it transpired that only
one shot was fired on the spot. Now the
natural explanation is that two men are
proceeding together and an offence is
committed against them then it is most
natural that the person under fear of
imminent death would try to flee away
from the scene and will not concentrate on
the victim of the occurrence as to at what
part of the body he has been hit although
there is no cross-examination either general
or specific on this aspect. The entire
episode as described by the prosecution has
been established in the cross-examination
of P.W.1 in its entirety.

14. Now, the claim is that the accused
never participated in the occurrence. That
claim looses significance and goes into
oblivion on account of specific testimony
of P.W.1 regarding presence of the accused
on the spot thus establishing their presence
on the spot. Now the next contention comes
into picture that assuming it to be that they
were present on the spot even then no
action or reaction was made by the present
appellants and no nexus with the intent of
the main accused to execute the plan with
Faiyaz has been reasonably established. On
that count also we may take notice of
contents of section 34 of the Indian Penal
Code which primarily stipulates about any
criminal act being committed by several
persons in furtherance of the common
intention of all, each of such persons shall
be liable for that act in the same manner as
if it were done by him alone. Here, the act
of one becomes act of all though no covert
act done by others but they being present
with weapons in hand profusely establishes
prevalence of sharing of common intention
to commit the crime. That being the dictum
laid down under section 34 I.P.C.. We may
refer
to
the
attendant
facts
and
circumstances of this case on the spot itself.

15. The scenario claimed and proved
in this case appears to be that four persons
are stated to have arrived in a group on the
spot possessing weapons in their respective
hands. Only one shot was fired by one
among the four culprits. Can it be said that
the other assailants present on the spot
never entertained any such animus like the
one who fired on the deceased ? The
answer would be absolutely in negative.
Possession of lethal weapon by other
accused in company with prime accused
itself is indicative of the animus shared by
one and all. Since the presence of the coaccused is established on the spot beyond
doubt then their remaining silent on the
spot and not opening fire either in
retaliation or as in reactionary measure on
the fleeing of informant would not ipsofacto create a situation to be construed that
the
other
three
accused/the
present
appellants were not sharing the animus to
commit the crime with the main accused.
Here the liability is vicariously imposed by
virtue of application of Section 34 I.P.C.
The object and the intention was one to kill
the deceased. Consequently, the argument
falls flat that in the absence of any overt act
654 INDIAN LAW REPORTS ALLAHABAD SERIES
common intention cannot be applied to the
other accused though present on the spot.

16. Now we may observe with
wisdom that in the matters of ascertaining
prevalence of common intention among all
the accused not only the evidence but the
surrounding circumstances have also got
their positive roles and in case it all if taken
as a whole a reflection immediately
emerges that each one present on the spot
must have known the nature of the offence
intended by the group, it being so each one
forming the group shall be imputed with
the same intention that was the animus
working in the mind of one who executed
the plan and it is established law that
common intention may also develop on the
spot itself. Here prior concert among the
accused is proved by the way the offence
was committed and manner of offence is
self-explanatory. In this case the preconcert among all the assailants is well
established by the very description of the
incident as well as the manner and style of
the incident itself as emerging in testimony
that all the assailants appeared on the spot
from the sugarcane field of Faiyaz
possessing country made gun in their
respective hands, no matter if one shot was
fired by one among the four assailants. If it
so occurred and the same has been proved
by the prosecution witnesses by cogent
testimony then the only outcome is that all
the assailants shared the common intention
to kill and to kill the victim and nothing
else. That being the position, claim of the
appellant that they remained silent on the
spot and never shared the common
intention with the main assailant is not
acceptable. The trial court has rightly held
that the case is one attracting application of
section 34 I.P.C. and by virtue of
application of section 34 I.P.C. rightly
recorded finding of conviction under
section 302 I.P.C. against the accusedappellants which finding of conviction
cannot be interfered by us, consequently,
this appeal lacks merit and the same is
dismissed.

17. In this case, appellants are on bail.
Their bail bonds and sureties are cancelled.
They shall be taken into custody forthwith
for serving out the sentence imposed upon
them.

18. Let a copy of this order/judgment
be certified to the court below for necessary
information and follow up action.
----------
(2020)03-05ILR A654
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 4561 of 2014

Nadeem & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Mahendra Prakash, Sri Dhruv Narayan
Mishra, Sri Gautam Kumar Banerji, Sri
Kamal Dev Rai, Sri Mumtaz Ali, Sri Pradeep
Kumar, Sri Shad Khan

Counsel for the Opposite Party:
A.G.A., Shishir Kumar Tiwari

Criminal Law - Indian Penal Code - Section
364A, 411, 379 - Appeal against conviction.

Held :- Lack of evidence- No evidence
demand of ransom conviction under section
364A
IPC
set
aside.
(Para
65)