# Sartaj Mohammad and others v. The State

- **Citation:** (2001) 2 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sartaj-mohammad-and-others-v-the-state-38983
- **Pages:** 12

## Text

40 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$' )(%58$5<
'$7(' $//$+$%$' )(%58$5<

%()25(
%()25(
7+( +21·%/( -& *837$ -
7+( +21·%/( -& *837$ -
7+( +21·%/( 0$ .+$1 -
7+( +21·%/( 0$ .+$1 -

&ULPLQDO $SSHDO 1R RI

6DUWDM 0RKDPPDG DQG RWKHUV
«$SSHOODQWV LQ MDLO
9HUVXV
7KH 6WDWH
«5HVSRQGHQWV

&RXQVHO IRU WKH $SSHOODQWV
6KUL 13 0LGKD
&RXQVHO IRU WKH 5HVSRQGHQWV
$*$
6KUL *6 +DMHOD

,QGLDQ 3HQDO &RGH ± VHFWLRQ ±
SUHVXPSWLRQ RI FRPPRQ LQWHQWLRQ LV DOVR
VXEMHFW WR WKH VDPH NLQG RI UHVWULFWLRQV
DV RWKHU SUHVXPSWLRQV DQG LQ QR FDVH LW
PXVW
WDNH
WKH
IRUP
RI
FRQMHFWXUHV
VXUPLVH
RU
VXVSLFLRQ
,QIHUHQFH
RI
FRPPRQ
LQWHQWLRQ
VKRXOG
QHYHU
EH
GUDZQ XQOHVV LW LV D QHFHVVDU\ LQIHUHQFH
GHGXFLEOH IURP WKH FLUFXPVWDQFHV RI WKH
FDVH +HOG SDUD
,Q WKH IDFWV DQG FLUFXPVWDQFHV DSSHDULQJ
LQ WKH FDVH WKHUH LV D UHDVRQDEOH GRXEW
WKDW WKHVH DFFXVHG SHUVRQV VKDUHG WKH
FRPPRQ
LQWHQWLRQ
ZLWK
FRDFFXVHG
6DUWDM 0RKDPPDG DQG LW FDQQRW EH VDLG
ZLWK FHUWDLQW\ WKDW PXUGHU RI 0D]KDUXO
+DTXH ZDV FRPPLWWHG LQ IXUWKHUDQFH RI
FRPPRQ LQWHQWLRQ RI DOO WKH DFFXVHG
SHUVRQV

By the Court

1. This appeal is directed against the
judgement and order dated 10.7.1980
passed by Sri V.K. Sircar, the then IV
Additional Session Judge, Allahabad in
Session Trial No. 286 of 1997, whereby
appellant Sartaj Mohammad has been
convicted
and
sentenced
to
life
imprisonment under Section 302 I.P.C.
Appellants Vakilwa, Lal Mohammad and
Imamuddin have been convicted and
sentenced to life imprisonment under
Section 302 I.P.C. read with Section 34
I.P.C. Appellants Sartaj Mohammad, Lal
Mohammad and Imamuddin have also
been convicted and sentenced to 2 years
rigorous imprisonment and a fine of Rs.
300/- each under Section 324 read with
Section 34 I.P.C. Appellant Vakilwa is
further convicted and sentenced to 2 years
rigorous imprisonment and a fine of Rs.
300/-
under
Section
324
I.P.C.
Appellants
Lal
Mohammad
and
Imamuddin have further been convicted
and sentenced to two years rigorous
imprisonment under Section 323 read
with
34
I.P.C.
However,
Sartaj
Mohammad and Vakilwa have been
acquitted for the offence punishable under
Section 323 read with Section 34 I.P.C.

2. The wood-cut profile of the
prosecution case is that appellants Sartaj
Mohammad and Lal Mohammad are real
brothers being sons of Yar Mohammad
Appellant
Imamuddin
is
uncle
of
Appellant Vakilwa. They all belonged to
one group.

3. Some time before the occurrence
in question Anisuddin, brother of accused
Vakilwa had been murdered. Shamim,
maternal uncle of Aftab, P.W. 2 was an
accused in that case. Aftab Ahmad was
doing pairvi for Shamim.

4. It is stated that on 27.5.79 at about
6.20 P.M. in day light Masroorul Haque,
P.W. 1 alongwith Aftab Ahmad, P.W. 2
and Mazharul Haque, deceased of the
2All] Sartaj Mohammad and others V. The State .

present case were returning from School
and proceeding towards Aftab's house,
and when they reached in the lane in front
of the house of Matin, the four appellants
met them. Accused Vakilwa addressing
and abusing Aftab Ahmad said that Aftab
Ahmad's maternal uncle shamim had
murdeed his brother Anisuddin and why
Aftab was doing pairvi for him. Mazharul
Haque took ill of these utterances and
remonstrated accused Vakilwa saying that
he should talk properly else it would not
be good. If he was doing pairvi he was not
doing any crime. Every person does pairvi
for his family members. As soon as
Mazharul Haque uttered these words,
accused Lal Mohammad and Imamuddin
alias
Chottan
exhorted
whereupon
accused Sartaj Mohammad fired upon
Mazharul Haque while accused Vakilwa
fired from his pistol on Aftab Ahmad.
Mazharul Haque fell down on the ground
while Aftab Ahmad sustained fire arm
injuries on his lift scapula. Masroorul
Haque and some other persons who were
attracted to the scenen of occurrence
challenged
the
accused
persons
whereupon accused turned back and
escaped towards south in the lane.
Masroorul Haque, P.W. 1 chased the
accused persons and when he was near
the south west corne of the mosuqe,
accused Imamuddin alias Chottan and Lal
Mohammad assaulted him with lathis
resulting in injuries on his forearm and
shoulder. Both of them then managed to
escape. The incident was also witnessed
by Faizanul Haque, P.W. 1, Atiq Ahmad
alias Attan and Afsar Ahmad. When
Masroorul Haque returned at the place of
occurrence he found Mazharul Haque
dead.

5. On the dictation of Faizul Haque,
P.W.4 Hifzur Rahman scribed the first
information report. Ex. Ka 2 and the same
was lodged at Police Station Puramufti on
the same night at 9.10 P.M. Case was
registered and injured Aftab Ahmad and
Masroorul Haque were sent to S.R.N.
Hospital, Allahabad in the police escort
for their medical examination. Dr. Udai
Pratap Singh, P.W. 7 examined Aftab
Ahmad at 1.40 A.M. and found following
injuries :-

(1) Lacerated wound over left fore
arm 5" x 2-1/2" , muscle deep and 2-1/2"
below shoulder joint sorsum aspect,
bleeding
on
cleaning,
margin
were
irregular, and blackening and charring
present.
(2) Multiple lacerated wound over
lateral half of left scapula in an area of 4"
x 3" with blackening and charring of
wounds, margins bleeding on cleaning.

In the opinion of doctor injuries were
caused within 24 hours. They were kept
under observation and were suspected to
be of fire-arm. Injury report of Aftab
Ahmad is Ex. Ka 4.

Masroorul Haque was medically
examined in the same night at 1.50 A.M.
and following injuries were found :-

(1) Contusion 2" x 1" over apex of
left shoulder.
(2) Contusion 1-1/2" x 1/2" over
left medical border of left forearm.
2" above the left wrist joint.

In the opinion of doctor both the
injuries were caused by blunt object, and
were simple and caused within 24 hours.
Injury report of Masroorul Haque is Ex.
Ka 3.
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Dr.
Ramesh
Chand,
P.W.
3
conducted the autopsy on the dead body
of Mazharul Haque on 28.5.79 at 4.30
P.M. Deceased was aged about 18 years.
Following ante mortem injuries were
found :-

1. Five gun shot wounds of entry each
measuring about 1cm. X 1/2 cm., margins
black, in the area of 4" x 1-1/2" on the left
side of chest, 2-1/2" lateral and superior
to the nipple, directed medially.
2. Abrasion 1/6" x 1/6" on the interio
aspect of left shoulder.
3. Abraded contusion 1⁄4" x 1⁄4" on the
left side of neck 4" below and posterior to
the ear.
4. Lacerated wound 1-1/2 cm x 1 cm.
Cavity deep on the right side of chest 3"
above the lateral to the right nipple.
5. Lacerated wound 1-1/2 cm. X 1cm.
on the interior aspect of right shoulder.

6. In the internal examination 3rd &
4th ribs on left side were fractured, 3 pea
sized pellets were recovered from right
chest wall. Pleura and both lungs were
lacerated, heart was empty and thoraic
cavity was full of blood. In the stomach
semi-digested food was found. The small
intestines and large intestines were half
full.

7. In the opinion of Medical Officer,
death had occurred due to shock and
hemorrhage. Dr. Ramesh Chand further
opined that injuries no. 4 & 5 could be
exit wounds of injury no. 1.

8. After case was registered, the
same was investigated by Sri Dharam Vir
Singh, P.W. 14, who was posted as
Station Officer of Police Station Pura
Mufti.
The
investigating
officer
on
reaching the place of occurrence found
the dead body of deceased Mazharul
Haque lying in the lane near the house of
Matin. Inquest was held by sub-Inspector,
D.C. Srivastava under the orders of
investigating Officer. He also collected
one empty cartridge lying by the side of
the dead body and sealed the same in the
presence of witnesses, vide memo Ex. Ka
14. The investigating officer also prepared
site plan, Ex. Ka 19 and interrogated the
witnesses.
On
completion
of
investigation, he submitted charge sheet,
Ex. Ka 20 against all the accused persons.

9. Before the trial court, prosecution
examined 14 witnesses in all; of whom
P.W. 1 Masroorul Haque, P.W.2, Aftab
Ahmad and P.W.4, Faizul Haque were
witnesses of the fact. Both P.W. 1
Masroorul Haque and P.W. 2 Aftab
Ahmad themselves suffered injuries in the
course of incident.

10. In their statements recorded
under Section 313 Cr. P.C. accused
denied the prosecution allegations and
stated of their false implication due to
enmity.
No.
witness
was,
however,
examined in defence.

11. On an evaluation of evidence on
record, he learned Session Judge found
the appellants guilty and accordingly
convicted
and
sentenced
them
as
indicated above.

12. We have heard Sri G.S.
Chaturvedi, Senior Advocate for the
appellants and Sri K.C. Saxena, learned
A.G.A. for the State.

13. Before us factum of death of
Mazharul Haque due to ante mortem
injuries has neither been challenged nor
disputed. This fact is also otherwise fully
2All] Sartaj Mohammad and others V. The State .

established from the evidence of three eye
witnesses and statement of Dr. Ramesh
Chand P.W. 3, who had performed
autopsy on the dead body of Mazharul
Haque.

14. As far as motive part is
concerned the prosecution case is that one
Anisuddin had been murdered prior to the
present occurrence. Shamim, the maternal
uncle of Aftab Ahmad, P.W. 2 was being
prosecuted for the same. Aftab Ahmad
was doing pairvi on behalf of Shamim.
On the day of incident at about 6.30 P.M.
when Masroorul Haque, P.W.1 alongwith
Aftab Ahmad, P.W.2 and Mazharul
Haque deceased were going from the
School
towards
Aftab's
house,
the
accused persons met them in the lane in
front of the house of Matin. Accused
Vakilwa had an altercation with Aftab
Ahmad, P.W. 2 and he stated to him that
"SALE TERE MAMOON SHAMIM NE
MERE BHAI ANISUDDIN KA QATAL
KIYA HAI TUM SALE AAJKAL USKI
BARI PAIRBI KAR RAHE HO AUR
GOL
BAKAYA
GHOMTE
HO"
Mazharul
Haque
took
ill of these
utterances and protested saying that
"SALE ZABAN SANBHAL KAR BAT
KARO VARNA THIK NAHIN HOGA ?
ISMEN YEH KAUN GUNAH KAR
RAHE HAIN, GHAR KA HAR ADMI
APNE ADMI KI PAIRVI KARTA HAI"
and it is stated that thereafter accused
Sartaj Mohammad fired with his pistol on
Aftab Ahmad, on the exhortation of Lal
Mohammad and Chottan accused. It is
thus, apparent form the prosecution
evidence that accused Vakilwa was
applying pressure on Aftab Ahmad not to
do pairvi for Shamim, the killer of his
brothr Anisuddin. This was protested by
deceased Mazharul Haque and thereafter
accused Sartaj Mohammad and Vakilwa
opened fire on Mazharul Haque and Aftab
Ahmad respectively. The incident thus
occurred at a spur of moment in a heat of
passion and without any premeditation
and in the said incident Mazharul Haque
sustained fatal fire arm injuries and
Masroorul Haque received simple blunt
object injuries when he was chasing
appellants Chottan@ Imamuddin and Lal
Mohammad.

15. According to the prosecution
case Mazharul Haque was fired upon by
Appellant Sartaj Mohammad from his gun
and Aftab Ahmad was fired upon by
appellant Vakilwa from his country made
pistol and when Mazharul Haque had
fallen on the ground appellants Chottan @
Imamuddin and Lal Mohammad started
fleeing and when they were chased by
Mazharul Haque, they assaulted him with
lathi.
To
establish these allegations
prosecution produced three witnesses
before the trial court namely P.W. 1
Masroorul Haque, P.W. 2 Aftab Ahmad
and P.W. 4 Faizanul Haque. Both
Masroorul Haque, P.W. 1 and Aftab
Ahmad, P.W. 2 sustained injuries at the
hands of the assailants in the same
incident in which Mazharul Haque had
received gun shot injuries. Dr. Ramesh
Chand, P.W. 3 who had conducted
autopsy on the dead body of the deceased
Mazharul Haque has stated in the trial
court that the ante mortem injuries were
of fire arm and probable time of death of
the deceased was 6.30 P.M. on 27.5.79. A
futile attempt was made by the defence
counsel to challenge this opinion of the
medical officer, but nothing concrete
could be brought in his cross examination,
which could demolish it in any manner
whatsoever.
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
16. From the evidence of Dr. Udai
Pratap Singh P.W. 7 it is also fully
established that Aftab Ahmad had also
sustained fire arm injuries on his person.
The injury report of Aftab Ahmad, Ex.
Ka. 4 and the evidence of the eye
witnesses leaves no room for doubt that
Aftab Ahmad also sustained fire arm
injuries in the course of the same incident
in which deceased Mazharul Haque was
fired upon. Injuries of Masroorul Haque
were also examined on the same day and
the doctor found 2 contusions one on the
apex of left shoulder and the other on the
left medial border of left forearm.

17. It is thus apparent that both
Masroorul Haque and Aftab Ahmad
suffered injuries in the same incident in
which Mazharul Haque had received fatal
fire arm injuries and their presence at the
scene of occurrence is thus not open to
doubt. Since the incident had occurred in
broad daylight they could have easily seen
the faces of the persons assaulting them
and the deceased. In the circumstances
they could not said to be interested in
roping in innocent persons by shielding
the real accused, who had assaulted them.
Their evidence also gets full support from
the statement of P.W. 4, Faizanul Haque,
the first informat. According to him he
had gone to perform Namaz in the
mosque and when he sat down in the
northern-western corner of the mosque to
urinate his attention was attracted by
verbal and heated altercation which
ensued between the accused persons and
Aftab Ahmad. He has also given a graphic
account of the incident. His presence at
the scene of occurrence also gets support
from the fact that within a short period he
got the first information report scribed
from Hifzur Rahman and carried injured
Masroorul Haque and Aftab Ahmad to
Police Station and reached there on the
same night as early as 9.10 P.M. after
covering a distance of about 6 kms. The
promptitude with which the F.I.R. was
lodged lends support to the truthfulness of
the prosecution version.

18. The place of occurrence is also
established not only from the ocular
testimony of the witnesses, but also from
the
spot
situation
found
by
the
investigating officer at the time of his
inspection. The investigating officer had
found one empty cartridge near the dead
body and also blood of the deceased.

19. Therefore, we agree with the
learned Session Judge that the incident
occurred in the manner and at the time
and place as alleged by the prosecution
and all the four appellants participated in
the incident.

20. The next question that arises for
consideration is as to for what offence the
appellants could be held guilty? So far as
Sartaj Mohammad is concerned, he is
alleged to have caused fatal fire arm
injuries to the deceased Mazharul Haque.
As already stated above, Dr. Ramesh
Chand, P.W. 3 has stated in clear terms
that ante mortem fire arm injuries of the
deceased Mazharul Haque were sufficient
to cause death in ordinary course of
nature. The act of this accused was thus
fully covered by clause thirdly of Section
300 I.P.C.

21.

Learned counsel for the
appellants argued before us that since the
incident had occurred in the course of
exchange of hot words at a spur of
moment and in a heat of passion, it would
be reasonable to hold that accused Sartaj
Mohammad was deprived of his self
2All] Sartaj Mohammad and others V. The State .

control
due
to
grave
and
sudden
provocation given to him by Mazharul
Haque,
who
remonstrated
accused
Valilwa and therefore, the offence will be
culpable homicide not amounting to
murder due to applicability of Exception I
of Section 300 I.P.C. It was further
submitted that the mere fact that Sartaj
Mohammad
has
not
pleaded
this
Exception in his statement under Section
313 of the Cr. P.C. benefit of the same
can not be denied to him if it otherwise
looks probable from the prosecution
evidence itself.

22. It is well settled law that though
burden of proving an exception is on the
accused, but the mere fact that the
accused adopted defence of denial in his
examination under Section 313 Cr.P.C.
without referring to Exception I of
Section 300, will not be enough to deny
him the benefit of that Exception, if the
court can cull out material from the
evidence pointing to the existence of
circumstances leading to that Exception.
It is not the law that failure to set up such
a defence would foreclose the right of the
accused to rely on the Exception once and
for all. (See Apex court's decision in State
of U.P. Vs. Kakshmi JT. 1988(1) SC 679.

23. Rule of pleadings of civil law
does not apply to criminal cases. Unlike a
civil case, it is open to a criminal court to
give benefit to the accused of a plea even
if the same is not stated by him in his
statement under Section 313 Cr.P.C. In a
given case even if the accused does not
raise the plea of an exception, yet if it is
found from the evidence brought on
record from the prosecution side and from
the circumstances appearing in the case
that the accused acted within the confines
of an Exception, benefit of that Exception
cannot be denied to the accused. If from
the evidence the circumstance, established
on
the
test
of
preponderance
of
probabilities, bring the case within the
four corners of any Exception, benefit of
the same should be awarded to the
accused, and that benefit can not be
denied merely for the reason that the
accused has not pleaded the same in his
statement recorded before the court, or
suggested to the prosecution witnesses
during their cross examination.

Exception I of Section 300 I.P.C.
reads as under :-
"Culpable homicide is not murder if
the offender, whilst deprived of the power
of self control by grave and sudden
provocation, causes the death of the
person who gave the provocation or
causes the death of any other person by
mistake or accident.

The above exception is subject to the
following provisions :-

First -- That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly - That the provocation is
not given by anything done in obedience
to the law, or by a public servant in the
lawful exercise of the powers of such
public servant.

Thirdly - That the provocation is not
given by anything done in the lawful
exercise of the right of private defence.

24. From a combined reading this
provision along with First provision it will
follow that provocation should not only
be grave and sudden, but it must be
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
unexpected. If an accused plans in
advance to receive a provocation in order
to justify the subsequent homicide, the
provocation can not be said to be sudden.

25. In the famous case of K.M.
Nanavati, A.I.R. 1962 S.C. 605 the Apex
Court held that in order to bring the case
within
Exception
1,
the
following
conditions must be complied with :-

(i)
that the deceased must have given
provocation to the accused;
(ii)
the provocation must be grave;
(iii) the provocation must be sudden;
(iv)
the offender, by reason of the said
provocation,
shall
have
been
deprived of the power of selfcontrol;
(v)
he should have killed the deceased
during
the
continuance
of
deprivation of the power of self
control; and
(vi)
the offender must have caused the
death of person who gave the
provocation or that of any other
person by mistake or accident.

Whether the provocation was grave
and sudden enough to bring the case
within this Exception is a question of fact.
The court has to apply an objective test
for deciding whether the provocation was
grave or not and the best test for deciding
this question is whether a reasonable man
belonging to the same class of society as
the accused, placed in the situation in
which the accused was placed, would be
so provoked as to lose his self-control.
The expression "reasonable man" means a
normal and average person. The concept
of "reasonable man" is a legal fiction
which changes from time to time and
from society to society. No. abstract
standard of reasonableness can be laid
down.

26. In the light of the above
principles, we now proceed to examine
whether from the prosecution evidence
and the circumstances appearing in the
case, benefit of Exception I could be
extended to appellant Sartaj Mohammad.

27. In the present case the
prosecution evidence as furnished by the
witnesses is to the effect that when
Masroorul Haque P.W. 1, Aftab Ahmad,
P.W. 2, Faizanul Haque, P.W. 4 along
with deceased Mazharul Haque were
returning from School towards the house
of Aftab Ahmad, P.W. 2 all the four
accused jumped form the Dalan of Hafiz
Kallan and had come into the lane. They
were armed with firearm and lathi. Hot
words were exchanged between Aftab
Ahmad, P.W. 2 and accused Vakilwa. The
altercation began when Vakilwa accused
abused and askee Aftab Ahmad why he
was doing pairvi for his maternal uncle
Shamim, who had killed Anisuddin,
brother of Vakilwa and thereby accused
Vakilwa put a pressure on Aftab Ahmad
not to do pairvi for Shamim. At this
juncture Mazharul Haque who did not like
the
utterances
of
accused
Vakilwa
remonstrated him saying that he should
have a control on his tongue and if Aftab
Ahmad was doing pairvi he was not
committing any sin or crime. Every man
does pairvi for his own family members.
On this both appellants Sartaj Mohammad
and Vakilwa opened fire from their
respective weapons upon Mazharul Haque
and Aftab Ahmad respectively. In this
factual situation when accused Vakilwa
himself
was
responsible
in
inviting
provocation, subsequent act of Sartaj
Mohammad and Vakilwa of firing upon
2All] Sartaj Mohammad and others V. The State .

Mazharual Haque and Aftab Ahmad can
not be brought within the four corners of
Exception 1.

28. It was argued by the learned
counsel for the appellant that since
mazharul
Haque
had
unnecessarily
intervened
and
remonstrated
accused
Vakilwa and uttered abusive words the
possibility of accused Sartaj Mohammad
having been deprived of power of selfcontrol on account of provocation which
was grave and sudden cannot be ruled out.
This submission of the learned counsel is
devoid of any force. Accused Vakilwa
had initiated the altercation by abusing
Aftab Ahmad and asking h9Imamuddin as
to why he was doing pairvi for his
maternal uncle Shamim, killer of his
brother Anisuddin. Mazharul Haque then
simply remonstrated and told Vakilwa
that Aftab Ahmad was justified in doing
paorvi of his maternal uncle Shamim.
Since Vakilwa had himself initiated the
altercation he was expected to receive a
provocation from the person on victim
side. The case is fully covered by First
proviso of Exception 1 and therefore, no
benefit of Exception 1 could be extended
to Sartaj Mohammad for causing fatal fire
arm injuries to Mazharul Haque.

29. It is now next to be seen what
offence or offences have been committed
by each of the appellants. Undisputedly
Mazharual Haque sustained fire arm
injuries at the hands of accused Sartaj
Mohammad only. Cause of death was
ante mortem fire arm injuries and those
injuries were sufficient to cause death in
ordinary cause of nature. The case is thus
fully covered by Clause Thirdly of
Section
300 I.P.C. Accordingly the
conviction and sentence of improsonment
for life of appellant Sartaj Mohammad
under Section 302 I.P.C. for the murder of
deceased Mazharul Haque are maintained.

30. Now coming to the case of other
appellant we find that they have been
found guilty under Section 302 I.P.C.
with the aid of Section 34 I.P.C. for the
murder of Mazharul Haque by co-accused
Sartaj Mohammad. The question that
arises for consideration is whether in the
facts and circumstances of the case has it
been proved beyond doubt that the murder
of Mazharul Haque was committed by coaccused Sartaj Mohammad in furtherance
of common intention of all the appellants?

31. It is well settled that the
constructive liability under Section 34 can
arise only if the following conditions are
fulfilled :-
1. There must be a common intention to
commit a criminal act, and
2. There must be participation by all the
accused persons in doing such act in
furtherance of that intention.

The Privy Council in the famous case
of Mahboob Shah A.I.R. 1945 P.C. 118
observed:
"To invoke the aid of Section 34
successfully, it must be shown that the
criminal act complained against was done
by one of the accused persons in the
furtherance of the common intention of
all; if this is shown, then liability for the
crime may be imposed on any one of the
persons in the same manner as if the act
were done by him alone. This being the
principle, it is clear to their Lordships that
common intention within the meaning of
the Section 34 implies a pre-arranged plan
and to convict the accused of an offence
applying the section it should be proved
that the criminal act was done in concert
pursuant to the pre-arranged plan."
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2001

32. This pre-arranged plan and prior
concert in a given case may even develop
on the spot during the commission of
offence, but the said plan must precede
the act constituting the offence. Therefore
the crucial test is whether the said plan
preceded the actual act constituting the
offence.

33. In the case of Ram Tahal Vs.
State of U.P. (1972) I.S.C.C. 136 it was
held that the common intention should be
anterior in time to the commission of the
crime showing a pre-arranged plan and
prior concert, and, it is difficult in most
cases to prove the intention of an
individual, it has to be inferred from the
act
or
conduct
or
other
relevant
circumstances of the case. In other words
totality of the circumstances must be
taken into consideration in arriving at the
conclusion whether the accused had a
common intention to commit an offence
with which they could be connected. The
pre-arranged plan may develop on the
spot during the course of commission of
offence, but the crucial circumstances is
that the said plan must precede the act
constituting the offence.

34. It is also well settled that
presumption of common intention is also
subject to the same kind of restrictions as
other presumptions and in no case it must
take the form of conjecture, surmise or
suspicion. Inference of common intention
should never be drawn unless it is a
necessary inference deducible from the
circumstances of the case.

35. We now proceed to examine the
question of applicability of Section 34
I.P.C.
on
the
touch-stones
of
the
principles which we have enumerated
above. While dealing with motive part the
learned
Sessions
Judge
has
himself
recorded a categorical finding. "However,
the fact remains that there is no evidence
from the side of the prosecution that any
of the accused person had any prior
enmity either with Mazharul Haque
deceased or Masroorul Haque, P.W. 1.
Aftab Ahmad, P.W. 2 has also admitted
this fact in his statement, " This finding of
the learned Sessions Judge is based on the
evidence on record. It may further be
pointed out that Aftab Ahmad, P.W. 2
also admitted in his statement that
accused had no enmity with him. Even as
per the prosecution case there is no
evidence even to indicate that the accused
persons had any prearranged plan to
commit6 the murder of Mazhaul Haque.
The case is that all the four accused
persons assembled to put pressure on
Aftab Ahmad, P.W. 2 not to do paorvi for
his maternal uncle Shamim, killer of
Vakilwa's brother Anisuddin, and for that
purpose and with that intention they had
come together and the accused Vakilwa
asked Aftab Ahmad why he was doing
pairvi for Shamim. This utterance of
Vakilwa was not liked by deceased
Mazhaul Haque and he remonstrated
accused Vakilwa where upon accused
Imamuddin @ Chottan & Lal Mohammad
exhorted their companion saying "MARO
SALON KO BAHUT AKAR KAR
BAAT KARTE HAIN" and on this
exhortation accused Sartaj Mohammad
fired upon Mazharul Haque while accused
Vakilwa fired on Aftab Ahmad. It is of
common experience that allegation of
exhortation is often made to make a
person vicariously liable for the acts
committed by the other accused. Unless
evidence in support of the said allegation
is clear, cogent and reliable it is not safe
to fasten guilt of that person with the aid
2All] Sartaj Mohammad and others V. The State .

of
Section
34 I.P.C. In the first
information report of the present case it
was stated that Lal Mohammad and
Chottan exhorted saying "SALE BARI
AKAR KAR BHAAT KARTE HO
MARO SALON KO" and thereafter they
uttered some filthy language. At the trial
P.W. 1 Masroorul Haque stated that Lal
Mohammad and Chottan exhorted saying
"MARO SALON KO BARI AKAR KAR
BAAT KARTE HAIN", Faizanul Haque,
P.W. 4 also stated likewise. However,
none of the witnesses has specified as to
what actual words were uttered by each
accused. Their evidence indicates as if
both these accused persons in chorus and
in a parrot like manner uttered same
words simultaneously which is beyond
our comprehension. In any view of the
matter all the accused persons had come
with a plan to put a pressure on Aftab
Ahmad for not doing pairvi for Shamim
in the murder case of Anisuddin. These
two persons are said to have given
exhortation only to give a beating. The
words "MARO SALON KO" did not
necessarily mean that they had asked their
companion to kill Mazharul Haque or
Aftab Ahmad. The very fact that only
simple injuries were caused to Aftab
Ahmad on account of firing made by
Vakilwa lend support to our conclusion
that even if we assume that accused
Imamuddin and Lal Mohammad had
exhorted their companions to make an
assault on the victim, it would not
necessarily follow that they had asked
their companions to shoot and kill
Mazharul
Haque
or
Aftab
Ahmad.
Therefore, it may not be very safe to hold
appellants Imamuddin @ Chottan and Lal
Mohammad guilty under Section 302 with
the aid of Section 34 I.P.C. for the offence
of murder committed by accused Sartaj
Mohammad. Similarly, we find it difficult
to hold appellant Vakilwa guilty of the
offence of murder with the aid of Section
34 I.P.C. As already pointed out above,
the pre-arranged plan was only to put a
pressure on Aftab Ahmad not to do pairvi
for his maternal uncle Shamim, in the
murder case of Anisuddin. With this end
in view accused Vakilwa made utterances
to Aftab Ahmad. Aftab Ahmad did not
say anything in reply, but Mazharul
Haque
intervened
and
remonstrated
Vakilwa. There is nothing on record to
indicate that accused persons had any plan
to make assault on Mazharul Haque, but
he
abruptly
came
in
between
the
altercation which accused Vakilwa was
having with Aftab Ahmad. The other
three
accused
persons,
in
such
circumstances, could not have even a
shost of ideal that Mazharul Haque would
intervene and raise protes using bad
language. He did not ask nor excited
accused Sartaj Mohammad to open fire on
Mazharul Haque. It was an individual act
of accused Sartaj Mohammad, which
could not have been anticipated by
accused Vakilwa. Therefore, conviction
of appellant Vakilwa of the murder of
Mazharul Haque at the hands of appellant
Sartaj Mohammad with the aid of Section
34 I.P.C. can not be sustained.

36. Learned A.G.A. appearing for
the State argued that accused Vakilwa
fired upon Aftab Ahmad while Chottan
and Lal Mohammad assaulted Masroorul
Haque in the same course of incident and
therefore, they facilitated commission of
murder of Mazharul Haque by Sartaj
Mohammad appellant and in this view of
the matter all the appellants should be
held guilty under Section 302 read with
Section 34 I.P.C. We have already
pointed out that there is no evidence,
direct or indirect, that the murder of
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Mazharul Haque was committed by Sartaj
Mohammad in furtherance of common
intention of all the accused persons under
any pre-arranged plan.

37. The prosecution case further is
that
as
soon
as
Mazharul
Haque
intervened
and
remonstrated
accused
Vakilwa, Sartaj Mohammad suddenly
fired upon Mazharul Haque. It is true that
the common intention may develop at the
spot during the commission of offence,
but it has to be further established that the
said plan preceded the act constituting the
actual offence. It was, therefore bounded
duty of the prosecution to bring on record
evidence or other circumstances from
which it could conclusively be inferred
that there was a prior concert or meeting
of mind of all the accused persons for
commission of murder of Mazharul
Haque before the act of firing was done
by accused Sartaj Mohammad. In the
absence
of
any
such
evidence
or
circumstances, it would not be safe and
proper to hold these three appellants
guilty of the offence of murder with the
aid of Section 34 I.P.C.

38. As far as the case that the two
accused Chottan and Lal Mohammad
assaulted Masroorul Haque when he was
chasing them is concerned, it is suffice to
state that we have already doubted the
prosecution allegation that these two
appellants had exhorted their companions
to kill Mazharul Haque when Sartaj
Mohammad opened fire upon Mazharul
Haque. When Mazharul Haque fell down
on the ground after sustaining fire arm
injuries it was natural for these two
appellants to flee as they themselves
might have been stunned to see the killing
of Mazharul Haque at the hands of one of
their companions. They could very well
have apprehension that if they stayed back
they might be apprehended and attacked
by those, who were attracted to the scene
of occurrence. Therefore, in such a
situation their act of causing simple
injuries to Masroorul Haque cannot be
connected directly or indirectly with the
commission of murder of Mazharul
Haque at the hands in Sartaj Mohammad.
In the facts and circumstance's appearing
in the case there is a reasonable doubt that
these accused persons shared the common
intention
with
co-accused
Sartaj
Mohammad and it cannot be said with
certainty that murder of Mazharul Haque
was committed in furtherance of common
intention of all the accused persons.

39. For the reasons assigned above,
we find appellant Sartaj Mohammad
guilty under Section 302 I.P.C. and we
maintain his conviction and sentence of
imprisonment for life there under. His
conviction and sentence under Section
324 read with Section 34 I.P.C. for
causing injuries to Aftab Ahmad at the
hands of accused Vakilwa are set aside.
The appeal filed by Sartaj Mohammad is
allowed to this extend.

40. Conviction and sentence of
imprisonment for life under Section 302
read with Section 34 I.P.C. of appellant
Vakilwa are set aside. His conviction
under Section 324 I.P.C. for causing
injuries to Aftab Ahmad is maintained but
the sentence is reduced to R.I. for one
year and a fine of Rs. 300/-. In default of
payment of fine he shall undergo a further
R.I. for three months.

41. Conviction and sentence of life
imprisonment under Section 302 read
2All] Nanha Pahalwan V. Union of India and others

with Section I.P.C. of appellants Lal
Mohammad and Imamuddin as well as
their conviction and sentence of 2 years
rigorous imprisonment and a fine of Rs.
300/- each under Section 324 I.P.C. read
with Section 34 I.P.C. are set aside. Their
conviction under section 323 I.P.C. read
with section 34 I.P.C. is maintained.
However the sentence is reduced to the
period already undergone and a fine of
Rs/ 500/- each. In default of payment of
fine each of these appellants shall undergo
R.I. for a period of three months.

42. The appeal is accordingly partly
allowed. All the appellants are on bail.
Appellants
Sartaj
Mohammad
and
Vakilwa shall surrender to their bail
bonds to serve out their respective
sentences as imposed by this Court. On
their doing so their bail bonds shall stand
cancelled. In case they do not comply
with this order within fifteen days. The
trial
Court
shall
take
prompt
and
appropriate steps for their arrest and shall
put them back in jail for serving out their
respective sentences as modified by this
Court. Appellant Lal Mohammad and
Imamuddin @ Chottan are allowed one
month's time to deposit the fine imposed
on them, failing which the trial Court
shall take appropriate steps against them
in accordance with law.

43. Compliance report shall be sent
to this Court within two months.

Partly Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 0 .$7-8 -
7+( +21·%/( 0 .$7-8 -
7+( +21·%/( 2 %+$77 -
7+( +21·%/( 2 %+$77 -

+DEHDV &DUSXV 3HWLWLRQ 1R RI

1DQKD 3DKDOZDQ
«3HWLWLRQHU ,Q -DLO
9HUVXV
8QLRQ RI ,QGLD RWKHUV «5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL . 6KDKL
&RXQVHO IRU WKH 5HVSRQGHQWV
$*$
6&
6KUL 60 0LVUD

1DWLRQDO
6HFXULW\
$FW
±
'LVWLQFWLRQ
EHWZHHQ /DZ DQG 2UGHU DQG SXEOLF RUGHU
± 'HWHQWLRQ 2UGHU ± JURXQG RI EUHDFK RI
ODZ DQG RUGHU ±QRW WKH 3XEOLF 2UGHU ± ,W
LV IRU WKH &RXUW WR GHFLGH RQ LWV RZQ DQG
QRW RQ WKH EDVLV RI RUGHU SDVVHG E\ WKH
DXWKRULWLHV
+HOG ± 3DUD
7KH GLVWLQFWLRQ EHWZHHQ ODZ DQG RUGHU
DQG SXEOLF RUGHU LV ZDOO NQRZQ DV LW KDV
EHHQ GLVFXVVHG LQ WKH ODUJH QXPEHU RI
FDVHV GHFLGHG E\ WKH 6XSUHPH &RXUW DQG
WKLV
&RXUW
,W
LV
ZHOO VHWWOHG WKDW D
GHWHQWLRQ RUGHU FDQ EH SDVVHG QRW IRU
EUHDFK RI ODZ DQG RUGHU EXW IRU WKH
EUHDFK RI SXEOLF RUGHU YLGH 6WDWH RI 83
YV +DUL 6KDQNDU 7LZDUL $,5 6&
 ,Q WKH SUHVHQW FDVH ZH DUH RI WKH
RSLQLRQ WKDW WKHUH ZDV EUHDFK RI ODZ DQG
RUGHU EXW QRW RI SXEOLF RUGHU 1R GRXEW
WKH JURXQGV RI GHWHQWLRQ PHQWLRQV WKDW
SXEOLF RUGHU ZDV EUHDFKHG EXW ZH KDYH
QRW WR JR PHUHO\ E\ ZKDW WKH DXWKRULWLHV
VD\
RWKHUZLVH
LQ
HYHU\
FDVH
WKH
DXWKRULWLHV
FDQ
VD\
WKDW
WKHUH
ZDV
EUHDFK RI SXEOLF RUGHU DQG WKDW ZLOO EH
WKH HQG RI WKH PDWWHU 7KH &RXUW KDV WR