# NOOR MOHAMMAD MOHD. YUSUF MOMIN v. STATE OF MAHARASHTRA

- **Citation:** [1971] 1 S.C.R. 119
- **Court:** Supreme Court of India
- **Decided:** 1970-03-24
- **Case number:** Criminal Appeal No. 24 of 1968
- **Bench:** M. Hidayatullah, A. N· Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/noor-mohammad-mohd-yusuf-momin-v-state-of-maharashtra-5016
- **Pages:** 9

## Headnote

Criminal law-Difference between conspiracy, comnion intention and
abetment-lndian Penal Code, (Act 45 of 1860), ss. 34, 109 and 1208Scope of.
Four accused were charged with the offences under
s. 120·B (conspiracy to commit murder) and s. 302 read with s. 34. The fourth accused
was also charged under s .. 302 read with s. 109 for the offence of abetting
the murder committed by the other three accused.
The accused 2 to 4
were related to one another while the first accused was a servant of the
brother of the second accused.
There were constant disputes between
the fourth accused and the deceased over a right of passage and the right
to tap water.
The day before the murder the fourth accused, went to the
house of the deceased and exhorted his companions, one of whom w~s
the second accused, to kill the deceased.
On the next day (the day of
the .murder) the fourth accused threatened to kill the deceased and later,
accompanied by the 1st and 2nd accused, followed the deceased when
he went out at about 10 p.m.
Fifteen minutes after the deceased was
thus seen being followed by the accused, the deceased was stabbed. The
third accused tried to persuade the two constables who were proceeding
towards the scene when they heard the disturbance that nothing untoward
had happened, but the constables proceeded to the scene, and, on noticing
the wounded body of the deceased, chased and caught the first accused
and recognised the second accused who had escaped.
One of the constables lodged the first information against the accused 1 to 3. The fourth
accused was absconding and after he was arrested, all the accused were
put up for trial. The High Court convicted the first accused under s. 302
I.P.C., and accused two to four for offences under s. 120-B and s. 302
read with s. 34, l.P.C. The fourth accused was also convicted for the
offence under s. 302 read with s. 109.
In appeal by special leave to this Court by the 'fourth accused, this
Court examined the evidence, contrary to its usual practice, as it was represented that the evidence did not support the conclusion of the High
Court, and
HELD : The evidence clearly established the complicity of the appellant in the murder of the deceased, and the charges under s. 302 read with
s. 109 I.P.C. and of conspiracy were fully supported by the evidence. As
regards the charge under s. 302 read with s. 34, though, it was highly
probable that at the time of the actual murder the appellant was either
present with the other three co-accused
or was somewhere nearby, the
evidence did not establish beyond reasonable doubt his presence at or
near the spot when the murder was actually committed, and therefore,
he must be given the benefit of doubt in regard to that charge.
'
Section 34 embodies the principle of joint liability in the doing of a
criminal act, the essence of that liability being the existence of a common
intention.
Participation i11 the commission of the offence in furtherance
of the common intention invites its application.
120
SUPREME COURT REPORTS
[1971] I S.C.R.
Section 109, on the other hand, may be attracted even if the abettor
is not present when the offence abetted is committed provided that
he
has instigated the commission of the offence or has engaged with one or
more other persons in a conspiracy to commit an offence and pursuant to
that conspiracy some aCt or illegal omission ta1ces place or has intentionally
~ided the commission of an offerice by an act or illegal omission.
Criminal conspiracy is a suhl:!antive offence under s. 120-B I.P.C. It
differs from the other offences in that mere agreement is made an offence
even if no step is taken to carry out that agreement.
Though there is
close assocjation of conspiracy with incitement and abetment, the subs·
tantive offence di criminal conspiracy
is wider in amplitude than abetment by conspiracy as contemplated by s. 107 l.P.C. Conspiracy from its
very nature is hatched in secrecy and it is, therefore, extremely rare that.
direct evidenc

## Text

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NOOR MOHAMMAD MOHD. YUSUF MOMIN
v.
STATE OF MAHARASHTRA
March 24, 1970
119 -
[M. HIDAYATULLAH, C.J., A. N· RAY AND I. D. DUA, JJ.]
Criminal law-Difference between conspiracy, comnion intention and
abetment-lndian Penal Code, (Act 45 of 1860), ss. 34, 109 and 1208Scope of.
Four accused were charged with the offences under
s. 120·B (conspiracy to commit murder) and s. 302 read with s. 34. The fourth accused
was also charged under s .. 302 read with s. 109 for the offence of abetting
the murder committed by the other three accused.
The accused 2 to 4
were related to one another while the first accused was a servant of the
brother of the second accused.
There were constant disputes between
the fourth accused and the deceased over a right of passage and the right
to tap water.
The day before the murder the fourth accused, went to the
house of the deceased and exhorted his companions, one of whom w~s
the second accused, to kill the deceased.
On the next day (the day of
the .murder) the fourth accused threatened to kill the deceased and later,
accompanied by the 1st and 2nd accused, followed the deceased when
he went out at about 10 p.m.
Fifteen minutes after the deceased was
thus seen being followed by the accused, the deceased was stabbed. The
third accused tried to persuade the two constables who were proceeding
towards the scene when they heard the disturbance that nothing untoward
had happened, but the constables proceeded to the scene, and, on noticing
the wounded body of the deceased, chased and caught the first accused
and recognised the second accused who had escaped.
One of the constables lodged the first information against the accused 1 to 3. The fourth
accused was absconding and after he was arrested, all the accused were
put up for trial. The High Court convicted the first accused under s. 302
I.P.C., and accused two to four for offences under s. 120-B and s. 302
read with s. 34, l.P.C. The fourth accused was also convicted for the
offence under s. 302 read with s. 109.
In appeal by special leave to this Court by the 'fourth accused, this
Court examined the evidence, contrary to its usual practice, as it was represented that the evidence did not support the conclusion of the High
Court, and
HELD : The evidence clearly established the complicity of the appellant in the murder of the deceased, and the charges under s. 302 read with
s. 109 I.P.C. and of conspiracy were fully supported by the evidence. As
regards the charge under s. 302 read with s. 34, though, it was highly
probable that at the time of the actual murder the appellant was either
present with the other three co-accused
or was somewhere nearby, the
evidence did not establish beyond reasonable doubt his presence at or
near the spot when the murder was actually committed, and therefore,
he must be given the benefit of doubt in regard to that charge.
'
Section 34 embodies the principle of joint liability in the doing of a
criminal act, the essence of that liability being the existence of a common
intention.
Participation i11 the commission of the offence in furtherance
of the common intention invites its application.
120
SUPREME COURT REPORTS
[1971] I S.C.R.
Section 109, on the other hand, may be attracted even if the abettor
is not present when the offence abetted is committed provided that
he
has instigated the commission of the offence or has engaged with one or
more other persons in a conspiracy to commit an offence and pursuant to
that conspiracy some aCt or illegal omission ta1ces place or has intentionally
~ided the commission of an offerice by an act or illegal omission.
Criminal conspiracy is a suhl:!antive offence under s. 120-B I.P.C. It
differs from the other offences in that mere agreement is made an offence
even if no step is taken to carry out that agreement.
Though there is
close assocjation of conspiracy with incitement and abetment, the subs·
tantive offence di criminal conspiracy
is wider in amplitude than abetment by conspiracy as contemplated by s. 107 l.P.C. Conspiracy from its
very nature is hatched in secrecy and it is, therefore, extremely rare that.
direct evidence in proof of conspiracy can be 'forthcoming, but like other
offences it can
be proved
by
circumstantial evidence.
Surrounding
circumstance and antecedent and subsequent conduct, among other factors,
constitute relevant material.
In fact, because of the difficulties of having
direct evidence of criminal conspiracy, once reasonable ground is shown
for believing that two or more persons have
conspired
to commit an
offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law
of evidence relevant for proving both conspiracy and the offences committed pursuant thereto. [124 B-H]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
24 of 1968.
Appeal by special leave from the judgment and order dated
December 13, 14, 1967 of the Bombay High Cc-r;rt in Criminal
Appeal No. 380 of 1966.
A. S. R. Chari and A. G. Ratnaparkhi, for the appellant.
G. L. Sanghi and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Dua, J.
In this appeal by special leave we are only concerned
wjth the conviction of one out of four accused persons jointly
, tried for the murder of one Mohd. Yahya. The appellant Noor
Mohammed Mahamed Yusef Momin, accused no. 4, in the trial
court was jointly tried with three others in the court of the second
Additional Sessions Judge, Thana on the following three charges :
"That you accused nos. 1 to 4 on or about the 16th
day of April, 1965 at Bhiwandi entered into an agreement to commit the murder of Mohamed Yahya and
th~t the same illegal act was done in pursuance of the
said agreement and thereby you ;:ommitted an offence
punishable under section
l 20B of the Indian Penal
Code and within my cognizance.
·That you accused nos. 1, 2· and 3 on or about the
17th day of April, 1965 at about 11 p.m. at Bhiwandi
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NOOR MOHD. v. STATE (Dua, J.)
in furtherance of common intention of
yuu all and
accused no. 4 to commit the murder of tht> deceased
Mahamed Y ahya did commit his murder by intentionally causing his death by ~ssaulting him by knife
and thereby committed an offence punishabk under s.
302 read with s. 34 of the Indian Penal Code and within my cognizance.
In the alternative you accused no. 4 on 17th of
April, 1965 at Bhiwandi abetted the commission
of
the offence of murder of Mahamed Yahya by accused
nos. 1 to 3 which offence was committed in consequence
of your abetment and that you the1eby committed an offence punishable under sections
109 and
302 of the
Indian Penal Code and within my cognizance."
121
The trial court convicted Mohd. Taki Haji Hussein Momin,
accused no. 1 under s. 302, I.P.C. and sentenced him to imprisonment for life. He was acquitted of the other charges. His three
co-accused were acquitted of all the charges.
Accused
no.
1
appealed to the Bombay High Court against his conviction whereas the State appealed against the acquittal of the other three.
The High Court, after considering the evidence on the record,
upheld the conviction of accused no. 1 and reversed the order
of acquittal of the other three. Accused nos. 2, 3 and 4 ( Chinwa
@ Ahmed Hessan Momin, Abdul Rahamen Bacchu Momin,
and Nur Mahamed Mahamed Yusef Momin respectively) were
held guilty of the off.~nce under s. 120-B, I.P.C. a' also of the
offence under s. 302, read with s. 34, LP .C.
Accused no. 4
was in addition held guilty of the offence under s. 302 read with
s. 109, I.P.C.
Accused nos. 2. 3 and 4 were sentenced to imprisonment for life both under s. 120-B, I.P.C. and s. 302 read
with s. 34, I.P.C. Accused no. 4, appellant in this Court. was
also separately sentenced to imprisonment for life for the offence
under s. 302 read with s. 109, I.P.C
Incidentally it may be
mentioned that Jaitunbi, widow of the deceased Mohd.
Yahya,
had also appealed to the Bombay High Court challenging
the
acquittal of 2ccused nos. 2, 3 and 4 on all charges and of accused
no. 1 on the charges other than that of murder under s. 302,
I.P.C.
This appeal which was treated as an application under s.
417(3), Cr. P.C. was held not to be maintainable.
As already indicated, this Court granted special leave only
to the appellant who was accused no. 4 in the trial court.
Before narrating the prosecution sto1y the inter se relationship of the accused persons may be stated.
Abdul Rehman
Bacchu Momin. accused no. 3, is the husband of the sister of the
appell~nt Noor Mohammed's wife.
Chinwa alias Ahmed Hessan
Lil Sup. CT/7'-9
122
SUPREME COURT REPORTS
[1971] I S.C.R.
Momin, accused no. 2, is the brother of Kallu, who is the son-inlaw of the appellant, accused no. 4. Mohd. Taki, accused no. I,
is the servant of Kallu.
All these persons are the residents of
the same place and the decea<led Mohd. Yahya was a c\ose
neighbour of the appellant.
According to the prosecution there
were constant disputes between the appellant and the deceased
over the right of passage and tHe right to tap water, and it is
not disputed that both sides had made reports and counter-reports
with the police against each other. The climax reached on April 16,
1965 in the morning at 7 O' clock. On that day Mohd.
Yahya,
when going out of his house, found that there
was a heap of
earth and a cot belonging to the appellant obstructing his way.
A cow belonging to the appellant was also standing in the passage.
In order to clear his way the deceased picked up a stone and hurled
it al the cow.
This offended the appellant and he in retaliation
threw a glass which he was holding towards the deceased and also
abused him.
The deceased reported this incident to the police
station.
The appellant also went to the police station and made
a counter-complaint against the deceased.. When the deceased
and the appellant had gone to the police station the two wives
of the appellRnt abused Jaitunbi, wife of the deceased, with rhe
result that Jaitunbi also went to the police station to lodge a report.
But this report was not recorded. A little later, the wives, sisters
and children of the appellant again abused J aitunbi and peJfed
stones at her. Jaitunbi went to the police station again to lodge
a complaint,
the same day at about 10 a.m. When the deceased was lying on a cot in his house the appeliant came up to the
door of the former"s house asking him to get down.
On enquiry
by the deceased as to why he should get down the appellant
replied that.he would serve the deceased with his last tea.
At
that time the appellant was accompanied by four or live peisons
including Chinwa, accused no. 2.
It is said that all of them
abnsed the dec.~ased. Chinwa, accused no. 2, held a knife
in
his hand which he is stated to have opened by pressing the button
and as he tried to enter the house of the deceased, the latter's
daughter. Noorjahan, went by the back door to the police station
to lodge a complaint.
This part of the story is not admitted by
the accused.
On Noorjahan's complaint the police came to the
spot in a van and after interrogating the persons present
the
police party took with them accused nos. 2 and 3. The appellant
is stated to have offered to reach the police station himself a
little later.
-
In view of these incidents Jaitunbi apparently felt somewhat
frightened and advised her husband, deceased Mohd. Yahya, to
go to Bombay to avoid further clashes with the appellant. Mohd.
Yahya, acting on his wife's advice, went away to Bombay but.
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returned on the evening of April 17, 1965 bringing with him
.some female guests. In those days an Urus was being held near
Par Naka and it appears that it was to attend this Urus that the
female guest~ came with him.
Seeing Mohd. Yahya back from
Bombay, the appellant asked his nephew Latif, who was sleeping
on a cot outside th.~ house, to go in, loudly uttering that a dead
body was to be kept on that cot. The deceased who had reached
home at about 9.30 P .M. a little later went out to a pan
shop
near the Navyug Hotel. The deceased accC¥llpained by two unidentified persons followed him.
Soon after, Mohd. Yahya was
stabbed with a knife and this news reached his house.
At the
Par Naka two constables, Bhika Bahiram and Suvarnasing, who
w~re on duty in connection with t~ Urus, on learning of some disturbance near the Navyug Hotel and noticing some commotion,
proceeded to the lane where a crowd had collected. On the way,
accused no. 3 told them that nothing untoward had happened;
but the two constables nevertheless proceeded further and reached
the spot where Mohd. Yahya was lying in injured condition.
Someone from the upper storey of a house nearby shouted that
the assailants were running away.
ConstabTe Bhika
Behiram
asked Suvarnasing to attend to the injured person and he himself chased the two persons trying to escape. He caught Mohd.
Taki, accused no. I, in a lane near the municipal office.
The
oth.~r person who could not be caught was identified by Bhika
Bahiram as Chinwa, accused no. 2, who was known to him.
Suvarnasing in the mean time, feeling that Bhika Bahiram would
need his help also followed him and found him grappling with
Mohd. Taki. Both the constables over-powered Mohd. Taki, who
had a knife in his pocket and whose clothes were blood-stained.
Mohd. Taki was brought back to the place where Mohd. Yahya
was lying injured. Mohd. Yahya was taken to the hospital in
a bullock cart but he expired soon thereafter. In the
report
lodged bv constable Bhika Bahiram, the names of accused nos.
1 and 2 -were mentioned and accused no. 3 was described
as
an old man with moustaches. wearing a fungi. The appellant was
not arrested, though his statement was recorded durincr the investigation on April, 19, 1965. He appears to have absconded
soon thereafter and was arrested on June 18, 1965.
The case against the appellant is to be considered in the
background of the order of conviction against the other three
co-accused which has become final, this Court having declined
special leave against their conviction.
The High Court, on a consideration of the entire evidence,
came to the conclusion that all the accused (nos. 1 to 4) had
hatched a plan to commit the murder of Mohd. Y ahya after his
return from Bombay and it was in pursuance of that conspiracy
124
SUPREME COURT REPORTS
[1971] l S.C.R.
that he was murdered on the night of April 17, 1965.
The
appellant, along with accused nos. 2 and 3, was also held guilty
of an offence under s. 302 read with s. 34, I.P .C. He was further
held guilty of an offence under s. 302 read with s. 109, I.P.C.
'The a11pellants' conviction on all these counts is challenged in
this Court.
So far as s. 34, I.}'.C. is concerned, it embodies the principle
of joint liability in the doing of a criminal act, the essence of that
liability being the existence of a common intention. Participation
in the commission of the offence in furtherance of the common intention invites its application.
Section 109, I.P.C. on the other
hand may be attracted even if the abettor is not present when the
offence abetted is committed provided that he has instigated the
commission of the offence or has engaged with one or more other
'persons in a conspiracy to commit an offence and pursuant to that
conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal
omission. Turning to the charge under s. 120-B, I.P.C. criminal
conspiracy was made a substantive offence in 1913 by the introduction of Chapter V-A in the Indian Penal Code. Criminal
conspiracy postulates an agreement between two or more persons
to do, or. cause to be done an illegal act or an act which is not
illegal, by illegal means. It differs from other offences in that mere
agreement is made an offence even if no step is taken to carry
out that agreement.
Though there is close association of conspiracy with incitement and abetment the substantive offence of
criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by s. 107; I.P.C. A conspiracy fro-n1 its very nature is generally hatched in secret. It is,
therefore, extremely rare that direct evidence in prnof of conspiracy can be forthcoming from wholly disinterested quarters or
frorr: ntter strangers. But, like other offences, criminal conspiracy
can be proved by circumstantial evidence. Indeed, in most cases
proof o;f conspiracy is largely inferential though the inference
must be founded on solid facts.
Surrounding circumstances and
antecedent and subsequent conduct, among other factors, constitiute relevant material.
In fact because of the difficulties
in
having direct evidence of criminal conspiracy, once reasonable
ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them
in refere.nce to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving
both conspiracy and the offences committed pursuant thereto.
In the present case the High Court, after referring to the evidence
of Laxmibai. (P.W.. 7) and Hari Chavan (P.W. 13) (whom
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125
that court expressly described as independent witnesses) and also
of Murlidhar (P.W. 12), expressed its opinion in these words:
"All this evidence would show that at least since
the 16th of April, 1965 the accused nos. 2, 3, and 4
were acting in concert and had something common in
their mind.
It would also show the presence of the
accused no. 2 with a knife at the incident of the 16th
April, 1965 and his threatening the deceased with the
knife and the acts and words used by the accused no.
4 Mohammad Noora inspiring the accused no. 2 and
some other persons who were with him to beat and kill
Mohammad Yahya, the subsequent utterances of the
accused no. 4 when the deceased returned from Bombay
on the night of the 17th of April, 1965, the following
of the deceased Mohammad Yahya by the accused no.
4 alongwith two persons when Mohammad Yahya went
out to have a pan, the death of Mohammad Yahya
soon thereafter, then running of the four persons from
the scene of the offence the accused no. 3 misleading
the police constable with respect to the incident, the
accused nos. 1 a,nd 2 running away from the scen_e of
the offence eluding the police constables, the accused
no. 1 being caught after some struggle near the Municipal Office and found with his clothes stained with
blood and having a knife in his shirt pocket, all these
circumstances, taken together, would show that the
accused nos. I to 4 must have met previously before
causing of the injuries to deceased and must have hatched out a plan of causing the death of the deceased or
causing at least grievous injuries to the deceased. Otherwise the presence of all the four accused near the scene
of the offence at the time the incident occurred cannot
be ·satisfactorily explained.
The accused no. 4 had
known ·that the deceased had returned from Bombay and
the ominous words he used while asking his
nephew
Lateef to get down from the cot would suggest that he
had still in mind that idea of doing away with the
deceased and must have collected the other colleagues of
hi; to ca~ry out the plan which must have been hatched
out prior to the incident. That inference can reasonably
be drawn fro mthe circumstances established in the case
and it is
in pursuance of that pre-planning to do
away with the deceased, al! the four accused must
have followed the deceased when he went out that night
and the deceased was stabbed by at least some of these
accused persons."
The High Court also believed the evidence of Noorjehan (P.W.
11) and Jaitunbi, (P. W. 5). In its opinion though these two
126
SUPREME COURT REPORTS
[1971 J 1 S.C.R.
witnesses were, to a certain extent, interested their evidence appeared to it to be natural and its tenor did not show that they were
deposing falsely. On a consideration of the entire material on the
record the High Court felt that all the four accused persons must
have hatched a plan to commit the murder of Mohd. Yahya after
his return from Bombay and it was in pursuance of this conspiracy that Mohd. Yahya was murdered on the night of April 17,
1965. The court took into account the facts that accused no. l
was caught after some chase near the scene of occurrence, accused
J10. 2 was identified though he made good his escape, accused no.
3, who was also identified by description, tried to mislead the police
constables, and that accused no. 4 was seen following the deceased
just before the murder with two or three persons. On this material
the High Court upheld the appellant's conviction.
Under Art. 136 of the Constitution this Court does not normally
proceed to review and appraise the evidence for itself and the conclusions of the High Court on questions of fact on appreciation
of evidence are considered to b.e final.
This is so even if this
Court were to feel that a different view of the evidence is possible.
But in this case, as it was represented that the evidence on the record does not support the conclusion of .the High Court and that
grav.e and substantial injustice had been caused, we undertook to
go into the evidence, with the help of the counsel for the parties,
to satisfy ourselves if there is any sufficient ground for interference
on appeal by special leave.
Hari Chavan, (P.W. 13), has deposed that on April 16, 1965 at about 10.30 a.m. the appellant,
while standing near the steps of Mohd. Yahya's house, exhorted
three of his companions, one of whom was accused no. 2 who had
a knife in his hand, to beat the deceased, the actual words used
being, "Beat him : Kill him : I shall look to the consequences".
This .evidence is corroborated by Laxmibai, (P.W. 7) and both
of these witnesses have been believed by the High Court. Laxmibai
(P.W. 7) actually saw the appellant with the two others following
the deceased about 15 or 20 minutes before the murder. We are
unabie to find any cogent ground for disagreeing with the High
Court. On this evidence not only animus on the part of the appellant
but also instigation by him must be held to be fully established.
This evidence would also support the charge of criminal conspiracy against the appellant.
Indeed, the evidence of Jaitunbi
(P.W. 5) and Noorjehan (P.W. 1) also shows that the appellant
on April 16, 1965 and on the evening of April 17, on Mohd.
Yahya's return from Bombay and a short time before his murder,
openly gave expression to his strong feelings of animosity against
tpe deceased which leaves little doubt that he was thinking of doing away with Mohd.
Y ahya's ~ife. The admitted strained relations between the parties which reached the climax on April I 6,
1965 and the evidence just discussed, in our opinion,
clearly
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establishes the complicity of the appellant in the murder of the
deceased.
The charges under s. 302 read with s. 109, l.P.C.
and of conspiracy are_ thus fully supportable on the evidence. In
regard to the charge under s. 302 read with s. 34, I.P .C. also
Jaitunbi (P.W. 5) has deposed that oin the date of the occurrence
at about 9.30 p.m. the appellant asked his nephew Latif who was
sleeping on the cot outside to go inside the house because a dead
body was to be kept on that cot. Thereafter it is in the evidence
of Laxmibai (P.W. 7), that the appellant accompanied by two
persons followed the decea,ed when the latter went to the Pan
shop. About 20 minutes later the news of Mohd. Yahya's murder
reached his house. From this evidence it seems highly probable that
at the time of the actual murde1 of Mohd. Yahya the appellant
was either present with the other three co-accused or was somewhere nearby. But this evidence does not seem to be enough to
prove beyond reasonable doubt his presence at the spot in the
company
of the other accused when the murder was actually
committed. For, it may be that after leaving the house he stayed
away and the persons actually taking part in the murder were only
the other three co-accused. We are, therefore, inclined to give to
the appellant the benefit of doubt in regard to the charge under
s. 302 read with s. 34, l.P .C. This would, however, be of little
practical benefit to the appellant because he has already been given
the lesser sentence. This appeal is, therefore, accepted only to the
extent that the appellant's conviction under s. 302 read with s. 34
is set aside. In all other respects this appeal fails and is dismissed.
R.K.P.S.
Appeal allowed in part.