iminal Appeal No24 of 1968
Appeal by special leave from the judgment and order dated December 13 14 1967 of the Bombay High Court in Criminal Appeal No 380 of 1966
A section R Chari and A G Ratnaparkhi for the appellant
G L Sanghi and section 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 with 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 that the same illegal act was done in pursuance of the said agreement and thereby you committed an offence punishable under section 120B 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 pm at Bhiwandi 121 in furtherance of common intention of you all and accused No 4 to commit the murder of the deceased Mahamed Yahya did commit his murder by intentionally causing his death by assaulting him by knife and thereby committed an offence punishable under section 302 read with section 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 thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code and within my cognizance
 The trial court convicted Mohd Taki Haji Hussein Momin accused No 1 under section 302 IPC 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 Ca Ahmed Hessan Momin Abdul Rahamen Bacchu Momin and Nur Mahamed Mahamed Yusef Momin respectively were held guilty of the offence under section 120 B IPC as also of the offence under section 302 read with section 34 IPC Accused No 4 was in addition held guilty of the offence under section 302 read with section 109 IPC Accused nos
2 3 and 4 were sentenced to imprisonment for life both under section 120 B IPC and section 302 read with section 34 IPC Accused No 4 appellant in this Court was also separately sentenced to imprisonment for life for the offence under section 302 read with section 109 IPC 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 accused nos
2 3 and 4 on all charges and of accused No 1 on the charges other than that of murder under section 302 IPC
This appeal which was treated as an application under section 4173 Cr
PC 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 story 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 appellant Noor Mohammed s wife
Chinwa alias Ahmed Hessan L11 Sup
CI70 9 122 Momin accused No 2 is the brother of Kallu who is the son in law of the appellant accused No 4
Mohd Taki accused No 1 is the servant of Kallu
All these persons are the residents of the same place and the deceased Mohd Yahya was a close 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 at 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 appellant abused Jaitunbi wife of the deceased with the result that Jaitunbi also went to the policestation to lodge a report
But this report was not recorded
A little later the wives sisters and children of the appellant again abused Jaitunbi and pelted stones at her
Jaitunbi went to the police station again to lodge a complaint the same day at about 10 am When the deceased was lying on a cot in his house the appellant 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 five persons including Chinwa accused No 2
It is said that all of them abused the decreased
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 123 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 guests came with him
Seeing Mohd Yahya back from Bombay the appellant asked his nephew Latif who was sleeping on a cot outside the 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 930 PM a little later went out to a pan shop near the Navyug Hotel
The deceased accompained 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 Suvamasing who were on duty in connection with the 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
Constable 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 1 in a lane near the municipal office
The other person who could not be caught was identified by Bhika Bahiram as Chinwa accused No 2 who was known to him
Suvamasing 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 bloodstained
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 by 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 lungi
The appellant was not arrested though his statement was recorded during 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 Yahya after his return from Bombay and it was in pursuance of that conspiracy 124 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 section 302 read with section 34 IPC He was further held guilty of an offence under section 302 read with section 109 IPC The appellants  conviction on all these counts is challenged in this Court
So far as section 34 IPC 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 IPC 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 section 120 B IPC 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 section 107 IPC A conspiracy from its very nature is generally hatched in secret
It is therefore extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers
But like other offences criminal conspiracy can be proved by circumstantial evidence
Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts
Surrounding circumstances and antecedent and subsequent conduct among other factors constitute 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 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
In the present case the High Court after referring to the evidence of Laxmibai PW 7 and Hari Chavan PW 13 whom 125 that court expressly described as independent witnesses and also of Murlidhar PW 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 and 2 running away from the scene 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
1 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 his to carry out the plan which must have been hatched out prior to the incident
That inference can reasonably be drawn from the circumstances established in the case and it is in pursuance of that pre planning to do away with the deceased all 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 PW 11 and Jaitunbi P W 5
In its opinion though these two 126 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 1 was caught after some chase near the scene of occurrence accused No 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 article 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 be 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 grave 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 PW 13 has deposed that on April 16 1965 at about 1030 am the appellant while standing near the steps of Mohd Yahya s house exported 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 PW 7 and both of these witnesses have been believed by the High Court
Laxmibai PW 7 actually saw the appellant with the two others following the deceased about 15 or 20 minutes before the murder
We are unable 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 PW 5 and Noorjehan PW 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 the deceased which leaves little doubt that he was thinking of doing away with Mohd Yahya s life
The admitted strained relations between the parties which reached the climax on April 16 1965 and the evidence just discussed in our opinion clearly 127 establishes the complicity of the appellant in the murder of the deceased
The charges under section 302 read with section 109 IPC and of conspiracy are thus fully supportable on the evidence
In regard to the charge under section 302 read with section 34 IPC also Jaitunbi PW 5 has deposed that on the date of the occurrence at about 930 pm 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 PW 7 that the appellant accompanied by two persons followed the deceased 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 murder 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 section 302 read with section 34 IPC 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 section 302 read with section 34 is set aside
In all other respects this appeal fails and is dismissed
RKPS Appeal allowed in part


Summary:
Four accused were charged with the offences under section 120 B conspiracy to commit murder and section 302 read with section 34
The fourth accused was also charged under section 302 read with section 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 was 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 pm 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 section 302 IPC and accused two to four for offences under section 120 B and section 302 read with section 34 IPC The fourth accused was also convicted for the offence under section 302 read with section 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 section 302 read with section 109 IPC and of conspiracy were fully supported by the evidence
As regards the charge under section 302 read with section 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 in the commission of the offence in furtherance of the common intention invites its application
120 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 emission takes place or has intentionally aided the commission of an offence by an act or illegal omission
Criminal conspiracy is a substantive offence under section 120 B IPC 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 association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is wider in amplitude than abetment by conspiracy as contemplated by section 107 IPC 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
124B H