Case: Naim  Vs. State Of Uttarakhand

is clear that accused Kabir was having farsa and accused Nayeem was having lathi in hand, but they have not used both the weapons. It has been stated for Nayeem that he loudly said as where is Ali Hassan, only he has to be seen and Kabir said that Ali Hassan is sleeping here, kill him. If all three had come with the intention to cause murder of Ali Hassan then definitely all three would have caused blows but only Sabbir caused blow by palkati and neck of Ali Hassan cut. In post mortem report also only one injury in neck is stated and it is stated that death occurred due to that. In post mortem report it is told only one incised wound 12 x 7cm x deep backbone, right side of neck which was 3 cm below from right jaw. The margins of wound was clear cut and fourth neck backbone was cut. All vessels and muscles of right side were cut. Apart from this no other injury was found on his body and it is also not case of prosecution that Nayeem and Kabir also caused blows." 5. The trial court thus convicted Sabbir under Section 302 and sentenced him to undergo rigorous imprisonment for life. The other two accused Naim and Kabir were acquitted of the charges under Section 302 read with Section 34 IPC and Section 504 IPC.6. The convicted accused Sabbir preferred an appeal against conviction, namely, Criminal Appeal No.285 of 2003 in the High Court of Uttarakhand at Nainital. The High CourtHigh Hi affirmed the view taken by the trial court insofar as Sabbir was concerned and dismissed the appeal. Special leave petition arising therefrom was also dismissed by this Court on 08.03.2010 and thus the case against Sabbir and his conviction and sentence stood concluded and confirmed.7. In the meantime the State, being aggrieved by the order of acquittal insofar as Kabir and Naim are concerned, preferred Government Appeal No.386 of 2003. The High Court after appreciating the entire material on record found the approach of the trial court to be completely erroneous in granting the benefit to Kabir and Naim. It was observed that all three accused were armed with deadly weapons and had entered the house of the deceased at 1200 hrs. in the night and that the essence of Section 34 IPC, namely, consensus of minds of two or more persons to participate in a criminal act to bring about a particular result was fully evident. The High Court, therefore, set aside the acquittal of said Kabir and Naim and convicted them under Section 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life.8. This appeal under Article 134(1)(1)(b) and Article 134(2) of the Constitution of India read with Section 379 IPC seeks to challenge the view taken by the High Court. 9. Appearing for the appellants Mr. P.S. Datta, learned senior counsel submitted that the probability of the occurrence in the manner suggested by the prosecution was completely doubtful, that there was delay of two months in examining PW-2 Behroj under Section 161 Cr.P.C., that no independent witnesses were examined, and that, in any event of the matter, the fundamental aspects of Section 34 IPC were completely absent in the case. The learned senior counsel thus submitted that appeal deserves to be allowed and the accused Kabir and Naim ought to be acquitted of the charges leveled against them. Mr. Prateek Dwivedi, learned counsel, on the other hand, appearing for the State countered the submissions made on behalf of the accused-appellants and supported the view taken by the High Court. 10. In the instant case the FIR lodged by PW-1 within two hours of the incident had named all three accused ascribing particular weapons in their hands and also definite role to them. The FIR further stated that the incident in question was witnessed by Farid and Taimur and that along with the complainant his brother Behroj and nephew Wasim were also sleeping in the verandah. The FIR thus in clear terms disclosed not only the identity of the accused but also the role played by them, so also the names of the persons who subsequently were examined as prosecution witnesses. The entire case of the prosecution insofar as the conviction of Sabbir is concerned rested on the very same testimony coming from the witnesses which case was accepted right upto this Court. The only discordant note that was struck by the trial court was on the applicability of Section 34 IPC insofar as the role ascribed to and played by other two accused, namely, Kabir and Naim. 11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mere bye-stander. The circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mereThe circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court.