Vasu Project I.p.c.docx

MAHBUB SHAH v. EMPEROR {Citation:- (1945) 47 BOMLR 941 }

PROJECT REPORT ON“INDIAN PENAL CODE” SESSION: 2016-2017

SUBMITTED TO:

SUBMITTED BY:

Dr. Pushpinder Kaur ji

Devanshu Goyal

UILS, PU, CHANDIGARH

Roll No: 12/14 B.A.L.L.B (Hons.) Section: - A 5th Semester; 3rd Year

UNIVERSITY INSTITUTE OF LEGAL STUDIES PANJAB UNIVERSITY, CHANDIGARH

ACKNOWLEDGEMENT I wish to convey my greatest appreciation to DR. PUSHPINDER KAUR JI, a professional professor and a great mentor, who challenged and organized my thoughts and helped convert them to the written words. I desire to thank deeply the professionals at the UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY, CHANDIGARH, for their initial faith and encouragement that I submit my project report. I am indebted to MY MOTHER, MY FATHER and other family members for providing models of kindness and decency. My greatest debt, however, is reserved for THE ALMIGHTY for providing me with everything in life.

DEVANSHU GOYAL Roll No.- 12/14

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LIST OF ABBREVIATIONS

AIR:

All India Reporter

Anr.

Another

CriLJ:

Criminal Law Journal

CrPC:

Code of Criminal Procedure

DW:

Defence Witness

Edn.:

Edition

HC:

High Court

Hon’ble:

Honourable

IPC:

Indian Penal Code

J.:

Justice

No.:

Number

Ors.:

Others

PW:

Prosecution Witness

R.A.J.:

Recent Apex Judgments

SC :

Supreme Court

SCC :

Supreme Court Cases

v.:

Versus

Vol.:

Volume

&:

And

TABLE OF CASES            

Ganesh Singh v. Ram Raja Ibra Akanda v. Emperor Saidu Khan v. The State Ramachander v. State of Rajasthan Kripal Singh v. State of U.P Barendra Kumar Ghosh v. King Emperor Queen v. Sabid Ali Khacheru Singh v. State of U.P Rishi Deo Pandey v. State of U.P Sheoram Singh v. State of U.P State of Haryana V. Satender Durga Prasad@Bablu v. State

FACTS OF THE CASE  This is an appeal by -special leave against a judgment of the High Court of Judicature at Lahore dated March 14, 1944, confirming, on appeal, the conviction of the appellant of the murder of one Allah Dad and the sentence of death passed on him by the Sessions Judge, Mianwali, on December 20, 1943.  The appellant Mahbub Shah is aged nineteen. He has been convicted of murder under Section 302, read with Section 34 of the Indian Penal Code. He was also convicted of the attempted murder of one Hamidullah Khah and sentenced to seven years rigorous imprisonment; but that conviction has not been brought before the Board.  Along with the appellant, his cousin Ghulam Quasim Shah, aged eighteen, was also convicted under Section 302 34 of the Indian Penal Code and sentenced to transportation for life. Ghulam was convicted under Section 307 34 also, and was sentenced to five years' rigorous imprisonment by the Sessions Judge, but his convictions and sentences have been set aside by the High Court. The deceased Allah Dad died as the result of gunshot wounds inflicted on him.  One Wali Shah, who is said to have fired the shot that killed the deceased, is a fugitive from justice and has not been so far arrested. His father Mohammad Hussain Shah, who was committed to the Sessions Court on a charge of abetment of murder, was acquitted by the Sessions Judge.  On August 25, 1943, at sunrise, Allah Dad, deceased, with a few others left their village Khanda Kel by boat for cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile downstream, they saw Mohammad Shah, father of Wali Shah (absconder) bathing on the bank of the river. On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging: to him. Ignoring his warning they collected about sixteen bundles of reeds, and then started for the return journey.  While the boat was being pulled upstream by means of a rope Ghulam Quasim Shah, nephew of Mohammad Hussain Shah-acquitted by the

High Court-who was standing on the bank of the river asked Ahah Dad to give him the reeds that had been collected from his uncle's land. He refused. What happened subsequently was spoken to by two boys Nur Hussain P.W. 10 and Nur Mohammad P.W. 11, whose version of the story has been accepted as ture by the High Court and summarised as follows:  Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick but it was warded off on the rope. Allah Dad then picked up the Iari from the boat and struck Quasim Shah. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up. They had guns in their hands. When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing injuries to hint.

STATEMENT OF ISSUES  Whether the appellant has been rightly convicted of murder upon the true construction of Section 34 of the Indian Penal Code?  Whether a common intention to commit the crime which was eventually committed by Mahbub Shah and Wali Shah came into being when Ghulam Quasim Shah shouted to his companions to come to his rescue?

JUDGEMENT On careful consideration, it appears to their Lordships that in the present case "there was no evidence and there were no circumstances from which it might be inferred that the appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue of Ghulam Quasim. The exaggerated circumstances alleged by the prosecution to invoke the aid of Section 34, Indian Penal Code, have been found against by the High Court who have acted solely on the evidence of P. W. 10 and P. W. 11. There was no evidence to indicate that Ghulam Quasim was aware that the complainant party had been cutting reeds from his uncle's lands, or that the appellant and Wali Shah had been kept behind the bush to come and help him when called upon to do so. The evidence shows that Wali Shah "happened to be out shooting game," and when he and the appellant heard Ghulam's shouts for help they came up with their guns; the former shot the deceased, killing him outright, and the appellant shot at Hamidullah Khan inflicting injuries on his person, Indeed, the High 'Court negatived the existence of a "common intention" at the commencement in the sense in which their Lordships have explained the terms by stating-in considering the application of Section 34, Indian Penal Code, to the case of Ghulam-what has been already quoted.

Section 34: Acts Done By Several Persons In Furtherance Of Common Intention- According to Section 34, when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Object Of Section 34:- Section 34 lays down only a rule of evidence and does not create a substantive offence. This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. This section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing Elements Of Section 34: To attract the application of Section 34, the following conditions must be satisfied: Some Criminal Act: - ‘Criminal act’ used in section 34 does not refer to individual acts where a crime is committed by a group of persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. ‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone in an offence. Criminal Act Done By Several Persons: - The criminal act in question must have been done by several persons i.e. by more than one person. The number of wrong doers should be at least two. Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act. Common Intention:- The words “in furtherance of the common intention of all” were added to section 34 after words ‘persons’ in 1870 the idea for which, possibly, was derived from the following passage of the Privy Council’s judgment:

 “Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose, as the purpose is common so must be the responsibility.” [Ref. Ganesh Singh v. Ram Raja1,]  The expression ‘common intention’ means unity of purpose or a prearranged plan; it has been given various meanings which are as follows Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group [Ref. Mahboob Shah v. Emperor2].  Common intention means the mens rea necessary to constitute the offence that has been committed [Ref. As per DAS, J., in Ibra Akanda v. Emperor3]. Section 34 does not apply to offences where there is no intention.  It also means evil intent to commit some criminal act, but not necessarily the same offence which is committed [Ref. As per WANCHOO, J., in Saidu Khan v. The State4].  Common intention implies a pre-arranged plan. Pre-arranged plan meaans prior concert or prior meeting of minds. Criminal act must be done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time.  Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused were seen at the spot or that the two accused fired as a result of which one person died and two others received simple injuries could not be held sufficient to infer common intention [Ref. Ramachander v. State of Rajasthan5]  However, common intention may develop on the spot as between a number of persons and this has to be inferred from the act and conduct of the accused, and facts and circumstances of the case [Ref. Kripal Singh v. State of U.P6]

1

(1869) 3 Beng LR (PC) 44, 45 AIR 1945 PC 118 3 AIR 1944 Cal. 339 4 AIR 1951 All 21 (F.B.) 5 1970 Cr.L.J. 653 6 AIR 1954 SC 706 2

Participation In The Criminal Act:- The participation in a criminal act of a group is a condition precedent in order to fix joint liability and there must be some overt act indicative of a common intention to commit an offence. The law requires that the accused must be present on the spot during the occurrence of the crime and take part in its commission; it is enough if he is present somewhere nearby. The Supreme Court has held that it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must participate in the commission of the offence some way or other at the time crime is being committed. The first leading case on the point is Barendra Kumar Ghosh v. King Emperor7, (also known as Shankari Tola Post Office Murder Case). In this case several persons appeared before the sub-post master who was counting the money on the table and demanded the money. In the mean time they opened fire killed the sub-post master and ran away without taking any money. Barendra Kumar was, however, caught with a pistol in his hand and was handed over to the police. The accused was tried under sections 302/34 as according to the prosecution he was one of the three men who fired at the sub-post master. The accused denied his charge on the ground that he was simply standing outside and had not fired at the deceased. The trial court, on being satisfied that the sub-post master was killed in furtherance of the common intention of all, convicted the accused even if he had not fired the fatal shot. The High Court of Calcutta and the Privy Council both agreed with the findings of the trial court and held the accused guilty of murder. Giving his judgment LORD SUMNER quoting a line from Milton’s famous poem, “ON HIS BLINDNESS” said. “even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait….. Section 34 deals with doing of separate act, similar or diverse by several persons; if all are done in furtherance of a common intention, each person is liable for the result of 7

AIR 1925 PC 1

Common Object:- Section 149, like Section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence. It runs as “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the assembly, is guilty of that offence.” Elements Of Section 149:- The essence of offence under Section 149 is assembly of several (five or more) persons having one or more of the common objects mentioned in Section 141 and it could be gathered from the nature of the0 assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. Section 149 creates joint liability of all members of an unlawful assembly for criminal act done by any member in prosecution of the common object of the said assembly. So the essential ingredients of Section 149 are: 1. There must be an unlawful assembly, as defined in Section 141; 2. Criminal act must be done by any member of such assembly; 3. Act done is for prosecution of the common object of the assembly or such which was likely to be committed in prosecution of the common object; 4. Mere presence and sharing of common object of the assembly makes a person liable for the offence committed even if he had no intention to commit that offence.

Scope Of Section 149:- The Section is divided into two parts1. In Prosecution Of The Common Object:- The words “in prosecution of the common object” show that the offence committed was immediately connected with the common object of the unlawful assembly of which accused were members. The act must have been done with a view to accomplish the common object of the unlawful assembly.

In Queen v. Sabid Ali8, the words “in prosecution of the common object” were construed as meaning “with a view to achievement of the common object”. 2. Members Knew To Be Likely: - The second part relates to a situation where the members of the assembly knew that the offence is likely to be committed in prosecution of the common object. A thing is likely to happen only when the situation is like “it will probably happen” or “may very well happen”. The word ‘knew’ indicates a state of mind at the time of commission of an offence, knowledge in this regard must be proved. The word ‘likely’ means some clear evidence that the unlawful assembly had . Difference Between Common Intention And Common Object:- The difference between common intention and common object may be stated as 1. Under Section 34 number of persons must be more than one. Under Section 149 number of persons must be five or more. 2. Section 34 does not create any specific offence but only states a rule of evidence. Section 149 creates a specific offence. 3.Common intention required under Section 34 may be of any type. Common object under Section 149 must be one of the objects mentioned. 4.Common intention under Section 34 requires prior meeting of minds or pre-arranged plan, i.e. all the accused persons must meet together before the actual attack participated by all takes place. Under Section 149, prior meeting of minds is not necessary. Mere membership of an unlawful assembly at the time of commission of the offence is sufficient. 5. Under Section 34 some active participation is necessary, especially in a crime involving physical violence. Section 149 does not require active participation and the liability arises because of mere membership of the unlawful assembly with a common object. Common Intention May Also Develop on The Spot: Exception to The General Rule- Generally, it is said that, “a common object may develop on the spot but a common intention cannot”. But, in certain circumstances 8

11 BLR 347

ommon intention also may develop suddenly on the spot and such common intention may be inferred from the facts and circumstances of the case and conduct of the accused persons. Following cases are illustrative In Kripal Singh v. State of U.P9; the Supreme Court held that a common intention may develop on the spot after the offenders have gathered there. A previous plan is not necessary. Common intention may be inferred from the conduct of the accused and the circumstances of the case. In Rishi Deo Pandey v. State of U.P10; ‘A’ and ‘B’ two brothers were seen standing near the cot of the victim who was sleeping. One of them was 0armed with a ‘gandasa’ and another with a ‘lathi’, when a hue and cry was raised by the two brothers ran together, and both of them were seen running from the bed room of the victim. The victim died of an incised wound on the neck, which according to medical evidence was necessarily fatal. The court found that the two brothers shared the common intention to cause death. It was held that common intention may develop on the spot also. In Khacheru Singh v. State of U.P11; several persons attacked a man with lathis when he was passing through a field. The man eluded them and they gave chase, on overtaking him they once again attacked him. It was held that, these facts were sufficient to prove that the accused persons had been actuated with the common intention to assault the victim. Conviction under Section 326 read with Section 34 was sustained. In Sheoram Singh v. State of U.P12; the Supreme Court held that common intention may develop suddenly during the course of an occurrence, but still unless there is cogent evidence and clear proof of such common intention.

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AIR 1954 SC 706 AIR 1955 SC 331 11 AIR 1956 SC 546 12 AIR 1972 SC 2555 10

LATEST JUDGEMENT REGARDING SECTION 34 OF INDIAN PENAL CODE

IN STATE OF HARYANA V. SATENDER13

FACT OF CASE  Six persons were accused of conspiring with each other and committing murder of one Ramesh Masta with common intention. FIR No. 414 dated November 06, 2004 was registered against these six accused persons at Police Station City Bhiwani, Haryana, under Sections 302, 120-B and 34 of the Indian Penal Code, 1860 (for short ‘IPC’).  Charge under Section 25 of the Arms Act, 1959 was also foisted upon them. Names of these accused persons are – Rahul @ Shashi Partap, Satender, Bharat, Karambir, Manjit Singh and Banti @ Yogender Singh.  The Court of Additional Sessions Judge, Bhiwani, on the conclusion of the trial, vide judgment dated February 22, 2007 returned the findings to the effect that the prosecution had successfully proved the allegations contained in the charge sheet that accused Rahul @ Shashi Partap, Satender and Bharat, in furtherance of their common intention committed the murder of Ramesh Masta and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC.  It also held that other three accused persons, namely, Karambir, Manjit Singh and Banti @ Yogender Singh, had abetted the aforesaid accused persons in the said offence and thereby committed an offence punishable under Section 109 read with Section 302 of the IPC.  It was also held that all the six accused persons, prior to the date of occurrence, hatched the conspiracy in order to commit the murder of Ramesh Masta and thereby committed an offence punishable under Section 120-B of the IPC. Rahul @ Shashi Partap was found guilty of offence punishable  As is clear from the above, as per the prosecution, three persons took active part in killing R0amesh Masta, who had come at the place of occurrence on a motorcycle. Specific role is attributed to Rahul @ Shashi Partap, who had fired the shot from his pistol, which hit on the head of Ramesh Masta. 13

(2014) 7 SCC 29

The motorcycle was being driven by Bharat. As per the prosecution, Satender had also fired a shot from his pistol, though it did not hit the victim (as noted hereinafter, this act attributed to him has not been proved). Insofar as other three accused persons, namely, Karambir, Manjit Singh and Banti @ Yogender Singh, are concerned, charge against them was of conspiracy and abetment  Satender, Karambir and Manjit Singh. Since Karambir has died and the special leave petition against Manjit Singh was also dismissed, in the appeal filed by the State as well as the complainant Pawan Kumar Masta, no doubt, charge of conspiracy was also levelled against Satender. But it was in respect of all others and other three against whom only charge of conspiracy under Section 120-B IPC was framed they have been acquitted of thsi charge. Still we have gone through the judgment of the High Court and evidence on this charge. The only witness examined in respect of this charge was Ghanshayam Dass (PW-3). He deposed that he was a neighbour of Ramesh Masta as well as of Karambir’s family. He knew both the families. Two days prior to the death of Ramesh Masta, he had gone to the house of Karambir along with Satish. They heard the talk through window of the house of Karambir. Karambir was telling Bharat, Rahul, Satender, Banti and Manjit that he was having old enmity with Ramesh Masta, who had been saved in previous Trial convicted three persons for murder and three another person for abetment of crime. High court has acquited four person and convicted two persons. However, the reason for acquittal of Satender was that no overt act had been attributed to him by any of the eye witnesses. person. Appeal is dismissed by the supreme against acquittal of satender.

In DURGA PRASAD@BABLU V. STATE14 IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL APPEAL NO. 679 OF 2001 It was held that all four accused are guilty for the murder of victim (Amit Gupta) under section 302 r/w section 34 of Indian Penal Code, 1860. Fact of the case  On 10.1.97 an information was received from RML Hospital which was recorded as DD No. 29A in P.S. Parsad Nagar.  Information was regarding admission of one Amit Gupta in the hospital in injured condition. On the basis of this information SI Babbar Bhan along with Constable Manohar Lal reached in the hospital and collected the MLC of injured Amit Gupta but the injured Amit was declared unfit for statement by the doctor and the nature of injuries were opined as sharp.  In these circumstances statement of injured could not be recorded by SI Babbar Bhan but the statement of his father Sat Sagar Gupta was recorded who was found present in the hospital.  He had stated that he was staying in H.NO. 16/918 E, Khalsa Nagar, Tank Road, Karol Bagh, New Delhi along with his family members and was doing the business of readymade garments and that on that date he was present in his house along with his family members and had taken the dinner, when at about 10.30 PM someone called his son Amit and thereafter Amit went out.  After some time noise was heard fromoutside the house and on hearing this noise he along with his son Parveen came out and saw four boys beating Amit. 14

Date of Decision: 28th August, 2009

 He had further stated that Rajinder and Bablu were holding the hands of Amit and one boy whose name he did not know but whom he could identify, was holding Amit from the neck and Biloo who was staying in Karol Bagh hit Amit with knife on his chest and left thigh. Amit fell down and seeing them, all the boys ran away.  He with the help of his son Parveen removed Amit to RML Hospital. On this statement SI Babbar Bhan made an endorsement and send rukka for the registration of the case to police station. Thereafter FIR u/s 307/34 IPC in this case was registered. SI Babbar Bhan returned at the spot along with Sat Sagar Gupta and continued his investigation.

It was held in this case all the persons in this case are guilty of murder r/w with section 34 of Indian Penal Code.