ABDUL SALAM Vs. STATE

JUDGEMENT

(1.) FIRST accused in sessions case 37/72 on the file of the Sessions Judge, Trichur is the appellant in Criminal Appeal 382/72. He, along with 4 others, was charged with offences falling under S. 143,147,148, 324 and 302 read with S. 149 IPC. These 5 accused were originally charged with three others, Jabbar, Kakachi Mohammed and one Mohammad Ali alias Alu with offences of unlawful assembly, rioting and murder. Jabbar and Kakachi Mohammed absconded and Alu died subsequently. So the trial had to be proceeded with against these accused alone, We are told that Jabbar and Kakachi Mohamad have now been apprehended and the charge against them has been laid.

(2.) THE prosecution case is that the 8 accused formed themselves into an unlawful assembly with the common object of murdering P. K. Abdulkhader and bis associate one Ammu. P. K. Abdulkhader was a staunch congress man belonging to the Indira group, till recently. Some time in 1971 he deserted the Congress and cast his lot with Communist-Marxist party. THEreafter he was participating in the activities of the Marxists and was championing the cause of the kudikidappukars of the place. THE accused, on the other hand, are congress men supporting the land owners of the place. THE two parties were thus pitted against each other on all important matters and the ideological conflicts between them very often led to clashes and exchange of blows. THE political atmosphere of the place was thus tense and agitated, when the occurrence took place on 17-9-71 On that day at about 9-30 a. m. there took place a clash in front of Kerala Varma High School at Eriyad. THE Marxist-led students Federation of India (S. F. I.) bad started an agitation to get Marxism included in the school curriculum. Opinion among the students was divided in this matter. THE Congress-sponsored Students Union (K. S. U.) was opposed to it. On 17-9-1971, the S. F. I. had made an appeal to the Students of the Kerala varma High School to boycott the school for the day just to press their demand for the introduction of Marxism in the school. Students who were inclined to attend classes were prevented from doing so by the S. F. volunteers and this led to the clash. THE 5th accused who was then a student of the school was prevented by one Shelly of the S. F. I. from entering the school Jabbar was drawn to that place and on seeing the obstruction he beat Shelly and dragged him to the road. This precipitated matters and the incident was reported to P. K. Abdulkhader who at that time was the'president of the Parents' Association of the School. He immediately came in the company of pws. 1 and 5 and took his seat on a bench in the verandah of pw. 2's shop at Eriyad junction. He was talking to pw. 10 about the beating incident, when the accused were seen proceeding towards the shop in a body. Time then was 11-15 a. m. Jabbar was armed with a revolver kept concealed under his waist, Kakachi Mohamad with an iron rod and some of the other accused also with iron rods. Seeing them abdulkhader stood up from the bench and got into the road and stood near the dust-bin at the north-western corner of the junction. Sighting him, Kakachi mohamad made the war-cry "shoot" shism shsn In response to the cry, jabbar took out the revolver and fired three shots in succession hitting Abdulkhader near bis mouth, left arm and left chest. Abdulkhader reeled and stood by the dust-bin with bis grip on it. Availing himself of this opportunity Kakachi mohamad dealt a blow on his arm with the iron rod. Ammu rushed towards abdulkhader for support; but he was also shot down by Jabbar. Ammu somehow sprang up from the ground and ran northwards. Jabbar then turned at Abdulkhader and fired one more shot at him and after that all the 8 accused ran away from the scene. Abdulkhader was picked up from the scene by pw. 17, Dr. Siddiq and others and taken to the Kodungallur hospital, where bis dying declaration was recorded by the Magistrate and before be could complete it he succumbed at about 12 noon. pw. 12, Dr. Karim took Ammu to the Kodungallur hospital in his jeep and his dying declaration was also recorded. He was then taken to the district Hospital, Trichur for better treatment, where he died at about 5-30 p. m.

(3.) NOW the question is whether conviction could be entered against the 1st accused from the mere fact that he was present at the scene at the time of the occurrence. It was observed as early as in 1945 by the privy Council in Mahbub Shah v. Emperor (AIR, 1945 PC. 118) that: "common intention within the meaning of S. 34 implies a pre-arranged plan. To convict the accused of an offence applying S. 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which, divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in S. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. " It is impossible in the present case to deduce the common intention from the proved circumstances of the case. Learned State Prosecutor contended for the position that common intention could be inferred from the fact that the appellant, who is none other than the brother of Jabbar, was present at the scene; and he was inimical towards Abdulkhader and on one occasion he was even assaulted by Abdulkhader's party. From this background of enmity it is not possible to infer that the common intention to do sway with abdulkhader, which the other accused had, was shared by him. The Supreme Court has observed in Paricbhat v. State of U. P. (AIR. 1972 SC. 535) that: "in the absence of any evidence of a prior meeting of minds and any prearranged plan or of participation of accused persons in the fight in question they cannot be convicted with the aid of S. 34. Prosecution must prove that the criminal act has been done in concert, pursuant to the prearranged plan. Mere proof that some accused persons were with the main accused who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of S. 34. " From the mere fact, therefore, that the appellant was seen even by the side of Jabbar at the time Jabbar fired the shot, it is not possible to say that there was a common intention and that was shared by him. Participation in the criminal act, as we have already seen, is the gist of the offence under S. 34. But in the present case even according to the prosecution no overt act was committed by the appellant. Mere presence at the scene might sometimes amount to participation in pursuance of a common intention; as for instance in a case of burglary one in the gang is posted outside the house to watch and give signal to the others if anybody approaches the scene. There, a particular part is assigned to him by the others who were committing the act and that would constitute taking part in the transaction, which was being carried out in pursuance of the common intention. Here, on the other hand, there is not a shred of evidence in support of a previous concert or plan in pursuance of which the offence was committed. There is nothing to connect the appellant with jabbar or Kakachi Mohamad in their design to commit the crime. Reliance was placed by the learned State Prosecutor on State of U. P. v. Iftikhar Khan (AIR. 1973 SC. 863) in support of his contention that mere presence at the scene is tantamount to participation in the crime. We read the decision carefully and are not in the least satisfied that the decision supports the prosecution. There, respondents 1 and 2 were stated to have fired pistols while respondents 3 and 4 were present at the scene armed with lathis. It had also come in the evidence that respondents 3 and 4 had enmity with the deceased and they were found in the company of respondents 1 and 2 at the scene and had no explanation to offer as to their presence there at the time. It was in these circumstances that the court came to the conclusion that even though the shots were fired by respondents 1 and 2 only, the other two could safely be convicted of the same offence read with S. 34. That decision could be distinguished on its own facts. In the case on hand, the presence of the Ist accused at the scene has satisfactorily been explained by him. How he was attracted to the school and from there how he happened to come to the Eriyad junction on bis way home etc. , have all been explained by him. In the above mentioned decision (AIR 1973 SC. 863) the Supreme Court has reiterated the law of constructive liability under s. 34 IPC. Portions from Krishna Govinda Patel v. State of Maharashtra (AIR. 1963 SC. 1413) were extracted. The extract reads: "the principle has again been reiterated that before a court convicts a person under S. 302 read with S. 34, it has to record a definite finding that the said person had prior concert with one or more other persons, armed or unarmed, for committing the said offence. in Jaikrishandas manchardas Desai v. The State of Bombay AIR. 1960 S. C. 889 it has been held that "the essence of liability under S. 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under S. 34 is not, on the words of the statute, one of the conditions of its applicability". As explained by Lord sumner in Barendra Kumar Ghose v. The King Emperor (AIR. 1925 PC. 1) the leading feature of S. 34 of the Indian Penal Code is 'participation' in action. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons, the participation must be in doing the act, not merely in its planning. A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of s. 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. "