Gauhati High Court
State Of Assam vs Ajgar Ali And Ors. on 24 July, 1986
Equivalent citations: 1987CRILJ1699
JUDGMENT Singh, J.
1. On difference of opinion that arose between two Hon'ble Judges of this Court on prescription of conviction and punishment in the appeal against acquittal, it has been referred to me to express my views and opinion.
2. Every country has its own crime complex and dilemma of punishment. Court is broadly concerned with the facts and circumstances of a particular case connected with the particular crime under enquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial that regulated by the provisions of Criminal Procedure Code.
3. The few necessary facts may be narrated to bring up the legal issue in its real setting. The occurrence relating to this appeal arose a decade back while on 12-11-73 the motor boat 'Omar' started development of engine trouble. The greaser of the boat Azad Ali Akand, P.W. 2 and the Master Chotelal Choudhury, P.W. 1 informed at Dhubri Ghat that the boat was set on fire causing complete damage to the vessel by some persons led by accused Ajgar Ali, Rofiqual Islam, Musa Alias Hazarat Ali, Awal Sekh, Nuruzzamal Molla and Bakhtar Ali. It was alleged that they abused and assaulted the staff of the boat. The ejahar was lodged on the same day at about 6.30 p.m. to the above effect. After investigation all the six persons as noted above who were passengers of the boat were charge-sheeted under Section 147/438/352, IPC, but they stood their trial under Section 438/34, IPC. The learned trial court acquitted all the accused. This is how the State preferred this appeal against acquittal.
4. Initially, there were 6 accused along with these three respondents, namely, Ajgai Ali, Musa and Baktar. All these 6 accused were charged under Section 438 read with Section 34 of the Indian Penal Code. It would not be necessary to go into details as regards evidence adduced by the prosecution as all those were discussed by both the Hon'ble Judges (in their respective findings). As regards the appeal against acquittal as well as the appeal against conviction, the law as laid down by the Supreme Court as well as by this Court have been expressly and very elaborately explained and considered by the lucid judgment of my learned brother Singh, J. The difference of opinion arose as regards the proof of guilt of respondent 'Musa', as to whether Musa should ! be convicted or acquitted on the basis of the evidence on record. In this connection, first I would like to discuss the concluding portion of the judgment of my learned brother S ingh, J. The evidence of the prosecution has been discussed threadbare. Singh, J. held that it was difficult to accept as reasonable the view as expressed by the learned Assistant Sessions Judge among other reasons holding the testimony of eye-witnesses (P. Ws. 1,2 and 3) to be totally reliable. These witnesses, according to the judgment of Singh, J. were natural witnesses and the fact that except P. W. 1 they were "lessee's men" would not render their testimony unreliable after scanning and shifting the evidence of P.Ws. 1, 2 and 3 whose testimony found support from that of the other witnesses too, as discussed, corroborating each other and giving a cogent version of the occurrence. The view expressed by the learned Assistant Sessions Judge was held to be not reasonable. It was further found that the witnesses (P.Ws. 1, 2 and 3) have, in categorical terms, attributed to accused Musa the specific act of setting fire to the vessel by lighting a match-stick. So far the other accused Ajgar and Bakhtar are concerned it was found that though they have been implicated by these witnesses, it was difficult to hold them guilty for the offence of arson with which they were charged. The reason being, as per view expressed by Singh, J. that they did not perform the last or vital act of lighting the match and thereby setting fire to the motor launch. Their participation in other acts also seem doubtful as evidence against them is not cogent and convincing. It was further held by Singh, J. that the acquittal of Ajgar and Bakhtar are not liable to interference in this appeal. But in respect of Musa it was found by Singh, J. that cogent and unshaken evidence of P.Ws 1, 2 and 3 making it clear that order of acquittal as against him was not sustainable and accordingly, Musa was found guilty under Section 438, IPC and sentenced him to undergo R.I. for 2 months. The circumstances under which the sentence was passed was discussed in the concluding portion in para. 23 of the judgment. The other two respondents were given benefit of doubt. This was the view expressed in the judgment of my learned brother Justice T. N. Singh.
5. This, however, could not be acceded to and/or conceded by my learned brother Hansaria, J. for which a detailed reason has been given by a separately written judgment which I shall discuss hereinafter.
6. With deep attention I have gone through the enlightening judgment of both of my noble brothers. The view expressed by Hansaria, J. can be obtained from the portion of the judgment delivered by him from paragraph 24 onwards of the judgment.
Now the question that has posed before me is as to whether Musa can be held to be guilty under Section 438, IPC. Considering the facts and circumstances of the case and on the basis of evidence on record Hansaria, J. expressed the view that there was conjoint act of Musa and Bakhtar in committing the alleged crime. Taking into consideration the evidence of P.Ws. 1 and 2 it was observed that the evidence of P.W. 1 clearly discloses that Musa and Bakhtar knocked P.W. 1 down and covered the engine with beddings and after taking out mobil oil from the tank, poured it over the clothes, asked for a match from him and set the engine on fire and also prevented the persons to extinguish the fire. I While discussing the evidence of P.W. 2 it was found that after Musa had tied a rope around the neck of P.W. 2 and brought him down and Bakhtar had joined in holding him and P.W. 1 down. While dealing with the provisions of Section 34, IPC in the light of the evidence on record it was held by Hansaria, J. that if the three respondents before this Court were the mischief makers and if the evidence of PWs are not cogent and convincing on some aspects Musa also cannot be convicted while Bakhtar was given benefit of doubt.
7. Now the core question for my consideration is as to whether Musa should get the verdict of conviction or acquittal. This requires the weighing of the evidence on record. I have already stated that the evidence of all the witnesses were discussed threadbare in the judgment by both the learned Judges. The concurrent opinion had been expressed that the evidence of all the PWs are not very cogent and convincing on some aspects. It has been held by Hansaria, J. that if the evidence as regards Bakhtar in so far as the act mentioned in para. 27 is regarded as not cogent and convincing, Musa should also be given benefit as because if the evidence of PWs. 1 and 2 are found unreliable as to the acts attributed to them by Bakhtar, the same has to be said at least about Musa. I would like to lay importance on the charges framed against all the accused including these three respondents. They were charged under Section 438 read with Section 34, IPC. Section 34 IPC was added because prima facie it was apparent that there was conjoint act of the accused and more particularly in the case of all the respondents. If the same set of witnesses deposed against all the accused and if some of the accused are acquitted on the basis of the testimony of the witnesses and Ors. are convicted on the same set of evidence, it would be nothing but showing of an unequal I treatment against those who sustained the verdict of conviction. All the respondents' were charged under Section 438 read with Section 34 of the IPC. Of course, it would not be necessary for the prosecution to prove individual acts of each of the accused if they were charged under Section 34, IPC and any action of one accused would make the other accused liable as because it would be treated as a conjoint act by all of them. But, if broadly speaking, two of the accused are given benefit of doubt why the 3rd should be singled out while all were charged under Section 34, IPC in a conjoint act? This was precisely the view of my learned brother Hansaria, J. A benefit of doubt has been given to Ajgar as well as to Bakhtar even on the basis of the same set of evidence which were applied in case of Musa also. However, a verdict of conviction has been awarded to Musa by T. N. Singh, J. as Musa was found guilty for his individual act though evidence discloses that it was nothing but a conjoint act of at least Bakhtar and Musa. In his lucid judgment Hansaria, J. opined that if Bakhtar is given benefit of doubt, why Musa should be singled out for holding him guilty under Section 438, IPC on the face of the charge under Section 34, IPC.
8. It is admitted position that all the respondents were charged under Section 438, IPC read with Section 34, IPC. Section 34 speaks of the common intention, a simultaneous consensus of minds to participate in a criminal action to bring about a particular result. A simple reading of Section 34 along with the preceding Section 33 will make it clear that the "act" spoken of in Section 34 includes a series of acts as a single act. The commission of the acts by different confederates in the criminal action may be different but all must in one way or the other participate in the criminal enterprise to facilitate the execution of the Common design. It is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act. The essence of Section 34 is the simultaneous consensus of the mind of persons participating in criminal action to bring such a particular result. Such consensus can be developed at the spot and thereby intended by all of them. This is what exactly held by their Lordships in Ramaswami Ayyangar v. State of Tamil Nadu .
9. In the light of the above decision let me see as to whether there are material evidence on record to examine the view as expressed by my learned brother T. N. Singh, J. in convicting Musa only under Section 438, IPC eliminating him from the charge under Section 34, IPC which was framed thereby roping all the respondents under the said offence. I have already observed that much reliance is placed on P.Ws. 1, 2 and 3 though some discrepancies appeared in their evidence. P.W. 1 who was the master of the boat stated that while the vessel reached Chalkura Char, the place of occurrence at about 9.20 a.m. on 12-11-73 the engine failed to start. The passengers who had boarded the launch were impatient. Accused Musa caught hold of P. W. 2 and placed a rope around his neck and pulled him. He along with accused Bakhtar knocked him. Accused Musa and Bakhtar covered the engine with bedding of P.W, 2, poured mobil oil over the clothes and set fire to the clothes covering the engine. Few contradictions were observed in his evidence in the judgment but it was taken as omission and not a vital contradiction. I have gone through the evidence which speaks about conjoint act of Musa and Bakhtar. As regards the evidence of P.W. 2 Azad who was the most important witness according to prosecution, no importance was attached by the learned trial court. He deposed that Musa tied a rope around his neck and brought him down and also slapped him. He has further stated that both accused Musa and Bakhtar held him and also P.W. 1 and obtained their signatures by Musa and Bakhtar. His further evidence is that Musa and Bakhtar laid their bedding over the engine and poured mobil oil thereon. Musa got a match from accused Ajgar and hen set fire by striking the match. In his evidence also it is manifestly clear that there vas conjoint act of Bakhtar and Musa. P.W. 3 could not name all the accused though he told the I.O. that he would be able to recognise two persons who had set fire to the boat. In the court he deposed that accused Musa and Bakhtar wrapped the engine with bedding and poured mobil oil thereon and that Musa set fire to the engine by striking a match which he took from Ajgar. His evidence also speaks about the conjoint act of Bakhtar and Musa. It would not be necessary to discuss the evidence of other witnesses as few of them turned hostile.
10. With regard to the other points relating to the discussion of norms and nuances of Section 164, Cr.P.C. it would not be necessary for me to go into detail as I have nothing to differ from the proposition of law as discussed in the judgment by the learned Judge. In para. 26 of the judgment, Hansaria, J. also agreed regarding embellishment of the case against Ajgar but as regards Bakhtar it has been held that Bakhtar did not light the match but it would make no difference as he was charged with Musa under Section 34 of the IPC which does not require participation in each and every act constituting the offence. In State of Andhra Pradesh v. K. Venkata Reddy as their Lordships of the Supreme Court followed the decision in Maina Singh v. State of Rajasthan as . In Maina Singh (supra) their Lordships of the Supreme Court observed ...even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to the conclusion, but not otherwise.
In the case in hand it is abundantly clear from the evidence that at least Bakhtar and Musa, if not otherwise, conjointly shared their criminal act as stated by the witnesses. However, it appears from the evidence that both Musa and Bakhtar shared their common intention in setting fire to the vessel. It is very clear that three accused namely, Musa, Bakhtar and Ajgar were the mischief makers and when the order of acquittal so far it relates to Bakhtar and Ajgar was maintained, Musa who had also acted conjointly along with them in commission of offence should also get the benefit of doubt and should get the equal treatment with Bakhtar. The reason assigned by my learned brother T. N. Singh, J. to single out Musa and to convict him under Section 438, IPC eliminating Bakhtar cannot in my opinion be reasonable and with respect I disagree with the finding inflicting conviction on Musa under Section 438, IPC while benefit of doubt was given to Bakhtar in spite of their conjoint act in commission of the crime as alleged by the prosecution. I, therefore, agree with the findings arrived at by my learned brother Hansaria, J. in favour of acquittal of Musa. Agreeing with the view of my learned brother Hansaria, J. I hold that accused Musa is entitled to be acquitted on benefit of doubt. The case is accordingly disposed of and the acquittal order of Musa stands upheld. The appeal stands dismissed.