Delhi District Court
State vs Shahzad Akhtar @ Sajjad Akhatar Etc on 27 July, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-000909-2011
SC No. 28576/2016
FIR No. 128/2003
U/s 395/397/120B IPC
P. S. Sadar Bazar
STATE VERSUS SHAHZAD AKHTAR @ SAJJAD AKHTAR ETC
(i) SC No. of the case : 28576/2016
(ii) Date of commission of offence : 17.04.2003
(iii) Name, parentage and address : Shahzad Akhtar @
Sajjad Akhtar
S/o Sh. Mohd. Akhtar
R/o Sainik Colony,
Grass Mandi,
Nakatiya, District
Bareily, UP.
(iv) Offences complained of : 395/397/120B IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 27.07.24
Date of Institution : 13.04.11
Date of Judgment reserved on : 22.07.24
Date of Judgment : 27.07.24
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 1 of 50
FIR No. 128/2003
U/s 395/397/120B IPC
P. S. Sadar Bazar
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Ms. Nazma Taj that around 9.15 in the morning on 17.04.2003 when she was cleaning her house when door bell was rang. She had asked that who was there on which reply was received that from the market the said person had come to return the money of Taju Bhai. Tajuddin is husband of the complainant. He disclosed his name as Yamin. He had disclosed that he has come from Nabi Karim to return Rs.3,000/-. When the complainant partially opened the door then two other person standing on the side of stairs had pulled the door outside and entered illegally into the house. The person who had entered was having knife in his hand and pulled the complainant inside the house. Four accused entered the house and they had closed the door. The sister of complainant Ms. Sahima was sleeping inside. On hearing the commotion she had woken up. All the three accused had possessed knife and the fourth accused Yamin was also present. They had restricted the moment of complainant and her sister to the bed. Accused Yamin started throwing abuses and asked for keys. The fourth accused is about 35-40 years had opened the almirah and stolen one lakh rupees and then he had opened the locker and stolen the gold State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 2 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar jewellary lying there. Almirah had four bangles, one pair of kade, one necklace weighting about 15 tola and other jewellery which was stolen. Part of the jewellery was kept with the complainant by a relative weighing about 2 tola of bangles, silver coin of 15 tola and other jewellary. The other almirah was broke open by the other accused from which they had stolen five lakhs rupees. The golden ring and other jewellary was also stolen from the other almirah. They had put tape on the mouth of complainant and her sister and tied their hands and feet with the tape. The person who had taken the jewellary in bag was referred as Pandit by the accused. Accused Yamin was aged about 20-25 years. The accused after doing the robbery had bolted the door from outside and ran away. The complainant freed herself and her sister and raised alarm on which the neighbor Riyaz had opened the door and called husband of the complainant on phone. Police was also intimated. The complaint is Ex.PW1/A, on which FIR was registered. The Rukka was sent vide Ex.PW16/B. The site plan is Ex.PW1/DX.
Police had investigated the case and filed the chargesheet against three accused and fourth accused was not arrested till such date. Trial against the three accused was conducted by my Ld. Predecessor and said three accused were acquitted vide judgment dated 16.11.2009. Thereafter the present accused was arrested namely Shahzad Akhtar @ Sajjad Akhtar @ Rajja S/o State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 3 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar Sh. Mohd. Akhtar and supplementary chargesheet was filed.
2. Charge was given to accused Shahzad Akhtar on 08.07.2011 U/s 395/397/34 IPC. Prosecution has led PW-1 to PW-9 as evidence against the accused. SA against the accused was recorded on 03.01.2024. The accused himself has appeared in defence as DW-1 and DE was closed vide separate statement of Ld. Counsel for the accused on 15.05.2024.
3. Final arguments are heard on behalf of both the parties and record perused.
4. The prosecution has to prove the necessary ingredients laid down U/s 395/397 IPC. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 4 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 5 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 6 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 7 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 8 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 9 of 50 FIR No. 128/2003
U/s 395/397/120B IPC P. S. Sadar Bazar vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon"
and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 10 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 11 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
8. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 12 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 13 of 50 FIR No. 128/2003U/s 395/397/120B IPC P. S. Sadar Bazar
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 14 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 15 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for. Xxxxxxx
5. In the previous file against the other accused it is recorded in charge dated 19.09.2005 that accused Raja who is accused State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 16 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar Shahzad Akhtar @ Raja was not arrested and had committed dacoity under Section 395/397/34 IPC charge of which was given to the present accused on 08.07.2011 to which he had pleaded not guilty. However in the earlier case filed three of the accused are already acquitted vide judgment dated 16.11.2009. It is recorded in previous cross examination of PW-3 Ms. Saima that she cannot tell the description of three other associates who came in her house with accused Iliyas. Ms. Saima is PW-4 in the present proceedings. She cannot tell the details of jewellery stolen by the accused. She cannot tell the description of number of packets of currency stolen by the accused. She did not tell to the police the name of person who had opened the door when the accused had fled is Riyaz the neighbour whereas PW-1 Ms. Nazma in her previous recorded evidence had stated that she came to know about who opened the door was from Ms. Saima/PW-3.
6. Separate evidence was recorded against the present accused after his arrest in the case. The first plea raised by the present accused is that his name is not Shahzad Akhtar and his correct name is Sajjad Akhtar and to prove the above fact he had deposed as DW-1. He is also running a proprietorship firm under the name M/s Sajjad Akhtar Zari Work at Rampur UP. He was born and bought-up in UP. His 10 th class certificate is State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 17 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar Ex.DW1/A. His inter certificate is Ex.DW1/B. Photocopy of marksheet is Ex.DW1/C. Photocopy of certificate of commercial training issued by Government of UP is Ex.DW1/D which is for a period of August, 1983 to July, 1985. He was issued a certificate from District Industry Centre, Rampur dated 03.06.2008 doing work of sole proprietorship firm from 20.02.2004 is Ex.DW1/E. It is noted that this certificate pertains to work after registration of FIR. Similarly Income Tax Returns are furnished after the period of registration of FIR which therefore does not help the accused. However the identity of the present accused has come in question. It is deposed in cross examination by accused that he came aware of this case when he was declared PO on 25.08.2003. He was arrested in this case on 03.03.2011. Earlier he was arrested from Hafiz Ganj Tiraha by Special Cell vide Mark-X. Accused has failed to prove the satisfactorily evidence as to doing of his business prior to the year 2003. However there are Ex.DW1/A to Ex.DW1/D which create doubt in the case of the prosecution as to the correct identity of the accused. The burden of proof is on the prosecution correct identity of the accused. He has also disputed his place of residence. It is submitted that he is resident of Rampur and not of Bareilly.
7. The accused has refused TIP on which TIP proceedings State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 18 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar were recorded against him by the learned MM. It is submitted by learned Counsel for the accused that the TIP was not marked to learned Link MM as the learned Trial Court had observed in the order dated 03.02.2011 that on refusal of accused TIP could not be conducted and no further marking was given. However TIP was conducted by learned Link MM on 03.03.2011. In the said TIP the result was refusal by accused to get the TIP conducted. Hence in any case there was a refusal to get the TIP conducted and even when there is irregularity in recording of TIP proceedings by learned Link MM it does not cause any prejudice to the accused. It helps the accused to explain why TIP was refused. The burden of prove is hence shifted on the accused to prove that ground of refusal of TIP which is taking of photographs of the accused by Special Cell on the night of 18.02.2011. The accused had neither disclosed the name of officer of police who had taken the photograph nor the accused had disclosed that how many number of photographs of his were taken. In absence of which it is held that the accused has failed to discharge the burden of proof shifted on him. Hence adverse inference is liable to the drawn against the accused. This inference can only be drawn if there is other substantive evidence available against the accused as TIP proceedings are only a circumstantial evidence and in absence of other independent evidence it cannot stand on its own and no State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 19 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar conviction can be based on it.
8. PW-3 Ms. Nazma Taj had deposed that on 04.03.2011 she had reached at Police Station and identified the present accused. She came to know the name of the accused as Shahzad Akhtar and IO had told her that it is the same person who had committed dacoity. It is deposed voluntarily that the robber had taken the name of one Raja and he had mentioned the name of Raja. She had identified the said Raja. However she had deposed again that after the incident she had seen the accused first time in the Court. Therefore who was seen by PW-3 as the accused Shahzad Akhtar is not clear if she had seen this accused first time in the Court. She had deposed that her statements were recorded many times at her house and also at Police Station.
9. PW-3 could not produce the proof of ownership of jewellery allegedly stolen by the accused person. It is deposed that she got the said jewellery in her marriage however she could not show the photographs of her wearing the said jewellery. Police did not seize the keys of almirah and locker. The fact about the recovery of iron rod is not mentioned in the statement under Section 161 Cr. P. C. of PW-3 which is Ex.PW1/A and if the same was recovered at the spot then PW-3 State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 20 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar must have told the same in her statement.
10. PW-4 Shaima was staying in the house of PW-3. PW-3 is her elder sister. It is deposed by PW-3 that one of the robber had demanded the keys of the locker and thereafter they had opened the locker with iron rod by breaking it open. She pointed towards the accused that he had broken the locker with iron rod. She had denied the recording in her statement under Section 161 Cr. P. C. that the accused had alleged while leaving that they were sent by someone and they were leaving the victims/PW-3 and PW-4. The statement of PW-4 is Ex.PW4/DA. She does not remember if accused had taken away the iron rod and that she had not seen the iron rod subsequently. Contrary to her identifying the accused it is deposed as correct that she had seen the accused first time in the Court at the time of recording of this evidence.
11. Learned counsel for the accused has also pointed out that no recovery was effected from the present accused. The vehicle TATA Sumo bearing registration No.DL 4CF 8704 was recovered at the instance of accused Mohd. Nisar who has already been acquitted in this case and hence there is no connection of the said recovery with the present accused. Similary recovery from already acquitted accused could not be State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 21 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar connected with the present accused. The acquitted accused had disclosed their involvement with the present accused Shahzad Akhtar @ Raja however no recovery was effected from the present accused. The IO/PW-9 has deposed that no chance print was found at the spot. The name and address of the accused Shahzad Akhtar was given by co-accused in their disclosure statement at Bareilly where he could not be found by the IO. IO could not tell the name of family member of accused Shahzad @ Raja at the address of barielly nor he could tell the name of the neighbours. He could not tell about his departure and arrival at Bareilly with reference to DD entry. Hence the going by IO to Bareilly in search of Shahzad Akhtar @ Raja is not proved on record. The accused had filed Income Tax Return Ex.DW1/F which does not help this case as they were filed after the date of incident and not prior to that. However Ex.DW1/A to Ex.DW1/E show that the name of the accused is Sajjad Akhtar resident of Rampur. The identification of the accused has remained in dispute and it is not proved by the prosecution from record. It is deposed by PW-2 in cross examination that accused was unmuffled near the door of the Court Room on 03.03.2011.
12. It is deposed by PW-3 Ms. Nazma Taj that accused Shahzad Akhtar took an iron rod from his black bag and broke open the lock of almirah. The key of the locker was already State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 22 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar there in the keyhole of the locker/ safe. The above statement of PW-3 is difficult to believe is that when keys were already lying there in the locker then why the acucsed will broke it open with iron rod. It is depsoed by PW-4 Ms. Saima that one of the acucsed had demanded keys of the locker and they had opened the locker with the iron rod. This is contrary to the deposition of PW-3 that the keys of the locker were already lying within the locker. If keys were already lying in the locker then there was no reason with the accused to break it open with an iron rod. It is admitted as correct by PW-4 that she had seen accused Shahazad Akhtar first time in the Court on 01.10.2013 at the time of recording of evidence. PW-3 has also deposed at page 2 of the cross examination dated 10.04.2017 that she had seen the accused Shahazad Akhtar in the Court after the incident. It is deposed by PW-3 that her statement was recorded many times in her house as well as in the PS. It shows that statement of PW- 3 was taken multiple times for making improvement in the case of the prosecution from time to time. She could not furnish proof of true ownership of jewellery or cash which was allegedly robbed from her. Prosecution has failed to prove any proof of breaking open of locker of the almirah and of the almirah. PW-5 who is husband of PW-3 had deposed that lock of two almirah were broken and 10-12 empty jewellery box were lying on the ground. However in his evidence also the State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 23 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar prosecution has failed to bring photographs or examination of the locks of the almirah which were broken or whether there was one almirah or two almirahs. No proof of stolen jewellery is brought on record if it was in prior possession of the victims. PW-9 could not find any chance print at the spot though he had lifted iron rod, plaster tape and blood lying at the spot. PW-3 in cross examination dated 13.03.2007 could not tell the description of the accused which is so recorded at page 3. PW- 3 Ms. Saima in her previous statement / judgment at page 1 had deposed that her sister told the acucsed person that the keys were already there in the almirah and the accused had opened the almirah. Hence PW-3 Ms. Saima does not depose in her earlier statement that the almirah was broke opened by the accused person. Now she has impovered her deposition. PW-3 Ms. Nazma Taj in her new statement at page 2 in the first few lines had deposed that the accused had opened the almirah and she had told the accused where the key were lying. Hence there is contradictory deposition made by the witnesses regarding breaking open of lock and regarding the manner in which the almirah is opened and in this respect the story of the prosecution has become doubtful.
13. It is pointed out by the learned Counsel for the accused that in evidence of PW-6 Inspt Rakesh Kumar during cross examina State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 24 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar tion it is deposed that he did not place any docuement on record to show that accused Shahzad was also known by name Raja or by name Sajjad Akhtar. Such name was recorded by PW-6 only from the disclosure statement of the accused recorded by Special Cell. It is further pointed out that in previous trial the witness Saima /PW-3 had deposed in cross examination dated 13.03.2007 that she cannot tell the description of other three associate who came inside the house with accused Iliyas.
14. Hence the prosecution has failed to prove the identity of the accused and failed to connect the accused with the robbery. The prosecution has failed to prove that the accused had committed theft or that the accused had caused or attempted to cause death, hurt or wrongful restraint or such fear. Hence necessary ingredients of dacoity are not proved on record and association of the present accused is not proved with the other accused.
15. The accused has relied on citation title Wakil Singh And Ors. vs. State of Bihar AIR 1981 SC 1392 at para No.2, 3 and 4 wherein it is laid down that the identification at TIP was made after about 3 months from the dacoity. There was much lapse of time during which it is not possible for any human being to remember the features of the accused and there is much State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 25 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar possibility of committing mistakes. Unless the evidence is absolutely clear it would be unsafe to convict for a serious offence on the testimony of a single witness. The relevant paras are reproduced hereasunder:
2. In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court, however has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness.
3. Lastly, since the High Court was reversing an order of acquittal, it failed to take into consideration the fact that having regard to there being only one witness who identified the accused concerned, the view taken by the trial court could not be said not to be reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant who had been identified by only one witness must be acquitted. Thus, Wakil Singh, to start with, has been identified by PW 9 and for the reasons that we had stated above, it would be wholly unsafe to maintain his conviction on the basis of the evidence of PW 9 alone. Another circumstance against the prosecution, with respect to this appellant, is that although PW 9 State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 26 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar was present on the 4th September, 1965 when a T.I. parade was held, he was not asked to identify the appellant, but the witness identified the accused 4 days later i.e. to say on 8th April, 1965.
These circumstances also throw some doubt on the complicity of this appellant.
4. Similarly appellant Krishandan Singh has been identified only by PW 15 and for identical reasons which we have given in the case of Wakil Singh, it will not be possible for us to uphold the conviction of this appellant also, as his conviction is based on a single identification, particularly when he was acquitted by the trial court.
16. Another citation relied upon by the accused is tilted Hardial Singh vs. State of Punjab AIR 1992 SC 1871 at relevant para No.2 wherein it is laid down that when the witnesses were committing mistakes in identifying the assailants on the basis of which evidence of such witness was rejected in respect of 4 accused then the same evidence cannot be relied upon for the purpose of remaining accused. The evidence is common to all the accused. If benefit of doubt in identification of the assailants is given to some of the accused then that benefit would also accrue to the appellant equally. The relevant para is reproduced hereasunder:
2. The case rested on the evidence of three eye-witnesses P.Ws 4, 5 and 7 who are all interested. The High Court after considering the evidence of these three eye-witnesses exhaustively was not prepared to accept their evidence in respect of other four accused. The High Court convicted the appellant on the sole ground that the fatal blow was attributed to him. At one stage the High Court even commented that there is every possibility of the witnesses committing mistake in identifying the assailants. Having made such observations on the State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 27 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar basis of which the evidence of the eye-witnesses was rejected in respect of four other accused, we are unable to see as to how the same can be relied upon in respect of the appellant. The general grounds on which the evidence of the eye-witnesses has been rejected would equally apply to the case of the appellant also.
Merely because the fatal blow is attributed to him that does hot in any way negative the infirmities which are of general nature affecting their veracity. The evidence is common to all the accused. If the identification of the assailants is found to be doubtful then that benefit would also accrue to the appellant equally. If there was delay of 22 hours in giving the F.I.R. and if the same creates a doubt about the truthfulness of the prosecution case the benefit of the same accrues to the appellant also. We are therefore of the view that the reasons given for the acquittal of the other four accused would equally apply to the case of the appellant also and he is also entitled to the benefit of doubt. Accordingly we set aside the conviction and sentence of the appellant and if he is on bail, his bail bond shall stand cancelled. The appeal is allowed accordingly.
17. It was held in case titled Man Singh & Anr vs State of Madhya Pradesh in Cr. A No.312 of 2011 dated 27.04.2022 from Hon'ble High Court of Madhya Pradesh at relevant para that Section 34 IPC does not create a distinct offence. It was laid down that Section 34 does not create a distinct offence but it is a principle of constructive liability. The relevant para are reproduced as hereunder:
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.'' (23) So far as next contention of the counsel for the appellants that no conviction for instigation or exhortation can be recorded against the accused appellant Man Singh alleged to have exhorted the actual assailant is concerned, in the case at hand, there is direct and positive evidence that at the instigation of appellant accused Man Singh, appellant-State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 28 of 50 FIR No. 128/2003
U/s 395/397/120B IPC P. S. Sadar Bazar accused Narendra fired at the deceased. Therefore, in the light of unanimous and categorical statements of prosecution witnesses, the contention of counsel for the appellants is not acceptable. The evidence of witnesses relating to exhortation is clear, cogent and reliable. In view whereof, it cannot be said that appellant accused Man Singh was not sharing common intention with appellant accused Narendra Singh in commission of murder of deceased in question. In this regard, a reliance can be placed on the decision of Rajasthan High Court in the matter of Bhoma Ram Vs. State of Rajasthan 1987 WLN UC 128 wherein, it has been held as under:-
''10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109 IPC. Section 34 IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the materials from which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar, it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC.State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 29 of 50 FIR No. 128/2003
U/s 395/397/120B IPC P. S. Sadar Bazar 11 Section 109, IPC defines abetment.
Among other things, it speaks that a person abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.
12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.'' (24) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the 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. (25) In the recent decision of Jasdeep Singh alias Jassu vs. State of Punjab decided on 7th January, 2022 in Criminal Appeal No.1584 of 2021 (Arising Out of SLP (Crl) No. 1816 of 2019) State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 30 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar the Hon'ble Apex Court has observed as under in detail:-
''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:
"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 31 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 32 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 33 of 50 FIR No. 128/2003U/s 395/397/120B IPC P. S. Sadar Bazar
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.
29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 34 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC. xxx xxx xxx
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"22. The above discussion in fine thus culminates to the effect State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 35 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused
-- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. 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". By S. 38, when several State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 36 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act" and "the act"
in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
Mehbub Shah v. Emperor (AIR 1945 PC 148):
"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all."
Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan..."
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 37 of 50 FIR No. 128/2003U/s 395/397/120B IPC P. S. Sadar Bazar Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
"11. Under Section 34 a person 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...."
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 38 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre- concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 39 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... "
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC
120)]:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.
While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 40 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea"
as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22.Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:
"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 41 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre- concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 42 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.
16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.
xxx xxx xxx
36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories:
(1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.
37. Under the Penal Code, a person is responsible for his own act.
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 43 of 50 FIR No. 128/2003U/s 395/397/120B IPC P. S. Sadar Bazar A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 44 of 50 FIR No. 128/2003U/s 395/397/120B IPC P. S. Sadar Bazar
41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act.
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
(26) The well-established principle of law underlying provisions of Section 34 of IPC emerges from decision of Justice Vivian Bose in Pandurang, Tukia and Bhillia vs. The State of Hyderabad 1955 SCR (1) 1083 wherein it has been held as under:-
"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 45 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all:
Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King-Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "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". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis supplied) (27) Similarly, in the matter of Virendra Singh v. State of MP (2010) 8 SCC407 the Hon'ble Apex Court has explained the ambit of words "in furtherance of common intention of all"
and has observed as under:-
''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 46 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar Digitally signed JOGINDER by JOGINDER PRAKASH PRAKASH NAHAR NAHAR Date: 2024.07.27 15:00:55 +0530 had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."
(28) Followings are fundamental principles underlying Section 34 of IPC:-
''(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-
meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 47 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar for the prosecution to prove who actually committed the crime.
(29) The above fundamental principles have been adopted and applied by Hon'ble Apex Court in the matter of Chhota Ahirwar v. State of MP (2020) 4 SCC 126 as under:-
"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 :
(2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 :
AIR 1925 PC 1], "they also serve who stand and wait".
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."
(30) In the recent judgment of Sandeep v. State of Haryana 2021 SCC Online SC 642, a two-judge Bench of the Hon'ble Apex Court has held that an exhortation given by an accused immediately before a co-accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of accused under Section 302 read with Section 34 of IPC.
18. In the present case there is contradiction regarding the identification of accused not only between PW-3 and PW-4 on the one hand but also there is variation in their deposition in evidence already given by them in their previous deposition in State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 48 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar the judgment already granted in favour of remaining acucsed who were acquited in the case. No evidence is brought on record to prove the common intention of the accused under Section 34 IPC. The contradictions and variations are already discussed above in the present judgment and for the sake of brevity the same is not repeated herein. Hence it is held that the accused could not identified by the prosecution witness and benenfit of doubt needs to be extended to him. Further for the same reason the benefit of which is extended to the already acquitted accused also liable to be extended to the present accused. No knife and revolver was recovered in the present case as a weapon of offence. No charge is there in respect of iron rod which was alleged recovered from the spot. However the prosecution has failed to prove the use of such iron rod in the alleged act of dacoity or that if any lock of almirah was broken. In view of above discussion, it is held that the prosecution has failed to prove the charge against the accused under Section 395/397/34 IPC. Hence the accused is acquitted of offence punishable under Section 395/397/34 IPC.
19. In view of the discussion held above it is found that the prosecution has failed to prove that the accused Shahazad Akhtar @ Sajjad Akhtar had committed the offence punishable under Section 395/397/34 IPC. Hence the accused Shahzad State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 49 of 50 FIR No. 128/2003 U/s 395/397/120B IPC P. S. Sadar Bazar Akhtar @ Sajjad Akhtar is acquitted of the offence charged against them under Section 395/397/34 IPC. Accordingly, the accused stands acquitted. His earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. P. C., accused has furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally signed by
Announced in the open court JOGINDER
PRAKASH PRAKASH NAHAR
on dated 27.07.24 NAHAR
Date: 2024.07.27
15:00:27 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/27.07.24
State vs. Shahzad Akhtar @ Sajjad Akhtar Etc Page 50 of 50
FIR No. 128/2003
U/s 395/397/120B IPC
P. S. Sadar Bazar