Decided on November 12,1963

STATE Respondents


N.M.MIABHOY, M.U.SHAH - (1.) This Confirmation Case and the appeal arise out of the order dated 16th September 1963 passed by the learned Sessions Judge Ahmedabad (Rural) at Narol in Sessions Case No. 23 of 1963. This judgment will dispose of both the proceedings. The appellants are Bhurabhai Mugarbhai and Musa Jusab. They were accused Nos. 1 and 3 respectively in the Sessions trial. These two accused and five others were charged for the offences under sections 147 148 and 302 read with section 149 Indian Penal Code. All the seven accused persons were acquitted of those charges and we are no longer concerned with them in the present proceedings. All the accused persons were also alternatively charged for the offence under section 302 read with section 34 Indian Penal Code. The learned Sessions Judge convicted the aforesaid two appellants for the offence under sec. 302 read with sec. 34 Indian Penal Code and acquitted the rest of that alternative charge also. The learned Judge has sentenced appellant Bhurabhai to death for the aforesaid offence and appellant Musa to suffer life imprisonment. The learned Sessions Judge has submitted the proceedings for confirming the death sentence awarded to accused Bhurabhai and the latter and accused No. 3 Musa Jusab have preferred the aforesaid appeal challenging the order of conviction for the offence under section 302 read with section 34 Indian Penal Code.
(2.) We may first of all set out the facts preceding the occurrence which took place on 3rd of January 1963 as a result of which occurrence the aforesaid charges were levelled against the two appellants and the other five accused. There is no dispute regarding these facts. Accused Bhurabhai is the father of Nurmohmed original accused No. 2. Musa Jusab original accused No. 3 and Ebrahim Jusab original accused No. 4 are brothers and they are the nephews of Bhurabhai. The original accused Nos. 5 6 and 7 were alleged to be the associates of accused Nos. 1 to 4. Bhurabhai his son and his nephews were all the residents of the town of Viramgam. They were the neighbours of one Gulmohmedkhan Amirbasatkhan who is alleged to have been murdered in the aforesaid occurrence. On 27th of August 1962 the daughter of Bhurabhai was murdered and on an information being lodged therefor a chargesheet came to be filed against Gulmohmedkhan and some others. On the same day Gulmohmedkhan also filed a counter complaint against (1) Bhurabhai (2) Nurmohmed original accused No. 2 (3) Musa and two others. Evidence was recorded in the case against Gulmohmedkhan and others and an order committing them to the Sessions Court was already recorded. Therefore on 3rd January 1963 that murder case was pending in the Sessions Court at Ahmedabad. The counter case filed by Gulmohmedkhan was pending in the Court of the Judicial MagistrateFirst Class at Viramgam. That case was fixed for hearing on 3rd January 1963 Gulmohmedkhan was an under-trial prisoner and after the order of commitment was made he was transferred to the Central Jail at Sabarmati. However he was to be examined as a witness in the counter case filed by him. Therefore on 2nd January 1963 two armed constablesviz. (1) witness Hanifkhan and (2) one Lalji took charge of Gulmohmedkhan and brought him to Viramgam by a train which arrived there at about 8-00 or 8-30 P. M. Gulmohmedkhan was produced before the learned Magistrate at his house and was subsequently taken to the Sub-Jail at Viramgam. The witness Mohmed Sidique was in charge of the Sub-Jail. As be was not on duty at that time the witness Bhairavsingan armed Head Constable received Gulmohmedkhan and put him in the Sub-Jail. On 3rd of January 1963 the witness Dariyavkhan an armed constable was directed by the officer in charge of the Police Station at Viramgam to take Gulmohmedkhan from the Sub-Jail to the CourtHouse. Dariyavkhan went to the Sub-Jail and was taking Gulmohmedkhan to the Court House at about 11-45 A. M. or 12-00 noon. The prosecution alleges that at this time Dariyavkhan was accompanied by armed Constables Hanifkhan and Lalji. It further alleges that Gulmohmedkhan was handcuffed and roped. Lalji was holding the rope and walking behind Gulmohmedkhan and Dariyavkhan was on Gulmohmedkhans left and Hanifkhan was on his right. In the course of their journey the party had to pass by a gate named Bharwadi Gate. When the party negotiated by the side of this gate it came across one Abhesing an armed Constable who had been assigned the duty of carrying Gulmohmedkhan to the Court House with Dariyavkhan but who had been sent by Dariyavkhan to the Police Station to fetch some more armed constables Abhesing then left for the Police Station to fetch his rifle. A little further up the party came across the witness Dunger Moti the first informant. He had been asked by Abhesing to join the escort party. Abhesing said that he would go to the police lines where he was residing and would come back with a Lathiin his hand. The prosecution alleges that after the party had negotiated a few more steps suddenly Gulmohmedkhan was assaulted from behind by the two appellants and the original accused Nos. 2 and 4. The assault is alleged to have been made as a result of the grudge which these four persons bore against Gulmohmedkhan for their belief that he was the murderer of the daughter of accused No. 1. The prosecution alleges that accused No. 1 was armed with a dharia accused No. 2 with a Gupti and accused Nos. 3 and 4 with knives. It further alleges that all the four persons caused several injuries on Gulmohmedkhan as a result of which he fell down seriously injured. The three armed constables who are alleged to have been escorting Gulmohmedkhan tried to intervene but they were unsuccessful. In the resultant scuffle the coat of witness Dariyavkhan became torn and blood-stained and the butt of the rifle of Lalji received two strokes of the dharia in the hands of the appellant Bhura. The prosecution further alleges that whilst the assault was still on Police Constables Abhesing Sukhdev and Chanubha came running; that on seeing them the original accused Nos. 5 6 and 7 who were standing in the crowd which by that time had gathered round the assaulting party shouted to accused Nos. 1 to 4 that the constables were coming and suggested to them that they should run away. The prosecution says that accordingly the four accused and the other three accused left the place and ran away towards the south. Police constables Sukhdev and Chanubha tried to chase the assailants but without any success. The witness Dunger Moti arrived at the scene immediately after the assailants had left. Dariyavkhan told him about the incident. He gave him the names of accused Nos. 1 to 4 as the assailants of Gulmohmedkhan and mentioned the weapons which they had carried and requested Dunger Moti to proceed to the police station to lodge the first information. The police station is about a furlong away from the scene of offence. Dunger Moti took a bicycle and rushed to the police station and lodged the first information. In the meantime the escort party removed the hand-cuffs and the rope from Gulmohmedkhan placed him on a handcart and took him directly to the local hospital which is about a mile away. Dr. Patel received Gulmohmedkhan and started the treatment.He wrote a Yadi to the police officer and requested him to arrange for taking a dying declaration of Gulmohmedkhan as he was in a serious condition. Accordingly witness Mr. Malek was requested to go to the hospital for recording the dying declaration. That officer put two questions and recorded the answers of Gulmohmedkhan; but Gulmohmedkhan became unconscious after giving the second answer. The result was that no further dying declaration could be recorded. Gulmohmedkhan stated in his declaration that he was assaulted by Bhura and Musa. The police then started an investigation. The houses of some of the accused were searched on the same day but nothing incriminating was found. According to the prosecution all the sevenaccused persons were found absconding. Accused Nos. 3 and 4 surrendered themselves to the police on 6th January 1963 and were arrested. Accused Nos. 1 and 2 were arrested from a village named Karadi on 1st February 1963 It is not necessary to mention when the other accused were arrested. Ultimately a charge-sheet was sent against all the seven persons. They were committed to the Sessions Court Ahmedabad (Rural) at Narol and ultimately charged as aforesaid.
(3.) The defence of all the accused was one of total denial. According to accused Nos. 1 to 4 they were not present at the time when the incident took place. Accused Nos. 1 and 2 contended that at the time when the incident took place they were at Rajkot they having left for that place sometime on 31st December 1962 and that they had moved from Rajkot to different places in connection with their business activities. Accused No. 3s case was that on the day on which the incident took place he joined his duty as a cleaner and was her of Railway Carriages at about 7-00 A. M. and that he had rendered service at the Viramgam Railway Station Yard till 3-00 P.M. Accused No 4 said that he was serving at the relevant time at a tea stall on the Viramgam Railway Station. [ His Lordship discussed the evidence and held that the cumulative effect of all this evidence is that accused No. 3 also participated in the assault. His Lordship further observed. ] 31 But the accused Nos. 1 and 3 have not been convicted for the actual injuries which they have caused. In fact the injuries which have been actually caused by these two persons are simple hurts and that is clear from the medical evidence in the case. Both these persons wielded a dharia and knife respectively. The fatal injuries were caused by the person alleged to be armed with a Gupti. On this basis the argument which is advanced by Mr. Thakore is that accused Nos. 1 and 3 can at the most be convicted for the offence of causing simple hurt with dangerous weapons in conjunction with section 34 of the Indian Penal Code. His contention is that these two accused persons cannot be convicted for the offence of murder read with section 34 Indian Penal Code. In support of this contention Mr. Thakore very strongly relies upon the case of Krishna Govind Patil v. State of Maharashtra reported in A. I. R. 1963 Supreme Court 1413. In that case four accused were charged under section 302 read with section 34 of the Indian Penal Code for committing the murder of a certain person in furtherance of their common intention. They were also charged individually under section 302 Indian Penal Code. The learned Sessions Judge acquitted all the accused. The Government did not prefer an appeal against the order acquitting each of the accused persons of the charge under section 302 of the Indian Penal Code but preferred an appeal against all of them in relation to the charge under section 302 read with section 34 of the Indian Penal Code. The High Court in appeal upheld the acquittal of the three of the accused persons but convicted one of them of the offence under section 302 read with section 34 of the Indian Penal Code. In recording the conviction against the latter person the High Court said that it was satisfied that that accused along with one or more of the other accused had committed the offence and that accused No. 2 was therefore clearly guilty under section 302 read with section 34 of the Indian Penal Code. The argument which was advanced before Their Lordships of the Supreme Court in support of the appeal was that the learned Judges of the High Court having upheld the acquittal of the other three accused persons the conviction under section 302 read with section 34 of the Indian Penal Code was unsustainable because section 34 was not applicable in a case where a person alone had committed a crime. The argument was that the charge as well as the evidence was only directed against the four named accused persons as the participants in the common intention to commit the murder and the High Court having acquitted three of them the conviction of one of them was inconsistent with the order of acquittal. Their Lordships upheld this contention and acquitted the convicted accused on the ground that the other three accused persons having been acquitted the charge under section 34 was legally impossible. Now Mr. Thakores contention is that this case is not only an authority for the proposition that where as a result of the consideration of the evidence only one person happens to be convicted a charge under section 34 is not maintainable but that it is also an authority for the proposition that when a person is acquitted of a particular crime then whether the acquittal is based upon the finding that the evidence against him is not acceptable or whether the acquitted person has been given the benefit of doubt the acquittal order makes it legally impossible for the Court to found a conviction of his co-accused on the basis that the acquitted person had participated in the crime. In other words the contention is that once a person is acquitted of an offence the Court is debarred from recording a finding against a co-accused on the basis of the evidence rejected in relation to the acquitted person that the accused had committed the crime in conjunction with the acquitted person. We have carefully considered the judgment delivered by Their Lordships and on the whole we have come to the conclusion that although there is a passage at page 1417 in paragraph 8 of that judgment which supports the argument of Mr. Thakore the principle which governs the present case is not the one which is enunciated by Their Lordships in that case but the principle which governs a case of the present type is the one which is enunciated by Their Lordships in the case of Sunder Singh and others v State of Punjab reported in A. I. R. 1962 Supreme Court 1211. The passage from Krishna Govind Patils case A.I.R. 1963 Supreme Court 1413 referred to above which supports Mr. Thakores contention is as follows:-- The High Court gave conflicting findings. While it acquitted accused 1 3 and 4 under section 302 read with section 34 of the Indian Penal Code it convicted accused 2 under section 302 read with section 34 of the said Code. for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them the result in law would be the same:- it would mean that they did not take part in the offence. The effect of the acquittal of accused 1 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2 accused 2 could not have acted conjointly with them. In our judgment the aforesaid observations must be read in the context of the facts of that particular case and the principle for which Mr. Thakore contends cannot be extracted from the case unless the aforesaid passage is wrenched from the context in which the aforesaid observations were made. In the aforesaid case as a result of the acquittal by the High Court the situation which arose in the High Court was that only one person remained to be convicted and having regard to the fact that in order that there may be a conviction under section 34 more than one person is necessary a conviction under section 34 was nots legally possible. In the present case it is not this Court which is recording the order of acquittal in favour of accused Nos. 2 and 4. It is true that the order of acquittal recorded in favour of accused Nos. 2 and 4 is final and cannot be disturbed by this Court unless an appeal is preferred to this Court against the order acquitting accused Nos. 2 and 4 But a distinction must be made between the effect of the finding on which finding the acquittal order is based qua a person and its effect qua another person when the question is not what effect that finding has on the case of the acquitted person but on the case of a co-accused which case is under consideration by not the same Court which records the acquittal order but by the appellate Court which has a duty to consider the whole record afresh and to reach its own conclusion untrammelled by the findings of the trial Court. It is quite clear that this problem is quite different from the one considered by Their Lordships. Two questions may be posed in this connection. Does the order of acquittal in favour of a person attract the principle of autrefois acquit in favour of his co-accused ? The poser has no merit whatsoever. The principle of autrefois acquit can be applied only in favour of the person acquitted and not in favour of a co-accused. The co-accused cannot claim in law any benefit on the basis of the acquittal order. The second poser is whether he can get any benefit from the finding or findings recorded in favour of his co-accused on which the acquittal order is grounded. Nowcases can be envisaged in which a finding regarding the complicity of an accused may be recorded against that accused and yet he may have to be acquitted. The Court may hold that the accused has participated in a crime and yet it may have to acquit him on the ground that the evidence on which the finding is based is accomplice evidence and there is no such corroboration qua that accused which prudence demands to convict him. However in respect of his co-accused the Court may find such corroboration and convict him. Is there any principle of law which says that inspite of its finding which the Court believes to be true that both the accused had committed the crime the Court must acquit the co-accused too simply because the accused has to be acquitted on the principle that there was no legal corroboration ? It is quite clear that Their Lordships were not considering the above problem-the problem of what is the effect of a finding in favour of an accused on the case of his co-accused. It may be that it would be in very rare cases that a Court which records a certain finding on the evidence in relation to one accused would record a different finding in relation to his co accused. But the question in such a case is one relating to appreciation of evidence and not one relating to application of any principle of law. Whatever one may say as to what the trial Court should do whilst appreciating the evidence as a whole against all the accused it is quite clear that when the matter is brought before the appellate Court it is bound to appreciate the evidence as a whole and unless the appellate Court is debarred by law from recording a finding inconsistent with the one recorded by the trial Court it is clear that the appellate Court must reach its own conclusions. The whole of the judgment and the whole record of the case is before this Court for the purpose of appreciating whether the case against accused Nos. 1 and 3 has or has not been made out. This Court is not precluded from considering the evidence in so far as it affects the case for and against accused Nos. 1 and 3. In fact it is the duty of this Court to decide the case on the basis of the evidence which is on record and there is no principle of law which says that an order of acquittal has a result other than that of the application of the principle of autrefois acquit. In fact as already said cases can be envisaged where an acquittal order may be recorded by a Court in respect of an accused and still the Court may have to record a conviction of his co-accused on the basis of his complicity. As already pointed out for example if the evidence against a certain person is based on accomplice evidence and if the question to be considered is whether the accused person should be convicted on the basis of such evidence it is well known that the Court will not convict the accused person unless the evidence is corroborated in material particulars. In a given case there may be no evidence of corroboration against the accused person and yet there may be such evidence against his co-accused. The Court whilst accepting the evidence of the accomplice against the accused person may record an order of acquittal against whom no corroboration is available. That does not mean that the Court is to throw overboard all the findings which it may have recorded when considering the evidence of accomplice which it is prepared to accept against both the accused. In fact if the Court were to do so it will be guilty of inconsistency i. e. acquitting the co-accused inspite of a clear finding that both the accused had participated in the offence. In such a case the order of acquittal has no significance so far as the case against the coaccused is concerned It is based on a rule of prudence the benefit of which can be given in the illustration in hand only to the accused and not to the co-accused. There are some more considerations which are relevant on the subject. For example in the present case the period of appeal is still not over and it is open to the prosecution to prefer an appeal. This Court if an appeal happens to be preferred might reach a conclusion different from that which is recorded by the learned Sessions Judge regarding the cases against accused Nos. 2 and 4. If the aforesaid principle for which Mr. Thakore contends were to be applied in that event it is quite clear that manifest injustice will occur in case this Court happens to record a finding different from that recorded by the learned Sessions Judge against accused Nos. 2 and 4. In some cases the same set of persons may not be tried in one and the same trial and different persons may be tried in different trials. One person in one trial may be convicted on the finding that the individual concerned was acting conjointly with another and in another and a separate trial on the basis of the evidence adduced in that case that other person may happen to be acquitted. If the principle for which Mr. Thakore contends were to be applied then the moment the second person is acquitted the conviction of the first person will have to be revised. In our judgment when Their Lordships made the aforesaid observations Their Lordships were not laying down as to what was the effect of an order of acquittal when considering the evidence against the other accused persons. What Their Lordships laid down was that if the Court acquits a person of a crime then that Court must give full effect to that acquittal and it should not convict his co-accused on the principle of vicarious liability if ultimately there is none with whom the co-accused could have shared the common intention The question for consideration in the present case is whether the evidence on record justifies that the accused Nos. 1 and 3 had or had not any common intention with the person who according to the evidence wielded the Gupti. It may be that that person may have been acquitted and the prosecution if the appeal against him is time-barred is now precluded from getting that accused convicted of that offence but in so far as the whole record is before this Court in our judgment there is no principle of law which debars this Court from performing its duty of determining as to whether the evidence does or does not justify the recording of the conviction of the two accused persons that they were acting in concert with some other persons who may have happened to be acquitted. In our judgment in a problem of the above kind the principle which applies is the one laid down in Sunder Singhs case A.I.R. 1962 Supreme Court 1211. In that case one of the co-accused one Rachhpal Singh was acquitted of the offence of murder on the finding that he did not share a common intention with the other accused persons. In appeal the High Court considered the question as to whether Rachhpal Singh had or had not the common intention with the persons who had been convicted. An objection was raised before Their Lordships of the Supreme Court that the High Court was wrong in doing so. Their Lordships answered the objection as follows:-- "Where more persons than one are prosecuted and one of them is acquitted and others are convicted the order of acquittal cannot be set aside unless an appeal had been duly preferred in that behalf against the said order. But the provisions of sec. 423(1)(a) do not create a bar against the appellate Court considering indirectly and incidentally the case against the person who was acquitted if that becomes necessary when dealing with the case in appeal presented on behalf of the other accused who are convicted. In considering the evidence as a whole the appellate Court may come to the conclusion that the evidence against the person acquitted was also good and need not have been disc arded". [ His Lordship further held that the circumstances of the present case do not leave any doubt that accused Nos. 1 and 3 were guilty of the offence under sec. 302 read with sec. 34 Indian Penal Code. His Lordship further observed.]34 For the aforesaid reasons there will be no order on the reference. The appeal of accused No. 3 will be dismissed and that of accused No. 1 will be partially allowed. The convictions of both the accused Nos. 1 and 3 are upheld and the sentence of accused No. 3 is confirmed and that against accused No. 1 is converted into a sentence for life imprisonment.;

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