STATE Vs. FAZAL
LAWS(RAJ)-1952-11-14
HIGH COURT OF RAJASTHAN
Decided on November 28,1952

STATE Appellant
VERSUS
FAZAL Respondents


Referred Judgements :-

MAHBUB SHAH VS. EMPEROR [REFERRED TO]



Cited Judgements :-

KUNDAN VS. STATE [LAWS(RAJ)-1958-7-2] [REFERRED TO]
JEEWAN VS. STATE [LAWS(RAJ)-1963-10-7] [REFERRED TO]


JUDGEMENT

- (1.)THIS is an appeal by the State against the acquittal of Fazal accused under sec. 302 of the Indian Penal Code.
(2.)FAZAL and his brother Imamuddin stood their trials under sec. 302 read with sec. 34 of the Indian Penal Code for the murder of Ahmad before the Additional Sessions Judge of Bikaner, with respect to an incident which took place in village Bhadra on the evening of the 14th October, 1949. Imamuddin was convicted under sec. 302 and sentenced to transportation for life, FAZAL however was acquitted under sec. 302 read with sec. 34. He was convicted under sec. 324 I. P. C. with respect to the injury caused to Fez, about which there was a separate charge. This appeal is with respect to the acquittal of FAZAL under sec. 302 read with sec. 34 with respect to the murder of Ahmad.
Both the accused Imamuddin and Fazal had appealed to this Court against their conviction, and that appeal (Criminal Appeal No. 69 of 1951) was decided by us on the 2nd November, 1951. The present appeal was filed on the 2nd January, 1952, and that is why it could not be connected with that appeal.

The facts, which we found proved in that appeal, and which may be taken to be proved, are these: Ahmad deceased and his son Fez were counting their sheep in front of their house. The house of Imamuddin and Fazal is near that of Ahmad, and these two were also with their herd of sheep in front of their house. A dog belonging to Imamuddin and Fazal entered the herd of Ahmad who hit it and drove it away. This was not liked by Imamuddin and Fazal. They went into Imamuddin's house, and brought spears and attacked Ahmad. Imamuddin struck a spear blow on the chest of Ahmad who fell down injured. Imamuddin then drew out his spear, and Ahmad died soon after. In the meantime Fazal attacked Fez who managed to save himself by putting up his left hand which was slightly injured.

The argument on behalf of the State is that the attack on Ahmad and Fez by Imamuddin and Fazal was made in pursuance of the common intention of both of them, and sec. 34 therefore applies, and Fazal should also have been convicted under sec. 302 read with sec. 34.

The oral evidence as to whether Imamuddin and Fazal had said anything before they went into the house, or after they came out of the house, is discrepant, and the question whether sec. 34 applies or not will depend upon inferences to be drawn from the conduct of the two accused.

The leading case on the interpretation of sec. 34 is Mahbub Shah vs. Emperor (1) (A. I. R 1945 P. C. , 118. ). In that their Lordships of the Privy Council drew a distinction between common intention as mentioned in sec. 34, and similar intention. The following observations at page 120 make the position quite clear - "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. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. "

Their Lordships then referred to the facts of that case and pointed out that there was no pre-concert between Mahbub Shah and Wali Shah who came from different directions on the shouts of help raised by Quasim Shah and fired shots. Wali Shah shot down Allah Dad dead, while Mahbub Shah merely injured Hamidullah. It was pointed out that though their intention was similar namely to help Quasim Shah, there was no common intention on their part to kill Allah Dad. The following observations at page 121 bring out the difference between 'common intention' and similar intention - "care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. In their Lordships' view, the inference of common intention within the meaning of the term in sec. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. "

What we have to see in this case is whether the circumstances of the case justify the necessary inference that there must have been a common intention between Imamuddin and Fazal. Cases where two or more persons attack another simultaneously are of common occurrence. These cases may be broadly divided into two categories. In the first category come cases like Mahbub Shah's were the assailants do not have an opportunity at all of having a prearranged plan. This may arise for example if the assailants come separately from different directions, though they take part in the same incident, or if they arrive at different times, though they join in beating the same person, or if the attack arises suddenly, provided, of course, no word is exchanged between them to establish a concert at the moment of the attack. In such a case, there may be similar intention in the minds of the assailants, but there will not be common intention, and sec. 34 will not apply.

In the second category come those cases where there is an opportunity for the assailants to have pie-concert. In such cases, sec. 34 would generally apply and common intention would be presumed, provided the conduct of the assailants is such as to give rise to an inference of pre-concert. If four persons come together armed with lathis and start beating somebody, they obviously had an opportunity of pre-concert and could have arrived at a common intention. If therefore these four persons, after arriving together armed with weapons, suddenly start attacking some one, the inference necessarily is that they must be doing so in pursuance of a common intention, for it is not usual to find four persons arriving together armed and beating a victim without some kind of preconcert between them. In all cases therefore, where there is an opportunity for the assailants to arrive at a pre-arranged plan, and their conduct is only consistent with the existence of a common intention between them, the inference must be that they were acting in pursuance of their common intention. It may however be possible in a case also to show that their conduct at the time of the incident was such that though they might have had an opportunity of pre-concert between them. For example, if four persons come together armed with lathis, but, when the attack begins, two of them start beating the victim, while the other two try to intervene and save him, the presumption of common intention, which might be inferred from the fact that they could have arrived at a common intention, is destroyed by their conduct. In such a case, common intention cannot be presumed even between those two who beat the victim. These observations should, however, be understood to apply to those cases where there is want of evidence as to any declaration of intention by the assailants just before the attack. Again, for example, just before the attack begins, one of the assailants incites the others, and then all begin attacking the victim, there is proof of common intention even though the assailants might have collected from different directions, or at different times. Where however no such evidence is available, the absence of an opportunity of arriving at a pre-concert would always destroy the presumption of common intention, while the existence of such an opportunity for preconcert would generally lead to a presumption that there was pre-concert, unless the conduct at the time of the incident destroys such a presumption.

We have therefore to see whether we can presume common intention in the present case applying the principles we have just enunciated. We have pointed out that there is no satisfactory evidence of anything having been said by either Imamuddin or Fazal either before they went into the house or after they came out with spears. The evidence however shows that they were annoyed with the conduct of Ahmad when he hit their dog and drove it away. Both of them went together into the house of Imamuddin and came out shortly afterwards armed with spears. They had an opportunity of arriving at a pre-concert when they were inside the house of Imamuddin. A presumption therefore can be raised that what they did later after coming out of the house was in pursuance of their common intention, unless this inference is destroyed by any conduct on their part. What happened after they came out was that one of them, namely Imamuddin, struck Ahmad with the spear, while the other Fazal struck Fez when the latter wanted to intervene. This conduct, in our opinion, does not destroy the inference of pre-concert which we can draw in this case. On the other hand, the fact that Fazal hit Fez when he ran up shouting to help his father shows that the two were acting in furtherance of the common intention of both, and that is why Fazal struck Fez so that he might not interfere with the attack on Ahmad.

On a consideration therefore of the conduct of Imamuddin and Fazal, and the circumstances of the case, and of the fact that they had an opportunity of arriving at pre-concert, we are of opinion that the attack on Ahmad in this case took place in pursuance of the common intention of both Imamuddin and Fazal. Fazal should therefore also have been convicted under sec. 302 of the Indian Penal Code read with sec. 34 of the same Code.

We, therefore, allow the appeal, set aside the order of acquittal of Fazal under sec. 302 read with sec. 34 of the Penal Code, and convict him under sec. 302 read with sec. 34, and sentence him to transportation for life. This sentence will run concurrently with the sentence that has been passed against him under sec. 324 of the Penal Code. .



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