ASIF KHAN versus STATE OF MAHARASHTRA & ANR.

Citation: [2019] 2 S.C.R. 887 · Decided: 05-03-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

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Judgment (excerpt)

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ASIF KHAN
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal Nos. 286-288 of 2019)
MARCH 05, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Penal Code, 1860:
s. 302 read with s. 34 – Murder – Common intention –
Altercation between the parties after which accused no 1 and 2
came back and returned after 10 minutes with deadly weapons-
knife with a blade of 15.5 cm, by which the victim was stabbed resulting
in his death – Accused no. 2-appellant held the neck of the victim
and accused no 1 stabbed the victim – Trial court convicted the
accused no. 1 and 2 for offences punishable u/s. 304 Part II rw s.
34 and others were acquitted – However, the High Court convicted
the accused no. 1 and 2 u/s. 302 rw s. 34 – SLP by accused no. 1
dismissed – Appeal by accused no. 2 – Held: Common intention of
the accused nos.1 and 2 is fully established by the circumstances
and events unfolded in the prosecution story, duly corroborated by
the prosecution witnesses – It cannot be said that there was no
meeting of minds between accused nos.1 and 2, when they returned
with weapon and stabbed the victim – Manner of incident also
indicate that both had common intention, thus, the High Court did
not commit any error in convicting the accused no.2 u/s. 302/34.
Dismissing the appeals, the Court
HELD: 1.1 The High Court noticed that the accused Nos.1
and 2 after the first incident went back on a motorcycle and came
after 10 minutes with deadly weapon, i.e., knife, which had a blade
of 15.5 cm. There can be no doubt about the intention of the
accused, who held the neck of the deceased and accused No.1
stabbed. PW5, doctor, who conducted the post-mortem proved
in his evidence that the injury was sufficient in the normal course
to cause death. The submission of the appellant that injury was
not on vital part cannot be accepted. The judgment of the High
Court convicting the accused no. 1 u/s. 302 has already been
[2019] 2 S.C.R. 887
887
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888                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
upheld by dismissing the SLP on behalf of accused no. 1. Thus,
there is no reason to take a different view to one taken by the
High Court that accused were liable for conviction u/s. 302.
[Para 13, 14][894-F-G; 895-D]
1.2 The appellant submitted that there could be no
conviction under Section 34 for the appellant since there is no
evidence of any pre-planned murder of deceased; and that in the
First Information Report, it has mentioned that appellant had held
hands of the deceased and in the evidence before the court, it
was mentioned that appellant held the neck of the deceased. All
the three eye-witnesses, PW1, PW2 and PW4, who appeared
before the court have stated that appellant caught hold of the
neck of victim and accused No.1 assaulted him by knife.
[Para 18][898-A-C]
1.3 Looking into the evidence in the instant case, it is clear
that common intention of the accused Nos.1 and 2 is fully
established by the circumstances and events unfolded in the
prosecution story, duly corroborated by PW1, PW2 and PW4. After
altercation took place between accused No.1 and informant, the
deceased-brother of informant, came and intervened in the matter,
due to which the accused Nos.1 and 2 immediately returned from
the spot in a motorcycle and came back after 10 minutes armed
with deadly weapon.  When both the accused returned after
altercation with two brothers-informant and deceased, and came
back after 10 minutes armed with weapon, common intention is
clearly established and it cannot be said that there was no meeting
of minds between accused Nos.1 and 2, when they returned with
weapon and stabbed the deceased.  The accused No.2 held the
neck of the deceased when accused No.1 stabbed him by knife.
The manner of incident also indicate that both had common
intention, hence, the High Court did not commit any error in
convicting the accused No.2 under Section 302 read with
Section 34. [Para 28][903-F-H; 904-A, B]
Kulwant Rai v. State of Punjab (1981) 4 SCC 245;
Ramesh Vithalrao Thakre and Another v. State of
Mahrashtra (2009) 17 SCC 438; Surain Singh v. State
of Punjab (2017) 5 SCC 796 – distinguished.
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Mehbub Shah v. Emperor AIR 1945 PC 118;
Pandurang and Others v. State of Hyderabad AIR 1955
SC 216 : [1955] SCR 1083; Mohan Singh and Anr. v.
State of Punjab AIR 1963 SC 174 : [1962] Suppl. SCR
848; Narinder Singh and Another v. State of Punjab
(2000) 4 SCC 603 : [2000] 2 SCR 1022; Raju
Pandurang Mahale v. State o

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