LexNOOR MOHAMMAD MOHD. YUSUF MOMIN versus STATE OF MAHARASHTRA
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A B c D E F G H NOOR MOHAMMAD MOHD. YUSUF MOMIN v. STATE OF MAHARASHTRA March 24, 1970 119 - [M. HIDAYATULLAH, C.J., A. N· RAY AND I. D. DUA, JJ.] Criminal law-Difference between conspiracy, comnion intention and abetment-lndian Penal Code, (Act 45 of 1860), ss. 34, 109 and 1208- Scope of. Four accused were charged with the offences under s. 120·B (cons- piracy to commit murder) and s. 302 read with s. 34. The fourth accused was also charged under s .. 302 read with s. 109 for the offence of abetting the murder committed by the other three accused. The accused 2 to 4 were related to one another while the first accused was a servant of the brother of the second accused. There were constant disputes between the fourth accused and the deceased over a right of passage and the right to tap water. The day before the murder the fourth accused, went to the house of the deceased and exhorted his companions, one of whom w~s the second accused, to kill the deceased. On the next day (the day of the .murder) the fourth accused threatened to kill the deceased and later, accompanied by the 1st and 2nd accused, followed the deceased when he went out at about 10 p.m. Fifteen minutes after the deceased was thus seen being followed by the accused, the deceased was stabbed. The third accused tried to persuade the two constables who were proceeding towards the scene when they heard the disturbance that nothing untoward had happened, but the constables proceeded to the scene, and, on noticing the wounded body of the deceased, chased and caught the first accused and recognised the second accused who had escaped. One of the cons- tables lodged the first information against the accused 1 to 3. The fourth accused was absconding and after he was arrested, all the accused were put up for trial. The High Court convicted the first accused under s. 302 I.P.C., and accused two to four for offences under s. 120-B and s. 302 read with s. 34, l.P.C. The fourth accused was also convicted for the offence under s. 302 read with s. 109. In appeal by special leave to this Court by the 'fourth accused, this Court examined the evidence, contrary to its usual practice, as it was re- presented that the evidence did not support the conclusion of the High Court, and HELD : The evidence clearly established the complicity of the appel- lant in the murder of the deceased, and the charges under s. 302 read with s. 109 I.P.C. and of conspiracy were fully supported by the evidence. As regards the charge under s. 302 read with s. 34, though, it was highly probable that at the time of the actual murder the appellant was either present with the other three co-accused or was somewhere nearby, the evidence did not establish beyond reasonable doubt his presence at or near the spot when the murder was actually committed, and therefore, he must be given the benefit of doubt in regard to that charge. ' Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation i11 the commission of the offence in furtherance of the common intention invites its application. 120 SUPREME COURT REPORTS [1971] I S.C.R. Section 109, on the other hand, may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some aCt or illegal omission ta1ces place or has intentionally ~ided the commission of an offerice by an act or illegal omission. Criminal conspiracy is a suhl:!antive offence under s. 120-B I.P.C. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close assocjation of conspiracy with incitement and abetment, the subs· tantive offence di criminal conspiracy is wider in amplitude than abet- ment by conspiracy as contemplated by s. 107 l.P.C. Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that. direct evidence in proof of conspiracy can be 'forthcoming, but like other offences it can be proved by circumstantial evidence. Surrounding circumstance and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact, because of the
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