Arafath @ Porichameen S/o Ashraf v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 18TH DAY OF MAY 2020 / 28TH VAISAKHA, 1942** ## **CRL.A.No.49 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 776/2007 DATED 13-12-2007 OF ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM** ## **APPELLANT/S:** **ARAFATH @ PORICHAMEEN S/O ASHRAF, ANZI MANZIL, NEAR KANIYAPURAM SCHOOL,, PALLIPPURAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENT/S:** **STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, AT HIGH COURT OF KERALA,ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2002-2020, THE COURT ON 18-05-2020 DELIVERED THE FOLLOWING:** ## **V.G.ARUN, J. ----------------------------------------------Crl.Appeal No. 49 of 2008** ## **----------------------------------------------Dated this the 18th day of May, 2020** ## **JUDGMENT** The Appellant, 1st accused in Cr. No.358 of 2001 of Mangalapuram Police Station registered for commission of offences punishable under Sections 395, 382 and 458 of the Indian Penal Code, was the sole accused in slit up Sessions Case No. 776 of 2007 of the Additional Sessions Judge (Fast Track-1), Thiruvananthapuram. The trial court found the accused guilty, convicted and sentenced him to rigorous imprisonment for 4 years and fine of Rs.5,000/- each for the offences under sections 395, 382 and 458, of I.P.C. The prosecution allegations, based on which charges were framed against the appellant along with accused No's 4 to 6, followed by his trial and conviction are as under; By around 9 PM on 15.11.2001, accused 2 to 6 criminally trespassed into the house of PWs 1 and 2, armed with deadly weapons and after putting the inmates of the house under fear of death, committed theft of cash and valuables like jewelry and mobile phone and decamped after threatening the inmates with dire consequences if they ventured to inform the police. The Information regarding the crime was reported at the Police station only on 16.11.2001. The investigation officer verified the calls made from the stolen mobile phone and found that a call had been made at 10.27 _**CRL.A.49/08**_ 3 p.m. on 15.11.2001 to the landline number of PW4, the aunt of the appellant. On questioning, PW4 gave a statement to the effect that, by around 10:30 PM on 15 11 2001, the accused had called enquiring about his mother, who was staying with PW4, for the purpose of requesting his mother to arrange some funds for him. Based on the statement of PW4, the appellant was arrayed as the 1st accused. Later, on getting information that the appellant was undergoing remand in another crime, the investigating officer made an application before the jurisdictional Magistrate Court and got custody of the appellant on 18.1.2002. Allegedly, the information elicited from the appellant led to the other accused (2 to 4) being identified and later apprehended. Section 27 recovery of the stolen gold from various jewelry shops could be made on the basis of the confession made by accused 4 to 6. On submission of final report, the case against the appellant was committed separately. The trial court framed a common charge against the appellant and accused numbers 4 to 6. The charge framed was for offences under Sections 458 (lurking house trespass), 382 (theft, after preparation made for causing death, hurt or restraint in order to the committing of theft), and 395 (dacoity) read with Section 34 (common intention) of the Indian Penal Code. In order to prove the prosecution case, PW's 1 to 16, were examined and Exhibits P1 to P14 documents and M.O's 1 to 3, 3(a) and 3(b) marked in evidence. The appellant denied the incriminating circumstances put to _**CRL.A.49/08**_ 4 him during his examination under Section 313 of the Cr.P.C, but did not choose to adduce any defence evidence, either oral or documentary. 2. The trial court took note of the fact that the appellant is a habitual offender involved in numerous cases. The prosecution was unable to produce any evidence, of the appellant having entered the house of PWs 1 and 2 along with the other accused, and of having committed theft. But the trial Court accepted the contention of the prosecution that the appellant, being a person known to PWs 1 and 2 would have stood guard outside the house, while the others committed felony. The trial court surmised that the appellant was the mastermind behind the nefarious activity and that the other accused, who had entered the house, were given necessary feedback by the appellant. Based on the evidence of PW4, that she had received a telephone call from the accused, which number was identified as that of the mobile phone alleged to have been stolen from the house of PW 1 and 2, the trial Court came to the conclusion that none other than the accused could have made the phone call, since he alone had connection with P.W4. The trial Court found that the prosecution had produced as much evidence as was available and possible, which, according to the trial court, was sufficient to hold that the appellant was also a member of the team that had committed the offences. ## 3. Heard. 4. It is an admitted fact that the appellant had not entered the _**CRL.A.49/08**_ 5 house along with the other accused for the purpose of committing the crime. PW1 and PW2 are consistent in their version that they had not seen the appellant, during or immediately after commission of the crime. The only link with which the prosecution had connected the appellant with the crime is the alleged phone call made from the mobile No.9846015400, which, according to P W1 belonged to his brother-in-law, but was being used by him and was stolen from the house along with other valuables. During her oral testimony before Court, PW4 retracted from her statement before the Police, of having received a call from the appellant by around 10:30 PM on 15.11.2001. PW4 was declared hostile and was confronted with her 161 statement. The relevant portion of the statement, marked as Exhibit P2, is as follows; _“My sister Hamsath’s son Arafath @ Porichameen called by around 10.30 p.m. He had called to request his mother to somehow raise some money for him.”_ 5. It is to be considered as to whether the aforementioned statement, even if found to be acceptable in evidence under Section 7 of the Evidence Act, will prove that the appellant had nurtured the common intention to commit the crime along with the other accused, without there being an iota of evidence regarding participation of the appellant in the actual commission of the crime. Section 34 of the IPC reads as follows; _**CRL.A.49/08**_ 6 _“34._ _**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.”_ A lucid exposition on Section 34, with reference to precedents, is available from the decision of the Hon’ble Supreme Court in _**Abdul Sayeed v. State of M.P.**_ **, (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262,** the relevant portion of which is extracted hereunder; _**"49.** Section 34 IPC 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 has the “common intention” to commit the offence. The phrase “common intention” implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the “same intention” or “similar intention” or “common object”. The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh v. State of Punjab [AIR 1963 SC 174 : (1963) 1 Cri LJ 100] .)_ _**50.** The 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 the common intention of all. What has, therefore, to be established by the prosecution is that all the persons concerned had shared a common intention. (Vide Krishnan v. State of Kerala [(1996) 10 SCC 508 : 1996 SCC (Cri) 1375] and Harbans Kaur v. State of Haryana [(2005) 9 SCC_ _**CRL.A.49/08**_ 7 _195 : 2005 SCC (Cri) 1213] .)_ _**51.** Undoubtedly, the ingredients of Section 34 i.e. that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. (Vide Hamlet v. State of Kerala [(2003) 10 SCC 108 : (2006) 2 SCC (Cri) 518] , Pichai v. State of T.N. [(2005) 10 SCC 505 : 2005 SCC (Cri) 1617] and Bishna v. State of W.B. [(2005) 12 SCC 657 : (2006) 1 SCC (Cri) 696] )_ _**52.** In Gopi Nath v. State of U.P. [(2001) 6 SCC 620] this Court observed as under: (SCC p. 625, para 8)_ _“8. … 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 a 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 preconcerted or prearranged plan or one manifested or developed on 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.”_ _**53.** In Krishnan v. State [(2003) 7 SCC 56 : 2003 SCC (Cri) 1577] this Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard-and-fast rule can be made out regarding applicability or non-applicability of Section 34._ _**CRL.A.49/08**_ 8 _**54.** In Girija Shankar v. State of U.P. [(2004) 3 SCC 793 : 2004 SCC (Cri) 863] it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act: (SCC p. 797, para 9)_ _“9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.”_ _(emphasis added)_ _**55.** In Virendra Singh v. State of M.P. [(2010) 8 SCC 407 : (2010) 3 SCC (Cri) 893 : JT (2010) 8 SC 319] this Court observed that: (SCC p. 421, para 42)_ _“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_ _**CRL.A.49/08**_ 9 _particular section and a charge under that section read with Section 34.”_ _**56.** Section 34 can be invoked even in those cases where some of the co-accused may be acquitted, provided it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (Vide Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] .)_ _**57.** Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual's participation in the act. Common intention means that each member of the group is aware of the act to be committed."_ 6. The question therefore is whether the fact of a phone call having been made by the appellant from a mobile phone, allegedly stolen by the other accused but never recovered, would, by itself, be sufficient to hold that the appellant, along with the other accused, had the common intention to commit the offences. The answer to this question can only be in the negative for the reasons enumerated hereunder; There was no attempt on the part of the prosecution to prove that the appellant had made the phone call immediately after commission of the crime. In fact no evidence is available regarding the time at which accused 2 to 6 had left the house of PW1 and 2 after committing the crime. The Call Data Record (Ext.P8) marked through _**CRL.A.49/08**_ 10 PW12, would only indicate that at 10.27 p.m on 15.11.2001, a call was generated from the mobile number 9846015400 and received in the land phone number 0471416707 installed at the residence of PW4. But there is no evidence that it was the appellant who made the call. Even if it is accepted that it was the appellant who had called, that would not amount to proof of the appellant having shared the common intention to commit the crime. The possibility of the appellant having been presented with or having purchased or even having come across the mobile phone on it being abandoned by the other accused cannot be ruled out. The fact that the appellant is a habitual offender involved in other crimes of similar nature and hails from the locality are not reason enough to persuade the court to accept the contention of the prosecution that the appellant was the kingpin behind the operation and that he had been standing guard outside, while accused 2 to 6, perpetrated the crime inside the house. Conviction in a criminal case cannot be based on surmises and conjecture, which unfortunately was the basis on which the appellant was convicted, which fact is acknowledged by the trial court itself by stating that the prosecution had produced only that much evidence that was available and possible. It needs no reiteration that conviction cannot be based on the production of possible evidence by the prosecution, but should be founded on cogent evidence, leading to the irresistible conclusion of the crime having been committed by the accused. _**CRL.A.49/08**_ 11 In the result, the criminal appeal is allowed, the conviction set aside and the appellant acquitted and set at liberty. The bail bond executed by the appellant will stand cancelled. ## **V.G.ARUN, JUDGE** _vgs_