MAHBUB SHAH

v.
EMPEROR
{Citation:- (1945) 47 BOMLR 941 }

PROJECT REPORT ON-

“INDIAN PENAL CODE”
SESSION: 2016-2017

SUBMITTED TO: SUBMITTED BY:

Dr. Pushpinder Kaur ji Devanshu Goyal

UILS, PU, CHANDIGARH Roll No: 12/14

B.A.L.L.B (Hons.)

Section: - A

5th Semester; 3rd Year

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

 ACKNOWLEDGEMENT

I wish to convey my greatest appreciation to DR. PUSHPINDER KAUR JI, a professional

professor and a great mentor, who challenged and organized my thoughts and helped convert
them to the written words.

I desire to thank deeply the professionals at the UNIVERSITY INSTITUTE OF LEGAL

STUDIES, PANJAB UNIVERSITY, CHANDIGARH, for their initial faith and
encouragement that I submit my project report.

I am indebted to MY MOTHER, MY FATHER and other family members for providing

models of kindness and decency.

My greatest debt, however, is reserved for THE ALMIGHTY for providing me with
everything in life.

DEVANSHU GOYAL
Roll No.- 12/14
***
 LIST OF ABBREVIATIONS

AIR: All India Reporter

Anr. Another
CriLJ: Criminal Law Journal
CrPC: Code of Criminal Procedure
DW: Defence Witness
Edn.: Edition
HC: High Court
Hon’ble: Honourable
IPC: Indian Penal Code
J.: Justice
No.: Number
Ors.: Others
PW: Prosecution Witness
R.A.J.: Recent Apex Judgments
SC : Supreme Court
SCC : Supreme Court Cases
v.: Versus
Vol.: Volume
&: And
TABLE OF CASES

 Ganesh Singh v. Ram Raja

 Ibra Akanda v. Emperor
 Saidu Khan v. The State
 Ramachander v. State of Rajasthan
 Kripal Singh v. State of U.P
 Barendra Kumar Ghosh v. King Emperor
 Queen v. Sabid Ali
 Khacheru Singh v. State of U.P
 Rishi Deo Pandey v. State of U.P
 Sheoram Singh v. State of U.P
 State of Haryana V. Satender
 Durga Prasad@Bablu v. State
FACTS OF THE CASE

 This is an appeal by -special leave against a judgment of the High

Court of Judicature at Lahore dated March 14, 1944, confirming, on
appeal, the conviction of the appellant of the murder of one Allah Dad
and the sentence of death passed on him by the Sessions Judge,
Mianwali, on December 20, 1943.
 The appellant Mahbub Shah is aged nineteen. He has been convicted
of murder under Section 302, read with Section 34 of the Indian Penal
Code. He was also convicted of the attempted murder of one
Hamidullah Khah and sentenced to seven years rigorous
imprisonment; but that conviction has not been brought before the
Board.
 Along with the appellant, his cousin Ghulam Quasim Shah, aged
eighteen, was also convicted under Section 302 34 of the Indian Penal
Code and sentenced to transportation for life. Ghulam was convicted
under Section 307 34 also, and was sentenced to five years' rigorous
imprisonment by the Sessions Judge, but his convictions and
sentences have been set aside by the High Court. The deceased Allah
Dad died as the result of gunshot wounds inflicted on him.
 One Wali Shah, who is said to have fired the shot that killed the
deceased, is a fugitive from justice and has not been so far arrested.
His father Mohammad Hussain Shah, who was committed to the
Sessions Court on a charge of abetment of murder, was acquitted by
the Sessions Judge.
 On August 25, 1943, at sunrise, Allah Dad, deceased, with a few
others left their village Khanda Kel by boat for cutting reeds growing
on the banks of the Indus river. When they had travelled for about a
mile downstream, they saw Mohammad Shah, father of Wali Shah
(absconder) bathing on the bank of the river. On being told that they
were going to collect reeds, he warned them against collecting reeds
from land belonging: to him. Ignoring his warning they collected
about sixteen bundles of reeds, and then started for the return journey.
 While the boat was being pulled upstream by means of a rope Ghulam
Quasim Shah, nephew of Mohammad Hussain Shah-acquitted by the
 High Court-who was standing on the bank of the river asked Ahah
Dad to give him the reeds that had been collected from his uncle's
land. He refused. What happened subsequently was spoken to by two
boys Nur Hussain P.W. 10 and Nur Mohammad P.W. 11, whose
version of the story has been accepted as ture by the High Court and
summarised as follows:
 Quasim Shah then caught the rope and tried to snatch it away. He then
pushed Allah Dad and gave a blow to Allah Dad with a small stick but
it was warded off on the rope. Allah Dad then picked up the Iari from
the boat and struck Quasim Shah. Quasim Shah then shouted out for
help and Wali Shah and Mahbub Shah came up. They had guns in
their hands. When Allah Dad and Hamidullah tried to run away, Wali
Shah and Mahbub Shah came in front of them and Wali Shah fired at
Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah,
causing injuries to hint.
STATEMENT OF ISSUES

 Whether the appellant has been rightly convicted of

murder upon the true construction of Section 34 of the
Indian Penal Code?

 Whether a common intention to commit the crime which

was eventually committed by Mahbub Shah and Wali
Shah came into being when Ghulam Quasim Shah shouted
to his companions to come to his rescue?
JUDGEMENT

On careful consideration, it appears to their Lordships that in the present

case "there was no evidence and there were no circumstances from which
it might be inferred that the appellant must have been acting in concert with
Wali Shah in pursuance of a concerted plan when he along with him rushed
to the rescue of Ghulam Quasim.
The exaggerated circumstances alleged by the prosecution to invoke the
aid of Section 34, Indian Penal Code, have been found against by the High
Court who have acted solely on the evidence of P. W. 10 and P. W. 11.
There was no evidence to indicate that Ghulam Quasim was aware that the
complainant party had been cutting reeds from his uncle's lands, or that the
appellant and Wali Shah had been kept behind the bush to come and help
him when called upon to do so.
The evidence shows that Wali Shah "happened to be out shooting game,"
and when he and the appellant heard Ghulam's shouts for help they came
up with their guns; the former shot the deceased, killing him outright, and
the appellant shot at Hamidullah Khan inflicting injuries on his person,
Indeed, the High 'Court negatived the existence of a "common intention"
at the commencement in the sense in which their Lordships have explained
the terms by stating-in considering the application of Section 34, Indian
Penal Code, to the case of Ghulam-what has been already quoted.
Section 34: Acts Done By Several Persons In Furtherance Of Common
Intention- According to Section 34, when a criminal act is done by several
persons in furtherance of 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.

Object Of Section 34:- Section 34 lays down only a rule of evidence and
does not create a substantive offence. This section is intended to meet cases
in which it may be difficult to distinguish between the acts of the individual
members of a party or to prove exactly what part was taken by each of them
in furtherance of the common intention of all. This section really means
that if two or more persons intentionally do a thing jointly, it is just the
same as if each of them has done it individually. The reason why all are
deemed guilty in such cases is that the presence of accomplices gives
encouragement, support and protection to the person actually committing

Elements Of Section 34: To attract the application of Section 34, the

following conditions must be satisfied: -
Some Criminal Act: - ‘Criminal act’ used in section 34 does not refer to
individual acts where a crime is committed by a group of persons. Where
a crime is committed by several persons in furtherance of common
intention of all of them, each of them doing some act, similar or diverse,
big or small shall be liable for that act. ‘That act’ refers to the ‘criminal act’
used in section 34 which means the unity of criminal behaviour which
results in something for which an individual would be punishable if it were
all done by himself alone in an offence.
Criminal Act Done By Several Persons: - The criminal act in question
must have been done by several persons i.e. by more than one person. The
number of wrong doers should be at least two. Most importantly, if the
criminal act was fresh and independent act springing wholly from the mind
of the doer, the others are not liable merely because when it was done they
were intending to be partakers with the doer in a different criminal act.

Common Intention:- The words “in furtherance of the common intention

of all” were added to section 34 after words ‘persons’ in 1870 the idea for
which, possibly, was derived from the following passage of the Privy
Council’s judgment:
  “Where parties go with a common purpose to execute a common intention,
each and everyone becomes responsible for the acts of each and every
other in execution and furtherance of their common purpose, as the
purpose is common so must be the responsibility.” [Ref. Ganesh Singh v.
Ram Raja1,]
 The expression ‘common intention’ means unity of purpose or a pre-
arranged plan; it has been given various meanings which are as follows-
 Common intention implies a pre-arranged plan, prior meeting of minds,
prior consultation in between all the persons constituting the group [Ref.
Mahboob Shah v. Emperor2].
 Common intention means the mens rea necessary to constitute the offence
that has been committed [Ref. As per DAS, J., in Ibra Akanda v.
Emperor3]. Section 34 does not apply to offences where there is no
intention.
 It also means evil intent to commit some criminal act, but not necessarily
the same offence which is committed [Ref. As per WANCHOO, J., in
Saidu Khan v. The State4].
 Common intention implies a pre-arranged plan. Pre-arranged plan meaans
prior concert or prior meeting of minds. Criminal act must be done in
concert pursuant to the pre-arranged plan. Common intention comes into
being prior to the commission of the act in point of time.
 Where there is no indication of premeditation or of a pre-arranged plan, the
mere fact that the two accused were seen at the spot or that the two accused
fired as a result of which one person died and two others received simple
injuries could not be held sufficient to infer common intention [Ref.
Ramachander v. State of Rajasthan5]
 However, common intention may develop on the spot as between a number
of persons and this has to be inferred from the act and conduct of the
accused, and facts and circumstances of the case [Ref. Kripal Singh v.
State of U.P6]

1
(1869) 3 Beng LR (PC) 44, 45
2
AIR 1945 PC 118
3
AIR 1944 Cal. 339
4
AIR 1951 All 21 (F.B.)
5
1970 Cr.L.J. 653
6
AIR 1954 SC 706
 Participation In The Criminal Act:- The participation in a criminal act
of a group is a condition precedent in order to fix joint liability and there
must be some overt act indicative of a common intention to commit an
offence. The law requires that the accused must be present on the spot
during the occurrence of the crime and take part in its commission; it is
enough if he is present somewhere nearby. The Supreme Court has held
that it is the essence of the section that the person must be physically
present at the actual commission of the crime. He need not be present in
the actual room; he can for instance, stand guard by a gate outside ready to
warn his companions about any approach of danger or wait in a car on a
nearby road ready to facilitate their escape, but he must be physically
present at the scene of the occurrence and must participate in the
commission of the offence some way or other at the time crime is being
committed.
The first leading case on the point is Barendra Kumar Ghosh v. King
Emperor7, (also known as Shankari Tola Post Office Murder Case). In
this case several persons appeared before the sub-post master who was
counting the money on the table and demanded the money. In the mean
time they opened fire killed the sub-post master and ran away without
taking any money. Barendra Kumar was, however, caught with a pistol in
his hand and was handed over to the police.
The accused was tried under sections 302/34 as according to the
prosecution he was one of the three men who fired at the sub-post master.
The accused denied his charge on the ground that he was simply standing
outside and had not fired at the deceased. The trial court, on being satisfied
that the sub-post master was killed in furtherance of the common intention
of all, convicted the accused even if he had not fired the fatal shot.

The High Court of Calcutta and the Privy Council both agreed with the
findings of the trial court and held the accused guilty of murder. Giving his
judgment LORD SUMNER quoting a line from Milton’s famous poem,
“ON HIS BLINDNESS” said. “even if the appellant did nothing as he stood
outside the door, it is to be remembered that in crimes as in other things
they also serve who only stand and wait….. Section 34 deals with doing of
separate act, similar or diverse by several persons; if all are done in
furtherance of a common intention, each person is liable for the result of

7
AIR 1925 PC 1
 Common Object:- Section 149, like Section 34, is the other instance of
constructive joint liability. Section 149 creates a specific offence. It runs
as
“If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members
of that assembly knew to be likely to be committed in prosecution of that
object, every person who, at the time of the committing of that offence, is
a member of the assembly, is guilty of that offence.”
Elements Of Section 149:- The essence of offence under Section 149 is
assembly of several (five or more) persons having one or more of the
common objects mentioned in Section 141 and it could be gathered from
the nature of the0 assembly, arms used by them and the behaviour of the
assembly at or before scene of occurrence. Section 149 creates joint
liability of all members of an unlawful assembly for criminal act done by
any member in prosecution of the common object of the said assembly. So
the essential ingredients of Section 149 are:
1. There must be an unlawful assembly, as defined in Section 141;
2. Criminal act must be done by any member of such assembly;

3. Act done is for prosecution of the common object of the assembly or

such which was likely to be committed in prosecution of the common
object;

4. Mere presence and sharing of common object of the assembly makes a

person liable for the offence committed even if he had no intention to
commit that offence.

Scope Of Section 149:- The Section is divided into two parts-

1. In Prosecution Of The Common Object:- The words “in prosecution

of the common object” show that the offence committed was immediately
connected with the common object of the unlawful assembly of which
accused were members. The act must have been done with a view to
accomplish the common object of the unlawful assembly.
 In Queen v. Sabid Ali8, the words “in prosecution of the common object”
were construed as meaning “with a view to achievement of the common
object”.

2. Members Knew To Be Likely: - The second part relates to a situation

where the members of the assembly knew that the offence is likely to be
committed in prosecution of the common object. A thing is likely to happen
only when the situation is like “it will probably happen” or “may very well
happen”. The word ‘knew’ indicates a state of mind at the time of
commission of an offence, knowledge in this regard must be proved. The
word ‘likely’ means some clear evidence that the unlawful assembly had .

Difference Between Common Intention And Common Object:- The

difference between common intention and common object may be stated
as

1. Under Section 34 number of persons must be more than one. Under

Section 149 number of persons must be five or more.
2. Section 34 does not create any specific offence but only states a rule of
evidence. Section 149 creates a specific offence.
3.Common intention required under Section 34 may be of any type.
Common object under Section 149 must be one of the objects mentioned.

4.Common intention under Section 34 requires prior meeting of minds or

pre-arranged plan, i.e. all the accused persons must meet together before
the actual attack participated by all takes place. Under Section 149, prior
meeting of minds is not necessary. Mere membership of an unlawful
assembly at the time of commission of the offence is sufficient.

5. Under Section 34 some active participation is necessary, especially in a

crime involving physical violence. Section 149 does not require active
participation and the liability arises because of mere membership of the
unlawful assembly with a common object.
Common Intention May Also Develop on The Spot: Exception to The
General Rule- Generally, it is said that, “a common object may develop
on the spot but a common intention cannot”. But, in certain circumstances

8
11 BLR 347
 ommon intention also may develop suddenly on the spot and such common
intention may be inferred from the facts and circumstances of the case and
conduct of the accused persons. Following cases are illustrative -

In Kripal Singh v. State of U.P9; the Supreme Court held that a common
intention may develop on the spot after the offenders have gathered there.
A previous plan is not necessary. Common intention may be inferred from
the conduct of the accused and the circumstances of the case.

In Rishi Deo Pandey v. State of U.P10; ‘A’ and ‘B’ two brothers were seen
standing near the cot of the victim who was sleeping. One of them was
0armed with a ‘gandasa’ and another with a ‘lathi’, when a hue and cry was
raised by the two brothers ran together, and both of them were seen running
from the bed room of the victim. The victim died of an incised wound on
the neck, which according to medical evidence was necessarily fatal. The
court found that the two brothers shared the common intention to cause
death. It was held that common intention may develop on the spot also.

In Khacheru Singh v. State of U.P11; several persons attacked a man with

lathis when he was passing through a field. The man eluded them and they
gave chase, on overtaking him they once again attacked him. It was held
that, these facts were sufficient to prove that the accused persons had been
actuated with the common intention to assault the victim. Conviction under
Section 326 read with Section 34 was sustained.
In Sheoram Singh v. State of U.P12; the Supreme Court held that common
intention may develop suddenly during the course of an occurrence, but
still unless there is cogent evidence and clear proof of such common
intention.

9
AIR 1954 SC 706
10
AIR 1955 SC 331
11
AIR 1956 SC 546
12
AIR 1972 SC 2555
 LATEST JUDGEMENT REGARDING SECTION 34 OF INDIAN
PENAL CODE

IN STATE OF HARYANA V. SATENDER13

FACT OF CASE
 Six persons were accused of conspiring with each other and committing
murder of one Ramesh Masta with common intention. FIR No. 414 dated
November 06, 2004 was registered against these six accused persons at
Police Station City Bhiwani, Haryana, under Sections 302, 120-B and 34
of the Indian Penal Code, 1860 (for short ‘IPC’).
 Charge under Section 25 of the Arms Act, 1959 was also foisted upon
them. Names of these accused persons are – Rahul @ Shashi Partap,
Satender, Bharat, Karambir, Manjit Singh and Banti @ Yogender Singh.
 The Court of Additional Sessions Judge, Bhiwani, on the conclusion of the
trial, vide judgment dated February 22, 2007 returned the findings to the
effect that the prosecution had successfully proved the allegations
contained in the charge sheet that accused Rahul @ Shashi Partap, Satender
and Bharat, in furtherance of their common intention committed the
murder of Ramesh Masta and thereby committed an offence punishable
under Section 302 read with Section 34 of the IPC.
 It also held that other three accused persons, namely, Karambir, Manjit
Singh and Banti @ Yogender Singh, had abetted the aforesaid accused
persons in the said offence and thereby committed an offence punishable
under Section 109 read with Section 302 of the IPC.
 It was also held that all the six accused persons, prior to the date of
occurrence, hatched the conspiracy in order to commit the murder of
Ramesh Masta and thereby committed an offence punishable under Section
120-B of the IPC. Rahul @ Shashi Partap was found guilty of offence
punishable

 As is clear from the above, as per the prosecution, three persons took active
part in killing R0amesh Masta, who had come at the place of occurrence
on a motorcycle. Specific role is attributed to Rahul @ Shashi Partap, who
had fired the shot from his pistol, which hit on the head of Ramesh Masta.
13
(2014) 7 SCC 29
 The motorcycle was being driven by Bharat. As per the prosecution,
Satender had also fired a shot from his pistol, though it did not hit the
victim (as noted hereinafter, this act attributed to him has not been proved).
Insofar as other three accused persons, namely, Karambir, Manjit Singh
and Banti @ Yogender Singh, are concerned, charge against them was of
conspiracy and abetment
 Satender, Karambir and Manjit Singh. Since Karambir has died and
the special leave petition against Manjit Singh was also dismissed, in
the appeal filed by the State as well as the complainant Pawan Kumar
Masta, no doubt, charge of conspiracy was also levelled against
Satender. But it was in respect of all others and other three against
whom only charge of conspiracy under Section 120-B IPC was framed
they have been acquitted of thsi charge.
Still we have gone through the judgment of the High Court and evidence
on this charge. The only witness examined in respect of this charge was
Ghanshayam Dass (PW-3). He deposed that he was a neighbour of Ramesh
Masta as well as of Karambir’s family. He knew both the families.
Two days prior to the death of Ramesh Masta, he had gone to the house of
Karambir along with Satish. They heard the talk through window of the
house of Karambir. Karambir was telling Bharat, Rahul, Satender, Banti
and Manjit that he was having old enmity with Ramesh Masta, who had
been saved in previous
Trial convicted three persons for murder and three another person for
abetment of crime. High court has acquited four person and convicted
two persons.
However, the reason for acquittal of Satender was that no overt act
had been attributed to him by any of the eye witnesses. person.
Appeal is dismissed by the supreme against acquittal of satender.
 In DURGA PRASAD@BABLU V. STATE14

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL APPEAL NO. 679 OF 2001

It was held that all four accused are guilty for the murder of victim
(Amit Gupta) under section 302 r/w section 34 of Indian Penal Code,
1860.
Fact of the case
 On 10.1.97 an information was received from RML Hospital which was
recorded as DD No. 29A in P.S. Parsad Nagar.
 Information was regarding admission of one Amit Gupta in the hospital in
injured condition. On the basis of this information SI Babbar Bhan along
with Constable Manohar Lal reached in the hospital and collected the MLC
of injured Amit Gupta but the injured Amit was declared unfit for statement
by the doctor and the nature of injuries were opined as sharp.
 In these circumstances statement of injured could not be recorded by SI
Babbar Bhan but the statement of his father Sat Sagar Gupta was recorded
who was found present in the hospital.
 He had stated that he was staying in H.NO. 16/918 E, Khalsa Nagar, Tank
Road, Karol Bagh, New Delhi along with his family members and was
doing the business of readymade garments and that on that date he was
present in his house along with his family members and had taken the
dinner, when at about 10.30 PM someone called his son Amit and
thereafter Amit went out.
 After some time noise was heard fromoutside the house and on hearing this
noise he along with his son Parveen came out and saw four boys beating
Amit.

14
Date of Decision: 28th August, 2009
 He had further stated that Rajinder and Bablu were holding the hands of
Amit and one boy whose name he did not know but whom he could
identify, was holding Amit from the neck and Biloo who was staying in
Karol Bagh hit Amit with knife on his chest and left thigh. Amit fell down
and seeing them, all the boys ran away.
 He with the help of his son Parveen removed Amit to RML Hospital. On
this statement SI Babbar Bhan made an endorsement and send rukka for
the registration of the case to police station. Thereafter FIR u/s
307/34 IPC in this case was registered. SI Babbar Bhan returned at the spot
along with Sat Sagar Gupta and continued his investigation.

It was held in this case all the persons in this case are
guilty of murder r/w with section 34 of Indian Penal
Code.