MOBARIK ALI AHMED V. THE STATE OF BOMBAY, AIR 1957 SC 857

MATERIAL FACTS

Mr. Louis Anton Cornea, the complainant, was a businessman residing in Goa and also the director of a trading firm namely, Colonial Limitada, which was doing business in import and export. Due to the scarcity of rice at the time in Goa, the complainant was anxious about the import of rice and thus, got in contact with Mr. Jassawla, a commission agent under Universal Supply Corporation. Mr. Mobarik Ali Ahmed, the appellant, was a businessman residing and trading in Karachi, Pakistan under name of Atlas Industrial and Trading Corporation and Ifthiar Ahmed & Co. The appellant was contacted by Mr. Jasawalla. Series of telegrams, phone calls, and letters were exchanged between Mr. Jasawalla and the complainant, and Mr. Jasawalla and the appellant after a contract was formed for the sale and purchase of 1200 tons (later 2000 tons) of rice at the price of 51 pounds per ton.
25% of the payment was paid in advance to Mr. Jasawalla and the rice was to be shipped from Karachi to Goa. After the quantity was raised to 2000 tons, 50% of the payment was paid in advance after the appellant had given assurance of complete arrangements. After the delivery was delayed, the complainant requested for his money to be returned but the appellant denied getting any payments.

ISSUES

• Whether the appellant, a Pakistani national, doing business in Karachi who wasn’t present in India pre or post the occurrence of offense can be put on trial by an Indian court or not?
• Whether the exchanged telegrams and letters be admissible in court or not?
• Whether the appellant is convicted for the offenses under Section 3(2) of the English Extradition Act, 1870 or not?
• Whether the conviction of the appellant is justifiable under section 420 read with section 34 of the Indian Penal Code, 1860 or not?

JUDGEMENT

Taking into consideration the arguments, the evidence, and facts presented before the court, the appeal was dismissed and the decision was taken to convict the appellant Mobarik Ali Ahmed under section 420, read along with section 34 of the IPC.

ARGUMENTS PRESENTED BY THE APPELLANT

The learned counsel by raising contention denied the exchange of letters or telegrams between the complainant and the appellant and argued that the telegrams and letters which were being relied upon are inadmissible in the court and that there exists no intimate acquaintance who can validate the signatures.
By relying on the case of Shreekantiah Munipalli v. The State of Bombay, which held that “the acts done by several persons in furtherance of common intention”, the learned counsel argued that as per section 34 of the Indian Penal Code, the appellant wasn’t even present in Bombay but was in Karachi for the commencement of the offense. Thus the appellant did not join the actual doing of the act and merely planning is not sufficient to hold someone liable and should not be tried under section 179 of the Code of Criminal Procedure because he has not committed any offense under the Indian Penal Code.
The appellant had surrendered himself for the offense of forgery and under Section 3(2) of the English Extradition Act, 1870, is protected and cannot be tried for other crimes without giving the opportunity to return.

ARGUMENTS PRESENTED BY THE RESPONDENT

Under section 415 of the Indian Penal Code, cheating is defined with its essentials as fraudulent misrepresentation to a person and inducing that person thereby to deliver property. And it is evident from the facts that all the elements of cheating are present and thus the appellant had intended to cheat. The appellant had submitted a statement stating that he had continued to live in India till July 1950 and established himself as a citizen of India. Under article 5 of the Indian, Constitution read with article 7, the appellant was a citizen of India at the time of commencement and commission of the offense. The claim of the appellant being a foreigner cannot help true under article 9, till he shows that he voluntarily acquired citizenship of a foreign country, and in the present scenario; he didn’t have any proof of acquiring citizenship of Pakistan.

ANALYSIS

The court held that the telegrams and the letters were authentic and thus were admissible in the court of law and thus were considered as important and direct evidence, article 45 and 47 of the Indian Evidence Act were referred. Testimony of 3 witnesses was taken into consideration, witnesses being the complainant, Mr. Jasawalla, the mediator, and Sequeria who was an ex-employee of the appellant.
Relying on H. N. Rishbud v. The State of Delhi, it was observable that section 3(2) of the English Extradition Act, 1870 had no effect as the appellant had surrendered himself. The court emphasized that under the section of the Indian Penal Code, any foreigner who commits any offense in India can be punished without any limitations because the exercise of criminal jurisdiction is dependent on the offense itself and not the nationality of the said offender. The court also said that the case of Shreekantiah Munipalli v. The State of Bombay, on which the council of the appellant was relying, affected the present case, judging by the facts.

CONCLUSION

Although if the crime took place in Bombay while the appellant was not evident to be present in India throughout the execution of the crime, his conviction was justifiable under the Indian Penal Code, as all the elements which constitute the offense of cheating under Section 420 of the Indian Penal Code were carried out in Bombay.

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Kari Choudhary vs Most. Sita Devi And Ors. on 11 December 2001 AIR 2002 SC 441

Introduction

This is a case where a mother-in-law who was the complainant of the murder of her daughter-in-law was transposed as accused after the investigation.

Facts

Sugnia Devi was married to one of the four sons of the respondent, Seeta Devi 10 years prior to the incident. She was childless. On the night of 27-6-1988, Sugnia Devi was murdered in her bedroom. The next day, Seeta Devi lodged an FIR in the police station alleging that a few persons sneaked into their house and entered the bedroom, and strangulated Sugnia Devi. FIR number 135 was lodged by the police officer and the investigation commenced thereafter. After few days, the police were of the opinion that the manner in which Sugnia Devi was murdered is totally different from the version of Seeta Devi, they were of the view that a conspiracy was hatched against Sugnia by Seeta Devi and her other daughters-in-law. The police sent a report to the court which mentioned that the allegations mentioned in FIR number 135 were false and they have lodged another FIR and are continuing with the investigation. Seeta Devi filed a protest petition before the chief judicial magistrate contending that the allegations put by the police against her are false and the persons mentioned in FIR number 135 are the real culprits. The chief judicial magistrate dismissed the Petition. The respondent filed a revision before Highcourt which directed the magistrate to conduct an inquiry. The police force concluded the investigation and framed the charge sheet in which Seeta Devi along with her other daughters-in-law and her son, Ram Ashish, and few other persons were charged under sections 302 and 34 of the Indian Penal Code. Thus, the respondent moved the High Court of Patna again in order to quash the proceedings against her and others. The high court upheld her contention and quashed all the proceedings against the respondents without a trial. Aggrieved by this, the brother of the victim has filed this appeal before the supreme court.

Judgment

In this case, the appeal was allowed. It was held that the police cannot file 2 FIRs in a case, so the second FIR was considered as an information report. But this cannot be a ground to stop them from conducting the investigation of the crime, and it also does not give a ground for not having a trial and quashing the proceedings.

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SHANKAR V STATE OF MAHARASHTRA

INTRODUCTION:

The above case in the Hon’ble Supreme Court is an appeal from the Bombay High Court. In this case, the appellants i.e. Shankar, his wife Parvatibai, and Vivek were convicted under Section 436 of IPC r/w Section 34 of Indian Penal Code (IPC), 1860 (acts are done by several persons having a common intention) as well as Section 323 of IPC r/w Section 34 of IPC, i.e., for the offense of mischief by fire or any explosive substance and for voluntarily causing hurt. The case was decided in the favour of the respondents or the complainants of the original case at both the trial court as well as the High Court and therefore the appellants have preferred this appeal.

ISSUES:

Since Vivek i.e. the 2nd appellant has no evidence against him for the evident act of setting fire to the house of Namdeo, is it right to convict him under Section 436 r/w Section 34 of IPC?
Can an offense that is originally not compoundable under the Criminal Procedure Code (CrPC) can be treated as a compoundable offense?

JUDGEMENT:

Pertaining to the first issue, the Hon’ble Supreme Court held that since the second appellant i.e. Vivek has no evidence against him setting fire to the house of the complainants neither does he have a common intention to that of the first and the third appellant i.e. Shankar and Parvatibai respectively, he should not be held liable for the offense of causing mischief by fire i.e. Section 436 r/w Section 34 of IPC and hence his conviction is set aside by the Court.
As far as the second issue is concerned, it is not considered appropriate to compound an offense which is non-compoundable under the CrPC but the Hon’ble Supreme Court in the following case stated that by considering the circumstances of the case and the relationship of parties at hand, the Court found it suitable to compound an offense, in reality, which is non-compoundable.
The Supreme Court took into consideration the precedent of various cases like Ishwar Singh v. State of Madhya Pradesh [(2008) 15 SCC 667], Murugesan v Ganapathy velar [(2001) 10 SCC 504], Jetha Ram v. State of Rajasthan [(2006) 9 SCC 255], Ishwarlal v. State of M.P. [(2008) 15 SCC 671] as well as Mahesh Chand v. State of Rajasthan [1990 Supp SCC 681] and thereby came to the conclusion that if the parties of the case come to a compromise, such compromise should be given due consideration and if the facts and situations are viable and justified the Court can convert a non-compoundable offense into a compoundable one.
Hence, in the following case, the Hon’ble Supreme Court came to the conclusion that the compromise taken place between the parties is a relevant one, and also the relationship between the parties should also be given due consideration. As a result of the compromise between the parties the conviction of all the three appellants under Section 323 IPC i.e. voluntarily causing hurt is set aside for the remaining period and whatever they have completed till now will be considered completed and they are acquitted of the charges. The second appellant, Vivek is acquitted of the charges of causing mischief of fire under Section 436 of IPC as well.

CONCLUSION:

The following case of Shankar v. the State of Maharashtra reinstated the fact that even a non-compoundable offense i.e. an offense for which no compromise is available under the CrPC can also be converted into a compoundable offense i.e. an offense for which the parties can settle the case after compromising if the Court is satisfied with such compromise keeping in mind all the facts, issues and relationships in due consideration.

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Subed Ali v. State of Assam

Facts:

The appellants aggrieved by the decision of the Trial Court convicting them for offences u/s- 302/34 of the Indian Penal Code, and sentencing them to life imprisonment approached the Supreme court. The two deceased- Abdul Motin and Abdul Bareek, on 5-08-2005 were returning from the market on their bicycles along with PW5, PW6, PW7 and PW9, when at around 6 p.m. they were stopped by the accused/appellants and assaulted. Abdul Bareek died on the spot while Abdul Motin was injured and taken to a hospital where he died on the same night. Originally five accused were named, however, two co-accused were acquitted by the Trial Court by giving them the benefit of the doubt, there was no appeal preferred against their acquittal. PW1 informed the North Lakhimpur Police Station and give oral evidence on which a GD entry was made stating that some unknown person has assaulted the two individuals leading to their death. The brother of the deceased lodged a formal FIR on 6-08-2005 at 3:15 p.m., naming five accused which included the appellants. The Trial Court convicted the accused/appellants which is why they have approached the Supreme Court raising a plea for acquittal.

Issues:

• Whether the appellants nos.2 and 3 are entitled to the same benefit of doubt given to acquit the other two co-accused.
• Whether appellant no.1 had common intention with appellants no. 2 and 3 to assault the two deceased.

Legal Provisions:

• 302- Punishment for murder.
• Indian Penal Code, 1860, Section 34- Acts done by several persons in furtherance of common intention

Appellant’s contention:

The counsel for the appellants submitted that their conviction is unjustified and they should also get the benefit of the doubt on the basis of same evidence which acquitted two of the accused, they stated inconsistencies in evidence of the eyewitnesses and the fact that the incident took place after dark making identification doubtful, relying on cross examination of PW 6. PW1 deposed that he was informed by Babulal and Asgar Ali that the appellants were assailants, but the prosecution did not examine them. They further stated that the eyewitnesses gave evidence of assault inflicted upon the two decease by appellants 2 and 3 only, there was no allegation on appellant no.1 for carrying a weapon or assaulting any other two deceased, so there is no material to show common intention on part of appellant no.1.  Appellants no. 2 and 3 were said to be individually liable for their respective assault upon the decease, they further submit that no charge was framed u/s- 34 IPC.

Respondent’s contention:

The Council for the state submitted that the evidence given by PW’s- 5,6,7 and 9 was consistent regarding the appellants participation in the assault. They stated that considering the nature of evidence available against the appellants nos. 2 and 3, they cannot avail the benefit of doubt given to the other co-accused. They further submitted that common intention was established from the fact that the appellants were armed while they waited for the two deceased to return from the market, then assaulted them which led to their death.

Observations of the court:

The court went through the submissions of both parties as well as the post mortem report of the deceased. A formal FIR was filed 6-08-2005, charges were filed against the five accused u/s- 147, 341 and 302 of the IPC, charge u/s- 34 was not proved against the accused. The Trial Court based on the evidence of PW1 acquitted two co-accused giving them the benefit of doubt regarding their presence and participation. Since the number of accused fell under five, the appellants were convicted u/s- 302/34 of the IPC. The court held that their acquittal can be of no avail to the appellants due to the consistent nature of evidence available against them. The court observed that minor contradiction in the evidence of the witnesses to be inconsequential, as their statements regarding material aspects were consistent lending credibility to their evidence as eye-witnesses.

The court noted that PW1 was not an eyewitness and the prosecution not examining Babulal and Asgar Ali is irrelevant as regards evidence of Investigation Officer during cross-examination, who stated that PW1 did not make any such statement. PW5 was an eyewitness, he deposed that appellant no.1 stopped the two deceased, after which appellant no.2 assaulted Abdul Bareek on his leg with a sharp cutting tool, Abdul Motin tried to flee after being injured by appellant no.3 but was chased by appellant no.1 and other accused near Mamud Ali’s house, at which point PW5 ran away fearing for his own safety. PW’s 6, 7 and 9 gave similar evidence, however, PW6’s evidence regarding darkness affecting identification was held inconsequential as the consistent evidence given by PW’s 5, 7 and 9 stated that it was evening after sunset but not dark, making identification possible. It was apparent that the parties knew each other from before, and so identification was not to be doubted.

The court therefore, found no reason to doubt the presence of and assault by the appellants no. 2 and 3 on the two deceased, to grant them any benefit of doubt on parity with the acquitted co-accused. The court considered the submission that appellant no.1 should be entitled to acquittal, as he cannot be said to have common intention with appellant nos. 2 and 3, who are liable for individual acts. Common intention is several persons acting in furtherance of a common purpose, though their roles may be different, their roles being active or passive is irrelevant. Once common intention is established, there is rarely direct evidence for the same, it has to be inferred from facts and circumstances of the case and based on evaluation of evidence available against accused. Conviction on the ground of common intention is based on the foundation of the principle of vicarious responsibility, by which a person is answerable for the acts of others with whom he shares common intention.

The presence of mental element or intention to commit the act if properly established, is sufficient to convict an accused without his actual participation in the assault. Thus, it is not necessary, that a person convicted on the ground of common intention was actively involved in the physical activity of assault, so if the evidence shows a pre-arranged plan, and acts pursuant to the plan, common intention can be inferred. Hence, the court observed that appellant no.1 waited with the other armed appellants, he stopped the two deceased, who were then assaulted. When an injured Abdul Motin tried to flee, appellant no.1 chased him with the other appellants near Mamud Ali’s house, where he was brutally assaulted and dragged back to the place where Abdul Bareek laid motionless. The court said that they did not require any further evidence regarding common intention in appellant no.1 to commit the offence in question. They found no reason to grant him benefit of doubt on the plea that he had no role or act of assault attributed to him, denying the existence of common intention for that reason.

Judgment:

The court found more reason to do clear with the conviction and sentence of the opinions that appeal was dismissed.

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