N Criminal Appeal No 251 of 1972 and 243 of 1973
Appeals by Special Leave from the Judgment and order dated 22 9 72 of the Madras High Court in Criminal Appeal No 36972 and 97671
Debaratea Mookerjee M section K Sastri and M section Narasimhan for the Appellants
A V Rangam and Miss A Subhashni for the Respondents
877 The Judgment of the Court was delivered by UNTWALIA J
Criminal Appeal No 251 of 1972 has been filed under section 2 of the and Criminal Appeal No 243 of 1973 is by special leave
In all there are six appellants
It would be convenient to refer to them with reference to their accused number given in the judgment of the Sessions Court
They are as follows Accused No 1 A 1 Ramaswami Ayyangar
Accused No 2 A 2 Vattappan
Accused No 3 A 3 Kaipillai alias Karuppayyan
Accused No 4 A 4 Raman
Accused No 5 A 5 Kathayyan
Accused No 6 A 6 Kulandaiyan
The occurrence giving rise to these two appeals took place on Monday the 21st April 1971 at about 400 pm at Sivan Koil tank in village Thaduthalkondapuram
In the said occurrence was seriously injured one Kaliaperumal who later died in the Hospital at about 900 pm the same evening
Another person injured in the occurrence was also named Kaliaperumal PW 1
The prosecution case is that deceased Kaliaperumal was living with his maternal uncle Pichai Konar PW 7 since infancy
A 1 is the Karnam of the village and A 6 is the Government vetti
A 2 and A 3 are brothers A 4 A 5 and A 6 are also inter se brothers
A 2 to A 6 worked under A 1
There was enmity between PW 7 and the deceased on the one hand and A 1 on the other on account of several causes
The facts showing the enmity between them are stated in the judgments of the courts below and are not necessary to be detailed here
Two days prior to the occurrence Marimuthu PW 10 was driving some cattle 4 or 5 of them went astray and entered into the Gingillillai field belonging to A 1
A 1 s men scolded PW 10 and the deceased who was informed about the incident by the former at a tea shop
PW 1 was also present there
Deceased Kaliaperumal passed on the information to PW 7
Ramalingam PW 4 brother of the deceased was taking his bath in the Sivan Koil tank
Kaliaperumal deceased also came there saying something against the Karnam
He also started bathing at the north western corner of the tank
According to the prosecution case A 1 came there followed by A 2 to A 6
A 2 had a cross stop an instrument used in Survey and measurement perhaps the correct name of the instrument is cross staff
A 3 and A 4 were each armed with an Aruval
A 5 had a stick and A 6 was carrying a stick with a spear attached to it
According to the evidence in Court A 1 told the other accused Not content to with grazing his cattle in my gingilly field he is also abusing me
Cut him whatever be the expenses I will look after that
 Thereupon A 4 asked the deceased Kaliaperumal Why are you abusing the Iyer   Saying something Kaliaperumal ascended the bank
A 3 and A 4 assaulted him on his head with Aruvals
PW 1 ran to separate them when A 2 assaulted him on 878 his head with the cross stop
PW 1 attempted to run
Thereupon it is said A 6 obstructed him from running with the help of the stick with spear head
A 4 again cut on the head of Kallaperumal deceased with his Aruval
A 2 beat on PW s head with the cross stop hour or five times
PW 1 fell down unconscious
PW 7 and others took the injured to the Government Dispensary Kodavasal
Dr Radha Singh Civil Assistant Surgeon PW 15 examined Kallaperumal deceased at 455 pm and issued a Wound Certificate
Since his condition was serious he was sent to the Government Hospital Kumbakonam
PW15 examined the injuries or PW 1 at 520 pm and found as many as nine injuries on his person
As already stated Kaliaperumal died at about 900 pm
Dr N Jayaraj PW 18 performed the autopsy over the dead body
As many as 14 injuries were found
The injuries given on the head with Aruval according to the opinions of the Doctors were sufficient in the ordinary course of nature to cause his death
Various charges were framed against the six accused including that of rioting under section 147 IPC against A 1 and A 5 and section 148 against A 2 A 3 A 4 and A 6
A 1 was further charged under sections 302149 and sections 302109
A 2 to A 6 were charged under section 302
An extra charge under section 324 was levelled against A 2 for causing simple hurt to PW 1 with the cross stop an instrument which had sharp edges
A 6 was also charged under section 341 of the Penal Code for preventing PW 1 from escaping
The accused denied their complicity in the occurrence and pleaded not guilty
A 1 took a plea of alibi also and asserted that he had gone to Madras in connection with some marriage negotiations
Two days after the date of occurrence he was arrested at Kumbakonam Railway Station when he alighted from the train on his return from Madras
The Trial Judge acquitted A 1 A 5 and A 6 of all the charges
He convicted A 3 and A 4 under section 302 of the Penal Code and awarded a sentence of life imprisonment to each of them
They were acquitted of the charge under section 148
A 2 was convicted only under section 324 with a sentence of 4 months  rigorous imprisonment and acquitted of all other charges
A 2 A 3 and A 4 preferred an appeal in the Madras High Court against their conviction and the sentences imposed upon them by the Trial Court
State preferred an appeal against the acquittals of A 1 A 5 and A 6 as also against the acquittal of A 2 of the charge under section 302
It however did not prefer any appeal against the acquittal of A 2 A 3 and A 4 of the charge under section 148 of the Penal Code
Yet it is surprising to find that the High Court has convicted all the six accused for the offences of rioting A 1 and A 5 under section 147 with two years  rigorous imprisonment and A 2 A 3 A 4 and A 6 under section 148 with 3 years  rigorous imprisonment
Conviction of A 3 and A 4 for the offence of murder under section 302 has been maintained with the aid of section 34
High Court has also convicted A 2 A 5 and A 6 under sections 30234 and awarded each of them life imprisonment
A 1 has been convicted by the High Court under sections 302149 and 302109 with sentence 879 of life imprisonment under each
Conviction of A 2 under section 324 has been maintained
Hence these two appeals
That there was enmity and bad blood between A 1 and PW 7 is not open to any doubt
An occurrence did take place on the date time and place as given by the prosecution
The manner of occurrence in so far as it relates to the attack on the deceased is concerned by A 2 and A 3 has also been proved to the hilt
The factum of assault by A 2 on PW 1 also does not admit of any doubt
But the High Court does not seem to be justified in reversing the order of acquittal recorded by the Trial Court in favour of A 1 A 5 and A 6
It was claimed by the prosecution that apart from PW 1 there were four more eye witnesses to the occurrence namely Govindaswami PW 3 Ramalingam PW 4 Rajagopal PW 5 and Kaliaperumal PW 6
PWs 3 and 4 are brothers of the deceased
PW 5 is the brother in law of PW 3
P 1 is the statement of PW 1 before the police on the basis of which the First Information Report was drawn up
On reading this statement as also the evidence of PW 1 in Court the Trial Judge rightly came to the conclusion that PWs 3 4 5 and 6 arrived at the scene of occurrence after it had taken place
None of them had witnessed it
It considered the evidence of each witness viz PWs
3 to 6 individually and did not rely upon it
In our judgment the High Court was not right as against the explicit statement and evidence of PW 1 in reading PWs
3 to 6 as eye witnesses to the occurrence
It is significant to note that although PWs 3 and 4 were the brothers of the deceased Kaliaperumal but none of them made any attempt to save him form the attack of the assailants
Had they been present at the occurrence surely they would have tried to save their brother as was done by PW 1
We are therefore left with the evidence of PW 1 alone
Since he was injured in the same occurrence undoubtedly his ocular version of the incident is of great value to the prosecution
The plea of alibi set up by A 1 has not been substantiated at all
The Trial Judge was not right in doubting the prosecution case merely because A 1 had applied for leave on the 18th April 3 days before the occurrence
There was no evidence to show that he was at Madras on the date of occurrence
According to the Investigating Agency A 1 was arrested not on the Railway platform but near the Railway level crossing of Kumbakonam Railway Station
But the Trial Court was right in saying that the only part attributed to A 1 was the order giving for assault
In the statement Ext
P 1 the only words of order attributed to A 1 are to cut
In court there was great embellishment and improvement in the evidence of PW 1 when he put several sentences in the mouth of A 1 at the time of the alleged order giving
As already stated A 1 was the Karnam of the village and even if he was at the back of the assault on the deceased it does not stand to reason that he himself would go to the place of occurrence merely for giving the order for assault
The order if any must have been given to the assailants in secret by A 1
He must not have come to the place of occurrence merely for this purpose
We 880 are therefore of the view that although the High Court in its judgment purported to keep in front the well settled principles of law to justify an interference by it with the order of acquittal it did commit a mistake in the applications of those principles
Conviction of A 1 by the High Court under any count is not justified
So do we find in the case of A 5 and A 6 that they had not taken any part in the occurrence at all
The alleged obstruction given by A 6 to PW 1 when he wanted to run was not believable and has not been believed by the Trial Court
The reasons given by the Trial Court for their acquittal were not such as to justify an interference by the High Court
The view taken by the Trial Court was reasonably possible to be taken
Coming to the case of A 2 we find that he did assault PW 1 with the cross staff marked Ext
This cross staff as alleged has been recovered from the house of A 1
The Trial Court rightly did not believe the story of its recovery from his house
But surely A 2 had used the cross staff for assaulting PW 1
A serious question for consideration is whether his conviction under section 302 with the aid of section 34 is justified or not
In this connection we find the statement of PW 1 in Ext
P 1 to the following effect Raman too with the aruval in his hand dealt a cut at the front portion of his head
I ran there to prevent it
At that time Vattappan with the string fixed wood he was having in his hand beat on my head
 In the Sessions Court also he deposed Thereupon Accused No 3 immediately cut on the head of Kaliyaperumal in the front portion with the aruval he was having in his hand
I ran to separate them
Immediately Accused No 2 beat on my head with MO 1 
Then accused number 2 beat on my head with MO 1 4 or 5 times
I fell down unconscious
After some time President Kaliyaperumal Rajagopal Mani alias Rajagopal Ramalingam Govindaswami these persons came there
From the evidence of PW 1 corroborated as it is from his statement in Ext
P 1 it is clear that PW 1 wanted to save Kaliyaperumal the deceased from the murderous attack by A 3 and A 4
A 2 was standing as a guard and did not allow PW 1 to protect the deceased
A 2 went to the length of assaulting PW 1 and making him fall down unconscious
It is contended that A 2 cannot be held vicariously liable with the aid of section 34 for the act of A 3 and A 4 for two reasons Firstly he did not physically participate in the fatal beating administered by A 3 and A 4 to the deceased and thus the criminal act of murder was not done by all these three accused within the contemplation of section 34 the act committed by A 2 in regard to the beating of PW 1 being a different and separate act of A 2
Secondly it has not been shown that the act of A 2 in beating PW 1 was committed in 881 furtherance of the common intention of all the three pursuant to a pre arranged plan
The contention is fallacious and cannot be accepted
Section 34 is to be read along with the preceding section 33 which makes it clear that the act spoken of in section 34 includes a series of acts as a single act
It follows that the words when a criminal act is done by several persons in section 34 may be construed to mean when criminal acts are done by several persons
The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise for instance one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design
Such a person also commits an act as much as his co participants actually committing the planned crime
In the case of an offence involving physical violence however it is essential for the application of section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence the commission of which is the aim of the joint criminal venture
Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act 
The essence of section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result
Such consensus can be developed at the spot and thereby intended by all of them
In the case before us A 2 obviously was acting in concert with A 3 and A 4 in causing the murder of the deceased when he prevented PW 1 from going to the relief of the deceased
Section 34 was therefore fully attracted and under the circumstances A 2 was equally responsible for the murder of the deceased
Under these circumstances we think the High Court was justified in convicting A 2 for the offence of murder of Kaliyaperumal with the aid of section 34 of the Penal Code
There was absolutely no difficulty in maintaining the convictions of A 3 and A 4 for the murder of Kaliyaperumal with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body
In the case of A 2 also it is quite legitimate to hold that he had shared the common intention of A 3 and A 4 in the commission of the murder of Kaliyaperumal
The conviction of none of the accused for the offence of rioting can be maintained either in law or on facts
In the view which we have expressed above that the High Court was not justified in reversing the acquittals of A 1 A 5 and A 6 there were only 3 left in the party of the assailants
Moreover the State did not file any appeal as 882 stated already against the acquittal of A 2 A 3 and A 4 under section 148 of the Penal Code
That being so they could not be convicted for having formed an unlawful assembly for any criminal common object
None could be convicted therefore under sections 147 or 148
Section 149 could not be pressed into service against any
In the result we allow both the appeals in part restore the order of acquittal recorded in favour of A 1 viz Ramaswami Ayyangar A 5 Kathayyan and A 6 Kulandaiyan acquitting them of all the charges set aside the conviction of the remaining accused under sections 147 and 148 of the Penal Code and maintain the convictions of A 2 Vattappan A 3 Kaipillai alias Karuppayyan A 4 Raman under section 30234 with the sentence of life imprisonment to each
We also maintain the conviction of A 2 under section 324 Indian Penal Code with the concurrent sentence of 4 months  rigorous imprisonment under the said count
MR Appeals partly allowed


Summary:
Previous enmity between the appellant Ramaswami Ayyangar and the deceased Kaliaperumal resulted in an occurrence in which Kaliaperumal got seriously injured and died in the hospital
Various charges were framed against the six accused including those of murder and rioting
The Trial Judge acquitted three of the accused persons convicted two under section 302 IPC and one under section 324
Cross appeals were preferred in the High Court one by the three accused against their convictions and another by the State against the acquittals
The High Court convicted all the six accused of the offence of rioting
A 2 to A 6 under section 302 read with section 34 A 1 under Ss 302149 and 302109 and A 2 under section 324
It was contended before this Court that on the facts of the case the High Court was not justified in interfering with the acquittal of A 1
A 5 and A 6 and that A 2 who did not physically participate in the fatal beating of the deceased could not be held vicariously liable for the acts of others and that section 34 was not applicable to him
Partly allowing the appeals the Court  HELD 1 In the case of an offence involving physical violence it is essential for the application of section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence the commission of which is the aim of the joint criminal venture
881 C D 2 The act spoken of in section 34 includes a series of acts as a single act
It follows that the words when a criminal act is done by several persons in section 34 may be construed to mean when criminal acts are done by several persons
The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise
Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act 
881 A B  D 3 The essence of section 34 is simultaneous consensus of the minds of persons participating in the criminal action  to bring about a particular result
Such consensus can be developed at the spot and thereby intended by all of them
881 D E