KRISHNAMURTHY @ GUNODU AND OTHERS versus STATE OF KARNATAKA
[2022] 2 S.C.R. 433, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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KRISHNAMURTHY @ GUNODU AND OTHERS
v.
STATE OF KARNATAKA
(Criminal Appeal No. 288 of 2022)
FEBRUARY 16, 2022
[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]
Penal Code, 1860: ss. 302 and 34 – Murder – Common
intention – Three accused – Conviction of appellants-accused (K,
T, G) for murder of victim-deceased u/s. 302 r/w s.34 and for offences
u/ss.447, 504, 506, 341 – Division Bench of High Court affirmed
their conviction – Hence instant appeal – Held: The assault on
victim-deceased by appellant-K was fearsome, brutal and cruel –
He had pinned down and tromped the deceased using his legs and
hands fracturing four ribs, contusing and injuring the spinal cord,
the chest and neck of the deceased – The injuries were sufficient in
ordinary course of nature to cause death – Since the death of the
victim-deceased was homicidal as a result and direct consequence
of the injuries inflicted by appellant-K, he was rightly convicted
under the aforesaid sections including s.302 – As regards, appellant-
T and appellant-G, their acts cannot be primarily connected with
the violence perpetuated by appellant-K – Appellants-T and G had
not assaulted the deceased after he had fallen down and were not
responsible for the injuries suffered by the deceased resulting in
his death – The assault by appellant-K and the result outcome were
unexpected to them – Appellants-T and G are entitled to the benefit
of doubt on the ground that it cannot be with certainty held
that
they had common intention – Therefore, they cannot be held guilty
u/s.300 or even s.299 IPC – Their conviction is converted to u/
s.323 r/w s.34, however their conviction for individual offences u/
ss.447, 504, 506 and 341 is sustained.
Penal Code, 1860: s.34 – Applicability of – Common intention
– To attract applicability of s.34, the prosecution is under an
obligation to establish that there existed a common intention before
a person can be vicariously convicted for the criminal act of another
– The ultimate act should be done in furtherance of common intention
– Common intention requires a pre-arranged plan, which can be
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even formed at the spur of the moment or simultaneously just before
or even during the attack – For proving common intention, the
prosecution can rely upon direct proof of prior concert or
circumstances which necessarily lead to that inference – However,
incriminating facts must be incompatible with the innocence of the
accused and incapable of explanation by any other reasonable
hypothesis.
Penal Code, 1860: s.34 – Common intention – Principles –
For s.34 to apply, it is not necessary that the plan should be pre-
arranged or hatched for a considerable time before the criminal
act is performed – Common intention can be formed just a minute
before the actual act happens – Common intention is necessarily a
psychological fact as it requires prior meeting of minds – In such
cases, direct evidence normally will not be available and in most
cases, whether or not there exists a common intention has to be
determined by drawing inference from the facts proved – This requires
an inquiry into the antecedents, conduct of the co-participants or
perpetrators at the time and after the occurrence – The manner in
which the accused arrived, mounted the attack, nature and type of
injuries inflicted, the weapon used, conduct or acts of the co-
assailants/perpetrators, object and purpose behind the occurrence
or the attack etc. are all relevant facts from which inference has to
be drawn to arrive at a conclusion whether or not the
ingredients
of s.34 are satisfied.
Penal Code, 1860: s.34 – Liability of co-perpetrator – A co-
perpetrator, who shares a common intention, will be liable only to
the extent that he intends or could or should have visualized the
possibility or probability of the final act – If the final outcome or
offence committed is distinctly remote and unconnected with the
common intention, he would not be liable – This test obviously is
fact and circumstance specific and no strait jacket universal formula
can be applied – s.34 makes a co-perpetrator, who had participated
in the offence, equally liable on the principle of joint liability – For
s.34 to apply, there should be common intention between the co-
perpetrators, which means that there should be community of purpose
and common design or pre-arranged plan.
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Partly allowing the appeal, the Court
HELD: 1. The specific acts attributed to appellant-K are
that after the victim-deceased had fallen down, he had kicked
and assaulted him on the neck with his legs and hands. The version
on the role of appellant-K deposed by PW-1 and PW-4 gets
corroboration from the Post-Mortem Report and the deposition
of PW-9 who had conducted the post-mortem. The assault by
appellant-K, who though not armed with any weapon, was
fearsome, brutal and cruel. He had pinned down and tromped the
deceased using his legs and hands fracturing four ribs, contusing,
and injuring the spinal cord, the chest, and the neck of the
deceased. Given that the injuries caused were intended, third
limb of Section 300 IPC would get attracted. The injuries were
sufficient in ordinary course of nature to have caused death. The
death of the deceased is homicidal as a result and direct
consequence of the injuries inflicted by appellant-K. [Paras 3 and
4][438-C-D, F-H]
2. Appellant-T and appellant-G had not assaulted the
deceased after he had fallen down and were not responsible for
the injuries suffered by the deceased resulting in his death.
Appellant-T and appellant-G are entitled to the benefit of doubt
on the ground that it cannot be with certainty held that they had
common intention, viz. the injuries inflicted by appellant-K on
the deceased after he had fallen down. They did not participate
thereafter by physically assaulting or causing any injury to
the
deceased. They did not facilitate and help appellant-K in the
assault he perpetuated. It cannot be accepted that they could
have preconceived the brutal assault by appellant-K who had put
his knees on the neck and jumped on the chest of the deceased
to cause the injuries resulting in his death. Clearly, they had not
joined appellant-K when he had acted and have stood by. There
is nothing to indicate that their acts, that is, holding the hands
and pulling the legs of the deceased making him fall down, were
done in furtherance of the common intention that appellant-K
would thereupon put his leg on the neck of the deceased, crushed
his chest and fracture the ribs. Their acts cannot be primarily
connected with the violence perpetuated by appellant-K. Given
KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OF
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the acts attributed to appellant-T and appellant-G, the assault by
appellant-K and the resultant outcome were unexpected.
Therefore, they cannot be held guilty for the offence under Section
300 or even Section 299 of the IPC on the ground that they shared
common intention as understood on application of Section 34 IPC.
Consequently, their conviction is converted to Section 323 read
with Section 34 IPC and sentence them to the maximum sentence
specified therein of one year. This Court also uphold the
conviction of appellant-T and appellant-G for individual offences
under Sections 447, 504, 506 and 341 IPC and the sentences
imposed under the aforesaid Sections, which are up to three years
of rigorous imprisonment and fine with default stipulations.
[Paras 7, 20, 21][441-B; 452-F-H; 453-A-E]
Suresh and Another v. State of Uttar Pradesh (2001) 3
SCC 673 : [2001] 2 SCR 263; Tukaram Ganpat
Pandare v. State of Maharashtra (1974) 4 SCC 544;
Ramaswami Ayyangar v. State of Tamil Nadu (1976) 3
SCC 779 : [1976] 3 SCR 876; Afrahim Sheikh and
Others v. State of West Bengal AIR 1964 SC 1263 :
[1964] 6 SCR 172; Krishnan and Another v. State of
Kerala (1996) 10 SCC 508 : [1996] 5 Suppl. SCR 405;
Surendra Chauhan v. State of Madhya Pradesh (2000)
4 SCC 110 : [1996] 5 Suppl. SCR 405; Mithu Singh v.
State of Punjab (2001) 4 SCC 193; Rajesh Kumar v. State
of Himachal Pradesh (2008) 15 SCC 705 : [ 2008] 14
SCR 234 – relied on.
Arun v.
State by Inspector of Police, Tamil Nadu (2008)
15 SCC 501 : [2008] 17 SCR 279; Hardev Singh and
Another v. State of Punjab (1975) 3 SCC 731; Dharam
Pal and Others v. State of Haryana (1978) 4 SCC 440
– referred to.
Bashir v. State AIR 1953 All 668; Barendra Kumar
Ghosh v. The King-Emperor 4 ILR (1925) 52 Cal. 1974;
King Emperor v. Barendra Kumar Ghose AIR 1924
Calcutta 257 – referred to.
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Case Law Reference
[2001] 2 SCR 263
relied on
Para 9
[1964] 6 SCR 172
relied on
Para 10
(1974) 4 SCC 544
relied on
Para 11
[1976] 3 SCR 876
relied on
Para 11
[1996] 5 Suppl. SCR 405
relied on
Para 11
[1996] 5 Suppl. SCR 405
relied on
Para 14
(2001) 4 SCC 193
relied on
Para 15
[2008] 14 SCR 234
relied on
Para 16
[2008] 17 SCR 279
referred to
Para 17
(1975) 3 SCC 731
referred to
Para 17
(1978) 4 SCC 440
referred to
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
288 of 2022.
From the Judgment and Order dated 20.02.2021 of the High Court
of Karnataka at Kalaburagi Bench in Criminal Appeal No.200147 of
2017.
Basava Prabhu P. Patil, Sr. Adv., Sharangouda Patil, Ms. Supreeta
Sharangouda, Aman Kant Mishra, Geet Ahuja, M/s S-Legal Associates,
Advs. for the Appellants.
Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,
Advs. for the Respondent.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1.  Leave granted.
2. This appeal by Krishnamurthy (also described as Krishna
Murthy), Gopala and Thimmappa takes exception to the judgment dated
20th February 2021 passed in Criminal Appeal No. 200147 of 2017,
whereby the Division Bench of the High Court of Karnataka, Kalaburagi
Bench, has affirmed their conviction under Section 302 read with Section
34 and individually for the offences under Sections 447, 504, 506 and
341 of the Indian Penal Code, 1860 (for short, ‘IPC’).
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3. Having examined the evidence in detail, we agree that
Krishnamurthy has been rightly convicted under the aforesaid Sections,
including Section 302 of the IPC. Testimonies of Channamma (PW-1),
Ramanjaneya (PW-4), Dullaiah (PW-6) and Dodda Narasimha (PW-7),
all eyewitnesses, implicate Krishnamurthy as the perpetrator who had
assaulted the deceased-Venkatarama after he had fallen down. In view
of our analysis of the testimonies in the ensuing paragraphs, we have
reservations in entirely relying upon the depositions of Dullaiah (PW-6)
and Dodda Narasimha (PW-7). But we have no reservation in accepting
the depositions of Channamma (PW-1) and Ramanjaneya (PW-4)
implicating Krishnamurthy. We have subsequently reproduced the
relevant portions of their depositions. Suffice at this stage is to aver that
the specific acts attributed to Krishnamurthy are that after Venkatarama
had fallen- down, he had kicked and assaulted him on the neck with his
legs and hands. The version on the role of Krishnamurthy deposed by
Channamma (PW-1) and Ramanjaneya (PW-4) gets corroboration from
the Post-Mortem Report (Exhibit P-6) and the deposition of Dr.
Sharanabasava (PW-9) who had conducted the post-mortem.
Venkatarama had suffered abraded contusion of reddish blue colour on
the neck area and abraded contusion reddish in colour on the left side of
the chest. Internal dissection had revealed profuse bleeding over the
muscles of the neck
surrounding the arteries that were ruptured. The
left side ribs 4, 5, 6 and 7 were fractured. The utral part of the stemum
was broken into two pieces. The spinal cord at the level of C-5, C-6 and
C-7 was contused, edematous and elongated. The cause of death was
opined as haemorrhagic shock as a result of multiple injuries.
4. The assault by Krishnamurthy, who though not armed with any
weapon, was fearsome, brutal and cruel. He had pinned down and
tromped Venkatarama using his legs and hands fracturing four ribs,
contusing, and injuring the spinal cord, the chest, and the neck of the
deceased. Given that the injuries caused were intended, third limb of
Section 300 IPC would get attracted. The post mortem report and
deposition of Dr. Sharanabasava (PW-9) prove the cause of death on
account of injuries caused in the chest region, asphyxia, and facture of
bones. The death was instantaneous, as has been deposed by Channamma
(PW-1) and Ramanjaneya (PW-4). The injuries were sufficient in ordinary
course of nature to have caused death. The death of Venkatarama is
homicidal as a result and direct consequence of the injuries inflicted by
Krishnamurthy.
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5. This brings us to the role and acts of Gopala and Thimmappa
and whether they can be individually convicted for murder of
Venkatarama. We begin by referring to the depositions of Dullaiah (PW-
6) and Dodda Narasimha (PW-7), which are verbatim identical, and,
therefore, the suspicion that the said witnesses were prompted. However,
we would not doubt their presence at the place of occurrence as their
presence was natural, they being farmers who were undertaking
cultivation in the adjacent fields. On the actual occurrence they both
have deposed:
“While on my way, Venkatarama, his wife, and their son
Ramanjineya (sic) were in the land on Gangawara road. Then,
accused Thimmappa, ‘A’ (identity suppressed being a juvenile)
were holding Venkataramana’s (sic) hands. Accused Gopala was
pulling down Venkataramana’s (sic) legs and as such he fell down
on his back. Then, Gopala, Krishnamurthy assaulted with hands,
kicked with legs and attacked with their hands when
Venkataramana (sic) had fallen down. At that time, I along with
Ramanjineya (sic), Dodda Narasimhalu were present. We did
not try to save hence since accused had threatened us not to go
near them.”
Dullaiah (PW-6) and Dodda Narasimha (PW-7) in their cross-
examination had vacillated and hesitantly accepted that they did not know
as to who amongst the accused ‘A’ and Thimmappa had held the hands
of the deceased and which one had pulled the legs of the deceased
making him fall down. They testified that the
accused ‘Venkatarama’
kicked with both legs and assaulted with hands. This statement is
erroneous and could well be a typographical error as Venkatarama was
the deceased and not an accused. However, it appears from the
depositions that one of the accused had kicked with both legs and
assaulted the deceased with his hands, a fact affirmatively deposed to
by Channamma (PW-1) and Ramanjaneya (PW-4).
6. Channamma (PW-1), in her examination in chief on the
occurrence and the acts and role of the accused, has deposed:
“Accused No.3 Thimmappa and accused No.4 ‘A’ twisted back
my husband’s both hands and held them. Accused No.2 Gopala
pulled my husband down through his leg. Accused No.1
Krishnamurthy stamped my husband’s neck with his left leg and
jumped upon it.”
KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OF
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In her cross-examination she denied the suggestion that
Thimmappa and ‘A’, had neither twisted nor held the hands of her husband
and Gopala had not pulled him down with his legs. She has also denied
that Krishnamurthy had not jumped on her husband’s legs and stomped
with his legs.
Ramanjaneya (PW-4), about twelve years old when his evidence
was recorded, avers that he along with his mother and father were at
their farm land harvesting and piling up Sajje crop. At about noon, the
four accused came to the spot and had threatened their father who had
tried to run away. Thereupon:
“All the four of them chased him and accused Thimmappa and
‘A’ held both hands of my father. Accused Gopala held both legs
of my father and pulled him. Then, my father pleaded and fell
down with his head down. Accused Krishnamurthy kicked with
his hands and legs and assaulted heavily on the neck. At that time,
when my mother went ahead to save him, all the accused persons
threatened to do away with our lives. Then, afraid by the same,
we did not go ahead. Accused Thimmappa told that, my father is
dead and left and went away.”
7. We would accept the versions given by Channamma (PW-1)
and Ramanjaneya (PW-4), albeit record that there could be some minor
exaggerations. However, what is clearly discernible, and which all
eyewitnesses including Dullaiah (PW-6) and Dodda Narasimha (PW-7)
accept, is that the accused were unarmed and they did not even
have a
stick with them. This indicates absence of a premediated attack to murder
Venkatarama. Further, the roles attributed to Thimmappa and Gopala
are different from the brutal assault leashed by Krishnamurthy after
Venkatarama had fallen down. Roles of Thimmappa and ‘A’, as per the
versions given by Channamma (PW-1) and Ramanjaneya (PW-4), were
limited to holding and twisting the hands of Venkatarama. Gopala had
pulled down the deceased by holding his legs. As per Dullaiah (PW-6)
and Dodda Narasimha (PW-7), Gopala and Krishnamurthy had then
assaulted Venkatarama, but as per the versions of Channamma (PW-1)
and Ramanjaneya (PW-4), only Krishnamurthy had assaulted and not
Gopala. All of them in unison state that Thimmappa had not participated
in the assault after Venkatarama had fallen down. Given the above
discrepancy and for reasons recorded above casting doubt on the versions
given by Dullaiah (PW-6) and Dodda Narasimha (PW-7), we accept
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that it was Krishnamurthy alone who had swung into action, kicked and
assaulted the deceased with his hands and legs and stomped with his left
leg on his neck. He had also jumped on his chest. The post mortem
report and the deposition of Dr. Sharanabasava (PW-9) have attributed
the death of the deceased on account of injuries caused by Krishnamurthy.
The deceased had not suffered any fracture on his hands, arms or legs.
Thus, we accept that Thimmappa and Gopala had not assaulted
Venkatarama after he had fallen down and were not responsible for the
injuries suffered by Venkatarama resulting in his death.
8. The underlying basic assumption or foundation in criminal law
is the principle of personal culpability. A person is criminally responsible
for act or transactions in which he is personally engaged or in some
other way had participated. However, there are various modes and
capacities in which a person can participate in a crime. He can instigate,
be a facilitator or otherwise aid execution of a crime. Section 34 IPC
incorporates the principle of shared intent, that is, common design between
the two perpetrators, which makes the second or other participants also
an equal or joint perpetrator as the main or principal perpetrator1. The
question which arises is whether Thimmappa and Gopala can be attributed
common intention under Section 34 IPC to commit murder under Section
300 or even offence under Section 304 IPC.
9. In Suresh and Another v. State of
Uttar Pradesh,2 R.P. Sethi,
J. in his concurring judgment (for himself and B.N. Agarwal, J.) on the
question of common intention has observed:
“38. Section 34 of the Penal Code, 1860 recognises the principle
of vicarious liability in criminal jurisprudence. It makes a person
liable for action of an offence not committed by him but by another
person with whom he shared the common intention. It is a rule of
evidence and does not create a substantive offence. The section
gives statutory recognition to the commonsense principle that if
more than two persons intentionally do a thing jointly, it is just the
same as if each of them had done it individually. There is no
gainsaying that a common intention presupposes prior concert,
which requires a prearranged plan of the accused participating in
1 We have used the said terms for want of a better phrase. Section 34 IPC does not
postulate such distinction
2 (2001) 3 SCC 673
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an offence. Such preconcert or preplanning may develop on the
spot or during the course of commission of the offence but the
crucial test is that such plan must precede the act constituting an
offence. Common intention can be formed previously or in the
course of occurrence and on the spur of the moment. The existence
of a common intention is a question of fact in each case to be
proved mainly as a matter of inference from the circumstances
of the case.
39. The dominant feature for attracting Section 34 of the Penal
Code, 1860 (hereinafter referred to as “the Code”) is the element
of participation in absence resulting in the ultimate “criminal act”.
The “act” referred to in the later part of Section 34 means the
ultimate criminal act with which the accused is charged of sharing
the common intention. The accused is, therefore, made responsible
for the ultimate criminal act done by several persons in furtherance
of the common intention of all. The section does not envisage the
separate act by all the accused persons for becoming responsible
for the ultimate criminal act. If such an interpretation is accepted,
the purpose of Section 34 shall be rendered infructuous.
40. Participation in the crime in furtherance of the common intention
cannot conceive of some independent criminal act by all accused
persons, besides the ultimate criminal act because for that individual
act law takes care of making such accused responsible
under the
other provisions of the Code. The word “act” used in Section 34
denotes a series of acts as a single act. What is required under
law is that the accused persons sharing the common intention
must be physically present at the scene of occurrence and be
shown not to have dissuaded themselves from the intended criminal
act for which they shared the common intention. Culpability under
Section 34 cannot be excluded by mere distance from the scene
of occurrence. The presumption of constructive intention, however,
has to be arrived at only when the court can, with judicial servitude,
hold that the accused must have preconceived the result that ensued
in furtherance of the common intention. A Division Bench of the
Patna High Court in Satrughan Patar v. Emperor held that it is
only when a court with some certainty holds that a particular
accused must have preconceived or premeditated the result which
ensued or acted in concert with others in order to bring about that
result, that Section 34 may be applied.”
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10. Appropriate at this stage would be reference to an earlier
decision of this Court in Afrahim Sheikh and Others v. State of West
Bengal3, which referred to with approval the following quote on the
expression “act” explained by Judicial Commissioner in Barendra Kumar
Ghosh v. The King-Emperor4:
“criminal act means that unity of criminal behaviour, which results
in something, for which an individual would be punishable, if it
were all done by himself alone i.e. a criminal offence”.
This “criminal act” under Section 34 IPC, it was held, applies
where a criminal act is done by several persons in furtherance of common
intention of all. The criminal offence is the final result or outcome but it
may be through achievement of individual or several criminal acts. Each
individual act may not constitute or result in the final offence. When a
person is assaulted by a number of accused, the “ultimate criminal act”
normally will constitute the offence which finally results or which may
result in death, simple hurt, grievous hurt, etc. This is the final result,
outcome or consequence of the criminal act, that is, action or act of
several persons. Each person will be responsible for his own act as
stipulated in Section 38 IPC. However, Sections 34 and 35 expand the
scope and stipulate that if the criminal act is a result of common intention,
every person, who has committed a part of the criminal act with the
common intention, will be responsible for the offence. It
was accordingly
held in Afrahim Sheikh and Ors. (supra) as under:
“8. …Provided there is common intention, the whole of the result
perpetrated by several offenders, is attributable to each offender,
notwithstanding that individually they may have done separate
acts, diverse or similar. Applying this test to the present case, if all
the appellants shared the common intention of severely beating
Abdul Sheikh and some held him down and others beat him with
their weapons, provided the common intention is accepted, they
would all of them be responsible for the whole of the criminal act,
that is to say, the criminal offence of culpable homicide not
amounting to murder which was committed, irrespective of the
part played by them. The common intention which is required by
the section is not the intention which s. 299 mentions in its first
3 AIR 1964 SC 1263
4 ILR (1925) 52 Cal. 197
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part. That intention is individual to the offender unless it is shared
with others by a prior concert in which case Sections 34 or 35
again come into play. Here, the common intention was to beat
Abdul Sheikh, and that common intention was, as we have held
above, shared by all of them. That they did diverse acts would
ordinarily make their responsibility individual for their own acts,
but because of the common intention, they would be responsible
for the total effect that they produced if any of the three conditions
in s. 299, I.P.C. applied to their case. If it were a case of the first
two conditions, the matter is simple. They speak of intention and
s. 34 also speaks of intention.
9. The question is whether the second part of s. 304 can be made
applicable. The second part no doubt speaks of knowledge and
does not refer to intention which has been segregated in the first
part. But knowledge is the knowledge of the likelihood of death.
Can it be said that when three or four persons start beating a man
with heavy lathis, each hitting his blow with the common intention
of severely beating him and each possessing the knowledge that
death was the likely result of the beating, the requirements of s.
304, Part II are not satisfied in the case of each of them? If it
could be said that knowledge of this type was possible in the case
of each one of the appellants, there is no reason why s. 304, Part
II cannot be read with s.
34. The common intention is with regard
to the criminal act, i.e., the act of beating. If the result of the
beating is the death of the victim, and if each of the assailants
possesses the knowledge that death is the likely consequence of
the criminal act, i.e., beating, there is no reason why s. 34 or s. 35
should not be read with the second part of s. 304 to make each
liable individually.”
11. Accordingly, to attract applicability of Section 34 IPC, the
prosecution is under an obligation to establish that there existed a common
intention before a person can be vicariously convicted for the criminal
act of another. The ultimate act should be done in furtherance of common
intention. Common intention requires a pre-arranged plan, which can be
even formed at the spur of the moment or simultaneously just before or
even during the attack. For proving common intention, the prosecution
can rely upon direct proof of prior concert or circumstances which
necessarily lead to that inference. However, incriminating facts must be
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incompatible with the innocence of the accused and incapable of
explanation by any other reasonable hypothesis. By Section 33 of IPC, a
criminal act in Section 34 IPC includes omission to act. Thus, a co-
perpetrator who has done nothing but has stood outside the door, while
the offence was committed, may be liable for the offence since in crimes
as in other things “they also serve who only stand and wait”. Thus,
common intention or crime sharing may be by an overt or covert act, by
active presence or at distant location but there should be a measure of
jointness in the commission of the act. Even a person not doing a particular
act but only standing as a guard to prevent any prospective aid to the
victim may be guilty of common intention.5 Normally, however, in a case
of offence involving physical violence, physical presence at the place of
actual commission is considered to be safe for conviction but it may not
be mandatory when pre-arranged plan is proved and established beyond
doubt. Facilitation in execution of the common design may be possible
from a distance and can tantamount to actual participation in the criminal
act. The essence and proof that there was simultaneous consensus of
mind of co- participants in the criminal action is however, mandatory
and essential.6 In Krishnan and Another v. State of Kerala,7 it has
been observed that an overt act is not a requirement of law for Section
34 IPC to operate but prosecution must establish that the
persons
concerned shared the common intention, which can be also gathered
from the proved facts.
12. In Suresh’s case (supra), this Court also examined whether a
passive co-perpetrator can be liable under Section 34 IPC. This case
quotes with approval the following passage from the judgment of
Richardson, J. in King Emperor v. Barendra Kumar Ghose8:
“It appears to me that Section 34 regards the act done as the
united act of the immediate perpetrator and his confederates
present at the time and that the language used is susceptible of
that meaning. The language follows a common mode of speech.
In R. v. Salmon three men had been negligently firing at a mark.
One of them — it was not known which — had unfortunately
killed a boy in the rear of the mark. They were all held guilty of
5 See Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544
6 See Ramaswami Ayyangar v. State of Tamil Nadu, (1976) 3 SCC 779
7 (1996) 10 SCC 508
8 AIR 1924 Calcutta 257
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manslaughter. Lord Coleridge, C.J., said: ‘The death resulted from
the action of the three and they are all liable.’ Stephen, J., said:
‘Firing a rifle’ under such circumstances ‘is a highly dangerous
act, and all are responsible; for they unite to fire at the spot in
question and they all omit to take any precautions whatever to
prevent danger’.
Moreover, Sections 34, 35 and 37 must be read together, and the
use in Section 35 of the phrase ‘each of such persons who joins in
the act’ and in Section 37 of the phrase, ‘doing any one of those
acts, either singly or jointly with any other person’ indicates the
true meaning of Section 34. So Section 38 speaks of ‘several
persons engaged or concerned in a criminal act’. The different
modes of expression may be puzzling but the sections must, I
think, be construed as enunciating a consistent principle of liability.
Otherwise the result would be chaotic.
To put it differently, an act is done by several persons when all
are principals in the doing of it, and it is immaterial whether they
are principals in the first degree or principals in the second degree,
no distinction between the two categories being recognised.
This view of Section 34 gives it an intelligible content in conformity
with general notions. The opposing view involves a distinction
dependent on identity or similarity of act which, if admissible at
all, is wholly foreign to the law, both civil and criminal, and
leads
nowhere.”
13. At this stage, we would like to refer to an old judgment of a
Division Bench of the Allahabad High Court in the case of Bashir v.
State9, which by giving examples explains the scope and significance of
the words “in furtherance” used in Section 34 of the IPC in the following
manner:
“18. The use of the words “in furtherance” suggests that Section
34 is applicable also where the act actually done is not exactly the
act jointly intended by the conspirators to be done, otherwise, the
words would not be needed at all. The common intention can be
to do one act and another act can be done in furtherance of the
9 AIR 1953 All 668
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common intention. It may be a preliminary act necessary to be
done before achieving the common intention; or it may become
necessary to do it after achieving the common intention or it may
be done while achieving the common intention. Going to the spot
in a motor car is an act in furtherance of the common intention to
commit a crime there; but if while going there the driver runs over
and kills a pedestrian, the collision is merely incidental and the
running aver of the pedestrian is not in furtherance of the common
intention. If, however, a conspirator who wishes to commit a crime
involving violence against X is impeded by Y and throws Y aside
in order to get at X, the attack upon Y is made in furtherance of
the common intention; see Russell on Crime, pages 557 and 558.”
The aforesaid quotation emphasizes that it is essential that each
co-perpetrator should have necessary intent to participate or otherwise
have requisite awareness or knowledge that the offence is likely to be
committed in view of the common design. It also follows that in some
cases merely accompanying the principal accused may not establish
common intention. A co-perpetrator, who shares a common intention,
will be liable only to the extent that he intends or could or should have
visualized the possibility or probability of the final act. If the final outcome
or offence committed is distinctly remote and unconnected with the
common intention, he would not be liable. This test obviously
is fact and
circumstance specific and no straitjacket universal formula can be applied.
Two examples quoted in Bashir’s case (supra) are relevant and explain
the widest and broad boundaries of Section 34 IPC and at the same time
warn that the ambit should not be extended so as to hold a person liable
for remote possibilities, which were not probable and could not be
envisaged. The examples also bring out the distinction between the
criminal acts and the intent of a co-perpetrator; and the actual offence
committed by the principal or main perpetrator.
14. In Surendra Chauhan v. State of Madhya Pradesh,10 it has
been observed:
“11. Under Section 34 a person 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
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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. (Ramaswami Ayyangar v. State of T.N.) The
existence of a common intention can be inferred from the attending
circumstances of the case and the conduct of the parties. No
direct evidence of common intention is necessary. For the purpose
of common intention even the participation in the commission of
the offence need not be proved in all cases. The common intention
can develop even during the course of an occurrence. (Rajesh
Govind Jagesha v. State of Maharashtra) To apply Section 34
IPC apart from the fact that there should be two or more accused,
two factors must be established : (i) common intention, and (ii)
participation of the accused in the commission of an offence. If a
common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it
involves vicarious liability but if participation of the accused in the
crime is proved and a common intention is absent, Section 34
cannot be invoked. In every case, it is not possible to have direct
evidence of a common intention. It has to be inferred from the
facts and circumstances of each case.”
15. In Mithu Singh v. State of Punjab,11 this Court acquitted
Mithu Singh under Section 302 read with Section 34 IPC, but upheld his
conviction under Section 27 of the Arms Act, 1959 observing that
inference as to common intention should not be readily drawn; culpable
liability can arise only if such inference can be drawn with a degree of
assurance. In the facts of the said case, it was observed that the required
degree of assurance was missing. At the same time, it was observed
that while examining the question of common intention, the court should
be conscious and aware that it is difficult, if not impossible, to collect and
produce direct evidence and in most cases inference as to the intention
shall be drawn from the acts and conduct of the accused and other
relevant circumstances as available. The entire observation or ratio of
this Court has to be kept in mind.
11 (2001) 4 scc 193
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16. In Rajesh Kumar v. State of Himachal Pradesh,12 this Court
had elucidated and laid down the following principles as applicable to
Section 34 IPC:
“13. 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. In order to bring home the charge
of common intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting
of mind of all the accused persons to commit the offence for
which they are charged with the aid of Section 34, be it pre-
arranged or on the spur of moment; but it must necessarily be
before the commission of the crime. The true contents of the
Section are that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of them has
done it individually by himself. As observed in Ashok
Kumar v.
State of Punjab (AIR 1977 SC 109), the existence of a common
intention amongst the participants in a crime is the essential
element for application of this Section. It is not necessary that
the acts of the several persons charged with commission of an
offence jointly must be the same or identically similar. The acts
may be different in character, but must have been actuated by
one and the same common intention in order to attract the
provision.”
After referring to the facts in Rajesh Kumar (supra), the
conviction was converted from Section 302 IPC to one under Section
326 IPC highlighting the factual position that the accused in question had
assaulted the victim by a danda on a non-vital part.
12 (2008) 15 SCC 705
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17. In Arun v. State by Inspector of Police, Tamil Nadu,13
reference was made to the decision in Hardev Singh and Another v.
State of Punjab14 and benefit was given to one of the accused as he did
not act conjointly with others in committing the murder. This Court referred
to Dharam Pal and Others v. State of Haryana,15 on the test which
should be applied to invoke and convict a co-accused under Section 34
IPC. We also deem it appropriate to reproduce the said test:
“14. It may be that when some persons start with a pre-arranged
plan to commit a minor offence, they may in the course of their
committing the minor offence come to an understanding to commit
the major offence as well. Such an understanding may appear
from the conduct of the persons sought to be made vicariously
liable for the act of the principal culprit or from some other
incriminatory evidence but the conduct or other evidence must be
such as not to leave any room for doubt in that behalf.
15. A criminal court fastening vicarious liability must satisfy itself
as to the prior meeting of the minds of the principal culprit and his
companions who are sought to be constructively made liable in
respect of every act committed by the former. There is no law to
our knowledge which lays down that a person accompanying the
principal culprit shares his intention in respect of every act which
the latter might eventually commit. The existence or otherwise of
the
common intention depends upon the facts and circumstances
of each case. The intention of the principal offender and his
companions to deal with any person who might intervene to stop
the quarrel must be apparent from the conduct of the persons
accompanying the principal culprit or some other clear and cogent
incriminating piece of evidence. In the absence of such material,
the companion or companions cannot justifiably be held guilty for
every offence committed by the principal offender.”
18. Section 34 IPC makes a co-perpetrator, who had participated
in the offence, equally liable on the principle of joint liability. For Section
34 to apply there should be common intention between the co-
perpetrators, which means that there should be community of purpose
13 (2008) 15 SCC 501
14 (1975) 3 SCC 731
15 (1978) 4 SCC 440
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and common design or pre-arranged plan. However, this does not mean
that co-perpetrators should have engaged in any discussion, agreement
or valuation. For Section 34 to apply, it is not necessary that the plan
should be pre-arranged or hatched for a considerable time before the
criminal act is performed. Common intention can be formed just a minute
before the actual act happens. Common intention is necessarily a
psychological fact as it requires prior meeting of minds. In such cases,
direct evidence normally will not be available and in most cases, whether
or not there exists a common intention has to be determined by drawing
inference from the facts proved. This requires an inquiry into the
antecedents, conduct of the co-participants or perpetrators at the time
and after the occurrence. The manner in which the accused arrived,
mounted the attack, nature and type of injuries inflicted, the weapon
used, conduct or acts of the co-assailants/perpetrators, object and purpose
behind the occurrence or the attack etc. are all relevant facts from which
inference has to be drawn to arrive at a conclusion whether or not the
ingredients of Section 34 IPC are satisfied. We must remember that
Section 34 IPC comes into operation against the co-perpetrators because
they have not committed the principal or main act, which is undertaken/
performed or is attributed to the main culprit or perpetrator. Where an
accused is the main or final perpetrator, resort to Section 34
IPC is not
necessary as the said perpetrator is himself individually liable for having
caused the injury/offence. A person is liable for his own acts. Section 34
or the principle of common intention is invoked to implicate and fasten
joint liability on other co-participants. Further, the expression/term
“criminal act” in Section 34 IPC refers to the physical act, which has
been done by the co-perpetrators/participants as distinct from the effect,
result or consequence. In other words, expression “criminal act” referred
to in Section 34 IPC is different from “offence”. For example, if A and
B strike Lathi at X, the criminal act is of striking lathis, whereas the
offence committed may be of murder, culpable homicide or simple or
grievous injuries. The expression “common intention” should also not be
confused with “intention” or “mens rea” as an essential ingredient of
several offences under the IPC. Intention may be an ingredient of an
offence and this is a personal matter. For some offences, mental intention
is not a requirement but knowledge is sufficient and constitutes necessary
mens rea. Section 34 IPC can be invoked for the said offence also
[refer Afrahim Sheikh and Ors. (supra)]. Common intention is common
design or common intent, which is akin to motive or object. It is the
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reason or purpose behind doing of all acts by the individual participant
forming the criminal act. In some cases, intention, which is ingredient of
the offence, may be identical with the common intention of the co-
perpetrators, but this is not mandatory.
19. Section 34 IPC also uses the expression “act in furtherance
of common intention”. Therefore, in each case when Section 34 is
invoked, it is necessary to examine whether the criminal offence charged
was done in furtherance of the common intention of the participator. If
the criminal offence is distinctly remote and unconnected with the
common intention, Section 34 would not be applicable. However, if the
criminal offence done or performed was attributable or was primarily
connected or was a known or reasonably possible outcome of the
preconcert/contemporaneous engagement or a manifestation of the
mutual consent for carrying out common purpose, it will fall within the
scope and ambit of the act done in furtherance of common intention.
Thus, the word “furtherance” propounds a wide scope but should not be
expanded beyond the intent and purpose of the statute. Russell on Crime,
(10th edition page 557), while examining the word “furtherance” had
stated that it refers to “the action of helping forward” and “it indicates
some kind of aid or assistance producing an effect in the future” and
that “any act may be regarded as done in furtherance of the ultimate
felony if it
is a step intentionally taken for the purpose of effecting that
felony.” An act which is extraneous to the common intention or is done
in opposition to it and is not required to be done at all for carrying out the
common intention, cannot be said to be in furtherance of common intention
[refer judgment of R.P. Sethi J. in Suresh (supra)].
20. When we apply the aforesaid principles relating to applicability
of Section 34 IPC to the facts of the present case, we feel that
Thimmappa and Gopala are entitled to the benefit of doubt on the ground
that it cannot be with certainty held that they had common intention, viz.
the injuries inflicted by Krishnamurthy on Venkatarama after he had
fallen down. They did not participate thereafter by physically assaulting
or causing any injury to Venkatarama. They did not facilitate and help
Krishnamurthy in the assault he perpetuated. We have no grounds to
accept that they could have preconceived the brutal assault by
Krishnamurthy who had put his knees on the neck and jumped on the
chest of the deceased to cause the injuries resulting in his death. We
cannot hold that these two accused could have premeditated the result
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which ensued when Krishnamurthy behaved and acted in the manner
he did. Clearly, they had not joined Krishnamurthy when he had acted
and have stood by. There is nothing to indicate that their acts, that is,
holding the hands and pulling the legs of the deceased making him fall
down, were done in furtherance of the common intention that
Krishnamurthy would thereupon put his leg on the neck of the deceased,
crushed his chest and fracture the ribs. We would, in favour of the
appellants Thimmappa and Gopala, hold that their acts cannot be primarily
connected with the violence perpetuated by Krishnamurthy. Given the
acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy
and the resultant outcome were unexpected. We are also not prepared
to hold that these two accused should have known the final outcome, or
it was known to them, or it was a reasonably possible outcome of the
preconcert/ contemporaneous engagement or a manifestation of mutual
consent for carrying out a common purpose. We, therefore, would not
hold them guilty for the offence under Section 300 or even Section 299
of the IPC on the ground that they shared common intention as understood
on application of Section 34 IPC.
21. Consequently, we convert their conviction to that under Section
323 read with Section 34 IPC and we would sentence them to the
maximum sentence specified therein of one year. We also uphold the
conviction of Thimmappa and Gopala for individual offences under
Sections 447, 504, 506 and 341 IPC and the sentences imposed under
the aforesaid Sections, which are up to three years of rigorous
imprisonment and fine with default stipulations.
22. Before concluding, we would like to mention the secondary
argu- ment raised by the appellant that juvenile ‘A’ was acquitted from
all the charges and hence, the appellants are entitled to acquittal on the
ground of parity. This contention is to be rejected in view of Sections 40
to 44 of the Evidence Act, 1872. In particular, Section 43 states judgments
other than those mentioned in Sections 40 to 42 are irrelevant unless the
existence of that judgment, order or decree is a fact in issue or is relevant
under some other provisions of this Act. We have decided this appeal
based on the evidence adduced and led by the prosecution in the
chargesheet in ques- tion. We cannot decide this appeal based on the
evidence and material led by the prosecution in the proceedings against
the ju- venile ‘A’ which were independent and separate proceedings.
Evi- dence, reasoning and findings recorded therein are not in appeal
before us.
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23. As Thimmappa and Gopala are on bail and have not undergone
the sentence, they shall surrender within a period of one month from
today. In case they do not surrender, the police will take coercive steps
for their arrest to undergo the remaining sentence. The sentence awarded
to Krishnamurthy would be modified to life imprisonment without any
further stipulation. The direction that life imprisonment shall be till the
end of natural life to imply that Krishnamurthy shall not be entitled to
premature release/remission in accordance with the applicable policy is
set aside. There is no reason and justification for this condition to be
imposed. The sentences as awarded to the appellants will run
concurrently. The appellants would be entitled to the benefit of Section
428 of the Code of Criminal Procedure, 1973.
24. The appeal is, accordingly, partly allowed in the aforesaid terms.
Devika Gujral
Appeal partly allowed.