PARASA RAJU MANIKYALA RAO AND ANR. v.

STATE OF A.P.

OCTOBER 15, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Penal Code, 1860 :

Section 34-Scope and ambit of-Common intention-Acts done in C furtherance of-Held : The essence of liability under S. 34 is existence of common intention and participation in a criminal act-Participation need not in all cases be by physical presence.

Practice and Procedure :

Case law-Decided cases-Precedent-Held : How a person reacts in a given case may be the determinative factor so far as that case is concerned-Application of one decided case to another case notwithstanding the dissimilarity in effect and distinctive features is legally impermissible.

Words and Phrases :

"Common intention"-Meaning of-In the context of S.34 of the Penal Code, 1860.

F . According to the prosecution, three persons including appellants Nos. 2 and 3 had caused homicidal death of one person. All .the accused persons and the deceased who were closely related were in hostile terms because of property dispute. The trial court had found that the evidence was as cogent against appellants Nos. 2 and 3 as it was against appellant No. I but convicted only appellant No. I and acquitted G appellants Nos. 2 and 3 by giving them benefit of doubt based on the facts of a different case. However, the High Court convicted appellants Nos. 2 and 3 under Section 302 read with Section 34 of the PEmal Code,

1860. Hence the appeal.

H On behalf of appellants Nos. 2 and 3, it was contended that Section

PARAS RAJU MANIKY ALA RAO v. ST A TE 757

34 had no application because it had not been established by evidence A " that there was any common intention to commit murder.

Dismissing the appeal, the Court

HELD : 1.1. How a person reacts in a given case may be the B determinative factor so far as that case is concerned. That cannot be applied as a rule of universal application to all cases irrespective of the fact situation in that particular case. There can be no empirical formula as to how one reacts in a given situation and 'its effect and impact. It would almost like trying to put a square peg on a round hole. C To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding disimilarity in effect and the distinctive features is legally impermissible. [763-A-C]

1.2. Each case, more particularly a criminal case depends on its D own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, E the broad resemblance to another case is not at all decisive.The vague and cryptic conclusion arrived at by the trial court to treat the cases of A-2 and A-3 differently from the manner it dealt with that of A-1, despite its very observation that the evidence was as cogent agdinst them too as it was against A-1 lack a judicious approach and F determination and, therefore, rightly interfered with by the High Court. [763-F-H]

2.1. Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a G common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind, a mortal stroke, through given by one member of the H

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A party, is deemed in the eyes of law to have been given by every individual present and abetting. But .a party not cognizant .of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of Section 34 of the Penal Code, 1860 is the element of participation in B action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The c!ssence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. [764-B-.E:) c RamaswamyAyyangarv. State o/Tami/ Nadu, AIR (1976) SC.2027, relied on.

2.2. The participation need not in all cases be by physical presence.

D In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in_ respect of .other offences when the offence consists of diverse acts, which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under Section 34 is not one of the conditions of its applicability in every case. Before a man can be E held liable for acts done by another, under the povisions of this Section,

it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person soug; ht to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are bot:h present, F Section 34 cannot apply. [764-E-G)

3.1. ·common intention" implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under Section 34, a preconcrt in the sense of a distinct previous plan is not necessary to be G proved. The common intention to bring about'aparticular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the~ situation.

Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre- H arranged plan and prior concert. [764-H, 765-A-B)

PARAS RAJU MANIKYALA RAO v. STATE 759

Krishna Govind Patil v. State of Maharashtra, AIR (1936) SC 1413, A relied on.

3.2. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if B overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of C persons. But however, difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. [765-C-D]

Amrit Singh v. State of Punjab, (1972) Crl. L.J. 465, relied on.

4. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit an offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common E intention in an incident of fact and not of law. [765-E-F]

Magsogdan v. State of U.P., AIR (1988) SC 126, relied on.

5. Mere presence of a person at the time of commission of an F offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him. (765-G-H]

Ma/khan v. State of U.P., AIR (1975) SC 12, relied on.

Bhaba Nanda Barma v. State of Assam, AIR (1977) SC 2252 and Shankarlal Kacharbhai v. State of Gujarat, AIR (1963) SC 1260, referred to.

Russell on Crime 12th Edn. Vol. I pp. 487, referred to.

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6. Having regard to the nature of disputes between the two families of the accused and the victi.m, the happening of events immediately before the incident in question, the role found to have been played by them and the uttertmces said to have been made during the course of the assault are sufficient to provide a safe and sound basis B for an inevitable inference of the existence of common intention in this case.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No .. 49 of 2003.

C From the Judgment and Order dated 6.6.2002 of the Andhra Pradesh

High Court in Crl. A No. 929 of 2001.

M.N. Rao, Ms. Promila, A.P. Jyothish, Ms. Deepthi and Ms. Tameen Hashmi for the Appellants.

Ms. T. Anamika and Guntur Prabhakar for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J. : Three persons including present appellants, E who were accused nos. 2 and 3 faced trial by learned Sessions Judge, Krishna Division at Machilipatnam for allegedly having caused homicidal death of. one Parasachinna Ramababu (hereinafter referred to as 'the deceased'). All the accused persons and the deceased who were Closely related were in hostile terms on account of property dispute.

The F prosecution claimed that the appellants snuffed at deceased's life.

Accusations while led to trial of the accused persons are its follows:

There was enmity between the accused and the deceased. Though elder members of the community tried to settle the dispute there was no G permanent solution. On 16.8.1997 accused Parasa Satyanarayana (A-1) removed the stones at the boundary of the disputed land. Parasa Mohan Rao (PW-I) and his sons visited the place and chastised the accused and their father for their undesirable behaviour. This led to further animosity.

On 19.8.1997, the fateful day, three accused perons along with their father H came to the house of PWl and picked up quarrel. A-1 tried to hack PWl

with a knife. But he warded off the stroke with the stick.

Parasa A Ghaneswara Rao and Parasa Venkateswara Rao and 0 Gitchaiah protested and questioned the accused persons about their behaviour.

Accused persons left the place. Subsequently, at about 10.45 a.m. deceased was returning to his house. As he reached near a shopping complex, all the accused persons in furtherance of their common intention murdered the B deceased. Parasa Raja Manikyala Rao-appellant no. I (A-2) caught his right hand and Parasa Raja Govind Rajulu-appellant no.2 (A-3) caught his left hand. The deceased was prnctically immobilized. Taking advantage of this, Parasa Satyanarayana (A-1) gave various blows on the neck, back and the abdomen with the knife in a gruesome manner and even separated C his head from the body. After doing so, A-1 carried the severed head and threw it at some distance. The ghastly attack was witnessed by Parasa Mohana Rao (PW-I), Parasa Veeramma (PW-2), Parasa Yesoda Rao (PW-

3) and Parasa Ganeswara Rao (PW-4). Information was lodged at the police station immediately.

Investigation was undertaken and subsequently accused persons were arrested. On completion of investigation, charge D sheet was placed. While A-1 was charged with commission of offence punishable under Section 302 of the Indian Penal Code 1860 (for short 'the IPC') other accused persons were charged for commission of offence punishable under Section 302 read with Section 34 IPC. 13 witnesses were examined to further the prosecution version. Accused persons pleaded E innocence and claimed trial. On consideration of the evidence of the witnesses the Trial Court found that A-1 was guilty of offence punishable under Section 302 IPC, but found the present appellants to be not guilty by giving benefit of doubt. Matter was carried by the State in appeal before the High Court which by the impugned judgment found them guilty. F The High Court held that they were guilty of offence punishable under Section 302 read with Section 34 IPC and each one was to undergo life imprisonment. The appeal filed by Al was dismissed.

It is submitted that A- I has not preferred any appeal, but present appellants have questioned the reversal of their acquittal to conviction by G the High Court.

Learned senior counsel appearing for the appellants submitted that there are many significant improvements made by PWs I and 2. Before the police they did not say to be waiting outside their house, while in court H

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A they said so. It is highly improbable that four persons saw the attack but did not even try to protect or save the deceased. The High Court has failed to notice that the witnesses were. highly interested .. PWs 3 and 4 are not 'independent witnesses and PW s I: to 2 .were their supporters in their pub I ic life activities. It-is improbable that present PW! would have alone gone B tothe police station, after; having seen his son murdered. All this goes to show that because of the enmity with the acc;:used persons,.they were falsely implicated so that none of the male members could be available to run or take care, ofthe family. Even though A-I has not questioned his conviction, the totality of evidence shows that effort was made to frame all the male members of the family. In any event, Section 34 has no application because C it has not been established by evidence that there was any intention to commit murder.

In response, learned counsel for the respondent-State submitted that right from the beginning when the first information report was lodged, the D definite roles played by present appellants was described, the overt acts and the instigations as well as exhortations done by them were clearly mentioned. The first information report was lodged immediately and, therefore, case of any false implication after deliberation as pleaded by the appellants does not arise. The evidence of eyewitnesses PWs 1 to 4 clearly E established the accusations.

Evidence of PWl shows that after the first blow, these accused continued to restrain movement of the victim and. that continued when blows were inflicted on different parts of his body.

Names of all accused persons were also mentioned in the first information report.

At the outset, we think it proper to take note of what weighed with the Trial Court to direct acquittal of present appellants. In para 39 of the judgment it was noted as follows:

"39. Though all the other evidence even as against A-2 and A-3 was as nearly cogerit as the one against A-1, the improbability of their participation became one of the two plausible views in the light of the last mentioned four rulings of the Hon'ble Supreme Court. This gives rise to a doubt in so far as A-2 and A-3 are concerned. Naturally the benefit of such a doubt must go to them."

This is a strange way of dealing with the accusations and c; onsideration A of the guilt or otherwise of the accused. How a person reacts in a given case may be the determinative factor so far as that case is concerned. That cannot be applied as a rule of universal application to all cases irrespective of the fact situation in that particular case. There can be no empirical formula as to how one reacts in a given situation and its effect and impact. B It would be almost like trying to put a square peg on a round hole. To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effct and the distinctive features is legally impermissible.

Coming to the question whether the evidence is reliable, the High Court has analysed the evidence in great detail considering the fact that PWs 1 and 2 were parents of the deceased and there was admitted hostility • between the accused and the deceased's family. It has also analysed the D evidence of PWs 3 and 4 to conclude that the accusations have been established.

The so-called omissions which have been tried to be magnified by learned counsel for the appellant, do not amount to any contradiction or any improvement and at any rate such variation as to undermine the chore of the prosecution case or its basic and essential ~~ E

Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide F cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive. The -vague and cryptic conclusion arrived at by the trial Court to treat their case differently from the manner it dealt with that of A-1, despite its very observation that G the evidence was as cogent against them too as it was against A-1 lack a judicious pproach and determination and therefore rightly :interfered with by the High Court after an objective appreciation of the evidence independently and in the light of the relevant and guiding principles of law governing such determination.

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A The other point which was emphasized relates to applicability of Section 34 IPC.

The Section really means that if t'; VO or more persons intentionally do a common thing jointly, it is just the same as if each of them had done B it individually. It is a well recognized canon of cr_iminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime.

Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is C common, so must be the responsibility. All are guilty of the principal offence, not ofabetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though D he has joined his companion to do an unlawful act. Leading feature of this

Section is the element of participation in action. The essence of liability under this Se'ction is the existence of a common intention anitu'ating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of E persons piliticipating in the criminal action to bring about a particular result

(See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu, AIR (1976) SC 2027). The participation need not in all cases be by physical presence.

In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at F different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it tr..ust be established that (i) there was common intention in the sense of G a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply.

H 'Common intention' implies pre-arranged plan and acting in concert

pursuant to the pre-arranged plan. Under this Section a pre-concert in the A sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission B of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra, AIR (1963) SC 1413. In Amrit Singh and Ors. v. State of Punjab, ( 1972) Crl. L.J. 465 SC) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition. C which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them.

Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common D intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. v. State of U. P., AIR ( 1988) SC 126 it was observed that prosecution must lead evidence from which the common intention of E the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of F cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The State of Assam, AIR (1977) SC 2252 it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally G committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Ma/khan and Anr. v.

State of Uttar Pradesh, AIR (1975) SC 12). In the Oxford English H

SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistanceproducing an effect in future" and. adds that any act may be regarded as done in furtherance of the ultimate felony ifit is a step intentionally taken, for the purpose of "effecting that felony. (Russel on B Crime 12th Edn. Vol. I pp. 487 and 488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat, AIR ( 1963) SC 1260 this Court has interpreted the word "furtherance" as 'advancement of promotion'.

In view of the cogent, credible and trustworthy evidence of PWs I to 4 about overt acts and the instigations, Section 34 has been rightly C applied by the High Court. Having regard to the nature of disputes b<!tween

the two families of the accused and victim, the happening of events immediately before the incident in question, the role found to have been played by them and the utterances said to have been made during the course of the assault are sufficient to provide a safe and sound basis for an D' inevitable-inference of the existence of common intention in this case.

Judgment of the High Court consequently does not need any interference and the appeal is dismissed.

v.s.s.

Appeal dismissed.