[2008] 16 S.C.R. 514

KILARI MALAKONDIAAH@ MALAYADRI & ORS.

 " STATE OF ANDHRA PRADESH · [Crimin-al Appeal No: 376 of 2007] .

1 .. \ '• •• : t, ,• , . ,;

 B

NOVEM13ER 21, 2008

[OR. ARIJIT PASAYAT AND DR. MUKUNDAKAM -( . .

SHARMA, JJJ ..

c Penal Code, 1860:

s.302 rlw s.34 and s.307 rlw s.34 -Assault by accused with deadly weapons, resulting in death of victim - Common intention - Conviction by Courts below - Propriety of - On facts, held: Proper - Prosecution version sufficient to fasten D guilt on the accused.

s.34 - Applicability of - Discussed.

Evidence - Witness - Related witness - Testimony of - Evidentiary value - Held: Relationship is not the factor to E discard the prosecution version and render it suspect - At the most, the Court is required to analyze the evidence in some detai{ to rule out the possibility of felse implication.

According to the prosecution, owing to political F rivalry, the accused-appellants assaulted the deceased with deadly weapons which proved fatal. PWs 1 to 3 were allegedly injured in the occurrence. The appellants were convicted by the Courts below under s.302 r/w 34 and/ or s.307 r/w 34 IPC.

G In the instant appeal, the conviction of the appellants was challenged on various grounds viz. that the father of the deceased was not examined by the prosecution; that PWs 1, 2 and 3 were interested witnesses; and that

there was inordinate delay in filing of the FIR. It was also A contended that s.34 IPC had no application to the facts . of the case; and that details of the overt act were not

g!vn in the Fl~.·. · ·

 'Oisinissing the appeal, the Court

.. . .

.,..

HELD:1. The prosecution version is sufficient to , fasten the guilt on theaccused appellants. [Para 9] [522- ·

j '

2. Though father of the deceased was not examined, c three of the injured witnesses who had sustained injuries during the occurrence were examined. Though they were . subjected to incisive cross examination, nothing material was elicited to discrd their evidence. [Para 5] [520-G-H;

521-A] J •

3 .. Great emphasis was laid on the fact that PWs 1 to .. 3 are. related to the deceased. Relationship is not the factor to discard the prosecution version and render it

. suspect. At the most, what the Court is required to do is

to analy.se the evidence in some detail to rule out the E possibility of false implication. In the instant case, the trial Court as one.tat. [Para 6].[521-A-B] -

4. Though it was urged that there was delay in l_odging the FIR, the tri~I Court and the High Court found that in fact ther~ was no delay and the FIR was lodged F promptly. [ara 6] [521-C]

5.1. S.34 IPC has been enacted on the principle of joint liability in the commission of a criminal act. The section is only a rule of evidence and does not create a G 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 s.34 if. such criminal act is done in H

A furtherance of a common intention of tile persons wh~

join in comm"itting the crime .. Direct proof of ommon

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 B proved circumstances.fn order to bring.home the charge of common intention, the prosecution has to establish by evidence, whether direct or ci.rcumstantial, that there was

plan' or meeting of mind of alf the accused persons to commit the offence for which they are charged with the c aid of s.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

0 individually by himself. [Para 7] [521-C-G]

s:2:1he 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 several persons charged .with commission of an E 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 commpn intention in order to attrat the provision. [Para 7] [521-G-ti; 522-A]

5.3. S.34 IPC does not say "the common intention of F, all"; nor does it say"and intention common to all". Under

the provisions of s.34 the essence of the liability is to be found in the ex.istence of a common intention animating the accued leading to the commission of a criminal act in furtherance of such intention. As a result of the' G application of pr, inciples enunciated in s.34, when an accused is convicted under s.302 read with s.34; in law it means that the accused is liable for the act which . caused. dath of the deceased in the same 'mariner as. if

it was done by him alone: .The provision is intended to H meef a' case' in which it may be difficult to~ distinguish

.__ \

betwen acts of individual members f a party who act A in furtherance of the common inteMlion ot all or to prove exactly what part was taken by each Of them~ [P.ara 8)

(522-B-D].

5.4. s.34 is appficabie even it no injury ha~_beeh B cased by the particular accused himself. For applying s.34 it is not necessary to show some overt act on the part of the accused. [Para 8] [522-E]

Ashok Kumar v. State of Punjab AIR 1977 SC 109 and c Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR 1993 SC 1899, reJied on.

Case Law Reference:

.AIR 1977 SC 109 relied on Para 7 D

AIR 1993 SC 1899 relied on Para 8 ..

CRIMINAL APPELLANT JURISDICTION : Criminal Appeal No. 376 of 2007..

From the final Judgment and Order dated 21.9.2006 of the E

High Court of Judicature Andhra Pradesh at Hyderabad in Crl.

Appeal Nos. 1231 and 1452 of 2004.

K. Sarada Devi for the Appellants.

Altaf Fatima and D. Bharathi Reddy for the Respondent.

The Judgment of the Court ws ~_elivered by

DR. ARIJIT PA~A YAT, J. 1. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh G -t High Court upholding the conviction of the appellants for offences, punishable under Sections 147, 148, 323, 324, 307 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). The appellants who were A-1, A-2, A-5, A- 8, A-11 and A-12 have been found guilty of various offences.

A A:.1 .• A-:2. and A-8 were. fou)1g g1,1ilty. of .offences. punishble

under Se.ctiori', 302 r.ead wJtb .sction 3A .1 f?.c .and .Section 307".

rqj it~. Se.9fion i.~-9 .. ' ti:-,? ... A~ 1 ranq A'." 1·2. V'1re foynd g~\lty of offence punishable under Section 307 read with Section.34,.

IPC. A-9 was acquitted by the High Court by the impugnecf s jt, J<tgmer:it.:A-3 9ied d_uring the. course of, appeal. A-4, A-6, A-7,

A~40:aQd. A-1$ :to A-:19 were foundto.be not guilty'ofthe charged offer:ices.and they were acquitted by the trial"Cou11 .

.. • •

'I.

2. Factual scenario giving rise to the present appeals is C as folloyvs:

:.;.• .·.

There are political grudges and ill feelings between the . groups led by A5 and Chandra Tirupathaiah in R.R. Palem village. Al, A3, A4 anq A6 toA19 are the followers of AS. P .Ws.

1. to 3 belong to the group of Chandra Tirupathaiah. The wife D of A5 and the mother of Chandra Tirupathaiah i.e; Chandra ·

Punr:iamma contested in the. Panchayat elections and was

,· ~ ~.. • ' . • :t . t • . . elected as Sarpanch of the village. Since then the group of the ace.used was. waiting for an op port-unity to prove their supremacy in the village. While so, o'n 14.1.1998 at about 7.00.

E, AM., A.6 and Kilari Manoz and Chintagumpala Vamsee went to thePathuri lahds:ofKilari Venkata Subbamma and others to :graze their cattle. After some time at about 7.30 A.M., Chintagumpala Sunil, Chandra Murali and Chintag'Urhpala Manohar also went to the Pathuri lands of Kilari Vnkata F Subbamma and others for answe, ring 'the calls of nature and .

they m.et A.6 and Kilari Manoz and Chinthagumpala Vamsee there:A6 enquired from Chandra Murali about the cricket match, as to whether it was ended as dr_aw y call.ing as "cricket raddaindira". Then, he replied in. the same manner by calling G A6 as "match raddu kaledura''. By hearing such reply, A6 felt

offended and grew wild against Chandra Murali and picked up quarrelwlfhhim, and there was a scuffle between them. Kilari .

Ma-iloz wen't to the village and informed about the quarrel betW.een A6 and Chandra Murali to the elders and A.21 in spite

of.the' request madErby Ctiintagun'lpala Manohar not to do so.

H , . . •• ·• . .:·:·.;: 1:!' ..

KILARI MALAKONDIAAH@MALAYADRI & ORS. v. 519

STATE OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]

On the same day, at about 12,00 noon, A2 wentto the house A of Chintagumpala Manohar and kicked him on his stomach tor his prevention and interference with Kilari Manoz when he was, proceeding to the village for informing the quarrel to the elders.

P.W.3, who is the father of P .W.6; on his return from the field came to know about beating of his son by A2, he went to B Ramalayam Street questioning loudly about the illegal and highhanded act of A2. P.Ws.1 and 2 and Chandra Venkateshwarlu (hereinafter referred to as the 'deceased') tried their best to convince P.W.3 to adjust the matter. A6, who was passing through the street, heard the cries of P.W.3 and picked up c quarrel with him. At about 1.00 p.m. Al and A3 to A 19 armed with .deadly weapons beat the deceased and also injured P.Ws.1to3. A-1 beat P.W.1 with an iron rod on his head. A12 also beat P. W.1 with a stick on his shoulder. AS beat P .W.2 with .a stick on his head and hands. A-1 beat P.W.3 Viith an axe on 0 his head and A-11 beat P.W.3 with a stick on his eyebrows.

A2 beat the deceased with a stick on his back. A-1 also beat the deceased with an iron rod on his head and all over the body.

As a result the deceased fell down with injuries and became unconscious. PWs 1 to 3 fell down with injuries. All the accused hurled stones against P .Ws.1 to 3 and the deceased. All the E accused left the place thereafter. At about 5.00 p.m. P.Ws.1 to 3 went to Lingasamudram Police Station, where P.W.1 gave a statement to the police. P.W.9 recorded the statement of P.W.1 and registered a case in Cr. No. 1 of 1998 under Sections 14 7, 148, 323, 324, 307 read with Section 149 IPC and sent the F injured-P.Ws.1 to 3 to the Government Hospital for treatment.

P.W.11 took up investigation, examined P.Ws.1 to 3. P.W.14 visited the scene of offence in the presence of mediators- Chandra Venkateswarlu and Choppara Kotaiah, seized sticks, iron rod and stones under a cover of observation report and G sent the deceased to the nursing home of P .W.13 for treatment.

P.W.13 after examining the deceased declared him dead. On giving death intimation, provision of law was altered to Section 302 IPC. P.W.14 conducted inquest over the d.ead body of the deceased and sent the dead body for postmortem H

;. ·.

A examination .. P .W; 12; the Medical Officer, Government Hospital,

Kandukur conducted autopsy over the dead body of the .. deceased .and. issued Ex . .P10-:postmortem certificate opining that the dece'3sed ould appeado have died of sJock ; due to injury. No:2. On. completi.on of' investigation police, laid the 8 charge sheet for the above oftences.· Accus.ed persons

pleaded innocence. ·

' In orderJo.establish the aceusations prosecution examined. 14.witnes'ses. Out of them.PWs 1 tq 3. were stated to be inju.red C ey~ w!tnesses. PW-4 was stated, .to be another eye witne:ts.

Stand .of the accused before the trial Court was that the best witness would have been the father of the deceased who was not' exmine~ for reasons known to the prosecution. There was inordinate dely ~'iii fiHng tlie first infbr.matio.n report and D PWs 1 to 3 are interested wit'nesses." It was aiso submitted that in the ExtP-1 reportdetaifs have not been given. The trial Court . did' riot find any substa.nce i'r1 the pf ea and as noted above ·. convicted some of the 'accusecfpe'rs6ns: . . ' . .

-~ _- .· . ...... ....... -·~ : ··· . · . · . ~

E In appeal except A..:9 the appeal filed by rest of the accused 'persons was dismissed:

. .. 3: According t-0 learned coµnset . for the ppellants the details of the ove11 act. were. not given-in .the FIR. Therefore, there were co.nsid_erable improvements in the evidence .of the F witnesss ~· It is submitted that the FIR was lodged after a long time. It is also sub111itted that Section 34 IPC has no application to the facts of the presenfcae. ·

. 4. learned counsel .for the respondent-State on the other G hand supprted the ju'dghent ~

5. 'It is to be seen that though father of the deceased was not examined, three<>f the'injured witnesses wh'o had sustained • injuries during the occurrence were examined. Though they were subjected to incisive' cross examination, hothing material . ' , . ... .

OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]

....f

... was elicited to discard their evidence .

6. Great emphasis was laid on the fact that PWs 1 to 3 are related to the deceased. Relationship is not the factor to discard the prosecution version and render it suspect. At the --,

most, what the Court is required to do is to analyse the .8 evidence in some detail to rule out the possibility of false implication. In the instant case, the trial Court has done that.

Though it was urged that there was delay in lodging the FIR, the trial Court and the High Court found that in fact there was no delay and Ext. P-1 was lodged promptly. c

7. Section 34 has been enacted on the principle of joir:it liability in the commission 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 D committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such c.riminal 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 E 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, -4 that there was plan or meeting of mind of all the accused F 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 G ·+ is just the same as if each of them has done it individua.lly 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 H

A 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.

8. The Section does not say "the common intention of all", nor does it say ''and intention common to all". Under the provisions of Section 34 the essence of the liability' is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in C furtherance of such intention. As a result of the application of

principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may D be difficult to distinguish between acts of individual mmber's

111 of a party who act in furtherance of the common intention of all_ ., or to prove exactly what part was taken-by each-of them. As was observed in Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even E if no injury_has been caused by the-particular accused-himself.

For applying Section 34 it is not necessary to show some ov, ert act on the part of the accused. -

9. The prosecution version is sufficient to fasten the guilt F on the accused appellants. The appeal is without merit, deserves dismissal which we direct.

-B.B.B.

Appeal dismissed.