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Wednesday, October 21, 2015

random individual acts done without meeting of minds =For conviction of an offence read with Section 34 IPC, it is necessary that there should be a finding as to the common intention of the participants. Though the High Court has modified the conviction from Section 302 read with Section 149 IPC as Section 302 read with Section 34 IPC, the High Court has not recorded any finding as to how the appellants shared the common intention to establish their constructive liability to sustain the conviction under Section 302 read with Section 34 IPC. The appellants are said to have attacked Ramesh with sticks on his face. Ramesh sustained nasal bone fracture probably due to the attack on the face. But this cannot be said to be an act in furtherance of common intention to commit the murder of Ramesh along with accused No.1 and 2. They are random individual acts done without meeting of minds and in our view, the appellants can be held liable only for their individual acts.As the appellants have not shared or acted in furtherance of common intention in the attack of the witnesses and therefore the conviction of the appellants as modified by the High Court under Section 326 read with Section 34 IPC and under Section 324 read with Section 34 IPC cannot be sustained and the same is liable to be set aside. Conviction of the appellants Balu (A-4) and Raja(A-5) under Section 302 read with Section 34 IPC is modified as conviction under Section 325 IPC and they are sentenced to undergo imprisonment to the period already undergone. Their conviction under Section 326 read with Section 34 IPC and under Section 324 read with Section 34 IPC is set aside and the appellants are acquitted of those charges. The appeal is partly allowed to the extent indicated above. The appellants are on bail. Their bail bonds shall stand discharged.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 502 OF 2007


BALU @ BALA SUBRAMANIAM & ANR.                             ...Appellants


                                   Versus


STATE (U.T. OF PONDICHERRY)                                   ...Respondent



                               J U D G M E N T


R. BANUMATHI, J.

This criminal appeal is filed against the judgment dated  15.07.2005  passed
by the High Court of Judicature at  Madras  in  Criminal  Appeal  No.113  of
1999, whereby the High Court, while maintaining the sentence,  modified  the
conviction recorded by the trial court qua the accused  namely  Giri-accused
No.1, Seenu @ Srinivasan-accused No.2, Balu @  Bala  Subramaniam  (Appellant
No.1-Accused No.4) and Raja @ Kotti Raja (Appellant No.2-Accused  No.5)   as
conviction under Section 302 read with Section  34  IPC,  Section  326  read
with Section 34 IPC and Section 324 read  with  Section  34  IPC.  The  High
Court acquitted Partheeban-accused No.3 of all the charges.
2.          Briefly stated case of the prosecution  is  that  one  Natarajan
had a quarrel with Seenu @ Srinivasan-accused No.2  in  respect  of  a  chit
transaction and Kannan-PW2 supported  Natarajan  and  fight  ensued  between
Seenu-accused No.2 and  Kannan-PW2  about  a  week  prior  to  the  date  of
incident i.e. 18.05.1997.  In the forenoon, on the day of the incident  i.e.
on 18.05.1997, Kannan-PW2, Ramesh (deceased) and one  Kamalakannan  went  to
the accused in order  to  settle  the  dispute  amicably.   However,  during
settlement talks, fight ensued between PW-2 and Seenu and Balu attempted  to
beat PW-2 and Ramesh intervened and beat Balu. Thereafter both parties  left
the place stating that they could resume settlement talks  in  the  evening.
On the evening at about 6.30  P.M.,  Kannan-PW2,  Saravanan-PW3,  Suresh-PW5
and  Arumugam-PW6  accompanied  by  Nagarajan  went  to  Sakthi   Nagar   at
Uruliyanpet and were having the settlement talks with the accused.   On  the
mid way, the accused persons were informed that their friend  one  Anand  is
being badly cut by the complainant party and the accused questioned them  as
to how they could attack their man even when  settlement  talks  were  going
on.  So saying, the accused ran towards the place and  on  seeing  PW-1  and
Ramesh  coming  in  the  opposite  direction,  Giri-accused  No.1  allegedly
shouted that Ramesh supports Kannan and that he must be killed  and  accused
No.1 and 2 cut Ramesh with knives on his head and  chased  him.   Partheeban
and appellants beat Ramesh on the face with sticks, Giri-accused No.1  again
cut Ramesh with knife and Ramesh fell down.  When PW-2  intervened  to  save
Ramesh, PW-2 was attacked and he sustained injury on his left hand and  PW-2
ran away from the place.  Accused No.1 and 3 chased PW-3  and  accused  No.2
assaulted and inflicted cut  injuries  on  the  head  of  PW-3.   They  also
inflicted cut injury on Muruganathan-PW4, who was taking bath near  a  water
tap.  The witnesses ran away from the place and came back  only  after  some
time and they were informed that injured Ramesh was removed from  the  scene
of occurrence by a police constable.
3.          Based on the complaint lodged by PW-1,  a  case  was  registered
against the accused in Crime No.152/1997 under Sections 147, 148,  307  read
with Section 149 IPC.  Ramesh and other injured witnesses were  examined  by
PW-11-Dr. Baskaran in General Hospital, Pondicherry.  On 21.05.1997,  Ramesh
succumbed to injuries and the case was altered to  Section  302  IPC.  After
due investigation, chargesheet was filed against all the five accused.
4.          To  substantiate  the  charges,  onbehalf  of  the  prosecution,
fifteen witnesses were examined. The trial court held that  the  prosecution
has established guilt of the accused beyond reasonable doubt  and  convicted
all the five accused under  Section  148  IPC  and  Section  302  read  with
Section 149 IPC and various other offences and  sentenced  them  to  undergo
imprisonment for  life  and  also  imposed  sentences  for  other  offences.
Aggrieved by the verdict of conviction, accused preferred appeal before  the
High Court. Vide impugned judgment dated  15.07.2005,  High  Court  modified
the conviction as aforesaid in para (1)  and  partly  allowed  the  criminal
appeal.  Aggrieved, the appellants have preferred this appeal.
5.          Learned counsel for the appellants contended that the  testimony
of PW-2 who is an injured witness is  not  believable  as  firstly  all  the
injured witnesses were  examined  soon  after  the  incident  in  Government
Hospital and they deposed that  they  were  assaulted  by  unknown  persons.
However, PW-2, who was examined after three days, has  stated  that  he  was
assaulted by accused No.1-Giri and not  attributed  any  overt  act  to  the
appellants-accused No.4 and 5.  It was further submitted that  even  as  per
the prosecution case, the occurrence was due to  a  sudden  fight  and  that
when peace talks were going on  between  the  complainant  and  the  accused
party and on being informed that one Anand belonging to  accused  party  was
cut by the complainant party,  fight ensued between two groups  and  as  the
act was not committed in furtherance  of  the  common  intention,  the  High
Court erred in  convicting  the  appellants  under  Section  302  read  with
Section 34 IPC.
6.          Taking us through  the  evidence  onbehalf  of  the  respondent,
learned Senior Counsel Mr. V. Kanagaraj submitted  that  on  exhortation  by
Giri-accused No.1, the  appellants  and  other  accused  attacked  deceased-
Ramesh and injuries were caused in furtherance of common  intention  of  all
the accused would be liable under Section 302 read with Section 34  IPC  for
the act of committing murder of Ramesh and the appellants have been  rightly
convicted by the courts below.
7.          We have carefully considered the rival  contention  and  perused
the impugned judgment and material on record.
8.          Prosecution has examined fifteen witnesses out of  which  PWs  2
to 4 are injured witnesses. PW-3 Saravanan,  PW-4  Muruganathan  (nephew  of
accused No.3) did not support the  prosecution  case  and  prosecution  thus
relied upon the evidence of PW1-Murgan and PW5-Suresh  and  injured  witness
PW2-Kannan.  In his evidence, PW-1 stated that accused No.1 and  2  attacked
Ramesh on his head with knives and accused No. 3 to  5  attacked  Ramesh  on
his face by stick and Ramesh fell down on the  road.   Suresh-PW5  had  also
stated that the appellants attacked Ramesh  by  stick.  PW2-Kannan,  injured
witness stated that accused  No.1-Giri  and  accused  No.2-  Seenu  attacked
Ramesh by knives on his head.  So far as the overt act  of  the  appellants,
PW2-Kannan stated that Accused No. 4 and 5 took  the  wooden  stick  from  a
bullock cart standing nearby.  PW-2 did not say  anything  about  the  overt
act of the appellants.  Though the appellants denied their presence  at  the
place of incident and pleaded that a false case  has  been  foisted  against
them,  consistent  version  of  PWs  1  and  5  establish  presence  of  the
appellants and that they  attacked  Ramesh  with  sticks.  Presence  of  the
appellants and that they were armed with sticks  is  also  substantiated  by
the evidence of  injured  witness  Kannan-PW2.   Findings  recorded  by  the
courts  below  that  the  appellants  attacked   Ramesh   with   sticks   is
unassailable.
9.          In the facts and circumstances of the  case,  whether  the  High
Court was right in finding that  the  appellants  acted  in  furtherance  of
common intention in committing murder of Ramesh and whether the  High  Court
was right in attributing constructive  liability  to  the  appellants  while
convicting them under Section 302  read with Section 34  IPC  is  the  point
falling for consideration.
10.         To invoke Section 34  IPC,  it  must  be  established  that  the
criminal act was done by more than  one  person  in  furtherance  of  common
intention of all.  It must,  therefore,  be  proved  that:-  (i)  there  was
common intention on the part of  several  persons  to  commit  a  particular
crime and (ii) the crime was actually committed by them  in  furtherance  of
that common intention.  The essence of liability under  Section  34  IPC  is
simultaneous conscious mind of persons participating in the criminal  action
to bring about a particular result. Minds regarding the  sharing  of  common
intention gets satisfied when an overt act is established qua  each  of  the
accused. Common intention implies pre-arranged plan and  acting  in  concert
pursuant to the pre-arranged plan.  Common  intention  is  an  intention  to
commit  the  crime  actually  committed  and  each  accused  person  can  be
convicted of that  crime,  only  if  he  has  participated  in  that  common
intention.
11.         The classic case on the subject is the  judgment  of  the  Privy
Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was  held  as
under:-
“…Section 34 lays down a principle of joint liability  in  the  doing  of  a
criminal act.  The section does not say “the common intentions of  all”  nor
does it say “an intention common to all”.  Under the  section,  the  essence
of that liability is to be found in the  existence  of  a  common  intention
animating the accused leading to the doing of a criminal act in  furtherance
of such intention.  To invoke the aid of Section 34  successfully,  it  must
be shown that the criminal act complained against was done  by  one  of  the
accused persons in the furtherance of the common intention of all;  if  this
is shown, then liability for the crime may be imposed  on  any  one  of  the
persons in the same manner as if the act  were  done  by  him  alone.   This
being the principle, it is clear to their Lordships  that  common  intention
within the meaning of the  section  implies  a  pre-arranged  plan,  and  to
convict the accused of an offence applying the section it should  be  proved
that the criminal act was done  in  concert  pursuant  to  the  pre-arranged
plan.  As has been often observed, it is  difficult  if  not  impossible  to
procure direct evidence to prove the intention of  an  individual;  in  most
cases it has to be inferred from  his  act  or  conduct  or  other  relevant
circumstances of the case.”(Underlining added)
Reiterating the above principles laid down by the Privy  Council  in  Mahbub
Shah’s case, in Shankerlal Kacharabhai and Others vs. State of Gujarat,  AIR
1965 SC 1260, this Court held that the criminal act mentioned in Section  34
IPC is the result of the concerted action of more than  one  person  and  if
the said result was reached in furtherance of  the  common  intention,  each
person is liable for the result as if he had done it himself.
12.         In Ramesh Singh alias photti v. State of  A.P.,  (2004)  11  SCC
305, this Court held as under:-
“12. … As a general principle in a case of  criminal  liability  it  is  the
primary responsibility of the person who actually commits  the  offence  and
only that person who  has  committed  the  crime  can  be  held  guilty.  By
introducing Section 34 in the Penal  Code  the  legislature  laid  down  the
principle of joint liability in doing a criminal act. The  essence  of  that
liability is to be found in the existence of a common  intention  connecting
the accused leading to the doing of a criminal act in  furtherance  of  such
intention. Thus, if the act is the result of a common intention  then  every
person who did  the  criminal  act  with  that  common  intention  would  be
responsible for the offence committed irrespective of  the  share  which  he
had in its perpetration. Section 34 IPC  embodies  the  principle  of  joint
liability in doing the criminal act based  on  a  common  intention.  Common
intention essentially being a state of mind it is very difficult to  procure
direct evidence to prove such intention. Therefore, in most cases it has  to
be inferred from the act like, the conduct of the accused or other  relevant
circumstances of the case. The inference can be gathered from the manner  in
which the  accused  arrived  at  the  scene  and  mounted  the  attack,  the
determination and concert with which the  attack  was  made,  and  from  the
nature of injury caused by one or some of them.  The  contributory  acts  of
the persons who are not responsible for the injury can further  be  inferred
from the subsequent conduct  after  the  attack.  In  this  regard  even  an
illegal omission on the part of such accused can  indicate  the  sharing  of
common intention. In other words, the  totality  of  circumstances  must  be
taken into consideration in arriving at the conclusion whether  the  accused
had the common intention to  commit  an  offence  of  which  they  could  be
convicted. (See Noor Mohammad Mohd. Yusuf Momin  v.  State  of  Maharashtra,
(1970) 1 SCC 696)” (Underlining added)
13.         Common intention is  seldom  capable  of  direct  proof,  it  is
almost invariably to be inferred from proved circumstances relating  to  the
entire conduct of all the persons and  not  only  from  the  individual  act
actually performed. The inference to be drawn from the manner of the  origin
of the occurrence, the manner in which the accused arrived at the scene  and
the concert with which attack was made and from the injuries caused  by  one
or some of them.  The criminal act actually  committed  would  certainly  be
one of the important factor to be taken into consideration  but  should  not
be taken to be the sole factor.
14.         Under Section 34 IPC, a pre-concert in the 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.  The question whether there was any common intention  or  not
depends  upon  the  inference  to  be  drawn  from  the  proving  facts  and
circumstances of each case.  The  totality  of  the  circumstances  must  be
taken into consideration in arriving at the conclusion whether  the  accused
had a common intention to  commit  an  offence  with  which  they  could  be
convicted.
15.         In the light of the above principles,  considering  the  present
case, in our view, the facts and circumstances do not  indicate  that  there
was common intention to commit murder  of  Ramesh.   On  18.05.1997  in  the
forenoon,  there  were  settlement  talks  which  did  not  materialise  and
therefore they left the place stating  that  they  could  resume  settlement
talks in the evening. On the evening at about 6.30  P.M.,  PW2-Kannan,  PW3-
Saravanan, PW5-Suresh, Arumugam and  Nagarajan  went  to  Sakthi  Nagar  and
resumed settlement talks.   At  that  time,  one  person  belonging  to  the
accused party came and informed that at the corner of lane, Anand-friend  of
the accused party was cut by the person who came for the  settlement  talks.
On hearing the same, Giri-Accused No.1  and  Seenu-Accused  No.2  questioned
the complainant party as to how  they  could  attack  their  man  even  when
settlement talks were going on and so saying accused No.1 and 2  took  their
knives which they were  hiding behind their back and  accused  No.  3  to  5
took sticks from a cart  standing nearby attacked PWs 2, 3 and 5.   At  that
time Ramesh and his uncle PW-1 Murgan were coming in the opposite  direction
and on seeing them  accused  No.1-Giri  pointing  out  to  Ramesh,  exhorted
others saying that Ramesh belonged to Kannan party and that he  be  cut  and
by so saying accused No.1-Giri cut Ramesh on his head with knife and  Seenu-
Accused No.2 also attacked Ramesh with knife. The appellants and Partheeban-
Accused No.3 have also attacked Ramesh with sticks on his face.
16.         Facts and circumstances of the case show  that  the  attack  was
not a premeditated one nor was there a prior concert.  Initially  settlement
talks were on and fight started only when the accused party was informed  by
their person that Anand was cut by complainant party and thus  the  incident
arose suddenly.  No doubt, common intention could develop even at  the  spur
of the moment; but in the present case, the way the  occurrence  took  place
as depicted by the prosecution, there could not have been  common  intention
between the accused. The totality of the circumstances must  be  taken  into
consideration in order to arrive at a conclusion that the appellants  had  a
common intention to commit the offence under which they were convicted.  The
appellants were not armed and admittedly  they  are  said  to  have  removed
sticks from the bullock cart standing  nearby  and  on  the  exhortation  by
accused No.1-Giri, the  appellants  have  attacked  Ramesh.   There  may  be
similar intention in the minds of the assailants to attack;  but  it  cannot
be said that the appellants have acted in furtherance  of  common  intention
to attract constructive liability  under  Section  34  IPC.  The  facts  and
circumstances, in our view, do  not  give  rise  to  an  inference  of  pre-
concert.
17.         For conviction of an offence read with Section  34  IPC,  it  is
necessary that there should be a finding as to the common intention  of  the
participants. Though  the  High  Court  has  modified  the  conviction  from
Section 302 read with Section 149 IPC as Section 302 read  with  Section  34
IPC, the High Court has not recorded any finding as to  how  the  appellants
shared the common intention to establish  their  constructive  liability  to
sustain the conviction under Section 302  read  with  Section  34  IPC.  The
appellants are said to  have  attacked  Ramesh  with  sticks  on  his  face.
Ramesh sustained nasal bone fracture probably  due  to  the  attack  on  the
face.  But this cannot be said  to  be  an  act  in  furtherance  of  common
intention to commit the murder of Ramesh along  with  accused  No.1  and  2.
They are random individual acts done without meeting of  minds  and  in  our
view, the appellants can be held liable  only  for  their  individual  acts.
Considering the totality of the circumstances, conviction of the  appellants
under Section 302 read with Section 34 IPC cannot be sustained and the  same
is modified as the conviction under Section 325  IPC  and  the  sentence  is
modified to the period of imprisonment already undergone.
18.         For attacking the  witnesses  PW2-Kannan,  PW4-Muruganathan  and
PW5-Suresh, the appellants were convicted by the trial court  under  Section
326 read with Section 149 IPC and under Section 324 read  with  Section  149
IPC which was modified  by  the  High  Court.   No  specific  overt  act  is
attributed to the appellants in attacking the  prosecution  witnesses  2,  4
and 5.  As the appellants have not shared or acted in furtherance of  common
intention in the attack of the witnesses and  therefore  the  conviction  of
the appellants as modified by the High Court under  Section  326  read  with
Section 34 IPC and under Section 324 read with  Section  34  IPC  cannot  be
sustained and the same is liable to be set aside.
19.         Conviction of the appellants Balu  (A-4)  and  Raja(A-5)   under
Section 302 read with  Section  34  IPC  is  modified  as  conviction  under
Section 325 IPC and they  are  sentenced  to  undergo  imprisonment  to  the
period already undergone. Their  conviction  under  Section  326  read  with
Section 34 IPC and under Section 324 read with Section 34 IPC is  set  aside
and the appellants are acquitted of those  charges.  The  appeal  is  partly
allowed to the extent indicated above. The appellants are  on  bail.   Their
bail bonds shall stand discharged.


                             ..……..…………………………J.
                                           (JAGDISH SINGH KHEHAR)


                             ..……..…………………………J.
                                           (R. BANUMATHI)
New Delhi;
October  16, 2015

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