Full Judgment Text
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CASE NO.:
Appeal (crl.) 49 of 2003
PETITIONER:
Parasa Raja Manikyala Rao and Anr.
RESPONDENT:
State of A.P.
DATE OF JUDGMENT: 15/10/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Three persons including present appellants, 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 prosecution claimed
that the appellants snuffed at deceased’s life.
Accusations while led to trial of the accused persons are as
follows:
There was enmity between the accused and the deceased. Though
elder members of the community tried to settle the dispute there was no
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-1) 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 persons along
with their father came to the house of PW1 and picked up quarrel. A-1
tried to hack PW1 with a knife. But he warded off the stroke with the
stick. Parasa Ghaneswara Rao and Parasa Venkateswara Rao and O
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 deceased. Parasa Raja Manikyala Rao-appellant
no.1 (A-2) caught his right hand and Parasa Raja Govind Rajuluâ\200\223appellant
no.2 (A-3) caught his left hand. The deceased was practically
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 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-1), 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 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 innocence and
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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.
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 A-1 was dismissed.
It is submitted that A-1 has not preferred any appeal, but present
appellants have questioned the reversal of their acquittal to conviction
by the High Court.
Learned senior counsel appearing for the appellants submitted that
there are many significant improvements made by PWs 1 and 2. Before the
police they did not say to be waiting outside their house, while in
court 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 PWs 1 to 2 were their
supporters in their public life activities. It is improbable that
present PW1 would have alone gone to the police station, after having
seen his son murdered. All this goes to show that because of the enmity
with the accused persons, they were falsely implicated so that none of
the male members could be available to run or take care of the family.
Even though A-1 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 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 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 established the accusations.
Evidence of PW1 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 cogent 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
consideration 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. 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
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of a given case to any or every other case notwithstanding dissimilarity
in effect 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 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
aspects.
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 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 the evidence was as cogent against
them too as it was against A-1 lack a judicious approach 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.
The other point which was emphasized relates to applicability of
Section 34 IPC.
The Section really means that if two or more persons intentionally
do a common thing jointly, it is just the same as if each of them had
done it individually. It is a well recognized canon of criminal
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 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, 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 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 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 essence is simultaneous
consensus of the minds of persons participating 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 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 must be established that (i) there was common intention in the sense
of a pre-arranged plan between the two, and (ii) the person sought to be
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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.
’Common intention’ implies pre-arranged plan and acting in concert
pursuant to the pre-arranged plan. Under this Section 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. Though common intention may
develop on the spot, it must, howver, be anterior in point of time to
the commission 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 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 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 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 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 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
Malkhan and Anr. v. State of Uttar Pradesh (AIR 1975 SC 12). In the
Oxford English Dictionary, the word "furtherance" is defined as ’action
of helping forward’. Adopting this definition, Russel says that "it
indicates some kind of aid or assistance producing an effect in future"
and adds 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. (Russel on 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 1
to 4 about overt acts and the instigations, Section 34 has been rightly
applied by the High Court. Having regard to the nature of disputes
between 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 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.
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