Full Judgment Text
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PETITIONER:
B. N. SRIKANTIAH & OTHERS
Vs.
RESPONDENT:
THE STATE OF MYSORE
DATE OF JUDGMENT:
14/04/1958
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
BHAGWATI, NATWARLAL H.
SARKAR, A.K.
CITATION:
1958 AIR 672 1959 SCR 496
ACT:
Murder-Charge under s. 302 simpliciter-Conviction under s.
302 /34, when Permissible-Prejudice-Common Intention-Indian
Penal Code (XLV of 1860), ss. 34 and 302.
HEADNOTE:
Six persons were charged under s. I43 Indian Penal Code for
being members of an unlawful assembly the common object of
which was to murder one Anne Gowda. Five of them were
further charged under s. 302 Indian Penal Code for
committing murder by intentionally causing the death of Anne
Gowda, and the sixth was charged under s. 302/109 Indian
Penal Code for abetment of murder. The trial Court
acquitted all the six accused under s. 143, acquitted two of
them but convicted the three appellants under s. 302, and
convicted the sixth accused under s. 302/109. On appeal the
High Court maintained the conviction of the appellants under
s. 302 but acquitted the sixth accused under s. 302/109. It
was contended by the appellant that as the prosecution had
not established which of the appellants had given the fatal
blow none of them could be convicted under s. 302
simpliciter and that as no charge had been framed under s.
34 they could not be convicted under s. 302/34 Indian Penal
Code :
Held, that the omission to mention s. 34 Indian Penal Code
in the charge could not affect the case unless prejudice was
shown to have resulted in consequence thereof. The charge
was that the appellants and two others committed the murder
by intentionally causing the death of the deceased. The
appellants had notice that they were being tried as "
sharers-in the offence " and that their liability was
collective and vicarious and not individual. The appellants
had neither alleged nor shown that the omission to specify
s. 34 in the charge had caused them any prejudice.
Common intention is a question of fact and is to be gathered
from the acts of the parties. The evidence showed that
there was preconcert, that the appellants attacked the
deceased with choppers injuring him on the head, the neck,
the shoulders and the forearms and that the appellants not
only caused injuries to the deceased at the place where they
met him but they also chased him when he tried to run away
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to save himself and continued to assault him with the deadly
weapons till he was dead. The conduct of the appellants,
the ferocity of the attack, the weapons used, the situs of
the injuries and their nature together with the fact that
there was preconcert established that the common intention
of the appellants was to murder the deceased.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
120 & 121 of 1955.
497
Appeals from the judgment and order dated December 16, 1954,
of the Mysore High Court at Bangalore in Criminal Appeals
Nos. 49 and 50 of 1953 arising out of the judgment and order
dated May 19, 1953, of the Court of the Third Additional
Sessions Judge at Bangalore in Bangalore Sessions Case No. 7
of 1953.
V. Krishnamurthy and R. Gopalakrishnan, for the
appellants.
G. Channappa, Assistant Advocate-General for the State of
Mysore and T. M. Sen, for the respondent.
1958. April 14. The Judgment of the Court AA-as delivered
by
KAPUR J.-These two appeals under Art. 134(1)(c) of the
Constitution arise out of the judgment and order of the High
Court of Mysore at Bangalore confirming the convictions and
sentences passed upon the appellants who were accused Nos.
2, 3 and 4 respectively by the Third Additional District
Judge, Bangalore.
Accused Nos. 1, 5 and 6 who have been acquitted and the
appellants were charged as follows:
"I.................. hereby charge you A-1 Sanjeeva Rao, A-2
Srikantiah, A-3 Sidda, A-4 Kidaripathi, A-5 Hanumantha and
A-6 Pujari Anantha as follows:
1.That you on or about the 25th day of August 1952 at
Mayasandra in Magadi Taluk were members of an unlawful
assembly the common object of which was to murder deceased
Anne Gowda and thereby committed an offence punishable under
section 143 of the Indian Penal Code and within the
cognizance of the Court of Sessions.
2.That you A-2 Srikantiah., A-3 Sidda, A-4 Kadaripathi, A-5
Hanumantha and A-6 Pujari Anantha, on or about the 25tb. day
of August 1952 at Mayasandra in Magadi Taluk did commit
murder by intentionally causing the death of Anne Gowda and
thereby committed an offence punishable under section 302 of
the Indian Penal Code, and within the cognizance of the
Court of Sessions.
3. And that you A-1 Sanjeeva Rao on or about
498
the 25th day of August 1952 at Mayasandra in Magadi Taluk
abetted the commission of the offence of murder by A-2 to A-
6 which was committed in consequence of your abetment and
thereby committed an offence punishable under sections 109
and 302 of the Indian Penal Code, and within the cognizance
of the Court of Sessions."
Thus all of them were charged with being members of an
unlawful assembly, the common object of which was to murder
the deceased, Anne Gowda. The appellants along with
Hanumantha accused No. 5 and Pujari accused No. 6 were
further charged with committing murder of Anne Gowda by
intentionally causing his death. No doubt the charge does
not contain the words " in furtherance of the common inten-
tion of all " but short of that the charge is as near them
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as it could be. Accused No. I Sanjeeva Rao was further
charged with abetting the offence of murder. The trial
Court acquitted all the accused of the charge under s. 143
Indian Penal Code and accused Nos. 5 & 6 of the charge under
s. 302 but he convicted accused No. 1 under s. 302/109 and
the appellants under s. 302 and sentenced them all to
transportation for life. They took an appeal to the High
Court and the State appealed against the order of acquittal
of accused Nos. 5 & 6 and the order of acquittal under s.
143. The High Court acquitted accused No. I Sanjeeva Rao of
abetment of murder after the matter was referred to a third
judge under s. 429 of the Criminal Procedure Code as there
was a difference of opinion between the two judges of the
Division Bench hearing the appeal and thus the case of
abetment set up by the prosecution failed. It upheld the
acquittal of accused Nos. 5 and 6. The charge of unlawful
assembly of which the common object was the murder of Anne
Gowda the deceased also failed because of the acquittal of
Sanjeeva Rao accused No. 1 Hanumantha accused No. 5 and
Pujari accused No. 6 thus leaving only the appellants.
Their conviction for an offence under s. 302, Indian Penal
Code and the sentence of transportation was upheld. The
trial Court’s finding against them was-as follows;
499
" So far as A-2 Srikantiah, A-3 Sidda and A-4 Kadaripathi
alias Kunta are concerned, there is ample evidence to show
that they alone inflicted injuries on the deceased Anne
Gowda and caused his death. Thus a prima facie case has
been made out against them for the murder of Anne Gowda ".
The High Court in appeal said:-
"The evidence on the whole is consistent and in fact it is
so consistent that it was being urged on behalf of the
accused that each witness was repeating what the other says.
Some of the important witnesses have been mentioned in the
First Information Report and the inquest itself was over
within 24 hours after the incident. Taking the consistent
evidence of the witnesses and the probabilities of the case
it has to be stated that the evidence of the prosecution
witnesses as regards the incident has to be believed
We have not had the advantage of a critical and analytical
examination of the evidence of the prosecution witnesses by
either of the courts below nor has the evidence against each
of the appellants been collated and therefore it was
necessary for its to examine the evidence in some detail.
The evidence of the witnesses for the prosecution shows that
the deceased Anne Gowda and the party of Sanjeeva Rao
accused No. I had considerable amount of enmity between each
other. On the date of the occurrence, i. e., August 25,
1952, the deceased had gone to Ramanagram where in a
Magistrate’s Court a case had been brought against him by
accused No. 1. After the case was over the deceased and P.
W. 18 Gangabyriah who was a co-accused in the case and Putta
P. W. 20 who was a witness traveled by the bus which reached
a place called Kudur at about 7 p.m. From Kudur the deceased
accompanied by his two companions and also P.W. 17 Thimmappa
and P.W. 19 Puttarangiah and P.W. 21 Basavalingappa who had
gone for shopping to the shop of P. W. II Subba Rao, started
for their village Yollapore. When they reached the bund of
the tank of Mayasandra, accused Nos. I and 5 and the
appellants came from the opposite side. Accused No. I
flashed his torch on to the
500
deceased and his companions. Thereupon appellant No. 1 who
is the brother of Sanjeeva Rao accused No. 1 gave a blow
with his chopper which cut into two the torch which at the
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time :was in the hand of P.W. 18 Gangabyriah and on the
instigation of accused No. 1 to kill the deceased the
appellants started their attack on him. Appellant No. 3
Sidda gave a blow from behind on the right side of the neck
of the deceased with his chopper and accused No. 4
Kadaripathi aimed a, blow on his head but to ward off the
blow the deceased raised his hand and the blow fell on his
hand. The deceased then ran towards the tank chased by the
accused Nos. 1 and 5 and the appellants. He fell into a
shallow water pit. Accused Nos. 5 and 6 who were empty
handed are stated to have caught hold of him and the
appellants gave five or six blows to the deceased with
choppers. Accused Nos. 5 and 6 then released him but the
appellants continued the assault with their choppers and
caused 24 incised injuries. This story is supported by P.W.
17 Thimmappa, P.W. 18 Gangabyriah, P.W. 19 Puttarangiah and
P.W. 20 Putta and lastly P . W. 21 Basavalingappa. The
First Information Report which was lodged at about 1 a.m.,
on August 26, was made by P.W. 17 Thimmappa and’ the whole
incident is there set out along with the names of the
accused as well as the witnesses.
When the house of Appellant No. 3 Sidda was searched a
bloodstained chopper M. O. 11 was produced by him before the
Panchayatdars. Similarly the house of accused No. 4
Kadaripathi was also searched and that appellant also
produced a chopper there. As the prosecution has not proved
that any of these choppers was stained with human blood it
cannot get much assistance from this recovery.
The medical witness P.W. 2 , found as many as 24 injuries.
Of these injury No. 5 was described as follows:-
"A transverse incised wound in front of the neck 5" long 2-
1/2" deep, cutting the skin, muscles, arteries, veins above
the thyroid cartilage, pharynx and muscles in front of the
vertebral column. On the right side the wound starts 2"
below. the lobule of the right
501
ear, runs to the left and ends 2" below and 1" behind the
lobule of the left ear".
All the other injuries were incised varying in degree of
seriousness. The medical witness’s opinion was that injury
No. 5 is a fatal injury sufficient to cause death All the
other injuries taken as whole may be fatal "The prosecution
has not proved as to who caused injury No. 5 nor has it
specified the injuries caused by individual appellants. The
question then arises; what is the offence which the
appellants are guilty of, if any. Courts below have
accepted the testimony of the witnesses which establishes
that there was enmity between the parties and that on the
date of the occurrence the deceased had gone to the Magi-
strate’s Court at Ramanagram for the case which had been
brought at the instance of accused No. 1. The evidence also
shows that on that date appellants 3 and 4 were seen
together at Kudur in front of the shop of P.W. 10 at about 6
p.m. When accused No. 3 was asked by Siddappa P.W. 10 as to
what had ’brought him there, his reply was that he was
waiting for somebody who was coming by Renuka Bus Service ".
The testimony of P.W. 11 on this point is that he saw
accused Nos. 3 and 4 and another man about 5-30 p.m. or 6
p.m. in front of his shop. He asked them why they had come.
They replied that "they had come to see some persons coining
by Renuka Bus" and there is evidence to show that the
deceased and his two companions had come from Ramanagram by
this Bus Service at about 7 p.m. The evidence of prosecution
witnesses Nos. 17 to 21 also establishes that when the
deceased and his party arrived near the bund of the tank the
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party of the accused came towards them. One of the accused
Sanjeeva Rao (accused No. 1) flashed a torch and the others
started attacking the deceased with choppers at the
instigation of that accused. Injuries were caused on the
head, the neck and the shoulders or on the right and left
forearms which must have been caused when the deceased tried
to, save himself by raising his arm to protect his head.
The common intention of the
6
502
appellants is clear from the fact that not only were they
armed with deadly weapons which they used to cause injuries
to the deceased at the place where they first met him and
his companions but they also chased him when he tried to run
away to save himself and all of them continued assaulting
him with these deadly weapons till he was dead. The
evidence further shows that all of them took part in the
assault. There were 24 injuries on the person of the
deceased and of them twenty one were incised. They are
either on his head or the neck or the shoulders and on the
forearms. All these except perhaps the last are vital parts
of the body and anybody who causes injuries with weapons of
the kind that the appellants used must be fixed with the
intention of causing such bodily injury or injuries as would
fall within s. 300 of the Indian Penal Code.
The question has then been raised that there was no charge
under s. 34 and therefore the accused cannot be convicted of
liability as sharers in an offence by the ’application of s.
34, i. e., in prosecution of the common intention of all.
Now intention is a question ,of fact which is to be gathered
from the acts of the parties and whoever caused injury No. 5
or the persons who caused the other injuries on the vital
parts of the body could have had no other intention but of
causing the death considering the nature and number of inju-
ries and the weapons used.
The omission to mention s. 34 of the Indian Penal Code in
the charge cannot affect the case unless prejudice is shown
to have resulted in consequence thereof. The charge was
that the appellants and others were members of an unlawful
assembly, the common object of which was to murder the
deceased. Although there is a difference in common object
and common intention, they both deal " with combination of
persons who become punishable as sharers in an offence ",
and a charge under s. 149, Indian Penal Code is no impedi-
ment to a conviction by the application of s. 34 if the
evidence discloses the commission of the offence in
furtherance of the common intention of all.
In the second charge it was clearly stated that the
appellants and accused Nos. 5 & 6 committed the
503
murder by. intentionally causing the death of the deceased.
No doubt it would have been better if in the charge s. 34
had been specified. But the mere omission to specify it
cannot in the circumstances of this case have any effect as
no prejudice has been alleged or shown. As a matter of fact
this question was never agitated in either of the Courts
below. This Court in Willie (William) Slaney v. The State
of Madhya Pradesh (1) has laid down the law in regard to the
effect of a defect in a charge. In that case the charge was
under s. 302, read with s. 34 and the conviction was under
s. 302, Indian Penal Code. It was there pointed out that
procedural laws are designed to subserve the ends of justice
and not to frustrate them and if the trial is conducted
substantially in the manner prescribed by the Code but some
irregularity occurs in the course of such conduct the
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irregularity is curable under s. 537, Criminal Procedure
Code. See: Pulukuri Kotayya v. King Emperor- (2). As was
pointed by Viscount Sumner in Atta Mohammad v. King Emperor
(3):
" In the complete absence of any substantial injustice, in
the complete absence of anything that outrages what is due
to natural justice in criminal cases, their Lordships find
it impossible to advise His Majesty to interfere.
The object of a charge is to warn the accused person of the
case he is to answer. It cannot be treated as if it was a
part of a ceremonial. Bose J. observed in William Slaney’s
case, (1) with reference to ss. 232 (1) and 535 of the
Criminal Procedure Code where the words used are " by the
absence of a charge " in s. 232(1) and no charge was framed
" in s. 535:
" We see no reason for straining at the meaning of these
plain and emphatic provisions unless ritual and form are to
be regarded as of the essence in criminal trials. We are
unable to find any magic or charm in the ritual of a charge.
It is the substance of these provisions that count and not
their outward form. To hold otherwise is only to provide
avenues of escape for the guilty and afford no protection to
the innocent."
(1) [1955] 2 S.C.R. 1140, 1165.
(2) (1946) L.R. 74 I.A. 65, 75.
(3) (1929) L.R. 57 I.A. 71, 76.
504
The imperfection in the charge is curable provided no
prejudice has been shown to have resulted because of it. The
appellants had notice that they were being tried as "
sharers in the offence "’ and their liability was collective
and vicarious and not individual. No doubt they, were
charged, under s. 149 of the Indian Penal Code with being
members of an unlawful assembly the common object of which
was murder of the deceased but they were also charged that
they with accused Nos. 5 & 6 had committed murder by
intentionally causing the death of the deceased. The
prosecution led evidence to show that at least two of the
appellants were waiting for the arrival of the evening Bus
by which the deceased and his companions were traveling and
that the appellants and others met them at the bund and
there was a concerted attack by them followed by a chase and
assault with choppers by all the appellants resulting in
death because of 24 injuries of a serious nature given by
the appellants collectively. Of these injury No. 5
individually and others cumulatively were sufficient in the
ordinary course of nature to cause death. Section 34 is
only a rule of evidence and does not create a substantive
offence. It means, that if two or more persons
intentionally do a thing jointly it is just the same as if
each of them had done individually. As the Privy Council
have pointed out in Barendra Kumar Ghosh v. King Emperor (1)
" Sect. 34 deals with the doing of separate acts, similiar
or diverse, by several persons, if all are done in further-
ance of a’ common intention, each person is liable for the
result of them all, as if he had done them himself....
The appellants’ defence was a total denial of taking part in
the offence. When examined under s. 342 of the Criminal
Procedure Code they stated that the prosecution case was
false. They did not state anything indicative of prejudice
having resulted as a consequence of a defect in the charge.
To every question put to them, their reply was that the
prosecution evidence was false. One such question and the
answer to it was:
Q. " The witnesses have deposed that at about
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(1) (1924) L.R., 52 I. A.40, 51.
505
8-30 on the night of 25th August, 1952, you along with the
accused persons 1, 3, 4 and 5 came upon the tank bund
holding a matchu in the hand in order to hit Anne Gowda.
What do you say regarding this matter ?
A.This is absolutely false."
In answer to another question as to whether he had assaulted
the deceased with a chopper, appellant No. 1 stated that he
never saw the deceased on that date and the evidence was
false and the other two appellants just stated that the
evidence for the prosecution was false. The form of the
questions indicates notice to the appellants that the,
prosecution was relying on collective responsibility and
their -having acted with a common intention. They did not
plead prejudice due to the want of s. 34 in the charge
itself. The judgment of the High Court does not indicate
that any such objection was taken before it.
The grounds of appeal taken in the High Court are not before
us, but their application under Art. 134 (1)(c) made to the
High Court shows that objection was taken as to the failure
to specify s. 34 in the following words:
" There is no charge framed in the case against accused 2, 3
and 4, 5 and 6 for ail offence under Section 302 read with
Section 34 of the Indian Penal Code. It was, therefore, not
a case in which accused 2, 3, 4 alone could be convicted of
the charge under Section 302 by resorting to the rule of
common intention under Section 34 of the Indian Penal Code
for two reasons, viz.,
(a) There is no charge under Section 34 of the Indian Penal
Code;
(b) If it is implied’, Accused 5 and 6 are out of the grove
and there is no evidence of any prior conspiracy conducive
to that requisite inference. Further it will be seen from
the evidence of the eye-witnesses it is not possible to
predicate which blow caused by which instrument, by which
accused resulted in death. Therefore it is a case which
accused 2, 3 and 4 are charged on individual responsibility
alone for having caused murder punishable under Section 302,
Indian
506
Penal Code individually. Neither the trial Court nor it is
submitted the High Court has considered this aspect of the
matter and has considered the individual responsibility of
accused 2, 3 and 4 for their individual acts"
and in their grounds of appeal filed in this Court the
language is the same. Nowhere has it been alleged that as a
result of omission to specify s. 34 in the charge there was
any prejudice and nothing is disclosed whether by the trend
of cross-examination or by anything on the record to show
that the appellants were misled by this omission in the
charge. No case of prejudice has been alleged or
established and there are no-facts on the consideration of
which the conclusion could be reached that the conviction
under s. 302 is vitiated as a result of prejudice.
This Court in Rawalpenta Venkulu v. The State of Hyderabad
(1), held that the omission to add s. 34 of the Indian Penal
Code in a charge had only an academic significance where the
accused had notice as to what they were being charged with.
That was a case where in pursuance of a conspiracy to commit
murder the accused after locking the room in which the
deceased was sleeping set fire to it and thus caused his
death. The charge against the accused persons was only
under s. 302 without s. 34. On the evidence the intention
to kill was held proved as each one of the appellants had
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actively contributed to setting fire to the room by putting
lighted matches to it while the deceased had been trapped in
it and " each one of them therefore severally and in
pursuance of the common intention brought about the same
result by his own act." In the trial Court the Sessions
Judge had explained the charge as follows:
" You are charged of the offence that you with the
assistance of the other present accused with common
intention................................"
From this the Court came to the conclusion that the accused
had clear notice that they were being charged with the
offence of committing murder in pursuance of their common
intention and, therefore, the omission
(1) A.I.R. 1956 S.C. 171,
507
of s. 34 in the charge had only academic significance and
had in no way misled the accused. Thus the accent was on
whether the accused were misled or not or any prejudice
resulted from the omission in the charge and on the facts
and circumstances of that case this Court was of the opinion
that they were not and there was no prejudice.
Chikkarange Gowda v. State of Mysore (1), was relied upon by
the appellants’ counsel. In that case the accused persons
were charged as follows:
" That you on or about the 18th day of April, 1951, at
Talkad were member of an unlawful assembly and in
prosecution of the common object or intention or such as you
know to be likely to be committed in prosecution of that
object or intention, namely, in killing Putte Gowda, caused
the death of Putte Gowda and Nanje Gowda, and you are
thereby under s. 149 read with s. 34 Penal Code, guilty of
causing the said murders, an offence punishable under s.
302, Penal Code and within the cognizance of the Court of
Sessions."
The Sessions Judge found that the common object of the
unlawful assembly or the intention of the accused was not
merely to assault Putte Gowda but also to kill him. The
High Court on appeal held that there was no evidence to
prove or establish any plan for concerted action or any
common object to kill that individual. But it was of the
opinion that the people of the locality were annoyed with
Putte Gowda and the common object of the assembly as a whole
was to give severe and open chastisement only. The person
who was stated to, have given the fatal injury to Putte
Gowda was acquitted by the High Court on the ground of
insufficiency of evidence and the other two accused were
held guilty for severely assaulting the deceased and guilty
of murder. In this Court it was contended that on the
findings given by the High Court in regard to the common
object of the unlawful assembly, the conviction under s.
302/34 or s. 149 was unsustainable and that the manner in
which the charges under s.. 149 and 34 were mixed up it
could not be said that the
(1) A.I.R. 1956 S.C. 731,
508
accused had a reasonable opportunity of meeting the charges
against them. This Court observed that " on the finding of
the High Court none of the members of the unlawful assembly
had the intention of killing Putte Gowda." It also held that
the way in which the charge was framed gave the accused no
effective notice of the case they had to meet. In these
circumstances the case of separate common intention of three
persons was distinct from the common object of the other
members of the unlawful assembly and, therefore, the
question was not whether the specific charge under s. 34 was
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or was not necessary but whether a reasonable opportunity of
meeting the case of some of the accused having a separate
common intention different from that of others of the
unlawful assembly, was given and as the finding was that it
had not been given the conviction of the two accused for
offence under s. 302/34 was unsustainable. That case has
not laid down a rule different from Willie (William)
Slaney’s case (1). It merely emphasises that in the case of
imperfection of a charge if prejudice is shown a conviction
of an accused would be insupportable. In the present case
the common intention of the appellants is indicated by their
conduct, the ferocity of the attack, the weapon used, the
situs of the injuries and their nature and there was
preconcert as shown by the evidence of P. Ws. 10 and 11.
They have therefore been rightly convicted of murder as
sharers ill the offence
We would, therefore, dismiss these appeals.
Appeals dismissed.
(1) [1955] 2 S.C.R. 1 140, 1 1165.
509