Full Judgment Text
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PETITIONER:
KRISHNA GOVIND PATIL
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
23/01/1963
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
IMAM, SYED JAFFER
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1963 AIR 1413 1964 SCR (1) 678
CITATOR INFO :
D 1965 SC1037 (5,6)
D 1968 SC 43 (7)
RF 1970 SC 977 (12)
R 1972 SC 254 (4,6)
RF 1973 SC 337 (24,25,26)
E 1973 SC 863 (33)
D 1974 SC 323 (10)
R 1974 SC 778 (13)
RF 1975 SC1917 (13)
D 1976 SC1084 (16,17)
R 1976 SC2207 (51)
RF 1983 SC1090 (3)
R 1989 SC 772 (10)
R 1991 SC 318 (19)
D 1991 SC1853 (11,15)
ACT:
Criminal Law-Four persons charged with substantive offence
read with s. 34-Three acquitted-Conviction of one under
substantive offence read with s. 34-Propriety of-Different
situations considered Indian Penal Code, 1860 (45 of 1860),
ss. 34, 302.
HEADNOTE:
The four accused persons stood their trial before the
Additional Sessions judge for the murder of one Vishwanath.
The charge against them was that they in view of their
common grudge a against the deceased, combined together and
did away with the deceased. They were charged under s. 302
read with s. 34 of the Indian Penal code and were also
separately charged under s. 302 of the Penal Code. All
pleaded not guilty to the charge and accused 1, 3 and 4
pleaded alibi, while accused 2 raised a plea of private
defence. The learned Additional Sessions judge acquitted
all the accused on the ground that the prosecution witnesses
were not speaking the truth and the version given by accused
2 was the probable one. The State preferred an appeal to
the High Court against the order of acquittal under s. 302,
read with s. 34, but not against the acquittal under s. 302
of the Penal Code. The High Court acquitted accused 1, 3
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and 4 on the ground that it was doubtful whether any one of
them participated in the commission of the offence and
convicted accused 2 on the ground that one or more of them
might have participated in the offence. Accused 2, the
appellant, therefore, filed this appeal and contended that
when three of the four named accused, who were charged under
s. 302, read with s. 34, were acquitted, the court could not
convict only one of the accused on the basis of constrictive
liability.
Held that before a court could convict a person under s.
302, read with s. 34, it should come to a definite
conclusion that the said person had a prior concert with one
or more other persons, named or unnamed, for committing the
said offence.
Held, further, that when accused were acquitted either on
the ground that the evidence was not acceptable or by giving
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benefit of doubt to them, the result in law would be the
same it would mean that they did not take part in the
offence. The effect of the acquittal of accused 1, 3 and 4
is that they did not conjointly act with accused 2 in
committing the murder. If they did not act conjointly with
the appellant, he could not have acted conjointly with them.
The judgment of the High Court does not indicate that
persons other than the said accused participated in the
offence, nor is there any evidence in that regard,
therefore, the conviction of the appellant must be set
aside.
Mohan Singh v. State of Punjab, [1962] Supp. 3 S. C. R. 848,
held inapplicable.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 201 of
1962.
Appeal by special leave from the judgment and order dated
February 20, 1962, of the Bombay High Court in Criminal
Appeal No. 1405 of 1961.
C. L. Sareen, for the appellant.
H. B. Khanna and R. H. Dhebar, for the respondent.
1963. January 23. The judgment of the Court was delivered
by
SUBBA RAO, J.-This appeal by special leave is directed
against the judgment of a division Bench of the ’Bombay High
Court setting aside the order of acquittal made by the
Additional Sessions judge, Kolaba, and convicting the
appellant under S. 302, read with s. 34, of the Indian Penal
Code and sentencing him to imprisonment for life.
The case of the prosecution may be briefly stated. In the
year 1959, two persons by name Ramachandra Budhya and Govind
Dhaya were murdered by some people. In all II accused,
including one Deoram Maruti Patil, were brought to
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trial; and out of them 8 accused, including the said Deoram
Maruti Patil, were acquitted. During that trial Deoram
Maruti Patil’s uncle, by name Vishwanath, actively helped
Deoram Maruti Patil in the conduct of his defence. Accused
1 and 2 in the present case are the sons of Govind Dhaya and
accused 3 and 4 are the nephews of Ramachandra Budhya. They
bore a grudge against Vishwanath for helping Deoram Maruti
Patil and bringing about his acquittal. On August 19, 1960,
Vishwanath and one Mahadeo Pandu Patil left their village at
about 8.30 p.m. in order to go to Pezari en route to Alibag.
When they were walking along a bund, accused I to 4 came
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from behind, armed with long sticks and the stick carried by
accused 1 had a blade attached to it. They belaboured the
deceased resulting in his death.
The four accused had to stand their trial for the murder of
Vishwanath before the Court of the Additional Sessions
judge, Kolaba. The charge against them was that they, in
view of their common grudge against the deceased, combined
together and did away with the deceased. The said four
persons were charged under s. 302, read with s. 34, of the
Indian Penal Code for committing the murder of the deceased
in furtherance of their common intention. All of them were
also charged separately for the substantive offence under s.
302 of the Indian Penal Code. All the accused pleaded not
guilty to the charge. While accused 1, 3 and 4 pleaded
alibi, accused 2 raised a plea of private defence. The
prosecution examined eye-witnesses, who deposed that the
four accused overtook the deceased when he was going to
village Pezari and felled him down by giving him lathi
blows. None of the witnesses spoke to the presence of any
other person, named or unnamed, who took part in the assault
of the deceased. The learned Additional Sessions judge
found that the prosecution witnesses were not speaking
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the truth and that the version given by accused 2 was the
probable one. In the result he acquitted all the accused.
The State preferred an appeal to the High Court against the
said order of acquittal under s. 302, read with s. 34, of
the Indian Penal Code ; but no appeal was preferred against
the order of acquittal under s. 302 of the Indian Penal
Code. The judgment of the High Court discloses that the
learned judges were inclined to believe the evidence of the
witnesses, other than Kashinath and Shridar. But they
dismissed the appeal against accused 1, 3 and 4 on the
ground that the appeal was against an order of acquittal.
But in regard to accused 2, they held that he was one of the
participants in the assault and there was no basis for his
plea of private defence. Having come to that conclusion,
the learned judges convicted accused 2 under s. 302, read
with s. 34, of the Indian Penal Code. As regards the
persons who participated in the assault along with accused
2, it would be appropriate to quote the words of the High
Court itself :
"Some of the other accused were undoubtedly
concerned with the incident along with accused
No. 2. Since it is possible that the story as
given by the prosecution witnesses, and parti-
cularly by Mahadeo, was exaggerated, it is not
safe to hold that each one of the other
accused was also a participant in the offence.
In view of the possibility that one or more of
the other accused, i.e., accused Nos. 1, 3 and
4, might not have participated in the offence,
we do not propose to interfere with the
acquittal of these accused. But we are
satisfied that accused No. 2 along with one or
more of the other accused committed this
offence and that accused No. 2 was, therefore,
clearly guilty under section 302 read with
section 34 I. P. Code".
To put it in other words, they, acquitted accused 1, 3 and 4
on the ground that it was doubtful whether
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any one of them participated in the commission of the
offence and convicted accused 2 on the ground that one or
more of them might have participated in the offence.
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Accused 2 has filed the present appeal against the judgment
of the High Court.
The argument of teamed counsel for the appellant may be put
thus : The learned Additional Sessions judge acquitted the
accused under s. 302 of the Indian Penal Code and also under
s. 302, read with s. 34, of the said Code. The appeal in
the High Court was confined only to the acquittal of the
accused under s. 302, read with s. 34, of the Indian Penal
Code. The charge as well as the evidence was only directed
against the four named accused as the participants in the
common intention to commit the murder of the deceased. The
High Court having acquitted accused 1, 3 and 4.
inconsistently convicted accused 2 for having committed the
murder of the deceased jointly with the three accused who
had been acquitted. To put it differently, the argument is
that when three of the four named accused, who were charged
under s. 302, read with s. 34, of the Indian Penal Code,
were acquitted, the court could not convict only one of the
accused on the basis of constructive liability.
Learned counsel for the respondent counters this argument by
stating that though the charge as well as the evidence was
directed against the 4 named accused, a court could come to
the conclusion that 3 of the 4 named accused are not
identified but more than one had taken part in the
commission of the offence and that in the present case on a
fair reading of the entire judgment we should hold that the
High Court found that though accused 1, 3 and 4 were not
identified, 3 unidentified persons must have taken part in
the murder. Section 34 of the Indian Penal Code reads :
"When a criminal act is done by several per-
sons, in furtherance of the common intention
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of all, each of such persons is liable for
that act in the same manner as if it were done
by him alone."
It is well settled that common intention within the meaning
of the section implied a pre-arranged plan and the criminal
act was done pursuant to the prearranged plan. The said
plan may also develop on the spot during the course of the
commission of the offence; but the crucial circumstance is
that the said plan must precede the act constituting the
offence. If that be so, before a court can convict a person
under s. 302, read with s. 34, of the Indian Penal Code, it
should come to a definite conclusion that .the said person,
had a prior concert with one or more other persons, named or
unnamed, for committing the said offence. A few
illustrations will bring out the impact of s. 34 on
different situations.
(1) A, B, C and D are charged under s. 302, read with s.34,
of the Indian Penal Code, for committing the murder of E.
The evidence is directed to establish that the said four
persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the
said sections. But evidence is adduced to prove that the
said persons, along with others, named or unnamed,
participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections. But
the evidence is directed to prove ,-hat A, B, C and D, along
with 3 others, have jointly committed the offence.
As regards the third illustration, a Court is certainly
entitled to come to the conclusion that one of the, named
accused is guilty of murder under s. 302, read with s. 34,
of the Indian Penal Code, though the
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other three named accused are acquitted, if it accepts the
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evidence that the said accused acted in concert along with
persons, named or unnamed, other than those acquitted, in
the commission of the offence. In the second illustration,
the Court can come to the same conclusion and convict one of
the named accused if it is satisfied that no prejudice has
been caused to the accused by the defect in the charge. But
in the first illustration the Court certainly can convict
two or more of the named accused if it accepts the evidence
that they acted conjointly in committing the offence. But
what is the position if the Court acquits 3 of the 4 accused
either because it rejects the prosecution evidence or
because it gives the benefit of doubt to the said accused ?
Can it hold, in the absence of a charge as well as
evidence’, that though the three accused are acquitted, some
other unidentified persons acted conjointly along with one
of the named persons ? If the Court could do so, it would be
making out a new case for. the prosecution : it would be
deciding contrary to the evidence adduced in the case. A
Court cannot obviously make out a case for the prosecution
which is not disclosed either in the charge or in regard to
which there is no basis in the evidence. There must be some
foundation in the evidence that persons other than those
named have taken part in the commission of the offence and
if there is such a basis the case will be covered by the
third illustration.
In support of the contention that a Court, even in the first
illustration, can acquit 3 of the 4 accused named in the
charge on the ground that their identity has not been
established, and convict one of them on the ground that more
than one took part in the commission of the offence,
reliance is placed upon the decision of this Court in Mohan
Singh v. State of Punjab (1). There, the appellants, along
with three others, were charged with having committed
offence under S. 302, read with s. 149, as well as s. 323,
read
(1) [1962] Supp. 3 S.C.R. 848. 858.
685
with s. 149, of the Indian Penal Code. The Sessions judge
acquitted two of them, with the result 3 of them were
convicted. One of the accused was convicted under s. 302
and s. 147 and two of the accused were convicted under s.
302, read with s. 149 and s. 147, of the Indian Penal Code.
The High Court confirmed their convictions. On appeal by
special leave to this Court, two of the accused convicted
under s. 302, read with ss. 149 and 147, of the Indian Penal
Code, contended, inter alia, that as two of the five accused
were acquitted, their conviction under s. 302, read with ss.
149 and 147, was bad in law, This Court held on the evidence
that the said two accused had done the act pursuant to a
pre-arranged plan and therefore they could be convicted
under s. 302, read with s. 34, of the Indian Penal Code.
But in the course of the judgment different situations that
might arise in the context of the question now raised were
noticed. Adverting to one of the situations similar to that
now before us, this Court observed :
"Cases may also arise where in the charge, the
prosecution names five or more persons and
alleges that they constituted an unlawful
assembly. In such cases, if both the charge
and the evidence are confined to the persons
named in the charge and out of the persons so
named two or more are acquitted leaving before
the court less than five persons to be tried,
then s. 149 cannot be invoked. Even in such
cases, it is possible that though the charge
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names five or more persons as composing an
unlawful assembly, evidence may nevertheless
show that the unlawful assembly consisted of
some other persons as well who were not
identified and so not named. In such cases,
either the trial court or even the High Court
in appeal may be able to come to the
conclusion that the acquittal of some of the
persons named in the charge and tried will not
necessarily
686
displace the charge under section 149 because
along with the two or three persons convicted
were others who composed the unlawful assembly
but who have not been identified and so have
not been named. In such cases, the acquittal
of one or more persons named in the charge
does not -affect the validity of the charge
under section 149 because on the evidence the
court of facts is able to reach the conclusion
that -the persons composing the unlawful
assembly nevertheless were five or more than
five. It is true that in the last category of
cases, the court will have to be very careful
in reaching the said conclusion. But there is
no legal bar which prevents the court from
reaching such a conclusion."
It will be seen from the. said observations that this Court
was visualizing a case where there was evidence on the
record from which the court can come to such a conclusion.
It may be that the charge discloses only named persons; it
may also be that the prosecution witnesses named only the
said accused; but there may be other evidence, such as that
given by the court-witnesses, defence witnesses or
circumstantial pieces of evidence, which may disclose the
existence of named or unnamed persons, other than those
charged or deposed to by- the prosecution witnesses, and the
court, on the’ basis of the said evidence, may come to the
conclusion that others, named or unnamed, acted conjointly
along with one of the accused charged. But such a conclu-
sion is really based on evidence. The observations of this
Court really apply to a case covered by the third
illustration given by us.
But the present case falls outside the said three
illustrations. The High Court gave conflicting findings.
While it acquitted accused 1, 3 and 4 under s. 302, read
with s. 34 of the Indian Penal
687
Code, it convicted accused 2 under s. 302, read with s. 34,
of the said Code, for having committed the offence jointly
with the acquitted persons. That is a legally impossible
position. When accused were acquitted either on the ground
that the evidence was not acceptable or by giving benefit of
doubt to them, the result in law would be the same : it
would mean that they did not take part in the offence. The
effect of the acquittal of accused 1, 3 and 4 is that they
did not conjointly act with accused 2 in committing the
murder. If they did not act conjointly with accused 2,
accused 2 could not have acted conjointly with them.
Realizing this mutually destructive findings of the High
Court, learned counsel for the State attempted to sustain
the findings of the High Court by persuading us to hold that
if the said finding was read in the context of the whole
judgment, it would be clear that the learned judges meant to
hold that persons other than the acquitted accused
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conjointly acted with the convicted accused. We have gone
through the entire judgement carefully with the learned
counsel. But the observations of the learned judges ;is
regards the "’other participants" in the Grime must in the
context refer only to the "’one or other of the said three
acquitted accused participated in the offence committed by
accused 2. There is not a single observation in the judgment
to indicate that persons other than the said accused
participated in the offence, nor is there any evidence in
that regard. We, therefore, hold that the judgment of the
High Court cannot stand. We are satisfied that on the
findings arrived at by the High Court, the conviction of
accused 2 is clearly wrong.
In the result, we allow the appeal, set aside the conviction
of the appellant and direct him to be set at liberty.
Appeal allowed.
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