Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1739 OF 2007
Thoti Manohar .....……..Appellant
Versus
State of Andhra Pradesh ………Respondent
J U D G M E N T
DIPAK MISRA, J.
The present appeal, by special leave under Article 136 of the
Constitution of India, is directed against the judgment of
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conviction and order of sentence dated 6.3.2007 passed by the
High Court of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No. 603 of 2005 whereby the Division Bench of
the High Court partly allowed the appeal by acquitting the
accused No. 3 (A-3), namely, Thoti Sivaram, for the offence
punishable under Section 302 read with Section 34 of the Indian
Penal Code, 1860 (for short ‘the IPC’) but maintained the
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conviction and sentence in respect of other offences as had been
imposed by the learned Sessions Judge, Chittoor in Sessions
Case No. 108 of 2003. Be it noted, the accused No. 1 (A-1) was
convicted for the offences punishable under Sections 452, 302,
326 and 324 of the IPC, the accused No. 2 (A-2) was found guilty
of the offences under Sections 452, 302 read with 34, and 324
and 326 of the IPC, and the accused No. 3 (A-3) was convicted
under Sections 452, 302 read with Section 34, and 324 of the
IPC and, accordingly, sentenced to rigorous imprisonment and
fine which we shall state at a later stage.
2. The broad essential facts of the prosecution case are that
A-1 and A-2 are real brothers and A-3 is their cousin. A-1, Thoti
Ekambaram, had developed illicit relationship with Dhanamma,
the cousin sister of the deceased, Kuppuswamy Modali. The
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deceased, his brother Damodaran and other family members had
an apprehension that if Dhanamma continued such kind of
intimacy with A-1, she would not be in a position to perform the
marriage of her daughter. The said apprehension compelled
them to send Dhanamma and her daughter to Bangalore where
Dhanamma lived with her son. This act of the deceased and his
family members stirred up anger in the heart of A-1 and a sense
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of revenge ruled his thought. The accused waited for the
opportunity to pick up quarrels and triggered altercations on
every trivial issue with the deceased and his family. The trivial
cavil slowly gave rise to a major incident and on one day, A-1 and
others allowed their cattle into the sugarcane fields of the
deceased who wantonly grazed there and spoiled the crops. As
the factual matrix would undrape, on 24.9.2002 at about 3.00
p.m., A-1 and A-2 drove their cows again for grazing the crop of
the deceased. On seeing the same, Sekhar, son of the deceased,
brought those cattle to his house and tied them. At about 4.00
p.m., A-1 and A-2 went to the house of the deceased, picked up a
quarrel, assaulted them and took away their cattle. They also
threatened them with dire consequences. Being disturbed,
Kuppuswamy Mudali (deceased) and his son Sekhar (PW 1)
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approached the elders of the village, namely, Gunasekhar and
Amudalaputtur Kesava Reddy (PWs-7 and 12) and others, for
convening a panchayat so that such unwarranted actions were
not repeated. The said elders secured the presence of A-1 and
A-2, the deceased and his son and told all of them that there
would be a mediation on 26.9.2002 and sincere efforts should be
made to put the controversy to rest.
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3. The case of the prosecution as further uncurtained is that
on 25.9.2002, at about 11.00 a.m., when Sekhar, the deceased
and Jayamma, wife of the deceased (PW-3), were in their house,
A-1 and A-3 armed with iron rods and A-2 armed with billhook
trespassed into the house of the deceased. A-1 and A-2 caught
hold of him and his son and dragged them out of the house. A-1,
Thoti Ekambaram, assaulted the deceased with iron rods on his
head, neck and all over his body and caused injuries as a
consequence of which he fell down and lost his consciousness.
At that juncture, Arunachalam, PW-6, the younger brother of the
deceased, intervened. Thoti Manohar, A-2, struck him with the
billhook on his face as a result of which he sustained injuries.
A-3 also assaulted him with iron rod on his chest.
Rukminamma, PW-2, intervened and was assaulted by A-2.
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Jayamma, PW-3, was assaulted by A-1. Similarly, when
Pargunam, PW-4, and Damodaran, PW-5, intervened, they were
also beaten up by the accused persons. All the injured persons
were taken to the Government hospital, Chittoor in a jeep for
necessary treatment. In the hospital, Kuppuswamy Modali was
declared dead. The other remaining injured were admitted in the
hospital for treatment.
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4. The narration in continuum is that Sekhar, PW-1, lodged an
FIR at Police Station, Gangadhara, Nellore and Crime No. 70 of
2002 was registered under Sections 452, 302 and 324 read with
Section 34 of the IPC against the accused persons. After the
criminal law was set in motion, on 29.9.2002, the Circle
Inspector of Police, P.W. 20, arrested A-1 and A-2 who led the
said police officer to the sugarcane fields from where the weapons
used in the crime were recovered and seized in the presence of
panch witnesses. On 3.10.2002, A-3 was arrested. The
concerned Investigating Officer recorded the statements of the
witnesses and, after completion of other formalities, placed the
charge-sheet before the concerned Magistrate who committed the
matter to the Court of Session.
5. The accused pleaded not guilty and claimed to be tried.
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6. Be it noted, initially, the learned Additional District and
Sessions Judge (Fast Track Court, Chittoor) was in-charge of the
trial of the case but, thereafter, by direction of the High Court in
Criminal M.P. No. 6915/2003, the matter was transferred to the
Sessions Judge, Chittoor.
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7. The prosecution, to establish the charges against the
accused persons, examined 20 witnesses, exhibited 23
documents, namely, Exh. P-1 to P-23 and got MOs-1 to 9
marked.
8. The defence chose not to adduce any evidence. However,
the contradictions and omissions found in the evidence of some
of the prosecution witnesses were marked as Exh. D-1 to D-5.
9. The learned Sessions Judge appreciated the evidence of
PW-1, Sekhar, the informant, PW-2, Rukmanamma, wife of
Arunachalam, PW-3, Jayamma, mother of PW-1, PW-4
Parganam, PW-5, Damodaran and PW-6, Arunachalam, the
injured eye witnesses who had supported the factum of assault
on the deceased as well as on them; relied on the testimony of
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Gunasekhar, PW-7, S. Suri, PW-8, and the then Circle Inspector
of Police, PW-20, who conducted the investigation to accept the
reliability of seizure of weapons in accordance with Section 27 of
the Evidence Act, and further placed reliance on the evidence of
PWs-10, 11, 12 and 14 which threw light on the illicit
relationship of Dhanamma and her being sent to Bangalore
which formed the genesis of bad blood and the course adopted by
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the deceased and his relatives to approach the elderly persons to
convene a panchayat. The learned Sessions Judge also relied on
the testimony of PW-9, Dr. Sai Rani, who conducted the post
mortem, PW-16, Dr. M. Krishnaveni, PW-17, Dr. Vijaya Gowri
and PW-18, another medical officer, who examined the injured
witnesses and gave certificates which were brought on record.
10. We may note here that the other witnesses are basically
formal witnesses. It is also apt to state that only Govinda Reddy,
PW 15, did not support the case of the prosecution.
11. Considering the evidence and the material brought on
record, the learned Sessions Judge came to hold that the
prosecution had been able to establish the charge under Section
452 of the IPC against A-1 to A-3, prove the offence under
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Section 302 of the IPC against A-1 to the hilt and bring home the
charge for the offence under Section 302 read with Section 34 of
the IPC against A-2 and A-3, and under Section 326 of the IPC
against A-2. That apart, the learned trial judge found that the
offence under Section 324 of the IPC against A-1 to A-3 was
proven and, accordingly, convicted them for the said offences. As
far as the sentence is concerned, A-1 was convicted to undergo
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life imprisonment for the offence under Section 302 of the IPC
and to pay a fine of Rs.5000/-, in default, to undergo simple
imprisonment for six months, rigorous imprisonment for two
years under Section 452 of the IPC and to pay a fine of
Rs.5,000/-, in default, to suffer simple imprisonment for one
month and rigorous imprisonment for one year for the offence
under Section 324 of the IPC. Similar sentence was imposed on
A-2 for the offences under Sections 452, 302 read with Sections
34, and 324 of the IPC. As far as the offence under Section 326
is concerned, he was sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of
Rs.1,000/-, in default, to undergo simple imprisonment for three
months. As far as A-3 is concerned, the sentence remained the
same for the offences under Section 302 read with Section 34,
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and 452 and 324 of the IPC.
12. Being dissatisfied with the judgment of conviction and the
order of sentence, all the accused persons preferred appeal before
the High Court.
13. Before the appellate court, it was contended that the
learned trial Judge has grossly erred by placing reliance on the
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evidence of PWs-1 to 8, 10 and 12 despite the incurable
discrepancies pertaining to the place and time of occurrence and
further the learned trial Judge had totally erred by giving
credence to the version of the witnesses who are relatives of the
deceased and were absolutely interested to implicate the accused.
That apart, it was canvassed that there was no circumstance on
record to come to a definite conclusion that A-2 and A-3 shared a
common intention with A-1 to do away with the life of the
deceased inasmuch as they neither caused injury on the body of
the deceased nor did they instigate or exhort A-1 to commit the
murder and, therefore, they were only liable for their individual
acts and to be convicted and sentenced for the offences
committed by them. The said submissions were controverted by
the public prosecutor contending that A-2 and A-3 came armed
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with deadly weapons to the house of the deceased and dragged
him from his house and attacked him. That apart, submitted the
learned public prosecutor before the appellate court, that they
had earlier threatened the deceased with dire consequences and
thus, the cumulative effect of the circumstances would go a long
way to reveal that there was a common intention to extinguish
the life spark of the deceased.
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14. The High Court referred to the inquest report of the
deceased, the injury reports of the injured persons, the human
blood as found from the report of serologist contained in Exh. P-
23, analysed the credibility and credentiality of the testimony of
the eye witnesses and placed reliance on the seized articles and
noted the consistency of the ocular evidence and the
corroboration it had received from the medical evidence, the
detailed narration of the assault on the witnesses by the
assailants’ group, the non involvement of A-3 with the previous
incident and threat given and the role ascribed to him and came
to hold that there was no material to infer the common intention
as far as A-3 was concerned and, accordingly, acquitted A-3 for
the offence punishable under Section 302 read with Section 34 of
the IPC but sustained the conviction and sentence in respect of
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other offences. As far as the conviction and sentence of A-1 and
A-2 are concerned, that was maintained.
15. We have heard the learned counsel for the parties and
perused the documents on record.
16. It is submitted by the learned counsel for the appellant that
there is material contradiction about A-1 and A-2 letting their
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cows graze in the sugarcane field of the deceased inasmuch as
different versions have been given by PW-1, the informant, and
PW-20, the Circle Inspector of Police who conducted the
investigation. It is urged by him that the High Court has
fundamentally erred by holding that there was intention on the
part of A-1 to cause death of the deceased. The learned counsel
would further contend that the deceased was the aggressor and
the injuries found on A-1 and A-2 have not been explained as a
consequence of which the case of the prosecution does not
deserve acceptance. It is his further submission that when the
High Court had acquitted A-3 on the foundation that he did not
share the common intention, on the same charge the appellant –
A-2 should also have been acquitted and, therefore, this Court
should acquit him of the offence punishable under Section 302
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read with Section 34 of the IPC. It is proponed by him that all
the eye witnesses are interested witnesses and they have
deliberately implicated the accused persons and further the
prosecution has not made any endeavour to produce any
independent witness.
17. The learned counsel for the State, in oppugnation, would
submit that the accused were the aggressors and the same is
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absolutely demonstrable from the evidence brought on record
and it does not remotely suggest any other version. After taking
us through the evidence of the witnesses, he has contended that
the prosecution witnesses are natural and truthful and there is
no reason to discard their version. In fact, they have given the
true version of the occurrence. It is urged by him that the
contention that the injuries on the accused persons have not
been explained by the prosecution and hence, its version
deserves rejection has no legs to stand upon inasmuch as the
injuries are absolutely superficial, minor and in any case, they do
not affect the prosecution case in its entirety, especially when the
evidence adduced by the prosecution is clear, cogent and
credible. The learned counsel would further contend that the
case put forth by the prosecution in court is in conformity with
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the facts disclosed in the First Information Report. It is
graphically clear from the testimony of the witnesses, the
weapons used in the assault that have been seized, the blood-
stained clothes which have been recovered and the evidence of
the doctors who had examined the injured witnesses and
conducted the post mortem that the prosecution has proved its
case beyond reasonable doubt. It is further canvassed by him
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that the plea on behalf of appellant that Section 34 of the IPC is
not attracted, regard being had to the fact that the said accused
had not inflicted any injury on the deceased and hence, had not
shared the common intention, is absolutely unacceptable on
apposite appreciation of the circumstances and the evidence
brought on record which clearly establish the sharing of common
intention.
18. Firstly, we shall proceed to deal with the earlier part of the
incident. PW-1, K. Sekhar, has testified that on 24.9.2002, A-1
and A-2 had led their cows to graze in the sugarcane field of the
deceased. He has stated how he drove the cows to his house and
tied them and how A-1 and A-2, the real brothers, came and
assaulted the deceased and himself and threatened them with
dire consequences before taking the cows back. He has also
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mentioned that both the accused had pelted stones at them.
Regarding the visit to the elders, summon to the accused and
decision to resolve the controversy by convening a Panchayat on
26.9.2002, the same has been clearly stated by him. The said
version of PW-1 has received corroboration from PWs-2 to 6 and
10. Nothing has really been brought out to create a slightest
doubt on that aspect. A contradiction which is sought to be
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highlighted is that there is no mention that the cows were led
from the barren land of the accused to the sugarcane field of the
deceased. The assertions that the cows belonged to A-1 and A-2;
that they went to the field of the deceased and destroyed the
crops; that they were driven by PW-1 to his house; that A-1 and
A-2 reached the house of the deceased, pelted stones, assaulted
and forcibly drove back their cows have been clearly established.
With this part of the occurrence, it is appropriate to connect the
real genesis of the animosity, i.e., Dhanamma with whom A-1
had an illicit relationship and she was sent to Bangalore. P.W.1
as well as PWs-3, 4, 5 and 10, have categorically deposed about
this aspects. In the cross-examination at the instance of A-1 and
A-2 there was not even a proper suggestion to PW-1 in that
regard. As far as PW-4 is concerned, there is further assertion in
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the cross-examination that there was illicit intimacy between A-1
and Dhanamma which hurt the feelings of the family. Similar is
the evidence of other witnesses. To destroy the said aspect of the
evidence, it was suggested that as a marriage alliance broke
between the daughter of Dhanamma and another, she was sent
to Bangalore. The core part of the testimony has really not been
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shaken. Thus, the genesis for the cavil and the subsequent
disputes have been established beyond any reasonable doubt.
19. Coming to the incident on 25.9.2002, it is in the evidence of
PW-1 that at about 11.00 a.m., while the deceased, he and his
mother were at their residence, A-1 and A-2 came armed with
weapons and trespassed into the house. A-1 and A-2 dragged
the deceased and A-1 assaulted the deceased with an iron rod on
his head, neck and all parts of the body. He has admitted that A-
3 Sivaram was a distant cousin and no role has been ascribed to
him in the previous occurrence. It is also in his testimony that
A-3 had not gone near the deceased.
20. PW-2, another eye witness to the occurrence, has testified
that A-1 had assaulted the deceased with the iron rod on the
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head, chest and other parts of his body. She has not ascribed
any role to accused No. 3.
21. PW-3 is the wife of the deceased. She has categorically
deposed that A-1 had assaulted her husband. She has
graphically stated the active role played by A-2.
22. PW-4, who is another injured witness, has deposed about
the assault by A-1 and the beatings by A-2 to other injured
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persons who intervened. Similar is the evidence of other injured
eye witnesses. Additionally, the earlier testimony has received
corroboration from the medical evidence in material particular.
23. Now, we shall proceed to dwell with the criticism on the
base of which the case of the prosecution is sought to be
demolished. The learned counsel for the appellant would submit
that the injuries sustained by the accused have not been
explained. On a perusal of the evidence of PW-20, the
Investigating Officer, it appears that when he arrested A-1 and
A-2, there were certain injuries on their person and they stated
that they had received the injuries at the hands of the deceased.
It is worth noting that the injuries are superficial in nature, the
accused were not sent for medical examination and further there
is no suggestion whatsoever as regards the injuries sustained by
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them to any of the witnesses. The story built up as regards the
fight between the two groups does not remotely appeal to
common sense and, more so, in the absence of any evidence, it is
like building a castle in Spain. Quite apart from the above, non-
explaining of injuries of the accused persons is always not fatal
to the case of the prosecution. In this context, we may usefully
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1
refer to Sri Ram v. State of M.P . wherein it has been held that
mere non-explanation of the injuries by the prosecution may not
affect the prosecution case in all cases and the said principle
applies to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested and so probable,
consistent and creditworthy that it far outweighs the effect of the
omission on the part of the prosecution to explain the injuries.
Hence, we repel the said submission of the learned counsel for
the appellants.
24. The second submission of the learned counsel for the
appellant is that all the witnesses, being relatives, are interested
witnesses. The occurrence in part took place inside the house
and the rest of it slightly outside the premises of the deceased.
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Under these circumstances, the family members and the close
relatives are bound to be the natural witnesses. They intervened
and sustained injuries. Their sustaining of injuries has got
support from the ocular evidence as well as the medical evidence.
The same has been dislodged and if we allow ourselves to say so,
not even a fragile attempt has been made to dislodge the same.
1
(2004) 9 SCC 292
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By no stretch of imagination, it can be said that they are chance
witnesses. In the obtaining factual matrix, they are the most
natural witnesses. In this context, we may refer with profit the
2
decision of this Court in Dalip Singh v. State of Punjab ,
wherein Vivian Bose, J., speaking for the Court, observed as
follows: -
“We are unable to agree with the learned
Judges of the High Court that the testimony of
the two eye-witnesses requires corroboration.
If the foundation for such an observation is
based on the fact that the witnesses are
women and that the fate of seven men hangs
on their testimony, we know of no such rule.
If it is grounded on the reason that they are
closely related to the deceased we are unable
to concur. This is a fallacy common to many
criminal cases and one which another Bench
of this Court endeavoured to dispel in
Rameshwar v. The State of Rajasthan (1952)
SCR 377 at p. 390 = (AIR 1952 SC 54 at page
59).”
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In the said case, it was further observed that a witness is
normally to be considered independent unless he or she springs
from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily, a close
2
AIR 1953 SC 364
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relative would be the last to screen the real culprit and falsely
implicate an innocent person. It is true that when feelings run
high and there is personal cause for enmity, there is a tendency
to drag in an innocent person against whom a witness has a
grudge along with the guilty, but foundation must be laid for
such a criticism and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
3
25. In Masalti v. State of U.P. , it has been ruled that
normally close relatives of the deceased would not be considered
to be interested witnesses who would also mention the names of
the other persons as responsible for causing injuries to the
deceased.
26. In Hari Obula Reddi and others v. The State of Andhra
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4
Pradesh , a three-Judge Bench has held that evidence of
interested witnesses is not necessarily unreliable evidence. Even
partisanship by itself is not a valid ground for discrediting or
rejecting sworn testimony. It cannot be laid down as an
invariable rule that interested evidence can never form the basis
of conviction unless corroborated to a material extent in material
3
AIR 1965 SC 202
4
AIR 1981 SC 82
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particulars by independent evidence. All that is necessary is that
the evidence of interested witnesses should be subjected to
careful scrutiny and accepted with caution. If on such scrutiny,
the interested testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a conviction
thereon.
5
27. In Kartik Malhar v. State of Bihar , it has been opined
that a close relative who is a natural witness cannot be regarded
as an interested witness, for the term ‘interested’ postulates that
the witness must have some interest in having the accused,
somehow or the other, convicted for some animus or for some
other reason.
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28. In Pulicherla Nagaraju alias Nagaraja Reddy v. State
6
of Andhra Pradesh , while dealing with the liability of interested
witnesses who are relatives, a two-Judge Bench observed that it
is well settled that evidence of a witness cannot be discarded
merely on the ground that he is either partisan or interested or
close relative to the deceased, if it is otherwise found to be
5
(1996) 1 SCC 614
6
AIR 2006 SC 3010
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trustworthy and credible. The said evidence only requires
scrutiny with more care and caution, so that neither the guilty
escapes nor the innocent is wrongly convicted. If on such careful
scrutiny, the evidence is found to be reliable and probable, then
it can be acted upon. If it is found to be improbable or
suspicious, it ought to be rejected. Where the witness has a
motive to falsely implicate the accused, his testimony should
have corroboration in regard to material particulars before it is
accepted.
29. Tested on the anvil and touchstone of the aforesaid
principles, we find that the evidence of the injured witnesses who
are close relatives to the deceased have really not embellished or
exaggerated the case of the prosecution. They are the most
natural witnesses and there is nothing on record to doubt their
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presence at the place of occurrence. By no stretch of
imagination, it can be stated that the presence of the said
witnesses at the scene of the crime and at the time of occurrence
was improbable. Their version is consistent and nothing has
been suggested to bring any kind of inherent improbabilities in
their testimonies.
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30. The learned counsel for the appellant has endeavoured hard
to highlight certain discrepancies pertaining to time, situation of
the land, number of persons, etc., but in our considered opinion,
they are absolutely minor in nature. The minor discrepancies on
trivial matters not touching the core of the matter cannot bring
discredit to the story of the prosecution. Giving undue
importance to them would amount to adopting a hyper-technical
approach. The Court, while appreciating the evidence, should
not attach much significance to minor discrepancies, for the
discrepancies which do not shake the basic version of the
prosecution case are to be ignored. This has been so held in
7
State of U.P. v. M.K. Anthony ; Appabhai and another v. State
8
of Gujarat ; Rammi alias Rameshwar v. State of Madhya
9 10
Pradesh ; State of H.P. v. Lekh Raj and another ; Laxman
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11 12
Singh v. Poonam Singh and Dashrath Singh v. State of U.P.
No evidence can ever be perfect for man is not perfect and man
lives in an imperfect world. Thus, the duty of the court is to see
with the vision of prudence and acceptability of the deposition
regard being had to the substratum of the prosecution story. In
7
AIR 1985 SC 48
8
AIR 1988 SC 696
9
AIR 1999 SC 3544
10
(2000) 1 SCC 247
11
(2004) 10 SCC 94
12
(2004) 7 SCC 408
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this context, we may reproduce a passage from the decision of
this Court in State of Punjab v. Jagir Singh Baljit Singh and
13
Karam Singh , wherein H.R. Khanna, J., speaking for the
Court, observed thus:-
“A criminal trial is not like a fairy tale
wherein one is free to give flight to one’s
imagination and phantasy. It concerns itself
with the question as to whether the accused
arraigned at the trial is guilty of the crime with
which he is charged. Crime is an event in real
life and is the product of interplay of different
human emotions. In arriving at the conclusion
about the guilt of the accused charged with the
commission of a crime, the court has to judge
the evidence by the yardstick of probabilities,
its intrinsic worth and the animus of
witnesses. Every case in the final analysis
would have to depend upon its own facts.
Although the benefit of every reasonable doubt
should be given to the accused, the courts
should not at the same time reject evidence
which is ex facie trustworthy on grounds
which are fanciful or in the nature of
conjectures.”
JUDGMENT
31. In view of our aforesaid analysis, we are unable to accept
the submission of the learned counsel for the appellant that the
evidence of the eye witnesses should be rejected solely on the
ground that they are close relatives and interested witnesses.
13
AIR 1973 SC 2407
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32. The next plank of submission which has been ambitiously
and zealously pyramided by the learned counsel for the appellant
is that the appellant has been erroneously convicted with the aid
of Section 34 of the IPC. It is worth noting that the High Court
has acquitted A-3 on the ground that he did not share the
common intention. Certain distinct features have been
emphasised by the High Court. They are (i) he is a distant cousin
of A-1 and A-2 and belongs to a different village; (ii) he had no
role to play with the genesis of the occurrence and the
subsequent cavil; (iii) he had neither participated in the dragging
of the deceased nor did he assault on his body; (iv) he was at a
distance (v) A-1 and A-2 are real brothers and they have definite
roles as regards the previous incident; and (vi) A-2 was
intervened by the witnesses from assaulting the deceased. The
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material evidence on record clearly shows that A-1 and A-2 had
threatened the deceased with dire consequences. Though they
had gone to the elders on 24.9.2002 and the Panchayat was to be
convened on 26.9.2002, yet on 25.9.2002 at 11.00 a.m., armed
with lethal weapons, they went to the house of the deceased.
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14
33. In Ram Tahal and others v. The State of U.P. , while
dealing with the applicability of Section 34 of the IPC, a two-
Judge Bench observed there is no doubt that a common intention
should be anterior in time to the commission of the crime
showing a pre-arranged plan and prior concert, and though it is
difficult in most cases to prove the intention of an individual, yet
it has to be inferred from the act or conduct or other relevant
circumstances of the case. This inference can be gathered by the
manner in which the accused arrived on the scene and mounted
the attack, the determination and concert with which the beating
was given or the injuries caused by one or some of them, the acts
done by others to assist those causing the injuries, the concerted
conduct subsequent to the commission of the offence, for
instance, that all of them had left the scene of the incident
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together, and other acts which all or some may have done as
would help in determining the common intention. In other
words, 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.
14
AIR 1972 SC 254
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26
15
34. In Rajesh Govind Jagesha v. State of Maharashtra , a
two-Judge Bench has held that the existence of common
intention can be inferred from the attending circumstances of the
case and the conduct of the parties. No direct evidence of
common intention is necessary. For the purpose of common
intention, even the participation in the commission of the offence
need not be proved in all cases.
35. In Bishna alias Bhiswadeb Mahato and others v. State of
16
West Bengal , it has been held that for the purpose of attracting
Section 34 of the IPC, specific overt act on the part of the accused
is not necessary. He may even wait and watch. Inaction on the
part of an accused may sometime go a long way to achieve a
common intention or an object with others.
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17
36. In Manik Das and others v. State of Assam , it has been
held as follows:-
“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
15
AIR 2000 SC 160
16
AIR 2006 SC 302
17
AIR 2007 SC 2274
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27
common intention animating the accused
leading to the doing of a criminal act in
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 be difficult to distinguish
between acts of individual members 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. Pulla Reddy and Ors. v. State of
Andhra Pradesh (AIR 1993 SC 1899). Section
34 is applicable even if no injury has been
caused by the particular accused himself.
For applying Section 34 it is not necessary to
show some overt act on the part of the
accused.”
37. Coming to the case at hand, the appellant had an inimical
relationship with the deceased and his family as the previous
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occurrences would show. Despite a consensus being arrived at
that there would be a panchayat on 26.9.2002, they, armed with
deadly weapons, went to the house of the deceased and dragged
the deceased. The previous meeting of minds with pre-
arranged plan or prior concert as has been held in number of
authorities is difficult to establish by way of direct evidence.
They are to be inferred from the conduct and circumstances. As
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is evincible, the weapons they carried were lethal in nature. The
deceased was absolutely helpless and not armed with any
weapon. It was most unexpected on their part as normally it was
expected that there would be a panchayat on the next day. The
two brothers, A-1 and A-2, dragged the deceased outside the
house and A-1 gave the blows. True it is that A-2 did not give the
blow, but his participation from the beginning till the end would
clearly reveal that he shared the common intention with his
brother. He had assaulted the other witnesses who had tried to
intervene. Thus, though he might not have inflicted the injury,
yet it can safely be concluded that he shared the common
intention making him jointly liable.
38. In view of our preceding analysis, we do not find any merit
in this appeal and, accordingly, the same stands dismissed.
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............................................J.
[DR. B.S. Chauhan]
............................................J.
[Dipak Misra]
New Delhi;
May 15, 2012.
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