REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2067 OF 2008

[arising out of SLP (Criminal) No. 3687 of 2008]

NAGARAJA … APPELLANT

VERSUS

STATE OF KARNATAKA … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Appellant (Accused No.3) along with Suresh (Accused No.1) and

Ranganatha (Accused No. 2) was charged with for commission of offence

punishable under Section 302 read with Section 34 of the Indian Penal Code

(for short, ‘IPC’) on the accusation that they had due to previous ill-will, in

furtherance of their common intention, caused the death of one Venkatesh

(‘the deceased’). Accused No. 1 assaulted the deceased with an iron rod on

his head and other parts of the body and accused Nos. 2 and 3 assaulted him

with fists and kicks and, thus, caused hurt and voluntarily caused his death

and thereby committed an offence punishable under Section 302 read with

Section 34 of the IPC.

3.A wine shop commonly known as ‘Nandi Wines’ is situated at Nandi

village behind Yoganandeshwara Temple. Appellant was an employee of

the said shop. Accused No.2 was supplier of wine to the said shop and

accused No. 1 was a customer thereof.

Deceased was an agriculturist. He ordinarily used to return home at

7:00 p.m. However, on the date of incident, i.e., on 13.10.2000, he did not

return to his house.

P.W.1- Munegowda, the brother of the deceased, on being asked by

his mother at about 8.30 p.m. went out to search for him and after finding

him sitting in the ‘circle’, returned home. But the deceased did not come

back.

Again at about 10’O clock in the night, P.W. 1 went in search for

him. When he reached near ‘Nandi wines’, he found the accused persons

were quarrelling with the deceased. Accused No. 1 assaulted the deceased

with an iron rod on the back of his head; accused no. 3 – appellant herein,

kicked him and accused no. 2 gave fist blows on his face. Deceased was

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found to have sustained injuries. He was taken to Government Hospital of

Chickballapur. The Doctor sent information thereabout to P.W.13

Thimarayappa, who was working as Head Constable and was the Station

House Officer of Chikaballapur Rural Police Station, at the relevant time at

12.00 midnight on 13.10.2000. He immediately went to the Hospital and

recorded the statement of P.W.1. He returned to the police station and

registered the said complaint in Crime No. 230/2000, for the offence

punishable under Sections 323, 324 and 307 of the IPC; he prepared FIR

and sent the same to the jurisdictional court. Thereafter, as advised by the

Doctor, deceased was taken to NIMHANS at Bangalore. He expired on the

next day.

4.The First information Report was lodged by the P.W.1, the brother of

the deceased. Another witness Munivenkategowda claiming to be an

eyewitness, examined himself as P.W. 2. Manjunatha (P.W. 3) and K.

Srinivas (P.W. 7) were also present at the time of the incident. A general

allegation was made that there was some previous ill-will between the

parties.

5.Indisputably, the deceased used to take drink occasionally. He

(P.W.1) could not state the reason as to whether the accused persons had

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any animosity with the deceased. He admitted that he had not lodged any

complaint with regard to the earlier incident.

6.The learned trial judge convicted all the accused persons for

commission of an offence punishable under Section 302 read with Section

34 of the IPC.

7.They preferred an appeal before the High Court. By reason of the

impugned judgment, the same has been dismissed.

8.This Court issued a limited notice only in respect of the present

appellant with regard to the nature of offence.

9.Mr. Basava Prabhu S. Patil, learned Counsel in support of this appeal

raised the following contentions:

i.The learned single judge as also the High Court failed to

consider that the prosecution witnesses did not make any

statement as regards the formation of any common intention

amongst the accused so as to hold them guilty for commission

of offence punishable under Section 302 read with Section 34

of the IPC.

ii.All the witnesses merely stated that the appellant had only

kicked the deceased and he was wholly unarmed.

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iii.The recovery of an iron rod is said to have been made only

from accused No. 1 and not from the other accused.

iv.Prosecution has failed to prove any tangible motive and only a

general statement was made that there was some previous ill-

will between the parties.

v.The accused persons being not related, cannot be said to have

any common intention to cause the said offence.

10.Ms. Anitha Shenoy, learned counsel appearing on behalf of the State,

on the other hand, would contend that the common intention must be held to

have been formed at the spur of the moment. It was urged that as both the

courts below have arrived at a concurrent finding of fact in regard thereto

the impugned judgment should not be interfered with. According to the

learned counsel, the accused were not strangers but employees of the same

Wine Shop and, thus, they must be presumed to have acted in concert. It

was furthermore submitted that they came together and ran away together

which demonstrates that they had a common intention to kill the deceased.

11.The High Court in its impugned judgment proceeded on the basis that

all the accused persons were employees of Nandi Wine Stores. However,

the prosecution itself in support of its case examined Bachegowda (P.W. 4),

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the owner of Nandi Wine Stores, who in his deposition had stated that only

appellant was working with him as a cashier, whereas accused No.1 was a

customer and the accused No. 2 was a supplier.

He was not present at the place of occurrence on the said date. He

was not a witness to the occurrence. Prosecution has not brought on records

any evidence to show that the accused persons had a common intention to

commit the murder of deceased. It has not been shown that even otherwise

they were bearing any common grudge against the deceased. Evidently,

both the accused No. 1 and the deceased were customers of the said Wine

shop. They might have picked up some quarrel. At the time when the

occurrence took place, appellant being an employee of the said shop the

question of his coming to the place of occurrence together with the other

accused did not arise. The evidence of prosecution witnesses, particularly

P.Ws. 1 and 2, on which both the courts below have relied upon, even if

taken at their face value, would merely show that it was the accused No. 1

who had assaulted the deceased with an iron rod; appellant was said to have

only kicked the deceased.

12.A general statement was made that about a month prior to the

incident, when the deceased had gone to Nandi Wine shop, a quarrel

between him and the accused persons took place. According to P.W. 1, at

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that point of time, accused persons had threatened the deceased. From

whom he had heard thereabout has not been disclosed.

13.Indisputably, P.W.1’s his house was situated at about one furlong

from the place of occurrence. He came to the place of occurrence in search

of his brother. He failed to bring any material on record as to on what basis

he arrived at the conclusion that accused persons had formed a common

intention.

14.Ms. Shenoy may also not be correct in contending that all the accused

persons ran way together. P.W. 2 deposed that they went in different

directions. Appellant, according to P.W.1, ran towards the Wine shop.

Thus, it is not a case where all the accused came together and ran away

together. A bald statement said to have been made by him that the accused

No.1 while assaulting the deceased had exhorted that they would not leave

him till he died, cannot be a ground to hold that the same by itself is

demonstrative of the fact that appellant - accused No. 3 also had a similar

intention. Admittedly, no weapon was recovered at the instance of

appellant. He was wholly unarmed. On the basis of the voluntary statement

made by the accused No.1 alone, an iron rod was recovered.

15.We are not concerned herein as to whether the said iron rod was the

weapon of assault. Having regard to the quality of evidence that the

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prosecution had led, in our opinion, it is difficult to come to the conclusion

that all the accused persons had a common intention to commit the murder

of the deceased.

For invoking the provisions of Section 34 of the IPC, at least two

factors must be established; (1) common intention, and (2) participation of

the accused in the commission of an offence.

16.For the aforementioned purpose although no overt act is required to

be attributed to the individual accused but then before a person is convicted

by applying the doctrine of vicarious liability not only his participation in

the crime must be proved but presence of common intention must be

established. It is true that for proving formation of common intention,

direct evidence may not be available but then there cannot be any doubt

whatsoever that to attract the said provision, prosecution is under a bounden

duty to prove that participants had shared a common intention. It is also

well settled that only the presence of the accused by itself would not attract

the provisions of Section 34 of the I.P.C. Other factors should also be taken

into consideration for arriving at the said conclusion. Accused persons were

not related to each other; they did not have any family connection; they have

different vocations. It has not been established that they held any common

animosity towards the deceased.

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A general and vague statement made by one of the prosecution

witnesses would not prove motive. It may be true that the common

intention may develop suddenly at the spot but for the said purpose, the

genesis of the occurrence should have been proved. The prosecution has

failed to establish why and how a quarrel has started. The prosecution even

has not proved as to why the accused No. 1 was carrying the iron rod even

before the quarrel with the deceased started or as to whether the appellant

was aware of this. It has also not been shown that he along with other

accused persons came to assault the deceased. Appellant ordinarily was

expected to be at his work place only. His presence at the spot, therefore,

has sufficiently been explained.

17.In Rishideo Pande vs. State of Uttar Pradesh [AIR 1955 SC 331], this

Court held:

“2 The main point urged by Sri Umrigar who

appears in support of this appeal is that Section 34,

I. P. C., has been wrongly applied to the facts of

this case. The meaning, scope and effect of

Section 34 have been explained on more than one

occasion by the Privy Council and by this Court. It

will suffice only to refer to the last decision of this

Court in the case of -- 'Pandurang v. The State of

Hyderabad', AIR 1955 SC 216 (A) pronounced on

3-12-1954. It is now well settled that the common

intention referred to in Section 34 presupposes

prior concert, a pre-arranged plan, i.e., a prior

meeting of minds. This does not mean that there

must be a long interval of time between the

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formation of the common intention and the doing

of the act. It is not necessary to adduce direct

evidence of the common intention. Indeed, in

many cases it may be impossible to do so. The

common intention may be inferred from the

surrounding circumstances and the conduct of the

parties. Sri Umrigar submits that there is nothing

on the record from which a common intention on

the part of Rain Lochan and the appellant to

murder Sheomurat can be properly inferred.”

18.Yet again in Chikkarange Gowda and Ors. v. State of Mysore [AIR

1956 SC 731], this Court held:

“10. So far back as 1873, in Queen v. Sabed Ali

20 Suth W R (Cr) 5 (A), it was pointed out that

Section 149 did not ascribe every offence which

might be committed by one member of an

unlawful assembly while the assembly was

existing, to every other member. The section

describes the offence which is to be so attributed

under two alternative forms: (1) it must be either

an offence committed by a member of the

unlawful assembly in prosecution of the common

object of that assembly; or (2) an offence such as

the members of that assembly knew to be likely to

be committed in prosecution of that object.

In Barendra Kumar Ghosh v. Emperor, 52 Ind App

40 : (AIR 1925 PC 1) (B) the distinction between

Sections 149 and 34, Penal Code was pointed out.

It was observed that Section 149 postulated an

assembly of five or more persons having a

common object, namely, one of those objects

named in Section 141, and then the doing of acts

by members of the assembly in prosecution of that

object or such as the members knew were likely to

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be committed in prosecution of that object. It was

pointed out that there was a difference between

common object and common intention ; though the

object might be common, the intention of the

several members might differ. The leading feature

of Section 34 is the element of participation in

action, whereas membership of the assembly at the

time of the committing of the offence is the

important element in Section 149. The two

sections have a certain resemblance and may to a

certain extent overlap, but it cannot be said that

both have the same meaning.”

19.Yet again in Mohan Singh v. State of Punjab [AIR 1963 SC 174],

this Court held:

“13. That inevitably takes us to the question as to

whether the appellants can be convicted under s.

302/34. Like s. 149, section 34 also deals with

cases of constructive criminal liability. It provides

that where a criminal act is done by several

persons in furtherance of the common intention of

all, each of such persons is liable for that act in the

same manner as if it were done by him alone. The

essential constituent of the vicarious criminal

liability prescribed by s. 34 is the existence of

common intention. If the common intention in

question animates the accused persons and if the

said common intention leads to the commission of

the criminal offence charged, each of the persons

sharing the common intention is constructively

liable for the criminal act done by one of them.

Just as the combination of persons sharing the

same common object is one of the features of an

unlawful assembly, so the existence of a

combination of persons sharing the same common

intention is one of the features of s. 34. In some

ways the two sections are similar and in some

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cases they may overlap. But, nevertheless, the

common intention which is the basis of s. 34 is

different from the common object which is the

basis of the composition of an unlawful assembly.

Common intention denotes action-in-concert and

necessarily postulates the existence of a pre-

arranged plan and that must mean a prior meeting

of minds. It would be noticed that cases to which

s. 34 can be applied disclose an element of

participation in action on the part of all the

accused persons. The acts may be different; may

vary in their character, but they are all actuated by

the same common intention. It is now well-settled

that the common intention required by s. 34 is

different from the same intention or similar

intention.”

20.Even a past enmity by itself, in our opinion, may not be a ground to

hold for drawing any inference of formation of common intention amongst

the parties.

21.We may, however, hasten to add that the question as to whether

common intention was formed for commission of an offence or not would

depend upon the facts of each case. {See Nishan Singh v. State of Punjab

[2008 (3) SCALE 416]}

22.Recently in Bhanwar Singh & ors. vs. State of M.P.[2008 (7) SCALE

633], this Court held:

“45.It would also be instructive to look at the

following observations made in Gurdatta Mal v.

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State of UP [AIR 1965 SC 257], in the context of

Sections 34 and 149 IPC:-

“It is well settled that Section 34 of

the Indian Penal Code does not create

a distinct offence: it only lays down

the principle of joint criminal

liability. The necessary conditions for

the application of Section 34 of the

Code are common intention to

commit an offence and participation

by all the accused in doing act or acts

in furtherance of that common

intention. If these two ingredients are

established, all the accused would be

liable for the said offence… In that

situation Section 96 of the Code says

that nothing is an offence which is

done in the exercise of the right of

private defence. Though all the

accused were liable for committing

the murder of a person by doing an

act or acts in furtherance of the

common intention, they would not be

liable for the said act or acts done in

furtherance of common intention, if

they had the right of private defence

to voluntarily cause death of that

person. Common intention, therefore,

has relevance only to the offence and

not to the right of private defence.

What would be an offence by reason

of constructive liability would cease

to be one if the act constituting the

offence was done in exercise of the

right of private defence.”

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23.For the aforementioned reasons, we are of the opinion that appellant

cannot be held guilty for commission of offence punishable under Section

302 read with Section 34 of the IPC. The very fact that the appellant was

unarmed and must be presumed to have been performing his duties at his

place of employment, it cannot be said that he had formed any kind of

common intention at the spot to murder the deceased. Some incident might

have taken place and he might have formed a common intention to teach a

lesson to the deceased. He might be guilty for commission of offence

punishable under Section 323 of the IPC and not for commission of offence

punishable under Section 302 read with Section 34 of the IPC. He is

sentenced to the period already undergone.

The appeal is allowed accordingly. The appellant is on bail. The bail

bonds shall stand discharged.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Cyriac Joseph]

New Delhi;

December 18, 2008

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