IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1657 OF 2007
Arun ......Appellant
Versus
State by Inspector of Police,
Tamil Nadu. ......Respondent
JUDGMENT
B.Sudershan Reddy, J.
1. The appellant has preferred this appeal under Section
379 of the Code of Criminal Procedure read with provisions
of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 impugning the judgment and order of
the Madurai Bench of Madras High Court in Criminal Appeal
(MD) No. 279 of 2005 whereby the High Court reversed the
judgment of acquittal against the appellant, who was tried
along with seven other co-accused, recorded by the
Additional Sessions Judge, (Fast Track No. 2) Trichirapalli in
Sessions Case No. 149 of 2004. The High Court accordingly
convicted the appellant for the offence punishable under
Section 302 read with 34 of the Indian Penal Code (IPC) and
sentenced to undergo imprisonment for life.
2. The prosecution case, in brief, is that Venkatesan
Seshastripuram (the deceased) was living together with his
wife Sripriya (PW-1), mother Padmaja (PW-2) and other
family members at No. 15/1A, Seahadri Road, Srirangam.
The deceased was in the business of pharmaceuticals. On
22.10.2003, at about 8.45 p.m. the deceased came back to
his house from the work in drenched condition. He took out
the cash from his shirt pocket, kept the same on the sofa
and went to the computer room and after changing clothes
took his meal. After having food the deceased along with his
wife (PW-1) and mother (PW-2) were watching television
programme. At that time two men came and stood at the
entrance of the house. The deceased got up from his chair
and moved towards them asking as to why they have
entered the house. Immediately the person who was
standing to the right of P.W. 1 shot the deceased with the
gun. The deceased fell down on the floor. Thereafter, the
two men ran away. P.W. 1 and P.W. 2 raised hue and cry.
P.W.1 went to her senior father-in-law’s house and informed
Vamsidhar (PW-3) about the incident. P.W. 3 immediately
with the help of P.W. 1 took the deceased to Srirangam
Dhanvandhri Hospital. Doctor Murali (PW-17) gave first aid
treatment to the deceased and having regard to the
grievous nature of injuries advised to take the victim to the
Kavery Medical Centre for further treatment. The victim
was accordingly taken to the Kavery Medical Centre. PW
3 informed the incident to the Srirangam Police Station over
phone. Sub-inspector Bharth Srinivasan (PW-25) attached to
Srirangam Police Station based on the complaint of
Sripriya (PW-1) issued first information report and
registered a case in crime No. 724 of 2003 under Sections
452, 307 IPC and Section 3 read with 25 of the Indian
Arms Act.
3. After completion of the investigation, the police filed
charge sheet under Sections 120-B, 398, 449, 302/34 IPC
and section 3 read with 25 (1-B) (a) of the Indian Arms Act
against the appellant and seven other co-accused. The
prosecution in all examined 26 witnesses (PW-1 to PW-26)
and got marked 36 documents in evidence. The prosecution
also produced material objects which were marked as M.O.
1 to 26. The statement of the accused appellant under
Section 313 Cr.P.C. was recorded in which he abjured the
guilt and claimed trial.
4. It may also be noted that according to the
prosecution, there was a conspiracy amongst A-1 to A-8
and pursuant to the same the appellant (A-5) and A-4
attempted to commit robbery and in furtherance of their
common intention A-4 shot the deceased.
5. The learned Sessions Judge upon appreciation of
evidence available on record found A-4 guilty of the offence
punishable under Section 302 IPC and the High Court
confirmed the same in appeal. He did not prefer any further
appeal before this Court. So far as the appellant is
concerned, the Sessions Judge found him guilty of the
offences punishable under Section 398 and 457 (1) IPC and
found him not guilty of the charge under Section 120-B,
449, 302 read with 34 IPC as well as under Section 3 read
with 25 (1-B) (a) of the Indian Arms Act. Rest of the
accused were acquitted of all the charges. The State as well
as the appellant preferred appeals against the verdict of the
Sessions Judge.
6. Hence, this appeal by the appellant challenging the
correctness of the judgment of the High Court convicting
him for the offence punishable under Section 302 read with
34 IPC.
7. Shri S. B. Sanyal, learned senior counsel appearing for
the appellant submitted the High Court committed serious
error in reversing the well considered judgment of the
Sessions Court without properly appreciating the evidence
available on record. There is no specific allegation as such
made against the appellant or any evidence to establish that
any criminal act was done by him in furtherance of common
intention. There being total absence of evidence the
conviction of the appellant with the aid of Section 34 is
unsustainable. The learned senior counsel further submitted
that there is no evidence of any pre-meditation between
appellant and A-4 and therefore, the appellant cannot be
convicted under Section 302 with the aid of Section 34 IPC.
It was submitted that the High Court committed a serious
error in coming to the conclusion that the murder was the
intention of both the appellant as well as A-4 to enter into
the premises of the deceased. The submission was that this
view taken by the High Court is totally contrary to the case
set up by the prosecution. The learned counsel further
submitted that the High Court all together made out a
different case contrary to the prosecution story of robbery to
enter into the house. The High Court without any evidence
found that the appellant along with A-4 trespassed into the
house of the deceased with an intention to kill the deceased.
8. The learned counsel for the State supported the
judgment of the High court.
9. We have considered the submissions made during the
course of hearing of the appeal and perused the evidence
available on record.
10. Before we proceed to deal with the submissions it may
be necessary to recapitulate the findings of the High Court
that appellant did not enter the house of the deceased to
commit robbery and accordingly reversed the findings of the
trial court. The State did not prefer any further appeal so
far as that finding recorded by the High Court is concerned.
11. The High Court held that even though pre-meditation
between the appellant and A-4 has not been proved but the
very fact, the appellant entered the premises along with A-4
armed with pistol itself establishes that he entered the
premises in furtherance of common intention to murder the
deceased.
12. In the circumstances, two questions arise for our
consideration, namely: whether the appellant entered the
premises armed along with A-4, who killed the deceased?
Secondly, even if he entered the premises armed, will that
by itself establish common intention to commit murder?
13. There are two eye witnesses to the occurrence. P.W. 1
is none other than the wife of the deceased. She stated in
her evidence that she along with her husband and mother-
in-law after finishing her evening meal was watching
Television in the house. At that time A-4 and A-5(later
identified) having entered the house stood at the entrance.
The deceased on seeing both of them moved towards them
asking them as to what they wanted and immediately A-4
shot her husband with a pistol in his hand. The bullet
injured on the left side rib area. Thereafter both the
appellant and A-4 fled away from the scene of occurrence.
This is what she stated even in the first information report.
14. PW-2 while narrating the incident more or less gave
the same version but however, stated that both the
appellant as well as A-4 were carrying pistols. But in the
cross-examination she expressed her ignorance to whether
both of them were carrying lethal weapons.
15. PW-26, the Investigating Officer in his evidence
admitted that PW-2 did not make any statement during
inquiry that both the persons who had entered her house
were carrying guns. In the circumstances it becomes highly
doubtful as to whether the appellant herein was also
carrying a pistol and entered into the house of the
deceased.
16. The trial court upon appreciation of the evidence found
that the appellant did not trespass into the house of the
deceased along with A-4 with intention to kill and
accordingly acquitted the appellant of the charge under
Section 302 read with 34 IPC. The High Court reversing the
findings of the trial court found the appellant guilty of the
charge on the basis that the appellant along with A-4
trespassed into the house of the deceased in furtherance of
their common intention to kill the deceased. That is not the
case of the prosecution.
17. The case of the prosecution was that the appellant
along with A-4 with an intention to commit the dacoity had
trespassed into the house of the deceased, the deceased
had resisted them and out of fear of being over powered A-4
shot the deceased with pistol due to which the deceased
sustained grievous injuries leading to his ultimate death.
There is no allegation against the appellant that he along
with A-4 trespassed into the house of the deceased in
furtherance of their common intention to commit murder of
the deceased. The common intention according to
prosecution was to commit dacoity which is held not proved.
18. It is true that appellate court has full power to review,
re-appreciate and re-consider the evidence upon which the
order of acquittal is founded and its power to review and
re-appreciate the evidence and come to its own conclusion
is not controlled by any provisions of the Code of Criminal
Procedure, 1973. This Court in more than one case
cautioned that an appellate court, however, must always
bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of innocence
is further reinforced, reaffirmed and strengthened by the
trial court. If two reasonable views are possible on the
basis of the evidence on record and one favourable to the
accused has been taken by the trial court, it ought not to be
disturbed by the appellate court. [ See: Chandrappa Vs.
State of Karnataka (2007) 4 SCC 415].
19. In the present case the High Court in our considered
opinion ought not to have disturbed the order of acquittal
recorded by the trial court exonerating the appellant of the
charge under Section 302 read with 34 IPC. There is no
evidence available on record that appellant along with A-4
entered into the house of the deceased armed with pistol.
The evidence of PW-2 that the appellant was also armed
with pistol is highly doubtful for she admitted in the cross-
examination stating that she was not sure as to whether
both the accused were carrying weapon. The first
information report and evidence of PW-1 and Investigating
Officer, PW-26 do not support the half-hearted and vague
statement of P.W-2. It would be unsafe to rely upon the
evidence of PW-2.
20. Second question that arises for our consideration that
even if the appellant entered the premises armed, will that
by itself establish common intention to commit murder? Is
there any evidence available on record that a common
intention developed at the spur of moment to commit the
offence of murder?
21. In the present case, the appellant alone was charged
for the offence punishable under Section 302 read with 34
IPC and whereas A-4 has been charged for the offence
punishable under Section 302 IPC. Section 34 IPC which is
nothing but rule of evidence provides that when 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
burden lies on prosecution to prove that actual participation
of more than one person for commission of criminal act was
done in furtherance of common intention of all at a prior
concert. However, it is not required for the prosecution to
establish that there was a prior conspiracy or pre-
meditation, common intention can be found in the course of
occurrence. In the present case, the question is whether
the appellant shared any common intention and if so, with
whom? Neither there is any charge nor evidence against A-
4 that he committed the murder of the deceased in
furtherance of common intention shared with A-4. The trial
court as well as the appellate court found A-4 guilty for the
offence punishable under Section 302 IPC only. There is no
third person involved with whom the appellant could have
shared common intention. PW-1 and 2 in their evidence did
not attribute any overt or covert act as against the
appellant. No circumstances were brought on record from
which it could be reasonably inferred that the appellant
shared common intention with A-4 and in turn, A-4
committed the murder of the deceased in furtherance of
such common intention. There is no evidence that there
was a prior meeting of mind developed at the spur of
moment and A-4 shot the deceased in furtherance of such
common intention resulting in death.
22. According to the evidence of PW-1 the appellant did
not indulge in any overt or covert act except be present at
the scene of occurrence. It is true that both of them ran
away from the scene of occurrence after A-4 shot the
deceased with a pistol in his hand. Even if it be accepted
that he was armed with a pistol no reasonable inference
could be drawn on the proven facts that he shared common
intention with A-4 to commit the offence of murder.
23. It is well established that commission of a criminal act
by several persons in furtherance of the common intention
of all pre-supposes a prior meeting of mind. The classic
statement of law is to be found in Pandurang, Tukia and
Bhillia v. The State of Hyderabad [(1955) SCR 1083] in
which Bose J. speaking for the Court observed:
“It requires a pre-arranged plan because before
a man can be vicariously convicted for the
criminal act of another, the act must have been
done in furtherance of the common intention of
them a: Mahbub Shah v. King-Emperor
[(1945) L.R. 72 I.A. 148, 153, 154]. Accordingly
there must have been a prior meeting of minds.
Several persons can simultaneously attack a man
and each can have the same intention, namely
the intention to kill, and each can individually
inflict a separate fatal blow and yet none would
have the common intention required by the
section because there was no prior meeting of
minds to form a pre-arranged plan. In a case like
that, each would be individually liable for
whatever injury he caused but none could be
vicariously convicted for the act of any of the
others; and if the prosecution cannot prove that
his separate blow was a fatal one he cannot be
convicted of the murder however clearly an
intention to kill could be proved in his case:
Barendra Kumar Ghosh v. King Emperor
[(1924) L.R.52 I.A. 40, 49] and Mahbub Shah
v. King-Emperor. As their Lordships say in the
latter case, ” the partition which divides their
bounds is often very thin: nevertheless, the
distinction is real and substantial, and if
overlooked will result in miscarriage of justice.”
The plan need not be elaborate, nor is a long
interval of time required. It could arise and be
formed suddenly, as for example, when one man
calls on by-standers to help him kill a given
individual and they, either by their words or their
acts, indicate their assent to him and join him in
the assault. There is then the necessary meeting
of the minds. There is a pre-arranged plan
however hastily formed and rudely conceived.
But pre-arrangement there must be and
premediatated concert. It is not enough, as in
the latter Privy Council case, to have the same
intention independently of each other, e.g., the
intention to rescue another and, if necessary, to
kill those who oppose”.
24. In the present case, there is no evidence of any prior
meeting of minds. We know nothing of what they said or
did before the attack. It is in the evidence that on being
asked by the deceased as to why they entered the house
and as to what they wanted; A-4 immediately shot the
deceased with the pistol in his hand. Obviously, this was an
impulsive act of A-4 and both the courts rightly found that
he was guilty for the offence of committing murder of the
deceased punishable under Section 302 IPC but the High
Court committed a serious error in holding the appellant
vicariously liable for the criminal act of A-4.
It is nowhere suggested that appellant indulged in any
overt or covert act as such based on which any inference
of common intention could be drawn.
25. Section 34 is only a rule of evidence and does not
create a substantive offence. In Barendra Kumar Ghosh
v. King Emperor, AIR 1925 PC 1, the Privy Council has
pointed out:
“Section 34 deals with doing of separate acts,
similar or diverse by several persons, if all are
done in furtherance of a common intention,
each person is liable for the result of them all,
as if he had done them himself.”
26. In Hardev Singh and another v The State of
Punjab [(1975)3 SCC 731)] this Court observed that “the
common intention must be to commit the particular crime,
although the actual crime may be committed by any one
sharing the common intention. Then only others can be
held guilty.” In this case murderous assault on deceased
by A-4 was his individual act. There is no evidence
suggestive of any common intention to commit the murder.
Circumstances are completely lacking compelling us to draw
any inference that A-4 and A-5 together shared common
intention to commit the murder and in furtherance of such
common intention A-4 shot dead the deceased.
27. In Dharam Pal and Ors. v State of Haryana [(AIR
1978 SC 1492)] this Court laid down the test when Section
34 IPC is applicable and held:
“It may be that when some persons start with a
pre-arranged plan to commit a minor offence,
they may in the course of their committing the
minor offence come to an understanding to
commit the major offence as well. Such an
understanding may appear from the conduct of
the persons sought to be made vicariously liable
for the act of the principal culprit or from some
other incriminatory evidence but the conduct or
other evidence must be such as not to leave any
room for doubt in that behalf.
A criminal Court fastening vicarious liability
must satisfy itself as to the prior meeting of the
minds of the principal culprit and his companions
who are sought to be constrictively made liable
in respect of every act committed by the former.
There is no law to our knowledge which lays
down that a person accompanying the principal
culprit shares his intention in respect of every act
which the latter might eventually commit. The
existence or otherwise of the common intention
depends upon the facts and circumstances of
each case. The intention of the principal
offender and his companions to deal with any
person who might intervene to stop the quarrel
must be apparent from the conduct of the
persons accompanying the principal culprit or
some other clear and cogent incriminating piece
of evidence. In the absence of such material,
the companion or companions cannot justifiably
be held guilty for every offence committed by
the principal offender. (emphasis supplied)
28. In Brijlala Pd. Sinha v. State of Bihar [(1998)5
SCC 699] this Court in clear and categorical terms laid
down that “unless a common intention is established as a
matter of necessary inference from the proved
circumstances, the accused persons will be liable for their
individual act and not for the act done by any other person.
For an inference of common intention to be drawn for the
purposes of Section 34, the evidence and the circumstances
of the case should establish, without any room for doubt,
that a meeting of minds and a fusion of ideas had taken
place amongst the different accused and in prosecution of it,
the overt acts of the accused persons flowed out as if in
obedience of the command of a single mind. If on the
evidence, there is doubt as to the involvement of a
particular accused in the common intention, the benefit of
doubt should be given to the said accused person.”
29. There is no dispute with the proposition that the
common intention can develop and manifest itself at the
spur of moment. But the question for consideration is,
whether there is any evidence in the present case to
indicate that in fact such a common intention was developed
between appellant and A-4 and in furtherance of such
shared common intention A-4 committed the murder of the
deceased. The evidence of PW-1 and PW-2 does not
suggest that any such common intention developed on the
spur of moment leading to the murder of deceased by A-4.
In the circumstances, it would be unsafe to convict the
appellant for the offence punishable under Section 302 with
the aid of Section 34 IPC.
30. In Suresh and another v. State of U.P. [(2001)3
SCC 673] this Court after referring to number of its earlier
judgments and the judgments of the Privy Council observed
that ” it is difficult to conclude that a person, merely
because he was present at or near the scene without doing
anything more, without even carrying a weapon and
without even marching alongwith the other assailants,
could also be convicted with the aid of Section 34 IPC for
the offence committed by the other accused.” In the
present case, the FIR shows that at about 9.15P.M. the
appellant and A-4 entered the house and stood there; on
seeing them, the deceased got up from his chair and
moved towards them “asking them who are they”
whereupon A-4 shot the deceased causing bleeding injury
due to which deceased fell down, the appellant and A-4 ran
away towards the street. The contents of the FIR and the
evidence of PW-1 and PW-2 read together make it clear
that the appellant was not armed as erroneously held by the
High Court. In the circumstances, it would be impossible to
draw any inference that A-4 committed murder in
furtherance of common intention shared by the appellant.
In fact, neither there is any charge nor any evidence even
as against A-4 that he shared common intention along with
the appellant to commit murder of the deceased. There
must be more than one person to share common intention
to commit criminal act for attracting the applicability of
Section 34 IPC. It is clear from the evidence that A-4 did not
act conjointly with the appellant in committing the murder.
If he did not act conjointly with the appellant, the appellant
could not have acted conjointly with A-4.
31. On consideration of the evidence and the material
available on record and in the light of the legal principles
referred to hereinabove, it is clear that the accusations
made against the appellant making him constructively liable
for the criminal act of murder committed by A-4 with the aid
of Section 34 IPC were not established. So far as the
present appellant is concerned, there is no evidence
whatsoever available on record to show sharing of any
common intention.
32. We accordingly affirm the judgment of the trial court
acquitting the appellant of the offence punishable under
Section 302 read with Section 34 IPC. Consequently, the
judgment of the High Court convicting the appellant under
section 302 read with Section 34 IPC is set aside. We
however, affirm the conviction of the appellant under
Section 457 (1) IPC. The trial court as well as the High Court
convicted the appellant for the offence punishable under
Section 457 (1) IPC and sentenced to undergo rigorous
imprisonment for a period of 2 years and to pay a fine of Rs.
500/-, in default, to further undergo rigorous imprisonment
for a period of 6 months. No effort has been made before us
challenging the conviction of the appellant under Section
457 (1) IPC. We, accordingly, confirm the conviction and
sentence of the appellant under Section 457 (1) IPC
imposed by the courts below. The appellant however, had
already undergone the sentence. Since there is no appeal
preferred by the State as against the judgment of the High
Court acquitting the appellant of other charges the same is
not interfered with.
33. The appeal is accordingly partly allowed. The appellant
be set at liberty forthwith unless required to be in custody in
connection with any other case.
……………………………………………J.
(Lokeshwar Singh Panta)
……………………………………………J.
(B. Sudershan Reddy)
New Delhi;
December 11,2008.