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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 502 OF 2007

BALU @ BALA SUBRAMANIAM & ANR.                             ...Appellants

Versus

STATE (U.T. OF PONDICHERRY)                                  ...Respondent

J U D G M E N T

R. BANUMATHI, J  .                    

This  criminal  appeal  is  filed  against  the  judgment  dated

15.07.2005  passed  by  the  High  Court  of  Judicature  at  Madras  in

Criminal  Appeal  No.113  of  1999,  whereby  the  High  Court,  while

maintaining the sentence, modified the conviction recorded by the trial

court  qua  the  accused  namely  Giri-accused  No.1,  Seenu  @

Srinivasan-accused  No.2,  Balu  @  Bala  Subramaniam  (Appellant

No.1-Accused No.4) and Raja @ Kotti Raja (Appellant No.2-Accused No.5)

as conviction under Section 302 read with Section 34 IPC, Section 326

read with Section 34 IPC and Section 324 read with Section 34 IPC. The

High Court acquitted Partheeban-accused No.3 of all the charges.

2. Briefly stated case of the prosecution is that one Natarajan

had a quarrel with Seenu @ Srinivasan-accused No.2 in respect of a chit

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transaction  and  Kannan-PW2  supported  Natarajan  and  fight  ensued

between Seenu-accused No.2 and Kannan-PW2 about a week prior to the

date  of  incident  i.e.  18.05.1997.   In  the  forenoon,  on the  day of  the

incident i.e. on 18.05.1997, Kannan-PW2, Ramesh (deceased) and one

Kamalakannan  went  to  the  accused  in  order  to  settle  the  dispute

amicably.  However, during settlement talks, fight ensued between PW-2

and Seenu and Balu attempted to beat PW-2 and Ramesh intervened and

beat Balu. Thereafter both parties left the place stating that they could

resume settlement talks in the evening. On the evening at about 6.30

P.M., Kannan-PW2, Saravanan-PW3, Suresh-PW5 and Arumugam-PW6

accompanied  by  Nagarajan  went  to  Sakthi  Nagar  at  Uruliyanpet  and

were having the settlement talks with the accused.  On the mid way, the

accused  persons  were  informed  that  their  friend  one  Anand is  being

badly cut by the complainant party and the accused questioned them as

to how they could attack their  man even when settlement talks were

going on.  So saying, the accused ran towards the place and on seeing

PW-1 and Ramesh coming in the opposite direction, Giri-accused No.1

allegedly shouted that Ramesh supports Kannan and that he must be

killed and accused No.1 and 2 cut Ramesh with knives on his head and

chased him.  Partheeban and appellants beat Ramesh on the face with

sticks, Giri-accused No.1 again cut Ramesh with knife and Ramesh fell

down.  When PW-2 intervened to save Ramesh, PW-2 was attacked and

he sustained injury on his left hand and PW-2 ran away from the place.

Accused  No.1  and  3  chased  PW-3  and  accused  No.2  assaulted  and

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inflicted cut injuries on the head of PW-3.  They also inflicted cut injury

on Muruganathan-PW4, who was taking bath near a water tap.   The

witnesses ran away from the place and came back only after some time

and  they  were  informed  that  injured  Ramesh  was  removed  from the

scene of occurrence by a police constable.   

3. Based on the complaint lodged by PW-1, a case was registered

against the accused in Crime No.152/1997 under Sections 147, 148, 307

read with Section 149 IPC.  Ramesh and other injured witnesses were

examined by PW-11-Dr. Baskaran in General Hospital, Pondicherry.  On

21.05.1997, Ramesh succumbed to injuries and the case was altered to

Section 302 IPC. After due investigation, chargesheet was filed against all

the five accused.  

4. To  substantiate  the  charges,  onbehalf  of  the  prosecution,

fifteen  witnesses  were  examined.  The  trial  court  held  that  the

prosecution  has  established  guilt  of  the  accused  beyond  reasonable

doubt  and convicted  all  the  five  accused under  Section 148 IPC and

Section 302 read with Section 149 IPC and various other offences and

sentenced  them  to  undergo  imprisonment  for  life  and  also  imposed

sentences  for  other  offences.   Aggrieved  by  the  verdict  of  conviction,

accused  preferred  appeal  before  the  High  Court.  Vide  impugned

judgment  dated  15.07.2005,  High  Court  modified  the  conviction  as

aforesaid in para (1) and partly allowed the criminal appeal.  Aggrieved,

the appellants have preferred this appeal.   

5. Learned  counsel  for  the  appellants  contended  that  the

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testimony of PW-2 who is an injured witness is not believable as firstly all

the  injured  witnesses  were  examined  soon  after  the  incident  in

Government  Hospital  and  they  deposed  that  they  were  assaulted  by

unknown persons.  However, PW-2, who was examined after three days,

has stated that he was assaulted by accused No.1-Giri and not attributed

any  overt  act  to  the  appellants-accused  No.4  and  5.   It  was  further

submitted that even as per the prosecution case, the occurrence was due

to a sudden fight and that when peace talks were going on between the

complainant  and  the  accused  party  and  on  being  informed  that  one

Anand belonging to accused party was cut by the complainant party,

fight ensued between two groups and as the act was not committed in

furtherance of the common intention, the High Court erred in convicting

the appellants under Section 302 read with Section 34 IPC.

6. Taking us through the evidence onbehalf of the respondent,

learned Senior Counsel Mr. V. Kanagaraj submitted that on exhortation

by  Giri-accused  No.1,  the  appellants  and  other  accused  attacked

deceased-Ramesh and injuries were caused in furtherance of  common

intention of all the accused would be liable under Section 302 read with

Section 34 IPC for  the act  of  committing murder of  Ramesh and the

appellants have been rightly convicted by the courts below.   

7. We have carefully considered the rival contention and perused

the impugned judgment and material on record.

8. Prosecution has examined fifteen witnesses out of which PWs

2  to  4  are  injured  witnesses.  PW-3  Saravanan,  PW-4  Muruganathan

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(nephew  of  accused  No.3)  did  not  support  the  prosecution  case  and

prosecution  thus  relied  upon  the  evidence  of  PW1-Murgan  and

PW5-Suresh and injured witness PW2-Kannan.  In his evidence, PW-1

stated that accused No.1 and 2 attacked Ramesh on his head with knives

and  accused  No.  3  to  5  attacked  Ramesh  on  his  face  by  stick  and

Ramesh fell  down on the road.  Suresh-PW5 had also stated that the

appellants  attacked  Ramesh  by  stick.  PW2-Kannan,  injured  witness

stated that accused No.1-Giri and accused No.2- Seenu attacked Ramesh

by  knives  on  his  head.   So  far  as  the  overt  act  of  the  appellants,

PW2-Kannan stated that Accused No.  4 and 5 took the wooden stick

from a bullock cart standing nearby.  PW-2 did not say anything about

the  overt  act  of  the  appellants.   Though  the  appellants  denied  their

presence at the place of incident and pleaded that a false case has been

foisted  against  them,  consistent  version  of  PWs  1  and  5  establish

presence of the appellants and that they attacked Ramesh with sticks.

Presence of the appellants and that they were armed with sticks is also

substantiated by the evidence of injured witness Kannan-PW2.  Findings

recorded by the courts below that the appellants attacked Ramesh with

sticks is unassailable.

9. In the facts and circumstances of the case, whether the High

Court was right in finding that the appellants acted in furtherance of

common intention in committing  murder of  Ramesh and whether  the

High Court was right in attributing constructive liability to the appellants

while convicting them under Section 302  read with Section 34 IPC is the

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point falling for consideration.

10. To  invoke  Section 34  IPC,  it  must  be  established  that  the

criminal  act  was  done  by  more  than  one  person  in  furtherance  of

common intention of all.  It must, therefore, be proved that:- (i) there was

common intention on the part of several persons to commit a particular

crime and (ii) the crime was actually committed by them in furtherance

of that common intention.  The essence of liability under Section 34 IPC

is simultaneous conscious mind of persons participating in the criminal

action to bring about a particular result. Minds regarding the sharing of

common intention gets satisfied when an overt act is  established qua

each of the accused. Common intention implies pre-arranged plan and

acting in concert pursuant to the pre-arranged plan.  Common intention

is an intention to commit the crime actually committed and each accused

person can be convicted of that crime, only if he has participated in that

common intention.  

11. The classic case on the subject is the judgment of the Privy

Council in  Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was

held as under:-

“…Section 34 lays down a principle of joint liability in the doing of a criminal act.  The section does not say “the common intentions of all” nor does it say “an intention common to all”.  Under the section, the  essence  of  that  liability  is  to  be  found in  the  existence  of  a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.  To invoke the aid of Section  34  successfully,  it  must  be  shown that  the  criminal  act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.  This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and

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to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.  As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual;  in  most  cases  it  has  to  be  inferred  from  his  act  or conduct  or  other relevant circumstances of  the case.”(Underlining added)

Reiterating  the  above  principles  laid  down  by  the  Privy  Council  in

Mahbub Shah’s case, in Shankerlal Kacharabhai and Others vs. State of

Gujarat,  AIR  1965  SC  1260,  this  Court  held  that  the  criminal  act

mentioned in Section 34 IPC is the result of the concerted action of

more than one person and if the said result was reached in furtherance

of the common intention, each person is liable for the result as if he

had done it himself.

12. In Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC

305, this Court held as under:-

“12. … As a general principle in a case of criminal liability it is the primary  responsibility  of  the  person  who  actually  commits  the offence and only that person who has committed the crime can be held  guilty.  By  introducing  Section  34  in  the  Penal  Code  the legislature  laid  down  the  principle  of  joint  liability  in  doing  a criminal  act.  The  essence  of  that  liability  is  to  be  found  in  the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did  the  criminal  act  with  that  common  intention  would  be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to  procure  direct  evidence  to  prove  such  intention.  Therefore,  in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with  which the  attack was made,  and from the  nature  of  injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the  subsequent  conduct  after  the  attack.  In  this  regard even  an illegal omission on the part of such accused can indicate the sharing

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of common intention.  In other words, the totality of circumstances must  be  taken  into  consideration  in  arriving  at  the  conclusion whether  the  accused  had  the  common  intention  to  commit  an offence  of  which  they  could  be  convicted. (See  Noor  Mohammad Mohd.  Yusuf  Momin v.  State  of  Maharashtra,  (1970)  1  SCC 696)” (Underlining added)

13. Common intention is  seldom capable  of  direct  proof,  it  is

almost invariably to be inferred from proved circumstances relating to

the entire conduct of all the persons and not only from the individual

act actually performed. The inference to be drawn from the manner of

the origin of the occurrence, the manner in which the accused arrived

at the scene and the concert with which attack was made and from the

injuries  caused by one or  some of  them.  The criminal  act  actually

committed would certainly be one of the important factor to be taken

into consideration but should not be taken to be the sole factor.  

14. Under  Section  34  IPC,  a  pre-concert  in  the  sense  of  a

distinct  previous  plan  is  not  necessary  to  be  proved.  The  common

intention to bring about a particular result may well develop on the spot

as between a number of persons, with reference to the facts of the case

and circumstances of the situation.  The question whether there was

any common intention or not depends upon the inference to be drawn

from the proving facts and circumstances of each case.  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.   

15. In the light of the above principles, considering the present

case,  in  our  view,  the facts  and circumstances do not  indicate  that

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there  was  common  intention  to  commit  murder  of  Ramesh.   On

18.05.1997 in the forenoon, there were settlement talks which did not

materialise  and  therefore  they  left  the  place  stating  that  they  could

resume settlement talks in the evening. On the evening at about 6.30

P.M.,  PW2-Kannan,  PW3-Saravanan,  PW5-Suresh,  Arumugam  and

Nagarajan went to Sakthi Nagar and resumed settlement talks.  At that

time, one person belonging to the accused party came and informed

that at the corner of lane, Anand-friend of the accused party was cut by

the person who came for the settlement talks.  On hearing the same,

Giri-Accused  No.1  and  Seenu-Accused  No.2  questioned  the

complainant party as to how they could attack their man even when

settlement talks were going on and so saying accused No.1 and 2 took

their knives which they were  hiding behind their back and accused No.

3 to 5 took sticks from a cart  standing nearby attacked PWs 2, 3 and 5.

At that time Ramesh and his uncle PW-1 Murgan were coming in the

opposite direction and on seeing them accused No.1-Giri pointing out to

Ramesh, exhorted others saying that Ramesh belonged to Kannan party

and that he be cut and by so saying accused No.1-Giri cut Ramesh on

his  head with  knife  and Seenu-Accused No.2  also  attacked Ramesh

with  knife.  The  appellants  and  Partheeban-Accused  No.3  have  also

attacked Ramesh with sticks on his face.

16. Facts and circumstances of the case show that the attack

was not a premeditated one nor was there a prior concert.   Initially

settlement talks were on and fight started only when the accused party

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was informed by their person that Anand was cut by complainant party

and thus the incident arose suddenly.  No doubt, common intention

could develop even at the spur of the moment; but in the present case,

the way the occurrence took place as depicted by the prosecution, there

could  not  have  been  common  intention  between  the  accused.  The

totality of the circumstances must be taken into consideration in order

to arrive at a conclusion that the appellants had a common intention to

commit the offence under which they were convicted. The appellants

were not armed and admittedly they are said to have removed sticks

from  the  bullock  cart  standing  nearby  and  on  the  exhortation  by

accused No.1-Giri, the appellants have attacked Ramesh.  There may be

similar intention in the minds of the assailants to attack; but it cannot

be  said  that  the  appellants  have  acted  in  furtherance  of  common

intention to attract constructive liability under Section 34 IPC. The facts

and circumstances,  in  our  view,  do  not  give  rise  to  an inference  of

pre-concert.   

17. For conviction of an offence read with Section 34 IPC, it is

necessary that there should be a finding as to the common intention of

the participants. Though the High Court has modified the conviction

from Section 302 read with Section 149 IPC as Section 302 read with

Section 34 IPC, the High Court has not recorded any finding as to how

the  appellants  shared  the  common  intention  to  establish  their

constructive liability to sustain the conviction under Section 302 read

with Section 34 IPC. The appellants are said to have attacked Ramesh

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with sticks on his face.  Ramesh sustained nasal bone fracture probably

due to the attack on the face.  But this cannot be said to be an act in

furtherance  of  common intention  to  commit  the  murder  of  Ramesh

along with accused No.1 and 2. They are random individual acts done

without meeting of minds and in our view, the appellants can be held

liable  only  for  their  individual  acts.   Considering  the  totality  of  the

circumstances,  conviction  of  the  appellants  under  Section  302  read

with Section 34 IPC cannot be sustained and the same is modified as

the conviction under Section 325 IPC and the sentence is modified to

the period of imprisonment already undergone.  

18. For  attacking  the  witnesses  PW2-Kannan,

PW4-Muruganathan and PW5-Suresh, the appellants were convicted by

the trial court under Section 326 read with Section 149 IPC and under

Section 324 read with Section 149 IPC which was modified by the High

Court.  No specific overt act is attributed to the appellants in attacking

the  prosecution  witnesses  2,  4  and  5.   As  the  appellants  have  not

shared or acted in furtherance of common intention in the attack of the

witnesses and therefore the conviction of the appellants as modified by

the High Court under Section 326 read with Section 34 IPC and under

Section 324 read with  Section 34 IPC cannot  be sustained and the

same is liable to be set aside.

19. Conviction of the appellants Balu (A-4) and Raja(A-5)  under

Section 302 read with Section 34 IPC is modified as conviction under

Section 325 IPC and they are sentenced to undergo imprisonment to

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the period already undergone. Their conviction under Section 326 read

with Section 34 IPC and under Section 324 read with Section 34 IPC is

set aside and the appellants are acquitted of those charges. The appeal

is partly allowed to the extent indicated above. The appellants are on

bail.  Their bail bonds shall stand discharged.  

                                                          ..……..…………………………J.      (JAGDISH SINGH KHEHAR)

                                                           ..……..…………………………J.     (R. BANUMATHI)

New Delhi; October  16, 2015