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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 229 OF 2007

GOUDAPPA & ORS.      … APPELLANTS VERSUS

STATE OF KARNATAKA       …RESPONDENT

        J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

Appellant  No.  1,  Goudappa  (Accused  No.3),  

Appellant No.2, Chhannappa @ Ajjappa (Accused No.4)  

and  Appellant  No.  3,  Mahadevappa  (Accused  No.5)  

aggrieved by their conviction and sentence, have  

preferred this appeal with the leave of the court.

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Altogether  five  brothers  namely,  Basappa,  

Vipakshappa,  Goudappa,  Channappa  @  Ajjappa  and  

Mahadevappa  were  put  on  trial  for  offence  under  

Section 143, 148, 452, 341, 302, 427, 504 and 506  

read with Section 149 of the Indian Penal Code.  

The trial court acquitted accused no. 1, Basappa  

and accused no. 2 Vipakshappa of all the charges.  

Accused  no.  3,  Goudappa  and  accused  no.  4,  

Channappa  @  Ajjappa   were,  however,  held  guilty  

under Section 304, Part II read with Section 109 of  

the  Indian  Penal  Code  and  sentenced  to  undergo  

simple imprisonment for one year. Accused no. 5,  

Mahadevappa has been convicted under Section 304,  

Part II of the Indian Penal Code and sentenced to  

undergo rigorous imprisonment for five years.  They  

have, however, been acquitted of all other charges.  

State of Karnataka, aggrieved by the order of  

acquittal  of  the  aforesaid  two  accused  and  

conviction of other three only under Section 304,  

Part II, instead under Section 302 of the Indian  

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Penal Code and those convicted and sentenced also  

preferred separate appeals before the High Court.  

Both the appeals were heard together and disposed  

of by a common judgment.  The High Court by the  

impugned  judgment  and  order  has  set  aside  the  

judgment  of  acquittal  and  held  all  the  accused  

guilty  under  Section  143  and  148  of  the  Indian  

Penal Code and sentenced them to pay fine of Rs.  

1,000/- on each count with a default clause.  Those  

three found guilty under Section 304, Part II read  

with Section 109 or under Section 304, Part II of  

the Indian Penal Code simplicitor have, instead,  

been convicted under Section 302/34 of the Indian  

Penal Code and sentenced to undergo imprisonment  

for life with default clause.

Matrimonial discord between deceased Channappa  

and Kalavathi, daughter of accused no. 1, Basappa  

is the cause of the crime.  All the accused are  

brothers  and  reside  in  Village  Navalur  within  

Dharwad  District  of  the  State  of  Karnataka.  

Kalavathi was married to deceased Channappa, who  

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was also the resident of the same village, houses  

of both being situated within a distance of 100 ft.  

from each other.  Marriage between them had taken  

place on 5th of May, 1996.  The relationship between  

the couple was not cordial and, according to the  

prosecution,  as  usual  the  elders  of  the  village  

convened  a  Panchayat in  which  the  father  of  

Kalavathi  i.e.  accused  no.  1  Basappa  wrote  an  

undertaking (Exh. P-6) to counsel his daughter and  

not to blame anyone else, if any untoward incident  

happens.  However, this did not bring peace and  

matrimonial  harmony  and  Kalavathi  left  the  

matrimonial house without informing anybody.  This  

was  not  liked  by  her  husband,  Channappa  and  he  

stopped her entry in the matrimonial house.  All  

the accused thus nurtured ill-will against him.   

According  to  the  prosecution,  on  9th of  

January,  1998  at  about  9.30  P.M.  the  deceased  

Channappa,  his  brother  Manjunatha  (PW-1),  mother  

Siddawwa  (PW-2)  and  grandson  of  PW-2,  Manjunath  

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(PW-3) were watching TV.  The deceased Channappa at  

that time was chewing  paan and came out of the  

house to spit.  Accused Basappa started abusing him  

alleging  that  he  failed  to  keep  his  daughter,  

whereupon  all  the  accused  entered  the  house  and  

accused no. 3 Goudappa and accused No. 4 Channappa  

@ Ajjappa caught hold of the deceased and accused  

no. 5 Mahadevappa stabbed him with jambia over the  

left side of the chest.  The blow was so severe  

that  it  penetrated  into  the  heart  and  liver.  

Prosecution has further alleged that accused no. 1,  

Basappa pelted stone over the door of the house  

whereas accused no. 2 Vipakshappa damaged its front  

door with an axe.  Manjunatha (PW-1), Siddawwa (PW-

2) and Manjunath (PW-3) claimed to have seen the  

incident.  Manunatha (PW-1) conveyed the message to  

the Police Control Room and called Dr. Shamsuddin  

Kasimsab  Jamadar  (PW-18)  for  treatment,  but  

noticing profuse bleeding, he advised to shift the  

injured  to  the  Government  Hospital.   While  

arrangement to shift the injured was being made,  

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Shashidhar (PW-24), the police constable, Manappa  

Siddappa Arer (PW-27), the Sub-Inspector of Police  

of Vidhyagiri Police Station and other two police  

constables came to the spot and the injured was  

shifted  to  Civil  Hospital,  Dharwad.   He  was  

examined  by  the  doctor  and  declared  dead.  

Manjunatha (PW-1) gave report to Manappa Siddappa  

Arer which led to registration of Crime No. 14 of  

1998 under Section 143, 147, 148, 323, 427, 452,  

302,  504  and  506  read  with  Section  149  of  the  

Indian Penal Code.  

 After usual investigation, police submitted the  

charge-sheet  and  all  the  five  accused  were  

ultimately committed to the Court of Sessions to  

face the trial.  The trial court framed charges  

under Section 143, 148, 452, 341, 302, 427, 504 and  

506 read with Section 149 of the Indian Penal Code.  

Accused pleaded not guilty and claimed to be tried.  

In order to bring home the charge, the prosecution  

has altogether examined 28 witnesses and a large  

number  of  documents  (Exibits  P-1  to  P-24)  and  

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material objects (M.Os. 1 to 14) were exhibited.  

Out of the aforesaid witnesses, Manjunatha (PW-1),  

Siddawwa (PW-2) and Manjunath (PW-3) claimed to be  

the  eye-witnesses  of  the  occurrence.   Dr.  

Rajashekara  (PW-6)  has  conducted  the  post-mortem  

examination on the dead body of the deceased.  The  

defence of the accused is of total denial and they  

have led no evidence.  There is consistent evidence  

of Manjunatha (PW-1), Siddawwa (PW-2) and Manjunath  

(PW-3)  that  relation  of  Kalawathi,  daughter  of  

accused no. 1 Basappa and her husband, the deceased  

Channappa  was  strained  and  the  accused  have  

virtually  accepted  this  part  of  the  prosecution  

story.  Manjunatha  (PW-1),  has  stated  in  his  

evidence that while he along with the other two  

eye-witnesses, Siddawwa (PW-2) and Manjunath (PW-3)  

and the deceased Channappa were watching TV, all  

the accused had assembled in the house of accused  

no. 3, Goudappa and were hurling abuses.  According  

to this witness, the deceased Channappa  was in the  

habit of chewing  paan and, therefore, he had gone  

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out of the house to spit.  At that time accused no.  

1 Basappa abused him alleging that he is not able  

to lead married life with his daughter. Immediately  

thereafter, all the accused entered into the house.  

At that time, accused no. 2, Vipakshappa was armed  

with an axe whereas accused no. 5, Mahadevappa was  

carrying  a  jambia.   According  to  this  witness,  

accused no. 3, Goudappa and accused no. 4 Channappa  

@  Ajjappa  caught  hold  of  the  deceased  Channappa  

whereupon accused no. 5, Mahadevappa assaulted the  

deceased with jambia on his chest.  It has further  

been  stated  that  accused  no.  1,  Basappa  pelted  

stone  over  the  door  whereas  accused  no.  2,  

Vipakshappa damaged the front door with an axe.  In  

the  cross-examination,  this  witness  has  admitted  

that all of them including the deceased Channappa,  

were  inside  the  house  and  watching  TV  when  the  

accused have come in front of their house and the  

occurrence had taken place inside the house.  He  

has further admitted that in the first information  

report he had not mentioned about the availability  

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of electric light in the house and in the street,  

at the time of the incident.  

 Siddawwa (PW-2), who happens to be the mother  

of the deceased, stated in her evidence that all  

the  accused  came  to  their  house,  abused  and  

threatened  them  of  dire  consequences  as  the  

deceased  was  not  accepting  Kalavathi  to  lead  a  

married life.  She has further stated that accused  

no.  3,  Goudappa  and  accused  no.  4,  Channappa  @  

Ajjappa caught hold of deceased’s hands and accused  

no. 5, Mahadevappa gave jambia blow on his chest.  

Evidence  of  Manjunath  (PW-3),  the  grandson  of  

Siddawwa (PW-2), is the same as those of other two  

eye  witnesses.  In  the  cross-examination  he  had  

stated that the deceased Channappa was inside the  

house when the accused came to the spot.

Dr. Rajashekara (PW-6), who conducted the post-

mortem examination on the dead body of the deceased  

Channappa,  had  found  the  following  external  

injuries on his person:

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“1. Punctured wound over the left side  of  the  chest  over  2,  3  and  4th  

intercostal  space  3”  below  the  junction of medial 1/3rd and later 2/3rd  

of  clavicle  bone  3”  lateral  to  midline.”

He  also  found  the  following  internal  

injuries on his person:

“On  opening  of  the  skull  brain  was  pale in colour.  On examination of the  chest, crack fracture of 2nd rib on the  left  side  3”  from  sterno  costal  junction.  Plura opened at the site of  the wound, which was described above.  Containing blood with some clots and  blood was about 1000 ml.

Laryanx  and  treachea  was  intact  and  pale.

Lungs were intact and pale.  Plura was  opened  over  the  left  atrium  of  the  heart.

Punctured  wound  over  left  atrium  1½” x 1” clot blood at the margins and  reddish in colour.”

Mr.  Basava  Prabhu  S.  Patil,  Senior  Advocate  

appears on behalf of the appellants, whereas the  

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respondent-State of Karnataka is represented by Ms.  

Anitha Shenoy.

Mr. Patil submits that the claim of Manjunatha  

(PW-1), Siddawwa (PW-2) and Manjunath (PW-3) to be  

the  eye-witnesses  to  the  occurrence  and  having  

witnessed the incident is fit to be rejected as,  

according to their own evidence, they were watching  

the television inside the house (PADASALE) at the  

time  of  occurrence,  whereas  the  occurrence  has  

taken place near the front door inside the house.  

In this connection, he has drawn our attention to  

the sketch map and points out that from the place  

where these witnesses were watching the television,  

the place where the deceased was assaulted is not  

visible.   Ms.  Shenoy,  however,  submits  that  the  

house where the incident had taken place is a small  

house  and  the  distance  between  the  place  of  

occurrence  and  the  PADASALE where  they  were  

watching TV is hardly 20 ft.  She further submits  

that  after  the  accused  persons  entered  into  the  

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house and saw the deceased Channappa, the latter  

had raised an alarm which attracted the attention  

of the witnesses and they came to the spot and,  

hence, witnessed the occurrence.   

We have bestowed our consideration to the rival  

submissions and we find substance in the submission  

of Ms. Shenoy.  The house in question is a small  

house and the distance between the place where they  

were watching TV and the place of occurrence is  

about 20 ft.  Further, there was an alarm raised by  

the  deceased  Channappa  which  attracted  the  

witnesses  and,  thus  their  claim  of  being  eye-

witnesses of the occurrence cannot be rejected on  

this ground.

Mr. Patil then submits that, according to the  

evidence  of  the  prosecution  witnesses,  when  the  

deceased  came  out  of  the  house  to  spit,  the  

occurrence has taken place, but the dead body was  

found inside the house and, therefore, prosecution  

has not been able to prove the place of occurrence  

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beyond all reasonable doubt.  According to him, the  

consistent  case  of  the  prosecution  is  that  the  

deceased  along  with  other  eye-witnesses  were  

watching TV in the PADASALE and the deceased was  

assaulted when he came out of the house to spit.  

In this connection, he has drawn our attention to  

the sketch map which gives the details of the house  

and the place of occurrence.  This, according to  

Mr. Patil, clearly shows that the occurrence has  

taken place inside the house.  We do not find any  

substance in the submission of Mr. Patil and the  

same is fit to be rejected.  For appreciation of  

this submission one has to bear in mind that the  

house where the occurrence has taken place is a  

small  house  and  the  dead  body  was  found  7  ft.  

inside  the  front  door.   It  is  the  consistent  

evidence  of  the  prosecution  witnesses  that  the  

deceased Channappa was chewing paan and came out of  

the house to spit when accused no. 1 Basappa abused  

him alleging that he failed to keep his daughter  

whereupon all the accused persons entered the house  

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and the crime was committed.  As stated earlier,  

the dead body was found 7 ft. inside the front  

door, we do not find any inconsistency in regard to  

the place of occurrence.   

Mr. Patil lastly submits that, according to the  

prosecution itself, role attributed to accused no.  

3 Goudappa and accused no. 4 Channappa @ Ajjappa is  

that they had caught hold of the deceased Channappa  

and from that it cannot be inferred that the crime  

was committed in furtherance of common intention.  

According to him, these appellants had not intended  

to  cause  the  death  of  the  deceased  and,  hence,  

cannot be convicted for the offence under Section  

302 with the aid of Section 34 of the Indian Penal  

Code.  In support of the submission reliance has  

been placed on the judgment of this Court in the  

case of Ramashish Yadav v. State of Bihar, (1999) 8  

SCC 555:

“This  being  the  requirement  of  law  for  applicability of Section 34 IPC, from the  mere fact that accused Ram Pravesh Yadav  

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and Ramanand Yadav came and caught hold of  Tapeshwar,  whereafter  Samundar  Yadav  and  Sheo  Layak  Yadav  came  with  gandasa  in  their  hands  and  gave  blows  by  means  of  gandasa,  it  cannot  be  said  that  the  accused  Ram  Pravesh  Yadav  and  Ramanand  Yadav  shared  the  common  intention  with  accused  Samundar  Yadav  and  Sheo  Layak  Yadav.  Consequently,  accused  Ram  Pravesh  Yadav  and  Ramanand  Yadav  cannot  be  held  guilty of the charge under Sections 302/34  IPC  but  accused  Samundar  Yadav  and  Sheo  Layak Yadav did commit the offence under  Sections 302/34, having assaulted deceased  Tapeshwar on his head by means of gandasa  on  account  of  which  Tapeshwar  died.  The  accused  Ram  Pravesh  Yadav  and  Ramanand  Yadav  are,  therefore,  acquitted  of  the  charges levelled against them and they be  set at liberty forthwith.”

Ms.  Shenoy,  however,  submits  that  from  the  

manner in which the crime has been committed and  

the  role  played  by  the  aforesaid  two  appellants  

clearly  show  that  the  criminal  act  was  done  by  

several  persons  in  furtherance  of  the  common  

intention of all and, hence, each of such person  

shall be liable for the criminal act in the same  

manner as if it was done by him alone.  Reference,  

in this connection, has been made to a decision of  

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this Court in the case of Ramesh Singh v. State of  

A.P., (2004) 11 SCC 305.

We have bestowed our consideration to the rival  

submissions and the submission made by Ms. Shenoy  

commend us.  Ordinarily, every man is responsible  

criminally for a criminal act done by him.  No man  

can be held responsible for an independent act and  

wrong  committed  by  another.   The  principle  of  

criminal liability is that the person who commits  

an offence is responsible for that and he can only  

be held guilty.  However, Section 34 of the Indian  

Penal Code makes an exception to this principle.  

It lays down a principle of joint liability in the  

doing  of  a  criminal  act.   The  essence  of  that  

liability is to be found in the existence of common  

intention,  animating  the  accused  leading  to  the  

doing  of  a  criminal  act  in  furtherance  of  such  

intention.  It deals with the doing of separate  

acts, similar or adverse by several persons, if all  

are done in furtherance of common intention.  In  

such  situation,  each  person  is  liable  for  the  

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result of that as if he had done that act himself.  

Section 34 of the Indian Penal Code thus lays down  

a principle of joint criminal liability which is  

only  a  rule  of  evidence  but  does  not  create  a  

substantive offence.  Therefore, if the act is the  

result of a common intention that every person who  

did the criminal act share, that common intention  

would  make  him  liable  for  the  offence  committed  

irrespective  of  the  role  which  he  had  in  its  

perpetration.  Then how to gather common intention?  

The common intention is gathered from the manner in  

which the crime has been committed, the conduct of  

the accused soon before and after the occurrence,  

the determination and concern with which the crime  

was committed, the weapon carried by the accused  

and from the nature and injury caused by one or  

some  of  them.   Therefore,  for  arriving  at  a  

conclusion  whether  the  accused  had  the  common  

intention to commit an offence of which they could  

be convicted, the totality of circumstances must be  

taken into consideration.

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Bearing in mind the principle aforesaid, when  

we  proceed  to  consider  the  case  of  these  two  

appellants  namely,  accused  no.  3  Goudappa  and  

accused  no.  4  Channappa  @  Ajjappa,  we  have  no  

hesitation  in  coming  to  the  conclusion  that  the  

deceased Channappa was done to death in furtherance  

of their common intention.  All the accused had  

assembled at one place and the moment deceased came  

out  of  the  house  to  spit,  one  of  the  accused  

started abusing him.  They were armed with axe and  

jambia and  by  catching  and  immobilizing  the  

deceased these two accused facilitated the assault  

by  accused  no.  5.   Accused  no.  5  stabbed  the  

deceased  with  jambia over  the  left  side  of  the  

chest and the blow was so severe that it penetrated  

into the heart and liver.  The fact that these  

appellants held the deceased and facilitated the  

other accused to give the fatal blow and made no  

effort to prevent him from assaulting the deceased  

leads  to  irresistible  and  inescapable  conclusion  

that  these  two  appellants  shared  the  common  

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intention with accused no. 5.  The intention of  

accused no. 5 is clear from the nature of weapon  

used and the severity of attack which was in the  

area of chest penetrating deep inside up to heart  

and liver which caused the death of the deceased.   

The view which we have taken finds support from  

the judgment of this Court in the case of  Ramesh  

Singh  (supra)  in  which  it  has  been  observed  as  

follows:

“Once the prosecution evidence tendered  through PWs 1 to 3 is accepted, then it is  clear that when A-2 and A-3 held the hands  of the deceased, they had some intention  in disabling the deceased. This inference  is  possible  to  be  drawn  because  the  appellants  in  their  statement  recorded  under Section 313 CrPC did not give any  explanation why they held the hands of the  deceased  which  indicates  that  the  appellants had the knowledge that A-1 was  to assault the deceased. The fact that the  appellants continued to hold the deceased  all  along  without  making  any  effort  to  prevent A-1 from further attacking, in our  opinion, leads to an irresistible and an  inescapable conclusion that these accused  persons also shared the common intention  with A-1.”

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However, we hasten to add that each case rests  

on its own facts and mere similarity of the facts  

in  one  case  cannot  be  used  to  determine  a  

conclusion of fact in another.  Whether the crime  

was committed in furtherance of common intention is  

determined on appreciation of evidence laid in that  

case and the similarity of facts in one case may  

not be decisive to come to a definite conclusion of  

fact in another.  Hence, answer of such question  

has to be found in the facts of a given case.  In  

this  connection,  it  is  apt  to  reproduce  the  

following  passage  from  the  case  of  Pandurang  v.  

State of Hyderabad, AIR 1955 SC 216:

“But to say this is no more than to  reproduce  the  ordinary  rule  about  circumstantial evidence, for there is no  special rule of evidence for this class  of case. At bottom, it is a question of  fact  in  every  case  and  however  similar  the  circumstances,  facts  in  one  case  cannot  be  used  as  a  precedent  to  determine the conclusion on the facts in  another. All that is necessary is either  to have direct proof of prior concert, or  proof of circumstances which necessarily  lead to that inference, or, as we prefer  

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to put it in the time-honoured way, ‘the  incriminating facts must be incompatible  with  the  innocence  of  the  accused  and  incapable  of  explanation  on  any  other  reasonable  hypothesis’.  (Sarkar's  Evidence, 8th Edn., p. 30)”

From the discussion aforesaid, it is evident  

that the High Court has not committed any error in  

setting aside the judgment of acquittal and holding  

all the accused guilty under Section 143 and 148 of  

the Indian Penal Code and convicting the appellants  

under Section 302/34 of the Indian Penal Code and  

sentencing them to undergo imprisonment for life  

with default clause.

In the result, we do not find any merit in the  

appeal and it is dismissed accordingly.         

                      ………………….………………………………….J. (A.K. PATNAIK)

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 ………..………..……………………………….J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI, MARCH 11, 2013.

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