REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO.  294   OF 2003

SWAMINATHAN & ANR. ..  APPELLANT(S)

vs.

STATE OF TAMIL NADU ..  RESPONDENT(S)

O  R D E R

At  about  9.30  a.m.  on  the  5th April,  1994  A.1  

Ramasamy  came to the wine shop of PW.3 Muthu Selvin and  

enquired if his uncle Velan was present in the wine shop.  

At that time Palanisamy deceased came riding  a bicycle and  

dashed against A.1. The same evening at about 3.00 p.m.  

Palanisamy  was going towards the field of Alagesan and as  

he was passing in front of the house of A.1., A.1 came out

and shouted at him and thereafter lifted a stick and hit  

him on the head. A.2 Swaminathan and A.3 Raman who were  

standing close by picked up stones lying on the spot and  

hit the deceased on the cheek and forehead respectively.  

The incident was witnessed by PW.1 Narayanan. He  went and  

informed  Ganesan,  the  brother  of  the  deceased,  and  

thereafter returned to the place of incident and found that  

Palanisamy  was dead.  He accordingly lodged the report at  

Police Station Theevattipatti,  and case under Section 302  

was registered at about 4.30 p.m.  The dead body was also  

subjected to a post mortem examination and nine injuries  

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were detected thereon,  seven allegedly caused by a lathi

and two by stones.  The Doctor also opined that the death  

had been caused by a lathi injury and that the fatal injury  

was injury No.1.  The Trial Court relying on the evidence  

of PW.1 (Narayanan), the only eye-witness, convicted the  

accused A.1 under Section 304 Part II and sentenced him to  

undergo three years' rigorous imprisonment.  A.2 and A.3  

were convicted and sentenced for the same offence and term  

with the aid of Section 34 of the IPC.  An appeal was  

thereafter taken to the High Court which has confirmed the  

conviction and sentence awarded by the Trial Court.   

The present appeal has been filed by A.2 and A.3  

alone.

Mr. K.K.Mani, the learned counsel for the appellants  

has  raised only one argument before us.  He has urged that  

even accepting the prosecution story in its entirety the  

vicarious liability under Section 34 of the IPC could not

be fastened on A.2 and A.3 as the facts did not indicate  

so.  He has pointed out that the incident had happened all  

of a sudden when Palanisami was passing by the house of A.1  

and there was absolutely no pre-planning and that he too  

had caused several blows after picking the lathi  from the  

spot.  It has also been submitted that the common intention  

on the part of A.2 and A.3 had also not made out as they  

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had come to the spot by chance and there was no prior  

meeting of minds, and they had caused one simple injury

each on the person of the deceased with stones picked up  

from the site.   He has accordingly submitted that the  

conviction of the two appellants with the aid of Section 34  

was not called for.

We have heard the learned counsel for the parties  

and also gone through the evidence.  Concededly, as per the  

post  mortem  report,  injury  No.1  on  the  person  of  the  

deceased was the fatal injury and had been caused by A.1  

with a lathi.  There is also no reference whatsoever to any  

involvement of A.2 and A.3 in the incident in the morning.  

It appears that A.2 and A.3 who had been either passing by  

or were  near the spot picked up stones on the spur of the  

moment and caused a simple injury each. It is therefore  

evident that A.2 and A.3 could not have had the  knowledge  

of involvement of A.1 in  a situation where death could be  

caused.  We therefore feel that the conviction of A.2 and

A.3  with  the  aid  of  Section  34  was  not  called  for.    

We  accordingly  allow  the  appeal  and  order  their  

acquittal. Their bail bonds shall stand cancelled.

                   .................J.         (HARJIT SINGH BEDI)      

             ....................J.

                                 (CHANDRAMAULI KR. PRASAD)

New  

Delhi, January 12, 2011.