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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1739     OF     2007   

Thoti Manohar       .....……..Appellant

Versus

State of Andhra Pradesh       ………Respondent    

J     U     D     G     M     E     N     T   

DIPAK     MISRA,     J.   

The present appeal, by special leave under Article 136 of the  

Constitution of India, is directed against the judgment of  

conviction and order of sentence dated 6.3.2007 passed by the  

High Court of Judicature, Andhra Pradesh at Hyderabad in  

Criminal Appeal No. 603 of 2005 whereby the Division Bench of  

the High Court partly allowed the appeal by acquitting the  

accused No. 3 (A-3), namely, Thoti Sivaram, for the offence  

punishable under Section 302 read with Section 34 of the Indian  

Penal Code, 1860 (for short ‘the IPC’) but maintained the

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conviction and sentence in respect of other offences as had been  

imposed by the learned Sessions Judge, Chittoor in Sessions  

Case No. 108 of 2003.  Be it noted, the accused No. 1 (A-1) was  

convicted for the offences punishable under Sections 452, 302,  

326 and 324 of the IPC, the accused No. 2 (A-2) was found guilty  

of the offences under Sections 452, 302 read with 34, and 324  

and 326 of the IPC, and the accused No. 3 (A-3) was convicted  

under Sections 452, 302 read with Section 34, and 324 of the  

IPC and, accordingly, sentenced to rigorous imprisonment and  

fine which we shall state at a later stage.

2.  The broad essential facts of the prosecution case are that  

A-1 and A-2 are real brothers and A-3 is their cousin.   A-1, Thoti  

Ekambaram, had developed illicit relationship with Dhanamma,  

the cousin sister of the deceased, Kuppuswamy Modali.  The  

deceased, his brother Damodaran and other family members had  

an apprehension that if Dhanamma continued such kind of  

intimacy with A-1, she would not be in a position to perform the  

marriage of her daughter.  The said apprehension compelled  

them to send Dhanamma and her daughter to Bangalore where  

Dhanamma lived with her son.  This act of the deceased and his  

family members stirred up anger in the heart of A-1 and a sense

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of revenge ruled his thought.  The accused waited for the  

opportunity to pick up quarrels and triggered altercations on  

every trivial issue with the deceased and his family.   The trivial  

cavil slowly gave rise to a major incident and on one day, A-1 and  

others allowed their cattle into the sugarcane fields of the  

deceased who wantonly grazed there and spoiled the crops.  As  

the factual matrix would undrape, on 24.9.2002 at about 3.00  

p.m., A-1 and A-2 drove their cows again for grazing the crop of  

the deceased.  On seeing the same, Sekhar, son of the deceased,  

brought those cattle to his house and tied them.  At about 4.00  

p.m., A-1 and A-2 went to the house of the deceased, picked up a  

quarrel, assaulted them and took away their cattle.  They also  

threatened them with dire consequences.  Being disturbed,  

Kuppuswamy Mudali (deceased) and his son Sekhar (PW 1)  

approached the elders of the village, namely, Gunasekhar and  

Amudalaputtur Kesava Reddy (PWs-7 and 12) and others, for  

convening a panchayat so that such unwarranted actions were  

not repeated.  The said  elders secured the presence of A-1 and  

A-2, the deceased and his son and told all of them that there  

would be a mediation on 26.9.2002 and sincere efforts should be  

made to put the controversy to rest.

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3. The case of the prosecution as further uncurtained is that  

on 25.9.2002, at about 11.00 a.m., when Sekhar, the deceased  

and Jayamma, wife of the deceased (PW-3), were in their house,  

A-1 and A-3 armed with iron rods and A-2 armed with billhook  

trespassed into the house of the deceased.  A-1 and A-2 caught  

hold of him and his son and dragged them out of the house.  A-1,  

Thoti Ekambaram, assaulted the deceased with iron rods on his  

head, neck and all over his body and caused injuries as a  

consequence of which he fell down and lost his consciousness.  

At that juncture, Arunachalam, PW-6, the younger brother of the  

deceased, intervened.  Thoti Manohar, A-2, struck him with the  

billhook on his face as a result of which he sustained injuries.  

A-3 also assaulted him with iron rod on his chest.  

Rukminamma, PW-2, intervened and was assaulted by A-2.  

Jayamma, PW-3, was assaulted by A-1.  Similarly, when  

Pargunam, PW-4, and Damodaran, PW-5, intervened, they were  

also beaten up by the accused persons.  All the injured persons  

were taken to the Government hospital, Chittoor in a jeep for  

necessary treatment.  In the hospital, Kuppuswamy Modali was  

declared dead.  The other remaining injured were admitted in the  

hospital for treatment.  

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4. The narration in continuum is that Sekhar, PW-1, lodged an  

FIR at Police Station, Gangadhara, Nellore and Crime No. 70 of  

2002 was registered under Sections 452, 302 and 324 read with  

Section 34 of the IPC against the accused persons.  After the  

criminal law was set in motion, on 29.9.2002, the Circle  

Inspector of Police, P.W. 20, arrested A-1 and A-2 who led the  

said police officer to the sugarcane fields from where the weapons  

used in the crime were recovered and seized in the presence of  

panch witnesses.  On 3.10.2002, A-3 was arrested.  The  

concerned Investigating Officer recorded the statements of the  

witnesses and, after completion of other formalities, placed the  

charge-sheet before the concerned Magistrate who committed the  

matter to the Court of Session.   

5. The accused pleaded not guilty and claimed to be tried.   

6.  Be it noted, initially, the learned Additional District and  

Sessions Judge (Fast Track Court, Chittoor) was in-charge of the  

trial of the case but, thereafter, by direction of the High Court in  

Criminal M.P. No. 6915/2003, the matter was transferred to the  

Sessions Judge, Chittoor.

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7. The prosecution, to establish the charges against the  

accused persons, examined 20 witnesses, exhibited 23  

documents, namely, Exh. P-1 to P-23 and got MOs-1 to 9  

marked.

8. The defence chose not to adduce any evidence.  However,  

the contradictions and omissions found in the evidence of some  

of the prosecution witnesses were marked as Exh. D-1 to D-5.

9. The learned Sessions Judge appreciated the evidence of  

PW-1, Sekhar, the informant, PW-2, Rukmanamma, wife of  

Arunachalam, PW-3, Jayamma, mother of PW-1, PW-4  

Parganam, PW-5, Damodaran and PW-6, Arunachalam, the  

injured eye witnesses who had supported the factum of assault  

on the deceased as well as on them; relied on the testimony of  

Gunasekhar, PW-7, S. Suri, PW-8, and the then Circle Inspector  

of Police, PW-20, who conducted the investigation to accept the  

reliability of seizure of weapons in accordance with  Section 27 of  

the Evidence Act, and further placed reliance on the evidence of  

PWs-10, 11, 12 and 14  which threw light on the illicit  

relationship of Dhanamma and her being sent to Bangalore  

which formed the genesis of bad blood and the course adopted by

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the deceased and his relatives to approach the elderly persons to  

convene a panchayat.  The learned Sessions Judge also relied on  

the testimony of PW-9, Dr. Sai Rani, who conducted the post  

mortem, PW-16, Dr. M. Krishnaveni, PW-17, Dr. Vijaya Gowri  

and PW-18, another medical officer, who examined the injured  

witnesses and gave certificates which were brought on record.

10. We may note here that the other witnesses are basically  

formal witnesses.  It is also apt to state that only Govinda Reddy,  

PW 15, did not support the case of the prosecution.

11. Considering the evidence and the material brought on  

record, the learned Sessions Judge came to hold that the  

prosecution had been able to establish the charge under Section  

452 of the IPC against A-1 to A-3, prove the offence under  

Section 302 of the IPC against A-1 to the hilt and bring home the  

charge for the offence under Section 302 read with Section 34 of  

the IPC against A-2 and A-3, and under Section 326 of the IPC  

against A-2.  That apart, the learned trial judge found that the  

offence under Section 324 of the IPC against A-1 to A-3 was  

proven and, accordingly, convicted them for the said offences.  As  

far as the sentence is concerned, A-1 was convicted to undergo

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life imprisonment for the offence under Section 302 of the IPC  

and to pay a fine of Rs.5000/-, in default, to undergo simple  

imprisonment for six months, rigorous imprisonment for two  

years under Section 452 of the IPC and to pay a fine of  

Rs.5,000/-, in default, to suffer simple imprisonment for one  

month and rigorous imprisonment for one year for the offence  

under Section 324 of the IPC.  Similar sentence was imposed on  

A-2 for the offences under Sections 452, 302 read with Sections  

34, and 324 of the IPC.  As far as the offence under Section 326  

is concerned, he was sentenced to undergo rigorous  

imprisonment for a period of three years and to pay a fine of  

Rs.1,000/-, in default, to undergo simple imprisonment for three  

months.  As far as A-3 is concerned, the sentence remained the  

same for the offences under Section 302 read with Section 34,  

and 452 and 324 of the IPC.

12. Being dissatisfied with the judgment of conviction and the  

order of sentence, all the accused persons preferred appeal before  

the High Court.

13. Before the appellate court, it was contended that the  

learned trial Judge has grossly erred by placing reliance on the

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evidence of PWs-1 to 8, 10 and 12 despite the incurable  

discrepancies pertaining to the place and time of occurrence and  

further the learned trial Judge had totally erred by giving  

credence to the version of the witnesses who are relatives of the  

deceased and were absolutely interested to implicate the accused.  

That apart, it was canvassed that there was no circumstance on  

record to come to a definite conclusion that A-2 and A-3 shared a  

common intention with A-1 to do away with the life of the  

deceased inasmuch as they neither caused injury on the body of  

the deceased nor did they instigate or exhort A-1 to commit the  

murder and, therefore, they were only liable for their individual  

acts and to be convicted and sentenced for the offences  

committed by them.  The said submissions were controverted by  

the public prosecutor contending that A-2 and A-3 came armed  

with deadly weapons to the house of the deceased and dragged  

him from his house and attacked him.  That apart, submitted the  

learned public prosecutor before the appellate court, that they  

had earlier threatened the deceased with dire consequences and  

thus, the cumulative effect of the circumstances would go a long  

way to reveal that there was a common intention to extinguish  

the life spark of the deceased.  

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14. The High Court referred to the inquest report of the  

deceased, the injury reports of the injured persons, the human  

blood as found from the report of serologist contained in Exh. P-

23, analysed the credibility and credentiality of the testimony of  

the eye witnesses and placed reliance on the seized articles and  

noted the consistency of the ocular evidence and the  

corroboration it had received from the medical evidence, the  

detailed narration of the assault on the witnesses by the  

assailants’  group, the non involvement of A-3 with the previous  

incident and threat given and the role ascribed to him and came  

to hold that there was no material to infer the common intention  

as far as A-3 was concerned and, accordingly, acquitted A-3 for  

the offence punishable under Section 302 read with Section 34 of  

the IPC but sustained the conviction and sentence in respect of  

other offences.  As far as the conviction and sentence of A-1 and  

A-2 are concerned, that was maintained.

15. We have heard the learned counsel for the parties and  

perused the documents on record.

16. It is submitted by the learned counsel for the appellant that  

there is material contradiction about A-1 and A-2 letting their

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cows graze in the sugarcane field of the deceased inasmuch as  

different versions have been given by PW-1, the informant, and  

PW-20, the Circle Inspector of Police who conducted the  

investigation.  It is urged by him that the High Court has  

fundamentally erred by holding that there was intention on the  

part of A-1 to cause death of the deceased.  The learned counsel  

would further contend that the deceased was the aggressor and  

the injuries found on A-1 and A-2 have not been explained as a  

consequence of which the case of the prosecution does not  

deserve acceptance.  It is his further submission that when the  

High Court had acquitted A-3 on the foundation that he did not  

share the common intention, on the same charge the appellant –  

A-2 should also have been acquitted and, therefore, this Court  

should acquit him of the offence punishable under Section 302  

read with Section 34 of the IPC.  It is proponed by him that all  

the eye witnesses are interested witnesses and they have  

deliberately implicated the accused persons and further the  

prosecution has not made any endeavour to produce any  

independent witness.

17. The learned counsel for the State, in oppugnation, would  

submit that the accused were the aggressors and the same is

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absolutely demonstrable from the evidence brought on record  

and it does not remotely suggest any other version.  After taking  

us through the evidence of the witnesses, he has contended that  

the prosecution witnesses are natural and truthful and there is  

no reason to discard their version.  In fact, they have given the  

true version of the occurrence.  It is urged by him that the  

contention that the injuries on the accused persons have not  

been explained by the prosecution and hence, its version  

deserves rejection has no legs to stand upon inasmuch as the  

injuries are absolutely superficial, minor and in any case, they do  

not affect the prosecution case in its entirety, especially when the  

evidence adduced by the prosecution is clear, cogent and  

credible.  The learned counsel would further contend that the  

case put forth by the prosecution in court is in conformity with  

the facts disclosed in the First Information Report.  It is  

graphically clear from the testimony of the witnesses, the  

weapons used in the assault that have been seized, the blood-

stained clothes which have been recovered and the evidence of  

the doctors who had examined the injured witnesses and  

conducted the post mortem that the prosecution has proved its  

case beyond reasonable doubt.  It is further canvassed by him

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that the plea on behalf of appellant that Section 34 of the IPC is  

not attracted, regard being had to the fact that the said accused  

had not inflicted any injury on the deceased and hence, had not  

shared the common intention, is absolutely unacceptable on  

apposite appreciation of the circumstances and the evidence  

brought on record which clearly establish the sharing of common  

intention.

18. Firstly, we shall proceed to deal with the earlier part of the  

incident.  PW-1, K. Sekhar, has testified that on 24.9.2002, A-1  

and A-2 had led their cows to graze in the sugarcane field of the  

deceased.  He has stated how he drove the cows to his house and  

tied them and how A-1 and A-2, the real brothers, came and  

assaulted the deceased and himself and threatened them with  

dire consequences before taking the cows back.  He has also  

mentioned that both the accused had pelted stones at them.  

Regarding the visit to the elders, summon to the accused and  

decision to resolve the controversy by convening a Panchayat on  

26.9.2002, the same has been clearly stated by him.  The said  

version of PW-1 has received corroboration from PWs-2 to 6 and  

10.  Nothing has really been brought out to create a slightest  

doubt on that aspect.  A contradiction which is sought to be

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highlighted is that there is no mention that the cows were led  

from the barren land of the accused to the sugarcane field of the  

deceased.  The assertions that the cows belonged to A-1 and A-2;  

that they went to the field of the deceased and destroyed the  

crops; that they were driven by PW-1 to his house; that A-1 and  

A-2 reached the house of the deceased, pelted stones, assaulted  

and forcibly drove back their cows have been clearly established.  

With this part of the occurrence, it is appropriate to connect the  

real genesis of the animosity, i.e., Dhanamma with whom A-1  

had an illicit relationship and she was sent to Bangalore.  P.W.1  

as well as PWs-3, 4, 5 and 10, have categorically deposed about  

this aspects.  In the cross-examination at the instance of A-1 and  

A-2 there was not even a proper suggestion to PW-1 in that  

regard.  As far as PW-4 is concerned, there is further assertion in  

the cross-examination that there was illicit intimacy between A-1  

and Dhanamma which hurt the feelings of the family.  Similar is  

the evidence of other witnesses.  To destroy the said aspect of the  

evidence, it was suggested that as a marriage alliance broke  

between the daughter of Dhanamma and another, she was sent  

to Bangalore.  The core part of the testimony has really not been

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shaken.  Thus, the genesis for the cavil and the subsequent  

disputes have been established beyond any reasonable doubt.

19. Coming to the incident on 25.9.2002, it is in the evidence of  

PW-1 that at about 11.00 a.m., while the deceased, he and his  

mother were at their residence, A-1 and A-2 came armed with  

weapons and trespassed into the house.  A-1 and A-2 dragged  

the deceased and A-1 assaulted the deceased with an iron rod on  

his head, neck and all parts of the body.  He has admitted that A-

3 Sivaram was a distant cousin and no role has been ascribed to  

him in the previous occurrence.  It is also in his testimony that  

A-3 had not gone near the deceased.

20. PW-2, another eye witness to the occurrence, has testified  

that A-1 had assaulted the deceased with the iron rod on the  

head, chest and other parts of his body.  She has not ascribed  

any role to accused No. 3.

21. PW-3 is the wife of the deceased.  She has categorically  

deposed that A-1 had assaulted her husband.  She has  

graphically stated the active role played by A-2.

22. PW-4, who is another injured witness, has deposed about  

the assault by A-1 and the beatings by A-2 to other injured

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persons who intervened.  Similar is the evidence of other injured  

eye witnesses.  Additionally, the earlier testimony has received  

corroboration from the medical evidence in material particular.

23. Now, we shall proceed to dwell with the criticism on the  

base of which the case of the prosecution is sought to be  

demolished.  The learned counsel for the appellant would submit  

that the injuries sustained by the accused have not been  

explained.  On a perusal of the evidence of PW-20, the  

Investigating Officer, it appears that when he arrested A-1  and  

A-2, there were certain injuries on their person and they stated  

that they had received the injuries at the hands of the deceased.  

It is worth noting that the injuries are superficial in nature, the  

accused were not sent for medical examination and further there  

is no suggestion whatsoever as regards the injuries sustained by  

them to any of the witnesses.  The story built up as regards the  

fight between the two groups does not remotely appeal to  

common sense and, more so, in the absence of any evidence, it is  

like building a castle in Spain.  Quite apart from the above, non-

explaining of injuries of the accused persons is always not fatal  

to the case of the prosecution.  In this context, we may usefully

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refer to Sri Ram v. State of M.P.1 wherein it has been held that  

mere non-explanation of the injuries by the prosecution may not  

affect the prosecution case in all cases and the said principle  

applies to cases where the injuries sustained by the accused are  

minor and superficial or where the evidence is so clear and  

cogent, so independent and disinterested and so probable,  

consistent and creditworthy that it far outweighs the effect of the  

omission on the part of the prosecution to explain the injuries.  

Hence, we repel the said submission of the learned counsel for  

the appellants.

24. The second submission of the learned counsel for the  

appellant is that all the witnesses, being relatives, are interested  

witnesses.  The occurrence in part took place inside the house  

and the rest of it slightly outside the premises of the deceased.  

Under these circumstances, the family members and the close  

relatives are bound to be the natural witnesses.  They intervened  

and sustained injuries.  Their sustaining of injuries has got  

support from the ocular evidence as well as the medical evidence.  

The same has been dislodged and if we allow ourselves to say so,  

not even a fragile attempt has been made to dislodge the same.  

1 (2004) 9 SCC 292

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By no stretch of imagination, it can be said that they are chance  

witnesses.  In the obtaining factual matrix, they are the most  

natural witnesses.  In this context, we may refer with profit the  

decision of this Court in Dalip Singh v. State of Punjab2,  

wherein Vivian Bose, J., speaking for the Court, observed as  

follows: -

“We are unable to agree with the learned  Judges of the High Court that the testimony of  the two eye-witnesses requires corroboration.  If the foundation for such an observation is  based on the fact that the witnesses are  women and that the fate of seven men hangs  on their testimony, we know of no such rule.  If it is grounded on the reason that they are  closely related to the deceased we are unable  to concur.  This is a fallacy common to many  criminal cases and one which another Bench  of this Court endeavoured to dispel in  Rameshwar v. The State of Rajasthan (1952)  SCR 377 at p. 390 = (AIR 1952 SC 54 at page  59).”

In the said case, it was further observed that a witness is  

normally to be considered independent unless he or she springs  

from sources which are likely to be tainted and that usually  

means unless the witness has cause, such as enmity against the  

accused, to wish to implicate him falsely.  Ordinarily, a close  

2 AIR 1953 SC 364

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relative would be the last to screen the real culprit and falsely  

implicate an innocent person.  It is true that when feelings run  

high and there is personal cause for enmity, there is a tendency  

to drag in an innocent person against whom a witness has a  

grudge along with the guilty, but foundation must be laid for  

such a criticism and the mere fact of relationship far from being a  

foundation is often a sure guarantee of truth.

25. In Masalti v. State of U.P.3, it has been ruled that  

normally close relatives of the deceased would not be considered  

to be interested witnesses who would also mention the names of  

the other persons as responsible for causing injuries to the  

deceased.

26. In Hari Obula Reddi and others v. The State of Andhra  

Pradesh4, a three-Judge Bench has held that evidence of  

interested witnesses is not necessarily unreliable evidence.  Even  

partisanship by itself is not a valid ground for discrediting or  

rejecting sworn testimony.  It cannot be laid down as an  

invariable rule that interested evidence can never form the basis  

of conviction unless corroborated to a material extent in material  

3 AIR 1965 SC 202 4 AIR 1981 SC 82

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particulars by independent evidence.  All that is necessary is that  

the evidence of interested witnesses should be subjected to  

careful scrutiny and accepted with caution.  If on such scrutiny,  

the interested testimony is found to be intrinsically reliable or  

inherently probable, it may, by itself, be sufficient, in the  

circumstances of the particular case, to base a conviction  

thereon.

27. In Kartik Malhar v. State of Bihar5, it has been opined  

that a close relative who is a natural witness cannot be regarded  

as an interested witness, for the term ‘interested’ postulates that  

the witness must have some interest in having the accused,  

somehow or the other, convicted for some animus or for some  

other reason.

28. In Pulicherla Nagaraju alias Nagaraja Reddy v. State  

of Andhra Pradesh6, while dealing with the liability of interested  

witnesses who are relatives, a two-Judge Bench observed that it  

is well settled that evidence of a witness cannot be discarded  

merely on the ground that he is either partisan or interested or  

close relative to the deceased, if it is otherwise found to be  

5 (1996) 1 SCC 614 6 AIR 2006 SC 3010

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trustworthy and credible.  The said evidence only requires  

scrutiny with more care and caution, so that neither the guilty  

escapes nor the innocent is wrongly convicted.  If on such careful  

scrutiny, the evidence is found to be reliable and probable, then  

it can be acted upon.  If it is found to be improbable or  

suspicious, it ought to be rejected.  Where the witness has a  

motive to falsely implicate the accused, his testimony should  

have corroboration in regard to material particulars before it is  

accepted.

29. Tested on the anvil and touchstone of the aforesaid  

principles, we find that the evidence of the injured witnesses who  

are close relatives to the deceased have really not embellished or  

exaggerated the case of the prosecution.  They are the most  

natural witnesses and there is nothing on record to doubt their  

presence at the place of occurrence.  By no stretch of  

imagination, it can be stated that the presence of the said  

witnesses at the scene of the crime and at the time of occurrence  

was improbable.  Their version is consistent and nothing has  

been suggested to bring any kind of inherent improbabilities in  

their testimonies.  

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30. The learned counsel for the appellant has endeavoured hard  

to highlight certain discrepancies pertaining to time, situation of  

the land, number of persons, etc., but in our considered opinion,  

they are absolutely minor in nature.  The minor discrepancies on  

trivial matters not touching the core of the matter cannot bring  

discredit to the story of the prosecution.  Giving undue  

importance to them would amount to adopting a hyper-technical  

approach.  The Court, while appreciating the evidence, should  

not attach much significance to minor discrepancies, for the  

discrepancies which do not shake the basic version of the  

prosecution case are to be ignored.  This has been so held in  

State of U.P. v. M.K. Anthony7; Appabhai and another v. State  

of Gujarat8; Rammi alias Rameshwar v. State of Madhya  

Pradesh9; State of H.P. v. Lekh Raj and another10; Laxman  

Singh v. Poonam Singh11 and Dashrath Singh v. State of U.P.12  

No evidence can ever be perfect for man is not perfect and man  

lives in an imperfect world.  Thus, the duty of the court is to see  

with the vision of prudence and acceptability of the deposition  

regard being had to the substratum of the prosecution story.  In  

7 AIR 1985 SC 48 8 AIR 1988 SC 696 9 AIR 1999 SC 3544 10 (2000) 1 SCC 247 11 (2004) 10 SCC 94 12 (2004) 7 SCC 408

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this context, we may reproduce a passage from the decision of  

this Court in State of Punjab v. Jagir Singh Baljit Singh and  

Karam Singh13, wherein H.R. Khanna, J., speaking for the  

Court, observed thus:-

“A criminal trial is not like a fairy tale  wherein one is free to give flight to one’s  imagination and phantasy.  It concerns itself  with the question as to whether the accused  arraigned at the trial is guilty of the crime with  which he is charged.  Crime is an event in real  life and is the product of interplay of different  human emotions.  In arriving at the conclusion  about the guilt of the accused charged with the  commission of a crime, the court has to judge  the evidence by the yardstick of probabilities,  its intrinsic worth and the animus of  witnesses.  Every case in the final analysis  would have to depend upon its own facts.  Although the benefit of every reasonable doubt  should be given to the accused, the courts  should not at the same time reject evidence  which is ex facie trustworthy on grounds  which are fanciful or in the nature of  conjectures.”

31. In view of our aforesaid analysis, we are unable to accept  

the submission of the learned counsel for the appellant that the  

evidence of the eye witnesses should be rejected solely on the  

ground that they are close relatives and interested witnesses.

13 AIR 1973 SC 2407

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32. The next plank of submission which has been ambitiously  

and zealously pyramided by the learned counsel for the appellant  

is that the appellant has been erroneously convicted with the aid  

of Section 34 of the IPC.  It is worth noting that the High Court  

has acquitted A-3 on the ground that he did not share the  

common intention.  Certain distinct features have been  

emphasised by the High Court.  They are (i) he is a distant cousin  

of A-1 and A-2 and belongs to a different village; (ii) he had no  

role to play with the genesis of the occurrence and the  

subsequent cavil; (iii) he had neither participated in the dragging  

of the deceased nor did he assault on his body; (iv) he was at a  

distance (v) A-1 and A-2 are real brothers and they have definite  

roles as regards the previous incident; and (vi) A-2 was  

intervened by the witnesses from assaulting the deceased.  The  

material evidence on record clearly shows that A-1 and A-2 had  

threatened the deceased with dire consequences.  Though they  

had gone to the elders on 24.9.2002 and the Panchayat was to be  

convened on 26.9.2002, yet on 25.9.2002 at 11.00 a.m., armed  

with lethal weapons, they went to the house of the deceased.

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33. In Ram Tahal and others v. The State of U.P.14, while  

dealing with the applicability of Section 34 of the IPC, a two-

Judge Bench observed there is no doubt that a common intention  

should be anterior in time to the commission of the crime  

showing a pre-arranged plan and prior concert, and though it is  

difficult in most cases to prove the intention of an individual, yet  

it has to be inferred from the act or conduct or other relevant  

circumstances of the case.  This inference can be gathered by the  

manner in which the accused arrived on the scene and mounted  

the attack, the determination and concert with which the beating  

was given or the injuries caused by one or some of them, the acts  

done by others to assist those causing the injuries, the concerted  

conduct subsequent to the commission of the offence, for  

instance, that all of them had left the scene of the incident  

together, and other acts which all or some may have done as  

would help in determining the common intention.  In other  

words, 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.   

14 AIR 1972 SC 254

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34. In Rajesh Govind Jagesha v. State of Maharashtra15, a  

two-Judge Bench has held that the existence of common  

intention can be inferred from the attending circumstances of the  

case and the conduct of the parties.  No direct evidence of  

common intention is necessary.  For the purpose of common  

intention, even the participation in the commission of the offence  

need not be proved in all cases.

35. In Bishna alias Bhiswadeb Mahato and others v. State of  

West Bengal16, it has been held that for the purpose of attracting  

Section 34 of the IPC, specific overt act on the part of the accused  

is not necessary.   He may even wait and watch.  Inaction on the  

part of an accused may sometime go a long way to achieve a  

common intention or an object with others.

36. In Manik Das and others v. State of Assam17, it has been  

held as follows:-

“The Section does not say “the common  intention of all”, nor does it say “and  intention common to all”.  Under the  provisions of Section 34 the essence of the  liability is to be found in the existence of a  

15 AIR 2000 SC 160 16 AIR 2006 SC 302

17 AIR 2007 SC 2274

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common intention animating the accused  leading to the doing of a criminal act in  furtherance of such intention.  As a result of  the application of principles enunciated in  Section 34, when an accused is convicted  under Section 302 read with Section 34, in  law it means that the accused is liable for the  act which caused death of the deceased in the  same manner as if it was done by him alone.  The provision is intended to meet a case in  which it may be difficult to distinguish  between acts of individual members of a party  who act in furtherance of the common  intention of all or to prove exactly what part  was taken by each of them.  As was observed  in Ch. Pulla Reddy and Ors. v. State of  Andhra Pradesh (AIR 1993 SC 1899).  Section  34 is applicable even if no injury has been  caused by the particular accused himself.  For applying Section 34 it is not necessary to  show some overt act on the part of the  accused.”

37. Coming to the case at hand, the appellant  had an inimical  

relationship with the deceased and his family as the previous  

occurrences would show.  Despite a consensus being arrived at  

that there would be a panchayat on 26.9.2002, they, armed with  

deadly weapons, went to the house of the deceased and dragged  

the deceased.   The previous  meeting  of minds with pre-

arranged plan or prior concert as has been held  in number of  

authorities is difficult to establish by way of direct evidence.  

They are to be inferred from the conduct and circumstances.  As

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is evincible, the weapons they carried were lethal in nature.  The  

deceased was absolutely helpless and not armed with any  

weapon.  It was most unexpected on their part as normally it was  

expected that there would be a panchayat on the next day.  The  

two brothers, A-1 and A-2, dragged the deceased outside the  

house and A-1 gave the blows.  True it is that A-2 did not give the  

blow, but his participation from the beginning till the end would  

clearly reveal that he shared the common intention with his  

brother.  He had assaulted the other witnesses who had tried to  

intervene.  Thus, though he might not have inflicted the injury,  

yet it can safely be concluded that he shared the common  

intention making him jointly liable.  

38. In view of our preceding analysis, we do not find any merit  

in this appeal and, accordingly, the same stands dismissed.  

............................................J.                        [DR. B.S. Chauhan]

............................................J.               [Dipak Misra]

New Delhi; May 15, 2012.

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