BALU @ BAL SUBRAMANIAM & ANR. Vs. STATE (U.T. OF PONDICHERRY)

Tags Sentence Acquittal

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 502 of 2007, Judgment Date: Oct 16, 2015

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.

 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.

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  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.

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
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 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 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 (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 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 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 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 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 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 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 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

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