KRISHNAMURTHY @ GUNODU AND OTHERS versus STATE OF KARNATAKA on 16 February 2022

KRISHNAMURTHY @ GUNODU AND OTHERS

v.

STATE OF KARNATAKA

(Criminal Appeal No. 288 of 2022)

FEBRUARY 16, 2022

[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]

Penal Code, 1860: ss. 302 and 34 – Murder – Commonintention – Three accused – Conviction of appellants-accused (K,T, G) for murder of victim-deceased u/s. 302 r/w s.34 and for offencesu/ss.447, 504, 506, 341 – Division Bench of High Court affirmedtheir conviction – Hence instant appeal – Held: The assault onvictim-deceased by appellant-K was fearsome, brutal and cruel –He had pinned down and tromped the deceased using his legs andhands fracturing four ribs, contusing and injuring the spinal cord,the chest and neck of the deceased – The injuries were sufficient inordinary course of nature to cause death – Since the death of thevictim-deceased was homicidal as a result and direct consequenceof the injuries inflicted by appellant-K, he was rightly convictedunder the aforesaid sections including s.302 – As regards, appellant-T and appellant-G, their acts cannot be primarily connected withthe violence perpetuated by appellant-K – Appellants-T and G hadnot assaulted the deceased after he had fallen down and were notresponsible for the injuries suffered by the deceased resulting inhis death – The assault by appellant-K and the result outcome wereunexpected to them – Appellants-T and G are entitled to the benefitof doubt on the ground that it cannot be with certainty held thatthey had common intention – Therefore, they cannot be held guiltyu/s.300 or even s.299 IPC – Their conviction is converted to u/s.323 r/w s.34, however their conviction for individual offences u/ss.447, 504, 506 and 341 is sustained.

Penal Code, 1860: s.34 – Applicability of – Common intention– To attract applicability of s.34, the prosecution is under anobligation to establish that there existed a common intention beforea person can be vicariously convicted for the criminal act of another– The ultimate act should be done in furtherance of common intention– Common intention requires a pre-arranged plan, which can be

433

A

B

C

D

EF

G

H

Aeven formed at the spur of the moment or simultaneously just beforeor even during the attack – For proving common intention, theprosecution can rely upon direct proof of prior concert orcircumstances which necessarily lead to that inference – However,incriminating facts must be incompatible with the innocence of theaccused and incapable of explanation by any other reasonableBhypothesis.

Penal Code, 1860: s.34 – Common intention – Principles –For s.34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminalact is performed – Common intention can be formed just a minuteCbefore the actual act happens – Common intention is necessarily apsychological fact as it requires prior meeting of minds – In suchcases, direct evidence normally will not be available and in mostcases, whether or not there exists a common intention has to bedetermined by drawing inference from the facts proved – This requiresDan inquiry into the antecedents, conduct of the co-participants orperpetrators at the time and after the occurrence – The manner inwhich the accused arrived, mounted the attack, nature and type ofinjuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrenceor the attack etc. are all relevant facts from which inference has toEbe drawn to arrive at a conclusion whether or not the ingredientsof s.34 are satisfied.

Conclusion

Penal Code, 1860: s.34 – Liability of co-perpetrator – A co-perpetrator, who shares a common intention, will be liable only tothe extent that he intends or could or should have visualized theFpossibility or probability of the final act – If the final outcome oroffence committed is distinctly remote and unconnected with thecommon intention, he would not be liable – This test obviously isfact and circumstance specific and no strait jacket universal formulacan be applied – s.34 makes a co-perpetrator, who had participatedGin the offence, equally liable on the principle of joint liability – Fors.34 to apply, there should be common intention between the co-perpetrators, which means that there should be community of purposeand common design or pre-arranged plan.

Partly allowing the appeal, the Court

HELD: 1. The specific acts attributed to appellant-K arethat after the victim-deceased had fallen down, he had kickedand assaulted him on the neck with his legs and hands. The versionon the role of appellant-K deposed by PW-1 and PW-4 getscorroboration from the Post-Mortem Report and the depositionof PW-9 who had conducted the post-mortem. The assault byappellant-K, who though not armed with any weapon, wasfearsome, brutal and cruel. He had pinned down and tromped thedeceased using his legs and hands fracturing four ribs, contusing,and injuring the spinal cord, the chest, and the neck of thedeceased. Given that the injuries caused were intended, thirdlimb of Section 300 IPC would get attracted. The injuries weresufficient in ordinary course of nature to have caused death. Thedeath of the deceased is homicidal as a result and directconsequence of the injuries inflicted by appellant-K. [Paras 3 and4][438-C-D, F-H]

2. Appellant-T and appellant-G had not assaulted thedeceased after he had fallen down and were not responsible forthe injuries suffered by the deceased resulting in his death.Appellant-T and appellant-G are entitled to the benefit of doubton the ground that it cannot be with certainty held that they hadcommon intention, viz. the injuries inflicted by appellant-K onthe deceased after he had fallen down. They did not participatethereafter by physically assaulting or causing any injury to thedeceased. They did not facilitate and help appellant-K in theassault he perpetuated. It cannot be accepted that they couldhave preconceived the brutal assault by appellant-K who had puthis knees on the neck and jumped on the chest of the deceasedto cause the injuries resulting in his death. Clearly, they had notjoined appellant-K when he had acted and have stood by. Thereis nothing to indicate that their acts, that is, holding the handsand pulling the legs of the deceased making him fall down, weredone in furtherance of the common intention that appellant-Kwould thereupon put his leg on the neck of the deceased, crushedhis chest and fracture the ribs. Their acts cannot be primarilyconnected with the violence perpetuated by appellant-K. Given A

B

C

D

E

F

G

Athe acts attributed to appellant-T and appellant-G, the assault byappellant-K and the resultant outcome were unexpected.Therefore, they cannot be held guilty for the offence under Section300 or even Section 299 of the IPC on the ground that they sharedcommon intention as understood on application of Section 34 IPC.Consequently, their conviction is converted to Section 323 readBwith Section 34 IPC and sentence them to the maximum sentencespecified therein of one year. This Court also uphold theconviction of appellant-T and appellant-G for individual offencesunder Sections 447, 504, 506 and 341 IPC and the sentencesimposed under the aforesaid Sections, which are up to three yearsCof rigorous imprisonment and fine with default stipulations.[Paras 7, 20, 21][441-B; 452-F-H; 453-A-E]

Suresh and Another v. State of Uttar Pradesh (2001) 3SCC 673 : [2001] 2 SCR 263; Tukaram GanpatPandare v. State of Maharashtra (1974) 4 SCC 544;DRamaswami Ayyangar v. State of Tamil Nadu (1976) 3SCC 779 : [1976] 3 SCR 876; Afrahim Sheikh andOthers v. State of West Bengal AIR 1964 SC 1263 :[1964] 6 SCR 172; Krishnan and Another v. State ofKerala (1996) 10 SCC 508 : [1996] 5 Suppl. SCR 405;Surendra Chauhan v. State of Madhya Pradesh (2000)E4 SCC 110 : [1996] 5 Suppl. SCR 405; Mithu Singh v.State of Punjab (2001) 4 SCC 193; Rajesh Kumar v. Stateof Himachal Pradesh (2008) 15 SCC 705 : [ 2008] 14SCR 234 – relied on.

Arun v. State by Inspector of Police, Tamil Nadu (2008)F15 SCC 501 : [2008] 17 SCR 279; Hardev Singh andAnother v. State of Punjab (1975) 3 SCC 731; DharamPal and Others v. State of Haryana (1978) 4 SCC 440– referred to.

Bashir v. State AIR 1953 All 668; Barendra KumarGGhosh v. The King-Emperor 4 ILR (1925) 52 Cal. 1974;King Emperor v. Barendra Kumar Ghose AIR 1924Calcutta 257 – referred to.

KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OF

KARNATAKA

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.288 of 2022.

From the Judgment and Order dated 20.02.2021 of the High Courtof Karnataka at Kalaburagi Bench in Criminal Appeal No.200147 of2017.

Basava Prabhu P. Patil, Sr. Adv., Sharangouda Patil, Ms. SupreetaSharangouda, Aman Kant Mishra, Geet Ahuja, M/s S-Legal Associates,Advs. for the Appellants.

Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,Advs. for the Respondent.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. Leave granted.

2. This appeal by Krishnamurthy (also described as KrishnaMurthy), Gopala and Thimmappa takes exception to the judgment dated20[th] February 2021 passed in Criminal Appeal No. 200147 of 2017,whereby the Division Bench of the High Court of Karnataka, KalaburagiBench, has affirmed their conviction under Section 302 read with Section34 and individually for the offences under Sections 447, 504, 506 and341 of the Indian Penal Code, 1860 (for short, ‘IPC’).

A

B

C

D

E

F

G

H

A3. Having examined the evidence in detail, we agree thatKrishnamurthy has been rightly convicted under the aforesaid Sections,including Section 302 of the IPC. Testimonies of Channamma (PW-1),Ramanjaneya (PW-4), Dullaiah (PW-6) and Dodda Narasimha (PW-7),all eyewitnesses, implicate Krishnamurthy as the perpetrator who hadassaulted the deceased-Venkatarama after he had fallen down. In viewBof our analysis of the testimonies in the ensuing paragraphs, we havereservations in entirely relying upon the depositions of Dullaiah (PW-6)and Dodda Narasimha (PW-7). But we have no reservation in acceptingthe depositions of Channamma (PW-1) and Ramanjaneya (PW-4)implicating Krishnamurthy. We have subsequently reproduced theCrelevant portions of their depositions. Suffice at this stage is to aver thatthe specific acts attributed to Krishnamurthy are that after Venkataramahad fallen- down, he had kicked and assaulted him on the neck with hislegs and hands. The version on the role of Krishnamurthy deposed byChannamma (PW-1) and Ramanjaneya (PW-4) gets corroboration fromthe Post-Mortem Report (Exhibit P-6) and the deposition of Dr.DSharanabasava (PW-9) who had conducted the post-mortem.Venkatarama had suffered abraded contusion of reddish blue colour onthe neck area and abraded contusion reddish in colour on the left side ofthe chest. Internal dissection had revealed profuse bleeding over themuscles of the neck surrounding the arteries that were ruptured. TheEleft side ribs 4, 5, 6 and 7 were fractured. The utral part of the stemumwas broken into two pieces. The spinal cord at the level of C-5, C-6 andC-7 was contused, edematous and elongated. The cause of death wasopined as haemorrhagic shock as a result of multiple injuries.

4. The assault by Krishnamurthy, who though not armed with anyFweapon, was fearsome, brutal and cruel. He had pinned down andtromped Venkatarama using his legs and hands fracturing four ribs,contusing, and injuring the spinal cord, the chest, and the neck of thedeceased. Given that the injuries caused were intended, third limb ofSection 300 IPC would get attracted. The post mortem report and deposition of Dr. Sharanabasava (PW-9) prove the cause of death onGaccount of injuries caused in the chest region, asphyxia, and facture ofbones. The death was instantaneous, as has been deposed by Channamma(PW-1) and Ramanjaneya (PW-4). The injuries were sufficient in ordinarycourse of nature to have caused death. The death of Venkatarama ishomicidal as a result and direct consequence of the injuries inflicted byHKrishnamurthy.

5. This brings us to the role and acts of Gopala and Thimmappaand whether they can be individually convicted for murder ofVenkatarama. We begin by referring to the depositions of Dullaiah (PW-6) and Dodda Narasimha (PW-7), which are verbatim identical, and,therefore, the suspicion that the said witnesses were prompted. However,we would not doubt their presence at the place of occurrence as theirpresence was natural, they being farmers who were undertakingcultivation in the adjacent fields. On the actual occurrence they bothhave deposed:

“While on my way, Venkatarama, his wife, and their sonRamanjineya (sic) were in the land on Gangawara road. Then,accused Thimmappa, ‘A’ (identity suppressed being a juvenile)were holding Venkataramana’s (sic) hands. Accused Gopala waspulling down Venkataramana’s (sic) legs and as such he fell downon his back. Then, Gopala, Krishnamurthy assaulted with hands,kicked with legs and attacked with their hands whenVenkataramana (sic) had fallen down. At that time, I along withRamanjineya (sic), Dodda Narasimhalu were present. We didnot try to save hence since accused had threatened us not to gonear them.”

Dullaiah (PW-6) and Dodda Narasimha (PW-7) in their cross-examination had vacillated and hesitantly accepted that they did not knowas to who amongst the accused ‘A’ and Thimmappa had held the handsof the deceased and which one had pulled the legs of the deceasedmaking him fall down. They testified that the accused ‘Venkatarama’kicked with both legs and assaulted with hands. This statement iserroneous and could well be a typographical error as Venkatarama wasthe deceased and not an accused. However, it appears from thedepositions that one of the accused had kicked with both legs andassaulted the deceased with his hands, a fact affirmatively deposed toby Channamma (PW-1) and Ramanjaneya (PW-4).

6. Channamma (PW-1), in her examination in chief on theoccurrence and the acts and role of the accused, has deposed:

“Accused No.3 Thimmappa and accused No.4 ‘A’ twisted backmy husband’s both hands and held them. Accused No.2 Gopalapulled my husband down through his leg. Accused No.1Krishnamurthy stamped my husband’s neck with his left leg andjumped upon it.”

A

B

C

D

E

F

G

H

AIn her cross-examination she denied the suggestion thatThimmappa and ‘A’, had neither twisted nor held the hands of her husbandand Gopala had not pulled him down with his legs. She has also deniedthat Krishnamurthy had not jumped on her husband’s legs and stompedwith his legs.BRamanjaneya (PW-4), about twelve years old when his evidencewas recorded, avers that he along with his mother and father were attheir farm land harvesting and piling up Sajje crop. At about noon, thefour accused came to the spot and had threatened their father who hadtried to run away. Thereupon:

C“All the four of them chased him and accused Thimmappa and‘A’ held both hands of my father. Accused Gopala held both legsof my father and pulled him. Then, my father pleaded and felldown with his head down. Accused Krishnamurthy kicked withhis hands and legs and assaulted heavily on the neck. At that time,when my mother went ahead to save him, all the accused personsDthreatened to do away with our lives. Then, afraid by the same,we did not go ahead. Accused Thimmappa told that, my father isdead and left and went away.”

7. We would accept the versions given by Channamma (PW-1)and Ramanjaneya (PW-4), albeit record that there could be some minorEexaggerations. However, what is clearly discernible, and which alleyewitnesses including Dullaiah (PW-6) and Dodda Narasimha (PW-7)accept, is that the accused were unarmed and they did not even have astick with them. This indicates absence of a premediated attack to murderVenkatarama. Further, the roles attributed to Thimmappa and GopalaFare different from the brutal assault leashed by Krishnamurthy afterVenkatarama had fallen down. Roles of Thimmappa and ‘A’, as per theversions given by Channamma (PW-1) and Ramanjaneya (PW-4), werelimited to holding and twisting the hands of Venkatarama. Gopala hadpulled down the deceased by holding his legs. As per Dullaiah (PW-6)and Dodda Narasimha (PW-7), Gopala and Krishnamurthy had thenGassaulted Venkatarama, but as per the versions of Channamma (PW-1)and Ramanjaneya (PW-4), only Krishnamurthy had assaulted and notGopala. All of them in unison state that Thimmappa had not participatedin the assault after Venkatarama had fallen down. Given the abovediscrepancy and for reasons recorded above casting doubt on the versionsHgiven by Dullaiah (PW-6) and Dodda Narasimha (PW-7), we accept that it was Krishnamurthy alone who had swung into action, kicked andassaulted the deceased with his hands and legs and stomped with his leftleg on his neck. He had also jumped on his chest. The post mortemreport and the deposition of Dr. Sharanabasava (PW-9) have attributedthe death of the deceased on account of injuries caused by Krishnamurthy.The deceased had not suffered any fracture on his hands, arms or legs.Thus, we accept that Thimmappa and Gopala had not assaultedVenkatarama after he had fallen down and were not responsible for theinjuries suffered by Venkatarama resulting in his death.

8. The underlying basic assumption or foundation in criminal lawis the principle of personal culpability. A person is criminally responsiblefor act or transactions in which he is personally engaged or in someother way had participated. However, there are various modes andcapacities in which a person can participate in a crime. He can instigate,be a facilitator or otherwise aid execution of a crime. Section 34 IPCincorporates the principle of shared intent, that is, common design betweenthe two perpetrators, which makes the second or other participants alsoan equal or joint perpetrator as the main or principal perpetrator[1]. Thequestion which arises is whether Thimmappa and Gopala can be attributedcommon intention under Section 34 IPC to commit murder under Section300 or even offence under Section 304 IPC.

9. In Suresh and Another v. State of Uttar Pradesh,[2] R.P. Sethi,J. in his concurring judgment (for himself and B.N. Agarwal, J.) on thequestion of common intention has observed:

“38. Section 34 of the Penal Code, 1860 recognises the principleof vicarious liability in criminal jurisprudence. It makes a personliable for action of an offence not committed by him but by anotherperson with whom he shared the common intention. It is a rule ofevidence and does not create a substantive offence. The sectiongives statutory recognition to the commonsense principle that ifmore than two persons intentionally do a thing jointly, it is just thesame as if each of them had done it individually. There is nogainsaying that a common intention presupposes prior concert,which requires a prearranged plan of the accused participating in

1 We have used the said terms for want of a better phrase. Section 34 IPC does notpostulate such distinction 2 (2001) 3 SCC 673

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

an offence. Such preconcert or preplanning may develop on thespot or during the course of commission of the offence but thecrucial test is that such plan must precede the act constituting anoffence. Common intention can be formed previously or in thecourse of occurrence and on the spur of the moment. The existenceof a common intention is a question of fact in each case to beproved mainly as a matter of inference from the circumstancesof the case.

39. The dominant feature for attracting Section 34 of the PenalCode, 1860 (hereinafter referred to as “the Code”) is the elementof participation in absence resulting in the ultimate “criminal act”.The “act” referred to in the later part of Section 34 means theultimate criminal act with which the accused is charged of sharingthe common intention. The accused is, therefore, made responsiblefor the ultimate criminal act done by several persons in furtheranceof the common intention of all. The section does not envisage theseparate act by all the accused persons for becoming responsiblefor the ultimate criminal act. If such an interpretation is accepted,the purpose of Section 34 shall be rendered infructuous.

40. Participation in the crime in furtherance of the common intentioncannot conceive of some independent criminal act by all accusedpersons, besides the ultimate criminal act because for that individualact law takes care of making such accused responsible under theother provisions of the Code. The word “act” used in Section 34denotes a series of acts as a single act. What is required underlaw is that the accused persons sharing the common intentionmust be physically present at the scene of occurrence and beshown not to have dissuaded themselves from the intended criminalact for which they shared the common intention. Culpability underSection 34 cannot be excluded by mere distance from the sceneof occurrence. The presumption of constructive intention, however,has to be arrived at only when the court can, with judicial servitude,hold that the accused must have preconceived the result that ensuedin furtherance of the common intention. A Division Bench of thePatna High Court in Satrughan Patar v. Emperor held that it isonly when a court with some certainty holds that a particularaccused must have preconceived or premeditated the result whichensued or acted in concert with others in order to bring about thatresult, that Section 34 may be applied.”

10. Appropriate at this stage would be reference to an earlierdecision of this Court in Afrahim Sheikh and Others v. State of WestBengal[3], which referred to with approval the following quote on theexpression “act” explained by Judicial Commissioner in Barendra KumarGhosh v. The King-Emperor[4]:

“criminal act means that unity of criminal behaviour, which resultsin something, for which an individual would be punishable, if itwere all done by himself alone i.e. a criminal offence”.

This “criminal act” under Section 34 IPC, it was held, applieswhere a criminal act is done by several persons in furtherance of commonintention of all. The criminal offence is the final result or outcome but itmay be through achievement of individual or several criminal acts. Eachindividual act may not constitute or result in the final offence. When aperson is assaulted by a number of accused, the “ultimate criminal act”normally will constitute the offence which finally results or which mayresult in death, simple hurt, grievous hurt, etc. This is the final result,outcome or consequence of the criminal act, that is, action or act ofseveral persons. Each person will be responsible for his own act asstipulated in Section 38 IPC. However, Sections 34 and 35 expand thescope and stipulate that if the criminal act is a result of common intention,every person, who has committed a part of the criminal act with thecommon intention, will be responsible for the offence. It was accordinglyheld in Afrahim Sheikh and Ors. (supra) as under:

“8. …Provided there is common intention, the whole of the resultperpetrated by several offenders, is attributable to each offender,notwithstanding that individually they may have done separateacts, diverse or similar. Applying this test to the present case, if allthe appellants shared the common intention of severely beatingAbdul Sheikh and some held him down and others beat him withtheir weapons, provided the common intention is accepted, theywould all of them be responsible for the whole of the criminal act,that is to say, the criminal offence of culpable homicide notamounting to murder which was committed, irrespective of thepart played by them. The common intention which is required bythe section is not the intention which s. 299 mentions in its first 3 AIR 1964 SC 1263

4 ILR (1925) 52 Cal. 197

A

B

CDE

F

G

A

B

C

D

E

F

G

H

part. That intention is individual to the offender unless it is sharedwith others by a prior concert in which case Sections 34 or 35again come into play. Here, the common intention was to beatAbdul Sheikh, and that common intention was, as we have heldabove, shared by all of them. That they did diverse acts wouldordinarily make their responsibility individual for their own acts,but because of the common intention, they would be responsiblefor the total effect that they produced if any of the three conditionsin s. 299, I.P.C. applied to their case. If it were a case of the firsttwo conditions, the matter is simple. They speak of intention ands. 34 also speaks of intention.

9. The question is whether the second part of s. 304 can be madeapplicable. The second part no doubt speaks of knowledge anddoes not refer to intention which has been segregated in the firstpart. But knowledge is the knowledge of the likelihood of death.Can it be said that when three or four persons start beating a manwith heavy lathis, each hitting his blow with the common intentionof severely beating him and each possessing the knowledge thatdeath was the likely result of the beating, the requirements of s.304, Part II are not satisfied in the case of each of them? If itcould be said that knowledge of this type was possible in the caseof each one of the appellants, there is no reason why s. 304, PartII cannot be read with s. 34. The common intention is with regardto the criminal act, i.e., the act of beating. If the result of thebeating is the death of the victim, and if each of the assailantspossesses the knowledge that death is the likely consequence ofthe criminal act, i.e., beating, there is no reason why s. 34 or s. 35should not be read with the second part of s. 304 to make eachliable individually.”

11. Accordingly, to attract applicability of Section 34 IPC, theprosecution is under an obligation to establish that there existed a commonintention before a person can be vicariously convicted for the criminalact of another. The ultimate act should be done in furtherance of commonintention. Common intention requires a pre-arranged plan, which can beeven formed at the spur of the moment or simultaneously just before oreven during the attack. For proving common intention, the prosecutioncan rely upon direct proof of prior concert or circumstances whichnecessarily lead to that inference. However, incriminating facts must be KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OFKARNATAKA [SANJIV KHANNA, J.]

incompatible with the innocence of the accused and incapable ofexplanation by any other reasonable hypothesis. By Section 33 of IPC, acriminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, whilethe offence was committed, may be liable for the offence since in crimesas in other things “they also serve who only stand and wait”. Thus,common intention or crime sharing may be by an overt or covert act, byactive presence or at distant location but there should be a measure ofjointness in the commission of the act. Even a person not doing a particularact but only standing as a guard to prevent any prospective aid to thevictim may be guilty of common intention.[5] Normally, however, in a caseof offence involving physical violence, physical presence at the place ofactual commission is considered to be safe for conviction but it may notbe mandatory when pre-arranged plan is proved and established beyonddoubt. Facilitation in execution of the common design may be possiblefrom a distance and can tantamount to actual participation in the criminalact. The essence and proof that there was simultaneous consensus ofmind of co- participants in the criminal action is however, mandatoryand essential.[6] In Krishnan and Another v. State of Kerala,[7] it hasbeen observed that an overt act is not a requirement of law for Section34 IPC to operate but prosecution must establish that the personsconcerned shared the common intention, which can be also gatheredfrom the proved facts.

12. In Suresh’s case (supra), this Court also examined whether apassive co-perpetrator can be liable under Section 34 IPC. This casequotes with approval the following passage from the judgment ofRichardson, J. in King Emperor v. Barendra Kumar Ghose[8]:

“It appears to me that Section 34 regards the act done as theunited act of the immediate perpetrator and his confederatespresent at the time and that the language used is susceptible ofthat meaning. The language follows a common mode of speech.In R. v. Salmon three men had been negligently firing at a mark.One of them — it was not known which — had unfortunatelykilled a boy in the rear of the mark. They were all held guilty of

5 See Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544

6 See Ramaswami Ayyangar v. State of Tamil Nadu, (1976) 3 SCC 779

7 (1996) 10 SCC 508

8 AIR 1924 Calcutta 257

AB

C

D

E

F

G

H

A

Amanslaughter. Lord Coleridge, C.J., said: ‘The death resulted fromthe action of the three and they are all liable.’ Stephen, J., said:‘Firing a rifle’ under such circumstances ‘is a highly dangerousact, and all are responsible; for they unite to fire at the spot inquestion and they all omit to take any precautions whatever toprevent danger’.B

Moreover, Sections 34, 35 and 37 must be read together, and theuse in Section 35 of the phrase ‘each of such persons who joins inthe act’ and in Section 37 of the phrase, ‘doing any one of thoseacts, either singly or jointly with any other person’ indicates theCtrue meaning of Section 34. So Section 38 speaks of ‘severalpersons engaged or concerned in a criminal act’. The differentmodes of expression may be puzzling but the sections must, Ithink, be construed as enunciating a consistent principle of liability.Otherwise the result would be chaotic.

DTo put it differently, an act is done by several persons when allare principals in the doing of it, and it is immaterial whether theyare principals in the first degree or principals in the second degree,no distinction between the two categories being recognised.

This view of Section 34 gives it an intelligible content in conformityEwith general notions. The opposing view involves a distinctiondependent on identity or similarity of act which, if admissible atall, is wholly foreign to the law, both civil and criminal, and leadsnowhere.”

13. At this stage, we would like to refer to an old judgment of aFDivision Bench of the Allahabad High Court in the case of Bashir v.State[9], which by giving examples explains the scope and significance ofthe words “in furtherance” used in Section 34 of the IPC in the followingmanner:

“18. The use of the words “in furtherance” suggests that SectionG34 is applicable also where the act actually done is not exactly theact jointly intended by the conspirators to be done, otherwise, thewords would not be needed at all. The common intention can beto do one act and another act can be done in furtherance of the common intention. It may be a preliminary act necessary to bedone before achieving the common intention; or it may becomenecessary to do it after achieving the common intention or it maybe done while achieving the common intention. Going to the spotin a motor car is an act in furtherance of the common intention tocommit a crime there; but if while going there the driver runs overand kills a pedestrian, the collision is merely incidental and therunning aver of the pedestrian is not in furtherance of the commonintention. If, however, a conspirator who wishes to commit a crimeinvolving violence against X is impeded by Y and throws Y asidein order to get at X, the attack upon Y is made in furtherance ofthe common intention; see Russell on Crime, pages 557 and 558.”

The aforesaid quotation emphasizes that it is essential that eachco-perpetrator should have necessary intent to participate or otherwisehave requisite awareness or knowledge that the offence is likely to becommitted in view of the common design. It also follows that in somecases merely accompanying the principal accused may not establishcommon intention. A co-perpetrator, who shares a common intention,will be liable only to the extent that he intends or could or should havevisualized the possibility or probability of the final act. If the final outcomeor offence committed is distinctly remote and unconnected with thecommon intention, he would not be liable. This test obviously is fact andcircumstance specific and no straitjacket universal formula can be applied.Two examples quoted in Bashir’s case (supra) are relevant and explainthe widest and broad boundaries of Section 34 IPC and at the same timewarn that the ambit should not be extended so as to hold a person liablefor remote possibilities, which were not probable and could not beenvisaged. The examples also bring out the distinction between thecriminal acts and the intent of a co-perpetrator; and the actual offencecommitted by the principal or main perpetrator.

14. In Surendra Chauhan v. State of Madhya Pradesh,[10] it hasbeen observed:

“11. Under Section 34 a person must be physically present at theactual commission of the crime for the purpose of facilitating orpromoting the offence, the commission of which is the aim of the A

B

C

D

EF

G

Ajoint criminal venture. Such presence of those who in one way orthe other facilitate the execution of the common design is itselftantamount to actual participation in the criminal act. The essenceof Section 34 is simultaneous consensus of the minds of personsparticipating in the criminal action to bring about a particular result.Such consensus can be developed at the spot and thereby intendedBby all of them. (Ramaswami Ayyangar v. State of T.N.) Theexistence of a common intention can be inferred from the attendingcircumstances of the case and the conduct of the parties. Nodirect evidence of common intention is necessary. For the purposeof common intention even the participation in the commission ofCthe offence need not be proved in all cases. The common intentioncan develop even during the course of an occurrence. (RajeshGovind Jagesha v. State of Maharashtra) To apply Section 34IPC apart from the fact that there should be two or more accused,two factors must be established : (i) common intention, and (ii)participation of the accused in the commission of an offence. If aDcommon intention is proved but no overt act is attributed to theindividual accused, Section 34 will be attracted as essentially itinvolves vicarious liability but if participation of the accused in thecrime is proved and a common intention is absent, Section 34cannot be invoked. In every case, it is not possible to have directEevidence of a common intention. It has to be inferred from thefacts and circumstances of each case.”

15. In Mithu Singh v. State of Punjab,[11] this Court acquittedMithu Singh under Section 302 read with Section 34 IPC, but upheld hisconviction under Section 27 of the Arms Act, 1959 observing thatFinference as to common intention should not be readily drawn; culpableliability can arise only if such inference can be drawn with a degree ofassurance. In the facts of the said case, it was observed that the requireddegree of assurance was missing. At the same time, it was observedthat while examining the question of common intention, the court shouldbe conscious and aware that it is difficult, if not impossible, to collect andGproduce direct evidence and in most cases inference as to the intentionshall be drawn from the acts and conduct of the accused and otherrelevant circumstances as available. The entire observation or ratio ofthis Court has to be kept in mind.

16. In Rajesh Kumar v. State of Himachal Pradesh,[12] this Courthad elucidated and laid down the following principles as applicable toSection 34 IPC:

“13. Section 34 has been enacted on the principle of joint liabilityin the doing of a criminal act. The Section is only a rule ofevidence and does not create a substantive offence. Thedistinctive feature of the Section is the element of participationin action. The liability of one person for an offence committedby another in the course of criminal act perpetrated by severalpersons arises under Section 34 if such criminal act is done infurtherance of a common intention of the persons who join incommitting the crime. Direct proof of common intention is seldomavailable and, therefore, such intention can only be inferred fromthe circumstances appearing from the proved facts of the caseand the proved circumstances. In order to bring home the chargeof common intention, the prosecution has to establish by evidence,whether direct or circumstantial, that there was plan or meetingof mind of all the accused persons to commit the offence forwhich they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily bebefore the commission of the crime. The true contents of theSection are that if two or more persons intentionally do an actjointly, the position in law is just the same as if each of them hasdone it individually by himself. As observed in Ashok Kumar v.State of Punjab (AIR 1977 SC 109), the existence of a commonintention amongst the participants in a crime is the essentialelement for application of this Section. It is not necessary thatthe acts of the several persons charged with commission of anoffence jointly must be the same or identically similar. The actsmay be different in character, but must have been actuated byone and the same common intention in order to attract theprovision.”

After referring to the facts in Rajesh Kumar (supra), theconviction was converted from Section 302 IPC to one under Section326 IPC highlighting the factual position that the accused in question hadassaulted the victim by a danda on a non-vital part.

A

BC

DEF

G

H

A17. In Arun v. State by Inspector of Police, Tamil Nadu,[13]reference was made to the decision in Hardev Singh and Another v.State of Punjab[14]and benefit was given to one of the accused as he didnot act conjointly with others in committing the murder. This Court referredto Dharam Pal and Others v. State of Haryana,[15] on the test whichshould be applied to invoke and convict a co-accused under Section 34BIPC. We also deem it appropriate to reproduce the said test:

A

“14. It may be that when some persons start with a pre-arrangedplan to commit a minor offence, they may in the course of theircommitting the minor offence come to an understanding to committhe major offence as well. Such an understanding may appearfrom the conduct of the persons sought to be made vicariouslyliable for the act of the principal culprit or from some otherincriminatory evidence but the conduct or other evidence must besuch as not to leave any room for doubt in that behalf.

C

15. A criminal court fastening vicarious liability must satisfy itselfDas to the prior meeting of the minds of the principal culprit and hiscompanions who are sought to be constructively made liable inrespect of every act committed by the former. There is no law toour knowledge which lays down that a person accompanying theprincipal culprit shares his intention in respect of every act whichEthe latter might eventually commit. The existence or otherwise ofthe common intention depends upon the facts and circumstancesof each case. The intention of the principal offender and hiscompanions to deal with any person who might intervene to stopthe quarrel must be apparent from the conduct of the personsaccompanying the principal culprit or some other clear and cogentFincriminating piece of evidence. In the absence of such material,the companion or companions cannot justifiably be held guilty forevery offence committed by the principal offender.”

D

E

18. Section 34 IPC makes a co-perpetrator, who had participatedin the offence, equally liable on the principle of joint liability. For SectionG34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose 13 (2008) 15 SCC 50114 (1975) 3 SCC 731H15 (1978) 4 SCC 440

and common design or pre-arranged plan. However, this does not meanthat co-perpetrators should have engaged in any discussion, agreementor valuation. For Section 34 to apply, it is not necessary that the planshould be pre-arranged or hatched for a considerable time before thecriminal act is performed. Common intention can be formed just a minutebefore the actual act happens. Common intention is necessarily apsychological fact as it requires prior meeting of minds. In such cases,direct evidence normally will not be available and in most cases, whetheror not there exists a common intention has to be determined by drawinginference from the facts proved. This requires an inquiry into theantecedents, conduct of the co-participants or perpetrators at the timeand after the occurrence. The manner in which the accused arrived,mounted the attack, nature and type of injuries inflicted, the weaponused, conduct or acts of the co-assailants/perpetrators, object and purposebehind the occurrence or the attack etc. are all relevant facts from whichinference has to be drawn to arrive at a conclusion whether or not theingredients of Section 34 IPC are satisfied. We must remember thatSection 34 IPC comes into operation against the co-perpetrators becausethey have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where anaccused is the main or final perpetrator, resort to Section 34 IPC is notnecessary as the said perpetrator is himself individually liable for havingcaused the injury/offence. A person is liable for his own acts. Section 34or the principle of common intention is invoked to implicate and fastenjoint liability on other co-participants. Further, the expression/term“criminal act” in Section 34 IPC refers to the physical act, which hasbeen done by the co-perpetrators/participants as distinct from the effect,result or consequence. In other words, expression “criminal act” referredto in Section 34 IPC is different from “offence”. For example, if A andB strike Lathi at X, the criminal act is of striking lathis, whereas theoffence committed may be of murder, culpable homicide or simple orgrievous injuries. The expression “common intention” should also not beconfused with “intention” or “mens rea” as an essential ingredient ofseveral offences under the IPC. Intention may be an ingredient of anoffence and this is a personal matter. For some offences, mental intentionis not a requirement but knowledge is sufficient and constitutes necessarymens rea. Section 34 IPC can be invoked for the said offence also[refer Afrahim Sheikh and Ors. (supra)]. Common intention is commondesign or common intent, which is akin to motive or object. It is the A

B

C

D

E

F

G

H

Areason or purpose behind doing of all acts by the individual participantforming the criminal act. In some cases, intention, which is ingredient ofthe offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory.

19. Section 34 IPC also uses the expression “act in furtheranceBof common intention”. Therefore, in each case when Section 34 isinvoked, it is necessary to examine whether the criminal offence chargedwas done in furtherance of the common intention of the participator. Ifthe criminal offence is distinctly remote and unconnected with thecommon intention, Section 34 would not be applicable. However, if thecriminal offence done or performed was attributable or was primarilyCconnected or was a known or reasonably possible outcome of thepreconcert/contemporaneous engagement or a manifestation of themutual consent for carrying out common purpose, it will fall within thescope and ambit of the act done in furtherance of common intention.Thus, the word “furtherance” propounds a wide scope but should not beDexpanded beyond the intent and purpose of the statute. Russell on Crime,(10[th] edition page 557), while examining the word “furtherance” hadstated that it refers to “the action of helping forward” and “it indicatessome kind of aid or assistance producing an effect in the future” andthat “any act may be regarded as done in furtherance of the ultimatefelony if it is a step intentionally taken for the purpose of effecting thatEfelony.” An act which is extraneous to the common intention or is donein opposition to it and is not required to be done at all for carrying out thecommon intention, cannot be said to be in furtherance of common intention[refer judgment of R.P. Sethi J. in Suresh (supra)].

20. When we apply the aforesaid principles relating to applicabilityFof Section 34 IPC to the facts of the present case, we feel thatThimmappa and Gopala are entitled to the benefit of doubt on the groundthat it cannot be with certainty held that they had common intention, viz.the injuries inflicted by Krishnamurthy on Venkatarama after he hadfallen down. They did not participate thereafter by physically assaultingGor causing any injury to Venkatarama. They did not facilitate and helpKrishnamurthy in the assault he perpetuated. We have no grounds toaccept that they could have preconceived the brutal assault byKrishnamurthy who had put his knees on the neck and jumped on thechest of the deceased to cause the injuries resulting in his death. Wecannot hold that these two accused could have premeditated the resultH

which ensued when Krishnamurthy behaved and acted in the mannerhe did. Clearly, they had not joined Krishnamurthy when he had actedand have stood by. There is nothing to indicate that their acts, that is,holding the hands and pulling the legs of the deceased making him falldown, were done in furtherance of the common intention thatKrishnamurthy would thereupon put his leg on the neck of the deceased,crushed his chest and fracture the ribs. We would, in favour of theappellants Thimmappa and Gopala, hold that their acts cannot be primarilyconnected with the violence perpetuated by Krishnamurthy. Given theacts attributed to Thimmappa and Gopala, the assault by Krishnamurthyand the resultant outcome were unexpected. We are also not preparedto hold that these two accused should have known the final outcome, orit was known to them, or it was a reasonably possible outcome of thepreconcert/ contemporaneous engagement or a manifestation of mutualconsent for carrying out a common purpose. We, therefore, would nothold them guilty for the offence under Section 300 or even Section 299of the IPC on the ground that they shared common intention as understoodon application of Section 34 IPC.

21. Consequently, we convert their conviction to that under Section323 read with Section 34 IPC and we would sentence them to themaximum sentence specified therein of one year. We also uphold theconviction of Thimmappa and Gopala for individual offences underSections 447, 504, 506 and 341 IPC and the sentences imposed underthe aforesaid Sections, which are up to three years of rigorousimprisonment and fine with default stipulations.

22. Before concluding, we would like to mention the secondaryargu- ment raised by the appellant that juvenile ‘A’ was acquitted fromall the charges and hence, the appellants are entitled to acquittal on theground of parity. This contention is to be rejected in view of Sections 40to 44 of the Evidence Act, 1872. In particular, Section 43 states judgmentsother than those mentioned in Sections 40 to 42 are irrelevant unless theexistence of that judgment, order or decree is a fact in issue or is relevantunder some other provisions of this Act. We have decided this appealbased on the evidence adduced and led by the prosecution in thechargesheet in ques- tion. We cannot decide this appeal based on theevidence and material led by the prosecution in the proceedings againstthe ju- venile ‘A’ which were independent and separate proceedings.Evi- dence, reasoning and findings recorded therein are not in appealbefore us.

AB

C

D

E

F

G

H

A23. As Thimmappa and Gopala are on bail and have not undergonethe sentence, they shall surrender within a period of one month fromtoday. In case they do not surrender, the police will take coercive stepsfor their arrest to undergo the remaining sentence. The sentence awardedto Krishnamurthy would be modified to life imprisonment without anyfurther stipulation. The direction that life imprisonment shall be till theBend of natural life to imply that Krishnamurthy shall not be entitled topremature release/remission in accordance with the applicable policy isset aside. There is no reason and justification for this condition to beimposed. The sentences as awarded to the appellants will runconcurrently. The appellants would be entitled to the benefit of SectionC428 of the Code of Criminal Procedure, 1973.

24. The appeal is, accordingly, partly allowed in the aforesaid terms.

D

Devika Gujral

Appeal partly allowed.

E

F

G

H