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CASE NO.: Appeal (crl.)  868 of 2003

PETITIONER: Ramesh Singh @ Photti

RESPONDENT: State of A.P.

DATE OF JUDGMENT: 25/03/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

(With Crl.A.No.1254/2003)

SANTOSH HEGDE,J.

The appellants in these appeals were accused 2 and 3 before  the 2nd Additional Metropolitan Sessions Judge, Hyderabad in S.C.  No.178/99. The said Sessions Judge found the appellants and A-1  guilty of an offence punishable under Section 302 read with  Section 34 IPC and sentenced them to undergo imprisonment for  life. Against the said conviction and sentence, all the accused  preferred an appeal before the High Court of Judicature, Andhra  Pradesh at Hyderabad which having been dismissed, the two  appellants who were accused 2 and 3 have challenged  the said  judgment of the High Court, while accused No.1 has not  challenged the said judgment and conviction. Brief facts necessary for the disposal of these appeals are  follows: The deceased S. Mahendara Singh was residing with his  mother PW-2 and elder brother PW-1 at Bapunagar within the  limits of Sanjeevareddy Nagar Police Station. The appellants and  A-1 were also residents of said Bapunagar. The residents of  Bapunagar were managing an Association called Basthi Youth  Association which in turn was running a Bhajana Mandali. PW-4   was the President of the said Bhajana Mandali and the deceased  was the Vice President of  said Bhajana Mandali. It is the case of  the prosecution that there was a death in the family of A-2, hence,  he wanted certain "samagri" for the funeral which was available in  the said Bhajana Mandali. With a view to get the "samagri", on  30th of April, 1998 at about 11 p.m., the accused persons came to  the house of the deceased and asked him to give the said "samagri"  for taking them to Maheswaram for doing Bhajan at the house of  the relative where the death had taken place. It is stated that the  deceased refused to give Bhajan samagri for being used outside the  locality. Being annoyed by the said refusal by the deceased, it is  stated that the accused persons went away but came back again at  about 11.45 p.m. when the members of the deceased family were  sleeping and called the deceased to come out. The prosecution  alleges on being so called the deceased went outside the house.  Immediately thereafter PWs.1 and 2 heard the cries of the  deceased, hence, they came out of the house when they saw A-2  and A-3 were holding the hands of the deceased and A-1 was  stabbing the deceased on the chest. The prosecution alleges that  when these witnesses went near the victim the accused persons  went away threatening these witnesses. The further case of the  prosecution is that at that time PWs.3 and 4 who were clearing  certain construction materials in front of their house had also  witnessed the occurrence. The prosecution alleges after the

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accused went away the deceased was removed to Gandhi hospital  but he died on the way. PW-1 thereafter went to Sanjeevareddy  Nagar Police Station and gave a written complaint Ex.P1 to PW-8  who was In-charge of the Police Station at that time and a crime  was registered on the basis of the said complaint under Section 302  IPC. PW-10, the Circle Inspector of Police of the said Police  Station then took up the investigation. He visited the scene of  offence and examined PWs.1 to 4 and recorded the statements in  the morning of 1st May, 1998 and after investigation he filed the  charge sheet against the accused persons. It is relevant to mention  herein that during the course of investigation PW-10 also got the  statements of PWs.1, 3 and 4 recorded under Section 164 of the  Code of Criminal Procedure. During the course of the trial, PW-4  did not support the prosecution case fully, hence, he was treated as  hostile and cross-examined. The trial court accepting the evidence  of the eye- witnesses  PWs.1 to 4 came to the conclusion that the  deceased met with a homicidal death at the hands of the accused  persons during which act A-1 caused 4 stab injuries which led to  his death and during the said attack by A-1,the other accused  A2  and A3 were holding the hands of the deceased facilitating him to  inflict the wound. Therefore, while A-1 was convicted  for an  offence punishable under Section 302 IPC simplicitor, two  appellants before us were convicted for an offence punishable  under Section 302 with the aid of Section 34 IPC. As stated above, the High Court concurred with the findings  of the trial court and affirmed the said conviction and sentence.  Shri  K.V.Viswanathan, learned Advocate and Ms.K.Amreshwari,  learned Senior Advocate appearing for the appellants contended  that the courts below committed serious error in accepting the  interested testimony of PWs.1 to 3 and basing a conviction on the  said evidence. It is pointed out to us that the investigating agency  itself was not sure that the evidence of these witnesses was truthful  or not   therefore, it took the precaution of recording their  statements before a Magistrate under Section 164 of Cr.P.C.  Therefore, apart from the fact that these witnesses were interested  witnesses, the fact that their statements were recorded under  Section 164 of Cr.P.C. also ought to have been taken as a ground  to reject their evidence as unreliable. The learned counsel placed  strong reliance on a judgment of this Court in the case of Ram  Charan & Ors. Vs. State of U.P. {1968 (3) SCR 354} to point out  that it is not safe to rely on such evidence. The learned counsel also  contended from the evidence of these witnesses that is clear that  none of these witnesses had actually witnessed the incident and  because of existing rivalry and out of suspicion these witnesses  have falsely deposed that they had witnessed the incident. The  further argument of the learned counsel was that the motive  suggested by the prosecution even according to itself was non  existent. It was pointed out to us from the evidence of PW-4 who  was the President of the Mandali that after the accused persons  returned back from the first visit to the house of the deceased and  having come to know the need of the 2nd accused, he sent the keys  of the Bhajana Mandali to A-2 with instructions to take such  "samagri" as is necessary for him. Therefore, having received the  keys of the Mandali, it is highly improbable that the accused  persons would then come back and attack the deceased. The  learned counsel then contended that atleast so far as these  appellants are concerned, the prosecution has failed to establish  any case and reliance placed on Section 34 IPC to convict these  appellants on the basis of common intention was wholly erroneous.  It was argued that there was no material on record to show that   these appellants had any knowledge as to the carrying of the knife  by A-1. It is further argued that assuming for argument sake that  the prosecution has established that these appellants did hold the  hands of the deceased, there was no material to indicate that these  appellants had the knowledge that A-1 would stab the deceased or

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he entertained an intention to kill the deceased. It was pointed out  that even according to the prosecution case these appellants were  unarmed and they did not exhort A-1 to stab. Therefore, a  conviction for offence of murder under Section 302 with the aid of  Section 34 IPC as against the appellant was  unsustainable.  Strong reliance was placed on the following judgments of  this Court in support of the argument that Section 34 IPC was not  available to the prosecution in this case : Balak Ram Vs. State of  U.P. (1975 (3) SCC 219), Vencil Pushpraj Vs. State of Rajasthan  (AIR 1991 SC 536), Ramashish Yadav & Ors. Vs. State of Bihar  {1999 (8) SCC 555}, Ajay Sharma Vs. State of Rajasthan {1999  (1) SCC 174} and Mithu Singh  Vs. State of Punjab {2001 (4)  SCC 193}. Shri G.Prabhakar, learned counsel appearing for the State  contended that the courts below were justified in accepting the  evidence of PWs.1 to 3 whose presence at the time and place of the  incident cannot be seriously disputed because PW-1 & 2  were  residing in the same house being deceased’s brother and mother  respectively and PW-3 was the cousin of the deceased and was  admittedly residing in the immediate neighbourhood and at the  time of incident was clearing certain debris near his house. He  contended that the evidence of these witnesses so far as the attack  is concerned has been reasonably consistent and they had no  motive to falsely implicate these accused persons. He submitted  that if the evidence of the eye-witnesses are to be believed then  motive and other aspects of the prosecution case relegates itself to  the background. He also contended that there is absolutely no  reason to suspect the evidence of PWs.1 to 3 solely because their  statements were recorded under Section 164 Cr.P.C. The learned  counsel then submitted the fact that the accused persons came  together first time at 11 p.m. to the house of the deceased and went  back annoyed and again came back together at 11.45 p.m. and  called the accused outside and the appellants herein held the hands  of the deceased long enough to facilitate A-1 to stab the deceased  on the chest four times, itself indicated that these appellants also  shared the intention of A-1 to cause the death of the deceased. The  fact that none of the appellants either prevented or caused any act  to dissuade or discourage or prevent A-1 from causing 4 blows on  the chest of the deceased but helped him to do the said act itself is  sufficient to draw the conclusion that these appellants also shared  the common intention of A-1. In support of this contention as to  applicability of Section 34 IPC the learned counsel placed reliance  in the case of Hamlet alias Sasi & Ors. Vs. State of Kerala {2003  (10) SCC 108} and Nandu Rastogi alias Nandji Rastogi & Anr.  Vs. State of Bihar {2002 (8)  SCC 9}. The trial court after discussing the evidence of PWs.1 to 3  came to the conclusion that the presence of these witnesses at the  time of the incident cannot be disputed because PWs.1 and 2 were  residing with the deceased while PW-3, their cousin was residing  close-by and having heard the call of the accused persons and the  shout of the deceased  at that time of the night, it was natural for  these witnesses to have come out.  Therefore it concluded that the  presence of the witnesses at the time and place of the incident was  proved. It did take notice of the fact that these witnesses were  closely related to the deceased, therefore, it noticed the need to  examine the evidence carefully. The said court placing reliance on  judgments of this Court which had laid down that there is no law  which says that in the absence of any independent witness the  evidence of the interested witnesses should be thrown out, came to  the conclusion that it can place reliance on the evidence of PWs.1  to 3. The said court also noticed the fact that no serious motives  were suggested to these witnesses to elicit why they were deposing  falsely to implicate the accused. In such circumstances it chose to  rely upon the evidence of these witnesses to base a conviction. The  High Court though by a very brief judgment concurred with this

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finding. We find the reasons given by the trial court as affirmed by  the High Court are worthy of acceptance and we do not see any  reason to differ from the same. However, learned counsel  appearing for the appellant contended that in view of the fact that  the statements of PWs.1 to 3 were found to be necessary  to be  recorded  under section 164 of the Code  that itself  indicates that it  is not safe  to  base a conviction on  the evidence of PWs.1 to 3. In  support of this contention, learned counsel for the appellant relied  on 2 judgments of this Court in Ram Charan & Ors. Vs. State of  U.P. {1968 (3) SCR 354} and Balak Ram etc. Vs. State of U.P.  {1975 (3) SCC 219}. A perusal of these judgments shows what  this Court has held in these cases is that the evidence of witnesses  whose statements are recorded under section 164 must be  considered with caution and if there are other circumstances on  record which might support the truth of the evidence of such  witnesses, it can be acted upon. As a matter of fact, those  judgments of this Court specifically held that the mere fact that the  statement of witness was recorded under section 164 cannot be a  ground to reject their evidence. In the case of Ram Charan (supra),  this Court dissented from the view expressed by the Patna High  Court in the case of Emperor Vs. Manu Chik (AIR 1938 Patna  290) which held that the statement of a witness whose prior  statement was recorded under section 164 Cr.P.C. always raises a  suspicion that it has not been voluntary. Therefore, such witness  compromises in his evidence before the court because of the threat  of perjury. While dissenting from the above view of the Patna High  Court, this Court accepted the view of Subba Rao, C.J. (as His  Lordship then was) expressed In re : Gopisetti Chinna  Venkatasubbiah (ILR 1955 AP 633) wherein it was held that the  evidence of witnesses whose statements were recorded under  section 164 Cr.P.C. would have to be assessed with caution and if  there are circumstances on record which lend support to the truth  of the evidence of such witnesses, it can be acted upon. This is also  the view of this Court in the case of Balak Ram (supra) where also  this Court  said that the evidence of such witnesses has only to be  considered with caution and nothing beyond that. In the instant  case we have kept in mind the fact that the evidence of these  witnesses were  recorded earlier under section 164 Cr.P.C. by the  Magistrate but that by itself in our opinion does not in any manner  discredit the said evidence; more so because of the fact that their  presence at the time of the incident cannot be doubted and in  regard to the actual assault though there are certain minor  embellishments, still  there is sufficient consistency as to the role  played by the appellants. Hence, in spite of the fact that PWs.1 to  3’s evidence was recorded under Section 164 of the Code, we are  of the opinion the same is acceptable to base a conviction as held  by the courts below.         The learned counsel then contended  that the prosecution has  failed to establish  the fact that the appellant before us  had shared  the common intention of A-1 to commit the murder of the  deceased.  It is pointed out to us in this regard that the only overt  act  which is attributed  to these appellants is that they held the  hands of the deceased  while A-1 stabbed the deceased.  It is also  pointed out  from the evidence that these appellants did not carry  any weapon nor did they  in any manner exhort  A-1 to assault.   They even argued that there is no material to show that these  appellants knew that A-1 was carrying  a knife and  that he would  use the knife to cause the death of the deceased. In such  circumstances, it is contended that Section 34 IPC would not apply  to hold the appellants guilty of an offence punishable under  Section 302 IPC with the aid of Section 34 IPC.  It was the  argument of the learned counsel that to establish a case under  Section 34 IPC,  prosecution has to prove beyond  all reasonable  doubt that these appellants did have knowledge  of the   intention  of A-1 and they voluntarily shared the said intention.  It is also

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contended that apart from the above two factors prosecution has to  establish that in furtherance of the said intention these appellants  committed certain  overt act which was responsible for the murder  of the deceased.  The further argument is that it is not any and  every act during the course of  attack on the deceased by these  appellants that would indicate that these appellants shared the   common intention, and only such  overt act may be relevant which  indicate  that the appellants like A-1 also shared the intention to  cause the death of the deceased. In the absence of such material  no  court can come  to the conclusion that these appellants also shared  the common intention of A-1 merely on the basis of their presence  at the place of  attack and their holding  hands of the deceased.  In  support of this contention, the learned counsel placed reliance   on  the judgment of  this Court in  Vencil Pushpraj vs. State of  Rajasthan (supra) and our attention was specially   drawn  to the  facts      as recorded in the said judgment which showed that the  appellant therein had pinned down the deceased till the other   accused stabbed    five times over the chest  which resulted  in the  death of the victim, and after the attack  the appellant and the co- accused   who caused the fatal injuries ran away from the place of  incident.  But  these facts  were held to be insufficient in that case  to hold the appellant guilty of an offence punishable under  Section  302 read with Section 34 IPC. The learned counsel for the  appellants submitted that the facts of that case squarely cover the  facts  in this appeal, therefore, the appellants are entitled to the  benefit of doubt  as was held in the said  case of  Pushpraj   and  these appellants  also should be absolved of the charge of sharing  the common intention.          Next judgment  on which the learned counsel for the appellants  placed reliance was  Ramashish Yadav & Ors. (supra) where  this  Court  came to the conclusion that the mere fact that two accused  persons came and  caught hold of the deceased whereafter the  two   other accused attacked the deceased with gandasa blows did not   indicate that the two accused who held the deceased had shared the  common intention of the other accused who  had inflicted the blows  so as to attract  Section 34 IPC.         Reliance was also placed on the judgment of this Court in the  case of Ajay Sharma Vs. State of Rajasthan  (supra).   In this case this  Court  in  a short judgment came to the conclusion that the  accused  persons who caught hold of the deceased and exhorted the co-accused  to kill the deceased were not guilty  of sharing the common intention  of main accused because  the  exhortation "maro" did not mean to kill,   therefore, the accused who was convicted with the aid of Section 34  IPC, could not have shared the common intention of the other  accused.         The last judgment  cited by the learned counsel for the  appellants in support  of their argument  of non-applicability of  Section 34 IPC is that of Mithu Singh Vs. State of Punjab (supra).  In  that case, this Court held that the common intention has to be  distinguished  from same or similar intention on the basis of facts of  each  case.  In that case, the Court came to the conclusion that simply  because the appellant  armed with the pistol went along with the  accused  to the place of  the deceased did not indicate the common  intention of the appellant therein of causing the death of the deceased.         A reading of the above judgments relied upon by the learned  counsel  for the appellants  does indicate  that this Court in the said  cases held that certain acts as found in those cases did not indicate the  sharing of  common intention.  But we have to bear in mind that the  facts appreciated in the above judgments and inference drawn have  been so done by the courts not in  isolation but on the totality of the  circumstances found in those cases.  The totality of circumstances  could hardly be ever similar in all cases.  Therefore, unless and until  the facts  and circumstances in a cited case  is in pari materia  in all  respects  with the facts and circumstances of  the case in hand, it will  not  be proper to treat an earlier  case as a precedent to arrive at a  

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definite conclusion.  This is clear from  some judgments of  this   Court   where this Court has taken a different  view from the earlier  cases, though basic facts look similar in the latter case.  For example,  if we notice  the judgment relied upon by the learned counsel for the  respondent i.e.  the case    of Hamlet  alias  Sasi Vs State of Kerala   (supra), this Court  held that the fact  that one accused held the   deceased by his waist and toppled him down while the other accused   attacked  him with iron rods and oars was  held to be sufficient to base   a conviction  with the aid of Section 34 IPC.  The fact of holding the  victim is similar in the cases of Vencil Pushpraj and  Hamlet alias Sasi  (supra)  but the conclusions reached by this Court differ because the  circumstances of the two  cases were different. In Nandu  Rastogi  alais Nandji Rustogi & Anr. Vs. State of Bihar (supra) this Court held  that  to attract Section 34 IPC it is not necessary that each one of the   accused must assault the deceased.  It  was held in that case that it was  sufficient   if it is shown that they had shared the common intention to  commit  the offence and  in  furtherance thereof each one of  them   played  his assigned role.  On that principle, this Court  held that  the  role played  by one of  the accused  in preventing the witnesses  from  going to the rescue of the deceased indicated that they  also  shared  the common intention  of the other accused who actually  caused the  fatal injury.         To appreciate the arguments advanced on behalf of the  appellants it is necessary to understand the object of incorporating   Section 34  in the Indian Penal Code.   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  to 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  principles 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 by the manner in which the  accused arrived at the scene, mounted the attack, determination and  concert with which the attack was made, 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 Yusuf Momin AIR  1971 SC 855).                                Since common intention essentially  being a state of mind  and  can only be gathered by inference drawn from facts and circumstances  established in  a given case, the earlier decisions involving almost  similar facts cannot be used as a precedent to determine the  conclusions on facts in the case in hand.  This view of ours finds  support   in a judgment of this Court  in Pandurang Tukia and Bhillia  Vs.  State of Hyderabad,  { 1955 (1) SCR  1083} wherein while  considering  the applicability of Section 34 IPC this Court held thus:-                                  "But to say this is no more than to  reproduce the ordinary rule about  circumstantial evidence, for there is no

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special rule of evidence for this class of  case. At bottom, it is a question of fact in  every case and however similar the  circumstances, facts in one case cannot be  used as a precedent to determine the  conclusion on the facts in another. All that is  necessary is either to have direct proof of  prior concert, or proof of circumstances  which necessarily lead to that inference, or,  as we prefer to put it in the time-honoured  way, "the incriminating facts must be  incompatible with the innocence of the  accused and incapable of explanation on any  other reasonable hypothesis". (Sarkar’s  Evidence, 8th Edn., p. 30)."

x x x x  As we have said, each case must rest  on its own facts and the mere similarity of  the facts in one case cannot be used to  determine a conclusion of fact in another. x  x x "

       It is clear from the law laid down in the  said case of Pandurang  (supra) that   however similar the facts may seem to be  in  a cited   precedent,  the case  in hand should be determined on facts and  circumstances of  that case in  hand  only and facts arising in the cases  cited should not be blindly treated as a precedent  to determine the  conclusions in  case  in hand.   

Having thus understood  the law  we will now discuss the facts  of this case to answer the question raised by learned counsel for the  appellant that the prosecution has failed to establish the sharing of the  common intention of A-1 to commit the murder of the deceased by the  appellants.

       A-2 is the person in this case who had the grievance that the  deceased prevented him from collecting the "Bhajan samagri" (prayer  material) for the use at the funeral of his relative. It is the case of  prosecution  that all the accused persons came together to the place of  incident at 11’O clock to demand the "Bhajan samagri".  The fact that  A-1 and A-3 who were not concerned with the need  of A-2 to collect  the "Bhajan samagri", still  came together at that time of the night i.e.  at 11 p.m. shows that A-1 and A-3 were associates of A-2. After  failing to get the "samagri" all the three went together presumably to  the house of A-2 at 11.45 p.m. Again these 3 persons came to the  house of the deceased which act cannot be termed as a normal act  because by that time most of the people including the deceased would  have been or had been sleeping. When these accused persons  summoned the deceased to come out of the house, obviously they had  some common intention which their second visit, timing of the visit  and calling of the deceased  indicates. Once the prosecution evidence  tendered through PWs.1 to 3 is accepted,  then it is clear that when A- 2 and A-3 held the hands of the deceased, they had some intention in  disabling the deceased. This inference is possible to be drawn because  the appellants  in their  statement recorded  under Section 313 Cr.P.C.  did not give any explanation  why they  held  the hands of the  deceased  which indicates that  the appellants had the knowledge that  A-1 was to assault the deceased. The fact that appellants continued to  hold the deceased all along without making any effort to prevent A-1   from further attacking, in our opinion, leads to an irresistible and an  inescapable conclusion that these accused persons also shared the  common intention with A-1. In these circumstances, what was the  intention of A-1 is clear from the nature of weapon used and the situs  of the attack which were all in the area of chest, penetrating deep  inside and which caused the death of the deceased.   It is very difficult

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to accept the defence version that the fight either took place suddenly,  or these  appellants did not know that A-1 was carrying a knife, or that  these  appellants did not know by the nature of injuries inflicted  by  A-1, that he did intend to kill the deceased.   At this stage, it may  be  useful to note that  A-1 did not have any motive, apart from common  intention to attack the deceased. In such circumstances if A-1 had  decided to cause the injury and A-2 who had a direct motive had  decided to hold the hands of the deceased with A-3, in our opinion,  clearly indicates that there  was  a prior concert as to the  attack on the  deceased.  We also notice thereafter the accused persons had all left  the place of incident together which also indicates the  existence of a  common intention.           Having thus independently considered the facts and  circumstances, in its totality and taking holistic view of the facts of  this case, we are of the opinion that the two courts below are justified  in coming to the conclusion that the appellants are guilty of an offence  punishable under section 302 read with section 34 IPC.  For the reasons stated above, these appeals fail and the same  are dismissed.