REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1279 OF 2004    

Y. Venkaiah           ..Appellant(s)

- Versus -

State of A.P.                 ..Respondent(s)

WITH

Criminal Appeal Nos. 1280/2004, 1281/2004, 1282/2004 and 1283/2004

J U D G M E N T

GANGULY, J.

1. All  these  five  criminal  appeals  are  heard

together and out of which Criminal Appeal Nos.

1280/2004, 1282/2004 and 1283/2004 are directed

against the judgment and order dated 31.10.2003

in  Criminal Appeal  Nos. 1795/1997,  1757/1999

and 1826/1999 passed by the Andhra Pradesh High

Court  whereby  the  Hon’ble  High  Court  while 1

affirming the judgment dated 11.10.1999 in C.C.

No. 6 of 1999 passed by the Addl. Special Judge

of SPE & ACB Cases, Hyderabad dismissed the

appeals.

2. The appellant- Y. Venkaiah (A-3) in Criminal

Appeal  No.  1280  was  working  as  a  Junior

Assistant in the Office of the Deputy Director,

Social Welfare Department, Nalgonda along with

V. Rama Rao (A-1), S.A. Rasheed (A-2) and P.

Kranwar (A-4).

3. The  appellant-S.A. Rasheed  (A-2) in  Criminal

Appeal No. 1282/2004 was working as a Social

Welfare Inspector and the appellant-P Kranwar

(A-4) in Criminal Appeal No. 1283/2004 was a

Warden  Social  Welfare  Govt.  Boys  Hostel,

Nalgonda.

4. The  aforesaid  accused  Nos.  2,  3  and  4  were

prosecuted  for  an  alleged  conspiracy  for

drawing scholarships on the basis of fictitious

post-matric  students  of  Geeta  Vignan  Andhra

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Kalasala,  Nalgonda  and  Government  Junior

College for Boys, Nalgonda for an amount of

Rs.63,522/- claiming the same for the second

time vide Bill Nos. 504,238 and 326.

5. Further, it is alleged that A-1,A-2 and A-3

have  also  drawn  scholarships  amount  for

fictitious  post-matric  students  of  S.L.L.S.

Junior College, Alair, Nagarjuna Jr. College,

Miryalaguda, Rajaram Memorial Junior College,

Suryapet of Nalgonda District and cheated the

Government  and  misappropriated  an  amount  of

Rs.4,57,050/- vide Bill Nos. 461, 506, 218 and

503 in collusion with A-4.

6. On  29.3.1990,  sanction  was  accorded  for

prosecution of A-2, A-3 and A-4 for an offence

under Sections 120B, 420, 468, 477A IPC and

Section 5(2) r/w 5(1)(d) of the Prevention of

Corruption Act.

7. On 11.10.1999, the learned Addl. Spl. Judge for

the  SPE  &  ACB  Cases,  Hyderabad  came  to  the

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conclusion that A-1 to A-4 are guilty of the

charges and convicted A-1,A-3 and A-4 for their

involvement in respect of Bill Nos. 504,238,326

(amounting to Rs.63,522/-) and also convicted

them for misappropriation of Rs.4,57,050/- vide

Bill nos. 461,506,218 and 503.

8. A-1,  A-3  and  A-4  were  sentenced  to  undergo

rigorous imprisonment for three years each for

each charge and to pay a fine of Rs.2000/- each

for each of the charges.

9. The trial Court gave A-2 the benefit in respect

of other bills namely Bill Nos. 505,506,503 and

218  as  they  were  prepared  when  A-2  was  on

leave. Insofar as it relates to Bill No. 461,A-

2 was convicted for an offence under Section

120(b),420,468,477-A  r/w  34  IPC  and  under

Section 5(1)(d) r/w 5(2) of the Prevention of

Corruption Act, 1947 r/w Section 34 IPC and

sentenced to undergo rigorous imprisonment for

18 months under each charge and also to pay a

fine of Rs.1000/- under each charge. A-2 was

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sentenced  a  lesser  period  as  he  was  found

guilty of double drawal of the amount of one

fictitious Bill No. 461. In respect of other

fictitious bills as noted above, he was given

the benefit of doubt as the bills were prepared

when he was on medical leave.

10. The Single Bench of the High Court dismissed

the appeals by an order dated 31.10.2003 and

affirmed the judgment, conviction and sentences

recorded by the trial Court.

11. Insofar as Criminal Appeal Nos. 1279/2004 and

1281/2004  are  concerned,  they  are  directed

against the judgment of the High Court dated

31.10.2003  in Criminal  Appeal Nos.  1188/1997

and  1125/1997  respectively  affirming  the

judgment  dated  30.9.1997  in  C.C.  No.5/1991

passed by the Addl. Special Judge for SPE & ACB

Cases, Hyderabad.

12. The  appellants  in  these  appeals  Y.  Venkaiah

(A-4) and S.A. Rasheed (A-3) were prosecuted

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for  the  alleged  conspiracy  for  drawing

scholarships on the basis of fictitious post-

matric  students of  Government Junior  College

for Girls, Nalgonda in an amount of Rs.54,600/-

claimed vide Bill Nos. 363 and 405 in collusion

with Beaula-A-5(Matron).

13. The Principal Secretary to the Government of

Andhra Pradesh vide order dated 29.3.1990 gave

sanction for prosecution of A-1, A-3 to A-5 and

vide order dated 21.9.1990 for prosecution of

A-2.

14. On 30.9.1997, the learned Addl. Special Judge

for SPE & ACB Cases, Hyderabad held that A-1

has not committed any offence and consequently

acquitted him of all the charges. The learned

Judge found accused Nos. 2 to 5 guilty of the

offences and sentenced them to undergo rigorous

imprisonment  for  two  years  and  a  fine  of

Rs.500/- on each count.

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15. On 31.10.2003, the High Court while affirming

the judgment, conviction and sentence recorded

by the trial Court dismissed the appeals by

observing  that  the  accused  had  conspired  to

cheat  the  Government  by  claiming  fictitious

post-matric  scholarship  by  falsifying  the

records in abuse of their official position as

public servants and have acted in furtherance

of their common intention to do the acts which

amount to criminal misconduct.  

16. In  so  far  as  sanction  is  concerned,  its

validity was not questioned before us.   

17. It  appears  that  several  witnesses  were

examined.  From the judgment of the High Court

dated 31.10.2003 in Criminal Appeal Nos. 1757,

1795  and  1826  of  1999,  it  appears  that  18

witnesses  were  examined  by  the  prosecution.

The  other  judgment  of  the  High  Court,  also

dated  31.10.2003, dealt  with Criminal  Appeal

Nos. 1125 and 1188 of 1997.  From the said

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judgments  it  appears  that  8  witnesses  were

examined by the prosecution.   

18. Witnesses  were all  holding official  position

and on analysis of their evidence made by the

High Court in the judgments under appeal, it

transpires that the prosecution has been able

to prove its case of conspiracy amongst the

accused persons in drawing the money twice over

in respect of students of Geeta Vignana Andhra

Kalasala, Nalgonda (GVA Kalasala), Government

Junior College for Boys, Nalgonda (GJ College),

students  of  SYLNS  Junior  College,  Alair,

Nagarjuna Junior College, Miryalguda, Rajaram

Memorial  Junior  College,  Suryapet  and

Government Junior College for Boys, Nalgonda.

Those amounts were drawn against various bills,

being bill Nos. 405, 461, 505, 506, 503, 218,

238, 231, 326, 240, 219 and 504.  It has been

proved that in respect of those bills money has

been drawn twice on the basis of fictitious

names,  thus,  there  has  been  cheating  and

misappropriation of Government funds.   

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19. The witnesses who were examined in connection

with Criminal Appeal Nos. 1757, 1795 and 1826

of 1999 are the PW1, the Accounts Officer in

the  Office  of  the  Director,  Social  Welfare

Department  during  1986-87.   PW2  was  the

Accountant in the office of Deputy Director,

Social Welfare Department during July, 1984 and

January,  1987.   PW3  was  the  Sub-Treasury

Officer in the office of DTO, Nalgonda during

1986-88.  PW4 was the Senior Accounts Officer

in the AG’s Office during the relevant point of

time.   PW5  was  the  Manager,  SBH,  Nalgonda

during 1986-89.  The Principal, GVA Kalasala,

Nalgonda  was  incharge  of  the  college  during

1986-87 was PW6.  PW7 was the Junior Lecturer

of GJ College, Nalgonda during 1980-89.  PW8

was  the  Principal  of  Boys  Junior  College,

Nalgonda who worked as such in 1987 and retired

in 1988.  PW9 was the Principal Sy L MS Jr.

College, Alair since 1985.  PW10 was the former

Principal Nagarjuna Jr. College, Miryalguda who

used  to  send  proposal  to  Social  Welfare

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Department for scholarship for Scheduled Castes

students.   PW11  was  the  student  of  B.A.  in

Geeta Vignana Andhra kalasala, Nalgonda. PW12

was the First year Intermediate student in GJ

College for Boys, Nalgonda, this witness was

declared hostile.  PW13 was the witness who

pursued Degree course in GVA Kalasala, Nalgonda

during 1986-88, he was also declared hostile.

Another student of GVK College, Nalgonda was

examined as PW14.  PW15 was another student who

testified  to  having  received  only  once  an

amount of Rs.825/- by way of scholarship.  The

former  Principal  of  Rajaram  Memorial  Jr.

College, Suryapet, was examined as PW16.  PW17

was  the  Deputy  Director,  Social  Welfare

Department,  Nalgonda.   PW18  was  the

Investigating  Officer  who  testified  to  the

issuance  of  FIR  and  submitted  that  after

receiving  sanction  from  the  Government

submitted the chargesheet in court.  All these

witnesses  excepting two  students (PWs.12  and

13), who were declared hostile, supported the

prosecution case.  The learned Judge of the

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High Court made a detailed discussion of the

evidence of the witnesses before coming to the

conclusion that the prosecution case has been

proved.   The  judgment  of  the  High  Court  in

connection with the criminal cases referred to

above, namely, Criminal Appeal Nos. 1125 and

1188 of 1997 also shows that eight witnesses

were  examined  for  the  prosecution.  Of  the

witnesses who were examined, PW1 was a retired

Joint  Director  of  Accounts,  Pension  Payment

Officer, Hyderabad, and at the relevant point

of time was working as Accounts Officer in the

office  of  Director  of  Social  Welfare,

Hyderabad.   PW2  was  Sub-Treasury  Officer,

Nakrekal,  Nalgonda  District  and  previously

worked as Accountant with the office of Deputy

Director, Social Welfare, Nalgonda.  PW3 was

retired  Principal,  Government  Junior  College

for  Girls,  Nalgonda,  who  worked  as  the

Principal of the said college at the relevant

point  of  time  between  1979  and  1988.   PW4

worked as Assistant Social Welfare Officer at

Nalgonda at the relevant point of time.  PW5

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was  a  STO,  Nalgonda,  PW6  was  the  Senior

Accounts Officer, AG’s Office, Hyderabad.  PW7

was the Manager, SBH, Nalgonda and PW8 was the

Inspector  of Police,  Anti Corruption  Branch,

Hyderabad, Range.    

20. In this case, on behalf of the accused, two

witnesses were examined.   DW1, who joined as

Deputy  Director,  Social  Welfare  Department,

Nalgonda on 12.06.1997 and DW2, who worked as

Social  Welfare  Organiser  in  Social  Welfare

Office, Nalgonda from 1984 to 1988.   

21. This court finds that the High Court has very

closely analysed the evidence of the witnesses

before coming to a finding that the prosecution

has been able to prove its case.   

22. A specific defense was taken by A-2 in Criminal

Appeal No. 1282 of 2004 that he was on medical

leave from 26.8.1986 to 14.10.1986, so he could

not have signed the bill.  This defense has

been categorically dealt with by the High Court

12

in its judgment by finding that the date of

signature of A-2 on the bill (Ex.P1) was on

25.8.1986,  when  he  was  not  on  leave.

Therefore, this defense was also considered and

rightly rejected.   

23. In a case where Section 34 of the Indian Penal

Code is applied, as in this case, the liability

of the accused must be considered through the

prism of that Section if the charge of common

intent against the accused stands proved. Here

the charge of common intent among the accused

persons  has  been  clearly  made  out  from  the

evidence which has been discussed in detail by

both the Trial Court and the High Court.   

24.  It is true that Section 34 does not create any

substantive offence and is basically a rule of

evidence.   But  the  crucial  words  in  this

section  are  “in  furtherance  of  the  common

intention  of  all”  which  originally  were  not

there when the section was enacted in the Code

13

of 1860.  Section 34, as enacted in the Code of

1860, ran as follows: “When  a  criminal  act  is  done  by

several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

25. The  words  “in  furtherance  of  the  common

intention of all” came by way of amendment, by

Act XXVII of 1870, to widen the scope and sweep

of the section.

26. The felicitous phrase “in furtherance of the

common intention”, was first coined by Chief

Justice  Barnes  Peacock,  sitting  in  the  Full

Bench  of  Calcutta  High  Court,  and  while

rendering  the  decision  in  “The  Queen Vs. Gorachand Gope and others” on 3rd March 1866 (reported in Bengal Law Reports, Supplemental

Volume, 443, at page 456). The views of the

Chief  Justice  in  Gorachand  Gope (supra) possibly inspired the amendment in 1870.   

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27. Since then, this section has been judicially

interpreted  in  a  large  number  of  decisions.

Lord Sumner speaking for the Privy Council in

the  case  of  Barendra  Kumar  Ghosh Vs.  King Emperor- AIR 1925 PC 1) opined against a narrow construction of that section and said:

“  …  As  soon,  however,  as  the  other sections  of  this  part  of  the  Code  are looked at, it becomes plain that the words of  S.34  are  not  to  be  eviscerated  by reading  them  in  this  exceedingly  limited sense.”

28. The learned Law Lord came to this conclusion by

interpreting  Section  34  in  the  context  of

Section 33 of the Code.

29. The aforesaid formulation by Lord Sumner has

been followed by this Court on many occasions

in different cases, some of which are noted

hereinbelow.

30. In  Barendra  Kumar  Ghosh (Supra),  the  Privy Council did not agree with the narrow construction

given to Section 34 of the Code by Justice Stephen

in  Emperor V.  Nirmal Kanta Roy, ILR 1914 (Volume 15

41) Cal. 1072, as according to the Privy-council

such  a  construction  may  lead  to  undesirable

results.  

31. The Constitution Bench of this Court in  Mohan Singh and another Vs. State of Punjab – AIR 1963 SC 174, construed the scope of Section 34 and compared

it with Section 149 and pointed out the essential

distinction between the two. Justice Gajendragadkar

(as  His  Lordship  then  was)  speaking  for  the

Constitution  Bench  held  that  like  Section  149,

Section 34 also deals with cases of constructive

criminal liability in the sense where a criminal

act is done by several persons in furtherance of

the common intention of all, each of such persons

is liable for that act in the same manner as if it

were  done  by  him  alone.  According  to  the

Constitution  Bench,  the  essential  constituent  of

the  vicarious  criminal  liability  contemplated  by

Section 34 is the existence of common intention.

When  such  common  intention  animates  the  accused

persons and leads to the commission of the criminal

offence charged, each of the persons sharing the

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common intention is constructively liable for the

criminal act done by one of them. The Constitution

Bench held that in some ways Section 34 and Section

149 are similar and in some areas they may overlap

but nevertheless the common intention, which is the

sine-qua-non of Section 34 is different from the

common  object  which  brings  together  an  unlawful

assembly of persons within the meaning of Section

149 of the Code.  

32. In the case of Suresh and Another Vs. State of U.P. – (2001) 3 SCC 673, a three-Judge Bench of this Court while considering the scope of Section

34, referred to and relied upon the ratio in Mohan Singh (supra), and further held that a reference to Sections 35, 37 and 38 of the Code is of relevance

for  understanding  the  purport  of  Section  34.

Justice Thomas in Suresh (supra) opined that these four provisions belong to one cognate group.  In

Suresh (supra), Justice Thomas held that to attract Section 34 IPC two conditions must be present; (1)

the criminal act (consisting of a series of acts)

should have been done, not by one person, but by 17

more  than  one  person,  (2)  doing  of  every  such

individual  act  cumulatively  resulting  in  the

commission of criminal offence should have been in

furtherance  of  the  common  intention  of  all  such

persons.

33. In  Suresh (supra),  Justice  Sethi,  in  a concurring but a different opinion, held that the

dominant feature for attracting Section 34 of the

Code is the element of participation resulting in

the ultimate criminal act. The “act” referred to in

the later part of Section 34 means the ultimate

criminal act with which the accused is charged of

sharing  the  common  intention.  The  accused  is,

therefore,  made  responsible  for  the  ultimate

criminal act done by several persons in furtherance

of the common intention of all of them. The section

does not envisage separate acts by all the accused

persons for becoming responsible for the ultimate

criminal act. According to the learned Judge the

word ‘act’ used in Section 34 denotes a series of

acts as a single act and the learned Judge further

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made it clear that the culpability under Section 34

cannot be excluded by mere distance from the scene

of occurrence.

34. In  Lallan Rai and Ors. Vs.  State of Bihar – (2003) 1 SCC 268, this Court again had to consider

the ingredients of Section 34 and relied on the

principles  laid  down  in  Mohan  Singh (supra)  and Suresh  (Supra).   While  approving  the  principles laid down in para 44 in Suresh (supra), the Court enumerated that for proving the common intention it

is necessary either to have direct proof of prior

concert or proof of circumstances which necessarily

leads to an inference on incriminating facts and

which must be incompatible with the innocence of

the  accused  and  incapable  of  explanation  or  any

other reasonable hypothesis. The Court held that a

look at Section 34 makes it clear that the essence

of Section 34 is simultaneous consensus of the mind

of persons participating in the criminal action to

bring about a particular result. Such consensus may

develop  at  the  spot  or  it  may  be  prior  to  the

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commission  of  the  crime  but  in  any  event  such

consensus must precede the commission of the crime.

35. If the test of proof which was laid down in

Lallan  Rai (supra),  following  the  principles  in Suresh (Supra),  is  applied  to  the  incriminating facts and circumstances noted and discussed in this

case concurrently by the trial Court and the High

Court,  to  which  reference  has  been  made

hereinbefore,  the  conclusion  is  inescapable  that

those  facts  are  clearly  incompatible  with  the

innocence of the accused and are incapable of any

explanation  or  any  other  reasonable  hypothesis

other than the guilt of the accused persons.

36. In Saravanan and Anr. Vs. State of Pondicherry – (2004) 13 SCC 238, Justice Thakker delivering the

judgment  held  that  in  English  law  there  is  a

distinction between the two types of offenders (i)

principals  in  the  first  degree,  that  is,  who

actually commit the crime; and (ii) principals in

the second degree, that is, who aid in commission

of the crime. But this distinction in English law

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has not been strictly followed in India.The Learned

Judge came to this conclusion in  Sarvanan  (supra) relying on the principles enumerated in  Barendra Kumar Ghosh (supra). Learned Judge concurring with the  aforesaid  principle  in  Barendra  Kumar  Ghosh (supra) held that the criminal act referred to 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 then each person must be held liable for

the ultimate act as if he had done it himself.

37. In  a  later  judgment  in  Rotash Vs.  State  of Rajasthan – (2006) 12 SCC 64, one of us (Hon’ble Mr.  Justice  S.B.  Sinha)  delivering  the  judgment

relied upon the principles laid down in Lallan Rai (supra) and Suresh (supra) and also Barendra Kumar Ghosh (supra) and held that the effect of common intention to commit the crime must be judged from

the totality of the circumstances. Thus, Justice

Sinha gave the provisions of Section 34 a very wide

interpretation  which  is  consistent  with  the

interpretation given to this Section right from the 21

decision  of  the  Privy  Council  in  Barendra  Kumar Ghosh (supra).

38. Following the above principles as we must, this

Court has no hesitation in concluding that in the

facts  and  circumstances  of  this  case  the  common

intention of the accused and their prior concert is

amply proved.

39. In a case, as in the present one, even if one

of the co-accused is acquitted, that does not by

itself absolve other co-accused of their conjoint

liability of the crime. The law is quite clear that

in spite of acquittal of one co-accused it is open

to the Court to convict the other accused on the

basis of joint liability under Section 34, if there

is evidence against them of committing the offence

in “furtherance of the common intention”.

40. Keeping the above principles in mind, in our

view, this Court does not find any infirmity in the

findings which have been reached by the High Court

while affirming the conclusion of the trial Court.

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41. Apart from that in an appeal under Article 136

of the Constitution of India, this Court will not

normally venture in the arena of re-appreciation or

review of the evidence unless it is demonstrably

shown that the trial Court or the High Court has

committed an apparent error of law and procedure or

the  conclusions  which  have  been  reached  are

patently perverse. The other area of interference

by this Court in exercise of its jurisdiction under

Article 136 of the Constitution of India may be

when, on proved facts, wrong interference of law

has been reached by the High Court.  This position

is far too well settled to be disputed. However,

reference  in  this  regard  may  be  made  to  the

decisions  of  this  Court  in  Duli  Chand Vs  Delhi Admn. – (1975) 4 SCC 649, Dalbir Kuar Vs. State of Punjab  –  (1976)  4  SCC  158,  Ramanbhai  Naranbhai Patel Vs.  State of Gujarat –  (2000) 1 SCC 358, Chandra Bihari Gautam Vs. State of Bihar – (2002) 9 SCC 208).

42. All these cases have been considered by the

Supreme Court recently in the case of  Radha Mohan 23

Singh Alias Lal Saheb and Others Vs. State of U.P. – (2006) 2 SCC 450 and the same conclusion has been

reached.  

43. Here there is no perversity in the finding of

the High Court nor any wrong legal conclusion has

been reached on proved facts.

44.  For  the  reasons  discussed  above,  this  Court

does not find any merit in the aforesaid appeals,

which are accordingly dismissed.  

45. The appellants are on bail, their bail bonds

are cancelled and they shall be taken into custody

forthwith  to  serve  out  the  remaining  part  of

sentence, if any.   

.......................J. (S.B. SINHA)

.......................J. (ASOK KUMAR GANGULY)

.......................J. New Delhi (R.M. LODHA) March 03, 2009

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