REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 376 OF 2007   

Kilari Malakondiaah @ Malayadri & Ors. ...Appellants

Versus

State of Andhra Pradesh ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Andhra Pradesh High Court upholding the conviction of the appellants  for

offences punishable under Sections 147, 148, 323, 324, 307 and 302  read

with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’). The

appellants who were A-1, A-2, A-5, A-8, A-11 and A-12 have been found

guilty of various offences. A-1, A-2 and A-8 were found guilty of offences

punishable under Section 302 read with Section 34 IPC and Section 307

read with Section 34 IPC. A-5, A-11 and A-12 were found guilty of offence

punishable under Section 307 read with Section 34 IPC. A-9 was acquitted

by the High Court by the impugned judgment. A-3 died during the course of

appeal.  A-4, A-6, A-7, A-10 and A-13 to A-19 were found to be not guilty

of the charged offences and they were acquitted by the trial Court.  

2. Factual scenario giving rise to the present appeals is as follows:

There are political grudges and ill feelings between the groups led by

A5 and Chandra Tirupathaiah in R.R. Palem village. Al, A3, A4 and A6 to

A19 are the followers of A5. P.Ws. 1. to 3 belong to the group of Chandra

Tirupathaiah. The wife of A5 and the mother of Chandra Tirupathaiah i.e.

Chandra Punnamma contested in the Panchayat elections and was elected as

Sarpanch of the village. Since then the group of the accused was waiting for

an  opportunity  to  prove  their  supremacy  in  the  village.  While  so,  on

14.1.1998 at about 7.00 A.M., A.6 and Kilari  Manoz and Chintagumpala

Vamsee went to the Pathuri lands of Kilari Venkata Subbamma and others

to graze their cattle. After some time at about 7.30 A.M., Chintagumpala

Sunil, Chandra Murali and Chintagumpala Manohar also went to the Pathuri

lands of Kilari  Venkata Subbamma and others for answering the calls  of

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nature and they met A.6 and Kilari  Manoz and Chinthagumpala Vamsee

there.  A6 enquired  from Chandra  Murali  about  the  cricket  match,  as  to

whether it was ended as draw by calling as "cricket raddaindira". Then, he

replied in the same manner by calling A6 as "match raddu kaledura". By

hearing such reply, A6 felt offended and grew wild against Chandra Murali

and picked  up  quarrel  with  him, and  there  was  a  scuffle  between  them.

Kilari Manoz went to the village and informed about the quarrel between

A6 and Chandra Murali to the elders and A.2, in spite of the request made

by Chintagumpala Manohar not to do so. On the same day, at about 12.00

noon, A2 went to the house of Chintagumpala Manohar and kicked him on

his stomach for his prevention and interference with Kilari Manoz when he

was proceeding to the village for informing the quarrel to the elders. P.W.3,

who is the father of P.W.6, on his return from the field came to know about

beating of his son by A2, he went to Ramalayam Street questioning loudly

about  the illegal  and high-handed act  of  A2. P.Ws.1 and 2 and Chandra

Venkateshwarlu (hereinafter referred to as the ‘deceased’) tried their best to

convince  P.W.3  to  adjust  the  matter.  A6,  who  was  passing  through  the

street, heard the cries of P.W.3 and picked up quarrel with him. At about

1.00 p.m. Al and A3 to A19 armed with deadly weapons beat the deceased

and also injured P.Ws.1 to 3. A-1 beat P.W.1 with an iron rod on his head.

A12 also beat P.W.1 with a stick on his shoulder.  A5 beat P.W.2 with a

stick on his head and hands. A-1 beat P.W.3 with an axe on his head and A-

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11 beat P.W.3 with a stick on his eyebrows. A2 beat the deceased with a

stick on his back. A-1 also beat the deceased with an iron rod on his head

and all over the body. As a result the deceased fell down with injuries and

became unconscious. PWs 1 to 3 fell down with injuries. All the accused

hurled stones against P.Ws.1 to 3 and the deceased. All the accused left the

place thereafter. At about 5.00 p.m. P.Ws.1 to 3 went to Lingasamudram

Police Station, where P.W.1 gave a statement to the police. P.W.9 recorded

the  statement  of  P.W.1  and  registered  a  case  in  Cr.No.1  of  1998  under

Sections 147, 148, 323, 324, 307 read with Section 149 IPC and sent the

injured-P.Ws.1 to 3 to the Government Hospital for treatment. P.W.11 took

up investigation, examined P.Ws.1 to 3. P.W.14 visited the scene of offence

in  the  presence  of  mediators-Chandra  Venkateswarlu  and  Choppara

Kotaiah,  seized  sticks,  iron  rod and  stones  under  a  cover  of  observation

report and sent the deceased to the nursing home of P.W.13 for treatment.

P.W.13 after examining the deceased declared him dead. On giving death

intimation,  provision  of  law  was  altered  to  Section  302  IPC.  P.W.14

conducted inquest  over the dead body of the deceased and sent the dead

body  for  postmortem  examination.  P.W.12,  the  Medical  Officer,

Government Hospital, Kandukur conducted autopsy over the dead body of

the  deceased  and  issued  Ex.P10-postmortem certificate  opining  that  the

deceased  would  appear  to  have  died  of  shock  due  to  injury  No.2.  On

completion  of  investigation  police  laid  the  charge  sheet  for  the  above

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offences.  Accused persons pleaded innocence.

In  order  to  establish  the  accusations  prosecution  examined  14

witnesses. Out of them PWs 1 to 3 were stated to be injured eye witnesses.

PW-4 was stated to be another eye witness.  

Stand of the accused before the trial Court was that the best witness

would  have  been  the  father  of  the  deceased  who was  not  examined  for

reasons known to the prosecution. There was inordinate delay in filing the

first information report and PWs 1 to 3 are interested witnesses.  It was also

submitted that in the Ext.P-1 report details have not been given. The trial

Court did not find any substance in the plea and as noted above convicted

some of the accused persons.  

In appeal except A-9 the appeal filed by rest of the accused persons

was dismissed.  

3. According  to  learned  counsel  for  the  appellants  the  details  of  the

overt  act  were  not  given  in  the  FIR.  Therefore,  there  were  considerable

improvements in the evidence of the witnesses. It is submitted that the FIR

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was lodged after a long time. It is also submitted that Section 34 IPC has no

application to the facts of the present case.

4. Learned counsel for the respondent-State on the other hand supported

the judgment.

5. It is to be seen that though father of the deceased was not examined,

three  of  the  injured  witnesses  who  had  sustained  injuries  during  the

occurrence were examined.  Though they were subjected to incisive cross

examination, nothing material was elicited to discard their evidence.  

6. Great emphasis was laid on the fact that PWs 1 to 3 are related to the

deceased. Relationship is not the factor to discard the prosecution version

and render it  suspect. At the most, what the Court is required to do is to

analyse  the  evidence  in  some  detail  to  rule  out  the  possibility  of  false

implication.  In the instant case, the trial Court has done that.  Though it was

urged that there was delay in lodging the FIR, the trial Court and the High

Court  found  that  in  fact  there  was  no  delay  and  Ext.P-1  was  lodged

promptly.

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7. Section 34 has been enacted on the principle of joint liability in the

commission of a criminal act.  The Section is only a rule of evidence and

does not create a substantive offence. The distinctive feature of the Section

is the element of participation in action. The liability of one person for an

offence committed by another in the course of criminal act perpetrated by

several  persons  arises  under  Section  34  if  such  criminal  act  is  done  in

furtherance of a common intention of the persons who join in committing

the  crime.  Direct  proof  of  common  intention  is  seldom  available  and,

therefore,  such  intention  can  only  be  inferred  from  the  circumstances

appearing from the proved facts of the case and the proved circumstances.

In order to bring home the charge of common intention, the prosecution has

to  establish  by evidence,  whether  direct  or  circumstantial,  that  there was

plan or meeting of mind of all the accused persons to commit the offence for

which they are charged with the aid of Section 34, be it pre-arranged or on

the spur of moment; but it must necessarily be before the commission of the

crime.  The true contents  of  the Section are that  if  two or  more persons

intentionally do an act jointly, the position in law is just the same as if each

of them has done it individually by himself.  As observed in Ashok Kumar

v. State of Punjab (AIR 1977 SC 109), the existence of a common intention

amongst the participants in a crime is the essential element for application

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of  this  Section.  It  is  not  necessary  that  the  acts  of  the  several  persons

charged  with  commission  of  an  offence  jointly  must  be  the  same  or

identically similar.  The acts may be different in character,  but must have

been actuated by one and the same common intention in order to attract the

provision.

8. The Section does not say “the common intention of all”, nor does it

say “and intention common to all”.  Under the provisions of Section 34 the

essence of the liability is to be found in the existence of a common intention

animating  the  accused  leading  to  the  commission  of  a  criminal  act  in

furtherance of such intention. As a result  of the application of principles

enunciated in Section 34, when an accused is convicted under Section 302

read with Section 34, in law it means that the accused is liable for the act

which caused death of the deceased in the same manner as if it was done by

him alone.  The provision is intended to meet a case in which it  may be

difficult to distinguish between acts of individual members of a party who

act in furtherance of the common intention of all or to prove exactly what

part was taken by each of them.  As was observed in Ch. Pulla Reddy and

Ors. v.  State  of  Andhra  Pradesh (AIR  1993  SC  1899),  Section  34  is

applicable  even  if  no  injury  has  been  caused  by  the  particular  accused

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himself.  For applying Section 34 it is not necessary to show some overt act

on the part of the accused.

9. The prosecution version is sufficient to fasten the guilt on the accused

appellants.  The appeal is without merit, deserves dismissal which we direct.

……………………………………..J. (Dr. ARIJIT PASAYAT)

…………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 21, 2008

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