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PETITIONER: KRISHNA GOVIND PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 23/01/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1963 AIR 1413            1964 SCR  (1) 678  CITATOR INFO :  D          1965 SC1037  (5,6)  D          1968 SC  43  (7)  RF         1970 SC 977  (12)  R          1972 SC 254  (4,6)  RF         1973 SC 337  (24,25,26)  E          1973 SC 863  (33)  D          1974 SC 323  (10)  R          1974 SC 778  (13)  RF         1975 SC1917  (13)  D          1976 SC1084  (16,17)  R          1976 SC2207  (51)  RF         1983 SC1090  (3)  R          1989 SC 772  (10)  R          1991 SC 318  (19)  D          1991 SC1853  (11,15)

ACT: Criminal  Law-Four persons charged with substantive  offence read  with  s. 34-Three acquitted-Conviction  of  one  under substantive  offence read with s. 34-Propriety  of-Different situations considered Indian Penal Code, 1860 (45 of  1860), ss. 34, 302.

HEADNOTE: The  four  accused  persons stood  their  trial  before  the Additional Sessions judge for the murder of one  Vishwanath. The  charge  against  them was that they in  view  of  their common grudge a against the deceased, combined together  and did away with the deceased.  They were charged under s.  302 read  with  s.  34 of the Indian Penal code  and  were  also separately  charged  under s. 302 of the  Penal  Code.   All pleaded  not  guilty to the charge and accused 1,  3  and  4 pleaded  alibi,  while accused 2 raised a  plea  of  private defence.   The learned Additional Sessions  judge  acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version given by accused 2  was the probable one.  The State preferred an  appeal  to the High Court against the order of acquittal under s.  302, read with s. 34, but not against the acquittal under s.  302 of  the Penal Code.  The High Court acquitted accused  1,  3

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and 4 on the ground that it was doubtful whether any one  of them  participated  in  the commission of  the  offence  and convicted  accused 2 on the ground that one or more of  them might  have  participated in the offence.   Accused  2,  the appellant,  therefore, filed this appeal and contended  that when three of the four named accused, who were charged under s. 302, read with s. 34, were acquitted, the court could not convict only one of the accused on the basis of constrictive liability. Held  that  before a court could convict a person  under  s. 302,  read  with  s.  34,  it  should  come  to  a  definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing  the said offence. Held,  further, that when accused were acquitted  either  on the ground that the evidence was not acceptable or by giving  679 benefit  of  doubt to them, the result in law would  be  the same  it  would  mean that they did not  take  part  in  the offence.  The effect of the acquittal of accused 1, 3 and  4 is  that  they  did not conjointly act  with  accused  2  in committing  the murder. If they did not act conjointly  with the appellant, he could not have acted conjointly with them. The  judgment  of  the High Court  does  not  indicate  that persons  other  than the said accused  participated  in  the offence,   nor  is  there  any  evidence  in  that   regard, therefore,  the  conviction  of the appellant  must  be  set aside. Mohan Singh v. State of Punjab, [1962] Supp. 3 S. C. R. 848, held inapplicable.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 201  of 1962. Appeal  by special leave from the judgment and  order  dated February  20,  1962, of the Bombay High  Court  in  Criminal Appeal No. 1405 of 1961. C.   L. Sareen, for the appellant. H.   B. Khanna and R. H. Dhebar, for the respondent. 1963.  January 23.  The judgment of the Court was  delivered by SUBBA  RAO,  J.-This  appeal by special  leave  is  directed against the judgment of a division Bench of the ’Bombay High Court  setting  aside  the order of acquittal  made  by  the Additional  Sessions  judge,  Kolaba,  and  convicting   the appellant under S. 302, read with s. 34, of the Indian Penal Code and sentencing him to imprisonment for life. The  case of the prosecution may be briefly stated.  In  the year 1959, two persons by name Ramachandra Budhya and Govind Dhaya  were  murdered by some people.  In  all  II  accused, including one Deoram Maruti Patil, were brought to 680 trial; and out of them 8 accused, including the said  Deoram Maruti  Patil,  were acquitted.  During  that  trial  Deoram Maruti  Patil’s uncle, by name Vishwanath,  actively  helped Deoram Maruti Patil in the conduct of his defence.   Accused 1 and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 are the nephews of Ramachandra Budhya.  They bore  a grudge against Vishwanath for helping Deoram  Maruti Patil and bringing about his acquittal.  On August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in order to go to Pezari en route to Alibag. When  they  were walking along a bund, accused I to  4  came

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from behind, armed with long sticks and the stick carried by accused  1 had a blade attached to it.  They belaboured  the deceased resulting in his death. The four accused had to stand their trial for the murder  of Vishwanath  before  the  Court of  the  Additional  Sessions judge,  Kolaba.  The charge against them was that  they,  in view  of their common grudge against the deceased,  combined together  and  did away with the deceased.   The  said  four persons  were charged under s. 302, read with s. 34, of  the Indian Penal Code for committing the murder of the  deceased in furtherance of their common intention.  All of them  were also charged separately for the substantive offence under s. 302  of the Indian Penal Code.  All the accused pleaded  not guilty  to  the charge.  While accused 1, 3  and  4  pleaded alibi,  accused  2 raised a plea of  private  defence.   The prosecution  examined  eye-witnesses, who deposed  that  the four  accused  overtook the deceased when he  was  going  to village  Pezari  and  felled him down by  giving  him  lathi blows.   None of the witnesses spoke to the presence of  any other person, named or unnamed, who took part in the assault of  the  deceased.  The learned  Additional  Sessions  judge found that the prosecution witnesses were not speaking  681 the  truth and that the version given by accused 2  was  the probable  one.  In the result he acquitted all the  accused. The State preferred an appeal to the High Court against  the said  order of acquittal under s. 302, read with s.  34,  of the Indian Penal Code ; but no appeal was preferred  against the  order  of acquittal under s. 302 of  the  Indian  Penal Code.   The  judgment of the High Court discloses  that  the learned judges were inclined to believe the evidence of  the witnesses,  other  than  Kashinath and  Shridar.   But  they dismissed  the  appeal  against accused 1, 3 and  4  on  the ground  that the appeal was against an order  of  acquittal. But in regard to accused 2, they held that he was one of the participants  in the assault and there was no basis for  his plea  of private defence.  Having come to  that  conclusion, the  learned judges convicted accused 2 under s.  302,  read with  s.  34,  of the Indian Penal  Code.   As  regards  the persons  who participated in the assault along with  accused 2,  it would be appropriate to quote the words of  the  High Court itself :               "Some  of the other accused  were  undoubtedly               concerned with the incident along with accused               No. 2. Since it is possible that the story  as               given by the prosecution witnesses, and parti-               cularly by Mahadeo, was exaggerated, it is not               safe  to  hold  that each  one  of  the  other               accused was also a participant in the offence.               In view of the possibility that one or more of               the other accused, i.e., accused Nos. 1, 3 and               4, might not have participated in the offence,               we  do  not  propose  to  interfere  with  the               acquittal  of  these  accused.   But  we   are               satisfied that accused No. 2 along with one or               more  of  the  other  accused  committed  this               offence and that accused No. 2 was, therefore,               clearly  guilty  under section 302  read  with               section 34 I. P. Code". To put it in other words, they, acquitted accused 1, 3 and 4 on the ground that it was doubtful whether 682 any  one  of  them participated in  the  commission  of  the offence  and convicted accused 2 on the ground that  one  or more  of  them  might  have  participated  in  the  offence.

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Accused 2 has filed the present appeal against the  judgment of the High Court. The argument of teamed counsel for the appellant may be  put thus  : The learned Additional Sessions judge acquitted  the accused under s. 302 of the Indian Penal Code and also under s.  302, read with s. 34, of the said Code.  The  appeal  in the  High  Court was confined only to the acquittal  of  the accused  under s. 302, read with s. 34, of the Indian  Penal Code.  The charge as well as the evidence was only  directed against  the four named accused as the participants  in  the common intention to commit the murder of the deceased.   The High   Court   having  acquitted  accused  1,   3   and   4. inconsistently convicted accused 2 for having committed  the murder  of the deceased jointly with the three  accused  who had been acquitted.  To put it differently, the argument  is that when three of the four named accused, who were  charged under  s.  302, read with s. 34, of the Indian  Penal  Code, were acquitted, the court could not convict only one of  the accused on the basis of constructive liability. Learned counsel for the respondent counters this argument by stating  that though the charge as well as the evidence  was directed against the 4 named accused, a court could come  to the  conclusion  that  3  of the 4  named  accused  are  not identified  but  more  than  one  had  taken  part  in   the commission of the offence and that in the present case on  a fair reading of the entire judgment we should hold that  the High  Court  found that though accused 1, 3 and 4  were  not identified,  3 unidentified persons must have taken part  in the murder.  Section 34 of the Indian Penal Code reads :               "When  a criminal act is done by several  per-               sons, in furtherance of the common intention                683               of  all,  each of such persons is  liable  for               that act in the same manner as if it were done               by him alone." It is well settled that common intention within the  meaning of the section implied a pre-arranged plan and the  criminal act  was  done pursuant to the prearranged plan.   The  said plan  may also develop on the spot during the course of  the commission  of the offence; but the crucial circumstance  is that  the  said plan must precede the act  constituting  the offence.  If that be so, before a court can convict a person under s. 302, read with s. 34, of the Indian Penal Code,  it should come to a definite conclusion that .the said  person, had a prior concert with one or more other persons, named or unnamed,   for   committing  the  said   offence.    A   few illustrations will bring out the impact of    s.    34    on different situations. (1)  A, B, C and D are charged under s. 302, read with s.34, of  the Indian Penal Code, for committing the murder  of  E. The  evidence  is directed to establish that the  said  four persons have taken part in the murder. (2)  A, B, C and D and unnamed others are charged under  the said  sections.  But evidence is adduced to prove  that  the said   persons,  along  with  others,  named   or   unnamed, participated jointly in the commission of that offence. (3)  A, B, C and D are charged under the said sections.  But the evidence is directed to prove ,-hat A, B, C and D, along with 3 others, have jointly committed the offence. As  regards  the third illustration, a  Court  is  certainly entitled  to come to the conclusion that one of  the,  named accused  is guilty of murder under s. 302, read with s.  34, of the Indian Penal Code, though the 684 other  three named accused are acquitted, if it accepts  the

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evidence  that the said accused acted in concert along  with persons,  named or unnamed, other than those  acquitted,  in the commission of the offence.  In the second  illustration, the Court can come to the same conclusion and convict one of the  named accused if it is satisfied that no prejudice  has been caused to the accused by the defect in the charge.  But in  the first illustration the Court certainly  can  convict two or more of the named accused if it accepts the  evidence that  they acted conjointly in committing the offence.   But what is the position if the Court acquits 3 of the 4 accused either  because  it  rejects  the  prosecution  evidence  or because it gives the benefit of doubt to the said accused  ? Can  it  hold,  in  the  absence of  a  charge  as  well  as evidence’, that though the three accused are acquitted, some other  unidentified persons acted conjointly along with  one of the named persons ? If the Court could do so, it would be making  out  a new case for. the prosecution : it  would  be deciding  contrary to the evidence adduced in the  case.   A Court  cannot obviously make out a case for the  prosecution which is not disclosed either in the charge or in regard  to which there is no basis in the evidence.  There must be some foundation  in  the evidence that persons other  than  those named  have taken part in the commission of the offence  and if  there  is such a basis the case will be covered  by  the third illustration. In support of the contention that a Court, even in the first illustration,  can  acquit 3 of the 4 accused named  in  the charge  on  the  ground that their  identity  has  not  been established, and convict one of them on the ground that more than  one  took  part  in the  commission  of  the  offence, reliance is placed upon the decision of this Court in  Mohan Singh v. State of Punjab (1).  There, the appellants,  along with  three  others,  were  charged  with  having  committed offence  under S. 302, read with s. 149, as well as s.  323, read (1)  [1962] Supp. 3 S.C.R. 848. 858.  685 with  s. 149, of the Indian Penal Code.  The Sessions  judge acquitted  two  of  them, with the result  3  of  them  were convicted.   One of the accused was convicted under  s.  302 and  s. 147 and two of the accused were convicted  under  s. 302, read with s. 149 and s. 147, of the Indian Penal  Code. The  High Court confirmed their convictions.  On  appeal  by special  leave to this Court, two of the  accused  convicted under s. 302, read with ss. 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under s. 302, read with ss. 149 and 147, was bad in law, This Court held on the evidence that  the  said two accused had done the act pursuant  to  a pre-arranged  plan  and therefore they  could  be  convicted under  s.  302, read with s. 34, of the Indian  Penal  Code. But in the course of the judgment different situations  that might  arise in the context of the question now raised  were noticed.  Adverting to one of the situations similar to that now before us, this Court observed :               "Cases may also arise where in the charge, the               prosecution  names  five or more  persons  and               alleges  that  they  constituted  an  unlawful               assembly.   In such cases, if both the  charge               and  the evidence are confined to the  persons               named in the charge and out of the persons  so               named two or more are acquitted leaving before               the court less than five persons to be  tried,               then  s. 149 cannot be invoked.  Even in  such               cases,  it is possible that though the  charge

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             names  five  or more persons as  composing  an               unlawful  assembly, evidence may  nevertheless               show  that the unlawful assembly consisted  of               some  other  persons  as  well  who  were  not               identified  and so not named.  In such  cases,               either the trial court or even the High  Court               in   appeal  may  be  able  to  come  to   the               conclusion  that the acquittal of some of  the               persons named in the charge and tried will not               necessarily               686               displace the charge under section 149  because               along with the two or three persons  convicted               were others who composed the unlawful assembly               but  who have not been identified and so  have               not been named.  In such cases, the  acquittal               of  one  or more persons named in  the  charge               does  not -affect the validity of  the  charge               under section 149 because on the evidence  the               court of facts is able to reach the conclusion               that  -the  persons  composing  the   unlawful               assembly  nevertheless were five or more  than               five.  It is true that in the last category of               cases, the court will have to be very  careful               in reaching the said conclusion.  But there is               no  legal  bar which prevents the  court  from               reaching such a conclusion." It will be seen from the. said observations that this  Court was  visualizing  a  case where there was  evidence  on  the record  from which the court can come to such a  conclusion. It  may be that the charge discloses only named persons;  it may  also be that the prosecution witnesses named  only  the said accused; but there may be other evidence, such as  that given   by   the  court-witnesses,  defence   witnesses   or circumstantial  pieces of evidence, which may  disclose  the existence  of  named or unnamed persons,  other  than  those charged or deposed to by- the prosecution witnesses, and the court,  on the’ basis of the said evidence, may come to  the conclusion  that others, named or unnamed, acted  conjointly along  with one of the accused charged.  But such a  conclu- sion is really based on evidence.  The observations of  this Court   really  apply  to  a  case  covered  by  the   third illustration given by us. But   the  present  case  falls  outside  the   said   three illustrations.   The High Court gave  conflicting  findings. While  it  acquitted accused 1, 3 and 4 under s.  302,  read with s. 34 of the Indian Penal  687 Code, it convicted accused 2 under s. 302, read with s.  34, of  the said Code, for having committed the offence  jointly with  the acquitted persons.  That is a  legally  impossible position.  When accused were acquitted either on the  ground that the evidence was not acceptable or by giving benefit of doubt  to  them, the result in law would be the  same  :  it would mean that they did not take part in the offence.   The effect  of the acquittal of accused 1, 3 and 4 is that  they did  not  conjointly act with accused 2  in  committing  the murder.   If  they did not act conjointly  with  accused  2, accused  2  could  not  have  acted  conjointly  with  them. Realizing  this  mutually destructive findings of  the  High Court,  learned counsel for the State attempted  to  sustain the findings of the High Court by persuading us to hold that if  the  said finding was read in the context of  the  whole judgment, it would be clear that the learned judges meant to hold   that  persons  other  than  the   acquitted   accused

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conjointly  acted with the convicted accused.  We have  gone through  the  entire judgement carefully  with  the  learned counsel.   But  the observations of the learned  judges  ;is regards  the "’other participants" in the Grime must in  the context  refer only to the "’one or other of the said  three acquitted  accused participated in the offence committed  by accused 2. There is not a single observation in the judgment to  indicate  that  persons  other  than  the  said  accused participated  in the offence, nor is there any  evidence  in that  regard.  We, therefore, hold that the judgment of  the High  Court  cannot  stand.  We are satisfied  that  on  the findings  arrived  at by the High Court, the  conviction  of accused 2 is clearly wrong. In the result, we allow the appeal, set aside the conviction of the appellant and direct him to be set at liberty.                                      Appeal allowed. 688