REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2067          OF 2008 [arising out of SLP (Criminal) No. 3687 of 2008]

NAGARAJA     … APPELLANT

VERSUS

STATE OF KARNATAKA     … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.  

2. Appellant  (Accused  No.3)  along  with  Suresh  (Accused  No.1)  and

Ranganatha (Accused No. 2) was charged with for commission of offence

punishable under Section 302 read with Section 34 of the Indian Penal Code

(for short, ‘IPC’) on the accusation that they had due to previous ill-will, in

furtherance of their common intention, caused the death of one Venkatesh

(‘the deceased’).  Accused No. 1 assaulted the deceased with an iron rod on

his head and other parts of the body and accused Nos. 2 and 3 assaulted him

with fists and kicks and, thus, caused hurt and voluntarily caused his death

and thereby committed an offence punishable under Section 302 read with

Section 34 of the IPC.

3. A wine shop commonly known as ‘Nandi Wines’ is situated at Nandi

village behind Yoganandeshwara Temple.  Appellant  was an employee of

the said  shop.  Accused  No.2  was  supplier  of  wine  to  the  said  shop and

accused No. 1 was a customer thereof.   

Deceased was an agriculturist.  He ordinarily used to return home at

7:00 p.m.  However, on the date of incident, i.e., on 13.10.2000, he did not

return to his house.   

P.W.1- Munegowda, the brother of the deceased, on being asked by

his mother at about 8.30 p.m. went out to search for him and after finding

him sitting in the ‘circle’, returned home.  But the deceased did not come

back.   

Again at  about 10’O clock in the night,  P.W. 1 went in search for

him.  When he reached near ‘Nandi wines’, he found the accused persons

were quarrelling with the deceased.  Accused No. 1 assaulted the deceased

with an iron rod on the back of his head; accused no. 3 – appellant herein,

kicked him and accused no. 2 gave fist blows on his face. Deceased was

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found to have sustained injuries.  He was taken to Government Hospital of

Chickballapur.   The  Doctor  sent  information  thereabout  to  P.W.13

Thimarayappa, who was working as Head Constable and was the Station

House Officer of Chikaballapur Rural Police Station, at the relevant time at

12.00 midnight on 13.10.2000.  He immediately went to the Hospital and

recorded the  statement  of  P.W.1.   He returned  to  the  police  station  and

registered  the  said  complaint  in  Crime  No.  230/2000,  for  the  offence

punishable under Sections 323, 324 and 307 of the IPC; he prepared FIR

and sent the same to the jurisdictional court.    Thereafter, as advised by the

Doctor, deceased was taken to NIMHANS at Bangalore.  He expired on the

next day.   

4. The First information Report was lodged by the P.W.1, the brother of

the  deceased.  Another  witness  Munivenkategowda  claiming  to  be  an

eyewitness,  examined  himself  as  P.W.  2.   Manjunatha  (P.W.  3)  and  K.

Srinivas (P.W. 7) were also present at the time of the incident.  A general

allegation  was  made  that  there  was  some  previous  ill-will  between  the

parties.   

5. Indisputably,  the  deceased  used  to  take  drink  occasionally.   He

(P.W.1) could not state the reason as to whether the accused persons had

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any animosity with the deceased.  He admitted that he had not lodged any

complaint with regard to the earlier incident.   

6. The  learned  trial  judge  convicted  all  the  accused  persons  for

commission of an offence punishable under Section 302 read with Section

34 of the IPC.   

7. They preferred an appeal before the High Court.   By reason of the

impugned judgment, the same has been dismissed.   

8. This  Court  issued  a  limited  notice  only  in  respect  of  the  present

appellant with regard to the nature of offence.       

9. Mr. Basava Prabhu S. Patil, learned Counsel in support of this appeal

raised the following contentions:

i. The  learned  single  judge  as  also  the  High  Court  failed  to

consider  that  the  prosecution  witnesses  did  not  make  any

statement  as  regards  the formation  of  any common intention

amongst the accused so as to hold them guilty for commission

of offence punishable under Section 302 read with Section 34

of the IPC.

ii. All  the  witnesses  merely  stated  that  the  appellant  had  only

kicked the deceased and he was wholly unarmed.   

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iii. The recovery of an iron rod is  said to  have been made only

from accused No. 1 and not from the other accused.   

iv. Prosecution has failed to prove any tangible motive and only a

general statement was made that there was some previous ill-

will between the parties.   

v. The accused persons being not related, cannot be said to have

any common intention to cause the said offence.

10. Ms. Anitha Shenoy, learned counsel appearing on behalf of the State,

on the other hand, would contend that the common intention must be held to

have been formed at the spur of the moment. It was urged that as both the

courts below have arrived at a concurrent finding of fact in regard thereto

the impugned judgment should not  be interfered with.   According to  the

learned counsel, the accused were not strangers but employees of the same

Wine Shop and, thus, they must be presumed to have acted in concert.  It

was furthermore submitted that they came together and ran away together

which demonstrates that they had a common intention to kill the deceased.   

11. The High Court in its impugned judgment proceeded on the basis that

all the accused persons were employees of Nandi Wine Stores.  However,

the prosecution itself in support of its case examined Bachegowda (P.W. 4),

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the owner of Nandi Wine Stores, who in his deposition had stated that only

appellant was working with him as a cashier, whereas accused No.1 was a

customer and the accused No. 2 was a supplier.   

He was not present at the place of occurrence on the said date.  He

was not a witness to the occurrence.  Prosecution has not brought on records

any evidence to show that the accused persons had a common intention to

commit the murder of deceased.  It has not been shown that even otherwise

they were bearing any common grudge against the deceased.     Evidently,

both the accused No. 1 and the deceased were customers of the said Wine

shop.  They might have picked up some quarrel.    At the time when the

occurrence took place,  appellant  being an employee of the said shop the

question of his coming to the place of occurrence together with the other

accused did not arise.  The evidence of prosecution witnesses, particularly

P.Ws. 1 and 2, on which both the courts below have relied upon, even if

taken at their face value, would merely show that it was the accused No. 1

who had assaulted the deceased with an iron rod; appellant was said to have

only kicked the deceased.   

12. A  general  statement  was  made  that  about  a  month  prior  to  the

incident,  when  the  deceased  had  gone  to  Nandi  Wine  shop,  a  quarrel

between him and the accused persons took place.  According to P.W. 1, at

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that  point  of  time,  accused  persons  had  threatened  the  deceased.   From

whom he had heard thereabout has not been disclosed.   

13. Indisputably,  P.W.1’s  his  house  was  situated  at  about  one  furlong

from the place of occurrence.  He came to the place of occurrence in search

of his brother.  He failed to bring any material on record as to on what basis

he arrived at the  conclusion  that  accused persons had formed a common

intention.   

14. Ms. Shenoy may also not be correct in contending that all the accused

persons  ran  way  together.   P.W.  2  deposed  that  they  went  in  different

directions.   Appellant,  according  to  P.W.1,  ran  towards  the  Wine  shop.

Thus, it  is  not  a case where all  the accused came together and ran away

together.  A bald statement said to have been made by him that the accused

No.1 while assaulting the deceased had exhorted that they would not leave

him till  he  died,  cannot  be  a  ground  to  hold  that  the  same by  itself  is

demonstrative of the fact that appellant - accused No. 3 also had a similar

intention.   Admittedly,  no  weapon  was  recovered  at  the  instance  of

appellant.  He was wholly unarmed.  On the basis of the voluntary statement

made by the accused No.1 alone, an iron rod was recovered.   

15. We are not concerned herein as to whether the said iron rod was the

weapon  of  assault.   Having  regard  to  the  quality  of  evidence  that  the

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prosecution had led, in our opinion, it is difficult to come to the conclusion

that all the accused persons had a common intention to commit the murder

of the deceased.    

For invoking the provisions of Section 34 of the IPC, at  least  two

factors must be established; (1) common intention, and (2) participation of

the accused in the commission of an offence.  

16. For the aforementioned purpose although no overt act is required to

be attributed to the individual accused but then before a person is convicted

by applying the doctrine of vicarious liability not only his participation in

the  crime  must  be  proved  but  presence  of  common  intention  must  be

established.   It  is  true  that  for  proving  formation  of  common  intention,

direct  evidence may not  be available  but  then there cannot be any doubt

whatsoever that to attract the said provision, prosecution is under a bounden

duty to prove that participants had shared a common intention.  It is also

well settled that only the presence of the accused by itself would not attract

the provisions of Section 34 of the I.P.C.  Other factors should also be taken

into consideration for arriving at the said conclusion.  Accused persons were

not related to each other; they did not have any family connection; they have

different vocations.   It has not been established that they held any common

animosity towards the deceased.   

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A  general  and  vague  statement  made  by  one  of  the  prosecution

witnesses  would  not  prove  motive.   It  may  be  true  that  the  common

intention may develop suddenly at  the spot  but  for the said purpose,  the

genesis of the occurrence should have been proved.  The prosecution has

failed to establish why and how a quarrel has started.  The prosecution even

has not proved as to why the accused No. 1 was carrying the iron rod even

before the quarrel with the deceased started or as to whether the appellant

was aware of this.   It  has also not  been shown that  he along with  other

accused persons  came to  assault  the deceased.   Appellant  ordinarily was

expected to be at his work place only.  His presence at the spot, therefore,

has sufficiently been explained.

17. In Rishideo Pande vs. State of Uttar Pradesh [AIR 1955 SC 331], this

Court held:

“2 The main point urged by Sri Umrigar who appears in support of this appeal is that Section 34, I. P. C., has been wrongly applied to the facts of this  case.  The  meaning,  scope  and  effect  of Section 34 have been explained on more than one occasion by the Privy Council and by this Court. It will suffice only to refer to the last decision of this Court in the case of -- 'Pandurang v. The State of Hyderabad', AIR 1955 SC 216 (A) pronounced on 3-12-1954. It is now well settled that the common intention  referred  to  in  Section  34 presupposes prior  concert,  a  pre-arranged  plan,  i.e.,  a  prior meeting of minds. This does not mean that there must  be  a  long  interval  of  time  between  the

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formation of the common intention and the doing of  the  act.  It  is  not  necessary  to  adduce  direct evidence  of  the  common  intention.  Indeed,  in many cases  it  may be  impossible  to  do  so.  The common  intention  may  be  inferred  from  the surrounding circumstances and the conduct of the parties. Sri Umrigar submits that there is nothing on the record from which a common intention on the  part  of  Rain  Lochan  and  the  appellant  to murder Sheomurat can be properly inferred.”

18. Yet again in Chikkarange Gowda and Ors. v. State of Mysore  [AIR

1956 SC 731], this Court held:

“10. So far back as 1873, in Queen v. Sabed Ali 20 Suth W R (Cr) 5 (A), it  was pointed out that Section 149 did not  ascribe every offence which might  be  committed  by  one  member  of  an unlawful  assembly  while  the  assembly  was existing,  to  every  other  member.  The  section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an  offence  committed  by  a  member  of  the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object.

In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 : (AIR 1925 PC 1) (B) the distinction between Sections 149 and 34, Penal Code was pointed out. It  was  observed  that  Section  149  postulated  an assembly  of  five  or  more  persons  having  a common  object,  namely,  one  of  those  objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to

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be committed in prosecution of that object. It was pointed  out  that  there  was  a  difference  between common object and common intention ; though the object  might  be  common,  the  intention  of  the several members might differ. The leading feature of  Section  34  is  the  element  of  participation  in action, whereas membership of the assembly at the time  of  the  committing  of  the  offence  is  the important  element  in  Section  149.  The  two sections have a certain resemblance and may to a certain  extent  overlap,  but  it  cannot be said  that both have the same meaning.”

19. Yet again in  Mohan Singh  v.  State of Punjab [AIR 1963 SC 174],

this Court held:

“13. That inevitably takes us to the question as to whether the appellants  can be convicted under s. 302/34.  Like  s.  149,  section  34  also  deals  with cases of constructive criminal liability. It provides that  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. The essential  constituent  of  the  vicarious  criminal liability  prescribed  by  s.  34  is  the  existence  of common  intention.  If  the  common  intention  in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing  the  common  intention  is  constructively liable  for  the criminal  act  done by one of them. Just  as  the  combination  of  persons  sharing  the same common object is one of the features of an unlawful  assembly,  so  the  existence  of  a combination of persons sharing the same common intention is one of the features of s. 34. In some ways  the  two  sections  are  similar  and  in  some

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cases  they  may  overlap.  But,  nevertheless,  the common intention  which  is  the  basis  of  s.  34 is different  from  the  common  object  which  is  the basis of the composition of an unlawful assembly. Common intention  denotes  action-in-concert  and necessarily  postulates  the  existence  of  a  pre- arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which s.  34  can  be  applied  disclose  an  element  of participation  in  action  on  the  part  of  all  the accused persons. The acts may be different;  may vary in their character, but they are all actuated by the same common intention. It is now well-settled that  the  common  intention  required  by  s.  34  is different  from  the  same  intention  or  similar intention.”

20. Even a past enmity by itself, in our opinion, may not be a ground to

hold for drawing any inference of formation of common intention amongst

the parties.  

21. We may,  however,  hasten  to  add  that  the  question  as  to  whether

common intention was formed for commission of an offence or not would

depend upon the facts of each case. {See  Nishan Singh v.  State of Punjab

[2008 (3) SCALE 416]}

22. Recently in Bhanwar Singh & ors.  vs. State of M.P.[2008 (7) SCALE

633], this Court held:

“45. It  would also be instructive  to  look at  the following  observations  made in  Gurdatta  Mal v.

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State of UP [AIR 1965 SC 257], in the context of Sections 34 and 149 IPC:-

“It is well settled that Section  34 of the Indian Penal Code does not create a distinct  offence:  it  only lays down the  principle  of  joint  criminal liability. The necessary conditions for the application of Section  34 of the Code  are  common  intention  to commit  an  offence  and  participation by all the accused in doing act or acts in  furtherance  of  that  common intention. If these two ingredients are established, all the accused would be liable  for  the  said  offence… In  that situation Section 96 of the Code says that  nothing  is  an  offence  which  is done  in  the  exercise  of  the  right  of private  defence.  Though  all  the accused  were  liable  for  committing the murder  of  a  person by doing an act  or  acts  in  furtherance  of  the common intention, they would not be liable for the said act or acts done in furtherance  of  common  intention,  if they had the right of private defence to  voluntarily  cause  death  of  that person. Common intention, therefore, has relevance only to the offence and not  to  the  right  of  private  defence. What would be an offence by reason of  constructive  liability  would  cease to  be  one  if  the  act  constituting  the offence  was  done  in  exercise  of  the right of private defence.”

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23. For the aforementioned reasons, we are of the opinion that appellant

cannot be held guilty for commission of offence punishable under Section

302 read with Section 34 of the IPC.   The very fact that the appellant was

unarmed and must be presumed to have been performing his duties at his

place  of  employment,  it  cannot  be  said  that  he  had  formed any kind  of

common intention at the spot to murder the deceased. Some incident might

have taken place and he might have formed a common intention to teach a

lesson  to  the  deceased.   He  might  be  guilty  for  commission  of  offence

punishable under Section 323 of the IPC and not for commission of offence

punishable  under  Section  302  read  with  Section  34  of  the  IPC.   He  is

sentenced to the period already undergone.

The appeal is allowed accordingly.  The appellant is on bail. The bail

bonds shall stand discharged.   

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 18, 2008

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