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PETITIONER: RAMASWAMI AYYANGAR AND ORS.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT24/03/1976

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 2027            1976 SCR  580  1976 SCC  (3) 574

ACT:      Indian Penal  Code, S. 34, essence of-Application of S. 34,  whether  physical  presence  and  actual  participation necessary in offences involving physical violence.

HEADNOTE:      Previous  enmity   between  the   appellant   Ramaswami Ayyangar  and  the  deceased  Kaliaperumal  resulted  in  an occurrence, in  which Kaliaperumal got seriously injured and died in  the hospital.  Various charges  were framed against the six  accused, including those of murder and rioting. The Trial  Judge   acquitted  three   of  the  accused  persons, convicted two under S. 302 I.P.C. and one under S. 324.      Cross-appeals were  preferred in the High Court; one by the three  accused against their convictions, and another by the State,  against the acquittals. The High Court convicted all the  six accused  of the  offence of rioting. A-2 to A-6 under S.  302 read  with S.  34, A-1  under Ss.  302/149 and 302/109, and  A-2 under S. 324. It was contended before this Court that  on the facts of the case, the High Court was not justified in  interfering with the acquittal of A-1. A-5 and A-6, and  that A-2 who did not physically participate in the fatal beating of the deceased, could not be held vicariously liable for  the acts  of others,  and that  S.  34  was  not applicable to him.      Partly allowing the appeals, the Court ^      HELD: (1)  In the case of an offence involving physical violence, it  is essential for the application of S. 34 that the person  who instigates  or aids  the commission  of  the crime must be physically present at the actual commission of the crime  for the  purpose of facilitating or promoting the offence, the  commission of  which is  the aim  of the joint criminal venture. [881 C-D]      (2) The  "act" spoken  of in S. 34 includes a series of acts as  a single  act. It  follows that  the words  "when a criminal act  is done  by several  persons" in S. 34, may be construed to  mean "when  criminal acts  are done by several persons". The  acts committed  by different  confederates in the criminal action may be different but all must in one way or  the   other  participate  and  engage  in  the  criminal enterprise. Such  presence of  those who  in one  way or the

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other facilitate  the execution  of the  common  design,  is itself tantamount  to actual  participation in the ’criminal act’. [881 A-B & D]      (3) The  essence of  S. 34 is simultaneous consensus of the minds  of persons participating in the ’criminal action’ to bring  about a  particular result.  Such consensus can be developed at  the spot  and thereby intended by all of them. [881 D-E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 251 of 1972 and 243 of 1973.      Appeals by  Special Leave  from the  Judgment and order dated 22-9-72  of the  Madras High  Court in Criminal Appeal No. 369/72 and 976/71.      Debaratea  Mookerjee,   M.  S.  K.  Sastri  and  M.  S. Narasimhan for the Appellants.      A.  V.   Rangam  and   Miss  A.   Subhashni,  for   the Respondents. 877      The Judgment of the Court was delivered by      UNTWALIA, J.  Criminal Appeal  No. 251 of 1972 has been filed under  section 2  of the Supreme Court (Enlargement of Criminal Appellate  Jurisdiction)  Act,  1970  and  Criminal Appeal No. 243 of 1973 is by special leave. In all there are six appellants. It would be convenient to refer to them with reference to  their accused  number given in the judgment of the Sessions Court. They are as follows:           Accused No. 1 (A-1)-Ramaswami Ayyangar.           Accused No. 2 (A-2)-Vattappan.           Accused No. 3 (A-3)-Kaipillai alias Karuppayyan.           Accused No. 4 (A-4)-Raman.           Accused No. 5 (A-5)-Kathayyan.           Accused No. 6 (A-6)-Kulandaiyan.      The occurrence  giving rise  to these  two appeals took place on  Monday the  21st April, 1971 at about 4.00 p.m. at Sivan Koil  tank in village Thaduthalkondapuram. In the said occurrence was  seriously injured one Kaliaperumal who later died in  the Hospital  at about  9.00 p.m. the same evening. Another person  injured in  the occurrence  was  also  named Kaliaperumal, P.W.  1. The prosecution case is that deceased Kaliaperumal was  living  with  his  maternal  uncle  Pichai Konar, P.W.  7 since  infancy. A-1  is  the  Karnam  of  the village and  A-6 is  the Government  vetti. A-2  and A-3 are brothers, A-4,  A-5 and  A-6 are also inter-se brothers. A-2 to A-6 worked under A-1. There was enmity between P.W. 7 and the deceased on the one hand and A-1 on the other on account of several causes. The facts showing the enmity between them are stated  in the judgments of the courts below and are not necessary to  be  detailed  here.  Two  days  prior  to  the occurrence Marimuthu,  P.W. 10 was driving some cattle, 4 or 5 of  them went  astray and  entered into  the  Gingillillai (field) belonging  to A-1. A-1’s men scolded P.W. 10 and the deceased who  was informed  about the incident by the former at a  tea shop.  P.W. 1  was also  present  there.  Deceased Kaliaperumal passed on the information to P.W. 7.      Ramalingam, P.W.  4 brother  of the deceased was taking his bath  in the  Sivan Koil  tank. Kaliaperumal  (deceased) also came there saying something against the Karnam. He also started bathing  at the  north-western corner  of the  tank. According to  the prosecution  case, A-1 came there followed by A-2  to A-6.  A-2 had a cross-stop (an instrument used in Survey and  measurement, perhaps  the correct  name  of  the

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instrument is cross-staff). A-3 and A-4 were each armed with an Aruval. A-5 had a stick and A-6 was carrying a stick with a spear  attached to it. According to the evidence in Court, A-1 told  the other  accused "Not  content to  with  grazing (his) cattle  in my  gingilly field,  he is also abusing me. Cut him,  whatever be the expenses, I will look after that." Thereupon A-4  asked the  deceased Kaliaperumal "Why are you abusing the ’Iyer’ ?" Saying something Kaliaperumal ascended the bank.  A-3 and  A-4  assaulted  him  on  his  head  with Aruvals. P.W.  1 ran to separate them when A-2 assaulted him on 878 his head  with the  cross-stop. P.W.  1  attempted  to  run. Thereupon it  is said  A-6 obstructed  him from running with the help  of the stick with spear head. A-4 again cut on the head of Kallaperumal (deceased) with his Aruval. A-2 beat on P.W’s head  with the  cross-stop hour  or five times. P.W. 1 fell down unconscious. P.W. 7 and others took the injured to the Government  Dispensary Kodavasal. Dr. Radha Singh, Civil Assistant Surgeon, P.W. 15 examined Kallaperumal deceased at 4.55  p.m.   and  issued  a  Wound  Certificate.  Since  his condition  was   serious  he  was  sent  to  the  Government Hospital, Kumbakonam. P.W.15 examined the injuries or P.W. 1 at 5.20  p.m. and  found as  many as  nine injuries  on  his person. As  already stated  Kaliaperumal died  at about 9.00 p.m. Dr.  N. Jayaraj, P.W. 18 performed the autopsy over the dead body.  As many  as 14 injuries were found. The injuries given on  the head  with Aruval according to the opinions of the Doctors were sufficient in the ordinary course of nature to cause his death.      Various charges  were framed  against the  six  accused including that  of rioting under section 147 IPC against A-1 and A-5  and section  148 against A-2, A-3, A-4 and A-6. A-1 was further  charged under  sections  302/149  and  sections 302/109. A-2 to A-6 were charged under section 302. An extra charge under  section  324  was  levelled  against  A-2  for causing simple  hurt to  P.W.  1  with  the  cross-stop,  an instrument which had sharp edges. A-6 was also charged under section 341  of the  Penal Code  for preventing  P.W. 1 from escaping.  The   accused  denied  their  complicity  in  the occurrence and  pleaded not guilty. A-1 took a plea of alibi also and  asserted that  he had gone to Madras in connection with some  marriage negotiations. Two days after the date of occurrence he  was arrested  at Kumbakonam  Railway  Station when he  alighted from  the train on his return from Madras. The Trial  Judge acquitted  A-1, A-5  and  A-6  of  all  the charges. He  convicted A-3  and A-4 under section 302 of the Penal Code  and awarded  a sentence  of life imprisonment to each of  them. They  were  acquitted  of  the  charge  under section 148. A-2 was convicted only under section 324 with a sentence of 4 months’ rigorous imprisonment and acquitted of all other charges.      A-2, A-3 and A-4 preferred an appeal in the Madras High Court against  their conviction  and the  sentences  imposed upon them  by the  Trial Court.  State preferred  an  appeal against the  acquittals of  A-1, A-5 and A-6 as also against the acquittal  of A-2  of the  charge under section 302. It, however, did  not prefer any appeal against the acquittal of A-2, A-3  and A-4  of the  charge under  section 148  of the Penal Code. Yet it is surprising to find that the High Court has convicted  all the  six  accused  for  the  offences  of rioting, A-1  and A-5  under section  147  with  two  years’ rigorous imprisonment  and  A-2,  A-3,  A-4  and  A-6  under section 148  with 3 years’ rigorous imprisonment. Conviction of A-3  and A-4  for the offence of murder under section 302

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has been  maintained with  the aid of section 34. High Court has also  convicted A-2,  A-5 and  A-6 under sections 302/34 and awarded  each of  them life  imprisonment. A-1  has been convicted by  the High  Court  under  sections  302/149  and 302/109 with sentence 879 of life  imprisonment under  each. Conviction  of A-2  under section 324 has been maintained. Hence these two appeals.      That there  was enmity  and bad  blood between  A-1 and P.W. 7  is not  open to  any doubt.  An occurrence  did take place  on   the  date,  time  and  place  as  given  by  the prosecution. The  manner of  occurrence  in  so  far  as  it relates to  the attack  on the  deceased is concerned by A-2 and A-3  has also  been proved  to the  hilt. The  factum of assault by  A-2 on  P.W. 1 also does not admit of any doubt. But the  High  Court  does  not  seem  to  be  justified  in reversing the order of acquittal recorded by the Trial Court in favour of A-1, A-5 and A-6.      It was  claimed by the prosecution that apart from P.W. 1 there  were four  more eye  witnesses  to  the  occurrence namely Govindaswami,  P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5,  and Kaliaperumal, P.W. 6. P.Ws 3 and 4 are brothers of the  deceased. P.W.  5 is  the brother-in-law  of P.W. 3. Ext. P-1 is the statement of P.W. 1 before the police on the basis of which the First Information Report was drawn up. On reading this  statement as  also the  evidence of  P.W. 1 in Court, the  Trial Judge  rightly came to the conclusion that P.Ws. 3, 4, 5 and 6 arrived at the scene of occurrence after it had  taken place.  None of  them  had  witnessed  it.  It considered the  evidence of each witness, viz. P.Ws. 3 to 6, individually and  did not rely upon it. In our judgment, the High Court  was not  right as against the explicit statement and evidence  of P.W.  1 in  reading P.Ws.  3 to  6  as  eye witnesses to  the occurrence. It is significant to note that although P.Ws.  3 and  4 were  the brothers  of the deceased Kaliaperumal but  none of  them made any attempt to save him form the  attack of the assailants. Had they been present at the occurrence  surely they  would have  tried to save their brother, as was done by P.W. 1. We are, therefore, left with the evidence  of P.W.  1 alone.  Since he was injured in the same occurrence,  undoubtedly, his  ocular  version  of  the incident is of great value to the prosecution.      The  plea   of  alibi  set  up  by  A-1  has  not  been substantiated at  all. The  Trial Judge  was  not  right  in doubting the prosecution case merely because A-1 had applied for leave  on the  18th April-3  days before the occurrence. There was  no evidence  to show that he was at Madras on the date of  occurrence. According  to the Investigating Agency, A-1 was  arrested not  on the  Railway platform but near the Railway level  crossing of  Kumbakonam Railway  Station. But the Trial  Court was  right in  saying that  the  only  part attributed to  A-1 was  the order giving for assault. In the statement Ext. P-1 the only words of order attributed to A-1 are "to  cut". In  court there  was great  embellishment and improvement in  the evidence  of P.W.  1 when he put several sentences in  the mouth  of A-1  at the  time of the alleged order-giving. As  already stated,  A-1 was the Karnam of the village and even if he was at the back of the assault on the deceased it  does not  stand to reason that he himself would go to  the place  of occurrence  merely for giving the order for assault.  The order, if any, must have been given to the assailants in  secret by  A-1. He  must not have come to the place of occurrence merely for this purpose. We 880 are, therefore,  of the view that although the High Court in

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its judgment  purported to  keep in  front the  well-settled principles of  law to justify an interference by it with the order  of   acquittal,  it  did  commit  a  mistake  in  the applications of  those principles.  Conviction of A-1 by the High Court under any count is not justified.      So do  we find in the case of A-5 and A-6 that they had not taken  any part  in the  occurrence at  all. The alleged obstruction given by A-6 to P.W. 1 when he wanted to run was not believable and has not been believed by the Trial Court. The reasons  given by  the Trial  Court for  their acquittal were not  such as  to justify  an interference  by the  High Court. The  view taken  by the  Trial Court  was  reasonably possible to be taken.      Coming to  the case  of A-2 we find that he did assault P.W. 1  with the  cross-staff marked  Ext. MO-1. This cross- staff, as alleged, has been recovered from the house of A-1. The Trial  Court, rightly,  did not believe the story of its recovery from  his house. But surely A-2 had used the cross- staff  for   assaulting  P.W.  1.  A  serious  question  for consideration is  whether his  conviction under  section 302 with the  aid of  section 34  is justified  or not.  In this connection we  find the  statement of  P.W. 1 in Ext. P-1 to the following effect:           "Raman too with the aruval in his hand dealt a cut      at the  front portion  of his  head.  I  ran  there  to      prevent it.  At that  time Vattappan  with  the  string      fixed wood he was having in his hand beat on my head." In the Sessions Court also he deposed:           "Thereupon, Accused  No. 3  immediately cut on the      head of  Kaliyaperumal in  the front  portion with  the      aruval he  was having  in his  hand. I  ran to separate      them. Immediately  Accused No.  2 beat  on my head with      M.O. 1.....      Then accused number 2 beat on my head with M.O. 1, 4 or      5 times.  I fell  down unconscious.  After  some  time,      President   Kaliyaperumal,    Rajagopal,   Mani   alias      Rajagopal, Ramalingam,  Govindaswami-these persons came      there. From the  evidence of  P.W. 1 corroborated as it is from his statement in Ext. P-1 it is clear that P.W. 1 wanted to save Kaliyaperumal- the deceased, from the murderous attack by A- 3 and  A-4. A-2  was standing  as a  guard and did not allow P.W. 1  to protect  the deceased.  A-2 went to the length of assaulting P.W. 1 and making him fall down unconscious.      It is  contended that  A-2 cannot  be held  vicariously liable with the aid of s. 34 for the act of A-3 and A-4, for two reasons:  Firstly, he  did not physically participate in the fatal  beating  administered  by  A-3  and  A-4  to  the deceased and  thus the "criminal act" of murder was not done by all  these three  accused within  the contemplation of s. 34, the  act committed  by A-2  in regard  to the beating of P.W. 1  being a different and separate act of A-2. Secondly, it has  not been shown that the act of A-2 in beating P.W. 1 was committed in 881 furtherance of  the  common  intention  of  all  the  three, pursuant to a pre-arranged plan.      The contention  is fallacious  and cannot  be accepted. Section 34  is to  be read  along with  the preceding  s. 33 which makes  it clear  that the  "act" spoken  of in  s.  34 includes a  series of  acts as a single act. It follows that the words  "when a  criminal act is done by several persons" in s.  34, may  be construed to mean "when criminal acts are done by  several persons".  The acts  committed by different confederates in the criminal action may be different but all

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must in  one way  or the other participate and engage in the criminal enterprise,  for instance, one may only stand guard to prevent  any person coming to the relief of the victim or to otherwise  facilitate the execution of the common design. Such a  person also  commits an  "act" as  much as  his  co- participants actually  committing the  planned crime. In the case of  an offence involving physical violence, however, it is essential  for the  application of  s. 34 that the person who instigates  or aids  the commission of the crime must be physically present at the actual commission of the crime for the purpose  of facilitating  or promoting  the offence, the commission of  which  is  the  aim  of  the  joint  criminal venture. Such  presence of those who in one way or the other facilitate the  execution of  the common,  design, is itself tantamount to  actual participation  in the  ’criminal act’. The essence  of s. 34 is simultaneous consensus of the minds of persons  participating in  the criminal  action to  bring about a  particular result.  Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1  from going  to the  relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A- 2 was  equally responsible  for the  murder of the deceased. Under these  circumstances  we  think  the  High  Court  was justified in  convicting A-2  for the  offence of  murder of Kaliyaperumal with  the aid of section 34 of the Penal Code. There  was  absolutely  no  difficulty  in  maintaining  the convictions of  A-3 and  A-4 for the murder of Kaliyaperumal with the  aid of  section 34  because both  had  mercilessly assaulted him  with Aruvals  on the vital parts of the body. In the  case of A-2 also it is quite legitimate to hold that he had  shared the  common intention  of A-3  and A-4 in the commission of the murder of Kaliyaperumal.      The conviction  of none  of the accused for the offence of rioting  can be  maintained either in law or on facts. In the view  which we  have expressed above that the High Court was not  justified in  reversing the  acquittals of A-1, A-5 and A-6,  there were  only  3  left  in  the  party  of  the assailants. Moreover the State did not file any appeal, as 882 stated already,  against the  acquittal of  A-2, A-3 and A-4 under section  148 of  the Penal  Code. That  being so, they could  not  be  convicted  for  having  formed  an  unlawful assembly for  any criminal  common  object.  None  could  be convicted, therefore, under sections 147 or 148. Section 149 could not be pressed into service against any.      In the  result we  allow  both  the  appeals  in  part, restore the  order of  acquittal recorded  in favour  of A-1 viz., Ramaswami  Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the  remaining accused  under sections 147 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A- 3 Kaipillai  alias  Karuppayyan,  A-4  Raman  under  section 302/34 with  the sentence  of life  imprisonment to each. We also maintain the conviction of A-2 under section 324 Indian Penal  Code  with  the  concurrent  sentence  of  4  months’ rigorous imprisonment under the said count. M.R.                                 Appeals partly allowed. 883