Kilari Malakondiaah @ Malayadri & Ors. v. State of Andhra Pradesh

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.

518 SUPREME . COURT . REPORTS [2008] 16 $.C.Ft.

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A:.1 .• A-:2. and A-8 were. fou)1g g1,1ilty. of .offences. punish~ble under Se.ctiori', 302 r.ead · .. wJtb ' .s~ction 1 3A .1 f?.c .and .Section 307". r~qj ~it~. Se.9fio~n· ~ i.~-9 ti:-,? ... A~ ranq A'." 1·2. V'1~re foynd g~\lty of offence punishable under Section 307 read with Section.34,. IPC. A-9 was acquitted by the High Court by the impugnecf s jt,J<tgmer:it.:A-3 9ied d_uring the. course of, appeal. A-4,·A-6, ·A-7,

A~40:aQd. A-1$ :to A-:19 were found·to.be not guilty'ofthe· charged offer:ices.and they were acquitted .. by the trial"Cou11 . • • 'I.

¶2Factual scenario giving rise to the present appeals is as folloyvs:

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There are political grudges and ill feelings between the . groups led by A5 and Chandra Tirupathaiah in R.R. Palem village. Al, A3, A4 anq A6 toA19 are the followers of AS. 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 · Punr:iamma contested in the. Panchayat elections and was elected· ,· ~ as ~ ~.. Sarpanch • of the ' . • :t village. . t Since • . . then the group of the ace.used was. waiting for an op port-unity to prove· their supremacy in the village. While so, o'n 14.1.1998 at about 7.00. AM., A.6 and Kilari Manoz and Chintagumpala Vamsee went to the·Pathuri lahds:ofKilari Venkata Subbamm·a and others to :graze their cattle. After some time at about 7.30 A.M., Chintagumpala Sunil, Chandra Murali and Chintag'Urhpala · Manohar also went to the Pathuri lands of Kilari V~nkata Subbamma and others for a·nswe,ring 'the calls of nature· and . they m.et 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 dr_aw ~y call.ing 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 quarrelwlfhhim, and there was a scuffle between them. Kilari · Ma-iloz wen't to the village and informed about the quarrel betW.een A6 and Chandra Murali to the elders and A.21 in spite of.the' request madErby Ctiintagun'lpala Manohar not to do so. , .

On the same day, at about 12,00 noon, A2 wentto the house of Chintagumpala Manohar and kicked him on his stomach ·tor 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 A 19 armed with .deadly weapons beat the deceased and also injured P.Ws.1to3. 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. AS beat P .W.2 with .a stick on his head and hands. A-1 beat P.W.3 Viith an axe on his head and A-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 14 7, 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 d.ead 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 dece'3sed ~ould appeado have died of sJ~ock ; due to injury. No:2. On. completi.on of' investigation police,laid the charge sheet for ·the above· oftences.· Accus.ed persons pleaded innocence. · ·

' · In orderJo.establish the aceusations prosecution examined. 14.witnes'ses. Out of them.PWs 1 tq 3. were stated to be inju.red ey~ w!tnesses. PW-4 was stated, .to be another eye witne:ts.

Stand .of the accused have before the trial Court was that the best witness would been the father of the deceased who was not' ex~mine~ for reasons known to the· prosecution. There was inordinate del~y ~'iii · fiHng tlie first infbr.matio.n report and PWs · 1 ·to 3 are interested wit'nesses." It was ·aiso submitted that in the ExtP-1 reportdetaifs have not been given. The trial Court did' riot· find any ·substa.nce ·i'r1 the pf ea and· as noted above convicted some of the 'accusecfpe'rs6ns: . . ' .

E· · In appeal except A..:9 ·the appeal filed by rest of the

accused 'persons was· dismissed:

. · .. 3: According t-0 learned· coµnset . for the ~ppellants the details of the ove11 act. were. not given-in .the FIR. Therefore, there were· co.nsid_erable improvements in the evidence .of the witness~s ~· It is submitted that the FIR was lodged after a long time. It ·is also sub111itted that Section 34 IPC has no application to the facts of the presenfca~e. ·

. 4. learned counsel .for the respondent-State on the other hand supp~rted the ju'dgh~ent ~

¶5'It is to be seen that though father of the deceased was not examined, three·<>f the'injured witnesses wh'o had sustained injuries ·during the occurrence were examined. Though they we·re· . subjected to incisive' cross examination, hothing material ' , . ... . was elicited to discard their evidence .

¶6Great 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 .8 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.

¶7Section 34 has been enacted on the principle of joir:it 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 c.riminal 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, -4 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 individua.lly 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 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.

¶8The 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 m~mber's of a party who act in furtherance of the common intention of all_ 111 or to prove exactly what part was taken-by each-of them. As was observed in Ch. Pu/la 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-himself. For applying Section 34 it is not necessary to show some ov,ert act on the part of the accused. -

¶9The prosecution version is sufficient to fasten the guilt on the accused appellants. The appeal is without merit, deserves dismissal which we direct.

-B.B.B. Appeal dismissed.

CRIMINAL APPELLANT JURISDICTION : Criminal Appeal No. 376 of 2007..

From the final Judgment and Order dated 21.9.2006 of the High Court of Judicature Andhra Pradesh at Hyderabad in Crl. Appeal Nos. 1231 and 1452 of 2004.

K. Sarada Devi for the Appellants.

Altaf Fatima and D. Bharathi Reddy for the Respondent. The Judgment of the Court w~s ~_elivered by DR. ARIJIT PA~A YAT, J. 1. Challenge in this ·appeal is to the judgment of a Division Bench of the Andhra Pradesh -t High Court upholding the conviction of the appellants for