Arun v. State by Inspector of Police, Tamil Nadu

B. SUDERSHAN REDDY, J. 1. The appellant has preferred this appeal under Section 379 of the Code of Criminal Procedure read with provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 impugning the judgment and order of the Madurai Bench of Madras High Court in Criminal Appeal (MD) No·. 279 of 2005 whereby the High Court rev.~rsed the judgment of acquittal against the appellant, who w~s tried along with seven other co-accused, recorded by the Additional Sessions Judge, (Fast Track No. 2) Trichirapalli in Sessions Case No. 149 of 2004. The High Court accordingly convicted the appellant for the offence punishable under Section 302 read with 34 of the Indian Penal Code (IPC) and sentenced to undergo impris~mment for life.

¶2The prosecution case, in brief, is that Venkatesan -,;. Seshastripuram (the deceased) was living together with his wife Sripriya {PW-1 ), mother P'admaja (PW-2) and other family members at No. 15/1A, Seahadri Road, Srirangam. The deceased was in the business of pharmaceuticals. On 22.10.2003, at about 8.45 p.m. the deceased came back to ~-)(

his house from the work in drenched condition. He took out the cash from his shirt pocket, kept the same on the sofa and went to the computer room and after changing clothes took his meal. After having food the deceased along with his wife (PW-1) and mother (PW-2) were watching television programme. At that time two men came and stood at the entrance of the house. The deceased got up from his chair and moved towards them ~'t asking as to why they have entered the house. Immediately the

person who was standing to the right of P .W. 1 shot the deceased with the gun. The deceased fell down on the floor. Thereafter, the two men ran away. P.W. 1 and P.W. 2 raised hue and cry. P .W.1 went to her senior father-in-law's house and informed Vamsidhar (PW-3) about the incident. P.W. 3 immediately with the help of P.W. 1 took the deceased to Srirangam Dhanvandhri Hospital. Doctor Murali (PW-17) gave first aid treatment to the deceased and having regard to the grievous nature of injuries advised to take the victim to the Kavery Medical Centre for further treatment. The victim was accordingly taken to the Kavery Medical Centre. PW 3 informed the incident to the Srirangam Police Station over phone. Sub-inspector Bharth Srinivasan (PW-25) attached to Srirangam Police Station based on the complaint of Sripriya (PW-1) issued first information report and registered a case in crime No. 724 of 2003 under Sections 452, 307 IPC and Section 3 read with 25 of the Indian Arms Act.

').- 3. After completion of the investigation, the police filed

charge sheet under Sections 120-B, 398, 449, 302/34 IPC and section 3 read with 25 (1-B) (a) of the Indian Arms Act against the appellant and seven other co-accused. The prosecution in all examined 26 witnesses (PW-1 to PW-26) and got marked ....., 36 documents in evidence. The prosecution also produced

-ii-material objects which were marked as M.O. 1 to 26. The _, statement of the accused appellant under Section 1. 313 Cr.P.C.

was recorded in which he abjured the guilt and claimed trial.

¶4It may also be noted that according to the prosecution, '

there was a conspiracy amongst A-1 to A-8 and pursuant to )L _, the same the appellant (A-5) and A-4 attempted to commit rob~ery and in furtherance of their common intention A-4 shot the deceased. '

¶5The learned Sessions Judge upon appreciation of evidence available on record found A-4 guilty of the offence punishable under Section 302 IPC and the High Court confirmed the same in appeal. He did not prefer any further r~ appeal before this Court. So .far as the appellant is concerned, the Sessions Judge found him guilty of the offences punishable under Section 398 and 457(1) 11PC and found him not guilty of .... the charge under Section 120:-B. 449, 302 read with 34 IPC as well as under Section 3 read with 25 (1-B) (a) of the Indian Arms Act. Rest of the accused-were acquitted of all the charges. The State as well as the appellant preferred appeals against the verdict of the Ses~ions Judge.

¶6Hence, this appeal by the appellant challenging the ..i.:-·· correctness of the judgment of the High Court convicting him for the offence punishable und~r Section 302 read with 34 IPC.

· 7. Shri S. B. Sanyal, learned senior counsel appearing for the appellant submitted the Hidh Court committed serious error in reversing the well considered judgment of the Sessions Court without properly appreciating the evidence available on record. There is no specific allegation as such made against the appellant or any evidence to establish that any criminal act -< was done by him in furtherance of common intention. There being total absence of evidenee the conviction of the appellant with the aid of Section 34 is unsustainabie. The learned senior counsel further submitted that 1 there is no evidence of any pre-meditation between appellant and A-4 and therefore, the appellant cannot be convicted under Section 302 with the aid ~"'"- /!+- of Section 34 IPC. It was submitted that the High Court committed a serious error in ~oming to the conclusion that the murder was the intention of both the appellant as well as A-4 to enter into the premises of the deceased. The submission was .._>( that this view taken by the High Court is totally contrary to the

case set up by the prosecution. The learned counsel further submitted that the High Court all together made out a different case contrary to the prosecution story of robbery to enter into the house. The High Court without any evidence found that the appellant along with A-4 trespassed into the house of the deceased with an intention to kill the deceased.

¶8The learned counsel for the State supported the judgment of the High court.

_.., 9. We have considered the submissions made during the

course of hearing of the appeal and perused the evidence available on record.

¶10Before we proceed to deal with the submissions it may be necessary to recapitulate the findings of the High Court that appellant did not enter the house of the deceased to commit -,._

robbery and accordingly reversed the findings of the trial court. The State did not prefer any further appeal so far as that finding recorded by the High Court is concerned.

¶11The High Court held that even though pre-meditation between the appellant and A-4 has not been proved but the very fact, the appellant entered the premises along with A-4 armed with pistol itself establishes that he entered the premises in furtherance of common intention to murder the deceased .

. 12. In the circumstances, two questions arise for our consideration, namely: whether the appellant entered the premises armed along with A-4, who kllled the deceased? Secondly, even if he entered the premises armed, will that by itself establish common intention to commit murder?

¶13There are two eye witnesses to the occurrence. P.W. 1 is none other than the wife of the deceased. She stated in hepevidence that she along with her husband and mother-in-law after finishing her evening meal was watching Television in the house. At that time A-4 and A-5 (later identified) havjng entered the house stood at the entrance. The deceased on seeing both of them moved towards them asking them as to what they wanted and immediately A-4 shot her husband with a pistol in his hand. The bullet injured on the left side rib area. Thereafter both the appellant an'd A-4 fled away from the scene of occurrence·. This is what she stated even in the first information report. r-

¶14PW-2 while narrating the incident more or less gave the same version but however, stated that both the appellant as well as A-4 were carrying pistols. But in the cross-examination she expressed h$r ignorance to whether both of themwere carrying lethal weapons.

¶15PW-26, the Investigating Officer in his evidence admitted that PW-2 did not make any statement-during inquiry that both the persons who had .'entered her house were carrying guns. In the circumstances i~ becomes highly doubtful as to whether the appellant herein was also carrying. a pistol and entered into the house of the'deceased.

¶16The trial court upon appreciation of the evidence found that the appellant did not trespass into the house of the deceased along with A-4 with intention to kill and accordingly acquitted the appellant of the charge under Section 302 read with 34 IPC. The High Court.' reversing the findings of the trial court found the appellant guilty of the charge on the basis that the appellant along with A-4 trespassed into the house of the deceased in furtherance of ~heir common intention to kill the deceased. That is not the case of the prosecution.

¶17The case of the prosecution was that the appella_nt along with A-4 with an intention to commit the dacoity had trespassed into the house qf the deceased, the deceased had resisted them and out of fear of being over powered A-4 shot the deceased with pistol due to which the deceased sustained grievous injuries leading to his ultimate death. There is no allegati.on against the appellant that he along with A-4 ___. trespassed into the house of the deceased in furtherance of

their common intention to commit murder of the deceased. The common intention according to prosecution was to commit dacoity which is held not proved.

¶18It is true that appellate court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded and its power to review and re-r~ appreciate the evidence and come to its own conclusion is not

controlled by any provisions of the Code of Criminal Procedure, 1973. This Court in more than one case cautioned that an appellate court, however, must always bear in mind that in case of acquittal, there is double presumption in favour of the / accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. [ See: Chandrappa Vs. State of Karnataka (2007) 4 SCC 415].

¶19In the present case the High Court in our considered _,,. opinion ought not to have disturbed the order of acquittal

'....- recorded by the trial court exonerating the appellant of the

charge under Section 302 read with 34 IPC. There is no evidence available on record that appellant along with A-4 entered into the house of the deceased armed with pistol. The evidence of PW-2 that the appellant was also armed with pistol is highly doubtful for she admitted in the cross-examination "'!' stating that she was not sure as to whether both the accused

were carrying weapon. The first information report and evidence -I of PW-1 and Investigating Officer, PW-26 do not support the half-hearted and vague statement 'of P.W-2. It would be unsafe to rely upon the evidence of PW-2. ..,..._

¶20Second question that arises for our consideration that even if the appellant entered the :premises armed, will that by itself establish common intention' to commit murder? Is there any evidence available .on record that a common intention developed at the spur of moment to commit the offence of murder?.

1"~ 21. In the present case, the appellant alone was charged for the offence punishable under .Section 302 read with 34 IPC and whereas A-4 has been charged for the offence punishable under Section 302 ·IPC. Section, 34 IPC which is nothing but rule pf evidence provides that when 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 burden lies on prosecution to prove that actual participation of more than one person for x--- commission of criminal act was done in furtherance of common intention of, all at a prior concert. However, it is not required for the prosecution to establish that there was a prior conspiracy or pre-meditation, common intention can be found in the course of occurrence. In the present ca~e. the question is whether the appellant shared any common i,ntention and if so, with whom? Neither there is any charge nor evidence against A-5 that he committed the murder of the. deceased in furtherance of common intention shared with ;A-4. The trial court as well as ...._., the appellate court found A-4 guilty for the offence punishable --"'( under Section 302 IPC only. There is no third person involved with whom the appellant could have shared common intention. PW-1 and 2 in their evidence did not attribute any overt or covert act as against the appellant. No circumstances were brought on record from which it could be reasonably inferred that the appellant shared common intention with A-4 and in turn, A-4 committed the murder of the deceased in furtherance of such common intention. There is no 1 evidence that there was a prior meeting of mind developed at the spur of moment and A-4 shot .,,, the deceased in furtherance of such common intention resul~ing .... in death .

¶22According to the evidence of PW-1 the appellant did not indulge in any overt or covert act except be present at the scene of occurrence. It is true that both of them ran away from 9, the scene of occurrence after A-4 shot the deceased with a pistol in his hand. Even if it be accepted that he was armed ;.,- with a pistol no reasonable could be drawn on the infere~ce proven facts that he shared corT1mon intention with A-4 to commit the offence of murder.

I 23. It is well established that commission of a criminal act by several persons in furtherance bf the common intention of all pre-supposes a prior meeting of find. The classic statement of law is to be found in Pandurang, Tukia and Bhillia v. The State of Hyderabad [(1955) SCR 1083] in which Bose J. ._ speaking for the Court observed: :

!

"It requires a pre-arranged plan because before a man can be vicariously convicted for the: criminal act of another, the act must have been done in fµrtherance of the common intention of them a: Mahbub Shah v. King-Emperor [(1945) LR. 72 I.A. 148, 153, 154]. Accordingly there must have been a prior meeting of ri'linds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can )r• individually inflict a separate fatal blow and yet none would

have the common intention : required by the section because there was no prior m1eeting of minds to form a pre-arranged plan. In a case 1 like that, each would be individually liable for whatever injury he caused but none G' could be vicariously convicted 1 for the act of any of the others; and if the prosecution 1 cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly ari intention to kill could be proved in his case: Barendra Kumar Ghosh v. King

Emperor[(1924) L.R.52 I.A. 40, 49)-and Mahbub Shah v. King-Emperor. As their LordsHips say in the latter case, " the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice." · The-plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example, when one man calls on by-standers to help him kill a given individual and1 they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however· hastily formed and rudely ~onceived. 1 But pre-arrangement there must be and premediatated c,oncert. It is not enough, as in the l~tter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to ~ill those w~o oppose". 24. In the present case, ther~ is no evidence of any prior meeting of minds. We know nothing of what they said or did before the attack. It is in the evidence that on,being asked by the deceased as to why they entered the house and as to what they wanted; A-4 immediately shot't.he deceased with the pistol in his hand. Obviously, this was an jmpulsive act of A-4 and both the courts rightly found that he was guilty for the offence of committing murder of the deceased punishable under Section 302 IPC but the High Court commi~ed a serious error in holding the appellant vicari~usly liable for 1 the criminal act of A-4.

It is nowhere suggested that appellant indulged in any overt or covert act as such based on which any inference of common intention could be drawn.

¶25Section 34 is only a rule of evidence and does not create a substantive offence. In Barendra f<11mar Ghosh v. King Emperor, AIR 1925 PC 1, the Privy Council has pointed out: "Section 34 deals with doin~ of separate acts, similar or "->I' diverse by several persons, 1if all are done in furtherance of a common intention, each:,, person is liable for the result of them all, as if he had don~ them himself."

:

¶26In Hardev Singh and another v. The State of Punjab [(1975)3 sec 731)] this • Court observed I that "the common -intention must be to commit the p'articular crime, although the .... ,.- actual crime may be committe~ by any one sharing the

common intention. Then only others can be held guilty." In this case murderous assault on deceased by A-4 was his individual act. There is no evidence suggestive of any common intention to commit the murder. Circumstances are completely lacking compelling us to draw any inference that A-4 and A-5 together shared common intention to commit the murder and in furtherance of such common intention A-4 shot dead the deceased.

'- ~. 27. In Dharam Pal and Ors. v. State of Haryana [(AIR

1978 SC 1492)) this Court laid down the test when Section 34 IPC is applicable and held:

"It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act 'y-- of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal ..._,., +- culprit and his companions who are sought to be constrictively made liable in respect of every act committed by the former. There is no law to our knowledge which lays

down that a person accompanying the principal culprit shares his intention in respect o( every act which the latter !< .... might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. Th'e intention of the principal offender and his companions to, deal with any person who might intervene to stop the qua~rel must be apparent from the conduct. of the persons accompanying the principal ,. culprit or some other clear and 'cogent incriminating piece .... of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.

(emphasis supplied) 28. In Brijlala Pd. Sinha v. State ofBihar [(1998)5 SCC 699] this Court in clear and categorical terms laid down· that "unless a common intention is established as a matter of necessary inference from the proved circumstances, the accused persons will be liable for their individual act and not .le_. for the act done by any other p~rson. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doµbt, that a meeting of minds and a fusion of ideas had taken place amongst the different aecused and in prosecution of it, the overt acts of the accused persons flowed out as if in .obedience of the command of a single mind. If on the evidence, ~here is doubt as to the .,__ involvement of a particular accused in the common intention, ..,., the benefit of doubt should be , given to the said accused person."

¶29There is no dispute with the proposition that the common intention can develop and manifest itself at the spur of moment. But the question for consideration is, whether there -+ 'f"' is any evidence in the present case to indicate that in fact such a common intention was developed between appellant and A-4 and in furtherance of such shared common intention A-4

NADU [8. SUDERSHAN REDDY, J.]

committed the murder of the deceased. The evidence of PW-1 and PW-2 does not suggest that any such common intention ,..._~,

developed on the spur of moment leading to the murder of r .deceased by A-4. In the circumstances, it would be unsafe to

convict the appellant for the offence punishable under Section 302 with the aid of Section 34 IPC.

¶30In Suresh and anotherv. State of U.P. [(2001) 3 sec 673) this Court after referring to number of its earlier judgments r'f and the judgments of the Privy Council observed that " it is

difficult to conclude that a person, merely because he was present at or near the scene without doing anything more, without even carrying a weapon and without even marching alongwith the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused." In the present case; the FIR shows that at about 9.15P.M. the appellant and A-4 entered the house and stood there; on seeing them, the deceased got up from his chair and moved towards them "asking them who are they" whereupon A-4 shot the deceased causing bleeding injury due to which deceased fell down, the appellant and A-4 ran away towards the street. The contents of the FIR and the evidence of PW-1 and PW-2 read together make it clear that the appellant was not armed as erroneously held by the High Court. In the circumstances, it would be impossible to draw any inference that A-4 committed murder in furtherance ofcommon intention shared by the appellant. In fact, neither there is any charge nor any evidence even as against A-4 that he shared common -,.....

intention along with the appellant to commit murder of the deceased. There must be more than one person to share common intention to commit criminal act for attracting the applicability of Section 34 IPC. It is clear from the evidence that A-4 did not act conjointly with the appellant in committing the murder. If he did not act conjointly with the appellant, the appellant could not have acted conjointly with A-4.

-r-31. On considera_tion of the evidence and the material available on record and in the light of the legal principles referred to hereinabove, it is clear that the accusations made Y-"' against the appellant making him constructively liable for the criminal act of murder committed byA-4 with the aid of Section 4; 34 IPC were not established. So far as the pres~nt appellant is concerned, there is no evidence whatsoever available on record to show shafihg of any common intention.

¶32We accordingly affirm the judgment of the trial court acquitting the appellant of the offence punishable under Section Y-... 302 read with Section 34 IPC. Consequently, the judgment of the High Court convicting the appellanl under section 302 read with Section 34 IPC is set aside. We however, affirm the conviction of the appellant under Section 457 (1) IPC. The trial court as well as the High Court convicted the appellant for the offence punishable under Section 1457 (1) IPC and sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 500/-, in default, to further undergo rigorous imprisonment for a period of 6 months. No effort has been made before us challenging the conviction of the appellant under Section 457 (1) IPC. We, accordingly, confirm the conviction and sentence of the appellant under Section 457 (1) IPC imposed by the courts below. The appellant however, had already undergone the sentence. Since there is no appeal preferred by the State as against the judgment of the High Court acquitting the appellant of other charges the same is not interfered with.

¶33The appeal is accordingly partly allowed. The appellant ...,.., be set at liberty forthwith unless required to be in custody in connection with any other case ..

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1657 of 2007.

From the Judgment dated 14~8.2007 of the High Court of Madras, Bench at Madurai in Crl. Appeal No. 279 of 2005.

S.B. Sanyal, S. Mahendran for the Appellant.

s: Thananjayan for the Respondent.

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