KILARI MALAKONDIAAH @ MALAYADRI & ORS. v. STATE OF ANDHRA PRADESH

Citation: [2008] 16 S.C.R. 514

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, MUKUNDAKAM SHARMA

Case summary

KILARI MALAKONDIAAH @ MALAYADRI & ORS. v. STATE OF ANDHRA PRADESH.pdf

Judgment text

[2008] 16 S. C. R. 514 KILARI MALAKONDIAAH@ MALAYADRI & ORS. v. · " STATE OF ANDHRA PRADESH · · [Crimin-al Appeal· No: 376 of 2007] . 1 .. \ '• •• : t, ,• , . ,; · NOVEM13ER 21, 2008 [OR. ARIJIT PASAYAT AND DR. MUKUNDAKAM -( . . SHARMA,JJJ .. Penal Code, 1860: s. 302 rlw s. 34 and s. 307 rlw s. 34 -Assault by accused · with· deadly weapons, resulting in death of victim - Common intention - Conviction by Courts below - Propriety of - On facts, held: Proper - Prosecution version sufficient to fasten guilt on the accused. s. 34 - Applicability of - Discussed. Evidence - Witness - Related witness - Testimony of- Evidentiary value - Held: Relationship is not the factor to discard the prosecution version and render it suspect - At the most, the Court is required to analyze the evidence in some detai{ to rule out the possibility of felse implication. According to the prosecution, owing to political rivalry, the accused-appellants assaulted the deceased with deadly weapons which proved fatal.

PWs 1 to 3 were allegedly injured in the occurrence. The appellants were convicted by the Courts below under s. 302 r/w 34 and/ or s. 307 r/w 34 IPC. In the instant appeal, the conviction of the appellants was challenged on various grounds viz. that the father +of the deceased was not examined by the prosecution; that PWs 1, 2 and 3 were interested witnesses; and that there was inordinate delay in filing of the FIR. It was also contended that s. 34 IPC had no application to the facts . of the case; and· that details of the· overt act were not g! v~n in the Fl~. ·. · ·· · ·· 'Oisinissin·g the appeal, the Court .. . . . ,.. HELD:1. The prosecution version is sufficient to , fasten the guilt on the·accused appellants. [Para 9] [522- · j ~ ' 2. Though father of the deceased was not examined, three of the injured witnesses who had sustained injuries during the occurrence were examined. Though they were .

subjected to incisive cross examination, nothing material was elicited to disc~rd their evidence. [Para 5] [520-G-H; 521-A] J • ID 3.. Great 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 analy. se the evidence in some detail to rule out the possibility of false implication. In the instant case, the trial Court ~as ~one. t~at. [Para 6]. [521-A-B] - 4. Though it was urged that there was delay in l_odging the FIR, the tri~I Court and the High Court found that in fact ther~ was no delay and the FIR was lodged · promptly. [~ara 6] [521-C] 5. 1. S. 34 IPC has been enacted on the principle of joint 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 s. 34 if. ·such criminal act is done in )- furtherance of a common intention of tile· persons wh~ join in comm"itting ·the crime.. Direct proof of ~ommon intention ·is seldom •available and, therefore, . such r , intention can only be inferred from the. circumstances appearing from the proved facts of the case and the proved circumstances. ·fn order to bring. home the charge of common intention, the prosecution has to establish by evidence, whether direct or ci. rcumstantial, that there was plan' or meeting of mind of alf the accused persons to commit the offence for which they are charged with· the aid of s. 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 individually by himself. [Para 7] [521-C-G] 0 s:2:·1he 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 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 commpn intention in order to attra~t the provision. [Para 7] [521-G-ti; 522-A] 5. 3. S. 34 IPC does not say "the common intention of F, all"; nor does it say·"and intention common to all". Under the provisions of s. 34 the essence of the liability is to be found in the ex. istence of a common intention animating the accu~ed leading to the commission of a criminal act in furtherance of such intention.

As a result of the' application of pr,inciples· enunciated in s. 34, when an accused is convicted under s. 302 read with s. 34; in law it means that the accused is liable for the act which . caused. d~ath of the deceased in the same 'mariner as. if it was done by him alone: . The provision ·is intended to meef a' case' in which it may be difficult to~ distinguish betw~en acts of individual members ~f a party who act in furtherance of the common inteMlion ot all or to prove exactly what part was taken by each ·Of them~ [P. ara 8) (522-B-D]. 5. 4. s. 34 is appficabie even it no injury ha~·_beeh ca~sed by the particular accused himself. For applying s. 34 it is not necessary to show some overt act on the part of the accused. [Para 8] [522-E] Ashok Kumar v. State of Punjab AIR 1977 SC 109 and Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR 1993 SC 1899, reJied on. Case Law Reference: . AIR 1977 SC 109 relied on Para 7 AIR 1993 SC 1899 relied on Para 8· ..

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~AYAT, 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 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. . . ' 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 3A . 1 f?. c. and . Section 307". r~qj~it~. Se. 9fio~n· ~ i. ~-9.. 'ti:-,?... A~1ranq A'. "1·2.

V'1~re foynd g~\lty ofoffence punishable under Section 307 read with Section. 34,. IPC. A-9 was acquitted by the High Court by the impugnecf s jt,J 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 . ' , . ... . OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J. ] .... f ... was elicited to discard their evidence. 6. Great 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. 7.

Section 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. 8. The Section does not say "the common intention of all", 8 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 111 of a party who act in furtherance of the common intention of all_ .

, or to prove exactly what part was taken-by each-of them. As was observed in Ch. Pu/la Reddy and Ors. v. State ofAndhra 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. - 9. The 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.