Ramaswami Ayyangar & Ors Vs. State
of Tamil Nadu  INSC 77 (24 March 1976)
SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 2027 1976 SCR 580 1976 SCC
Indian Penal Code, S. 34, essence
of-Application of S. 34, whether physical presence and actual participation
necessary in offences involving physical violence.
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 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.
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
Debaratea Mookerjee, M. S. K. Sastri and M.
S. Narasimhan for the Appellants.
A. V. Rangam and Miss A. Subhashni, for the
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
Accused No. 1 (A-1)-Ramaswami Ayyangar.
Accused No. 2 (A-2)-Vattappan.
Accused No. 3 (A-3)-Kaipillai alias
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
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
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 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
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 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
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
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 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
"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
The contention is fallacious and cannot be
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 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.