Arun Vs. State by
Inspector of Police, Tamil Nadu [2008] INSC 2128 (11 December 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 1657 OF 2007 Arun ......Appellant Versus State
by Inspector of Police, Tamil Nadu. ......Respondent
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 reversed the judgment of acquittal against the appellant, who was
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 imprisonment for life.
2.
The
prosecution case, in brief, is that Venkatesan Seshastripuram (the deceased)
was living together with his wife Sripriya (PW-1), mother Padmaja (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 televisionprogramme.
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 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 andregistered 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 material objects which were marked as
M.O. 1 to 26. The statement of the accused appellant under Section 313 Cr.P.C.
was recorded in which he abjured the guilt and claimed trial.
4.
It
may also be noted that according to the prosecution, there was a conspiracy
amongst A-1 to A-8 and pursuant to the same the appellant (A-5) and A-4
attempted to commit robbery and in furtherance of their common intention A-4
shot the deceased.
5.
The
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 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) IPC 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 Sessions Judge.
6.
Hence,
this appeal by the appellant challenging the correctness of the judgment of the
High Court convicting him for the offence punishable under Section 302 read
with 34 IPC.
7.
Shri
S. B. Sanyal, learned senior counsel appearing for the appellant submitted the
High 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 evidence the conviction of
the appellant with the aid of Section 34 is unsustainable. The learned senior
counsel further submitted that 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 coming 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 furthersubmitted 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.
8.
The
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.
10.
Before
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.
11.
The
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 killed the
deceased? Secondly, even if he entered the premises armed, will that by itself
establish common intention to commit murder?
13.
There
are two eye witnesses to the occurrence. P.W. 1 is none other than the wife of
the deceased. She stated in her evidence 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) having entered the house
stood at the entrance.
The deceased on
seeing both of them moved towards themasking 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 and A-4 fled away from
the scene of occurrence.
This is what she
stated even in the first information report.
14.
PW-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 her ignorance to whether both of them were
carrying lethal weapons.
15.
PW-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 it becomes highly doubtful as to whether
the appellant herein was also carrying a pistol and entered into the house of
the deceased.
16.
The
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 their common
intention to kill the deceased. That is not the case of the prosecution.
17.
The
case of the prosecution was that the appellant along with A-4 with an intention
to commit the dacoity had trespassed into the house of 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
allegation against the appellant that he alongwith 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.
18.
It
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-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 innocenceis 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 State of Karnataka (2007) 4 SCC 415].
19.
In
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 of PW-1 and Investigating Officer, PW-26 do not support the
half-hearted and vaguestatement of P.W-2. It would be unsafe to rely upon the
evidence of PW-2.
20.
Second
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?
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 of 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 commission of criminal act wasdone 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 case, the
question is whether the appellant shared any common intention and if so, with
whom? Neither there is any charge nor evidence against A- 4 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
evidence that therewas a prior meeting of mind developed at the spur of moment
and A-4 shot the deceased in furtherance of such common intention resulting in
death.
22.
According
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 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 inference could be drawn on the proven facts that he shared common
intention with A-4 to commit the offence of murder.
23.
It
is well established that commission of a criminal act by several persons in
furtherance of the common intention of all pre-supposes a prior meeting of
mind. 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 furtherance of the
common intention of them a: Mahbub Shah v. King-Emperor [(1945) L.R. 72 I.A.
148, 153, 154]. Accordingly there must have been a prior meeting of minds.
Several persons can
simultaneously attack a man and each can have the same intention, namely the
intention to kill, and each can individually inflict a separate fatal blow and
yet none would have the common intention required by the section because there
was no prior meeting of minds to form a pre-arranged plan. In a case like that,
each would be individually liable for whatever injury he caused but none could
be vicariously convicted for the act of any of the others; and if the
prosecution cannot prove that his separate blow was a fatal one he cannot be
convicted of the murder however clearly an 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 and 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 conceived.
But pre-arrangement
there must be and premediatated concert. It is not enough, as in the latter
Privy Council case, to have the same intention independently of each other,
e.g., the intention to rescue another and, if necessary, to kill those who
oppose".
24.
In
the present case, there 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 the deceased with the pistol in his hand.
Obviously, this was an impulsive 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 committed a serious error
in holding the appellant vicariously liable for 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.
25.
Section
34 is only a rule of evidence and does not create a substantive offence. In
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1, the Privy Council has
pointed out:
"Section 34
deals with doing of separate acts, similar or diverse by several persons, if
all are done in furtherance of a common intention, each person is liable for
the result of them all, as if he had done them himself."
26.
In
Hardev Singh and another v The State of Punjab [(1975)3 SCC 731)] this Court
observed that "the common intention must be to commit the particular
crime, although the actual crime may be committed 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 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 of 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. The intention of the principal offender
and his companions to deal with any person who might intervene to stop the
quarrel 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 of Bihar [(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 for the act done by any
other person.
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 doubt,
that a meeting of minds and a fusion of ideas had taken place amongst the
different accused 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, there 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."
29.
There
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 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 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 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.
30.
In
Suresh and another v. State of U.P. [(2001)3 SCC 673] this Court after
referring to number of its earlier judgments 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"
Where upon 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 of
common 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. Theremust
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.
31.
On
consideration 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 against the appellant making him constructively liable for the
criminal act of murder committed by A-4 with the aid of Section 34 IPC were not
established. So far as the present appellant is concerned, there is no evidence
whatsoever available on record to show sharing of any common intention.
32.
We
accordingly affirm the judgment of the trial court acquitting the appellant of
the offence punishable under Section 302 read with Section 34 IPC.
Consequently, the judgment of the High Court convicting the appellant 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 457 (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.
33.
The
appeal is accordingly partly allowed. The appellant be set at liberty forthwith
unless required to be in custody in connection with any other case.
...................................................J.
(Lokeshwar Singh Panta)
...................................................J.
(B. Sudershan Reddy)
New
Delhi;
December
11,2008.
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