Kilari Malakondiaah @
Malayadri & Ors. Vs. State of A.P  INSC 1995 (21 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 376 OF 2007 Kilari
Malakondiaah @ Malayadri & Ors. ...Appellants Versus State of Andhra
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Andhra Pradesh
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 found guilty of offences punishable under Section 302 read with
Section 34 IPC and Section 307 read with Section 34 IPC. A-5, A-11 and A-12
were found guilty of offence punishable under Section 307 read with Section 34
IPC. A-9 was acquitted by the High Court by the impugned judgment. A-3 died
during the course of appeal. A-4, A-6, A-7, A-10 and A-13 to A-19 were found to
be not guilty of the charged offences and they were acquitted by the trial
scenario giving rise to the present appeals is as follows:
There are political
grudges and ill feelings between the groups led by A5 and Chandra Tirupathaiah
in R.R. Palem village. Al, A3, A4 and A6 to A19 are the followers of A5. P.Ws.
1. to 3 belong to the group of Chandra Tirupathaiah. The wife of A5 and the
mother of Chandra Tirupathaiah i.e.
contested in the Panchayat elections and was elected as Sarpanch of the
village. Since then the group of the accused was waiting for an opportunity to
prove their supremacy in the village. While so, on 14.1.1998 at about 7.00 A.M.,
A.6 and Kilari Manoz and Chintagumpala Vamsee went to the Pathuri lands of
Kilari Venkata Subbamma and others to graze their cattle. After some time at
about 7.30 A.M., Chintagumpala Sunil, Chandra Murali and Chintagumpala Manohar
also went to the Pathuri lands of Kilari Venkata Subbamma and others for
answering the calls of nature and they met 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 draw by calling 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 quarrel with him, and there was
a scuffle between them.
Kilari Manoz went to
the village and informed about the quarrel between A6 and Chandra Murali to the
elders and A.2, in spite of the request made by Chintagumpala Manohar not to do
so. On the same day, at about 12.00 noon, A2 went to the house of Chintagumpala
Manohar and kicked him on his stomach for 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 A19 armed with deadly weapons beat the deceased and also
injured P.Ws.1 to 3. 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. A5 beat P.W.2 with a stick on his head and hands.
A-1 beat P.W.3 with 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 147, 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.
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 dead
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 deceased would appear to have died of shock due to injury No.2. On
completion of investigation police laid the charge sheet for the above
offences. Accused persons pleaded innocence.
In order to establish
the accusations prosecution examined 14 witnesses. Out of them PWs 1 to 3 were
stated to be injured eye witnesses.
PW-4 was stated to be
another eye witness.
Stand of the accused
before the trial Court was that the best witness would have been the father of
the deceased who was not examined for reasons known to the prosecution. There
was inordinate delay in filing the first information report and PWs 1 to 3 are
interested witnesses. It was also submitted that in the Ext.P-1 report details
have not been given. The trial Court did not find any substance in the plea and
as noted above convicted some of the accused persons.
In appeal except A-9
the appeal filed by rest of the accused persons was dismissed.
to learned counsel for the appellants the details of the overt act were not
given in the FIR. Therefore, there were considerable improvements in the
evidence of the witnesses. It is submitted that the FIR was lodged after a long
time. It is also submitted that Section 34 IPC has no application to the facts
of the present case.
counsel for the respondent-State on the other hand supported the judgment.
is to be seen that 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 discard their evidence.
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
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.
34 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 Section 34 if such criminal 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, 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
individually 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.
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 members 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. Pulla 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 overt act on the part of the accused.
prosecution version is sufficient to fasten the guilt on the accused
appellants. The appeal is without merit, deserves dismissal which we direct.
(Dr. ARIJIT PASAYAT)
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