Venkaiah Vs. State of A.P.  INSC 478 (3 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1279
OF 2004 Y. Venkaiah ..Appellant(s) - Versus - State of A.P. ..Respondent(s)
Criminal Appeal Nos. 1280/2004, 1281/2004, 1282/2004 and 1283/2004
All these five criminal appeals are heard together and out of
which Criminal Appeal Nos. 1280/2004, 1282/2004 and 1283/2004 are directed
against the judgment and order dated 31.10.2003 in Criminal Appeal Nos.
1795/1997, 1757/1999 and 1826/1999 passed by the Andhra Pradesh High Court
whereby the Hon'ble High Court while 1 affirming the judgment dated 11.10.1999
in C.C. No. 6 of 1999 passed by the Addl. Special Judge of SPE & ACB Cases,
Hyderabad dismissed the appeals.
The appellant- Y. Venkaiah (A-3) in Criminal Appeal No. 1280 was
working as a Junior Assistant in the Office of the Deputy Director, Social
Welfare Department, Nalgonda along with V. Rama Rao (A-1), S.A. Rasheed (A-2)
and P. Kranwar (A-4).
The appellant-S.A. Rasheed (A-2) in Criminal Appeal No. 1282/2004
was working as a Social Welfare Inspector and the appellant-P Kranwar (A-4) in
Criminal Appeal No. 1283/2004 was a Warden Social Welfare Govt. Boys Hostel,
The aforesaid accused Nos. 2, 3 and 4 were prosecuted for an
alleged conspiracy for drawing scholarships on the basis of fictitious
post-matric students of Geeta Vignan Andhra 2 Kalasala, Nalgonda and Government
Junior College for Boys, Nalgonda for an amount of Rs.63,522/- claiming the
same for the second time vide Bill Nos. 504,238 and 326.
Further, it is alleged that A-1,A-2 and A-3 have also drawn
scholarships amount for fictitious post-matric students of S.L.L.S. Junior
College, Alair, Nagarjuna Jr. College, Miryalaguda, Rajaram Memorial Junior
College, Suryapet of Nalgonda District and cheated the Government and
misappropriated an amount of Rs.4,57,050/- vide Bill Nos. 461, 506, 218 and 503
in collusion with A-4.
On 29.3.1990, sanction was accorded for prosecution of A-2, A-3
and A-4 for an offence under Sections 120B, 420, 468, 477A IPC and Section 5(2)
r/w 5(1)(d) of the Prevention of Corruption Act.
On 11.10.1999, the learned Addl. Spl. Judge for the SPE & ACB
Cases, Hyderabad came to the 3 conclusion that A-1 to A-4 are guilty of the
charges and convicted A-1,A-3 and A-4 for their involvement in respect of Bill
Nos. 504,238,326 (amounting to Rs.63,522/-) and also convicted them for
misappropriation of Rs.4,57,050/- vide Bill nos. 461,506,218 and 503.
A-1, A-3 and A-4 were sentenced to undergo rigorous imprisonment
for three years each for each charge and to pay a fine of Rs.2000/- each for
each of the charges.
The trial Court gave A-2 the benefit in respect of other bills
namely Bill Nos. 505,506,503 and 218 as they were prepared when A-2 was on
leave. Insofar as it relates to Bill No. 461,A- 2 was convicted for an offence
under Section 120(b),420,468,477-A r/w 34 IPC and under Section 5(1)(d) r/w
5(2) of the Prevention of Corruption Act, 1947 r/w Section 34 IPC and sentenced
to undergo rigorous imprisonment for 18 months under each charge and also to
pay a fine of Rs.1000/- under each charge. A-2 was 4 sentenced a lesser period
as he was found guilty of double drawal of the amount of one fictitious Bill
No. 461. In respect of other fictitious bills as noted above, he was given the
benefit of doubt as the bills were prepared when he was on medical leave.
The Single Bench of the High Court dismissed the appeals by an
order dated 31.10.2003 and affirmed the judgment, conviction and sentences
recorded by the trial Court.
Insofar as Criminal Appeal Nos. 1279/2004 and 1281/2004 are
concerned, they are directed against the judgment of the High Court dated
31.10.2003 in Criminal Appeal Nos. 1188/1997 and 1125/1997 respectively
affirming the judgment dated 30.9.1997 in C.C. No.5/1991 passed by the Addl.
Special Judge for SPE & ACB Cases, Hyderabad.
The appellants in these appeals Y. Venkaiah (A-4) and S.A. Rasheed
(A-3) were prosecuted 5 for the alleged conspiracy for drawing scholarships on
the basis of fictitious post- matric students of Government Junior College for
Girls, Nalgonda in an amount of Rs.54,600/- claimed vide Bill Nos. 363 and 405
in collusion with Beaula-A-5(Matron).
The Principal Secretary to the Government of Andhra Pradesh vide
order dated 29.3.1990 gave sanction for prosecution of A-1, A-3 to A-5 and vide
order dated 21.9.1990 for prosecution of A-2.
On 30.9.1997, the learned Addl. Special Judge for SPE & ACB
Cases, Hyderabad held that A-1 has not committed any offence and consequently
acquitted him of all the charges. The learned Judge found accused Nos. 2 to 5
guilty of the offences and sentenced them to undergo rigorous imprisonment for
two years and a fine of Rs.500/- on each count.
On 31.10.2003, the High Court while affirming the judgment,
conviction and sentence recorded by the trial Court dismissed the appeals by
observing that the accused had conspired to cheat the Government by claiming
fictitious post-matric scholarship by falsifying the records in abuse of their
official position as public servants and have acted in furtherance of their
common intention to do the acts which amount to criminal misconduct.
In so far as sanction is concerned, its validity was not
questioned before us.
It appears that several witnesses were examined. From the judgment
of the High Court dated 31.10.2003 in Criminal Appeal Nos. 1757, 1795 and 1826
of 1999, it appears that 18 witnesses were examined by the prosecution. The
other judgment of the High Court, also dated 31.10.2003, dealt with Criminal
Appeal Nos. 1125 and 1188 of 1997. From the said 7 judgments it appears that 8
witnesses were examined by the prosecution.
Witnesses were all holding official position and on analysis of
their evidence made by the High Court in the judgments under appeal, it
transpires that the prosecution has been able to prove its case of conspiracy
amongst the accused persons in drawing the money twice over in respect of
students of Geeta Vignana Andhra Kalasala, Nalgonda (GVA Kalasala), Government
Junior College for Boys, Nalgonda (GJ College), students of SYLNS Junior
College, Alair, Nagarjuna Junior College, Miryalguda, Rajaram Memorial Junior
College, Suryapet and Government Junior College for Boys, Nalgonda.
amounts were drawn against various bills, being bill Nos. 405, 461, 505, 506,
503, 218, 238, 231, 326, 240, 219 and 504. It has been proved that in respect
of those bills money has been drawn twice on the basis of fictitious names,
thus, there has been cheating and misappropriation of Government funds.
The witnesses who were examined in connection with Criminal Appeal
Nos. 1757, 1795 and 1826 of 1999 are the PW1, the Accounts Officer in the
Office of the Director, Social Welfare Department during 1986-87. PW2 was the
Accountant in the office of Deputy Director, Social Welfare Department during
July, 1984 and January, 1987. PW3 was the Sub-Treasury Officer in the office of
DTO, Nalgonda during 1986-88. PW4 was the Senior Accounts Officer in the AG's Office
during the relevant point of time. PW5 was the Manager, SBH, Nalgonda during
1986-89. The Principal, GVA Kalasala, Nalgonda was incharge of the college
during 1986-87 was PW6. PW7 was the Junior Lecturer of GJ College, Nalgonda
during 1980-89. PW8 was the Principal of Boys Junior College, Nalgonda who
worked as such in 1987 and retired in 1988. PW9 was the Principal Sy L MS Jr.
College, Alair since 1985. PW10 was the former Principal Nagarjuna Jr. College,
Miryalguda who used to send proposal to Social Welfare 9 Department for
scholarship for Scheduled Castes students. PW11 was the student of B.A. in
Geeta Vignana Andhra kalasala, Nalgonda. PW12 was the First year Intermediate
student in GJ College for Boys, Nalgonda, this witness was declared hostile. PW13
was the witness who pursued Degree course in GVA Kalasala, Nalgonda during
1986-88, he was also declared hostile.
student of GVK College, Nalgonda was examined as PW14. PW15 was another student
who testified to having received only once an amount of Rs.825/- by way of
scholarship. The former Principal of Rajaram Memorial Jr.
Suryapet, was examined as PW16. PW17 was the Deputy Director, Social Welfare
Department, Nalgonda. PW18 was the Investigating Officer who testified to the
issuance of FIR and submitted that after receiving sanction from the Government
submitted the chargesheet in court. All these witnesses excepting two students
(PWs.12 and 13), who were declared hostile, supported the prosecution case. The
learned Judge of the 10 High Court made a detailed discussion of the evidence
of the witnesses before coming to the conclusion that the prosecution case has
been proved. The judgment of the High Court in connection with the criminal
cases referred to above, namely, Criminal Appeal Nos. 1125 and 1188 of 1997
also shows that eight witnesses were examined for the prosecution. Of the
witnesses who were examined, PW1 was a retired Joint Director of Accounts,
Pension Payment Officer, Hyderabad, and at the relevant point of time was
working as Accounts Officer in the office of Director of Social Welfare,
Hyderabad. PW2 was Sub-Treasury Officer, Nakrekal, Nalgonda District and
previously worked as Accountant with the office of Deputy Director, Social
Welfare, Nalgonda. PW3 was retired Principal, Government Junior College for
Girls, Nalgonda, who worked as the Principal of the said college at the
relevant point of time between 1979 and 1988. PW4 worked as Assistant Social
Welfare Officer at Nalgonda at the relevant point of time. PW5 11 was a STO,
Nalgonda, PW6 was the Senior Accounts Officer, AG's Office, Hyderabad. PW7 was
the Manager, SBH, Nalgonda and PW8 was the Inspector of Police, Anti Corruption
Branch, Hyderabad, Range.
In this case, on behalf of the accused, two witnesses were
examined. DW1, who joined as Deputy Director, Social Welfare Department,
Nalgonda on 12.06.1997 and DW2, who worked as Social Welfare Organiser in
Social Welfare Office, Nalgonda from 1984 to 1988.
This court finds that the High Court has very closely analysed the
evidence of the witnesses before coming to a finding that the prosecution has
been able to prove its case.
A specific defense was taken by A-2 in Criminal Appeal No. 1282 of
2004 that he was on medical leave from 26.8.1986 to 14.10.1986, so he could not
have signed the bill. This defense has been categorically dealt with by the
High Court 12 in its judgment by finding that the date of signature of A-2 on
the bill (Ex.P1) was on 25.8.1986, when he was not on leave.
this defense was also considered and rightly rejected.
In a case where Section 34 of the Indian Penal Code is applied, as
in this case, the liability of the accused must be considered through the prism
of that Section if the charge of common intent against the accused stands
proved. Here the charge of common intent among the accused persons has been
clearly made out from the evidence which has been discussed in detail by both
the Trial Court and the High Court.
It is true that Section 34 does not create any substantive offence
and is basically a rule of evidence. But the crucial words in this section are
"in furtherance of the common intention of all" which originally were
not there when the section was enacted in the Code 13 of 1860. Section 34, as
enacted in the Code of 1860, ran as follows:
a criminal act is done by several persons, each of such persons is liable for
that act in the same manner as if the act was done by him alone."
The words "in furtherance of the common intention of
all" came by way of amendment, by Act XXVII of 1870, to widen the scope
and sweep of the section.
The felicitous phrase "in furtherance of the common intention",
was first coined by Chief Justice Barnes Peacock, sitting in the Full Bench of
Calcutta High Court, and while Gorachand Gope and others" on 3rd March
1866 (reported in Bengal Law Reports, Supplemental Volume, 443, at page 456).
The views of the Chief Justice in Gorachand Gope (supra) possibly inspired the
amendment in 1870.
Since then, this section has been judicially interpreted in a
large number of decisions.
Sumner speaking for the Privy Council in Emperor- AIR 1925 PC 1) opined against
a narrow construction of that section and said:
... As soon, however, as the other sections of this part of the Code are looked
at, it becomes plain that the words of S.34 are not to be eviscerated by
reading them in this exceedingly limited sense."
The learned Law Lord came to this conclusion by interpreting
Section 34 in the context of Section 33 of the Code.
The aforesaid formulation by Lord Sumner has been followed by this
Court on many occasions in different cases, some of which are noted hereinbelow.
In Barendra Kumar Ghosh (Supra), the Privy Council did not agree
with the narrow construction given to Section 34 of the Code by Justice Stephen
in Emperor V. Nirmal Kanta Roy, ILR 1914 (Volume 15 41) Cal. 1072, as according
to the Privy-council such a construction may lead to undesirable results.
The Constitution Bench of this Court in Mohan 174, construed the
scope of Section 34 and compared it with Section 149 and pointed out the
essential distinction between the two. Justice Gajendragadkar (as His Lordship
then was) speaking for the Constitution Bench held that like Section 149,
Section 34 also deals with cases of constructive criminal liability in the
sense where 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. According to the Constitution
Bench, the essential constituent of the vicarious criminal liability
contemplated by Section 34 is the existence of common intention.
common intention animates the accused persons and leads to the commission of
the criminal offence charged, each of the persons sharing the 16 common
intention is constructively liable for the criminal act done by one of them.
The Constitution Bench held that in some ways Section 34 and Section 149 are
similar and in some areas they may overlap but nevertheless the common
intention, which is the sine-qua-non of Section 34 is different from the common
object which brings together an unlawful assembly of persons within the meaning
of Section 149 of the Code. U.P. - (2001) 3 SCC 673, a three-Judge Bench of
this Court while considering the scope of Section 34, referred to and relied
upon the ratio in Mohan Singh (supra), and further held that a reference to
Sections 35, 37 and 38 of the Code is of relevance for understanding the
purport of Section 34.
Justice Thomas in Suresh (supra) opined that these four provisions
belong to one cognate group. In Suresh (supra), Justice Thomas held that to
attract Section 34 IPC two conditions must be present; (1) the criminal act
(consisting of a series of acts) should have been done, not by one person, but
by 17 more than one person, (2) doing of every such individual act cumulatively
resulting in the commission of criminal offence should have been in furtherance
of the common intention of all such persons.
In Suresh (supra), Justice Sethi, in a concurring but a different
opinion, held that the dominant feature for attracting Section 34 of the Code
is the element of participation resulting in the ultimate criminal act. The
"act" referred to in the later part of Section 34 means the ultimate
criminal act with which the accused is charged of sharing the common intention.
The accused is, therefore, made responsible for the ultimate criminal act done
by several persons in furtherance of the common intention of all of them. The
section does not envisage separate acts by all the accused persons for becoming
responsible for the ultimate criminal act. According to the learned Judge the
word `act' used in Section 34 denotes a series of acts as a single act and the
learned Judge further 18 made it clear that the culpability under Section 34
cannot be excluded by mere distance from the scene of occurrence.
SCC 268, this Court again had to consider the ingredients of Section 34 and
relied on the principles laid down in Mohan Singh (supra) and Suresh (Supra).
While approving the principles laid down in para 44 in Suresh (supra), the
Court enumerated that for proving the common intention it is necessary either
to have direct proof of prior concert or proof of circumstances which
necessarily leads to an inference on incriminating facts and which must be
incompatible with the innocence of the accused and incapable of explanation or
any other reasonable hypothesis. The Court held that a look at Section 34 makes
it clear that the essence of Section 34 is simultaneous consensus of the mind
of persons participating in the criminal action to bring about a particular
result. Such consensus may develop at the spot or it may be prior to the 19
commission of the crime but in any event such consensus must precede the
commission of the crime.
the test of proof which was laid down in Lallan Rai (supra), following the
principles in Suresh (Supra), is applied to the incriminating facts and
circumstances noted and discussed in this case concurrently by the trial Court
and the High Court, to which reference has been made hereinbefore, the
conclusion is inescapable that those facts are clearly incompatible with the
innocence of the accused and are incapable of any explanation or any other
reasonable hypothesis other than the guilt of the accused persons.
13 SCC 238, Justice Thakker delivering the judgment held that in English law
there is a distinction between the two types of offenders (i) principals in the
first degree, that is, who actually commit the crime; and (ii) principals in
the second degree, that is, who aid in commission of the crime. But this
distinction in English law 20 has not been strictly followed in India.The
Learned Judge came to this conclusion in Sarvanan (supra) relying on the
principles enumerated in Barendra Kumar Ghosh (supra). Learned Judge concurring
with the aforesaid principle in Barendra Kumar Ghosh (supra) held that the
criminal act referred to in Section 34 IPC is the result of the concerted action
of more than one person and if the said result was reached in furtherance of
the common intention then each person must be held liable for the ultimate act
as if he had done it himself.
- (2006) 12 SCC 64, one of us (Hon'ble Mr. Justice S.B. Sinha) delivering the
judgment relied upon the principles laid down in Lallan Rai (supra) and Suresh
(supra) and also Barendra Kumar Ghosh (supra) and held that the effect of
common intention to commit the crime must be judged from the totality of the circumstances.
Thus, Justice Sinha gave the provisions of Section 34 a very wide
interpretation which is consistent with the interpretation given to this
Section right from the 21 decision of the Privy Council in Barendra Kumar Ghosh
Following the above principles as we must, this Court has no hesitation in
concluding that in the facts and circumstances of this case the common
intention of the accused and their prior concert is amply proved.
39. In a
case, as in the present one, even if one of the co-accused is acquitted, that
does not by itself absolve other co-accused of their conjoint liability of the
crime. The law is quite clear that in spite of acquittal of one co-accused it
is open to the Court to convict the other accused on the basis of joint
liability under Section 34, if there is evidence against them of committing the
offence in "furtherance of the common intention".
Keeping the above principles in mind, in our view, this Court does not find any
infirmity in the findings which have been reached by the High Court while
affirming the conclusion of the trial Court.
from that in an appeal under Article 136 of the Constitution of India, this
Court will not normally venture in the arena of re-appreciation or review of
the evidence unless it is demonstrably shown that the trial Court or the High
Court has committed an apparent error of law and procedure or the conclusions
which have been reached are patently perverse. The other area of interference
by this Court in exercise of its jurisdiction under Article 136 of the
Constitution of India may be when, on proved facts, wrong interference of law
has been reached by the High Court. This position is far too well settled to be
disputed. However, reference in this regard may be made to the Punjab - (1976)
4 SCC 158, Ramanbhai Naranbhai SCC 208).
these cases have been considered by the Supreme Court recently in the case of
Radha Mohan 23 - (2006) 2 SCC 450 and the same conclusion has been reached.
there is no perversity in the finding of the High Court nor any wrong legal
conclusion has been reached on proved facts.
the reasons discussed above, this Court does not find any merit in the
aforesaid appeals, which are accordingly dismissed.
appellants are on bail, their bail bonds are cancelled and they shall be taken
into custody forthwith to serve out the remaining part of sentence, if any.
.......................J. (S.B. SINHA)
.......................J. (ASOK KUMAR GANGULY)
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