Direct evidence is rarely available to prove the common intention of the minds. It has to be inferred from the conduct of the Accused and other relevant circumstances of the case.
|Case name:||Balu @ Bala Subramaniam and Anr. Vs State (U.T. of Pondicherry)|
|Case number:||CRIMINAL APPEAL NO. 502 OF 2007|
|Court:||Supreme Court of India|
|Bench:||Hon’ble Justice Jagdish Singh Khehar, Hon’ble Justice R. Banumathi|
|Decided on:||October 16, 2015|
|Relevant Act/Sections:||Sections 34, 148, 149, 302, 324, 325 and 326 of the Indian Penal Code, 1860.|
- BRIEF FACTSAND PROCEDURAL HISTORY:
- A person named Natarajan has a quarrel with Seenu @ Srinivasan (Accused No. 2) and Kannan (PW2) supported Natarajan. Therefore, a fight ensued between Accused No. 2 and PW2 a week before the incident occurred.
- On 18.05.1997, in the forenoon, PW2, Ramesh (deceased) and Kamalakannan went to the Accused to settle the dispute during which a fight ensued between the 2 parties after which they decided to resume talks in the evening and left.
- In the evening on that day, PW2, Saravanan (PW3), Suresh (PW5), Arumugam (PW6) and Natarajan went to settle the dispute with the Accused. In the middle of the settlement talks, the Accused were informed that their friend, Anand was badly cut by the complainant party. The Accused questioned as to how could they attack even when settlement talks were going on.
- Giri (Accused No. 1), on seeing Murgan (PW1) and Ramesh coming, shouted that Ramesh supports PW2 and therefore, he must be killed. Accused No. 1 and 2 cut Ramesh with knives on his head. Partheeban and the Appellants (Balu @ Bala Subramaniam-Accused No.4 and Raja @ Kotti Raja-Accused No.5) beat him with sticks on the face. Thereafter, Accused No. 1 again cut Ramesh with a knife and he fell down.
- Then, PW2 was attacked. He received an injury on the left hand and PW3 also sustained cut injuries on his head. They also cut Muruganathan (PW4).
- PW1 registered a case against the Accused.
- Ramesh and other injured witnesses were examined by a Doctor (PW11) in the Hospital. on 21.05.1997, Ramesh succumbed to his injuries and died. The Accused were charged with Section 302, IPC.
- The procedural history is:
- The trial court found the accused guilty beyond reasonable doubt and convicted all the 5 accused u/s 148 and 302, IPC r/w Section 149, IPC and of various other offences. It sentenced them to undergo imprisonment for life.
- The Accused appealed in the High Court. The High Court maintained the sentence but modified the conviction and convicted Accused No. 1, 2,4 and 5 u/s 302 r/w 34, IPC, 326 r/w 34, IPC and 324 r/w 34, IPC and acquitted Accused No. 3 of all charges.
- Accused No. 4 and 5 preferred an appeal in the Supreme Court against the judgment of the High Court.
- ISSUE BEFORE THE COURT
- Whether the High Court was right in finding that the appellants acted in furtherance of common intention in committing murder of Ramesh and whether the High Court was right in attributing constructive liability to the appellants while convicting them under Section 302 read with Section 34 IPC.
- RATIO OF THE COURT
- Prosecution examined 15 witnesses and relied on the evidences of PWs 1, 2 and 5 (Suresh). PW1 stated that Accused No. 1 and 2 attacked Ramesh on the head with knives and Accused No. 3, 4 and 5 attacked Ramesh on his face with sticks and he fell down. PW5 also stated that the appellants attacked Ramesh with sticks. PW2 stated the same facts in regard with Accused 1 and 2 and said that Accused No. 3, 4 and 5 took the wooden sticks from a bullock cart standing nearby.
- The Appellants had denied their presence at the scene but the consistent evidence of PWs 1, 2 and 5 establish their evidence and that they attacked Ramesh with sticks.
- To invoke Section 34, IPC, it must be established that there was a common intention and a crime has been committed in furtherance of that common intention.
- The court discussed Mahbub Shah vs Emperor, AIR 1945 PC 118 wherein it was held that “To invoke the aid ofSection 34 successfully, it must be shown that the criminal actcomplained against was done by one of the accused persons in thefurtherance of the common intention of all; if this is shown, thenliability for the crime may be imposed on any one of the persons inthe same manner as if the act were done by him alone.”
- The court also discussed ShankerlalKacharabhai and Others vs. State ofGujarat which reiterated the principles laid down in Mahbub Shah’s case.
- Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC305 was also discussed wherein it was held that direct evidence is rarely available to prove the common intention of the minds. It has to be inferred from the conduct of the Accused and other relevant circumstances of the case. The totality of the circumstances must be taken into consideration.
- The court observed that common intention can rarely be proved by direct evidence. It has to be inferred from proved facts relating to the conduct of the Accused and not only from the individual act actually performed. Facts like how the incident occurred, arrival of the Accused, the manner of attack and the injuries sustained need to be taken into consideration. The criminal act actually committed is an important factor but not the sole factor. The totality of circumstances must be taken into consideration to decide whether common intention was present or not.
- Under Section 34, IPC, a pre-concert in the sense of adistinct previous plan is not necessary to be proved. The commonintention to bring about a particular result may well develop on the spot between a number of persons.
- The court observed that the facts and circumstances in this case do not indicate the presence of a common intention to commit the murder of Ramesh. No prior concert can be inferred. The fight was sudden which only ensued when the Accused were informed about their friend being cut by the complainant party. The Appellants were not armed as PW2 stated that they took sticks from a nearby bullock cart and attacked Ramesh when Accused No. 1 urged them to do so.
- Moreover, that the facts of the case indicate that common intention could not have been developed even at the spur of the moment. There may have been similar intention to attack Ramesh but it cannot be said that they acted in furtherance of common intention. The Appellants committed random individual acts without sharing any common intention. Therefore, they can only be held liable for their own individual acts.
- The court observed that the High Court did not record any finding as to how the appellants shared a common intention.
- Since no specific overt act was attributed to the appellants with respect to PWs 2, 4 and 5 and common intention among the Accused was absent, the High Court judgment was set aside.
- DECISION HELD BY COURT
- The judgment of the High Court was set aside.
- The conviction of the Appellants u/s 302 r/w 34, IPC was modified to Section 325, IPC. They were sentenced to undergo imprisonment for the period already undergone.
- The conviction of the Appellants u/s 326 r/w 34, IPC and u/s 324 r/w 34, IPC was set aside and they were acquitted of those charges.
- Therefore, the appeal was partly allowed.