Kilari Malakondiaah @ Malayadri & Ors vs State Of A.P

Kilari Malakondiaah @ Malayadri & Ors. ...Appellants

Versus

State of Andhra Pradesh ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge 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 Court.

2. Factual 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.

Chandra Punnamma 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

2 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-

3 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.

P.W.13 after 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

4 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.

3. According 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

5 was lodged after a long time. It is also submitted that Section 34 IPC has no

application to the facts of the present case.

4. Learned counsel for the respondent-State on the other hand supported

the judgment.

5. It 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.

6. Great 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.

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7. Section 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

7 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.

8. The 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

8 himself. For applying Section 34 it is not necessary to show some overt act

on the part of the accused.

9. The prosecution version is sufficient to fasten the guilt on the accused

appellants. The appeal is without merit, deserves dismissal which we direct.

............................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 21, 2008

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