Y. Venkaiah vs State Of A.P

1. 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.

2. 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).

3. 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,

Nalgonda.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

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15. 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.

16. In so far as sanction is concerned, its

validity was not questioned before us.

17. 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.

18. 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.

Those 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.

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19. 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.

Another 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.

College, 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.

20. 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.

21. 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.

22. 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.

Therefore, this defense was also considered and

rightly rejected.

23. 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.

24. 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:

"When 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."

25. 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.

26. 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

rendering the decision in "The Queen Vs.

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.

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27. Since then, this section has been judicially

interpreted in a large number of decisions.

Lord Sumner speaking for the Privy Council in

the case of Barendra Kumar Ghosh Vs. King

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."

28. The learned Law Lord came to this conclusion by

interpreting Section 34 in the context of

Section 33 of the Code.

29. The aforesaid formulation by Lord Sumner has

been followed by this Court on many occasions

in different cases, some of which are noted

hereinbelow.

30. 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.

31. The Constitution Bench of this Court in Mohan

Singh and another Vs. State of Punjab - AIR 1963 SC

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.

When such 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.

32. In the case of Suresh and Another Vs. State of

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.

33. 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.

34. In Lallan Rai and Ors. Vs. State of Bihar -

(2003) 1 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.

35. If 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.

36. In Saravanan and Anr. Vs. State of Pondicherry

- (2004) 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.

37. In a later judgment in Rotash Vs. State of

Rajasthan - (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 (supra).

38. 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".

40. 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.

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41. Apart 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

decisions of this Court in Duli Chand Vs Delhi

Admn. - (1975) 4 SCC 649, Dalbir Kuar Vs. State of

Punjab - (1976) 4 SCC 158, Ramanbhai Naranbhai

Patel Vs. State of Gujarat - (2000) 1 SCC 358,

Chandra Bihari Gautam Vs. State of Bihar - (2002) 9

SCC 208).

42. All these cases have been considered by the

Supreme Court recently in the case of Radha Mohan 23 Singh Alias Lal Saheb and Others Vs. State of U.P.

- (2006) 2 SCC 450 and the same conclusion has been

reached.

43. Here there is no perversity in the finding of

the High Court nor any wrong legal conclusion has

been reached on proved facts.

44. For the reasons discussed above, this Court

does not find any merit in the aforesaid appeals,

which are accordingly dismissed.

45. The 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)

.......................J. New Delhi (R.M. LODHA) March 03, 2009

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