Y. VENKAIAH versus STATE OF A.P.

20. In this case, on behalf of the accused, two witnesses G 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 Y. VENKAIAH v. STATE OF A.P. [ASOK KUMAR GANGUL Y, J.] '"'' analysed the evidence of the witnesses before coming to a 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 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. c

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 D 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 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 F 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 XXVll of 1870, to widen G 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 (2009] 3 S.C.R. 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 Gape (supra) possibly inspired the amendment in 1870.

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 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 G 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 H of the common intention of all, each of such persons is liable 1 ,.., 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 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 c 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 UP. – (2001) 3 SCC 673, a three-Judge Bench of this Court while D 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 E 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 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 Cod CJ 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 A 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 B made it clear that the culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence.

34. In Lal/an 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 C 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 D 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 E in the criminal action to bring about a particular result. Such consensus may develop at the spot or it may be prior to the 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 Lal/an Rai F (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 G 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) H 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 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 c 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 La/Ian 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 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". (2009) 3 S.C.R.

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.

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 c 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 D 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 sec 208).

42. All these cases have been considered by the Supreme Court recently in the case of Radha Mohan 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 G 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. H R.P. Appeals dismissed.