Holding

The conviction under Sections 302 and 307 read with Section 34 IPC stands; the appeal is dismissed.

Summary

The appellants, members of a political faction, assaulted the deceased with deadly weapons, causing his death, and injured three other persons. They were convicted under Sections 302 read with 34 and 307 read with 34 of the Indian Penal Code. On appeal they argued that the father of the deceased was not examined, that the key witnesses were relatives and thus biased, that there was an inordinate delay in lodging the FIR, and that Section 34 was inapplicable. The Supreme Court held that the prosecution’s version was sufficient to establish the common intention of the accused, that the examined witnesses were credible despite their relationship, that the FIR was lodged promptly, and that Section 34 applies even if a particular accused did not cause the injury directly. Consequently, the convictions were upheld and the appeal dismissed.

Issues considered

Whether the conviction under s.302 r/w s.34 and s.307 r/w s.34 is sustainable on the evidence presented.
Whether the non‑examination of the deceased's father defeats the prosecution case.
Whether the relationship of the injured witnesses to the deceased renders their testimony unreliable.
Whether the alleged delay in filing the FIR vitiates the prosecution.
Whether Section 34 IPC is applicable to the facts of the case.
Whether details of the overt act need to be specifically recorded in the FIR for conviction.

Legislation cited

Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 324, s. 34

Subjects

common intentionSection 34 IPCmurderassault with deadly weaponpolitical rivalrywitness credibilityFIR delay

Judgment

[2008] 16 S.C.R. 514

A KILARI MALAKONDIAAH@ MALAYADRI & ORS.
v.
· " STATE OF ANDHRA PRADESH
· · [Crimin-al Appeal· No: 376 of 2007] .
1 .. \ '• •• : t, ,• , . ,;

· B NOVEM13ER 21, 2008

[OR. ARIJIT PASAYAT AND DR. MUKUNDAKAM -(
. . SHARMA,JJJ ..

Penal Code, 1860:
c
s.302 rlw s.34 and s.307 rlw s.34 -Assault by accused
· with· deadly weapons, resulting in death of victim - Common
intention - Conviction by Courts below - Propriety of - On
facts, held: Proper - Prosecution version sufficient to fasten
D guilt on the accused.
s.34 - Applicability of - Discussed.

Evidence - Witness - Related witness - Testimony of -
Evidentiary value - Held: Relationship is not the factor to
E discard the prosecution version and render it suspect - At
the most, the Court is required to analyze the evidence in
some detai{ to rule out the possibility of felse implication.

According to the prosecution, owing to political
F rivalry, the accused-appellants assaulted the deceased
with deadly weapons which proved fatal. PWs 1 to 3 were
allegedly injured in the occurrence. The appellants were
convicted by the Courts below under s.302 r/w 34 and/
or s.307 r/w 34 IPC.
G
In the instant appeal, the conviction of the appellants
was challenged on various grounds viz. that the father +-
of the deceased was not examined by the prosecution;
that PWs 1, 2 and 3 were interested witnesses; and that
514
KILARI MALAKONDIAAH@MALAYADRI & ORS. v. STATE 515
OF ANDHRA PRADESH

there was inordinate delay in filing of the FIR. It was also A
contended that s.34 IPC had no application to the facts .
of the case; and· that details of the· overt act were not
g!v~n in the Fl~.·. · ·· ·

· · 'Oisinissin·g the appeal, the Court B
.. . .
.,.. HELD:1. The prosecution version is sufficient to ,
fasten the guilt on the·accused appellants. [Para 9] [522- ·
j ~ '

2. Though father of the deceased was not examined, c
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 disc~rd their evidence. [Para 5] [520-G-H;
521-A] J •
ID
3.. 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 analy.se the evidence in some detail to rule out the E
possibility of false implication. In the instant case, the trial
Court ~as ~one.t~at. [Para 6].[521-A-B] -
4. Though it was urged that there was delay in
l_odging the FIR, the tri~I Court and the High Court found
that in fact ther~ was no delay and the FIR was lodged · F
promptly. [~ara 6] [521-C]
5.1. S.34 IPC 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 G
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 s.34 if. ·such criminal act is done in H
)-

516 SUPREME COURT REPORTS [2008] ~6 S.C.R.

A furtherance of a common intention of tile· persons wh~
join in comm"itting ·the crime .. Direct proof of ~ommon
intention ·is seldom •available and, therefore, .such r,
intention can only be inferred from the. circumstances
appearing from the proved facts of the case and the
B proved circumstances.·fn order to bring.home the charge
of common intention, the prosecution has to establish by
or
evidence, whether direct ci.rcumstantial, that there was
plan' or meeting of mind of alf the accused persons to
commit the offence for which they are charged with· the
c aid of s.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. [Para 7] [521-C-G]
0
s:2:·1he existence of a common intention amongst
the participants in a crime is the essential element for
application of this section. It is not necessary that the acts
of several persons charged .with commission of an
E 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 commpn intention in order
to attra~t the provision. [Para 7] [521-G-ti; 522-A]
5.3. S.34 IPC does not say "the common intention of
F, all"; nor does it say·"and intention common to all". Under
the provisions of s.34 the essence of the liability is to be
found in the ex.istence of a common intention animating
the accu~ed leading to the commission of a criminal act
in furtherance of such intention. As a result of the'
G application of pr,inciples· enunciated in s.34, when an
accused is convicted under s.302 read with s.34; in law
it means that the accused is liable for the act which
. caused. d~ath of the deceased in the same 'mariner as. if
itwas done by him alone: .The provision ·is intended to
a'
H meef case' in which it may be difficult to~ distinguish
KILARI MALAKONDIAAH@MALAYADRI & ORS. v. STATE 517
OF ANDHRA PRADESH
betw~en acts of individual members ~f a party who act A
in furtherance of the common inteMlion ot all or to prove
exactly what part was taken by each ·Of them~ [P.ara 8)
(522-B-D].

5.4. s.34 is appficabie even it no injury ha~·_beeh B
ca~sed by the particular accused himself. For applying
s.34 it is not necessary to show some overt act on the
part of the accused. [Para 8] [522-E]

Ashok Kumar v. State of Punjab AIR 1977 SC 109 and
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR c
1993 SC 1899, reJied on.

Case Law Reference:
.AIR 1977 SC 109 relied on Para 7 D
AIR 1993 SC 1899 relied on Para 8·
..
CRIMINAL APPELLANT JURISDICTION : Criminal Appeal
No. 376 of 2007..

From the final Judgment and Order dated 21.9.2006 of the
E
High Court of Judicature Andhra Pradesh at Hyderabad in Crl.
Appeal Nos. 1231 and 1452 of 2004.

K. Sarada Devi for the Appellants.
F
Altaf Fatima and D. Bharathi Reddy for the Respondent.

The Judgment of the Court w~s ~_elivered by

DR. ARIJIT PA~A YAT, J. 1. Challenge in this ·appeal is
to the judgment of a Division Bench of the Andhra Pradesh G
-t 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. H
518 SUPREME .COURT
. '
REPORTS [2008] 16 $.C.Ft.

A A:.1 .• A-:2. and A-8 were. fou)1g g1,1ilty. of .offences. punish~ble
under Se.ctiori', 302 r.ead ·wJtb .s~ction 3A .1 f?.c .and .Section 307".
.' 1
r~qj ~it~. Se.9fio~n· ~ i.~-9 ti:-,?. . A~ ranq A'." 1·2. V'1~re foynd g~\lty
of offence punishable under Section 307 read with Section.34,.
IPC. A-9 was acquitted by the High Court by the impugnecf
s jt,J<tgmer:it.:A-3 9ied d_uring the. course of, appeal. A-4,·A-6, ·A-7,
A~40:aQd. A-1$ :to A-:19 were found·to.be not guilty'ofthe·
charged offer:ices.and they were acquitted by the trial"Cou11 .
.. • • 'I.

2. Factual scenario giving rise to the present appeals is
C as folloyvs:
:.;.• .·.
~

There are political grudges and ill feelings between the .
groups led by A5 and Chandra Tirupathaiah in R.R. Palem
village. Al, A3, A4 anq A6 toA19 are the followers of AS. P.Ws.
1. to 3 belong to the group of Chandra Tirupathaiah. The wife
D of A5 and ·the mother of Chandra Tirupathaiah i.e; Chandra ·
Punr:iamma contested in the. Panchayat elections and was
,· ~ ~ ~.. • ' . • :t . t • . .

elected· as Sarpanch of the village. Since then the group of the
-~
ace.used was. waiting for an op port-unity to prove· their
supremacy in the village. While so, o'n 14.1.1998 at about 7.00.
E, AM., A.6 and Kilari Manoz and Chintagumpala Vamsee went
to the·Pathuri lahds:ofKilari Venkata Subbamm·a and others
to :graze their cattle. After some time at about 7.30 A.M.,
Chintagumpala Sunil, Chandra Murali and Chintag'Urhpala ·
Manohar also went to the Pathuri lands of Kilari V~nkata
F Subbamma and others for a·nswe,ring 'the calls of nature·and .
they m.et 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 dr_aw ~y call.ing as "cricket
raddaindira". Then, he replied in. the same manner by calling
G A6 as "match· raddu kaledura''. By hearing such· reply, A6 felt
offended ·and grew wild against Chandra Murali and picked up
quarrelwlfhhim, and there was a scuffle between them. Kilari · .
Ma-iloz wen't to the village and informed about the quarrel
betW.een A6 and Chandra Murali to the elders and A.21 in spite
of.the' request madErby Ctiintagun'lpala Manohar not to do so.
H . •• ·•. .:·:·.;: 1:!' ..
, .
KILARI MALAKONDIAAH@MALAYADRI & ORS. v. 519
STATE OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]

On the same day, at about 12,00 noon, A2 wentto the house A
of Chintagumpala Manohar and kicked him on his stomach ·tor
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 B
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 c
quarrel with him. At about 1.00 p.m. Al and A3 to A 19 armed
with .deadly weapons beat the deceased and also injured
P.Ws.1to3. 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. AS beat P.W.2 with
.a stick on his head and hands. A-1 beat P.W.3 Viith an axe on
0
his head and A-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 E
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 F
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 G
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 d.ead body of the
deceased and sent the dead body for postmortem H
520 SUPREME ·COURT REPORTS [2008] 16 S.C.R.
;. ·.

A · 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 dece'3sed ~ould appeado have died of sJ~ock; due to
injury. No :2. On. completi.on of' investigation police ,laid the
8 charge sheet for ·the above· oftences.· Accus.ed persons
pleaded innocence. · ·

' · In orderJo .establish the aceusations prosecution examined.
14.witnes'ses. Out of them .PWs 1 tq 3.were stated to be inju.red
C ey~ w!tnesses. PW-4 was stated, .to be another eye witne:ts.
Stand .of the accused before the trial Court was that the
best witness would have
been the father of the deceased who
was not' ex~mine~ for reasons known to the· prosecution. There
was inordinate del~y ~'iii· fiHng tlie first infbr.matio.n report and
D PWs ·1·to 3 are
interested wit'nesses." It was ·aiso submitted that
in the ExtP-1 reportdetaifs have not been given. The trial Court .
did' riot· find any ·substa.nce ·i'r1 the pfea and · as noted above ·.
convicted some of the 'accusecfpe'rs6ns: . . ' . .
-~ _- . ..... . ·
.· ~ ....... -·~ : · ··· ·. · · · .· · . ~

E· · In appeal except A..:9 ·the appeal filed by rest of the
accused 'persons was· dismissed:

.·..3: According t-0 learned ·coµnset .for the ~ppellants the
details of the ove11 act. were. not given-in .the FIR. Therefore,
there were ·co.nsid_ erable improvements in the evidence .of the
F witness~s ~· It is submitted that the FIR was lodged after a long
time. It ·is also sub111itted that Section 34 IPC has no application
to the facts of the presenfca~e. ·

. 4. learned counsel .for the respondent-State on the other
G hand supp~rted the ju'dgh~ent~
5. 'It is to be seen that though father of the deceased was
not examined, three·<>f the'injured witnesses wh'o had sustained •
injuries ·during the occurrence were examined. Though they
we·re·subjected to incisive 'cross examination, hothing material
. ' ,. ... .
KILARI MALAKONDIAAH@MALAYADRI & ORS. v. STATE 521
OF ANDHRA PRADESH [DR. ARIJIT PASAYAT, J.]
....f
... was elicited to discard their evidence . A

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 .8
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.
c
7. Section 34 has been enacted on the principle of joir:it
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 D
committed by another in the course of criminal act perpetrated
by several persons arises under Section 34 if such c.riminal 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 E
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,
-4 that there was plan or meeting of mind of all the accused F
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
G
is just the same as if each of them has done it individua.lly 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 of this Section. It is not necessary that the acts of
H
522 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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",
8
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
C 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
D be difficult to distinguish between acts of individual m~mber's
111
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. Pu/la Reddy and Ors. v. State of Andhra
Pradesh (AIR 1993 SC 1899), Section 34 is applicable even
E if no injury_has been caused by the-particular accused-himself.
For applying Section 34 it is not necessary to show some ov,ert
act on the part of the accused. -

9. The prosecution version is sufficient to fasten the guilt
F on the accused appellants. The appeal is without merit,
deserves dismissal which we direct.

-B.B.B. Appeal dismissed.