Supreme Court of India
NAGARAJAversusSTATE OF KARNATAKA
- Citation
- 2008 INSC 1476
- Decided
- 18 December 2008
- Disposal
- Case Partly allowed
- Bench
- S B SINHA
Holding
The appellant cannot be convicted of murder under s.302 read with s.34 as the prosecution failed to prove a common intention; his conviction is limited to s.323 IPC.
Summary
The appellant (A-3), an employee of a wine shop, was tried along with two others for murder of Venkatesh under IPC s.302 read with s.34, alleging a common intention to kill. The trial court and High Court convicted all three of murder. On appeal, the appellant argued that he was unarmed, was performing his duties, and that the prosecution failed to prove any common intention among the accused. The Supreme Court held that the evidence did not establish a shared pre‑arranged plan or common intention, especially since the appellant was merely a cashier and acted independently by kicking the victim. Consequently, he could not be held liable under s.302/34, though his act of kicking amounted to voluntarily causing hurt under s.323 IPC. The Court allowed the appeal in part, setting aside the murder conviction and upholding the conviction under s.323, with the appellant sentenced to the period already undergone.
Issues considered
- Whether the appellant can be held guilty of murder under IPC s.302 read with s.34 on the basis of a common intention among the three accused.
- Whether the prosecution proved the existence of a pre‑arranged common intention and participation of the appellant in the murder.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 323, s. 34
Subjects
MurderSection 34 IPCCommon intentionJoint criminal liabilityCriminal appealIndian Penal CodeAssaultEmployeeUnarmed
Judgment
[2008] 17 S.C.R. 1127
NAGARAJA A
v.
~ STATE OF KARNAT AKA
(Criminal Appeal No. 2067 of 2008)
DECEMBER 18, 2008
B
[S.8. SINHA AND CYRIAC JOSEPH, JJ.]
PENAL CODE, 1860:
s.302134 323 - Murder - Conviction uls 302134 by trial
court, affirmed by High Court - Three accused alleged to have, c
assaulted deceased, one with iron rod, other with fists and the
third one was stated to have kicked him - The last one filing
appeal - Held: Appellant cannot be held guilty u/s 302134 -
In view of the fact that he was unarmed and presumed to have
been performing his duties at his place of employment, it D
cannot be said that he formed common intention at the spot'
to murder deceased - He is accordingly convicted uls 323,
and sentenced to the period already undergone.
" The appellant (A-3) alongwith A-1 and A-2 was
prosecuted for commission of the offence punishable u/'
E
s 302 IPC. According to the prosecution case as narrated ·
by PW 1, on the day of the incident when his brother (the
deceased) an agriculturist did not reach home till 1O'O
Clock in the night, he went out in search of him; when ·
he reached near the wine shop, he saw accused persons
quarrelling with his brother; A-I assaulted him with an iron F
..... rod, A-2 with fists and the appellant (A-3) kicked him. The
victim was taken to the hospital where he died the
following day. The trial court convicted and sentenced all
the accused u/s 302/34 IPC. The appeal was dismissed
by the High Court. G
In the instant appeal filed by A-3, it was contended
that according to the prosecution case itself, the appellant '
~
was wholly unarmed; that the trial court as also the High ·
Court failed to consider that there was no evidence to
1127 H
1128 SUPREME COURT REPORTS [2008] 17 S. C R.
A establish formation of any common intention amongst the
accused so as to hold them guilty with the aid of s.34 IPC;
and that the prosecution failed to prove any tangible ..
_
'
motive.·-
Allowing the appeal in part. the Court
B HELD:1.1. Having regard to the quality of evidence
that the prosecution had led, it cannot be said that all the
accused persons had a common intention to commit
, murder of the deceased. It has come in evidence that
appellant A-3 was an employee in the wine shop, A-2, a
c supplier and A-1 was a customer. Prosecution has not
brought on record any evidence to show that the
accused persons had a common intention to commit
murder of the deceased. It has not been shown that even
otherwise they were bearing any common grudge against
the deceased. Evidently, both A-1 and the deceased were
D customers of the wine shop. They might have picked up
some quarrel: At the time when the occurrence took
place, appellant being an employee of the said shop, the
question of his coming to the place of occurrence
together with the other accused did not arise. The
E evidence of prosecution witnesses, particularly P.Ws. 1
and 2, on which both the courts below have relied, even
if taken at their face value, would merely show that it was .......__
A-1 who had assaulted the deceased with an iron rod and
the appellant was said to have only kicked the deceased.
F [Para 11 and 15] [1133-C-F; 1134-D-E]
1.2. The house of PW 1 was situated at about one
....
furlong from the place of occurrence. He came to the
place of occurrence in search of his brother. He failed to
bring any material on record as to on what basis he
G arrived at the conclusion that accused persons had
formed, a common intention. [Para 13] [1133-H; 1134-A]
1.3-. It is not a case where all the accused came
;
together and ran away together. P.W. 2 deposed that they
went.in.different directions. A bald statement said to have
H been made by PW-1 that A-1 while assaulting the
NAGARAJA v. STATE OF KARNA TAKA 1129
deceased had exhorted that they would not leave him till A
he died, cannot be a ground to hold that the same by
itself is demonstrative of the fact that appellant(A-3) also
j
had a similar intention. Admittedly, the appellant was
wholly unarmed. (Para 14] [1134-8-C]
2.1. For invoking the provisions of Section 34 of the B
IPC, at least two factors must be established; (1) common
intention, and (2) participation of the accused in the
commission of an offence. For this purpose although no
overt act is required to be attributed to the individual
1 accused but then before a person is convicted by
applying the doctrine of vicarious liability not only his
c
participation in the crime must be proved but presence
• of common intention also must be established. The
presence of the accused by itself would not attract the
provisions of Section 34 of the l.P.C. In the instant case,
the appellant ordinarily was expected to be at his work D
place only. His presence at the spot, therefore, has
sufficiently been explained. [Paras 15 and 16] (1134-E-H;
1135-D]
" Rishideo Pande vs. State of Uttar Pradesh AIR 1955 SC
331; Chikkarange Gowda and Ors. v. State of Mysore AIR E
1956 SC 731; Mohan Singh v. State of Punjab AIR 1963 SC
174 and Nishan Singh v. State of Punjab 2008 (3) SCALE
416, relied on.
'
Bhanwar Singh & Ors. vs. State of M. P. 2008 (7) SCALE
633 referred to. F
2.2. The appellant cannot be held guilty for
"" commission of offence punishable under Section 302
read with Section 34 of the IPC. The very fact that the
appellant was unarmed and must be presumed to have
been performing his duties at his place of employment,
G
it cannot be said that he had formed any kind of common
intention at the spot to murder the deceased. Some
-
f
I
l
I.
incident might have taken place and he might have
formed a common intention to teach a lesson to the
deceased. He is accordingly convicted u/s 323 IPC and
sentenced to the period already undergone. (Para 23] H
•\
1130 SUPREME COURT REPORTS [2008] 17 S.C.R.
·A (1138-G-H; 1139-A-B]
Case Law Reference:
AIR 1955 SC 331 relied on Para 17 \.
AIR 1956 SC 731 relied on Para 18
AIR 1963 SC 174 relied on Para 19
B
2008 (3) SCALE 416 relied on Para 21
2008 (7) SCALE 633 referred to Para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2067 of 2008.
~
From the Judgment & Order dated 7.12.2007 of the High
c Court of Karnataka at Bangalore in Criminal Appeal No. 1189
of 2004. /
Basava Prabhu S. Patil, B. Subrahmanya Prasad, V.N.
Raghup~thy for the Appellant.
D Anitha Shenoy for the Respondents.
The Judgment of the Court was delivered by ~
S.B. SINHA, J. 1. Leave granted.
2. Appellant (Accused No.3) along with Suresh (Accused
No.1) and Ranganatha (Accused No. 2) was charged with for
E commission of offence punishable under Section 302 read with
Section 34 of the Indian Penal Code (for short, 'IPC') on the
accusation that they had due to previous ill-will, in furtherance
of their common intention, caused the death of one Venkatesh
('the deceased'). Accused No. 1 assaulted the deceased with
an iron rod on his head and other parts of the body and
F
accused Nos. 2 and 3 assaulted him with fists and kicks and,
thus, caused hurt and voluntarily caused his death and thereby ...
committed an offence punishable under Section 302 read with
Section 34 of the IPC.
3. A wine shop commonly known as 'Nandi Wines' is
G situated at Nandi village behind Yoganandeshwara Temple.
Appellant was an 7fl1Ployee of the said shop. Accused No.2
was supplier of wine ro the said shop and accused No. 1 was
H
a customer thereof.
Deceased was an agriculturist. He ordinarily used to return
home at 7:00 p.m. However, on the date of incident, i.e., on
)
-
NAGARAJA v. STATE OF KARNATAKA [S.S. SINHA, J.] 1131
13.10.2000, he did not return to his house. A
P .W.1- Munegowda, the brother of the deceased, on being
;
asked by his mother at about 8.30 p.m. went out to search for
him and after finding him sitting in the 'circle', returned home.
But the deceased did not come back.
Again at about 10'0 clock in the night, P.W. 1 went in ,B
search for him. When he reached near 'Nandi wines', he found
the accused persons were quarrelling with the deceased.
Accused No. 1 assaulted the deceased with an iron rod on the
back of his head; accused no. 3 - appellant herein, kicked him
and accused no. 2 gave fist blows on his face. Deceased was c
found to have sustained injuries. He was taken to Government
....
'
Hospital of Chickballapur. The Doctor sent information
thereabout to P.W.13 Thimarayappa, who was working as Head
Constable and was the Station House Officer of Chikaballapur
Rural Police Station, at the relevant time at 12.00 midnight on
0
13.10.2000. He immediately went to the Hospital and recorded
the statement of P.W.1. He returned to the police station and
registered the said complaint in Crime No. 230/2000, for the
offence punishable under Sections 323, 324 and 307 of the
IPC; he prepared FIR am;Lsent the same to the jurisdictional
court. Thereafter, as advised by the Doctor, deceased was E
taken to NIMHANS at Bangalore. He expired on the next day.
4. The First information Report was lodged by the P.W.1,
the brother of the deceased. Another witness
Munivenkategowda claiming to be an eyewitness, examined
himself as P.W. 2. Manjunatha (P.W. 3) and K. Srinivas (P.W. F
7) were also present at the time of the incident. A general
allegation was made that there was some previous ill-will
between the parties.
5. Indisputably, the deceased used to take drink
occasionally. He (P.W.1) could not state the reason as to G
whether the accused persons had any animosity with the
deceased. He admitted that he had not lodged any complaint
with regard to the earlier incident.
6. The learned trial judge convicted all the accused
H
.
Ir
1132 SUPREME COURT REPORTS [2ooa1 11 s.c:·R.
A persons for commission of an offence punishable under
Section 302 read with Section 34 of the IPC.
7. They preferred an appeal before the High Court. By
reason of the impugned judgment, the same has been
dismissed.
B 8. This Gou rt issued a limited notice only in respect of the
present appellant with regard to the nature of offence.
9. Mr. Basava Prabhu S. Patil, learned Counsel in support
, of this appeal raised the following contentions:
i. The learned single judge as also the High Court
c failed to consider that the prosecution witnesses did
not make any statement as regards the formation
of any common intention amongst the accused so
as to hold them guilty for commission of offence
..
,.'
punishable under Section 302 read with Section 34
D of the IPC. .
ii. All the witnesses merely stated that the appellant
had only kicked the deceased and he was wholly
unarmed. / •;'
I
iii. The recovery of an iron rod is said to have been I
E made only from accused No. 1 and not from the
other accused.
iv. Prosecution has failed to prove ariy tangible motive
and only a general statement was made that there
was some previous ill-will betv-.ieen the parties.
F
v. . The accused persons being not related, cannot be
said to have any common intention to cause the
I-
said offence.
10. Ms. Anitha Shenoy, learned counsel appearing on
G behalf of the State, on the other hand, would contend that the
comn:on intention must be held to have been formed at the I
spur of the moment. It was urged that as both the courts below •
have arrived at a concurrent finding of fact in regard thereto the
impugned judgment should not be interfered with. According to
the learned counsel. the accused were not strangers but
H
NAGARAJA v. STATE OF KARNATAKA [S.B. SINHA. J.] 1133
employees of the same Wine Shop and, thus, they must be A
presumed to have acted in concert. lt was furthermore
, ,; submitted that they came together and ran away together which
demonstrates that they had a common intention to kill the
deceased.
11. The High Court in its impugned judgment proceeded B
on the basis that all the accused persons were employees of
Nandi Wine Stores. However, the prosecution itself in support
of its case examined Bachegowda (P.W. 4), the owner of Nandi
Wine Stores, who in his deposition had stated that only
appellant was working with him as a cashier, whereas accused c
No.1 was a customer and the accused No. 2 was a supplier.
He was not present at the place of occurrence on the said
date. He was not a witness to the occurrence. Prosecution has
not brought on records any evidence to show that the accused
persons had a common intention to commit the murder of D
deceased. It has not been shown that even otherwise they were
bearing any common grudge against the deceased. Evidently,
both the accused No. 1 and the deceased were customers of
~
the said Wine shop. They might have picked up some quarrel.
At the time when the occurrence took place, appellant being
an employee of the said shop the question of his coming to the E
place of occurrence together with the other accused did not
arise. The evidence of prosecution witnesses. particularly P.Ws.
1 and 2, on which both the courts below have relied upon, even
if taken at their face value, would merely show that it was the
accused No. 1 who had assaulted the deceased with an iron F
\, rod; appellant was said to have only kicked the deceased.
12. A general statement was made that about a month
prior to the incident. when the deceased had gone to Nandi
Wine shop, a quarrel between him and the accused persons
took place. According to P.W. 1, at that point of time, accused G
persons had threatened the deceased. From whom he had
heard thereabout has not been disclosed.
.. \
I
13. Indisputably, P.W.1 's his house was situated at about
one furlong from the place of occurrence. He came to the place
of occurrence in search of his brother. He failed to bring any H
1134 SUPREME COURT REPORTS [2008] 17 S.C.R
A material on record as to on what basis he arrived at the
conclusion that accused persons had formed a common
intention.
14. Ms Shenoy may also not be correct in contending that
"
all the accused persons ran way together. P.W. 2 dep.osed that
B they went in different directions. Appellant, according to P.W.1,
f
ran towards the Wine shop. Thus, it is not a case where all the
accused came together and ran away together. A bald
statement said to have been made by him that the accused
No.1 while assaulting the deceased had exhorted that they. \-
c would not leave him till he died, cannot be a ground to hold that
the same by itself is demonstrative of the fact that appellant -
accused No. 3 also had a similar intention. Admittedly, no
weapon was recov~red at the instance of appellant. He was
wholly unarmed. On the basis of the voluntary statement made
by the accused No.1 alone, an iron rod was recovered.
D
15. We are not concerned herein as to whether the said
iron rod was the weapon of assault. Having regard to the quality
of evidence that the prosecution had led, in our opinion, it is
difficult to come to the conclusion that all the accused persons
had a common intention to commit the murder of the deceased.
E
For invoking the provisions of Section 34 of the IPC, at
least two factors must be established; (1) common intention,
->-
and (2) participation of the accused in the commission of an 1
offence. •,
;-
F 16. For the aforementioned purpose although no overt act
isrequired to be attributed to the individual accused but then
-before a person is convicted by applying the doctrine of
vicarious liability not only his participation in the crime must be
proved but presence of common intention must be established.
It is true that for proving formation of common intention, direct
G evidence may not be available but then there cannot be any
doubt whatsoever t~at to attract the said provision, prosecution
is under a bounden duty to prove that participants had shared
> ...
a common intention. It is also well settled that only the presence
of the accused by itself would not attract the provisions of
H Section 34 of the 1.P.C. Other factors should also be taken into
NAGARAJA v. STATE OF KARNATAKA [S.S. SINHA, J.] 1135
consideration for arriving at the said conclusion. Accused A
persons were not related to each other; they did not have any
family connection; they have different vocations. It has not been
established that they held any common animosity towards the
deceased.
A general and vague statement made by one of the B
prosecution witnesses would not prove motive. It may be true
that the common intention may develop suddenly at the spot
but for the said purpose, the genesis of the occurrence should
have been proved. The prosecution has failed to establish why
and how a quarrel has started. The prosecution even has not c
proved as to why the accused No. 1 was carrying the iron rod
even before the quarrel with the deceased started or as to
whether the appellant was aware of this. It has also not been
shown that he along with other accused p~rsons came to
assault the deceased. Appellant ordinarily was expected to be
at his work place only. His presence at the spot, therefore, has 0
sufficiently been explained.
17. In Rishideo Pande vs. State of Uttar Pradesh [AIR
" 1955 SC 331], this Court held:
"2 The main point urged by Sri l.)mrigar who appears in E
support of this appeal is that Section 34, I. P. C., has been
wrongly applied to the facts of this case. The meaning,
scope and effect of Section 34 have been explained on
more than one occasion by the Privy Council and by this
Court. It will suffice only to refer to the last decision of this
Court in the case of -- 'Pandurang v. The State of F
Hyderabad', AIR 1955 SC 216 (A) pronounced on 3-12-
1954. It is now well settled that the common intention
referred to in Section 34 presupposes prior concert, a pre-
arranged plan, i.e., a prior meeting of minds. This does
not mean that there must be a long interval of time between G
the formation of the common intention and the doing of the
act. It is not necessary to adduce direct evidence of the
common intention. Indeed, in many cases it may be
impossible to do so. The common intention may be inferred
from the surrounding circumstances and the conduct of the H
,,
1136 SUPREME COURT REPORTS [2008] 17 S.C.R.
A parties. Sri Umrigar submits that there is nothing on the
record from which a common intention on the part of Rain
Lochan and the appellant to murder Sheomurat can be ~ '
properly inferred."
18. Yet again in Chikkarange Gowda and Ors. v. State of
B Mysore [AIR 1956 SC 731], this Court held:
"10. So far back as 1873, in Queen v. Sabed Ali 20 Suth )::
WR (Cr) 5 (A), it was pointed out that Section 149 did
not ascribe every offence which might be corr:imitted by
one member of an unlawful assembly while the assembly
c was existing, to every other member. The section describes
the offence which is to be so attributed under two
alternative forms: (1) it must be either an offence committed
by a member of the unlawful assembly in prosecution of
the common object of that assembly; or (2) an offence such
as the members of that assembly knew to be likely to be
D
committed in prosecution of that object.
In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40:
(AIR 1925 PC 1) (8) the distinction between Sections 149
and 34, Penal Code was pointed out. It was observed that
Section 149 postulated an assembly of five or more
E
. persons having a common object, namely, one of those
objects named in Section 141, and then the doing of acts
by members of the assembly in prosecution of that object
or such as the members knew were likely to be committed
in prosecution of that object. It was pointed out that there
F was· a difference between common object and common
intention ; though the object might be common, the intention •
of the several members might differ. The leading feature
of Section 34 is the element of participation in action,
whereas membership of the assembly at the time of the
G committing of the offence is the important element in
Section 149. The two sections have a certain resemblance
and may to a certain extent overlap, but it cannot be said ·
f
that both have the same meaning."
19. Yet again in Mohan Singh v. State of Punjab [AIR 1963
H SC 174], this Court held:
NAGARAJA v. STATE OF KARNATAKA [S.B. SINHA, J.] 1137
~.
"13. That inevitably takes us to tbe question as to whether A
the appellants can be convicted under s. 302/34. Like s.
149, section 34 also deals with cases of constructive
criminal liability. It provides that 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 8
in the same manner as if it were done by him alone. The ,
essential constituent of the vicarious, criminal liability
prescribed bys. 34 is the existence of common intention.
If the common intention in question animates the accused
_, persons and if the said common intention leads to the
commission of the criminal offence charged, each of the
c
persons sharing the common intention is constructively
liable for the criminal act done by one of them. Just as the
combination of persons sharing the same common object
is one of the features of an unlawful assembly, so the
existence of a combination of persons sharing the same D
common intention is one of the features of s. 34. In some
ways the two sections are similar and in some cases they
may overlap. But, nevertheless, the common intention
'I which is the basis of s. 34 is different from the common
object which is the basis of the composition of an unlawful E
assembly. Common intention denotes action-in-concert
and necessarily postulates the existence of a pre-arranged
plan and that must mean a prior meeting of minds. It would
be noticed that cases to which s. 34 can be applied
disclose an element of participation in action on the part
F
of all the accused persons. The acts may be different; may
vary in their character, but they are all actuated by the same
common intention. It is now well-settled that the common
intention required by s. 34 is different from the same
intention or similar intention."
G
20. Even a past enmity by itself, in our opinion, may not
be a ground to hold for drawing any inference of formation of
common intention amongst the parties.
.
" 21. We may, however, hasten to add that the question as
to whether common intention was formed for commission of an H
1138 SUPREME COURT REPORTS [2008] 17 S.C.R.
·~-
A offence or not would depend upon the facts of each case. {See
Nishan Singh v. State of Punjab (2008 (3) SCALE 416]}
22. Recently in Bhanwar Singh & ors. vs. State of M.P.
(2008 (7) SCALE 633], this Court held:
"45. It would also be instructive to look at the following
B observations made in Gurdatta Mal v. State of UP (AIR
1965 SC 257], in the context of Sections 34 and 149 IPC;-
"It is well settled that Section 34 of the Indian Penal
Code does not create a distinct offence: it only lays
down the principle of joint criminal liability. The \.
c necessary conditions for the application of Section
34 of the Code are common intention to commit an
offence and participation by all the accused in
doing act or acts in furtherance of that common
intention. If these two ingredients are established,
D all the accused would be liable for the said
offence ... In that situation Section 96 of the Code
says that nothing is an offence which is done in the
exercise of the right of private defence. Though all
.. !
the accused were liable for committing the murder
E of a person by doing an act or acts in furtherance
of the common intention, they would not be liable
for the said act or acts done in furtherance of
common intention, if they had the right of private
defence to voluntarily cause death of that person.
Common intention, therefore, has relevance only to
F the offence and not to the right of private defence.
What would be an offence by reason of constructive
liability would cease to be one if the act constituting
the offence was done in exercise of the right of
private defence."
G 23. For the aforementioned reasons, we are of the opinion
that appellant cannot be held guilty for commission of offence
punishable under Section 302 read with Section 34 of the IPC.
The very fact that the appellant was unarmed and must be ;I
"
presumed to have been performing his duties at his place of
H employment, it cannot be said that he had formed any kind of
NAGARAJA v. STATE OF KARNATAKA [S.B. SINHA, J.] 1139
common intention at the spot to murder the deceased. Some A
incident might have taken place and he might have formed a
common intention to teach a lesson to the deceased. He might
be guilty for commission of offence punishable under Section
323 of the IPC and not for commission of offence punishable
under Section 302 read with Section 34 of the IPC. He is
8
sentenced to the period already undergone.
The appeal is allowed accordingly. The appellant is on bail.
The bail bonds sha~I stand discharged.
RP. Appeal partly allowed.
- ...
\
..
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