PARASA RAJU MANIKYALA RAO AND ANR.versusSTATE OF A.P.

A              PARASA RAJU MANIKYALA RAO AND ANR.
                                v.
                           STATE OF A.P.

                               OCTOBER 15, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Penal Code, 1860 :

         Section 34-Scope and ambit of-Common intention-Acts done in
C furtherance of-Held : The essence of liability under S. 34 is existence of
    common intention and participation in a criminal act-Participation need
    not in all cases be by physicalpresence.

         Practice and Procedure :

D         Case law-Decided cases-Precedent-Held : How a person reacts
    in a given case may be the determinative factor so far as that case is
    concerned-Application ofone decided case to another case notwithstanding
    the dissimilarity in effect and distinctive features is legally impermissible.

E        Words and Phrases :

         "Common intention"-Meaning of-In the context of S.34 of the
    Penal Code, 1860.

F       . According to the prosecution, three persons including appellants
    Nos. 2 and 3 had caused homicidal death of one person. All .the accused
    persons and the deceased who were closely related were in hostile terms
    because of property dispute. The trial court had found that the
    evidence was as cogent against appellants Nos. 2 and 3 as it was against
    appellant No. I but convicted only appellant No. I and acquitted
G   appellants Nos. 2 and 3 by giving them benefit of doubt based on the
    facts of a different case. However, the High Court convicted appellants
    Nos. 2 and 3 under Section 302 read with Section 34 of the PEmal Code,
    1860. Hence the appeal.

H        On behalf of appellants Nos. 2 and 3, it was contended that Section
                                         756
                 PARAS RAJU MANIKY ALA RAO v. ST ATE                   757

    34 had no application because it had not been established by evidence A
"   that there was any common intention to commit murder.

         Dismissing the appeal, the Court

         HELD : 1.1. How a person reacts in a given case may be the B
    determinative factor so far as that case is concerned. That cannot be
    applied as a rule of universal application to all cases irrespective of the
    fact situation in that particular case. There can be no empirical
    formula as to how one reacts in a given situation and 'its effect and
    impact. It would almost like trying to put a square peg on a round hole. C
    To imprint fact situation of one decided case upon another or
    observations made in the peculiar facts of a given case to any or every
    other case notwithstanding disimilarity in effect and the distinctive
    features is legally impermissible. [763-A-C]

         1.2. Each case, more particularly a criminal case depends on its D
    own facts and a close similarity between one case and another is not
    enough to warrant like treatment because a significant detail may alter
    the entire aspect. In deciding such cases, one should avoid the temptation
    to decide cases by matching the colour of one case against the colour
    of another. To decide, therefore, on which side of the line a case falls, E
    the broad resemblance to another case is not at all decisive.The vague
    and cryptic conclusion arrived at by the trial court to treat the cases
    of A-2 and A-3 differently from the manner it dealt with that of A-1,
    despite its very observation that the evidence was as cogent agdinst
    them too as it was against A-1 lack a judicious approach and F
    determination and, therefore, rightly interfered with by the High
    Court. [763-F-H]

         2.1. Courts cannot distinguish between co-conspirators, nor can
    they inquire, even if it were possible as to the part taken by each in
    the crime. Where parties go with a common purpose to execute a G
    common object each and every person becomes responsible for the act
    of each and every other in execution and furtherance of their common
    purpose; as the purpose is common, so must be the responsibility. All
    are guilty of the principal offence, not of abetment only. In combination
    of this kind, a mortal stroke, through given by one member of the H
    758                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A party, is deemed in the eyes of law to have been given by every
    individual present and abetting. But .a party not cognizant .of the
    intention of his companion to commit murder is not liable, though he
    has joined his companion to do an unlawful act. Leading feature of
    Section 34 of the Penal Code, 1860 is the element of participation in
B   action. The essence of liability under this Section is the existence of a
    common intention animating the offenders and the participation in a
    criminal act in furtherance of the common intention. The c!ssence is
    simultaneous consensus of the minds of persons participating in the
    criminal action to bring about a particular result. [764-B-.E:)
c         RamaswamyAyyangarv. State o/Tami/ Nadu, AIR (1976) SC.2027,
    relied on.

          2.2. The participation need not in all cases be by physical presence.
D In offences involving physical violence, normally presence at the scene of
    offence may be necessary, but such is not the case in_ respect of .other
    offences when the offence consists of diverse acts, which may be done at
    different times and places. The physical presence at the scene of offence
    of the offender sought to be rendered liable under Section 34 is not one
    of the conditions of its applicability in every case. Before a man can be
E   held liable for acts done by another, under the povisions of this Section,
    it must be established that (i) there was common intention in the sense of
    a pre-arranged plan between the two, and (ii) the person soug;ht to be so
    held liable had participated in some manner in the act constituting the
    offence. Unless common intention and participation are bot:h present,
F   Section 34 cannot apply. [764-E-G)

        3.1. ·~common intention" implies pre-arranged plan and acting in
 · concert pursuant to the pre-arranged plan. Under Section 34, a pre-
   conc~rt in the sense of a distinct previous plan is not necessary to be
G proved. The common intention to bring about'a·particular result may
   well develop on the spot as between a number of ·persons, with
   reference to the facts of the case and circumstances of the~ situation.
   Though common intention may develop on the spot, it must, however,
   be anterior in point of time to the commission of offence showing a pre-
H arranged plan and prior concert. [764-H, 765-A-B)
             PARAS RAJU MANIKYALA RAO v. STATE                     759

      Krishna Govind Patil v. State of Maharashtra, AIR (1936) SC 1413, A
relied on.

      3.2. Care must be taken not to confuse same or similar intention
with common intention; the partition which divides their bonds is often
very thin, nevertheless the distinction is real and substantial, and if B
overlooked will result in miscarriage of justice. To constitute common
intention, it is necessary that intention of each one of them be known
to the rest of them and shared by them. Undoubtedly, it is a difficult
thing to prove even the intention of an individual and, therefore, it is
all the more difficult to show the common intention of a group of C
persons. But however, difficult may be the task, the prosecution must
lead evidence of facts, circumstances and conduct of the accused from
which their common intention can be safely gathered. [765-C-D]

     Amrit Singh v. State of Punjab, (1972) Crl. L.J. 465, relied on.
                                                                         D
      4. The totality of the circumstances must be taken into consideration
in arriving at a conclusion whether the accused had a common intention
to commit an offence for which they can be convicted. The facts and
circumstances of cases vary and each case has to be decided keeping in
view the facts involved. Whether an act is in furtherance of the common E
intention in an incident of fact and not of law. [765-E-F]

     Magsogdan v. State of U.P., AIR (1988) SC 126, relied on.

     5. Mere presence of a person at the time of commission of an F
offence by his confederates is not, in itself sufficient to bring his case
within the purview of Section 34, unless community of designs is
proved against him. (765-G-H]

     Ma/khan v. State of U.P., AIR (1975) SC 12, relied on.
                                                                         G
    Bhaba Nanda Barma v. State of Assam, AIR (1977) SC 2252 and
Shankarlal Kacharbhai v. State ofGujarat, AIR (1963) SC 1260, referred
to.

     Russell on Crime 12th Edn. Vol. I pp. 487, referred to.             H
    760                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A         6. Having regard to the nature of disputes between the two
    families of the accused and the victi.m, the happening of events
    immediately before the incident in question, the role found to have
    been played by them and the uttertmces said to have been made during
    the course of the assau·lt are sufficient to provide a safe and sound basis
B   for an inevitable inference of the existence of common intention in this
    case.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No ..
    49 of 2003.

C       From the Judgment and Order dated 6.6.2002 of the Andhra Pradesh
    High Court in Crl. A No. 929 of 2001.

        M.N. Rao, Ms. Promila, A.P. Jyothish, Ms. Deepthi and Ms. Tameen
    Hashmi for the Appellants.
D
          Ms. T. Anamika and Guntur Prabhakar for the Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. : Three persons including present appellants,
E   who were accused nos. 2 and 3 faced trial by learned Sessions Judge,
    Krishna Division at Machilipatnam for allegedly having caused homicidal
    death of. one Parasachinna Ramababu (hereinafter referred to as 'the
    deceased'). All the accused persons and the deceased who were Closely
    related were in hostile terms on account of property dispute. The
F   prosecution claimed that the appellants snuffed at deceased's life.

          Accusations while led to trial of the accused persons are its follows:

          There was enmity between the accused and the deceased. Though
    elder members of the community tried to settle the dispute there was no
G   permanent solution. On 16.8.1997 accused Parasa Satyanarayana (A-1)
    removed the stones at the boundary of the disputed land. Parasa Mohan
    Rao (PW-I) and his sons visited the place and chastised the accused and
    their father for their undesirable behaviour. This led to further animosity.
    On 19.8.1997, the fateful day, three accused per~ons along with their father
H   came to the house of PWl and picked up quarrel. A-1 tried to hack PWl
      PARAS RAJU MANIKYALA RAO v. STATE [PASAYAT, J.]                  761
with a knife. But he warded off the stroke with the stick. Parasa A
Ghaneswara Rao and Parasa Venkateswara Rao and 0 Gitchaiah protested
and questioned the accused persons about their behaviour. Accused
persons left the place. Subsequently, at about 10.45 a.m. deceased was
returning to his house. As he reached near a shopping complex, all the
accused persons in furtherance of their common intention murdered the B
deceased. Parasa Raja Manikyala Rao-appellant no. I (A-2) caught his right
hand and Parasa Raja Govind Rajulu-appellant no.2 (A-3) caught his left
hand. The deceased was prnctically immobilized. Taking advantage of
this, Parasa Satyanarayana (A-1) gave various blows on the neck, back
and the abdomen with the knife in a gruesome manner and even separated C
his head from the body. After doing so, A-1 carried the severed head and
threw it at some distance. The ghastly attack was witnessed by Parasa
Mohana Rao (PW-I), Parasa Veeramma (PW-2), Parasa Yesoda Rao (PW-
3) and Parasa Ganeswara Rao (PW-4). Information was lodged at the police
station immediately. Investigation was undertaken and subsequently
accused persons were arrested. On completion of investigation, charge D
sheet was placed. While A-1 was charged with commission of offence
punishable under Section 302 of the Indian Penal Code 1860 (for short 'the
IPC') other accused persons were charged for commission of offence
punishable under Section 302 read with Section 34 IPC. 13 witnesses were
examined to further the prosecution version. Accused persons pleaded E
innocence and claimed trial. On consideration of the evidence of the
witnesses the Trial Court found that A-1 was guilty of offence punishable
under Section 302 IPC, but found the present appellants to be not guilty
by giving benefit of doubt. Matter was carried by the State in appeal
before the High Court which by the impugned judgment found them guilty. F
The High Court held that they were guilty of offence punishable under
Section 302 read with Section 34 IPC and each one was to undergo life
imprisonment. The appeal filed by A- l was dismissed.

     It is submitted that A- I has not preferred any appeal, but present
appellants have questioned the reversal of their acquittal to conviction by G
the High Court.

     Learned senior counsel appearing for the appellants submitted that
there are many significant improvements made by PWs I and 2. Before
the police they did not say to be waiting outside their house, while in court H
    762                 SUPREME COURT REPORTS[2003] SUPP. 4 S.C.R.

A · they said so. It is highly improbable that four persons saw the attack but
    did not even try to protect or save the deceased. The High Court has failed
    to notice that the witnesses were. highly interested .. PWs 3 and 4 are not
    'independent witnesses ·and ·PWs I: to 2 .were their supporters in their pub Iic
    life activities. It-is improbable that present PW! would have alone gone
B   to·the police station, ·after;having seen his son murdered. All this goes to
    show that because of the enmity with the acc;:used persons,.they were falsely
    implicated so that none of the male· members could be available to run or
    take care,ofthe family. Even though A-I has not questioned his conviction,
    the totality of evidence shows that effort was made to frame all the male
    members of the family. In any event, Section 34 has no application because
C    it has not been established by evidence that there was any intention to
     commit murder.

           In response, learned counsel for the respondent-State submitted that
    right from the beginning when the first information report was lodged, the
D   definite roles played by present appellants was described, the overt acts and
    the instigations as well as exhortations done by them were clearly
    mentioned. The first information report was lodged immediately and, ·
    therefore, case of any false implication after deliberation as pleaded by the
    appellants does not arise. The evidence of eyewitnesses PWs 1 to 4 clearly
E   established the accusations. Evidence of PWl shows that after the
    first blow, these accused continued to restrain movement of the victim and.
    that continued when blows were inflicted on different parts of his body.
    Names of all accused persons were also mentioned in the first information
    report.

F        At the outset, we think it proper to take note of what weighed with
    the Trial Court to direct acquittal of present appellants. In para 39 of the
    judgment it was noted as follows:

                    "39. Though all the other evidence even as against A-2 and
G             A-3 was as nearly cogerit as the one against A-1, the improbability
              of their participation became one of the two plausible views in the
              light of the last mentioned four rulings of the Hon'ble Supreme
              Court. This gives rise to a doubt in so far as A-2 and A-3 are
              concerned. Naturally the benefit of such a doubt must go to
H             them."
        PARAS RAJU MANIKYALA RAO v. STATE [PASAYAT, J.]                    763

       This is a strange way of dealing with the accusations and c;onsideration A
  of the guilt or otherwise of the accused. How a person reacts in a given
  case may be the determinative factor so far as that case is concerned. That
  cannot be applied as a rule of universal application to all cases irrespective
  of the fact situation in that particular case. There can be no empirical
  formula as to how one reacts in a given situation and its effect and impact. B
  It would be almost like trying to put a square peg on a round hole. To
  imprint fact situation of one decided case upon another or observations
  made in the peculiar facts of a given case to any or every other case
  notwithstanding dissimilarity in eff~ct and the distinctive features is legally
  impermissible.                                                                  C

       Coming to the question whether the evidence is reliable, the High
  Court has analysed the evidence in great detail considering the fact that
  PWs 1 and 2 were parents of the deceased and there was admitted hostility
• between the accused and the deceased's family. It has also analysed the D
  evidence of PWs 3 and 4 to conclude that the accusations have been
  established. The so-called omissions which have been tried to be
  magnified by learned counsel for the appellant, do not amount to any
  contradiction or any improvement and at any rate such variation as to
  undermine the chore of the prosecution case or its basic and essential
  ~~                                                                             E

       Each case, more particularly a criminal case depends on its own facts
  and a close similarity between one case and another is not enough to
  warrant like treatment because a significant detail may alter the entire
  aspect. In deciding such cases, one should avoid the temptation to decide F
  cases (as said by Cordozo) by matching the colour of one case against the
  colour of another. To decide therefore on which side of the line a case falls,
  the broad resemblance to another case is not at all decisive. The -vague and
  cryptic conclusion arrived at by the trial Court to treat their case differently
  from the manner it dealt with that of A-1, despite its very observation that G
  the evidence was as cogent against them too as it was against A-1 lack a
  judicious ~pproach and determination and therefore rightly :interfered with
  by the High Court after an objective appreciation of the evidence
  independently and in the light of the relevant and guiding principles of law
  governing such determination.                                                    H
    764                 SUPREME COURT REPORTS [2003) SUPP. 4 S.C.R.

A        The other point which was emphasized relates to applicability of
    Section 34 IPC.

          The Section really means that if t';VO or more persons intentionally
  do a common thing jointly, it is just the same as if each of them had done
B it individually. It is a well recognized canon of cr_iminal jurisprudence that
  the Courts cannot distinguish between co-conspirators, nor can they
  inquire, even if it were possible as to the part taken by each in the crime.
  Where parties go with a common purpose to execute a common object each
  and every person becomes responsible for the act of each and every other
  in execution and furtherance of their common purpose; as the purpose is
C common, so must be the responsibility. All are guilty of the principal
  offence, not ofabetment only. In combination of this kind a mortal stroke,
  though given by one of the party, is deemed in the eye of law to have been
  given by every individual present and abetting. But a party not cognizant
  of the intention of his companion to commit murder is not liable, though
D he has joined his companion to do an unlawful act. Leading feature of this
  Section is the element of participation in action. The essence of liability
  under this Se'ction is the existence of a common intention anitu'ating the
  offenders and the participation in a criminal act in furtherance of the
  common intention. The essence is simultaneous consensus of the minds of
E persons piliticipating in the criminal action to bring about a particular result
  (See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu, AIR (1976)
  SC 2027). The participation need not in all cases be by physical presence.
  In offences involving physical violence, normally presence at the scene of
  offence may be necessary, but such is not the case in respect of other
  offences when the offence consists of diverse acts which may be done at
F different times and places. The physical presence at the scene of offence
  of the offender sought to be rendered liable under this Section is not one
  of the conditions of its applicability in every case. Before a man can be
  held liable for acts done by another, under the provisions of this Section,
  it tr..ust be established that (i) there was common intention in the sense of
G a pre-arranged plan between the two, and (ii) the person sought to be so
  held liable had participated in some manner in the act constituting the
  offence. Unless common intention and participation are both present, this
  Section cannot apply.

H         'Common intention' implies pre-arranged plan and acting in concert
      PARAS RAJU MANIKYALA RAO v. STATE [PASAYAT, J.]                  765

pursuant to the pre-arranged plan. Under this Section a pre-concert in the A
sense of a distinct previous plan is not necessary to be proved. The common
intention to bring about a particular result may well develop on the spot
as between a number of persons, with reference to the facts of the case and
circumstances of the situation. Though common intention may develop on
the spot, it must, however, be anterior in point of time to the commission B
of offence showing a pre-arranged plan and prior concert. (See Krishna
Govind Patil v. State of Maharashtra, AIR (1963) SC 1413. In Amrit Singh
and Ors. v. State of Punjab, ( 1972) Crl. L.J. 465 SC) it has been held that
common intention pre-supposes prior concert. Care must be taken not to
confuse same or similar intention with common intention; the partition. C
which divides their bonds is often very thin, nevertheless the distinction
is real and substantial, and if overlooked will result in miscarriage of
justice. To constitute common intention, it is necessary that inte·ntion of
each one of them be known to the rest of them and shared by them.
Undoubtedly, it is a difficult thing to prove even the intention of an
individual and, therefore, it is all the more difficult to show the common D
intention of a group of persons. But however difficult may be the task, the
prosecution must lead evidence of facts, circumstances and conduct of the
accused from which their common intention can be safely gathered. In
Magsogdan and Ors. v. State of U. P., AIR ( 1988) SC 126 it was observed
that prosecution must lead evidence from which the common intention of E
the accused can be safely gathered. In most cases it has to be inferred from
the act, conduct or other relevant circumstances of the case in hand. The
totality of the circumstances must be taken into consideration in arriving
at a conclusion whether the accused had a common intention to commit
offence for which they can be convicted. The facts and circumstances of F
cases vary and each case has to be decided keeping in view of the facts
involved. Whether an act is in furtherance of the common intention is an
incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The
State ofAssam, AIR (1977) SC 2252 it was observed that prosecution must
prove facts to justify an inference that all participants of the acts had shared
a common intention to commit the criminal act which was finally G
committed by one or more of the participants. Mere presence of a person
 at the time of commission of an offence by his confederates is not, in itself
 sufficient to bring his case within the purview of Section 34, unless
 community of designs is proved against him (See Ma/khan and Anr. v.
 State of Uttar Pradesh, AIR (1975) SC 12). In the Oxford English H
    766                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A Dictionary, the word "furtherance" is defined as 'action of helping
    forward'. Adopting this definition, Russel says that "it indicates some kind
    of aid or assistance- producing an effect in future" and. adds that any act
    may be regarded as done in furtherance of the ultimate felony ifit is a step
    intentionally taken, for the purpose of "effecting that felony. (Russel on
B   Crime 12th Edn. Vol. I pp. 487 and 488). In Shankarlal Kacharabhai and
    Ors. v. The State ofGujarat, AIR ( 1963) SC 1260 this Court has interpreted
    the word "furtherance" as 'advancement of promotion'.

        In view of the cogent, credible and trustworthy evidence of PWs I
   to 4 about overt acts and the instigations, Section 34 has been rightly
C applied by the High Court. Having regard to the nature of disputes b<!tween
   the two families of the accused and victim, the happening of events
   immediately before the incident in question, the role found to have been
   played by them and the utterances said to have been made during the course
   of the assault are sufficient to provide a safe and sound basis for an
D' inevitable-inference of the existence of common intention in this case.
   Judgment of the High Court consequently does not need any interference
   and the appeal is dismissed.

    v.s.s.                                                  Appeal dismissed.