Supreme Court of India
Y. VENKAIAHversusSTATE OF A.P.
- Citation
- 2009 INSC 294
- Decided
- 3 March 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court upheld the convictions, holding that the prosecution proved a common intention and that the High Court’s findings were not perverse.
Summary
The appellants, who were public servants in the Andhra Pradesh Social Welfare Department, were accused of conspiring to withdraw government scholarship funds using fictitious student names, thereby cheating and misappropriating public money. They were charged under IPC sections 120‑B, 420, 468, 477‑A and Section 34 (common intention), as well as Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947. The trial court convicted four of the accused; the High Court affirmed those convictions despite one co‑accused being acquitted on a separate charge. The Supreme Court examined whether the High Court erred in its appreciation of evidence, whether the defence of medical leave was viable, and whether a co‑accused’s acquittal could absolve the others under s.34 IPC. Finding that the prosecution had proved a common intention and that the High Court’s findings were not perverse, the Court upheld the convictions and dismissed the appeals under Article 136 of the Constitution.
Issues considered
- The adequacy of the evidence to establish a common intention under s.34 IPC among the accused.
- Whether the acquittal of one co‑accused extinguishes the liability of the remaining accused under s.34 IPC.
- The correctness of the High Court’s appreciation of evidence and its conclusion that the defence of medical leave was untenable.
- Whether the Supreme Court may interfere with the High Court’s findings under Article 136.
Legislation cited
- Constitution of Indias. Article 136
- Indian Penal Code, 1860s. 120-B, s. 34, s. 420, s. 468, s. 477-A
- Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)
Subjects
common intentions.34 IPCconspiracyprevention of corruptionscholarship fraudpublic servantjoint liabilityArticle 136appellate review
Judgment
(2009) 3 S.C.R. 915
Y. VENKAIAH A
v.
STATE OF A.P.
(Criminal Appeal No.1279 of 2004)
MARCH 3, 2009
B
[S.B. SINHA, ASOK KUMAR GANGUL Y AND R.M.
LODHA, JJ.]
Penal Code, 1860:
c
ss. 120-8 and 420, 468, 477-A rlw s.34 /PC, ss.5(1)(d),
and 5(2) of Prevention of Corruption Act rlw s.34 /PC -
Accused withdrawing scholarship money in fictitious names
of students - Conviction by trial court - Affirmed by High Court
- Held: High Court has closely analysed the evidence of 0
witnesses and recorded a finding that prosecution has been
able to prove its case - There is no perversity in the finding
nor any wrong conclusion has been reached by it- Conviction
and sentences upheld - Prevention of Corruption Act, 1947
- s.5(1)(d) rlw s.5(2) - Constitution of India, 1950 - Article E
136.
s. 34 - Common intention - Five accused prosecuted for
commission of offences punishable ulss 120-8 and 420,
468,477-A /PC and s.5(1)(d) r/w s.5(2) of Prevention of
Corruption Act with the aid of s.34 /PC - One of them acquitted F
- HELD: 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 - On facts, common intention of convicts and
their prior concert is amply proved.
G
The appellants (Accused 1 to 4) in Crl. Appeal Nos.
• 1280/2004, 1282/2004 and 1283/2004 were prosecuted for
commission of offences punishable u/s 120-B, ss.
420,468,477-A r/w s.34 IPC ss.5(1)(d) and 5(2) of the
915 H
916 SUPREME COURT REPORTS [2009) 3 S.C.R.
A Prevention of Corruption Act, 1947 r/w s.34 IPC, on the
allegations that they withdrew scholarship amounts from
various educational institutions in fictitious names of
students and thus cheated the Government and
misappropriated the government funds. The trial court
B found the accusations proved against A-1, A-3 and A-4
in respect of all the transactions and against A-2 in
respect of one transaction as he was stated to have been •
on leave when the other transactions took place. It
accordingly convicted A-1 to A-4 of the charges and
c sentenced A-1, A-3 and A-4 to rigorous imprisonment for
three years and A-2 to rigorous imprisonment for one and
half years. Accused A-1 to A-5 in Crl. Appeal Nos. 1279/
2004 and 1281/2004 were prosecuted for similar offences
for withdrawing scholarship amounts in fictitious names
of stud-ents of a Junior College for Girls. The trial court
D
found the accusations proved against A-2 to A-5 and
convicted and sentenced them to rigorous imprisonment
for two years, but acquitted A-2 of all the charges. The
High Court having dismissed appeals of all the convicts,
they filed the appeals.
E
Dismissing the appeals, the Court
HELD: 1.1. On an analysis of evidence of the
witnesses made by the High Court, it transpires that the
F prosecution has been able to prove its case of conspiracy
amongst the accused persons in withdrawing the money
on the basis of fictitious names; thus, there has been
cheating and misappropriation of Government funds. The
High Court has very closely analysed the evidence of the
witnesses before coming to a finding that the prosecution
G
has been able to prove its case. [Para 18 and 21] [921-G-
H; 922-A-B; 924-H; 925-A]
2.1. In a case where s.34 IPC is applied, the liability
of the accused must be considered through the prism of
H that section if the charge of common intent against the
Y. VENKAIAH v. STATE OF A.P. 917
,J .. accused stands proved. In the instant case, the charge A
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. [Para 23] [925-C-D]
B
Mohan Singh and another Vs. State of Punjab AIR 1963
SC 174; Suresh and Another Vs. State of U.P. (2001) 3 SCC
673; Lal/an Rai and Ors. Vs. State of Bihar (2003) 1 SCC
268; Saravanan and Anr. Vs. State of Pondicherry (2004) 13
SCC 238 and Rotash Vs. State of Rajasthan (2006) 12 SCC c
64, relied on.
"The Queen Vs. Gorachand Gope and others" Bengal
Law Reports, Supplemental Volume, 443; Barendra Kumar
Ghosh Vs. King Emperor AIR 1925 PC 1 and Emperor V.
· Nirmal Kanta Roy, ILR 1914 (Volume 41) Cal. 1072, referred D
to.
2.2. Applying the principles laid down by the Supreme
Court to the incriminating facts and circumstances of the
instant case concurrently noted and discussed by the E
trial Court and the High Court, 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. In the facts and
F
circumstances of the case, the common intention of the
accused and their prior concert is amply proved. [Para
35 and 38] [928-F-G; 929-F]
2.3. In a case like the one in hand, even if one of the
co-accused is acquitted, that does not by itself absolve G
the 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 u/s 34, if there is
evidence against them of committing the offence in H
918 SUPREME COURT REPORTS [2009] 3 S.C.R.
A "furtherance of the common intention". [Para 39] [929-G-
H]
3. 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
8
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, or, on proved facts, wrong interference of law
has been reached by the High Court. In the instant case,
C there is no perversity in the finding of the High Court nor
any wrong conclusion has been reached by it on proved
facts. There is no merit in the appeals. [Para 41, 43 and
44] [936-B-D; F, G]
D 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
and Radha Mohan Singh Alias Lal Saheb and Others Vs.
E State of U.P. (2006) 2 SCC 450, relied on.
Case Law Reference:
Bengal Law Reports,
Supplemental Volume, 443 referred to para 26
F
AIR 1925 PC 1 referred to para 27
ILR 1914 (Volume 41) Cal. 1072 referred to para 30
AIR 1963 SC 174 relied on para 31
G
(2001) 3 sec 673 relied on para 32
•
(2003) 1 sec 268 relied on para 34
(2004) 13 sec 238 relied on para 36
H (2006) 12 sec 64 relied on para 37
Y. VENKAIAH v. STATE OF A.P. 919
~·
(1975) 4 sec 649 relied on para 41 A
(1976) 4 sec 158 relied on para 41
(2000) 1 sec 358 relied on para 41
(2002) 9 sec 208 relied on para 41
8
(2006) 2 sec 450 relied on para 42
" CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.1279 of 2004.
From the Judgment and Order dated 31.10.03 of the High c
Court of Judicature Andhra Pradesh at Hyderabad in Criminal
Appeal No. 1188 of 1997.
WITH
D
Criminal Appeal Nos. 1280/2004, 1281/2004, 1282/2004 and
1283/2004.
G.V. Chandrasekhar, T.N. Rao, Manjeet Kirpal, Miten
Mahapatra, K. Maruthi, K. Radha and Anjani Aiyagari for the
Appellants. E
I. Venkatanarayana, Altaf Ftahima and D. Bharathi Reddy
for the Respondent.
The Judgment of the Court was delivered by
F
ASOK KUMAR GANG ULY, J.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 G
by the Andhra Pradesh High Court whereby the Hon'ble High
Court while affirming the judgment dated 11.10.1999 in C.C.
Nci. 6 of 1999 passed by the Addi. Special Judge of SPE &
ACB Cases, Hyderabad dismissed the appeals·.
H
920 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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).
B
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.
c
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 Kalasala, Nalgonda and Government Junior College for
D 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
E 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.
F 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.
G 7. On 11.10.1999, the learned Addi. Spl. Judge for the
SPE & ACB Cases, Hyderabad came to the 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
H them for misappropriation of Rs.4,57,050/- vide Bill nos.
Y. VENKAIAH v. STATE OF AP . 921
• [ASOK KUMAR GANGULY, J.)
461,506,218 and 503. A
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 B
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 c
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 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 D
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
E
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 F
dated 30.9.1997 in C.C. No.5/1991 passed by the Addi.
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 for the alleged G
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 H
922 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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 Addi. Special Judge for
SPE & ACS Cases, Hyderabad held that A-1 has not
8
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.
c
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-
0 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.
E 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 1826of1999, it appears
F 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
judgments it appears that 8 witnesses were examined by the
prosecution.
G
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
H persons in drawing the money twice over in respect of students
Y, VENKAIAH v. STATE OF A.P. 923
[ASOK KUMAR GANGULY, J.]
of Geeta Vignana Andhra Kalasala, Nalgonda (GVA Kalasala), A
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. B
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.
19. The witnesses who were examined in connection with C
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- D
Treasury Officer in the office of OTO, 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 E
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, F
Miryalguda who used to send proposal to Social Welfare
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 G
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/ H
924 SUPREME COURT REPORTS [2009] 3 S.C.R.
A - 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
s 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 High Court made a detailed discussion
of the evidence of the witnesses before coming to the
C 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
1188of1997 also shows that eight witnesses were examined
for the prosecution. Of the witnesses who were examined, PW1
D 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
E 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 was a STO, Nalgonda, PW6 was the Senior
F Accounts Officer, AG's Office, Hyderabad. PW7 was the
Manager, SSH, Nalgonda and PW8 was the Inspector of Police,
Anti Corruption Branch, Hyderabad, Range.
-
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
H
Y. VENKAIAH v. STATE OF A.P. 925
[ASOK KUMAR GANGULY, 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.
B
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 E
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 H
926 SUPREME COURT REPORTS (2009] 3 S.C.R.
A 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.
B 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:
C " ... 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."
0 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.
E
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
F 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
Y. VENKAIAH v. STATE OF A.P. 927
[ASOK KUMAR GANGULY, J.]
,..,
for that act in the same manner as if it were done by him alone. A
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 B
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 F
....::.. 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 G
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 H
928 SUPREME COURT REPORTS [2009] 3 S.C.R.
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
Y. VENKAIAH v. STATE OF A.P. 929
[ASOK KUMAR GANGUL Y, J.]
•· in English law there is a distinction between the two types of A
., 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 B
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) D
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 E
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 F
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- G
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".
H
930 SUPREME COURT REPORTS (2009) 3 S.C.R.
A 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
B 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.
c 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).
E
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.
F 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.
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