KARNAM RAM NARSAIAH AND ORS.versusSTATE OF ANDHRA PRADESH

                    KARNAM RAM NARSAIAH AND ORS.                             A
                                       v.
                       STATE OF ANDHRA PRADESH

                                AUGUST 5, 2004

           (K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]
                                                                             B

           Penal Code, 1860 :

          S. 302 r/w s. 34-0ut of 17 persons prosecuted, 5 convicted by trial
     court-High Court convicting only three of them-Conviction challenged C
--   on the ground that there was no charge against them for offence u/s 302
     rlw s.34-Held, there is no error or illegality in conviction of appellants
     under s.302 rlw s.34-/t is proved that appellants attacked the deceased
     with a common intention.
                                                                             D
           Malhu Yadav & Ors. v. State of Bihar, (2002) 5 SCC 724, relied
     on.

          Ninaji Raoji Boudha & Anr. v. State ofMaharashtra, [1976] 2 SCC
     117 and Ram Lal v. Delhi Administration, (1973] 3 SCC 466, held
     inapplicable.                                                        E
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
     1467 of 2003.

         From the Judgment and Order dated 28.1.2003 of the Andhra Pradesh F
     High Court in Cr!. A. No. 1080 of 2001.

           Mrs. D. Bharathi Reddy for the Appellants.

           Mohanprasad Meharia for the Respondent.
                                                                             G
           The following Order of the Court was delivered :

          Seventeen accused persons were tried by the Second Addi. Sessions
     Judge, Nalgonda in the State of Andhra Pradesh for various offences under
     Sections 148 and 302 read with Sections 34, 307 and 324 read with Section H
                                       361
                                •
    362                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A 149 1.P.C. of the Indian Penal Code (for short 'the IPC') and Sections 3
  and 5 of the Explosive Substances Act. The Sessions Judge convicted five
  of the accused persons, namely Al to A4 and A9. These convicted persons
  preferred an appeal before the High Court and the High Court was pleased
  to acquit A2 and A9 and the I st, 3rd and 4th accused W.!re convicted for
B the offence of murder punishable under Section 302 read with Section 34
  of the !PC. Their convictions and sentences are challenged before us.

        The incident happened on 21.11.1995 at about 6.30 p.m. The
  deceased Sunkari Lingaiah and the accused persons were residents of
C Bakkaiahgudem village. All the accused persons belonged to one political
  party and the deceased belonged to another political party. It seems that
  there was some election to the post of office bearers of a local co-operative
  society and the disputes arose on account of this. The deceased, along with
  PWs I, 2 and 3 were proceeding to their agricultural field for irrigating
  the crop. The accused were waiting rtear a temple and when PWs I and
D 2 reached near the accused the first accused hurled a bomb and it exploded.
  Thereafter Al to A4, who were armed with sticks started beating the
  deceased. It was alleged that A2 beat the deceased on his left eye, A3 beat
  on the back and left side of the chest and A2 beat with a stone on the head
  and A4 also beat the deceased. PWs 3 to 5 tried to rescue PWs I and 3
E and the deceased but they were also beaten. Hearing the noises, the mother
  of the deceased, wife and sister and some others came to the scene of
  occurrence and then all the accused left the scene. PW I at about 9.45 a.m.
  went to the Nereducherla Police Station and gave statement before PW 15,
  the head constable. The injured while being taken to the hospital died on
F the way.

          PW 16, Circle Inspector of Police Huzumagar conducted the inves-
    tigation and he filed a report against Al to A2. PWs I to 16 were examined
    by the prosecution and Exs. Pl to P 32 and Nos. I to 15 were got marked.
    However, Ex. PW! was not found guilty.
G
         The Sessions Judge partly accepted the prosecution case and held that
    Al to A4 and A9 were guilty. The High Court in the appeal held that Al
    to A3 and A4 were responsible for the death of the deceased Sunkari
    Lingaiah. They were convicted for the offences under Section 302 read
H   with Section 34 of the !PC.
           KARNAM RAM NARSAIAH v. STATE OF A.P.                      363

      The learned counsel for the appellant contended before us that the A
High Court seriously flawed in convicting these appellants for the offences
under Section 302 read with Section 34 as there was no charge filed against
the accused appellants for the offences under Section 302 read with Section
34. The counsel for the appellant further contended that the charges against
the appellants were only for the offences under Section 302 simpliciter and B
counsel further submits that the High Court should not have convicted the
appellants under the above sections. It was argued that it is not specific
as to who caused the fatal injuries to the deceased anc', therefore, the
conviction should have been for a lesser offence.

      Our attention was drawn to the medical evidence placed on the record. C
The appellant's counsel points out that the deceased had as many as 10
injuries and the doctor who conducted the post-mortem had opined that the
injury No. 1 alone was fatal injury and the injury No. 10 was the
corresponding internal injury. Injury No. 1 was a laceration of 5" x 2" x
1 W' over occipital region and its consequential internal injury shows that D
there was a fracture to occipital temporal and frontal bones and brain
tissues were seen at occipital region. Extra and Intra dural haemotoma
were present. It is also pertinent to note that injury No. 2 was a contusion
of 3" x l 1/, " over the left eye and the third injury was swelling of 3"x
2" over left frontal region and the fourth injury was also of a contusion E
of 2" x 2" over left temporal region. Altogether there wrere four injuries
on the head of the deceased. The counsel for the appellant submitted that
there is no evidence to show as to who caused the fatal injury or how the
High Court has convicted the appellants for the offence under Section 302
read with Section 34 and this, according to the counsel for the appellant F
was incorrect as there was no charge against the appellant under Section
302 read with Section 34. We are unable to accept the plea raised by the
appellants' counsel.

      The evidence on record shows that all the appellants were waiting for
the deceased to come to the plea of occurrence and all the eye-witnesses G
depose that A I to A2 and A4 ceased. The counsel for the appellant sought
to place reliance on [1976] 2 SCC p.117, Ninaji Raoji Boudha & Anr. v.
State of Maharashtra. That is a case where there was only one injury on
the body of the deceased and there was no evidence as to who caused the
injury, the Court held that the evidence on record did not show that the H
    364                 SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R.

A appellant therein had the common intention of beating the deceased. The
  prosecution allegation was that two persons had caused the injury to the
  deceased and one was acquitted by the trial court and there was no concrete
  evidence as to which of them caused the fatal injury. It was under those
  circumstances the conviction of the appellants was altered from Section
B 302 read with Section 34 to Section 325 read with Section 34 !PC. This
  decision does not render any assistance to the appellants. Another decision
  relied by the learned counsel for the appellants is reported in (1973) 3 sec
  p. 466 Ram Lal v. Delhi Administration. In this case there was only one
  appellant who was convicted by the High Court for the offence under
C Section 302. The evidence disclosed that the deceased was given two lathi
  blows and there was no evidence to show as to which of these two was
  given by the appellant. This Court was of the view that the appellant might
  have given the fatal blow or the other assailant might have given the blow.
  Under those circumstances, the conviction of the appellant was altered
  from Section 302 to Section 325 of the !PC.
D
           In the present case it is proved that A I, A2 and A4 caused the injuries
    to the deceased on the head. The appellants were waiting for the assailants
    to come and they conjointly attacked the deceased with a common intention
    and it is spelt out from the facts and circumstances of the case. This Court
E   i!1 (2002] 5 SCC p. 724 in Malhu Yadav & Ors. v. State of Bihar, has held
    that in the absence of a charge under Section 34 the accused persons could
    be convicted for the offence under Section 302 read with Section 34
    provided the facts and circumstances show that there existed common
    intention and the accused committed the act with such intention.

F         In the result, we do not find any error or illegality in the conviction
    of the appellants under Section 302 read with Section 34. Even otherwise
    also there was no specific charge against them for the offence under Section
    302 read with Section 34. The appeal is accordingly dismissed.

    R.P.                                                       Appeal dismissed.