Supreme Court of India
SRIPATHI & ORS.versusSTATE OF KARNATAKA
- Citation
- 2009 INSC 311
- Decided
- 4 March 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court upheld the conviction of Pandit under Section 304 Part II but set aside the convictions of the other three accused under Section 34 due to lack of specific evidence of common intention.
Summary
On 22 September 1992, during an altercation, Pandit (A.4) stabbed the deceased while three co‑accused (A.1 Sripathi, A.2 Mallikarjun, A.3 Sanjaya) allegedly held the victim as instructed. The trial court acquitted all, but the Karnataka High Court convicted them under Section 304 Part II read with Section 34 of the IPC, sentencing each to four years' rigorous imprisonment. The appellants challenged the High Court's findings, arguing that the ocular testimony conflicted with medical evidence and that Section 34 was inapplicable to the three co‑accused. The Supreme Court held that the eye‑witness testimony was cogent and not at variance with the medical evidence, but found the evidence insufficiently specific to establish a common intention among A.1, A.2 and A.3, thereby invalidating their convictions under Section 34. The conviction of Pandit (A.4) was upheld. Consequently, the appeal was allowed for the three co‑accused and dismissed for Pandit.
Issues considered
- Whether the ocular evidence is inconsistent with the medical evidence.
- Whether Section 34 of the IPC applies to the three co‑accused given the evidence of their participation.
- Whether the convictions of the co‑accused under Section 304 Part II read with Section 34 are sustainable.
Legislation cited
- Code of Criminal Procedure, 1973s. 378
- Indian Penal Code, 1860s. 302, s. 304(Part II), s. 34
Subjects
Section 34 IPCJoint liabilityCommon intentionCulpable homicide not amounting to murderOcular evidenceMedical evidenceConvictionAppeal
Judgment
[2009] 5 S.C.R. 309
'j
SRIPATHI & ORS. A
v.
STATE OF KARNATAKA
(Criminal Appeal No. 418 of 2002)
_\ MARCH 4, 2009
B
[DR. ARIJIT PASAYAT, HARJIT SINGH BEDI AND
ASOK KUMAR GANGULY, JJ.]
Penal Code, 1860 - s. 304 (Part II) r/w s. 34 - Deceased
succumbed to stab injuries inflicted by accused on account c
of quarrel - Co-accused had caught hold of deceased -
Conviction by High Court uls.304 (Part II) rlw s.34 -
Justification of- Held: Evidence of eye witnesses cogent and
trustworthy - Ocular evidence not at variance with medical
-7"
evidence - Conviction of main accused does not call for D
interference - However, evidence not specific as regard role
played by other accused - Conviction of other accused by
application of s. 34 not correct.
The question which arose for consideration in this E
appeal was whether the High Court was justified in·
convicting the appellants for offence punishable u/s. 304
(Part II) read with s. 34 IPC.
- -) .
Disposing of the . appeal, the Court
HELD: 1.1 As regard the plea about variance between
F
medical evidence and ocular evidence, even on an
casual reading of the evidence it cannot be said that the
ocular evidence was at variance with the medical
evidence. The High Court analyzed the medical evidence G
and the ocular evidence to conclude that the evidence of
-,I
the eye witnesses was cogent and trustworthy. On going
through the evidence it is satisfied that the conclusion of
the High Court does not suffer from any infirmity. [Paras
309 H
310 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 6 and 7) [312-A-C]
1.2. As regard the plea of applicability of s.34 IPC, the
evidence is not very specific as regards the role played
by A.1, A.2 and A.3. It is the prosecution version that A.4
8 had the knife in his pocket which he suddenly brought •.'
out and stabbed the deceased. The conviction of the
appellant nos. 1, 2 and 3 by application of s.34 IPC not
correct. However, the conviction as regard A.4 is well
founded and no interference is called for. [Paras 8 and
C 11) [312, 313-G-H; 314-A-B]
Ashok Kumar vs. State of Punjab AIR 1977 SC 109 and
Ch. Pu/la Reddy and Ors. vs. State of Andhra Pradesh AIR
1993 SC 1899, referred to.
D Case Law References:
AIR 1977 SC 109 Referred to. Para 8
AIR 1993 SC 1899 Referred to. P.ara 9
E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 418 of 2002.
From the Judgment & Order dated 30.8.2001 of the High
Court of Karnataka in Criminal Appeal No. 326/1996.
F Shanth Kr. Mahale, Harisha S.R. Hebbar and Rajesh
Mahale for the Appellant.
S.R. Hegde, A. Rohen Singh, Vikrant Yadav, Amit Kr.
G
Chawla and Nishant Mishra for the Respondents.
The Judgment of the Court was delivered by
--
DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the
appellant and learned counsel for the State.
2. Challenge in this appeal is to the judgment of the
H Division Bench of the Karnataka High Court upsetting the
SRIPATHI & ORS. v. STATE OF KARNATAKA 311
~( [DR. ARIJIT PASAYAT, J.]
judgment of acquittal recorded by learned Sessions Judge, A
l Bidar in SC No. 8/93. Each of the appellants was convicted
for offence punishable under Sec.302 read with Sec.34 of the
Indian Penal Code (in short the 'IPC').
- )
3. The prosecution version, as unfolded during the trial, is
that on 22/9/1992 at about 8.15 p.m., in the course of an
B
altercation, Pandit (A.4) inflicted a stab injury on the abdomen
of one Jagannath (hereinafter referred to as the deceased). The
other three accused persons caught hold of different parts of
the body of the deceased on being told to do so by the accused
-4
No.4 Pandit. The First Information Report was lodged at c
about 11.30 p.m. The trial Court, on consideration of the
evidence of the witnesses came to hold that the prosecution
has not been able to establish the accusations. The State
preferred an appeal after obtaining leave in terms of Sec.378
of the Code of Criminal Procedure, 1973 (in short 'the Code'). D
""
The High Court noticed that there were five eye witnesses to
the occurrence, namely, PW.1, PW.5, PW.6, PW. 7 and PW.8.
The last named witness was the widow of the deceased. The
High Court on analyzing the evidence came to hold that the
., acquittal as recorded was unsustainable and accordingly E
allowed the State's appeal and convicted each of the accused
persons in terms of Sec.304 Part II read with Sec.34 IPC.
Accordingly each of the accused was sentenced,to undergo
rigorous imprisonment for four years.
.J F
4. The primary stand of the appellant was that Sec.34 has
no application to the facts of the case. In any event the ocular
evidence is at variance with the medical evidence .
.. 5. Learned counsel for the State supported the judgment
of the High Court and submitted that though this case is one G
where Sec.302 IPC has clear application, the High court has
~~
taken a liberal view and has convicted the accused persons
under Sec.304 Part II read with Sec.34 IPC.
H
312 SUPREME COURT REPORTS (2009] 5 S.C.R.
'~
A 6. Coming to the plea about variance between medical
'
evidence and ocular evidence, it is to be noticed that even on
an casual reading of the evidence it cannot be said that the
ocular evidence was at variance with the medical evidence. The
B
High court has analyzed the medical evidence and the ocular
evidence to conclude that the evidence of the eye witnesses
PW.1, PW.5, PW.6, PW. 7 and PW.8 was cogent and
c -
trustworthy and therefore held that the trial court's conclusions
were unsustainable.
7. We have gone through the evidence and are satisfied
c that the conclusion of the High Court do not suffer from any
infirmity.
8. Coming to the plea regarding the applicability of Sec.34
IPC, we find that the evidence is not very specific as regards
D the role played by A.1, A.2 and A.3. It is the prosecution version
that A.4 had the knife in his pocket which he suddenly brought
. -
out and stabbed the deceased.
9. Section 34 has been enacted on the principle of joint
liability in the commission of a criminal act. The Section is only
E
a rule of evidence and does not create a substantive offence. r
The distinctive feature of the Section is the element of
participation in action. The liability of one person for an offence
committed by another in tile course of criminal act perpetrated
by several persons arises under Section 34 if such criminal act
F is done in furtherance of a common intention of the persons .
who join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such intention can
only be inferred form the circumstances appearing from the
proved facts of the case and the proved circumstances. In order
G to bring home the charge of common intention, the prosecution
has to establish by evidence, wh~her direct or circumstantial,
that there was plan or meeting of mind of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be it pre-arranged or on the spur of
H
SRIPATHI & ORS. v. STATE OF KARNATAKA 313
[DR. ARIJIT PASAYAT, J.]
~.
' moment; but it must necessarily be before the commission of A
the crime. The true contents of the Section are that if two or
more persons intentionally do an act jointly, the position in law
is just the same as if each of them has done it individually by
himself. As observed in Ashok Kumar vs. State of Punjab (AIR
1977 SC 109), the existence of a common intention amongst B
1 the participants in a crime is the essential element for
application of this Section. It is not necessary that the acts of
the several persons charged with commission of an offence
jointly must be the same or identically similar. The acts may be
different in character, but must have been actuated by one and c
the same common intention in order to attract the provision.
10. The Section does not say "the common intention of all",
nor does it say "and intention common to all". Under the
,
provisions of Section 34 the essence of the liability is to be
;/. found in the existence of a common intention animating the D
accused leading to the commission of a criminal act in
furtherance of such intention. As a result of the application of
-; principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it
--1 means that the accused is liable for the act which caused death E
of the deceased in the same manner as if it was done by him
alone. The provision is intended to meet a case in which it may
be difficult to distinguish between acts of individual members
of a party who act in furtherance of the common intention of all
or to prove exactly what part was taken by each of them. As F
j
was observed in Ch. Pu/la Reddy and Ors. vs. State of Andhra
Pradesh (AIR 1993 SC 1899), Section 34 is applicable even
->.
if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt
act on the part of the accused. G
11. The conviction of the appellant Nos. 1,2 and 3 by
·1 -,j application of Sec.34 IPC does not appear to be in order.
However, the conviction as recorded so far as A.4 is concerned,
H
.,
314 SUPREME COURT REPORTS (2009] 5 S.C.R.
A is well founded and no interference is called for. In the result,
the appeal filed by A.1, A.2 and A.3 (Sripathi, Mallikarjun,
Sanjaya) stands allowed while that of Pandit (A.4) stands
dismissed. A.4, who is on bail pursuant to the order dated 22/
3/2002, shall surrender to custody forthwith to serve the
B remainder of sentence, if any. The bail bonds in respect of the
other appellants shall stand discharged because of their
acquittal by the present order.
12. The appeal is disposed of accordingly.
C N.J. Appeal disposed of.
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