RAMASWAMI AYYANGAR "· STATE OF TAMIL NADU March 24 & Ors. v. TAMIL NADU ( Untwalia

- That there was enmity and bad blood between A-1 and P. W. 7 is not open to any doubt. · An occurrence did take place on the date, time anu place a, given by the prosecullon. The manner of occurrence in so far as it relates to the attack on the deceased is concerned by A-2 and A-3 has also been proved· to the hilt. The factum of assault by A-2 on P.W. 1 also does not admit of any doubL But the High· Court does not seem to be justified in reversing the order of acquittal recorded by the Trial Court in favour of A-1, A-5 and A-6. the First the basis of which this statement as also It was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6. P. Ws 3 and 4 are brothers of the deceased. P.W. 5· is brother-in-law of P.W. 3. Ext. P-1 is the statement of P.W. 1 before Information the police on Report was drawn up. On reading evidence oi P.W. I in Court, the Trial Judge rightly came . conclusion that P.Ws. 3, 4, 5 and 6 arrived at the scene of occurrence after it had taken place. None of them had witnessed it. It consider ed the evidence ot ·each w1tnesS, viz. P.Ws. 3 to 6, individually and did not rely upon it. In our judgment, the High Court was not right as against the explicit statement and evidence of P.W. 1 in treatmg P.Ws. 3 to 6 as eye witnesses to the occurrence. It is significant to note that although P.Ws. 3 and 4 were the brothers of the deceased Kaliaperumal but none of them made any attempt to save him !c "' the attack of the assailants. Had they been present at the occurrence surely they would have _tried to save their brother, as was done by P.W. 1. We are, therefore, left with the evidence of P.W. 1 alone. Since he· was injured in the same occurrence, undoubtedly, his ocular version of the incident· is· of great· value to the prosecution. -.,(-- - The plea of alibi set up by A-1 has not been substantiated at all. The Trial Judge was not right in doubting the prosecution case merely because A-1 had applied for leave on the 18th April-3 days before the occurrence. There was no evidence to show that he was at Madras on the date of occurrence. According to the Investigating Agency, A-1 was arrested not on the Railway platform but near the Railway level crossing of Kumbakonam Railway Station. But Trial Court was right in saying that the only part attributed to A-1 In the statement Ext. P-1 the only was the order giving for assault. words of order attributed to A-1 are "to cut" .. In court there was great embellishment and improvement in the evidence. of P.W, 1 when he put several sentences in the mouth of A-1 at the time of alleged order-giving. As already stated, A-1 was the Karnam of the village and even if he was at the back of the assault on the deceased. it does not stand to reason that he. himself would go to the place of occurrence merely for giving the order for assault. The order, if any, must have been given to the assailants in secret by A-1. . He must not have come to the place of occurrence merely for this purpose. We B c D E F G H A B c D E F G H 8 80 SUPREME COURT REPORTS (1976] 3 S.C.R. are, therefore, of the view that although the High Court in its judg- ment purported to keep in front the well-settled principles of law to jusmy an mterlercnce by it with the order of acqumal, ll did commit \, 1 a mistaKe in the applications of those pnnc1ples. Conviction of A-1 by the High Court unoer any count is not justified. So do we find in the case of A-5 and A-6 that they had not taken any part in the occurrence at all. The alleged obstruction given by A-6 to P.W. 1 when he wanted to run was not be!Jevable and has. not been believed by the Trial Court. The reasons given by the Trial Court for their acquittal were not such as to justity an interference by the High Court. The view taken by the Trial Court was reasonably possible to be taken. Coming to the case of A-2 we find that he did assault P.W. 1 with the cross-staff marked Ext. MO-I. This cross-staff, as alleged, has been recovered from the house of A-1. The Trial Court, rightly, , did not believe the story of its recovery from his house. But surely + A-2 had used the cross-staff for assaulting P.W. I. A serious question for consideration is whether his conviction under section 302 with the aid of section 34 is justified or not. In this connection we find the statement of P.W. 1 in Ext. P-1 to the following effect: • "Raman too with the aruval in his hitnd dealt a cut at the front portion of his head. I ran there to prevent it. At that time Vattappan with the string fixed wood he was having in his hand beat on my head." In the Sessions Court also he deposed : "Thereupon, Accused No. 3 immediately cut on the head of Kaliyaperumal in the front portion with the aruval he was having in his hand. Immediately Accused No. 2 beat on my head with M.O. 1 ......... . I ran to separate them. Then accused number 2 beat on my head with M.O. 1, 4 time, or 5 times. President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there. I fell down unconscious. After some From the evidence of P.W. 1 corroborated as it is from his statement in Ext. P-1 it is clear that P.W. 1 wanted to save Kaliyaperumal the deceased, from the murderous attack by A-3 and A-4. A-2 was standing as a guard and did not allow P.W. 1 to protect the deceased. A-2 went to the length of assaulting P.W. I and making him fall down unconscious. It is contended that A-2 cannot be held vicariously liable with the aid of s. 34 for the act of A-3 and A-4, for two reasons : Firstly, he did not physically participate in the fatal beating administered by A-3 and A-4 to the deceased and thus the "criminal act" of murder was not done by all these three accused within the contemplation of s. 34, the act committed by A-2 in regard to the beating of P.W. 1 being a different and separate act of A-2. Secondly, it has not been shown that the act of A-2 in beating P.W. 1 was committed in RAMASWAMI v. TAMIL NADU (Untwalia, J.) 8 81 furtherance of the common intention of all the three, pursuant to a A pre-arranged plan. ) The contention is fallacious and cannot be accepted. Section 34 is to be read along with the preceding s. 33 which makes it clear that the "act" spoken of in s. 34 includes a series of acts as a single act. It follows that the words "when a criminal act is done by several persons" in s. 34, may be construed to mean "when criminal acts are done by several persons". The acts committed by different confe derates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to otherwise facilitate the execution of to the relief of the victim or the common design. Such a person also commits an "act" as much In the as his co-participants actually committing the planned crime. i case of an offence involving physical violence, however, it is essential for the application of s. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common, design, is itself tantamount to actual participation in the 'criminal act'. The essence of s. 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to fully attracted the relief of the deceased. Section 34 was therefore and under the circumstances A-2 was equally responsible murder of the deceased. Under these circumstances we think the High Court was justified in convicting A-2 for the offence of murder of Kaliyaperumal with the aid of section 34 of the Penal Code. There was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperuma1 with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of In the case of A-2 also it is quite legitimate to hold that he the body. had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal. The conviction of none of the accused for the offence of rioting In the view which we can be maintained either in law or, on facts. have expressed above that the High Court was not justified in reversing the acquittals of A-1, A-5 and A-6, there were only 3 left in the party of the assail~nts. Moreover the State did not file any appeal, as B c D E F G H 882 SUPREME COURT REPORTS (1976] 3 S.C.R. stated already, against the acquittal of A-2, A-3 and. A-4 under section 148 of the Penal Code. That being so, they could not be convicted for having formed an unlawful assembly for any criminal " 1 common object. None could be convicted, therefore, under sections 147 or 148. Section 149 could not be pressed into service against any. In the result we allow both the appeals in part, restore the order of acquittal recorded in favour of A-1 viz., Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each. Indian We also maintain the conviction of A-2 under section 324 Penal Code with the concurrent sentence of 4 months' rigorous im- + prisonment under the said count. ' M.R. Appeals partly allowed. A B c D .."'