KRISHNAMURTHY @ GUNODU & Ors. v. STATE OF KARNATAKA

2 S.C.R. 433 433 KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OF KARNATAKA (Criminal Appeal No. 288 of 2022) FEBRUARY 16, 2022 [SANJIV KHANNA AND BELA M. TRIVEDI, JJ.] Penal Code, 1860: ss. 302 and 34 – Murder – Common intention – Three accused – Conviction of appellants-accused (K, T, G) for murder of victim-deceased u/s. 302 r/w s.34 and for offences u/ss.447, 504, 506, 341 – Division Bench of High Court affirmed their conviction – Hence instant appeal – Held: The assault on victim-deceased by appellant-K was fearsome, brutal and cruel – He had pinned down and tromped the deceased using his legs and hands fracturing four ribs, contusing and injuring the spinal cord, the chest and neck of the deceased – The injuries were sufficient in ordinary course of nature to cause death – Since the death of the victim-deceased was homicidal as a result and direct consequence of the injuries inflicted by appellant-K, he was rightly convicted under the aforesaid sections including s.302 – As regards, appellant- T and appellant-G, their acts cannot be primarily connected with the violence perpetuated by appellant-K – Appellants-T and G had not assaulted the deceased after he had fallen down and were not responsible for the injuries suffered by the deceased resulting in his death – The assault by appellant-K and the result outcome were unexpected to them – Appellants-T and G are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention – Therefore, they cannot be held guilty u/s.300 or even s.299 IPC – Their conviction is converted to u/ s.323 r/w s.34, however their conviction for individual offences u/ ss.447, 504, 506 and 341 is sustained.

Penal Code, 1860: s.34 – Applicability of – Common intention – To attract applicability of s.34, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another – The ultimate act should be done in furtherance of common intention – Common intention requires a pre-arranged plan, which can be 433 A B C D E F G H 434 SUPREME COURT REPORTS [2022] 2 S.C.R. even formed at the spur of the moment or simultaneously just before or even during the attack – For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference – However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis. Penal Code, 1860: s.34 – Common intention – Principles – For s.34 to apply, it is not necessary that the plan should be pre- arranged or hatched for a considerable time before the criminal act is performed – Common intention can be formed just a minute before the actual act happens – Common intention is necessarily a psychological fact as it requires prior meeting of minds – In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved – This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence – The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co- assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of s.34 are satisfied.

Penal Code, 1860: s.34 – Liability of co-perpetrator – A co- perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act – If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable – This test obviously is fact and circumstance specific and no strait jacket universal formula can be applied – s.34 makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability – For s.34 to apply, there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or pre-arranged plan. A B C D E F G H KRISHNAMURTHY @ GUNODU AND OTHERS v. STATE OF KARNATAKA 435 Partly allowing the appeal, the Court HELD:

The specific acts attributed to appellant-K are that after the victim-deceased had fallen down, he had kicked and assaulted him on the neck with his legs and hands. The version on the role of appellant-K deposed by PW-1 and PW-4 gets corroboration from the Post-Mortem Report and the deposition of PW-9 who had conducted the post-mortem. The assault by appellant-K, who though not armed with any weapon, was fearsome, brutal and cruel. He had pinned down and tromped the deceased using his legs and hands fracturing four ribs, contusing, and injuring the spinal cord, the chest, and the neck of the deceased. Given that the injuries caused were intended, third limb of Section 300 IPC would get attracted. The injuries were sufficient in ordinary course of nature to have caused death. The death of the deceased is homicidal as a result and direct consequence of the injuries inflicted by appellant-K. [Paras 3 and 4][438-C-D, F-H]

Appellant-T and appellant-G had not assaulted the deceased after he had fallen down and were not responsible for the injuries suffered by the deceased resulting in his death. Appellant-T and appellant-G are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention, viz. the injuries inflicted by appellant-K on the deceased after he had fallen down. They did not participate thereafter by physically assaulting or causing any injury to the deceased. They did not facilitate and help appellant-K in the assault he perpetuated. It cannot be accepted that they could have preconceived the brutal assault by appellant-K who had put his knees on the neck and jumped on the chest of the deceased to cause the injuries resulting in his death. Clearly, they had not joined appellant-K when he had acted and have stood by. There is nothing to indicate that their acts, that is, holding the hands and pulling the legs of the deceased making him fall down, were done in furtherance of the common intention that appellant-K would thereupon put his leg on the neck of the deceased, crushed his chest and fracture the ribs.