High Court · 2025

Crl.A(MD)Nos.647 & 779 of 2022For Appellant: Mr.T.ThirumuruganFor Respondent: Mr.T.Senthil Kumar Additional Public Prosecutor2.Crl.A(MD)No.779 of 2022:Satham Hussain... Appellant/Accused No.2Vs.State represented by,The Inspector of Police,Keelakarai Police Station,Ramanathapuram District.(Crime No.9 of 2019).... Respondent/ComplainantPRAYER:- Criminal Appeal is filed under Section 374 of Cr.P.C to call for the records of the Judgment in S.C.No.8 of 2020 dated 14.09.2022 on the file of the Principal Sessions Court, Ramanathapuram and set aside the same and acquit the appellant/Accused No.2.For Appellant: Mr.R.VenkateswaranFor Respondent: Mr.T.Senthil Kumar Additional Public Prosecutor2/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022COMMON JUDGMENT(Judgment of the Court was delivered by G.K.ILANTHIRAIYAN, J.)Both appeals are arising out of the Judgment passed in S.C.No.8 of 2020 dated 14.09.2022, on the file of the learned Principal Sessions Judge, Ramanathapuram, and have been filed by Accused Nos.3 and 2 respectively.2.Heard the learned counsel appearing on either side and perused the materials placed before this Court.3.The case of the prosecution is that A1 and deceased hail from the same place and they used to quarrel with each other very often. A1 was engaged in rearing and selling chicken, goats and pigeons in that area. While being so, the deceased used to inform the persons who purchased them from A1 that they were stolen 3/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022properties and cautioned them not to purchase the same. When one goat belonging to the deceased went missing, the deceased foisted allegations as against A1 that he had stolen the goat and teased him. On 10.01.2019, the deceased threatened one Abudeen that he and A1 used to steal goats for sale. While the deceased visited the house of A3 and found his missing goat, he had taken a photograph of the same, showed it to neighbours and others, and spread the message that A1 and A3 had stolen his goat. As a result, A1 was humiliated over the same and had grudge against the deceased and decided to do away with his life.4.On 10.01.2019, A1 along with two others, namely A2 and A3, went to the house of the deceased in a two wheeler belonging to A1 and searched for him. Since the deceased was not present at his house, A1 abused the mother of the deceased in filthy language and threatened her with dire consequences. Thereafter, they picked up the deceased from his sister's house and near Muslim Association at 4/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022Jamia Nagar, they had quarreled with him. The deceased threatened them that he would lodge a complaint. At that juncture, A1 stabbed the deceased with a knife. A2 and A3 allegedly prevented the deceased from escaping. Due to the injuries sustained, the deceased succumbed. 5.On the basis of the complaint, the respondent registered the F.I.R in Crime No.9 of 2019 for the offences punishable under Sections 294 and 302 of I.P.C. After completion of investigation, the respondent filed a final report as against A1 for the offences punishable under Sections 294(b) and 302 of I.P.C and as against A2 and A3 for the offences punishable under Sections 342 and 302 of I.P.C r/w Section 34 of I.P.C and the same has been taken cognizance by the trial Court. During the pendency of the trial, A1 died and consequently, all the charges against him stood abated.5/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 20226.In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.18 and marked Ex.P.1 to Ex.P.14. The prosecution had produced Material Objects M.O.1 to M.O.4. On the side of the accused, no witnesses were examined and no documents were produced before the trial Court. 7.On perusal of oral and documentary evidence, the trial Court found A.2 and A.3 guilty for the offences punishable under Section 341 of I.P.C r/w Section 34 of I.P.C and also under Section 302 of I.P.C r/w 34 of I.P.C. They were sentenced to undergo Simple Imprisonment for one month each for the offence punishable under Section 341 of I.P.C r/w Section 34 of I.P.C. Further, they were sentenced to undergo Rigorous Imprisonment each for life and to pay a fine of Rs.10,000/- each, in default to undergo Simple Imprisonment for a period of six months each. Aggrieved by the same, the appellants/A2 and A3 have preferred the present appeals.6/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 20228.During trial, A1, who had stabbed the deceased resulting in his death, died and therefore, the charge against him stood abated.9.A2 is the brother-in-law of A1 and A3 is the brother of A2. The deceased and his family members were running a poultry farm along with rearing goats. While being so, on 08.01.2019, one goat went missing from their custody. The deceased searched for the missing goat for two days and on suspicion, alleged that A1 had stolen the goat and informed the general public. He also teased A1 regarding the alleged theft. 10.The mother of the deceased had deposed as P.W.1. She deposed as follows:“gpd;du; MLfSf;F fydp jz;zPu; vLg;gjw;F ehd; vd; %j;j kfs; ck;Ky; gu;`hdh tPl;bw;F te;Njd;. ehd; vd; kfsplk; vd; kfid vq;Nfkh vd;W Nfl;Nld;. mjw;F vd; kfs;> vd; kfid 1 Kjy; 3 vjpupfSk; ,Urf;fu thfdj;jpy; $l;br; 7/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022nrd;wjhf $wpdhu;. gpd;du; vd; kfsplk; 3 NgUk; vd;id jpl;btpl;L te;jij $wptpl;L> jz;zPu; ghidia Nghl;Ltpl;L vd; kfis mioj;Jf; nfhz;L vd; kfid NjbNdd;. mg;NghJ Mz;fs; njhOifg; gs;sp Kd;G Njbte;jNghJ Ml;Nlhit Nuhl;bd; FWf;Nf epWj;jptpl;L vd; kfid kjpy; Rtupy; rhj;jp epWj;jptpl;L ,uz;L gf;fq;fSk; vjpupfs; rjhk; cNrd;> jhTJ ,UtUk; epd;W nfhs;s 1k; vjpup ifapy; ,uj;jk; nrhl;l nrhl;l fj;jpAld; epd;W nfhz;bUe;jhd;. vd; kfd; tyJ gf;f khu;Gf;F fPNo ,lJ gf;f mf;FSf;F fPNoTk;> ,lJ Njhs;gl;ilapYk; fOj;jpYk; fj;jp Fj;J fhaj;Jld;> ,uz;L ifapYk; fj;jp Fj;J fhaj;JlDk; ,Ue;jhu;. gpd;du; 3 Ngu;fSk; kQ;rs; fyu; igf;fps; Vwpf; nfhz;L rjhk; cNrd; igf;if Xl;l> eLtpy; fj;jpAld; fr;rp kiuf;fhTk;> gpd;dhy; Kfk;kJ jhTJk; mku;e;J nrd;Wtpl;ldu;.”11.Even according to P.W.1, A1 alone had stabbed the deceased and he was standing with a bloodstained knife. Further, though A1 is related to the appellants/A2 and A3, they were residing separately and A2 and A3 were living about 5 kms away from the house of A1. According to her, A1 alone used to steal goats and, 8/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022there was no nexus between appellants and A1 with regard to the alleged theft. Even on the date of occurrence, the appellants herein accompanied A1 without any knowledge of his intention to do away with the life of the deceased. 12.The sister of the deceased had deposed as P.W.2. She also deposed that A1 alone stabbed the deceased and other two accused were merely standing. After the crime, all three left the scene on the same motorcycle. Thus, though the appellants accompanied A1, they neither had any motive nor shared any common intention to cause the death of the deceased. They had no knowledge that A1 searched the deceased to do away his life. In fact, A1 searched the deceased with knife. Therefore, the charge under Section 341 of I.P.C r/w 34 of I.P.C are not proved by the prosecution beyond any reasonable doubt. 9/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 202213.Except the evidence of P.W.1 and P.W.2, no other witness has spoken about any overt act on the part of the appellants. The postmortem report and the evidence of P.W.16, the Doctor, who conducted autopsy, confirmed that the deceased succumbed due to the stab injuries inflicted by A1. The appellants were merely standing behind the deceased and there was no overt act as against them. There was also no evidence to show that the appellants had prevented the deceased from fleeing from the scene of crime.14.The learned Additional Public Prosecutor contended that the appellants accompanied A1 with an intention to do away with the life of the deceased. In fact, they went to the house of the deceased and threatened P.W.1 with dire consequences and made search for the deceased. Therefore, they had common intention and they also restrained the deceased from fleeing out of the hands of A1. 10/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 202215.In support of his contention, the learned Additional Public Prosecutor relied upon the Judgment of the Hon'ble Supreme Court of India in the case of Virendra Singh Vs. State of Madhya Pradesh [(2010) 8 SCC 407], wherein it is held as follows:“Section 34 does not create a substantive offence. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.c. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.The common intention postulates the existence of a prearranged plan implying a prior 11/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a e great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. The dominant feature of Section 34 is the element of intention and of participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in 12/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022criminal action to bring about a particular result. Some kind of aid or assistance producing an effect in future or any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. Any act of preparation for the commission of felony is also considered to be done in furtherance of the act.”16.The above Judgment is not applicable to the case on hand for the simple reason that the appellants never had any prior meeting with the accused to do away with the life of the deceased. Further, there must be an intention to commit the crime. Therefore, the appellants can be convicted only if such an intention was shared by all the accused. Such common intention should be anterior in point of time to the commission of the crime. Therefore, while inferring common intention under Section 34 of I.P.C., evidence and documents on record assume great significance and must be very carefully scrutinized by the Court.13/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 202217.In the present case on hand, there is absolutely no evidence to show that the appellants had shared the intention to commit the crime along with A1. Therefore, the prosecution has miserably failed to prove the charge under Section 34 of I.P.C. Further, there is no evidence to attract the offence under Section 341 of I.P.C. Hence, the prosecution has miserably failed to prove the charges under Section 341 of I.P.C r/w 34 of I.PC and 302 of I.P.C r/w 34 of I.P.C as against the appellants beyond reasonable doubt.18.In view of the above, the convictions and sentences imposed on the appellants in S.C.No.8 of 2020 dated 14.09.2022, on the file of the Principal Sessions Court, Ramanathapuram, cannot be sustained and are liable to be set aside.19.In the result, these Criminal Appeals are allowed and the Judgment, dated 14.09.2022 made in S.C.No.8 of 2020, on the file of the Principal Sessions Court, Ramanathapuram, is hereby set 14/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022aside. The appellants are acquitted of all the charges. The bail bond, if any, executed by the appellants shall stand cancelled. The fine amount, if any paid, shall be refunded to the appellants. The appellants shall be set at liberty forthwith, if they are no longer required in connection with any other case.[G.K.I.J.,] & [R.P.J.,] 17.12.2025 NCC:Yes/NoIndex :Yes/NopsTo1.The Principal Sessions Court, Ramanathapuram.2.The Inspector of Police,Keelakarai Police Station,Ramanathapuram District.3.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai.15/16 https://www.mhc.tn.gov.in/judis Crl.A(MD)Nos.647 & 779 of 2022G.K. ILANTHIRAIYAN, J.ANDR. POORNIMA, J.psCrl.A(MD)Nos.647 & 779 of 2022 17.12.202516/16