Adarsh @ Binu v. State of Kerala; Rajesh v. State of Kerala (CRL.A Nos. 812 & 944 of 2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** **CRL.A NO. 812 OF 2006** **AGAINST THE JUDGMENT IN SC NO.1872/2004 DATED 25.03.2006 BY THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-III,** ## **THIRUVANANTHAPURAM** **APPELLANT/2ND ACCUSED :** **ADARSH @ BINU, S/O. BHASKARAN, KUMBAR VEEDU, TC NO.43/1072, PARUTHIKKUZHY, MANIKKAVILAKOM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.SUMAN CHAKRAVARTHY** ## **RESPONDENT :** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANAL P.RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH CRL.A.944/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal Nos.812 and 944 of 2006 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** **CRL.A NO. 944 OF 2006** **AGAINST THE JUDGMENT IN SC NO.1872/2004 DATED 25.03.2006 BY THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-III,** **THIRUVANANTHAPURAM** ## **APPELLANT/3RD ACCUSED :** **RAJESH, S/O. VELAYUDHAN, AGED 24 YEARS,** **THITTAKKUDI VEEDU, TC.NO.41/896, PUTHENKOTTA, KURIYATHI WARD, MANACAUD, THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.SUMAN CHAKRAVARTHY** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANAL P.RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH CRL.A.812/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal Nos.812 and 944 of 2006 ..3.. **“C.R.”** ## **Crl.Appeal Nos.812 and 944 of 2006** **--------------------------------------------------** ## **COMMON JUDGMENT** These are appeals filed under Section 374(2) of the Code of Criminal Procedure. Third accused in S.C.No.1872 of 2004 on the file of the Additional Sessions Court, Fast Track III, Thiruvananthapuram (originally arrayed as the 4[th] accused) has preferred Crl.Appeal No.944 of 2006. Similarly, the second accused (who originally arrayed as the 3[rd] accused) in the above case has preferred Crl.Appeal No.812 of 2006. The respondent herein is the State of Kerala. 2. Heard the learned counsel for the appellants as well as the learned Public Prosecutor Crl.Appeal Nos.812 and 944 of 2006 ..4.. representing the State of Kerala. 3. Summary of the prosecution case shorn off unnecessary details is as under:- The prosecution case is that on 15.03.2000 at about 3.30 p.m., 15 persons, after concealing deadly weapons like chopper, iron rod etc., reached at Priyadarshini hall at Fort, where abkari auction of toddy shops was conducted. Thereafter, the accused, after sharing common intention, wrongly restrained the defaco complainant and assaulted him by using chopper and iron rod with intention to do away the defaco complainant. 4. On the above allegation, FIR was registered by Fort Police as Crime No.91 of 2000 alleging commission of offences under Sections 324, 332 and 307 read with Section 34 of the Indian Penal and under Section 27 of the Arms Act. Thereafter, on investigation, police laid charge against accused Nos.1 to 4. Crl.Appeal Nos.812 and 944 of 2006 ..5.. 5. When the case was committed before the Sessions Court, the same was made over to Additional Sessions Court. Since the original second accused was absconding, the learned Sessions Judge tried original accused Nos.1, 3 and 4 arraying them as accused Nos.1 to 3 in the case. On completing legal formalities, charge for the said offences was framed and the learned Sessions Judge tried the matter. During trial, PW1 to PW12 examined and Exts.P1 to P12 marked on the side of the prosecution. MO1 to MO3 series were also marked. 6. Though the accused were given opportunities to adduce defence evidence, after questioning them under Section 313(1)(b) Cr.P.C., no defence evidence adduced. 7. The learned Sessions Judge appreciated the evidence and finally, found the accused Nos.1 to 3 committed offences under Section 324 and 332 read with Crl.Appeal Nos.812 and 944 of 2006 **==> picture [27 x 8] intentionally omitted <==** Section 34 of IPC. Consequently, they were sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 324 read with Section 34 of IPC and rigorous imprisonment for one year for the offence punishable under Section 332 read with Section 34 of IPC. 8. While assailing the conviction and sentence imposed by the Sessions Court, the learned counsel for the appellants urged that no convincing evidence adduced by the prosecution to fasten criminal culpability upon the appellants and the evidence available does not suggest any complicity or overt acts on the part of the appellants to record conviction as done by the trial court. He urged that in the evidence of PW1, though overt acts against the first accused and the original second accused (who was absconding) were narrated in detail in page No.6, PW1's evidence against the appellants is confined to the effect Crl.Appeal Nos.812 and 944 of 2006 ..7.. that they had encouraged the overt acts of original first and second accused. But how the appellants encouraged first and second accused is not disclosed by PW1 in any manner. Apart from this, no overt acts specifically stated by PW1 against the appellants. He also submitted that PW2 another occurence witness also not stated any overt acts specifically against the appellants. 9. PW4 and PW7, another two occurence witnesses also turned hostile to the prosecution and they did not support the prosecution case in any manner. PW8 is the doctor, who supported treatment of PW1, who suffered injuries in consequence of the overt acts on the part of accused Nos.1 and 2. 10. On evaluating the evidence available, it could be gathered that the presence of the appellants at the place of occurence alone is the evidence available against them in this case. Crl.Appeal Nos.812 and 944 of 2006 ..8.. 11. In this connection, it is argued by the learned counsel for the appellants that mere presence alone would not constitute an offence under Section 34 of IPC, since the common intention to be proved independently. He placed a latest decision of the Apex Court reported in [(2022) 2 SCC 545], **Jasdeep Singh v. State of Punjab** discussing the impact of common intention as dealt in Section 34 of the Indian Penal Code. In paragraph 27 of the judgment, the Apex Court held as under; “27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention _per se_ may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it Crl.Appeal Nos.812 and 944 of 2006 ..9.. later. Ofcourse, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.” 12. In this case, the appellants were convicted solely relying on the evidence of PW1 to the effect that they were also present at the place of occurrence. In this context, it is apposite to refer Section 34 of IPC and its impact. Section 34 of IPC provides as under; “ **34. Acts done by several persons in furtherance of common intention** .—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same Crl.Appeal Nos.812 and 944 of 2006 **==> picture [34 x 8] intentionally omitted <==** manner as if it were done by him alone.” 13. In the decision reported in [AIR 2001 SC 1344] : [(2001) 3 SCC 673] : [2001 Cr LJ 1462], **Suresh v. State of U.P.** , the Apex Court discussed Section 34 of IPC and it was held that this section recognises principle of vicarious liability in criminal jurisprudence. It was held further as under; “Section 34, I.P.Code recognises the principle of vicarious liability in criminal jurisprudence. It is a rule of evidence and does not create a substantive offence.” 14. In the same decision, the Apex Court considered the ingredients to attract offence under Section 34 of IPC as under; “(1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in Crl.Appeal Nos.812 and 944 of 2006 ..11.. furtherance of the common intention of all such persons.” 15. In the decision reported in [2002 SCC (Cri) 1518], **Harjit Singh v. State of Punjab** , the Apex Court discussed how to establish common intention under Section 34 of IPC it was held as under; “Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused.” 16. In another decision reported in [AIR 2000 SC 1833: (2000) 4 SCC 484 : 2000 SCC (Cri) 991 : [2000 Cr LJ 2212], **Jaswant Singh v. State of Haryana** , the Crl.Appeal Nos.812 and 944 of 2006 ..12.. ## Apex Court drawn the distinction between Sections 34 and 149 of IPC as under; “Under section 34 the emphasis is on physical presence and promotion or facilitation of the crime. As far as section 149, I.P.Code is concerned, in addition to the common object, merely being a member of an unlawful assembly within the meaning of section 141, I.P.Code may be sufficient.” 17. Thus, it is clear that unlike in Section 149 of IPC, while considering common intention as mandated under Section 34 of IPC, mere presence of the parties at the place of occurrence without any overt acts by itself is not sufficient to fasten criminal culpability upon them. The subjective element in common intention to be proved by objective test. In order to convict any person with the aid of Section 34 of IPC, it is necessary to establish that such accused had done some overt acts and there must be materials to show the overt act/acts of one or more of Crl.Appeal Nos.812 and 944 of 2006 ..13.. the accused was or where done in furtherance of common intention of all the accused persons. 18. In view of the above legal position, it has to be held that the evidence available in this case as highlighted above as that of PW1 to the effect that the appellants also present at the place of occurrence and they encouraged the overt acts of the other accused by itself is not sufficient to convict the appellants with the aid of Section 34 of IPC, since the way of encouragement and its outcome, after sharing common intention is not fully established. To be more precise, it could not be held based on the evidence of PW1 that the appellants were present at the place of occurrence in furtherance of common intention shared between them with the original first and second accused. As such, it cannot be held that the prosecution succeeded in establishing commission of offences by the appellants herein under Sections 324 and Crl.Appeal Nos.812 and 944 of 2006 **==> picture [34 x 8] intentionally omitted <==** 332 of IPC with the aid of Section 34 of IPC. Therefore, no criminal culpability can be fastened on the appellants. Consequently, it is held that the learned Sessions Judge went wrong in imposing conviction and sentence upon the appellants and the same stand set aside. In the result, these appeals stand allowed. Conviction and sentence under challenge stand set aside. The appellants are released forthwith and their bail bonds stand cancelled. Sd/- **A.BADHARUDEEN, JUDGE** rkj