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Sunday, November 10, 2013

SEC. 149/34 OF I.P.C. = In a sudden fight - A1 alone kill the deceased , others beat other persons though armed with sticks, A8 alone caught hold the deceased while A1 going to attack the deceased - Common Intention - When the intention of A1 that whether he brought crowbar to kill or to cause grievous injury , not known to the other accused, they can not be fasten with liability for the acts of A1 under sec.149 /34 of IPC = Singapogu Anjaiah & 7 others. The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. = http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=5472

SEC. 149/34 OF I.P.C. = In a sudden fight  - A1 alone kill the deceased , others beat other persons though armed with sticks, A8 alone caught hold the deceased while A1 going to attack the deceased - Common Intention - When the intention of A1 that whether he brought crowbar to kill or to cause grievous injury , not known to the other accused, they can not be fasten with liability for the acts of A1 under sec.149 /34 of IPC = 
whether the
members shared the common object to cause murder of the deceased has to be   decided on the basis of nature of weapons used by such members, the manner and  sequence of attack made by them on the deceased and the settings and the  surroundings under which occurrence took place. =
 No witness has proved that the
accused persons had come on the scene of offence with a common object to commit   
murder of the deceased. 
 None of them except A1 had given any blows to the
deceased with the weapons they allegedly carrying with them.  
The manner and 
sequence of attack on the deceased as spoken out by the prosecution witnesses is 
insufficient to draw an inference that the object of the unlawful assembly was
to kill the deceased or the member of the unlawful assembly knows that there was
likelihood of the deceased being killed in prosecution of the common object.
Therefore, Section 149 IPC cannot be pressed into service to make A2 to A8 as
responsible for the death of the deceased.
whether A8 can be said to have shared the common 
intention with A1 to kill the deceased so as to make him liable with aid of Section 34 IPC.   
Section 34 of the Indian Penal Code provides for a vicarious
liability. It reads as under:
        "       Sec.34: Act 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 person is liable for that act in the same
manner as if it were done by him alone."

Section 34 IPC lays down a principle of joint liability in doing a criminal act.
The essence of liability is to be found in the existence of common intention
animating the accused leading to the doing of a criminal act in furtherance of
such intention.  
The distinct feature of Section 34 is element of participation
in action.  The common intention implies acting in concert, existence of pre-
arranged plan which is to be proved either from conduct or from circumstances or
from any incriminating facts.  It requires a pre-arranged plan and it
presupposes prior concert.  Therefore, there must be prior meeting of minds.
The prior concert or meeting of minds may be determined from the conduct of the
offenders unfolding itself during the course of action and declaration made by
them just before mounting the attack.  It can also be developed at the spur of
the moment but there must be pre-arranged or premeditated concert.  Common  
intention is to be inferred from the circumstances particularly the part played
by the accused and surrounding circumstances namely nature of the weapon used  
and injury inflicted as well as the meeting of the minds among the accused who
are being held constructively liable.  There is no uniform inflexible rule for
applying the principle of common intention.

 A1 appeared on the scene while the altercation between A3 and PW.1 was on.  
Initially A1 came on the scene armed with a stick. 
Later he went to the school
and brought a crowbar and dealt a blow on the deceased which proved to be fatal.
A8 also appeared on the scene armed with a stick.  
The accusation made against 
A8 is that he caught hold of the deceased when A1 came on the scene armed with a 
crowbar. 
 Had A8 shared the common intention with A1, he would have not simply 
caught hold the deceased since he was already armed with a stick.  He must have
definitely dealt a blow with the stick on the deceased had he shared the common
intention with A1.  
Therefore, we are unable to hold that the only inference
possible is that A8 shared the common intention with A1 to kill the deceased.
No doubt, A8 caught the deceased and this facilitated A1 stabbing the deceased.
But, there is nothing whatsoever on record to indicate that A8 knew that A1
would cause fatal injury to the deceased, though he very much anticipated that
A1 would cause grievous injury to the deceased. 
 It is one of those borderline
cases where one may with equal justification infer that the common intention was
to commit murder or to cause grievous injury.  But the benefit of any such doubt
must go to A8.  In the circumstances, we conclude, that the common intention of
the accused has not been established, beyond reasonable doubt to cause the death 
of the deceased, but certainly was to cause grievous injuries to the deceased.
Therefore, A8 is to be held liable for the offence under Section 326 r/w.34 IPC
and whereas, A1 is to be held liable for the offence under Section 302 IPC. 
The
evidence of PWs.1 to 5 that they sustained injuries in the hands of the accused
is fully corroborated by the medical evidence as well as the evidence of PW.6.
Therefore, we are not inclined to interfere with the conviction and sentence of
the appellants/ accused for the offences under Sections 148 and 324 IPC.

19.     In the result, the appeal is partly allowed 

THE HON'BLE SRI JUSTICLE A.GOPAL REDDY AND THE HON'BLE SRI JUSTICE              
Criminal Appeal No.611 of 2006

31-03-2008

Singapogu Anjaiah & 7 others.

The State of A.P., rep. by its Public Prosecutor,
High Court of A.P., Hyderabad.

COUNSEL FOR THE APPELLANTS: M/S. C.PADMANABHA REDDY              
                C.PRAVEEN KUMAR    

COUNSEL FOR THE RESPONDENT: THE ADDL. PUBLIC PROSECUTOR                

:JUDGMENT:  (PER JUSTICE B.SESHASAYANA REDDY)          

This Criminal Appeal is directed against the judgment dated 6th April, 2006
passed in S.C.No.175 of 2003 on the file of II Additional Sessions Judge,
Mahaboobnagar, whereby and where under the learned Additional Sessions Judge  
found A1-Singapogu Anjaiah, A2-Singapogu Chandra Mouli, A3-Singapogu  
Shankaraiah, A4-Singapogu Sreenu, A5-Singapogu Venkataiah, A6-Singapogu    
Narsimha, A7-Singapogu Sailu and A8-Singapogu Bal Ram guilty for the offences
under sections 148, 324, 302 r/w 149 IPC and convicted them accordingly and
sentenced each of them to suffer imprisonment for LIFE for the offence under
section 302 IPC and Rigorous Imprisonment for 9 months for each of the offences
under sections 148 and 324 IPC. All the sentences were directed to run
concurrently.

2.      The appellants/ accused were put on trial before the Additional Sessions
Judge, Mahaboobnagar for the following charges:
i) Against A1 to A8 for the offence of rioting, armed with deadly weapons
punishable under section 148 IPC;
ii) Against A1 and A2 for attempting to commit murder of P.W.1-S.Ramulu
punishable under section 307 IPC;
iii) Against A3 to A8 under constructive liability for attempting to commit
murder of P.W.1 S.Ramulu punishable under Section 307 r/w 149 IPC;
iv) Against A1 and A8 for committing murder of S.Ramalingam punishable under
Section 302 IPC;
v) Against A2 to A7 under constructive liability for committing the murder of
S.Ramalingam punishable under Section 302 r/w 149 IPC;
vi) Against A4 and A7 for voluntarily causing hurt to P.W.2-S.Narasimha with
centry rod punishable under section 324 IPC;
vii) Against A2 and A3 for voluntarily causing hurt to P.W.3 S.Nagaiah with
sticks punishable under section 324 IPC;
viii) Against A5 and A6 for voluntarily causing hurt to P.W.4 S.Anjaiah with
stones punishable under section 324 IPC;
ix) Against A1 for voluntarily causing hurt to P.W.5 S.Ramachandraiah with
centring sticks punishable under section 324 IPC.

To bring home the guilt of the accused for the offences with which they stood
charged, prosecution examined 12 witnesses and proved 16 documents and exhibited
7 material objects.
3.      The prosecution version as unfolded during trial is as follows:
        Accused are close relatives of PWs.1 to 5 and they are residents of
Tirumulgherry village. There were disputes between them over a pathway. An
altercation took place in respect of a dispute regarding pathway and a case in
Crime No.15 of 1997 under section 324 IPC came to be registered by the Station
House Officer, Balanagar. P.W.1 and his brothers came to be prosecuted and the
case ended in conviction. P.W.1 and his brothers were sentenced to pay a fine of
Rs.100/- in the said case. The accused persons were waiting for an opportunity
to take revenge against P.W.1 and his brothers. On 9.7.2002 at about 7.00 A.M.
P.W.1 was on the way to his newly constructed house situated at the end of the
village. He noticed A3 and one Chander, a Vidya Volunteer, and Bachya Naik
conversing at the house of P.W.6. Bichya Naik was the Chairman of Watershed
Committee. When A3 and Bichya Naik requested P.W.6 to provide chairs of
watershed to school purpose, P.W.1 told them that the chairs purchased by the
Sarpanch could be spared for the school purpose. Interference of P.W.1 was not
liked by A3. Therefore, A3 abused P.W.1 for which P.W.1 admonished him. It is
alleged that A3 beat P.W.1 by holding his color. In the meanwhile, A1 Singapogu
Anjaiah came from behind, held his head and threw him down. While PW.1 was being
beaten by A1, P.Ws.2 to 5 and Ramalingam came in the rescue of him.  A2 to A8
also joined and resorted to give blows on P.Ws.1 to 5 and Ramalingam. A1 and A3
beat P.W.1 and caused injuries to him. A8 caught hold of Ramalingam which
facilitated A1 and A2 to beat him. A7 caught hold of P.Ws.2 which facilitated A4
to beat him with a centring rod. A2, A3, A4, A7 and A8 beat P.W.3 with sticks on
his head and hand. A5 and A6 pelted stones on P.W.4 and thereby PW.4 received
injuries on his thighs and hands. A1 dealt a blow on P.W.5 with a stick on his
head which he warded off and the blow fell on his hand. Ramalingam fell
unconscious. P.W.1 and others moved him to Government Hospital, Balanagar on a  
tractor. On the way to hospital, P.W.1 presented a report before the Station
House Officer, Balanagar P.S. P.W.11 Rajendra Kulkarni, SI of Police, Balanagar
P.S. received Ex.P.1 report presented by P.W.1 and registered a case in Crime
No. 147 of 2002 and issued Ex.P.9 FIR. He sent all the injured to Government
Hospital, Shadnagar. Ramalingam (hereinafter referred to as the deceased)
succumbed to the injuries on the way to the hospital.  P.W.11 received death
intimation at 10.15 a.m. on the same day. Thereupon, the section of law came to
be altered and P.W.11 filed Ex.P.10 memo of alteration of section of law in
Court. P.W.9 Govind Waghmare, Civil Assistant Surgeon, Government Hospital,
Shadnagar, examined P.Ws.1 to 5 and issued wound certificates. He noticed the
following injuries on their persons:
P.W.1 had the following injuries:
i) Abrasions two in number 3 x 0.5 cms over medial aspect of the scapula;
ii) Abrasion 6 x 4 cms over superior angle of right scalpula;
iii) Contusion 11 x 2 cms  over the left scapular region;
iv) Contusion 6 x 2 cms below injury No.3;
v) Two contusions 2 x 2 cms over the left shoulder;
vi) Contusion 3 x 4 cms over the skull posterior aspect rightside.
vii) Abrasion 3 x 0.2 cms over the right knee.
viii) Abrasion 0.5 x 0.5 cmsover the right shin.
ix) Contusion 3 x .5 cms over the left iliac fossa.
P.W.2 had the following injuries:
        i)      Laceratin 8 x 0.5 x 0.5 cms over the left parietal region;
P.W.3 had the following injuries:
1) Laceration 2.5 x 0.5 x 0.5 cms over the left parietal region;
2) Contusion 6 x 2 cms over the right arm vertical.
3) Abrasions, two in number 0.5 x 0.5 cms over the abdomen left side of the
umbilical area;
4) Contusion 6 x 4 cms over right thigh across;
5) Abrasion 0.5 x 0.5 cms over left cubical fossa, posterior aspect.
P.W.4 had the following injuries:
        i)      Abrasion 0.5 x 0.5 cms over the right palm, ventral aspect;
        ii)     Abrasion 0.5 x 0.5 cms over right buttock.
P.W.5 had the following injury:
        i)      Abrasion 6 x 4 cms over posterior aspect of right forearm.

Exs.P.3 to 7 are the wound certificates. He classified the injuries found on
P.Ws.1 to 5 as simple in nature. P.W.11 inspected the scene and effected seizure
of MO.7 stones numbering 5 under the cover of a panchanama. He also prepared
Ex.P.11 rough sketch of the scene. P.W.12 P.P.Ravi Kishore, CI of Police,
Shadnagar took up investigation, held inquest over the dead body in the presence
of P.W.8 and L.W.15 Hanumanth Naidu. Ex.P.12 is the inquest report.  After the
inquest the dead body was sent for post mortem examination. P.W.9 Dr.Govind
Wagmare held autopsy on the dead body of the deceased on 9.7.2002 at 1630 hours  
and found the following injuries:
i) Bleeding from left ear present.
ii) Laceration 3 x 0.5 cms x bone deep over the vertex in the scalp.
He opined that the death of the deceased was due to haematoma of the brain with
multiple skull fractures. Ex.P.8 is the post mortem report issued by him.  He
effected arrest of the accused on being produced before him by the Sub-Inspector
of Police, Balanagar on 20.7.2002.  He arrested the accused and recovered MOs.3
and 4 sticks in pursuance of the disclosure statements of A2 and A3 under the
cover of Ex.P.13 and P.14 panchanamas, MO.5 centering rod in pursuance of the
disclosure statement of A4 under the cover of Ex.P.15 panchanama and MO.1 crow
bar in pursuance of the disclosure statement of A1 under the cover of Ex.P.16
panchanama. After completing investigation, he laid charge sheet in the court of
the Judicial Magistrate of First Class, Jadcherla.  The learned Magistrate took
the charge sheet on file as P.R.C.No.67 of 2002 and committed the case to the
Sessions Division, Mahaboobnagar, as the offences under Sections 302 and 307 IPC
are exclusively triable by a Court of Session. The learned Sessions Judge took
the case on file as S.C.No.175 of 2003 and, on hearing the prosecution and the
accused, framed charges as detailed supra, read over and explained the same to
the accused on 8.7.2004. The accused pleaded not guilty and claimed to be tried.
Subsequently, the case came to be made over to II Additional Sessions Judge,
Mahaboobnagar for disposal according to law. To bring home the guilt of the
accused for the offences with which they stood charged, prosecution examined 12
witnesses and proved 16 documents and exhibited 7 material objects. The accused
took the plea that they were not in the village as on the date of the occurrence
and that the deceased and P.Ws.1 to 5 received injuries in a road accident while
traveling on a tractor. They further pleaded that taking advantage of their
absence in the village after the incident, the prosecution party set fire to the
house of one of them i.e. of A6 besides causing damage to the houses of others.
The accused marked contradictions in the police statements of P.Ws.1, 3 and 6 as
Exs.D1 to D7 and photographs of the houses of A1, A7 and agricultural borewell
of A1 as Exs.D1 to D14 and a certificate issued by the Village Secretary as
Ex.D15. As per Ex.D15 certificate, the shed in front of the house of Tirumalaiah
gutted in fire. To probablise their defence, one of them i.e. A1 got himself
examined as DW.1. The learned Additional Sessions Judge, on considering the
evidence brought on record and on hearing the prosecution and the accused, found
the accused guilty for the offences under Sections 148, 302, 324 r/w 149 IPC and
convicted them accordingly and sentenced them as stated supra by a judgment
dated 6.4.2006. Hence, this Criminal Appeal by the accused.

4.      Heard Sri.C.Padmanabha Reddy, learned Senior Counsel appearing on behalf
of the appellants/accused and learned Additional Public Prosecutor appearing for
the respondent/State.

5.      Learned Senior Counsel submits that in the FIR specific overt acts have
not been attributed to any of the accused except making a bald statement that
all the accused beat P.Ws.1 to 5 and the deceased and thus the evidence of
P.Ws.1 to 5 attributing specific overt acts to the accused cannot be relied on.
A further submission has been made that the incident allegedly occurred in a
sudden quarrel and in which case neither constructive liability as provided
under section 149 IPC or common intention as provided under section 34 IPC can
be pressed into service with regard to the attack on the deceased. He would also
submit that by reading the evidence of the prosecution witnesses it cannot be
said that the common object of the assembly was to do away the life of the
deceased. It is also contended by him that the participation of A2 with regard
to assault on the deceased has not been spoken out by any of the witnesses in
their police statements and for the first time the witnesses attributed specific
overt acts to A2 and therefore, the role of A2 in respect of the attack on the
deceased is liable to be excluded from consideration. He would also contend that
there is no consistency in the evidence of prosecution witnesses with regard to
the role attributed to A8 in respect of the attack on the deceased and therefore
A8 is entitled to the benefit of doubt. In elaborating his arguments, learned
Senior Counsel refers to the evidence of P.Ws.4 and 6 who did not speak of
participation of A8 in the attack on the deceased. In support of his submissions
reliance has been placed on the decisions of Supreme Court in RAMASHISH YADAV V.    
STATE OF BIHAR1 and BUNNILAL CHAUDHARY V. STATE OF BIHAR2            

6.      In RAMASHISH YADAV V. STATE OF BIHAR (1 supra), the Supreme Court observed      
that Section 34 lays down a principle of joint liability in the doing of a
criminal act. The essence of that liability is to be found in the existence of
common intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. The distinct feature of Section 34 is the element
of participation in action. The common intention implies acting in concert,
existence of a pre-arranged plan, which is to be proved either from conduct or
from circumstances or from any incriminating facts. It requires a pre-arranged
plan and it presupposes prior concert. Therefore, there must be prior meeting of
minds. The prior concert or meeting of minds may be determined from the conduct
of the offenders unfolding itself during the course of action and the
declaration made by them just before mounting the attack. It can also be
developed at the spur of the moment but there must be a pre-arrangement or
premeditated concert.

7.      In BUNNILAL CHAUDHARY V. STATE OF BIHAR (2 supra), the Supreme Court held      
that   under Section 149 IPC, the liability of other members for the offence
committed during the continuance of the occurrence rests upon the fact whether
the other persons knew before hand that the offence actually committed was
likely to be committed in prosecution of the common object. Such knowledge may
reasonably be collected from the nature of the assembly, arms or behaviour on or
before the scene of occurrence. If such knowledge may not reasonably be
attributed to the other members of the assembly then their liability for the
offence committed during occurrence does not arise.

8.      Learned Additional Public Prosecutor submits that P.Ws.1 to 5 are the
injured and the fact that they sustained injuries at the time and place of
occurrence lends support to their testimony that they were present during
occurrence.  He would also submit that the evidence of P.Ws.1 to 5 is cogent and
consistent that all the accused attacked them and caused injuries to them. He
would further urge that mere non mention of the details of overt acts of the
accused on the victims in the first information report is not a ground to doubt
the testimony of the prosecution witnesses. A further submission has been made
that in case of the accused being charged for the offence under constructive
liability, specific overt act on the part of the accused is not required to be
established by the prosecution.  He alternatively submits that common intention
of A1 and A8 to kill the deceased can be gathered by their conduct in the course
of the incident i.e. A8 caught hold of the deceased to facilitate A1 to give a
blow, and thus A1 and A8 shared the common intention to kill the deceased. In
support of his submissions, reliance has been placed on the decision of the
Supreme Court in CH.PULLA REDDY V. STATE OF ANDHRA PRADESH3 and BISHNA V. STATE              
OF W.B4.

9.      In CH.PULLA REDDY's case (3 supra), A2 therein was present on the night of
occurrence with a knife along with A1 who was also armed with a knife and they
took strong exception to the reprimand by the deceased on the earlier episode
which provided immediate motive for the commission of the crime. A1 and A2
therein had come armed with knives to the house of the deceased therein and both
were present at the middle of the night near the head of the cot on which the
deceased was lying where A1 stabbed him twice in the chest and thereafter left
the place. Basing on these set of facts, the Supreme Court held that A1 and A2
therein had thus shared the common intention of causing the death of the
deceased.

10.     In BISHNA's case (4 supra), the Supreme Court observed that FIR need not
be an encyclopedia of the events. A further observation has been made by the
Supreme Court in the cited case that for the purpose of attracting Section 149
or 34 IPC of specific overt act on the part of the accused is not necessary.

11.     We have given our thoughtful consideration to the rival contention of the
learned counsel. P.Ws.1 to 5 are the injured witnesses. The fact that they
sustained injuries in the occurrence has been well established through their
medical certificates which have been exhibited as Exs.P.3 to P.7. The incident
occurred at 7 a.m. on 9.7.2002. P.W.1 is one of the injured who presented the
report before the Station House Officer, Balanagar at 9.15 A.M. P.W.11 received
the report and registered a case in Crime No.147 of 2002 and sent the injured
(P.Ws.1 to 5) and the deceased to hospital for treatment. At 10.15 am he
received information that the deceased succumbed to injuries and thereupon he
altered the section of law and issued Ex.P.10 memo of alteration of section of
law. P.W.9 medically examined the injured between 10 a.m. to 11.30 a.m. More
precisely he examined P.W.3 at 10 a.m., P.W.2 at 10.25 a.m., P.W.1 at 11.05
a.m., P.W.5 at 11.20 a.m. and P.W.4 at 11.30 a.m. The time gap is so narrow to
put in any distorted version of the incident in Ex.P.1 report.

12.     It is contended by learned Senior Counsel that details of overt acts of
the accused have not been mentioned in Ex.P.1 report and thus the overt acts
attributed by the witnesses in their police statements and before the Court
pales into insignificance.

13.     It is apposite to note the circumstances under which Ex.P.1 report came to
be presented before the Station House Officer, Balanagar P.S. P.Ws.1 to 5 and
the deceased received injuries and the condition of the deceased was found to be
critical. Such is the situation, P.W.1 is not expected to allow further time to
be lapsed in giving graphic description of the occurrence without rushing to
hospital for medical assistance as quickly as possible. It is well settled that
FIR is not an encyclopedia and it is not be all and end all of a case.  Such a
report sets the law into motion and at the stage of investigation details can be
gathered and filled up. Mere omission of details in FIR would not put the
prosecution case out of court, if evidence on record establishes the prosecution
case, matter of details need not be mentioned in FIR vide the decision of the
Supreme Court in STATE OF U.P. v. SAHAI5. FIR merely meant to narrate the brief
facts, which led to the incident viz. names of the assailants and the place of
occurrence. It is not supposed to contain the minute details. Hence, omission to
mention details in it cannot affect the testimony of the witnesses concerned
when his testimony is found to be trustworthy vide decision of the Supreme Court
in STATE OF U.P. V. HARIRAM6. The same is the view reiterated by the Supreme  
Court in BISHNA's case referred to above.

14.     The circumstances under which Ex.P.1 report came to be presented have been
detailed supra. Therefore, mere omission of details of overt acts of the accused
in Ex.P.1 report does not in any way effect the testimony of P.Ws.1 to 5.

15.     P.Ws.1 to 5 have consistently stated that A1 beat the deceased with a crow
bar on his head and caused serious injury for which he succumbed on the way to
hospital. P.Ws.1,2,3 and 5 stated that A8 caught hold of the deceased.  Though
PWs.1 to 3, 4 and 6 stated before the Court that A2 dealt a stick blow on the
deceased, their police statements do not attribute any specific overt act to A2
with regard to attack on the deceased.  On the other hand, the investigating
officers, who have been examined as PWs.11 and 12, admit of the omission of
specific overt act of A2 in the statements of witnesses recorded under Section
161 Cr.P.C.  For better appreciation, we may refer the evidence of PW.12 in his
own words.  He stated in cross-examination as follows:
"PW.3 has not stated that A2 beat on the chest of the deceased with a stick.  As
per my investigation there is no mention of villagers who gathered at the place
of the incident.  PW.4 has not stated that A1 and A2 beat PW.1.  PW.4 has not
stated that PW.1 and PW.3 fell on the ground after receiving injuries.  The
witnesses have not stated that the deceased was beaten with a stick on the chest
by A2."

Since the overt acts attributed to A2 in respect of the attack on the deceased
is a major improvement by the witnesses before the Court over their police
statements, the same is liable to be excluded from consideration. Hence, A2
cannot be held responsible for the assault on the deceased.

16.     The question is
whether the evidence brought on record is sufficient to
invoke constructive liability as provided under section 149 IPC.
The genesis of
the incident commenced with a quarrel between P.W.1 and A3 at the house of P.W.6
over a petty issue. P.W.6 testifies that on the date of incident A3 came to his
house and requested him to provide chairs and thereupon P.W.1, who happened to
pass through on the road in front of his house, intervened and advised him to
provide the chairs of Gram Panchayat, for which A3 objected and abused him which
ultimately resulted in verbal altercation between P.W1 and A3.
Thereupon, P.Ws.2
to 5 and other accused arrived at the scene.
On thorough consideration of the
evidence brought on record, we are in no doubt to conclude that the incident
occurred on a sudden quarrel over a petty issue.  
The question 
whether the
members shared the common object to cause murder of the deceased has to be   decided on the basis of nature of weapons used by such members, the manner and  sequence of attack made by them on the deceased and the settings and the  surroundings under which occurrence took place. 
 No witness has proved that the
accused persons had come on the scene of offence with a common object to commit   
murder of the deceased. 
 None of them except A1 had given any blows to the
deceased with the weapons they allegedly carrying with them.  
The manner and 
sequence of attack on the deceased as spoken out by the prosecution witnesses is 
insufficient to draw an inference that the object of the unlawful assembly was
to kill the deceased or the member of the unlawful assembly knows that there was
likelihood of the deceased being killed in prosecution of the common object.
Therefore, Section 149 IPC cannot be pressed into service to make A2 to A8 as
responsible for the death of the deceased.
17.     The next question is
whether A8 can be said to have shared the common 
intention with A1 to kill the deceased so as to make him liable with aid of
Section 34 IPC.   
Section 34 of the Indian Penal Code provides for a vicarious
liability. It reads as under:
        "       Sec.34: Act 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 person is liable for that act in the same
manner as if it were done by him alone."

Section 34 IPC lays down a principle of joint liability in doing a criminal act.
The essence of liability is to be found in the existence of common intention
animating the accused leading to the doing of a criminal act in furtherance of
such intention.  
The distinct feature of Section 34 is element of participation
in action.  The common intention implies acting in concert, existence of pre-
arranged plan which is to be proved either from conduct or from circumstances or
from any incriminating facts.  It requires a pre-arranged plan and it
presupposes prior concert.  Therefore, there must be prior meeting of minds.
The prior concert or meeting of minds may be determined from the conduct of the
offenders unfolding itself during the course of action and declaration made by
them just before mounting the attack.  It can also be developed at the spur of
the moment but there must be pre-arranged or premeditated concert.  Common  
intention is to be inferred from the circumstances particularly the part played
by the accused and surrounding circumstances namely nature of the weapon used  
and injury inflicted as well as the meeting of the minds among the accused who
are being held constructively liable.  There is no uniform inflexible rule for
applying the principle of common intention.  The inference there for must be
drawn from the totality of the facts and circumstances of each case vide the
decision of the Supreme Court in ROTASH v. STATE OF RAJASTHAN7. 
Each case,       
however, has to be decided on its own merit. Facts of each case may have to be
dealt with differently. Totality of circumstances could hardly be ever similar
in all cases.

18.     A1 appeared on the scene while the altercation between A3 and PW.1 was on.  
Initially A1 came on the scene armed with a stick. 
Later he went to the school
and brought a crowbar and dealt a blow on the deceased which proved to be fatal.
A8 also appeared on the scene armed with a stick.  
The accusation made against 
A8 is that he caught hold of the deceased when A1 came on the scene armed with a 
crowbar. 
 Had A8 shared the common intention with A1, he would have not simply 
caught hold the deceased since he was already armed with a stick.  He must have
definitely dealt a blow with the stick on the deceased had he shared the common
intention with A1.  
Therefore, we are unable to hold that the only inference
possible is that A8 shared the common intention with A1 to kill the deceased.
No doubt, A8 caught the deceased and this facilitated A1 stabbing the deceased.
But, there is nothing whatsoever on record to indicate that A8 knew that A1
would cause fatal injury to the deceased, though he very much anticipated that
A1 would cause grievous injury to the deceased. 
 It is one of those borderline
cases where one may with equal justification infer that the common intention was
to commit murder or to cause grievous injury.  But the benefit of any such doubt
must go to A8.  In the circumstances, we conclude, that the common intention of
the accused has not been established, beyond reasonable doubt to cause the death 
of the deceased, but certainly was to cause grievous injuries to the deceased.
Therefore, A8 is to be held liable for the offence under Section 326 r/w.34 IPC
and whereas, A1 is to be held liable for the offence under Section 302 IPC.
The
evidence of PWs.1 to 5 that they sustained injuries in the hands of the accused
is fully corroborated by the medical evidence as well as the evidence of PW.6.
Therefore, we are not inclined to interfere with the conviction and sentence of
the appellants/ accused for the offences under Sections 148 and 324 IPC.

19.     In the result, the appeal is partly allowed setting aside the conviction
and sentence of the appellant Nos.2 to 8 (A2-Singapogu Chandra Mouli, A3-
Singapogu Shankaraiah, A4-Singapogu Sreenu, A5-Singapogu Venkataiah, A6-    
Singapogu Narsimha, A7-Singapogu Sailu and A8-Singapogu Bal Ram) for the offence   
under Section 302 IPC and they are acquitted of the same.  The conviction and
sentence of the appellant No.1/A1-Singapogu Anjaiah, for the offence under
Section 302 IPC and the conviction and sentence of the appellant Nos.1 to 8 (A1-
Singapogu Anjaiah, A2-Singapogu Chandra Mouli, A3-Singapogu Shankaraiah, A4-    
Singapogu Sreenu, A5-Singapogu Venkataiah, A6-Singapogu Narsimha, A7-Singapogu      
Sailu and A8-Singapogu Bal Ram) for the offences under Sections 148, 324 IPC are
confirmed.   Appellant No.8/A8-Singapogu Bal Ram is found guilty for the offence
under Section 326 r/w.34 IPC and he is convicted accordingly, and sentenced to
suffer rigorous imprisonment for a period of three years.  The sentence imposed
on him for the offence under section 326 r/w 34 IPC shall run concurrently with
the sentence imposed on other offences. Since the appellant Nos.2 to 7 (A2 to
A7) have already served out the sentence of imprisonment for the offences under
Sections 148 and 324 IPC, they shall be set at liberty forthwith, if they are
not required in any other crime.

?1 AIR 1999 S.C. 3830
2 (2006) 10 SCC 639
3 AIR 1993 SC 1899
4 (2006) 1 SCC (CRL) 696
5 1982 SCC (CRL) 223
6 AIR 1983 SC 1081
7 2007 AIR SCW 44  

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