Kerala High Court
M.N.Gopi vs State Of Kerala on 12 November, 2024
2024:KER:84191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
CRL.REV.PET NO. 168 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 17.09.2011 IN CRL.A
NO.172 OF 2010 OF ADDITIONAL DISTRICT & SESSIONS JUDGE FAST
TRACK (ADHOC) COURT, MAVELIKKARA ARISING OUT OF THE
ORDER/JUDGMENT DATED 09.03.2010 IN CC NO.694 OF 2008 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT -I, MAVELIKKARA
PETITIONER/APPELLANT/ACCUSED:
M.N.GOPI
AGED 55 YEARS,
S/O NARAYANA PANICKER, MULLASSERIL KIZHAKKATHIL,
KALLIMEL MURI, VETTIYAR, MAVELIKKARA
BY ADVS.
SRI.P.SREEKUMAR
SRI.K.S.MANU PUNUKKONNOOR
SRI.V.K.RAJANANDAN
SRI.P.S.SIDHAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY THE SUB INSPETOR OF POLICE , MAVELIKKARA,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.
OTHER PRESENT:
ADV.SMT.MAYA M.N. - PUBLIC PROSECUTOR
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CRL.REV.PET NO. 168 OF 2012 2
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 12.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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CRL.REV.PET NO. 168 OF 2012 3
JUDGMENT
The revision petitioner is the accused in C.C.No.694/2008 of
the Judicial First Class Magistrate Court-I, Mavelikara. The offences
alleged were under Sections 451, 294 (b), 332 of IPC read with Section
3 (2) of Prevention of Damage to Public Property Act (herein after
referred as 'PDPP Act'). The learned Magistrate convicted the accused
under Sections 451 and 332 IPC and acquitted him for the offences
punishable under Section 294 (b) of IPC and under Section 3(2) of
PDPP Act.
2. Impugning the said judgment, the accused preferred
Crl.A.No.172/2010. The Appellate Court, after hearing both the sides,
dismissed the appeal.
3. Impugning the judgment in Crl.A.No.172/2010, the
accused preferred this Revision Petition.
4. The prosecution case is that, on 06.06.2006, at about
9.00 pm, the revision petitioner/accused along with two others
criminally trespassed into the ground floor of the Electrical Section
Office, Kollakadavu. Thereafter, one of the persons who accompanied
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the accused, abused PWs 1 and 2, the Sub Engineer and the Assistant
Engineer respectively. One of the persons accompanied by the accused,
appellant/revision petitioner, hit PW1 with a telephone. Thereafter,
those two persons hit PW2 several times on his right shoulder, chest and
back. The petitioner abused PW2 using obsene words and he caused
dislocation of the office furnitures. The companions of the
accused/revision petitioner threw and destroyed an electric meter of 3
phase watts and 3 watt meters of single phase and caused loss of Rs.
7500/- to the KSEB.
5. The offences alleged against the accused persons are
under Sections 451, 294 (b), 332 of IPC, 341 read with Section 3 (2) of
Prevention of Damage to Public Property Act.
6. However, the learned Magistrate convicted the sole
accused only under Section 451 and 332 IPC. The Appellate Court also
confirmed the conviction and sentence imposed by the learned
Magistrate.
7. The learned counsel appearing for the revision
peitioner/accused would submit that, the Trial Court and the Appellate
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Court, went wrong in convicting and sentencing the accused invoking
Section 34 of the Penal Code, in a case wherein, there is only one
accused. It is submitted that, there is no overt act against the
accused/revision petitioner. The evidence would only indicate that the
person who accompanied by the accused has committed the alleged
overt acts. Admittedly, those persons were not charge sheeted and they
never faced trial.
8. I have heard Sri. P. Sreekumar, the learned counsel
appearing for the petitioner and Smt. Maya M.N., the learned Public
Prosecutor.
9. The learned counsel for the revision petitioner would
further submit that mere entry by the accused into a public office like
KSEB would no way to attract Section 451 IPC. The prosecution has no
case that, he unlawfully remained there and committed any offence or
unlawful acts. In the absence of such evidence, the conviction and
sentence imposed by the Trial Court and the Apellate Court could not be
sustained.
10. The learned counsel for the accused/revision
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petitioner invited the attention of this Court to a decision reported as
Krishnamurthy and ors. Vs. State of Karnataka (2022) 7 SCC 521.
Paragraphs 18 and 19 of the said judgment of the Hon'ble Apex Court
reads thus:-
" 18. Section 34 IPC makes a co-perpetrator, who had
participated in the offence, equally liable on the principle of joint
liability. For Section 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.
However, this does not mean that co-perpetrators should have
engaged in any discussion, agreement or valuation. For Section 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 co-
perpetrator such cases, direct evidence normally will not be
available and in most cases, whether or not there exists a comm
co-perpetrator on intention has to co-perpetrator be determined by
drawing inference from the facts proved. This requires an inquiry
into the antecedents co-perpetrator, 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 Section 34 IPC are satisfied. We must remember that Section 34
IPC comes into operation against the co-perpetrators because they
have not committed the principal or main act, which is
undertaken/performed or is attributed to the main culprit or
perpetrator. co-perpetrator Where an accused is the main or final
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perpetrator, resort to Section 34 IPC is not necessary as the said
perpetrator is himself individually liable for having caused the
injury/o co-perpetrator ffence. A person is liable for his own acts.
Section 34 or the principle of common intention is invoked to
implicate and fasten joint liability on other co-participants. F co-
perpetrator urther, the expression/term "criminal act" in Section
34 IPC refers to the physical act, which has been done by the co-
perpetrators/participants as distinct from the effect, result or
consequence. In other words, expression "criminal act" referred
to in Section 34 IPC is different from "offence". For example, if A
and B strike Lathi at X, the criminal act is of striking lathis,
whereas the offence committed may be of murder, culpable
homicide or simple or grievous injuries. The expression "common
intention" should also not be confused with "intention" or "mens
rea" as an essential ingredient of several offences under the IPC.
Intention may be an ingredient of an offence and this is a personal
matter. For some offences, mental intention is not a requirement
but knowledge is sufficient and constitutes necessary mens rea.
Section 34 IPC can be invoked for the said offence also [refer
Afrahim Sheikh and Ors. (supra)]. Common intention is common
design or common intent, which is akin to motive or object. It is
the reason or purpose behind doing of all acts by the individual
participant forming the criminal act. In some cases, intention,
which is ingredient of the offence, may be identical with the
common intention of the co-perpetrators, but this is not
mandatory.
19. Section 34 IPC also uses the expression "act in furtherance of
common intention". Therefore, in each case when Section 34 is
invoked, it is necessary to examine whether the criminal offence
charged was done in furtherance of the common intention of the
participator. If the criminal offence is distinctly remote and
unconnected with the common intention, Section 34 would not be
applicable. However, if the criminal offence done or performed
was attributable or was primarily connected or was a known or
reasonably possible outcome of the preconcert/contemporaneous
engagement or a manifestation of the mutual consent for carrying
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out common purpose, it will fall within the scope and ambit of the
act done in furtherance of common intention. Thus, the word
"furtherance" propounds a wide scope but should not be
expanded beyond the intent and purpose of the statute. Russell on
Crime, (10th edition page 557), while examining the word
"furtherance" had stated that it refers to "the action of helping
forward" and "it indicates some kind of aid or assistance
producing an effect in the future" and that "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." An act
which is extraneous to the common intention or is done in
opposition to it and is not required to be done at all for carrying
out the common intention, cannot be said to be in furtherance of
common intention [refer judgment of R.P. Sethi J. in Suresh
(supra)]."
11. Therefore, in Krishnamurthy's case (supra), the
Hon'ble Apex Court would observe that in order to apply Section 34,
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.
12. In the instant case, no overt act is alleged against the
revision petitioner/accused. There is nothing on record to indicate that
the revision peitioner/accused has shared common intention with some
others. In the instant case, there is only one accused, and the other
accused were not even charge sheeted, nor they faced any trial. The
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conviction and sentence imposed against the revision petitioner/accused,
invoking Section 34 IPC in this case, is not legally sustainable in my
view. The Trial Court and the Appellate Court have overlooked this
vital aspect and committed a serious illegality.
13. Upon hearing the submissions across the Bar, I am of
the view that, interference from this Court is warranted in this matter.
The conviction and the sentence imposed by the Trial Court and
confirmed by the Appellate Court are hereby set aside. The revision
petitioner/accused is not found guilty and he is set at liberty. The bail
bond executed by him, if any, stands cancelled.
This Criminal Revision Petition is disposed of accordingly.
Sd/-
K. V. JAYAKUMAR
JUDGE
SLR
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APPENDIX OF CRL.R.P.168/2012
PETITIONER ANNEXURES
ANNEXURE A1 A TRUE COPY OF THE JUDGMENT DATED
17.09.2011 IN CRIMINAL APPEAL
NO.172/2010 OF THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE FAST TRACK (ADHOC),
MAVELIKARA
ANNEXURE A2 A TRUE COPY OF THE JUDGMENT DATED
09.03.2010 IN CC NO.694/2008 OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
MAVELIKARA
