Madras High Court
Durai vs State on 24 July, 2025
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
2025:MHC:1757
Crl.A(MD)No.44 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 09.07.2025
Pronounced on : 24.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.44 of 2022
1.Durai
2.Selvarani ... Appellants
Vs.
State, rep. by
The Inspector of Police,
Aranthangi Police Station,
Pudukkottai District.
(Crime No.170/2019) ...Respondent
PRAYER: Criminal Appeal filed under Section 374 of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in S.C.No.100 of 2019 on the file of the Principal District and Sessions
Judge, Pudukkottai, dated 30.07.2021 and set aside the same as illegal.
1/32
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Crl.A(MD)No.44 of 2022
For Appellant : Mr.C.Mayilvahana Rajendran
For Respondent : Mr.B.Nambiselvan,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
This Criminal Appeal is filed against the conviction and
sentence passed against the appellants/accused Nos.1 and 2 in the
judgment dated 30.07.2021 passed by the learned Principal District and
Sessions Judge, Pudukkottai, in S.C.No.100 of 2019 by which judgment,
A1 had been convicted for offence punishable under Section 302 of IPC
and sentenced to undergo life imprisonment and to pay a fine of
Rs.400/- in default to undergo one year rigorous imprisonment and A2
had been convicted for offence punishable under Section 302 r/w 34 IPC
and sentenced to undergo life imprisonment and to pay a fine of
Rs.400/- in default to undergo one year rigorous imprisonment and for
offence punishable under Section 342 IPC and sentenced to undergo
rigorous imprisonment for a period of one month.
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2. The case of the prosecution in brief is as follows:
On 10.04.2019 at about 23.40 hours, Ex.P1 complaint was
received from P.W.1, Nagooran with the following averments:
(i) The deceased is the son of the complainant. A1 was
employed with him as a mason, A2 is his wife. A1 received a sum of
Rs.1,000/- (Rupees One Thousand only) from P.W.1 as an advance.
Towards the same, a sum of Rs.600/- (Rupees Six Hundred only) was
deducted from out of his salary, the remaining amount Rs.400/- (Rupees
Four Hundred only) was due from him. When he requested to repay the
same, A1 often created a quarrel with him. On 10.04.2019 morning, his
wife Indirani/ P.W.2 went to the house of the accused and demanded the
said amount from the 2nd appellant Selvarani. She replied that she would
pay the money in the evening.
(ii) On the same day at about 9.00 p.m., A1 came in front of
his house and abused him with filthy language. Therefore, he came out
with his wife Indira and his sister Nagammal. A2 also came and abused
P.W.2 and informed A1 that, she alone demanded money. The
complainant and his wife told them that they need not pay but not to use
abusive language requested them to return to their house calmly.
(iii) At about 9.15 p.m., his son, deceased Marimuthu
returned from his job and after noticing the situation, requested the
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accused, not to quarrel with them. A1 rushed to his house and came out
holding a knife and instructed his wife to restrain them, so that he could
kill them. A2 held Nagooran's son tightly from behind. Immediately A1
stabbed him with a knife in the right chest, and he fell in a pool of blood.
Both A1 and A2 fled away. The complainant and others raised an alarm
and his brother Pandiyan (P.W.4), relative Vinoth (P.W.6) came and took
his son in a private ambulance to the Government Hospital, Aranthangi at
about 10.00 p.m. The Doctor examined him and declared that he was
brought dead. Hence, the complaint.
(iv) The complaint (Ex.P1) was recorded by Mr.Prabhu, Sub
Inspector of Police (P.W.11) on 10.04.2019, at about 23.45 hours,
registered FIR in Crime No.170 of 2019 for the offence under Sections
294(b), 342 and 302 of IPC and forwarded the complaint (Ex.P1) and
FIR (Ex.P18) to the concerned Judicial Magistrate Court.
(v) Mr.Raveendran, the Inspector of Police (P.W.12), took up
the case for investigation, went to the place of occurrence on 11.04.2019
at about 01.00 hours, and prepared observation mahazar (Ex.P2) and
Rough Sketch (Ex.P9) in the presence of witnesses Shanmugam and
Suresh. He recovered blood-stained cement stones (M.O.2), ordinary
cement stones (M.O.3) under a recovery mahazar (Ex.P3).
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(vi) Thereafter, he examined the witnesses and went to
Aranthangi Government Hospital Mortuary and conducted an inquest on
the dead body between 06.30 hours and 08.30 hours and prepared an
inquest report (Ex.P10) in the presence of the witness and
panchayadhars.
(vii) In order to find out the real cause of death, the dead
body was sent for autopsy through Police Constable Mr.Ramesh 1774
along with a requisition letter.
(viii) He examined the complainant and other witnesses and
recorded their statements.
(ix) On 11.04.2019 at about 13.00 hours, he arrested the
accused and recorded the confession statement of A1 (Ex.P4) in the
presence of witnesses Karthikeyan (P.W.8) and Ayyanar and recovered
the Knife (M.O.1) under a recovery mahazar (Ex.P5). Thereafter, he
handed over the accused for judicial custody.
(x) Thereafter, he examined other witnesses and recorded
their statements. He sent the material objects to the Court on 11.06.2019.
On the same day, he sent a requisition letter to the Judicial Magistrate to
forward the material objects for chemical analysis and received the
Biology report (Ex.C1) and Serology report (Ex.C2).
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(xi) On 27.07.2019, he examined Dr.Subbu Sivaraj (P.W.9)
and received the accident register (Ex.P.6). He also examined
Dr.Manohari (P.W.10) who had conducted the postmortem and collected
the postmortem report (Ex.P7).
(xii) P.W.10, Dr.Manohari, in the postmortem report (Ex.P7)
noted the following injuries on the dead body:
''A stab wound obliquely placed one end sharp &
another end blend Measuring 1 x 0.5 x into the organ
deep present over front of (L) Chest along mid calculiar
line 6 cm lateral to central line 7 cm below (L) nipple.
On dissection of wound has pierced intercostals space
& external pericardium & ends by piecing the (L)
ventricle of heart along the Anterior border measuring
5cm depth. Pleural cavity contains 900 ml of blood &
blood clots.
Another stab wound obliquely placed 1 x 0.3 cm x
muscle deep ends by piercing ribs 4 cm medical to first
Wound. Another stab wound of same size(+) over 1cm
medical to 2nd wound.
He opined that the deceased would appear to
have died of shock Hemorrhage as a result of stab
injury.”
(xiii) On 10.09.2019, he completed the investigation and
altered the section of law from 294(b), 342 and 302 IPC into Sections
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294(b), 342 and 302 IPC r/w.34 and the alteration report (Ex.P11), and
also filed a final report against the accused.
3. On receipt of the final report, the Judicial Magistrate,
Aranthangi, took up the case in P.R.C.No.14 of 2019 and issued
summons to the accused. After the appearance of the accused, copies of
the entire records were furnished to him at free of cost under Section
207 Cr.P.C.
4) Since the offence was exclusively triable by the Sessions
Court, the learned Judicial Magistrate committed the case records to the
Principal District and Sessions Court, Pudukkottai, under Section 209(A)
Cr.P.C. for further action.
5) The Principal District Judge, Pudukkottai, received the
case records, numbered it as S.C.No.100 of 2019 and took up the case for
disposal according to law, framed charges against A1 under Sections
294(b) and 302 IPC and A2 under Sections 294(b), 342 and 302 r/w.34
IPC. The charges were read over and explained to the accused. The
accused denied the charges and claimed to be tried. Therefore, the case
was posted for trial.
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6) On the side of the prosecution, P.W.1 to P.W.12 were
examined and Ex.P1 to Ex.P11 were marked. Material Objects M.O.1 to
M.O.3 were produced and Ex.C1 and Ex.C2 were marked. On the side of
the accused, no witness was examined and no document was marked.
7) After a full trial, the Court below convicted the accused as
follows:
1) A1 had been convicted for offence punishable under Section
302 of IPC and sentenced to undergo life imprisonment and to pay a fine
of Rs.400/- in default to undergo one year rigorous imprisonment and
2) A2 had been convicted for offence punishable under Section
302 r/w 34 IPC and sentenced to undergo life imprisonment and to pay a
fine of Rs.400/- in default to undergo one year rigorous imprisonment
and for offence punishable under Section 342 IPC and sentenced to
undergo rigorous imprisonment for a period of one month, against which,
the present Criminal Appeal has been filed.
8. The learned counsel for the appellant though raised
several grounds assailing the judgment of conviction and sentence, he
ultimately restricted his arguments and confined the same to the question
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of sentence alone. He submitted that the occurrence took place without
premeditation, in the heat of passion, and upon a sudden quarrel. The
dispute arose over money transaction. The 1st appellant /A1 received a
sum of Rs.1,000/- (Rupees One Thousand only) from P.W.1 as advance
from which, a sum of Rs.600/- (Rupees Six Hundred only) was deducted
from out of his salary. The remaining amount of Rs.400/- (Rupees Four
Hundred only) was due. On the date of occurrence, P.W.2, wife of P.W.1
and mother of the deceased, went to the house of the accused and
confronted with A2 for non-payment of the sum of Rs.400/- (Rupees
Four Hundred only). A2, had in turn informed her husband viz., the 1 st
appellant/A1 about the incident. Therefore, A1, proceeded to the house of
deceased and questioned them regarding the issue. At that time, the
deceased approached and used offending words against A1 and thereby
insulting him. The complainant and others tried to attack him. Provoked
by their act out of fit and anger, A1 went to his house which was adjacent
and took a knife, returned to the scene of occurrence and asked his wife
to hold one of the witnesses. A2, caught hold of the victim, and A1
inflicted a single stab injury but unfortunately, the victim succumbed to
the said injury. It was submitted that there was neither a premeditated
plan, nor any intention or motive to kill the deceased. None of the
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prosecution witness have deposed that the accused had any motive to
commit murder. The act was committed in a heat of passion as the
deceased had provoked him and in a sudden provocation, in a fit of anger
the offence occurred without prior planning or deliberation.
9. He referred to the confession statement of the accused,
wherein A1 narrated the sequence of events, leading to the occurrence.
Relying on the said statement, he referred the judgment reported in 2011
(2) MLJ (Crl) 624, (Ganesan vs. State represented by the Inspector of
Police, K.Vilakku Police Station, Theni District), whereas this Court
has held in paragraph No.17 as follows :
“Thus going by the above facts and the law
declared on the aspect of the permissibility of looking
into the confession recorded under Section 25 of the
Indian Evidence Act to decide on the nature of the
offence committed by the accused, we have no hesitation
in accepting the plea of the accused that the case herein
falls under Section 304(I) I.P.C., by applying Exception
1 to Section 300 I.P.C, thus inviting a sentence of seven
years rigorous imprisonment.”
10. The learned counsel for the appellant, contended that the
act committed by A1 does not amount to murder punishable under
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Section 302 IPC. Instead the act falls within the ambit of Section 304,
part ii IPC as it was committed without pre-meditation in the heat of
passion and sudden provocation and prays to reduce the sentence from
murder to culpable homicide not amounting to murder.
11. He further stated that A2 arrived at the place of
occurrence, only upon hearing the quarrel between A1 and others. There
is no evidence to suggest that she had any intention, motive or preplan to
kill the deceased. It was not established by the prosecution that she had
shared any common intention with A1 to kill the deceased, the conviction
under Section 34 IPC is liable to be set aside and she should be acquitted
from the above charge
12. The learned Additional Public Prosecutor appearing for
the State argued that, the case rests on the evidence of eyewitness. P.W.1
to P.W.3, clearly spoken about the occurrence, and there is no delay in the
FIR. The motive for the occurrence was spoken by the witnesses. The
evidence of eyewitness was corroborating with the medical evidence.
Arrest, confession and recovery have been proved. The prosecution
proved the guilt against the accused beyond all reasonable doubt and
there is no ground to interfere with the order of trial Court and prayed to
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dismiss the Criminal Appeal.
13. Upon careful verification of the records and evidence, it
is seen, as per the prosecution case and evidence adduced by P.W.1 that
A1 was working under P.W.1 as mason and was residing in the same
street along with his family. During the course of employment, he got an
advance of Rs.1,000/- (Rupees One Thousand only) from P.W.1. Out of
which a sum of Rs.600/- (Rupees Six Hundred only) was deducted from
his salary. The remaining amount of Rs.400/- (Rupees Four Hundred
only) was still due. On 10.04.2019 P.W.1 asked his wife, P.W.2, to go to
A1's house and collect the remaining amount. Accordingly, P.W.2, went
to his house and requested A2, wife of A1 to pay the money. A2 informed
P.W.2 that she would convey the message to her husband after he
returned from his work. On the same day at about 9.00 P.M., A1, came to
P.W.1’s house, abused him and picked up quarrel. P.W.1, requested A1
not to create trouble, and requested him to go back to his house
peacefully. At about 9.15 p.m., P.W.1’s son (deceased) arrived and
requested A1 to not to create problem and to leave the place. However
A1 abused him rushed to his house, returned with a knife and asked his
wife A2, to hold him, A2, then held him tightly. A1, stabbed the deceased
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on left side of his chest, resulting in his death. P.W.2, and P.W.3 who are
alleged to be witnesses to the occurrence supported the prosecution
version. Hence, A1 is liable to be punished under section 302 IPC, A2,
having facilitated the commission of the offence by holding the deceased
liable to be punished under section 302 r/w 34 IPC.
14. Though P.W.1 to P.W.3, had supported the prosecution
version, certain contradiction were noted in their evidences. According to
P.W.3 upon seeing the deceased, A1 shouted at him that he would not
spare him but kill him. This specific statement was not stated by both
P.W.1 and P.W.2.
15. Admittedly, the deceased died as a result of injury
inflicted by A1. However the prosecution has failed to establish that the
accused had prior enmity or some ill-motive against the deceased.
Furthermore, it is not proved that A1 came to the house of P.W.1 with
intention to commit murder of the deceased. Even as per prosecution, A1
came to the house of P.W.1 only to question P.W.1’s act of sending his
wife to his house to demand the return of money. At the time of initial
quarrel, deceased was not available in the P.W.1’s house. Later, he
returned from his work and had an altercation with A1 and during the
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course of occurrence, he sustained injury which ultimately led to his
death.
16. Now this Court has to decide whether the prosecution
proved that the act of A1 come under the purview of 300 IPC and
whether the act of A2, assist A1 to commit the offence in furtherance of
common intention?
17. In order to commit murder, as per section 300 IPC, the
following ingredients are necessary;
“300.Murder.—Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing
death, or—
Secondly.—If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or—
Fourthly.—If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
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death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception 4.—Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender's having taken undue advantage or acted in a
cruel or unusual manner.
Explantation—It is immaterial in such cases which party
offers the provocation or commits the first assault.”
18. As per penal provision under Section 300 IPC except the
following exceptions culpable homicide is murder.
“Exception 1- When culpable homicide is not murder-
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following
provisos:-
First- That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing. or
doing harm to any person.
Secondly- That the provocation is not given by anything
done in obedience to the law, or by a public servant in
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the lawful exercise of the powers of such public servant.
Thirdly- That the provocation is not given by anything
done in the lawful exercise of the right of private
defense
Exception 2- Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defense of person or property, exceeds the
power given to him by law and causes the death of the
person against whom he is exercising such right of
defense without premeditation, and without any
intention of doing more harm than is necessary for the
purpose of such defense.
Exception 3- Culpable homicide is not murder if the
offender, being a public servant or aiding. a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards
the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender having taken undue advantage or acted in
a cruel or unusual manner
Exception 5- Culpable homicide is not murder when the
person whose death is caused, being above the age of
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eighteen years, suffers death or takes the risk of death
with his own consent.”
19. According to the evidence of P.W.1 to P.W.3, A1 was
alone created problem and not by them. However the evidences of P.W.
4, and P.W.5 reveals that they heard the sounds of quarrel between the
accused and the members of P.W.1’s family. Despite this, there is no
clear or consistent evidence available explaining as to how the quarrel
escalated and ultimately resulted in the murder. In the absence any other
evidence, we are constrained to refer to the confession statement of A1.
20. As per Section 25 of the Indian Evidence Act, 1872
states that no confession made to a police officer shall be proved as
against the accused of an offence, which means that any statement made
by an accused person to the Police Officer, which is the nature of
confession cannot be used as evidence against them in a Court of law but
it could be referred in deciding the nature of crime committed.
21. In this connection, we relied upon the Ganesan’s case
[2011 (2) MLJ (Crl) 624], where the facts and circumstances of the
above case is similar in nature to the present case in which it was held
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that confession statement, could be referred for deciding the nature of the
offence committed. In paragraph No.14 of the above judgment, this
Court referred the case reported in AIR 1994 SC 610, (Murli Alias
Denny vs. State of Rajasthan) in which the Hon'ble Supreme Court,
pointed out that if the accused had acted on a sudden provocation,
exception 1 of Section 300 IPC stood attracted. Referring to the
admission found in the statement in favour of the accused, pointed out
that when there is no evidence disclosing as to how the quarrel ensued
and attack took place, the relevancy of the confessional statement could
be taken into account to find out whether the case falls under Exception 1
of Section 300 IPC.
22. Thus applying the ratio declared by this Court, we rely
upon the confession statement (Ex.P4) given by the A1 before the
Investigating Officer wherein, he stated that during the quarrel with P.W.
1, the deceased intervened and abused him saying that if he was not able
to repay the money, he would wear Saree instead of Dhoti. In a fit of rage
he attempted to attack the deceased. But the family members of the
deceased came together to confront him. He went inside, took a knife
came out, and asked his wife to hold some one, his wife caught hold the
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deceased tightly, he delivered a single blow. The victim succumbed to the
fatal injury sustained by him. The statement of accused was corroborated
with the evidence of P.W.4 and P.W.5. Both of them have stated that prior
to the occurrence they heard the noise of persons fighting near the house
of P.W.2.
23. The 1st appellant/A1 had no previous enmity or motive to
commit the murder. Furthermore, there is no evidence to show that he
had intention to commit murder. In fact, it has been established that
A1came to the house of P.W.1 to question regarding his action of sending
his wife to his house to demand repayment of money. Subsequently the
victim came and engaged in a quarrel with A1 uttering offensive
language and provoked A1. Due to the sudden provocation and in a fit of
anger, A1 committed the offence. Therefore, the offence committed by
A1 falls under exception 4 of 300 IPC and therefore, A1 is liable to be
acquitted from the charge under section 300 IPC but punishable under
Section 304 IPC.
24. Under Section 304 IPC there are two kinds of
punishment that apply to different circumstances;
“1. If the act by which death is caused is done with
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intention of causing death or such bodily injury as is
likely to cause death, the punishment is imprisonment for
life, or imprisonment of either description for a term
which may extend to ten years and fine.
2. If the act is done with knowledge that it is likely
to cause death but without any intention to cause death or
such bodily injury as likely to cause death, the
punishment of either description for a term which may
extend to ten years or with fine or with both.”
25. However this Court has to determine whether the offence
committed by A1 is punishable under Section 304 (i) IPC or 304(ii) IPC.
26. In this case, it is not proved that A1 had an intention to
cause death, but he had knowledge that such a stab injury on chest, likely
to cause death. Hence, he is liable to be punished for the offence under
Section 304(ii) IPC.
27. For the reason aforesaid, we are of the considered view
that the offence committed by the 1st appellant / A1 does not attract the
provision of Section 302 IPC, instead it falls under Section 304(ii) IPC.
Accordingly, we modify the conviction of the accused from Section 302
IPC to Section 304(ii) IPC. Consequently, the sentence of life
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imprisonment is also modified into sentenced to undergo five (5) years
rigorous imprisonment with fine of Rs.400/- (Rupees Four Hundred
only) in default, to undergo one month simple imprisonment.
28. Now, we have to decide whether the act done by A2,
falls under Section 34 IPC.
“Section 34 IPC. 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 manner as if it were done by him alone.”
29. The ingredients of Section 34 IPC are :-
A. Criminal act done by several persons
B. Such act is done in furtherance of common intention of
all and
C. Each of such persons is liable for that act in the same
manner as if it were done by him alone
Section 34 IPC is not a penal provision. It has been
enacted and principal of joint liability into Criminal Act.
It is only rule of evidence and does not create substantive
offence. Common intention implies prearranged plan.
30. The prosecution must establish through cogent evidence
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that there was prior meeting of minds or a pre-planned arrangement
among the accused, and that the act was committed in furtherance and of
their common intention. If the prosecution fails to establish this essential
ingredient beyond all reasonable doubt the benefit of doubt must be
extended to the accused.
31. In this connection, we rely upon the judgment rendered
in Vijendra Singh vs. State of Uttar Pradesh reported in 2017 (11) SCC
129, in which the Hon'ble Supreme Court has held as follows:
“20. He has also relied on the decision in Suresh
Sakharam Nangare (supra). In the said case, the Court after
referring to Section 34 IPC opined that a reading of the
above provision makes it clear that to apply Section 34,
apart from the fact that there should be two or more
accused, two factors must be established: (i) common
intention, and (ii) participation of the accused in the
commission of an offence. It further makes clear that if
common intention is proved but no overt act is attributed to
the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability but if participation
of the accused in the crime is proved and common intention
is absent, Section 34 cannot be invoked.
21. In the said case, the Court after analyzing the
evidence opined that there is no material from the side of the
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prosecution to show that the appellant therein had any
common intention to eliminate the deceased because the
only thing against the appellant therein was that he used to
associate himself with the accused for smoking ganja. On
this factual score, the Court came to hold that the appellant
could not be convicted in aid of Section 34 IPC.
22. In this regard, we may usefully refer to a passage
from the authority in Pandurang and Ors. v. State of
Hyderabad[9]. The three-Judge Bench in the said case
adverted to the applicability and scope of Section 34 IPC
and in that context ruled that:-
“32. … It requires a pre-arranged plan because
before a man can be vicariously convicted for the
criminal act of another, the act must have been done in
furtherance of the common intention of them all:
Mahbub Shah v. King Emperor[10]. Accordingly there
must have been a prior meeting of minds. Several
persons can simultaneously attack a man and each can
have the same intention, namely the intention to kill,
and each can individually inflict a separate fatal blow
and yet none would have the common intention
required by the section because there was no prior
meeting of minds to form a pre-arranged plan. In a
case like that, each would be individually liable for
whatever injury he caused but none could be
vicariously convicted for the act of any of the others;
and if the prosecution cannot prove that his separate
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blow was a fatal one he cannot be convicted of the
murder however clearly an intention to kill could be
proved in his case: Barendra Kumar Ghosh v. King
Emperor[11] and Mahbub Shah v. King Emperor
(supra). As Their Lordships say in the latter case, “the
partition which divides their bounds is often very thin:
nevertheless, the distinction is real and substantial,
and if overlooked will result in miscarriage of justice”.
33. The plan need not be elaborate, nor is a long
interval of time required. It could arise and be formed
suddenly, as for example when one man calls on
bystanders to help him kill a given individual and they,
either by their words or their acts, indicate their assent
to him and join him in the assault. There is then the
necessary meeting of the minds. There is a pre-
arranged plan however hastily formed and rudely
conceived. But pre-arrangement there must be and
premeditated concert. It is not enough, as in the latter
Privy Council case, to have the same intention
independently of each other, e.g., the intention to
rescue another and, if necessary, to kill those who
oppose.”
19. And, again:-
“34. … But to say this is no more than to
reproduce the ordinary rule about circumstantial
evidence, for there is no special rule of evidence for
this class of case. At bottom, it is a question of fact in
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every case and however similar the circumstances,
facts in one case cannot be used as a precedent to
determine the conclusion on the facts in another. All
that is necessary is either to have direct proof of prior
concert, or proof of circumstances which necessarily
lead to that inference, or, as we prefer to put it in the
time-honoured way, “the incriminating facts must be
incompatible with the innocence of the accused and
incapable of explanation on any other reasonable
hypothesis”. (Sarkar’s Evidence, 8th Edn., p. 30).”
20. In this context, we may refer with profit to the
statement of law as expounded by the Constitution Bench in
Mohan Singh (supra). In the said case, the Constitution
Bench has held that Section 34 that deals with cases of
constructive criminal liability provides that if a criminal act
is done by several persons in furtherance of the common
intention of all, each of such person is liable for the act in
the same manner as if it were done by him alone. It has been
further observed that the essential constituent of the
vicarious criminal liability prescribed by Section 34 is the
existence of common intention. The common intention in
question animates the accused persons and if the said
common intention leads to commission of the criminal
offence charged, each of the person sharing the common
intention is constructively liable for the criminal act done by
one of them. The larger Bench dealing with the concept of
constructive criminal liability under Sections 149 and 34
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IPC, expressed that just as the combination of persons
sharing the same common object is one of the features of an
unlawful assembly, so the existence of a combination of
persons sharing the same common intention is one of the
features of Section 34. In some ways the two sections are
similar and in some cases they may overlap. The common
intention which is the basis of Section 34 is different from
the common object which is the basis of the composition of
an unlawful assembly. Common intention denotes action-in-
concert and necessarily postulates the existence of a
prearranged plan and that must mean a prior meeting of
minds. It would be noticed that cases to which Section 34
can be applied disclose an element of participation in action
on the part of all the accused persons. The acts may be
different; may vary in their character, but they are all
actuated by the same common intention. Thereafter, the
Court held:-
“It is now well-settled that the common intention
required by Section 34 is different from the same
intention or similar intention. As has been
observed by the Privy Council in Mahbub Shah v.
King-Emperor (supra) common intention within
the meaning of Section 34 implies a pre-arranged
plan, and to convict the accused of an offence
applying the section it should be proved that the
criminal act was done in concert pursuant to the
pre- arranged plan and that the inference of
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common intention should never be reached unless
it is a necessary inference deducible from the
circumstances of the case.”
32. In Gadadhar Chandra vs. State of West Bengal reported
in 2022 (6) SCC 576, in which the Hon'ble Supreme Court has held as
follows:
“14.As consistently held by this Court, common
intention contemplated by Section 34 of IPC
presupposes prior concert. It requires meeting of
minds. It requires a prearranged plan before a man
can be vicariously convicted for the criminal act of
another. The criminal act must have been done in
furtherance of the common intention of all the
accused. In a given case, the plan can be formed
suddenly. In the present case, the non-examination of
two crucial eye witnesses makes the prosecution case
about the existence of a prior concert and
prearranged plan extremely doubtful.”
33. On a careful scrutiny of decision of the Hon’ble Supreme
Court make it absolutely clear that section 34 IPC lays down principle of
joint liability in doing criminal act and the criminal lagged must have
been done in furtherance of common intention. In the present case, it is
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not proved that A2 accompanied A1, and arrived at the place of
occurrence with pre-arranged plan, and done in furtherance of common
intention.
34. None of the prosecution witness have deposed that A2
used any abusive language or issued threats to the victim with an
intention to commit murder. Similarly no witness stated that A1
specifically instructed her to hold the victim. However, it has been
established through evidences that A1 ran inside the house and brought a
weapon asked her to restrain one of the witnesses, so that he would cause
injury, she caught hold the deceased from moving. Further it was not
established that A2 participated in the criminal act with prearranged plan
to eliminate the deceased and have been done in furtherance of common
intention. Therefore, in the absence of clear and convincing evidence of
shared intent, her role does not attract liability under section 34 IPC.
Therefore, we set aside the conviction under section 34 IPC as against
A2 and acquit her from the charges of 302 r/w 34 IPC. A2 is liable to be
punished for the offence of wrongful confinement under Section 342
IPC. Accordingly, trial Court convicted and sentenced her under the
above provision, for which we do not wish to interfere.
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35. In the result,
(i) This Criminal Appeal is partly allowed.
(ii) In so far as the charge under Section 342 IPC is
concerned, the order of the trial Court is confirmed.
(iii) The conviction under Section 302 IPC as against A1
and conviction under Section 302 r/w 34 IPC as against A2 passed
by the learned Principal District and Sessions Judge, Pudukkottai,
dated 30.07.2021, in S.C.No.100 of 2019 is set aside.
(iv) The 1st appellant/A1 is sentenced to undergo Rigorous
Imprisonment for five (5) years and to pay a fine of Rs.400/-
(Rupees Four Hundred only) in default to undergo Simple
Imprisonment for one month for the offence under
Section 304(ii) IPC.
(v) A2 acquitted from the charge under Section 302 r/w 34
IPC.
(vi) The period of sentence already undergone by the
accused 1 & 2/appellants shall be set off under Section 428
Cr.P.C., as against the substantive sentence.
(vii) Suspension of sentence granted by this Court to A2 on
12.04.2022 in Crl.M.P(MD)No.4016 of 2022 and to A1 on
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29.11.2022 in Crl.M.P.(MD) No.11237 of 2022, stands cancelled.
(viii) The trial Court is directed to secure the accused and
commit them to the prison to undergo the remaining period of
sentence.
(A.D.J.C., J.) & (R.P., J.)
24.07.2025
Index : Yes / No
NCC : Yes / No
rm
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To
1.The Principal District and Sessions Judge,
Pudukkottai.
2.The Inspector of Police,
Aranthangi Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.D.JAGADISH CHANDIRA, J.
AND
R.POORNIMA, J.
rm
Judgment in
24.07.2025
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