# {1959] B. N. SRIKAXT IAH & OTHERS v. THE STATE OF MYSORE

- **Citation:** [1959] 1 S.C.R. 496
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** CRIMINAL APPELLA1'E JURISDICTION: Criminal Appeals Nos. 120 & 121 of 1955
- **Bench:** Bhaowati, J·. L. Kapur, A. K. Sarj\Ar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-b-n-srikaxt-iah-others-v-the-state-of-mysore-1678
- **Pages:** 13

## Headnote

'!lfurder-Chargc under s. 302 si1npliciter-Convicfion u11dcr
s. 302/34. u:hen perniissiblc-F'rej11dicc-Co1n1non Intention-Indian
Penal Code (XLl' of I86o), ss. 34 and 302.
•
Six persons \Vere charged under s. i43 Indian ]Jenal Code for
being members of an unlavvful assen1bly the con1111on object of
which \Vas to n1urder one Anne c;o\vda. J·'ive of then1 \Vere further
charged under s. 302 Indian Penal Code for comn1itting murder
by intentionally causing the death of Anne Gowda, and the sixth
was charged under s. 302/ro9 India! Pe1rnl Code for abetment of
rnurder. The trial Court acquitted all the six accused under s. 143,
acquitte<l two of them but convicted the three appellants under
s. 302, and convicted the sixth accused under s. 302/109. On
appeal the High Court maintained the conviction of the appellants
under s. 302 but acquitted the sixth accused under s. 302/rog. It
was contended by the appellant that as the prosecution had not
established which of the appellants had giyen the fatal blow none
of them could be convicted under s. 302 simpliciter and that as no
charge had been framed under s. 34 they could not be convicted
under s. 302/34 Indian Penal Code :
Held, that the on1isSion to mentions. 34 Indian J>enal Code
in the charge coulJ not affect the case unless prejudice '''as sho,vn
to have resulted in consequence thereof.
~fhe charge '"as that
the appellants and two others committed the murder by intentionally cansing the death of the deceased.
The appellants had
notice that they \Vere being tried as " sharers in the offence " and
that their liability \Vas colJective and vicarious and not individual.
The appellants had neither alleged nor shown that the omission
to specify s. 34 in the charge had caus<'d them any prejudice.
Common intention is a question of fact and is to be gathered
from the acts of the parties. The evidenCe sho,ved that there \vas
preconcert, that the appellants attacked the deceased \Vi th choppers i11juring him on the head, the neck, the shoulders and the
forearms and that the appellants not only caused injuries to the
deceased at the place \vhere they ·met hi111 but they also chase(l
him when he tPied to run away to save him~elf and continued to
assault him with the deadly wearons till he was dead.
The conduct of the appellants, the ferocity of the attack, the weapons
used, the situs of the injuries and their nature together \vith the
fact that there was preconcert established that the common intention of the appellants was to murder the deceased.
•
CRIMINAL APPELLA1'E
JURISDICTION:
Criminal
Appeals Nos. 120 & 121 of 1955.
•
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.S.O;R.
SUPltEME COURT ):tEPORTS
497
· Appeals from the judgment and order dated Decem-·
x95S
her 16, 1954, of the Mysore High Court at Bang~l?re B. N. Srikantiah
'in Criminal Appeals Nos. 49 and 50 of 1953 arrsmg
""othm
out of the judgment and order dated May 19, 1953, of
v.
thlfCourt of the Third Additional Sessions Judge at
The Stale of
']3angalore in Bangalore Sessions Case No. 7 of 1953.
Mysore
• V. Krishnamurthy and R. Gopalakrishnan, for the
a,pj)ellants.
: G. Channappa, Assistant Allvocate-General for the
#tate of My-sore and T. 111. Sen, for the respondent.
; 1958. April 14.
The Judgment of the Court was
delivered by
: KAPUR J.-'l'hese two appeals under Art. 134(l)(c)
Kapur J.
of the Constitution arise out of the judgment and
prder of the High Court of Mysore at Bangalore
confirming the convictions and sentences pass13d upon
the appellants who were aecused Nos. ' 2, :3 <tnd 4
respectively by the Third Additional District Judge,
Bangalore.
Accused Nos. 1, 5 and 6 who have been aec1uitted
and the appellants were charged as follows:
.
"l ........ +•···~···.11erebj.r cl1arge J1ou A~l Sanjeeva
.,
Rao, A-2 Srikantiah, A-3 8idda, A-4 Kidaripat.bi, A-5
.fianumantha and A-6 Pujari Anantha as follows: ·
.
I. That you on or about tJrn 25th day of Augnst
1952 at Mayasandra in Magadi Taluk were members
, ·Of an unlawful assembly the common object of whieh
\'\'as t

## Text

1958
April i4
496
SUPREME COURT REPORTS
{1959]
B. N. SRIKAXT IAH & OTHERS
v.
THE STATE OF MYSORE
(BHAOWATI, J·. L. KAPUR and A. K. SARJ\AR JJ.)
'!lfurder-Chargc under s. 302 si1npliciter-Convicfion u11dcr
s. 302/34. u:hen perniissiblc-F'rej11dicc-Co1n1non Intention-Indian
Penal Code (XLl' of I86o), ss. 34 and 302.
•
Six persons \Vere charged under s. i43 Indian ]Jenal Code for
being members of an unlavvful assen1bly the con1111on object of
which \Vas to n1urder one Anne c;o\vda. J·'ive of then1 \Vere further
charged under s. 302 Indian Penal Code for comn1itting murder
by intentionally causing the death of Anne Gowda, and the sixth
was charged under s. 302/ro9 India! Pe1rnl Code for abetment of
rnurder. The trial Court acquitted all the six accused under s. 143,
acquitte<l two of them but convicted the three appellants under
s. 302, and convicted the sixth accused under s. 302/109. On
appeal the High Court maintained the conviction of the appellants
under s. 302 but acquitted the sixth accused under s. 302/rog. It
was contended by the appellant that as the prosecution had not
established which of the appellants had giyen the fatal blow none
of them could be convicted under s. 302 simpliciter and that as no
charge had been framed under s. 34 they could not be convicted
under s. 302/34 Indian Penal Code :
Held, that the on1isSion to mentions. 34 Indian J>enal Code
in the charge coulJ not affect the case unless prejudice '''as sho,vn
to have resulted in consequence thereof.
~fhe charge '"as that
the appellants and two others committed the murder by intentionally cansing the death of the deceased.
The appellants had
notice that they \Vere being tried as " sharers in the offence " and
that their liability \Vas colJective and vicarious and not individual.
The appellants had neither alleged nor shown that the omission
to specify s. 34 in the charge had caus<'d them any prejudice.
Common intention is a question of fact and is to be gathered
from the acts of the parties. The evidenCe sho,ved that there \vas
preconcert, that the appellants attacked the deceased \Vi th choppers i11juring him on the head, the neck, the shoulders and the
forearms and that the appellants not only caused injuries to the
deceased at the place \vhere they ·met hi111 but they also chase(l
him when he tPied to run away to save him~elf and continued to
assault him with the deadly wearons till he was dead.
The conduct of the appellants, the ferocity of the attack, the weapons
used, the situs of the injuries and their nature together \vith the
fact that there was preconcert established that the common intention of the appellants was to murder the deceased.
•
CRIMINAL APPELLA1'E
JURISDICTION:
Criminal
Appeals Nos. 120 & 121 of 1955.
•
'
,
'
r
' '
'
r
.S.O;R.
SUPltEME COURT ):tEPORTS
497
· Appeals from the judgment and order dated Decem-·
x95S
her 16, 1954, of the Mysore High Court at Bang~l?re B. N. Srikantiah
'in Criminal Appeals Nos. 49 and 50 of 1953 arrsmg
""othm
out of the judgment and order dated May 19, 1953, of
v.
thlfCourt of the Third Additional Sessions Judge at
The Stale of
']3angalore in Bangalore Sessions Case No. 7 of 1953.
Mysore
• V. Krishnamurthy and R. Gopalakrishnan, for the
a,pj)ellants.
: G. Channappa, Assistant Allvocate-General for the
#tate of My-sore and T. 111. Sen, for the respondent.
; 1958. April 14.
The Judgment of the Court was
delivered by
: KAPUR J.-'l'hese two appeals under Art. 134(l)(c)
Kapur J.
of the Constitution arise out of the judgment and
prder of the High Court of Mysore at Bangalore
confirming the convictions and sentences pass13d upon
the appellants who were aecused Nos. ' 2, :3 <tnd 4
respectively by the Third Additional District Judge,
Bangalore.
Accused Nos. 1, 5 and 6 who have been aec1uitted
and the appellants were charged as follows:
.
"l ........ +•···~···.11erebj.r cl1arge J1ou A~l Sanjeeva
.,
Rao, A-2 Srikantiah, A-3 8idda, A-4 Kidaripat.bi, A-5
.fianumantha and A-6 Pujari Anantha as follows: ·
.
I. That you on or about tJrn 25th day of Augnst
1952 at Mayasandra in Magadi Taluk were members
, ·Of an unlawful assembly the common object of whieh
\'\'as to murder ·deceased Anne Gowda and therebv
committed an offence punishable under section 143.0'f
the Indian Penal Code and within the cognizanee of
the Court of Sessions.
2.
That you A-2 Srikantiah, A-3 Sidda, A-4
Kadaripathi, A-5 l:fanumantha and A-6
Pujari
Anantha, on or about the 25th day of August 19,52 at
Mayasandra in Magadi Taluk did commit murder by
intentionally causing the death of Anne Gowda and
thereby committed an offence punishable under section
302 • of · the Indian Penal Code, and
within the
cognizance of the Court of Sessions.
3. And that you A-1 Sanjeeva Rao on or about
•
•
B. N. Srikantiah
& Others
v.
The State of
J\Iysore
Kapur ].
498
SUPREME COURT REPORTS
[1959]
the 25th day of August 1952 atMayasandra in Magadi
Taluk abetted the commission of the offence of murder
by A-2 to A-6 which was committed in consequence of
your abetment and thereby committed an offence
punishable unier sections 109 and 302 of the Indian
Penal Code, and within the cognizance of the Court of
Sessions.''
•
Thus all of them were charged with being members of
an unlawful assembly, the common object of which
was to murder the deceased, Anne Gowda.
The
appellants along with Hanumantha accused No. 5 and
Pujari accused l'\ o. 6 were further charged with
committing murder of Anne Gowda by intentionally
causing his death .. No doubt the charge does not contain the words " in furtherance of the common intention of all" but short of that the charge is as •near
them as it could be.
Accused No. 1 Sanjeeva Rao
was further ch~trged with abetting the offence of
murder. The trial Court acquitted all the accused of
the charge under s. 143 Indian Penal Code and accused
Nos. 5 & 6 of the charge under s. 302 but he convicted
accused Xo. 1 under s. 302/109 and the appellants
under s. 302 and sentenced them all to transportation
for life.
They took an appeal to the High Court and
the State appealed against the order of acquittal of
accused Nos. 5 & 6 and the order of acquittal under
s. 143.
The High Court acquitted accused No. 1
Sanjecva Itao of abetment of murder after the matter.
was referred to a third fudge under s. 429 of the Criminal Procedure Code as there was a difference of
op"inion between the two judges of the Division Bench
hearing the appeal and thus the case of abetment
set up by the prosecution failed. It upheld the acquittal of accused Nos. 5 and 6.
The charge of unlawful
assembly of wiiich the common object was the murder
of Anne Gowda the deceased also failed because of the
acquittal of Sanjeeva Itao accused l'\o. 1 Hanumantha
accused No. 5 and Pujari accused No. 6 thus leaving
only the appellants. Their conviction for an off;ence
under s. 302, Indian Penal Code and the sentence of
transportation was upheld. The trial Court's finding
against them wii.s _as follows;
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s.o.n.
ffOPR:l!~ME CO.UR~ REPORTS
499
"So far as A-2 Srikantiah, A-3 Sidda and A-4
,Kadaripathi alias Kunta are concerned, tJiere is ample
evidence to show that they alone inflicted injuries on
the deceased Anne Gowda and caused his death. Thus
a prima facie case has been made out against them for
the murder of Anne Gowda".
The High Court in appeal said:-
"The evidence on the whole is consistent and in
fact it is so consistent that it was being urged on
behalf of the accused that each witness was repeating
what the other says. Some of the important witnesses
have been mentioned in the First Information Report
and the inquest itself was over within 24 hours after
fhe incident. Taking the consistent evidence of the
witnesses and the probabilities of the case it has to be
stated that the evidence of the prosecution witnesses
as regards the incident has to be believed ".
We have not had the advantage of a critical and analytical examination of the evidence of the prosecution
witnesses by either of the courts below nor has the
()Vidence against each of the appellants been collated
and therefore it was necessary for us to examine the
evidence in some detail.
' The evidence of the witnesses for the prosecution
shows that the deceased Anne Gowda and the party of
Sanjeeva Rao accused No. 1 had conside1:'.able amount
of enmity between each other. On the date of the
occurrence, i. e., August 25, 1952, the deceasel'l had gone
to Ramanagram where in a Magistrate's Court a case
had been brought against him by accused No. 1.
After the case was over the deceased and P. W. l8
Gangabyriah who was a co-accused in the case and
Putta P. ,V. 20 who was a witness travelled by the
bus which reached a place called Kudur at about 7 p.m.
From Kudur the deceased accompanieq by his two
companions and also P.vV. 17 Thimmappa and P.W.
19 Puttarangiah and P.,V. 21 Basavalingappa who
ha.d gone for shopping to the shop of P.,V. 11 Subba
B11io, started for their village Yollapore. When they
reacl'!.ed the bund of the tank of Mayasandra, accused
Nos. 1 and 5 and the appellants came from the opposite side. Accused No. 1 flashed his torch on to the
I
•
B. N. Srikantiah
& Others
v.
The State of
Mysore
Hapur ].
B. 1V. Sriha11tiah
& Others
v.
The S'fate of
Mysore
Kafntr ].
500
SUPREME COURT REPORTS
[1959]
deceased and his companions.
Thereupon appellant
No. 1 who is.the brother ofSaujee,·a Rao accused No. l
gave a blow with his chopper which cut into two the
torch which at the time was in the hand of P.W. 18
Gangahyriah and on the instigation of accused No. 1
to kill the deceased the appellants started their attack
on him.
Appellant No.:~ Sidda gave a blow from be.
hind on the right side of the neck of the deceased with
his chopper and accused No. 4 Kadaripathi aimed a
blow on his head but to ward off the blow the deceased
raised his hand and the blow fell on his hand. The
deceased then ran towards the tank chasecl by the
accused Nos. 1 m1d 5 and the appellants.
Ho fell into
a shallow water pit.
Accused Nos. 5 and 6 who were
empty handed arc stated to have caught hold of him
and the appellahts gave five or ,;ix blows to the dcceaserl with choppern.
Accused :\os. 5 and o•thon
released him but the appellants continued the assn,ult
with thei!' choppers aud caused 24 incised injuries.
This story is supported by P.W. 17 Thimmappa, P.\V.
18 Gangabyriah, P.W. 19 Puttarangiah and P.W. 20
Putta and lastly P.W. 21 Basavalingappa. The First
Information geport which was lodged at about 1 a.m.,
un August 26, \vas made by P.W. 17 Thimmappa arnl
the whole• inciden1' is there set out along with the
names of the accused as well as tho witnesses.
When the house of Appellant No. 3 8idda was searched a blootlstained chopper ;\I. 0. 11 was produced by
him before the Panchayatdars. 8imilarly the house of
accused No. 4 [(adaripathi was also searched and tlmt
appellant also prodnced a chopper there.
As the
prosecution has not proved that any of these choppers
was stained with human blood it cannot get 1mlCh
assistance from this recovery.
The medical witness P.W. :l, fonnd as many as 24
injuries.
O{ these injury No. G was described as
follows:-
" A transverse incised wound in front of the
neck 5 11
long 2'!" 11 deep, cutting the skin, muscles,
arteries, veins above the thyroid cartilege, pharynx and
muscles in front of the vertebral column. On the right
side the wound starts 2 11 below the lobule of the right
.
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.S.C.R .
SUPREME COURT REPORTS
501
. ear, runs to the left and ends 2" below and 1 n behind
r958
the lobule of the left ear ".
All the other injuries were incised varying in degree of
seriousness. The medical \\ritness's opinion was that
~·injury No. 5 is a fatal injury sufficient to cause death
............ All the other injuries taken as whole may be
fatitl ". The prosecution has not proved as 'to who
caused injury No. 5 nor has it specified the injuries
caused by individual appellants. The question then
arises; what is the offence which the appellants are
guilty of, if any. Courts below have accepted the
testimony of the witnesses which establishes that there
1vas enm.ity between the parties and that on the date
of the occurrence the deceased had gone to the Magistrate's Court at Ramanagram for the case 'which had
been "brought at the instance of acet.1sed No. 1.
The
evidence also shows tha,t on that date appellants 3 and
4 were seen. together at Kudur in front of the shop of
P.W. 10 at about 6 p.m. When accused No. 3 was
asked by Siddappa P.w·. 10 as to wlrnt had brought
him there, his reply was that. " he was waiting for
so1hebody who was coming by Renu'ka Bns Service".
The testimony of P.YV. 11 on this point is that he saw
accused Nos. 3 and 4 and another man about 5-30
p.n1. or 6 p.m. in front of his shop. He asked them
why they had come.
They replied that "they had
con1e to see some persons coming by Renulrn Bus"
and there -i,;; evidence to show that the deceased and
his two companions had come from Ramanagram by
this Bus Service at aboat 7 p.m. The evidence .9f
prosecution witnesses Nos. 17 to 21 also establishes tha"t
when the deceased and his party anived near the
bund of the tank the party of the accused came towards them.
One of the accused Sanjeeva Rao
(accused No. 1) flashed a torch and the others started
attacking the deceased with choppers at the instigation
of thM accused.
Injuries were caused qn the head,
the neck and the shoulders or on th_e right and left
foreatms which must have been caused when the deceas~d tried to. save himself by raising his arm to
prr;>tect his· head..
The
common intention of the
~
.
.
B. N. Srikanlialt'
& Others
v.
The State of
/Vlysore
J<apur J.
..
B. N. Srikantiah
&.. Others
v.
The State of
Mysore
Kapur ].
'
502
SUPREME COURT REPORTS
tl959J
appellants ls clear from the fact that not only \vere they
armed with deadly weapons which they used to cause
injuries to the deceased at .the place where they first
met him and his companions but they also chased him
when he tried to run away to save himself and all of
them continued assitulting him with these deadly weapons till he was dead. The evidence further shows
that all of them took part in the assault. There w'ere
24 injuries on the person of the deceased and of them
twenty one were incised. They are either on his head
or the neck or the shoulders and on the forearms.
All these except perhaps the last are vital parts of the
body and anybody who causes injuries with weapons
of the kind that the appellants used must be fixed with
the intention of causing such bodily injury or injuries
as would fall within S• 300 of the Indian Penal Gode.
The question has then been raised that there was
no charge under s. 34 and therefore the accused cannot be convicted of liability as sharers in an offence
by the application of s. 34, i.e., in prosecution of the
common intention of all.
Now intention is a question
of fact which is to be gathered from the acts of the
parties and whoever caused injury No. 5 or the persons
who caused the other injuries on the vital parts of the
body could have had no other intention but of causing
the death considering the nature and number of injuries and the weapons used.
The omission to mention s. 34 of the Indian Penal
Code in the charge cannnot affect the case unless prejudice iB shown to have resulted in consequence thereof.
The charge was that the appellants and others were
membern of an unlawful assembly, the common objeet
of which was to murder the deceased. Although there
is a difference in common object and common intention, they bQth deal " with combination of persons who
become punishable as sharers in an offence", and a
charge under s. 149, Indian Penal Code is no impediment to a conviction by the application of s. 34 if the
evidence discloses the commission of the offence in
furtherance of the common intention of all.
•
In the second charge it was clearly stated that the
appellants an4 accused ~os. 5 & 6 committed the
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S.C.R.
SUPREME COURT REPORTS
503
murder by intentionally causing the death of the deceased. No doubt it would have been better if in the charge
s. 34 had been specified. But the mere omission to
specify it cannot in the circumstances of this case have .
any effect as no prejudice has been alleged or shown.
As a matter of fact this question was never agitated in
either of the Courts below.
This Court in Willie (William) Slaney v. The State of Madhya Pradesh (1) has laid
down the law in regard to tpe effect of a defect in a
charge. In that case the charge was under s. 302,
read with s. 34 and the conviction was under s. 302,
-Indian Penal Code. It was there pointed out that
procedural laws are designed to subserve the ends of
justice and not to frustrate them and if the trial is
conducted substantially in the manner prescribed by
the Code but some irregularity occurs in the course of
such conduct the irregularity is curable under s. 537,
Criminal Procedure Code.
See: Pulukuri Kotayya v.
King Emperor (2).
As was pointed by Viscount Sumner in Atta Mohammad v. King Emperor (3):
"In the complet"e absence of any stibstantial. injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases,
their Lordships find it impossible to advise His Majesty
to interfere. "
The object of a charge is to warn the accused person
' of the case he is to answer. It cannot be treated as if
. it was a part of a ceremonial. Bose J. observed in
• William Slaney's case (1) with reference to ss. 232 (I)
and 535 of the Criminal Procedure Code where the words
used are "by the absence of a charge" in s. 232(1) and
" no charge was framed " in s. 535 :
•
" We see no reason for straining at the 111eaning
of these plain and emphatic provisions unless ritual
and form are to be regarded as of the essence in crimi-
. nal trials. We are unable to find any ma~ic or charm
in the ritual of a charge. It is the substance of these
provisions that count and not their outward form.
To
hold otherwise is only to provide avenues of escape for
the guilty and afford no protection to the innocent."
(1) [1955] 2 S.C.R. rr40, rr65.
(2) (1946) L.R. 74 I.A. 65, 75.
(3) (1929) L.R. 57 I.A. 71, 76.
•
B. N. Srikantiah
& Others
v.
The St11te of·
Mysore
J(apur J.
B. iV. S1·ikanfi(i/i
& Others
v.
1"/ic State of
Mysore
1-i.apur J.
504
SUPREME COURT REPORTS
(1959]
The imperfection iri the charge is curable provided
no prejudice has been shown to have resulted because of
it.
The ·appellants had notice that they were being
tried as " sharers in the offence" aiid their liability was
collective and vicarious and not individual. No doubt
they were charged under s. 149 of the Indian Penal
Code with being members of an unlawful assembly the
common object of which was murder of the decea"ed
but they were also charged that they with accused
Nos. 5 & 6 had committed murder
b~· intentionally
causing the death of the deceased.
The prosecution
led evidence to show that at least two of the appellants
were waiting for the arrival of the evening .Bus by
which the deceased and his companions \Yere travelling
and that the appellants and others met them at the
bund and there was a concerted attack by th"m followed by a chase and assault with choppers by all the
appellants resulting in death because of 24 injuries of
a serious nature given by the appellants collectively.
Of these injury No. 5 individually and others cumulatively were stzfficient in the ordi1hry course of nature
to cause death. Section 34 is only a ru lc of evidence
and does not create a substantive offence. It means,
that if two or more persons intentionally do .a thing
jointly it is jnst the sannc as if each of them had done
individually. As the Privy Council have pointed out
in Ba·rendra Kumar Ghosh v. ]( ing Ernperor (1 ), " Sect.
34 deals with the doing of separate acts, similiar or
diverse, by several persons, if all are done in further-
•
ance of a common intention, P.ach person is liable for
the result of them all, as if he had done them himself.. ....... "
The appellants' ddence was a total denial of taking
part in the offence.
When examined under s. 342 of
the Criminal Proced.nre Code tlwy· stated that the
prosecntion case was false.
They did not state anything indicative of prejudice having resulted as a consequence of a defoct in the charge. To every question
put to them, theil; reply was that the prosecution
evidence was false. One such question and the answer
to it was:
Q.
"The witnesses have deposed that at about
'(1) (192t) L.R. 32 I. A. +o, 5r.
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~
S.C.R.
SUPREME COURT REPORTS
505
·8-30 on the night of 25th August, 1952, you along
with the accused persons 1, 3, 4 and 5 came upon the
tank bund holding a matchu in the hand in order to
hit Amie Gowda. V/hat do you' say regarding this
matter ?
A. This is absolutely false."
In answer to another question as to whether he had
assaulted the deceased with a chopper, appellant
No. 1 stated that he never saw the deceased on that
date and the evidence was false and the other two
appellants just stated that the evidence for the prosecution was false.
The form of the questions indi-·
cates notice to the appella11ts that the prosecution ,.,.·as
relying on collective responsibility and their having
acted with a comll1on int.ention. They did not plead
prejudice due, to the 1-vant of s. 34 in the charge itself.
The" judgment of the High Court does not indicate
that any such objection was taken before it.
The grounds of appeal taken in the High Court are
not before us, but their applica.tion under Art. 134
(l)(c) m;:i,de to the High Court shows that objection
.was taken as to the failure to specify s. 34 in the
following words :
" There is no charge framed in the case against
accused 2, 3 and 4, 5 and 6 for an offence under Section 302 read with Section 34 of the Indian Penal
Code. It was, therefC1re, not a case in which accused
2, 3, 4 alone. could be convicted of the charge under
Section 302 by resorting to the rule of common intention under Section 34 of the Indian Penal Code for
two reasons, viz.,
_
(a) There is no charge under Section 34 of the
Indian Penal Code;
(b) If it is implied, accused 5 and 6 are out of the
grove and there is no evidence of any pijor conspiracy
conducive to that requisite inference. .Further it will
be seen from the evidence of the eve-witnesses it is not
possible to predicate which blo; c11used by which
instrument, by which accused resulted iJ1 death.
Thocefore it is a case which accused 2, 3 and 4 are
charged on individual responsibility alone for having
caused murder punishable under Section 3021 India;n
.
.
B. N. Srikantiah
& Others
v.
The State of
Mysore
Kapur].
506
SUPREME COURT IiEPORTS
[1959]
' Penal Code individually.
Neither the trial Court nor
B
it .is submitted the High Court has considered this
. bl. Srikantiah
& othe..s
aspect of the matter and has considered the individual
v.
responsibility of accused 2, 3 and 4 for their indiviThe State of .clual acts"
.1.~f ysore
J{djntr ].
\
and in their grounds of appeal filed in this Court the
language is the same.
Nowhere has it been alleged
that as a result of omission to specify s. 34 in tile
charge there was any prejudice and nothing is disclosed whether by the trend of cross-examination or
by anything on the record to show that the appellants
were misled by this omission in the charge. No case
' of prejudice has been alleged or established and there
are no facts on the consideration of which the conclusion could be reached that the conviction under s. 302
is vitiated as a result of prejudice.
,
This Court in Rawalpenta Venkulu v. 'l'he State of
Hyderabad (i),
held that the omission to add s. 34 of
the Indian Penal Code in a charge had only an academic significance where the accused had notice as to
what they were being charged with. That was a case
where in pursuance of a conspiracy to commit murder
the accused after locking tho room in which the
deceased was sleeping set fire to it and thus caused his
death. The charge against the accused persons was
onlv under s. 302 withouts. 34.
On the evidence tho
int~ntion to kill was held proved as each one of the
appellants had actively contributed to setting fire to
the room by putting lighted matches to it while the
deceased had been trapped in it and " each one of
thmn therefore severally and in pursuance of the
common intention brought ·about the same result by
his own act." In the trial Court the Sessions Judge
had explained the charge as follows:
" You am charged of the offence that you with
the assistance of the other present accused with
common intention .............................. "
:P'rom this the Court came to the conclusion that the
accused had clear notice that they were being charged
with the offence of committing murder in pursultnce
of their common intention and, therefore, the omission
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•
S.C.R.
SUPR~ME COURT R~PORTS
507
of s. 34 in the charge had· only academic significance
and had in no way misled the accused. Thus the
accent was on whether the accused were misled -or not
or any prejudice resulted froin the omission in the
charge and on the facts and circumstances of that
case this Court was of the opinion that they were not
and there was no prejudice.
-
• Ohikkarange Gowda v. State of Mysore (1), was relied
upon by the appellants' counsel. In that case the
accused persons were charged as follows :
" That you on or about the 18th day of April,
1951, at Talkad were member of an unlawful assembly
and in prosecution of the common object or intention
or such as you know to be likely to be committed in
prosecution of that object or intention, namely; in
killiJJ.g Putte Gowda, caused the death o'f Putte Gowda
a.nd Nanje Gowda, and you are thereby under s. 149
read with s. 34 Penal Code, guilty of causing the said
murders, an offence punishable under s. 302, Penal
Code and within the cognizance of the Court of
Sessions."
The Sessions Judge found that .the common object of
the unlawful assembly or the intention of the accused
was not merely to assault Putte Gowda but also to kill
him. The High Court on appeal held that there was
no evidence to prove or establish any plan for concerted
action or any common object to kill that individual.
But it was of the opinion that the people of the' locality were annoyed with Putte Gowda and the common
object of the assembly as a ·whole wa~ to give severe
and open chastisement only. The person who W'as
stated to have given the fatal injury to Putte Gowcl.a
was acquitted by the High Court on the ground of
insufficiency of evidence and the other two accused
were held guilty for severely assaulting•the deceased
and guilty of murder. In this Court it was contended
that on the findings given by the High Court in regard
to the common object of the unlawful assembly, the
conviction under s. 302/34 or s. 149 was unsustainable
and that the_manner in which the charges under s. 149
and 34 were mixed up·it could not be said that the
(r) A.LR. 1956 S.C. 73r.
•
r958
B. N. Srikantiah
& Others
v.
The State of
Mysore
Kapur ].
B. N. Srihantiah
<§.Others
v.
The Stale of
lllysore
Kapur ].
508
SUPREME CO-UR'!' REPORTS
[1959]
accused
had a reasonable opportunity of meeting
the charges against them. This Court observed that
"on the finding of the High Court none of the mem.
hers of the unlawful assemblv had the intention of
killing Putte Gowda." It also held tlmt the way in
which the charge was framed gave the aecused no
effective notice of the case they had to meet. In theSfe ircumstances the case of separate common intentfon
of three persons was distinct from the common ouject
of the other members of the unlawful assembly and,
therefore, the question was not whether the specific
charge under s. 34 was or was not necessary but
whether a reasonable opportunity of meeting the case
of some of the accused having '' separate common
intention different from that of others of the unlawful
assembly, was given and as the finding was tbat it
had not been given the conviction of the two accuser!
for offence under s. 302/34 was nnsustai1rnble. That
case has not laid down a rule different from Willie
(William) Slaney's case('). It merely emphasises that
in the case of imperfection of a charge if prejudice is
shown a conviction of an accused would be insupportable. In the present case the common intention of the
appellants is indicated by their conduct, the ferocity of
the attack, the weapon used, the situs of the injuries
and their nature and there was preconcert as shown
by the evidence of P. vVs. 10 and 11.
They have
therefore been rightly
convicted of murder as
" sharers in the offenee ".
We would, therefore, dismiss these appeals.
Appeals dismissed .
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