# Marachalil Pakku v. State of Madras, A.l.R. 1954 S.C. 648, Bombodhar Pradhan v. State of Orlssa and Sunder Singh v. State of Punjab

- **Citation:** [1965] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1964-11-04
- **Case number:** Criminal Appeal No. 18 of 1961
- **Bench:** A. K. Sarkar, N. R.Ajagopala Ayyangar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/marachalil-pakku-v-state-of-madras-a-l-r-1954-s-c-648-bombodhar-pradhan-v-state-3317
- **Pages:** 5

## Headnote

Murder-<:ommon intention-Separate trial• of actual murderer a11d
accompllce-Foriner acquitted while latter convicted on the basis of having
common intention with former-Con11ic1ion whether justified-Indian. Panel
Code, 1860 (Act 45 of 1860), s. 34.
R shot at two persons and in consequence one died while the other
did not. The appellant who himself carried a gun was present at the spot
along with six others variously armed.
R absconded, and the appellant
along with the six other persons mentioned above was tried for offences
under so. 302 and 307 read with ss. 148 and 149 of the Indian Penal
Code. The Sessions Judge convicted only the appellant giving benefit of
doubt to others.
The appellant filed an appeal before the High Court.
After his comiction but before his appeal was heard, R was arrested, put
up for trial on the same charges. and acquitted. The appellant's appeal
before the High Court was dismissed but his con,iction was altered and
instead of ss. 302 and 307 Indian Penal Code read with ss. 148 and 149
be was convicted for offences under ss. 302 and 307 of the Code read
with s. 34. The appellant came to this C.ourt in further appeal.
It was contended that in view of the acquittal of R by the Sessions
Judge, from which there had been no appeal, it was not open to the
High Court to hold that the appellant was guilty of murder and attempt
to murder under ss. 302 and 307 read with s. 34, by finding that R who
shared a common intention with him shot the deceased dead and attempted
to murder another.
HELD : In spite of the acquittal of a person in one case, it is open
to the court in another case, to proceed on the basis-if the evidence
warrants it-that the acquitted person was guilty of the offence of which
he bad been tried in the other case, and to find in the later case that the
persvn tried in it was guilty of an offence under s. 34 by virtue of having
committed the offence along with the acquitted person. Each case has to
be decided on the evidence led in it and this irrespective of any view of
the same act that might have been taken on different evidence led in another
case. [4E--OJ
Marachalil Pakku v. State of Madras, A.l.R. 1954 S.C. 648, Bombodhar Pradhan v. State of Orlssa and Sunder Singh v. State of Punjab,
A.l.R. 1962 S.C. 1211, relied upon.
Prltam Singh v. State of Punjab A.I.R. 1956 S.C. 415, Sambasivam v.
Pub/le Prosecutor, Federation of Malaya L.R. (19501 A.C. 458 and Krishna
ff
Govind Patil v. State of Mahara3htra, distinguished.
- CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55
of 1963.
2
SUPREME COURT REPORTS
[1965] 2 s.c.
Appeal . by special leave from the judgment and order, dated A
August 27, 1962, of the Madhya Pradesh High Court (Gwalior
Bench) at Gwalior in Criminal Appeal No. 18 of 1961.
B. C. Misra, for the appellant.
M. S. K. Sastri and /. N. Shroff, for the respondent.

## Text

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A
B
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E
F
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KARAN SINGH
11,
STATE OF MADHYA PRADESH
November 4, 1964
[A. K. SARKAR, N. R.AJAGOPALA AYYANGAR AND
R. S. BACHAWAT, JJ.]
Murder-<:ommon intention-Separate trial• of actual murderer a11d
accompllce-Foriner acquitted while latter convicted on the basis of having
common intention with former-Con11ic1ion whether justified-Indian. Panel
Code, 1860 (Act 45 of 1860), s. 34.
R shot at two persons and in consequence one died while the other
did not. The appellant who himself carried a gun was present at the spot
along with six others variously armed.
R absconded, and the appellant
along with the six other persons mentioned above was tried for offences
under so. 302 and 307 read with ss. 148 and 149 of the Indian Penal
Code. The Sessions Judge convicted only the appellant giving benefit of
doubt to others.
The appellant filed an appeal before the High Court.
After his comiction but before his appeal was heard, R was arrested, put
up for trial on the same charges. and acquitted. The appellant's appeal
before the High Court was dismissed but his con,iction was altered and
instead of ss. 302 and 307 Indian Penal Code read with ss. 148 and 149
be was convicted for offences under ss. 302 and 307 of the Code read
with s. 34. The appellant came to this C.ourt in further appeal.
It was contended that in view of the acquittal of R by the Sessions
Judge, from which there had been no appeal, it was not open to the
High Court to hold that the appellant was guilty of murder and attempt
to murder under ss. 302 and 307 read with s. 34, by finding that R who
shared a common intention with him shot the deceased dead and attempted
to murder another.
HELD : In spite of the acquittal of a person in one case, it is open
to the court in another case, to proceed on the basis-if the evidence
warrants it-that the acquitted person was guilty of the offence of which
he bad been tried in the other case, and to find in the later case that the
persvn tried in it was guilty of an offence under s. 34 by virtue of having
committed the offence along with the acquitted person. Each case has to
be decided on the evidence led in it and this irrespective of any view of
the same act that might have been taken on different evidence led in another
case. [4E--OJ
Marachalil Pakku v. State of Madras, A.l.R. 1954 S.C. 648, Bombodhar Pradhan v. State of Orlssa and Sunder Singh v. State of Punjab,
A.l.R. 1962 S.C. 1211, relied upon.
Prltam Singh v. State of Punjab A.I.R. 1956 S.C. 415, Sambasivam v.
Pub/le Prosecutor, Federation of Malaya L.R. (19501 A.C. 458 and Krishna
ff
Govind Patil v. State of Mahara3htra, distinguished.
- CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55
of 1963.
2
SUPREME COURT REPORTS
[1965] 2 s.c.
Appeal . by special leave from the judgment and order, dated A
August 27, 1962, of the Madhya Pradesh High Court (Gwalior
Bench) at Gwalior in Criminal Appeal No. 18 of 1961.
B. C. Misra, for the appellant.
M. S. K. Sastri and /. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Sarkar J. The appellant, Ramhans, and six other persons
were alleged to have committed the murder of Gabde and to have
attempted to murder Ramchandra. The deceased and Ramchandra
are said to have belonged to one party while the alleged assailants c
belonged to another, and between these two parties there had been
great enmity for some time past. It was said that about midnight
of November 18,' 1959, while the deceased and Ramchandra and
certain other persons were sleeping on a Tiwaria (terrace), the
assailants entered the place and Ramhans shot Gabde dead with
a gun and fired two shots at Ramchandra with intent to kill him D
but only succeeded in injuring him and that all this time the
appellant was standing there armed with a gun and the other
persons were also there armed variously and that all had entered
the place with the common intention of committing the offences.
Ramhans had absconded and so the appellant and the other E
six alleged assailants were put up for trial for offences under ss. 302
and 307 read with ss. 148 and 149 of the Indian Penal Code for
the inurder of Gabde and the attempt to murder Ramchandra.
The learned Sessions Judge convicted the appellant of these offences
but acquitted the other six persons tried along with him, giving
them the benefit of doubt. The appellant preferred an appeal to F
the High Court of Madhya Pradesh.
After the conviction of the
appellant by the learned Sessions Judge but before his appeal could
be heard, Ramhans had been arrested, put up for trial on the
same charges and acquitted.
Before the High Court the appellant contended that Ramhans
G
having been acguitted the appellant could not be held constructively
liable for the offences with the aid of s. 149 of the Code.
The
High Court rejected this contention relying upon the judgments
of this Court in Marachalil Pakku v; The State of Madras,(')
Bombadhar Pradhan v. State of Orissa( 2 ) and Sunder Singh v. State
of Punjab('). The following observation appears in the judgment
H
(1) A.I.R. 1954 S.C. 648:
(2) [1956] S.C.R. 206~
(3) A.I.R. 1962 S.C. 12fl.
KARAN SINGH v. STATE (Sarkar, J.)
3
A of the High Court : "Relying on Ramchandra's direct testimony
as supported by Dwarl<;a, Matadin and Maharajsingh, I would hold
that Gabde's murder was committed by Ramhans by firing a gun
at him and that Ramhans also fired two shots from his gun at
Ramchandra in order to kill him.
Karan Singh was at this time
standing armed with a gun by the side of Ramhans. . . . . . . . . . I
B would, therefore, hold that the offence of Gabde's murder and
attempt to commit the murder of Ramchandra were committed
'
by Ramhans in furtherance of the common intention of both him·
self and the present appellant Karan Singh.
The case for the
prosecution had at all stages been that both Ramhans and Karan
Singh had gone inside the Tiwaria armed with guns and that Karan
C Singh throughout the incident standing by the side of Ramhans
armed with a gun. On these facts s. 34 l.P.C. would clearly apply
to the case against the present appellant Karan Singh." In this
view of the matter the High Court convicted the appellant Karan
Singh under ss. 302 and 307 both read with s. 34 of the Code
0
instead of the earlier sections read with ss. 148 and 149 as had
been done by the learned Sessions Judge. The appellant has come
to this Court in further appeal.
The only question argued in this appeal is whether in view of
the acquittal of Ramhans by the learned Sessions Judge from which
there had been no appeal, it was open to the High Court to hold
E that the appellant was guilty of murder under s. 302 read with
s. 34 by finding on the evidence that Ramhans who shared a com-
,..
mon intention with him, shot the deceased dead and attempted to
murder Ramchandra. In the High Court reliance had been placed
on behalf of the appellant on the judgment of this Court in Pritam
Singh v. State of Pun;ab('). That case referred with approval to
F the judgment of the Judicial Committee in Sambasivam v. Public
Prosecutor, Federation of Malaya(') where it was observed that
"the. effect of a verdict of acquittal ...... is not completely stated
by saying that the person acquitted cannot be tried again for the
same offence. To that it must be added that the verdict is binding
G and conclusive in all subsequent proceedings between the parties
to the adjudication." As the High Court pointed out, that observation has no application to the present case as here the acquittal of
Ramhans was not in any proceeding to which the appellant was a
party. Clearly, the decision in each case has to turn on the evidence
led in it; Ramhans's case depended on the evidence led there while
H the appellant's case .had to be decided only on the evidence led in
it. The evidence led in Ramhans's case and the decision there
(I) A.I.R. 1956 S.C. 41S.
(2) LR. [19521 A.C. 458, 479.
SUPREME COURT REPORTS
[1965] 2 S.C.R
arrived ~t on that evidence would be wholly irrelevant in considerA
ing the merits of the appellant's case. We may add here that Mr.
Misra appearing for the appellant did not in this Court rely on
Pritam Singh's(') case.
Mr. Misra contended that the decision of this Court in Krishna
Govind Patil v. State of Maharashtra(') showed that the High Court B
was wrong in-ignoring the fact of the acquittal of Ramhans. We
are unable to accept that contention. The point there considered
,,
really was whether when four persons had been charged with the
commission of an offence of murder read with s. 34 and the trial
Court had acquitted three of them, it was legal to convict the
remaining accused of the offence of murder read with s. 34. The C
High Court had held that that could be done. This Court set aside
the judgment of the High Court mainly on the ground that such
a decision would result in conflicting findings. It was observed,
"while it (the High Court) acquitted accused 1, 3 and 4 under
s. 302 read with section 34 of the Indian Penal Code, it convicted
accused 2 under s. 302 read with s. 34, of the said Code, for having D
committed the offence jointly with the acquitted persons.
This
is a legally impossible position." That case no doubt discussed
· various situations where it is possible after acquitting certain
persons to hold that the conviction of other or others was justified
under s. 34 on the ground that the evidence showed that there E
were other unknown persons who were associated with those convicted though the charge did not mention them. With this aspect
of the matter we are not concerned in this case and neither was
the case of Krishna Govind Patil(').
We are, therefore, of opinion that the judgment in Krishna
Govind Patil's(') case does not assist the appellant at all. On the F
other hand we think that the judgments earlier referred to on
which the High Court relied, clearly justify the view that in spite
of the acquittal of a person in one case it is open to the Court in
another case to proceed on the basis--0f course if the evidence.
warrants it-that the acquitted person was guilty of the offence of
G
which he had been tried in the other case and to find in the later
· case that the person tried in it was guilty of an offence under s. 34
by virtue of having committed the offence along with the acquitted
person. There is nothing in principle to prevent this being done.
The principle of Sambasivam's( 2 ) case has no application here
because the two cases we are concerned with are against two H
different persons though for the commission of the same offence.
(I) [1964] I S. C. R. 678.
(2) L. R. (19S2] A.C. 4S8, 479.
" '
KARAN SINGH v. STATE (Sarkar, /.)
A Furthermore, as we have already said, each case has to be decided
on the evidence led in it and this irrespective of any view of the
same act that might have been taken on different evidence led
in another case.
In the result the appeal fails and is dismissed.
B
Appeal dismissed.