# SUPREME COURT REPORtS[l964]VOL, KRISHNA GOVIND PATIL v. STATE OF MAHARASHTRA

- **Citation:** [1964] 1 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 1962-02-20
- **Bench:** S.J. Imam, K. Subba Rao, Raghubar Dayal, J. R. MuDHOI.KAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-l964-vol-krishna-govind-patil-v-state-of-maharashtra-2805
- **Pages:** 10

## Headnote

Criminal Law-Four person.• charged with
sub,•tantive
offence read with e,
34-Three acquitted-Conriclion of one
un<kr eub•tantive offence read with •· 34-Proprit.ty of-Different
•ituaJions coruitlered-lndian Penal Code, 1860 (45 of 1860),
... 34, 302.
The four accused pe,.ons stood their trial before the
Additional Sessions Judge for the murder of one Vishwanath,
The char'!" against th•m was that they in view of their common
grudg~ a~a.irut the deceased, combin~d together and did away
with the dccca.ed. They were ehar~ed under s. 302 read with
s, 31 of the India11
Penal <Ade and were al«> 'cparately
charged under s. 302 of the l'cual Code. All pleaded not guilty
to the charge and accused I, 3 and 4 pleaded a 1i6i, while
accused 2 raised a pica of private defence. The learned
Additional Sessions Judge acquitted all the accused on the
ground that the prosecution witnesses Wt're not speaking the
truth and the ve,.ion given by accused 2 was the probable one,
The State preferred an appeal to the High Court against the order
of acquittal under s. 302, read with s. 34, but not against the
acquittal under s. 302 of the Pena I Code. The High Co11rt
acquitted accused I, 3 and 4 on the ground that it was doubtful whether any one of them participated in the comn1issiou
of the offence and •:onvicted accu5'd 2 on the ground that one
or more of them might have participated in the offence.
Accused 2, the appellant, therefore, filed this appeal a11d
contended that when three of the four named accused, who were
charged under s. 302, read with s. 34, were acquitted, the
court could not convict only one of the accused on the basis of
const111ctive liability.
Held, that before a court could convict a person u11tlcr
s. 302, read with s. 34, it should come to a definite conclusion
that the said person had a prior concert with one or more other
penons, named or unnann:d, for comn1itting lhe said offence.
Held, further, that \vhen accused were acquittr.d either on
the ground that the evidence was not acceptable or by giving
1 $.C.R.
SUPREME COURT REPORTS
679
benefit of doubt to them, the result in law would be the same :
it would mean that they did not take part in the offence. The
effect of the acquittal of accused 1, 3 and 4 is that they did
not conjointly act with accused 2 in committing the murder.
If they did not act conjointly with the appellant, he could not
have acted .conjointly with them. The judgment of the High
Court docs not indicate that persons other th.'ln the said accused
participated in the offence, nor is there any evidence in that
regard, therefore, the conviction of the appellant must be set
aside.
Mohan Sinyh v. St£tte of Punjab, [19G2] Supp. 3 S. C.R.
848, held inapplicable.
CRIJHCNAL APPELLATE]URJSDIC'l'ION: Criminal
Appeal No. ~O l of mu~.
Appeal by special leave from the Judgment
and order dated February 20, 1962, of the Bombay
High Court in Criminal Appeal No. 1+05 of 1961.
C. L. 8<'reen, for the appellant.
JI. U. Kh1mnn and H. ll. JJhebnr, for the
respondent.
1963. January 23.
The Judgment of the Court
was delivered by
SuBBA RAo, .J.-This appeal by special leave
is directed against the judgment of a division Bench
of the Bombay High Court setting aside the order
of acquittal made by the Additional Sessions Judge,
Kolaba,. and convicting the appellant under s. 302,
read with s. 34, of the Indian Penal Code and
sentencing him to imprisonment for life.
The case of the prosecution may be briel!y
stated. In the year 195!.J, two persons by name
Ramachandra Bu<lhya
and Govind Dliaya Wei·e
murdered by some people.
In all J l accused, inclu·
ding one Dcoram Maruti Patil, were brought to
1963
Kri.oh11a Govinrl Patil
v.
Statt of /11aharashtra
Subba Rar>, J.
I
.. ..
680. SUPREME COURT REPORTS [1964] vot.
'...
\ 1953
trial; and out of them 8 accused;'}iid~di~g the said
Kri.>hn; Got·inJ Pa•;1
Deoram Maruti Patil, were acquitted. During that
v.
trial Deoram Maruti Patil's uncle, by name Vishwa·
Slal_e oj J.fo.harashlra
h
. l
nat , active

## Text

1963
JonuarJ, 23.
678
SUPREME COURT REPORtS[l964]VOL,
KRISHNA GOVIND PATIL
v.
STATE OF MAHARASHTRA
(S.J. IMAM, K. SUBBA RAO, RAGHUBAR DAYAL,
and J. R. MuDHOI.KAR, JJ.)
Criminal Law-Four person.• charged with
sub,•tantive
offence read with e,
34-Three acquitted-Conriclion of one
un<kr eub•tantive offence read with •· 34-Proprit.ty of-Different
•ituaJions coruitlered-lndian Penal Code, 1860 (45 of 1860),
... 34, 302.
The four accused pe,.ons stood their trial before the
Additional Sessions Judge for the murder of one Vishwanath,
The char'!" against th•m was that they in view of their common
grudg~ a~a.irut the deceased, combin~d together and did away
with the dccca.ed. They were ehar~ed under s. 302 read with
s, 31 of the India11
Penal <Ade and were al«> 'cparately
charged under s. 302 of the l'cual Code. All pleaded not guilty
to the charge and accused I, 3 and 4 pleaded a 1i6i, while
accused 2 raised a pica of private defence. The learned
Additional Sessions Judge acquitted all the accused on the
ground that the prosecution witnesses Wt're not speaking the
truth and the ve,.ion given by accused 2 was the probable one,
The State preferred an appeal to the High Court against the order
of acquittal under s. 302, read with s. 34, but not against the
acquittal under s. 302 of the Pena I Code. The High Co11rt
acquitted accused I, 3 and 4 on the ground that it was doubtful whether any one of them participated in the comn1issiou
of the offence and •:onvicted accu5'd 2 on the ground that one
or more of them might have participated in the offence.
Accused 2, the appellant, therefore, filed this appeal a11d
contended that when three of the four named accused, who were
charged under s. 302, read with s. 34, were acquitted, the
court could not convict only one of the accused on the basis of
const111ctive liability.
Held, that before a court could convict a person u11tlcr
s. 302, read with s. 34, it should come to a definite conclusion
that the said person had a prior concert with one or more other
penons, named or unnann:d, for comn1itting lhe said offence.
Held, further, that \vhen accused were acquittr.d either on
the ground that the evidence was not acceptable or by giving
1 $.C.R.
SUPREME COURT REPORTS
679
benefit of doubt to them, the result in law would be the same :
it would mean that they did not take part in the offence. The
effect of the acquittal of accused 1, 3 and 4 is that they did
not conjointly act with accused 2 in committing the murder.
If they did not act conjointly with the appellant, he could not
have acted .conjointly with them. The judgment of the High
Court docs not indicate that persons other th.'ln the said accused
participated in the offence, nor is there any evidence in that
regard, therefore, the conviction of the appellant must be set
aside.
Mohan Sinyh v. St£tte of Punjab, [19G2] Supp. 3 S. C.R.
848, held inapplicable.
CRIJHCNAL APPELLATE]URJSDIC'l'ION: Criminal
Appeal No. ~O l of mu~.
Appeal by special leave from the Judgment
and order dated February 20, 1962, of the Bombay
High Court in Criminal Appeal No. 1+05 of 1961.
C. L. 8<'reen, for the appellant.
JI. U. Kh1mnn and H. ll. JJhebnr, for the
respondent.
1963. January 23.
The Judgment of the Court
was delivered by
SuBBA RAo, .J.-This appeal by special leave
is directed against the judgment of a division Bench
of the Bombay High Court setting aside the order
of acquittal made by the Additional Sessions Judge,
Kolaba,. and convicting the appellant under s. 302,
read with s. 34, of the Indian Penal Code and
sentencing him to imprisonment for life.
The case of the prosecution may be briel!y
stated. In the year 195!.J, two persons by name
Ramachandra Bu<lhya
and Govind Dliaya Wei·e
murdered by some people.
In all J l accused, inclu·
ding one Dcoram Maruti Patil, were brought to
1963
Kri.oh11a Govinrl Patil
v.
Statt of /11aharashtra
Subba Rar>, J.
I
.. ..
680. SUPREME COURT REPORTS [1964] vot.
'...
\ 1953
trial; and out of them 8 accused;'}iid~di~g the said
Kri.>hn; Got·inJ Pa•;1
Deoram Maruti Patil, were acquitted. During that
v.
trial Deoram Maruti Patil's uncle, by name Vishwa·
Slal_e oj J.fo.harashlra
h
. l
nat , active y helped Deoram l\faruti Patil in the
Subba Rao, J.
conduct of his· defence. Accused I and 2 in the
present case are the sons of Govind Dhaya ·and .
accused 3 ; and 4 . are the nephews of Ramachandra
· - Budhya. They bore a grudge against Vishwanath
for helping Deoram Maruti Patil and bringing about
his acquittal. .. On August 19, 1960, Vishwanath
and one Mahadeo Pandu Patil left their village at
about 8.30 p.m. in order to go to Pezari en route to
. Alibag. \Vhen they were walking along a bund,
accused I to 4 came from behind, armed with long
.. sticks and th~ stick carried by accused l had a blade
.attached to it. They belaboured the deceased rem!·
ting in his death.
.
· The four accused had to stand their trial for
the murder ofVishwanath before the Court of the ,
_Additional Sessions Judge, Kolaba. The charge
against them. was that they, in view of their common
grudge against the deceased, combinc:-d together and
did away with the deceased. · The said four persons
were charged under s. 302, ·read withs. 34, of.the
·• .. Indian Penal Code for committing the murder of the
. deceased in furtherance of their common intention.
· 'All of· them were also charged . separately ·for the
substantive· offence under s. 30:! of the Indian Penal
C@de. All the accused pleaded not guilty to· the
· charge. . While accused 1, · 3 and 4 pleaded alibi,
accused 2· raised a plea of 'private defence. The
prosecution· examined eye.witnesses,. who deposed
that the four accused overtook the deceased when
he was going to.village Pezari and felled him down
· by giving him lathi blows. None of the witnesses
spoke _to the presence of any other person, named or
unnamed, who took part in the assault of the
deceased. The learned Additional Sessions Judge
found that the prosecution witnesses were not speaking·
1 S.C.R.
SUPREME COURT REPORTS
681
the truth and that the version given by accused 2
was the probable one. In 1 he result he acquitted
all the accused. The State preferred an appeal to
the High Court against the said order of acquittal
under s. 302, read with s. 34, of the Indian Penal
Code ; but no appeal was preferred against the order
of acquittal under s. 302 of the Indian Penal Code.
The judgment of the High Court discloses that the
learned Judges were inclined to believe the evidence
of the witnesses, other than Kashinath and Shridar.
llut they dismissed the appeal against accused l, 3
and -! on the ground that the appeal was against
an order of acquittal.
llut in regard to accused 2,
they held that he was one of the participants in the
assault and there was no basis for his plea of private
defence.
Having come to that conclusion,
the
learned Judges convicted accused 2 under s. 302,
read withs. ;;+, of the Indian Penal Code.
As regards the persons who participated in the assault
along with accused 2, it would be appropriate to
quote the words of the High Court itself :
"Some of the other accused were undoubtedly
concerned with the incident along with accused
No. 2.
Since it is possible that the story as
given by the prosecution witnesses, and particularly by Mahadeo, was exaggerated, it is not
safe to hold that each one of the other accused
was also a participant in the offence. In view
of the possibility that one or more of the other
accused, i.e., accused Nos. 1, 3 and 4, might
not have participated in the offence, we do not
propose to interfere with the acquittal of these
accmed. But we are satisfied that accused No.
2 along with one or more of the other accused
committed this offence and that accused No. 2
was, therefore, clearly guilty under section 302
read with section 34 I. P. Code".
To put it in other words, they, acquitted accused
1, 3. and 4 on the ground that it was doubtful whether
1963
Krishna Govind Patil
v.
State of Maharashtra
Subba Rao, J.
1963
Kr~lma Go1:i11d Putil
v.
Statt of Maha1a;lttra
682 SUPREME COURT REPORTS [1964] VOL.
any one of them participated in the commission of
the offence and convicted accused 2 on the ground
that one or more of them might have parlicipalcd in
the offence.
Accused 2 has filed the present appeal
against the judgment of the High Court.
The argument of learned counsel for the appellant may be put thus : The learned Additional
Sessions Judge acquitted the accused under s. 302 of
the Indian Penal Code and also under s. :302, read
with s: 34, of the said Code. The appeal in the
High Court was confined only to the acquittal of the
accused under s. :l02, read with s. :l4, of the Indian
Penal Code.
The charge as well as the evidence was
only directed against the four named accused as the
participants in the common intention to commit the
murder of the deceased. The High Court having
acquitted accused I, 3 and •I, inconsistently convicted
accused 2 for having committed the murder of the
deceased jointly with the three accused who h<i:d
been acquitted. To put it differently, the argument
is that when three of the four named accused. who
were charged under s. :l02, read withs. :l4, of the
Indian Penal Code, were acquitted, the court couid
not convict only one of the accused on the basis of
constructive liability.
Learned counsel ·for the respondent counters
this argument by slating that though the' charge as
wdl as the evidence was directed against the 4 named
accused, a court could come to the conclusion that
3 of the 4 named accused are nol identified but more
than one had taken part in the commission of the
offence and that in the present case on a fair reading
of the entire judgment we should hold that the High
Court found that though accused I, 3 and 4 were
not identified, 3 unidentified persons must have
taken part in the murder.
Section 34 of the Indian
Penal Code reads :
"When a criminal act is done by several persons, in furtherance of the common intention
..
i S.C.R.
SUPREME COURT REPORTS
683
of all, each of such persons is liable for that
act in the same manner as if it were done by
him alone."
It is well settled that common intention within the
meaning of the section implied a pre-arranged plan
and the criminal act was done pursuant to the pre-
. arranged plan. The said plan may also develop on
the spot during the course· of the commission of the
offence; but the crucial circumstance is that thl! said
plan must precede the act constituting the offence.
If that be so, before a court can convict a person
under s. 302, read with s. 34, of the Indian Penal
Code, it should come to a definite conclusion that
the said person had a prior concert with one or more
other persons, named or unnamed, for committing
the said offence.
A few illustrations will bring out
the impact of s. 34 on different situations.
(I) A, B, C and D are charged under s. 302,
read with s. 34, of the Indian Penal Code; for committing the murder of E.
The evidence is directed
to establish that the· said four persons have taken part
in the murder.
"(2) A, B, C and D and unnamed others are
charged under the said sections. But evidence is
adduced to prove that the said persons, along with
others, named or unnamed, participated jointly in
the commission of that offence.
(3) A, B, C and D are charged under the said
sections. But the evidence is directed to prove that
A, B, C and D, along with 3 others, have jointly
committed the offence.
As regards the third illustration, a Court is
certainly entitled to come to the conclusion that one
of the named accused is iuilty of murder under s. 302
read with s. 34, of the Indian Penal Code, though th~
1963
Krishna Gouind Pal
v.
State qf Mahar.ishtro .
Subba Rao, J.
19~3
Krislure Got1ind Patil
' ..
St4l1 of Mab.raltlra
SwHll4D, J,
684 SUPREME COURT REPORTS [1964] vot.
other three named accused are acquitted, if it accepts
the evidence that the said accused acted in concert
along with persons, named or unnamed, other than
those acquitted, in the commission of the offence. In
the second illustration, the Court can come to the
same conclusion and convict one of the named
accused if it is satisfied that no prejudice has been
caused to the accused by the defect in the charge.
But in the first illustration the Court certainly can
convict two or more of the named accused if it
accepts the evidence that they acted conjointly in
committing the offence. But what is the position if
the Court acquits 3 of the 4 accused either because
it rejects the prosecution evidence or because it gives
the benefit of doubt to the said accused ? Can it
hold, in the absence of a charge as well as evidence,
that though the three accused are acquitted, some
other unidentified persons acted conjointly along with
one of the named persons ? If the Court could <lo
so, it would be making out a new case for . the prosecution : it would be deciding contrary to the evidence
adduced in the case. A Court cannot obviously make
out a case for the prosecution which is not disdmed
either in the charge or in regard to which there is no
basis in the evidence. There must be some foundation
in the evidence that persons other than those· named
have taken part in the commission of the offence and
if there is such a basis the case will be covered by the
third illustration.
In support of the contention that a Court, even
in the first illustration, can acquit 3 of th~ 4 accused
named in the charge on the ground that their identity
has not been established, and convict one of them on
the ground that more than one took part in the
commission of the offence, reliance is placed upon the
decision of this Court in Mohan Singh v. State of
Punjab('). There, the appellants, along with three
others, were charged with having committed offence
under s. 302, read withs. 149, as well ass. 323, read
(I) [11162) Supp. S S.c.R. IH8. 858.
1 S.C.R.
SUPREME COURT REPORTS
685
with s. 149, of the Indian Penal Code. The Sessions
Judge acquitted two of them, with the result 3 of
them were convicted.
One of the accused was convicted·under s. 302 ands. 147 and two of the accused
were convicted under s. 302, read with s. 149 and
s. 147, of the Indian Penal Code.
The High Court
confirmed their convictions. . On appeal by special
leave to this Court, two of the accused convicted
under s. 302, read with ss. 149 and 14 7, of the Indian
Penal Code, contended, inter alia, that as two of the
five accused were acquitted, their conviction under
s. ::102, read with ss. 149 and 14 7, was bad in law,
This Court held on the evidence that the said two
accused had done the act pursuant to a pre-arranged
plan and therefore they could be convicted under
s. 302, read withs. 34, of the Indian Penal Code.
But in the course of the judgment different situations
that might arise in the context of the question now
raised were noticed. Adverting to one of the situatiom
similar to that now before us, this Court observed :
"Cases may also arise where in the charge, the
prosecution
names
five or more persons
and alleges that_ they constituted an unlawful
assembly.
In such cases, if both the charge
and the evidence are confined to the persons
named in the charge and out of the persons so
named two or more are acquitted leaving
before the court less than five persons to be
tried, then s. 149 cannot be invoked. Even in
such cases, it is possible that though the charge
names five or more per.•ons as com posing an
unlawful assembly, evidence may nevertheless
show that the unlawful assembly consisted of
some other persons
as well who were not
identified and so not named. In such cases,
either the trial court or even the High Court in
appeal may be able to come to the conclusion
that the acquittal of some of the persons named
in the charge and tried will not necessarily
1963 -
Jrri•lut• G"ini l'"i I
..
State of MaMtuhlra
Subbti R«8, J.
1963
Krishtt• Gotimi P121.1
v.
SWt 'If Maltartulitro
S•£f>a Ru, J.
686 SUPREME COURT REPORTS [1964] VOL.
displace the charge under section 149 because
along with the two or three persons convicted
were others who composed the
unlawful
assembly but who have not been identified
and so have not been namrd. In such cases,
the acquittal of one or more persons named in
the charge does not affect the validity of the
charge under section 149 because on
the
evidence the court of facts is able to reach the
conclusion that .the persons composing the un·
lawful assembly nevertheless were five or more
than five.
It is true that in the last category of
cases, the court will have to be very careful in
reaching the said conclusion.
But there is no
legal bar which prevents the court from reach·
ing such a conclusion."
It will be seen from the said observations that this
C<iurt was visualizing a case where
there was
evidence on the record from which the court can
come to such a c,incJu5io11.
It may be that the
charge discloses only named persons; it may also be
that the prosecution witnesses named only the said
accused; but there may be other evidence, such as
that given by the court· witncSses, defence witnesses
or circumstantial pieces of evidence, which may
disclose the existence of named or unnamed persons,
other than those charged or deposed to by the prose·
cution witnesses, and the court, on the basis of the
said evidence, may come to the conclusion that
others, named or unnamed, acted conjointly along
with one of the accused charged. But such a conclu·
sion is really based on evidence.
The observations of
this Court really apply to a case co\·ered by the third
illustration given by us.
But the present case falls outside the said three
illustrations.
The High Court gave
conflicting
findings.
While it acquitted accused I, 3 and 4
under s. 302, read withs. 34 of the Indian Penal
1 S.C.R.
SUPREME COURT REPORTS
687
Code, it convicted accused 2 under s. 302, read with
s. 34, of the said Code, for having committed the
offence jointly with the acquitted persons. That is a
legally impossible position.
When accused were
acquitted either on the ground that the evidence was
not acceptable or by giving benefit of doubt to them,
the result in law would be the same : it would mean
that they did not take part in the offence. The
effect of the acquittal of accused· I, 3 and 4 is· that
they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly
with accused 2, accused 2 could not have acted conjointly with them.
Realizing this mutually des·
. tructive findings of the High Court, learned counsel
for the State attempted to sustain the findings of the
High Court by persuading us to hold that if the said
finding was read in the context of the whole judg·
ment, it would be clear that the learned Judges
meant to hold that persons other than the acquitted
accused conjointly acted with the convicted. accused.
We have gone through the entire judgement carefully
with the learned counsel. But the observations of the
learned Judges as regards the "other participants" in
the crime must in the context refer only to the "one
or other of the said three acquitted accused participa·
ted in the offence committed by accused 2." There is
not a single observation in the judgment to indicate
that persons other than the said accused participated
in the offence, nor is there any evidence in that regard.
,We, therefore, hold that the judgment of the High
Court cannot stand. We are satisfied that on the
findings arrived at by the High Court, the conviction
of accused 2 is clearly wrong.
In the result, we allow the appeal, set aside the
conviction of the appellant and direct him to be set
at liberty.
Appeal allowed.
196!
J(,i,/ma GflvinJ P•til
v,
State of Maharruhtra
Sulba Ra1, J.