B. N. Srikantiah and Others vs The State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 120 and 121 of 1955

Decision Date: 14 April 1958

Coram: J.L. Kapur, Natwarlal H. Bhagwati, A.K. Sarkar

In the matter of B. N. Srikantiah and others versus the State of Mysore, the judgment was delivered on 14 April 1958 by a bench of the Supreme Court of India consisting of Justice J. L. Kapur, Justice Natwarlal H. Bhagwati and Justice A. K. Sarkar. The petition was filed by B. N. Srikantiah and several co‑accused, and the respondent was the State of Mysore. The case is reported in the 1958 volume of the All India Reporter at page 672 and in the 1959 Supreme Court Reporter at page 496. The statutory provision under consideration was the offence of murder under section 302 of the Indian Penal Code, 1860, and the question of whether a conviction could be sustained under section 302 together with section 34, which deals with common intention.

The factual background revealed that six individuals were charged under section 143 of the Indian Penal Code for being members of an unlawful assembly whose common object was to murder a woman identified as Anne Gowda. Five of those persons were additionally charged under section 302 for intentionally causing her death, while the sixth individual faced a charge under section 302 in conjunction with section 109 for abetment of murder. At the trial, the court acquitted all six persons of the offence under section 143. It further acquitted two of the accused, convicted the three appellants under section 302, and convicted the sixth accused under section 302 together with section 109. On appeal, the High Court upheld the convictions of the three appellants under section 302 but set aside the conviction of the sixth accused under section 302 / 109.

The appellants contended that the prosecution had failed to establish which of them had delivered the fatal blow, and therefore none could be convicted under section 302 simpliciter. They also argued that because the charge sheet did not expressly invoke section 34, a conviction under section 302 / 34 was impermissible. The Court held that the omission of a reference to section 34 in the charge could not prejudice the accused unless they demonstrated a concrete adverse effect. The charge, as framed, stated that the appellants and two others had committed the murder by intentionally causing the death of the deceased. The appellants were put on notice that they were being tried as “sharers in the offence,” indicating that liability was collective and vicarious rather than strictly individual. The Court observed that the appellants had neither alleged nor proved that the failure to specify section 34 caused any prejudice to their defence.

The issue of common intention was treated as a question of fact to be inferred from the conduct of the parties. Evidence presented showed that the appellants had pre‑planned the attack. They had assaulted Anne Gowda with chopping tools, inflicting injuries on her head, neck, shoulders and forearms. Moreover, the appellants not only inflicted injuries at the spot where they first encountered her but also pursued her when she attempted to flee, continuing their assault with deadly weapons until she succumbed to her injuries. The Court noted that the nature of the assault, the ferocity displayed, the type of weapons employed, the locations and character of the injuries, together with the established pre‑concerted plan, were indicative of a common intention to murder.

The Court observed that the evidence had established a preconcert, showing that the appellants shared a common intention to murder the deceased. The matter before the Court was the criminal appellate jurisdiction of Criminal Appeals Nos 120 and 121 of 1955, which were appeals from the judgment and order dated 16 December 1954 of the Mysore High Court at Bangalore. Those High Court decisions themselves arose from Criminal Appeals Nos 49 and 50 of 1953, which were based on the judgment and order dated 19 May 1953 of the Court of the Third Additional Sessions Judge at Bangalore in Bangalore Sessions Case No 7 of 1953. Counsel for the appellants were V Krishnamurthy and R Gopalakrishnan, while the State of Mysore was represented by G Channappa, Assistant Advocate‑General, and T M Sen for the respondent. The judgment was delivered on 14 April 1958 by Justice Kapur. The two appeals were filed under Article 134(1)(c) of the Constitution, challenging the High Court’s confirmation of the convictions and sentences imposed on the appellants, who were identified as accused Nos 2, 3 and 4 by the Third Additional District Judge, Bangalore. Accused Nos 1, 5 and 6 had been acquitted at trial. The charge sheet read in part: “I hereby charge you A‑1 Sanjeeva Rao, A‑2 Srikantiah, A‑3 Sidda, A‑4 Kidaripathi, A‑5 Hanumantha and A‑6 Pujari Anantha as follows: (1) that on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk you were members of an unlawful assembly whose common object was to murder the deceased Anne Gowda, thereby committing an offence punishable under section 143 of the Indian Penal Code within the jurisdiction of the Court of Sessions; (2) that A‑2 Srikantiah, A‑3 Sidda, A‑4 Kidaripathi, A‑5 Hanumantha and A‑6 Pujari Anantha, on the same date and place, did commit murder by intentionally causing the death of Anne Gowda, an offence punishable under section 302 of the Indian Penal Code; and (3) that A‑1 Sanjeeva Rao, on the same occasion, abetted the commission of the murder by A‑2 to A‑6, thereby committing offences punishable under sections 109 and 302 of the Indian Penal Code.” Consequently, all the accused were charged as members of an unlawful assembly with the common object of murdering Anne Gowda. The appellants, together with accused Nos 5 and 6, were additionally charged with murder for intentionally causing Anne Gowda’s death. Although the charge did not expressly use the phrase “in furtherance of the common intention of all,” the Court noted that the wording was as close as possible to that description. Accused No 1 Sanjeeva Rao was separately charged with abetting the murder. The trial Court had acquitted all the remaining accused.

In the trial court, the prosecution had charged the first accused under section 143 of the Indian Penal Code, while accused numbers five and six were charged under section 302. The court, however, convicted the first accused not only under section 302 but also under section 109, and it convicted the appellants under section 302. All of those convicted were sentenced to transportation for life. The convicted parties appealed to the High Court, and the State also appealed against the trial court’s order of acquittal of accused numbers five and six and the order of acquittal on the charge under section 143. The High Court, after referring the matter concerning the first accused to a third judge under section 429 of the Criminal Procedure Code because the two judges of the Division Bench were divided, acquitted the first accused, Sanjeeva Rao, of the charge of abetment of murder. Consequently, the prosecution’s case of abetment failed. The High Court also affirmed the trial court’s acquittal of accused numbers five and six. Because the first accused, the fifth accused, and the sixth accused were all acquitted, the charge of unlawful assembly—whose alleged common object was the murder of the deceased, Anne Gowda—could no longer be sustained, leaving only the appellants. The High Court therefore upheld the appellants’ conviction for the offence under section 302 of the Indian Penal Code and affirmed their sentence of transportation for life.

The trial court had previously found that, with respect to accused A‑2 Srikantiah, accused A‑3 Sidda and accused A‑4 Kadaripathi alias Kunta, there was ample evidence to show that they alone had inflicted the injuries that caused the death of Anne Gowda, and it concluded that a prima facie case of murder against them had been made out. The High Court, in its appellate judgment, observed that the evidence presented as a whole was consistent, to the extent that the defence argued that each witness merely repeated the statements of the others. It noted that several important witnesses were listed in the First Information Report and that the inquest was completed within twenty‑four hours after the incident. Relying on the consistency of the witnesses’ testimony and the surrounding probabilities, the High Court stated that the prosecution’s evidence regarding the incident must be believed. The Court further observed that neither the trial court nor the Division Bench had undertaken a critical and analytical examination of the prosecution’s witnesses, nor had they collated the evidence against each appellant, making a detailed examination of the evidence necessary. The Court also pointed out that the deceased, Anne Gowda, and the party of Sanjeeva Rao (the first accused) harboured considerable enmity toward each other. On the date of the occurrence, 25 August 1952, the deceased had travelled to Ramanagram, where a case had been brought against him in a Magistrate’s Court by the first accused. After that case concluded, the deceased and PW 18, Gangabyriah, who was a co‑accused in the earlier proceeding, proceeded further, after which the narrative continues.

After the earlier events, the deceased and his two companions travelled by bus and reached a place called Kudur at about seven p.m. From Kudur the deceased, together with his two companions and also PW 17 Thimmappa, PW 19 Puttarangiah and PW 21 Basavalingappa, who had gone shopping at the shop of PW II Subba Rao, started for their village Yollapore. When they arrived at the bund of the tank at Mayasandra, accused Nos 1 and 5 and the appellants approached from the opposite side. Accused No 1 flashed his torch on the deceased and his companions. Then appellant No 1, who was the brother of Sanjeeva Rao, struck with his chopper, breaking in two the torch that PW 18 Gangabyriah was holding. Acting on the instruction of accused No 1 to kill the deceased, the appellants commenced their attack. Appellant No 3 Sidda gave a blow from behind on the right side of the deceased’s neck with his chopper; accused No 4 Kadaripathi aimed a blow at the deceased’s head, but the deceased raised his hand and the blow struck his hand instead. The deceased then ran toward the tank while accused Nos 1 and 5 and the other appellants pursued him. He fell into a shallow water pit. Accused Nos 5 and 6, who were empty‑handed, are reported to have seized him, and the appellants delivered five or six blows with their choppers. Accused Nos 5 and 6 then released him, but the appellants continued the assault with their choppers, causing twenty‑four incised injuries. This account is supported by the testimonies of PW 17 Thimmappa, PW 18 Gangabyriah, PW 19 Puttarangiah, PW 20 Putta and PW 21 Basavalingappa. The First Information Report, lodged at about one a.m. on August 26, was made by PW 17 Thimmappa and set out the whole incident, naming both the accused and the witnesses. A search of appellant No 3 Sidda’s house produced a blood‑stained chopper, identified as MO 11, before the Panchayatdars. A similar search of accused No 4 Kadaripathi’s house also produced a chopper. Because the prosecution did not prove that either chopper was stained with human blood, those recoveries offered little assistance. The medical witness PW 2 examined the body and recorded twenty‑four incised injuries. Injury number 5 was described as a transverse incised wound in front of the neck, five inches long and two‑and‑a‑half inches deep, cutting the skin, muscles, arteries and veins above the thyroid cartilage, the pharynx and muscles in front of the vertebral column. On the right side the wound began two inches below the lobule of the right ear, ran leftward and ended two inches below and one inch behind the lobule of the left ear. All other injuries were incised to varying degrees of seriousness. The medical opinion stated that injury 5 was a fatal wound sufficient to cause death, and that, taken together, the other injuries might also be fatal.

The medical examiner testified that the wound identified as injury number five was a transverse incised wound situated in front of the neck, measuring five inches in length and two and a half inches in depth. The wound cut through the skin, muscles, arteries, and veins located above the thyroid cartilage, as well as the pharynx and the muscles lying in front of the vertebral column. The examiner further described that on the right side the wound commenced two inches below the right ear lobule, extended leftward, and ended two inches below and one inch behind the lobule of the left ear. All other injuries recorded by the medical witness were also incised wounds, varying in seriousness. The medical expert opined that injury number five alone constituted a fatal injury sufficient to cause death, and that taken together the remaining injuries could also be fatal. The prosecution failed to establish which accused caused injury number five, nor could it attribute the specific injuries to individual appellants. Consequently, the court was required to determine whether any of the appellants were guilty of an offence, and if so, which offence applied. Lower courts had accepted witness testimony indicating a pre‑existing enmity between the parties and that, on the day of the incident, the deceased had travelled to the magistrate’s court at Ramanagram to pursue a case initiated by accused number one. The evidence further showed that on that same day appellants three and four were observed together at Kudur, in front of the shop of witness ten, at approximately six o’clock in the evening. When witness ten asked accused three why he was present, the accused replied that he was waiting for someone arriving on the Renuka Bus Service. Witness eleven corroborated that he saw accused three, accused four, and another man at about five‑thirty or six p.m. in front of his shop, and that they claimed they had come to see persons alighting from the Renuka Bus. It was also established that the deceased and two companions had arrived from Ramanagram on the same bus service at about seven p.m.

Further testimony from prosecution witnesses numbered seventeen to twenty‑one established that when the deceased and his party approached the bund of the tank, the accused’s party moved toward them. Accused one, identified as Sanjeeva Rao, flashed a torch, after which the other accused began attacking the deceased with choppers at his instigation. The assault produced injuries to the head, neck, shoulders, and both forearms, which appeared to have been inflicted when the deceased attempted to defend himself by raising his arms to protect his head. The evidence demonstrated a common intention among the appellants, as they were armed with deadly weapons, used those weapons to wound the deceased at the initial encounter, pursued him when he tried to flee, and continued the assault with the same weapons until he died. The record showed that all of the accused participated in the assault, which resulted in twenty‑four injuries on the deceased, of which twenty‑one were incised wounds located on the head, neck, shoulders, or forearms. Except possibly for the last injury, each wound affected a vital part of the body, indicating that the assault was directed at causing serious bodily injury.

In this case the Court observed that injuries inflicted with weapons of the kind used by the appellants must be understood as being caused with the intention of causing bodily harm that would satisfy the requirements of section 300 of the Indian Penal Code. It was then questioned whether a charge under section 34 was necessary for the accused to be held liable as participants sharing a common offence, that is, through the application of section 34 in prosecution of the common intention of all. The Court noted that intention is a factual question to be inferred from the conduct of the parties, and that any person who inflicted injury number five or who caused the other injuries to the vital parts of the body could not have possessed any intention other than causing death, given the nature, number of injuries and the weapons employed. The Court further held that the failure to mention section 34 of the Indian Penal Code in the charge does not invalidate the case unless a prejudice resulting from that omission is shown. The charge, as framed, alleged that the appellants and others were members of an unlawful assembly whose common object was to murder the deceased. Although the law distinguishes between a common object and a common intention, both concepts involve a combination of persons who become liable as joint perpetrators, and a charge under section 149 of the Indian Penal Code does not prevent a conviction by applying section 34 where the evidence shows that the offence was committed in furtherance of the common intention of all. The second charge expressly stated that the appellants and accused numbers five and six committed the murder by intentionally causing the death of the deceased. The Court acknowledged that it would have been preferable to specify section 34 in the charge, but the omission could not affect the judgment in the present circumstances because no prejudice was alleged or demonstrated, and the issue had not been raised before the lower courts. The Court then referred to the decision in Willie (William) Slaney v. The State of Madhya Pradesh, which clarified the effect of a defect in a charge. In that case the accused were charged under section 302 read with section 34, and the conviction was under section 302. The Court emphasized that procedural rules are intended to serve the ends of justice and not to obstruct them, and that an irregularity occurring during a trial that otherwise follows the Code is curable under section 537 of the Criminal Procedure Code. The Court also cited the authority of Viscount Sumner in Atta Mohammad v. King Emperor, stating that in the complete absence of substantial injustice or any breach of natural justice in criminal proceedings, there is no ground for interference.

In this case the Court observed that it could not recommend that the Crown intervene in criminal matters merely because of a defect in the charge. The purpose of a charge, the Court said, is to inform the accused of the case he must answer; it is not a ceremonial formality. Referring to the judgment of Bose J. in the William Slaney case, the Court noted the provisions of sections 232(1) and 535 of the Criminal Procedure Code, which speak of “absence of a charge” and “no charge was framed”. Bose J. explained that there is no justification for over‑interpreting these clear provisions unless the ritual and form of a charge were considered essential to criminal trials. He rejected the notion that any magical effect attaches to the ritual of a charge, emphasizing that the substance of the statutory requirements, not their outward form, is what matters. To adopt the opposite view would, in his words, open avenues for the guilty to escape and would give no protection to the innocent. The Court further held that an imperfection in a charge could be cured so long as the defect did not cause any prejudice to the accused. In the present proceedings the appellants had been put on notice that they were being tried as “sharers in the offence”, meaning that their liability was collective and vicarious rather than individual. The charge correctly alleged that they were members of an unlawful assembly under section 149 of the Indian Penal Code, whose common object was the murder of the deceased, and additionally charged them, together with accused numbers five and six, with murder by intentionally causing the death of the deceased. Evidence produced by the prosecution showed that at least two of the appellants were waiting for the evening bus that the deceased and his companions were travelling in. The appellants and other persons met the victims at the bund, launched a coordinated attack, pursued them and assaulted them with choppers. The collective action of the appellants resulted in twenty‑four serious injuries, leading to death. While the injury inflicted by accused number five was individually sufficient to cause death, the remaining injuries, taken together, were also sufficient in the ordinary course of nature. The Court explained that section 34 of the Penal Code is a rule of evidence, not a substantive offence. It merely states that when two or more persons intentionally commit an act together, each is deemed to have performed the act individually. Citing the Privy Council decision in Barendra Kumar Ghosh v. King Emperor, the Court reiterated that section 34 covers separate, similar or diverse acts done in furtherance of a common intention, and each participant is liable for the result as if he had acted alone. The appellants, throughout the trial, denied any participation in the offence.

When the appellants were examined pursuant to section 342 of the Criminal Procedure Code, each of them asserted that the case of the prosecution was false. They never expressed any suggestion that they had suffered prejudice because of any defect in the charge. In response to every question posed to them, their answer was that the prosecution’s evidence was false. For example, one of the questions asked the appellant to comment on the testimony of witnesses who alleged that on the night of 25 August 1952, he, together with the accused persons 1, 3, 4 and 5, had approached the tank bund holding a match in the hand with the intention of striking Anne Gowda. The appellant replied that this allegation was “absolutely false.” In answer to another query regarding whether he had assaulted the deceased with a chopper, appellant No. 1 stated that he had never seen the deceased on that date and that the evidence was false; the other two appellants similarly declared that the prosecution’s evidence was false.

The manner in which the questions were framed signified that the prosecution was placing reliance on collective responsibility and on the allegation that the appellants had acted with a common intention. Nevertheless, the appellants did not raise any objection of prejudice on the ground that section 34 of the Indian Penal Code was omitted from the charge. The judgment of the High Court contains no indication that such an objection was ever taken before it. Although the specific grounds of appeal filed in the High Court are not before this Court, the appellants’ application under article 134(1)(c) to the High Court reveals that they objected to the failure to specify section 34. Their objection was expressed in the following terms: “There is no charge framed in the case against accused 2, 3, 4, 5 and 6 for any offence under Section 302 read with Section 34 of the Indian Penal Code. It was, therefore, 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, namely (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 groove and there is no evidence of any prior conspiracy conducive to that requisite inference. Further, from the evidence of the eye‑witnesses it is not possible to predicate which blow caused by which instrument, by which accused resulted in death. Therefore it is a case in which accused 2, 3 and 4 are charged on individual responsibility alone for having caused murder punishable under Section 302, Indian Penal Code, individually. Neither the trial Court nor, it is submitted, the High Court has considered this aspect of the matter and has considered the individual responsibility of accused 2, 3 and 4 for their individual acts.” The same language appears in the appellants’ grounds of appeal filed in this Court. Nowhere has

It was asserted that the failure to mention section 34 of the Indian Penal Code in the charge could have caused prejudice to the appellants, yet no material was placed on record—neither through the course of cross‑examination nor by any other evidence—to demonstrate that the appellants were misled by this omission. No specific instance of prejudice was pleaded or proved, and there were no facts upon which a conclusion could be drawn that the conviction under section 302 was invalidated because of such prejudice. The Court then referred to its earlier decision in Rawalpenta Venkulu v. The State of Hyderabad (1). In that decision the Court held that leaving out a reference to section 34 in the charge was of merely academic importance provided the accused understood the nature of the charge against them. The facts of that case involved a conspiracy to murder in which the accused, after locking the room where the deceased was sleeping, set fire to the room and thereby caused the death. Although the charge was framed solely under section 302 without mentioning section 34, the evidence established a clear intention to kill because each accused had actively participated in igniting the fire by placing lit matches while the victim was trapped. The trial judge explained the charge in the following words: “You are charged of the offence that you, with the assistance of the other present accused, with common intention….” From this explanation the Court concluded that the accused had unmistakable notice that they were being charged with murder committed in pursuance of a common intention. Accordingly, the omission of section 34, cited in the judgment as A.I.R. 1956 S.C. 171, was deemed to have only academic significance and did not mislead the accused. The focus, therefore, was on whether any misdirection or prejudice resulted from the omission, and on the facts of that case the Court was of the opinion that no such prejudice existed.

The appellants’ counsel also relied upon the decision in Chikkarange Gowda v. State of Mysore (1). In that case the charge read: “That you, on or about the 18th day of April, 1951, at Talkad, were a 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 killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda, and you are thereby under section 149 read with section 34 of the Penal Code, guilty of causing the said murders, an offence punishable under section 302 of the Penal Code and within the cognizance of the Court of Sessions.” This quotation illustrates that the charge expressly incorporated both section 149 and section 34, thereby giving the accused clear notice of the legal provisions invoked. The Court’s discussion of this precedent served to underscore the principle that the presence or absence of a reference to section 34 in a charge is immaterial where the accused are adequately informed of the nature of the offence they face, and that no prejudice can be presumed solely from such an omission.

The Sessions Judge concluded that the purpose of the unlawful assembly, or the accused’s intention, extended beyond assaulting Putte Gowda to include the intention to kill him. On appeal, the High Court held that the prosecution had failed to produce evidence establishing any concerted plan or common objective to kill the victim. Nevertheless, the High Court expressed the view that the local residents were irritated with Putte Gowda and that the assembly’s collective aim was simply to inflict a severe, public chastisement. Accordingly, the individual identified as having delivered the fatal blow to Putte Gowda was acquitted by the High Court on the ground that the evidence was insufficient. The remaining two accused were found guilty of severely assaulting the deceased and were convicted of murder as well. Before this Court, counsel argued that, based on High Court’s findings on common object of assembly, convictions under sections 302 and 34, or under section 149, could not be sustained (1) A.I.R. 1956 S.C. 731. It was further contended that the manner in which sections 149 and 34 were intermingled in the charge denied the accused a reasonable opportunity to meet the allegations against them. This Court observed that, according to the High Court’s determination, none of the members of the unlawful assembly possessed the intention to kill Putte Gowda. The Court also held that the wording of the charge failed to give the accused effective notice of the case they were required to answer. In this situation, the separate common intention of the three persons was distinct from the broader common object of the remaining members of the unlawful assembly. Consequently, the issue was not whether a specific provision such as section 34 was necessary, but whether the accused with a differing common intention were afforded a reasonable chance to defend themselves. Because the finding was that such an opportunity had not been provided, the convictions of the two accused for offences under sections 302 and 34 were deemed untenable. The Court noted that this judgment does not establish a principle divergent from the ruling in Willie (William) Slaney’s case (1). It merely underscores that when a charge is defective and prejudice is shown, a conviction cannot be sustained. In the present matter, the Court found that the appellants’ common intention was demonstrated by their conduct, the ferocity of the attack, the weapon employed, and the location and nature of the injuries. The Court also relied on the pre‑concerted plan shown in witness statements numbered ten and eleven as evidence of the coordinated assault. Accordingly, the Court concluded that the appellants were properly convicted of murder as participants sharing the same offence. For these reasons, the Court found that the legal basis for the appeals was lacking and therefore dismissed them. Consequently, the appellate petitions were formally dismissed, leaving the convictions in place and confirming the lower court’s findings. The Court cited the authority referred to as (1) [1955] 2 S.C.R. 1 140, 1 1165 in support of its conclusion.