Krishna Govind Patil vs State Of Maharashtra

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

Court: supreme-court

Case Number: Criminal Appeal No. 201 of 1962

Decision Date: 23 January 1963

Coram: Syed Jaffer Imam, Raghubar Dayal, J.R. Mudholkar, Subba Rao

In the matter titled Krishna Govind Patil versus State of Maharashtra, the Supreme Court delivered its judgment on 23 January 1963. The bench consisted of Justice Syed Jaffer Imam, Justice Raghubar Dayal and Justice J.R. Mudholkar. The case is reported in 1963 AIR 1413 and 1964 SCR (1) 678, and it has been cited in subsequent reports including D 1965 SC 1037 (5,6), D 1968 SC 43 (7), RF 1970 SC 977 (12), R 1972 SC 254 (4,6), RF 1973 SC 337 (24,25,26), E 1973 SC 863 (33), D 1974 SC 323 (10), R 1974 SC 778 (13), RF 1975 SC 1917 (13), D 1976 SC 1084 (16,17), R 1976 SC 2207 (51), RF 1983 SC 1090 (3), R 1989 SC 772 (10), R 1991 SC 318 (19) and D 1991 SC 1853 (11,15). The matter arose under the Indian Penal Code, 1860, specifically sections 302 and 34. Four individuals were charged with the murder of a person named Vishwanath. The prosecution alleged that the accused, motivated by a common grudge against the deceased, conspired together and caused his death, thereby charging them jointly under section 302 read with section 34, and also separately under section 302 alone. All four pleaded not guilty. Accused 1, 3 and 4 asserted alibi, while accused 2 claimed the right of private defence. The trial before an Additional Sessions Judge resulted in the acquittal of all four on the finding that the prosecution witnesses were not truthful and that the version presented by accused 2 was the more plausible explanation of the events.

The State appealed the acquittal of the three accused under section 302 read with section 34, but did not challenge the acquittal on the plain charge of section 302. The High Court upheld the acquittal of accused 1, 3 and 4 on the ground that it was doubtful whether any of them participated in the offence, while it convicted accused 2 on the reasoning that one or more of the accused might have taken part in the murder. Accused 2, now the appellant, contended that the conviction was impermissible because the other three, who had been acquitted under the same charge, could not be held jointly liable through constructive liability. The Supreme Court held that for a conviction under section 302 read with section 34, the court must reach a definite conclusion that the accused had entered into a prior concert with one or more other persons, whether named or unnamed, to commit the offence. The Court further observed that when accused are acquitted because the evidence is not acceptable or because they are given the benefit of doubt, the legal implication is that they did not partake in the offence. Consequently, the acquittal of accused 1, 3 and 4 meant that they had not acted conjointly with the appellant, and therefore the appellant could not have acted jointly with them. Accordingly, the conviction of the appellant was set aside.

When the benefit of doubt was given to the acquitted persons, the legal effect was that they were considered not to have participated in the offence. The acquittal of accused 1, accused 3 and accused 4 therefore meant that they did not act together with accused 2 in committing the murder. Because they did not act conjointly with the appellant, the appellant could not have acted conjointly with them. The judgment of the High Court contains no indication that any person other than the named accused took part in the murder, and there is no evidence to the contrary. Consequently, the conviction of the appellant had to be set aside. The decision in Mohan Singh v. State of Punjab, [1962] Supp. 3 S.C.R. 848, was held not to apply.

The appeal was filed under criminal appellate jurisdiction as Criminal Appeal No. 201 of 1962, seeking special leave from the Bombay High Court judgment dated 20 February 1962 in Criminal Appeal No. 1405 of 1961. The appellant was represented by counsel, while the respondent was represented by counsel. The judgment was delivered on 23 January 1963 by Justice Subba Rao. The appeal challenged the division bench of the Bombay High Court for setting aside the order of acquittal made by the Additional Sessions Judge, Kolaba, and for convicting the appellant under Section 302 read with Section 34 of the Indian Penal Code, imposing a life sentence.

The prosecution case was that in 1959 two individuals, Ramachandra Budhya and Govind Dhaya, were murdered. A total of eleven accused, including Deomar Maruti Patil, were tried, and eight of them, including Deomar Maruti Patil, were acquitted. During that trial, Deomar Maruti Patil’s uncle, Vishwanath, actively assisted him in conducting his defence. In the present matter, accused 1 and accused 2 were the sons of Govind Dhaya, while accused 3 and accused 4 were the nephews of Ramachandra Budhya. They harboured resentment against Vishwanath because of his assistance to Deomar Maruti Patil, which had resulted in the latter’s acquittal.

On 19 August 1960, Vishwanath and Mahadeo Pandu Patil left their village at approximately 8.30 p.m. to travel to Pezari on the way to Alibag. While they were walking along a bund, the four accused approached them from behind, each carrying long sticks, and the stick of accused 1 had a blade attached. The accused assaulted the deceased with these weapons, causing his death. The four accused were subsequently tried before the Additional Sessions Judge, Kolaba, for the murder of Vishwanath. The prosecution alleged that, motivated by a common grudge against the deceased, the accused acted together to kill him. All four were charged under Section 302 read with Section 34 of the Indian Penal Code for committing the murder in furtherance of their common intention.

The four individuals were indicted for murder on the basis of a common intention, and each of them was also charged separately with the substantive offence under section 302 of the Indian Penal Code. All the accused entered not‑guilty pleas. Accused 1, 3 and 4 relied on an alibi defence, while accused 2 asserted that he acted in private defence. The prosecution presented eye‑witness testimony stating that the four accused had overtaken the deceased while he was traveling to the village of Pezari and had struck him with lathis, causing his death. None of the witnesses mentioned the presence of any other person, whether identified or unidentified, who had taken part in the assault. After evaluating the evidence, the learned Additional Sessions Judge concluded that the prosecution witnesses were not telling the truth and that the version offered by accused 2 was the more plausible account. Consequently, the judge acquitted all four accused of both the charge under section 302 read with section 34 and the separate charge under section 302.

The State filed an appeal before the High Court challenging the acquittal on the charge of murder under section 302 read with section 34, but it did not appeal the acquittal on the separate section 302 charge. In its judgment the High Court observed that the judges were inclined to accept the testimony of the witnesses, except for the statements of Kashinath and Shridar. The Court dismissed the appeal concerning accused 1, 3 and 4 on the ground that the appeal was against an order of acquittal. Regarding accused 2, the Court held that he had participated in the assault and that his claim of private defence lacked support. Accordingly, the High Court convicted accused 2 under section 302 read with section 34 of the Indian Penal Code. The Court further explained that while some of the other accused were undoubtedly involved in the incident together with accused 2, the possibility existed that the prosecution’s version, particularly that of Mahadeo, was exaggerated; therefore it could not be safely concluded that each of the remaining accused had taken part in the offence. Considering that one or more of accused 1, 3 and 4 might not have participated, the Court chose not to disturb their acquittals, but it affirmed that accused 2, together with one or more of the others, had committed the offence and was therefore clearly guilty under section 302 read with section 34 of the Indian Penal Code. In essence, the High Court acquitted accused 1, 3 and 4 on the basis of doubt about their participation, while convicting accused 2 on the basis that at least one other participant was involved.

In this case, the appellant filed an appeal against the judgment of the High Court. The argument presented by counsel for the appellant may be summarised as follows: The learned Additional Sessions Judge had acquitted the accused of the charge under section 302 of the Indian Penal Code and also under section 302 read with section 34 of the same Code. The appeal before the High Court was limited to that acquittal under section 302 read with section 34. The prosecution had framed the charge and produced evidence only against the four persons named as participants in a common intention to murder the deceased. The High Court, however, after acquitting accused 1, 3 and 4, convicted accused 2 on the basis that he had jointly committed the murder together with the three accused who had been acquitted. In other words, the appellant contended that when three of the four charged individuals were found not guilty, the court could not sustain a conviction of the remaining accused merely on the theory of constructive liability. Counsel for the respondent replied that although the charge and the evidence were directed against the four named persons, a court is permitted to conclude that more than one participant, possibly unidentified, took part in the offence, and that the High Court, on a proper reading of its judgment, had found that although accused 1, 3 and 4 were not identified, three unidentified persons must have participated 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 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 implies a pre‑arranged plan and that the criminal act is carried out pursuant to that plan. The plan may also evolve on the spot during the commission of the offence, but the essential requirement is that the plan must precede the act constituting the offence. Consequently, before a court can convict a person under section 302 read with section 34, it must be satisfied that the person had a prior concert with one or more other persons, whether named or unnamed, to commit the offence. To illustrate the operation of section 34, the judgment referred to several hypothetical situations. In the first illustration, persons A, B, C and D are charged under section 302 read with section 34 for the murder of E and the evidence is directed to show that all four persons participated in the murder. The evidence is

In the discussion of the illustrations, the Court explained that the first illustration was intended to show evidence that the four persons named A, B, C and D had each taken part in the murder, and therefore the prosecution sought to establish the participation of all four. The second illustration described a situation in which A, B, C and D, together with other unnamed individuals, were charged under the same sections, and the evidence presented aimed to prove that the named persons and the unnamed persons had jointly carried out the offence. The third illustration involved evidence directed to demonstrate that A, B, C and D, together with three additional persons, had collectively committed the murder.

Regarding the third illustration, the Court stated that it was permissible for a court to conclude that one of the named accused could be found guilty of murder under section 302 read with section 34 of the Indian Penal Code, even though the other three named accused might be acquitted, provided the court accepted evidence that the accused who was convicted had acted in concert with persons, whether named or unnamed, who were not among those acquitted. In the second illustration, the Court held that it could reach the same conclusion and convict one of the named accused if it was satisfied that the defect in the charge had not caused prejudice to the accused. In the first illustration, the Court observed that it could convict two or more of the named accused if it accepted evidence that they had acted together in committing the offence.

The Court then considered the scenario in which three of the four accused were acquitted, either because the prosecution evidence was rejected or because the court gave them the benefit of doubt. It asked whether, in the absence of a charge and without supporting evidence, the court could hold that, although the three accused were acquitted, some other unidentified persons had acted in concert with the remaining named accused. The Court answered that to do so would be to create a new case for the prosecution, which would be contrary to the evidence presented. A court, therefore, could not fashion a prosecution case that was not disclosed in the charge or lacking any evidentiary foundation. There must be some evidential basis showing that persons other than those named had participated in the offence; if such a basis existed, the situation would be covered by the third illustration.

In support of the argument that even in the first illustration a court could acquit three of the four named accused on the ground that their identity had not been established, while convicting one on the basis that more than one person had taken part in the offence, reliance was placed on the decision of this Court in Mohan Singh v. State of Punjab. In that case, the appellants, together with three others, were charged with offences under section 302 read with section 149, as well as section 323. The Court referenced that precedent to illustrate how the principles articulated in the illustrations could be applied.

In the reported decision at Supplement 3 of the Supreme Court Reports, pages 848‑858, the case involved offences punishable under section 302 read with section 149 of the Indian Penal Code. The Sessions judge acquitted two of the accused, resulting in three convictions. Specifically, one accused was convicted on the basis of sections 302 and 147, while two other accused were convicted under section 302 read in conjunction with sections 149 and 147. The High Court affirmed all three convictions. The matter then proceeded to the Supreme Court on a special leave petition, wherein two of the accused who had been convicted under section 302 read with sections 149 and 147 raised, among other points, the contention that their convictions were legally untenable because two of the five originally charged persons had been acquitted. The Supreme Court, after examining the evidence, concluded that those two accused had carried out the act according to a pre‑arranged plan; consequently, they could be sustained in conviction under section 302 read with section 34 of the Indian Penal Code. While delivering its judgment, the Court noted that several factual scenarios might arise relevant to the question before it. Referring to one scenario analogous to the present case, the 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 section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing 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 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 named. 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 unlawful 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 reaching such a conclusion.” From those observations, it is clear that the Court was envisioning a situation where, despite acquittals of some named accused, the presence of additional, possibly unnamed participants could sustain the charge of unlawful assembly under section 149, provided the evidence supports such a conclusion.

In this case the record contained evidence that enabled the court to reach the conclusion in question. The charge might have identified only persons who were named, and the prosecution witnesses might have named only the accused. Nevertheless, other evidence could exist, for example testimony of court witnesses, testimony of defence witnesses, or circumstantial material, which could disclose the presence of other persons, whether named or unnamed, who were not listed in the charge or mentioned by the prosecution witnesses. Based on such evidence the court could conclude that persons other than the named accused had acted together with one of the accused who was charged. However, any such conclusion had to be grounded on the evidence. The observations of this Court applied to a case described in the third illustration given earlier, but the facts of the present matter did not fit any of those three illustrations. The High Court, on the facts before it, arrived at inconsistent findings. It acquitted accused 1, accused 3 and accused 4 under section 302 read with section 34 of the Indian Penal Code, while it convicted accused 2 under the same provisions for having committed the offence jointly with the persons who had been acquitted. That juxtaposition created a legal impossibility. When an accused is acquitted because the evidence is insufficient or because doubt is raised in favour of the accused, the legal effect is that the accused did not take part in the crime. Consequently the acquittal of accused 1, 3 and 4 meant that they did not act jointly with accused 2 in the murder. If they did not act jointly with accused 2, then accused 2 could not have acted jointly with them. Recognising the mutually contradictory conclusions of the High Court, counsel for the State tried to preserve those findings by arguing that, when read in the context of the whole judgment, the learned judges had intended to hold that persons other than the acquitted accused had acted jointly with the convicted accused. The Court examined the entire judgment together with the counsel’s submissions. The Court found that the reference to “other participants” in the judgment actually referred to the possibility that one or more of the three acquitted persons might have participated in the offence committed by accused 2. The judgment contained no observation that any person other than the named accused had taken part, and there was no evidence to support such a claim. Therefore the Court held that the High Court’s judgment could not be sustained. On the basis of the High Court’s own findings, the conviction of accused 2 was untenable. The appeal was accordingly allowed, the conviction of the appellant was set aside and the appellant was ordered to be released.