KERALA HIGH COURT
K. A. Bhaskaranand P. C. Balakrishna Menon, JJ.
Mynathil Mathai Appellants
versus
State of Kerala Respondent
and
Manachirakkal Mathew Appellants
versus
State of Kerala Respondents
Criminal Appeal Nos. 475 of 1980 and 9 of 1981
Decided on 30th June, 1982
For the Appellant: Sri Alexander Skaria, Advocate.
For the Respondent: Govt. Pleader.
Crl. Appeal No. 9 of 1981:
For the Appellant: M/s. V. P. Raghuraj and Sunny Ponnamattom, Advocate; For the Respondent: Govt. Pleader.

IMPORTANT POINT
Even this that all the co-accused charged under section 302 read with section 34 Indian Penal Code have been acquitted it will be legal to convict the sole non-acquitted accused provided his participation in the criminal act was established.

Headnote:(i) Indian Penal Code, 1860-Section 34-Common intention-Essential requirements to spell out-Section 34 per se does not create an offence but only lays down a rule of law.

       Held the vicarious or constructive liability under section 34 of the Code would arise only where the two conditions stand fulfilled; (1) the mental element, called the intention to commit the criminal act conjointly with another or others; and (2) actual participation in one form or the other in the commission of the offence. The accused is not liable to be punished under section 34 Indian Penal Code for what another or others did by himself or themselves; but only for what he did in furtherance of the common intention to commit the offence conjointly with another or others. Neither the entertaining of the common intention for the commission of the criminal act by itself, nor the participation in the commission of the offence by itself, would render the accused liable to be punished under section 34 Indian Penal Code. It has to be borne in mind that section 34 does not by itself create an offence; it only lays down a rule of law without creating a definite head of criminality. To convict an accused under section 34 it should be proved that the criminal act was done in concert, pursuant to the pre-managed plan. No doubt, often than not, direct evidence in regard to the intention might not be easy to obtain; it might be necessary to infer it from the act or conduct of the accused concerned or other relevant circumstances of the case. (Para 5)

        (ii) Indian Penal Code, 1860, Section 300-No acceptable evidence to establish commission of murder by the 2nd accused-Nor is there material from which an inference could be drawn of his common intention with the 1st accused to commit the crime-Conviction held illegal and set aside.

       Held that in this case no inference regarding the spring of the common intention for commission of the offence between A-1 Sunny and A- 2 Babu is possible to be drawn from the material available on record, nor is there any evidence regarding his participation in any form in the commission of the criminal act. It has, therefore, to be held that the attempt of the prosecution to rope in A-2 Babu by invoking section 34 of the Code has necessary to fail. (Para 6)

        (iii) Evidence Act, 1872, Section 114, Illustration (a)-Drawing of inference under.

       Held that no doubt, the drawing of the inference under illustration (a) of Section 114 of the Evidence Act is in the option of the Court, but the silence of the accused who is found to be in recent possession of the article could be taken into account with the other circumstances appearing in the case in deciding the question. May be that the mere possession by the accused of an article, which was on the person or in the custody of a murdered person, without an explanation would not by itself lead to an inference that he took part in the murder or he was a party to it. Where, however, there is found to exist some other evidence or circumstance to connect the accused to the crime of murder, recent and unexplained possession of M.O.2. as in the present case, would invite the inference that the accused was guilty of murder and robbery which form part of the same transaction. (Para 8)

       (iv) Criminal Law- Murder-Circumstantial evidence-Reliability of.

       Held these circumstances arc consistent only with the hypothesis of the guilt of the accused; the chain of evidence -is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. Where the proved circumstances are of an incriminating character and they provide a complete chain, there being no missing link, pointing unequivocally to the guilt of the accused and excluding any hypothesis consistent with his innocence, it has to be held that the prosecution has proved the guilt of the accused beyond all reasonable doubts. In our opinion, the chain of circumstances proved against A-1 Sunny in, this case is such that it leads to the irresistible conclusion that the prosecution has established by cogent, succinct are reliable evidence that the (A-1 Sunny) is guilty of the offences with which he was charged. (Para 9)

        (v) Indian Penal Code, 1860-Sections 34 and 302-Requirements for conviction-Vicarious liability under Section 34 when attracted.

       Held that even in a case where, out of the four accused charged for murder under section 302 read with section 34 Indian Penal Code, three were acquitted, the Supreme Court has taken the view that it would be legal to convict the sole non acquitted accused provided his participation in the criminal act was established: (Harshad Singh v. State of Gujarat, A.I.R. 1977 S.C. 710 relied.) (Para 10)

       (vi) Criminal Procedure Code, (1973), Section 464-Scope and applicability of.

       Held that no doubt, section 464 provides a safety valve for the prevention of miscarriage of justice which might otherwise result out of defects which are technical in nature in the matter of framing charge. It should not, however, be overlooked that the paramount consideration is the dispensation of justice, and nothing which would result in prejudice to the accused would or could be condoned by resort to section 464 Criminal Procedure Code. This is an enabling provision to be invoked sparingly and in exceptional circumstances, not as a matter of course. It would be wrong to assume that section 464 Criminal Procedure Code is meant to cover up every carelessness, omission or mistake on the part of the Judge in framing the charge. In this case, in terms of the charge, the accused was not asked to stand his trial on an allegation that he had committed robbery; he was only told that A 2 Babu had committed robbery in furtherance of the common intention of himself and A 2 Babu. It cannot, be therefore, be-said that by the framing of the charge in this manner no prejudice was caused to the accused in his defence. We, therefore, accept the contention of Sri Scaria that the conviction and sentence passed by the learned Sessions Judge against A-1 Sunny tinder section 392 read with section 34 Indian Penal Code is liable to be set aside. (Para 13)