Whether the court can convict accused for an offence U/S 302 Of IPC if he was not sharing common intention to commit murder of deceased?

  A reading of the judgment and order passed by the Trial as well as the High Court would indicate that neither the prosecution or defence, nor the court, have focussed on the role of A-3 as evidenced by the oral and documentary evidence. There is nothing to attribute A-3 with the intent to murder the deceased. In fact, both the Courts have mechanically drawn an inference against A- 3 Under Section 34 of the Act merely based on his presence near the scene of offence and his familial relations with the other Accused.{Para 23}

24. As per the post-mortem report, the cause of death is "cardio pulmonary arrest due to transaction spinal cord at atlanto occipital joint". The atlanto occipital joint is at the back of the neck, which is the exact place where A-1 assaulted the deceased with the help of an axe. This axe was then taken by A-2 and thereafter, by A-4, who also assaulted the deceased. All the eye-witnesses are clear in this account. In other words, it was only A-3 who never took the axe in his hand. He only used a stone to assault the deceased.

25. Considering the statements of the eye-witnesses, coupled with the post-mortem report, it is not possible to contend that A-3 would have had the intention to commit the murder of the deceased and as such, he cannot be convicted Under Section 302 Indian Penal Code.

27. It is evident from the evidence of PW-11 that the deceased suffered 12 injuries, of which 10 are caused by sharp-edged weapons. The 11th injury is a partial amputation of the middle 3 fingers of left hand. The final injury is a lacerated wound on the back of neck measuring 18 cms x 7 cms with complete transaction of spinal cord and atlanto occipital joint. The Trial Court and the High Court have not analysed the evidence as against A-3. They have proceeded to convict him along with others Under Section 302 with the aid of Section 34. The cumulative circumstances in which A-3 was seen participating in the crime would clearly indicate that he had no intention to commit murder of the deceased for two clear reasons. Firstly, while every other Accused took the axe used by A1 initially and contributed to the assault with this weapon, A-3 did not wield the axe at any point of time. Secondly, A-3 only had a stone in his hand, and in fact, some of the witnesses said that he merely threatened in case they seek to intervene and prevent the assault. Under these circumstances, we hold that A-3 did not share a common intention to commit the murder of the deceased. Additionally, there is no evidence that A-3 came along with the other Accused evidencing a common intention. The description of the incident is that when the deceased came to the scene of occurrence, A-1 dragged him to the house of A-4, and the other Accused joined A-1. In this context, A-3 picked up a stone to assault the deceased.

28. Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has committed. While we acquit A-3 of the offence Under Section 302 read with Section 34 of the Indian Penal Code, he is liable for the offence Under 304 Part II Indian Penal Code. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2852 of 2023

Velthepu Srinivas and Ors. Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Pamidighantam Sri Narasimha, JJ.

Author: Pamidighantam Sri Narasimha, J.

Citation:  MANU/SC/0084/2024.

Decided On: 06.02.2024.

Read full Judgment here: Click here.

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