NAGARAJA versus STATE OF KARNATAKA

Citation: [2008] 17 S.C.R. 1127 · Decided: 18-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

[2008] 17 S.C.R. 1127 
NAGARAJA 
A 
v. 
~ 
ST ATE OF KARNAT AKA 
(Criminal Appeal No. 2067 of 2008) 
DECEMBER 18, 2008 
B 
[S.8. SINHA AND CYRIAC JOSEPH, JJ.] 
PENAL CODE, 1860: 
s.302134 323 - Murder - Conviction uls 302134 by trial 
court, affirmed by High Court - Three accused alleged to have, c 
assaulted deceased, one with iron rod, other with fists and the 
third one was stated to have kicked him - The last one filing 
appeal - Held: Appellant cannot be held guilty u/s 302134 -
In view of the fact that he was unarmed and presumed to have 
been performing his duties at his place of employment, it 
D 
cannot be said that he formed common intention at the spot' 
to murder deceased - He is accordingly convicted uls 323, 
" 
and sentenced to the period already undergone. 
The appellant (A-3) alongwith A-1 and A-2 was 
prosecuted for commission of the offence punishable u/' E 
s 302 IPC. According to the prosecution case as narrated · 
by PW 1, on the day of the incident when his brother (the 
deceased) an agriculturist did not reach home till 1 O'O 
Clock in the night, he went out in search of him; when · 
he reached near the wine shop, he saw accused persons 
F 
quarrelling with his brother; A-I assaulted him with an iron 
.... 
rod, A-2 with fists and the appellant (A-3) kicked him. The 
victim was taken to the hospital where he died the 
following day. The trial court convicted and sentenced all 
the accused u/s 302/34 IPC. The appeal was dismissed 
by the High Court. 
G 
In the instant appeal filed by A-3, it was contended 
~ 
that according to the prosecution case itself, the appellant ' 
was wholly unarmed; that the trial court as also the High · 
Court failed to consider that there was no evidence to 
1127 
H 
1128 
SUPREME COURT REPORTS 
[2008] 17 S. C R. 
A establish formation of any common intention amongst the 
accused so as to hold them guilty with the aid of s.34 IPC; 
and that the prosecution failed to prove any tangible 
.. 
_ 
' 
motive.·-
Allowing the appeal in part. the Court 
B 
HELD:1.1. Having regard to the quality of evidence 
that the prosecution had led, it cannot be said that all the 
accused persons had a common intention to commit 
, murder of the deceased. It has come in evidence that 
appellant A-3 was an employee in the wine shop, A-2, a 
c supplier and A-1 was a customer. Prosecution has not 
brought on record any evidence to show that the 
accused persons had a common intention to commit 
murder of the deceased. It has not been shown that even 
otherwise they were bearing any common grudge against 
D the deceased. Evidently, both A-1 and the deceased were 
customers of the wine shop. They might have picked up 
some quarrel: At the time when the occurrence took 
place, appellant being an employee of the said shop, the 
question of his coming to the place of occurrence 
together with the other accused did not arise. The 
E evidence of prosecution witnesses, particularly P.Ws. 1 
and 2, on which both the courts below have relied, even 
if taken at their face value, would merely show that it was 
A-1 who had assaulted the deceased with an iron rod and 
.......__
the appellant was said to have only kicked the deceased. 
F [Para 11 and 15] [1133-C-F; 1134-D-E] 
1.2. The house of PW 1 was situated at about one 
...
furlong from the place of occurrence. He came to the 
place of occurrence in search of his brother. He failed to 
bring any material on record as to on what basis he 
G arrived at the conclusion that accused persons had 
formed, a common intention. [Para 13] [1133-H; 1134-A] 
1.3-. It is not a case where all the accused came 
together and ran away together. P.W. 2 deposed that they 
; 
went.in.different directions. A bald statement said to have 
H been made by PW-1 that A-1 while assaulting the 
NAGARAJA v. STATE OF KARNA TAKA 
1129 
deceased had exhorted that they would not leave him till 
A 
he died, cannot be a ground to hold that the same by 
itself is demonstrative of the fact that appellant(A-3) also 
j 
had a similar intention. Admittedly, the appellant was 
wholly unarmed. (Para 14] [1134-8-C] 
2.1. For invoking the provisions of Section 34 of the 
B 
IPC, at least two factors must be established; (1) common 
intention, and (2) participation of the accused in the 
commission of an offence. For this purpose although no 
overt act is required to be attributed to the individual 
1 
accused but then before a person is convicted by c 
applying the doctrine of vicarious liabilit

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