A.K Ganguly, J.— All these five criminal appeals are heard together and out of which Criminal Appeals Nos. 1280, 1282 and 1283 of 2004 are directed against the judgment and order dated 31-10-2003 in Criminal Appeals Nos. 1795 of 1997, 1757 and 1826 of 1999 passed by the Andhra Pradesh High Court whereby the Hon'ble High Court while affirming the judgment dated 11-10-1999 in CC No. 6 of 1999 passed by the Additional Special Judge for SPE & ACB Cases, Hyderabad dismissed the appeals.

2. The appellant, Y. Venkaiah (A-3) in Criminal Appeal No. 1280 was working as a Junior Assistant in the office of the Deputy Director, Social Welfare Department, Nalgonda along with V. Rama Rao (A-1), S.A Rasheed (A-2) and P. Kranwar (A-4). The appellant, S.A Rasheed (A-2) in Criminal Appeal No. 1282 of 2004 was working as a Social Welfare Inspector and the appellant, P. Kranwar (A-4) in Criminal Appeal No. 1283 of 2004 was a Warden, Social Welfare in Government Boys Hostel, Nalgonda.

3. The aforesaid Accused 2, 3 and 4 were prosecuted for an alleged conspiracy for drawing scholarships on the basis of fictitious post-matric students of Geeta Vignana Andhra Kalasala, Nalgonda and Government Junior College for Boys, Nalgonda for an amount of Rs 63,522 claiming the same for the second time vide Bills Nos. 504, 238 and 326. Further, it is alleged that A-1, A-2 and A-3 have also drawn scholarships amount for fictitious post-matric students of S.L.L.S Junior College, Alair, Nagarjuna Junior College, Miryalaguda, Rajaram Memorial Junior College, Suryapet of Nalgonda District and cheated the Government and misappropriated an amount of Rs 4,57,050 vide Bills Nos. 461, 506, 218 and 503 in collusion with A-4.

4. On 29-3-1990, sanction was accorded for prosecution of A-2, A-3 and A-4 for an offence under Sections 120-B, 420, 468, 477-A IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. On 11-10-1999, the learned Additional Special Judge for SPE & ACB Cases, Hyderabad came to the conclusion that A-1 to A-4 are guilty of the charges and convicted A-1, A-3 and A-4 for their involvement in respect of Bills Nos. 504, 238, 326 (amounting to Rs 63,522) and also convicted them for misappropriation of Rs 4,57,050 vide Bills Nos. 461, 506, 218 and 503. A-1, A-3 and A-4 were sentenced to undergo rigorous imprisonment for three years each for each charge and to pay a fine of Rs 2000 each for each of the charges.

5. The trial court gave A-2 the benefit of doubt in respect of other bills, namely, Bills Nos. 505, 506, 503 and 218 as they were prepared when A-2 was on leave. Insofar as it relates to Bill No. 461, A-2 was convicted for an offence under Sections 120-B, 420, 468, 477-A read with Section 34 IPC and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for eighteen months under each charge and also to pay a fine of Rs 1000 under each charge. A-2 was sentenced a lesser period as he was found guilty of double drawal of the amount of one fictitious Bill No. 461. In respect of other fictitious bills as noted above, he was given the benefit of doubt as the bills were prepared when he was on medical leave. The Single Bench of the High Court dismissed the appeals by an order dated 31-10-2003 and affirmed the judgment, conviction and sentences recorded by the trial court.

6. Insofar as Criminal Appeals Nos. 1279 and 1281 of 2004 are concerned, they are directed against the judgment of the High Court dated 31-10-2003 in Criminal Appeals Nos. 1188 and 1125 of 1997 respectively affirming the judgment dated 30-9-1997 in CC No. 5 of 1991 passed by the Additional Special Judge for SPE & ACB Cases, Hyderabad.

7. The appellants in these appeals, Y. Venkaiah (A-4) and S.A Rasheed (A-3) were prosecuted for the alleged conspiracy for drawing scholarships on the basis of fictitious post-matric students of Government Junior College for Girls, Nalgonda in an amount of Rs 54,600 claimed vide Bills Nos. 363 and 405 in collusion with Beaula, A-5 (Matron). The Principal Secretary to the Government of Andhra Pradesh vide order dated 29-3-1990 gave sanction for prosecution of A-1, A-3 to A-5 and vide order dated 21-9-1990 for prosecution of A-2.

8. On 30-9-1997, the learned Additional Special Judge for SPE & ACB Cases, Hyderabad held that A-1 has not committed any offence and consequently acquitted him of all the charges. The learned Judge found Accused 2 to 5 guilty of the offences and sentenced them to undergo rigorous imprisonment for two years and a fine of Rs 500 on each count. On 31-10-2003, the High Court while affirming the judgment, conviction and sentence recorded by the trial court dismissed the appeals by observing that the accused had conspired to cheat the Government by claiming fictitious post-matric scholarship by falsifying the records in abuse of their official position as public servants and have acted in furtherance of their common intention to do the acts which amount to criminal misconduct.

9. Insofar as sanction is concerned, its validity was not questioned before us.

10. It appears that several witnesses were examined. From the judgment of the High Court dated 31-10-2003 in Criminal Appeals Nos. 1757, 1795 and 1826 of 1999, it appears that eighteen witnesses were examined by the prosecution. The other judgment of the High Court, also dated 31-10-2003, dealt with Criminal Appeals Nos. 1125 and 1188 of 1997. From the said judgment it appears that eight witnesses were examined by the prosecution.

11. The witnesses were all holding official position and on analysis of their evidence made by the High Court in the judgments under appeal, it transpires that the prosecution has been able to prove its case of conspiracy amongst the accused persons in drawing the money twice over in respect of students of Geeta Vignana Andhra Kalasala, Nalgonda (GVA Kalasala), Government Junior College for Boys, Nalgonda (GJ College), students of S.Y.L.N.S Junior College, Alair, Nagarjuna Junior College, Miryalguda, Rajaram Memorial Junior College, Suryapet and Government Junior College for Boys, Nalgonda. Those amounts were drawn against various bills, being Bills Nos. 405, 461, 505, 506, 503, 218, 238, 231, 326, 240, 219 and 504. It has been proved that in respect of those bills money has been drawn twice on the basis of fictitious names, thus, there has been cheating and misappropriation of government funds.

12. The witnesses who were examined in connection with Criminal Appeals Nos. 1757, 1795 and 1826 of 1999 are PW 1, the Accounts Officer in the office of the Director, Social Welfare Department during 1986-1987. PW 2 was the Accountant in the office of Deputy Director, Social Welfare Department during July 1984 and January 1987. PW 3 was the Sub-Treasury Officer in the office of DTO, Nalgonda during 1986-1988. PW 4 was the Senior Accounts Officer in the AG's office during the relevant point of time. PW 5 was the Manager, SBH, Nalgonda during 1986-1989.

13. The Principal, GVA Kalasala, Nalgonda who was in charge of the college during 1986-1987 was PW 6. PW 7 was the Junior Lecturer of GJ College, Nalgonda during 1980-1989. PW 8 was the Principal of Boys Junior College, Nalgonda who worked as such in 1987 and retired in 1988. PW 9 was the Principal of S.Y.L.N.S Junior College, Alair since 1985. PW 10 was the former Principal of Nagarjuna Junior College, Miryalguda who used to send proposal to Social Welfare Department for scholarship for Scheduled Caste students.

14. PW 11 was the student of BA in Geeta Vignana Andhra Kalasala, Nalgonda. PW 12 was the first year Intermediate student in GJ College for Boys, Nalgonda, this witness was declared hostile. PW 13 was the witness who pursued degree course in GVA Kalasala, Nalgonda during 1986-1988, he was also declared hostile. Another student of GVK College, Nalgonda was examined as PW 14. PW 15 was another student who testified to having received only once an amount of Rs 825 by way of scholarship.

15. The former Principal of Rajaram Memorial Junior College, Suryapet, was examined as PW 16. PW 17 was the Deputy Director, Social Welfare Department, Nalgonda. PW 18 was the investigating officer who testified to the issuance of FIR and submitted that after receiving sanction from the Government, submitted the charge-sheet in court.

16. All these witnesses excepting two students (PWs 12 and 13), who were declared hostile, supported the prosecution case. The learned Judge of the High Court made a detailed discussion of the evidence of the witnesses before coming to the conclusion that the prosecution case has been proved.

17. The judgment of the High Court in connection with the criminal cases referred to above, namely, Criminal Appeals Nos. 1125 and 1188 of 1997 also shows that eight witnesses were examined for the prosecution. Of the witnesses who were examined, PW 1 was a retired Joint Director of Accounts, Pension Payment Officer, Hyderabad, and at the relevant point of time was working as Accounts Officer in the office of the Director of Social Welfare, Hyderabad. PW 2 was Sub-Treasury Officer, Nakrekal, Nalgonda District and previously worked as Accountant with the office of the Deputy Director, Social Welfare, Nalgonda. PW 3 was retired Principal, Government Junior College for Girls, Nalgonda, who worked as the Principal of the said college at the relevant point of time between 1979 and 1988. PW 4 worked as Assistant Social Welfare Officer at Nalgonda at the relevant point of time. PW 5 was a STO, Nalgonda, PW 6 was the Senior Accounts Officer, AG's Office, Hyderabad. PW 7 was the Manager, SBH, Nalgonda and PW 8 was the Inspector of Police, Anti-Corruption Branch, Hyderabad Range.

18. In this case, on behalf of the accused, two witnesses were examined. DW 1, who joined as Deputy Director, Social Welfare Department, Nalgonda on 12-6-1997 and DW 2, who worked as Social Welfare Organiser in Social Welfare Office, Nalgonda from 1984 to 1988.

19. This Court finds that the High Court has very closely analysed the evidence of the witnesses before coming to a finding that the prosecution has been able to prove its case.

20. A specific defence was taken by A-2 in Criminal Appeal No. 1282 of 2004 that he was on medical leave from 26-8-1986 to 14-10-1986, so he could not have signed the bill. This defence has been categorically dealt with by the High Court in its judgment by finding that the date of signature of A-2 on the bill (Ext. P-1) was on 25-8-1986, when he was not on leave. Therefore, this defence was also considered and rightly rejected.

21. In a case where Section 34 of the Penal Code, 1860 is applied, as in this case, the liability of the accused must be considered through the prism of that section if the charge of common intent against the accused stands proved. Here the charge of common intent among the accused persons has been clearly made out from the evidence which has been discussed in detail by both the trial court and the High Court.

22. It is true that Section 34 does not create any substantive offence and is basically a rule of evidence. But the crucial words in this section are “in furtherance of the common intention of all” which originally were not there when the section was enacted in the Penal Code of 1860. Section 34, as enacted in the Penal Code of 1860, ran as follows:

“34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

The words “in furtherance of the common intention of all” came by way of amendment, by Act 27 of 1870, to widen the scope and sweep of the section.

23. The felicitous phrase “in furtherance of the common intention”, was first coined by the Chief Justice Barnes Peacock, sitting in the Full Bench of the Calcutta High Court, and while rendering the decision in R. v. Gorachand Gope 1866 Beng LR Supp 456 and on 3-3-1866 (Beng LR Supp at p. 456). The views of the Chief Justice in Gorachand Gope 1866 Beng LR Supp 456 possibly inspired the amendment in 1870. Since then, Section 34 has been judicially interpreted in a large number of decisions.

24. Lord Sumner speaking for the Privy Council in Barendra Kumar Ghosh v. King Emperor (1924-25) 52 IA 40, AIR 1925 PC 1 opined against a narrow construction of that section and said: (IA p. 51)

“… As soon, however, as the other sections of this part of the Code are looked at, it becomes plain that the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense.”

The learned Law Lord came to this conclusion by interpreting Section 34 in the context of Section 33 of the Penal Code. The aforesaid formulation by Lord Sumner has been followed by this Court on many occasions in different cases, some of which are noted hereinbelow.

25. In Barendra Kumar Ghosh (1924-25) 52 IA 40, AIR 1925 PC 1, the Privy Council did not agree with the narrow construction given to Section 34 of the Penal Code by Stephen, J. in Emperor v. Nirmal Kanta Roy ILR (1914) 41 Cal 1072, as according to the Privy Council such a construction may lead to undesirable results.

26. The Constitution Bench of this Court in Mohan Singh v. State of Punjab AIR 1963 SC 174 construed the scope of Section 34 and compared it with Section 149 and pointed out the essential distinction between the two. Gajendragadkar, J. (as His Lordship then was) speaking for the Constitution Bench held that like Section 149, Section 34 also deals with cases of constructive criminal liability in the sense where 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. According to the Constitution Bench, the essential constituent of the vicarious criminal liability contemplated by Section 34 is the existence of common intention. When such common intention animates the accused persons and leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them.

27. The Constitution Bench in Mohan Singh case AIR 1963 SC 174 held that in some ways Section 34 and Section 149 are similar and in some areas they may overlap but nevertheless the common intention, which is the sine qua non of Section 34 is different from the common object which brings together an unlawful assembly of persons within the meaning of Section 149 of the Code.

28. In Suresh v. State of U.P (2001) 3 SCC 673 a three-Judge Bench of this Court while considering the scope of Section 34, referred to and relied upon the ratio in Mohan Singh AIR 1963 SC 174 and further held that a reference to Sections 35, 37 and 38 of the Penal Code is of relevance for understanding the purport of Section 34. Thomas, J. in Suresh (2001) 3 SCC 673 opined that these four provisions belong to one cognate group.

29. In Suresh (2001) 3 SCC 673, Thomas, J. held that to attract Section 34 IPC two conditions must be present:

“(1) The criminal act (consisting of a series of acts) should have been done, not by one person, but [by] more than one person.

(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.”

30. In Suresh (2001) 3 SCC 673, Sethi, J. in a concurring but a different opinion, held that the dominant feature for attracting Section 34 of the Code is the element of participation resulting in the ultimate criminal act. The “act” referred to in the latter part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all of them. The section does not envisage separate acts by all the accused persons for becoming responsible for the ultimate criminal act. According to the learned Judge the word “act” used in Section 34 denotes a series of acts as a single act and the learned Judge further made it clear that the culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence.

31. In Lallan Rai v. State of Bihar (2003) 1 SCC 268 this Court again had to consider the ingredients of Section 34 and relied on the principles laid down in Mohan Singh AIR 1963 SC 174 and Suresh (2001) 3 SCC 673. While approving the principles laid down in para 44 in Suresh (2001) 3 SCC 673, the Court enumerated that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily leads to an inference on incriminating facts and which must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis.

32. The Court in Lallan Rai case (2003) 1 SCC 268 held that a look at Section 34 makes it clear that the essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus may develop at the spot or it may be prior to the commission of the crime but in any event such consensus must precede the commission of the crime.

33. If the test of proof which was laid down in Lallan Rai (2003) 1 SCC 268, following the principles in Suresh (2001) 3 SCC 673, is applied to the incriminating facts and circumstances noted and discussed in this case concurrently by the trial court and the High Court, to which reference has been made hereinbefore, the conclusion is inescapable that those facts are clearly incompatible with the innocence of the accused and are incapable of any explanation or any other reasonable hypothesis other than the guilt of the accused persons.

34. In Saravanan v. State of Pondicherry (2004) 13 SCC 238 Thakker, J. delivering the judgment held that in English Law there is a distinction between the two types of offenders:

“(i) principals in the first degree, that is, who actually commit the crime; and (ii) principals in the second degree, that is, who aid in commission of the crime”.

But this distinction in English Law has not been strictly followed in India.

35. The learned Judge came to this conclusion in Saravanan (2004) 13 SCC 238 relying on the principles enumerated in Barendra Kumar Ghosh (1924-25) 52 IA 40, AIR 1925 PC 1. Learned Judge concurring with the aforesaid principle in Barendra Kumar Ghosh (1924-25) 52 IA 40, AIR 1925 PC 1 held that the criminal act referred to in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of the common intention then each person must be held liable for the ultimate act as if he had done it himself.

36. In a later judgment in Rotash v. State of Rajasthan (2006) 12 SCC 64 one of us (Hon'ble Mr Justice S.B Sinha) delivering the judgment relied upon the principles laid down in Lallan Rai (2003) 1 SCC 268 and Suresh (2001) 3 SCC 673 and also Barendra Kumar Ghosh (1924-25) 52 IA 40, AIR 1925 PC 1 and held that the effect of common intention to commit the crime must be judged from the totality of the circumstances. Thus, Sinha, J. gave the provisions of Section 34 a very wide interpretation which is consistent with the interpretation given to this section right from the decision of the Privy Council in Barendra Kumar Ghosh (1924-25) 52 IA 40, AIR 1925 PC 1.

37. Following the above principles as we must, this Court has no hesitation in concluding that in the facts and circumstances of this case the common intention of the accused and their prior concert is amply proved.

38. In a case, as in the present one, even if one of the co-accused is acquitted, that does not by itself absolve other co-accused of their conjoint liability of the crime. The law is quite clear that in spite of acquittal of one co-accused it is open to the Court to convict the other accused on the basis of joint liability under Section 34, if there is evidence against them of committing the offence in “furtherance of the common intention”. Keeping the above principles in mind, in our view, this Court does not find any infirmity in the findings which have been reached by the High Court while affirming the conclusion of the trial court.

39. Apart from that in an appeal under Article 136 of the Constitution of India, this Court will not normally venture in the arena of reappreciation or review of the evidence unless it is demonstrably shown that the trial court or the High Court has committed an apparent error of law and procedure or the conclusions which have been reached are patently perverse.

40. The other area of interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India may be when, on proved facts, wrong interference of law has been reached by the High Court. This position is far too well settled to be disputed. However, reference in this regard may be made to the decisions of this Court in Duli Chand v. Delhi Admn. (1975) 4 SCC 649, Dalbir Kaur v. State of Punjab (1976) 4 SCC 158, Ramanbhai Naranbhai Patel v. State of Gujarat (2000) 1 SCC 358 and Chandra Bihari Gautam v. State of Bihar (2002) 9 SCC 208. All these cases have been considered by the Supreme Court recently in Radha Mohan Singh v. State of U.P (2006) 2 SCC 450 and the same conclusion has been reached.

41. Here there is no perversity in the finding of the High Court nor any wrong legal conclusion has been reached on proved facts.

42. For the reasons discussed above, this Court does not find any merit in the aforesaid appeals, which are accordingly dismissed. The appellants are on bail, their bail bonds are cancelled and they shall be taken into custody forthwith to serve out the remaining part of sentence, if any.