VIJENDRA SINGH Vs STATE OF U.P.
Bench: DIPAK MISRA,ROHINTON FALI NARIMAN
Case number: Crl.A. No.-001448-001448 / 2010
Diary number: 20697 / 2009
Advocates: MUKESH K. GIRI Vs
ABHISHEK CHAUDHARY
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1448 OF 2010
Vijendra Singh …Appellant(s)
Versus
State of Uttar Pradesh …Respondent(s)
WITH
CRIMINAL APPEAL NO. 1452 OF 2010
Mahendra Singh …Appellant(s)
Versus
State of Uttar Pradesh …Respondent(s)
J U D G M E N T
Dipak Misra, J.
Present appeals, by special leave, call in question the
defensibility of the judgment of conviction and the order of
sentence dated 13.05.2009 passed by the High Court of
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Judicature at Allahabad in Criminal Appeal No. 1019 of
1981 whereby the Division Bench of the High Court has
confirmed the judgment and order passed by the learned IV
Additional Sessions Judge, Meerut in Sessions Trial No.
308 of 1979 whereunder the appellants along with two
others stood convicted under Section 302 read with
Section 34 of the Indian Penal Code (IPC) and visited with
the sentence of life imprisonment.
2. Filtering the unnecessary details, the facts which are
necessary to be adumbrated for the adjudication of the
instant appeals are that there was enmity between the
accused, Dharam Pal and his family on the one side and
Charan Singh, PW-1, on the other. Charan Singh, PW-1,
Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to
village Dastoi, to which the deceased, Badan Pal, the
nephew of Charan Singh as well as the accused persons
belong. As the prosecution story further unfurls, sometime
prior to the occurrence, Gaje Singh, brother of the accused,
Dharam Pal, was murdered and Charan Singh, PW-1, along
with others had faced trial for his murder and eventually
got acquitted. The occurrence leading to the murder of
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Badan Pal took place in the evening hours of 26.03.1979.
Badan Pal was a student and he used to stay overnight at
his tube-well which had a shed in the jungle of village
Sarva. On the date of occurrence, he was at the aforesaid
tube-well. Gajpal, PW-2, and Nepal Singh in the fateful
evening while carrying the meals for Badan Pal, on their
way, met Tedha, PW-3, who wanted to irrigate his fields
from the aforesaid tube-well. All of them reached near the
said tube-well about 7.30 p.m. when they heard the sound
of a gun fire from inside the “kotha” (shed) of the said
tube-well. They reached the place without loss of any time
and noticed that all the four accused, namely, Dhani Ram,
Dharam Pal, Mahendra and Vijendra, came out of that
“kotha”. Dhani Ram and Dharam Pal carried pistols,
Vijendra was armed with a ballam and Mahendra carried a
lathi. On seeing them, they took to their heels. After they
reached the place, they found Badan Pal lying dead with
bleeding wounds. The aforesaid witnesses identified the
accused persons in the light of the electric bulb fixed on the
roof of the tube-well as well as in the torch light. A report
of the occurrence was prepared by Devendra Singh with the
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assistance of Charan Singh, PW-1, and was filed at Police
Station Kharkhauda. After the criminal law was set in
motion, the investigation was conducted by S.I. Rajveer
Singh, PW-8, who after recording the statements of some of
the witnesses under Section 161 CrPC between 6 a.m. to 8
a.m. on the next day, prepared the panchanama and the
sketch map of the spot and collected blood stained and
unstained earth as well as two cartridges. These were
sealed on the spot and the dead body was sent for
postmortem. On 29.03.1979, the investigation was
transferred to S.I. V.P. Saxena and he came to learn on
11.04.1979 that all the accused persons except Dhani Ram
had surrendered before the Court and had been sent to
custody. Dhani Ram was arrested by S.I. V.P. Saxena at
Meerut on 19.04.1979. Eventually after concluding the
investigation, charge sheet was laid against the accused
persons before the concerned Magistrate.
3. After the matter was committed to the Court of
Session, charges were framed under Section 302 read with
Section 34 IPC against the accused persons on 10.01.1980.
The accused persons abjured their guilt and intended to
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face trial. The prosecution in order to bring home the
charges examined 11 witnesses and marked certain
documents as exhibits. Defence chose not to adduce any
evidence.
4. The trial court evaluating the ocular and the
documentary evidence brought on record found the
accused person guilty of the offence under Section 302 read
with Section 34 IPC and sentenced them to suffer rigorous
imprisonment for life.
5. The conviction and sentence was challenged before
the High Court by all the four accused persons. One of the
accused, namely, Dhani Ram expired during the pendency
of the appeal before the High Court and the appeal qua
Dhani Ram stood abated. As far as the other three accused
persons, namely, Dharam Pal, Mahendra and Vijendra,
were concerned, the High Court concurred with the view
expressed by the trial court and resultantly dismissed their
appeal. Be it stated here that Dharam Pal has also expired,
as has been stated by the learned counsel for the appellant.
Be that as it may, there is no appeal at his instance. The
present two appeals have been preferred by the two
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appellants who are aggrieved by the affirmation of the
judgment of conviction and order of sentence by the High
Court.
6. We have heard Mr. Mukesh K. Giri, learned counsel
for the appellants and Mr. R.K. Dash, learned senior
counsel for the State of U.P.
7. Assailing the conviction, learned counsel for the
appellants submits that in the present case, there is no
circumstance to infer common intention and as there has
been no meeting of minds, the conviction cannot be
supported in aid of Section 34 IPC. It is further submitted
by him that the conviction is based on the testimonies of
PWs-1 to 3, though Charan Singh, the author of the FIR,
who is not an eye witness; that apart, the evidence of PW-2,
Gajpal, does not inspire confidence being replete with
major contradictions, improvements and embellishments.
It is urged that PW-3, Tedda, is a chance witness inasmuch
as PW-1 has himself accepted in his testimony that Tedda’s
going to the tube-well was not regular. According to
Mr. Giri, the testimony of all the principal prosecution
witnesses, namely, PWs-1 to 3 are not worthy of credence
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and they do not inspire confidence and hence, the
conviction cannot be founded on their depositions which
are definitely not beyond reproach. In this regard he would
further urge that they are all related to each other and,
therefore, their testimony has to be scrutinized with
immense circumspection and when such a scrutiny is
made, they do not reach the pedestal of unimpeachability
and hence, on that score alone, their testimonies have to be
discarded. Learned counsel would contend that Nepal
Singh, who is stated to have accompanied PW-2 and PW-3
has not been examined and Ram Lal and Kasa who have
been stated to have arrived at the tube-well, as per the
testimony of PW-2, have also not been examined and they
are independent witnesses and their non-examination
creates an incurable dent in the version of the prosecution.
As per the medical evidence there is only one gunshot
injury attributed to pistol supposedly in the hands of Dhani
Ram and Dharam Pal (both since dead) and none of the
injuries on the person of the deceased could be attributed
to lathi and ballam which were carried by the present
appellants and, therefore, they cannot be made liable for
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the offence. Referring to the testimony of PW-6, Dr. M.C.
Varshney, it is put forth that the said witness has stated
that there was no blackening and scorching at the gunshot
wound and that belies the prosecution version that the
deceased died of gunshot injury. Lastly, it is canvassed
that Vijendra Singh was a juvenile on the date of incident
and he has remained in custody more than the period that
is required of a juvenile to remain at juvenile home. To
buttress his submissions, learned counsel for the
appellants has drawn inspiration from Pratap Singh v.
State of Jharkhand & Ors.1, Hari Ram v. State of
Rajasthan and Anr.2, Suresh Sakharam Nangare v.
State of Maharashtra3, Jai Bhagwan and Ors. v. State
of Haryana4 and Bijendra Bhagat v. State of
Uttarakahand5.
8. Supporting the judgment of conviction of the trial
court that has received the stamp of approval by the High
Court, Mr. Dash, learned senior counsel submitted that the
accused Mahendra Singh has rightly been convicted and
1 Criminal Appeal No. 210 of 2005 decided on 2.2.2005 2 (2009) 13 SCC 211 3 (2012) 9 SCC 249 4 (1999) 3 SCC 102 5 (2015) 13 SCC 99
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sentenced with the aid of Section 34 IPC and in that regard
he has placed reliance upon Mohan Singh & Anr. v.
State of Punjab6 and Harshadsingh Pahelvansingh
Thakore v. State of Gujarat7. Mr. Dash further
submitted that non-examination of certain witnesses in the
backdrop of the present case does not affect the
prosecution version inasmuch as the witnesses cited by the
prosecution clearly established the charge against the
accused persons. As regards the appeal preferred by
appellant, Vijendra is concerned, learned senior counsel
fairly conceded to the claim of juvenility and submitted that
this Court may levy fine upon the appellant to be paid as
compensation to the family of the deceased in terms of law
laid down in Jitendra Singh v. State of Uttar Pradesh.8
9. At the outset, it is necessary to mention that the
principal witnesses are PW-1 to PW-3 and the trial court as
well as the appellate court has given credence to their
evidence. PW-1, Charan Singh, the author of the FIR, has
testified that he got the FIR of the incident prepared on the
spot itself and then lodged it at Police Station Kharkhauda
6 AIR 1963 SC 174 7 (1976) 4 SCC 640 8 (2013) 11 SCC 193
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in the same night by handing over it to the Head Constable
Devi Ram, PW-4, who thereafter made entry in the general
diary. He has deposed that the accused Dharam Pal,
Mahendra and Vijendra are real brothers and they
belonged to his own village; that about nine years ago prior
to the date of occurrence, Gaje Singh, real brother of the
accused, Dharam Pal, was murdered for which he and
Hukam Singh, real brother of the deceased Badan Pal, and
others were put on trial and eventually they were acquitted.
He has stated in his evidence that since then the accused
persons brewed enmity against them. It has also come out
in his evidence that the deceased was a student of High
School and used to stay in the kotha where the tube-well
situate for availing the facility of electric light for his
studies. PW-2, Gajpal, cousin of the deceased Badan Pal,
has clearly stated that he along with his cousin Nepal
Singh left the village at about 7 p.m. carrying the meals for
Badan Pal, who was staying inside the kotha of the
aforesaid tube-well. He has further deposed that Tedha,
PW-3, accompanied them and after they reached the place,
they heard a sound of gun firing from inside the kotha of
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the tube-well. He has deposed that he has seen all the
four accused persons coming out of the northern side of the
said kotha of the tube-well and he had also seen the
accused Dhani Ram and Dharam Pal were armed with
pistols and the accused Mahendra and Vijendra carried
lathi and ballam respectively. He had identified the accused
persons because of the electric bulb burning in the kotha
and further he had a torch light with him. Though there
has been roving cross-examination with regard to him
seeing the accused persons coming out of the kotha,
nothing has been really elicited to make his testimony
impeachable. PW-3, Tedha, has also identified the accused
person and supported the testimony of PW-2. That apart,
the said witness has lent support to the case of the
prosecution and corroborated in each necessary particulars
that has been stated by the PW-2. It was contended before
the learned trial judge that PW-2 and PW-3 are extremely
interested witnesses and further PW-3 was a chance
witness. The learned trial judge did not find any substance
in the said contention inasmuch as there had been
identification of the accused persons, vivid description of
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the weapons they carried and the recovery. Be it noted
that though the pistol was not recovered, two cartridges
were recovered from the spot of the occurrence. The
learned trial judge arrived at the opinion that the
prosecution had been able to prove the presence of the
witnesses PWs 2 and 3 at the place of occurrence and their
version with regard to the accused persons committing the
murder of the deceased. In appeal it was urged before the
High Court that there was no motive on the part of the
accused to commit the murder of the deceased; that the
trial court has not been circumspect in the scrutiny of the
evidence of PWs 2 and 3 who were highly interested
witnesses; that there was no justification on the part of
PW-2 to carry a torch with him and, in any case, their
testimony that they had seen the accused persons was
absolutely unacceptable; that the deceased had received
only one fire arm injury and the appellants were armed
with lathi and ballam and had not assaulted the deceased
and, therefore, decision by the learned trial judge to convict
them in aid of Section 34 IPC was totally sustainable.
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10. On a keen scrutiny of the decision of the High Court,
it is evident that it repelled the submissions of the
appellants on the ground that lack of motive was too feeble
a plea in the circumstance of the case to throw the
prosecution case overboard; that it has come in evidence
that the accused persons had harboured vengeance against
them after their acquittal in the case where they were tried
for the offence under Section 302 IPC; that there was no
reason why the witnesses who were close relations of the
deceased would falsely embroil the accused persons leaving
the real culprits; that there is no reason to discard the
testimonies of PWs 2 and 3 singularly on the ground that
they are related witnesses, for they have stood embedded in
their version and there is no inconsistency to discredit
them; that there is nothing unusual on the part of PW-2 to
carry a torch with him; that the identification of the
accused persons by PWs 2 and 3 with the help of electric
light and torch has been appositely appreciated by the
learned trial judge and there was no reason to dislodge the
said finding; that the plea that PW-3 was a chance witness
and his presence at the place of occurrence was doubtful
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did not really commend acceptation, for his testimony was
worthy of credence; that nothing tangible could be elicited
from the evidence of the witnesses in cross-examination by
which the version could be doubted and hence, there is no
infirmity or perversity in the finding recorded by the trial
court; and that the trial court has not erred in convicting
the accused persons in aid of Section 34 IPC. In this
regard, the High Court further held that the said provision
is only a rule of evidence and does not create a substantive
offence. It further opined that the evidence of ocular
witnesses had been found to be satisfactory, reliable,
consistent and credible by the trial court and nothing
tangible could be elicited from their evidence in the
cross-examination to create any speck of doubt in their
version or to treat their testimony as infirm or perverse.
11. Learned counsel for the appellants referring to the
authority in Suresh Sakharam Nangare (supra) would
submit that the High Court has admitted in the impugned
judgment that the direct proof of common intention is
seldom available and in the present case there is no
circumstance that such intention can be inferred without
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there being evidence of preconcert. Learned counsel for the
appellants further criticized the judgment of the High Court
submitting that as per deposition of Dr. Varshney, PW-6,
who conducted post mortem of the deceased body, there
was no blackening, no scorching present at the gunshot
wound, the genesis of the entire prosecution case that the
murder took place in kotha of tube-well i.e the gun was
shot from close range deserves to be discarded.
12. Learned counsel for the appellants would contend
that the conviction of the appellant Mahendra is not
sustainable since none of the injuries on the person of the
deceased is attributable to lathi which was supposedly in
the hand of Mahendra. Reliance is placed by the learned
counsel on the authority in Bijendra Bhagat (supra)
wherein this Court acquitted the accused giving him the
benefit of doubt stating that none of the injuries on the
person of the deceased could be attributed to lathi which
was supposedly in the hands of the appellant.
13. As is evincible, the accused-appellants have been
convicted with the aid of Section 34 IPC. It has come in
evidence of PW-2 that the accused Mahendra was armed
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with lathi and accused Vijendra Singh was armed with a
ballam and they were in the company of other accused.
When the evidence in its entirety is studiedly scrutinized, it
clearly shows that the accused persons were present in the
shed, they were seen going away and the deceased was
found lying in a pool of blood. The witnesses specifically
stated about the weapons being carried by the accused
persons. The submission is that the prosecution story
rests on the gun shot injury but there is no evidence with
regard to injury caused by the lathi or ballam. It is
relevant to state here that cartridges from the spot have
been recovered and PW-6 Doctor who conducted the post
mortem had found gunshot wound of entry eight in number
in an area of 6 cm x 5 cm on the right side of neck just
above the clavicle and lower part of neck. The dimensions
of the wound ranged from 1 cm x 0.15 cm to 0.5
cm x 0.5 cm x bone deep. There was no blackening or
scorching around the wound. True it is that the doctor has
stated that there is no blackening or scorching around the
wound, but that will not belie that the injury was not
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inflicted by the firing from the gun. He has opined that the
death of the deceased was caused by gunshot injury.
14. The heart of the matter is whether Section 34 IPC
would be attracted to such a case or not. In this regard, we
may refer to certain authorities as to how this Court has
viewed the concept of “common intention” and thereafter
reflect upon how it is applicable to the case at hand.
15. Mr. Giri has drawn our attention to paragraph 10 of
the authority in Jai Bhagwan (supra). It reads as follows:-
“10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”
16. He has also relied on the decision in Suresh
Sakharam Nangare (supra). In the said case, the Court
after referring to Section 34 IPC opined that a reading of
the above provision makes it clear that to apply Section 34,
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apart from the fact that there should be two or more
accused, two factors must be established: (i) common
intention, and (ii) participation of the accused in the
commission of an offence. It further makes clear that if
common intention is proved but no overt act is attributed
to the individual accused, Section 34 will be attracted as
essentially it involves vicarious liability but if participation
of the accused in the crime is proved and common
intention is absent, Section 34 cannot be invoked.
17. In the said case, the Court after analyzing the
evidence opined that there is no material from the side of
the prosecution to show that the appellant therein had any
common intention to eliminate the deceased because the
only thing against the appellant therein was that he used to
associate himself with the accused for smoking ganja. On
this factual score, the Court came to hold that the
appellant could not be convicted in aid of Section 34 IPC.
18. In this regard, we may usefully refer to a passage from
the authority in Pandurang and Ors. v. State of
Hyderabad9. The three-Judge Bench in the said case
9 AIR 1955 SC 216
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adverted to the applicability and scope of Section 34 IPC
and in that context ruled that:-
“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor10. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor11 and Mahbub Shah v. King Emperor (supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice”.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of
10 AIR 1945 PC 118 11 AIR 1925 PC 1
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the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.”
19. And, again:-
“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, “the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”. (Sarkar’s Evidence, 8th Edn., p. 30).”
20. In this context, we may refer with profit to the
statement of law as expounded by the Constitution Bench
in Mohan Singh (supra). In the said case, the Constitution
Bench has held that Section 34 that deals with cases of
constructive criminal liability provides that if a criminal act
is done by several persons in furtherance of the common
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intention of all, each of such person is liable for the act in
the same manner as if it were done by him alone. It has
been further observed that the essential constituent of the
vicarious criminal liability prescribed by Section 34 is the
existence of common intention. The common intention in
question animates the accused persons and if the said
common intention leads to commission of the criminal
offence charged, each of the person sharing the common
intention is constructively liable for the criminal act done
by one of them. The larger Bench dealing with the concept
of constructive criminal liability under Sections 149 and 34
IPC, expressed that just as the combination of persons
sharing the same common object is one of the features of
an unlawful assembly, so the existence of a combination of
persons sharing the same common intention is one of the
features of Section 34. In some ways the two sections are
similar and in some cases they may overlap. The common
intention which is the basis of Section 34 is different from
the common object which is the basis of the composition of
an unlawful assembly. Common intention denotes
action-in-concert and necessarily postulates the existence
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of a prearranged plan and that must mean a prior meeting
of minds. It would be noticed that cases to which Section
34 can be applied disclose an element of participation in
action on the part of all the accused persons. The acts may
be different; may vary in their character, but they are all
actuated by the same common intention. Thereafter, the
Court held:-
“It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.”
21. In Harshadsingh Pahelvansingh Thakore (supra), a
three-Judge Bench, while dealing with constructive liability
under Section 34 IPC has ruled thus:-
“Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.12; Maina Singh v. State of Rajasthan.13) Lord
12 (1975) 4 SCC 247 13 (1976) 2 SCC 827
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Sumner’s classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse “They also serve who only stand and wait” a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code.”
22. In Lallan Rai and Ors. v. State of Bihar14 the
Court relying upon the principle laid down in Barendra
Kumar Ghosh (supra) has ruled that the essence of
Section 34 is simultaneous consensus of the mind of
persons participating in the criminal action to bring about
a particular result.
23. In Goudappa and Ors. v. State of Karnataka15
the Court has reiterated the principle by opining that
Section 34 IPC lays down a principle of joint liability in
doing a criminal act and the essence of that liability is to be
found in the existence of common intention. The Court
posed the question how to gather the common intention
and answering the same held that the common intention is
14 (2003) 1 SCC 268 15 (2013) 3 SCC 675
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gathered from the manner in which the crime has been
committed, the conduct of the accused soon before and
after the occurrence, the determination and concern with
which the crime was committed, the weapon carried by the
accused and from the nature of the injury caused by one or
some of them and for arriving at a conclusion whether the
accused had the common intention to commit an offence of
which they could be convicted, the totality of circumstances
must be taken into consideration.
24. The aforesaid authorities make it absolutely clear that
each case has to rest on its own facts. Whether the crime is
committed in furtherance of common intention or not, will
depend upon the material brought on record and the
appreciation thereof in proper perspective. Facts of two
cases cannot be regarded as similar. Common intention
can be gathered from the circumstances that are brought on
record by the prosecution. Common intention can be
conceived immediately or at the time of offence. Thus, the
applicability of Section 34 IPC is a question of fact and is to
be ascertained from the evidence brought on record. The
common intention to bring about a particular result may
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well develop on the spot as between a number of persons,
with reference to the fact of the case and circumstances of
the situation. Whether in a proved situation all the
individuals concerned therein have developed only
simultaneous and independent intentions or whether a
simultaneous consensus of their minds to bring about a
particular result can be said to have been developed and
thereby intended by all of them, is a question that has to be
determined on the facts. (See : Kirpal and Bhopal v.
State of U.P.16). In Bharwad Mepa Dana and Anr. v.
The State of Bombay17, it has been held that Section 34
IPC is intended to meet a case in which it may be difficult to
distinguish the acts of individual members of a party who
act in furtherance of the common intention of all or to prove
exactly what part was taken by each of them. The principle
which the Section embodies is participation in some action
with the common intention of committing a crime; once
such participation is established, Section 34 is at once
attracted.
16 AIR 1954 SC 706 17 AIR 1960 SC 289
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25. In the case at hand, it is contended that there is no
injury caused by lathi or ballam. Absence of any injury
caused by a lathi cannot be the governing factor to rule out
Section 34 IPC. It is manifest from the evidence that the
accused-appellants had accompanied the other accused
persons who were armed with gun and they themselves
carried lathi and ballam respectively. The carrying of
weapons, arrival at a particular place and at the same time,
entering into the shed and murder of the deceased
definitely attract the constructive liability as engrafted
under Section 34 IPC.
26. It is next contended by Mr. Giri, learned counsel for
the appellants that all the eyewitnesses are related to the
deceased Badan Pal and they being interested witnesses,
their version requires scrutiny with care, caution and
circumspection and when their evidence is scanned with
the said parameters, it does not withstand the said test for
which the case set forth by the prosecution gets corroded
and the principle of beyond reasonable doubt gets
shattered. The aforesaid submission, as we perceive, has
no legs to stand upon, for PWs-1 to 3 have deposed in
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detail about the previous enmity between the parties, their
presence at the spot, the weapons the accused persons
carried, their proximity to the shed and establishment of
the identity of all the four accused. They have also testified
as regards the deceased lying in a pool of blood. There is
no reason why they would implicate the appellants for the
murder of their relation leaving behind the real culprit.
That apart, nothing has been elicited in the
cross-examination for which their testimony can be
discredited. In this regard reference to a passage from
Hari Obula Reddy and Ors. v. State of Andhra
Pradesh18 would be fruitful. In the said case, a
three-Judge Bench has ruled that it cannot be laid down as
an invariable rule that interested evidence can never form
the basis of conviction unless corroborated to a material
extent in material particulars by independent evidence. All
that is necessary is that the evidence of the interested
witnesses should be subjected to careful scrutiny and
accepted with caution. If on such scrutiny, the interested
testimony is found to be intrinsically reliable or inherently
probable, it may, by itself, be sufficient, in the 18 (1981) 3 SCC 675
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28
circumstances of the particular case, to base a conviction
thereon. It is worthy to note that there is a distinction
between a witness who is related and an interested witness.
A relative is a natural witness. The Court in Kartik
Malhar v. State of Bihar19 has opined that a close relative
who is a natural witness cannot be regarded as an
interested witness, for the term “interested” postulates that
the witness must have some interest in having the accused,
somehow or the other, convicted for some animus or for
some other reason.
27. Mr. Giri, learned senior counsel for the appellant has
also impressed upon us to discard the testimony of PW-3,
Tedda, on the ground that he is a chance witness.
According to him, his presence at the spot is doubtful and
his evidence is not beyond suspicion. Commenting on the
argument of chance witness, a two-Judge Bench in Rana
Pratap and Ors. v. State of Haryana20 was compelled to
observe:-
“We do not understand the expression “chance witnesses”. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling
19 (1996) 1 SCC 614 20 (1983) 3 SCC 327
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29
house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere “chance witnesses”. The expression “chance witnesses” is borrowed from countries where every man’s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are “chance witnesses”, even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.”
28. Tested on the anvil of the aforesaid observations,
there is no material on record to come to the conclusion
that PW-3 could not have accompanied PW-2 while he was
going to the shed near the tube-well. What has been
elicited in the cross-examination is that he was not going
daily to the tube-well. We cannot be oblivious of the rural
milieu. No adverse inference can be drawn that he was not
going daily and his testimony that he had accompanied
PW-2 on the fateful day should be brushed aside. We are
convinced that his evidence is neither doubtful nor create
any suspicion in the mind.
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29. Thus, the real test is whether the testimony of PWs1
to 3 are intrinsically reliable or not. We have already
scrutinized the same and we have no hesitation in holding
that they satisfy the test of careful scrutiny and cautious
approach. They can be relied upon.
30. The next plank of argument of Mr. Giri is that since
Nepal Singh who had been stated to have accompanied
PW-2 and PW-3 has not been examined and similarly, Ram
Kala and Bansa who had been stated to have arrived at the
tube-well as per the testimony of PW-2, have not been
examined, the prosecution’s version has to be discarded,
for it has deliberately not cited the independent material
witnesses. It is noticeable from the decision of the trial
court and the High Court, reliance has been placed on the
testimony of PWs 1 to 3 and their version has been
accepted. They have treated PW-2 and PW-3 as natural
witnesses who have testified that the accused persons were
leaving the place after commission of the offence and they
had seen them quite closely. The contention that they were
interested witnesses and their implication is due to inimical
disposition towards accused persons has not been accepted
Page 31
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and we have concurred with the said finding. It has come
out in evidence that witnesses and the accused persons
belong to the same village. The submission of Mr. Giri is
that non-examination Nepal Singh, Ramlal and Kalsa is
quite critical for the case of the prosecution and as put
forth by him, their non-examination crucially affects the
prosecution version and creates a sense of doubt.
According to Mr. Giri, Nepal Singh is a material witness. In
this regard we may refer to the authority in State of H.P.
v. Gian Chand21 wherein it has been held that
non-examination of a material witness is again not a
mathematical formula for discarding the weight of the
testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court levelled
against the prosecution should be examined in the
background of the facts and circumstances of each case so
as to find whether the witnesses are available for being
examined in the court and were yet withheld by the
prosecution. The Court after so holding further ruled that it
is the duty of the court to first assess the trustworthiness 21 (2001) 6 SCC 71
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of the evidence available on record and if the court finds
the evidence adduced worthy of being relied on and
deserves acceptance, then non-examination of any other
witnesses available who could also have been examined but
were not examined, does not affect the case of the
prosecution.
31. In Takhaji Hiraji v. Thakore Kubersing
Chamansing and Ors.22, it has been held that if a material
witness, who would unfold the genesis of the incident or an
essential part of the prosecution case, not convincingly
brought to fore otherwise, or where there is a gap or
infirmity in the prosecution case which could have been
supplied or made good by examining a witness who though
available is not examined, the prosecution case can be
termed as suffering from a deficiency and withholding of
such a material witness would oblige the court to draw an
adverse inference against the prosecution by holding that if
the witness would have been examined it would not have
supported the prosecution case. On the other hand, if
already overwhelming evidence is available and
examination of other witnesses would only be a repetition 22 (2001) 6 SCC 145
Page 33
33
or duplication of the evidence already adduced,
non-examination of such other witnesses may not be
material. If the witnesses already examined are reliable and
the testimony coming from their mouth is unimpeachable,
the court can safely act upon it, uninfluenced by the
factum of non-examination of other witnesses. In Dahari
and Ors. v. State of U.P23, while discussing about the
non-examination of material witness, the Court expressed
the view that when he was not the only competent witness
who would have been fully capable of explaining the factual
situation correctly and the prosecution case stood fully
corroborated by the medical evidence and the testimony of
other reliable witnesses, no adverse inference could be
drawn against the prosecution. Similar view has been
expressed in Manjit Singh and Anr. v. State of Punjab
and Anr.24 and Joginder Singh v. State of Haryana25.
32. Tested on the aforesaid parameters, we are unable to
accept the submission of Mr. Giri that non-examination of
Nepal Singh and other two persons who had been referred
to by PW-2 affects the prosecution version or creates any
23 (2012) 10 SCC 256 24 (2013) 12 SCC 746 25 (2014) 11 SCC 335
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doubt in the mind of the Court. We arrive at such a
conclusion since the witnesses examined by the
prosecution are trustworthy and the court can safely act on
their testimony. There is no justification in the instant
case to draw any adverse inference against the prosecution.
33. Mr. Giri, learned counsel for the appellants laying
stress on the absence of injury caused by lathi on the
person of the deceased has urged that the appellant-
Mahendra Singh cannot be convicted in aid of Section 34
IPC. In that regard, he has commended us to the authority
in Bijendra Bhagat (supra). Learned counsel has drawn
inspiration from paragraph four of the said decision. The
relevant part of the said paragraph is as follows:-
“… According to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. …”
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34. Relying on the same, it is contended by Mr. Giri that
when there is no lathi blow on the person of the deceased
as noticeable from the post mortem report, the appellant-
Mahendra Singh deserves to be acquitted. The passage
that has been commended to us has to be correctly
appreciated. In that case, the Court has referred to injury
caused on the person of the deceased and noticed how the
injury was caused but the reason for acquittal is that the
presence of the appellant therein and his involvement in
the incident appeared to the Court to be doubtful. If a
person is not present at the spot, the question of common
intention does not arise. As has been held in Pandurang
(supra), if the common intention is established, an accused
can be convicted. We have already discussed the role
attributed to the appellant- Mahendra Singh by the
prosecution. He had gone with other accused persons, who
were carrying pistols and ballam. He himself was carrying a
lathi. Similarly, accused-appellant Vijendra Singh was
carrying a ballam and accompanying others. Their
intention was to go to the shed where the deceased was
studying because of availability of the electric light, has
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been established. Common intention can be gathered from
the facts and circumstances and in the instant case, the
same is clearly discernable and hence, the decision in
Bijendra Bhagat (supra) is of no assistance to the
appellant.
35. In view of the aforesaid analysis, we do not find any
merit in Criminal Appeal No. 1452 of 2010 preferred by
Mahendra Singh and the same is, accordingly, dismissed.
36. As far as appellant-Vijendra Singh is concerned, a
report was called for and he has been found to be a juvenile
being 16 years 3 months 10 days old on the date of offence.
The said report has gone unchallenged and Mr. Dash,
learned senior counsel appearing for the State, has fairly
stated that he was a juvenile on the date of offence. Mr. Giri
has commended us to the authority in Hari Ram (supra).
We find that the Court relying on Section 7-A of the
Juvenile Justice (Care and Protection of Children) Act,
2000 and the amendments introduced in Section 20 of the
2000 Act whereby the proviso and Explanation were added
to Section 20 and the Juvenile Justice (Care and Protection
of Children) Rules, 2007, remitted the matter to the
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Juvenile Justice Board with the observation that if he had
been detained for more than the maximum period for which
a juvenile may be confined to a special home, the Board
shall release him from custody forthwith. In the case at
hand, as the appellant-Vijendra Singh remained in custody
for more than the maximum period for which he could have
been confined to a special home, while sustaining the
conviction, we release him from custody forthwith.
37. Consequently, Criminal Appeal No. 1452 of 2010 is
dismissed and Criminal Appeal No. 1448 of 2010 is
disposed of treating the appellant-Vijendra Singh as a
juvenile and directions issued in that regard as stated
hereinbefore.
…………………….J. [Dipak Misra]
…….…………………….J. [Rohinton Fali Nariman]
New Delhi January 04, 2017