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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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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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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

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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

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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