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CASE NO.: Appeal (crl.)  370 of 2005

PETITIONER: Harbans Kaur and Anr.                                    

RESPONDENT: State of Haryana                                                 

DATE OF JUDGMENT: 01/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3526 of 2004)

ARIJIT PASAYAT, J

       Leave granted.

       Appellants call in question legality of the judgment rendered by  a Division Bench of the Punjab and Haryana High Court upholding  conviction of the appellants (hereinafter referred to as the ’accused’)  under Sections 323, 325 and 326 read with Section 34 of the Indian  Penal Code, 1860 (in short the ’IPC’) and sentence as imposed by the  trial Court which had sentenced each to undergo rigorous imprisonment  for three months, two years and seven years respectively with separate  fines for each of the alleged offences with default stipulations.  

       Background facts leading to the trial of the accused appellants  are as follows:

       The case was registered on the basis of information lodged by  Piara Singh (PW-6), which was recorded on 10.11.1989 at about 2.00 a.m.  According to the informant, he and his son Sham Singh’s wife Sito (PW- 7) were sitting in the courtyard of the house of Sham Singh  (hereinafter referred to as the ’deceased’). It was about 11.00 a.m. on  9.11.1989 when deceased was coming from the village after purchasing  vegetables. When he reached near the house of Janta Singh, son of  Dharam Singh, Harbans Kaur (A-1) armed with a Gandasi and Mitta Singh  (A-2) armed with a lathi were present there. Mitta made an obscene  gesture. At this Mitta Singh and the deceased exchanged hot words and  abused each other. Harbans Kaur gave a Gandasi blow on the right hand  of the deceased, which caused a grievous injury. Mitta Singh gave a  lathi blow on the left foot of the deceased and also gave a thrust blow  of lathi on the left side of his head. Deceased fell down on the  ground. The occurrence was witnessed by Piara Singh (PW-6) and Sitto  (PW-7). Both of them took Sham Singh injured to their house. When Piara  Singh and Sito raised alarm, both the accused persons ran away from the  spot. Since the condition of Sham Singh became serious during the night  time, he was taken to the Primary Health Centre, Ratia. On 10.11.1989  at night at about 0.15 a.m. Dr. O.P. Kakkar examined Sham Singh. He  found injury No.1 which was an incised wound in the middle phalanx of  the index finger of right hand. The second injury was an abrasion on  the lateral side of upper 1/3rd part of left leg and the patient  complained of pain on different parts of the body. Dr. O.P. Kakkar sent  information to the Police Station, Ratia. ASI Ram Rattan reached the  Primary Health Centre and recorded the statement of Piara Singh which  is the FIR. On the basis of this statement, FIR was recorded by ASI

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Bharat Singh. Sham Singh expired at about 1.50 a.m. on 10.11.1989.  Hence, information to this effect was sent.                   The accused persons were charged for alleged commission of  offences punishable under Section 304 Part-I read with Section 34 IPC.  The accused persons pleaded innocence and claimed trial. Eight persons  were examined to further the prosecution case. Piara Singh (PW-6) was  the complainant and claimed to be an eye-witness. Smt. Sito (PW-7) wife  of the deceased also claimed to be an eye-witness. Placing reliance on  their evidence, the learned Additional Session Judge, Hissar found the  accused persons guilty and sentenced them to undergo sentences as noted  above. In appeal, the High Court confirmed the conviction and the  sentences.    

       In support of the appeal, learned counsel for the accused  appellants submitted that the prosecution version was based on  testimonies of relatives and, therefore, does not inspire confidence.  Section 34 IPC has no application to the facts of the case. Further  there was delay in lodging the FIR. Additionally, it was submitted that  the sentences imposed were high.  

       In response, learned counsel for the State submitted that after  analysing the factual position the Courts below have found the accused  persons guilty and no interference is called for. The sentences imposed  are also not in any manner on the higher side.  

There is no proposition in law that relatives are to be treated  as untruthful witnesses. On the contrary, reason has to be shown when a  plea of partiality is raised to show that the witnesses had reason to  shield actual culprit and falsely implicate the accused. No evidence  has been led in this regard. So far as the delay in lodging the FIR is  concerned, the witnesses have clearly stated that after seeing the  deceased in an injured condition immediate effort was to get him  hospitalized and get him treated. There cannot be any generalization  that whenever there is a delay in lodging the FIR, the prosecution case  becomes suspect. Whether delay is so long as to throw a cloud of  suspicion on the seeds of the prosecution case, would depend upon the  facts of each case. Even a long delay can be condoned if the witnesses  have no motive of implicating the accused and have given a plausible  reason as to why the report was lodged belatedly. In the instant case,  this has been done. It is to be noted that though there was cross- examination at length no infirmity was noticed in their evidence.   Therefore, the trial Court and the High Court were right in relying on  the evidence of the prosecution witnesses.  

Section 34 has been enacted on the principle of joint liability  in the doing of a criminal act. The Section is only a rule of evidence  and does not create a substantive offence. The distinctive feature of  the Section is the element of participation in action. The liability of  one person for an offence committed by another in the course of  criminal act perpetrated by several persons arises under Section 34 if  such criminal act is done in furtherance of a common intention of the  persons who join in committing the crime. Direct proof of common  intention is seldom available and, therefore, such intention can only  be inferred from the circumstances appearing from the proved facts of  the case and the proved circumstances. In order to bring home the  charge of common intention, the prosecution has to establish by  evidence, whether direct or circumstantial, that there was plan or  meeting of mind of all the accused persons to commit the offence for  which they are charged with the aid of Section 34, be it pre-arranged  or on the spur of moment; but it must necessarily be before the  commission of the crime.  The true contents of the Section are that if  two or more persons intentionally do an act jointly, the position in  law is just the same as if each of them has done it individually by  himself.  As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC

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109), the existence of a common intention amongst the participants in a  crime is the essential element for application of this Section. It is  not necessary that the acts of the several persons charged with  commission of an offence jointly must be the same or identically  similar. The acts may be different in character, but must have been  actuated by one and the same common intention in order to attract the  provision.

       As it originally stood the Section 34 was in the following terms:

"When a criminal act is done by several  persons, each of such persons is liable for that act  in the same manner as if the act was done by him  alone."

In 1870, it was amended by the insertion of the words "in  furtherance of the common intention of all" after the word "persons"  and before the word "each", so as to make the object of Section 34  clear.  This position was noted in Mahbub Shah v. Emperor (AIR 1945  Privy Council 118).   

       The Section does not say "the common intention of all", nor does  it say "and intention common to all".  Under the provisions of Section  34 the essence of the liability is to be found in the existence of a  common intention animating the accused leading to the doing of a  criminal act in furtherance of such intention. As a result of the  application of principles enunciated in Section 34, when an accused is  convicted under Section 302 read with Section 34, in law it means that  the accused is liable for the act which caused death of the deceased in  the same manner as if it was done by him alone. The provision is  intended to meet a case in which it may be difficult to distinguish  between 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.  As was observed in Ch. Pulla Reddy and Ors. v. State of  Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no  injury has been caused by the particular accused himself.  For applying  Section 34 it is not necessary to show some overt act on the part of  the accused.

       The above position was highlighted recently Anil Sharma and  Others v. State of Jharkhand   [2004 (5) SCC 679].    

       If the factual scenario as noted above is considered in the  background of legal principles set out above, the inevitable conclusion  is that Section 34 has been rightly applied.

       The residual question is whether any interference is called for  on the quantum of sentence. Looking into the background facts as noted  above, we are of the view that custodial sentence of 4 years in place  of 7 years as recorded by the Courts below for the offence relatable to  Section 326 read with Section 34 IPC would meet the ends of justice.  The other sentences imposed remain unaltered. With the aforesaid  modification, the appeal is disposed of.