REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 468 OF 2007

Hardeep Singh & Ors. ...Appellants

Versus

          State of Haryana ...Respondent

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

bench of  the  Punjab & Haryana High Court  dismissing  the

appeal filed by the appellants.  By a common judgment two

appeals  and one  criminal  Revision  were  disposed  of.   Four

persons  faced  trial  for  alleged  commission  of  offence

punishable  under  Section  302  read  with  Section  34  of  the

Indian Penal Code, 1860 (in short the ‘IPC’). One of them i.e.

Gurcharan  Singh  was  acquitted  by  the  learned  Sessions

Judge,  Sirsa.  State questioned his acquittal.   Similarly  the

complainant,  PW7  also  filed  the  revision  petition  seeking

enhancement of the sentence of convicted accused persons to

death  sentence,  apart  from  questioning  of  acquittal  of

Gurcharan Singh.  By the common judgment the High Court

dismissed  the  Criminal  Appeal  filed  by  the  State  and  the

Criminal Revision filed by the complainant while  dismissing

the appeal filed by the appellants also.

2. Background facts in a nutshell are as follows:

Sukhdev  Singh  (PW-7)  lodged  FIR  at  5.30  PM  on

3.11.1994 that on 3.11.1994 at about 4.30 PM, he was going

with his mother Pritam Kaur to visit the house of his father’s

sister on the eve of Diwali festival.  At that time, his  father

Amrik Singh (hereinafter referred to as ‘deceased’)  was going

about 10  paces ahead of them on the same foot way for his

domestic work.  As soon as deceased reached in front of the

house of one Parlhand Singh son of Karnail Singh, then all of

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a sudden,  acquitted  accused  Gurcharan Singh,  armed with

gandasi, Hardeep Singh, armed with dattar, Harjinder Singh

armed  with  gandasi  and  Jaswinder  Singh  also  armed  with

gandasi,  emerged  from  a  street  known  as  schoolwali  gali.

Acquitted  accused  Gurcharan  Singh  raised  a  lalkara

(exhortation) that “Aaj Isko Bach Kar Jane Mat Dena”. Soon

thereafter, his sons appellants Harjinder Singh and Jaswinder

Singh  inflicted  gandasi  injuries  on  the  deceased  with  an

intention to commit  his murder.   They gave gandasi  blows,

which landed on the legs of the deceased.   As a result, the

deceased fell down on the road.  His turban also went off his

head and fell  on the ground.   Thereafter  accused appellant

Hardeep Singh gave dattar blow, hitting the deceased on his

head.  He was followed by accused appellant Harjinder Singh,

who also inflicted a gandasi blow on the head of the deceased.

Thereafter,  acquitted  respondent  Gurcharan  Singh  and

accused  appellant  Jaswinder  Singh  caused  further  injuries

with  gandasi  on  the  arms  of  the  deceased.   Complainant

Sukhdev Singh and his mother Pritam Kaur raised a hue and

cry saying “Mar Dia Mar Dia”.  After that the deceased was

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dragged by all the four accused inside the house of accused-

appellant Harjinder Singh. Complainant Sukhdev Singh and

his mother Pritam Kaur followed them and raised hue and cry.

On hearing their noise all the aforesaid four accused, namely,

Gurcharan  Singh,  Hardeep  Singh,  Harjinder  Singh  and

Jaswinder  Singh, ran away with their  weapons towards the

village side.  The complainant and his mother looked at the

deceased  who  had  succumbed  to  the  injuries.  The

complainant, leaving behind his mother near the dead  

body at the spot, went to the police post to lodge a report. His

statement  was  recorded  by  Kartar  Singh,  Incharge,  Police

Post, Kariwala, on 3.11.1994 itself. On receipt of ruqa (Ex.PB),

a  formal  FIR  (Ex.PB/1)  under  Sections  302/34  IPC  was

registered by ASI Baljit Singh (PW3) at Police Station, Ding, at

6.50 PM.  He sent a special report through Constable Bhoop

Singh  (PW-5)  on  the  same  day  to  JMIC,  Sirsa.  A  detailed

inquest report (Ex. PD /4) was prepared on 3.11.1994 itself by

ASI  Kartar  Singh (PW 9).   Dr.  Narinder  Chaudhary  (PW 4)

conducted  the  post  mortem   (Ex.PD)  of  the  deceased  on

4.11.1994  at  about  10.15  AM.  He  found  as  many  as  14

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injuries on the dead body.  They are as under:

“1.    A  'V'  shape  incised  wound  each  limb

measuring 8 cms x 2cms x brain deep over the left

parietal region 8 cms away from the pinna of the left

ear.  On  dissection,  there  was  fracture  of  the  left

parietal  bone.  Infiltration  was  present  underlying

the injury.

2. An incised wound of 6 cms x 2-  cms x scalp

deep  over  the  top  of  the  scalp.  On  dissection,

infiltration was present and there was no fracture.

3. An incised wound of 8 cms x 1.5 cm x muscle

deep,  anterior  and  middle  third  to  the  right  leg.

Corresponding cut was present in the kachha.  On

dissection,  underlying  bone  (tibia)  was  fractured

and infiltration was present.

4. An incised wound of 4 tens x 1.5 cms x bone

deep.  Lateral aspect of the right knee joint.

5. Two abrasions contusions measuring 3 x 2 cms,

2.5 cms x 2.5 cms over the anterior aspect of right

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knee  joint.  On  dissection  of  injuries  no.4  and  5

right  patelar  bone  was  fractured.  Infiltration  was

present.

6. Incised  wound  11  cms  in  length,  anterior

posteriorly (through and through) from the root

of the right little finger to the root of the right

thumb.  Underlying  bone,  muscle  tendons

vessels and nerves were cut.

7. Incised wound of 6cms x 1.5 cms muscular deep

over the posterior and middle to the right fore-arm.

Underlying  bones  were  fractured.  Infiltration  was

present.

8.  Contusion of 3 cms x 2 cms over the top of the

left  shoulder  joint.  Infiltration  was  present

underlying the tissue.

9. Two contusions varying in size. Posterior to the

left elbow.

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10.  Contusion  of  4  cms  x  2  cms,  posterior  and

middle to the left fore-arm. Underlying bone (ulna)

was fractured and infiltration was present.

11. Abrasion contusions, four in number, varying in

size,  dorsum  of  the  left  hand.  On  dissection

infiltration was present.  

12.  Contusion of  3  cms x  1  cm on the  left  knee

joint.  

13.  Incised  wound  of  5.5  cms  x  1.5  cms x  bone

deep,  anterior  and  middle  third  to  the-  left  leg.

Underlying  bone  was  fractured.  Infiltration  was

present.

14.  Contusion of 2.5 cms x 2 cms over the lower

third to the sternum. Infiltration was present under

the injury."

3. After  completion of  the investigation,  charge sheet  was

filed.  Since the accused persons pleaded innocence, the trial

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was held.  As noted above, the appellants were convicted while

Gurcharan Singh was acquitted.  Appeal was filed by the State

and the present appellants and the revision was filed by the

complainant.  

4. Before  the  High  Court  the  basic  stand  taken  by  the

appellants was that the evidence of PWs 7 & 8 do not inspire

confidence.  The High Court did not find any substance in the

appeal  filed by the appellants and held that the evidence of

PWs 7 & 8 sufficiently established the accusations.

5. In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that the evidence of PWs 7 & 8 does not

inspire confidence, particularly when they are relatives of the

deceased.   Additionally,  even  if  the  prosecution  version  is

accepted in toto, the conviction for offence punishable under

Section 302 read with Section 34 IPC cannot be maintained.

Plea  that  the  FIR  was  ante  timed  was  also  taken  with

reference to the time of inquest.  The basic plea is regarding

the applicability of Section 34 IPC.  It is pointed out that the

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Doctor  has opined  that  only  injury  no.  1  alone  could  have

resulted in the death.

6. Though  learned  counsel  for  the  appellants  submitted

that the evidence of PWs 7 & 8 does not inspire confidence, no

discrepancy in their evidence could be focused to discard their

evidence.   

7. We  shall  also  deal  with  the  contention  regarding

interestedness  of  the  witnesses  for  furthering  prosecution

version.  Relationship is not a factor to affect credibility of a

witness.  It is more often than not that a relation would not

conceal  actual  culprit  and  make  allegations  against  an

innocent person.  Foundation has to be laid if  plea of false

implication is made.  In such cases, the court has to adopt a

careful approach and analyse evidence to find out whether it

is cogent and credible.

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8. In  Dalip  Singh and Ors.  v.  The  State  of  Punjab (AIR

1953 SC 364) it has been laid down as under:-

“A  witness  is  normally  to  be  considered independent  unless  he  or  she  springs  from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to  implicate  him  falsely.   Ordinarily  a  close relation would be the last to screen the real culprit  and  falsely  implicate  an  innocent person.  It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge  along with the guilty, but foundation must be laid for  such  a  criticism  and  the  mere  fact  of relationship  far  from  being  a  foundation  is often a sure guarantee of truth.  However, we are  not  attempting  any  sweeping generalization.  Each case must be judged on its own facts.  Our observations are only made to  combat  what  is  so  often  put  forward  in cases before us as a general rule of prudence. There is no such general rule. Each case must be  limited  to  and  be  governed  by  its  own facts.”

9. The  above  decision  has  since  been  followed  in  Guli

Chand and Ors. v.  State of Rajasthan (1974 (3) SCC 698) in

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which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)

was also relied upon.

10. We may also observe that the ground that the witness

being  a  close  relative  and  consequently  being  a  partisan

witness, should not be relied upon, has no substance.  This

theory was repelled by this Court as early as in Dalip Singh’s

case  (supra)  in  which  surprise  was  expressed  over  the

impression which prevailed in the minds of the Members of

the  Bar  that  relatives  were  not  independent  witnesses.

Speaking through Vivian Bose, J. it was observed:  

“We  are  unable  to  agree  with  the  learned Judges of the High Court that the testimony of the  two eyewitnesses  requires  corroboration. If  the  foundation for  such an observation  is based  on  the  fact  that  the  witnesses  are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.  This is a fallacy common to many criminal cases and one which another Bench of  this  Court  endeavoured  to  dispel  in  – ‘Rameshwar v.  State of Rajasthan’ (AIR 1952 SC  54  at  p.59).   We  find,  however,  that  it unfortunately  still  persists,  if  not  in  the

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judgments of  the  Courts,  at  any rate  in the arguments of counsel.”

11. Again in Masalti and Ors.    v.  State of U.P.  (AIR 1965

SC 202) this Court observed: (p. 209-210 para 14):

“But it  would, we think, be unreasonable  to contend  that  evidence  given  by  witnesses should be discarded only on the ground that it is  evidence  of  partisan  or  interested witnesses.......The  mechanical  rejection  of such  evidence  on  the  sole  ground that  it  is partisan  would  invariably  lead  to  failure  of justice.   No  hard  and  fast  rule  can  be  laid down  as  to  how  much  evidence  should  be appreciated.   Judicial  approach  has  to  be cautious  in  dealing  with  such  evidence;  but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

12. To the same effect is the decision in  State of Punjab v.

Jagir Singh (AIR 1973 SC 2407),  Lehna v.  State of Haryana

(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of

Orissa (2002 (8) SCC 381).  

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13. The  above  position  was  also  highlighted  in  Babulal

Bhagwan Khandare and Anr. v.  State of Maharashtra [2005

(10) SCC 404] and in  Salim Saheb  v.  State of M.P.  (2007(1)

SCC 699).

14. 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

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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 is 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  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.

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15. 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.

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16. We  find  that  the  evidence  of  PWs  7  &  8  clearly

establishes  the  roles  played  by  the  Hardeep  Singh  and

Harjinder Singh. It is also clear from the prosecution evidence

that on hearing of the exhortation of the acquitted Gurcharan

Singh, Jaswinder Singh and Harjinder Singh had given blows

on the legs of the deceased.  After he fell down, Hardeep Singh

gave blow on the head.  Similarly Harjinder Singh also gave

blows on the head.  After the deceased fell down Jaswinder

Singh did not attack on any vital part of the deceased’s body.

He assaulted on the arm of the deceased.   In the aforesaid

circumstances,  while appeal  filed by the accused appellants

Hardeep  and Harjinder  Singh is  dismissed,  the  appropriate

conviction  of  Jaswinder  Singh would  be  under  Section  304

Part II  IPC.  His conviction is accordingly altered. Custodial

sentence of eight years would meet the ends of justice.

17. The appeal is allowed to the aforesaid extent.

………………………….………..J. (Dr. ARIJIT PASAYAT)

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………………………….……….J. (P.P. NAOLEKAR)

New Delhi, June 11, 2008

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