REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1240  OF 2006

Javed Alam ..Appellant  

versus   State of Chhattisgarh and Anr. ..Respondents              (With Criminal  Appeal No. 1241 of 2006) (With Criminal Appeal No. 1242 of 2006)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals  is to the judgment of a Division Bench of  

the   Chhattisgarh  High Court,  Bilaspur   upholding  the  conviction  of  the  

appellants for offence punishable under Section 302 read with Section 34 of  

the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’).  By  the  impugned  

judgment, the High Court upheld the conviction of appellant Samar Vijay  

Singh for  offence  punishable  under  Section  302 IPC for  committing  the

murder of Ku.  Preeti (hereinafter referred to as the ‘deceased’) on 3.12.1998  

in Government Girls College Campus,  Ambikapur by running over her a  

jeep.  The  co-accused  appellants  Javed,  Raj  Kumar  and  Ganesh   were  

convicted under Section 302 read with Section 34 IPC for causing death of  

Ku. Preeti in furtherance of their common intention with the appellant Samar  

Vijay Singh. Co-accused Ranvijay Singh, father of accused Samar Vijay and  

owner of the jeep was acquitted of the charge under Section 201 IPC.  

2. Prosecution case is that on 3.12.1998 Ku. Preeti Srivastava, a student  

of  B.A.  final  in  Govt.  Girls  College,  Ambikapur  was  sitting  with  Ku.  

Vijaylaxmi  Mishra  (PW-7),  Ku.  Seema  Mishra  (PW-8)  and  Ku.  Nisha  

Thakur (PW-17) in the campus of the College since the second period was  

free. Her bag and tiffin were kept by the side of the road. Many other girls  

were basking in the sun inside the campus. At about 10:45 A.M., a jeep  

driven  by  Samar  Vijay  Singh  suddenly  entered  the  college  campus  and  

crushing the bag and the tiffin of Ku. Preeti Shrivastava underneath, went  

ahead. Accused Rajkumar Tiwari, Javed Alam and Ganesh Kashyap were  

accompanying  Samar  Vijay  Singh in  the  jeep.  Seeing  her  tiffin  and bag  

crushed by the jeep, Ku. Preeti Srivastava decided that she would stop the  

jeep on its return and ask the driver to make good the loss suffered. When  

the jeep returned, Ku. Preeti stopped the jeep, stood in front of it and asked  

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accused-appellant Samar Vijay Singh to repair  the tiffin and bag for her.  

Hearing this, the occupants of the jeep including the driver started laughing.  

The girls noticed that the occupants of the jeep were calling each other by  

names and thereby learnt that Samar Vijay Singh, the driver of the jeep was  

accompanied  by  Rajkumar  Tiwari,  Javed  Alam  and  Ganesh  Kashyap.  

Appellant Samar Vijay Singh asked Ku. Preeti to get out of his way falling  

which, threatened to crush her under the jeep. However, Ku. Preeti stood  

firm and did not budge. Accused Rajkumar Tiwari, Javed & Ganesh asked  

Samar Vijay Singh to crush Ku. Preeti if she did not give way. Upon this,  

Samar Vijay Singh moved the jeep ahead and pushed Ku. Preeti who fell  

down. When the girls were about to move for picking up Preeti, Samar Vijay  

Singh reversed and then accelerated the jeep ahead, crushing Preeti's head  

under the jeep in the process and ran away with the co-appellants.

  Ku. Vijaylaxmi PW-7, threw a stone at the jeep, which hit the bumper  

of the jeep.  She noted down the number of the jeep in her palm as M.P. 27-

1962 Lalita Yadav PW-6, attempted to catch hold of one of the appellants  

but she was pushed and fell down.  Ku. Vijaylaxmi noticed that the jeep had  

a sticker “Vote for the Congress” on the back number plate.   

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The girls got frightened and informed Asst. Professor Smt. Archana  

Singh (PW-9)  and Asst.  Professor  Smt.  Pratibha Singh PW-10 about the  

incident who along with Ku. Lalita Yadav (PW-6), Ku. Vijaylaxmi  (P.W.7),  

Ku.  Kumudini  Kerkatta  (PW  4)  &  Ku.  Urmila  Paikra  (PW-5)  took  the  

injured  Ku.  Preeti  to  the  District  Hospital,  Ambikapur.  Clerk  Tarachand  

Sahu PW-11 of the Girls College reached the spot thereafter and on being  

instructed by the Principal lodged the F.I.R. Ex.P-12 at 11.00 a.m. in Police  

Station, Ambikapur to Assistant Sub-Inspector B.N. Singh (PW-31)

After investigation charge sheet was filed.

Since the accused persons abjured guilt the trial was held. Prosecution  

examined 39 witnesses. Learned Sessions Judge acquitted Ranvijay Singh  

for want  of evidence and convicted rest  of  the accused persons as  noted  

above. The basis of conviction was as follows:

1. Testimony of Ku. Lalilta Yadav PW-6, Ku. Nisha (PW-

17), Ku. Seema Misra (PW-8), Dr. M.L Beatrice  (PW-3), Dr.  

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A.K. Jain (PW-33) proving that Ku. Preeti died  a  homicidal  

death.  

2. Statements  made  by  Ku.  Lalita  Yadav  PW-6  and  Ku.  

Vijaylaxmi PW-7, as forming part of res-gestae under Section-6  

of the Evidence Act to Shri R. N. Shrivastava PW-32 on his  

reaching the hospital disclosing the names of the driver of the  

jeep as Samar Vijay Singh and the occupants  of the Jeep as  

Rajkumar Tiwari, Javed and Ganesh.

3.  Extra  Judicial  Confession  made  by  the  accused  Raj  

Kumar  before  Abhaydeep  Singh  PW-2  soon  after  the  

occurrence, also implicating appellant Samar Vijay Singh as the  

driver of the Jeep.

4.  Testimony of Ku. Seema PW-8 especially in para 34 and  

35 showing the three occupants of the Jeep had asked the driver  

Samar Vijay to run the girl over in case she didn't give way and  

Samar  Vijay  surging  the  jeep  ahead  crushed  Preeti's  head  

underneath.

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5.  Testimony  of  Arvind  Gaur,  Assistant  Professor,  P.G.  

College, Ambikapur PW-12 showing that Ganesh Kashyap, a  

student of B.Com 1st year ' B' section was absent from class on  

03-12-1998.

6. Testimony of Professor Rajesh Srivastava, P.G. College,  

Ambikapur  PW-18  showing  that  on  3.12.1998  Samar  Vijay  

Singh  and  Raj  Kumar  Tiwari,  students  of  B.Com.  1st  year  

Section-'A' were absent from class (10 A.M. to 10:40 A.M.).

7. The fact of surrender by accused  Javed and Ganesh in  

Police Station Ambikapur on 04-12-1998 vide Ex. P-74 and 75.

8. (i) Seizure of Jeep No. M.P.-27-B-1068 from, in front of  

the house of appellant Samar Vijay.

(ii)  Merg intimation Ex. P-19 by Mariam Tirki  PW-16  

showing the number of the Jeep as M.P. -27-B-1068.

(iii)  Testimony  of  Z.A.  Abbasi  PW-37  R.T.O.  Office  

Ambikapur proving ownership of Ranvijay Singh Tomar over  

Jeep M.P.-27B-1068.

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(iv) Admission by Ranvijay Singh Tomar of the seizure  

of Jeep M. P. 27-B-1068, in reply to Question No.218 in  

examination under Section-313 of Cr. P.C.”

3. Stand of the appellants before the High Court was that there was no  

legal  evidence  on record  to  substantiate  the  conviction and sentence.  No  

common intention  of  the occupants  to cause the death of  Kr.  Preeti  was  

established  by  the  prosecution.  Seema  Misra  (PW-8)  had  stated  that  the  

driver of the jeep wanted to get away as fast and, therefore, offence if any  

committed by the driver would not travel beyond Section 304 IPC. The act  

was nothing but a rash and negligent act without any intention to kill the  

deceased.   The  High  Court  did  not  accept  the  stand  and  upheld  the  

conviction.  

4. In support of the appeals, learned counsel for the appellants re-iterated  

the  stand taken before the  High Court.  It  is  to  be noted that  there  were  

purportedly  four  eye  witnesses.   They  are  PWs  6,  7,  8  and  17.   The  

occurrence  took place  around 10.45 a.m.  on  3.12.1998 and the FIR was  

lodged  immediately  by  PWs  4  and  5  around  11.00  a.m.  The  deceased  

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breathed  her  last  at  about  12.10  p.m.  The  vehicle  according  to  the  

prosecution version was being driven by Samar Vijay Singh and rest of the  

occupants were other co-accused persons.    It is stated that identity of the  

accused persons has not  been established. There is  no Test  Identification  

Parade. Names were not mentioned in the inquest or in the FIR. The accused  

persons  were not known earlier and Section 6 of the Indian Evidence Act,  

1872 (in short the ‘Evidence Act’) has no application.  PWs 9 and 10 had not  

told the names. The role of A-3 was not established. A1, A2 and A4  were  

the students of the same college and one of the accused was 18 years on the  

date of occurrence. There was no enmity or motive or any intention to kill  

Ku. Preeti and in any event place of occurrence was not established and the  

occurrence took place, even if the prosecution case is accepted, at the spur of  

moment. There is no evidence to show any meeting of mind.  

5. It is pointed out that most of the so called eye witnesses resiled from  

their  statements  made  during  investigation.   The  Court  has  accepted  the  

identification by PWs 8 and 17 and in answer to the statement  recorded  

under Section 313 of the Code there was really no definite answer.  

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6. The question of res-gestae has no application as the name given for  

the  first  time is  proved in  the  Court.   Res  Gestae  was  not  in  the  police  

statement.   So far as Article D-7 is concerned paint is similar to that of jeep  

which is scratched.   

7. It is also re-iterated that the evidence on record does not make out a  

case under Section 34 IPC.  

8. It  is  a  classic  case  of  deficiency  in  the  criminal  justice  system to  

protect the witnesses from being threatened by accused. As appears from the  

record, the witnesses are the classmates of the deceased who were there with  

her. As appeared from the evidence of witnesses they backed out from what  

was  stated  during  investigation.   The  statement  made  before  the  Police  

during  investigation  is  no  evidence.  Unfortunately,  in  cases  involving  

influential  people  the  common  experience  is  that  witnesses  do not  come  

forward  because  of  fear  and  pressure.  In  a  brutal  manner,  the  accused  

Samarvijay Singh who was driving the vehicle run over the girl and she lost  

her life. The trial Court and the High Court have highlighted certain aspects  

which clearly bring out the guilt of accused Samarvijay Singh.  Significant is  

the  evidence  of  PWs 7  and 8.  PW-7 was the  girl  who accompanied the  

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injured to the hospital and told about the incident to PW-3, the doctor which  

was recorded in report Ex.P-4 containing the name of Ku. Vijaylaxmi PW-7  

as the person told about the incident.  The evidence of PW-6 Lalita Yadav  

shows that PW-7 was sitting with the deceased when the jeep entered the  

campus. As rightly noted by the High Court something transpired later on  

which led to the witnesses giving a complete go bye to her earlier version.  

More  important  is  the  evidence  of  PW-8  who  blurted  out  during  cross  

examination some traces of truth which was labeled as unfair and dishonest  

cross examination by learned counsel for the appellants. At the end of the  

ordeal of her evidence she cried and requested the Court not to call her again  

for evidence since they were disturbed for the entire year. The plight of the  

girls  who  were  under  pressure  depicts  the  tremendous  need  for  witness  

protection  in  our  country  if  criminal  justice  administration  has  to  be  a  

reality.  Even close reading of the evidence shows that how she was under  

tremendous pressure not to speak the truth.  In reply to question No.27 she  

said that she did not see the occupants. That is nothing, because in answer to  

the next question she said that there were four boys in the jeep.  Question  

No.34 is  very significant.   It  was specifically  asked to the  witness as  to  

whether the occupants of the jeep were asking Samarvijay Singh, the driver  

of the jeep  to run the girl over if she did not give way. Answer was that the  

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boys had said so but afterwards.  In answer to question No.35 she said that  

Samar surged the jeep ahead, crushed the head of Preeti  and went away.  

She had admitted that the boys were laughing  in the jeep and had said to  

Samar that if the girl did not give way he should run the girl over. She had  

answered in the affirmative  by stating ‘yes’ to a specific question No.35  

clearly meaning that   crushing Preeti’s  head Samar  had surged the jeep  

forward.

Section 6 of the Evidence Act is an exception to the rule of evidence  

that hearsay evidence is not admissible. The test for applying  the rule of res-

gastae is that the statement should be spontaneous and should form part of  

the  same transaction ruling  out  any possibility  of  concoction.  In  Gentele  

Vijayavardhan Rao v. State of Andhra Pradesh  (AIR 1996 SC 2791) it was  

held in para 15 as follows:

"Section 6 of  the  Evidence  Act  and some of  the  succeeding  Sections embody the rule of admission of evidence relating to  what is commonly known as res-gestae. They are in the nature  of  exception  to  'hearsay"  rule.  Section-6  permits  proof  of  collateral statements which are so connected with the facts in  issue  as  to  form  part  of  the  same  transaction.  Whether  the  statement made by a witness was a part of the same transaction  or not is to be considered in the light of the circumstances of  each  case.  The  principle  is  that  it  should  be  so  intimately  connected with the fact in issue as to be a spontaneous utterance  inspired by  the  excitement  of  the  occasion or  a  spontaneous  

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reaction  thereof,  there  being  no  opportunity  for  deliberately  fabricating the statement. In other words, the statement which is  a part of res-gestae does not narrate a past event, but it is the  event  itself  speaking  through  a  person  thus  excluding  the  possibility of any design behind it.”   

10. The reason indicated by the High Court dismissing the appeal before  

it qua accused Samarvijay Singh has no merit and is dismissed.  

11. The other question is applicability of Section 34 IPC.

12. Section 34 has been enacted on the principle of joint liability in the  

commission 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  

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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 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.

13. 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  commission  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  

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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.

14. The  above  position  has  been  highlighted  in  Chimanbhai  Jagabhai  

Patel v. State of Gujarat & Anr.   (SLP (Crl.) 352 of 2008 disposed of on 16th  

March, 2009).

15. There  is  no  evidence,  muchless  credible,  which has  been salvaged  

from the  onslaught  on  the  witnesses  which  suggests  that  there  was  any  

meeting of minds, because everything appears to have happened suddenly.  

The evidence of PW8 on which the prosecution has placed strong reliance  

for the purpose of attracting Section 34 IPC gave pre-varicating statements  

so far as others are concerned, through her statement is sufficient to fasten  

guilt on Samar Vijay Singh.       

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16. Considering the background facts it  is clear that Section 34 has no  

application. That being so, while dismissing the appeal filed by Samarvijay  

Singh, the conviction recorded qua other accused persons has to be set aside  

which  we  direct.   They  shall  be  released  from custody  forthwith  unless  

required to be in custody in connection with any other case.   

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

……..… …....................................J.

(ASOK KUMAR GANGULY) New Delhi, May 08, 2009  

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