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CASE NO.: Appeal (crl.)  1116 of 2006

PETITIONER: Lala Ram

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 20/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Three appellants before the Rajasthan High Court  alongwith one Giluda faced trial for alleged  offence under  Section 302 read with Section 34 of the Indian Penal Code (in  short the ’IPC’).  A Division Bench of the Rajasthan High Court  Jaipur Bench directed acquittal of the Giluda and upheld the  conviction so far as the appellants before it are concerned.   Each one of them was found guilty of offence punishable  under Section 302 read with Section 34 IPC and was  sentenced to undergo imprisonment for life. 23 persons were  named in the First Information Report (in short the ’FIR’) but  after investigation police filed charge sheet against seven of  them.  The appellants before High Court along with three  others, namely, Babu Ram, Raghuveer and Kailash faced trial.    Said Babu Ram, Raghuveer and Kailash were acquitted by the  trial court. Each of the appellants was sentenced to undergo  imprisonment for life each to pay fine about Rs.1,000/- with  default stipulation. Only the present appellant has questioned  legality of the judgment of the High Court.  

2.      Background facts in a nutshell are as follows:

On 1.4.2000 at 4.30 p.m. First Information Report (in  short the ’FIR’) with regard to the incident came to be lodged  on the same day at 7.30 p.m. by Bhonr Singh, brother of  deceased Prabhu and Reghuveer.  It was a written report on  the basis of which formal FIR came into being.  Bhonr Singh in  the FIR lodged by him stated that between 4 to 5 in the  evening on 1.4.2000, his brother Prabhu and Raghuveer were  coming back from Thanagazhi after attending hearing of a  case.  When they were going from Mandawara to Talvriksha,  on the outskirts of the village, because of personal enmity,  Girdhari son of Dola Ram Rebari, Hanuman, Lala and their  younger brother’s sons of Girdhari Rebari, Tulsa wife of  Girdhari, Hardeva, Giluda, Gopal, Shimbhu sons of Hardeva,  Santi wife of Hardeva and Hardeva himself, Ramjilal,  Manaram, Pancha, Yada sons of Bhora Jat, Prabhu, Maharam  sons of Shankar and relations of Girdhari Rebari whose names   he did not know, Dholi wife of Sunda Ram, Sundaram and his  four sons started beating Prabhu and Raghuveer with lathis,  farsi, Jell etc. and injured them.  At the spot, the occurrence  was witnesses by Ranveer, son of Dilip Singh, Hanuman, son  of Gangaram, Girvar Singh, son of Mukhram Singh, Bhima,  son of Mukhram, Harinarain Gujar and Ramniwas, sons of

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Phoola Gujar.  He was taking bath in Talviksha when the  occurrence had taken place.  He was told about this  occurrence by Sugla Dhankar who told him that above named  persons had beaten his brothers.  He then straightway went to  lodge the report. 3.      After completion of investigation charge sheet was filed.  Accused persons pleaded innocence.  

4.      Placing reliance on the evidence of PWs. 3 & 4 the trial  court recorded conviction of the appellant and others, while  directing acquittal of Giluda.  It is to be noted that before PW  3- the deceased persons purportedly made dying declaration  while PW4 was stated to be an eye witness.  The High Court  found that the evidence of PW 3 to be relevant as he is the  person who saw the deceased persons in injured condition and  gave water to them while they were gasping for breath.  So far  as PW 4 is concerned he was related to the deceased persons  and, therefore, the Court analysed his evidence in detail and  found it to be credible.

5.      In support of the appeal, learned counsel for the  appellant submitted that the evidence of PWs 3 & 4 cannot be  called credible and cogent.  PW 4 was related to the deceased.   There was no reason as to why the deceased would make any  disclosure to PW 3 about the assailants. Further, Section 34  has no application. Learned counsel for the State supported  the judgment.  

6.      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.  

7.      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 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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8.      As it originally stood, 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."

9.      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).   

10.     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.

11.     The above position was highlighted recently in Anil  Sharma and Others v. State of Jharkhand   [2004 (5) SCC  679],   in Harbans Kaur v. State of Haryana [2005(9) SCC 195]  and Amit Singh Bhikamsingh Thakur v. State of Maharashtra  [2007(2) SCC 310].

12.     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.

13.     So far as PW 3 is concerned he was the person who gave  water to the deceased while he was gasping for breath and  only he lent helping hand and tried to find out how the  injuries were sustained. The deceased persons told the witness  that they were given beatings near the temple of Peerji on the  road.  He was also told who the assailants were.  In that view  of the matter the judgment and conviction of the High Court  does not suffer from any infirmity to warrant interference.

14.     We record our appreciation for the able manner in which  Mr. Shakeel Ahmed, learned Amicus Curiae assisted the  Court.

15.     Appeal stands dismissed.