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CASE NO.: Appeal (crl.)  622-624 of 2003

PETITIONER: Anil Sharma & Ors.

RESPONDENT: State of Jharkhand

DATE OF JUDGMENT: 30/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T   

With

Crl.A. No. 798 of 2003

ARIJIT PASAYAT, J.           Six persons faced trial for alleged commission of  offences punishable under Sections 147, 148, 149, 326,  307 read with Section 34, 452 read with Section 34 and  302 read with Section 34 of the Indian Penal Code, 1860  (in short the ’IPC’). Appellant-Anil Sharma was  sentenced to death. The others were sentenced to undergo  imprisonment for life under Section 302 read with  Section 34 IPC. Each was sentenced to undergo rigorous  imprisonment for 10 years and to pay a fine of  Rs.2,000/- each with default stipulation for the offence  punishable under Section 307 read with Section 34 IPC.  

The prosecution version in a nutshell is as  follows:   

       Hare Ram Singh @ Manoj Singh (PW-6) who was the  cousin of Sudhir Singh @ Bhoma (hereinafter referred to  as the ’deceased’) lodged fardbayan. He claimed to be an  injured in the occurrence in question which took place  on 22.1.1999. The occurrence is said to have taken place  at 6.45 A.M. on that day in Ward No. 2 of Jail Hospital  in Birsa Munda Central Jail, Ranchi and on the basis of  fardbayan, Lower Bazar P.S. Case No. 12/99 was  registered at 11.00 A.M. on that day and formal F.I.R.  (Ext. 8/1) was drawn up.  The said Fardbayan (Ext.8)  along with the formal F.I.R. (Ext.8/1) was received in  the court of C.J.M., Ranchi on 23.01.1999.

Recital in the fardbayan was that PW-6 had gone to  Ward No. 2 of the Jail Hospital at 6.45 A.M. on  22.01.1999 as usual to his cousin deceased Sudhir Singh  @ Bhoma from his Ward No. 6 of the Jail and he used to  sit with Sudhir for the whole day and he also used to  keep his clothes etc. there.  Soon thereafter, when he  was talking with deceased Sudhir Singh, accused- appellants Anil Sharma, Sushil Srivastava, Niranjan  Kumar Singh, Md. Hasim @ Madhu Mian all armed with  Chhura, Bablu Srivastava and Gopal Das armed with belt  and iron rod respectively along with 10 or 12 other  persons came near deceased Sudhir Singh and appellant  Anil Sharma caught hold of his collar and at this stage

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deceased asked as to "what has happened, brother" and  in the meantime appellant Anil Sharma assaulted him by  Chhura and appellant Sushil Srivastava, Niranjan Kumar  Singh and Md. Hasim @ Madhu Mian made assault on him by  Chhura with which they were armed and appellant Bablu  Srivastava and Gopal Das also assaulted him  by belt and  iron rod respectively, besides 10 or 12 other persons  aforesaid who had surrounded and assaulted him. The  informant (PW-6) requested appellant Anil Sharma to let  off and leave deceased Sudhir Singh and also enquired as  to what is the matter, but no avail and the deceased  fell on the ground as a result of injuries sustained.  Appellant Anil Sharma thereafter mounted attack on the  informant and inflicted a blow on his neck by Chhura and  appellant Sushil Srivastava and Niranjan Kumar Singh  assaulted him by Chhura causing bleeding injury on his  head and left hand respectively. The informant (PW-6)  also fell down being injured and other persons aforesaid  also assaulted him by kicks and fists.  There was then  the ringing of alarm bell. After few minutes the Jail  constables came there blowing whistles and during that  period there was a great stampede and deceased Sudhir  Singh in an unconscious state along with the injured  informant was shifted to R.M.C.H. Ranchi for treatment  where the informant was undergoing treatment. But Sudhir  Singh died on his way to the Hospital.                          

       The trial Court found the accused persons guilty on  consideration of the evidence led by the prosecution by  examining 18 witnesses. Twelve witnesses were examined  on behalf of the accused persons who pleaded innocence  and false implication. They took a specific stand that  they were in their wards inside the jail and, therefore,  the question of committing any murder was totally  improbable. There was no report made by Hare Ram Singh  (PW-6) as claimed. The Trial Court recorded conviction  and awarded sentences as afore-noted. For its  conclusions Trial Court primarily relied on evidence of  PWs 5 and 6, who claimed to be eye witnesses.  

       In view of the death sentence imposed on accused  Anil Sharma a reference was made to the Jharkhand High  Court under Section 366 of the Code of Criminal  Procedure, 1973(in short the ’Code’). The High Court  upheld the conviction as recorded by the trial Court but  altered the sentence of death imposed on the accused  appellant-Anil Sharma to one of life imprisonment. In  substance, except the modification of sentence so far as  accused appellant Anil Sharma is concerned, the appeal  was dismissed. Evidence of witnesses was analysed in  view of the stand that the so-called eye witnesses  version is clearly not capable of acceptance.   

       In support of the appeals, it has been submitted  that there was delay in recording the FIR. There was  non-examination of many vital witnesses. Evidence of the  defence witnesses was not carefully analysed. PW-6 later  on made a statement under Section 164 of the Code that  his evidence was recorded under pressure. There were  exaggerations in respect of what had been indicated in  the Fardbayan as recorded. Non production of the  hospital register and non examination of the Warden and  Head Warden, cast serious doubts on the veracity of the  prosecution version and the Courts below should not have

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brushed aside those infirmities lightly. The production  of the register and the examination of the warden and  head warden would have established that place of  occurrence as indicated is highly improbable. The citus  has not been proved. No blood stains have been found or  seized. PW-6 is not a resident of the jail. He claimed  to be an inmate of Ward No.6 and though he stated that  he was inside the camp of the jail, nothing material in  that regard has been established. As soon as PW-6 came  out of the jail in May 2001, he filed an affidavit  stating as to how the statements made by him during  trial were wrong. It has been erroneously held that no  prejudice was caused by not getting him re-examined.  Different yardsticks have been adopted for the  prosecution and the defence witnesses. PW-5’s presence  at the spot of occurrence as claimed is highly doubtful.  The canteen manager himself has improbabilised the  presence of the witnesses. Even if it is accepted that  PW-5 was present his evidence does not guarantee  truthfulness. There was no corroborative material. After  having discarded the evidence of PWs 1, 2 and 4 there  was no justification to act on the evidence of PWs 5 and  6. The FIR has been despatched after considerable delay  and there has been delayed examination of PW-5. So far  as PW-5 is concerned, he was examined under Section 164  of the Code. He has not named Sushil Srivastava in the  statement recorded before the Magistrate though in the  cross examination he accepted that what was stated  before the Magistrate was correct. The assault part as  indicated by PW-6 in the so-called FIR was given a go by  in Court.       Though in the FIR it was stated that the  assault was made by respective weapons the Court has  come to a presumptive conclusion that no physical  assault was made but by holding the head the killing by  accused Anil Sharma was facilitated.  

       Section 34 IPC has been wrongly applied. There was  no specific role attributed to any of the accused  persons except the accused Anil Sharma. The  inconsistency between the evidence of PWs 5 and 6  probabilises the defence version. Even if it is accepted  that the accused persons except accused Anil Sharma were  present if there was no participation the conviction as  made is not maintainable.  

       In response, learned counsel for the State  submitted that in addition to the evidence of the  aforesaid witnesses, the evidence of other PWs more  particularly, PW-12 shows that the occurrence took place  inside the jail. The concurrent views of the trial Court  and the High Court should not be interfered with. The  evidence of PWs 5 and 6 shows that they are reliable and  believable. Merely because some documents have not been  produced that does not in any way dilute the prosecution  version or render the evidence of the eye-witnesses  doubtful. No prejudice has been caused to the accused in  any manner by not accepting the prevaricating stand of  PW-6.  

The evidence of PWs 5 and 6 has been attacked by  the accused-appellants on the ground that their presence  at the alleged spot of occurrence is not believable.  Non-production of certain documents and non-examination  of some of the official witnesses were pressed into  service. It is true that PW-6 made an application for

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getting examined afresh and the same was turned down.  Again the defence filed a similar application. The Court  considered the same and found it to be without  substance. PW-6 was examined in Court on 22.1.2000,  25.1.2000 and 27.1.2000. He made an application before  Trial Court on 17.7.2001 about alleged pressure on him  to depose falsely. A bare reading of the same shows that  the same is extremely vague and bereft of substance.   Though it was stated pressure was put on him and he was  subjected to third degree treatment, he has not  specifically named anybody and made vague mention about  "some police officials".

Further, the accused at different stages prayed to  recall PWs 5 and 6 which the Trial Court rejected.  The  orders had attained finality. The petition of PW-6 was  considered in detail by the Trial Court and was rejected  by order dated 8.8.2001.  It appears that accused  persons had filed an application on 3.7.2001 with a  prayer to examine PW-6.  Same was also rejected by order  dated 5.9.2001. Both the orders dated 8.8.2001 and  5.9.2001 attained finality and also do not suffer from  any infirmity.          

So far as one of the points which was highlighted  was that no cogent reasons have been given to discard  the prayer made by PW-6 for his fresh examination. This  aspect was specifically urged before the High Court and  has been considered. It was held that the plea appeared  to be after thought and there was no cogent reason for  accepting the prayer. It is true that in a given case  the accused can make an application for adducing  additional evidence to substantiate his claim of  innocence. Whenever any such application is filed before  the Court, acceptability of the prayer in question is to  be objectively considered. The High Court has  elaborately dealt with this issue and concluded as to  how the prayer was rightly held to be not tenable.  

It is not that in every case where the witness who  had given evidence before Court wants to change his mind  and is prepared to speak differently, that the Court  concerned should readily accede to such request by  lending its assistance. If the witness who deposed one  way earlier comes before the appellate Court with a  prayer that he is prepared to give evidence which is  materially different from what he has given earlier at  the trial with the reasons for the earlier lapse, the  Court can consider the genuineness of the prayer in the  context as to whether the party concerned had a fair  opportunity to speak the truth earlier and in an  appropriate case accept it. It is not that the power is  to be exercised in a routine or cavalier manner, but  being an exception to the ordinary rule of disposal of  appeal on the basis of records received in exceptional  cases or extraordinary situation the Court can neither  feel powerless nor abdicate its duty to arrive at the  truth and satisfy the ends of justice. The Court  ultimately can certainly be guided by the metaphor,  separate the grain from the chaff, and in a case which  has telltale imprint of reasonableness and genuineness  in the prayer, the same has to be accepted, at least to  consider the worth, credibility and the acceptability of  the same on merits of the material sought to be brought  in.

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         Non-production of documents which the appellants  claim would have strengthened the claim of absence of  PW-5 cannot in any way dilute the evidentiary value of  the oral testimony. Even though the witnesses have been  cross-examined at length, no material inconsistency has  been elicited to discard the evidence of PWs 5 and 6.  One of the pleas which was pressed into service is  alleged relationship of PWs 5 and 6 with deceased and  their criminal antecedents. As rightly noticed by the  High Court on the aforesaid basis the evidence which is  found truthful and credible otherwise should not be  discarded. The Courts have to keep in view that in such  matters deep scrutiny is necessary. After having kept  these principles in view the Trial Court and the High  Court have found that the evidence when carefully  analysed on the whole was credible. After deep scrutiny  the Courts below have found that there is ring of truth  in the evidence of PWs 5 and 6.  

       So far as the delay in despatch of the FIR is  concerned, it was noted by the High Court that the   informant’s Fardbayan was recorded at 10.00 a.m. on  22.1.1999. The inquest report was prepared on 22.1.1999  at 1925 hours. The inquest report was prepared by  Executive Magistrate and the case number is also  mentioned. That being so, plea that the Fardbayan being  ante timed has not been established. Post mortem was  conducted on 22.1.1999 at 2200 hours. Above being the  position, there can be no grain of doubt that the  Fardbayan was recorded on the date of occurrence and  filed at the indicated time and the case has been  instituted on the basis of the said Fardbayan. Finding  recorded by the High Court that Fardbayan was not ante  timed is amply supported by evidence on record and no  adverse view as claimed by the accused-appellants can be  taken.  

       So far as the question as to whether equal  treatment being given to the evidence of prosecution and  defence witnesses is concerned, there can be no quarrel  with the proposition in law. In the present case it is  not that the Courts below glossed over the evidence of  defence witnesses. In fact detailed analysis has been  made to conclude as to why no importance can be attached  to their evidence. After carefully analysing the  prosecution evidence and that tendered by the accused,  the trial Court recorded the conviction. The High Court  in appeal made further detailed analysis of the evidence  and came to hold that there was no infirmity in the  conclusions of the trial Court. The conclusions are not  shown to suffer from any infirmity whatsoever to warrant  interference.

       Another point stressed by learned counsel for  appellant relates to applicability of Section 34 IPC.

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

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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 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.

       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

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show some overt act on the part of the accused.

The legality of conviction by applying Section 34  IPC in the absence of such charge was examined in  several cases. In Willie (William) Slaney v. State of  Madhya Pradesh (AIR 1956 SC 116) it was held as follows:

"Sections 34, 114 and 149 of the  Indian Penal Code provide for criminal  liability viewed from different angles  as regards actual participants,  accessories and men actuated by a common  object or a common intention; and the  charge is a rolled up one involving the  direct liability and the constructive  liability without specifying who are  directly liable and who are sought to be  made constructively liable.

       In such a situation, the absence of  a charge under one or other of the  various heads of criminal liability for  the offence cannot be said to be fatal  by itself, and before a conviction for  the substantive offence, without a  charge, can be set aside, prejudice will  have to be made out. In most of the  cases of this kind, evidence is normally  given from the outset as to who was  primarily responsible for the act which  brought about the offence and such  evidence is of course relevant".

       The above position was re-iterated in Dhanna etc.  v. State of Madhya Pradesh (AIR 1996 SC 2478).    

Section 34 IPC has clear application to the facts  of the case on all fours, and seems to have been rightly  and properly applied also.            Looked at from any angle, judgment of the High  Court does not suffer from any infirmity to warrant  interference. The appeals fail and are dismissed.