04 December 1996
Supreme Court


Case number: Crl.A. No.-000366-000366 / 1990
Diary number: 75965 / 1990
Advocates: R. N. KESWANI Vs






DATE OF JUDGMENT:       04/12/1996




JUDGMENT:                          O R D E R      The appellants  alongwith  10  others  were  tried  for various offences  including offences  under sections 148 and 302/149 I.P.C.  in respect of an occurrence dated 11th June, 1984 in  which deceased  Mohan Lal  received fatal injuries. The Trial  Court vide  Judgment of 1st June, 1985, acquitted two  co-accused   but  convicted  11  for  various  offences including offences  under sections  148 and  302/149  I.P.C. They were sentenced to undergo life imprisonment. All the 11 convicts appeal  in the  High Court against their conviction and sentence. On 9th December, 1989, a Division Bench of the High Court  allowed the  appeal of  8 convicts and acquitted them by  giving them  the benefit  of doubt.  So far  as the three appellants  herein are concerned, their conviction was maintained for  the offenses  under section  302/149 I.P.C.. The High Court opined that these three appellants had formed an unlawful  assembly with  "other unknown persons" with the common object  of committing  murder of Mohan Lal as alleged by the  prosecution. By  special leave,  the appellants have filled this appeal.      We have  heard Mr.  Keshwani, learned counsel appearing for the  appellants and  Mr.  U.N.Bachawat,  learned  senior counsel  appearing  for  the  respondent  and  examined  the record.      The Trial  Court as  well as the High Court relied upon the testimony  of Swami  P.W.8, brother  of  Mohan  Lal  and Saraswati, P.W.9,  the mother  of the deceased. It was found by the  courts below  that on  the fateful day of 11th June, 1984 at  about 8.00 a.m., the appellants armed with guns and farsa attacked the deceased while he was proceeding with his brother Swami P.W.8 towards the betel grove. The Trial Court as well  as the  High Court  found that  P.W.8 and P.W.9 had given a  correct account  relating to  the assault and while P.W.9  had   specifically  stated  that  appellants  clearly disclosed in  the promptly  lodged F.I.R.,  Ex.P-16.  It  is settled law  that  conviction  can  be  based  on  the  sole testimony  is   found  to  be  wholly  reliable.  Where  the testimony of  such a  witness is  partly reliable,  prudence required that corroboration of the testimony of that witness should be  sought for  from independent  sources to base the



conviction. Indeed, P.W.9 is the mother of the deceased, She is, therefore,  an interested  witness. Prudence,  as  such, requires that we look for corroboration of her testimony. We find that  such corroboration  is amply provided for both by P.W.8 and  Dr. Ramesh  Kumar P.W.10  who had  performed  the Autopsy on  the dead body. Both the Trial Court and the High Court committed no error in relying upon her testimony which has been  corroborated by  other evidence  on the  record to convict the appellants. The appreciation of evidence by both the courts below is proper and we have not been persuaded to take a  different view.  Merely because,  10  other  persons named by her as accused were acquitted, would not render her Jivan Lal  and Halkoi  fired upon the deceased, Dashrath hit him with  a farsa.  P.W.8 Swami  has corroborated  P.W.9  by deposing that  he had  seen these  accused alongwith  others variously armed  by the side of his brother who was lying on the ground.  The submission  of Mr. Keshwani that the courts below committed  an error  in relying  upon the testimony of P.W.9, the  solitary eye  witness, as  according to him, she was an  interested witness  and since  she had implicated 10 other accused  also, her testimony could not be relied upon, does not  appeal to  us. He referred to certain judgments of this Court to urge that conviction could not be based on the testimony of  sole eye  witness, who has been disbelieved in respect of a part of the occurrence or who has been found to be otherwise interested in the prosecution.      It is  found from  a perusal  of the  record  that  the evidence of Saraswati P.W.9 in so far as the part attributed to the appellants is concerned, is cogent and consistent and is also  corroborated by  P.W.8 as  well as  by the  medical evidence. The  names  of  3  appellants  were  also  clearly disclosed in  the promptly  lodged F.I.R.,  Ex.P-16.  It  is settled law  that  conviction  can  be  based  on  the  sole testimony of an eye witness provided that testimony is found to be wholly reliable. Where the testimony of such a witness is partly  reliable, prudence requires that corroboration of the testimony  of that  witness should  be sought  for  from independent sources to base the conviction. Indeed, P.W.9 is the mother  of the deceased. She is therefore, an interested witness. Prudence,  as  such,  requires  that  we  look  for corroboration  of   her  testimony.   We  find   that   such corroboration is  amply provided  for both  by P.W.8 and Dr. Ramesh Kumar  P.W.10 who  had performed  the Autopsy  on the dead body. Both the Trial Court and the High Court committed no error  in relying  upon  her  testimony  which  has  been corroborated by  other evidence on the record to convict the appellants. The  appreciation of evidence by both the courts below is  proper and  we have  not been  persuaded to take a different view.  Merely because,  10 other  persons named by her  as   accused  were  acquitted,  would  not  render  her testimony as  wholly suspect because falsus in uno falsus in omnibus is  not rule  of law  accepted by the courts in this country. That  apart, we find that the High Court has opined that since  the testimony of P.W.9 had not been supported by the medical evidence in so far as the injuries attributed to the other 10 accused is concerned, therefore, the benefit of doubt was  required to  be  given  to  them  and  they  were acquitted.      Learned counsel  for the appellants then submitted that the conviction  of the  appellants by  the courts  below for offences under  sections 148  and 302/149  I.P.C, cannot  be sustained. Indeed,  according to  the positive  case of  the prosecution,  all   the  13   arraigned  accused   were  the miscreants. With  the acquittal  of 10  of them  (two by the Trial Court  and eight by the High Court), the conviction of



the remaining three under sections 148 and 302/149 I.P.C. is not permissible  as the  assembly of three only would not be an unlawful  assembly within  the  meaning  of  section  141 I.P.C. The  opinion of  the  High  Court  that  these  three appellants formed  an unlawful  assembly  with  some  "other unknown persons",  is based  on no evidence as it is not the prosecution case  that besides  the 13  named persons, there was any  other ’unknown’  person also  who  had  shared  the common object  with the appellants for committing the murder of Mohan  Lal. The  High Court  was, therefore,  not legally justified in  convicting the  appellants under  sections 148 and 302/149 I.P.C. However, we find that the manner in which the  incident   took  place   clearly  indicates   that  the appellants had shared the common intention of committing the murder of  Mohan Lal. They would therefore be liable for the said murder  with the aid of section 34 I.P.C. We may notice here that  these three  appellants are the ones who had been specifically named  by P.W.9   to  have, assaulted  deceased Mohan Lal.  All the  three were together at the scene of the crime as  deposed to  by P.W.8  also. The  evidence of P.W.9 that Jivan  Lal and Halkoi had fired upon the deceased while Dashrath had  caused an injury on him with a farsa, has been found established from the medical evidence of P.W.10. Thus, there is  no manner  of doubt  that the three appellants did share the  common intention  of committing  murder of  Mohan lal. The appellants alongwith others as already noticed, had been charred  the said  murder of  sharing the common object with the  aid of  section 149  I.P.C. No  prejudice has been shown to have been accused to the appellants for not framing a distinct  charge with  the aid  of section  34  I.P.C,  as intention which  is a  question of  fact, has to be gathered from the  evidence and  the evidence  on the record’ clearly establishes  that   the  appellants  did  share  the  common intention of  committing the  murder of Mohan Lal. In Dhanna etc. vs.  State of  Madhya Pradesh  ( JT  1996(6)  SC  652), Thomas, J  speaking for  the bench,  while  dealing  with  a similar aspect,  after referring  to a catena of authorities observed:      "legal position  on this  aspect remained uncertain for time after this court rendered a decision in Nanak Chand vs. The State  of Punjab,  1988 (1)  SCR 1201. But the doubt was cleared by  a constitution  bench of  this Court  in  Willie Slaney vs.  State of M.P., air 1956 SC 116, where this Court observed at para 86, thus:      "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  he  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."      It is  therefore, open to the court to take recourse to section  34   I.P.C.  even  if  the  said  section  was  not specifically mentioned in the charge and instead section 149 I.P.C. has  been included.  Of course  a  finding  that  the assailant concerned  had a  common intention  with the other



accused necessary  for resorting to such a course. This view was followed  by this  court in  later decisions  also.(Amar Singh vs.  State of  Haryana, AIR  1973 SC 2221, Bhoor Singh and Anr.  vs. State  of Punjab, AIR 1974 SC 1256). The first submission of  the learned  counsel for the appellant has no merit."      The view  expressed above  lends support  to  the  view taken by  us. Under the circumstances, the conviction of the appellants is  altered from  under section 302/149 I.P.C. to the one  under section  302/34 I.P.C.  while maintaining the sentence of  life imprisonment.  The conviction and sentence of the  appellants for  the offence  under section  146  IPC however  set   aside,  but  in  all  other  respects,  their conviction and  sentence is  maintained. As  a result of the above discussion, except for the alteration made above, this appeal fails and is hereby dismissed.      The appellants  are on  bail. Their  bail  bonds  shall stand cancelled. They shall be taken into custody to undergo the remaining part of the sentence.