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CASE NO.: Appeal (crl.)  827 of 2004

PETITIONER: Hari Ram

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 09/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP (CRL) 4467/2003)

ARIJIT PASAYAT, J.

       Leave granted.

                        Appellant was convicted for offence punishable under Section 302  read with Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’) and  was sentenced to undergo imprisonment for life by learned Additional  District and Sessions Judge, Bareilly. Such conviction and sentence were  confirmed by the impugned judgment of the Allahabad High Court.          The prosecution version in a nutshell is as follows:

       Kundan Lal (hereinafter referred to as ’deceased’) was resident of  village Siraura in district Bareilly, was real brother of Gendan Lal, the father  of the appellant Hari Ram and co-accsued Paramanand. Gendan Lal had  another son Hardwari.  Deceased had no male issue and had only one  daughter named Smt. Nanhi, who was married to Ajudhia (P.W.1). Deceased  owned about 34 Bighas agricultural land, which was jointly recorded in his  name and in the name of Gendan Lal, but each of them had got separated  their share by mutual agreement.  Deceased had given his land on crop share  basis. Since deceased had no male issue, the appellant and co-accused  Parmanand wanted to take his land and had also threatened him that in case  he did not transfer his land in their favour, they would kill him.  On 1.4.1980  at about 12.30 P.M. Parmanand again threatened deceased to transfer his  land in his favour otherwise he would kill him.  Deceased had lodged report  of the said incident at Police Station-Bhojipura.

       Apprehending danger to his life at village Sirura deceased had come  to his daughter’s house at village Ashpur and was residing there after  1.4.1980.  After about a month Gendan Lal came to the deceased at village  Ashpur and apologized for mistake of his sons and asked him to go to his  village, but deceased refused to do so.  Gendan Lal then asked him to give  his land to him on crop share basis. Deceased agreed to it and gave his land  to Gendan Lal.  Thereafter, Gendan Lal had sent wheat of his share to  deceased.

       On 12.11.1980 i.e. a day before the date of occurrence of this case,  Hardwari, brother of the appellant came to deceased at village Ashpur at  about 10.00 A.M. and asked him to go to his house to take his share of  paddy. Deceased agreed to it and told that he would come next day. On  13.11.1980 at about 8.00 A.M. deceased along with Ajudhia (P.W.1) and

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Mangli (P.W.2) started for village Siraura in a bullock cart and they reached  at the Chaupal of appellant and Paramanand who asked deceased to go to  Khalihan to take the paddy. Deceased proceeded to Khalihan along with  appellant and Parmanand as well as Ajudhia (P.W.1) and Mangali (P.W.2).  When they reached at a distance of about one furlong towards west of the  village abadi in between Jwar Arhar and Jwar Patsan appellant whipped out  a country made pistol from his waist and pointing towards Ajudhia (P.W.1)  and Mangali (P.W.2) asked them to go back.  Due to fear Ajudhia and  Mangali receded back about 8 to 10 paces.  Appellant stopped deceased.  Then Parmanand whipped out a sickle from his waist and inflicted injuries  on his abdomen.  When Ajudhia (P.W.1) and Mangli (P.W.2) tried to raise  alarm, appellant again threatened them on the point of pistol that they should  not raise alarm.  Deceased fell down and died on the spot.  Ajudhia (P.W.1)  came to Pradhan of the village and narrated the entire incident.  Village  people also assembled there.  Thereafter they asked him to lodge report.  Ajudhia (P.W.1) got prepared the report from one Niranjan and lodged the  same at Police Station Bhojipura at 1.00 P.M.          Chik FIR was prepared by Head constable Mandan Mohan Chaubey,  who made an endorsement of the same at G.D. report and registered a case  under Section 302 I.P.C. against both Parmanand and Hari Ram.

       A charge-sheet was placed and they faced trial. The prosecution  mainly relied on the evidence of P.Ws. 1 & 2 who were stated to be  eyewitnesses. They were found reliable, credible and their version was held  to be cogent.  Accused Parmanand was found guilty of offence punishable  under Section 302 IPC while appellant was found guilty of offence  punishable under Section 302 read with Section 34 IPC. The trial Court’s  judgment was affirmed by a Division Bench of the Allahabad High Court by  the impugned judgment.

       In support of the appeal learned counsel for the appellant submitted  that the background scenario as projected by the prosecution does not show  that the appellant had any role to play in the alleged commission of offence  and, therefore, Section 34 could not be applied. It was submitted that P.Ws.  1 and 2 were related to the deceased and were not independent witnesses.

       Learned counsel for the State supported the judgments of the Courts  below and submitted that the accusations have been fully established and  Section 34 IPC has been rightly applied.   

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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       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 show some overt act on the part of the  accused.

       The above position was highlighted recently Anil Sharma and Others  v. State of Jharkhand   [2004 (5) SCC 679].    

Section 34 IPC has clear application to the facts of the case and has  been rightly applied.  

       The plea that there is no independent witness is of no consequence.  

We shall first 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.

       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

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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."

       The above decision has since been followed in Guli Chand and Ors.  v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State  of Madras (AIR 1957 SC 614) was also relied upon.

       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 \026 ’Rameshwar v.  State of Rajasthan’ (AIR 1952 SC 54 at p.59). We find,  however, that it unfortunately still persists, if not in the  judgments of the Courts, at any rate in the arguments of  counsel."

       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."

       As observed by this Court in State of Rajasthan v. Teja Ram and Ors.  (AIR 1999 SC 1776) the over-insistence on witnesses having no relation  with the victims often results in criminal justice going away. When any  incident happens in a dwelling house or nearby the most natural witnesses  would be the inmates of that house. It would be unpragmatic to ignore such  natural witnesses and insist on outsiders who would not have even seen any  thing. If the Court has discerned from the evidence or even from the  investigation records that some other independent person has witnessed any  event connecting the incident in question then there is justification for  making adverse comments against non-examination of such person as  prosecution witness. Otherwise, merely on surmises the Court should not  castigate a prosecution for not examining other persons of the locality as  prosecution witnesses. Prosecution can be expected to examine only those  who have witnessed the events and not those who have not seen it though

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the neighbourhood may be replete with other residents also.  (See Sucha  Singh and Anr. v. State of Punjab (2003 (7) SCC 643)

Appeal is without merit and deserves dismissal which we direct.