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CASE NO.: Appeal (crl.)  924 of 2001

PETITIONER: Janak Singh and Anr.                                             

RESPONDENT: State of Uttar Pradesh                                   

DATE OF JUDGMENT: 19/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

The appellants were convicted for offences punishable  under Section 302 read with Section 34 of the Indian Penal  Code 1860 (in short the ’IPC’) and sentenced to undergo life  imprisonment by the Trial Court. They did not get any relief  from the Allahabad High Court which by the impugned judgment  upheld the conviction and sentence.

The prosecution version as unfolded during trial is as  follows:

After death of Durga Singh, each of his three sons  became owner of about 30 bighas of land.  One of them,  Khetrapal (hereinafter referred to as the ’deceased’) was  issueless. Earlier Khetrapal used to reside with accused  Janak Singh and the latter used to cultivate the land which  fell to share of Khetrapal also. But about a year or 1-1/2  years prior to the incident in question, Khetrapal started  living with Bhuri Singh (PW-1).  The land of Khetrapal  Singh, which was earlier being cultivated by Janak Singh  came into the possession of Bhuri Singh.  This was to the  disliking of accused Janak Singh. Khetrapal wanted to  execute a will in favour of Bhuri Singh.  On the date of  incident, i.e. 16.10.1979 at about 10 a.m., Khetrapal along  with Bhuri Singh (PW-1) and Surjeet Singh (PW-7) were  proceeding to Etmadpur Tehsil for execution of the Will and  when they reached near the pit, the accused Janak Singh  armed with a country made pistol and accused Sarvesh with a  gun arrived there and enquired from Khetrapal whether he was  going to execute a will in favour of Bhuri Singh and when  Khetrapal replied in affirmative, Janak Singh told that they  would not allow him to do so. Thereafter both accused Janak  Singh and Sarvesh fired upon Khetrapal who fell down on the  ground on receiving gunshot injuries. When Bhuri Singh and  Surjeet Singh (PW-7) tried to save Khetrapal, they were also  fired upon by the accused persons and they also sustained  fire arm injuries.  When deceased Khetrapal fell down on the  ground accused Sarvesh fired at Khetrapal from his gun,  resulting in Khetrapal’s instantaneous death. Bhuri Singh  (PW-1) then lodged the first information report, which was  ascribed by Ram Singh at police station Etmadpur on the same  day at 1.30 p.m., the distance of police station being 4  miles from the place of occurrence.  On the basis of the  written report, chik First Information Report was prepared

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by the Head Moharrir, Bihari Ji Yadav and the case was  registered in the General Diary. The Station Officer Mahabir  Singh took up investigation and interrogated Bhuri Singh and  Surjeet Singh at the police station itself and sent both of  them to hospital for medical examination with constable  Lajja Ram. The investigation was undertaken and on  completion thereof charge sheet was placed and accused  persons faced trial. To substantiate its accusations the  prosecution examined 8 witnesses.  Though PWs 1 and 7 were  stated to be eyewitnesses who had sustained injuries during  the occurrence, PW-7 resiled from the statement given during  investigation. So, the prosecution case rested on the  testimony of PW-1 the injured eyewitness. The Trial Court  found that his evidence was credible and cogent and  conviction was made as noted above.

The main stand of the accused persons before the High  Court was that evidence of PW-1 did not inspire confidence  as it was at a great variance with the medical evidence.   Therefore, he being an interested person who would be  beneficiary if the accused persons are convicted, without  corroboration his evidence should not be acted upon.  The  specific plea regarding the variation of PW-1’s evidence  vis-a-vis medical evidence was with reference to distance.  According to the doctor, the gun shot which caused injury  was fired from a distance of about 3-4 ft.  According to PW- 1, the distance was about 20-25 ft. The Trial Court noticed  that PW-1 was a person who even did not know how to sign and  gave thumb impression.  His perception of distance being  that of a layman, no undue importance should be attached to  the estimated distance. Similar plea raised before the High  Court also did not find acceptance.

In support of the appeal, Mr. U.R. Lalit, learned  senior counsel, submitted that PW-1’s evidence is not  credible and cogent.  The High Court should not have tried  to lightly brush aside the inconsistency clearly noticeable  between his evidence and that of the doctor who stated that  the injuries found in the body of the deceased could be  caused if gun shot was done from a short distance. Further,  there was no effort made to seize the gun allegedly used by  A-2. That would have shown whether the injuries sustained  could have been caused by the gun allegedly used by the  accused persons. There was no injury on the backside and the  only injury noticed on PW-1 was near the eyebrow.  It was  submitted that Section 34 IPC has no application.   

In response, learned counsel for the State supported  the judgments and submitted that concurrent findings  recorded by the Trial Court and the High Court on analysing  the evidence should not be disturbed.   

We shall first deal with the plea regarding the alleged  inconsistency between the eyewitness version and the medical  evidence as to the distance from which the gun was fired.   Where direct evidence of the eyewitness is that the accused  committed the murder by firing a gun some inconsistency  relating to distance based on medical opinion offered would  be of no significance whatsoever. (See Karnail Singh and  Others v. The State of Punjab (AIR 1971 SC 2119). The view  in Karnail Singh’s case (supra) was also reiterated in State  of Uttar Pradesh v. Sughar Singh and Others. (AIR 1978 SC  191).  

Section 34 has been enacted on the principle of joint

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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  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

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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 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, and seems to have been rightly and properly  applied also.  

Though the evidence of PW-1 was assailed on the ground  that he is the beneficiary if accused persons are convicted,  we find he had sustained injuries. His evidence was  carefully analysed by the courts below and we do not find  any noticeable discrepancy in his evidence to discard it.  The judgments of the Trial Court and the High Court are  well-reasoned with conclusions and finding recorded therein  supported by ample, concrete and relevant evidence and  consequently the conviction suffers from no infirmity to  warrant any interference.  It is not a fit case where  jurisdiction under Article 136 of the Constitution of India   needs to be exercised.  The appeal is dismissed.  The  accused persons who are on bail are directed to surrender to  custody forthwith to serve remainder of sentence.