REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NOs. 1262-64     OF 2004   

State of U.P. ….Appellant

Versus

Atul Singh etc.etc. ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of  

the  Allahabad  High  Court  directing  acquittal  of  the  respondents.  

Respondent  Sanjay  Vishwakarma  was  convicted  for  offence  punishable  

under  Section  302  of  the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  

whereas  the  other  two accused persons  were  tried  and convicted  for  the  

offence punishable under Section 302 read with Section 34 IPC.  

2. Learned  Additional  Sessions  Judge,  Basti  had  convicted  the  

respondents who preferred three separate appeals before the High Court.  By  

the impugned judgment the High Court directed their acquittal.

3. Prosecution version in a nutshell is as follows:

On 21.11.1998 Radhey Shyam Pandey  was at his house  situated at  

Avas  Vikas  Colony  District  Basti  and  his  son  Ajay  Kumar  alias  Pintu  

returned back home from the city and told him that a scuffle took place  

between him on one hand and Sanjay Vishwakarma, Atul Singh and Brij  

Kishore Singh alias Dimple on the other in front of A P N Degree College;  

and at  that  time  he  was  accompanied  by  Vikas  Singh and  Sunil  Kumar  

Verma and that his opponents were in search of him in order to kill him.  

Then Radhey Shyam Pandey along with his son Ajay Kumar alias Pintu  

accompanied by Vikas Singh and Sunil Kumar went from his house in order  

to make a complaint to the principal of APN Degree College. When they  

reached near the PCO in the pavement leading to the main road accused  

Sanjay  Vishwakarma,  Brij  Kishore  Singh  alias  Dimple  and  Atu1  Singh  

sighting Ajay Kumar exhorted that  he should be killed.  Thereupon,  Ajay  

Kumar intended to run away by turning, but Sanjay Vishwakarma fired at  

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him with country made pistol and on receiving firearm injury Ajay Kumar  

fell down and all the three miscreants ran away on the motor cycle parked  

nearby. At that very time one Dina Nath Pandey and Udai Shankar Shukla  

reached there and tried to catch hold of the miscreants but they succeeded in  

making their  escape good. Immediately  thereafter  Radhey Shyam Pandey  

and his wife Smt Anirudh Kumari took their injured son Ajay Kumar in a  

Jeep  to  the  District  Hospital,  Basti.  But  by  the  time  they  reached  the  

Hospital, injured Ajay Kumar succumbed to fatal injuries `sustained by him  

in the said incident.  Then Radhey Shyam Pandey,  father of the deceased  

went to the Police station Basti Kotwali, District Basti and lodged an FIR of  

the  occurrence  with  the  Police  there  at  about  12.30  p.m.  The  Police  

registered a crime against the accused under section 302 IPC and started the  

investigation. After completing the investigation the Police submitted charge  

sheet against the accused accordingly.

As accused pleaded innocence, trial was held.

  Prosecution  examined  eleven  witnesses  to  further  its  case.   The  

respondents  examined  three  witnesses  to  substantiate  their  claim  of  

innocence.  The trial court placed reliance on the evidence of Radhey Shyam  

Pandey (PW1) who was an eye witness and directed conviction.   

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In appeal the High Court primarily relied on four circumstances to  

direct acquittal.

(1) The  presence  of  Radhey  Shyam  Pandey  (PW1)  was  not  

established.  If he was really an eye witness then in the hospital records the  

name of his wife Anirudh Kumari could not have been shown as the persons  

who  brought  the  deceased  to  the  hospital.  Being  an  advocate,  he  was  

expected to be at his place of practice and not at home. (2) As he claimed  

that he was going to meet the principal at a distance of 1½ K.M., he could  

not have needed a rickshaw for going to the college.  Deceased was not a  

student  of  APN Degree  College  and  therefore  there  was  no  question  of  

making a grievance before the principal.  (3) The site plan did not show the  

place from where he allegedly saw the occurrence or the place from where  

the shot was allegedly fired.  (4) In the inquest report name of the accused,  

the nature of the weapon and the name of the assailants were not specifically  

mentioned.  With these findings the direct acquittal was directed.

4. In support of the appeal learned counsel for the appellant stated that  

the reasonings indicated by the High Court to say the least  are based on  

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surmises and conjectures.  The law relating to the particulars to be indicated  

in the inquest report and the evidentiary value of the site plan have been  

completely lost sight of.  The conclusions are contrary to the evidence on  

record.   It  was  specifically  stated  by  PW1  that  because  the  date  of  

occurrence was on Saturday and there was a strike in the court, this aspect  

has been completely lost  sight  of.   The mother  of the deceased had also  

accompanied PW1 to the hospital and merely because her name is stated, it  

cannot be a ground to doubt the presence of PW1 at the spot of occurrence.

5. Learned counsel  for the respondent-Sanjay submitted that  the High  

Court  has  analysed  the  evidence.   The  inherent  inconsistencies  in  the  

evidence of PW1 and the relevant features which clearly established that he  

could not have been an eye witness. In the aforesaid position the impugned  

judgment does not warrant interference.

6. Learned counsel appearing for Dimple alias Brij Kishore Singh and  

Atul  Singh  submitted  that  these  accused  persons  were  convicted  by  

application of Section 34 IPC.  The High Court has noted as to how Section  

34 has no application to the facts of the case.   

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7. We  find  ample  substance  in  the  plea  of  learned  counsel  for  the  

appellant that the conclusions of the High Court are based on surmises and  

conjectures  and  hypothesis.   Mere  non-mention  of  the  names  of  the  

assailants  or  the nature of the weapon in the inquest  report,  cannot be a  

ground to discard the evidentiary value of PW1’s evidence.

8. Merely because the eye-witnesses are family members their evidence  

cannot per se be discarded. When there is an allegation of interestedness, the  

same  has  to  be  established.   Mere  statement  that  being  relatives  of  the  

deceased they are likely to falsely implicate the accused cannot be a ground  

to discard the evidence which is otherwise cogent and credible.  We shall  

also deal with the contention regarding interestedness of the witnesses for  

furthering the  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.

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9. 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  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.”

10. 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.

11. 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  

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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  –  ‘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.”

12. 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.”

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13. To the same effect is the decisions in  State of Punjab v.  Jagir Singh  

(AIR 1973 SC 2407),  Lehna v.  State of Haryana (2002 (3) SCC 76) and  

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).  

14. The  above  position  was  also  highlighted  in  Babulal  Bhagwan  

Khandare  and  Anr.  v.  State  of  Maharashtra [2005(10)  SCC 404]  and in  

Salim Saheb v. State of M.P.  (2007(1) SCC 699).  

15. So  far  as  the  non-mention  of  the  name  of  PW1  who  was  

accompanying  the  deceased  to  the  hospital  aspect  is  concerned,  it  is  

interesting that defence witness A.K. Singh (DW1) the Chief Pharmacist has  

clearly stated in his cross examination by the prosecution that in case an  

injured is accompanied by several persons to the hospital, only one’s name  

is recorded who is most close to the injured.  He has also stated that besides  

his mother and others may have accompanied the deceased to the hospital.  

The  presumptuous  conclusion  that  merely  because  the  name  of  the  

deceased’s mother was recorded in the medical records, PW1’s presence is  

ruled out is indefensible.  Similarly PW1 has categorically stated that he did  

not go to Court because it was a Saturday and the lawyers were on strike for  

a particular reason.  There was no cross examination even on this aspect.  

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The High Court’s  conclusion  that  he was expected to  be at  the place of  

practice  on  the  face  of  this  stand  shows  non  application  of  mind.   The  

evidence of PW1 is credible, cogent and, therefore, the acquittal of Sanjay  

Vishvakarma as recorded by the High Court cannot be sustained and is set  

aside.  So far as the other two persons are concerned, the High Court after  

analyzing the evidence of PW1 has categorically held that Section 34 has no  

application.

Section  34  has  been  enacted  on  the  principle  of  joint  liability  in  the  

commission 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  

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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.

16. 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  commission  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  

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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.

17. In the instant case, the High Court has rightly held that the evidence is  

not sufficient to bring in application of Section 34 IPC.  Therefore while  

allowing the appeal qua Sanjay Vishvakarma, the appeal is dismissed for the  

other  two  accused  respondents.   Sanjay  Vishvakarma  shall  surrender  to  

custody forthwith to serve the remainder of sentence.

……………………..…………J. (Dr. ARIJIT PASAYAT)

…………………………..……..J (ASOK KUMAR GANGULY)

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New Delhi, May 08, 2009   

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