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Tuesday, January 10, 2017

As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith. 37. Consequently, Criminal Appeal No. 1452 of 2010 is dismissed and Criminal Appeal No. 1448 of 2010 is disposed of treating the appellant- Vijendra Singh as a juvenile and directions issued in that regard as stated hereinbefore.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  1448 OF 2010


Vijendra Singh                               …Appellant(s)

                                Versus



State of Uttar Pradesh                …Respondent(s)

                                    WITH


                      CRIMINAL APPEAL NO. 1452 OF 2010


Mahendra Singh                        …Appellant(s)

                                   Versus



State of Uttar Pradesh                …Respondent(s)



                               J U D G M E N T

Dipak Misra, J.



      Present appeals, by special leave, call in question the  defensibility
of the judgment of conviction and the order  of  sentence  dated  13.05.2009
passed by the High Court of Judicature at Allahabad in Criminal  Appeal  No.
1019 of 1981 whereby the Division Bench of the High Court has confirmed  the
judgment and order passed by  the  learned  IV  Additional  Sessions  Judge,
Meerut in Sessions Trial No. 308 of 1979  whereunder  the  appellants  along
with  two   others   stood   convicted   under   Section   302   read   with
Section 34 of the Indian Penal Code (IPC) and visited with the  sentence  of
life imprisonment.
2.    Filtering the unnecessary details, the facts which  are  necessary  to
be adumbrated for the adjudication of the instant  appeals  are  that  there
was enmity between the accused, Dharam Pal and his family on  the  one  side
and Charan Singh,  PW-1, on the other.  Charan Singh,  PW-1,  Gajpal,  PW-2,
Tedha, PW-3  and  Nepal  Singh  belong  to  village  Dastoi,  to  which  the
deceased, Badan Pal, the nephew of Charan  Singh  as  well  as  the  accused
persons belong. As the prosecution story further unfurls, sometime prior  to
the occurrence,  Gaje  Singh,  brother  of  the  accused,  Dharam  Pal,  was
murdered and Charan Singh, PW-1, along with others had faced trial  for  his
murder and eventually got acquitted.  The occurrence leading to  the  murder
of Badan Pal took place in the evening hours of 26.03.1979.  Badan  Pal  was
a student and he used to stay overnight at his tube-well which  had  a  shed
in the jungle of village Sarva.  On the date of occurrence, he  was  at  the
aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in  the  fateful  evening
while carrying the meals for Badan Pal,  on their way, met Tedha, PW-3,  who
wanted to irrigate his fields from the aforesaid  tube-well.   All  of  them
reached near the said tube-well about 7.30 p.m. when they  heard  the  sound
of a gun fire from inside the “kotha” (shed) of the  said  tube-well.   They
reached the place without loss of any time and noticed  that  all  the  four
accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came  out  of
that “kotha”.  Dhani Ram and Dharam Pal carried pistols, Vijendra was  armed
with a ballam and Mahendra carried a lathi.  On seeing them,  they  took  to
their heels. After they reached the place, they found Badan Pal  lying  dead
with bleeding  wounds.   The  aforesaid  witnesses  identified  the  accused
persons in the light of the electric bulb fixed on the  roof  of  the  tube-
well as well as in  the  torch  light.   A  report  of  the  occurrence  was
prepared by Devendra Singh with the assistance of Charan  Singh,  PW-1,  and
was filed at Police Station Kharkhauda.  After the criminal law was  set  in
motion, the investigation was conducted by S.I.  Rajveer  Singh,  PW-8,  who
after recording the statements of some of the witnesses  under  Section  161
CrPC between 6 a.m. to 8 a.m. on the next day, prepared the  panchanama  and
the sketch map of the spot and collected blood stained and  unstained  earth
as well as two cartridges.   These were sealed on  the  spot  and  the  dead
body  was  sent  for  postmortem.  On  29.03.1979,  the  investigation   was
transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that  all
the accused persons except Dhani Ram had surrendered before  the  Court  and
had been sent to custody.  Dhani Ram was arrested by  S.I.  V.P.  Saxena  at
Meerut on 19.04.1979.     Eventually  after  concluding  the  investigation,
charge sheet was laid against  the  accused  persons  before  the  concerned
Magistrate.
3.    After the matter was committed to the Court of Session,  charges  were
framed under Section 302 read  with  Section  34  IPC  against  the  accused
persons  on  10.01.1980.   The  accused  persons  abjured  their  guilt  and
intended to face trial. The prosecution in order to bring home  the  charges
examined 11 witnesses and marked certain  documents  as  exhibits.   Defence
chose not to adduce any evidence.
4.    The trial court evaluating the ocular  and  the  documentary  evidence
brought on record found the accused  person  guilty  of  the  offence  under
Section 302 read with Section 34 IPC and sentenced them to  suffer  rigorous
imprisonment for life.
5.    The conviction and sentence was challenged before the  High  Court  by
all the four accused  persons.   One  of  the  accused,  namely,  Dhani  Ram
expired during the pendency of the appeal before  the  High  Court  and  the
appeal qua Dhani Ram stood abated.   As  far  as  the  other  three  accused
persons, namely, Dharam Pal, Mahendra  and  Vijendra,  were  concerned,  the
High Court concurred  with  the  view  expressed  by  the  trial  court  and
resultantly dismissed their appeal.  Be it stated here that Dharam  Pal  has
also expired, as has been stated by the learned counsel for  the  appellant.
Be that as it may, there is no appeal at  his  instance.   The  present  two
appeals have been preferred by the two appellants who are aggrieved  by  the
affirmation of the judgment of conviction and order of sentence by the  High
Court.
6.    We have heard Mr. Mukesh K. Giri, learned counsel for  the  appellants
and Mr. R.K. Dash, learned senior counsel for the State of U.P.
7.    Assailing the conviction, learned counsel for the  appellants  submits
that in  the  present  case,  there  is  no  circumstance  to  infer  common
intention and as there has been no meeting of minds, the  conviction  cannot
be supported in aid of Section 34 IPC.  It is further submitted by him  that
the conviction is based on the testimonies of  PWs-1  to  3,  though  Charan
Singh, the author of the FIR, who is not an eye  witness;  that  apart,  the
evidence of PW-2, Gajpal, does not inspire  confidence  being  replete  with
major contradictions, improvements  and  embellishments. It  is  urged  that
PW-3, Tedda, is a chance witness inasmuch as PW-1 has  himself  accepted  in
his  testimony  that  Tedda’s  going  to  the  tube-well  was  not  regular.
According to                Mr. Giri, the testimony  of  all  the  principal
prosecution witnesses, namely, PWs-1 to 3 are not  worthy  of  credence  and
they do not inspire confidence and hence, the conviction cannot  be  founded
on their depositions which are definitely  not  beyond  reproach.   In  this
regard he would further urge that they are all related to  each  other  and,
therefore,  their   testimony   has   to   be   scrutinized   with   immense
circumspection and when such a scrutiny is  made,  they  do  not  reach  the
pedestal  of  unimpeachability  and  hence,  on  that  score  alone,   their
testimonies have to be discarded.  Learned counsel would contend that  Nepal
Singh, who is stated  to  have  accompanied  PW-2  and  PW-3  has  not  been
examined and Ram Lal and Kasa who have been stated to have  arrived  at  the
tube-well, as per the testimony of PW-2, have also  not  been  examined  and
they  are  independent  witnesses  and  their  non-examination  creates   an
incurable dent in the version  of  the  prosecution.   As  per  the  medical
evidence there is only one gunshot injury attributed  to  pistol  supposedly
in the hands of Dhani Ram and Dharam Pal (both since dead) and none  of  the
injuries on the person of the deceased could  be  attributed  to  lathi  and
ballam which were carried by the present  appellants  and,  therefore,  they
cannot be made liable for the offence. Referring to the testimony  of  PW-6,
Dr. M.C. Varshney, it is put forth that the said  witness  has  stated  that
there was no blackening and scorching at the gunshot wound and  that  belies
the prosecution version that the deceased died of gunshot  injury.   Lastly,
it is canvassed that Vijendra Singh was a juvenile on the date  of  incident
and he has remained in custody more than the period that is  required  of  a
juvenile to remain at juvenile home.  To buttress his  submissions,  learned
counsel for the appellants has drawn inspiration from Pratap Singh v.  State
of Jharkhand & Ors.[1], Hari Ram v. State of Rajasthan and  Anr.[2],  Suresh
Sakharam Nangare v. State of Maharashtra[3], Jai Bhagwan and Ors.  v.  State
of Haryana[4] and Bijendra Bhagat v. State of Uttarakahand[5].
8.    Supporting the judgment of conviction of  the  trial  court  that  has
received the stamp of approval by the High Court, Mr. Dash,  learned  senior
counsel  submitted  that  the  accused  Mahendra  Singh  has  rightly   been
convicted and sentenced with the aid of Section 34 IPC and  in  that  regard
he has placed reliance upon Mohan Singh & Anr. v.  State  of  Punjab[6]  and
Harshadsingh  Pahelvansingh  Thakore  v.  State  of  Gujarat[7].   Mr.  Dash
further submitted that non-examination of certain witnesses in the  backdrop
of the present case does not affect the prosecution version inasmuch as  the
witnesses cited by the prosecution clearly established  the  charge  against
the  accused  persons.   As  regards  the  appeal  preferred  by  appellant,
Vijendra is concerned, learned senior counsel fairly conceded to  the  claim
of juvenility  and  submitted  that  this  Court  may  levy  fine  upon  the
appellant to be paid as compensation to the family of the deceased in  terms
of law laid down in Jitendra Singh v. State of Uttar Pradesh.[8]
9.    At  the  outset,  it  is  necessary  to  mention  that  the  principal
witnesses are PW-1 to PW-3 and the trial court  as  well  as  the  appellate
court has given credence to their evidence.  PW-1, Charan Singh, the  author
of the FIR, has testified that he got the FIR of the  incident  prepared  on
the spot itself and then lodged it at Police Station Kharkhauda in the  same
night by handing  over  it  to  the  Head  Constable  Devi  Ram,  PW-4,  who
thereafter made entry in  the  general  diary.   He  has  deposed  that  the
accused Dharam Pal,  Mahendra  and  Vijendra  are  real  brothers  and  they
belonged to his own village; that about nine years ago prior to the date  of
occurrence, Gaje Singh,  real  brother  of  the  accused,  Dharam  Pal,  was
murdered for which he and Hukam Singh, real brother of  the  deceased  Badan
Pal, and others were put on trial and eventually they  were  acquitted.   He
has stated in his evidence  that  since  then  the  accused  persons  brewed
enmity against them.  It  has  also  come  out  in  his  evidence  that  the
deceased was a student of High School and used to stay in  the  kotha  where
the tube-well situate for availing the facility of electric  light  for  his
studies.  PW-2, Gajpal, cousin  of  the  deceased  Badan  Pal,  has  clearly
stated that he along with his cousin Nepal Singh left the village  at  about
7 p.m. carrying the meals for Badan Pal, who was staying  inside  the  kotha
of the aforesaid tube-well.   He  has  further  deposed  that  Tedha,  PW-3,
accompanied them and after they reached the place, they  heard  a  sound  of
gun firing from inside the kotha of the tube-well.   He has deposed that  he
has seen all the four accused persons coming out of  the  northern  side  of
the said kotha of the tube-well and he had also seen the accused  Dhani  Ram
and Dharam Pal  were  armed  with  pistols  and  the  accused  Mahendra  and
Vijendra carried lathi  and  ballam  respectively.  He  had  identified  the
accused persons because of the  electric  bulb  burning  in  the  kotha  and
further he had a torch light with him.  Though there has been roving  cross-
examination with regard to him seeing the accused persons coming out of  the
kotha, nothing has been really elicited to make his  testimony  impeachable.
PW-3, Tedha, has also  identified  the  accused  person  and  supported  the
testimony of PW-2.   That apart, the said witness has lent  support  to  the
case of the prosecution and corroborated in each necessary particulars  that
has been stated by the PW-2.  It was  contended  before  the  learned  trial
judge that PW-2 and PW-3 are extremely interested witnesses and further  PW-
3 was a chance witness.  The learned trial judge did not find any  substance
in the said contention inasmuch as there  had  been  identification  of  the
accused persons, vivid description of  the  weapons  they  carried  and  the
recovery.  Be it noted  that  though  the  pistol  was  not  recovered,  two
cartridges were recovered from the spot  of  the  occurrence.   The  learned
trial judge arrived at the opinion that the prosecution  had  been  able  to
prove the presence of the witnesses PWs 2 and 3 at the place  of  occurrence
and their version with regard to the accused persons committing  the  murder
of the deceased.  In appeal it was urged before the High  Court  that  there
was no motive on the part of  the  accused  to  commit  the  murder  of  the
deceased; that the trial court has not been circumspect in the  scrutiny  of
the evidence of PWs 2 and 3  who  were  highly  interested  witnesses;  that
there was no justification on the part of PW-2 to carry  a  torch  with  him
and, in any case, their testimony that they had  seen  the  accused  persons
was absolutely unacceptable; that the deceased had received  only  one  fire
arm injury and the appellants were armed with lathi and ballam and  had  not
assaulted the deceased and, therefore, decision by the learned  trial  judge
to convict them in aid of Section 34 IPC was totally sustainable.

10.   On a keen scrutiny of the decision of the High Court,  it  is  evident
that it repelled the submissions of the appellants on the ground  that  lack
of motive was too feeble a plea in the circumstance of  the  case  to  throw
the prosecution case overboard; that  it  has  come  in  evidence  that  the
accused persons had harboured vengeance against them after  their  acquittal
in the case where they were tried for the offence  under  Section  302  IPC;
that there was no reason why the witnesses who were close relations  of  the
deceased  would  falsely  embroil  the  accused  persons  leaving  the  real
culprits; that there is no reason to discard the testimonies of PWs 2 and  3
singularly on the ground that they are  related  witnesses,  for  they  have
stood embedded in their version and there is no inconsistency  to  discredit
them; that there is nothing unusual on the part of PW-2  to  carry  a  torch
with him; that the identification of the accused persons  by  PWs  2  and  3
with the help of electric light and torch has  been  appositely  appreciated
by the learned trial judge and there was no  reason  to  dislodge  the  said
finding; that the plea that PW-3 was a chance witness and  his  presence  at
the place of occurrence was doubtful did  not  really  commend  acceptation,
for his testimony was worthy of credence; that  nothing  tangible  could  be
elicited from the evidence of the witnesses in  cross-examination  by  which
the version could be doubted and hence, there is no infirmity or  perversity
in the finding recorded by the trial court; and that  the  trial  court  has
not erred in convicting the accused persons in aid of  Section  34  IPC.  In
this regard, the High Court further held that the said provision is  only  a
rule of evidence and does not create  a  substantive  offence.   It  further
opined that  the  evidence  of  ocular  witnesses  had   been  found  to  be
satisfactory, reliable, consistent and  credible  by  the  trial  court  and
nothing tangible could  be  elicited  from  their  evidence  in  the  cross-
examination to create any speck of doubt in their version or to treat  their
testimony as infirm or perverse.

11.   Learned counsel for the  appellants  referring  to  the  authority  in
Suresh Sakharam Nangare  (supra)  would  submit  that  the  High  Court  has
admitted in the impugned judgment that the direct proof of common  intention
is seldom available and in the present case there is  no  circumstance  that
such intention can be inferred without there being evidence  of  preconcert.
Learned counsel for the appellants further criticized the  judgment  of  the
High Court submitting that as per deposition  of  Dr.  Varshney,  PW-6,  who
conducted post mortem of the deceased body,  there  was  no  blackening,  no
scorching  present  at  the  gunshot  wound,  the  genesis  of  the   entire
prosecution case that the murder took place in kotha of  tube-well  i.e  the
gun was shot from close range deserves to be discarded.

12.   Learned counsel for the appellants would contend that  the  conviction
of the appellant Mahendra is not sustainable since none of the  injuries  on
the person of the deceased is attributable to lathi which was supposedly  in
the hand of Mahendra.  Reliance is placed by  the  learned  counsel  on  the
authority in Bijendra  Bhagat  (supra)  wherein  this  Court  acquitted  the
accused giving him the benefit of doubt stating that none  of  the  injuries
on the person of the  deceased  could  be  attributed  to  lathi  which  was
supposedly in the hands of the appellant.

13.   As is evincible, the accused-appellants have been convicted  with  the
aid of Section 34 IPC.  It has come in evidence of  PW-2  that  the  accused
Mahendra was armed with lathi and accused Vijendra Singh was  armed  with  a
ballam and they were in the company of other accused.    When  the  evidence
in its entirety is studiedly scrutinized, it clearly shows that the  accused
persons were present in  the  shed,  they  were  seen  going  away  and  the
deceased was found lying in a pool of  blood.   The  witnesses  specifically
stated about  the  weapons  being  carried  by  the  accused  persons.   The
submission is that the prosecution story rests on the gun  shot  injury  but
there is no evidence with regard to injury caused by the  lathi  or  ballam.
It is relevant to state  here  that  cartridges  from  the  spot  have  been
recovered and PW-6 Doctor who conducted the post mortem  had  found  gunshot
wound of entry eight in number in an area of 6 cm x 5 cm on the  right  side
of neck just above the clavicle and lower part of neck.  The  dimensions  of
the wound ranged from 1 cm x 0.15 cm                to 0.5 cm  x  0.5  cm  x
bone deep.  There was no blackening or scorching around the wound.  True  it
is that the doctor has stated that  there  is  no  blackening  or  scorching
around the wound, but that will not belie that the injury was not  inflicted
by the firing from the gun.  He has opined that the death  of  the  deceased
was caused by gunshot injury.

14.   The heart of the matter is whether Section 34 IPC would  be  attracted
to such a case or not.  In this regard, we may refer to certain  authorities
as to how this Court has  viewed  the  concept  of  “common  intention”  and
thereafter reflect upon how it is applicable to the case at hand.

15.   Mr. Giri has drawn our attention to paragraph 10 of the  authority  in
Jai Bhagwan (supra).  It reads as follows:-

“10. To apply Section 34 IPC apart from the fact that there  should  be  two
or more accused, two factors must be established: (i) common  intention  and
(ii) participation of the accused in the commission  of  an  offence.  If  a
common intention is proved but no overt act is attributed to the  individual
accused, Section 34 will be attracted as essentially it  involves  vicarious
liability but if participation of the accused in the crime is proved  and  a
common intention is absent, Section 34 cannot be invoked. In every case,  it
is not possible to have direct evidence of a common intention. It has to  be
inferred from the facts and circumstances of each case.”

16.   He has  also  relied  on  the  decision  in  Suresh  Sakharam  Nangare
(supra).  In the said case, the Court after  referring  to  Section  34  IPC
opined that a reading of the above provision makes it clear  that  to  apply
Section 34, apart from the fact that there should be two  or  more  accused,
two  factors  must  be  established:  (i)   common   intention,   and   (ii)
participation of the accused in the commission of  an  offence.  It  further
makes clear that  if  common  intention  is  proved  but  no  overt  act  is
attributed to the individual  accused,  Section  34  will  be  attracted  as
essentially it involves vicarious liability  but  if  participation  of  the
accused in the crime is proved and common intention is  absent,  Section  34
cannot be invoked.

17.   In the said case, the Court after analyzing the evidence  opined  that
there is no material from the side of  the  prosecution  to  show  that  the
appellant therein  had  any  common  intention  to  eliminate  the  deceased
because the only thing against the appellant therein was  that  he  used  to
associate himself with the  accused  for  smoking  ganja.  On  this  factual
score, the Court came to hold that the appellant could not be  convicted  in
aid of Section 34 IPC.

18.   In this regard, we may usefully refer to a passage from the  authority
in Pandurang and Ors. v. State of Hyderabad[9].  The  three-Judge  Bench  in
the said case adverted to the applicability and scope of Section 34 IPC  and
in that context ruled that:-

“32. … It  requires  a  pre-arranged  plan  because  before  a  man  can  be
vicariously convicted for the criminal act of another,  the  act  must  have
been done in furtherance of the common intention of them  all:  Mahbub  Shah
v. King Emperor[10].  Accordingly there must have been a  prior  meeting  of
minds. Several persons can simultaneously attack a man  and  each  can  have
the same intention, namely the intention to kill, and each can  individually
inflict a separate fatal blow and yet none would have the  common  intention
required by the section because there was no prior meeting of minds to  form
a pre-arranged plan. In a case like that, each would be individually  liable
for whatever injury he caused but none could be  vicariously  convicted  for
the act of any of the others; and if the prosecution cannot prove  that  his
separate blow was a fatal one he cannot be convicted of the  murder  however
clearly an intention to kill could be proved in  his  case:  Barendra  Kumar
Ghosh v. King Emperor[11] and Mahbub Shah v. King Emperor (supra). As  Their
Lordships say in the latter case, “the partition which divides their  bounds
is often very thin: nevertheless, the distinction is real  and  substantial,
and if overlooked will result in miscarriage of justice”.

33. The plan need  not  be  elaborate,  nor  is  a  long  interval  of  time
required. It could arise and be formed suddenly, as  for  example  when  one
man calls on bystanders to help  him  kill  a  given  individual  and  they,
either by their words or their acts, indicate their assent to him  and  join
him in the assault. There is then the necessary meeting of the minds.  There
is a pre-arranged plan however hastily formed and rudely conceived. But pre-
arrangement there must be and premeditated concert. It is not enough, as  in
the latter Privy Council case, to have the same intention  independently  of
each other, e.g., the intention to rescue  another  and,  if  necessary,  to
kill those who oppose.”

19.   And, again:-

“34. … But to say this is no more than to reproduce the ordinary rule  about
circumstantial evidence, for there is no special rule of evidence  for  this
class of case. At bottom, it is  a  question  of  fact  in  every  case  and
however similar the circumstances, facts in one case cannot  be  used  as  a
precedent to determine the conclusion on the facts in another. All  that  is
necessary is either to have direct proof  of  prior  concert,  or  proof  of
circumstances which necessarily lead to that inference, or, as we prefer  to
put  it  in  the  time-honoured  way,  “the  incriminating  facts  must   be
incompatible with the innocence of the accused and incapable of  explanation
on any other reasonable hypothesis”. (Sarkar’s Evidence, 8th Edn., p. 30).”


20.   In this context, we may refer with profit to the statement of  law  as
expounded by the Constitution Bench in Mohan Singh  (supra).   In  the  said
case, the Constitution Bench has held that Section 34 that deals with  cases
of constructive criminal liability provides that if a criminal act  is  done
by several persons in furtherance of the common intention of  all,  each  of
such person is liable for the act in the same manner as if it were  done  by
him alone.  It has been further observed that the essential  constituent  of
the vicarious criminal liability prescribed by Section 34 is  the  existence
of common intention.  The common intention in question animates the  accused
persons and if  the  said  common  intention  leads  to  commission  of  the
criminal offence charged, each of the person sharing  the  common  intention
is constructively liable for the criminal act done  by  one  of  them.   The
larger Bench dealing with the concept  of  constructive  criminal  liability
under Sections 149 and 34 IPC, expressed that just  as  the  combination  of
persons sharing the same  common  object  is  one  of  the  features  of  an
unlawful assembly, so the existence of a combination of persons sharing  the
same common intention is one of the features of Section  34.  In  some  ways
the two sections are similar and  in  some  cases  they  may  overlap.   The
common intention which is the basis of Section  34  is  different  from  the
common object  which  is  the  basis  of  the  composition  of  an  unlawful
assembly.  Common  intention  denotes  action-in-concert   and   necessarily
postulates the existence of a prearranged plan and that must  mean  a  prior
meeting of minds. It would be noticed that cases to which Section 34 can  be
applied disclose an element of participation in action on the  part  of  all
the  accused  persons.  The  acts  may  be  different;  may  vary  in  their
character,  but  they  are  all  actuated  by  the  same  common  intention.
Thereafter, the Court held:-

“It is now well-settled that the common intention required by Section 34  is
different from  the  same  intention  or  similar  intention.  As  has  been
observed by the Privy Council in Mahbub Shah v. King-Emperor (supra)  common
intention within the meaning of Section 34 implies a pre-arranged plan,  and
to convict the accused of an offence  applying  the  section  it  should  be
proved that the criminal act was  done  in  concert  pursuant  to  the  pre-
arranged plan and that the inference of common  intention  should  never  be
reached unless it is a necessary inference deducible from the  circumstances
of the case.”


21.   In Harshadsingh Pahelvansingh Thakore (supra),  a  three-Judge  Bench,
while dealing with constructive liability under Section  34  IPC  has  ruled
thus:-

“Section 34 IPC fixing constructive liability conclusively silences  such  a
refined plea of extrication. (See Amir Hussain v. State of  U.P.[12];  Maina
Singh v. State of Rajasthan.[13]) Lord Sumner’s classic legal shorthand  for
constructive criminal liability, expressed in the Miltonic verse “They  also
serve who only stand and wait” a fortiori embraces cases  of  common  intent
instantly formed, triggering a plurality of persons  into  an  adventure  in
criminality, some hitting, some missing, some splitting hostile heads,  some
spilling drops of blood. Guilt goes with community of  intent  coupled  with
participatory presence or operation.  No  finer  juristic  niceties  can  be
pressed into service to nullify or jettison the plain  punitive  purpose  of
the Penal Code.”


22.   In Lallan Rai  and Ors. v. State of Bihar[14] the Court  relying  upon
the principle laid down in Barendra Kumar Ghosh (supra) has ruled  that  the
essence of Section 34 is simultaneous  consensus  of  the  mind  of  persons
participating in the criminal action to bring about a particular result.

23.   In Goudappa  and  Ors.  v.   State  of  Karnataka[15]  the  Court  has
reiterated the principle  by  opining  that  Section  34  IPC  lays  down  a
principle of joint liability in doing a criminal  act  and  the  essence  of
that liability is to be found in the  existence  of  common  intention.  The
Court posed the question how to gather the common  intention  and  answering
the same held that the common intention  is  gathered  from  the  manner  in
which the crime has been committed, the conduct of the accused  soon  before
and after the occurrence, the  determination  and  concern  with  which  the
crime was committed, the weapon carried by the accused and from  the  nature
of the injury caused  by  one  or  some  of  them  and  for  arriving  at  a
conclusion whether the  accused  had  the  common  intention  to  commit  an
offence of which they could be  convicted,  the  totality  of  circumstances
must be taken into consideration.

24.   The aforesaid authorities make it absolutely clear that each case  has
to rest on its own facts. Whether the crime is committed in  furtherance  of
common intention or not, will depend upon the  material  brought  on  record
and the appreciation thereof in proper  perspective.   Facts  of  two  cases
cannot be regarded as similar.   Common intention can be gathered  from  the
circumstances that  are  brought  on  record  by  the  prosecution.   Common
intention can be conceived immediately or at the  time  of  offence.   Thus,
the applicability of Section 34 IPC is a question  of  fact  and  is  to  be
ascertained from the evidence brought on record.   The common  intention  to
bring about a particular result may well develop on the spot  as  between  a
number of persons, with reference to the fact of the case and  circumstances
of the  situation.  Whether  in  a  proved  situation  all  the  individuals
concerned  therein  have  developed  only   simultaneous   and   independent
intentions or whether a simultaneous  consensus  of  their  minds  to  bring
about a particular result can be said to have  been  developed  and  thereby
intended by all of them, is a question that has  to  be  determined  on  the
facts. (See :  Kirpal and Bhopal v. State of  U.P.[16]).   In  Bharwad  Mepa
Dana  and Anr. v. The State of Bombay[17], it has been held that Section  34
IPC is intended to meet a case in which it may be difficult  to  distinguish
the 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.  The principle which the Section embodies  is  participation  in  some
action  with  the  common  intention  of  committing  a  crime;  once   such
participation is established, Section 34 is at once attracted.
25.   In the case at hand, it is contended that there is  no  injury  caused
by lathi or ballam.  Absence of any injury caused by a lathi cannot  be  the
governing factor to rule out Section 34  IPC.    It  is  manifest  from  the
evidence that the  accused-appellants  had  accompanied  the  other  accused
persons who were armed with  gun  and  they  themselves  carried  lathi  and
ballam respectively.  The carrying  of  weapons,  arrival  at  a  particular
place and at the same time,  entering  into  the  shed  and  murder  of  the
deceased definitely attract the constructive liability  as  engrafted  under
Section 34 IPC.

26.   It is next contended by Mr. Giri, learned counsel for  the  appellants
that all the eyewitnesses are related to the deceased  Badan  Pal  and  they
being interested witnesses,  their  version  requires  scrutiny  with  care,
caution and circumspection and when their evidence is scanned with the  said
parameters, it does not withstand the said  test  for  which  the  case  set
forth  by  the  prosecution  gets  corroded  and  the  principle  of  beyond
reasonable doubt gets shattered.  The aforesaid submission, as we  perceive,
has no legs to stand upon, for PWs-1 to 3 have deposed in detail  about  the
previous enmity between the  parties,  their  presence   at  the  spot,  the
weapons the accused  persons  carried,  their  proximity  to  the  shed  and
establishment of the identity of all  the  four  accused.   They  have  also
testified as regards the deceased lying in a pool of  blood.   There  is  no
reason why they would implicate the  appellants  for  the  murder  of  their
relation leaving behind the real culprit.   That  apart,  nothing  has  been
elicited  in  the  cross-examination  for  which  their  testimony  can   be
discredited.  In this regard reference to a passage from   Hari Obula  Reddy
 and Ors. v. State of Andhra Pradesh[18] would be  fruitful.   In  the  said
case, a three-Judge Bench has ruled that  it  cannot  be  laid  down  as  an
invariable rule that  interested  evidence  can  never  form  the  basis  of
conviction unless corroborated to a material extent in material  particulars
by independent evidence. All that is necessary is that the evidence  of  the
interested witnesses should be subjected to careful  scrutiny  and  accepted
with caution. If on such scrutiny, the interested testimony is found  to  be
intrinsically reliable  or  inherently  probable,  it  may,  by  itself,  be
sufficient,  in  the  circumstances  of  the  particular  case,  to  base  a
conviction thereon.   It is worthy to  note  that  there  is  a  distinction
between a witness who is related and an interested witness.  A  relative  is
a natural witness.  The Court in Kartik Malhar v.  State  of  Bihar[19]  has
opined that a close relative who is a natural witness cannot be regarded  as
an interested  witness,  for  the  term  “interested”  postulates  that  the
witness must have some interest  in  having  the  accused,  somehow  or  the
other, convicted for some animus or for some other reason.
27.   Mr. Giri, learned senior counsel for the appellant has also  impressed
upon us to discard the testimony of PW-3, Tedda, on the ground that he is  a
chance witness.  According to him, his presence at the spot is doubtful  and
his evidence is not beyond suspicion.  Commenting on the argument of  chance
witness, a two-Judge Bench in Rana Pratap and Ors. v. State  of  Haryana[20]
was compelled to observe:-
“We do not understand the expression “chance  witnesses”.  Murders  are  not
committed with previous notice to witnesses, soliciting their  presence.  If
murder is committed in a dwelling  house,  the  inmates  of  the  house  are
natural witnesses. If murder is committed  in  a  brothel,  prostitutes  and
paramours are natural witnesses. If murder is committed on  a  street,  only
passersby will be witnesses. Their  evidence  cannot  be  brushed  aside  or
viewed with suspicion on the ground that they are mere  “chance  witnesses”.
The expression “chance witnesses” is borrowed  from  countries  where  every
man’s home is considered his castle and every one must have  an  explanation
for his presence elsewhere  or  in  another  man’s  castle.  It  is  a  most
unsuitable expression in a country whose people are  less  formal  and  more
casual. To discard the evidence of street hawkers and street vendors on  the
ground that they are “chance witnesses”, even where murder is  committed  in
a street, is to abandon good sense and  take  too  shallow  a  view  of  the
evidence.”

28.   Tested on the  anvil  of  the  aforesaid  observations,  there  is  no
material on record to come to  the  conclusion  that  PW-3  could  not  have
accompanied PW-2 while he was going to the shed  near  the  tube-well.  What
has been elicited in the cross-examination is that he was  not  going  daily
to the tube-well.  We cannot be oblivious of the rural milieu.   No  adverse
inference can be drawn that he was not going daily and  his  testimony  that
he had accompanied PW-2 on the fateful day should be brushed aside.  We  are
convinced that his evidence is neither doubtful nor create any suspicion  in
the mind.
29.   Thus, the real test  is  whether  the  testimony  of  PWs1  to  3  are
intrinsically reliable or not.  We have already scrutinized the same and  we
have no hesitation  in  holding  that  they  satisfy  the  test  of  careful
scrutiny and cautious approach.  They can be relied upon.
30.   The next plank of argument of Mr. Giri is that since Nepal  Singh  who
had been stated to have accompanied  PW-2 and PW-3  has  not  been  examined
and similarly, Ram Kala and Bansa who had been stated  to  have  arrived  at
the tube-well as per the testimony of PW-2,  have  not  been  examined,  the
prosecution’s version has to be  discarded,  for  it  has  deliberately  not
cited the independent  material  witnesses.    It  is  noticeable  from  the
decision of the trial court and the High Court, reliance has been placed  on
the testimony of PWs 1 to 3 and their version has been accepted.  They  have
treated PW-2 and PW-3 as natural  witnesses  who  have  testified  that  the
accused persons were leaving the place after commission of the  offence  and
they had seen them quite closely.  The contention that they were  interested
witnesses and their implication  is  due  to  inimical  disposition  towards
accused persons has not been accepted and we have concurred  with  the  said
finding. It has come out in evidence that witnesses and the accused  persons
belong to the same  village.  The  submission  of  Mr.  Giri  is  that  non-
examination Nepal Singh,  Ramlal and Kalsa is quite critical  for  the  case
of the prosecution and as put forth by him, their non-examination  crucially
affects the prosecution version and creates a sense of doubt.  According  to
Mr. Giri, Nepal Singh is a material witness.  In this regard  we  may  refer
to the authority in State of H.P. v. Gian Chand[21]   wherein  it  has  been
held that non-examination of a material witness is again not a  mathematical
formula for discarding the weight  of  the  testimony  available  on  record
howsoever natural, trustworthy and convincing  it  may  be.  The  charge  of
withholding  a  material  witness  from  the  court  levelled  against   the
prosecution  should  be  examined  in  the  background  of  the  facts   and
circumstances of  each  case  so  as  to  find  whether  the  witnesses  are
available for being examined in the court  and  were  yet  withheld  by  the
prosecution. The Court after so holding further ruled that it  is  the  duty
of the court to first assess the trustworthiness of the  evidence  available
on record and if the court  finds  the  evidence  adduced  worthy  of  being
relied on  and  deserves  acceptance,  then  non-examination  of  any  other
witnesses  available  who  could  also  have  been  examined  but  were  not
examined, does not affect the case of the prosecution.
31.   In Takhaji Hiraji v. Thakore Kubersing  Chamansing  and  Ors.[22],  it
has been held that if a material witness, who would unfold  the  genesis  of
the incident or an essential part of the prosecution case, not  convincingly
brought to fore otherwise, or where there is  a  gap  or  infirmity  in  the
prosecution case which could have been supplied or made good by examining  a
witness who though available is not examined, the prosecution  case  can  be
termed as suffering from a deficiency and withholding  of  such  a  material
witness would oblige the court to draw  an  adverse  inference  against  the
prosecution by holding that if the  witness  would  have  been  examined  it
would not have supported  the  prosecution  case.  On  the  other  hand,  if
already  overwhelming  evidence  is  available  and  examination  of   other
witnesses would only be a repetition or duplication of the evidence  already
adduced,                       non-examination of such other  witnesses  may
not be material. If the witnesses already  examined  are  reliable  and  the
testimony coming from their mouth is unimpeachable,  the  court  can  safely
act upon  it,  uninfluenced  by  the  factum  of  non-examination  of  other
witnesses.   In Dahari  and Ors.  v.  State  of  U.P[23],  while  discussing
about the non-examination of material witness, the Court expressed the  view
that when he was not the only competent witness who would  have  been  fully
capable of explaining the factual situation correctly  and  the  prosecution
case stood fully corroborated by the medical evidence and the  testimony  of
other reliable witnesses, no adverse inference could be  drawn  against  the
prosecution.  Similar view has been expressed in Manjit Singh  and  Anr.  v.
State of Punjab and Anr.[24] and Joginder Singh v. State of Haryana[25].
32.   Tested on the aforesaid  parameters,  we  are  unable  to  accept  the
submission of Mr. Giri that non-examination of Nepal  Singh  and  other  two
persons who had been referred to by PW-2 affects the prosecution version  or
creates any doubt in the mind of the Court.  We arrive at such a  conclusion
since the witnesses examined by the  prosecution  are  trustworthy  and  the
court can safely act on their testimony.  There is no justification  in  the
instant case to draw any adverse inference against the prosecution.
33.   Mr. Giri, learned counsel for the  appellants  laying  stress  on  the
absence of injury caused by lathi on the person of the  deceased  has  urged
that the appellant- Mahendra Singh cannot be convicted in aid of Section  34
IPC.  In that regard, he has commended  us  to  the  authority  in  Bijendra
Bhagat (supra).  Learned counsel has drawn inspiration from  paragraph  four
of the said decision.  The  relevant  part  of  the  said  paragraph  is  as
follows:-
“… According to the  witnesses  these  two  accused  were  also  armed  with
country-made pistols. The injuries suffered  by  the  deceased  are  incised
wounds and one firearm injury. However, none of the injuries on  the  person
of the deceased could be attributed to the lathi  which  was  supposedly  in
the hands of the appellant. Undoubtedly, three injuries  on  the  person  of
Sanjay Kumar could be caused by a hard and blunt  object.  But  having  gone
through the testimony of the witnesses and the other  materials  on  record,
the presence of the appellant and his involvement in  the  incident  clearly
appears to be doubtful. We, therefore,  deem  it  appropriate  to  give  the
appellant benefit of doubt. …”


34.   Relying on the same, it is contended by Mr. Giri that  when  there  is
no lathi blow on the person of the deceased  as  noticeable  from  the  post
mortem report, the appellant- Mahendra Singh deserves to be acquitted.   The
passage that has been commended to us has to be correctly  appreciated.   In
that case, the Court has referred to injury caused  on  the  person  of  the
deceased  and  noticed  how  the  injury  was  caused  but  the  reason  for
acquittal is that the presence of the appellant therein and his  involvement
in the incident appeared to the Court to be doubtful.  If a  person  is  not
present at the spot, the question of common intention  does  not  arise.  As
has been held in Pandurang (supra), if the common intention is  established,
an accused can be convicted.  We have already discussed the role  attributed
to the appellant- Mahendra Singh by  the  prosecution.   He  had  gone  with
other accused persons, who were carrying pistols and ballam. He himself  was
carrying a lathi. Similarly, accused-appellant Vijendra Singh  was  carrying
a ballam and accompanying others. Their intention was  to  go  to  the  shed
where the deceased was studying because  of  availability  of  the  electric
light, has been established.  Common intention  can  be  gathered  from  the
facts and circumstances and  in  the  instant  case,  the  same  is  clearly
discernable and hence, the decision in Bijendra  Bhagat  (supra)  is  of  no
assistance to the appellant.
35.   In view of the aforesaid  analysis,  we  do  not  find  any  merit  in
Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh  and  the  same
is, accordingly, dismissed.
36.   As far as appellant-Vijendra Singh is concerned, a report  was  called
for and he has been found to be a juvenile being 16 years 3 months  10  days
old on the date of offence.  The said report has gone unchallenged  and  Mr.
Dash, learned senior counsel appearing for  the  State,  has  fairly  stated
that he was a juvenile on the date of offence. Mr. Giri has commended us  to
the authority in Hari Ram (supra).   We  find  that  the  Court  relying  on
Section 7-A of the Juvenile Justice (Care and Protection of  Children)  Act,
2000 and the amendments introduced in Section 20 of  the  2000  Act  whereby
the proviso and Explanation were  added  to  Section  20  and  the  Juvenile
Justice (Care and Protection of Children) Rules, 2007,  remitted the  matter
to the Juvenile Justice Board with the  observation  that  if  he  had  been
detained for more than the maximum  period  for  which  a  juvenile  may  be
confined to a special  home,  the  Board  shall  release  him  from  custody
forthwith.  In the case at hand, as the  appellant-Vijendra  Singh  remained
in custody for more than the maximum period for which  he  could  have  been
confined to a special home, while sustaining the conviction, we release  him
from custody forthwith.
37.   Consequently, Criminal Appeal  No.  1452  of  2010  is  dismissed  and
Criminal Appeal No. 1448 of 2010 is  disposed  of  treating  the  appellant-
Vijendra Singh as a juvenile and directions issued in that regard as  stated
hereinbefore.

                                                                 …………………….J.
                                                               [Dipak Misra]



                                                              …….…………………….J.
                                                     [Rohinton Fali Nariman]

New Delhi
January 04, 2017


-----------------------
[1]     Criminal Appeal No. 210 of 2005 decided on 2.2.2005
[2]     (2009) 13 SCC 211
[3]     (2012) 9 SCC 249
[4]     (1999) 3 SCC 102
[5]     (2015) 13 SCC 99
[6]     AIR 1963 SC 174
[7]     (1976) 4 SCC 640
[8]     (2013) 11 SCC 193
[9]    AIR 1955 SC 216
[10]    AIR 1945 PC 118
[11]    AIR 1925 PC 1
[12]    (1975) 4 SCC 247
[13]    (1976) 2 SCC 827
[14]   (2003) 1 SCC 268
[15]   (2013) 3 SCC 675
[16]     AIR 1954 SC 706
[17]    AIR 1960 SC 289
[18]   (1981) 3 SCC 675
[19]   (1996) 1 SCC 614
[20]    (1983) 3 SCC 327
[21]   (2001) 6 SCC 71
[22]   (2001) 6 SCC 145
[23]   (2012) 10 SCC 256
[24]   (2013) 12 SCC 746
[25]   (2014) 11 SCC 335


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