Hari Ram vs State Of U.P on 9 August, 2004

    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 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.

 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 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  '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
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.