Hardeep Singh & Ors vs State Of Haryana

appeals and one criminal Revision were disposed of. Four

persons faced trial for alleged commission of offence punishable under Section 302 read with Section 34 of the

Indian Penal Code, 1860 (in short the `IPC'). One of them i.e.

Gurcharan Singh was acquitted by the learned Sessions

Judge, Sirsa. State questioned his acquittal. Similarly the

complainant, PW7 also filed the revision petition seeking

enhancement of the sentence of convicted accused persons to

death sentence, apart from questioning of acquittal of

Gurcharan Singh. By the common judgment the High Court

dismissed the Criminal Appeal filed by the State and the

Criminal Revision filed by the complainant while dismissing

the appeal filed by the appellants also.

2. Background facts in a nutshell are as follows:

Sukhdev Singh (PW-7) lodged FIR at 5.30 PM on

3.11.1994 that on 3.11.1994 at about 4.30 PM, he was going

with his mother Pritam Kaur to visit the house of his father's

sister on the eve of Diwali festival. At that time, his father

Amrik Singh (hereinafter referred to as `deceased') was going

about 10 paces ahead of them on the same foot way for his

domestic work. As soon as deceased reached in front of the

house of one Parlhand Singh son of Karnail Singh, then all of

2 a sudden, acquitted accused Gurcharan Singh, armed with

gandasi, Hardeep Singh, armed with dattar, Harjinder Singh

armed with gandasi and Jaswinder Singh also armed with

gandasi, emerged from a street known as schoolwali gali.

Acquitted accused Gurcharan Singh raised a lalkara

(exhortation) that "Aaj Isko Bach Kar Jane Mat Dena". Soon

thereafter, his sons appellants Harjinder Singh and Jaswinder

Singh inflicted gandasi injuries on the deceased with an

intention to commit his murder. They gave gandasi blows,

which landed on the legs of the deceased. As a result, the

deceased fell down on the road. His turban also went off his

head and fell on the ground. Thereafter accused appellant

Hardeep Singh gave dattar blow, hitting the deceased on his

head. He was followed by accused appellant Harjinder Singh,

who also inflicted a gandasi blow on the head of the deceased.

Thereafter, acquitted respondent Gurcharan Singh and

accused appellant Jaswinder Singh caused further injuries

with gandasi on the arms of the deceased. Complainant

Sukhdev Singh and his mother Pritam Kaur raised a hue and

cry saying "Mar Dia Mar Dia". After that the deceased was

3 dragged by all the four accused inside the house of accused-

appellant Harjinder Singh. Complainant Sukhdev Singh and

his mother Pritam Kaur followed them and raised hue and cry.

On hearing their noise all the aforesaid four accused, namely,

Gurcharan Singh, Hardeep Singh, Harjinder Singh and

Jaswinder Singh, ran away with their weapons towards the

village side. The complainant and his mother looked at the

deceased who had succumbed to the injuries. The

complainant, leaving behind his mother near the dead

body at the spot, went to the police post to lodge a report. His

statement was recorded by Kartar Singh, Incharge, Police

Post, Kariwala, on 3.11.1994 itself. On receipt of ruqa (Ex.PB),

a formal FIR (Ex.PB/1) under Sections 302/34 IPC was

registered by ASI Baljit Singh (PW3) at Police Station, Ding, at

6.50 PM. He sent a special report through Constable Bhoop

Singh (PW-5) on the same day to JMIC, Sirsa. A detailed

inquest report (Ex. PD /4) was prepared on 3.11.1994 itself by

ASI Kartar Singh (PW 9). Dr. Narinder Chaudhary (PW 4)

conducted the post mortem (Ex.PD) of the deceased on

4.11.1994 at about 10.15 AM. He found as many as 14

4 injuries on the dead body. They are as under:

"1. A 'V' shape incised wound each limb

measuring 8 cms x 2cms x brain deep over the left

parietal region 8 cms away from the pinna of the left

ear. On dissection, there was fracture of the left

parietal bone. Infiltration was present underlying

the injury.

2. An incised wound of 6 cms x 2- cms x scalp

deep over the top of the scalp. On dissection,

infiltration was present and there was no fracture.

3. An incised wound of 8 cms x 1.5 cm x muscle

deep, anterior and middle third to the right leg.

Corresponding cut was present in the kachha. On

dissection, underlying bone (tibia) was fractured

and infiltration was present.

4. An incised wound of 4 tens x 1.5 cms x bone

deep. Lateral aspect of the right knee joint.

5. Two abrasions contusions measuring 3 x 2 cms,

2.5 cms x 2.5 cms over the anterior aspect of right

5 knee joint. On dissection of injuries no.4 and 5

right patelar bone was fractured. Infiltration was

present.

6. Incised wound 11 cms in length, anterior

posteriorly (through and through) from the root

of the right little finger to the root of the right

thumb. Underlying bone, muscle tendons

vessels and nerves were cut.

7. Incised wound of 6cms x 1.5 cms muscular deep

over the posterior and middle to the right fore-arm.

Underlying bones were fractured. Infiltration was

present.

8. Contusion of 3 cms x 2 cms over the top of the

left shoulder joint. Infiltration was present

underlying the tissue.

9. Two contusions varying in size. Posterior to the

left elbow.

6 10. Contusion of 4 cms x 2 cms, posterior and

middle to the left fore-arm. Underlying bone (ulna)

was fractured and infiltration was present.

11. Abrasion contusions, four in number, varying in

size, dorsum of the left hand. On dissection

infiltration was present.

12. Contusion of 3 cms x 1 cm on the left knee

joint.

13. Incised wound of 5.5 cms x 1.5 cms x bone

deep, anterior and middle third to the- left leg.

Underlying bone was fractured. Infiltration was

present.

14. Contusion of 2.5 cms x 2 cms over the lower

third to the sternum. Infiltration was present under

the injury."

3. After completion of the investigation, charge sheet was

filed. Since the accused persons pleaded innocence, the trial

7 was held. As noted above, the appellants were convicted while

Gurcharan Singh was acquitted. Appeal was filed by the State

and the present appellants and the revision was filed by the

complainant.

4. Before the High Court the basic stand taken by the

appellants was that the evidence of PWs 7 & 8 do not inspire

confidence. The High Court did not find any substance in the

appeal filed by the appellants and held that the evidence of

PWs 7 & 8 sufficiently established the accusations.

5. In support of the appeal, learned counsel for the

appellant submitted that the evidence of PWs 7 & 8 does not

inspire confidence, particularly when they are relatives of the

deceased. Additionally, even if the prosecution version is

accepted in toto, the conviction for offence punishable under

Section 302 read with Section 34 IPC cannot be maintained.

Plea that the FIR was ante timed was also taken with

reference to the time of inquest. The basic plea is regarding

the applicability of Section 34 IPC. It is pointed out that the

8 Doctor has opined that only injury no. 1 alone could have

resulted in the death.

6. Though learned counsel for the appellants submitted

that the evidence of PWs 7 & 8 does not inspire confidence, no

discrepancy in their evidence could be focused to discard their

evidence.

7. We shall also 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.

9

8. 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."

9. The above decision has since been followed in Guli

Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in

10 which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)

was also relied upon.

10. 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

11 judgments of the Courts, at any rate in the arguments of counsel."

11. 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."

12. To the same effect is the decision 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).

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13. 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).

14. 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

13 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.

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15. 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.

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16. We find that the evidence of PWs 7 & 8 clearly

establishes the roles played by the Hardeep Singh and

Harjinder Singh. It is also clear from the prosecution evidence

that on hearing of the exhortation of the acquitted Gurcharan

Singh, Jaswinder Singh and Harjinder Singh had given blows

on the legs of the deceased. After he fell down, Hardeep Singh

gave blow on the head. Similarly Harjinder Singh also gave

blows on the head. After the deceased fell down Jaswinder

Singh did not attack on any vital part of the deceased's body.

He assaulted on the arm of the deceased. In the aforesaid

circumstances, while appeal filed by the accused appellants

Hardeep and Harjinder Singh is dismissed, the appropriate

conviction of Jaswinder Singh would be under Section 304

Part II IPC. His conviction is accordingly altered. Custodial

sentence of eight years would meet the ends of justice.

17. The appeal is allowed to the aforesaid extent.

..........................................J. (Dr. ARIJIT PASAYAT)

16 .........................................J. (P.P. NAOLEKAR) New Delhi, June 11, 2008

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