State Of U.P vs Atul Singh Etc. Etc

State of U.P. ....Appellant

Versus

Atul Singh etc.etc. ....Respondent

JUDGMENT

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

2 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.

3 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 1= 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

4 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

7 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."

8 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.

9 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

10 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

11 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)

12 New Delhi, May 08, 2009

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