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CASE NO.:

Appeal (crl.) 622-624 of 2003

PETITIONER:

Anil Sharma & Ors.

RESPONDENT:

State of Jharkhand

DATE OF JUDGMENT: 30/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

With

Crl.A. No. 798 of 2003

ARIJIT PASAYAT, J.

Six persons faced trial for alleged commission of

offences punishable under Sections 147, 148, 149, 326,

307 read with Section 34, 452 read with Section 34 and

302 read with Section 34 of the Indian Penal Code, 1860

(in short the 'IPC'). Appellant-Anil Sharma was

sentenced to death. The others were sentenced to undergo

imprisonment for life under Section 302 read with

Section 34 IPC. Each was sentenced to undergo rigorous

imprisonment for 10 years and to pay a fine of

Rs.2,000/- each with default stipulation for the offence

punishable under Section 307 read with Section 34 IPC.

The prosecution version in a nutshell is as

follows:

Hare Ram Singh @ Manoj Singh (PW-6) who was the

cousin of Sudhir Singh @ Bhoma (hereinafter referred to

as the 'deceased') lodged fardbayan. He claimed to be an

injured in the occurrence in question which took place

on 22.1.1999. The occurrence is said to have taken place

at 6.45 A.M. on that day in Ward No. 2 of Jail Hospital

in Birsa Munda Central Jail, Ranchi and on the basis of

fardbayan, Lower Bazar P.S. Case No. 12/99 was

registered at 11.00 A.M. on that day and formal F.I.R.

(Ext. 8/1) was drawn up. The said Fardbayan (Ext.8)

along with the formal F.I.R. (Ext.8/1) was received in

the court of C.J.M., Ranchi on 23.01.1999.

Recital in the fardbayan was that PW-6 had gone to

Ward No. 2 of the Jail Hospital at 6.45 A.M. on

22.01.1999 as usual to his cousin deceased Sudhir Singh

@ Bhoma from his Ward No. 6 of the Jail and he used to

sit with Sudhir for the whole day and he also used to

keep his clothes etc. there. Soon thereafter, when he

was talking with deceased Sudhir Singh, accused-

appellants Anil Sharma, Sushil Srivastava, Niranjan

Kumar Singh, Md. Hasim @ Madhu Mian all armed with

Chhura, Bablu Srivastava and Gopal Das armed with belt

and iron rod respectively along with 10 or 12 other

persons came near deceased Sudhir Singh and appellant

Anil Sharma caught hold of his collar and at this stage

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deceased asked as to "what has happened, brother" and

in the meantime appellant Anil Sharma assaulted him by

Chhura and appellant Sushil Srivastava, Niranjan Kumar

Singh and Md. Hasim @ Madhu Mian made assault on him by

Chhura with which they were armed and appellant Bablu

Srivastava and Gopal Das also assaulted him by belt and

iron rod respectively, besides 10 or 12 other persons

aforesaid who had surrounded and assaulted him. The

informant (PW-6) requested appellant Anil Sharma to let

off and leave deceased Sudhir Singh and also enquired as

to what is the matter, but no avail and the deceased

fell on the ground as a result of injuries sustained.

Appellant Anil Sharma thereafter mounted attack on the

informant and inflicted a blow on his neck by Chhura and

appellant Sushil Srivastava and Niranjan Kumar Singh

assaulted him by Chhura causing bleeding injury on his

head and left hand respectively. The informant (PW-6)

also fell down being injured and other persons aforesaid

also assaulted him by kicks and fists. There was then

the ringing of alarm bell. After few minutes the Jail

constables came there blowing whistles and during that

period there was a great stampede and deceased Sudhir

Singh in an unconscious state along with the injured

informant was shifted to R.M.C.H. Ranchi for treatment

where the informant was undergoing treatment. But Sudhir

Singh died on his way to the Hospital.

The trial Court found the accused persons guilty on

consideration of the evidence led by the prosecution by

examining 18 witnesses. Twelve witnesses were examined

on behalf of the accused persons who pleaded innocence

and false implication. They took a specific stand that

they were in their wards inside the jail and, therefore,

the question of committing any murder was totally

improbable. There was no report made by Hare Ram Singh

(PW-6) as claimed. The Trial Court recorded conviction

and awarded sentences as afore-noted. For its

conclusions Trial Court primarily relied on evidence of

PWs 5 and 6, who claimed to be eye witnesses.

In view of the death sentence imposed on accused

Anil Sharma a reference was made to the Jharkhand High

Court under Section 366 of the Code of Criminal

Procedure, 1973(in short the 'Code'). The High Court

upheld the conviction as recorded by the trial Court but

altered the sentence of death imposed on the accused

appellant-Anil Sharma to one of life imprisonment. In

substance, except the modification of sentence so far as

accused appellant Anil Sharma is concerned, the appeal

was dismissed. Evidence of witnesses was analysed in

view of the stand that the so-called eye witnesses

version is clearly not capable of acceptance.

In support of the appeals, it has been submitted

that there was delay in recording the FIR. There was

non-examination of many vital witnesses. Evidence of the

defence witnesses was not carefully analysed. PW-6 later

on made a statement under Section 164 of the Code that

his evidence was recorded under pressure. There were

exaggerations in respect of what had been indicated in

the Fardbayan as recorded. Non production of the

hospital register and non examination of the Warden and

Head Warden, cast serious doubts on the veracity of the

prosecution version and the Courts below should not have

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brushed aside those infirmities lightly. The production

of the register and the examination of the warden and

head warden would have established that place of

occurrence as indicated is highly improbable. The citus

has not been proved. No blood stains have been found or

seized. PW-6 is not a resident of the jail. He claimed

to be an inmate of Ward No.6 and though he stated that

he was inside the camp of the jail, nothing material in

that regard has been established. As soon as PW-6 came

out of the jail in May 2001, he filed an affidavit

stating as to how the statements made by him during

trial were wrong. It has been erroneously held that no

prejudice was caused by not getting him re-examined.

Different yardsticks have been adopted for the

prosecution and the defence witnesses. PW-5's presence

at the spot of occurrence as claimed is highly doubtful.

The canteen manager himself has improbabilised the

presence of the witnesses. Even if it is accepted that

PW-5 was present his evidence does not guarantee

truthfulness. There was no corroborative material. After

having discarded the evidence of PWs 1, 2 and 4 there

was no justification to act on the evidence of PWs 5 and

6. The FIR has been despatched after considerable delay

and there has been delayed examination of PW-5. So far

as PW-5 is concerned, he was examined under Section 164

of the Code. He has not named Sushil Srivastava in the

statement recorded before the Magistrate though in the

cross examination he accepted that what was stated

before the Magistrate was correct. The assault part as

indicated by PW-6 in the so-called FIR was given a go by

in Court. Though in the FIR it was stated that the

assault was made by respective weapons the Court has

come to a presumptive conclusion that no physical

assault was made but by holding the head the killing by

accused Anil Sharma was facilitated.

Section 34 IPC has been wrongly applied. There was

no specific role attributed to any of the accused

persons except the accused Anil Sharma. The

inconsistency between the evidence of PWs 5 and 6

probabilises the defence version. Even if it is accepted

that the accused persons except accused Anil Sharma were

present if there was no participation the conviction as

made is not maintainable.

In response, learned counsel for the State

submitted that in addition to the evidence of the

aforesaid witnesses, the evidence of other PWs more

particularly, PW-12 shows that the occurrence took place

inside the jail. The concurrent views of the trial Court

and the High Court should not be interfered with. The

evidence of PWs 5 and 6 shows that they are reliable and

believable. Merely because some documents have not been

produced that does not in any way dilute the prosecution

version or render the evidence of the eye-witnesses

doubtful. No prejudice has been caused to the accused in

any manner by not accepting the prevaricating stand of

PW-6.

The evidence of PWs 5 and 6 has been attacked by

the accused-appellants on the ground that their presence

at the alleged spot of occurrence is not believable.

Non-production of certain documents and non-examination

of some of the official witnesses were pressed into

service. It is true that PW-6 made an application for

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getting examined afresh and the same was turned down.

Again the defence filed a similar application. The Court

considered the same and found it to be without

substance. PW-6 was examined in Court on 22.1.2000,

25.1.2000 and 27.1.2000. He made an application before

Trial Court on 17.7.2001 about alleged pressure on him

to depose falsely. A bare reading of the same shows that

the same is extremely vague and bereft of substance.

Though it was stated pressure was put on him and he was

subjected to third degree treatment, he has not

specifically named anybody and made vague mention about

"some police officials".

Further, the accused at different stages prayed to

recall PWs 5 and 6 which the Trial Court rejected. The

orders had attained finality. The petition of PW-6 was

considered in detail by the Trial Court and was rejected

by order dated 8.8.2001. It appears that accused

persons had filed an application on 3.7.2001 with a

prayer to examine PW-6. Same was also rejected by order

dated 5.9.2001. Both the orders dated 8.8.2001 and

5.9.2001 attained finality and also do not suffer from

any infirmity.

So far as one of the points which was highlighted

was that no cogent reasons have been given to discard

the prayer made by PW-6 for his fresh examination. This

aspect was specifically urged before the High Court and

has been considered. It was held that the plea appeared

to be after thought and there was no cogent reason for

accepting the prayer. It is true that in a given case

the accused can make an application for adducing

additional evidence to substantiate his claim of

innocence. Whenever any such application is filed before

the Court, acceptability of the prayer in question is to

be objectively considered. The High Court has

elaborately dealt with this issue and concluded as to

how the prayer was rightly held to be not tenable.

It is not that in every case where the witness who

had given evidence before Court wants to change his mind

and is prepared to speak differently, that the Court

concerned should readily accede to such request by

lending its assistance. If the witness who deposed one

way earlier comes before the appellate Court with a

prayer that he is prepared to give evidence which is

materially different from what he has given earlier at

the trial with the reasons for the earlier lapse, the

Court can consider the genuineness of the prayer in the

context as to whether the party concerned had a fair

opportunity to speak the truth earlier and in an

appropriate case accept it. It is not that the power is

to be exercised in a routine or cavalier manner, but

being an exception to the ordinary rule of disposal of

appeal on the basis of records received in exceptional

cases or extraordinary situation the Court can neither

feel powerless nor abdicate its duty to arrive at the

truth and satisfy the ends of justice. The Court

ultimately can certainly be guided by the metaphor,

separate the grain from the chaff, and in a case which

has telltale imprint of reasonableness and genuineness

in the prayer, the same has to be accepted, at least to

consider the worth, credibility and the acceptability of

the same on merits of the material sought to be brought

in.

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Non-production of documents which the appellants

claim would have strengthened the claim of absence of

PW-5 cannot in any way dilute the evidentiary value of

the oral testimony. Even though the witnesses have been

cross-examined at length, no material inconsistency has

been elicited to discard the evidence of PWs 5 and 6.

One of the pleas which was pressed into service is

alleged relationship of PWs 5 and 6 with deceased and

their criminal antecedents. As rightly noticed by the

High Court on the aforesaid basis the evidence which is

found truthful and credible otherwise should not be

discarded. The Courts have to keep in view that in such

matters deep scrutiny is necessary. After having kept

these principles in view the Trial Court and the High

Court have found that the evidence when carefully

analysed on the whole was credible. After deep scrutiny

the Courts below have found that there is ring of truth

in the evidence of PWs 5 and 6.

So far as the delay in despatch of the FIR is

concerned, it was noted by the High Court that the

informant's Fardbayan was recorded at 10.00 a.m. on

22.1.1999. The inquest report was prepared on 22.1.1999

at 1925 hours. The inquest report was prepared by

Executive Magistrate and the case number is also

mentioned. That being so, plea that the Fardbayan being

ante timed has not been established. Post mortem was

conducted on 22.1.1999 at 2200 hours. Above being the

position, there can be no grain of doubt that the

Fardbayan was recorded on the date of occurrence and

filed at the indicated time and the case has been

instituted on the basis of the said Fardbayan. Finding

recorded by the High Court that Fardbayan was not ante

timed is amply supported by evidence on record and no

adverse view as claimed by the accused-appellants can be

taken.

So far as the question as to whether equal

treatment being given to the evidence of prosecution and

defence witnesses is concerned, there can be no quarrel

with the proposition in law. In the present case it is

not that the Courts below glossed over the evidence of

defence witnesses. In fact detailed analysis has been

made to conclude as to why no importance can be attached

to their evidence. After carefully analysing the

prosecution evidence and that tendered by the accused,

the trial Court recorded the conviction. The High Court

in appeal made further detailed analysis of the evidence

and came to hold that there was no infirmity in the

conclusions of the trial Court. The conclusions are not

shown to suffer from any infirmity whatsoever to warrant

interference.

Another point stressed by learned counsel for

appellant relates to applicability of Section 34 IPC.

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

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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 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.

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

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show some overt act on the part of the accused.

The legality of conviction by applying Section 34

IPC in the absence of such charge was examined in

several cases. In Willie (William) Slaney v. State of

Madhya Pradesh (AIR 1956 SC 116) it was held as follows:

"Sections 34, 114 and 149 of the

Indian Penal Code provide for criminal

liability viewed from different angles

as regards actual participants,

accessories and men actuated by a common

object or a common intention; and the

charge is a rolled up one involving the

direct liability and the constructive

liability without specifying who are

directly liable and who are sought to be

made constructively liable.

In such a situation, the absence of

a charge under one or other of the

various heads of criminal liability for

the offence cannot be said to be fatal

by itself, and before a conviction for

the substantive offence, without a

charge, can be set aside, prejudice will

have to be made out. In most of the

cases of this kind, evidence is normally

given from the outset as to who was

primarily responsible for the act which

brought about the offence and such

evidence is of course relevant".

The above position was re-iterated in Dhanna etc.

v. State of Madhya Pradesh (AIR 1996 SC 2478).

Section 34 IPC has clear application to the facts

of the case on all fours, and seems to have been rightly

and properly applied also.

Looked at from any angle, judgment of the High

Court does not suffer from any infirmity to warrant

interference. The appeals fail and are dismissed.