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AFR

Reserved on : 24.09.2019

Delivered on : 22.10.2019

CRIMINAL APPEAL No. 1796 of 1987

1.Harendera

2.Manvendra

3.Devendra --------Appellants

Vs

State of Uttar Pradesh ---------Respondent

_______________________________________________________

For Appellants : Sri Adesh Kumar, Advocate

For Respondent/State: Sri Ankit Prakash, AGA

_______________________________________________________

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Raj Beer Singh, J.

1.This appeal has been preferred against the judgment and order

dated 15.7.1987 passed by learned 3

rd

Additional Sessions Judge,

Meerut in Sessions Trial No. 240 of 1985 (State vs. Harendra &

Ors), under Sections 302, 307/34 of IPC, P.S. Mawana, District

Meerut, whereby, accused appellant Harendra has been convicted

under Sections 302 and 307/34 of IPC and the accused appellants

Manvendra and Devendra have been convicted under Sections

302/34 and 307/34 of IPC. Accused-appellant Harendra has been

sentenced to undergo imprisonment for life under Section 302 of

IPC and rigorous imprisonment for five years under Section 307/34

of IPC along with fine of Rs. 500/-. Similarly, accused appellants

Manvendra and Devendra have been sentenced to undergo life

imprisonment under Section 302/34 and rigorous imprisonment for

five years, under Section 307/34 of IPC with fine of Rs. 500/-. In

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default of payment of fine, accused-appellants have to undergo

additional imprisonment for six months.

2.All the three accused-appellants are brothers and deceased Karan

Pal is their cousin. It is alleged that on 09.04.1985, some hot talk took

place between complainant’s uncle Chandra Bhan and the accused-

appellants, namely, Harendra, Manvendra and Devendra. However,

after intervention of PW-5 Vedpal (father of complainant), the matter

came to an end. Thereafter, on 13.04.1985 at about 9:00 a.m. when

complainant Ravindra Pal and his brother Jitendra, after loading

sugarcane in their trolley, started taking away trolley, all the three

accused-appellants Harendra, Manvendra and Devendra started

abusing PW-5 Vedpal / father of complainant. Accused-appellant

Devendra was having country made pistol, while Harendra and

Manvendra were having club and stick. They started assaulting PW-5

Vedpal and due to injuries, PW-5 Vedpal fell down in the field of

Karan Pal. Complainant/ PW 3 Ravindra Pal and his brother Jitendra

ran to the spot and challenged the accused persons, but accused

Manvendra and Devendra started assaulting PW-3 Ravendra Pal with

lathi and stick. Karan Pal (deceased), who was working in nearby field,

came and tried to intervene, but accused appellant Harendra fired a

bullet at Karan Pal from behind, causing fire-arm injuries to him and

thereafter, all the three accused persons ran away from the spot. Injured

PW-5 Vedpal, complainant PW-3 Ravindra Pal and deceased Karan Pal

were taken to Mawana Hospital, but in the way, Karan Pal succumbed

to fire-arm injuries.

3.Complainant / PW-3 Ravindra Pal reported the matter to police

by submitting written complainant Ex. Ka-7 and on that basis, case

was registered on 13.04.1985 at 11:45 AM against all the three accused

persons, namely, Harendra, Manvendra and Devendra, under Sections

302 and 307 of IPC vide FIR Ex. Ka-8.

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4.Inquest proceedings on the dead body of deceased Karan Pal

were conducted, vide Inquest report Ex. Ka-1 by PW-1 S.I. Narendra

Singh and dead body of deceased was sent for postmortem which was

conducted by PW-7 Dr. N.S. Pal on 14.4.1985, vide postmortem report

Ex. Ka.10 and following injuries were found on the person of the

deceased:

“(i) Gun shot wound of entry 3 cm x 2 cm x chest cavity deep on left

scapular region 9 cm below the top of shoulder, underneath bones

fractured.

(ii) Abraided contusion 2.5 cm x 1 cm on middle of pinna (left)

anterior aspect.

(iii) Lacerated wound 2.5 x 0.5 cm x bone deep 8 cm above left ear.

(iv) Lacerated wound 5 cm x 1 cm x bone deep on left side of head 3

cm infront of injury no.3.

As per Autopsy Surgeon, cause of death of the deceased

was due to syncope as a result of gunshot injury.

5.Injured PW-3 Ravindra Pal was medically examined on

13.04.1985 by PW-2 Dr. S.K. Raghuvanshi and following injuries

were found on his person:

(i) Lacerated wound on forehead right to middle size 4.5 cm x 1.2 cm

x bone deep, 4 cm above medial end of right eyebrow. Bleeding

present.

(ii) Lacerated wound 3 cm x 1.2 cm x scalp deep on forehead left to

middle 5.1/2 cm above medial end of left eyebrow bleeding while

cleaning.

(iii) Lacerated wound 6.1/2 cm x ¾ cm x bone deep on left side head

middle 13.1/2 cm above the right ear, bleeding. Advised x-ray.

(iv) Lacerated wound 4.5 cm x ¾ cm x bone deep on the back of head

13 cm above left ear. bleeding. Advised x-ray.

(v) Lacerated wound 2.3 cm x ½ cm x scalp deep on the back of head

centre 14.1/2 cm from left ear, bleeding.

(vi) Lacerated wound 1.8 cm x 1.3 cm x scalp deep on the back of

head below no.5 about 8 cm from left ear.

(vii) Lacerated wound 6 cm x ½ cm x bone deep on back of head

above neck 10 cm from left ear, bleeding. Advised x-ray.

(viii) Multiple contusion (Multiple Redish colour) on area of 13 cm x

6 cm on the back chest scapular bone middle right side with traumatic

swelling.

(ix) Contusion redish 12 cm x 3 cm on the back chest left side above

the upper border of scapula.

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(x) Abrased contusion redish 3 cm x 1.1/4 cm on the top of right

shoulder.

(xi) Contusion 10 cm x 3 cm oblique on the back of lion and hip left

side just above the scrocliae joint.

(xii) Traumatic swelling over dorsam of middle index and ring finger

left hand with difficulty on movement. Kept under observation.

(xiii) Traumatic swelling over dorsam of right hand and index finger

5 x 5 cm or 6 cm x 4.9 cm extending upto index finger.

6.On the same day injured PW-5 Ved Pal was also medically

examined by PW-2, vide MLC Ex. Ka-6 and following injuries

were found on his person:

(i) Lacerated wound 5 cm x 1 cm x bone deep left side head 7.3 cm

above left ear, bleeding present.

(ii) Lacerated wound 4 cm x ½ cm x bone deep on forehead 3 cm

above the eyebrow middle, bleeding.

(iii) Lacerated wound 1.1/2 cm x 1/3 cm x muscle deep on the back of

left forearm 4 cm below elbow, bleeding.

(iv) Four abrased contusion each size 1 cm x 2 cm on the middle back

of left forearm on area of 5 cm round 8 cm above wrist, redish colour.

(v) Contusion 13 cm x 2.3 cm on front of chest ½ to left ½ to right of

sternum upper end, redish colour.

7.After completion of investigation, all the three accused

persons were charge-sheeted under Sections 302 and 307 of IPC.

8.Learned trial court framed charge against accused-appellant

Harendra under Sections 302 and 307/34 of IPC, while accused-

appellants Manvendra and Devendra were charged under Sections

302/34 and 307/34 of IPC.

9.In order to bring home the guilt of accused-appellants,

prosecution has examined seven witnesses. After prosecution evidence,

accused persons were examined under Section 313 of Cr.P.C., wherein,

they have denied the prosecution evidence and claimed false

implication. However, no other evidence was adduced in defence.

10.After hearing and analyzing the evidence on record, learned trial

court has convicted accused-appellant Harendra under Sections 302

and 307/34 of IPC, while accused-appellants Manvendra and Devendra

have been convicted under Section 302/34 and 307/34 of IPC vide

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impugned order dated 15.7.1987 and sentenced, as stated in paragraph

no.1 of this judgment.

11.Being aggrieved by the impugned judgment, accused-appellants

have preferred the present appeal.

12.Heard Sri Adesh Kumar, learned counsel for the appellants and

Sri Ankit Prakash, learned A.G.A. for the State.

13. Learned counsel for the appellants has submitted:

(i) that there was no motive, at all, on the part of the

accused-appellants to cause injury to PW-3 Ravindra

Pal and PW-5 Ved Pal or to murder the deceased

Karan Pal. Before the incident in question, in an

earlier incident on 09.04.1985, only some hot talk

took place and no beating was done and the matter

was subsidized and therefore, the incident of

9.4.1985 cannot give rise to any such motive to

assault PW-3 Ravindra Pal and PW-5 Ved Pal.

Further, accused-appellants have no enmity, at all,

with deceased Karan Pal and thus, there are no

reasons that why the accused-appellants would

commit the murder of deceased Karan Pal.

(ii)that PW-3 Ravindra Pal and PW-5 Ved Pal are

interested witnesses as they are son and father and

their testimony is not reliable. It was stated that a

scuffle took place between PW-3 Ravindra Pal and

deceased Karan Pal and that when Karan Pal could

not be overpowered, he was murdered by firing.

Learned counsel further pointed out that PW-3

Ravindra Pal and PW-5 Ved Pal have admitted that

wife of deceased Karan Pal was present at the spot,

but she was not examined by the prosecution.

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(iii)that there are contradictions and inconsistencies in

the testimony of PW-3 Ravindra Pal and PW-5 Ved

Pal, which render their testimony unreliable.

(iv)that so far as the conviction of accused-appellants

under Section 302 of IPC is concerned, there is

nothing to indicate that accused-appellants have

common intention to cause murder of deceased

Karan Pal. Even as per prosecution version, Karan

Pal has suddenly appeared at the spot and tried to

intervene and thus, it cannot be said that accused-

appellants have any pre-arranged plan to commit

murder of deceased.

14.Per contra, it has been submitted by learned State counsel that

all the three accused-appellants have been named in the First

Information Report, which was lodged without any undue delay. Both

injured witnesses, namely PW-3 Ravindra Pal and PW-5 Ved Pal have

made statements against the accused appellants. These witnesses have

been subjected to cross-examination but they remained firm and no

such adverse fact came out so as to affect the credibility of these

witnesses. So far as non examination of wife of deceased is concerned,

prosecution is not bound to examine each and every witness of the

incident. In this case, two eye-witnesses, PW-3 Ravindra Pal and PW-

5 Ved Pal, were examined by the prosecution and presence of these

witnesses at the scene of offence is established by the fact that they

have sustained injuries in the same incident. So as far as the question

of common intention is concerned, it was submitted by learned State

Counsel that when the accused-appellants were assaulting PW-3

Ravindra Pal and PW-5 Ved Pal, deceased Karan Pal came and

intervened and thus, he was murdered. These facts indicate that all the

three accused persons have common intention to commit the murder of

deceased Karan Pal.

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15.We have considered the rival submissions and perused the

record.

16.In evidence PW-3 Ravindra Pal has stated that on 09.04.1985,

over an issue of turn of irrigating drain, some hot talk took place

between Chandra Bhan and accused persons however, on intervention

of PW-5 Ved Pal, matter was subsidized. On 13.4.1985 at 9:00 a.m.,

PW-3 Ravindra Pal, his brother Jitendra and their father Ved Pal were

taking away their sugarcane after loading the same in a tractor trolley

and Ved Pal was around 15 steps behind trolley. All the three accused

persons, who were present at their tube-well, started beating PW-5 Ved

Pal. Raising an alarm, PW-5 ran towards the field of Karan Pal and

PW-3 Ravindra Pal and his brother also ran to spot, but accused-

appellant Manvendra and Devendra started attacking PW-3 Ravindra

Pal with club and stick. Accused-appellant Devendra was having a

club (lathi) and Manvendra was having a stick (Khalwa). Hearing

noise, deceased Karan Pal also came there from his field and tried to

save PW-5 Ved Pal but accused appellant Harendra fired a bullet at the

back of Karan Pal from behind. Karan Pal was taken to Mawana

hospital, where he was declared dead. PW-3 Ravindra Pal reported the

matter to police by submitting a complaint Ex. Ka-7.

17.PW-5 Ved Pal, has also made a similar statement and stated that

on 09.04.1985, an altercation took place between his younger brother

Chandra Bhan and the accused persons, however, he has intervened

and the matter was subsidized. Thereafter, on 13.04.1985 at 9:00 a.m.,

he and his sons Ravindra and Jitendra, after loading sugarcane in

trolley, came towards western side, while he was at some distance

behind the trolley to repair drainage and was coming behind trolley, all

the three accused-appellants encircled him. PW-5 Ved Pal ran towards

the field of Karan Pal but accused-appellant Manvendra has given a

stick (khalwa) blow on his head and thereafter accused-appellant

Devendra assaulted him with club and with barrel of country made

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pistol. Hearing noise, his son Ranvidra and nephew Karan Pal also

came there but accused-appellants also assaulted Ravindra and as

Karan Pal tried to intervene, the accused appellant Harendra fired a

bullet on him from behind. After the incident, all the three accused

persons ran away. PW-5 Ved Pal, PW-3 Ravindra Pal and deceased

Karan Pal were taken to Mawana Hospital but Karan Pal was declared

dead, and PW-5 Ved Pal and PW-3 Ravindra Pal were medically

examined.

18.PW-1 S.I. Narendra Singh has conducted inquest proceedings,

while PW-2 Dr. S.K. Raghuvanshi has medically examined the injured

witnesses PW-3 Ravindra Pal and PW-5 Ved Pal.

19.PW-4 Constable Kushal Pal Singh has recorded the FIR and

G.D. entry and PW-6 Constable Balraj Singh has assisted during

investigation.

20.PW-7 Dr. S.N. Pal has conducted postmortem.

21.Learned counsel for the accused-appellants vehemently argued

that there was no motive, at all, on the part of the accused-appellants

to cause injuries to P-W-3 Ravindra Pal and PW-5 Ved Pal or to cause

murder of deceased Karan Pal. It was stated that there was no enmity

between the parties and that the alleged incident of 09.04.1985 was an

small issue and no beating etc took place in the said incident and thus,

that incident would not give rise to any motive to commit the incident

of 13.04.1985.

22.So far as the question of motive is concerned, it is well settled

that if a case is based on direct evidence, motive has no much

significance. Clear proof of motive lends additional assurance to other

evidence, but the absence of motive does not lead to contrary

conclusion, however in that case, other evidence has to be closely

scrutinized. If positive evidence is clear and cogent, the question of

motive is not important. Evidence of motive may be relevant to lend

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assurance to the other evidence, but motive is not a sine qua non for

the commission of a crime. Moreover, failure to prove motive or

absence of evidence on the point of motive would not be fatal to the

prosecution case when the other reliable evidence available on record

unerringly establishes the guilt of the accused. Failure to prove motive

or absence of evidence on the point of motive would not be fatal to the

prosecution case when the other reliable evidence available on record

unerringly establishes the guilt of the accused. Reference may be made

to the case law pronounced in case of State of U.P. V Nawab Singh,

2005 SCC (Criminal) 33.

Dealing with similar issue the Apex Court in State of U.P. Vs.

Kishanpal & Ors., (2008) 16 SCC 73 held as under:

"The motive may be considered as a circumstance which is relevant for

assessing the evidence but if the evidence is clear and unambiguous and the

circumstances prove the guilt of the accused, the same is not weakened

even if the motive is not a very strong one. It is also settled law that the

motive loses all its importance in a case where direct evidence of

eyewitnesses is available, because even if there may be a very strong

motive for the accused persons to commit a particular crime, they cannot

be convicted if the evidence of eyewitnesses is not convincing. In the same

way, even if there may not be an apparent motive but if the evidence of the

eyewitnesses is clear and reliable, the absence or inadequacy of motive

cannot stand in the way of conviction."

In the instant case, though it appears that alleged incident of hot

talk, which took place on 09.04.1985, was not a big one but motive is a

thing which is primarily known to the accused himself and it may not

be possible for the prosecution to explain what actually prompted or

excited them to commit a particular crime. As regards to the

importance of existence of motive in a criminal case, it is worthwhile

to look at the ratio laid down by this Court in Shivaji Genu Mohite v.

State of Maharashtra, AIR 1973 SC 55:

“In case the prosecution is not able to discover an impelling motive, that

could not reflect upon the credibility of a witness proved to be a reliable

eye-witness. Evidence as to motive would, no doubt, go a long way in

cases wholly dependent on circumstantial evidence. Such evidence would

form one of the links in the chain of circumstantial evidence in such a case.

But that would not be so in cases where there are eye-witnesses of

credibility, though even in such cases if a motive is properly proved, such

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proof would strengthen the prosecution case and fortify the court in its

ultimate conclusion. But that does not mean that if motive is not

established, the evidence of an eye-witness is rendered untrustworthy”.

Reverting to the facts of present case, it would be pertinent to

mention that it is the consistent case of prosecution that 09.04.1985, an

altercation took place between younger brother of PW-5 Ved Pal,

namely Chandra Bhan and accused-appellants Harendra, Manvendra

and Devendra over an issue of irrigating nali. However, PW-5 Ved Pal

has intervened and the matter was subsidized. Thereafter, on

13.04.1985, all the accused-appellants have assaulted PW 5 Ved Pal

and the incident in question, has taken place. Though, as stated earlier,

this case is based on testimony of two eye witnesses, and thus, the

absence of motive does not lead to contrary conclusion, however

considering the evidence regarding alleged incident of 09.04.1985,

wherein altercation took place between younger brother of PW-5,

namely, Chandra Bhan and accused persons over the dispute of

irrigating nali and PW-5 Ved Pal has intervened and scolded the

accused persons, it cannot be said that there was no motive at all on

the part of the accused persons to cause injury to PW-5 Ved Pal. As per

prosecution version, initially accused persons have assaulted PW-5

Ved Pal and after his noise, when PW-3 Ravindra Pal reached there, he

was also assaulted by the accused persons. Similarly, when deceased

came and intervened, accused appellant Harendra fired a bullet at

deceased Karan Pal causing his death. Thus, the contention raised by

learned counsel has no substance.

23.So far the contention, that PW-3 Ravindra Pal and PW-5 Ved Pal

are interested witnesses and that their testimony is not reliable, is

concerned, the version of prosecution is that on 09.04.1985, some hot

talk took place between complainant’s uncle Chandra Bhan and the

accused-appellants, wherein PW 5 Vedpal has intervened and scolded

them and matter has ended, but thereafter, on 13.04.1985, when PW-5

Ved Pal and his sons were taking away their sugarcane in trolley, all

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the three accused persons abused and assaulted PW-5 Vedpal. When

PW 3 Ravinder tried to save him, he was also attacked and when

deceased Karan Pal tried to intervene, accused appellant Harendra

fired a bullet on him causing his death. No doubt, PW-3 Ravinder and

PW-5 Vedpal are son and father, but mere relationship cannot be a

factor to doubt their testimony. On the issue of appreciation of

evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR

1953 SC 364, 1954 SCR 145, is one of the earliest cases on the point.

In that case, it was held:

"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 relative 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."

Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977

SC 2274 (1977) 4 SCC 452, the Apex Court held:

"It is well settled that the evidence of interested or inimical

witnesses is to be scrutinised with care but cannot be rejected merely on

the ground of being a partisan evidence. If on a perusal of the evidence

the Court is satisfied that the evidence is creditworthy there is no bar in

the Court relying on the said evidence."

In Hari Obula Reddy and Ors. Vs. The State of Andhra

Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court

observed:

".. it is well settled that interested evidence is not necessarily

unreliable evidence. Even partisanship by itself is not a valid ground for

discrediting or rejecting sworn testimony. Nor can it 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

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."

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In Jayabalan V UT of Pondicherry (2010) 1 SCC 199, the

Supreme Court held as under:

"23. We are of the considered view that in cases where the court is

called upon to deal with the evidence of the interested witnesses, the

approach of the court, while appreciating the evidence of such witnesses

must not be pedantic. The court must be cautious in appreciating and

accepting the evidence given by the interested witnesses but the court

must not be suspicious of such evidence. The primary endeavour of the

court must be to look for consistency."

Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC

498, the following observations were made by the Apex Court:

"The requirement of law is that the testimony of inimical

witnesses has to be considered with caution. If otherwise the witnesses

are true and reliable their testimony cannot be thrown out on the

threshold by branding them as inimical witnesses. By now, it is well-

settled principle of law that enmity is a double- edged sword. It can be a

ground for false implication. It also can be a ground for assault.

Therefore, a duty is cast upon the court to examine the testimony of

inimical witnesses with due caution and diligence."

A survey of the judicial pronouncements of the Hon'ble Apex

Court on this point leads to the inescapable conclusion that the

evidence of a closely related witness is required to be carefully

scrutinised and appreciated before any conclusion is made to rest upon

it, regarding the convict/accused in a given case. Thus, the evidence

cannot be disbelieved merely on the ground that the witnesses are

related to each other or to the deceased. In case the evidence has a ring

of truth to it, is cogent, credible and trustworthy, it can, and certainly

should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC

318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool

Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs.

State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs.

State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati

Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P.,

(2015) 11 SCC 52).

In the instant case, PW-5 Vedpal, complainant PW-3 Ravindra

Pal are father and son, but the fact that they themselves received

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injuries in the same incident establishes their presence at the spot.

Further, it is important to note that the deceased as well as the accused-

appellants were equally related them. It is not in dispute that accused-

appellants, deceased as well as these witnesses all belong to the family

of same ancestors. They all were related to each other through distant

relationship in extended family. In view of these facts, by no stretch of

imagination, PW 3 Ravinder and PW 5 Ved Pal can be treated as

interested witnesses. Mere fact that in an earlier incident, hot talk

between Chandrabhan and accused-appellants, PW 5 Vedpal has

scolded them, would not make him interested or inimical witness,

particularly when PW 5 himself has sustained injuries. Both PW-3

Ravindra Pal and PW-5 Ved Pal have made clear and cogent

statements regarding the incident. PW-3 Ravindra Pal has lodged

prompt report, naming all the three accused persons. Both these

witnesses have been subjected to cross-examination, but no such fact

could be elicited in their cross-examination, so as to affect their

testimony or otherwise to draw any adverse inference against these

witnesses. The version of these witnesses is supported by medical

evidence. There is absolutely no material to indicate that any scuffle

has taken place between PW-3 Ravindra Pal and deceased Karan Pal

or that deceased was murdered by PW-3, as suggested by learned

counsel for the appellants. This argument is purely hypothetical and

has no basis at all. Thus, we do not find any force in the contention

raised by learned counsel for appellants.

24.It is correct that PW-3 Ravindra Pal has accepted in their cross-

examination that wife of deceased Karan Pal has also reached at the

spot but she was not examined, however, it is well settled position of

law that prosecution is not required to examine each and every witness

of incident. In Raghubir Singh Vs. State of U.P., (1972) 3 SCC 79, it

was held that the prosecution is not bound to produce all the witnesses

said to have seen the occurrence. Material witnesses considered

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necessary by the prosecution for unfolding the prosecution story alone

need be produced without unnecessary and redundant multiplication of

witnesses. In fact, it is not the quantity but quality of evidence which

matters. In the instant case, prosecution has examined it's star

witnesses, namely PW-3 Ravindra Pal and PW-5 Ved Pal, who

sustained injuries in the very same incident. As prosecution has

examined two eye-witnesses of the alleged incident, no adverse

inference can be drawn against prosecution case on the ground that

wife of deceased Karan Pal was not examined or that any other eye-

witnesses, who reached at the spot, was not examined. The contention

of the learned counsel has no force.

25.Learned counsel for the appellants could not point out any major

contradiction or inconsistency in the statements of eye witnesses. Both

the witnesses have been subjected to cross-examination, but nothing

adverse could be elicited from them. The testimony of PW 3 Ravindra

Pal has been corroborated by PW-5 Ved Pal. Their version is supported

by medical evidence. It is a well settled law that the minor

discrepancies are not to be given undue emphasis and the evidence is

to be considered from the point of view of trustworthiness. The test is

whether the same inspires confidence of the Court. If the evidence is

incredible and cannot be accepted by the test of prudence, then it may

create a dent in the prosecution version. If an omission or discrepancy

goes to the root of the matter and ushers in incongruities, the defence

can take advantage of such inconsistencies, however in the instant

case, no such discrepancy has been shown. Minor contradictions,

inconsistencies or insignificant embellishments do not affect the core

of the prosecution case and should not be taken to be a ground to reject

the prosecution evidence. In the instant case, no such contradiction,

inconsistency or omission could be shown, which could create a

serious doubt about the truthfulness or creditworthiness of eye

witnesses PW 3 Ravindra Pal and PW-5 Ved Pal.

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26.One of the important aspect of the case is that PW-3 Ravindra

Pal and PW-5 Ved Pal have sustained injuries in the same incident. PW

3 Ravinder has sustained as many as 13 injuries, while PW-5 Ved Pal

sustained 5 injuries in the alleged incident. This fact establishes their

presence at the spot beyond any reasonable doubt. The testimony of a

witness, who is himself an injured in the same incident, is considered

of utmost importance. In Jarnail Singh Vs. State of Punjab (2009)

9SCC 719, the Hon'ble Supreme Court reiterated the special

evidentiary status accorded to the testimony of an injured accused. It

was held that the fact that witness sustained injuries at the time and

place of occurrence, lends support to his testimony that he was present

during the occurrence. In case the injured witness is subjected to

lengthy cross- examination and nothing could be elicited to discard his

testimony, it should be relied upon. Similar view was expressed in the

case of Krishan v State of Haryana, (2006) 12 SCC 459. With respect

to the evidence of victim, in Criminal Appeal Nos. 513-514 of 2014

Baleshwar Mahto & Anr. v. State of Bihar & Anr., decided on

09.01.2017, Hon'ble Apex Court reiterating the law laid down in case

of Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, held

as under :

“28. The question of the weight to be attached to the

evidence of a witness that was himself injured in the course

of the occurrence has been extensively discussed by this

Court. Where a witness to the occurrence has himself been

injured in the incident, the testimony of such a witness is

generally considered to be very reliable, as he is a witness

that comes with a built-in guarantee of his presence at the

scene of the crime and is unlikely to spare his actual

assailant(s) in order to falsely implicate someone.

"Convincing evidence is required to discredit an injured

witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3

SCC 881:1973 SCC (Cri) 563:AIR 1972 SC 2593],

16

Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974

SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of

Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai

v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri)

559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra

[(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh

[(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State

of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p.

606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC

270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan

[(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy

Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 :

(2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra

[(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] 29. While

deciding this issue, a similar view was taken in Jarnail

Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC

(Cri) 107] , where this Court reiterated the special

evidentiary status accorded to the testimony of an injured

accused and relying on its earlier judgments held as under:

(SCC pp. 726-27, paras 28-29)

"28. …...In Shivalingappa Kallayanappa v. State of

Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694]

this Court has held that the deposition of the injured witness

should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major

contradictions and discrepancies, for the reason that his

presence on the scene stands established in case it is proved

that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 :

2004 SCC (Cri) 2021] a similar view has been reiterated

observing that the testimony of a stamped witness has its

own relevance and efficacy. The fact that the witness

sustained injuries at the time and place of occurrence, lends

support to his testimony that he was present during the

occurrence. In case the injured witness is subjected to

lengthy cross-examination and nothing can be elicited to

17

discard his testimony, it should be relied upon (vide Krishan

v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC

(Cri) 214] ). Thus, we are of the considered opinion that

evidence of Darshan Singh (PW 4) has rightly been relied

upon by the courts below."

30. The law on the point can be summarised to the effect

that the testimony of the injured witness is accorded a

special status in law. This is as a consequence of the fact

that the injury to the witness is an inbuilt guarantee of his

presence at the scene of the crime and because the witness

will not want to let his actual assailant go unpunished

merely to falsely implicate a third party for the commission

of the offence. Thus, the deposition of the injured witness

should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major

contradictions and discrepancies therein."

Applying the above principles of law to the facts of the present

case, we find that testimony of injured witnesses PW -3 Ravinder and

PW -5 Ved Pal is consistent and cogent. They have stood the test of

cross-examination and their version is supported by medical evidence.

PW-3 Ravinder has lodged report without any undue delay naming all

the accused-appellants. No such reasons could be shown to suggest

that why they would name accused-appellants falsely sparing actual

assailants. Considering all aspects of the case, testimony of PW 3

Ravinder and PW-5 Vedpal, is credible and inspires confidence of the

Court. On the basis of evidence on record, prosecution has established

involvement of all the accused-appellants.

27.It was next argued that there is no evidence that all the three

accused persons have common intention to commit the incident. It was

pointed out that even as per prosecution version, deceased Karan Pal

has appeared at the spot suddenly and thus, there is no question of

common intention amongst all the accused persons to commit his

murder. It was further submitted that as per prosecution version,

18

accused-appellant Manvender and Devender have not caused any

injury to the deceased, nor they have been attributed to any exhortation

to commit murder of deceased. Learned counsel argued that there is

absolutely no evidence that accused-appellant Manvender and

Devender have any pre-arranged plan to commit murder of deceased

and thus, they cannot be attributed to common intention for murder of

deceased.

28.Perusal of evidence on record shows that initially all the three

accused persons have assaulted PW-5 Ved Pal with club and stick and

when PW-3 Ravindra Pal reached there to save his father, he was also

assaulted by the accused persons. Thus, so far as conviction of all

three accused-appellant under Section 307/34 of IPC is concerned, the

common intention of accused persons to cause injuries to PW-5 Ved

Pal and PW-3 Ravindra Pal is established. The facts and evidence on

record clearly show that so far as the charge under section 307/34 of

IPC is concerned, all the three accused-appellants have common

intention to assault them.

29. However, so far as the murder of deceased Karan Pal is

concerned, it appears from evidence that deceased Karan Pal, who was

working in nearby field, has reached at the spot after hearing cries of

PW-5 Ved Pal and when he tried to intervene, accused-appellant

Harendra has fired a bullet on his back, resulting his death. It is not the

case of prosecution that accused persons were having any enmity with

deceased Karan Pal. Deceased was also not shown involved in the

alleged earlier incident of 09.04.1985. There is no evidence, at all, that

accused appellants Manvendra and Devendra have caused any injury

to deceased Karan Pal or that they made any exhortation to kill

deceased Karan Pal. There is no evidence to indicate that all the three

accused persons have any pre-arranged plan to commit murder of

deceased. The essential constituent of the vicarious criminal liability

prescribed by Section 34 is the existence of common intention. If the

19

common intention in question, animates the accused persons and, if

the said common intention leads to the commission of the criminal

offence charged, each of the persons sharing the common intention is

constructively liable for the criminal act done by one of them.

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.

Common intention essentially being a state of mind and can only be

gathered by inference drawn from facts and circumstances established

in a given case. In the case of Hira Lal Malik v. State, 1977 CriLJ

1921, the Supreme Court observed that :

“38.Common intention is a state of mind of an accused which can be

inferred objectively from his conduct displayed in the course of

commission of crime as also prior and subsequent attendant

circumstances. Mere participation in the crime with others is not

sufficient to attribute common intention to one of others involved in the

crime. The subjective element in common intention therefore should be

proved by objective test. It is only then one accused can be made

vicariously liable for the acts and deeds of the other co-accused.”

(emphasis supplied)..

The Hon'ble Supreme Court in the case of Ramesh Singh @

Photti v. State of A.P., (2004) 11 SCC 305, has extensively dealt with

the scope of Section 34 of the IPC. It was observed that :

“To appreciate the arguments advanced on behalf of the

appellants it is necessary to understand the object of incorporating

Section 34 in the Indian Penal Code. As a general principle in a case of

criminal liability it is the primary responsibility of the person who

actually commits the offence and only that person who has committed the

crime can be held to guilty. By introducing Section 34 in the penal code

the Legislature laid down the principle of joint liability in doing a

criminal act. The essence of that liability is to be found in the existence

of a common intention connecting the accused leading to the doing of a

criminal act in furtherance of such intention. Thus, if the act is the result

of a common intention then every person who did the criminal act with

that common intention would be responsible for the offence committed

irrespective of the share which he had in its perpetration. Section 34 IPC

embodies the principles of joint liability in doing the criminal act based

20

on a common intention. Common intention essentially being a state of

mind it is very difficult to procure direct evidence to prove such

intention. Therefore, in most cases it has to be inferred from the act like,

the conduct of the accused or other relevant circumstances of the case.

The inference can be gathered by the manner in which the accused

arrived at the scene, mounted the attack, determination and concert with

which the attack was made, from the nature of injury caused by one or

some of them. The contributory acts of the persons who are not

responsible for the injury can further be inferred from the subsequent

conduct after the attack. In this regard even an illegal omission on the

part of such accused can indicate the sharing of common intention. In

other words, the totality of circumstances must be taken into

consideration in arriving at the conclusion whether the accused had the

common intention to commit an offence of which they could be

convicted. (See Noor Mohammad Yusuf Momin AIR 1971 SC 855)''.

In case Nand Kishore v. State of Madhya Pradesh, (2011) 12

SCC 120, the Apex Court discussed the ambit and scope of Section 34

IPC as well as its applicability to a given case, as under:

...“20. A bare reading of this section shows that the section could be

dissected as follows:

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the common intention of all;

and

(c)Each of such persons is liable for that act in the same manner as

if it were done by him alone.

It was held that these three ingredients would guide the court in

determining whether an accused is liable to be convicted with the aid

of Section 34. While first two are the acts, which are attributable and

have to be proved as actions of the accused, the third is the

consequence. Once the criminal act and common intention are proved,

then by fiction of law, criminal liability of having done that act by each

person individually would arise. The criminal act, according to Section

34 of IPC must be done by several persons. The emphasis in this part

of the Section is on the word "done". It only flows from this that before

a person can be convicted by following the provisions of Section 34 of

IPC, that person must have done something along with other persons.

Some individual participation in the commission of the criminal act

21

would be the requirement. Every individual member of the entire

group charged with the aid of Section 34 of IPC must, therefore, be a

participant in the joint act which is the result of their combined

activity.

In fact law journals are replete with cases, wherein it has been

consistently laid down by the Apex Court that common intention

implies acting in concert and existence of a pre-arranged plan which is

to be proved either from conduct or from circumstances or from any

incriminating facts. It requires a prearranged plan and it presupposes

prior concert. Therefore, there must be prior meeting of minds.

In view of the above discussion, it is manifest that to establish a

case under section 34 of IPC, prosecution has to prove beyond all

reasonable doubt that the appellant had the knowledge of the intention

of his co accused, and they voluntarily shared the said intention. The

prosecution has to establish that in furtherance of the said intention,

the appellant committed certain overt act which was responsible for

the murder of the deceased. It is not that each and every act done

during the course of attack on the deceased would indicate that the

appellant shared the common intention, and only such overt act may

be relevant which indicate that the appellant also shared the intention

to cause the death of the deceased.

It would also be pertinent to observe that common intention

required by Section 34 of IPC is different from the same intention or

similar intention. As observed by the Privy Council in Mahbub Shah v.

King Emperor I.L.R. (1945) IndAp 148 common intention within the

meaning of Section 34 of IPC implies a prearranged 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

prearranged 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. Section 34 of IPC lays down a principle of

22

joint liability in the doing of a criminal act. The essence of that

liability is to be found in the existence of common intention animating

the accused leading to the doing of a criminal act in furtherance of

such intention. The distinct feature of Section 34 of IPC is the element

of participation in action.

Keeping the aforesaid legal position in mind, when we revert to

the facts of the present case, it is clear that accused-appellants have

common intention to cause injuries to PW-3 Ravindra Pal and PW-5

Ved Pal. Both these witnesses were attacked by all the accused-

appellants with club and stick (khalwa). There is consistent evidence

that all the three accused-appellants have caused injuries to PW-3

Ravindra Pal and PW-5 Ved Pal. However, it appears that deceased

Karan Pal was murdered only because he has appeared at the scene of

offence in order to intervene and to save PW 5 Ved Pal. As deceased

tried to intervene, accused-appellant Harender fired a bullet on him

from behind. There is no evidence that accused-appellants Manvendra

and Devendra have caused any injury to deceased Karan Pal or that

they made any exhortation to kill him. There is absolutely no evidence

of any prior concert or existence of a pre-arranged plan among all

three accused persons to commit murder of deceased. So far as murder

of deceased Karan Pal is concerned, accused-appellants Manvendra

and Devendra have not been attributed any role whatsoever.

Considering the entire evidence carefully, it appears that act of

causing murder of deceased Karan Pal was individual act of accused-

appellant Harendra. There is absolutely nothing to indicate that

accused-appellant Manvendra and Devendra have common intention

with accused Harendra to commit murder of deceased Karan Pal. This

position finds further support from the fact that even the learned trial

court has framed charge against accused Harendra under Section 302

of IPC simplicitor and in the same way, accused-appellant Harendra

was convicted under Section 302 of IPC simplicitor, while accused

23

appellants Manvendra and Devendra have been charged and convicted

under Section 302/34 of IPC. Thus, even as per prosecution case,

accused appellant Manvendra and Devendra were not having common

intention with accused Harendra to commit murder of deceased Karan

Pal. Had it been so, all the three accused persons must have been

charged under Section 302/34 of IPC. In view of these facts and

evidence, conviction of accused-appellant Manvender and Devender

under section 302/34 IPC does not appear in accordance with law.

30.Having considered the entire evidence on record, it is manifest

that conviction of all the three accused-appellants under Section

307/34 of IPC is based on evidence and it does not call for any

interference. However, so far as the conviction of accused appellants

Manvendra and Devendra under Section 302/34 of IPC is concerned,

prosecution has failed to prove that these two accused appellants were

having common intention with accused Harendra, who has caused

death of deceased by firing a single bullet on him and thus, accused-

appellants Manvendra and Devendra are entitled for acquittal under

Section 302/34 of IPC. However, so far conviction and sentence of

accused-appellant Harendra under Section 302 of IPC is concerned, it

is based on evidence and he has rightly been convicted.

31.In view of aforesaid, conviction and sentence of accused

appellant Harendra under Section 302 is affirmed. Similarly,

conviction and sentence of all the three accused appellants, namely,

Harendra, Manvendra and Devendra under Section 307/34 of IPC is

also affirmed. Conviction and sentence of accused appellants

Manvendra and Devendra under Section 302/34 of IPC is set aside. All

the three accused appellants are stated to be on bail, their bails are

cancelled and they be taken into custody forthwith for serving

remaining sentence.

32.The appeal is partly allowed in above terms.

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33.Copy of this judgment and order be sent to Court concerned

forthwith for necessary compliance.

Date: 22.10.2019

A. Tripathi

(Raj Beer Singh, J) (Pritinker Diwaker, J)