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CASE NO.:

Appeal (crl.) 924 of 2001

PETITIONER:

Janak Singh and Anr.

RESPONDENT:

State of Uttar Pradesh

DATE OF JUDGMENT: 19/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J

The appellants were convicted for offences punishable

under Section 302 read with Section 34 of the Indian Penal

Code 1860 (in short the 'IPC') and sentenced to undergo life

imprisonment by the Trial Court. They did not get any relief

from the Allahabad High Court which by the impugned judgment

upheld the conviction and sentence.

The prosecution version as unfolded during trial is as

follows:

After death of Durga Singh, each of his three sons

became owner of about 30 bighas of land. One of them,

Khetrapal (hereinafter referred to as the 'deceased') was

issueless. Earlier Khetrapal used to reside with accused

Janak Singh and the latter used to cultivate the land which

fell to share of Khetrapal also. But about a year or 1-1/2

years prior to the incident in question, Khetrapal started

living with Bhuri Singh (PW-1). The land of Khetrapal

Singh, which was earlier being cultivated by Janak Singh

came into the possession of Bhuri Singh. This was to the

disliking of accused Janak Singh. Khetrapal wanted to

execute a will in favour of Bhuri Singh. On the date of

incident, i.e. 16.10.1979 at about 10 a.m., Khetrapal along

with Bhuri Singh (PW-1) and Surjeet Singh (PW-7) were

proceeding to Etmadpur Tehsil for execution of the Will and

when they reached near the pit, the accused Janak Singh

armed with a country made pistol and accused Sarvesh with a

gun arrived there and enquired from Khetrapal whether he was

going to execute a will in favour of Bhuri Singh and when

Khetrapal replied in affirmative, Janak Singh told that they

would not allow him to do so. Thereafter both accused Janak

Singh and Sarvesh fired upon Khetrapal who fell down on the

ground on receiving gunshot injuries. When Bhuri Singh and

Surjeet Singh (PW-7) tried to save Khetrapal, they were also

fired upon by the accused persons and they also sustained

fire arm injuries. When deceased Khetrapal fell down on the

ground accused Sarvesh fired at Khetrapal from his gun,

resulting in Khetrapal's instantaneous death. Bhuri Singh

(PW-1) then lodged the first information report, which was

ascribed by Ram Singh at police station Etmadpur on the same

day at 1.30 p.m., the distance of police station being 4

miles from the place of occurrence. On the basis of the

written report, chik First Information Report was prepared

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by the Head Moharrir, Bihari Ji Yadav and the case was

registered in the General Diary. The Station Officer Mahabir

Singh took up investigation and interrogated Bhuri Singh and

Surjeet Singh at the police station itself and sent both of

them to hospital for medical examination with constable

Lajja Ram. The investigation was undertaken and on

completion thereof charge sheet was placed and accused

persons faced trial. To substantiate its accusations the

prosecution examined 8 witnesses. Though PWs 1 and 7 were

stated to be eyewitnesses who had sustained injuries during

the occurrence, PW-7 resiled from the statement given during

investigation. So, the prosecution case rested on the

testimony of PW-1 the injured eyewitness. The Trial Court

found that his evidence was credible and cogent and

conviction was made as noted above.

The main stand of the accused persons before the High

Court was that evidence of PW-1 did not inspire confidence

as it was at a great variance with the medical evidence.

Therefore, he being an interested person who would be

beneficiary if the accused persons are convicted, without

corroboration his evidence should not be acted upon. The

specific plea regarding the variation of PW-1's evidence

vis-a-vis medical evidence was with reference to distance.

According to the doctor, the gun shot which caused injury

was fired from a distance of about 3-4 ft. According to PW-

1, the distance was about 20-25 ft. The Trial Court noticed

that PW-1 was a person who even did not know how to sign and

gave thumb impression. His perception of distance being

that of a layman, no undue importance should be attached to

the estimated distance. Similar plea raised before the High

Court also did not find acceptance.

In support of the appeal, Mr. U.R. Lalit, learned

senior counsel, submitted that PW-1's evidence is not

credible and cogent. The High Court should not have tried

to lightly brush aside the inconsistency clearly noticeable

between his evidence and that of the doctor who stated that

the injuries found in the body of the deceased could be

caused if gun shot was done from a short distance. Further,

there was no effort made to seize the gun allegedly used by

A-2. That would have shown whether the injuries sustained

could have been caused by the gun allegedly used by the

accused persons. There was no injury on the backside and the

only injury noticed on PW-1 was near the eyebrow. It was

submitted that Section 34 IPC has no application.

In response, learned counsel for the State supported

the judgments and submitted that concurrent findings

recorded by the Trial Court and the High Court on analysing

the evidence should not be disturbed.

We shall first deal with the plea regarding the alleged

inconsistency between the eyewitness version and the medical

evidence as to the distance from which the gun was fired.

Where direct evidence of the eyewitness is that the accused

committed the murder by firing a gun some inconsistency

relating to distance based on medical opinion offered would

be of no significance whatsoever. (See Karnail Singh and

Others v. The State of Punjab (AIR 1971 SC 2119). The view

in Karnail Singh's case (supra) was also reiterated in State

of Uttar Pradesh v. Sughar Singh and Others. (AIR 1978 SC

191).

Section 34 has been enacted on the principle of joint

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liability in the doing of a criminal act. The Section is

only a rule of evidence and does not create a substantive

offence. The distinctive feature of the Section is the

element of participation in action. The liability of one

person for an offence committed by another in the course of

criminal act perpetrated by several persons arises under

Section 34 if such criminal act is done in furtherance of a

common intention of the persons who join in committing the

crime. Direct proof of common intention is seldom available

and, therefore, such intention can only be inferred from

the circumstances appearing from the proved facts of the

case and the proved circumstances. In order to bring home

the charge of common intention, the prosecution has to

establish by evidence, whether direct or circumstantial,

that there was plan or meeting of mind of all the accused

persons to commit the offence for which they are charged

with the aid of Section 34, be it pre-arranged or on the

spur of moment; but it must necessarily be before the

commission of the crime. The true contents of the Section

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

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no injury has been caused by the particular accused himself.

For applying Section 34 it is not necessary to show some

overt act on the part of the accused.

The 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, and seems to have been rightly and properly

applied also.

Though the evidence of PW-1 was assailed on the ground

that he is the beneficiary if accused persons are convicted,

we find he had sustained injuries. His evidence was

carefully analysed by the courts below and we do not find

any noticeable discrepancy in his evidence to discard it.

The judgments of the Trial Court and the High Court are

well-reasoned with conclusions and finding recorded therein

supported by ample, concrete and relevant evidence and

consequently the conviction suffers from no infirmity to

warrant any interference. It is not a fit case where

jurisdiction under Article 136 of the Constitution of India

needs to be exercised. The appeal is dismissed. The

accused persons who are on bail are directed to surrender to

custody forthwith to serve remainder of sentence.