REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1240 OF 2006

Javed Alam ..Appellant

versus

State of Chhattisgarh and Anr. ..Respondents

(With Criminal Appeal No. 1241 of 2006)

(With Criminal Appeal No. 1242 of 2006)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.Challenge in these appeals is to the judgment of a Division Bench of

the Chhattisgarh High Court, Bilaspur upholding the conviction of the

appellants for offence punishable under Section 302 read with Section 34 of

the Indian Penal Code, 1860 (in short the ‘IPC’). By the impugned

judgment, the High Court upheld the conviction of appellant Samar Vijay

Singh for offence punishable under Section 302 IPC for committing the

murder of Ku. Preeti (hereinafter referred to as the ‘deceased’) on 3.12.1998

in Government Girls College Campus, Ambikapur by running over her a

jeep. The co-accused appellants Javed, Raj Kumar and Ganesh were

convicted under Section 302 read with Section 34 IPC for causing death of

Ku. Preeti in furtherance of their common intention with the appellant Samar

Vijay Singh. Co-accused Ranvijay Singh, father of accused Samar Vijay and

owner of the jeep was acquitted of the charge under Section 201 IPC.

2.Prosecution case is that on 3.12.1998 Ku. Preeti Srivastava, a student

of B.A. final in Govt. Girls College, Ambikapur was sitting with Ku.

Vijaylaxmi Mishra (PW-7), Ku. Seema Mishra (PW-8) and Ku. Nisha

Thakur (PW-17) in the campus of the College since the second period was

free. Her bag and tiffin were kept by the side of the road. Many other girls

were basking in the sun inside the campus. At about 10:45 A.M., a jeep

driven by Samar Vijay Singh suddenly entered the college campus and

crushing the bag and the tiffin of Ku. Preeti Shrivastava underneath, went

ahead. Accused Rajkumar Tiwari, Javed Alam and Ganesh Kashyap were

accompanying Samar Vijay Singh in the jeep. Seeing her tiffin and bag

crushed by the jeep, Ku. Preeti Srivastava decided that she would stop the

jeep on its return and ask the driver to make good the loss suffered. When

the jeep returned, Ku. Preeti stopped the jeep, stood in front of it and asked

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accused-appellant Samar Vijay Singh to repair the tiffin and bag for her.

Hearing this, the occupants of the jeep including the driver started laughing.

The girls noticed that the occupants of the jeep were calling each other by

names and thereby learnt that Samar Vijay Singh, the driver of the jeep was

accompanied by Rajkumar Tiwari, Javed Alam and Ganesh Kashyap.

Appellant Samar Vijay Singh asked Ku. Preeti to get out of his way falling

which, threatened to crush her under the jeep. However, Ku. Preeti stood

firm and did not budge. Accused Rajkumar Tiwari, Javed & Ganesh asked

Samar Vijay Singh to crush Ku. Preeti if she did not give way. Upon this,

Samar Vijay Singh moved the jeep ahead and pushed Ku. Preeti who fell

down. When the girls were about to move for picking up Preeti, Samar Vijay

Singh reversed and then accelerated the jeep ahead, crushing Preeti's head

under the jeep in the process and ran away with the co-appellants.

Ku. Vijaylaxmi PW-7, threw a stone at the jeep, which hit the bumper

of the jeep. She noted down the number of the jeep in her palm as M.P. 27-

1962 Lalita Yadav PW-6, attempted to catch hold of one of the appellants

but she was pushed and fell down. Ku. Vijaylaxmi noticed that the jeep had

a sticker “Vote for the Congress” on the back number plate.

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The girls got frightened and informed Asst. Professor Smt. Archana

Singh (PW-9) and Asst. Professor Smt. Pratibha Singh PW-10 about the

incident who along with Ku. Lalita Yadav (PW-6), Ku. Vijaylaxmi (P.W.7),

Ku. Kumudini Kerkatta (PW 4) & Ku. Urmila Paikra (PW-5) took the

injured Ku. Preeti to the District Hospital, Ambikapur. Clerk Tarachand

Sahu PW-11 of the Girls College reached the spot thereafter and on being

instructed by the Principal lodged the F.I.R. Ex.P-12 at 11.00 a.m. in Police

Station, Ambikapur to Assistant Sub-Inspector B.N. Singh (PW-31)

After investigation charge sheet was filed.

Since the accused persons abjured guilt the trial was held. Prosecution

examined 39 witnesses. Learned Sessions Judge acquitted Ranvijay Singh

for want of evidence and convicted rest of the accused persons as noted

above. The basis of conviction was as follows:

1.Testimony of Ku. Lalilta Yadav PW-6, Ku. Nisha (PW-

17), Ku. Seema Misra (PW-8), Dr. M.L Beatrice (PW-3), Dr.

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A.K. Jain (PW-33) proving that Ku. Preeti died a homicidal

death.

2. Statements made by Ku. Lalita Yadav PW-6 and Ku.

Vijaylaxmi PW-7, as forming part of res-gestae under Section-6

of the Evidence Act to Shri R. N. Shrivastava PW-32 on his

reaching the hospital disclosing the names of the driver of the

jeep as Samar Vijay Singh and the occupants of the Jeep as

Rajkumar Tiwari, Javed and Ganesh.

3. Extra Judicial Confession made by the accused Raj

Kumar before Abhaydeep Singh PW-2 soon after the

occurrence, also implicating appellant Samar Vijay Singh as the

driver of the Jeep.

4. Testimony of Ku. Seema PW-8 especially in para 34 and

35 showing the three occupants of the Jeep had asked the driver

Samar Vijay to run the girl over in case she didn't give way and

Samar Vijay surging the jeep ahead crushed Preeti's head

underneath.

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5. Testimony of Arvind Gaur, Assistant Professor, P.G.

College, Ambikapur PW-12 showing that Ganesh Kashyap, a

student of B.Com 1st

year ' B' section was absent from class on

03-12-1998.

6. Testimony of Professor Rajesh Srivastava, P.G. College,

Ambikapur PW-18 showing that on 3.12.1998 Samar Vijay

Singh and Raj Kumar Tiwari, students of B.Com. 1

st

year

Section-'A' were absent from class (10 A.M. to 10:40 A.M.).

7. The fact of surrender by accused Javed and Ganesh in

Police Station Ambikapur on 04-12-1998 vide Ex. P-74 and 75.

8.(i) Seizure of Jeep No. M.P.-27-B-1068 from, in front of

the house of appellant Samar Vijay.

(ii) Merg intimation Ex. P-19 by Mariam Tirki PW-16

showing the number of the Jeep as M.P. -27-B-1068.

(iii) Testimony of Z.A. Abbasi PW-37 R.T.O. Office

Ambikapur proving ownership of Ranvijay Singh Tomar over

Jeep M.P.-27B-1068.

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(iv) Admission by Ranvijay Singh Tomar of the seizure

of Jeep M. P. 27-B-1068, in reply to Question No.218 in

examination under Section-313 of Cr. P.C.”

3.Stand of the appellants before the High Court was that there was no

legal evidence on record to substantiate the conviction and sentence. No

common intention of the occupants to cause the death of Kr. Preeti was

established by the prosecution. Seema Misra (PW-8) had stated that the

driver of the jeep wanted to get away as fast and, therefore, offence if any

committed by the driver would not travel beyond Section 304 IPC. The act

was nothing but a rash and negligent act without any intention to kill the

deceased. The High Court did not accept the stand and upheld the

conviction.

4.In support of the appeals, learned counsel for the appellants re-iterated

the stand taken before the High Court. It is to be noted that there were

purportedly four eye witnesses. They are PWs 6, 7, 8 and 17. The

occurrence took place around 10.45 a.m. on 3.12.1998 and the FIR was

lodged immediately by PWs 4 and 5 around 11.00 a.m. The deceased

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breathed her last at about 12.10 p.m. The vehicle according to the

prosecution version was being driven by Samar Vijay Singh and rest of the

occupants were other co-accused persons. It is stated that identity of the

accused persons has not been established. There is no Test Identification

Parade. Names were not mentioned in the inquest or in the FIR. The accused

persons were not known earlier and Section 6 of the Indian Evidence Act,

1872 (in short the ‘Evidence Act’) has no application. PWs 9 and 10 had not

told the names. The role of A-3 was not established. A1, A2 and A4 were

the students of the same college and one of the accused was 18 years on the

date of occurrence. There was no enmity or motive or any intention to kill

Ku. Preeti and in any event place of occurrence was not established and the

occurrence took place, even if the prosecution case is accepted, at the spur of

moment. There is no evidence to show any meeting of mind.

5.It is pointed out that most of the so called eye witnesses resiled from

their statements made during investigation. The Court has accepted the

identification by PWs 8 and 17 and in answer to the statement recorded

under Section 313 of the Code there was really no definite answer.

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6.The question of res-gestae has no application as the name given for

the first time is proved in the Court. Res Gestae was not in the police

statement. So far as Article D-7 is concerned paint is similar to that of jeep

which is scratched.

7.It is also re-iterated that the evidence on record does not make out a

case under Section 34 IPC.

8.It is a classic case of deficiency in the criminal justice system to

protect the witnesses from being threatened by accused. As appears from the

record, the witnesses are the classmates of the deceased who were there with

her. As appeared from the evidence of witnesses they backed out from what

was stated during investigation. The statement made before the Police

during investigation is no evidence. Unfortunately, in cases involving

influential people the common experience is that witnesses do not come

forward because of fear and pressure. In a brutal manner, the accused

Samarvijay Singh who was driving the vehicle run over the girl and she lost

her life. The trial Court and the High Court have highlighted certain aspects

which clearly bring out the guilt of accused Samarvijay Singh. Significant is

the evidence of PWs 7 and 8. PW-7 was the girl who accompanied the

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injured to the hospital and told about the incident to PW-3, the doctor which

was recorded in report Ex.P-4 containing the name of Ku. Vijaylaxmi PW-7

as the person told about the incident. The evidence of PW-6 Lalita Yadav

shows that PW-7 was sitting with the deceased when the jeep entered the

campus. As rightly noted by the High Court something transpired later on

which led to the witnesses giving a complete go bye to her earlier version.

More important is the evidence of PW-8 who blurted out during cross

examination some traces of truth which was labeled as unfair and dishonest

cross examination by learned counsel for the appellants. At the end of the

ordeal of her evidence she cried and requested the Court not to call her again

for evidence since they were disturbed for the entire year. The plight of the

girls who were under pressure depicts the tremendous need for witness

protection in our country if criminal justice administration has to be a

reality. Even close reading of the evidence shows that how she was under

tremendous pressure not to speak the truth. In reply to question No.27 she

said that she did not see the occupants. That is nothing, because in answer to

the next question she said that there were four boys in the jeep. Question

No.34 is very significant. It was specifically asked to the witness as to

whether the occupants of the jeep were asking Samarvijay Singh, the driver

of the jeep to run the girl over if she did not give way. Answer was that the

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boys had said so but afterwards. In answer to question No.35 she said that

Samar surged the jeep ahead, crushed the head of Preeti and went away.

She had admitted that the boys were laughing in the jeep and had said to

Samar that if the girl did not give way he should run the girl over. She had

answered in the affirmative by stating ‘yes’ to a specific question No.35

clearly meaning that crushing Preeti’s head Samar had surged the jeep

forward.

Section 6 of the Evidence Act is an exception to the rule of evidence

that hearsay evidence is not admissible. The test for applying the rule of res-

gastae is that the statement should be spontaneous and should form part of

the same transaction ruling out any possibility of concoction. In Gentele

Vijayavardhan Rao v. State of Andhra Pradesh (AIR 1996 SC 2791) it was

held in para 15 as follows:

"Section 6 of the Evidence Act and some of the succeeding

Sections embody the rule of admission of evidence relating to

what is commonly known as res-gestae. They are in the nature

of exception to 'hearsay" rule. Section-6 permits proof of

collateral statements which are so connected with the facts in

issue as to form part of the same transaction. Whether the

statement made by a witness was a part of the same transaction

or not is to be considered in the light of the circumstances of

each case. The principle is that it should be so intimately

connected with the fact in issue as to be a spontaneous utterance

inspired by the excitement of the occasion or a spontaneous

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reaction thereof, there being no opportunity for deliberately

fabricating the statement. In other words, the statement which is

a part of res-gestae does not narrate a past event, but it is the

event itself speaking through a person thus excluding the

possibility of any design behind it.”

10.The reason indicated by the High Court dismissing the appeal before

it qua accused Samarvijay Singh has no merit and is dismissed.

11.The other question is applicability of Section 34 IPC.

12.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

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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 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.

13.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

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which caused death of the deceased in the same manner as if it was done by

him alone. The provision is intended to meet a case in which it may be

difficult to distinguish between acts of individual members of a party who

act in furtherance of the common intention of all or to prove exactly what

part was taken by each of them. As was observed in Ch. Pulla Reddy and

Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is

applicable even if no injury has been caused by the particular accused

himself. For applying Section 34 it is not necessary to show some overt act

on the part of the accused.

14.The above position has been highlighted in Chimanbhai Jagabhai

Patel v. State of Gujarat & Anr. (SLP (Crl.) 352 of 2008 disposed of on 16

th

March, 2009).

15.There is no evidence, muchless credible, which has been salvaged

from the onslaught on the witnesses which suggests that there was any

meeting of minds, because everything appears to have happened suddenly.

The evidence of PW8 on which the prosecution has placed strong reliance

for the purpose of attracting Section 34 IPC gave pre-varicating statements

so far as others are concerned, through her statement is sufficient to fasten

guilt on Samar Vijay Singh.

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16.Considering the background facts it is clear that Section 34 has no

application. That being so, while dismissing the appeal filed by Samarvijay

Singh, the conviction recorded qua other accused persons has to be set aside

which we direct. They shall be released from custody forthwith unless

required to be in custody in connection with any other case.

……..……....................................J.

(Dr. ARIJIT PASAYAT)

……..…

…....................................J.

(ASOK KUMAR GANGULY)

New Delhi,

May 08, 2009

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