2004 Supreme(SC) 1533

2004(8) Supremw 718
SUPREME COURT OF INDIA
(From Allahabad High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Israr -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 1425 of 2004
(Arising out of SLP (Crl.) No. 638/2004)
Decided on 6-12-2004
Counsel for the Parties :
For the Appellant : Salman Khurshid, Sr. Advocate, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Sandeep Singh, Jitendra Mohan Sharma, Advocates.
For the Respondent : Sahdev Singh and Jatinder Kumar Bhatia, Advocates.

IMPORTANT POINT
To bring home the charge of common intention prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all accused to commit offence for which they were charged, be it pre-arranged or on spur of moment but it must necessarily be before commission of crime.

Headnote:(i) CRIMINAL LAW-Principle of "falsus in uno falsus in omnibus" (false in onething, false in everything)-Maxim his no application in India no has come to occupy status of rule of law-It is merely a rule of caution-Doctrine merely involves question of weight of evidence which a Court may apply in a given set of circumstances.

       Held : Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called `a mandatory rule of evidence . (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366). (Para 17)

       (ii) Indian Penal Code, 1860-Section 302/34-Appellant caught hold of deceased from back and other accused inflicted knife blows to deceased-Conviction by Courts below-Appeal-Plea of non-probability of identification-Occurrence took place at about 9.30 p.m.-Date of occurrence was 11th day of lunar month and place of occurrence was near mosque and many houses near by-A known person could be identified from a distance even without much light-Evidence of eye witness PW 3 was corroborated by evidence of other witnesses-Conviction could not be interfered. (Para 19)

       (iii) Indian Penal Code, 1860-Section 34-Principle of joint liability in criminal act-To bring home charge of common intention, prosecution has to establish by evidence, whether direct or circumstantial that there was plan or meeting of mind of all accused-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 common intention.

       Held : 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 show some overt act on the part of the accused. (Para 23)