2008 Supreme(SC) 969

2008(4) Supreme 501
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and P.P. Naolekar, JJ.
Hardeep Singh & Ors. — Appellants
versus
State of Haryana — Respondent
Criminal Appeal No. 468 of 2007
Decided on : 11-06-08

IMPORTANT POINTS
1. In order 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 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.
2. Relationship is not a factor to affect credibility of a witness.

Headnote:Indian Penal Code, 1860 – Section 302 read with Section 34 – Prosecution of accused persons four in number for committing murder of deceased by assaulting him with deadly weapons – Trial Court while convicting appellants acquitted one of accused persons – High Court by a common judgment dismissed Criminal Appeal filed by State and Criminal Revision filed by complainant while dismissing appeal filed by appellants – Appeal against conviction – Plea of appellants that evidence of PWs 7 & 8 did not inspire confidence, particularly when they were relatives of deceased – Held Relationship is not a factor to affect credibility of a witness – It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person – Foundation has to be laid if plea of false implication is made – In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible – No Discrepancy found in evidence of PWs 7 & 8 to discard their evidence – Evidence of PWs 7 & 8 clearly established roles played by A1 and A2 – Prosecution evidence clearly indicated that on hearing of exhortation of acquitted A4, A3 and A2had given blows on legs of deceased – After deceased fell down, A1gave blow on head – Similarly A2 also gave blows on head – After deceased fell down A3 did not attack on any vital part of deceased’s body – A3 assaulted on arm of deceased – In said circumstances, while appeal filed by accused appellants A1 and A2was dismissed, appropriate conviction of A3 held to be under Section 304 Part II IPC – Appeal allowed to aforesaid extent. (Para 7, 17, 18)

        Indian Penal Code, 1860 – Section 34 – Scope and applicability – Section 34 has been enacted on 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 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, 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. (Para 14)

        Indian Penal Code, 1860 – Section 34 – Common intention-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 – 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 – 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 part of accused. (Para 15)

       Facts of the Case :

        1. Accused persons four in number were prosecuted herein in the instant case for committing murder of deceased by assaulting him with deadly weapons. Trial Court while convicting appellants acquitted one of accused persons. High Court by a common judgment dismissed Criminal Appeal filed by State and Criminal Revision filed by complainant while dismissing appeal filed by appellants.

        2. Present appeal has been filed against said order of conviction and sentence.

       Findings of the Court :

        Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. No Discrepancy was found in evidence of PWs 7 & 8 to discard their evidence. Evidence of PWs 7 & 8 clearly established roles played by A1 and A2- Prosecution evidence clearly indicated that on hearing of exhortation of acquitted A4,A3 and A2had given blows on legs of deceased. After deceased fell down, A1gave blow on head. Similarly A2 also gave blows on head. After deceased fell downA3did not attack on any vital part of deceased’s body.A3 assaulted on arm of deceased. In said circumstances, while appeal filed by accused appellants A1 and A2was dismissed, appropriate conviction of A3 held to be under Section 304 Part II IPC. Appeal was allowed to aforesaid extent.

       Result : Appeal allowed in part.