IMPORTANT POINTS
Under section 34 IPC each person sharing the common intention is constructively liable for criminal act done by any one of them.
In some ways sections 34 and 149 IPC are similar and in some cases they may overlap.
A close relative, being a natural witness, cannot be regarded as an interested witness.
Evidence of such witness if intrinsically reliable or inherently probable may, by itself, be sufficient to base a conviction thereon.
Non-examination of material witness would not be fatal to prosecution story if other evidence is trustworthy.

Headnote:(a) Indian Penal Code, 1860 – Section 34 – Constructive vicarious criminal liability – Common intention – Each person sharing the common intention is constructively liable for criminal act done by any one of them – Common intention denotes action-in-concert and necessarily postulates existence of a prearranged plan – Meaning a prior meeting of minds – Element of participation in action on the part of all the accused persons necessary ingredient of section 34 – Acts may be different and vary in their character, but all actuated by the same common intention (Para 20)
       AIR 1955 SC 216; AIR 1963 SC 174; (1976) 4 SCC 640; (2003) 1 SCC 268; AIR 1925 PC 1; (2013) 3 SCC 675 – Relied upon
       (b) Indian Penal Code, 1860 – Section 34 and 149 – Constructive criminal liability – Unlawful assembly having common object u/s 149 – combination of persons having common intention u/s 34 – Common object and common intention – Distinction – In some ways the two sections are similar and in some cases they may overlap. (Para 20)
       AIR 1963 SC 174 – Relied upon
       (c) Indian Penal Code, 1860 – Section 34 – Appellants carrying lathi and ballam accompanying other accused carrying gun – All of them arriving at a particular place – All entering the shed – Deceased found murdered – Constructive liability attracted. (Para 25)
       AIR 1954 SC 706; AIR 1960 SC 289 – Relied upon
       (2012) 9 SCC 249; (1999) 3 SCC 102; (2013) 11 SCC 193 – Referred
       (d) Criminal trial – Related witness – Evidence of related witnesses – A close relative, being a natural witness, cannot be regarded as an interested witness – Such evidence if intrinsically reliable or inherently probable may, by itself, be sufficient to base a conviction thereon – Instantly related witnesses deposing in detail about previous enmity between the parties, their presence at the spot, weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused – Also testifying as regards the deceased lying in a pool of blood – No reason why they would implicate the appellants – Nothing elicited in cross-examination discrediting their testimony – No infirmity in conviction on basis of such evidence. (Para 26)
       (1981) 3 SCC 675; (1996) 1 SCC 614 – Relied upon
       (e) Criminal trial – Appreciation of evidence – Chance witness – PW-3 deposing that he accompanied PW-2 to the shed on the fateful day – Mere fact that he was not going daily to the tube well cannot lead to inference that his evidence should be brushed aside – Held, evidence of PW-3 neither doubtful nor creating any suspicion. (Para 28)
       (1983) 3 SCC 327 – Relied upon
       (f) Criminal trial – Non-examination of material witness – Not fatal to prosecution story if other evidence is trustworthy – Instantly non-examination of Nepal Singh and other two persons referred to by PW-2, held, not affecting the prosecution version or creating any doubt in the mind of the Court. (Para 30, 32)
       (2001) 6 SCC 71; (2001) 6 SCC 145; (2012) 10 SCC 256; (2013) 12 SCC 746; (2014) 11 SCC 335 – Relied upon
       (g) Indian Penal Code, 1860 – Section 34 – Absence of injury due to lathi or ballam carried by appellants – Appellants having common intention with others – Rightly convicted with the aid of section 34. (Para 34)
       (2015) 13 SCC 99– Distinguished
       Criminal Appeal No. 210 of 2005 – Referred
       (h) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A and 20 r/w Juvenile Justice (Care and Protection of Children) Rules, 2007 – Appellant Vijendra Singh found to be juvenile on date of occurrence – Appellant remaining in custody for more than the maximum period for which he could have been confined to a special home – Appellant released from custody forthwith, while sustaining the conviction. (Para 36)
       (2009) 13 SCC 211 – Relied upon
       Facts of the case:
       Appellants along with two others were convicted under Section 302 read with Section 34 of the Indian Penal Code and were awarded the sentence of life imprisonment.
       The High Court affirmed the same.
       Finding of the Court:
       Appellant Mahendra Singh rightly convicted. Appellant Vijendra Singh was juvenile on the date of occurrence.

       Result: Criminal Appeal No. 1452 of 2010 dismissed and Criminal Appeal No. 1448 of 2010 disposed of.

JUDGMENT

Dipak Misra, J.

Present appeals, by special leave, call in question the defensibility of the judgment of conviction and the order of sentence dated 13.05.2009 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 1019 of 1981 whereby the Division Bench of the High Court has confirmed the judgment and order passed by the learned IV Additional Sessions Judge, Meerut in Sessions Trial No. 308 of 1979 whereunder the appellants along with two others stood convicted under Section 302 read with Section 34 of the Indian Penal Code (IPC) and visited with the sentence of life imprisonment.

2. Filtering the unnecessary details, the facts which are necessary to be adumbrated for the adjudication of the instant appeals are that there was enmity between the accused, Dharam Pal and his family on the one side and Charan Singh, PW-1, on the other. Charan Singh, PW-1, Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to village Dastoi, to which the deceased, Badan Pal, the nephew of Charan Singh as well as the accused persons belong. As the prosecution story further unfurls, sometime prior to the occurrence, Gaje Singh, brother of the accused, Dharam Pal, was murdered and Charan Singh, PW-1, along with others had faced trial for his murder and eventually got acquitted. The occurrence leading to the murder of Badan Pal took place in the evening hours of 26.03.1979. Badan Pal was a student and he used to stay overnight at his tube-well which had a shed in the jungle of village Sarva. On the date of occurrence, he was at the aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in the fateful evening while carrying the meals for Badan Pal, on their way, met Tedha, PW-3, who wanted to irrigate his fields from the aforesaid tube-well. All of them reached near the said tube-well about 7.30 p.m. when they heard the sound of a gun fire from inside the “kotha” (shed) of the said tube-well. They reached the place without loss of any time and noticed that all the four accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came out of that “kotha”. Dhani Ram and Dharam Pal carried pistols, Vijendra was armed with a ballam and Mahendra carried a lathi. On seeing them, they took to their heels. After they reached the place, they found Badan Pal lying dead with bleeding wounds. The aforesaid witnesses identified the accused persons in the light of the electric bulb fixed on the roof of the tube-well as well as in the torch light. A report of the occurrence was prepared by Devendra Singh with the assistance of Charan Singh, PW-1, and was filed at Police Station Kharkhauda. After the criminal law was set in motion, the investigation was conducted by S.I. Rajveer Singh, PW-8, who after recording the statements of some of the witnesses under Section 161 CrPC between 6 a.m. to 8 a.m. on the next day, prepared the panchanama and the sketch map of the spot and collected blood stained and unstained earth as well as two cartridges. These were sealed on the spot and the dead body was sent for postmortem. On 29.03.1979, the investigation was transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that all the accused persons except Dhani Ram had surrendered before the Court and had been sent to custody. Dhani Ram was arrested by S.I. V.P. Saxena at Meerut on 19.04.1979. Eventually after concluding the investigation, charge sheet was laid against the accused persons before the concerned Magistrate.

3. After the matter was committed to the Court of Session, charges were framed under Section 302 read with Section 34 IPC against the accused persons on 10.01.1980. The accused persons abjured their guilt and intended to face trial. The prosecution in order to bring home the charges examined 11 witnesses and marked certain documents as exhibits. Defence chose not to adduce any evidence.

4. The trial court evaluating the ocular and the documentary evidence brought on record found the accused person guilty of the offence under Section

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2017 Supreme(SC) 19

Cases Referred (22)