Sharma & Ors Vs. State of Jharkhand
 Insc 345 (30
Raju & Arijit Pasayat.
No. 798 of 2003 ARIJIT PASAYAT, J.
persons faced trial for alleged commission of offences punishable under
Sections 147, 148, 149, 326, 307 read with Section 34, 452 read with Section 34
and 302 read with Section 34 of the Indian Penal Code, 1860 (in short the
'IPC'). Appellant-Anil Sharma was sentenced to death. The others were sentenced
to undergo imprisonment for life under Section 302 read with Section 34 IPC.
Each was sentenced to undergo rigorous imprisonment for 10 years and to pay a
fine of Rs.2,000/- each with default stipulation for the offence punishable
under Section 307 read with Section 34 IPC.
prosecution version in a nutshell is as follows:
Ram Singh @ Manoj Singh (PW-6) who was the cousin of Sudhir Singh @ Bhoma
(hereinafter referred to as the 'deceased') lodged fardbayan. He claimed to be
an injured in the occurrence in question which took place on 22.1.1999. The
occurrence is said to have taken place at 6.45 A.M. on that day in Ward No. 2 of Jail
Hospital in Birsa Munda Central Jail, Ranchi and on the basis of fardbayan,
Lower Bazar P.S. Case No. 12/99 was registered at 11.00 A.M. on that day and formal F.I.R. (Ext. 8/1) was drawn up. The
said Fardbayan (Ext.8) along with the formal F.I.R. (Ext.8/1) was received in
the court of C.J.M., Ranchi on 23.01.1999.
in the fardbayan was that PW-6 had gone to Ward No. 2 of the Jail Hospital at
6.45 A.M. on 22.01.1999 as usual to his cousin deceased Sudhir Singh @ Bhoma
from his Ward No. 6 of the Jail and he used to sit with Sudhir for the whole
day and he also used to keep his clothes etc. there. Soon thereafter, when he
was talking with deceased Sudhir Singh, accused- appellants Anil Sharma, Sushil
Srivastava, Niranjan Kumar Singh, Md. Hasim @ Madhu Mian all armed with Chhura,
Bablu Srivastava and Gopal Das armed with belt and iron rod respectively along
with 10 or 12 other persons came near deceased Sudhir Singh and appellant Anil
Sharma caught hold of his collar and at this stage deceased asked as to
"what has happened, brother" and in the meantime appellant Anil
Sharma assaulted him by Chhura and appellant Sushil Srivastava, Niranjan Kumar
Singh and Md. Hasim @ Madhu Mian made assault on him by Chhura with which they
were armed and appellant Bablu Srivastava and Gopal Das also assaulted him by
belt and iron rod respectively, besides 10 or 12 other persons aforesaid who
had surrounded and assaulted him. The informant (PW-6) requested appellant Anil
Sharma to let off and leave deceased Sudhir Singh and also enquired as to what
is the matter, but no avail and the deceased fell on the ground as a result of
Anil Sharma thereafter mounted attack on the informant and inflicted a blow on
his neck by Chhura and appellant Sushil Srivastava and Niranjan Kumar Singh
assaulted him by Chhura causing bleeding injury on his head and left hand
respectively. The informant (PW-6) also fell down being injured and other
persons aforesaid also assaulted him by kicks and fists. There was then the
ringing of alarm bell. After few minutes the Jail constables came there blowing
whistles and during that period there was a great stampede and deceased Sudhir
Singh in an unconscious state along with the injured informant was shifted to
R.M.C.H. Ranchi for treatment where the informant was undergoing treatment. But
Sudhir Singh died on his way to the Hospital.
trial Court found the accused persons guilty on consideration of the evidence
led by the prosecution by examining 18 witnesses. Twelve witnesses were
examined on behalf of the accused persons who pleaded innocence and false
implication. They took a specific stand that they were in their wards inside the
jail and, therefore, the question of committing any murder was totally
improbable. There was no report made by Hare Ram Singh (PW-6) as claimed. The
Trial Court recorded conviction and awarded sentences as afore-noted. For its
conclusions Trial Court primarily relied on evidence of PWs 5 and 6, who
claimed to be eye witnesses.
view of the death sentence imposed on accused Anil Sharma a reference was made
to the Jharkhand High Court under Section 366 of the Code of Criminal
Procedure, 1973(in short the 'Code'). The High Court upheld the conviction as
recorded by the trial Court but altered the sentence of death imposed on the
accused appellant-Anil Sharma to one of life imprisonment. In substance, except
the modification of sentence so far as accused appellant Anil Sharma is
concerned, the appeal was dismissed. Evidence of witnesses was analysed in view
of the stand that the so-called eye witnesses version is clearly not capable of
support of the appeals, it has been submitted that there was delay in recording
the FIR. There was non-examination of many vital witnesses. Evidence of the defence
witnesses was not carefully analysed. PW-6 later on made a statement under
Section 164 of the Code that his evidence was recorded under pressure. There
were exaggerations in respect of what had been indicated in the Fardbayan as
recorded. Non production of the hospital register and non examination of the
Warden and Head Warden, cast serious doubts on the veracity of the prosecution
version and the Courts below should not have brushed aside those infirmities
lightly. The production of the register and the examination of the warden and
head warden would have established that place of occurrence as indicated is
highly improbable. The citus has not been proved. No blood stains have been
found or seized. PW-6 is not a resident of the jail. He claimed to be an inmate
of Ward No.6 and though he stated that he was inside the camp of the jail,
nothing material in that regard has been established. As soon as PW-6 came out
of the jail in May 2001, he filed an affidavit stating as to how the statements
made by him during trial were wrong. It has been erroneously held that no
prejudice was caused by not getting him re-examined.
yardsticks have been adopted for the prosecution and the defence witnesses.
PW-5's presence at the spot of occurrence as claimed is highly doubtful.
canteen manager himself has improbabilised the presence of the witnesses. Even
if it is accepted that PW-5 was present his evidence does not guarantee
truthfulness. There was no corroborative material. After having discarded the
evidence of PWs 1, 2 and 4 there was no justification to act on the evidence of
PWs 5 and
FIR has been despatched after considerable delay and there has been delayed
examination of PW-5. So far as PW-5 is concerned, he was examined under Section
164 of the Code. He has not named Sushil Srivastava in the statement recorded
before the Magistrate though in the cross examination he accepted that what was
stated before the Magistrate was correct. The assault part as indicated by PW-6
in the so-called FIR was given a go by in Court. Though in the FIR it was
stated that the assault was made by respective weapons the Court has come to a
presumptive conclusion that no physical assault was made but by holding the
head the killing by accused Anil Sharma was facilitated.
34 IPC has been wrongly applied. There was no specific role attributed to any
of the accused persons except the accused Anil Sharma. The inconsistency
between the evidence of PWs 5 and 6 probabilises the defence version. Even if
it is accepted that the accused persons except accused Anil Sharma were present
if there was no participation the conviction as made is not maintainable.
response, learned counsel for the State submitted that in addition to the
evidence of the aforesaid witnesses, the evidence of other PWs more
particularly, PW-12 shows that the occurrence took place inside the jail. The
concurrent views of the trial Court and the High Court should not be interfered
with. The evidence of PWs 5 and 6 shows that they are reliable and believable. Merely
because some documents have not been produced that does not in any way dilute
the prosecution version or render the evidence of the eye-witnesses doubtful.
No prejudice has been caused to the accused in any manner by not accepting the
prevaricating stand of PW-6.
evidence of PWs 5 and 6 has been attacked by the accused-appellants on the
ground that their presence at the alleged spot of occurrence is not believable.
of certain documents and non-examination of some of the official witnesses were
pressed into service. It is true that PW-6 made an application for getting
examined afresh and the same was turned down.
the defence filed a similar application. The Court considered the same and
found it to be without substance. PW-6 was examined in Court on 22.1.2000,
25.1.2000 and 27.1.2000. He made an application before Trial Court on 17.7.2001
about alleged pressure on him to depose falsely. A bare reading of the same
shows that the same is extremely vague and bereft of substance.
it was stated pressure was put on him and he was subjected to third degree
treatment, he has not specifically named anybody and made vague mention about
"some police officials".
the accused at different stages prayed to recall PWs 5 and 6 which the Trial
Court rejected. The orders had attained finality. The petition of PW-6 was
considered in detail by the Trial Court and was rejected by order dated
8.8.2001. It appears that accused persons had filed an application on 3.7.2001
with a prayer to examine PW-6. Same was also rejected by order dated 5.9.2001.
Both the orders dated 8.8.2001 and 5.9.2001 attained finality and also do not
suffer from any infirmity.
as one of the points which was highlighted was that no cogent reasons have been
given to discard the prayer made by PW-6 for his fresh examination. This aspect
was specifically urged before the High Court and has been considered. It was
held that the plea appeared to be after thought and there was no cogent reason
for accepting the prayer. It is true that in a given case the accused can make
an application for adducing additional evidence to substantiate his claim of innocence.
Whenever any such application is filed before the Court, acceptability of the
prayer in question is to be objectively considered. The High Court has
elaborately dealt with this issue and concluded as to how the prayer was
rightly held to be not tenable.
not that in every case where the witness who had given evidence before Court
wants to change his mind and is prepared to speak differently, that the Court
concerned should readily accede to such request by lending its assistance. If
the witness who deposed one way earlier comes before the appellate Court with a
prayer that he is prepared to give evidence which is materially different from
what he has given earlier at the trial with the reasons for the earlier lapse,
the Court can consider the genuineness of the prayer in the context as to
whether the party concerned had a fair opportunity to speak the truth earlier
and in an appropriate case accept it. It is not that the power is to be
exercised in a routine or cavalier manner, but being an exception to the
ordinary rule of disposal of appeal on the basis of records received in
exceptional cases or extraordinary situation the Court can neither feel
powerless nor abdicate its duty to arrive at the truth and satisfy the ends of
justice. The Court ultimately can certainly be guided by the metaphor, separate
the grain from the chaff, and in a case which has telltale imprint of
reasonableness and genuineness in the prayer, the same has to be accepted, at
least to consider the worth, credibility and the acceptability of the same on
merits of the material sought to be brought in.
of documents which the appellants claim would have strengthened the claim of
absence of PW-5 cannot in any way dilute the evidentiary value of the oral
testimony. Even though the witnesses have been cross-examined at length, no
material inconsistency has been elicited to discard the evidence of PWs 5 and
the pleas which was pressed into service is alleged relationship of PWs 5 and 6
with deceased and their criminal antecedents. As rightly noticed by the High
Court on the aforesaid basis the evidence which is found truthful and credible
otherwise should not be discarded. The Courts have to keep in view that in such
matters deep scrutiny is necessary. After having kept these principles in view
the Trial Court and the High Court have found that the evidence when carefully analysed
on the whole was credible. After deep scrutiny the Courts below have found that
there is ring of truth in the evidence of PWs 5 and 6.
as the delay in despatch of the FIR is concerned, it was noted by the High
Court that the informant's Fardbayan was recorded at 10.00 a.m. on 22.1.1999. The inquest report was prepared on 22.1.1999
at 1925 hours. The inquest report was prepared by Executive Magistrate and the
case number is also mentioned. That being so, plea that the Fardbayan being
ante timed has not been established. Post mortem was conducted on 22.1.1999 at
2200 hours. Above being the position, there can be no grain of doubt that the Fardbayan
was recorded on the date of occurrence and filed at the indicated time and the
case has been instituted on the basis of the said Fardbayan. Finding recorded
by the High Court that Fardbayan was not ante timed is amply supported by evidence
on record and no adverse view as claimed by the accused-appellants can be
as the question as to whether equal treatment being given to the evidence of
prosecution and defence witnesses is concerned, there can be no quarrel with
the proposition in law. In the present case it is not that the Courts below
glossed over the evidence of defence witnesses. In fact detailed analysis has
been made to conclude as to why no importance can be attached to their
evidence. After carefully analysing the prosecution evidence and that tendered
by the accused, the trial Court recorded the conviction. The High Court in
appeal made further detailed analysis of the evidence and came to hold that
there was no infirmity in the conclusions of the trial Court. The conclusions
are not shown to suffer from any infirmity whatsoever to warrant interference.
point stressed by learned counsel for appellant relates to applicability of
Section 34 IPC.
34 has been enacted on the 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, 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
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.
originally stood the Section 34 was in the following terms:
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).
Section does not say "the common intention of all", nor does it say
"and intention common to all".
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.
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.
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:
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
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
above position was re-iterated in Dhanna etc. v. State of Madhya Pradesh (AIR 1996 SC 2478).
34 IPC has clear application to the facts of the case on all fours, and seems
to have been rightly and properly applied also.
at from any angle, judgment of the High Court does not suffer from any
infirmity to warrant interference. The appeals fail and are dismissed.