State of U.P. Vs.
Atul Singh Etc. Etc.  INSC 1012 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 1262-64 OF 2004
State of U.P. ....Appellant Versus Atul Singh etc.etc. ....Respondent
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of the Allahabad High
Court directing acquittal of the respondents.
Vishwakarma was convicted for offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short the `IPC') whereas the other two accused persons
were tried and convicted for the offence punishable under Section 302 read with
Section 34 IPC.
Additional Sessions Judge, Basti had convicted the respondents who preferred
three separate appeals before the High Court. By the impugned judgment the High
Court directed their acquittal.
version in a nutshell is as follows:
On 21.11.1998 Radhey
Shyam Pandey was at his house situated at Avas Vikas Colony District Basti and
his son Ajay Kumar alias Pintu returned back home from the city and told him
that a scuffle took place between him on one hand and Sanjay Vishwakarma, Atul
Singh and Brij Kishore Singh alias Dimple on the other in front of A P N Degree
College; and at that time he was accompanied by Vikas Singh and Sunil Kumar
Verma and that his opponents were in search of him in order to kill him.
Then Radhey Shyam
Pandey along with his son Ajay Kumar alias Pintu accompanied by Vikas Singh and
Sunil Kumar went from his house in order to make a complaint to the principal
of APN Degree College. When they reached near the PCO in the pavement leading
to the main road accused Sanjay Vishwakarma, Brij Kishore Singh alias Dimple
and Atu1 Singh sighting Ajay Kumar exhorted that he should be killed.
Thereupon, Ajay Kumar intended to run away by turning, but Sanjay Vishwakarma
fired at him with country made pistol and on receiving firearm injury Ajay
Kumar fell down and all the three miscreants ran away on the motor cycle parked
nearby. At that very time one Dina Nath Pandey and Udai Shankar Shukla reached
there and tried to catch hold of the miscreants but they succeeded in making
their escape good. Immediately thereafter Radhey Shyam Pandey and his wife Smt Anirudh
Kumari took their injured son Ajay Kumar in a Jeep to the District Hospital,
Basti. But by the time they reached the Hospital, injured Ajay Kumar succumbed
to fatal injuries `sustained by him in the said incident. Then Radhey Shyam
Pandey, father of the deceased went to the Police station Basti Kotwali,
District Basti and lodged an FIR of the occurrence with the Police there at
about 12.30 p.m. The Police registered a crime against the accused under
section 302 IPC and started the investigation. After completing the
investigation the Police submitted charge sheet against the accused
As accused pleaded
innocence, trial was held.
eleven witnesses to further its case. The respondents examined three witnesses
to substantiate their claim of innocence. The trial court placed reliance on
the evidence of Radhey Shyam Pandey (PW1) who was an eye witness and directed
In appeal the High
Court primarily relied on four circumstances to direct acquittal.
(1) The presence of
Radhey Shyam Pandey (PW1) was not established. If he was really an eye witness
then in the hospital records the name of his wife Anirudh Kumari could not have
been shown as the persons who brought the deceased to the hospital. Being an
advocate, he was expected to be at his place of practice and not at home. (2)
As he claimed that he was going to meet the principal at a distance of 1= K.M.,
he could not have needed a rickshaw for going to the college. Deceased was not
a student of APN Degree College and therefore there was no question of making a
grievance before the principal. (3) The site plan did not show the place from
where he allegedly saw the occurrence or the place from where the shot was
allegedly fired. (4) In the inquest report name of the accused, the nature of
the weapon and the name of the assailants were not specifically mentioned. With
these findings the direct acquittal was directed.
support of the appeal learned counsel for the appellant stated that the
reasonings indicated by the High Court to say the least are based on surmises
and conjectures. The law relating to the particulars to be indicated in the
inquest report and the evidentiary value of the site plan have been completely
lost sight of. The conclusions are contrary to the evidence on record. It was
specifically stated by PW1 that because the date of occurrence was on Saturday
and there was a strike in the court, this aspect has been completely lost sight
of. The mother of the deceased had also accompanied PW1 to the hospital and
merely because her name is stated, it cannot be a ground to doubt the presence
of PW1 at the spot of occurrence.
counsel for the respondent-Sanjay submitted that the High Court has analysed
the evidence. The inherent inconsistencies in the evidence of PW1 and the
relevant features which clearly established that he could not have been an eye
witness. In the aforesaid position the impugned judgment does not warrant
counsel appearing for Dimple alias Brij Kishore Singh and Atul Singh submitted
that these accused persons were convicted by application of Section 34 IPC. The
High Court has noted as to how Section 34 has no application to the facts of
find ample substance in the plea of learned counsel for the appellant that the
conclusions of the High Court are based on surmises and conjectures and
hypothesis. Mere non-mention of the names of the assailants or the nature of
the weapon in the inquest report, cannot be a ground to discard the evidentiary
value of PW1's evidence.
because the eye-witnesses are family members their evidence cannot per se be
discarded. When there is an allegation of interestedness, the same has to be
established. Mere statement that being relatives of the deceased they are
likely to falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. We shall also deal with the
contention regarding interestedness of the witnesses for furthering the
prosecution version. 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
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close relation would be the last to
screen the real culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such a criticism and the mere
fact of relationship far from being a foundation is often a sure guarantee of
truth. However, we are not attempting any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what
is so often put forward in cases before us as a general rule of prudence. There
is no such general rule. Each case must be limited to and be governed by its
above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR
1957 SC 614) was also relied upon.
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose, J.
it was observed:
"We are unable
to agree with the learned Judges of the High Court that the testimony of the
two eyewitnesses requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in - `Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately
still persists, if not in the judgments of the Courts, at any rate in the
arguments of counsel."
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
"But it would,
we think, be unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or interested
witnesses.......The mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of justice. No hard and
fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is partisan cannot be
accepted as correct."
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
above position was also highlighted in Babulal Bhagwan Khandare and Anr. vs.
State of Maharashtra [2005(10) SCC 404] and in Salim Saheb v. State of M.P.
(2007(1) SCC 699).
far as the non-mention of the name of PW1 who was accompanying the deceased to
the hospital aspect is concerned, it is interesting that defence witness A.K.
Singh (DW1) the Chief Pharmacist has clearly stated in his cross examination by
the prosecution that in case an injured is accompanied by several persons to
the hospital, only one's name is recorded who is most close to the injured. He
has also stated that besides his mother and others may have accompanied the
deceased to the hospital.
conclusion that merely because the name of the deceased's mother was recorded
in the medical records, PW1's presence is ruled out is indefensible. Similarly
PW1 has categorically stated that he did not go to Court because it was a
Saturday and the lawyers were on strike for a particular reason. There was no
cross examination even on this aspect.
The High Court's
conclusion that he was expected to be at the place of practice on the face of
this stand shows non application of mind. The evidence of PW1 is credible,
cogent and, therefore, the acquittal of Sanjay Vishvakarma as recorded by the
High Court cannot be sustained and is set aside. So far as the other two
persons are concerned, the High Court after analyzing the evidence of PW1 has
categorically held that Section 34 has no application.
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
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 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.
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 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.
the instant case, the High Court has rightly held that the evidence is not
sufficient to bring in application of Section 34 IPC. Therefore while allowing
the appeal qua Sanjay Vishvakarma, the appeal is dismissed for the other two
accused respondents. Sanjay Vishvakarma shall surrender to custody forthwith to
serve the remainder of sentence.