Kaur and Anr Vs. State of Haryana 
Insc 146 (1 March 2005)
Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 3526 of 2004) ARIJIT PASAYAT, J
call in question legality of the judgment rendered by a Division Bench of the
Punjab and Haryana High Court upholding conviction of the appellants
(hereinafter referred to as the 'accused') under Sections 323, 325 and 326 read
with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and
sentence as imposed by the trial Court which had sentenced each to undergo
rigorous imprisonment for three months, two years and seven years respectively
with separate fines for each of the alleged offences with default stipulations.
facts leading to the trial of the accused appellants are as follows:
case was registered on the basis of information lodged by Piara Singh (PW-6),
which was recorded on 10.11.1989 at about 2.00 a.m.
to the informant, he and his son Sham Singh's wife Sito (PW- 7) were sitting in
the courtyard of the house of Sham Singh (hereinafter referred to as the
'deceased'). It was about 11.00 a.m. on
9.11.1989 when deceased was coming from the village after purchasing
vegetables. When he reached near the house of Janta Singh, son of Dharam Singh,
Harbans Kaur (A-1) armed with a Gandasi and Mitta Singh (A-2) armed with a lathi
were present there. Mitta made an obscene gesture. At this Mitta Singh and the
deceased exchanged hot words and abused each other. Harbans Kaur gave a Gandasi
blow on the right hand of the deceased, which caused a grievous injury. Mitta
Singh gave a lathi blow on the left foot of the deceased and also gave a thrust
blow of lathi on the left side of his head. Deceased fell down on the ground.
The occurrence was witnessed by Piara Singh (PW-6) and Sitto (PW-7). Both of
them took Sham Singh injured to their house. When Piara Singh and Sito raised
alarm, both the accused persons ran away from the spot. Since the condition of
Sham Singh became serious during the night time, he was taken to the Primary
Health Centre, Ratia. On 10.11.1989 at night at about 0.15 a.m. Dr. O.P. Kakkar examined Sham Singh. He found injury
No.1 which was an incised wound in the middle phalanx of the index finger of
right hand. The second injury was an abrasion on the lateral side of upper
1/3rd part of left leg and the patient complained of pain on different parts of
the body. Dr. O.P. Kakkar sent information to the Police Station, Ratia. ASI
Ram Rattan reached the Primary Health Centre and recorded the statement of Piara
Singh which is the FIR. On the basis of this statement, FIR was recorded by ASI
Bharat Singh. Sham Singh expired at about 1.50 a.m. on 10.11.1989.
information to this effect was sent.
accused persons were charged for alleged commission of offences punishable
under Section 304 Part-I read with Section 34 IPC.
accused persons pleaded innocence and claimed trial. Eight persons were
examined to further the prosecution case. Piara Singh (PW-6) was the
complainant and claimed to be an eye-witness. Smt. Sito (PW-7) wife of the
deceased also claimed to be an eye-witness. Placing reliance on their evidence,
the learned Additional Session Judge, Hissar found the accused persons guilty
and sentenced them to undergo sentences as noted above. In appeal, the High
Court confirmed the conviction and the sentences.
support of the appeal, learned counsel for the accused appellants submitted
that the prosecution version was based on testimonies of relatives and,
therefore, does not inspire confidence.
34 IPC has no application to the facts of the case. Further there was delay in
lodging the FIR. Additionally, it was submitted that the sentences imposed were
response, learned counsel for the State submitted that after analysing the
factual position the Courts below have found the accused persons guilty and no
interference is called for. The sentences imposed are also not in any manner on
the higher side.
is no proposition in law that relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be shown when a plea of partiality is
raised to show that the witnesses had reason to shield actual culprit and
falsely implicate the accused. No evidence has been led in this regard. So far
as the delay in lodging the FIR is concerned, the witnesses have clearly stated
that after seeing the deceased in an injured condition immediate effort was to
get him hospitalized and get him treated. There cannot be any generalization
that whenever there is a delay in lodging the FIR, the prosecution case becomes
suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds
of the prosecution case, would depend upon the facts of each case. Even a long
delay can be condoned if the witnesses have no motive of implicating the
accused and have given a plausible reason as to why the report was lodged
belatedly. In the instant case, this has been done. It is to be noted that
though there was cross- examination at length no infirmity was noticed in their
the trial Court and the High Court were right in relying on the evidence of the
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 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.
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". 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.
above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004 (5) SCC 679].
factual scenario as noted above is considered in the background of legal
principles set out above, the inevitable conclusion is that Section 34 has been
residual question is whether any interference is called for on the quantum of
sentence. Looking into the background facts as noted above, we are of the view
that custodial sentence of 4 years in place of 7 years as recorded by the
Courts below for the offence relatable to Section 326 read with Section 34 IPC
would meet the ends of justice.
other sentences imposed remain unaltered. With the aforesaid modification, the
appeal is disposed of.