Javed Alam Vs. State of
Chhattisgarh And ANR.  INSC 994 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1240 OF 2006 Javed
Alam ..Appellant versus State of Chhattisgarh and Anr. ..Respondents (With
Criminal Appeal No. 1241 of 2006) (With Criminal Appeal No. 1242 of 2006)
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of the Chhattisgarh
High Court, Bilaspur upholding the conviction of the appellants for offence
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the `IPC'). By the impugned judgment, the High Court upheld the
conviction of appellant Samar Vijay Singh for offence punishable under Section
302 IPC for committing the murder of Ku. Preeti (hereinafter referred to as the
`deceased') on 3.12.1998 in Government Girls College Campus, Ambikapur by
running over her a jeep. The co-accused appellants Javed, Raj Kumar and Ganesh
were convicted under Section 302 read with Section 34 IPC for causing death of
Ku. Preeti in furtherance of their common intention with the appellant Samar
Vijay Singh. Co-accused Ranvijay Singh, father of accused Samar Vijay and owner
of the jeep was acquitted of the charge under Section 201 IPC.
case is that on 3.12.1998 Ku. Preeti Srivastava, a student of B.A. final in
Govt. Girls College, Ambikapur was sitting with Ku. Vijaylaxmi Mishra (PW-7),
Ku. Seema Mishra (PW-8) and Ku. Nisha Thakur (PW-17) in the campus of the
College since the second period was free. Her bag and tiffin were kept by the
side of the road. Many other girls were basking in the sun inside the campus.
At about 10:45 A.M., a jeep driven by Samar Vijay Singh suddenly entered the
college campus and crushing the bag and the tiffin of Ku. Preeti Shrivastava
underneath, went ahead. Accused Rajkumar Tiwari, Javed Alam and Ganesh Kashyap
were accompanying Samar Vijay Singh in the jeep. Seeing her tiffin and bag
crushed by the jeep, Ku. Preeti Srivastava decided that she would stop the jeep
on its return and ask the driver to make good the loss suffered. When the jeep
returned, Ku. Preeti stopped the jeep, stood in front of it and asked accused-appellant
Samar Vijay Singh to repair the tiffin and bag for her.
Hearing this, the
occupants of the jeep including the driver started laughing.
The girls noticed
that the occupants of the jeep were calling each other by names and thereby
learnt that Samar Vijay Singh, the driver of the jeep was accompanied by
Rajkumar Tiwari, Javed Alam and Ganesh Kashyap.
Appellant Samar Vijay
Singh asked Ku. Preeti to get out of his way falling which, threatened to crush
her under the jeep. However, Ku. Preeti stood firm and did not budge. Accused
Rajkumar Tiwari, Javed & Ganesh asked Samar Vijay Singh to crush Ku. Preeti
if she did not give way. Upon this, Samar Vijay Singh moved the jeep ahead and
pushed Ku. Preeti who fell down. When the girls were about to move for picking
up Preeti, Samar Vijay Singh reversed and then accelerated the jeep ahead,
crushing Preeti's head under the jeep in the process and ran away with the
Ku. Vijaylaxmi PW-7,
threw a stone at the jeep, which hit the bumper of the jeep. She noted down the
number of the jeep in her palm as M.P. 27- 1962 Lalita Yadav PW-6, attempted to
catch hold of one of the appellants but she was pushed and fell down. Ku.
Vijaylaxmi noticed that the jeep had a sticker "Vote for the
Congress" on the back number plate.
3 The girls got
frightened and informed Asst. Professor Smt. Archana Singh (PW-9) and Asst.
Professor Smt. Pratibha Singh PW-10 about the incident who along with Ku.
Lalita Yadav (PW-6), Ku. Vijaylaxmi (P.W.7), Ku. Kumudini Kerkatta (PW 4) &
Ku. Urmila Paikra (PW-5) took the injured Ku. Preeti to the District Hospital,
Ambikapur. Clerk Tarachand Sahu PW-11 of the Girls College reached the spot
thereafter and on being instructed by the Principal lodged the F.I.R. Ex.P-12
at 11.00 a.m. in Police Station, Ambikapur to Assistant Sub-Inspector B.N.
Singh (PW-31) After investigation charge sheet was filed.
Since the accused
persons abjured guilt the trial was held. Prosecution examined 39 witnesses.
Learned Sessions Judge acquitted Ranvijay Singh for want of evidence and
convicted rest of the accused persons as noted above. The basis of conviction
was as follows:
1. Testimony of Ku.
Lalilta Yadav PW-6, Ku. Nisha (PW- 17), Ku. Seema Misra (PW-8), Dr. M.L
Beatrice (PW-3), Dr. A.K. Jain (PW-33) proving that Ku. Preeti died a homicidal
2. Statements made by
Ku. Lalita Yadav PW-6 and Ku. Vijaylaxmi PW-7, as forming part of res-gestae
under Section-6 of the Evidence Act to Shri R. N. Shrivastava PW-32 on his
reaching the hospital disclosing the names of the driver of the jeep as Samar
Vijay Singh and the occupants of the Jeep as Rajkumar Tiwari, Javed and Ganesh.
3. Extra Judicial Confession
made by the accused Raj Kumar before Abhaydeep Singh PW-2 soon after the
occurrence, also implicating appellant Samar Vijay Singh as the driver of the
4. Testimony of Ku.
Seema PW-8 especially in para 34 and 35 showing the three occupants of the Jeep
had asked the driver Samar Vijay to run the girl over in case she didn't give
way and Samar Vijay surging the jeep ahead crushed Preeti's head underneath.
5. Testimony of
Arvind Gaur, Assistant Professor, P.G. College, Ambikapur PW-12 showing that
Ganesh Kashyap, a student of B.Com 1st year ' B' section was absent from class
6. Testimony of
Professor Rajesh Srivastava, P.G. College, Ambikapur PW-18 showing that on
3.12.1998 Samar Vijay Singh and Raj Kumar Tiwari, students of B.Com. 1st year
Section-'A' were absent from class (10 A.M. to 10:40 A.M.).
7. The fact of
surrender by accused Javed and Ganesh in Police Station Ambikapur on 04-12-1998
vide Ex. P-74 and 75.
8. (i) Seizure of
Jeep No. M.P.-27-B-1068 from, in front of the house of appellant Samar Vijay.
(ii) Merg intimation
Ex. P-19 by Mariam Tirki PW-16 showing the number of the Jeep as M.P.
(iii) Testimony of
Z.A. Abbasi PW-37 R.T.O. Office Ambikapur proving ownership of Ranvijay Singh
Tomar over Jeep M.P.-27B-1068.
6 (iv) Admission by
Ranvijay Singh Tomar of the seizure of Jeep M. P. 27-B-1068, in reply to
Question No.218 in examination under Section-313 of Cr. P.C."
of the appellants before the High Court was that there was no legal evidence on
record to substantiate the conviction and sentence. No common intention of the
occupants to cause the death of Kr. Preeti was established by the prosecution.
Seema Misra (PW-8) had stated that the driver of the jeep wanted to get away as
fast and, therefore, offence if any committed by the driver would not travel
beyond Section 304 IPC. The act was nothing but a rash and negligent act without
any intention to kill the deceased. The High Court did not accept the stand and
upheld the conviction.
support of the appeals, learned counsel for the appellants re-iterated the
stand taken before the High Court. It is to be noted that there were
purportedly four eye witnesses. They are PWs 6, 7, 8 and 17. The occurrence
took place around 10.45 a.m. on 3.12.1998 and the FIR was lodged immediately by
PWs 4 and 5 around 11.00 a.m. The deceased breathed her last at about 12.10
p.m. The vehicle according to the prosecution version was being driven by Samar
Vijay Singh and rest of the occupants were other co-accused persons. It is
stated that identity of the accused persons has not been established. There is
no Test Identification Parade. Names were not mentioned in the inquest or in
the FIR. The accused persons were not known earlier and Section 6 of the Indian
Evidence Act, 1872 (in short the `Evidence Act') has no application. PWs 9 and
10 had not told the names. The role of A-3 was not established. A1, A2 and A4
were the students of the same college and one of the accused was 18 years on
the date of occurrence. There was no enmity or motive or any intention to kill
Ku. Preeti and in any event place of occurrence was not established and the
occurrence took place, even if the prosecution case is accepted, at the spur of
moment. There is no evidence to show any meeting of mind.
is pointed out that most of the so called eye witnesses resiled from their
statements made during investigation. The Court has accepted the identification
by PWs 8 and 17 and in answer to the statement recorded under Section 313 of
the Code there was really no definite answer.
question of res-gestae has no application as the name given for the first time
is proved in the Court. Res Gestae was not in the police statement. So far as
Article D-7 is concerned paint is similar to that of jeep which is scratched.
is also re-iterated that the evidence on record does not make out a case under
Section 34 IPC.
is a classic case of deficiency in the criminal justice system to protect the
witnesses from being threatened by accused. As appears from the record, the
witnesses are the classmates of the deceased who were there with her. As
appeared from the evidence of witnesses they backed out from what was stated
during investigation. The statement made before the Police during investigation
is no evidence. Unfortunately, in cases involving influential people the common
experience is that witnesses do not come forward because of fear and pressure.
In a brutal manner, the accused Samarvijay Singh who was driving the vehicle
run over the girl and she lost her life. The trial Court and the High Court
have highlighted certain aspects which clearly bring out the guilt of accused
Samarvijay Singh. Significant is the evidence of PWs 7 and 8. PW-7 was the girl
who accompanied the injured to the hospital and told about the incident to
PW-3, the doctor which was recorded in report Ex.P-4 containing the name of Ku.
Vijaylaxmi PW-7 as the person told about the incident. The evidence of PW-6
Lalita Yadav shows that PW-7 was sitting with the deceased when the jeep
entered the campus. As rightly noted by the High Court something transpired
later on which led to the witnesses giving a complete go bye to her earlier
More important is the
evidence of PW-8 who blurted out during cross examination some traces of truth
which was labeled as unfair and dishonest cross examination by learned counsel
for the appellants. At the end of the ordeal of her evidence she cried and
requested the Court not to call her again for evidence since they were
disturbed for the entire year. The plight of the girls who were under pressure
depicts the tremendous need for witness protection in our country if criminal
justice administration has to be a reality. Even close reading of the evidence
shows that how she was under tremendous pressure not to speak the truth. In
reply to question No.27 she said that she did not see the occupants. That is
nothing, because in answer to the next question she said that there were four
boys in the jeep. Question No.34 is very significant. It was specifically asked
to the witness as to whether the occupants of the jeep were asking Samarvijay
Singh, the driver of the jeep to run the girl over if she did not give way.
Answer was that the boys had said so but afterwards. In answer to question
No.35 she said that Samar surged the jeep ahead, crushed the head of Preeti and
had admitted that the boys were laughing in the jeep and had said to Samar that
if the girl did not give way he should run the girl over. She had answered in
the affirmative by stating `yes' to a specific question No.35 clearly meaning
that crushing Preeti's head Samar had surged the jeep forward.
Section 6 of the
Evidence Act is an exception to the rule of evidence that hearsay evidence is
not admissible. The test for applying the rule of res- gastae is that the
statement should be spontaneous and should form part of the same transaction
ruling out any possibility of concoction. In Gentele Vijayavardhan Rao v. State
of Andhra Pradesh (AIR 1996 SC 2791) it was held in para 15 as follows:
"Section 6 of
the Evidence Act and some of the succeeding Sections embody the rule of
admission of evidence relating to what is commonly known as res-gestae. They
are in the nature of exception to 'hearsay" rule. Section-6 permits proof
of collateral statements which are so connected with the facts in issue as to
form part of the same transaction. Whether the statement made by a witness was
a part of the same transaction or not is to be considered in the light of the
circumstances of each case. The principle is that it should be so intimately
connected with the fact in issue as to be a spontaneous utterance inspired by
the excitement of the occasion or a spontaneous reaction thereof, there being
no opportunity for deliberately fabricating the statement. In other words, the
statement which is a part of res-gestae does not narrate a past event, but it
is the event itself speaking through a person thus excluding the possibility of
any design behind it."
reason indicated by the High Court dismissing the appeal before it qua accused
Samarvijay Singh has no merit and is dismissed.
other question is applicability of Section 34 IPC.
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 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.
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.
above position has been highlighted in Chimanbhai Jagabhai Patel v. State of
Gujarat & Anr. (SLP (Crl.) 352 of 2008 disposed of on 16th March, 2009).
is no evidence, muchless credible, which has been salvaged from the onslaught
on the witnesses which suggests that there was any meeting of minds, because
everything appears to have happened suddenly.
The evidence of PW8
on which the prosecution has placed strong reliance for the purpose of
attracting Section 34 IPC gave pre-varicating statements so far as others are
concerned, through her statement is sufficient to fasten guilt on Samar Vijay
16. Considering the
background facts it is clear that Section 34 has no application. That being so,
while dismissing the appeal filed by Samarvijay Singh, the conviction recorded
qua other accused persons has to be set aside which we direct. They shall be
released from custody forthwith unless required to be in custody in connection
with any other case.
(Dr. ARIJIT PASAYAT)
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