Patna High Court
Manoj Kumar @ Fantus And Anr. vs State Of Bihar on 2 July, 1991
Equivalent citations: 1992(1)BLJR436
JUDGMENT S.H.S. Abidi, J.
1. Appellants Manoj Kumar alias Fantus and Pravin Kumar alias Munna have come to this Court against their conviction under Section 302/34 of the Indian Penal Code and sentences to undergo rigorous imprisonment for life passed by the 4th Additional Sessions Judge, Gaya,
2. In short, the prosecution case is that a fardbeyan (Ext. 1) had been given by Raghunandan Prasad (P.W. 1) the father of the deceased Dhiraj Kumar to Ram Anugrah Prasad Singh Singh, the first Investigating Officer, (P.W. 3) on 26-1-1987 at about 8 p.m. in Railway Quarter No. 481-A, Marshally yard, P.S. Delha, District Gaya who had reached the place of occurrence on hearing the sound of gun fire at the police station. In the fardbeyan which was recorded immediately after 15 mintutes of the occurrence. The informant Raghunandan Prasad (P.W. 1) gave out that he along with his son Dhiraj Kumar (deceased) and daughter Kiran Kumari (P.W. 2) was viewing T.V. in this quarter at about 7.45 p.m. 'The main gate of his quarter was opened. Four persons entered through the main gate of the quarter at that very time and they began to pull Kiran Kumari by catching hold of her hands which was resisted by her brother, the deceased who was also dragged by them. ' Among them, Fantus son of Babban and Munna elder son of Babban were Identified and the rest two others could not be identified by the informant. Then Fantus and Munna fired each, hitting in the head of the victim who died at the spot. One day prior to the alleged occurrence i.e., on 25-4-1987, accused Munna had also challenged the deceased Dhiraj Kumar telling that he was proving himself a Gunda and he would see to it. It is alleged that there was also some quarrel between the brother of the accused. Pawan Kumar and the deceased Dhiraj Kumar on account of cricket playing. On the basis of the said fardbeyan (Ext. 1), the First Information Report (Ext. 4) was registered at the same night at about 11 p.m. by one Munshi Gangeshwar Prasad and was signed by Akshay Kumar Singh, S.I. (P.W. 4). The investigation of the case was taken up by Ram Anugrah Prasad Singh the first Investigating Officer, (P.W. 3) who had recorded the fardbeyan and prepared to inquest report (Ext. 3). He found sufficient Woodland prepared the seizure list (Ext.). He got the postmortem report on 30-4-1987. On 8-5-1987 warrants were issued the accused persons. It is said that the informant filed a complain against Ram Anugrah Prasad Singh, (P.W. 3) to the higher authorities alleging therein that he had not recorded the statements of the witnesses correctly so the charge of the case was taken from him on the telephonic order of the Superintendent of police and Akshay Kumar Singh (P.W. 4) was made in charge of the case, who after completing the investigation, submitted the charge-sheet against these appellants.
3. The accused in their defence denied the prosecution case and alleged that they have been falsely implicated in this case. The suggestions to the witnesses were that there was no quarrel between the deceased and Pawan Kumar, the brother of the appellants, that there was no light at the place of the occurrence and so, there was no means of identification and the appellants have been implicated on account of some departmental quarrels between the informant and the father of the accused appellants. No witness in defence has been examined.
4. The prosecuion, in support of its case, produced five witnesses. P.W. I is the informant himself and P.W. 2 is Kiran Kumari, the daughter of the informant and sister of the deceased, who are said to be the eyewitnesses to the occurrence. P.Ws. 3 and 4, Ram Anugrah Prasad Singh and Akshay Kumar Singh are the two Investigating Officers. P.W. 5 is Dr. Mithilesh Kumar Sinha who had conducted the postmortem exemination on 27-4-1987 and had submitted his report (Ext.).
5. The learned trial Court, after considering the entire material on record, has convicted and sentenced the appellants as mentioned earlier.
6. The learned Counsel for the appellants has urged that the order of conviction is bad in law, as only two relation and inimical witnesses have been examined and no other independent witness or any neighbour has been examined. Even the persons who had visited the spot after the occurrence, have not been examined. Source of light was not there and so. it was difficult to identify the accused persons. The manner of occurrence also creates doubt specially when the firing is said to have been done by both the appellants and only one gun shot injury is there. Motive of the occurrence has also not been proved. Bullets have not been seized from the place of occurrence and even the names of the appellants have not been fully given out and so, the identity of the appellants is doubtful. To appreciate these contentions, the evidence on record will have to be scrutinised with care and caution.
7. In this case, there are two eye-witnesses, Raghunandan Prasad (P.W. 1) and Kiran Kumari (P.W. 2), the father and sister of the deceased who are said to have been viewing T.V. at the place of occurrence at the relevant time i.e., 7.45 p.m. P.W. 1 Raghunandan Prasad says that on that day, he was in quarter and was viewing T.V. with his daughter and son, when four persons entered into his quarter armed with revolver, out of whom he identified Fantus and Munna. Firstly, they dragged the daughter which was resented by his son whereupon, accused Munna fired which did not hit. Then Fantus fired from his rivolver which it on the left side of the head whereupon Dhiraj Kumar fell down and died and the accused ran away. After 15 minutes of the occurrence while they were to go to the hospital, the police came and recorded his fardbeyan. P.W. 2 was also examine. The Investigating Officer started investigation. On account of irregularity in the investigation, a complaint had been sent to the D.I.G. and the S.O. and so, the investigation was given over to the second Investigation Officer, P.W. 4. He has said that on account of cricket playing there was some dispute between the deceased and Pawan Kumar, the younger brother of the appellants and threat was given out on 25-4-1987 by Muna to the deceased at Gumit No. 2, Karira Ganj "Turn Gunda Bante Ho., zinda nahin chhorenge". Before him Kiran Kumari had given out to the police in her statement the names of both the appellants but the police had not written their names. As the first Investigating Officer P.W. 3 had done irregularity in the investigation, so he had made complaint to the S.P. and the D.I.G. In cross-examination, he has said that before the occurrence, there was quarrel between the children about which he dad not given out any Sinha as he thought that out. of anger, he might have said so. He could not say about any witness before whom such thing had been said though Gumit No. 2 is a very busy place. There is no shop there. When the police came, he was just to go to the hospital and waiting for the vehicles. He had not said to the police that he will not give his statement and first will carry the son to the hospital. He has said that he had retired from his service and so, his quarter had already been allotted to Dwarika by the department; as he had given out that he had vacated the said quarter and so, he was getting his pension and gratuity. Dwarka is a high-skilled fitter. He was occupying the said quarter with the permission of Dwarika though he had given out information about having vacated the quarter. Appellant's father had been working in railway, till the retirement of the informant, as Assistant Driver, Electrical Traction and the informant was Foreman, and so, the appellant's father was his subordinate. He has said that his daughter Kiran Kumari (P.W. 2) was not working as lecturer but she was doing her Ph. D. and his son Raudhir Kumar used to live at Barun. Randhir is by his first wife who died earlier. He has got two daughters from his first wife, Sumitra and Lalita. Rajmani Devi is living in his house since 1960-61. She was living in Pandebigha and was a married woman. Rajmani Devi has one son Manoj aged about 23 years and two daughters Kiran Kumari and Suman Kumari who had appeared in the examination of matriculation. In Barun, in his house, his first wife and two daughters were living. Denying the suggestion that Rajmani Devi was his kept, he said that she was his married wife. He denied the suggestion that as the children of his first wife were quarreling with her, so he had kept them at Barun, or there was dispute about the amount of gratuity of Rs. 32,000 between him and Randhir Singh or that he had not given the amount of gratuity to Randhir Singh. He has further said "that the main door of his quarter was towards west. At the time of occurrence, in quarter No. 481-B, one christian family was living. There was a Verandah in his quarter towards west which had been grilled and the same was being used as sitting room in which T.V. was kept. Through that verandah, entry to the quarter is through the east and by closing the western gate, entry to the quarter is closed. That way was already opened and it is wrong to say that it was closed at that time or Kiran Kumari had opened it. He denied to have said before the police that he had closed the door and it had been opened by Kiran Kumari. The victim was dragged by Manna and then fired by him. First, Munna caught hold of the hand of Kiran Kumari and then they dragged her, who was sitting in the west near the gate. This was protested by Dhiraj Kumar. He had given out to the police though not written by the police that on the protest of Dhiraj Kumar, ho was also dragged by hand. All the four persons had revolvers. He had given out that Munna's firing had not hit but Fantus' firing had hit. He had given out his statement for the second time wherein he has said that firing by Fantus had hit. He has not said that he could not say as to whose fire had hit and the statement was wrongly recorded by the police and similar was the statement before the second Investigating Officer. The post-mortem was done on the second day and it is wrong to say that the report had been given in collusion. It is wrong to say that lie had said in the first statement and in the second statement that the firing by both had hit the victim. But after knowing from the doctor, he came to know that one fire had hit the victim. First firing went out from east to west. Towards west of the quarter, there is a pitched road running north-south. At a distance of 20'from the sitting room there is Maidan. At the time of occurrence in Quarter Nos. 478-A and B.A.K. Singh and A.L. Kundu were Jiving with their families. In Quarter Nos. 481-A and 482-A Manu Ram, Store Incharge and H.L. Singh, Guard used to live with their families. Thus, there were quarters around and also running rooms of guards and drivers. He has said that on Munna's entering into the room, he did not make any noise on account of fear as he had become stunned. According to him none else raised noise and suddenly the occurrence took place. None of the neighbours came on the spot. He chased the culprits by calling out their names. At that time, he was not afraid. He had raised alarm as 'pakro pakro' and gave out to the public that after firing they are running away. He has said that when he returned after chase, mohalla people had gathered near the gate. When he had taken out Dhiraj Kumar from the sitting room, mohalla people had come. He had kept Dhiraj on the road. By the time,' police reached Dhiraj had died. After that, report was written, Inquest was prepared and the Investigating Officer went to the sitting room, (place of occurrence) and inspected the same and recorded his statement. He knew Saryu Singh, Chief Traction Head clerk whose son is Pramod. He has said that he did not know that his alias name was Munna.' Before the occurrence, there was no quarrel between Dhiraj and Pramod. It is wrong to say that there was no dispute between Dhiraj and Pawan Kumar on account of cricket playing. There was no dispute between Fantus and Pravin Kumar on account of cricket playing. It was incorrect to say that he was not living in the said quarter at that time. The Investigating Officer (P.W. 3) had searched for the bullet in the Maidan but ha could not say if it was found there or not. The bullet had not struck the wall and the same had gone out. There was no make! in the wall of the baithka. Kiran Kumari was examined two times and at the time of her second examination, he had come to know that her first statement had been recorded wrongly. He has said that no application was sent to the Chief Judicial Magistrate rather it was sent to the Director General of police. He has further said that on account of keeping the deadbody on the road, blood had fallen there and the Investigating Officer had seen the same in the way but the same was not taken possession of rather the blood fallen inside the room was seized. In the house, there was buttery fitted inverter on account of which, TV was being seen and it was shown to the Investigating Officer (P.W. 3) and he was also told about the same.
8. The second eye-witness is Kiran Kumari (P.W. 2), sister of the deceased who was also viewing TV along with her father and deceased brother in the baithka. Then four persons came out of two entered into the baithka whom she identified as Fantus and Munna. She has said that Fantus is also called Manoj and Munna is called Pravin kumar. On reaching there, Munna caught hold of her hand and began to drag, upon which her brother Dhiraj resisted and so, Munna fired first which went out through the western door and did not hit the victim and then Fantus immediately fired which hit her brother who fell down and died immediately. All the four persons ran away. After 15 minutes of the said firing, the police came. She has said that the motive for the occurrence was dispute abut the cricket play between Dhiraj and Pawan Kumar and one day earlier i.e. on 25-4-1987, Munna had given out threat to Dhiraj Kumar at the Railway Gumti No. 2 to kill, saying that "Pawan ko mare ho, gunda bante ho, zinda nahin chhorenge, aaj to bach gaye ho janenge, kal tumhen goli se mar denge". She had said that she had identified Fantus and Munna as inverter was being operated by battery and so, TV was on and at all places, in the quarter lights were on and specially where they were viewing TV, mercury was burning and there was sufficient light. She has said in her evidence that on the day of the occurrence, the Munshi of Delhi police station had come and had recorded her statement incorrectly for which complaint had been sent to the higher authorities. On the said complain, one S.I. Akshay Kumar Singh (P.W. 4) took over the charge of the case and recorded her statement before the Superintendent of Police, wherein she had given out fully about the identification of the accused persons. She has further stated that at the day of occurrence, her mother was suffering from headache and still she was unwell and so she was unable to give evidence. In her cross-examination, she has said that she was examined before the S.P. after one month in which she had said to the Investigating Officer (P.W. 4) that in the room, lights were on and they were viewing the TV. She had not said about the burning of mercury. Sh3 had shown the said lights to them. When the police had come the light was on in the rooms and everything was shown. When the S.P. had come in the quarter, inverter, TV and also the lights were exhibited to them in noon as the same were existing as were at the time of occurrence. They had not examined the battery and nor was it seized. Prior to the occurrence she was not known to the first I.O. Ram Anugrah Singh. She had not read the statement at that time but her father had told her that in the diary, her statement had not been correctly recorded. She denied the suggestion that she could not say as to when her father had told about the incorrect noting of her statement by P.W. 3. She said that the first firing by Munna had gone out from east to west but she could not say as to whether blood had fallen or not. The Investigating Officer had not inspected the place of occurrence before her. She has said that she was doing her PH-D. She has admitted that in neighbouring quarters, people were living with whom she had acquaintance and she had no quarrel with Pramod on the question of cricket play. According to her, Randhir was his elder brother by elder mother who used to live in Barun as well as in Gaya. Sometimes before the occurrence, he had not come to Gaya. She has said that she had told the P.W. 3 Ram Anurgah Singh that the lights were on and inverter was being operated and TV was also on. She had said about the burning of lights and not that the mercury was on in the light of which, he had identified the appellants. She denied the suggestion that there was dispute between her and Pramod Kumar.
9. Besides these two eye-witnesses, there are two Investigating Officers, namely, Ram Anugrah Prasad Singh (P.W. 3) and Akshay Kumar Singh (P.W. 4) P.W. 3 reached the spot on hearing the sound of gun shot within 15 minutes of the occurrence and recorded the fardbeyan. He prepared the Inquest Report but on account of complaint to the Superintendent of police and the Director General of police, the investigation was taken over from him and given to P.W. 4. Who after completing investigation, submitted the charge sheet against the appellant. This P.W. 3 has admitted that TV was kept on the table and clarified that the place of the occurrence was baithka of Quarter No. 481-A the main gate of which, opens in the west in which is jalandar gate is fixed. He has said that the verandah of the said quarter is used as sitting room in which Sofa set and TV had been kept. According to him, sufficient blood was found in the verandah and the dead body of the deceased was found there and then he prepared the list of seized blood (Ext. 2), prepared the Inquest Report (Ext. 3) and also sent the dead body for post mortem examination through constable Hardwar Singh, No. 423. He returned to the police station and on the basis of the said fardbeyan, registered the First Information Report (Ext, 4). He got the postmortem report on 30-4-1987 and on 8-2-1987, steps were taken for the arrest of the accused persons. On the com plaint to the Superintendent of police, charge of the investigation was taken from him by the officer-in-charge and he went on leave. He was sent to police line after his return from leave. He denied the suggestion that he recorded the statement of Kiran Kumari (P.W. 2) incorrectly. He was a junior Police Officer and the officer-in-charge was sick at that time. He has said that Kiran Kumari had not given out the names of the accused persons to him. In his cross-examination, he has said that the time of her statement's recording, she had not mentioned about the inverter and battery being at the place of the occurrence and either the informant nor any member of her family had shown him TV there in working condition. He had recorded the statement of Umesh Prasad Chaudhary a resident of Quarter No. 376. He did not recorded about the recovery of the blood except in the verandah being the place of the occurrence. He has said that he had written in the case diary that during the investigation he had come to know that Kiran Kumari had a bad character and that he had written so not on the basis of investigation but had only seeing her going along with one Pramod Kumar on the road. He had written in the case diary that Kiran Kumari was concealing something knowingly. He denied that she had said to him about the earlier quarrel and the threat and also about the lights and source of identification She had not said about the inverter being operated but she had said about the TV being on. She had said to him that at Dhiraj, two persons had fired and she had not given out the names of the said two persons P.W. 1 had not shown him any inverter or battery. He has said that there was no complaint against him to the higher authorities about the investigation.
10. Then comes, P.W. 4 the second Investigating officer, Akshay Kumar Singh, who took on the investigation on 28-5-1987. On 4-6-1987, accused Munna had already appeared. On 2-7-1987, he went to the spot along with the Superintendent of police and recorded the statement of Raghunandan Prasad, (P.W. 1), Kiran Kumari (P.W. 2) and Hardwar Singh etc. and also inspected the place of occurrence and on the basis of which, he submitted charge sheet on 11-7-1987. About the conduct and character of Kiran Kumari, he made inquiries and came to the conclusion that she was a girl of good character The investigation was taken up on telephonic order of the Superintendent of police on 28-5-1987 and even if he would not have ordered, the investigation of the case would have been taken from P.W. 3. He had made inquiry about the character of P.W. 2 from Vimal Kumar, Umesh Prasad Choudhary, Manu Singh, Mohd. Qaiyumuddin, Arun Kumar Singh, Chhedi Thakur. He has said that he had not written about any irregularity being found in the investigation of Ram Anugrah Prasad Singh (P.W. 3) and also did not write about the light being on or battery or inverter being found there. He had not seized any articles from the spot. He has said that Kiran Kumari had not said before him that the gun shot fired by Munna had passed out through west. She had also not said to him about her statement being recorded incorrectly by P.W. 3.
11. And now remains the doctor, P.W. 5. Dr. Mithilesh Kumar Sinha the then professor and Head of the Department of Forensic Science Laboratory A.M.C.H. Gaya who had conducted the postmortem examination of the deceased Dhiraj Kumar and had submitted his report (Ext. 5) mentioning the following injuries:
One circular wound of entry over root of left mustoid process size 3/4" circumference with blackened, scorched and inverted margin located behind left ear with tattooing of area covering 21/2 around it and one built was found lodged into the substance of inner table right temporal bone which was fractured. Direction of the wound was from left to right horizontally and forward.
In his opinion, the injury was ante-mortem, grievous and dangerous to life. Injury was caused by fire-arm. The death in his opinion was due to shock, compression and comma. Time since death was within 12 to 18 hours. P.W. 5 has stated that the injury might have been the effect of firing done from side. He denied the suggestion that he did not mention correct; the direction of the bullet or the bullet had travelled in upward direction.
12. For appreciating the evidence of eye-witnesses, the Supreme Court has observed in the case of State of Punjab v. Jagir Singh and Ors. as follows:
A criminal trial is not like, a fairy tale wherein one is free to give fligh to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its instrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
Later in the case of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra AIR 1973 SC 2626 at p. 2626 (para 6) it has been observed as follows:
Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the sooth-lug sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one onnocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say wit viscount simon, that "a miscarriage of justice may arise from the auquittal of the guilty no less than from the conviction pf the innocent...." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice ptent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.
In the case of State of U.P. v. M.K. Anthony , it has been observed at p. 54 (para 10) as follows:
While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have aring of truth. Once that impression is formed it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmites pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence in shaken as to render it un worth of belief. Minor discrepancies on trivial matters not touching the core of the case hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer net going to the root of the matter would not ordinarily permit rejecting of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and trustful witnesses may differ in some details unrelated to the main incident because power of observations retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial Court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible.
Again in the case of State of U.P. v. Ranjha Ram and Ors. , it has been held at page 1962 (para 16) as follows:
The remaining three witnesses are not doubt the sons of the deceased but it is needless to say that their evidence does not lose credibility on that score. Their evidence has only to be scrutinised with greater care in order to find out whether it suffers from embellishments or exaggerations due to interestedness. The High Court has unfortunately failed to judge the evidence of P.Ws. 1, 6 and 7 by this well accepted standard. On the other hand, it has set new standards and sought for materials which would merit implicit acceptance at its hands. In more than one place the High Court has observed "that implicit reliance" cannot be placed on the evidence of P.Ws. 1, 6 and 7. This unsustainable approach insisting on "implicit proof" instead of proof beyond reasonably doubt" has blurred the vision of the High Court to the irrefutable materials contained in the evidence of P.Ws. 1, 6 and 7.
In the case of Appabhai and Anr. v. State of Gujarat , the Supreme Court at page 851 (para 13) has observed as follows:
...The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on recorded by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
In the case of State of U.P. v. Anil Singh it has been observed as follows:
It is also our experience that invariably the witnesses and embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both arc public duties which the Judge has to perform.
Again in the case of State of U.P. v. Krishna Gopal and Anr. , the Supreme Court has held at p, 2160 (para 13) as follows:
...It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touch stone for the cost of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit worth; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
A person, has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case.
In the case of State of U.P. v. Pheru Singh and Ors. 1989 SCC (Cri) 420: , it has been said at p. 1211 (para 10) as follows:
In State of U.P. v. Hakim Singh , it has been ruled by this Court that Supreme Court would interfere where High Court instead of dealing with the intrinsic merits of the evidence of eye-witnesses, had brushed it aside on surmises, conjectures and preponderance of improbabilities which, in fact, did not exist.
Thus, from these standards laid down from time to time by the apex court, it is clear that the witnesses, who are eyes and ears of justice, should not be discarded on flimsy grounds. Their evidence should be appreciated and approach with care and caution keeping in view the reasonable improbabilities, deficiencies, drawbacks and infirmities. The should not give any consideration or weight to conjectures, surmises, improbabilities, artificiatilies on fanciful doubts, but inherent basic realities, merit and the general trend of tenure of the evidence should be kepts in mind. Their evidence Court should go by the yardstick of probabilities and intrinsic truth and values and should try to see if there is ring of truth in the main. The Courts should not go by fanciful imaginations or hyper technologies. The defects, contradictions, deficiencies or inconsistencies, which do not go to the root of the matter, should not be exaggerated and magnified. Minor discrepancies and contradictions are bound to be in a natural and truthful evidence but when the discrepancies, contradictions, consistencies and falsehood are so glaring as to destroy the confidence of the Court in the witnesses then the Court should not accept the evidence. When details are given, there are bound to be some variations on account of the difference in perception and observation but on account of them, mechanical rejection of the otherwise truthful and trust worth ly and also even reliable evidence, is a denial of justice. The Court is definitely to abide by the principle that no innocent should be convicted but in doing that, the Court should not have a short circuit of too much adherence to acquittals on flimsy grounds which have no sound basis or on doubts of an oscilating mind. The doubt should be reasonable mind. The Court must not accept the embelishment, improvement and embroidery and should try to cull out the nugget of truth from the evidence. If the evidence inspires confidence and is found truthful unartificial and not suffering from any infirmity, contradiction, illegality or any other such type of lachss, then, suah evidence should be accepted. No hard and fast rule can be laid down. It is the judicial discretion of the Court on these touch stone which should prevail and not otherwise. In the instant case, the evidence of father and sister of the deceased who were the most natural and probable witnesses on the spot, have given out the earliest version within 15 minutes of the occurrence. The fardbeyan was given within 15 minutes of the occurrence and thereafter, the statements of the two witnesses recorded, who have given out the same version as in the fardbeyan and so also in the Court. Their evidence has been subjected to searching and severs and lengthy cross-examination, there is no contradiction or apparent falsehood in their statements to destroy the confidence of the Court in this two witnesses. As such, their evidence which does not suffer from any infirmity, can be relied on.
13. Learned Counsel for the appellants has contended that in the fardbeyan given by the father it has been said that Munna and Fantus both had fired but the medical evidence shows that there is only one firing and so, the version given by them, does not fit-in with the medical evidence. As to this contention, it has been seen that the first Investigating Officer, P.W. 3 came rushing to the place of occurrence on hearing the sound of gun fire. By then, father of the victim had brought out the dead body and kept it on the road. On his arrival within 15 mintues of the occurrence, the fardbeyan of the formant was recorded. The mental condition of the father who had lost the son in such a condition, cannot be ignored. He gave out the version without giving further details as to whose lire hit and whose fire did not hit. But firing by both has been given out. In the case of Thulia Kali v. State of Tamil Nadu AIR 1973 SC 502, at Page 504 (Para 12), it has been observed as follows:
...First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the played by them as well as the names of eyewitnesses present at the scene of occurrence.
A first information report is net expected to contain all the details as is also not to a detailed document. Absence of minute details in the first information report will not be of consequence unless those details go to the root of the matter or are vital for the case. In the case of Badda Narayana and Ors. v. State of Andhra Pradesh , it has been observed as follows:
...Dealing with this aspect of the matter, the High Court pointed out that the F.I.R. was lodged soon after, the occurrence and there was no occasion for the informed to have mentioned all the material particulars in the F.I.R. which had to be narrated and proved at the trial. We find ourselves in complete agreement with the reasons given by the High Court. In fact we find from the perusal of Ext. PI that all the essential details that the F.I.R. should contain-are given there, names of the accused are clearly mentioned, the circumstances leading to the murderous assault on the deceased Linganna have been set out. It has also been mentioned that the accused got down from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep. It also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-I which constituted the motive for the murder. Thus shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F. I. R. which was lodged very soon after the occurrence. In our opinion, it is neither customary nor necessary to mention every minute detail in the F.I.R. China P.W. 1 must have been extremely perturbed because the deceased Lingana had been suddenly attacked by a number of assailants and his body was carried away. It is in that state of mental agony that he was not able to give further details in the F.I.R.
In the case of State of U.P. v. Ballabh Das and Ors. , it has been observed at Page 1385 (para 12):
...It is manifest that a F.I.R. is not intended to be a very detailed document and is meant to give only the substance of the allegations made and, therefore, the absence of the mention of a lathi would not put the prosecution case out of court.
Again in the case of Jagtar Singh y. State of Punjab and Ors. AIR 1988 SC 628, the Supreme Court has observed at page 630 (Para 6) as follows:
It has been urged on behalf of the respondents that in the F. I. R. (Exhibit PA) it was merely stated that the accused gave one handle blow on the forehead of the deceased. Then the deceased fell down and the accused gave 3-4 handle blows to the deceased whereas in his deposition before the Court the informant made the improvement by sating that out of the 3-4 handle one hit him on the right side of the forehead, one on the back of the left side of the head, one on the back of the right side of the had and one on the back of the head. It had also been urged that in the F. I. R. it was not stated that Jagtar Singh, P.W. 1 and Gurmit Singh tried to intervene when the accused was giving blows to the deceased with the handle. It was therefore urged that because of these improvements, the prosecution story as made out in the F. I. R. WKS doubtful. It was further submitted that in the F. I. R. it was not stated that the accused left the place leaving the tractor at the place of occurrence though the F. I. R. stated in detail about the occurrence. This submission cannot be sustained as it is evident from the F. I. R. which was lodged with utmost promptitude that P.W. 1 had stated therein that 'he and Gummit Singh went ahead in order to separate him.' As regards the statement in his evidence regarding the 3-4 blows made with the handle of the tractor it cannot be said to be an improvement but it merely explains the places where the assault was made on the body of the deceased. On this basis, it cannot be said that there was an improvement made on what was stated in the F. I. R. The statements of the eye-witnesses cannot be discarded on this score. The statements of the witnesses are very clear and straightforward. There cannot be any doubt or possibility regarding the presence of the two eye-witnesses P.W. 8 at the time of the incident.
So, if the first information report gives out an earlier version with details though not minutely, but substance of the allegations are there and use of the weapon, names of the accused, name of the victim and the manner of assault is there, then this is to be seen in the light of the evidence in the court of the eye-witnesses and the corroborating evidence of the doctor and the objective findings of the Investigating Officer. This aspect has been dealt with by the Supreme Court in the case of State of U.P. v. Brahma Das in which it is has been observed as follows at p. 1777 (para 5):
The High Court exercising appellate jurisdiction instead of scrutinizing the evidence of these four eye-witnesses individually, discarded their evidence wholesale substantially on the ground that the prosecution-version as narrated in the FIR at the instance of ore of them was in some respects discrepant from the prosecution version as unfolded by these witnesses in the Court. This approach was totally unwarranted and impermissible. The report made in the hand of one Yadunath Prasad which he had written as per the dictation of P.W. 1. P.W. 1 (Aditya Ram) was treated as FIR. At best the evidence of P.W. 1 could have been tested with reference to the version contained in the FIR and appropriate inference could have been drawn vis-a-vis P.W. 1 on the basis of the alleged discrepancy. The evidence of the other eye-witnesses who had nothing to do with the collectively condemned, wholesale, on the basis of the alleged discrepancies in the context of the previous statement of P.W. 1 contained in the FIR on the one hand, and their evidence at the trial, on the other hand. In fact what discrepancy was one that hardly mattered. In the FIR lodged soon after the murderious assault there was no mention of the victim being given a stick blow whereas it was stated in the court by other witnesses that a stick blow was given. The medical evidence disclosed that there was a fracture of the skull. If P.W. 1 had referred to the gun shots fired at the victim and in the tension of the moment omitted to refer to a stick blow, it was a matter of little consequence, The High Court made a mountain out of a non-existing molehill.
Thus, in the instant case, P.W. 1, in the fardbeyan has given out about the firing by both and hitting also but in the immediate statement given to the police, he gave out that the firing by Munna had hit and firing by Fantus had not hit. So was the statement of P.W. 2 also. This statement has been recorded by P.W. 3. If no such version had been given out by the these witnesses, then definitely, the defence would have pointed out this improvement in the statement of the witnesses. It is not an improvement to giving out all the details. But this much shows that firing by Munna had hit the victim though Fantus had also fired, but the same had not hit. The medical evidence corroborates the version given by the witnesses that it is a firing which caused the death of the victim. As such, it cannot be said that on account of not receiving the gun shot fired by Fantus' no case is made out against him. He had definitely fired which has been made out by the statements of the witness. As such, the Court below has found I am guilty under Section 302/34 of the Indian Penal Code and in my view has rightly convicted him; Thus, it is well proved that the victim had died of the gun shot injuries.
14. As regards the identity of the appellants, it has been said by both the eye-witnesses, and is also mentioned in the fardbeyan, that TV was on and so, it is but natural that when the TV is on in the room, some light is created there. For that both the witnesses have said that inverter run by battery was also there from which TV and lights were being operated in the room. Nothing has come out from the evidence of these witnesses or even of the P.W. 3, that TV was not there on the spot. The earliest version contained in the fardbeyan given out within 15 minutes of the firing to P.W. 3 shows that at the relevant time, the informant and P.W. 2 were seeing TV along with the victim at the place of the occurrence. It is clear that when TV was on, it means that there should have been electric line or some other source of current, e.g. inverter by battery or generator without which viewing of TV is quite impossible. The evidence these witnesses subjected to lengthy cross-examination, does not make out that TV was not being seen by them and so, it becomes clear that I here was some light at the place of the occurrence at the relevant time. Further, these two appellants were known persons and their names, through by alias, were given out in the earliest version in the fardbeyan. Further, it was not a case of hit and run but a case of appellant's entered into the room, First, hand of Kiran Kumari was dragged by Munna which was resisted by the victim and then first firing was done by Fantus and second firing was done by Munna, so, the witnesses had come in such a close contract as to identify the assailants in the light of TV" and the other lights run by inverter. So, it cannot he held that the appellants could not be identified. Further, P.W. 1 says that as he had chased the appellants raising alarm for some distance of calling 'pakro pakro' the identification of the appellants is quite possible. Even in darkness, known persons can be identified. In the case of Angnoo v. State of U.P. , it has been held by the Supreme Court at page 298 (para 7) as follows:
All the appellants were well known to the witnesses and there is no reason to doubt their evidence that they were able to recognise all the ten of them. Persons well known can be recognised within a very short time. The appellants were seen by them while continuing the attack on Mahadeo and while they were going away after completing the assault.
In the case of Bhagwan Dass v. State of Rajasthan AIR 1974 SC 1969 at p. 1701 (para 11) it was observed as follows:
We are not impressed by the argument advanced on behalf of the appellant that Chunki on account of the darkness of night could not have identified the assailant. If the assailant could got after the viction one after the other and cause them injuries, there is no reason to suppose that Chunki who was one of the victims could also not identify the assailant. The accused was not a stranger and was known to Chunki. Thunki who received as may as 15 injuries at the hands of the accused could not in the circumstances, have made any mistake regarding the identity of the assailant. It is also difficult to believe that Chunki would spare the real assailant and falsely mention the name of the accused as the person who was responsible for the injuries caused to her and the three deceased persons Chunki, it may be stated, has not been shown to have any animus against the accused.
In the case of Om Prakash and Ors. v. State of U.P. AIR 1483 SC 431 where the evidence of P.W. 2 showed that it was moon-lit night and the lantern was burning in the eastern kotha where it had been hung on a peg fixed at a height of 6' from the ground on the eastern wall and that when she heard the sound of some persons in the court yard she got up immediately and raised wick of the lantern which was until then giving dim light, the Supreme Court, at page 437 (para 16) has observed:
Therefore, there must have been sufficient light in the easier kotha for P.W. 2 to note the presence of the appellants who belong to the same village and were not strangers and for P.W. 8 also to note the presence of the culprits. There was sufficient moonlight for P.W. 1 and P.W. to see the culprits who are stated to have been moving in and out of the house of the deceased and P.W. 2 during the occurrence. Therefore, it could not be stated that P.Ws. 1, 2, 7 and 8 could not have been in a position to identify, any of the culprits.
15. It has been urged by the learned Counsel for the appellants that the names of the appellants have been given in the First Information Report as Fantus and Munna only while their names are Manoj Kumar and Pravin Kumar. Further, it has also been urged that the names of the appellant's father has been given out as Babban whereas his correct name is Ram Balkrishna Prasad. As to these contentions, it appears that in the first information report, the names of the appellants have been mentioned as Fantus and Munna son of Babban P.W. 1 in paragraph 2 of his evidence, has said that among them he identified two persons Fantus alias Manoj Kumar and Munna alias Pravin Kumar. P.W. 2 Kiran Kumari has said that suddenly after the entrance of the persons into the quarter with rivolver, out of them, she knew two faces, i.e., Munna and Fantus in which Fantus second name is Manoj Kumar and Munna's second name is Pravin Kumar. On this point, none of the two witnesses have been cross-examined and their statements have not been challenged at all. Even in statements under Section 313 of the Cr. PC the appellants have given out their names as my name is Munna urf Pravin Kumar, father's name is Ram Balkrishna Prasad urf Babban and so has been stated by Fantus'my name is Fantus urf Majoj Kumar, my father's name Ram Balkrishna Prasad urf Babban. This has never been objected by any of the appellants nor in the argument of the trial court, this plea had been taken. Thus, this contention of the learned Counsel for the appellant about the name's differences, is not made out from the material on record. The identity of the appellants in this way, has been established as they were claimed to be known to the witnesses from before.
16. As regards the motive, learned Counsel for the appellants has argued that two motives, (i) quarrel about the cricket play and (ii) the threat to kill at Gumti No. 2 of railway, though alleged but they have not been proved by the prosecution and so the prosecution suffers adversely. As to this contention, in the fardbeyan, these two motives have been given out, firstly the quarrel between the deceased and one Pawan Kumar son of Babban and secondly, on 25-4-1987 at about 8 p.m. , threat having been given by Munna to the victim 'Gunda ban rahe ho dekhenge'. P.W.' 1 in his statement has said that a week earlier, there was a quprrel between Dhiraj and Pawan on account of cricket play and further on 25-4-1987, Munna had given out threat as said abve to the victim to kill by saying "Turn gunda bante ho, zinda nahin chhorenge" and for this incidence of 25-4-1987, he had not lodged any information thinking that the threat has been given out of anger. Similar is the statement of P.W. 2 Kiran Kumari about the cricket play and threat on that matter. She did not make any complaint regarding the threat nor even informed her father or any people of the locality about the same. For this version the witnesses have not been shattered in the cross-examination simply because Saneha has not been lodged and no complaint has been made to any person of the locality or any higher authority rather it was taken as a quarrel between the boys, it does not mean that the occurrence had not taken place. Nothing has been suggested that the appellants had no motive to kill the victim and he had been killed accidentally as he was resisted the catching hold of the hand of the sister and then dragging her. This resistance was not such a matter for which both the appellants should have fired shots one sifter the other. Therefore, the motive appears to have been to the appellants to kill the victim. That is why one after the two shots were fired. Motive is always an important factor. It may be to an accused to commit an offence and also to the victim to implicate a person falsely in the offence. Absence of motive makes the Court to go deep into the matter for proving into the evidence as to why the offence has been committed and also the accuse have been implicated in the case. Motive is always hidden in the heart of the person committing the offence. As said by Supreme Court in the case of Subedar Tewari v. State of U.P. 1989 SCC (Cri) 218 at page 242. Para 20:
The evidence regarding existence of motive which operates in the mind of an assassin very often then' (sic) not within the reach of others. The motive may not even be known to the victim of crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of assassin.
Motive is not an evidence, but only supports the version of the crime, and probabilises the commission of an offence. Motive is of importance in cases which are based on circumstantial evidence, as if the evidence shows that the accused had any strong motive and had the opportunity to commit the offence, motive becomes a very relevant and strong chain while considering the other chains of circumstances. When a motive is alleged, the court has to judge the evidence in the light of the motive. In the case of State of U.P. v. Hari Prasad the Supreme Court held:
This is not to say that even if the witnesses are truthful the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter' of that it is never incumbent on the prosecution to prove- the motive for the crime. At often times a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But if the crime is alleged to have been committed for a particular motive, it is relevant to enquire whether the pattern of crime fits in with the alleged motive.
A Division Bench of this Court in Ajodhia Singh and Ors. v. State of Bihar 1989 BLJ 33 has said:
True it is, absence of motive will not necessarily lead to failure of any prosecution. Motive is a mental phenomenon and at times it may not be easy to prove what was the motive. Motive has to be referred for the attending circumstances. But once a motive is introduced in a case, it is the duty of the prosecution to satisfy the conscience of the court that such motive did exist empelling accused persons to embark on such a ghastly crime.
But the non-proof of the motive cannot be basis for disbelieving an otherwise convincing and trustworthy evidence. Success or failure of prosecution case is not dependent upon proof or non-proof of the alleged motive. Supreme Court in the case of Krishna Pillai Sree Kumar v. State of Kerala has obsesrved:
In any case it is not a sine qua non for the success of the prosecution that motive must be proved. So long as the evidence remains convincing and is not open to reasonable doubt, a conviction will be passed on it.
In the case of Gopalan v. State of Kerala 1985 Cr LJ (NOC) 3 (Ker) : 1984 Ker LJ 553, a Division Bench has said:
It is not always easy to prove the motive for the crime. Often the motive is locked up in the heart of the offender. The discovery of the true motive is not imperative and the circumstances proving the guilt of the accused are not weakened at all by the fact that motive has not been established.
But where direct evidence of eye-witnesses is found to be trustworthy, reliable and having ring of truth, motive loses its importance and becomes academic with secondary importance. The evidence of truthful eye-witnesses cannot be brushed, if there is failure in proving motive. In the case of Sitaram Pandey and Ors. v. State of Bihar 1976 Cr LJ 800, a Division Bench has observed at page 803 (para 7): that apart, it is firmly settled that motive or the genesis of the occurrence is not of much importance where the occurrence is supported by the positive eye-witnesses. In the case of Faquira v. State of U.P. , it has been held at page 916 (Para 4):
The fact that the apparent motive was too flimsy is no reply to the unshaken testimony of creditable and natural eye-witnesses who had no motive whats over to implicate the appellant falsely.
Further, in the case of Molu and Ors. v. State of Haryana AIR 1976 SC 2499, at Page 2505 (para 11) it has been observed as follows:
It is well-settled the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Some times, the motive is clear and can be proved and some times, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however the evidence of eye-witnesses is credit worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.
In the case of State of Haryana v. Sher Singh and Ors. , it has been observed at page 1023 (Para 11) as follows:
The prosecution is not bound to prove motive of any offence in a criminal case inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. If motive is proved by the prosecution, the Court has to consider it and see whether it is adequate. In the instant case, motive proved was apparently inadequate although it might be possible.
Again in the case of State of Andhara Pradesh v. Bogam Chandraiah and Anr., (Para 11) it was said:
Another failing in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well-settled rule that when there is no direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the Court.
17. It has also been contended that only P.Ws. 1 and 2 the father and sister of the victim have been examined and no neighbour or person of the locality has been examined, and so what was the immediate disclosure by P.Ws. 1 and 2 has not been brought on record to judge the veracity of the two witnesses and further not even the seizure list witnesses have been examined. As to this contention of non-examination of persons other than P.Ws. 1 and 2 besides the two Investigating Officers and the doctor, the evidence on record shows that the occurrence had taken place in Quarter No. 401-A in the Baithka where only three persons, namely, father, sister and the deceased were said to have been there. In these circumstances, the father and the sister of the deceased are the most natural and probable witnesses who have been examined. Although P.Ws. 1 and 2 have said that there were several departmental quarters occupied by a number of persons but P.W. 1 lias clearly said that mohalle ke Kisi ne jihhanka tahin. So, none came on the spot at the time of occurrence although P.W. 2 says that quarters are nearby and occupied by different persons with whom she had good terms. P.W. 1 has also said that after he returned from chasing the accused, he found a large number of persons gathered at the gate. But in the fardbsyan none of the persons of the locality have been given out as a witness who came after the occurrence. In the situation that the son. of the informant was laying dead, he would not be remembering the persons who came at the gate. P.W. 3 has said that in Para 23, that of Chirayatanr, Mahesh Yadav, Raghu Yadav, and Parshuram Singh were present at the time of inspection of place of occurrence and before them seizure list was prepared. Chirayatanr was four kilometres away from the place of occurrence and persons of the nearby quarters have not signed as witness. This fact has not been challenged in cross-examination nor even the seizure list has been challenged, when the P.W. 3, the first investigating Officer has deposed about it and proved the relevant document. As such the non-examination of the witnesses of the recovery does not have any adverse affect upon the prosecution case about recoveries. In the case of Kartar Singh v. State of U.P. 1971 SCC (Cr) 6 at page , (Para 12), it was said as follows:
The learned Counsel further says that the witnesses, other than Mukhtar Ahmad and Nazir Ahmad, who had signed the memo relating to the search of the appellant and the recovery of the revolver and live cartridges and the blood stained currency notes have not been examined. The prosecution had examined two eyewitnesses were also party to the memo relating to the search of the person of the appellant and perhaps it was not thought necessary to call the other persons who had signed the memo. If there was any doubt about the matter the defence could have summoned the other persons as defence witnesses.
In the case of B.N. Singh and Ors. v. State of Gujarat 1990 Cr LJ 1601 (supra) at page 1605 (Para 1 ) the Supreme Court observed as follows:
The High Court has held that the evidence of P.W. 4 is corroborated by the circumstances, namely, that the complaint was given within 20 minutes and the medical evidence panchnama of the scene of occurrence and the evidence of P.W. 5 also corroborated. But these circumstances only at the most may establish the place and time of the occurrence and the nature of weapons used but the corroboration should be in respect of the complicity of the accused and incriminating.
18. So far the witnesses of the locality are concerned, they had not seen the occurrence, but came afterwards and none of them signed as witness of recovery memo. No doubt, a witness who reaches after the occurrence, may be treated as independent and his evidence is worth consideration, but if he is not examined, then it will not adversely tell upon the prosecution version given out by otherwise trustworthy and reliable evidence.
In the case of Amar Singh v. State of Haryana page 2234 (Para 8), the Supreme Court has said "Counsel for the appellant contended that all the material witnesses examined in the case were either related to Thandu Ram or interested in him and the disinterested neighbours who had seen the occurrence were not examined. There is no evidence that any person other than P.Ws. 3, 4 and 5 saw the occurrence. P.Ws. 3, 4 and 5 have been believed by the trial Court as well as by the High Court. We see no force in the contention that because neighbours residing near the place of occurrence had not been examined, therefore, these witnesses should not have been believed." In the case of State of Assam v. Saifuddin Shaikh 1981 Cr LJ (NOC) 4, Division Bench, relying upon Dalip Singh v. The State of Punjab, 1979 Cri LJ 700 (SC) that, the non-examination of the witnesses who were not eye-witnesses, will not affect prosecution case, held that non-examination of witnesses who gathered at the place of occurrence after hearing the Halla, cannot affect the prosecution case,
19. It has been seen that usually neighbours avoid to appear as a witness in a case. They think that it is a dispute between the parties and so why to side one and then invite the aftermoth. A witness has got his own- interest in the upper most. It is some time on account of fear of the assailant and his party that the neighbours and persons of lacality adopt an indifferent and unconcerned attitude. Local factions, caste, political safety and personal interest, and such other factors, become the consideration which deter the actual and true eye-witnesses from appearing and deposing truth before courts of law. In tha case of Darya Singh and Ors. v. State of Punjab ,the Supreme Court observed as follows:
In this connection, it is necessary to bear in mind that there is nothing on the record to show that any person in the locality who actually witnessed the incident had been kept back. No such suggestion has been made to the investigating officer and no other evidence has been brought by the defence in support of such a plea. It is well known that in villages where murders are committed as a result of fact onus existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but, it would be wholly unrealistic to suggest that if the prosecution" is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits. In the present case, we see no justification for the assumptions that any eye-witness has been kept back from the Court, and so, we feel no hesitation in rejecting the argument that the case should be sent back on the hypothetical ground that the scrutiny of the police diary may disclose the presence of an independent eye-witness, such an argument is wholly misconceived and can be characterised as fantastic.
In the case of State of U.P. v. Lalla Singh and Ors. , it was held:
It is common ground that the villagers are usually reluctant to keep themselves involved in an occurrence especially where the accused are desperadoes.
In the case of Appabhai and Anr. v. State of Gujarat , it has been observed in para 11 as follows:
It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individual or parties and they should' not involve themselves. "This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village, life towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probabilty, if any, suggested by the accused.
Further in the ease of State of U.P. v. Anil Singh (Para 13) it has been observed:
In some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, incorrect to reject the prosecution version only on the ground that witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
In the case of Anvaruddin and Ors. v. Shakoor and Ors. 1990 Cr LJ 1269 it has been observed at page 1274 (Para 11) as follows:
It must be remembered that the incident occurred in the house of Siraju which was bounded on all sides' by a compound wall of the height of 4 to 5 feet. The prosecution case is that the assailants scaled the wall from the side of Fayaz's house and entered the open space where the deceased were working on the machine Therefore, it is not possible that the neighbours would have collected immediately the assault was launched. It may be possible that the neighbours may have connected sometime after hearing the gun shots. The incident could not have lasted for long and, therefore, the explanation given by P.W. 1 m this behalf cannot be said to be false. Non-examination of Anvaruddin, also a family member cannot make any difference. In these circumstances we think that the High. Court was not right m concluding from this solitary statement in the F.I.R. that the prosecution was guilty of keeping back independent witnesses.
20. So far as there being on immediate disclosure on account of non-examination of the neighbours coming immediately after the occurrence, courts have been making observations, from time to time In the case of Mahendra Pal and Anr. v. State , a Division Bench, has observed at page 331 (Para 7) as follows:
The ahata was occupied by a number of persons, apart from the deceased and the eye-witnesses, and it is in evident that they were sleeping there. It is further in evidence that those persons came immediately after and it is alleged that they were informed by the eye-witnesses as to who the two culprits had been, namely, the two appellants. Amongst those persons were Onkar Nath TEwari, an Assistant Public Prosecutor Rajendra Singh, Amin and Bhagwat Singh and certain others. Those persons were not produced as witnesses in the case. They were however, examined by the investigating officer on 2-7-1953 as stated by him Their non-production has been explained upon the hypothesis that they did not actually see the occurrence.
Assuming that they did not, their evidence is material, not with a view to prove the actual fact of murder, which was in issue but to prove the relevant fact, namely, that just after the event the eye-witnesses disclosed the names of the culprits to those who came this relevant fact having been so connected with the fact in issue in view of Section 6, illustration (a, Evidence Act, as to have necessitated the giving of evidence, on that relevant fact itself as required by Section 5 of that Act. Section 5, Evidence Act, says that evidence may be given on of the existence or non-existence of every fact in issue and of such other facts as are declared in the Act itself to be relevant.
Section 6, Evidence Act, says that facts, which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occur at the same time and place or at different times and places. Illustration (a) of that section makes it clear that where A is accused of the murder of B by beating him, whatever was said or done by A to B, or by the bystanders, at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.
In the case of Bam Pakar Thakur and Ors. v. The State of Bihar AIR 1974 SC 248, the Supreme Court considered this aspect at pages 285 and 286 (paras 4 and 7) as follows:
4. A serious infirmity from which his evidence suffers is that admittedly several people from the neighbourhood met him at his house after the murder of his brother but he did not disclose the names of the assailants to anyone whatsoever. The other members of his family also did not mention the names of the assailants to anyone of those persons.
7. It is impossible to believe that none from the large crowd of villagers who had gone to Nauldeo's house after the murder of Arjun had the ordinary courtesy of curiosity to inquire whether the assailants were known. Such is not the ordinary experience of human affairs.
In the case of Babuli v. The State of Orissa , it was said at page 776 (para 10):
One of the important points in favour of the appellant was that Ghanshyam had not disclosed the name either of the appellant or of the other accused to any one of the scores of people whom he had met until the First Information Report was lodged about 20 hours after the occurrence.
In the case of Harbhajan Singh v. The State of J & K ,the Supreme Court said that where in prosecution of accused for murder of a girl by Rifle it is found that the only eye witness (the girl's father) failed to mention the names of the accused to the neighbours who came to the score soon after the occurrence, that they will only show that the accused is not known to the witnesses, but that by itself will not render the prosecution story untrue when prosecution case does not rest on the evidence of that witness alone and there are other corroborative circumstances lending enough support to the involvement of the accused in the crime.
In the case of Om Prakash and Ors. v. State of U.P. , the Supreme Court observed Merely because P.W. 1 had sustained any injury during the occurrence and had not mentioned the name of any of the accused to the other villagers soon after the culprit left the place it is not possible to reject the evidence of P.W. 1, altogether.
In Narain Singh and Ors. v. State of M.P. : (1985) 1 SCJ 498, it was observed:
It was not the case that of P.W. 11 never disclosed the details of the incident to the members of the family of the deceased but when he went to the house he immediately did not name the accused and the explanation by P.W. 11 was that he was completely perplexed he could not disclose the details immediately. The evidence of P.W. 11 shows that within 15 minutes he disclosed the names of the accused and gave full details of the occurrence. The learned Sessions Judge seems to have taken a most unrealistic view of the evidence of P.W. 11 by ignoring the fact that he (P.W. II) being a guard of the deceased must have been shocked and stunned after seeing the whole incident and, therefore, he may not have been in a position to mention the names of the accused immediately but after composing himself within 10.15 minutes he mentioned the names and also gave all the details. Tite presence of P.W. 11 at the scene at the time of attack on the deceased was not challenged before us. 'Nor could be challenged, for the suggestion made to P.W. 11, which he denied that he himself attacked the deceased. P.W. 11 appears to be a truthful witness as he, himself admits that he could not immediately give the names because he was perplexed and it is quite a natural thing particularly in the case of a person coming from the strata of society of which P.W. 11 was a member. It is not uncommon for the persons when they see a ghastly and dastardly murder being committed in their presence that they almost lose their sense of balance and remain dumb founded until they are able to compose themselves. This is why exactly what may have happended to P.W. 11.
Thus, from all this, it is made out that the prosecution should examine not only the eye-witnesses but also those persons who came immediately after the occurrence to whom the eye-witness should given out the version of the occurrence in detail, so that it may be known as to what is the earliest version. Those persons collected at the spot may not be eye-witness, yet may become necessary to prove the relevant fact that is just after the event what the eye-witness, had given out to them. It is a human tendency to go to place immediately where some occurrence takes place and enquire from the victim or the concerned people about the nature of the occurrence with its full details as for as possible, Further, it is also a natural human phenomenon that the victim of any occurrence will like to give out to the persons nearby about the incident suffered by him and so is the case of a person who sees an occurrence, to give out to others meeting immediately, the details of occurrence seen by him. But at times, the victim or the persons seeing the occurrence get so much stipified, stunned, shocked or under such a mental state that they do not immediately give out as to what they had suffered or seen. They take sometime to come to proper senses and to recover from the shock of the occurrence, and then they give out as to what they had suffered or seen. This is a question of fact and circumstances of each case, different from person to person, which has to be judged accordingly. Here in this case, as seen earlier, the P.W. 1 has said that no one even peeped into and also said that when returned after chasing the accused, he found a large number of persons at the gate. While he had taken out the victim from the Baithka, place of occurrence, and had kept him at the road for taking him to hospital, then the P.W. 3 (as himself stated), came to the place of occurrence within 15 minutes of occurrence and recorded the fardbayan of P.W. 1. In this 15 minutes, the P.W. 1 has not been found to have made any diclosure to anyone or anyone approached him for enquiry about the occurrence. Further, in this 15 minutes, the P.W. 1 had no opportunity to cook out a false story about the ghastly and dastardly murder of his young son, whose death in such circumstances he had not even imagined. So is the case with P.W. 2, the sister of the victim, who too could not get any opportunity to give out about the matter to anyone nor was the able in such circumstances to concoct a, false and embellished version of the occurrence, The Fardbeyan was recorded within 15 minutes of the occurrence and so the immediate version came out in such mentally disturbed and upset condition.
21. As regards the contention that. only close relations nave been examined being the father and sister of the deceased, so they are interested, inimical and partisan witnesses and so, their evidence is unreliable. As to this contention, relationship or partisanship is no ground to discard the evidence of natural and probable witnesses who had seen the occurrence. Their evidence has to be scrutinised with care and caution and if it is found to be suffering from any infirmity or deficiency then reliance should not be placed. A relation witness is a most natural and probable witness and he will be the last person to spare the real assailant and falsely implicate another person in a case, of murder. Such evidence should be scrutinized with care and caution to see if any innocent has been falsely roped in. The automatic and mechanical rejection of the evidence of an interested and relation witnesses, specially in the circumstances that they were the only eye-witnesses to the occurrence in the house or any other place of occurrence, is only to discard such evidence for no just and legal cause. A Judge is not to shut his eyes to other facts and circumstances which also support and corroborate the interested evidence. The intrinsic value of the evidence and the supporting circumstances and corroborating factors are essential considerations in appreciation of such evidence. In the case of Barati v. State of U.P. , it has been said at page 13 that:
close relations of the deceased would be the most reluctant to spare the real assailants and will falsely mention the names of other persons as an accused.
Again in the case of State of U.P. v. Sughar Singh and Ors. , it has been observe at page 196 (para 10):
It is true that this witness is related to the deceased, being his father and is also inimical to the respondents accused and, therefore, a partisan witness and as such his aforesaid testimony has to be viewed with care and caution, but. that by itself, cannot be sufficient ground to reject it unless the same is found to be untruthful by reason of other infirmities.
The Supreme Court in the case of State of U.P. v. Hakim Singh and Ors. , the Supreme Court held at page 184 (para 1) as follows:
One of the general grounds on which evidence of these two witnesses was rejected by the High Court these witnesses were partisan or interested witnesses, being near relations and living practically in the same house, these cannot be said to be interested witnesses, but are very natural witnesses as held by the Court in the case of Mst. Dalbir Kaur v. State of Punjab . Moreover, as the murder took place near about midnight inside the house we would not have expected witnesses from outside to see the occurrence. On a perusal of evidence of P.Ws. 1 & 5, we are fully satisfied that these witnesses are stating the truth and have not concealed anything. We might also mention that although P.W. 1 was subjected to a gruelling and searching cross-examination yet nothing of importance was elicited from his evidence in order to shake his testimony.
In the case of State of Gujarat v. Naginbhai Dhulubhai Patel and Ors. has said at page 840 (page 5) as follows:
The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. However, unfortunately, the High Court has not appreciated the intrinsic merits of the evidence of these witnesses from this point of view and has relied only on a discrepancy here and there or on omissions in the statements made in court and those made before the police while rejecting the evidence of the said witnesses in to-to.
In the case of Anvaruddin and Ors. v. Shakoor and Ors. 1990 CrLJ 1269 (Supra), it has been observed at page 1273 (para 8):
It is well settled law that evidence of witnesses to occurrence cannot, be thrown over board merely because they are interested and partisan. All that law demands is that their evidence should be scrutinised with case and caution to safeguard against the normal temptation to falsely implicate others.
In the case of Brathi alias Sukhdeo Singh v. State of Punjab , it has been observed by the Supreme Court at page 321 (Para 1).
There is no doubt that when a Criminal court has to appreciate evidence given by witnesses who are closely related to the deceased, it has to be careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is interested would invariably lead a failure of justice.
Here, the evidence of the father and sister of the deceased could not be brushed aside simply because they are related to the deceased, That evidence had to be scrutinised with care and caution and same having been done and found to be reliable, trustworthy and having ring of truth, corroborated by the medical evidence and also their being immediate fardbeyan within 15 minutes of the occurrence and that too recorded by the police officer against whom complaint had been made by the informant. In the scrutiny, nothing has been found to show that the evidence is suffering from any infirmity or any contradiction on account of which, the evidence should not be relied on.
22. In this case, P.Ws. 3 and 4 are the two Investigating Officers. P.W. 3 says that he had reached the spot on hearing the sound of gun shot from the police station and recorded the fardbyan. He recorded the statement of the witnesses, for which the informant is said to have complained to the higher authorities that he had not correctly recorded the statements and so, the investigation was taken up from him by P.W. 4 on a telephonic instructions of the Superintendent of Police P.W. 3 had recorded the fardbyan which mentioned the names of the appellants and their role and then he had recorded the statements of P.Ws. 1 and 2. He had conducted the investigation in the night and sent the deadbody for postmortem examination after preparing the inquest report. P.W. 1 has given out the names of the appellants in his statement. But it is difficult to believe that P.W. 1, the girl who was dragged and thereafter on protest by his brother Dhiraj, she had been the firing by both the appellants, would have missed to give the names of the appellants in her statement. It is settled law as has been recently observed by Supreme Court in Beldeo Singh v. State of Punjab :
Needless to stress that the statement recorded under Section 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) and that the first information report is not a substantial piece of evidence.
In the Court P.W. 2 is categorical in saying that the names of the appellants were given out by her which appears to be a correct statement by her in the circumstances of the case. If there would have been no complaint about the defective investigation or non- recording of the Statement, then the statement of P.W. 3 would have been of relevance. When P.W. 4 took over investigation and recorded her statement wherein she gave out the names of the appellants as she had out given in the court and so Omissions of the names in the statement of P.W. 2 under Section 161, Cr. PC before P.W. 3 in the statement whose investigation itself appears to be defective, will not have any effect. Moreover, he did not taken steps for the arrest of the appellants when the names had been given out to him within. 15 minutes of the occurrence, so such a defective investigation by P.W. 3 will not given any benefit to the appellants when the evidence of the witnesses in the court is corroborated by others circumstances and on scrutiny has been found to be reliable and trustworthy. In the case of Chandrakanta Luxman v. State of Maharashtra , it was observed at page 222 (para 10):
But if on a proper evaluation of the various facts and circumstances it transpires that the apparent inconsistencies in the case of prosecution are solely the result of remissness on the part of the Investigating Officer and not of any improvement or prevarication on the part of the prosecution witnesses, there would be no justification for discarding the accusation.
Against in the case of Ashok Kumar v. The State of Rajasthan AIR 1990 SC 2138 at page 2138 (para 9). the Supreme Court observed as follows:
Argument as a matter of law that defective investigation should go to discredit prosecution cannot be disputed but on facts it is not available. The High Court was aware of it and, in our opinion rightly, did not discard prosecution evidence due to remissness of investigating officer on ratio laid down by this Court in Chandra Kama v. State of Maharashtra . We are further of the opinion that the finding of the High Court that the investigating officer due to remissness failed to preserve the site is correct but it does not in any manner weaken the prosecution case. Nor any adverse inference could be drawn due to non-production of nurse or compounder when the investigating report was written on dictation of Dr. Themani.
Thus, the appellants are not entitled to any benefit on account of laches remissness or partial attitude of the Investigating Officer who was not competent to investigate and from whom investigation and from whom investigation-was taken away by P.W. 4 on the telephonic order of the Superintendent of Police and against whom, there was complaint before the said officer and the DIG.
23. As regards the contention that the medical report shows one firing whereas two shots are said to have been fired by the appellants as the appellant Fantus's first fire had not hit the victim, so Fantus is entitled to acquittal. As to this contention, according to the Fradbeyan, two shots had been fired by each of the appellants P.Ws. 1 and 2 are clear in saying that the first fire had not hit and the bullet passed out through the window and the next fire by Munna hit in the head of the victim which is borne out by the medical evidence It is also established by the cogent and reliable evidence that both brothers appellants fired one after the other out of thorn one missed and went out and the other hit and proved fatal. So the participation and overt act of them is well made out. After the offence, both ran out together. For convicting an accused under Section 34, IPC, prior consent or pre-arranged plan has to be established. Through direct evidence of such intention is difficult to get, but such intention can be gathered and inferred from the circumstances including the acts of the parties and the common intention. These are question of facts for which the facts and circumstances are essential to be considered. If on a objective consideration of the facts and circumstances, it is established that the criminal act has been committed by the person in furtherance of the common intention, then the liability of the criminal act has to be imposed upon the said person, as if it is he alone who had done the act. If a person comes with others being armed with weapons, taking part in- assault by shooting or by use of any other weapon with him, and after achieving the target and goal of offence, all go out together and remain in the company till the final retreat or even thereafter they are found together or even arrested, then these stages of conduct previous, during and after the offence, may be the relevant for inference of shearing common intention. The common contention may develop at the spot during the course of the commission of an offence at the spur of the normal with reference to the facts and situations. It is a joint criminal liability in which sharing the common intention and participation in the offence the essential ingredients. The nature of intention can also be gathered from the circumstances, like the weapon used, the part of body hit or sought to be hit the circumstances in which death took place, besides the circumstances of the accused meeting of mind, or other occurrence taking place at the spot there and the participation till the final. A person, sharing the common intention, may not assault, but may also facilitate the commission of an offence under plan, by blocking the way and so those who stand and wait, also serve. In the case of Pandurang and Ors. v. State of Hyderabad , the Supreme Court said in paras 32 33, 34 and 35 as follows:
32. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all Mahbub Shah v. Emperor AIR 1945 PC 118 at pp. 120 and 121(B) Accordingly there must have been a prior meeting of minds. Several person can simultaneous by attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case AIR 1925 PC 1 at p. 5 and 6(A) and AIR 1945 PC 118(B). As their Lordships say in the later case, the partition which divides their bounds is often very thin nevertheless the distinction is real and substantial, and if over looked will result in miscarriage of justice.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their wores or their acts indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is then the necessary meeting of the formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other e.g., the. intention to rescue another and if necessary to kill those who oppose.
34. It is true prior concert and arrangement can, and indeed often must be determined from subsequent conduct as, for example by a systematic plan of compaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But to quote the Privy Council again--
the inference of common intention should never be reached unless it is necessary inference deducible from the circumstances of the case.
But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case At nottom, it is a question of fact in every case and however similar the circumstances, facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or as we prefer to put it in the time honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis (Sarkar's Evidence, 8th Edition page 30).
35. The learned Counsel for the state relied on - 'Mamand V. Emperor AIR 1946 PC 5(C), because in that case the accused all ran away and their Lordships took that into consideration to establish a common intention. But there was much more than that. There was evidence of enmity on the part of the accused who only joined in the attack but had no hand in the killing., and none on the part of the two who did the actual murder. There was evidence that all three lived together and that one was a younger brother and the other a tenant of the appellant in question. There was evidence that they all ran away together, not simply that they ran away at the same moment of time when discovered, but that they ran away together.
In the case of Rishideo Pamdey v. State of War Pradesh , Supreme Court has observed as follows:
The meaning, scope and effect of Section 34 have been explained on more than one occasion by the Privy Council and by this Court. It will suffice only to refer to the last decision of this Court in the case of Pandurang v. The State of Hyderabad (A) pronounced on 3-12-1954. It is now well settled that the common intention referred to in Section 34 pre-supposes a prior concert a pre-arranged plan, i.e. a prior meeting of minds. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is hot necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from the surrounding circumstance and the conduct of the parties.
Again in the case of Nanak Chand v. State of Panjab , it has been held "the principle element in Section 34 IPC is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation Section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone".
In Krishna Govind Patil v. State of Maharashtra AIR 1963 SC 143 at page 1415 (para 6), it has been observed as follows:
It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302, read with Section 4, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence.
In the case of Gurudatta Mai and Ors. v. The State of Uttar Pradesh , it has been given out "It is well-settled that Section 34 of the Indian Penal Code does not create a distinct offence it only lays down the principle of joint criminal liability. The necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by all accused in doing act or acts in furtherance of that common intention if these two ingredients are established, all the accused would be liable for the said offence, that is to say, if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guitly of murder".
In the case of Anda v. State of Rajasthan AIR 1966 SC 48, it has been said that common intention is the question of facts which has to be determined on the facts of each case. Again in the case of Jagir Singh and Anr. v. The State of Punjab , it has been held as follows:
6. Section 34 is intended to meet a case where members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. The principle which the section embodies is that participation in some action with the intention of committing a crime, once such participation is established, Section 34 is at once attracted.
8. Accused 1 and 5 shared the common intention with the four other culprits whose identity has not been established. Though it is not known which particular person or persons gave the fatal blow it is clear that the murder was committed by six culprits including accused I and 5 in furtherance of the common intention of all and each of them is liable for the murder as though it had been committed by him alone Further, In the case of Parichhat and Ors. v. The State of Madhya Pradesh , the Supreme Court has said as follows:
20. Common intention within the meaning of Section 34 of the Indian Penal Code implies pre-arranged plan. There being no evidence of a prior meeting of minds and any pre-arranged plan or of participation of Sunnu and Sitaram in the fight they could not be convicted with the aid of Section 34 of the Indian Penal Code.
No such pre-arranged plan has been proved. It has also not been proved that any criminal act has been done in concert pursuant to the pre-arranged plan. Several persons can simultaneously attack a man and each have the same intention, namely the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by Section 34 of the Indian Penal Code because there was no prior meeting of minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of any of the others, and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of murder'.
22. Section 34 of the Indian Penal Code will not be attracted unless first it is established that a criminal act was done by several persons, second, that there was a common intention and a pre-arranged plan to commit an offence and third that there was participation in the commission of the offence in furtherance of that common intention.
In the State of U.P. v. Iftekhar Ali Khan and Ors. , the Supreme Court held as follows:
It is true that for invoking Section 34 against the accused, prior consent or pre-arrangement has to be established. But it as it is difficult to prove the intention of an individual, it has to be inferred from his act, or conduct and other relevant circumstances.
...The Section will be attracted if it is established that the criminal act has been done by any of the accused persons in furtherance of the common intention if this is shown and in this case we are satisfied that it has been so shown, the liability for the crime may be imposed on anyone of the persons in the same manner as if the act were done by him alone. Their accompanying respondents 1 and 2 were armed with pistols, in the background spoken by P.Ws. 1 and 2, they themselves being armed with lathis and all the four coming together in an body and running away together in a body after the shooting was over, complied with no explanation being given to their presence at the scence, lead to the necessary inference of a prior consent and pre-arrangement and that the criminal act was done by respondents 1 and 2 in furtherance of common intention of all. Therefore, the respondents No. 2 and 4 will be held liable for the crime in the same manner as if the act were done by anyone of them alone. In view of the circumstances mentioned above, in our opinion, respondents 3 and 4 have to be held guilty under Section 303 read with Section 34.
In the case of Tehal Singh and Ors. v. State of Punjab , it was observed as follows:
The three accused persons came together. One of them was armed with a gun, the other two were armed with iron rods. One of them challenged the deceased. The person who was armed with the gun opened fire and after the deceased fell down the other two accused were not content but went forward to inflict injuries on the deceased person with the iron rods in their hands. Thereafter all of them went away together. The irresistible inference from these circumstances is that the three of them were actuated by the common intention to cause the death of the deceased. Merely because the injuries inflicted by Darshan Singh and Gunnel Singh were not serious injuries, it cannot be said that they were not actuated by the common intention to cause the death of the deceased. In order to attract the applicability of Section 34, read with Section 302, it is not necessary that each and every .one of the accused persons must have inflicted a serious injury.
Further in the case of Maqsoodan and Ors. v. State of U.P. and State of U.P. v. Maqsoodan etc. Supreme Court has observed at p. 129 (para 10) as follows:
...common intention is a question of fact. It is subjective. But it can be inferred from facts and circumstances In this case the appellants were related. All of them were armed with deadly weapons. They were together. There was an order by some one kill, when all of them simultaneously attacked the deceased and P Ws 1 2 3 and C.W. 1 After the occurrence, they left together they were later arrested from the same place. The High Court therefore rightly held that the appellants epsed the usuries with the common intention, and was justified in convicting the appellants under Section 302/34 of the Penal Code. We, therefore, affirm the conviction and sentences inflicted by the High Court.
In the case of Aher Pitha Vajshiand Ors. v. State of Gujarat AIR 19 3 SQ 599 at p. 602 (para 6), it has been observed as follows:
Of course no prosecution witness could have witnesses what transpired inside the Deli because the doors of the Deli were closed after Nabha Ram was dragged inside. Appellants were acting in concertand were associated with each other initially dragging Nabha inside the Deli as also in throwing out Nabha on the road infront of their Deli after he was assaulted inside the Deli. The circumstances which has been established by satisfactory evidence coupled with the circumstance that as may as 20 injuries of the nature described earlier were inflicted on the deceased, leaves no room for doubt that all the appellants had shared the common intention to cause the death of Nabha Ram.
In the case of Lok Pal Singh v. State of M.P. and State of M.P. v. Carli Raja and Ors. , it has been observed as follows:
There is clear evidence that the appellant Lak Pol Singh and Ors. were armed with guns and they participated in the murder of the deceased either by presence or by committing overt acts of shooting. The evidence of P.W. 5 further proves that Lok Pal Singh took a leading part in entering the house and aided and assisted the others in murdering the six persons in the house. The High Court has upheld the finding of the Sessions Court in respect of Lok Pal Singh. We do not find any reason to interfere with the conviction of the appellant, Lok Pal Singh.
In the case of Gupteshwar Nath Ojha and Anr. v. State of Bihar AIR 1986 SC 1949 at pp. 1651 and 1652, (paras 9 and 10) it has been observed as follows:
...It is clear that so far as those who participated in the incident it could not be doubted that they shared the common intention' to beat the deceased and other prosecution witnesses and in this view of the matter so far as Gupteshwar Nath Ojha is concerned whose participation in the incident is clearly found by the High Court and also by the sessions Court his conviction under Section 304, read with Section 34, IPC can be justified.
10. In absence of any overt act or even a short or an oral statement, he could not be convicted even with the aid of Section 34.
In the case of Hare Krishna Singh and Ors. v. State of Bihar , it has been held as follows:
Common intention under Section 34, IPC is not by itself can offence. But, it creates a joint and constructive liabily for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhyaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh and Dhobaha.
In the case of Brathi alias Sukhdeo Singh v. State of Punjab , (supra) at p. 325 (para 15) it has been observed as follows:
Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where as criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 3 is the existence of common intention. If the common intention in question animals the accused persons and if the said common intention lead's to the commission of the criminal offence charged of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.
In the case of Budhwa alias Ram Char an and Ors. v. State of M.P. it was said:
It is also clear from the manner in which the incident happened that the assailants acted in prosecution of the common object to cause the death of the victim.
Again in the case of Tumu v. State of Orissa 1988 Cri LJ 524 at p. 42 (para 13) a learned Single Judge has observed as follows:
Common intention is to be gathered from the acts and conduct of the accused persons preceding, attending and succeeding the occurrence. No doubt, the petitioner, who had stood on the road and blocked it had not participated in the actual assault, but his conduct in blocking the road and forcing P.W. 14 to stop the car and thereby facilitating the other two persons to attack P.W. 14 would undoubtedly show that he had shared the common intention with the other two petitioners to attack and assault P.W. 14. It is not necessary that to attract, Section 34 of the Code, every person must have assaulted and cause hurt. As has been so well said in the well known case of Baren dm Kumar v. Emperor AIR 1925 PC 1 : 26 Cr LJ 431, while discussing the scope of Section 34 of the Code, they also serve who only stand and wait.
24. In the present case, definite allegation of the prosecution it that both the appellants entered, Fantus dragged Kiran Kumari by hand which was resisted by her brother and then Fantus fired which did not hit and so Muntia fired hitting the victim. Both entered the house and participated in the shooting one after the other and after committing the acts they went out and so, the common intention of the appellants has been established by events before and after the assault and also the nature of the injuries sustained by the deceased la these circumstances both the appellants have been rightly convicted under Sections 302/34 of the Penal Code. Thus, on considering the entire material on record and the contentions raised by the learned Counsel for the appellants it appears that the order of the conviction recorded by the trial Court, is well made out.
25. In the result, this appeal has got no force and is dismissed. The order of conviction and sentence passed against the appellants is hereby con firmed. As they are bail, their bail bonds are hereby cancelled and accordingly, they are directed to be taken into custody to serve out their sentences in accordance with law.
S.K. Singh, J.
26. I agree.