Holding

The extra‑judicial confession made in the appellant's presence, together with corroborative circumstantial evidence, establishes his participation and common intention, justifying conviction under Section 34 IPC.

Summary

The case concerns the murder of Asha, who was found strangled and allegedly raped in a maize field. The prosecution relied on eyewitness testimony, medical evidence of rape and strangulation, and an extra‑judicial confession made by co‑accused Babu to a witness in the presence of the appellant Akhlaq. The trial court and the High Court convicted Akhlaq under Section 302 read with Section 34 of the IPC, holding that he shared a common intention with the other accused. Akhlaq appealed, arguing that the extra‑judicial confession was not admissible evidence and that there was no direct proof of his participation. The Supreme Court held that the confession, made in Akhlaq's presence, falls within Explanation 2 to Section 8 of the Evidence Act and, together with corroborative circumstantial evidence, establishes his participation and common intention. Consequently, the Court dismissed the appeal and upheld the conviction.

Issues considered

Whether an extra‑judicial confession of a co‑accused made in the presence of the accused is admissible under Section 8 of the Evidence Act and can be used to infer participation under Section 34 of the IPC.
Whether the circumstantial evidence and eyewitness testimony sufficiently establish a common intention and participation of the appellant in the murder.
Whether conviction under Section 34 IPC is proper when no overt act is directly attributed to the individual accused.

Legislation cited

Indian Evidence Act, 1872s. 8
Indian Penal Code, 1860s. 302, s. 34, s. 376

Subjects

murdercircumstantial evidenceextra‑judicial confessionSection 34 IPCcommon intentionEvidence Act Section 8rapestrangulation

Judgment

).

AKHLAQ A
v.
STATE OF U.P.

MARCH 19, 2007

[S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] B

..
..;

Penal Code, 1860-Sections 34-Evidence Act, 1872-Section 8-
Death by strangulation-Common intention-Proof by circumstantial
evidence-During trial, prosecution witnesses stating that they saw all accusedc
following deceased to place of occurrence-Extra judicial confession of
accused no. 4 (A-4) to a prosecution witness in presence of accused no. I
(A-1) stated that he along with other accused saw A-1 having sexual
intercourse with deceased; when she refused their demands, two of them
forcibly had sexual intercourse with her; when she threatened to expose their
misdeeds, he [A-4] took her dhoti, tied it around her neck, .while others, D
including A-1, caught hold of her, and she died of strangulation-Trial Court
found that A-I had sexual intercourse with consent of deceased and was not
gutfty under Section 376 /PC, but as he had not objected when extra judicial
confession implicating him in his presence was made by A-4, invoking Section
34 /PC and Section 8 of Act of 1872, he was held guilty, along with the other . E
accused, under Section 302-High Court confirming conviction of A-1-
Correctness of-Held-Evidence indicated presence of A-I at the place of
occurrence-Each and every statement made in extra judicial confession of
A-4 corroborated other prosecution witnesses-Moreover, A-1 had remained
silent when confession was made by A-4 in his presence to a prosecution
F
witness-Conviction of A-1 by Courts below upheld.

Evidence Act, 1872-Section 8-Explanation 2-Illustration (/) and
(g)-Statement made in presence ofaccused, which he might have contracted,
if untrue-Admissibility-Held-It is evidence against accused as ground
work of his conduct. G
.
- Penal Code, 1860-Sections 34-Common intention-Proof of-Held-
~
It is not possible to have its direct evidence in every matter-It has to be
inferred in appropriate cases from facts and circumstances of each case-
Common intention proved but no overt act attributed to individual accused-
H
71
'
/J._

72 SUPREME COURT REPORTS (2007] 4 S.C.R.

A Held-Section 34 will be attracted as it involves vicarious liabihty J...:

Prosecution case is that a complaint was lodged by P.W.l stating that
when he returned from his duty to his home in village and enquired about the
whereabouts of his daughter, he was informed that she had gone to answer
nature's call. However, when she did not return for considerable time, he
B t-;
became suspicious and proceeded to search her. When he reached the maize
field of K, he found her dead body with her dhoti tied around her neck and her
clothes blood stained. He further found that her golden ear-rings wer1: missing
from her body. On his complaint, F.I.R. was prepared and case re1gistered.
According to doctor who conducted the post mortem, PW.14, the death was
c caused by strangulation. He also found a whitish substance near vulva of the
deceased, and had it examined by a pathologist. In his opinion, deceased was
possibly raped and cause of death was asphyxia owing to strangulation.

After completing the investigation, the Investigating Officer submitted
a charge-sheet against accused, including the appellant, (A-1). All of them
D denied the charges and pleaded not guilty. In the evidence before Trial Court,
PW.4 stated that he was returning from Jiis field when he saw deceased going
towards a pond, followed by appellant and the other accused. PW.11 also deposed
similarly. PW.6 deposed that on the fateful day after the occurrence, accused
no.4 (A-4), told him in presence of appellant, that about three month~ prior to
E the incident deceased had abused him; deceased and appellant h:ad illicit
relationship; on the fateful day, accused no. 2 (A-2) had gone to house of A-4
to borrow some money from him, wherein accused no. 3 (A-3) was also present;
they saw deceased going towards the field of 'K' followed by appellant, and
after following them, saw them having sexual intercourse; when they also
demanded sexual intercourse, deceased refused, whereafter, A-4 and A-2
F
forcibly had sexual intercourse with deceased; as she threatened to expose
the misdeeds of A-4 and A-2, A-4 took her dhoti, tied it around her neck, :..
while appellant A-2 appellant A-3 caught hold of her; she was strangulated
and she died; A-2 removed her ear-rings. This was the extra judicial
. confession of A-4 to PW.6 in the presence of appellant. On the above f!Vidence,
G and that of PW-14, the trial court held that appellant had illicit relationship
with deceased, his sexual intercourse with her was by her consent, and he
was not guilty under Section 376 IPC. However, it was found that hi~ did not -
object when A-4 made extra judicial confession implicating him, and he was
held guilty under Section 302 read w_ith Section 34 IPe Other accmied were •
H held guilty under Sections 302 and 376 IPC. The High Court confir·med the
AKHLAQv. STATEOFU.P. 73
convictions referred to above. Hence the present appeal. However, the appeal A
is preferred only by appellant and not by other two co-accused.

Appellant contended that there was no evidence except extra judicial
confession of co-accused A-4 to PW.6 to show that he had followed deceased
into the field of' K'; extra judicial confession is no evidence--it is corroborative
in nature; merely because he followed the deceased into the field, he could B
not be implicated for her murder; there was no evidence of his attacking the
deceased or causing any injury to her.

Dismissing the appeal, the Court

HELD 1.1. To apply Section 34 IPC, two factors must be established C
(i) common intention and (ii) participation of the accused in the commission
of an offence. If common intention is proved but if no overt act is attributed to
the individual accused, Section 34 will be attracted as it involves vicarious
liability. It is not possible to have direct evidence of common intention in every
matter. It has to be inferred in appropriate cases from the facts and D
circumstances of each case. (Para 10) (81-D-E)

Jai Bhagwan and Ors. v. State of Haryana, AIR (1999) SC 1083,
referred to

1.2. Appellant has been convicted with the aid of Section 34 IPC. This E
case concerns circumstantial evidence. [Para 9) (80-FJ

1.3. Evidence of PW.11 and PW.4, apart from extra judicial confession,
indicates presence of appellant in the field of Kanchi. Appellant was seen
following Asha. In turn, the other co-accused followed appellant. The
circumstance of Asha being followed by appellant and appellant being followed F
by the co-accused into the field, is corroborated by the contents of the extra
judicial confession made by the Babu (A-4) to Mahesh Chandra (PW.6) in
presence of appellant. [Para 10] [80-G; 81-FJ

2.1. The extra judicial confession was made in the presence of appellant. G
The conduct of appellant comes within Explanation 2 to Section 8 of the
Evidence Act. Under that Explanation, statements made in the presence of
J appellant are admissible as the ground work of his conduct. It is a general
rule that statements made in the presence of the accu~ed, which he might
' have contracted, if untrue, are evidence against him. This is illustrated by
Illustration (f) and (g) to Section 8 of the Evidence Act. (Para 12) (82-CJ H
74 SUPREME COURT REPORTS ['.W07] 4 S.C.R.
-<-,
A 2.2. The extra judicial confession made by the co-accused Babu clearly
indicates that Asha was followed by appellant who in turn was followed by the
other co-accused. The said extra judicial confession indicates the entry of all
accused including appellant into the field of Kanchi. They were seen by Jairam
-'
Singh (PW.11). The evidence of PW.11 stood corroborated by the evidence of
PW.4 to that extent. The extra judicial confession shows that Asha was raped
B forcibly and then strangulated. The injuries on the different parts of her body
indicates that she was raped forcibly. This is clear from the tt:stimony of Dr.
Surendra Pal Singh (PW.14). The location of the body in the scattered field
also shows that she was forcibly raped. The strangulation by Dhoti is also
one more circumstance showing how she was murdered. Therefore, each and
c every statement made in the extra judicial confession corroborates the
evidence of PW.I, PW.11, PW.4 and PW.14. Moreover, appellant remained
silent when confession was made by co-accused Babu to Mahesh Chandra
(PW.6). In the said confession, Babu implicated himself. This conduct of
appellant has been noticed by the trial court. The trial court has correctly
D invoked Section 8 of the Evidence Act while evaluating the extra judicial
confession. (Para 12) (82-E-F-G]
\-
Haroom Haji Abdulla v. State ofMaharashtra AIR (1968) SC 832, relied
on.

E Sivarajan v. State, (1959) KLT 167, approved

CRIMINAL APPELLATE JURISDICTION : Cirminal Appeal No. 372 of
2007.

From the Judgment and Order dated 14.07.2006 of the High Court of
F Judicature at Allahabad in Crl. A.No. 1783 of 1981.

P.S. Mishra, Ajai Bhalla, Abhinav Jain, Shefali Jain and Abba R. Sharma
for the Appellant.

Siddhartha Dave, Javed Mahmud Rao, Shahid Ali Rao and Musharraf
G Chawdhary for the Respondent

The Judgment of the Court was delivered by

KAPADIA, J. 1. Leave granted.
.,.....
H 2. This criminal appeal is directed against the impugned judgment and
J
AKHLAQv. STATEOFU.P. [KAPADIA,J.] 75
)

order dated 14.7.06 passed by the High Court of Judicature at Allahabad in A
Criminal Appeal No.1783 of 1981 against the judgment and order dated I 0.8.81
passed by the Additional Sessions Judge, Bulandshahr in Sessions Trial
No.143 of 1980 convicting Akhlaq (accused no. I-appellant herein) under
Section 302 read with Section 34 Indian Penal Code ('IPC' for short). Appellant
has been sentenced to undergo rigorous imprisonment for life.
B
3. In short, the prosecution case was as under. A written report (Exhibit
Ka.I) was submitted at the Polic Station Kotwali. This was on 31.7.79 at 6.10
pm. The written report was submitted by the complainant, Samay Singh
(PW. I). In the report it was stated that when the complainant returned home
in village Tatarpur from his duty, he enquired from his younger daughter c
about the whereabouts of his elder daughter Asha (since deceased). The
complainant was informed that Asha had gone to answer nature's call. The
complainant also enquired from his wife, Brahma Devi (PW.2), about Asha.
He was told by his wife that Asha had gone to answer nature's call. However,
Asha did not return for considerable time. The complainant became suspicious.
He proceeded to search out his daughter Asha at 5 pm. When the complainant D
reached the maize field of Kanchi he saw a chappal belonging to Asha lying
near the boundary of the field. The complainant entered into the field. He
found the dead body of his daughter Asha inside the field. A Dhoti was tied
around her neck and another chappal was found lying near the dead body
of Asha. Her clothes were blood stained. The complainant further found that E
the golden ear-rings of Asha were missing from her body. Asha was around
20 years old. On the basis of Ex. Ka.I the Head Constable prepared the F.l.R.
The case was registered. The entry was made in G.D. report. The 1.0. recorded
the statement of the complainant at the police station. He then proceeded to
the site of occurrence. On reaching the field of Kanchi the 1.0. found the dead
body of Asha lying in the field with a Dhoti tied around her neck. The 1.0.
F
prepared the inquest report (Ex. Ka.5). He prepared the naqsha (Ex.Ka. 7). The
1.0., after completing the formalities, handed over the dead body of Asha to
constables Bhojvir Singh and Rajvir Singh for post mortem at the district
hospital, Bulandshahr. The possession of the chappal was also taken vide
Ex.Ka.9. The 1.0. inspected the spot on 1.8.79. He prepared the site plan. On G
21.8.79 on interrogation Jamil (accused no.2) confessed his guilt. He also
promised to get the golden ear-rings recovered from the shop of sarraf He
.J
took the I.O. to the shop of the sarraf The ear-rings were mortgaged with the

- sarraf The name of sarraf was Ram Kishan (PW. 9). After going through the
register Ram Kishan took the ear-rings. The ear-rings were taken into custody
H
i
--:l

76 SUPREME COURT REPORTS [2007] 4 S.C.R.
·"-
A vide Ex.Ka.4. They were sealed in the presence of Jai Prakash Sharma (PW. I 0).
The necessary formalities were thereafter completed. The ear-rings recovered
from the shop were identified on 28.9.79. On 1.8.79 the post mortem was
conducted. According to Dr. Surendra Pal Singh, Medical Superintendent
(PW .14 ), the death was caused by strangulation. The doctor found whitish
substance near vulva of the deceased. He prepared a slide and forwarded it
B to the pathologist. The doctor opined that Asha was possibly raped. After
completing due investigation, the 1.0. submitted the charge··sheet. The three ....
accused--Akhlaq (Accused- I), Jamil (Accused-2) and lmtiyaz (Accused-3)
denied the charges. They pleaded non-guilty. The prosecution examined 19
witnesses.
c
4. In the present case the complainant (PW. I) has proved that he was
the father of Asha. He was an employee in the Civil Hospil:al Bu!andhshahr.
His duty hours were between 8 a.m. and 3 pm. This witne:;s has established
that on the fateful day he returned from the Civil Hospital at 3.30 pm; he
enquired about Asha when he was told that Asha had gone to answer
D nature's call around 1.30 pm. This led PW. 1 to search out ·the deceased. The
evidence of PW. I has established that around 5 pm he re;1ched the field of
Kanchi, he entered the field and found the. dead body of Asha with the \'

golden ear-rings missing and her chappal lying near her body. He also
identified the ear-rings later on. The evidence of PW. I is corroborated by his
E wife Brahma Devi (PW.2). Bal Kishan (PW.4) stated that he was from the same
village that he was in his field on the fateful day. At 1.30 pm he was returning
from his field when he saw Asha going towards a pond (pokhar). He saw
Asha being followed by Akhlaq (appellant herein). PW.4 further deposed that
in fact Akhlaq (A-1) greeted PW.4. According to PW.4, Asha was followed
by Akhlaq (A-1) and Akhlaq was in tum followed by Babu (Accused-4), Jamil
F (A-2) and lmtiyaz (A-3). At 5.30 pm, Bal Kishan (PW.4) was told about the
+
demise of Asha. Mahesh Chandra (PW.6) deposed that on the fateful day at
8.30 pm when he was near a chabutra he saw Babu and Akhlaq. Babu was
also an accused (since deceased). Mahesh Chandra was a friend of Babu. By
8.30 pm the entire village had known that the body of Asha was found in the
G field of Kanchi. PW.6 was told by Babu in presence of Akhlaq (appellant
herein) that about three months prior to the incident Asha had abused him.
Babu stated that Asha and Akhlaq had illicit relationship. Babu told PW.6,
in presence of Akhlaq, that on the date when Asha was murdered Jamil (A- ~

-
2) had gone to borrow some money from Babu (A-4). lmtiyaz (A-3) was
present at the house of Babu at that time. Babu, lmtiyaz and Jamil saw Asha
H
AKHLAQv. STATEOFU.P. [KAPADIA,J.] 77
)
going towards the field of Kanchi followed by Akhlaq. They followed Akhlaq. A
Akhlaq and Asha entered into the maize field. Babu, Imtiyaz and Jamil followed
Akhlaq. They saw Akhlaq having sexual intercourse with Asha. Babu, Jamil
and Imtiayaz demanded sexual intercourse which Asha refused. Thereafter,
Babu and Jamil forcibly had sexual intercourse with Asha. Asha threatened
to expose the misdeeds of Babu and Jamil. Babu, therefore, took the Dhoti B
of Asha tied it around her neck. The three accused-Jamil, lmtiyaz and
Akhlaq caught hold of Asha. She was strangulated. She died. Jamil removed
the ear-rings. Akhlaq was present. This was the extra judicial confession made
by Babu (A-4), one of the accused, to Mahesh Chandra (PW.6) in the presence
of Akhlaq (appellant herein). This extra judicial confession is the subject-
matter of controversy. C
5. Jairam Singh. (PW .11) deposed that on the fateful day he saw Asha
going towards the field of Kanchi. She was followed by Akhlaq (appellant
herein). The distance between the two was about 25 steps. He further deposed
that Akhlaq was in tum followed by lmtiyaz (A-3), Jamil (A-2) and Babu (A-
4). Dr. Surendra Pal Singh (PW.14), Medical Superintendent at the Civil Hospital D
Bulandshahr has deposed that he did a post mortem on 1.8.79. There were
18 injuries on the body of Asha. These injuries consisted of abrasions and
contusions on the chin, lips, cheek, nose, forehead, elbows, chest and neck.
He also found a whitish substance in the form of discharge on the vagina.
He also found blood on the thighs. He prepared a slide and forwarded it to E
Dr. P.C. Agarwal, Pathologist. According to PW.14 the cause of death of Asha
was asphyxia owing to strangulation. Injury nos.12 and 13 on the body of
Asha was on account of strangulation by Dhoti.

6. On the above evidence, the trial court observed that the present case
was based on circumstantial evidence. It was also based on extra judicial F
confession made by Babu (A-4), one of the accused, in presence of Akhlaq
(appellant herein). The trial court observed that in the present case the
recovery of the ear-rings at the instance of Jamil (A-2) from the shop of Ram
Kishan (PW.9) were put for test identification parade when they were correctly
identified by the witnesses. On the evidence of doctor (PW.14), the trial court
held that Asha was raped and strangulated. On the basis of the following G
circumstances which was duly proved, the trial court found Akhlaq (appellant
herein) guilty of offence punishable under Section 302 read with Section 34
IPC. In this connection, trial court relied upon the statement of PW. I and
PW.2 that Asha had gone to answer nature's call at 1.30 pm. In this connection,
the trial court also relied upon the evidence of PW.4, Bal Kishan who, as H
78 SUPREME COURT REPORTS [2007] 4 S.C.R.

A stated above, deposed that he had seen Asha going towards pokhar (pond).
Therefore, the trial court came to the conclusion that Asha was last seen at
1.30 pm when she had gone to answer nature's call in the field of Kanchi. This
was the first circumstance which took proved before the trial court. The
second circumstance proved before the trial court was that Asha was followed
by Akhlaq (appellant herein) who in tum was followed by Babu (A-4), Jafl!il
B (A-2) and Imtiyaz (A-3). The trial court relied upon the evidence of PW. I I in
this connection. Both PW. I I and PW.4 had deposed that they had seen the
accused going towards the field of Kanchi. It.was contended before the trial
court that the evidence of PW.I I was not reliable since he had denied of
having gone to the police station. In this connection, the trial court observed
C that PW.13 had proved the G.D. entry about the registration of the case in
which it is mentioned that PW. I I had come to the police station and, therefore,
the trial court saw no reason to discard the evidence of PW. I I. The next ·
circumstance on which the trial court placed reliance was the finding of the
dead body of Asha in the field ofKanchi. Moreover, the trial court also relied
on the recovery of the golden ear-rings at the instance of Jamil (A-2). On the
D evidence of extra judicial confession, the trial court held the evidence of
Mahesh Chandra (PW.6) was fully reliable as far as Akhlaq (appellant herein)
is concerned. According to the trial court, Babu (A-4) had confessed of
having committed the offence. He implicated Akhlaq. According to the trial
court, the extra judicial confession was made by Babu (A-4) in the presence
E of Akhlaq (A-I) and which extra judicial confession indicated that Babu had
confessed his guilt, he had given a detailed narration of the facts as to how
he reached into the field of Kanchi, as to how he followed Akhlaq and Asha
and he also referred to illicit relationship between Akhlaq and Asha. In the
said confession, on which reliance has been placed by the trial court, Babu
has stated in the presence of Akhlaq that initially Akhlaq had sexual intercourse
F with Asha which was seen by Babu, Jamil and Imtiyaz who /showed their
intention to have sexual intercourse with Asha which Asha refused and then
thereafter Jamil and Babu had intercourse with Asha against her consent.
When Asha threatened to expose them in the village, Babu tied her Dhoti
around her neck and others caught hold of her hands and feet. This was the
G confession m_ade by Babu (A-4) to Mahesh Chandra (PW.6) in the presence
of Akhlaq (appellant herein). The trial court found that PW.6, Mahesh Chandra,
was a close friend of Babu. One of the arguments advanced before the trial
court was that the evidence of the extra judicial confession cannot be said
to be reliable; that it was highly unnatural for Babu (A-4) to disclose the
above story in confidence to Mahesh Chandra (PW.6). The trial court found
H that there was no merit in this argument. According to the trial court, Babu
j-

AKHLAQv. STATE OF U.P. [KAPADIA,J.] 79
_.) was a good friend of Mahesh Chandra (PW.6); the confession was made after A
three days. It was immediately recorded on the next day, that is, on 4.8.79. The
trial court observed that although PW.6 was cross-examined at length all
suggestions made to PW.6 were denied. According to the trial court, the extra
judicial confession was made by Babu (A-4) in presence of Akhlaq (appellant
$
herein) and Akhlaq did not object. The trial court, further found that the extra
judicial confession made by accused Babu stood corroborated by the medical
report. The injuries noted by Dr. Surendra Pal Singh (PW.14) also corroborated
the statements contained in the extra judicial confession. The various injuries
on the lips, nose, cheek, forehead and elbows indicated that the sexual
intercourse was without the consent of Asha. The contents of the extra
judicial confession, therefore, stood corroborated. Similarly, the physical C
. evidence of the recovery of the dead body from the field of Kanchi, the
recovery of chappal of Asha (deceased) lying near her body and scattering
of the maize plants near her body-all corroborn.ted the extra judicial confession
made by Babu (A-4) to Mahesh Chandra (PW.6). In the circumstances, the
trial court came to the conclusion that Jamil (A-2), lmtiaz (A-3) and Babu (A-
4) had seen Akhlaq (appellant herein) following Asha into the field ofKanchi. D
They followed Akhlaq. They saw Akhlaq having sex with Asha in the field.
They expressed their desire to have sexual intercourse. Asha refused. Babu
and Jamil had sexual intercourse against her consent. Asha threatened to
expose them. In the circumstances, the accused committed murder of Asha,
as described above. In the circumstances, the trial court held that the E
prosecution had proved its case. The trial court held that the evidence of extra
judicial confession was reliable. The evidence of Dr. Surendra Pai Singh
(PW.14) corroborated the version of the prosecution to the effect that Asha
was strangulated after sexual intercourse. In the circumstances, the trial court
held that Jamil (A-2) and Babu (A-4) were guilty of offence under Section 376
· IPC; that Akhlaq had illicit relationship with Asha and he had sexual intercourse F ·
with her by her consent hence no offence under Section 376 IPC stood made
out against Akhlaq (appellant herein). However, the trial court held that Babu
(A-4) was guilty of offence punishable under Section 302 and 376 IPC; that
Jamil (A-2) was guilty of offences under Section 302 read with Section 34 and
also under Section 376 IPC; that Akhlaq (A-1 ), appellant herein, and lmtiyaz G ·
(A-3) were found guilty of offences punishable under Section 302 read with
Section 34 IPC.

7. At this stage, we may point that Babu (Accused-4) since died.
Akhlaq (Accused-I), Jamil (Accused-2) and Imtiyaz (Accused-3) carried the
matter in appeal to the High Court. By the impugned judgment the High Court H·
_\_
80 SUPREME COURT REPORTS [2007] 4 S.C.R.

A has confinned the conviction, referred to,above. Hence this criminal appeal.
However, the criminal appeal is preferred only by Akhlaq (A- I)., appellant
herein, and not by other two co-accused. .

8. At this stage, we may clarify that we are concerned in this criminal
appeal only with the case of Accused no. I (appellant). Shri P.S. Mishra,
B learned senior counsel appearing on behalf of appellant (A-1), submitted that
the judgments of the courts below were mainly based on the extra judicial
confession made by the co-accused Babu (since deceased) to Mahe:;h Chandra
(PW.6). He submitted that extra judicial confession is no evidence. It is
corroborative in nature. It was urged that there was no evidence except extra
C judicial confession to show that Akhlaq (appellant) had followed Asha into
the field of Kanchi. It was urged th.at except the extra judicial confession there
was no evidence to implicate the Akhlaq (appellant) in the murder of Asha.
It was further submitted that the judgment of this Court in Kashmira Singh
v. State ofMP., [I 952] SCR 526, has no application to the present case. It was
urged that in the present case there was no evidence against Akhlaq (appellailt).
D He urged that whatever evidence is on record is only against Babu (A-4) and
Jamil (A-2). Learned counsel urged that merely because Akhlaq (appellant)
followed Asha into the field of Kanchi, he cannot be implicated for murder
of Asha. Learned counsel also submitted that there was no f:vidence of
Akhlaq (appellant) attacking Asha or causing any injury to hr~r. Learned
E counsel urged that there was no evidence of Akhlaq (appellant) coming back
from the field of Kanchi. He submitted that the High Court has disbelieved
Kallo (PW.3) in that regard. In the circumstances, learned counsel submitted
that the conviction of Akhlaq (appellant) needs to be set aside.

9. We do not find any merit in the above contention. Akhlaq (appellant)
p stands convicted with the aid of Section 34. This case concerns cfrcumstantial
evidence. PW.I and PW.2 have proved beyond shadow of doubt that Asha
had gone to answer nature's call on the fateful day at 1.30 pm. On return from
duty her father went in search of his daughter, Asha. On the boundary of the
field of Kanchi he detected one of the chappals of Asha. Thereupon, he
entered the field of Kanchi. Inside the field he found the dead body of Asha.
G Near the dead body the other chappal was recovered. The second circumstance
which is relevant is that Akhlaq (appellant) was seen by Jairam Sir.gh (PW.I I).
Jairam Singh (PW. I I) saw Akhlaq (appellant) following Asha. He also saw
Babu (A-4), Jamil (A-2) and Imtiyaz (A-3) in tum following Akhlaq (appellant).
There is no reason to disbelieve PW. I I. Further the evidence of PW. I I is
H further corroborated by PW.4. Both these witnesses had seen Akhlaq
~'

AKHLAQ v. STATE OF U.P. [KAPADIA. J.] 81
_, (appellant) following Asha into the field of Kanchi. The third circumstance A
was the recovery of the dead· body of Asha in the field of Kanchi. The
position of the dead body indicated rape and strangulation. The fourth
important circumstance is the injuries noted by Dr. Surendra Pal Singh (PW.14).
The said injuries were present on the lips, cheek, nose, forehead and elbows
of Asha. These injuries show that Asha was assaulted and that she was
forcibly raped. Lastly, each of the above circumstances finds place in the
B
contents of the extra judicial confession made by Babu (A-4) to Mahesh
.... Chandra (PW.6) in the presence of Akhlaq (appellant) .

IO. As stated above Akhlaq (appellant) has been convicted with the aid
of Section 34 IPC. Section 34 gives statutory recognition to the principle that
if two or more persons intentionally do a thing jointly, it is just the same as
c
if each of them had done it individually. When a criminal act is committed by
several persons in furtherance of the common intention, each of such several
persons is liable. The crucial test as to applicability of constructive liability
is found in the phrase "in furtherance of the common intention of all". The
criminal act for which all the conspirators are sought to be made liable must D
be connected with the common intention; that criminal act must be while
executing or carrying out the common intention. To apply Section 34 IPC, two
factors must be established-{i) common intention and (ii) participation of the
accused in the commission of an offence. If common intention is proved but
if no overt act is attributed to. the individual accused, Section 34 will be
attracted as it involves vicarious liability. It is not possible to have direct
E
evidence of common intention in every matter. It has to be inferred in appropriate
cases from the facts and circumstances of each case [See: Jai Bhagwan and
Ors. v. State of Haryana, AIR (1999) SC I083]. In the present case, the
evidence of PW. I I and PW.4, apart from extra judicial confession, indicates
presence of Akhlaq (appellant) in the field of Kanchi. Akhlaq (appellant) was F
seen following Asha. In tum, the other co-accused followed Akhlaq (appellant).
The circumstance of Asha being followed by Akhlaq (appellant) and Akhlaq
(appellant) being followed by the co-accused into the field, is corroborated
by the contents of the extra judicial confession made by the Babu (A-4) to
Mahesh Chandra (PW.6) in presence of Akhlaq (appellant).
G
.- I I. In the case of Sivarajan v. State, (1959) KLT 167, it has been held
that under Explanation 2 to Section 8 of the Evidence Act if a man is accused
.., of a crime and he remains silent, his conduct is, coupled with the statement,
in the nature of an admission and, therefore, it will constitute evidence against
himself.
H
82 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 12. ln the case of Haroom Haji Abdulla v. State of Mahal'ashtra, AIR ,. __
(1968) SC 832, this Court held that a confession intended to be used against
a co-accused stands on a lower level than the evidence of accomplice because
the latter is tested by cross-examination whilst the former is not. The confession
of a co-accused is not an evidence but if there is other evidence on which
a conviction can be based, they can be referred to as lending assurance to
B the verdict. It was further held that although the confession may be taken into
consideration against a co-accused by virtue of Sect'ion 30 of the Evidence
Act its value is extremely weak and there could be no conviction without
corroborlrtion on material particulars. In the present case, the extra judicial
confession was made in the presence of Akhlaq (appellant). The conduct of
C Akhlaq (appellant) comes within Explanation 2 to Section 8 of the Evidence
Act_. Under that Explanation, statements made in the presence of Akhlaq
(appellant) are admissible as the ground work of his conduct. It is a general
rule that statements made in the presence of the accused, 'Which he might
have contracted, if untrue, are evidence against him. This is illustrated by
Illustration (f) and (g) to Section 8 of the Evidence Act. In the present case,
D the extra judicial confession made by the co-accused Babu clearly indicates
that Asha was followed by Akhlaq (appellant) who in tum was followed by
the other co-accused. The said extra judicial confession indicates the entry
of all accused including Akhlaq (appellant) into the field ofKanchi. They were
seen by Jairain Singh (PW.11). The evidence of PW.'I I stood corroborated by
E the evidence of PW.4 to that extent. T~e extra judicial confession shows that
Asha was raped forcibly and then strangulated. The injuries on the different
parts of her body indicates that she was raped forcibly. This is clear from the
testimony of Dr. Surendra Pal Singh (PW.14). The location of the body in the
scattered field also shows that she was forcibly raped. The strangulation by
Dhoti is also one more circumstance showing how she was murdered.
F Therefore, each and every statement made in the extra judicial confession
corroborates the evidence of PW. I, PW. I I, PW.4 and PW.14. Moreover, Akhlaq
(appellant) remained silent when confession was made hy co-accused Babu
to Mahesh Chandra (PW.6). In the said confession, Babu implicated himself.
This conduct of Akhlaq (appellant) has been noticed by the trial court. The
G trial court has correctly invoked Section 8 of the Evidence Act while evaluating
the extra judicial confession.

13. Before concluding we may point out that in the present case the
courts below have not relied only upon extra judicial confession as submitted
on behalf of the appellant. In the present case, the extra judicial confession
H. is made in the presence of Akhlaq (appellant). In the present case the
t
•
AKHLAQ v. STATE OF U.P. [KAPADIA . .I.] 83
confession is not behind Akhlaq (appellant). Therefore, the judgments cited A
on behalf of the appellant has no application to the facts of the present case.

14. For the above reasons, we do not find any merit in this criminal
appeal and the same is accordingly dismissed.

v.s. Appeal dismissed. B

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