ANIL SHARMA AND ORS.versusSTATE OF JHARKHAND

                        ANIL SHARMA AND ORS.                                   A
                                   v.
                         STATE OF JHARKHAND

                             APRIL 30, 2004

         [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                             B

      Penal Code, 1860:

      Section 34-Common intention-In furtherance of-Joint liability -
Held: Section 34 is only a rule of evidence and does not create a substantive C
offence-Existence ofcommon intention is an essential element for application
ofS. 34-S. 34 is applicable even if no injury had been caused by a particular
accused-For application ofS. 34 it is not necessary to show some overt act
on the part of the accused.

      Criminal Trial:                                                          D
      Witness-Fresh examination of-Held: It is not in every case where the
witness wanted to be freshly examined that the Court should readily accede .
to such a request-The Court should determine whether the witness had a
fair opportunity to speak the truth earlier and in an appropriate case allow E
fresh examination of the witness- However, such a power should not be
exercised in a routine or cavalier manner.

      Words and Phrases:

     "Common intention "-Meaning of-In the context of S. 34 of the Penal F
Code, 1860.

      According to the prosecution, the appellants-accused assaulted the
deceased with a belt and iron rod and inflicted a blow on PW-6. The trial court,
relying primarily on the evidence of the eyewitnesses, convicted the appellants-
accused. The High Court affirmed the conviction. Hence the appeals.              G
        On behalf of the appellants-accused, it was contended that the
  application of PW-6 for getting examined afresh was improperly rejected
  which had caused great prejudice to the accused; and that Section 34 IPC
· was wrongly applied.
                                     907                                       H
    908                     SUPREME COURT REPORTS [2004) SUPP. l S.C.R.

A         Dismissing the appeals, the Court·

          HELD: 1. It is not that in every case where the witness who had given
    evidence before the Court, wants to change his mind and is prepared to speak
    differently, that the Court concerned should readily accede to such a request
    by lending its assistance. If the witness who deposed one way earlier comes          'r
B   before the appellate Court with a prayer that he is prepared to give evidence
    which is materially different from what he has given earlier at the trial with
    the reasons 'ror the earlier lapse, the Court can consider the genuineness of
    the prayer in the context as to whether the party concerned had a f~ir
    opportunity to speak the truth earlier and in an appropriate case accept it. It

C
    is not that the power is to be exercised in a routine or eavalier manner, but
    being an exception to the ordinary rule of disposal of appeal on the basis of .       •
    records received, in exceptional cases or extraordinary situation the Court
    can neither feel powerless 'nor abdicate its duty to arrive at the truth 'and
    satisfy the ends of justice. The Court ultimately can certainly be guided by
    the metaphor, separate the grain from the chaff, and in a case which has telltale
D   imprint of reasonableness and genuineness in the prayer, the same has to be
    accepted, at least to consider the worth, credibility and the acceptability of
    the same on merits of the material sought to be brought in. [914-A-D)

           2.1. Section 34 of the Penal Code, 1860, has been enacted on the principle
    of joint liability in the doing of a criminal act. The Section is only a rule of
E   evidence and does not create a substantive offence. The distincdve feature of
    the Section is the element of participation in action. The liability of one person
    for an offence committed by another in the course of a criminal act perpetrated
    by several persons arises under Section 34 if such a criminal act is done in
    furtherance of a common intention of the persons who join in committing the
    crime. Direct proof of common intention is seldom available and, therefore,
F   such intention can only be inferred from the circumstances appearing from
    the proved facts of the case and the proved circumstances. In order to bring
    home the charge of common intention, the prosecution has to establish by
    evidence, whether direct or circumstantial, that there was a plan or meeting
    of minds of all the accused persons to commit the offence for which they are
G   charged with the aid of Section 34, be it pre-arranged or on the spur of the
    moment; but it must necessarily be before the commission of the crime. The
    true contents of the Section one that if two or more persons intentionally do
    an act jointly, the position in law is just the same as if each. of them has done
    it individually by himself. [915-E-H; 916-A)

H         2.2. The existence of a common intention amongst the participants in a
              ANIL SHARMA v. ST ATE OF JHARKHAND                        909

crime is the essential element for application of the Section 34. It is not A
necessary that the acts of the several persons charged with the commission
of an offence jointly must be the same or identically similar. The acts may be
differ~nt in character, but must have been actuated by one and the same
common intention in order to attract the provisions of Section 34. [916-A-B)

     Ashok Kumar v. State of Punjab, AIR (1977) SC 109, relied on.            B
     Mahbub Shah v. Emperor, AIR (1945) PC 118, referred to.

      3.1. Section 34 does not say "the common intention of all", nor does it
say "and intention common to all". Under the provisions of Section 34 the
essence of the liability is to be found in the existence of a common intention C
animating the accused leading to the doing of a criminal act in furtherance
of such intention. As a result of the application of the principles enunciated
in Section 34, when an accused is convicted under Section 302 read with
Section 34, in law it means that the accused is liable for the act, which caused
death of the deceased in the same manner as if it was done by him alone. The D
provision is intend¢.to meet a case in which it may be difficult to distinguish
between acts of individual members of a party who act in furtherance of the
common intention of all or to prove exactly what part was taken by each of
them. [916-D-F]

     3.2. Section 34 is applicable even if no injury has been caused by the E
particular accused himself. For applying Section 34 it is not necessary to
show some overt act on the part of the accused.

     Ch. Pu/la Reddy v. State ofA.P., AIR (1993) SC 1899, relied on.

       Willie (William) Slaney v. State ofMP., AIR (1956) SC 116 and Dhanna F
v. State of MP., AIR (1996) SC 2478, referred to.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 622-
624 of2003.

      From the Judgment and Order dated 29.11.2002 of the Jharkhand High G
Court at Ranchi in Death Ref. No. 1/2002 with Crl. A. Nos. 166, 193, 199 of
2002.

                                   WITH

      Crl. A. No. 798 of2003.                                                 H
                                                                                      Ii"




    910                       SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A        Sushil Kumar, Rajinder Singh, P.S. Mishra, Adolf Mathew, Sanjay Jain,
    Karan Singh, Deepak, P.D. Shanna, Awanish Sinha, Ashok Kr. Singh, Chandra
    Shekhar Yadav, D. Verma, Tathagat H Vardhan., Amitesh C. Mishra, Dhruv Kr.
    Jha and R.K. Maheshwari for the Appellants.

         Manish Mohan for Ashok Mathur and Ritesh Aggarwal for Vishwajit
B   Singh for the Respondents.

          The Judgment of the Court was delivered by

           ARIJIT PASAYAT, J. Six persons faced trial for alleged commission of
    offences punishable under Sections 147, 148, 149, 326 and 307 read with
C   Sections 34 and 452 read with Section 34 and 302 read with Section 34 of the
    lridiait 'Penal Code, 1860 (in short the 'IPC'). Appellant Anil Sharma was
    sentenced to death. The others were sentenced to undergo imprisonment for
    life under Section 302 read with Section 34 IPC. Each was sentenced to
    undergo rigorous imprisonment for I 0 years and to pay a fine of Rs. 2,000
D   each with default stipulati<ln for the offence punishable under Section 307
    read with Section 34 IPC.

          }'he prosecution version in a nutshell is as follows:

          Hare Ram Singh @Manoj Singh (PW-6) who was the cousin ofSudhir
E   Singh@ Bhoma (hereinafter referred to as the 'deceased') lodged fardbayan.
    He claimed to be ah injured in the occurrence in question which took place
    on 22.1.1999. The occurrence is said to have taken place at 6.45 A.M. on that
    day in Ward No. 2 of Jail Hospital in Birsa Munda Central Jail, Ranchi and
    on the basis offardbayan, Lower Bazar P.S. Case No. 12/99 was registered at
    11.00 A.M. on that day and formal F.I.R. (Ext. 8/1) was drawn up. The said
F   Fardbayan (Ext. 8) along with the formal F.I.R. (Ext. 8/1) was received iii the
    court ofC.J.M~; Ranchi, on 23.01.1999.
                          ,
          Recital in the fardbayan was that PW-6 had gone to Ward No. 2 of the
    Jail Hospital at 6.45 A.M. on 22.o 1.1999 as usual to his cousin deceased
    Sudhir Singh @ Bhoma from his Ward No. 6 of the Jail and he used to sit
G   with Sudhir for the whole day and he also used to keep his clothes etc. there.
    Soon thereafter, when he was talking with deceased Sudhir Singh, accused-
    appellants Anil Shanna, Sushil Srivastava; Niranjan Kumar Singh, Md. Hasim
    @ Madhu Mian all armed with Chhura, Bablu Srivastava and Gopal Das armed
    with belt and iron rod respectively along with IO or 12 other persons came
H   near deceased Sudhir Singh and appellant Anil Sharma caught hold of his
        ANIL SHARMA v. STATE OF JHARKHAND [PASAYAT, J.]                  911

collar and at this stage deceased asked as to "what has happened, brother" .A
and in the meantime appellant Anil Sharma assaulted him by Chhura and
appellant Sushil Srivastava, Niranjan Kumar Singh and Md. Hasim @ Madhu
Mian made assault on him by Chhura with which they were armed and
appellant Bablu Srivastava and Gopal Das also assaulted him by belt and iron
rod respectively, besides IO or 12 other persons aforesaid who had surrounded B
and assaulted him. The informant (PW-6) requested appellant Anil Sharma to
let off and leave deceased Sudhir Singh and also enquired as-to what is the
matter, but no avail and the deceased fell on the ground as a result of injuries
sustained. Appellant Anil Sharma thereafter mounted attack on the informant
and inflicted a blow on his neck by Chhura and appellant Sushil Srivastava
and Niranjan Kumar Singh assaulted him by Chhura causing bleeding injury C
on his head and left hand respectively. The informant (PW-6) also fell down
being injured and other persons aforesaid also assaulted him by kicks and
fists. There was then the ringing of alarm bell. After few minutes the Jail
constables came there blowing whistles and during that period there was a
great stampede and deceased Sudhir Singh in an unconscious state along
with the injured informant was shifted to R.M.C.H. Ranchi for treatment where D
the informant was undergoing treatment. But Sudhir Singh died on his way
to the Hospital.

      The trial Court found the accused persons guilty on consideration of
the evidence led by the prosecution by examining 18 witnesses. Twelve E
witnesses were examined on behalf of the accused persons who pleaded
innocence and false implication. They took a specific stand that they were in
their wards inside the jail and, therefore, the question of committing any
murder was totally improbable. There was no report made by Hare Ram Singh
(PW-6) as claimed. The Trial Court recorded conviction and awarded sentences
as afore-noted. For its conclusions Trial Court primarily relied on evidence of F
PWs 5 and 6, who claimed to be eye witnesses.

      In view of the death sentence imposed on accused Anil Sharma, a
reference was made to the Jharkhand High Court under Section 366 of the
Code of Criminal P:-ocedure, 1973 (in short the 'Code'). The High Court upheld
the conviction as recorded by the trial Court but altered the sentence of death G
imposed on the accused appellant Anil Sharma to one of life imprisonment.
In substance, except the modification of sentence so far as accused appellant
Anil Sharma is concerned, the appeal was dismissed. Evidence of witnesses
was analysed in view of the stand that the so-called eye witnesses version
is clearly not capable of acceptance.                                           H
    912                    SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A           In support of the appeals, it has been submitted that there was delay
    in recording the FIR. There was non-examination of many vital witnesses.
    Evidence of the defence witnesses was not carefully analysed. PW-6 later on
    made a statement under Section 164 of the Code that his evidence was
    recorded under pressure. There were exaggerations in respect of what had
B   been indicated in the Fardbayan as recorded. Non production of the hospital
    register and non examination of the Warden and Head Warden, cast serious
    doubts on the veracity of the prosecution version and the Courts below
    should not have brushed aside those infirmities lightly. The production of the
    register and the examination of the warden and head warden would have
    established that place of occurrence as indicated is highly improbable. The
C   citus has not been proved. No blood stains have been found or seized. PW-
    6 is not a resident of the jail. He claimed to be an inmate of Ward No. 6 and
    though he stated that he was inside the camp of the jail, nothing material in
    that regard has been established. As soon as PW-6 came out of the jail in
    May 2001, he filed an affidavit stating as to how t~e statements made by him
    during trial were wrong. It has been erroneously .held that no prejudice was
D   caused by not getting him re-examined. Different yardsticks have been adopted
    for the prosecution and the defence witnesses. PW-5's presence at the spot
    of occurrence as claimed is highly doubtful. The canteen manager himself has
    improbabilised the presence of the witnesses. Even if it is accepted that PW-
    5 was present his evidence does not guarantee tri.tthfulness. There was no
E   corroborative material. After having discarded the evidence of PWs 1, 2 a~d
    4, there was no justification to act on the evidence of PWs 5 and 6. The FIR
    has been despatched after considerable delay and there has been delayed
    examination of PW-5. So far as PW-5 is concerned, he was examined under
    Section 164 of the Code. He has not named Sushi! Srivastava in the statement
    recorded before the Magistrate though in the cross examination he accepted
F   that what was stated before the Magistrate, was correct. The assault part as
    indicated by PW-6 in the so-called FIR was given a go by in Court. Though
    in the FIR it was stated that the assault was made by respective weapons the
    Court has come to a presumptive conc}usion that no physical assault was
    ma_de but by hot.ding the head the killing by accused Anil Sharma was
G   facilitated.

           Section 34 IPC has been wrongly applied. There was no specific role
    attributed to any of the accused persons except the accused Anil Sharma. The
    inconsistency between the evidence of PWs 5 and 6 probabilises the defence
    version. Even if it is accepted that the accused persons except accused Anil
H   Sharma were present if there was no participation the conviction as made is
         ANIL SHARMA v. STATE OF JHARKHAND [PASAYAT, J.]                  913
not maintainable.                                                                 A
      In response, learned counsel for the State submitted that in addition to
the evidence of the aforesaid witnesses, the evidence of other PWs more
particularly, PW-12 shows that the occurrence took place inside the jail. The
concurrent views of the trial Court and the High Court should not be interfered
with. The evidence of PWs 5 and 6 shows that they are reliable and believable.    B
Merely because some documents have not been produced that does not in
any way dilute the prosecution version or render the evidence of the eye-
witnesses doubtful. No prejudice has been caused to the accused in any
manner by not accepting the prevaricating stand of PW-6.

      The evidence of PWs 5 and 6 has been attacked by the accused-appellants C
on the ground that their presence at the alleged spot of occurrence is not
believable. Non-production of certain documents and non-exam.ination of
some of the official witnesses were pressed into service. It is true that PW-
6 made an application for getting examined afresh and the same was turned
down. Again the defence filed a similar application. The Court considered D           1




the same and found it to be without substance. PW-6 was examined in Court
on 22.1.2000, 25.1.2000 and 27.1.2000. He made an application before Trial
Court on 17.7.2001 about alleged pressure on him to depose falsely. A bare
reading of the same shows that the same is extremely vague and bereft of
substance. Though it was stated that pressure was put on him and he was
subjected to third degree treatment, he has not specifically named anybody E
and made vague mention about "some police officials".

      Further, the accused at different stages prayed to recall PWs 5 and 6
which the Trial Court rejected. The orders had attained finality. The petition
of PW-6 was considered in detail by the Trial Court and was rejected by           F
order dated 8.8.2001. It appears that accused persons had filed an application
on 3.7.2001 with a prayer to examine PW-6. Same was also rejected by order
dated 5.9.2001. Both the orders dated 8.8.2001 and 5.9.2001 attained finality
and also do not suffer from any infirmity.

      So far as one of the points which was highlighted was that no cogent        G
reasons have been given to discard the prayer made by PW-6 for his fresh
examination. This aspect was specifically urged before the High Court and
has been considered. It was held that the plea appeared to be after thought
and there was no cogent reason for accepting the prayer. It is true that in a
given case the accused can make an application for adducing additional
evidence to substantiate his claim of innocence. Whenever any such application    H
      914                        SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

 A is filed before the Court, acceptability of the prayer in question is to be
      objectively con_sidered. The High Court has elaborately dealt with this issue
      and concluded as to how the prayer was rightly held to be not tenable.
                                                                                          {
             It is not that in every case where the witness who had given evidence
      before Court, wants to change his mind and is prepared to speak differently,
 B    that the Court concerned should readily accede to such request by lending its
      assistance. If the witness who deposed one way earlier, comes before the
      appellate Court with a prayer that he is prepared to give evidence which is
      materially different from what he has given earlier at the trial with the reasons
      for the earlier lapse, the Court can consider the genuineness of the prayer in
 C    the context as to whether the party concerned had a fair opportunity to speak
      the truth earlier and in an appropriate case, can accept it. It is not that the
      power is to be exercised in a routine or cavalier manner, but being an exception
      to the ordinary rule of disposal of appeal on the basis of re(\ords received in
      exceptional cases or extraordinary situation the Court can neither feel powerless
      nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The
- D   Court ultimately can certainly be guided by the metaphor, separate the grain
      from the chaff, and in a case which has telltale imprint of reasonableness and
      genuineness in the prayer, the same has to be accepted, at least to consider
      the worth, credibility and the acceptability of the same on merits of the
      material sought to be brought in.

 E          Non-production of documents which the appellants claim would have
      strengthened the claim of absence of PW-5 cannot in any way dilute the
      evidentiary value of the oral testimony. Even though the witnesses have been
      cross-examined at length, no material inconsistency has been elicited to discard
      the evidence of PWs 5 and 6. One of the pleas which was pressed into service
 F    is alleged relationship of PWs 5 and 6 with deceased and their criminal
      antecedents. As rightly noticed by the High Court on the aforesaid basis the
      evidence which is found truthful and credible otherwise should not be
      discarded. The Courts have to keep in view that in such matters deep scrutiny
      is necessary. After having kept these principles in view the Trial Court and
      the High Court have found that the evidence when carefully analysed on the
 G    whole was credible. After deep scrutiny the Courts below have found that
      there is ring of truth in the evidence of PWs 5 and 6.

            So far as the delay in despatch of the FIR is concerned, it was noted
      by the High Court that the informant's Fardbayan was recorded at 10.00 a.m.
      on 22.1.1999. The inquest report was prepared on 22.1.1999 at 1925 hours.
 H
       ANIL SHARMA v. STATE OF JHARKHAND [PASAYAT, J.]                   915
The inquest report was prepared by Executive Magistrate and the case number      A
is also mentioned. That being so, plea that the Fardbayan being ante timed
has not been established. Post mortem was conducted on 22.1.1999 at 2200
hours. Above being the position, there can be no grain of doubt that the
Fardbayan was recorded on the date of occurrence and filed at the indicated
time and the case has been instituted on the basis of the said Fardbayan.
Finding recorded by the High Court that Fardbayan was not ante timed, is         B
amply supported by evidence on record and no adverse view as claimed by
the accused-appellants can be taken.

      So far as the question as to whether equal treatment being given to the
evidence of prosecution and defence witnesses is concerned, there can be no      C
quarrel with the proposition in law. In the present case it is not that the
Courts below glossed over the evidence of defence witnesses. In fact detailed
analysis has been made to conclude as to why no importance can be attached
to their evidence. After carefully analysing the prosecution evidence and that
tendered by the accused, the trial Court recorded the conviction. The High
Court in appeal made further detailed analysis of the evidence and came to       D
hold that there was no infirmity in the conclusions of the trial Court. The
conclusions are not shown to suffer from any infirmity whatsoever to warrant
interference.

      Another point stressed by learned counsel for appellant relates to
applicability of Section 34 IPC.                                                 E
      Section 34 has been enacted on the principle of joint liability in the
doing of a criminal act. The Section is only a rule of evidence and does not
create a substantive offence. The distinctive feature of the Section is the
element of participation in action. The· liability of one person for an offence
committed by another in the course of criminal act perpetrated by several
                                                                                 F
persons arises under Section 34 if such criminal act is done in furtherance of ·
a common intention of the persons who join in committing the crime. Direct
proof of common intention is seldom available and, therefore, such intention
can only be inferred from the circumstances appearing from the proved facts
of the case and the proved circumstances. In order to bring home the charge G
of common intention, the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of minds of all the
accused persons to commit the offence for which they are charged with the
aid of Section 34, be it pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. The true contents of the H
    916                        SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A Section are that if two or more persons intentionally do an act jointly, the
    position in law is just the same as if each of them has done it individually
    by himself. As observed in Ashok Kumar v. State of Punjab, AIR (1977) SC
    109, the existence of a common intention amongst the participants in a crime
    is the essential element for application of this Section. It is not necessary that
    the acts of the several persons charged with commission of an offence jointly
B   must be the same or identically similar. The acts may be different in character,
    but must have been actuated by one and the same common intention in order
    to attract the provision.

          As it originally stood the Section 34 was in the following tenns:
c               "When a criminal act is done by several persons, each of such
            persons is liable for that act in the same manner as ifthe act was done
            by him alone."

          In 1870, it was amended by the insertion of the words "in furtherance
D of the common intention of all" after the word "persons" a~d before the word
    "each", so as to make the object of Section 34 clear. This position was noted
    in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.

         The Section does not say "the common intention of all'', nor does it say
  "and intention common to all". Under the provisions of Section 34 the essence
E of the liability is to be found in the existence ofa common intention animating
  the accused leading to the doing of a criminal act in furtherance of such
  intention. As a result of the application of principles enunciated in Section
  34, when an accused is convicted under Section 302 read with Section 34, in
  law it means that the accused is liable for the act which caused death of the
  deceased in the same manner as if it was done by him alone. The provision
F is intended to meet a case in which it may be difficult to distinguish between
  acts of individual members of a party who act in furtherance of the common
  intention of all or to prove exactly what part was taken by each of them. As
  was observed in Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh, AIR
  (1993) SC 1899, Section 34 is applicable even if no injury has been caused
G by the particular accused himself. For applying Section 34 it is not necessary
  to show some overt act on the part of the accused.

          The legality of conviction by applying Section 34, IPC, in the absence
    of such charge was examined in several cases. In Willie (William) Slaney v.
    State of Madhya Pradesh, AIR (1956) SC 116 it was held as follows:
H
              ANIL SHARMA v. STATE OF JHARKHAND [PASAYAT, J.]                      917

             "Sections 34, 114 and 149 of the Indian Penal Code provide for                A
             criminal liability viewed from different angles as regards actual
             participants, accessories and men actuated by a common object or a
             common intention; and the charge is a rolled up one involving the
             direct liability and the constructive liability without specifying who
             are directly liable and who are sought to be made constructively
             ~k.                                                                           B
                 In such a situation, the absence of a charge under one or other of
             the various heads of criminal liability for the offence cannot be said


-            to be fatal by itself, and before a conviction for the substantive offence,
             without a charge, can be set aside, prejudice will have to be made
             out. ln most of the cases of this kind, evidence is normally given
             from the outset as to who was primarily responsible for the act which
                                                                                           C


             brought about the offence and such evidence is of course relevant".

         The above position was reiterated in Dhanna etc. v. State of Madhya
    Pradesh, AIR (1996) ·SC 2478.                                                          D
          Section 34, IPC, has clear application to the facts of the case on all
    fours, and seems to have been rightly and properly applied also.

         Looked at from any angle, judgment of the High Court does not suffer
    from any infirmity to warrant interference. The appeals fail and are dismissed.        E
    v.s.s.                                                        Appeals dismissed.