JIVAN LAL AND ORS.versusSTATE OF MADHYA PRADESH

-                            JIVAN LAL AND ORS.
                                         v.
                       STATE OF MADHYA PRADESH
                                                                                    A



                                 DECEMBER 4, 1996

                  (DR. AS. ANAND AND KT. THOMAS, JJ.]                               B

          Evidence Act, 1872 :

           Section 13.f-Sole eye witlless-Evidentiary value of-Conviction can
    be based on the sole testimony of eye witness provided the same is found to     C
    be wholly reliable-Where the testimony of such a wimess is partly reliable,
    prudence requires that corroboration of the testimony of that witness should
    be sought for from independent sources to base the conviction-Trial under
    sections 148 and 302/ 149 Indian Penal Code-13 accused-Acquittal of two
    accused by Trial Court-Acquittal of other eight accused by High Court-Con-
    viction of three appellants-Appeal preferred before Supreme Court-Mother        D
    of deceased solitary eye wimcss-Her evidence in so far as the part attributed
    to the appellants was concerned found to be cogent and consistent-fler
    testimony also corroborated by other evidence on record-Held, Trial Court
    and High Court committed no error in relying upon her testimony-Apprecia-
    tion evidence by both the courts below was proper-Merely because, JO other      E
    persons named by her as accused were acquitted, would not render her
    testimony as wholly suspect because falsus in uno falsus in omnibus is not
    rule of law accepted by the courts in this country.

          Indian Penal Code, 1860 :
                                                                                    F
           Sections 34, 148, 302/ 149-Vnlawful assembly-Common intention-
    Murde,-!3 accused-Acquittal of two accused by Trial Court-Further ac-
    quittal of eight accused by High Court-Conviction of three under sections . '
    148 and 302/149-Pennissibility of-1he manner in which the incident took
    place clearly indicated that the appellants had shared the common intention G
    of committing the murde,-They would therefore be liable for the said murder
    with the aid of section 34 I.P.C.-No prejudice was shown to have been
    caused to the appellants for not framing a distinct charge with the aid of
    section 34 J.P. C.~ntention which is a question of fact, has to be gathered
    from the evidence and the evidence on the record clearly established that the
    appellants did share the common intention of committing the murder-The H
                                          537
    538                   SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A convictioo of the appellants altered from under section 302/149 J.P. C. to the
    one under section 302/34 l.P.C.

          Dhanna etc. v. State of Madhya Pradesh, JT (1996) 6 SC 652, referred
                                                                                   -
    to.

B          Nanak Chand v. 171e State of Punjab, [1955] SCR 1201; Willie Slaney
    v. State of MP., AIR (1956) SC 116; Amar Singh v. State of Ha1yanq, AIR
    (1973) SC 222 and Bhoor Singh and Anr. v. State of Punjab, AIR (1974) SC
    1256, cited.

C         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    366 of 1990

         From the Judgment and Order dated 9.12.89 of the Madhya Pradesh
    High Court in Cr!. A. No. 659 of.1985.

          N.N. Keshwani and R.N. Keshwani for the Appellants.
D
         U.N. Bachawat, (Prashant Kumar) for Uma Nath Singh for the
    Respondent.

          The following Order of the Court was delivered :
E          The appellants alongwith 10 others were tried for various offences
    including offences under section 148 and 302/149 l.P.C. in respect of an
    occurrence dated 11th June, 1984 in which deceased Mohan Lal received
    fatal injuries. The Trial Court vide judgment of 1st June 1985, acquitted
    two co-accused but convicted 11 for various offences including offences
F   under sections 148 and 302/149 I.P.C. They were sentenced to undergo life
    imprisonment. All the 11 convicts filed appeal in the High Court against
    their conviction and sentence. On 9th December 1989, a Division Bench of
    the High Court allowed the appeal of 8 convicts and acquitted them by
    giving them the benefit of doubt. So far as the three appellants herein are
G   concerned, their conviction was maintained for the offences under section
    302/149 I.P.C. The High Court opined that these three appellants had
    formed an unlawful assembly with "other unknown persons" with the com-
    mon object of committing murder of Mohan Lal as alleged by the prosecu-
    tion. By special leave, the appellants have filed this appeal.

H         We have heard Mr. Keshwani, learned counsel appearing for the
                               JIVANLALv. STATE                            539
     appellants and Mr. U.N. Bachawat, learned senior counsel appearing for      A
     the respondent and examined the record.

            The Trial Court as well as the High Court relied upon the testimony
-'
     of Swami P.W. 8, brother of Mohan Lal and Saraswati, P.W. 9, the mother
     of deceased. It was found by the courts below that on the fateful day of B
     11th June, 1984 at about 8.00 a.m., the appellants armed with guns and a
     farsa attacked the deceased while he was proceeding with his brother
     Swami P.W. 8 towards the betel grove. The Trial Court as well as the High
     Court found that P.W. 8 and P.W. 9 had given a correct account relating
     to the assault and while P.W. 9 had specifically stated that appellants Jivan
     Lal and Halkoi fired upon the deceased, Dashrath hit him with a farsa. C
     P.W. 8 Swami has corroborated P.W. 9 by deposing that he had seen these
     accused alongwith others variously armed by the side of his brother who
     was lying on the ground. The submission of Mr. Keshwani that the courts
     below committed an error in relying upon the testimony of P.W. 9, the
     solitary eye witness as according to him, she was an interested witness and D
     since she had implicated 10 other accused also, her testimony could not
     be relied upon, does not appeal to us. He referred to certain judgments of
     this Court to urge that conviction could not be based on the testimony of
     sole eye witness, who has been disbelieved in respect of a part of the
     occurrence or who has been found to be otherwise interested in the
     prosecution.                                                                E

           It is found from a perusal of the record that the evidence of Saraswati
     P.W. 9 in so far as the part attributed to the appellants is concerned, is
     cogent and consistent and is also corroborated by P.W. 8 as well as by the
     medical evidence. The names of 3 appellants were also clearly disclosed in F
     the promptly lodged F.l.R., Ex. P-16. It is settled law that conviction can
     be based on the sole testimony of an eye witness provided that testimony
     is found to be wholly reliable. Where the testimony of such a witness is
     partly reliable, prudence requires that corroboration of the testimony of
     that witness should be sought for from independent sources to base the
     conviction. Indeed, P.W. 9 is the mother of the deceased. She is, therefore, G
     an interested witness. Prudence, as such, requires that we look for cor-
     roboration of her testimony. We find that such corroboration is amply
     provided for both by P.W. 8 and Dr. Ramesh Kumar P.W. 10 who had
     performed the Autopsy on the dead body. Both the Trial Court and the
     High Court committed no error in relying upon her testimony which has H
    540                  SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A been corroborated by other evidence on the record to convict the appel-
    lants. The appreciation of evidence by both the courts below is proper and
    we .have not been persuaded to take a different view. Merely because, 10
    other persons named by her as accused were acquitted, would not render
    her testimony as wholly suspect because falsus in ww falsus omnibus is not
B   rule of law accepted by the courts in this country. That apart, we find that
    the High Court has opined that since the testimony of P.W. 9 had not been
    supported by the medical evidence in so far as the injuries attributed to
    the other 10 accused is concerned, therefore, the benefit or doubt was
    required to be given to them and they were acquitted.

C        Learned counsel for the appellants then submitted that the convic-
  tion of the appellants by the courts below for offences under sections 148
  and 302/149 l.P.C. cannot be sustained. Indeed, according to the positive
  ca.se of the prosecution, all the 13 arraigned accused were the miscreants.
  With the acquittal of 10 of them (two by the Trial Court and eight by the
D High Court), the conviction of the remaining three under sections 148 and
  302/149 I.P.C. is not permissible as the assembly of three only would not
  be an unlawful assembly within the meaning of Section 141 l.P.C. The
  opinion of the High Court that these three appellants formed an unlawful
  assembly with some "other unknown persons", is based on no evidence as
  it is not the prosecution case that besides the 13 named persons, there was
E any other 'unknown' person also who had shared the common object with
  the appellants for committing the murder of Mohan Lal. The High Court
  was, therefore, not legally justified in convicting the appellants under
  se'ctions 148 and 302/1491.P.C. However, we find that the manner in which
  the incident took place clearly indicates that the appellants had shared the
p common intention of committing the murder of Mohan Lal. They would
  therefore be liable for the said murder with the aid of Section 341.P.C. We
  may notice here that these three appellants are the ones who had been
  specifically named by P.W. 9 to have assaulted deceased Mohan Lal. All
  the three were together at the scene of the crime as deposed to by P.W. 8
  also. The evidence of P.W.9 that Jivan Lal and Halkoi had fired upon the
G deceased while Dashrath had caused an injury on him with a farsa, has
  been found established from the l)ledical evidence of P.W. 10. Thus, there
  is no manner of doubt that the :three appellants did share the common
  intention of committing murder of Mohan Lal. The appellants alongwith
  others as already noticed, hac,I been charged for the said murder of sharing
H the common object with the/aid of Section 149 l.P.C. No prejudice has
                               JIVAN LAL v. STATE                          541

been shown to have been caused to the appellants for not framing a distinct       A
charge with the aid of Section 34 I.P.C., as intention which is a question of
fact, has to be gathered from the evidence and the evidence on the record
clearly establishes that the appellants did share the common intention of
committing the murder of Mohan Lal. In Dhanna Etc. v. State of Madhya
Pradesh, JT (1996) 6 SC 652, Thomas, J. speaking for the Bench, while
                                                                                  B
dealing with a similar aspect, after referring to a catena of authorities
observed:

            "Legal position on this aspect remained uncertain for a time
        after this Court rendered a decision in Nanak Chand v. The State
        of Punjab, [1955] 1 SCR 1201. But the doubt was cleared by a              C
        Constitution Bench of this Court in Willie Slaney v. State of M.P.,
        AIR (1956) SC 116, where this Court observed at para 86, thus :

             "Sections 34, 114 and 149 of the Indian Penal Code provide for
         criminal liability viewed from different angles as regards actual
         participants, accessories and men actuated by a common object or         D
         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 construc-
         tively liable.
                                                                                  E
            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. In most of the cases of.this kind, evidence is normally
        given from the outset as to who was primarily responsible for the         F
        act which brought about the offence and such evidence is of
         course relevant. 11

            It is therefore, open to the court to take recourse to section 34
        I.P.C. even if the said section was not specifically mentioned in the G
        charge and instead section 149 I.P.C. has been included. Of course
        a finding that the assailant concerned had a common intention with
        the other accused is necessary for resorting to such a course. This
        view was followed by this court in later decisions also. Amar Singh
        v. State of Haryana, AIR (1973) SC 2221; Bhoor Singh and Anr. v.
        State of Punjab, AIR (1974) SC 1256. The first submission of the H
    542                  SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A            learned counsel for the appellant has no merit."

          The view expressed above lends support to the view taken by us.
    Under the circumstances, the conviction of the appellants is altered from
    under section 302/149 I.P.C. to the one under section 302/34 l.P.C. while
    maintaining the sentence of the life imprisonment. The conviction and
B   sentence of the appellants for the offence under section 148 !PC is however
    set aside, but in all other respects, their conviction and sentence is main-
    tained. As a result of the above discussion, except for the alteration made
    above, this appeal fails and is hereby dismissed.

C         The appellants are on bail. Their bail bonds shall stand cancelled.
    They shall be taken into custody to undergo the remaining part of the
    sentence.

    T.N.A.                                                   Appeal dismissed.