Shiv Charan @ Kalu vs The State (Nct Of Delhi)
2012 Latest Caselaw 5524 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 17th MAY, 2012
                                 DECIDED ON : 14th SEPTEMBER, 2012

+                            CRL.A.238/1998

       SHIV CHARAN @ KALU                     ....Appellant
                Through : Ms.Charu Verma, Advocate.

                                    versus

       THE STATE (N.C.T. OF DELHI)             ....Respondent
                Through : Ms.Richa Kapoor, APP.

        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The present appeal is directed against the judgment and order

on sentence dated 24.01.1998 of the learned Addl. Sessions Judge in SC

No.100/96 by which the appellant was convicted for committing the

offences punishable under Sections 302/307/324/34 IPC and sentenced to

undergo imprisonment for life with fine.

2. The prosecution alleges that Daily Diary (DD) No.15A was

recorded on 26.01.1991 at 10.10 P.M. at police station Kotla Mubarkpur

regarding a quarrel near police picket, Sewa Nagar. The investigation was

assigned to SI Ishaq Ahmed who with ASI Jogram and

Const.Shahabuddin reached the spot. Insp.Rajbir Singh, SHO also reached

there. They found Jai Singh, Shiv Raj, Binu Yadav, Smt.Shanti Devi, Anil

Kumar, J.K. Gill and Gurcharan Kaur injured in the incident. SI Ishaq

Ahmed took Jai Singh, Shiv Raj and Binu Yadav to AIIMS where Jai

Singh and Binu Yadav were declared „brought dead‟ on arrival. Shanti

Devi, Gurcharan Kaur, Anil Kumar and J.K.Gill were also taken to

hospital. PW-23 moved applications (Ex.PW-23/A-1 to Ex.PW-23/A-7) to

find out if the injured were fit to make statements. Gurcharan Kaur and

J.K.Gill were declared fit for making statements and they were brought to

the spot. Insp.Rajbir Singh, SHO recorded the statement of Kaushalya

Devi (Ex.PW-3/A). She disclosed that the injuries to all of them were

caused by Prem Singh @ Bandar and Shiv Charan. She also attributed

them motive for causing injuries. The Investigating Officer made

endorsement on the statement (Ex.PW-3/A) and sent the rukka for lodging

First Information Report. He seized various articles i.e. pillow, gadda

(mattress) and bed-sheet from quarter No.544 by memo (Ex.PW-6/A).

Blood and other articles were seized by seizure memos (Ex.PW-6/C, 6/D,

6/E and 6/F). He recorded the statements of the injured. Inquest

proceedings were conducted on 27.01.1991. Dr.D.N.Bhardwaj conducted

the post-mortem examination of the bodies of Jai Singh and Binu Yadav.

On 28.01.1991, Shiv Charan was arrested at about 06.00 P.M. near Sewa

Nagar flyover. At his instance, Prem Singh @ Bandar was also arrested

from Panchkuiyya road, Traffic Light at about 08.00 P.M. They were

interrogated; pursuant to disclosure statements, Shiv Charan recovered

„Kulhari‟ (axe) and Prem Singh recovered the „knife‟ used in the

commission of the offence. The Investigating Officer sent the exhibits to

the Forensic Science Laboratory for examination and collected reports.

After completion of the investigation, a charge-sheet was submitted

against Shiv Charan and Prem Singh for committing the offences

mentioned previously. The accused were charged and brought to trial.

They claimed innocence.

3. To substantiate the charges, the prosecution examined

twenty-six witnesses in all. No defence witness was examined on behalf

of the appellant. The statements of the accused were recorded under

Section 313 Cr.P.C. They pleaded false implication.

4. After appreciating the evidence on record and considering the

rival contentions of the parties, the Trial Court convicted the appellant for

committing the offences punishable under Sections 302/307/324/34 IPC.

The co-accused Prem Singh was also convicted for the said offences. It

appears that the appellant alone has filed the appeal. The evidence will be

appreciated qua him only.

5. Learned counsel for the appellant challenged the findings of

the Trial Court and urged that it did not appreciate the evidence in its true

and proper perspective and fell into grave error in relying upon

testimonies of PWs Kaushalya Devi, Shanti Devi, Gurcharan Kaur and

Anil Kumar without ensuring their credibility and truthfulness. The Trial

Court ignored the vital discrepancies and contradictions in the testimonies

of these witnesses without valid reasons. Most of the witnesses, urged the

counsel, did not support the prosecution and turned hostile. The appellant

had no motive to inflict serious injuries to seven persons. None of the

witnesses testified that any injury was caused with the „kulhari‟ by the

accused. There was no material to infer that the appellant shared common

intention with Prem Singh to cause fatal injuries to Jai Singh and Binu

Yadav. Mere presence of the accused with Prem Singh at the time of

occurrence was not sufficient to prove that he shared common intention to

inflict fatal injuries.

6. Supporting the judgment, learned APP urged that it did not

call for any interference. The appellant, in furtherance of common

intention with co-accused Prem caused severe injuries to seven persons in

the same incident/occurrence. The accused was armed with „kulhari‟ and

participated in inflicting injuries to the injured. Both Shiv Charan and

Prem Singh were named in the First Information Report and specific roles

were attributed to them. There was no reason to discard the testimonies of

the injured witnesses.

7. We have considered the submissions of both the parties and

have examined the Trial Court record.

8. It is relevant to note that homicidal death of Jai Singh and

Binu Yadav is not under challenge. PW Dr.D.N.Bhardwaj conducted post-

mortem examination of the bodies and proved the post-mortem reports

(Ex.PW-2/A of deceased Binu Yadav and Ex.PW-2/B of deceased Jai

Singh). He was of the opinion that the cause of death of Binu Yadav was

hemorrhagic shock following injuries caused by sharp edged weapon.

Injury No.1 was sufficient to cause death in the ordinary course of nature.

Similarly, the cause of death of Jai Singh was hemorrhagic shock

following stab wounds to the heart and was sufficient to cause death in the

ordinary course of nature. The accused did not cross-examine the expert

witness and challenge the opinion. Undoubtedly, it is a case of homicide.

9. Learned counsel for the appellant did not dispute that PW-1

Shiv Raj Singh (PW Ram Vinod was also given number PW-1), PW-2

Gurcharan Kaur (Dr.D.N.Bhardwaj was also given number PW-2) , PW-3

Kaushalya Devi, PW-4 Shanti Devi, PW-5 Anil Kumar and PW-7 J.K.Gill

sustained injuries in the incident. She argues that the accused was not the

perpetrator of the crime. PW-9 (Dr.Ramesh Lal) proved MLC Ex.PW-9/A

of Jai Singh and Ex.PW-9/B of Binu Yadav. He also proved MLC

Ex.PW-9/C of Gurcharan Kaur and was of the opinion that injuries

sustained by her were simple in nature and were caused by a sharp object.

He also proved MLC Ex.PW-9/D of PW-7 J.K.Gill where the injuries

were simple in nature and caused by sharp object. MLCs Ex.PW-9/E, 9/F

and 9/G were prepared by Dr.Guni Shankar. These pertain to injured Shiv

Raj, Shanti Devi and Anil Kumar. The accused did not cross-examine him

despite an opportunity.

10. PW-1 (Shiv Raj Singh) deposed that on 26.01.1991, he lived

at P-535 Sewa Nagar. Shiv Charan and Prem Singh were known to him

and they resided in Q-826 and M-613. On 26.01.1991 at about 09.30

P.M., he went to purchase bidi/cigarette. While returning and at a distance

of 15/20 paces from the police picket, Shiv Charan and Prem Singh came

there. Shiv Charan was armed with a „kulhari‟ (axe) and Prem Singh was

armed with a „knife‟. He ran to save his life but was caught hold by the

accused in front of Q-510 and 514. Shiv Charan caught hold of him and

Prem stabbed him with „knife‟ on the right side of the chest. After getting

himself freed, he went inside the kitchen of Q-510 and bolted from inside.

Anil Kumar was a tenant in the said quarter. The accused asked Anil, his

wife and a relative present there to bring him out of the kitchen. He

further testified that when he went outside, after sometime, he saw Anil,

his wife and Binu Yadav in an injured condition. He further deposed that

he heard his wife Gurcharan Kaur raising an alarm „bachao-bachao‟. In

the cross-examination, he stated that he was a teacher in a school in

Defence Colony. He reiterated that he had seen the „knife‟ in the hand of

Prem and „kulhari‟ in the hand of Shiv Charan. When he entered in the

kitchen, Anil, his wife and Binu Yadav were in the house and the accused

asked them to take him out.

11. Analysing PW-1‟s deposition, what emerges is that material

facts regarding the roles attributed to the accused in inflicting injuries to

him remained unchallenged in the cross-examination. The accused did not

deny their presence at the spot. No suggestion was put that the injuries to

PW-1 (Shiv Raj Singh), Anil, his wife and Binu Yadav were not inflicted

by them. To prove motive, PW-1 deposed that the accused used to tease

Jai Singh‟s daughters and when he came to know about it, he questioned

the accused about it. The accused had threatened to „see‟ him for

intervening in the matter. This assertion of the witness remained

unchallenged in the cross-examination. The accused did not deny that

Anil and his family members including Binu Yadav were not asked to

bring Shiv Raj Singh out of the kitchen.

12. Another material witness is PW-3 Kaushalya Devi, Jai

Singh‟s wife who resided with him at P-544, Sewa Nagar. She deposed

that on the day of the incident, her husband Jai Singh was sleeping in the

kitchen on the cot. At 09.30 P.M., both the accused barged into the house

and went into the kitchen. Shiv Charan caught hold the face/mouth of her

husband and Prem Singh stabbed him on his chest and abdomen with a

„knife‟. When they attempted to catch hold of them, they came out and

bolted the door from outside. The police and the neighbours opened the

door. Her statement (Ex.PW-3/A) was recorded by the police. Her

husband expired in the hospital. In the cross-examination, she stated that

she and her children were watching TV and her husband was lying on the

cot at that time. There was light in the room. The accused had barged after

breaking open the latch. She reiterated that she herself saw „Bandar‟

inflicting „knife‟ blows while the accused Shiv Charan caught hold of her

husband‟s mouth/face with his hands and he was unable to cry. The

incident lasted for 5/10 minutes. She fairly admitted that the accused had

no motive to murder her husband and they had no enmity with them.

13. The testimony of the witness reveals that she categorically

named the accused for causing fatal injuries to her husband and attributed

specific roles to each of them. Her presence inside the house was natural

and probable. She had no ulterior motive to falsely name the accused for

the horrible murder of her husband. There was no animosity with the

accused. Her statement on material facts remained unchallenged. She

proved the version narrated to the police at the first instance. Her

statement formed the basis of registration of First Information Report.

Since the rukka was sent within two hours of the occurrence without any

delay, there was least possibility of fabricating her statement. In her

statement Ex.PW-3/A, she gave graphic details about the incident. She is,

no doubt the wife of the deceased but is not an interested witness. An

interested witness must have some direct interest in having the accused

somehow convicted for some extraneous reason. Ordinarily the close

relatives would not intend to let the real culprit go scot free. It is settled

legal position that evidence of close relatives of a victim can be relied

upon if it has a ring of truth, is cogent, credible and trustworthy.

14. The Supreme Court in „Dilip Singh and others v. The State of

Punjab‟ AIR 1953 SC 364 held :

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

Vivien Bose, J, put the matter even more clearly, as follows:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hands on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p. 59) (1952 Cri LJ 547). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

15. Gurcharan Kaur, Shiv Raj Singh‟s wife was also injured in

the incident. She deposed that after hearing the commotion, when she

went towards the crowd, both the accused came there. The accused Prem

was armed with a „knife‟ and Shiv Charan had a „kulhari‟. Prem inflicted

injuries with a „knife‟ on her left palm, left elbow and right thigh. They

left threatening to „see‟ Jai Singh and entered in his house. She heard a

commotion/noise there and came to know that Jai Singh was stabbed

there. In the cross-examination, she said that there was „light‟ in the stairs.

Both the accused were known to her. She fairly admitted that accused had

not entered inside her house. Apparently, the witness was not cross-

examined on vital facts.

16. PW-4 (Shanti Devi) turned hostile and did not support the

prosecution in the examination-in-chief. She was cross-examined by

learned APP with Court‟s permission. She accepted the suggestion that at

09.30 or 09.45 P.M, she, her husband Anil and "master" were injured with

„knife‟ and the assailants fled the spot. She however, denied the

suggestion that they were injured by accused Shiv Charan and Prem. She

denied the contents of the statement (Ex.PW-4/A) recorded under Section

161 Cr.P.C. PW-5 Anil also did not support the prosecution and turned

hostile. In the cross-examination by learned APP after Court‟s permission,

he admitted that on the day of incident he, his wife, Binu Yadav and Jai

Singh sustained injuries because „master ji‟ had entered inside their house.

Two boys, one of whom was armed with a „knife‟, entered the house and

enquired about „master ji‟. When he expressed his ignorance and told him

that he was not inside the house, his wife was injured with a „knife‟. When

he intervened to rescue her, he was stabbed with „knife‟ on abdomen. He

disclosed that the person who stabbed him was present in the Court but he

was unable to recognise him. He admitted that he had informed the police

that there were two assailants but denied to have given their names as

Shiv Charan and Prem. In the cross-examination by the accused, he stated

that they were taken to the hospital on the night of 26.01.1991 and the

police recorded his statement on 27.01.1991. The occurrence lasted for

one or two minutes. PW-6 (Trilok Singh) Jai Singh‟s relative who had

come to Delhi in connection with his pension deposed that on 26.01.1991

at about 09.45 P.M., he was sleeping and went downstairs on hearing the

commotion. When he entered Jai Singh‟s house after opening the latch, he

saw him (Jai Singh) smeared in blood. The police took him (Jai Singh) to

the hospital. PW-7 (J.K.Gill) deposed that he received injuries at about

10.00 P.M. but resiled from his earlier version about the assailants who

inflicted injuries to him.

17. From the testimonies of the witnesses, discussed minutely, it

is certain that both the accused reached the spot and had inflicted injuries

upon the victims. Jai Singh and Binu Yadav succumbed to the injuries and

were declared „brought dead‟ to the hospital. Both accused were armed

with deadly weapons. Prem was armed with „knife‟ and Shiv Charan had a

„kulhari‟. It further emerges that while Prem Singh inflicted injuries to the

victims with „knife‟ the accused Shiv Charan played an active role and

aided him in causing injuries to them. He (Shiv Charan) caught hold the

victims and the accused Prem stabbed them with „knife‟.

18. Learned Counsel for the appellant contended that there was

no evidence whereby any witness saw the appellant inflicting injury to

any victim. PW-1 (Shiv Raj Singh) who had locked himself in the kitchen

was unable to testify who had caused injuries to Anil Kumar, his wife

Shanti Devi and Binu Yadav. In the absence of any positive evidence or

circumstantial evidence, it cannot be inferred that the injuries to Binu

Yadav and others were caused by the accused. We are not impressed with

these submissions. Undoubtedly, Binu Yadav, Anil Kumar and Sanjay

sustained injuries in the incident and were taken to the hospital. There is

no eye witness to depose that injuries to them were caused by the

appellant. However, the circumstances in which the accused and his

associate Prem Singh inflicted injuries to seven persons in the same

incident/occurrence one after the other at a stretch prove beyond doubt

that they were the authors of the injuries to them. According to PW-1

(Shiv Raj Singh), when he entered in the house of Anil Kumar to save

himself and locked himself inside the kitchen, he was chased there by the

accused. They asked Anil, his wife and a relative present in the house to

bring him (PW-1) out and started raising noise loudly. Apparently, Anil,

his wife and relative (Binu Yadav) were hale and hearty at that time and

when after some time PW-1 (Shiv Raj Singh) came out of the kitchen, he

found injuries on their bodies. In that short period, no one else had entered

the house to cause injuries to them. The motive to cause injuries was that

they did not obey the accused to bring PW-1 (Shiv Raj Singh) out of the

kitchen. PW-5 (Anil) corroborated PW-1 (Shiv Raj Singh) and

categorically deposed that he and his wife were injured because „master ji‟

(PW-1 Shiv Raj) had entered inside his house. He further deposed that

two boys, one of whom was armed with a „knife‟, enquired from him

where „master‟ was. When he feigned ignorance, they told him that he

was inside the house. When he denied that, his wife was stabbed with a

„knife‟. When he intervened to rescue her, he was also stabbed on his

stomach. He also revealed that the assailant was present in the Court. He

also admitted the suggestion of APP that the assailants had given beatings

first to Binu Yadav before inflicting injuries to them. These facts are

relevant under Section 6 of the Evidence Act which deals with the

relevancy of facts forming part of the same transaction. Facts, though not

in issue, if they are so connected with a fact in issue as to form part of

same transaction, are relevant, whether those facts occurred at the same

time and place or at different times and places. This Section deals with

those facts the admissibility of which comes under the expression „res

gestae‟. Illustration (b) to Section 6 of the Evidence Act indicates that acts

done at different places and times may form part of the same transaction.

In the present case, the accused went to the spot armed with deadly

weapons. They inflicted injuries to several victims in the same transaction

one after the other in a short-span, whosoever came in their way, were

attacked. All the injured were taken to the hospital simultaneously. PW-2

(Gurcharan Kaur) testified that when she was injured by the accused they

left declaring „Aaj Jai Singh ko bhi dekh lete hain‟. Thereafter, they

entered Jai Singh‟s house. She heard commotion in their house and came

to know immediately that Jai Singh was stabbed. She also came to know

that her husband had also sustained „knife‟ injuries. PW-6 (Trilok Singh)

supplemented her version and deposed that after hearing the commotion,

he came downstairs at about 10.00 P.M., and the house bolted from

outside. When he entered the house, he saw there Jai Singh smeared in

blood. These circumstances, unerringly establish that within all human

probability the crime was committed by the accused and none else. PW-1

(Shiv Raj Singh) even testified the he had recognized Prem @ Bandar‟s

voice in the kitchen when he uttered the words, „maar sale ko‟.

19. The accused had an ulterior motive to inflict injuries to the

victims. They used to tease Jai Singh‟s daughters. When PW-1 (Shiv Raj

Singh) objected to that, they threatened him for interfering in the affairs of

others. The occurrence lasted for a short duration and no one else was

there to inflict injuries to the victims. There was no question of mistaken

identity as the accused were residents of the Q and M blocks in the area

and were known to the victims. They did not deny their presence at the

spot. Pursuant to disclosure statements, the police was able to recover the

weapons of offence. The appellant did not give plausible explanation to

the incriminating circumstances in his statement recorded under Section

313 Cr.P.C. He did not claim his presence at any other specific place at

the time of occurrence.

20. Mere contradictions/improvements on trivial matters cannot

render an injured witness‟s deposition untrustworthy. The law on this

aspect has been detailed in the latest judgment State of Uttar Pradesh vs.

Naresh and ors. (2011) 4 SCC 324 as under :

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

21. Similarly in another case Abdul Sayed vs. State of Madhya Pradesh (2010) 10 SCC 259, Supreme Court observed that :

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v.

State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special

status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

22. It is true that some witnesses turned hostile and did not

support the prosecution. However, that is not a ground to acquit the

accused.

23. In the case of Rameshbhai Mohanbhi Koli & Ors v. State of

Gujrat (2011) 11 SCC 111, the Supreme Court held:

"It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh v.State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey v.State of Orissa 1976 SCC (Cri) 566, Syad Akbar v.State of Karnataka 1980 SCC (Cri) 59 and Khujji v.State of M.P. 1991 SCC (Cri) 916] In State of U.P.V. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close the prosecution or defence can be relied upon. A smilar view has been reiterated by this Court in Balu Sonba Shinde V.State of Maharashtra 2003 SCC (Cri) 112, Gagan Konojia v.State of

Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh v. State of U.P. (2006) 1 SCC (Cri) 661, Sarvesh Narain Shukla v.Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh v.State (2009)2 SCC (Cri) 1106"

24. We find no substance in the plea that there was delay in

lodging the First Information Report. The occurrence took place at about

10.00 P.M. DD No.15A was recorded at 10.10 P.M. SI Ishaq Ahmed

(PW-23) with ASI Jogram and Const.Shahabuddin reached the spot at

about 10.15 P.M. MLCs show that the injured were taken to the hospital

between 10.30 P.M. to 11.00 P.M. The rukka was sent after recording

statement of Kaushalya Devi at 02.15 A.M. Apparently, there was no

delay in lodging the First Information Report. Early reporting of the

occurrence by the informant with all its vivid details gives an assurance

about its truth. In the case of „Jai Prakash Singh v.State of Bihar & Anr.‟

2012 CRI.L.J.2101, the Supreme Court held :

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of

consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant‟s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

25. There is no inconsistency between the ocular and medical

evidence. The prosecution has established the involvement of the accused

in the commission of the offence with cogent and clinching ocular,

medical and circumstantial evidence.

26. We are not persuaded with the submissions of the counsel

that the accused did not share common intention with Prem @ Bandar and

cannot be held liable for the injuries inflicted by him. From the

testimonies of the prosecution witnesses, it emerges that while Prem

Singh inflicted injuries to the victims with „knife‟, Shiv Charan played an

active role and aided Prem Singh in causing injuries. Accused Shiv

Charan caught hold of the victims and accused Prem Singh stabbed them

with „knife‟. Both had reached the spot together at night and were armed

with deadly weapons. They had a predetermined plan to inflict injuries.

Both accused gave serious blows and injuries with active participation.

The role attributed to Shiv Charan is that he caught hold of the victims,

though vital blows were given by Prem Singh. But for Shiv Charan

catching hold of the victims, probably the injuries could have been

avoided. After causing the injuries, both fled the spot together. Accused

Shiv Charan was present throughout with the accused Prem and at no

stage restrained him from inflicting injuries to the victims. He participated

in the crime and facilitated infliction of injuries to the injured/deceased by

the accused Prem Singh. Both had ulterior motive to inflict injuries to the

victims. They used to tease deceased Jai Singh‟s daughters. When Shiv

Raj Singh objected to their teasing, they threatened him for interfering in

the affairs of others. The occurrence lasted for a short duration and no one

else was there to inflict injuries to the victims. They went from one place

to another. From these circumstances, an inference can well be drawn that

the appellant shared common intention with his associate Prem Singh for

causing fatal injuries to the victims.

27. In the latest case of „Shyamal Ghosh vs. State of West

Bengal‟ Crl.A.Nos.507 and 1369 of 2007 and 539-540 of 2011, the

Supreme Court observing the law on common intention in detail under

Section 34 IPC observed :

"25. Another case to which attention of this Court was invited is Jai Bhagwan v. State of Haryana. In that case also, the Court had discussed the scope of Section 34 Indian Penal Code and held that common intention and participation of the accused in commission of the offence are the ingredients which should be satisfied before a person

could be convicted with the aid of Section 34 Indian Penal Code. The Court held as under : (SCC 107 10)

10. To apply Section 34 Indian Penal Code apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participate of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

26. The facts of the present case examined in the light of the above principles do not leave any doubt in our minds that all the three accused had a common intention in commission of this brutal crime. Each one of them participated though the vital blows were given by Dinesh Dhimar. But for Mahesh catching hold of the arms of the deceased, probably the death could have been avoided. Nand Kishore showed no mercy and continued pelting stones on the deceased even when he collapsed to the ground. The prosecution has been able to establish the charge beyond reasonable doubt."

28. Approving the judgments of the Privy Council in „Barendra

Kumar Ghosh vs. King Emperor‟, the Supreme Court held :

"(T)he words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, „act‟ includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one‟s very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally

cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the Appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things „they also serve who only stand and wait‟."

29. In the case of „Mrinal Das and Ors. vs. The State of Tripura‟

(2011) 9 SCC 479 the Supreme Court held :

XXXX XXXX XXXX "72. Section 34 IPC reads as under:

"34. Acts done by several persons in furtherance of common intention.--When a 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 reading of the above provision makes it clear that the burden lies on the prosecution to prove that the actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concept. Further, where the evidence did not establish that particular accused has dealt blow the liability would devolve on others also who were involved with common intention and such conviction in those cases are not sustainable.

XXXX XXXX XXXX

74. There is no bar in convicting the accused under substantive section read with Section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all. It is also settled position that in order to convict a person vicariously liable under Section 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts in order to apply Section 34, apart from the fact that there should be two or more accused.

Two facts must be established, namely, (a) common intention,

(b) participation of accused in the commission of an offence. It requires a prearranged plan and presupposes prior concept. Therefore, there must be prior meeting of minds. It can also be developed on the spur of the moment but there must be prearrangement or premeditated concept.

XXXX XXXX XXXX

76. We have already pointed out that in order to seek the aid of Section 34 IPC, it is not necessary that individual act of the accused persons has to be proved by the prosecution by direct evidence. Again, as mentioned above, common intention has to be inferred from proved facts and circumstances and once there exists common intention, mere presence of the accused persons among the assailants would be sufficient proof of their participation in the offence. We agree with the conclusion of the High Court that the trial court failed to explain or adduce sufficient reasons as to why the other part of the evidence that the accused persons named by the approver were found present in the place of occurrence could not be believed for the purpose of invoking Section 34 when two or more eyewitnesses corroborated the testimony of the approver (PW 6) specifically naming six accused persons including the two convicted appellants.

77. The existence of common intention amongst the participants in the crime is the essential element for application of Section 34 and it is not necessary that the acts of several persons charged with the commission of an offence jointly must be the same or identically similar. We have already pointed out from the evidence of eyewitnesses as well as the approver (PW 6) that one Uttam Shil (A-8) was deployed at the place of meeting at Santinagar for the purpose of giving intimation to other accused persons about the movement of the deceased. It is also seen from the evidence that one more accused was stationed on the shore of the river near Bagan Bazar. It is also seen from the evidence that after the meeting, when the boat carrying Tapan Chakraborty and other eyewitnesses was about to reach Bagan Bazar shore, accused Anil Das (A-1) who was deployed there suddenly left

towards Bagan Bazar and within few minutes 10 accused persons rushed to the boat from Bagan Bazar. Thereafter, the occurrence took place. From the materials placed by the prosecution, particularly, from the eyewitnesses, the common intention can be inferred among the accused persons including the six persons identified by the eyewitnesses".

30. In the light of above discussion, we find no illegality or

material irregularity in the impugned judgment. The appeal filed by the

appellant is dismissed.

31. The appellant is directed to surrender and serve the remainder

of his sentence. For this purpose, he shall appear before the Trial court on

28th September, 2012. The Registry shall transmit the Trial Court records

forthwith to ensure compliance with the judgment.

(S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE SEPTEMBER 14, 2012/tr