{"id":170006,"date":"2004-08-09T00:00:00","date_gmt":"2004-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-ram-vs-state-of-u-p-on-9-august-2004"},"modified":"2018-01-18T19:03:26","modified_gmt":"2018-01-18T13:33:26","slug":"hari-ram-vs-state-of-u-p-on-9-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-ram-vs-state-of-u-p-on-9-august-2004","title":{"rendered":"Hari Ram vs State Of U.P on 9 August, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hari Ram vs State Of U.P on 9 August, 2004<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (crl.)  827 of 2004\n\nPETITIONER:\nHari Ram\n\nRESPONDENT:\nState of U.P.\n\nDATE OF JUDGMENT: 09\/08\/2004\n\nBENCH:\nARIJIT PASAYAT & C.K. THAKKER\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(Arising out of SLP (CRL) 4467\/2003)<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tAppellant was convicted for offence punishable under Section 302
\nread with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and
\nwas sentenced to undergo imprisonment for life by learned Additional
\nDistrict and Sessions Judge, Bareilly. Such conviction and sentence were
\nconfirmed by the impugned judgment of the Allahabad High Court.\n<\/p>\n
The prosecution version in a nutshell is as follows:\n<\/p>\n
\tKundan Lal (hereinafter referred to as ‘deceased’) was resident of
\nvillage Siraura in district Bareilly, was real brother of Gendan Lal, the father
\nof the appellant Hari Ram and co-accsued Paramanand. Gendan Lal had
\nanother son Hardwari.  Deceased had no male issue and had only one
\ndaughter named Smt. Nanhi, who was married to Ajudhia (P.W.1). Deceased
\nowned about 34 Bighas agricultural land, which was jointly recorded in his
\nname and in the name of Gendan Lal, but each of them had got separated
\ntheir share by mutual agreement.  Deceased had given his land on crop share
\nbasis. Since deceased had no male issue, the appellant and co-accused
\nParmanand wanted to take his land and had also threatened him that in case
\nhe did not transfer his land in their favour, they would kill him.  On 1.4.1980
\nat about 12.30 P.M. Parmanand again threatened deceased to transfer his
\nland in his favour otherwise he would kill him.  Deceased had lodged report
\nof the said incident at Police Station-Bhojipura.\n<\/p>\n
\tApprehending danger to his life at village Sirura deceased had come
\nto his daughter’s house at village Ashpur and was residing there after
\n1.4.1980.  After about a month Gendan Lal came to the deceased at village
\nAshpur and apologized for mistake of his sons and asked him to go to his
\nvillage, but deceased refused to do so.  Gendan Lal then asked him to give
\nhis land to him on crop share basis. Deceased agreed to it and gave his land
\nto Gendan Lal.  Thereafter, Gendan Lal had sent wheat of his share to
\ndeceased.\n<\/p>\n
\tOn 12.11.1980 i.e. a day before the date of occurrence of this case,
\nHardwari, brother of the appellant came to deceased at village Ashpur at
\nabout 10.00 A.M. and asked him to go to his house to take his share of
\npaddy. Deceased agreed to it and told that he would come next day. On
\n13.11.1980 at about 8.00 A.M. deceased along with Ajudhia (P.W.1) and
\nMangli (P.W.2) started for village Siraura in a bullock cart and they reached
\nat the Chaupal of appellant and Paramanand who asked deceased to go to
\nKhalihan to take the paddy. Deceased proceeded to Khalihan along with
\nappellant and Parmanand as well as Ajudhia (P.W.1) and Mangali (P.W.2).
\nWhen they reached at a distance of about one furlong towards west of the
\nvillage abadi in between Jwar Arhar and Jwar Patsan appellant whipped out
\na country made pistol from his waist and pointing towards Ajudhia (P.W.1)
\nand Mangali (P.W.2) asked them to go back.  Due to fear Ajudhia and
\nMangali receded back about 8 to 10 paces.  Appellant stopped deceased.
\nThen Parmanand whipped out a sickle from his waist and inflicted injuries
\non his abdomen.  When Ajudhia (P.W.1) and Mangli (P.W.2) tried to raise
\nalarm, appellant again threatened them on the point of pistol that they should
\nnot raise alarm.  Deceased fell down and died on the spot.  Ajudhia (P.W.1)
\ncame to Pradhan of the village and narrated the entire incident.  Village
\npeople also assembled there.  Thereafter they asked him to lodge report.
\nAjudhia (P.W.1) got prepared the report from one Niranjan and lodged the
\nsame at Police Station Bhojipura at 1.00 P.M.\n<\/p>\n
Chik FIR was prepared by Head constable Mandan Mohan Chaubey,
\nwho made an endorsement of the same at G.D. report and registered a case
\nunder Section 302 I.P.C. against both Parmanand and Hari Ram.\n<\/p>\n
\tA charge-sheet was placed and they faced trial. The prosecution
\nmainly relied on the evidence of P.Ws. 1 & 2 who were stated to be
\neyewitnesses. They were found reliable, credible and their version was held
\nto be cogent.  Accused Parmanand was found guilty of offence punishable
\nunder Section 302 IPC while appellant was found guilty of offence
\npunishable under Section 302 read with Section 34 IPC. The trial Court’s
\njudgment was affirmed by a Division Bench of the Allahabad High Court by
\nthe impugned judgment.\n<\/p>\n
\tIn support of the appeal learned counsel for the appellant submitted
\nthat the background scenario as projected by the prosecution does not show
\nthat the appellant had any role to play in the alleged commission of offence
\nand, therefore, Section 34 could not be applied. It was submitted that P.Ws.
\n1 and 2 were related to the deceased and were not independent witnesses.\n<\/p>\n
\tLearned counsel for the State supported the judgments of the Courts
\nbelow and submitted that the accusations have been fully established and
\nSection 34 IPC has been rightly applied.\n<\/p>\n
Section 34 has been enacted on the principle of joint liability in the
\ndoing of a criminal act. The Section is only a rule of evidence and does not
\ncreate a substantive offence. The distinctive feature of the Section is the
\nelement of participation in action. The liability of one person for an offence
\ncommitted by another in the course of criminal act perpetrated by several
\npersons arises under Section 34 if such criminal act is done in furtherance of
\na common intention of the persons who join in committing the crime. Direct
\nproof of common intention is seldom available and, therefore, such intention
\ncan only be inferred from the circumstances appearing from the proved facts
\nof the case and the proved circumstances. In order to bring home the charge
\nof common intention, the prosecution has to establish by evidence, whether
\ndirect or circumstantial, that there was plan or meeting of mind of all the
\naccused persons to commit the offence for which they are charged with the
\naid of Section 34, be it pre-arranged or on the spur of moment; but it must
\nnecessarily be before the commission of the crime.  The true contents of the
\nSection are that if two or more persons intentionally do an act jointly, the
\nposition in law is just the same as if each of them has done it individually by
\nhimself.  As observed in Ashok Kumar v. State of Punjab (AIR<\/a> 1977 SC\n<\/p>\n
109), the existence of a common intention amongst the participants in a
\ncrime is the essential element for application of this Section. It is not
\nnecessary that the acts of the several persons charged with commission of an
\noffence jointly must be the same or identically similar. The acts may be
\ndifferent in character, but must have been actuated by one and the same
\ncommon intention in order to attract the provision.\n<\/p>\n
\tAs it originally stood the Section 34 was in the following terms:\n<\/p>\n
“When a criminal act is done by several persons,
\neach of such persons is liable for that act in the same
\nmanner as if the act was done by him alone.”\n<\/p>\n
In 1870, it was amended by the insertion of the words “in furtherance
\nof the common intention of all” after the word “persons” and before the
\nword “each”, so as to make the object of Section 34 clear.  This position was
\nnoted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).\n<\/p>\n
\tThe Section does not say “the common intention of all”, nor does it
\nsay “and intention common to all”.  Under the provisions of Section 34 the
\nessence of the liability is to be found in the existence of a common intention
\nanimating the accused leading to the doing of a criminal act in furtherance of
\nsuch intention. As a result of the application of principles enunciated in
\nSection 34, when an accused is convicted under Section 302 read with
\nSection 34, in law it means that the accused is liable for the act which caused
\ndeath of the deceased in the same manner as if it was done by him alone.
\nThe provision is intended to meet a case in which it may be difficult to
\ndistinguish between acts of individual members of a party who act in
\nfurtherance of the common intention of all or to prove exactly what part was
\ntaken by each of them.  As was observed in Ch. Pulla Reddy and Ors. v.
\nState of Andhra Pradesh (AIR<\/a> 1993 SC 1899), Section 34 is applicable even
\nif no injury has been caused by the particular accused himself.  For applying
\nSection 34 it is not necessary to show some overt act on the part of the
\naccused.\n<\/p>\n
\tThe above position was highlighted recently Anil Sharma and Others
\nv. State of Jharkhand   [2004 (5) SCC 679].\n<\/p>\n
Section 34 IPC has clear application to the facts of the case and has
\nbeen rightly applied.\n<\/p>\n
\tThe plea that there is no independent witness is of no consequence.\n<\/p>\n
We shall first deal with the contention regarding interestedness of the
\nwitnesses for furthering prosecution version. Relationship is not a factor to
\naffect credibility of a witness.  It is more often than not that a relation would
\nnot conceal actual culprit and make allegations against an innocent person.
\nFoundation has to be laid if plea of false implication is made.  In such cases,
\nthe court has to adopt a careful approach and analyse evidence to find out
\nwhether it is cogent and credible.\n<\/p>\n
\tIn Dalip Singh and Ors.  v. The State of Punjab (AIR<\/a> 1953 SC 364) it
\nhas been laid down as under:-\n<\/p>\n
“A witness is normally to be considered independent
\nunless he or she springs from sources which are likely to
\nbe tainted and that usually means unless the witness has
\ncause, such as enmity against the accused, to wish to
\nimplicate him falsely.  Ordinarily a close relation would
\nbe the last to screen the real culprit and falsely implicate
\nan innocent person.  It is true, when feelings run high
\nand there is personal cause for enmity, that there is a
\ntendency to drag in an innocent person against whom a
\nwitness has a grudge along with the guilty, but
\nfoundation must be laid for such a criticism and the mere
\nfact of relationship far from being a foundation is often a
\nsure guarantee of truth.  However, we are not attempting
\nany sweeping generalization.  Each case must be judged
\non its own facts.  Our observations are only made to
\ncombat what is so often put forward in cases before us as
\na general rule of prudence.  There is no such general
\nrule. Each case must be limited to and be governed by its
\nown facts.”\n<\/p>\n
\tThe above decision has since been followed in Guli Chand and Ors.
\nv. State of Rajasthan<\/a> (1974 (3) SCC 698) in which Vadivelu Thevar v. State
\nof Madras (AIR<\/a> 1957 SC 614) was also relied upon.\n<\/p>\n
\tWe may also observe that the ground that the witness being a close
\nrelative and consequently being a partisan witness, should not be relied
\nupon, has no substance.  This theory was repelled by this Court as early as
\nin Dalip Singh’s case (supra) in which surprise was expressed over the
\nimpression which prevailed in the minds of the Members of the Bar that
\nrelatives were not independent witnesses. Speaking through Vivian Bose, J.
\nit was observed:\n<\/p>\n
“We are unable to agree with the learned Judges of the
\nHigh Court that the testimony of the two eyewitnesses
\nrequires corroboration.  If the foundation for such an
\nobservation is based on the fact that the witnesses are
\nwomen and that the fate of seven men hangs on their
\ntestimony, we know of no such rule.  If it is grounded on
\nthe reason that they are closely related to the deceased
\nwe are unable to concur.  This is a fallacy common to
\nmany criminal cases and one which another Bench of
\nthis Court endeavoured to dispel in  ‘Rameshwar v.
\nState of Rajasthan’ (AIR<\/a> 1952 SC 54 at p.59). We find,
\nhowever, that it unfortunately still persists, if not in the
\njudgments of the Courts, at any rate in the arguments of
\ncounsel.”\n<\/p>\n
\tAgain in Masalti and Ors.   v.  State of U.P.  (AIR<\/a> 1965 SC 202) this
\nCourt observed: (p, 209-210 para 14):\n<\/p>\n
“But it would, we think, be unreasonable to contend that
\nevidence given by witnesses should be discarded only on
\nthe ground that it is evidence of partisan or interested
\nwitnesses…….The mechanical rejection of such evidence
\non the sole ground that it is partisan would invariably
\nlead to failure of justice.  No hard and fast rule can be
\nlaid down as to how much evidence should be
\nappreciated.  Judicial approach has to be cautious in
\ndealing with such evidence; but the plea that such
\nevidence should be rejected because it is partisan cannot
\nbe accepted as correct.”\n<\/p>\n
\tAs observed by this Court in State of Rajasthan v. Teja Ram and Ors.
\n(AIR<\/a> 1999 SC 1776) the over-insistence on witnesses having no relation
\nwith the victims often results in criminal justice going away. When any
\nincident happens in a dwelling house or nearby the most natural witnesses
\nwould be the inmates of that house. It would be unpragmatic to ignore such
\nnatural witnesses and insist on outsiders who would not have even seen any
\nthing. If the Court has discerned from the evidence or even from the
\ninvestigation records that some other independent person has witnessed any
\nevent connecting the incident in question then there is justification for
\nmaking adverse comments against non-examination of such person as
\nprosecution witness. Otherwise, merely on surmises the Court should not
\ncastigate a prosecution for not examining other persons of the locality as
\nprosecution witnesses. Prosecution can be expected to examine only those
\nwho have witnessed the events and not those who have not seen it though
\nthe neighbourhood may be replete with other residents also.  (See Sucha
\nSingh and Anr. v. State of Punjab<\/a> (2003 (7) SCC 643)<\/p>\n
Appeal is without merit and deserves dismissal which we direct.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hari Ram vs State Of U.P on 9 August, 2004 Author: A Pasayat Bench: Arijit Pasayat, C.K. Thakker CASE NO.: Appeal (crl.) 827 of 2004 PETITIONER: Hari Ram RESPONDENT: State of U.P. DATE OF JUDGMENT: 09\/08\/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-170006","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHari Ram vs State Of U.P on 9 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hari-ram-vs-state-of-u-p-on-9-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Ram vs State Of U.P on 9 August, 2004 - 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