Full Judgment Text
2023 INSC 1068
NonReportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1515 OF 2011
Maheshwari Yadav & Anr. … Appellants
versus
The State of Bihar … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
This is an appeal preferred by the accused nos.1 and 2.
1.
The learned Trial Court convicted accused no.3 – Paro Yadav,
for the offence punishable under Section 302 of the Indian
Penal Code, 1860 (for short, ‘IPC’). The appellants were
convicted for the offences punishable under Section 302 read
with Section 34 of the IPC and Section 325 read with Section
34 of the IPC. The appellants were sentenced to undergo life
imprisonment for the offence punishable under Section 302
read with Section 34 of the IPC. They were also sentenced to
Signature Not Verified
undergo rigorous imprisonment for three years for the offence
Digitally signed by
Anita Malhotra
Date: 2023.12.13
17:10:29 IST
Reason:
punishable under Section 325 read with Section 34 of the
Criminal Appeal No.1515 of 2011 Page 1 of 9
IPC. Separate appeals were preferred by the appellants and
accused no.3 before the Patna High Court. By the impugned
th
judgment and order dated 7 October 2005, the appeals have
been dismissed. The accused no.3 – Paro Yadav filed a
Petition for Special Leave to Appeal (Criminal) no.4802 of
th
2006, which this Court dismissed vide its order dated 11
December 2006.
We are setting out the prosecution case in brief. PW4
2.
(Jagdish Manjhi) is the first informant. The incident occurred
th
on 10 March 1997 when the PW4 visited Village
Shrirampur to participate in a Baraat. At about noon, he
went to VillageChhitmakhanpur to meet his maternal
nephew Gholti Yadav (deceased). After that, PW4 and his
cousin Narayan Manjhi (PW5) and Gholti Yadav (deceased)
proceeded to catch a train. They crossed the railway line, and
when they were moving further, they found appellant no.1 –
Maheshwari Yadav, standing there with a lathi (stick) in his
hand. On seeing appellant no.1, the deceased warned PW4
not to talk to appellant no.1. In the meanwhile, appellant
no.2 – Mannu Yadav, and the accused no.3 came there. The
appellant no.2 exhorted the accused no.3 to kill the deceased.
The deceased tried to run away when the accused no.3 fired a
bullet at him by a musket. The bullet hit the back of the
deceased. He tried to run away. However, he fell near the
wheat field of one Chadi Rai. After that, all the three accused
started assaulting the PW4. When PW5 tried to intervene,
he was also assaulted by the accused no.3. The accused no.3
Criminal Appeal No.1515 of 2011 Page 2 of 9
assaulted PW4 with the butt of the musket. On hearing the
noise, villagers came there when the accused ran away.
According to the prosecution case, apart from PW4 and PW
5, the incident was witnessed by PW1 (Rinku Yadav), PW2
(Pinku Yadav) and PW3 (Subodh Pd. Yadav). Jawahar Yadav
and one Tribedanand were also the witnesses who were not
examined.
The motive pleaded by the prosecution is that two
3.
months before the incident, the accused no.3 had brought a
horse of one Awadhi Yadav by committing theft. After
learning about the theft, Awadhi Yadav called upon the
accused no.3 to return the horse. When the accused no.3
tried to assault the said Awadhi Yadav, the deceased saved
him, and therefore, the accused no.3 was annoyed with the
deceased. Both the courts have believed the testimony of the
eyewitnesses.
SUBMISSIONS
4. The submission of the learned counsel appearing for the
appellants is that the only allegation against the appellant
no.2 was of exhortion. There was no allegation against
appellant no.1 of assaulting the deceased. The submission of
the learned counsel appearing for the appellants is that there
was no evidence of common intention shared by the
appellants and the accused no.3. Therefore, the appellants
could not have been convicted for the offences punishable
under Section 302 with the aid of Section 34 of the IPC. His
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submission is that apart from the fact that the motive was not
proved, in any case, even according to the prosecution, there
was enmity between the deceased and the accused no.3. He
submitted that PW1, PW2 and PW3 were the sons and real
brother of the deceased respectively and were interested
witnesses. It is doubtful whether PW4 and PW5 had
actually seen the incident. According to the prosecution case,
PW4, PW5, and the deceased were proceeding towards the
railway station to board a train. However, the version of PW4
and PW5 is that they were proceeding towards the
bus/motor stand. He submitted that the conduct of PW1,
PW2 and PW3 was unnatural as they did not try to save the
deceased. He pointed out that two alleged eyewitnesses have
not been examined, and, therefore, adverse inference deserves
to be drawn against the prosecution. He submitted that there
was a delay of eight hours in registering the First Information
Report.
5. The learned counsel appearing for the respondent–State
of Bihar submitted that as the conviction of the accused no.3
has been confirmed by this Court, no interference can be
made with the conviction of the appellants who had been
convicted with the aid of Section 34 of the IPC. He urged that
both the courts have appreciated the evidence of the eye
witnesses and have believed their version. Hence, no
interference is called for.
Criminal Appeal No.1515 of 2011 Page 4 of 9
CONSIDERATION OF SUBMISSIONS
6. We may note here that the accused no.3 was charged
only under Section 302 of the IPC and Section 34 was not
applied. Section 34 of the IPC has been applied only to the
present appellants. One of the questions is when the main
accused, who is the author of the fatal injuries sustained by
the deceased, was not charged with Section 34 of the IPC,
whether conviction of the appellants can be sustained.
Section 34 of the IPC reads thus:
“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. ”
7. Section 34 essentially introduces vicarious liability. In a
given case, where the offence is punishable under Section 302
of IPC, when the common intention is proved, but no overt act
of assaulting the deceased is attributed to the accused who
have been implicated based on Section 34, vicarious liability
under Section 34 will be attracted. In this case, the bullet
was fired by the accused no.3, as a result of which, the
deceased lost his life. Even without the applicability of
Section 34, the accused no.3 could have been convicted for
the offence punishable under Section 302 of the IPC. To
punish him under Section 302, it was not necessary to apply
Section 34 of the IPC. Section 34 was applied to the
appellants as they were sought to be roped in by alleging that
Criminal Appeal No.1515 of 2011 Page 5 of 9
they shared common intention with accused no.3. To bring a
case within Section 34, it is not necessary to prove prior
conspiracy or premeditation. It is possible to form a common
intention just before or during the occurrence.
One of the grounds of challenge is the failure to examine
8.
other eyewitnesses. However, in the facts of the case, a total
of five eyewitnesses were examined. It is not axiomatic that
in every case where the eyewitnesses are withheld from the
court, an adverse inference must be drawn against the
prosecution. The totality of the circumstances must be
considered for concluding whether an adverse inference could
be drawn. We have perused the notes of evidence of the
material witnesses.
9. PW1 to PW5 are eyewitnesses. They are consistent on
the role played by the accused no.3 of using a musket for
firing the bullet at the deceased. They have deposed that the
present appellants were present at the scene of occurrence
along with the accused no.3. The appellants were carrying
sticks in their hands, and the accused no.3 had a musket
which was used to fire the bullet at the deceased. The said
witnesses have deposed that the appellants assaulted PW4
(Jagdish – the first informant). As found by the High Court
and the Trial Court, PW4 suffered a fracture. We may note
here that the evidence of PW5 has been discarded by the
High Court mainly on the ground that he failed to identify
accused no.3, who was the main accused.
Criminal Appeal No.1515 of 2011 Page 6 of 9
PW1 to PW4 stated that appellant no.2 exhorted the
10.
accused no.3 to fire a bullet at the deceased. PW1 is the son
of the deceased. PW4 (Jagdish) and PW5 (Narayan) are the
brothersinlaw of the deceased, and therefore, they are the
maternal uncles of PW1. PW2 is the son of the deceased,
and PW3 is the deceased's brother. It is true that PW1 has
stated that at the time of the assault, other persons named by
him were present. They have not been examined as
witnesses. We have carefully perused the crossexamination
of PW1 to PW3. Nothing is brought on record that will
shake the credibility of the said witnesses. As regards PW4,
he stated that he, along with PW5 and the deceased, started
proceeding towards the bus stand. When they arrived near
the railway station, they saw the three accused. A
contradiction is sought to be pointed out by the learned
counsel appearing for the appellants by stating that in the
FIR, it is stated by the PW4 that he along with his brother
and the deceased, were going towards the railway station to
catch a train and he did not state in the FIR that they were
going towards the bus stand. This inconsistency is not
significant, as his version of the main incident has not been
shaken at all. It is true that the eyewitnesses examined
before the court were close relatives of the deceased. That
itself is no ground to discard their testimony. However, their
evidence may require closer scrutiny. After having made
closer scrutiny, we find their versions are of a very sterling
quality. Moreover, all the persons named by PW1 who were
present were not independent witnesses. In a given case,
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when independent witnesses are available who are not
connected with the rival parties and the prosecution omits to
examine them by confining its case to examining related
witnesses, an adverse inference can undoubtedly be drawn
against the prosecution. When the evidence of the eye
witnesses is of sterling quality, an adverse inference need not
be drawn. Quality is more important than quantity.
Merely because they made no attempt to save the
11.
deceased or resist the accused is no ground by itself to
disbelieve their case. The accused were carrying sticks and a
gun. Therefore, the conduct of the appellants cannot be said
to be unnatural.
12. The appellants were together and were in the company
of the accused no.3. Obviously, they acted in concert. The
appellants were carrying lathi, and the accused no.3, was
moving with a musket. There was time available for the
meeting of minds. Thus, the existence of common intention
will have to be accepted.
13. Hence, we find every justification for convicting the
appellants by both the Courts. Accordingly, we find no merit
in the case, and the appeal is dismissed. As the appellants
are on bail, we direct the appellants to surrender before the
Trial Court within one month from today to undergo the
remaining sentence.
Criminal Appeal No.1515 of 2011 Page 8 of 9
As and when they undergo the requisite period of
14.
sentence and qualify for consideration for a grant of
permanent remission as per the applicable policy, the State
Government shall consider their case in accordance with the
law.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Pankaj Mithal)
New Delhi;
December 13, 2023.
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