SHISHPAL @ SHISHU versus THE STATE (NCT OF DELHI) on 11 July 2022

1. These two appeals have been filed by A1 and A3 respectivelyto overturn the conviction sentencing them for life for the offencepunishable under Section 302 read with Section 34 of the Indian PenalCode, 1860 (for short ‘IPC’) by the learned Additional Sessions Judge(East) FTC: E-Court, Karkardooma Court, Delhi, as confirmed by theDivision Bench of the High Court of Delhi. Of the three accusedconvicted, only two are before us. The overt act attributed as againstthese two accused on the basis of Section 34 IPC being identical, wedeem it appropriate to pass a common order.

2. On 10.01.2010 at about 8.00 pm, the deceased and PW4 werestanding in the queue before a liquor shop. A-2 (not before us) attackedthe deceased by causing a single injury with a knife while the appellantscaught hold of him. All the accused reportedly dragged the deceasedfrom the queue of the liquor shop and committed the offence they werecharged with.

3. Before the trial Court, the prosecution examined 22 witnessesas against 8 by the defence. PW1 is stated to be the wife of the deceased,though there was a candid admission that her first marriage was notdissolved legally. It is her version that all the accused came to the houseof the deceased, one of them, namely, the appellant in Criminal AppealNo. 1053 of 2015 (A-1), went inside the house and made inquiries aboutthe whereabouts of the deceased in an agitated manner. A-1 told herthat he was Amit (A-2). Thereafter, they left the place, found the accused,and committed the offence. She identified A-1 as A-2. It is her furtherdeposition that she did see A-1 and A-2 in the police station on 12.01.2010when her statement was recorded. Though she went to the place ofoccurrence on being informed, she was not seen in the hospital by P.W.11,the Investigation Officer, who initiated the investigation, despite hispresence in the hospital till 9.15 pm. It is her further evidence that shedid make a call to the police station by using the cellphone owned byPW5, who incidentally turned hostile.

4. Though the evidence of PW1 was taken note of in favour ofthe prosecution by the trial court, the High Court raised serious doubts,especially with respect to the identification made with respect to A1 andA2. The High Court further held that there was no reason for the accused A

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Ato go into the house of the deceased, in which case motive has not beenestablished.

5. PW2 is the member of the family of the deceased. He deniedrecording of his statement and stated that his thumb impression wastaken on a blank paper by the police. With the permission of the Court,Bhe was cross-examined by the prosecution. However, his statement thatNitin (PW4) was with him from 7.00 pm to 10.00 pm on the date ofoccurrence i.e. 10.01.2010 was not impeached and so also his furtherstatement that both of them went to sleep thereafter.

6. PW3 is the sterling witness of the prosecution upon whom muchCreliance has been made by both the Courts. He was cross-examined bythe prosecution on the only issue qua A-1, on his presence. This witnessis a seasoned one as he has deposed at least on seven occasions infavour of the police and also admitted to have received a certain amountof money. Obviously, he is well-known to the police having a shop justopposite the police station. This part of the evidence was also notDquestioned by the prosecution. It is the evidence of PW3 that he saw A-2 and A-3 dragging the deceased, while A-2 has stabbed him. Thus,there was a categorical denial of the presence of A-1. Contrary to thecase of the prosecution, he has stated that both the accused ran awayon foot. The further testimony of this witness is that the deceased is aEknown pick pocket and the occurrence happened because he picked thepocket of the accused. This is also in variance with the theory projectedby the prosecution. Certainly, we do not find the evidence of this witnesstrustworthy. He is obviously a stock witness, and therefore cannot berelied upon, particularly when “reputation is a fact” under Section 3 ofthe Indian Evidence Act. We believe, both the Courts ought not to haveFplaced reliance on the testimony of PW3 who happens to be the soleeye-witness. We wish to place reliance upon the judgment of this courtin Tarseem Kumar v. Delhi Admn., 1994 Supp (3) SCC 367:

“18. The only remaining circumstance to be dealt with is thealleged disclosure made by the appellant and recovery ofGbloodstained clothes belonging to the appellant at his instance. Inview of Section 27 of the Evidence Act, there was no difficulty inaccepting this evidence and to consider the same along with othercircumstances if proved beyond all reasonable doubt. But theunfortunate feature of the present case, which has also beenHnoticed by the trial court, is that many witnesses who can be said to be the stock witnesses of the police, have been produced onbehalf of the prosecution to prove important circumstances. Inthis background the court has to be very cautious about theinvestigation done by the police in this case. The circumstanceregarding the recovery of the bloodstained clothes belonging tothe appellant, on the disclosure made by him, has to be examinedin the background of the witnesses like PW 9, PWs 8 and 30,PWs 2 and 3, on whom it is difficult to place any reliance for thereasons mentioned above. It is not possible to hold that the vitallinks of the prosecution case which are necessary to be provedbefore a finding can be recorded, that the chain of evidence iscomplete, have been proved beyond reasonable doubt. If theevidence of PWs 2 and 3 are rejected, then the main circumstantialevidence that the appellant was in exclusive possession of theroom in question and he had got the pit dug by PWs 2 and 3 inwhich the dead body of the victim was found in the night of 18-10-1974, shall be deemed to have not been proved.”

7. Even assuming that the testimony of PW3 can be relied upon inpart, in the absence of any corroboration with any other evidence, it willbe unwise to convict the appellants on that basis alone. In this connection,a reference can be made to the decision of this Court in RajeshYadav and Anr. v. State of Uttar Pradesh, 2022 SCC OnLine SC150, wherein the classical decision rendered by this Court in the case ofVadivelu Thevar v. State of Madras, 1957 SCR 981 on the appreciationof evidence under such circumstances has been taken note of, “Appreciation of Evidence:

“Appreciation of Evidence:

20. We have already indicated different classification of evidence.While appreciating the evidence as aforesaid along with the mattersattached to it, evidence can be divided into three categories broadlynamely, (i) wholly reliable, (ii) wholly unreliable and (iii) neitherwholly reliable nor wholly unreliable. If evidence, along withmatters surrounding it, makes the court believe it is wholly reliablequa an issue, it can decide its existence on a degree of probability.Similar is the case where evidence is not believable. Whenevidence produced is neither wholly reliable nor wholly unreliable,it might require corroboration, and in such a case, court can alsotake note of the contradictions available in other matters. Theaforesaid principle of law has been enunciated in the celebrated AB

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decision of this Court in Vadivelu Thevar v. State of Madras, 1957SCR 981:

“In view of these considerations, we have no hesitation in holdingthat the contention that in a murder case, the court should insistupon plurality of witnesses, is much too broadly stated. Section134 of the Indian Evidence Act has categorically laid it downthat “no particular number of witnesses shall in any case, berequired for the proof of any fact”. The legislature determined,as long ago as 1872, presumably after due consideration of thepros and cons, that it shall not be necessary for proof or disproofof a fact to call any particular number of witnesses. In England,both before and after the passing of the Indian Evidence Act,1872, there have been a number of statutes as set out in Sarkar’sLaw of Evidence — 9[th] Edn., at pp. 1100 and 1101, forbiddingconvictions on the testimony of a single witness. The IndianLegislature has not insisted on laying down any such exceptionsto the general rule recognized in s.134 quoted above. Thesection enshrines the well-recognized maxim that “Evidencehas to be weighed and not counted”. Our Legislature has givenstatutory recognition to the fact that administration of justicemay be hampered if a particular number of witnesses were tobe insisted upon. It is not seldom that a crime has beencommitted in the presence of only one witness, leaving asidethose cases which are not of uncommon occurrence, wheredetermination of guilt depends entirely on circumstantialevidence. If the Legislature were to insist upon plurality ofwitnesses, cases where the testimony of a single witness onlycould be available in proof of the crime, would go unpunished.It is here that the discretion of the presiding judge comes intoplay. The matter thus must depend upon the circumstances ofeach case and the quality of the evidence of the single witnesswhose testimony has to be either accepted or rejected. If sucha testimony is found by the court to be entirely reliable, there isno legal impediment to the conviction of the accused personon such proof. Even as the guilt of an accused person may beproved by the testimony of a single witness, the innocence ofan accused person may be established on the testimony of asingle witness, even though a considerable number of witnessesmay be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with thequality and not with the quantity of the evidence necessary forproving or disproving a fact. Generally speaking, oral testimonyin this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficultyin coming to its conclusion either way — it may convict ormay acquit on the testimony of a single witness, if it is found tobe above reproach or suspicion of interestedness, incompetenceor subornation. In the second category, the court, equally hasno difficulty in coming to its conclusion. It is in the third categoryof cases, that the court has to be circumspect and has to lookfor corroboration in material particulars by reliable testimony,direct or circumstantial. There is another danger in insisting onplurality of witnesses. Irrespective of the quality of the oralevidence of a single witness, if courts were to insist on pluralityof witnesses in proof of any fact, they will be indirectlyencouraging subornation of witnesses. Situations may arise anddo arise where only a single person is available to give evidencein support of a disputed fact. The court naturally has to weighcarefully such a testimony and if it is satisfied that the evidenceis reliable and free from all taints which tend to render oraltestimony open to suspicion, it becomes its duty to act uponsuch testimony. The law reports contain many precedentswhere the court had to depend and act upon the testimony of asingle witness in support of the prosecution. There areexceptions to this rule, for example, in cases of sexual offencesor of the testimony of an approver; both these are cases inwhich the oral testimony is, by its very nature, suspect, beingthat of a participator in crime. But, where there are no suchexceptional reasons operating, it becomes the duty of the courtto convict, if it is satisfied that the testimony of a single witnessis entirely reliable. We have, therefore, no reasons to refuse toact upon the testimony of the first witness, which is the onlyreliable evidence in support of the prosecution.”

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A8. PW4 is the minor brother of the deceased. The evidence ofPW2, as discussed by us, is in stark contrast to the present witness.Even otherwise, this witness is not an eye-witness. His presence is alsodoubtful for the reason that even he was not seen in the hospital byPW11, the police officer who started the investigation. There is no materialto substantiate the evidence that he has been threatened subsequently.BThis witness goes to the extent of saying that Vipin, who is producedbefore the Court and shown to him, is not his real brother, though hismother admits it. We may also note that he has stated in his cross-examination that he did see A1 and A2 in the police station either on11.01.2010 or 12.01.2010 and the police told him that it is they who killedChis brother. Suffice it to state that the evidence of this witness does notinspire confidence.

9. PW5 is the witness whose cellphone was used to make a callto the police station. He has deposed that after two to three months, hissignatures were obtained on a blank paper and thus, he was declaredDhostile. It is to be noted that PW5 also denies the presence of PW1 at the place of occurrence and so also PW4.

10. PW6 is the brother of A1. It is his car which is stated to havebeen used by the accused, who fled away by travelling in the said vehicleafter the occurrence. He too turned hostile and in any case, the evidenceEof PW3 itself is contrary to the case of the prosecution, as it is hisevidence that they ran away on foot.

11. PW11 is the Investigating Officer who began the investigation.This witness, as stated earlier, has not seen any of the relatives of thedeceased, including PWs 1, 2 and 4 in the hospital, despite his presenceFin the hospital from 8.50 pm to 9.15 pm. Not only that, he has initiallydeposed even in his chief-examination, that the eye-witness was oneTirath Ram, father of PW3. Though this witness is part of the investigation,the evidence rendered actually helps the case of the defence,notwithstanding his re-examination by the prosecution through which hechanged his version that it was PW3 who was the eye-witness.G

12. PW20 is the Investigating Officer, who took up the investigationfrom PW11. He along with PW9 speaks about the recovery made inpursuance of the arrest of A1 and A2. No independent witness wasmade to sign the recovery mahazar. We are conscious of the fact thatlaw does not require such a procedure to be adopted at all times. However, H

the strong suspicion is due to the fact that the knife used by A2 wasrecovered from the place of A1 and both of them were taken to theplace on their statement made under Section 27 of the Indian EvidenceAct. Thus, the so called recovery raises a serious doubt, inuring to thebenefit of the defence.

13. Both the appellants have been charged only based upon therule of evidence available under Section 34 of the IPC. Section 34 doesnot constitute an offence by itself, but creates a constructive liability.The foundational facts will have to be proved by the prosecution. Notonly the occurrence, but the common intention, has to be proved beyondreasonable doubt. In Jasdeep Singh alias Jassu v. State of Punjab,(2022) 2 SCC 545 this Court considered the scope of Section 34 IPC

as follows:

“17. We shall first go back into the history to understand Section34 IPC as it stood at the inception and as it exists now.

18. On a comparison, one could decipher that the phrase “infurtherance of the common intention” was added into the statutebook subsequently. It was first coined by Barnes Peacock, C.J.presiding over a Bench of the Calcutta High Court, while deliveringits decision in R. v. Gorachand Gope [R. v. Gorachand Gope, 1866SCC OnLine Cal 16] which would have probably inspired andhastened the amendment to Section 34 IPC, made in 1870. Thefollowing passage may lend credence to the aforesaid possibleview : (SCC OnLine Cal)

“It does not follow that, because they were present with theintention of taking him away, that they assisted by their presencein the beating of him to such an extent as to cause death. If the A

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object and design of those who seized Amordi was merely totake him to the thannah on a charge of theft, and it was no partof the common design to beat him, they would not all be liablefor the consequence of the beating merely because they werepresent. It is laid down that, when several persons are incompany together engaged in one common purpose, lawful orunlawful, and one of them, without the knowledge or consentof the others, commits an offence, the others will not be involvedin the guilt, unless the act done was in some manner infurtherance of the common intention. It is also said, although aman is present when a felony is committed, if he take no partin it, and do not act in concert with those who commit it, he willnot be a principal merely because he did not endeavour toprevent it or to apprehend the felon. But if several persons goout together for the purpose of apprehending a man and takinghim to the thannah on a charge of theft, and some of the partyin the presence of the others beat and ill-treat the man in acruel and violent manner, and the others stand by and look onwithout endeavouring to dissuade them from their cruel andviolent conduct, it appears to me that those who have to dealwith the facts might very properly infer that they were allassenting parties and acting in concert, and that the beatingwas in furtherance of a common design. I do not know whatthe evidence was, all that I wish to point out is, that all who arepresent do not necessarily assist by their presence every actthat is done in their presence, nor are consequently liable to bepunished as principals.”

19. Before we deal further with Section 34 IPC, a peep at Section33 IPC may give a better understanding. Section 33 IPC bringsinto its fold a series of acts as that of a single one. Therefore, inorder to attract Sections 34 to 39 IPC, a series of acts done byseveral persons would be related to a single act which constitutesa criminal offence. A similar meaning is also given to the word“omission”, meaning thereby, a series of omissions would alsomean a single omission. This provision would thus make it clearthat an act would mean and include other acts along with it.

20. Section 34 IPC creates a deeming fiction by infusing andimporting a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on theprosecution to prove the common intention to the satisfaction ofthe court. The quality of evidence will have to be substantial,concrete, definite and clear. When a part of evidence producedby the prosecution to bring the accused within the fold of Section34 IPC is disbelieved, the remaining part will have to be examinedwith adequate care and caution, as we are dealing with a case ofvicarious liability fastened on the accused by treating him on a parwith the one who actually committed the offence.

21. What is required is the proof of common intention. Thus, theremay be an offence without common intention, in which caseSection 34 IPC does not get attracted.

22. It is a team effort akin to a game of football involving severalpositions manned by many, such as defender, mid-fielder, striker,and a keeper. A striker may hit the target, while a keeper maystop an attack. The consequence of the match, either a win or aloss, is borne by all the players, though they may have their distinctroles. A goal scored or saved may be the final act, but the result iswhat matters. As against the specific individuals who had impactedmore, the result is shared between the players. The same logic isthe foundation of Section 34 IPC which creates shared liability onthose who shared the common intention to commit the crime.

23. The intendment of Section 34 IPC is to remove the difficultiesin distinguishing the acts of individual members of a party, actingin furtherance of a common intention. There has to be asimultaneous conscious mind of the persons participating in thecriminal action of bringing about a particular result. A commonintention qua its existence is a question of fact and also requiresan act “in furtherance of the said intention”. One need not searchfor a concrete evidence, as it is for the court to come to a conclusionon a cumulative assessment. It is only a rule of evidence and thusdoes not create any substantive offence.

24. Normally, in an offence committed physically, the presence ofan accused charged under Section 34 IPC is required, especiallyin a case where the act attributed to the accused is one ofinstigation/exhortation. However, there are exceptions, in particular,when an offence consists of diverse acts done at different timesand places. Therefore, it has to be seen on a case-to-case basis.

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25. The word “furtherance” indicates the existence of aid orassistance in producing an effect in future. Thus, it has to beconstrued as an advancement or promotion.

26. There may be cases where all acts, in general, would notcome under the purview of Section 34 IPC, but only those done infurtherance of the common intention having adequate connectivity.When we speak of intention it has to be one of criminality withadequacy of knowledge of any existing fact necessary for theproposed offence. Such an intention is meant to assist, encourage,promote and facilitate the commission of a crime with the requisiteknowledge as aforesaid.

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27. The existence of common intention is obviously the duty ofthe prosecution to prove. However, a court has to analyse andassess the evidence before implicating a person under Section 34IPC. A mere common intention per se may not attract Section 34IPC, sans an action in furtherance. There may also be cases wherea person despite being an active participant in forming a commonintention to commit a crime, may actually withdraw from it later.Of course, this is also one of the facts for the consideration of thecourt. Further, the fact that all accused charged with an offenceread with Section 34 IPC are present at the commission of thecrime, without dissuading themselves or others might well be arelevant circumstance, provided a prior common intention is dulyproved. Once again, this is an aspect which is required to be lookedinto by the court on the evidence placed before it. It may not berequired on the part of the defence to specifically raise such aplea in a case where adequate evidence is available before thecourt.”

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14. Applying the said principles, we are unable to come to theconclusion that the conviction rendered by both the Courts can besustained in the eye of law. Both the Courts made reliance upon thenon-cooperation on the part of the accused to undergo the testGidentification parade by drawing an adverse inference. Unfortunately,the evidence available on record was not looked into as the witnesseshad already been exposed to the accused in the police station. After all,the test identification parade is only a part of an investigation, and therefore,nothing more can be attached to it. It is the duty of the prosecution toHprove its case beyond reasonable doubt. Both the Courts have fixed the

onus on the accused. The High Court after seriously doubting the evidenceof PW1 should have extended the benefit of doubt as the evidence ofPW3 ought not to have been accepted for the reasons stated above.The evidence as deposed by the prosecution witnesses itself woulddemonstrate that the version of the prosecution may not be correct. Ifthe reasoning of the High Court is accepted, even then, the offenceunder Section 302 IPC may not be made out. However, we do not wishto go into the said issue as we believe that the prosecution has not beenable to sustain the charge as against these appellants, framed underSection 302 read with Section 34 IPC. There has to be adequate materialto fasten the appellants on the basis of constructive liability as Section34 IPC is nothing but a rule of evidence.

15. On the above analysis, we are inclined to set aside theconviction rendered by the learned Additional Sessions Judge (East) FTC:E-Court, Karkardooma Court, Delhi as confirmed by the Division Benchof the High Court of Delhi. The appeals stand allowed and the appellantsare directed to be set at liberty.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.

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