RELATIVES ARE NOT INTERESTED WITNESS: 15 During the course of his cross-examination, PW-1 was questioned in detail about the location of the incident and the position of the deceased when the bullet had hit him. No material inconsistency or contradiction has emerged from the evidence of the eyewitness. PW-2 – Saddu specifically deposed about the proximity of his house from the pond. He furnished a cogent reason to be present at the pond stating that he was freshening up at the pond. During his deposition, PW-2 specifically referred to the role and presence of the appellant being armed with the stick and exhorting Idrish to kill the deceased. PW-3 Iddu has, in similar terms, deposed to the place where the deceased was fired at. PW-3 stated that he was returning home after freshening up. When he reached the pond, he saw the appellant encouraging Idrish to kill the deceased, after which Idrish fired at him and the bullet hit his chest. Having carefully considered the depositions of PWs 1, 2 and 3, there is no material inconsistency regarding the nature or genesis of the incident. All the three witnesses have deposed to (i) the presence of the deceased near the pond; (ii) the presence of the appellant and Idrish at the place of occurrence; (iii) the appellant having exhorted Idrish to kill the deceased; and (iv) Idrish shooting the deceased, as a result of which he sustained an injury on the chest and collapsed on the spot. It is well-settled in law that the mere fact that relatives of the deceased are the only witnesses is not sufficient to discredit their cogent testimonies. Recently, a two-judge Bench of this Court in Mohd. Rojali v. State of Assam, [(2019) 19 SCC 567] reiterated the distinction between “interested” and “related” witnesses. It was held that the mere fact that the witnesses are related to the deceased does not impugn the credibility of their evidence if it is otherwise credible and cogent. Speaking for this Court, Justice M M Shantanagoudar held:
“13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused [internal citations omitted].
…….
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145 : AIR 1953 SC 364 : 1953 Cri LJ 1465] , wherein this Court observed: (AIR p. 366, para 26)
“26. 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 the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person.”
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent….”
NON-EXAMINATION OF DAUGHTER IS NOT FATAL: 16 The evidence on the record has been carefully evaluated by the Sessions Judge as well as the High Court. There is no basis to discredit the presence of the three eye-witnesses and nothing has been elicited in the course of the cross-examination to doubt their presence. The non-examination of the daughter of the deceased who was allegedly unwell cannot be construed to be a circumstance that is fatal to the prosecution’s case once the ocular evidence of PWs 1, 2 and 3 is consistent and credible. The nature of the injuries found to have been sustained by the deceased is consistent with the account furnished by the eyewitnesses.
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SECTION 34 IPC: 24 Emphasizing the fundamental principles underlying Section 34, this Court held that:
(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.
25 These principles have been adopted and applied in another two judge Bench decision of this Court in Chhota Ahirwar v. State of Madhya Pradesh [(2020) 4 SCC 126]. Justice Indira Banerjee speaking for the two-judge Bench observed:
26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 : (2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1] , “they also serve who stand and wait”.
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.”
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27 The evidence on the record clearly establishes a common intention in pursuance of which the appellant exhorted Idrish to kill the deceased. The prosecution is not required to prove that there was an elaborate plan between the accused to kill the deceased or a plan was in existence for a long time. A common intention to commit the crime is proved if the accused by their words or action indicate their assent to join in the commission of the crime. The appellant reached the spot with a lathi, along with Idrish who had a pistol. The appellant’s exhortation was crucial to the commission of the crime since it was only after he made the statement that the enemy has been found, that Idrish fired the fatal shot. The role of the appellant, his presence at the spot and the nature of the exhortation have all emerged from the consistent account of the three eye-witnesses.
PARTY: Gulab vs. State of Uttar Pradesh – Criminal Appeal No. 81 of 2021 – December 09, 2021 – 3 JUDGE BENCH.
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