Holding

The convictions were upheld because the corroborated evidence satisfied the elements of Sections 34 and 149 IPC, and the lack of a proved motive or minor testimonial variations did not create reasonable doubt.

Summary

The appellants were convicted for the murders of Bahadur Singh and his father Pyare Lal. The prosecution proved that four accused, armed with guns and a spear, killed Bahadur Singh, after which all five accused, including Dharnidhar, proceeded to kill Pyare Lal with guns and a kulhari. The defence argued that the key eyewitnesses were interested witnesses, that no motive was established, and that the evidence was inconsistent. The Supreme Court held that the testimony of family members, when corroborated by medical and forensic evidence, is admissible; that a motive need not be proved when the prosecution’s case is otherwise strong; and that the facts satisfied the requirements of Sections 34 and 149 IPC for common intention and unlawful assembly. Consequently, the Court affirmed the trial and High Court judgments, dismissing the appeals.

Issues considered

The admissibility and reliability of testimony from interested (family) witnesses.
Whether the prosecution must establish a motive for murder.
The impact of minor inconsistencies in medical and eyewitness testimony on the burden of proof.
The applicability of Section 34 IPC to the murder of Bahadur Singh (common intention).
The applicability of Section 149 IPC to the murder of Pyare Lal (unlawful assembly).
The evidentiary value of statements recorded under Section 313 CrPC.
The consequence of not examining an independent witness (J) on the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 173, s. 313, s. 540
Indian Evidence Act, 1872s. 8
Indian Penal Code, 1860s. 141, s. 142, s. 147, s. 148, s. 149, s. 302, s. 34

Subjects

murderinterested witnessmotivecommon intentionunlawful assemblySection 34 IPCSection 149 IPCSection 313 CrPCcircumstantial evidencemedical evidence

Judgment

[2010] 8 S.C.R. 173

DHARNIDHAR A
v.
STATE OF U.P.
(Criminal Appeal No. 239 of 2005)
JULY 8, 2010
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

Penal Code, 1860:

ss. 302134 and 3021149 - Murders of father and son at c
two different places - Conviction by trial court affirmed by High
Court - HELD: Courts below rightly convicted and sentenced
four accused u/s 302134 for murder of the son - Thereafter
as all the four accused went to kill the father and there the fifth
accused joined them and took active part in committing the 0
second murder, courts below rightly convicted and sentenced
all the five accused u/s 3021149.

ss. 34 and 149 - Ingredients and applicability of -
Explained.
E
Criminal Law:

Motive - Relevance of - Explained.

Evidence:
F
Interested witness - Connotation of - Explained - HELD:
The family members of the two deceased being present at the
respective places of occurrence and having seen the
incidents of murders of their brother and father, it was but
natural for the prosecution to produce them as the main eye- G
witnesses - Their evidence stands corroborated by medical
evidence - Both the courts below rightly believed them -
Penal Code, 1860 - ss.302134 and 3021149.

Code of Criminal Procedure, 1973:
173 H
174 SUPREME COURT REPORTS [2010] 8 S.C.R.

A s.313 - Power of court to examine accused- Object of-
Explained - Penal Code, 1860 - ss. 302134 and 3021149.

The five appellants were prosecuted for murders of
the brother and the father of the complainant (PW-1 ). The
prosecution case was that four of the accused (except
8
accused DD) armed with guns and spear reached the
place where 'BS', the brother of PW-1, had gone to
sharpen his gandasa. Accused 'SD' inflicted a spear blow
on the shoulder of 'BS' and thereafter the remaining three
C accused fired at him with their respective guns, resulting
in his death at the spot. Then the four accused went to
the fie las where 'PL', the father of PW-1 was irrigating his
bajra crop. There the accused 'DD' also joined them.
Three of the accused who were armed with guns fired at
'PL', who fell down. Accused 'DD' cut the neck of 'PL' with
D a 'Kulhadi'. The trial court convicted four accused, inter
ala, u/s 302/34 IPC as regards the murder of 'BS' and all
the five accused, inter a/ia, u/s 302/149 for the murder of
'PL'. Their appeals were dismissed by the High Court.

E It was contended for the appellants that (i) the alleged
eyewitnesses being the family members, were interested
witnesses and, as such, the conviction based on their
evidence was liable to be set aside; (ii) the prosecution
failed to prove motive for the crime; (iii) the evidence of
F the doctor (PW-6) who conducted the autopsies and that
of PW-2 who claimed to have been present at both the
places of occurrences, raised serious doubts and,
therefore, the courts below should have held that the
prosecution failed to prove its case beyond doubt; and
G (iv) that both the courts below fell in error of law in
convicting accused 'RS', 'BO' and 'SD' with the aid of s.34
IPC and accused 'DD' with the aid of s.149 IPC, as in the
facts and circumstances of the case, ingredients of the
respective provisions were not satisfied by the
H prosecution.
DHARNIDHAR v. STATE OF U.P. 175

Dismissing the appeals, the Court A
HELD: 1.1. An interested witness is one who is
interested in securing the conviction of a person out of
vengeance or enmity or due to disputes, and deposes
before the court only with that intention and not to further
8
the cause of justice. The law relating to appreciation of
evidence of an interested witness is well settled,
according to which, the version of an interested witness
cannot be thrown over-board, but has to be examined
carejully before accepting the same. In the light of the
judgments, it is clear that the statements of the alleged C
interested witnesses can be safely relied upon by the
court in support of the prosecution story. But this needs
to be done with care and to ensure that the administration
of criminal justice is not undermined by the persons, who
are closely related to the deceased. When their D
statements find corroboration by other witnesses, expert
evidence and the circumstances of the case clearly
depict completion of the chain of evidence pointing out
to the guilt of the accused, then there is no reason why
the statement of so called 'interested w:tnesses' canno~ E
be relied upon by the Court. [para 9) [193-A-E]
1.2. In the instant case, there is no doubt that PW1
and PW2, both are related to the deceased who were
attacked by the accused in their presence but they could
not intervene and save the victims because of the fear of F
the guns and the manner in which the incident occurred.
It was but natural for the prosecution to produce PW1 and
PW2 as the main eye witnesses as they had actually seen
the occurrence. They have been believed by the trial
Court, as well as by the High Court. Even before this G
Court, no serious attempt has been made and in fact,
nothing appears from the record to show that these two
witnesses were not present on the site. No error can be
found in the concurrent findings of fact recorded by the
trial court, as well as by the High Court that these two H
176 SUPREME COURT REPORTS [2010] 8 S.C.R.

A witnesses were present at the respective places and had
actually seen the occurrence. Their statements about gun
fires, as well as the injuries caused by the 'kulhardi' and
spear respectively are duly supported by the medical
evidence, as well as by the statements of the
B investigating officer. (para 8-9] (193-E-F; 191-F-H; 193-F]

Jayaba/an v. U. T. of Pondicherry 2009 (15 ) SCR 736
= (2010)1 SCC 199; and Ram Bharosey v. State of U.P.
2009 (15 ) SCR 947 =AIR 2010 SC 917 - relied on.
C 2.1 As regards the motive, it has come on record that
the father of appellant 'RS' was murdered, for which 'BS'
(deceased in the instant case) was prosecuted. Deceased
'PL', father of 'BS', was doing pairvi on behalf of and
along with 'BS' in which he was finally acquitted. The
D evidence of PWs1 to 3 indicates that the relations
between the two families were quite strained. The way the
crime has been committed clearly indicates that the
family of 'RS' would have been unhappy with the acquittal
of 'BS' in that murder case. This itself indicates some kind
E of motive for committing the crime in question. However,
it is not always necessary for the prosecution to establish
a definite motive for the commission of the crime. It will
always be relatable to the facts and circumstances of a
given case .. However, in cases which are entirely or
F mainly based upon and rest on circumstantial evidence,
motive can have greater relevancy or significance. (para
10-11] (194-A-D; 195-H; 196-A]

Babu Lodhi vs. State of UP. (1987) 2 SCC 352; Prem
Kumar vs. State of Bihar 1995 ( 2 ) SCR 455 = (1995) 3 SCC
G 228; and State of Punjab vs. Kuljit Singh 2003 (2) RCR
(Criminal) 629 - relied on.

2.2 Significance of relevancy of motive would
primarily depend upon the facts and circumstances of a
H given case. In the case in hand, there are eye witnesses
DHARNIDHAR v. STATE OF U.P. 177

whose version is supported by _expert ·and .other A
evidence. Their statements find corroboration and, in fact,
they completely fit in with the case put forward by the
prosecution and there is hardly any occasion for the
Court to doubt the version of the prosecution. [para 11]
[196-B-D] B

3.1 As regards some variations or doubts in the
statements of the doctor and the eye witnesses, it is
significant to note that the witnesses have been examined
in the court after a considerable lapse of time. It is neither C
unnatural nor unexpected that there could be some minor
variations in the statements of the prosecution witnesses.
The statement of PW2 on which heavy reliance was
placed by the appellant, does not really, in any way, vitiate
the case of the prosecution which is aptly supported by
the stat~ments of PW1 and PW6 (doctor) and the D
statements of other witnesses. PW 6 has clearly stated
that the dead bodies of the deceased contained the
injuries of gun fire as well as that of 'kulhari' and spear.
This witness was cross examined at some length, but
nothing favourable to the accused could come on record. E
Thus, the medical evidence fully corroborates the
statements of PW1 and PW3. Even if the statement of PW-
2 is ignored, there is no reason whatsoever to doubt the
version given by PW-1 and PW-3, whose presence at the
site was natural. [para 12-13] [196-F-H; 197-A-C; 198-D- F
E]
3.2 Besides, it must be noticed that upon the
statement of accused 'SD', the spear (Ext. Ka 1) was
recovered in presence of PW 7 who corroborated the G
evidence of PW 9. The spear was sent for chemical and
serological examination, and the report showed that it
contained human blood. Thus, the involvement of
accused 'SD' along with other accused persons, the
recovery of the weapons and the report of the chemical
H
178 SUPREME COURT REPORTS [2010] 8 S.C.R.

A examiner completes the chain of events relating to the
commission of the crime. (para 13) (198-E-H]

4.1. As regards the allegedly unnatural conduct
attributed to the accused, in leaving the brother of
8 deceased 'BS' who was right in front of them at the place
·of first occurrence, and rather going to the other site to
kill 'PL', the father of deceased' BS', there is specific
evidence on record which has been noticed by the High
Court as well as the trial court that 'BS' was prosecuted
C for the murder of father of accused 'RS' and was
acquitted. The case was contested by 'PL', the father of
'BS'. There is some motive apparent for commission of
the crime, which further indicates in the light of this
evidence that they preferred to kill 'BS' and his father. This
cannot be said to be a conduct unnatural or of such a
D nature that it is not normally expected of a person
intending to commit a crime. [para 13] (199-C-F]

4.2. PW-3, the son of the deceased 'PL', in his
examination-in-chief, has specifically deposed that he
E was an eye-witness only to the murder of 'PL', his father
and never referre.:t to the murder of his brother, 'BS'. The
truthfulness and bona fide of this witness can hardly be
doubted. He has further deposed that accused 'DD' had
not come with other accused but had suddenly entered
F there and snatched the 'kulhadi' from his father, and wit~
that 'kulhadi', he caused injury on the neck of decease~
'PL'. His statement is fully supported by PW1, as well as
the Investigating Officer. [para 14] [199-G-H; 200-A-C]

4.3. The trial court rightly rejected the defence plea
G to draw adverse inference for non-examination of one 'J'
by the prosecution, who was stated to be present and
was the only independent witness. The prosecution has
filed an affidavit that the said witness had been won over
by the accused and thus he was not examined. [para 14]
H (200-D-F]
DHARNIDHAR v. STATE OF u:P. 179

Mst. Balbir Kapr vs. State of Punjab 1997 Crl.L.J. 273 - A
relied on.

5.1. It is significant to note that when the accused
were being examined u/s 313 Cr.P.C., they barely denied
the incident and stated that there were land disputes and . 8
that they were falsely implicated. No evidence in that
behalf had_ been adduced by the accused persons. Even
if this statement is assumed to be correct, now the
ac,cused cannot turn their back and deny the existence
of dispute between the parties. This would further be one
of the links in the chain completing the crime. It is a C
settled principle of law that the statement made by an
accused u/s 313 Cr.P.C. can be used by the court to the
extent it is in line with the prosecution case. However, the
same cannot be the sole basis for convicting an accused.
[para 16] [201-B-E] · D

5.2. The legislative intent behind s.313 Cr.PC appears
to have twin objects: firstly, to provide an opportunity to
the accused to explain the circumstances appearing
against him and, secondly, for the court to have an E
opportunity to examine the accused and to elicit an
explanation from him, which may be free from the fear ~f
being trapped for an embarrassing admission or
statement. It is for the accused to avail of that opportunity
and if he fails to do so then it is for the court to examine F
the case of the prosecution on its evidence with reference
to the statement made by the accused u/s 313 Cr.P.C. The
possibility of the accused being falsely implicated in the
instant case, stands ruled out. The statement of the
witnesses, read in conjunction with the documents filed G
on record, the expert evidence, recovery of weapons and
blood stained earth, clearly establishes beyond
reasonable doubt, the guilt of the accused. [para 16-17]
[201-F-H; 202-A-B; 203-E-F] .

Hate .Singh Bhagat Singh vs. State of Madhya Bharat H
180 SUPREME COURT REPORTS [2010] 8 S.C.R.

A AIR1953 SC 468; and Narayan Singh vs. State of Punjab
(1963) 3 SCR 678 - referred to.

6.1 As far as involvement of the accused -persons
concerned in the commission of crime in terms of s. 34
IPC is concerned, it is obvious that a criminal act was
8
committed by them in furtherance of a common intention,
and each of them was liable to be prosecuted for the
same, once they had murdered 'BS'. Section 34, involves
vicarious liability and, therefore, if intention is proved but
no overt act is committed, the section can still be invoked.
C It is not mandatory for the prosecution to bring direct
evidence of common intention on record and this
depends on the facts and circumstances of the case. The
intention could develop even during 'the course of
occurrence. In the instant case, all the 4 accused had
D gone together armed with three guns and one spear and
after shouting, making their minds clear, fired at 'BS'
causing gun injuries and spear injury to the victim. The
medical evidence is clear that these injuries could be
caused by gun, spear and kulhadi. The attendant
E circumstances fully support the case of the prosecution.
[para 18-19) [204-D; 205-G-H; 206-A-E]

Surendra Chauhan vs. State of Madhya Pradesh 2000 (
=
2) SCR 515 AIR 2000 SC 1436; Ramaswamy Ayhangar
F vs. State of Tamil Nadu (1976) 3 SCC 779; and Rajesh
Govind Jagesh vs. State of Maharashtra 1999 (4) Suppl.
=
SCR 277 (1999) 8 sec 428 - relied on.
6.2 As regards the offence u/s 302/149 IPC, the crucial
question to be determined in a case involving s.149 IPC
G is whether the assembly consisted of five or more
persons and whether the said persons entertained one
or more of the common objects. For determination of the
common object of the unlawful assembly, the conduct of
each of the members of the said assembly before the
H attack, at the time of attack and thereafter, as well as the
DHARNIDHAR v. STATE OF U.P. 181

motive for the crime are some of the relevant A
considerations. However, the time of forming an unlawful
intent is not material and it can develop during the course
of the incident at the spot co instanti. It is not even
expected of the prosecution to detail particular or
independent roles played by each accused once they are B
members of unlawful assembly and have assaulted the
deceased, which resulted in his death. Every person of
such an unlawful assembly, can be held to be liable. [para
19 and 22] [209-D-F; 207-A-B]

. Sheo Prasad Bhore v. · State of Assam (2007) 3 SCC
c
120; Md. Ankoos vs. Public Prosecutor, High Court of A.P.
2009 (15 ) SCR 616 = AIR 2010 SC 566; Pandurang
Chandrakant Mhatre v. State of Maharashtra 2009 (15 )
SCR 58 = (2009) 10 SCC 773; Masalti v. State of U.P. 1964
(8) SCR 133; and Maranadu v. State by inspector of Police, D
Tamil Nadu (2008) 16 sec 529 - relied on.

6.3 In the instant case, it has been shown in the
evidence that after committing the murder of 'BS', the four
accused moved to the fields, where 'PL' was watering his E
bajra crop, after having clearly made up their minds and
with a common object to kill him. Once they reached the
spot, they were joined by the accused 'DD', who also
participated in the commission of the crime and, in fact,
played an active role by snatching the 'kulhadi' of the F
deceased and causing injury on his neck. The said injury
and the gun injuries proved to be fatal, which ultimately
resulted in the death of 'PL' on the spot. Thus, every one
of them participated in the commission of the crime,
besides the fact that they had a common object to kill G
'PL'. [para 19 and 23] [209-G-H; 210-A; 206-B-C]

6.4 There is no legal or other infirmity in the judgment
of the trial court, as well as that of the High Court in
holding that the four accused, in the case of murder of
'BS', were guilty of the offence punishable u/s 302 read H
182 SUPREME COURT REPORTS (2010] 8 S.C.R.

A with s. 34; furthermore, in the case of the deceased 'PL',
all the five accused were guilty of the offence punishable
u/s 302 read with s.149 IPC. [para 23) [210-B-C]

Case Law Reference:
B 2009 (15) SCR 736 relied on para 8
2009 (15) SCR947 relied on para 9
(1987) 2 sec 352 relied on para 10
1995 ( 2) SCR 455 relied on para10
c
2003 (2) RCR (Criminal) 629 relied on para 11
1997 Crl.L.J. 273 relied on para 14
AIR1953 SC 468 referred to para 16
D
(1963) 3 SCR 678 referred to para 16
2000 ( 2) SCR 515 relied on para 19
(1976) 3 sec 779 relied on para 19
E 1999 ( 4 ) Suppl. SCR 277 relied on para 19
(2001) 3 sec 120 relied on para 19
2009 (15 ) SCR 616 relied on para 20

F 2009 (15 ) SCR58 relied on para 21
1964 (8) SCR 133 relied on para 22
(2008) 16 sec 529 relied on para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G
No. 239 of 2005.

From the Judgment and Order dated 22.03.2004 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
1475 of 1992. ·
H
DHARNIDHAR v. STATE OF U.P. 183

WITH A
Criminal Appeal No. 429 of 2005

Criminal Appeal No. 430 of 2005

Shall{ Shasin Maheshwari, Anne Mathew and Rishi S
Maheshwari for the Appellant.

· Ratnakar Dash, Rajeev K. Dubey and Kamlendra Mishra
for the Respondents.

The Judgment of the Court was delivered by c
SWATANTER KUMAR, J. 1. The accused Ram Sanehi,
Saladin, Ramadin, Shiv Dayal and Dharnidhar were tried for
the murder of two persons differently, namely, Bahadur Singh
and his father Pyare Lal in Sessions Trial No~ 44 of 1989. The D
Id: Sessions Judge, Jhansi, vide its judgment 9ated 7th August,
1992 after finding all- the accused guilty of d!fferent offences,
including Section 302 of the Indian Penal Code (hereinafter
referred to as "IPC") punished them. The order of punishment
reads as under: E
"Accused Ram Sanehi, Ramadin, Saladin and Shiv Dayal
are hereby sentenced to suffer life imprisonment under
section 302/34, 1.P.C. for committing murder of Sahadur
Singh. They and accused Dharnidhar are also sentenced
to life imprisonment under section 302/149, l.P.C. for F
committing murder of Pyare Lal. Accused Ram Sanehi,
Ramadin, Saladin and Shiv Dayal are mentioned to the
year's R.I. u/s 148 l.P.C. and accused Dharnidhar is
· sentenced to six month's R.I. u/s 147, l.P.C. All these
sentences shall run concurrently. G

2. All the accused preferred appeals against the judgment
of conviction and order of sentence before the High Court which
also came to be dismissed vide judgment dated March 22,
2004, wherein the High Court declined to interfere either with H
184 SUPREME COURT REPORTS [201 O] 8 S.C.R.

A the findings of conviction or order of sentence which
consequently stood confirmed. Accused Dharnidhar filed
Criminal Appeal No. 239 of 2005 against the judgment of the
High Court, accused Ram Sanehi along with other accused
filed an appeal being Criminal Appeal No. 429 of 2005 and
B Shiv Dayal preferred a separate appeal being Criminal Appeal
No. 430 of 2005 against the judgment of the High Court. Thus,
by this judgment we shall dispose of all the above three appeals
as they are directed against the common judgment of the High
Court and are based upon common evidence. The challenge
c to the judgment of the High Court and the Ld. Sessions Judge,
inter alia, is primarily on the following grounds:

i) The alleged eye witnesses PW1 and PW3
are family members of the deceased and as
such are interested witnesses. The conviction
D of the appellants is based, primarily, on the
statements of these witnesses, which as
such, is liable to be set aside.

ii) The prosecution has failed to prove any
E motive for the alleged commission of the
crime. The appellants had no motive to
commit the said crime and, therefore, the
story put forward by the prosecution stands
falsified.
F iii) The evidence, including the evidence of Dr.
P.N. Dwivedi (PW6) creates serious doubts
in the case advanced by the prosecution.
Particularly, when the Court had disbelieved
Devi Singh, PW2, who is alleged to have
G been a witness to both the incidents, the
Court ought to have come to the conclusion
that the prosecution has failed to prove its
case beyond any reasonable doubt. The
conduct and role of the accused as attributed
H by the prosecution is not only improbable, but
DHARNIDHAR v. STATE OF U.P. 185
[SWATANTER KUMAR, J.]
is impossible to be believed. It is contended A
that why would the accused leave the brother
of deceased Bahadur Singh, who was
· standing there at the time of his murder and
go all the way to kill his father Pyare Lal.
Seeing this, in the light of the documentary B
and ocular evidence, benefit of doubt ought
to have been given to the appellants.

iv) The learned trial Court as well the High Court
has fallen in error of law in convicting C
accused Ram Sanehi, Saladin, Ramadin
and Shiv Dayal with the aid of Section 34 and
accused Dharnidhar with the aid of Section
149 of the IPC respectively. In the facts and
circumstances of the case, the basic
ingredients for application of these D
provisions had not been satisfied by the
prosecution. Thus, the conviction is vitiated
in law.

3. On the contrary, learned counsel appearing for the E
respondent has vehemently argued that there was sufficient
documentary and expert evidence on record. The version of the
eye witnesses cannot be doubted, their presence on the site
was natural and they had no reason to falsely implicate all or
any of the accused in the murder of their brother and father. It F
is contended that the version of eye witnesses is fully supported
by expert evidence and the statement of the Investigating
Officer. Once the prosecution is able to fully corroborate the
incident as recorded in the FIR, the judgment under appeal
cannot be interfered with.
G
4. In order to examine the rival contentions raised in the
present appeals, it will be necessary for us to refer to the facts
appearing from the case of the prosecution.

5. On 19.11.1988 at about 6.15 P.M. one Deo Pal, who H
186 SUPREME COURT REPORTS [2010) 8 S.C.R.

A was examined as PW1, had lodged the FIR in the Police
Station at Kakkarwai stating that on the evening of 19.11.1988
at about 4.30 P.M., he along with his brother Devi Singh and
one Kallu were sitting in the cattle shed of Jawahar, carpenter.
He had gone to sharpen his sickle. After about 10 minutes, his
B brother Bahadur Singh (since deceased) came there to
sharpen his gandasa. In. the meanwhile, appellants Ram
Sanehi, Saladin @ Balla, Shiv Dayal and Ramadin came there.
Accused Shiv Dayal has a sphere and Ram Sanehi, Saladin
and Ramadin had guns. Appellant Shiv Dayal inflicted sphere
c blow on the left shoulder of Bahadur Singh and thereafter, the
three accused carrying guns fired from their respective guns.
After receiving the bullet injuries, Bahadur Singh fell down and
died. The witnesses, present there, were not able to save him
because of the fear caused by the accused persons. After
D murdering Bahadur Singh, Ram Sanehi said that they had killed
him and his father Pyare Lal should also be killed. Saying these
words, the appellants proceeded towards the fields where
Pyare Lal was watering his bajara crops. Deopal, Devi Singh
and hi.s wife Moola Bai were present in the field. At that time,
E appellant Dharnidhar also came there and joined the other
appellants. Dharnidhar snatched the ku/hari of Pyare Lal.
Thereafter, the said three accused, who were carrying guns,
fired on Pyare Lal. Sustaining the fire arm injuries, Pyare Lal
fell down. Not satisfied with the same, Dharnidhar then cut his
neck with kulhari. Deopal then raised an alarm and made a
F hue and cry. Several village persons rushed towards the spot
but before they could reach, the appellants escaped and went
towards the jungle. This incident took place at about 4.45p.m.
PW1 reported the matter to the police station, as already
noticed, and on the basis of the report, H.C. Shiv Charan
G prepared the report (Ext.Ka 27) made endorsement on the
same at the G.D. report (Ext. Ka 28) and registered the case
against all the appellants under Sections 147, 149, 302 and
149 of the l.P.C.

H 6. The case was initially investigated by Ram Autar Mathur
DHARNIDHAR v. STATE OF U.P. 187
[SWATANTER KUMAR, J.]
(PW 10) who went to the spot along with two constables but A
the investigation could not be completed because of paucity
of light. Next morning the 1.0. conducted inquest of the body of
deceased Bahadur Singh and recovered one empty cartridge
from the spot, collected blood stained and simple earth sample
from the spot and prepared recovery memos. He also B
completed the investigation at the place of the murder of Pyare
Lal. The dead bodies of Bahadur Singh and Pyare Lal were
subjected to autopsy on 21.11.1988 by PW6, and he found the
following injuries on the bodies of the deceased.

"Postmortem report of Bahadur Singh
c

Ante mortem injuries:-

(1) Gun shot wound of entry 2 Yz cm x 2 cm x
thoracic cavity deep on the left nipple. D
Blackening present. Direction from front to
back. Margins inverted.

(2) Gun shot wound of entry 1 cm x 0.75 cm x
thoracic cavity deep on upper and medical
portions of chest of right side, 2 cm below E
from medical margin of clavicle. Blackening
present and direction from back to front and
backwards. Margins inverted.

(3) Two gun shot wounds of exit measuring 1 F
cm x 0.75 ·cm diameter in an area of 2 cm
on right lower portion of back of chest.
Corresponding to injury no.2.

(4) Gun shot wound of entry 2 cm x 2 cm on left
lower portion of back, .30 cm below from left G
shoulder joint, direction from left to right.

(5) Gun shot wound of entry 2 cm x 1 cm'" x
muscle deep on epigastria portion of
abdomen 18 cm above from umbilicus. H
188 SUPREME COURT REPORTS [2010] 8 S.C.R

A Direction front to back.

(6) Gun shot wound of entry 2 cm x 1 cm on the
epigtastrian portion of abdomen, 1 cm
above from injury no. 5, Direction from front
to back.
B
(7) Contusion 4 cm x 3 cm on middle and front
of forehead.

(8) Contusion 5 cm x 2 cm on middle and right
c side of back of chest, 4 cm away from mid
line.

(9) Contusion 3 cm x 2 cm on lower and left side
of back of chest.
D (10) Incised wound 2 cm x 2 cm x muscle deep,
9 cm below from the left shoulder.

Internal examination showed that third and
fourth ribs of left side and third rib of right
E side were fractured. Pleura was lacerated.
Both lungs were lacerated. Thoracic cavity
contained about 1 Yi liters of liquid blood.
Peritoneal cavity contained about Yi liter of
Liquid Blood. Stomach was lacerated and
F contained semi digested food material. Liver,
gall bladder and spleen were lacerated,
death was caused due to shock and
hemorrhage resulting from ante mortem
injuries.
G The doctor recovered 1Ql'J!il cork and 21
metallic pellets from left lung and thoracic
cavity. One cork and 12 metallic shots were
recovered from right lung, liver and thoracic
cavity. Two corks, 18 metallic shots were
H
DHARNIDHAR v. STATE OF U.P. 189
[SWATANTER KUMAR, J.]

recovered from spleen stomach and A
abdominal cavity.

Postmortem report of Pyare Lal

Ante mortem injuries:-
B
(1} Incised wound 8 cm x 3 cm x bone deep on
right lower jaw. 4 cm below from angle of
mouth right side.

(2) Incised wound 10 cm x 6 cm x bone deep on C
front portion of neck. Under lying bone of
cervical vertebrae No. 3 fractured. Soft
tissues and muscle cut.

(3) Gun shot wound of entry 3 cm x 2 cm x
muscle deep on lower and front portion of left D
arm. Direction from left to right, 8 cm above
from elbow joint. Blackening present.
Margins inverted.

(4) Gun shot wound of exit 4 cm x 2 Y:i cm on E
lower and front portion of left arm. Margins·
everted. Injury corresponding to injury no. 3.

(5) Gun shot wound of entry 2 cm x 2 cm x
muscle deep on left exilla.
F
(6) Gun shot wound of entry 2 Y:i cm x 1 Y:i cm x
thoracic cavity deep on left side of chest 11
cm below from left axilla. Blackening present,
direction from left to right, Margins inverted.
G
(7) Gun shot wound to exit five in number,
smallest being Y:i cm 2 x Y:i cm and largest
being 0.75 cm x Y:i in an area of 12 cm x 6
cm on right portion of chest, 10 cm below
from axilla right side and 18 cm above from
H
190 SUPREME COURT REPORTS [2010) 8 S.C.R.

A right anterior supra iliac spines, Injury
corresponded to injury no. 6.

(8) Gun shot wound of entry 1 cm x 1 cm x
abdominal cavity deep on upper and left
portion of abdomen, 10 cm above from
B
umbilicus, Blackening present. Margins
inverted. Directions from front to back.

(9) Abrasion 5 cm x 1 Y2 cm on right lower front
portion of thigh, 7 cm above from knee joint.
c
(10) Abrasion 2 cm x 2 cm on the rest of the
middle finger of right hand.

Internal examination showed that brain was
pulpy. Third cervical vertebrae was fractured.
D
Pleura was lacerated. Larynx, trachea and
bronchi were cut. Both lungs were lacerated.
Neck was cut. Abdominal cavity contained
about 200 ml liquid blood. Stomach was
lacerated. Liver was partially lacerated.
E Cause of death was shock and hemorrhage
resulting from ante mortem injuries.

The doctor recovered one cork, one big
metallic shot and two small metallic shot from
F stomach, 2 corks and 5 small metallic shorts
were recovered from right and left lung."

7. The prosecution had amongst others examined Deopal,
PW1, Devi Singh, PW 2 and Manohar, PW 3 who had claimed
G to be the eye witnesses to either or both of the murders. During
the course of investigation, recoveries were made upon the
statements made by the accused. Thakur Das, PW 7 was an
independent witness for the recovery of sphere, as pointed out
by accused Shiv Dayal. The investigation of the case was
conducted by different officers. H.C. Shiv Charan Singh, PW
H 11 was posted as Head Muherer and he had prepared (Ext.
DHARNIDHAR v. STATE oi: U.P. 191
[SWATANTER KUMAR, J.]
Ka 27) as well as registered the case in GD as (Ext.Ka 28). A
PW1 and PW2 had fully supported the case of the prosecution.
The blood marks were found at both the places of occurrence.
After completing the investigation, challan under Section 173
of the Criminal Procedure Code (hereinafter referred to as
'Cr.P.C.') was filed before the Court of competent jurisdiction. B
After the case was committed to the Court of Sessions, all the
accused were tried in accordance with the law. Statement
under Section 313 Cr.P.C. was recorded and finally, as noticed
above, they were convicted and sentenced by the trial Court
and the same was sustained by the High Court, giving rise to c
the present appeals.

8. The arguments raised on behalf of the appellants, in fact,
can be discussed together inasmuch as they are based upon
somewhat common submissions. There is no doubt that PW1
and PW2, both are related to the deceased. The contention D
raised before us is that both of them are interested witnesses
and have not stated true facts before the Court and thus, their
statements should be entirely disbelieved. We are unable to
find any merit in this contention. It has come on record that .
Pyare Lal was pursuing a case in which members of the family E
of the accused persons were involved in a murder. There was
apparently some anger and rift between the families. According
to the story of the prosecution, they had come prepared to kill
Bahadur Singh as well as Pyare Lal as they were carrying
guns, sphere etc. The deceased were attacked by the accused F
in the presence of their brothers, who could not intervene and
save them because of the fear of the gun fire and the manner
in which the incident occurred. It was but natural for the
"' prosecution to produce PW1 and PW2 as the main eye
witnesses as they had actually seen the occurrence and they G
have been believed by the trial Court, as well as by the High
Court. Even before us, no serious attempt has been made and
infact, nothing appears from the record to show that these two
witnesses were not present on the site. There is no hard and
fast rule that family members can never be true witnesses to H
192 SUPREME COURT REPORTS [2010] 8 S.C.R.

A the occurrence and that they will always depose falsely before
the Court. It will always depend upon the facts and
circumstances of a given case. In the case of Jayabalan v. U. T.
of Pondicherry [(2010)1 SCC 199], this Court had occasion
to consider whether the evidence of interested witnesses can
B be :elied upon. The Court took the view that a pedantic
approach cannot be applied while dealing with the evidence
of an interested witness. Such evidence cannot be ignored or
thrown out solely because it comes from a person closely
relatod to the victim. The Court held as under:
c " 23. We are of the considered view that in cases where
the court is called upon to deal with the evidence of the
interested witnesses, the approach of the court, while
appreciating the evidence of such witnesses must not be
pedantic. The court must be cautious in appreciating and
D accepting the evidence given by the interested witnesses
but the court must not be suspicious of such evidence. The
primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored
or thrown out solely because it comes from the mouth of a
E person who is closely related to the victim.

24. From a perusal of the record, we find that the evidence
of PWs 1 to 4 is clear and rategorical in reference to the
frequent quarrels between the deceased and the appellant.
F They have clearly and consistently supported the
prosecution version with regard to the beating and the ill-
treatment meted out to the deceased by the appellant on
several occasions which compelled the deceased to leave
the appellant's house and take shelter in her parental house
with an intention to live there permanently. PWs 1 to 4 have
G
unequivocally stated that the deceased feared threat to her
life from the appellant. The aforesaid version narrated by
the prosecution witnesses, viz. PWs 1 to 4 also finds
corroboration from the facts stated in the complaint."
H 9. Similar view was taken by this Court in Ram Bharosey
DHARNIDHAR v. STATE OF U.P. 193
[SWATANTER KUMAR, J.]

v. State of U.P. [AIR 201 O SC 917], where the Court stated the A
dictum of law that a close relative of the deceased does not,
per se, become an interested witness. An interested witness
is one who is interested in securing the conviction of a person
out of vengeance or enmity or due to disputes and deposes
before the Court only with that intention and not to further the B
cause of justice. The law relating to. appreciation of evidence
of an interested witness is well settled, according to which, the
version of an interested witness cannot be thrown over- board,
but has to be examined carefully before accepting the same.
In the light of the above judgments, it is clear that the statements C
of the alleged interested witnesses can be safely relied upon
by the Court in support of the prosecution's story. But this needs
to be done with care and to ensure that the administration of
criminal justice is not undermined by the persons, who are
closely related to the deceased. When their statements find o
corroboration by other witnesses, expert evidence and the
circumstances of the case clearly depict completion of the chain
of evidence pointing out to the guilt of the accused, then we see
no reason why the statement of so called 'interested witnesses'
cannot be relied upon by the Court. In the present case, the E
circumstances are such that we cannot find any error in the
concurrent findings of fact recorded by the Trial Court, as well
as by the High Court that these two witnesses were present at
the respective places and· had actually seen the occurrence.
Their statements about gun fires, as well as the injuries caused
F
by the kulhari and sphere respectively are duly supported by
the medical evidence, as well as by the statements of the
investigating officers. Thus, we find that the contention raised
on behalf of the appellants is liable to be rejected.

10. The sec.and contention raised on behalf of the G
appellants is that the prosecution has failed to prove any motive
for the commission of the crime, and in absence of clear and
emphatic motive, the order ofconviction is liable to be set aside
and the accused are entitled to acquittal. This submission,
firstly, is based on misreading of the record and secondly, it is. H
194 SUPREME COURT REPORTS [2010] 8 S.C.R.

A devoid of any merit. It has come on record that one Umrao,
father of appellant Ram Sanehi was murdered. Bahadur Singh
(deceased) was prosecuted for the said murder. Pyare Lal
(deceased), father of Bahadur Singh, was doing pairvi on
behalf of and along with Bahadur Singh, in which he was finally
B acquitted. It is also the case of the prosecution that there was
enmity between these persons and all other appellants and the
family of Ram Sanehi, appellant. The evidence of PW1, PW2
and PW3 indicates that the relations between these two
families were quite strained, and the way the crime has been
c committed clearly indicates that the family of Ram Sanehi
would have been unhappy with the acquittal of Bahadur Singh
. in that murder case. This itself indicates some kind of motive
for committing the crime in question. Be that as it may, it is not
always necessary for the prosecution to establish a definite
motive for the commission of the crime. It will always be
0
relatable to the facts and circumstances of a given case. It will
not be correct to say as an absolute proposition of law, that the
existence of a strong or definite motive is a sine qua non to
holding an accused guilty of a criminal offence. It is not correct
E to say that absence of motive essentially results in the acquittal
of an accused if he is otherwise found to be guilty. In the case
of Babu Lodhi vs. State of U.P. ((1987) 2 SCC 352), this Court
took the view that in so far as the adequacy of motive is
concerned, it is not a matter which can be accurately weighed
on the scales of a balance. In Prem Kumar vs. State of Bihar
F ((1995) ~sec 228) the Court discussed the concept of motive
as applicable to Indian criminal jurisprudence and held as
under:

"5 ......................................The Courts below have
G concurrently held that the motive suggested by the
prosecution against the accused persons is established.
When there, is sufficient direct evidence regarding the
commission of the offence, the question of motive will not
loom large in the mind of the court. It is true that this Court
H has held in State of U.P. v. Moti Ram ((1990) 4 SCC 389)
DHARNIDHAR v. STATE OF U.P.
[SWATANTER KUMAR, J.]
that in a case where the prosecution party and the A
accused party were in animosity on account of series of
incidents over a considerable length of time, the motive is
a double-edged weapon and the key question for
consideration is whether the prosecution had convincingly
and satisfactorily established the guilt of all or any of the B
accused beyond reasonable doubt by letting in reliable
and cogent evidence. Very often, a motive is alleged to
indicate the high degree of probability that the offence was
committed by the person who was prompted by the motive.
In our opinion, in a case when motive alleged against the c
accused is fully established, it provides a foundational
material to connect the chain of circumstances. We hold
that if motive is proved or established, it affords a key or
pointer, to scan the evidence in the case, in that
perspective and as a satisfactory circumstance of
0
corroboration. It is a very relevant, and important aspect -
(a) to highlight the intention of the accused and (b) the
approach to be made in appreciating the totality of the
circumstances including the evidence disclosed in the
case. The relevance of motive and the importance or value E
to be given to it are tersely stated by Shamsul Huda in
delivering the Tagore Law Lectures (1902) - The
Principles of the Law of Crimes in British India, at page
176, as follows:

'But proof of the existence of a motive is not F
necessary for a conviction for any offence. But where the
motive is proved it is evidence of the evil intent and is also
relevant to show that the person who had the motive to
commit a crime actually committed, it, although such
evidence alone would not ordinarily be sufficient. Under G
· Section 8 of the Evidence Act any fact is relevant which·
shows or constitutes a motive or preparation for any fact
in issue or relevant fact'."

11. H~owever, in cases which are entirely or mainly based
H
196 SUPREME COURT REPORTS [2010] 8 S.C.R.

A upon and rest on circumstantial evidence, motive can have
greater relevancy or significance (Babu Lodhi and Prem
Kumar's case (supra). But it is equally true that when positive
evidence against the accused is clear in relation to the offence,
motive is not of much importance. Mere absence of motive,
B even if assumed, will not per se entitle the accused to acquittal,
if otherwise, the commission of the crime is proved by cogent
and reliable evidence (State of Punjab vs. Kuljit Singh [2003
(2) RCR (Criminal) 629]. Significance of relevancy of motive
would primarily depend upon the facts and circumstances of a
c given case. In the case in hand, there are eye witnesses whose
version is supported by expert and other evidence. Their
statements find corroboration and infact, they completely fit in
with the case put forward by the prosecution and there is hardly
any occasion for the Court to doubt the version of the
D prosecution. Firstly, we find that there exists some motive for
Ram Sanehi and other appellants, who are his family members,
to commit the crime, but in case of direct and clear evidence,
there is no need for the Court to attach undue emphasis or
importance to the motive behind the crime. The principles afore
stated would clearly apply to the facts of the present case and
E we cannot find fault in the concurrent judgments, which is the
subject matter of the present appeals.

12. It is further argued that there are some variations or
doubts in the statements of the doctor and the eye witnesses.
F Emphasis was placed on the fact that the trial Court, in para 6
of its judgment, disbelieved Devi Singh, PW 2, and thus the
obvious conclusion ought to have been that the prosecution has
failed to bring home the guilt of the accused. This contention.
again, does not impress us. Witnesses have been examined
G in the Court after a considerable lapse of time. It is neither
unnatural nor unexpected that there could be some minor
variations in the statements of the prosecution witnesses. Both
PW1 and PW2 were the relations of both the deceased and
were eye witnesses to the occurrence. Certain part of the
H statement of Devi Singh, PW2, have been doubted by the trial
DHARNIDHAR v. STATE OF U.P. 197
[SWATANTER KUMAR, J.]

Court, in view of the fact that at one place he stated that he· had A
gone to village Durkhuru on the date of the occurrence and
thereafter, in reply to the Court's question he was consistent
with his statement made under Section 161 of the Cr.P.C. as
well as the examination-in-chief, that he had gone to village
Durkhuru on the day subsequent to the date of the occurrence. B
The statement of PW2 does not really, in any way, vitiate the
case of the prosecution which is aptly supported by the
statements of PW1, PW2, PW6 and the statements of other
witnesses. PW 6 has clearly stated that the dead bodies of the
deceased contained the injuries of gun fire as well as that of c
kulhari and sphere. It will be useful to refer to the statement of
this witness, particularly, with reference to gun shots, bhala as
well as kulhari.

"The injury No. 10 of Bahadur was possible by the Shala
which was exhibit - 1. The witness has been shown the D
sphere/Shala the injury No. 1 to 6 can be caused by fire
arms injuries No. 7 & 8 can be caused to fallen when
fallen. But at one time both the injuries caused which is not
possible. The injuries No. 9 may be caused by fall. These
injuries caused and it may be possible that these injuries E
caused on dated 19.11.88 at 4.30 o' clock in the evening.
These injuries were normal but these injuries are sufficient
for death.

I had seized from the body pf the deceased one cork and F
21 metal pallets from the left side's lungs. One Cork and
12 pallets were seized from the right lung and from
forensic cavity of muscles. 2 Corks and 18 pallets were
recovered from the lever and stomach cavity.

From the body of the deceased one Baniyan and one G
Chaddi, One Lungi was recovered and after preparing its
Bundles were given to the constable.

The injury No. 1 and 2 by Kulahdi Ex2 was possible to have
occurred. Axe was shown to the witness injury No.3 to 8 H
198 SUPREME COURT REPORTS [201 O] 8 S.C.R.

A is possible to be caused by fire arms. Injury No. 9 to 10
could be caused by falling on the ground. These injuries
were sufficient to cause death. These injuries could have
been possibly caused on 19.11.88 at about 4.30 in the
evening.
8
One cork one big pellet and two small pellets' were
recovered from his level and two corks and five small
pallets were recovered from his left and right lever. These
articles were handed over to the constable after sealing
it. That from the body of the deceased one Kurta, One
c Dhoti, One Baniyan and One ring of Coper were recovered
which were sealed and handed over to the Constable who
had come with."
13. This witness was cross examined at some length, but
D nothing favourable to the accused could come on record. The
statement of this witness clearly shows that there were gun shot
injuries on the bodies of both the deceased as well as sphere
and kulhari injuries on their shoulder and neck respectively.
Thus, medical evidence fully corroborates the statements of
E PW1 and PW3. Even if the statement of Devi Singh, PW2, is
ignored, there is no reason whatsoever before the Court to
d_oubt the version given by PW1 and PW3. Their presence at
the site was natural. In addition to this, it must be noticed that
upon the statement of Shiv Dayal, the sphere (Ext. Ka 1) was
F recovered from the bushes of the village Kharwanch in presence
of Thakur Das, PW 7, and Kanhaiya Lal. Thakur Das, PW 7,
appeared as a witness and corroborated the evidence of Ranjit
Singh, PW 9. The sphere was sent for chemical and serological
examination. The report of the Chemical Examiner and
G Serologist (Ext. Ka 32) was received and it showed that the
sphere contained human blood. The involvement of accused
Shiv Dayal along with other accused persons, the recovery of
the weapons and the fact that human blood was traced on the
recovered weapon completes the chain of events relating to the
H commission of the crime. It will not be in conformity with the
DHARNIDHAR v. STATE OF U.P. 199
[SWATANTER KUMAR, J.]
settled canons of criminal jurisprudence to disregard the A
evidence merely because Devi Singh, PW 2, had made a
variable statement which could be the result of confusion or lack
of understanding the question in its proper perspective, more
so, when he immediately in answer to the Court's question,
stated, that he had gone to village Durkhuru on the day B
subsequent to the commission of the crime and not on the
same day. It will be unfair, in any case, to disbelieve the
presence of PW1 and PW3 at the respective places of
occurrence and their statements, merely because PW2's
statement creates certain doubts as regards his presence. As c
already noticed, the counsel for the appellant had, with some
vehemence, argued about the unnatural conduct attributed by
the prosecution to the accused. It was argued that brother of
deceased Bahadur Singh was right in front of the accused at
the place of first occurrence, and they would have killed him
0
rather than going to the other site to kill Pyare Lal, the father of
deceased Bahadur Singh. This argument hardly cuts ice, much
less, leads to any favourable conclusion for the accused. There
is specific evidence on record which has been noticed by the
High Court as well as by the Trial Court that Bahadur Singh was E
prosecuted for the murder of UmraJ, Ram Sanehi's father and _
was acquitted. The case was contested by Pyare Lal, father of
Bahadur Singh. We have already indicated that there is some
motive apparent for commission of the crime, which further
indicates in the light of this evidence that they preferred to kill
Bahadur Singh and his father Pyare Lal. This cannot be said F
to be unnatural or of such a nature that it is not normally
expected of a person intending to commit a crime.

14. Another reason is. the statement of PW3. PW3,
Manohar is the son of the deceased Pyare Lal and has G
supported the case of the prosecution. If this witness was lying,
then he would have certainly deposed that he also was an eye-
witness to the first occurrence i.e. murder of Bahadur Singh.
However, in his examination-in-chief, he has specifically
dep~sed that he was an eye-witness only to the murder of H
200 SUPREME COURT REPORTS [2010) 8 S.C.R.

A Pyare Lal, his father and never referred to the murder of his
brother, Bahadur Singh. The truthfulness and bona fide of this
witness can hardly be doubted. He has further deposed that
Dharnidhar had not come with other accused but had suddenly
entered there and snatched the kulhadi from his father. With that
B kulhadi, he has caused injury on the neck of the deceased
Pyare Lal. If this witness was to falsely implicate all the accused,
nothing preventing him from stating that Dharnidhar had come
with all other accused and they together attacked the deceased
and also that he was a witness to the murder of Bahadur Singh
c and that even Dharnidhar was involved in the murder of his
brother. His statement is fully supported by PW1, as well as the
Investigating Officer. If they were falsely implicated, in all
probability, PW1, PW2 and the Investigating Officer could have
named Dharnidhar in relation to the first occurrence, i.e. murder
of Bahadur Singh. The attempt was also made to create a dent
0
in the case of the prosecution on the ground that Jawahar, who
was stated to be present, was not examined by the prosecution
and was the only independent witness. Thus, adverse inference
should be drawn against the prosecution for this purpose. This
E contention has rightly been rejected by the learned trial Court
and for correct reasons. The prosecution has filed an affidavit
that the said witness has been won over by the accused and
thus he was not examined. The Courts have already relied upon
the judgment of this Court in Mst. Ba/bir Kaur vs. State of
Punjab [1997 Crl.L.J. 273) and observed as under:
F
"It is undoubtedly the duty of the prosecution to lay before
the Court all material evidence available to it which is
necessary for unfolding its case; but it would be unsound
to lay down as a general rule that every witness must be
G examined even though his evidence may not be very
material or even it is known that he has been won over or
terrorized. In such a case, it is always open to the defence
to examine such witnesses and the Court can also call such
witness in the box in the interest of justice under Section
H 540 Cr.P.C."
DHARNIDHAR v. STATE OF U.P. 201
[SWATANTER KUMAR, J.]
15. Therefore, we have no hesitation in rejecting this A
contention raised on behalf of the appellants.

16. Still another aspect of this case is that when the
accused were being examined under Section 313 Cr.P.C.,
they, barely, denied the incident and stated that there were land 8
disputes. No evidence in that behalf had been adduced by the
accused persons. Even if this statement is assumed to be
correct, now the accused cannot turn their back and deny the
existence of dispute between the parties. This would further be
one of the· 1inks in the chain completing the crime of murder. C
Besides giving a general denial even to the basic facts, the
accused in the last two questions put to them by the Court, in
their $tatements under Section 313 of the Cr.P.C., stated that
Deopal etc. are from the same family and they have falsely
given evidence against them. They also stated that Deopal and
the family of the deceased wanted to grab their land and, D
therefore, they have falsely implicated them in the present case.
It is a settled principle of law that the statement made by the
accused under Section 313 of the Cr.P.C. can be used by the
Court to the extent that it is in line with the case of the
prosecution. The same cannot be the sole basis for convicting E
an accused. In the present case, the statement of accused
before the Court, to some extent, falls in line with the case of
the prosecution and to that extent, the case of the prosecution
cari be substantiated and treated· as correct by the Court. The
legislative intent behind this section appears to have twin F
· objects. Firstly, to provide an opportunity to the accused to
explain the circumstances appearing against him. Secondly, for
the Court to have an opportunity to examine the accused and
to elicit an explanation from him, which may be free from the r
fear of being trapped for an embarrassing admission or G
statement. The proper methodology to be adopted by the Court
while recording the statement of the accused under Section 313
of the Cr.P.C. is to invite the attention of the accused to the
circumstances and substantial evidence in relation to the
offence, for which he has been charged and invite his H
202 SUPREME COURT REPORTS [2010] 8 S.C.R.

A explanation. In other words, it provides an opportunity to an
accused to state before the Court as to what is the truth and
what is his defence, in accordance with law. It was for the
accused to avail of that opportunity and if he fails to do so then
it is for the Court to examine the case of the prosecution on its
B evidence with reference to the statement made by the accused
under Section 313 of the Cr.P.C. In Hate Singh Bhagat Singh
vs. State of Madhya Bharat [AIR1953 SC 468], while dealing
with Section 342 of the old Cr.P.C. equivalent to Section 313
of the present Cr.P.C. observed that answer of the accused
c given can be used in other enquiries or trials for other offences.
In the case of Narayan Singh vs. State of Punjab [(1963) 3
SCR 678 a Three Judge Bench of this Court held as under:

"Under Section 342 of the Cr.P.C. of Criminal Procedure
by the first Sub-section, insofar as it is material, the Court
D may at any stage of the enquiry or trial and after the
witnesses for the prosecution have been examined and
before the accused is called upon for his defence shall put
questions to the accused person for the purpose of
enabling him to explain any circumstance appearing in the
E evidence against him. Examination under Section 342 is
primarily to be directed to those matters on which evidence
has been led for the prosecution to ascertain from the
accused his version or explanation if any, of the incident
which forms the subject matter of the charge and his
F defence. By Sub-section (3), the answers given by the
accused may "be taken into consideration" at the enquiry
or the trial. If the accused person in his examination under
Section 342 confesses to the commission of the offence
charged against him the Court may, relying upon that
G confession, proceed to convict him, but if he does n'ot
confess and in explaining circumstance appearing in the
evidence against him sets up his own version and seeks
to explain his conduct pleading that he has committed no
offence, the statement of the accused can only be taken
H into consideration in its entirety.
DHARNIDHAR v. STATE OF U.P. 203
[SWATANTER KUMAR, J.]
Following the law laid down in Narayan Singh's case A
(supra) the Apex Court in State of Maharashtra v. Sukhdeo
Singh (1992 CriLJ 3454] further dealt with the question
whether a statement recorded under Section 313 of the
Cr.P.C. can constitute the sole basis for conviction and
recorded a finding that the answers given by the accused B
in response to his examination under Section 313 of the
Cr.P.C. of 1973 can be taken into consideration in such
an inquiry or trial though such a statement strictly is not
evidence and· observed in paragraph 52 thus:

Even on the first principle we see no reason why the Court C
could not act on the admission or confession made by the
accused in the course of the trial or in his statement
recorded under Section 313 of the Cr.P.C .....

It is thus well established in law that admission or D
confession of accused in the statement under Section 313
of the Cr.P.C. recorded in the course of trial can be acted
upon and the Court can rely on these confessions to
proceed to convict him."
E
17. The possibility of the accused being falsely implicated
in this case, in our opinion, stands ruled out. The statement of
the afore- referred witnesses, read in conjunction with the
documents filed on record, expert evidence, recovery of
weapons and blood stained earth, clearly establishes beyond
reasonable doubt, the guilt of the accused. F

18. Having discussed the merits of the case, we would now
proceed to deal with the last contention raised on behalf of the
appellant-accused that the Court could not have convicted all
the accused with the aid of Section 34 and/or 149 IPC. There G
is no doubt that Shiv Dayal has been attributed a common role
for the second incident and has been convicted on the basis
of Section 34 and/or 149 IPC. As per the case of the
prosecution there were 5 persons involved in the commission
of the crime. Shiv Dayal was stated to have given sphere blow H
204 SUPREME COURT REPORTS [2010] 8 S.C.R.

A to the deceased Bahadur Singh and thereafter with the intention
to kill Pyare Lal, moved together with the other accused to the
site where Pyare Lal was murdered. Dharnidhar had joined
Ram Sanehi, Saladin, Ramadin and Shiv Dayal. Thus, there
were 5 persons who constituted a common unlawful assembly
s and were carrying weapons with an intention to commit an
offence. They had knowledge and intention in mind that they are
going to kill Pyare Lal, as is evident from the evidence on
record. The learned counsel appearing for the appellants
contended that there was neither any common object nor any
c intention on the part of the accused to kill Pyare Lal and for that
matter, even Bahadur Singh. They have been falsely implicated
in the case by the prosecution. As far as the plea of false
implication is concerned we have already rejected it and as far
as their involvement in the commission of crime in terms of
D Section 34 IPC is concerned, it is obvious that a criminal act
has been committed by them in furtherance of a common
intention, and each of them was liable to be prosecuted for the
same, once they had murdered Bahadur Singh. PW1, who was
an eye witness to the said murder, in his examination-in-chief
stated as under:
E
"These persons are present in the court now. Shiv Dayal
has been thrown the bhala to my brother namely Bahadur
which was hit to his left shoulder sides chest portion. Then
Ramsanehi, Balaprasad and Ramadin had fired with their
F own riffles respectively. My brother Bahadur fallen on the
ground we persons who were present there has not said
any word on account of fear. Then Ram Sanehi said that
we have killed him Now his father Pyare/al is to be killed.
Saying such words these persons have been gone the
G court yard. After their departure I have seen my brother
Bahadur. He was dead. My brother Bahadur was lay down
in the court yard which was in front door of the Jawahar
Badhai. I Devi and Lally have been followed to Ram Sanehi
and others and reached to the court yard of the field where
H my father was busy in storing the jwar. My brother Manohar
DHARNIDHAR v. STATE OF U.P. 205
[SWATANTER KUMAR, J.]
and mother Mula bai were present there. I have seen that A
these four accused were present there. In the meanwhile
Dharnidhar came from some where/or from some place ·
Dharnidhar has snatched the Kulhadi (an axe) from the
hands of my father. Ram Sanehi, Saladin alias Balla &
Ramadin had fired on my father from their own riffles. My B
father lay down on the ground. Dharnidhar was cutting the
neck of my father. We have started shouting. After hearing
the shouting so many persons rushed out here. But they
could not reach at the spot. After· seeing the crowd of .
people of the village these accused persons have been c
run out to the jungle area. My father had been fallen at the
distance of 7 steps away from the Mahua Tree in the
Ladaiya fields. When the accused persons left that place
at that time we had gone to seen the condition of my·
father."
D
(emphasis supplied)

19. Let us examine the judgments of this Court in relation
to common intention and commission of crime by the members
of an unlawful assembly. It is a settled principle of law that to E
show common intention to commit a crime it is not necessary
for the prosecution to establish, as a matter of fact, that there
was a pre-meeting of the minds and planning before the crime
was committed. In the case of Surendra Chauhan vs. State of
Madhya Pradesh [AIR 2000 SC 1436), this Court held that F
common intention can be developed on the spur of the moment.
Also, under Section 34, a person must be physically present
at the place of actual commission of the crime. The essence
is the simultaneous consensus of the minds of persons
participating in the criminal act and such consensus can be G
developed on the spot. It is not mandatory for the prosecution
to bring direct evidence of common intention on record and this
depends on the facts and circumstances of the case. The
intention could develop even during the course of occurrence.
In this regard reference can be made to Ramaswamy H
206 SUPREME COURT REPORTS (2010] 8 S.C.R.

A Ayhangar vs. State of Tamil Nadu ((1976) 3 SCC 779) and
Rajesh Govind Jagesh vs. State of Maharashtra ((1999) 8
sec 428). In other words, to apply Section 34, two or more
accused should be present and two factors must be
established i.e. common intention and participation of the
a accused in the crime. Section 34 moreover, involves vicarious
liability and therefore, if intention is proved but no overt act is
committed, the section can still be invoked. In the present case
all the 4 accused had gone together armed with three guns and
one sphere and after shouting, making their minds clear, had
c fired at Bahadur Singh causing gun injuries and sphere injury
on his shoulder. The learned Trial Court, besides recording the
finding against the accused on motive and referring to the
recovery of the sphere, has also, in great detail, dealt with the
injuries caused by the accused upon the two deceased. In terms
of the medical reports proved by PW 6, (being Ext. K3 and K4),
0
there were four gun shots on the body of each of the deceased
and in addition thereto one incised wound near the shoulder
of Bahadur Singh and two incised wounds on the neck of Pyare
Lal. The medical evidence is clear that these injuries could be
E caused by gun, sphere and kulhari. The attending circumstances
fully support the case of the prosecution. PW1 and PW3, who
were present at the different places of occurrence, have frankly
stated that they were to intervene and save their brother and
father but because of the fear of the gun they could not do so.
Having found the above four accused guilty on the strength of
F Section 302 read with Section 34 of the IPC, the Trial Court
held all the 5 accused are guilty of Section 302 read with
Section 149 of the IPC for the murder of Pyare Lal: It has been
shown in the evidence that after committing the murder of
Bahadur Singh, they moved to the fields where Pyare Lal was
G watching his bajra crop, after having clearly made up their
minds and with a common object to kill Pyare Lal. Once they
reached the spot, they were joined by Dharnidhar, who also
participated in the commission of the crime and in fact, played
an active role by snatching the kulhari of the deceased and
H causing injury on his neck. The said injury and the gun injuries
DHARNIDHAR v. STATE OF U.P. 207
[SWATANTER KUMAR, J.]·
proved to be fatal, which ultimately resulted in the death of A
Pyare Lal on the spot itself. In fact, it is not even expected of
the prosecution to assign particular or independent roles played
by each accused once they are members of unlawful assembly
and have assaulted the deceased persons, which resulted in
their death. Every person of such an unlawful assembly, can be B
held to be liable. In the case of Sheo Prasad Bhore v. State of
Assam [(2007) 3 SCC 120], this court took a similar view.

20. In the case of Md. Ankoos vs. Public Prosecutor, High
Court of A.P. [AIR 2010 SC 566], this Court held as under:
c
"28 ........................... Section 149 IPC creates
constructive liability i.e. a person who is a member of the
unlawful assembly is made guilty of the offence committed
by another member of the same assembly in the
circumstances mentioned in the Section, although he may D
have had no intention to commit that offence and had done
no overt act except his presence in the assembly and
sharing the common object of that assembly. The legal
position is also fairly well settled that because of a mere
defect in language or in the narration or in form of the E
charge, the conviction would not be rendered bad if
accused has not been affected thereby ....... " ·

21. In the case of Pandurang Chandrakant Mhatre v. State
of Maharashtra [(2009) 10 SCC 773], this Court enunciated
the principle that under Section 149, two ingredients are F
required to be satisfied. Firstly, there has to be the commission
of an offence by any member of an unlawful assembly.
Secondly, such offence must have been committed in
prosecution of the common objed of that assembly or must be
such that the members of that assembly knew it to be likely that G
the offence would be comn:iitted. The Court held as under:

"65. Section 149 IPC creates a specific and distinct
offence. Its two essential ingredients are: • ·
H
208 SUPREME COURT REPORTS (2010] 8 S.C.R.

A (i) commission of an offence by any member of an unlawful
assembly and;

(ii) such offence must have been committed in prosecution
of the common object of that assembly or must be such
B
committed.
.
as the. members of that assembly knew it be likely to be

66. In Masalti v. State of U.P. [AIR 1965 SC 202], this
Court exposited:

c "17 ... What has to be proved against a person who is
alleged to be a member of an unlawful assembly is that
he was one of the persons constituting the assembly and
he entertained along with the other members of the
assembly the common object as defined by Section 141
D IPC. Section 142 provides that whoever, being aware of
facts which render any assembly an unlawful assembly,
intentionally joins that assembly, or continues in it, is said
to be a member of an unlawful assembly. In other words,
an assembly of five or more persons actuated by, and
entertaining one or more of the common object specified
E
by the five clauses of Section 141, is an unlawful assembly.
The crucial question to determine in such a case is whether
the assembly consisted of five or more persons and
whether the said persons entertained one or more of the
common objects as specified by Section 141. While
F determining this question, it becomes relevant to consider
whether the assembly consisted of some persons who
were merely passive witnesses and had joined the
assembly as a matter of idle curiosity without intending to
entertain the common object of the assembly."
G
xxx xxx xxx xxx
71. Having carefully examined the testimony of eye-
witnesses, we find that prosecution has been able to
establish that party of assailants comprised of more than
H
DHARNIDHAR v. STATE OF U.P. 209
[SWATANTER KUMAR, J.]

five persons and that they formed unlawful assembly. It.is A
also .seen from the evidence that at least five persons
chased the deceased and then attacked him. These
members of the. unlawful assembly who chased and
attacked the deceased definitely shared common object
of causing murder of Suresh Atmaram Gharat. A-1 had B
died during pendency of the appeal before the High Court
and, therefore, nothing further needs to be said about his
role."

22. The principles controlling the application of provisions C
of Section 149 have been quite well settled by now. Years back,
the bench of this court in Masalti v. State of U.P. [1964 (8) SCR
133] declared the dictum of law that the. prosecution has to
prove against a person, who is alleged to be a member of an
unlawful assembly, that the person constitutes the assembly and
has entertained along with the other members of the assembly, D
the common object, as defined by Section 141 of the IPC. The
crucial question to be determined in such a case is whether
the assembly consisted of five or more persons and whether
the said persons. entertained one or more of the· common
objects. For determination of the common object of the unlawful E
assembly, the conduct of each of the members of the said
assembly before the attack, at the time of attack and thereafter,
as well as the motive for the crime are some of the relevant
considerations. However, the time of forming an unlawful intent
is notmaterial because it is possible that in a given case an F
assembly, which is lawful to begin with, subsequently becomes
unlawful: In other words, unlawful intent can develop during the ·
course of t~e inci.dent at the spot co instanti. [Maranadu v. ·
State by inspector of Police, Tamil Nadu (2008) 16 SCC 529].
. . . ·. . . . ·. .· ,: G
· 23. If we see the facts of the present case, it is obvious ··
that the· four accused were together· and· had openly declared ·
their intention to kill Pyare Lal. They were then joined by
Dtiarnidhar, in furtherance of this cohimori. bbject, to' cbminif ~n
offen9e · 1n this manner an unlaWtul. assembly was formed~
Dharnidhar assaulted Pyare Lal with a kulhari. Thus, every one H
·r , .• • - , -. , •' " • ~:~ - - ; .. ,
210 SUPREME COURT REPORTS [2010) 8 S.C.R.

A of them participated in the commission of the crime, besides
the fact that they had a common object to kill Pyare Lal. In these
circumstances, we are unable to find any legal or other infirmity
in the judgment of the Trial Court, as well as that of the High
Court in holding that the four accused, in the case of murder of
B Bahadur Singh, were guilty of the offence under Section 302
read with Section 34. Furthermore, in the case of the deceased
Pyare Lal, all five of the accused were guilty of the offence under
Section 302 read with Section 149 IPC. Besides this fact,
accused Ram Sanehi, Ramadin, Saladin and Shiv Dayal
c accused had also committed an offence under Section 148 of
the IPC while accused Dharnidhar had committed an offence
under Section 147 of the IPC.

24. In view of the above elaborate reasoning, we do not
find any merit in the contentions raised on behalf of the
D appellants in all the appeals. The same are therefore rejected.
Thus, we are unable to persuade ourselves to interfere in the
judgment of the conviction or even in the order of sentence for
that matter. Without hesitation we dismiss these appeals.

R.P. Appeal dismissed.