Holding

Section 34 was correctly applied; the relatives’ evidence was admissible; the FIR delay did not invalidate the prosecution case; and the seven‑year sentence was reduced to four years as appropriate.

Summary

Harbans Kaur and Mitta Singh assaulted Sham Singh, inflicting grievous injuries that later caused his death. The victim’s father Piara Singh and wife Sito, who were relatives of the accused, testified as eyewitnesses; the FIR was lodged after a short delay. The trial court convicted the appellants under Sections 323, 325 and 326 read with Section 34 of the IPC and sentenced them to three months, two years and seven years of rigorous imprisonment respectively, a decision affirmed by the High Court. On appeal, the Supreme Court held that the relatives’ testimony was admissible, the FIR delay did not vitiate the prosecution case, and Section 34 was correctly applied to establish common intention. While upholding the convictions, the Court reduced the seven‑year term to four years as a more appropriate quantum of punishment. The appeal was therefore disposed of with the modified sentence.

Issues considered

Whether testimony of relatives of the accused can be treated as unreliable or untruthful.
Whether the delay in lodging the FIR raises a presumption of suspicion against the prosecution case.
Whether Section 34 of the IPC is applicable to the facts of the assault leading to death.
Whether the sentences imposed, particularly the seven‑year term, are excessive.

Legislation cited

Indian Penal Code, 1860s. 304(Part-I), s. 323, s. 325, s. 326, s. 34

Subjects

Section 34 IPCcommon intentionjoint liabilityFIR delaywitness credibilitysentencinggrievous hurtcriminal law

Judgment

A 'HARBANS KAUR 'AND ANR.
V.

STATE OF HARYANA

'MARCH· I, '2005 •

B [ARIJIT PASAYATAND S.H. KAPADIA, JJ.].
-.
Penal.Code,, 1860: .,

. Sections 323, •325 and 326 r/w. Section 34-lnjuries caused-Resulting
,C in subsequent death-Incident seen by related eye-witnesses-Conviction by
Courts below-Sentences of 3 months 2 years and 7 years respective~v--On
appeal, held: Conviction justified-However in view of background of the
case, sentence of 7 years reduced to custodial sentence of 4 years.
Section'34--':Common intention-Applicability of-Held: In order to make
D the common intention applicable, plan or meeting of mind of all the accused, ,_
either prearranged or on the spur of moment, is to be established-Proof of
common intention, in absence of direct proof, can be inferred from the
circumstances of proved facts and circumstqnces of the case-Evidence.
Criminal Trial :
E Related witness-Evidentiary value of-Held: such witness cannot be
treated as untruthful-In case ofplea of their partiality, reason for the witness
to shield the actual culprit is to be shown.
FIR-Delay in lodging-Effect of-On prosecution case-Held: The delay
in lodging FIR does not necessarily make the prosecution case suspect-Even
F a long delay can be condoned if witnesses are shown to have no. motive to
implicate the accused and congent reason for delay is given-TheAsuspicion
due to delay will depend on the facts of each case.
Appellants-accused caused grievous injuries to a person. Father (PW-
6) and wife (PW-7) of the victim were the eyewitnesses to the incident.
G After some time of the incident, when the condition of the victim
deteriorated he was taken to hospital. The doctor sent information to the
Police and on the basis of statement of PW-6, FIR was -recorded. After
some time the victim died. Appellfl~ts were charged u/s. 304 Part-I IPC
r/w Section 34. Trial Court, relying on the evidence of eye-witnesses held
the accused guilty u/s 323, 325 and 326 r/w Section 34 IPC and sentenced.
H ~o

I
HARBANSKAUR v. STATEOFHARYANA 451

them to rigorous imprisonment for three months, two years and seven A
years respectively. High Court confirmed the conviction.

In appeal to this Court, appellants contended that prosecution
version did not inspire confidence as the same was based on evidence of
related witnesses; that there was delay in lodging FIR; that Section 34 IPC
was not applicable in the facts of the case; and that the sentences imposed B
were high.

Disposing of the appeal, the Court

- HELD : 1.1. Courts below have rightly relied on the evidence of
prosecution witnesses. There is no proposition in law that relatives are to
be treated as untruthful witnesses. On the contrary, reason has to be shown
when a plea of partiality is raised to show that the witnesses had reason
C

to shield actual culprit and falsely implicate the accused. No evidence has
been led in this regard. (454-E)

l.2. There cannot be any generalization that whenever there is a D
delay fo lodging the FIR, the prosecution case becomes suspect. Whether
delay is so long as to throw a cloud of suspicion on the seeds of the
prosecution case, would depend upon the facts of each case. Even a long
delay can be condoned if the witnesses have no motive of implicating the
accused and have given a plausible reason as to why the report was lodged E
belatedly. In the instant case, this has been done. It is to be noted that
though there was cross-examination at length no infirmity was noticed in
their evidence. (454-F-G)

2.1. Section 34 has been rightly applied in this case. Section 34 has
been enacted on the principle of joint liability in the doing of a criminal f
act. The Section is only a rule of evidence and does not create a substantive
offence. The distinctive feature of the Section is the element of participation
in action. The liability of one person for an offence committed by another
in the course of criminal act perpetrated by several persons arises under
Section 34 if such criminal act is done in furtherance of a common G
intention of the persons who join in committing the crime. Direct proof
of common intention is seldom available and, therefore, such intention can
only be inferred from the circumstances appearing from the proved facts
of the case and the proved circumstances. In order to bring home the
charge of coinmon intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of mind H.
452 SUPREME COURT REPORTS [2005) 2 S.C.R.

A of all the accused persons to commit the offence for which they are charged
with the aid of Section 34, be it pre-arranged or on the spur of moment;
but it must necessarily be before the commission of the crime.
(456-C; 454-H; 455-CI

Ashok Kumar v. State of Punjab, AIR (1977) SC 109, relied on.
B
Mahbub Shah v. Emperor, AIR (1945) Privy Council t 18, referre_d to.

2.2. Section 34 does not say "the common intention of all", nor does
it say "and intention common to all". Under the provisions of Section .34
the essence of the liability is to be found in the existence of a common
.C · intention animating the accused leading to the doing of a criminal act in
· furtherance Of such intention. As a result of the application of principles
enunciated in Section 34, when an accused is convicted under Section 302
-
read with Section 34, in law it means that the accused is liable for the act
which caused death of the deceased in the same manner as if it was done
D by him alone. The provision is intended to meet a case in which it may be
difficult to distinguish between acts of individual members of a party who
act in furtherance of the common intention of all or to prove exactly what
part was taken by each of them. (455-G; 456-AJ

Ch. Pu/la Reddy and Ors. v~ State of Andhra Pradesh, AIR (1993) SC
E (1899) and Anil Sharma and Ors. v. State ofJharkhand, (2004) 5 SCC 679,
relied on.

3. In view of the background facts, custodial sentence of 4 years in
place of 7 years for the offence relatable to Section 326 read with Section
34 IPC would meet the ends of justice. The other sentences imposed remain
F unaltered. (456-D-EJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No .. 370
of 2005.

From the Judgment and Order dated 12.11.2003 of the Punjab and
G Haryana High Court at Chandigarh in Crl. A. No. 332(SB) of 1991:

·. Salil Bali, Rajesh K. Sharma and Ms. Shalu Sharma for the Appellants.

D:P. Singh, Ms. Avneet Toor and Vijay Kumar Garg for the Respondent.

H The Judgment of the Court was delivered by .
HARBANSKAUR v. STATEOFHARYANA[PASAYAT,J.] 453
ARIJIT PASAYAT, J. Leave granted. A
\
Appellants call in question legality of the judgment rendered by a
Division Bench of the Punjab and Haryana High Court upholding conviction
of the appellants (hereinafter referred to as the 'accused') under Sections
323, 325 and 326 read with Section 34 of the Indian Penal Code, 1860 (in
short the 'IPC') and sentence as imposed by the trial Court which had sentenced B
each to undergo rigorous imprisonment for three months, two years and
seven years respectively with separate fines for each of the alleged offences
with default stipulations.

Background facts leading to the trial of the accused appellants are as C
follows :

The case was registered on the basis of information lodged by Piara
Singh (PW-6), which was recorded on 10.11.1989 at about 2.00 a.m. According
to the informant, he and his son Sham Singh's wife Sito (PW-7) were sitting
in the courtyard of the house of Sham Singh (hereinafter referred to as the D
'deceased'). It was about 11.00 a.m. on 9.11.1989 when deceased was coming
from the village after purchasing vegetables. When he reached near the house
of Janta Singh, son of Dharam Singh, Harbans Kaur (A-1) armed with a
Gandasi and Mitta Singh (A-2) armed with a lathi were present there. Mitta
made an obscene gesture. At this Mitta Singh and the deceased exchanged
hot words and abused each other. Harbans Kaur gave a Gandasi blow on the E
right hand of the deceased, which caused a grievous injury. Mitta Singh gave
a lathi blow on the left foot of the deceased and also gave a thrust blow of
lathi on the left side of his head. Deceased fell down on the ground. The
occurrence was witnessed by Piara Singh (PW-6) and Sitto (PW-7). Both of
them took Sham Singh injured to their house. When Piara Singh and Sito F
raised alarm, both the accused persons ran away from the spot. Since the
condition of Sham Singh became serious during the night time, he was taken
to the Primary Health Centre, Ratia. On 10.11.1989 at night at about 0.15
a.m. Dr. O.P. Kakkar examined Sham Singh. He found injury No. I which
was an incised wound in the middle phalanx of the index finger of right
hand. The second injury was an abrasion on the lateral side of upper I/3rd G
part of left leg and the patient complained of pain on different parts of the
body. Dr. O.P. Kakkar sent information to the Police Station, Ratia. ASI Ram
Rattan reached the Primary Health Centre and recorded the statement of Piara
Singh which is the FIR. On the basis of this statement, FIR was recorded by
AS! Bharat Singh. Sham Singh expired at about 1.50 a.m. on 10.11.1989. H
454 SUPREME COURT REPORTS [2005] 2 S.C.R.

A Hence, information to this effect was sent.
/
the accused persons were charged for alleged commission of offences
punishable under Section 304 Part-I read with Section 34 IPC. The accused
persons pleaded innocence and claimed trial. Eight persons were examined to
further the prosecution case. Piara Singh (PW-6) was the complainant and
B claimed to be an eye-witness. Smt. Sito (PW-7) wife of the deceased also
claimed to be an eye-witness. Placing reliance on their evidence, the learned
Additional Session Judge, Hissar found the accused persons guilty and
sentenced them to undergo sentences as noted above. In appeal, the Hig~
Court confirmed the conviction and the sentences.
c In support of the appeal, learned counsel for the accused appellants
submitted that the prosecution version was based on testimonies of relatives
and, therefore, does not inspire confidence. Section 34 IPC has no application
to the facts of the case. Further there was delay in lodging the FIR.
Additionally, it was submitted that the sentences imposed were high.
D
In response, learned counsel for the State submitted that after analysing
the factual position the Courts below have found the accused persons guilty
and no interference is called for. The sentences imposed are also not in any
manner on the higher side.

E There is no proposition in law that relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be shown when a plea of partiality
is raised to show that the witnesses had reason to shield actual culprit and
falsely implicate the accused. No evidence has been led in this regard. So far
as the delay in lodging the FIR is concerned, the witnesses have clearly stated
that after seeing the deceased in an injured condition immediate effort was
F to get him hospita,Iized and get him treated. There cannot be any generalization
that whenever there is a delay in lodging the FIR, the prosecution case becomes
suspect. Whether delay is so long as to throw a cloud of suspicion on the
seeds of the prosecution case, would depend upon the facts of each case.
Even a long delay can be condoned if the witnesses have no motive of
G implicating the accused and have given a plausible reason as to why the
report was lodged belatedly. In the instant case, this has been done. It is to
be noted that though there was cross-examination at length no infirmity was
noticed in their evidence. Therefore, the trial Court and the High Court were
right in relying on the evidence of the prosecution witnesses.

H Section 34 has been enacted on the principle of joint liability in the
HARBANSKAUR v. STATEOFHARYANA[PASAYAT.J.] 455 ·

. doing of a criminal act. The Section is only a rule of evidence and does not A
create a substantive offence. The distinctive feature of the Section is the
element of participation in action. The liability of one person for an o(fence
committed by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done in furtherance of
a common intention of the persons who join in committing the crime. Direct B
proof of common intention is seldom available and, therefore, such intention
can only be inferred from the circumstances appearing from the proved facts
of the case and the proved circumstances. In order to bring home the charge
of common intention, the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of mind of all the
accused persons to commit the offence for which they are charged with the C
aid of Section 34, be it pre-arranged or on the spur of moment; but it must
necessarily be before the commission of the crime. The true contents of the
Section are that if two or more persons intentionally do an act jointly, the
position in law is just the same as if each of them has done it individually
by himself. As observed in Ashok Kumar v. State of Punjab, AIR (1977) SC
109, the existence of a common intention amongst the participants in a crime D
is the essential element for application of this Section. It is not necessary that
the acts of the several persons charged with commission of an offence jointly
must be the same or identically similar. The acts may be different in character,
but must have been actuated by one and the same common intention in order
to attract the provision. E
As it originally stood the Section 34 was in the following terms :

"When a criminal act is done by several persons, each of such
persons is liable for that act in the same manner as ifthe act was done
by him alone." F
In 1870, it was amended by the insertion of the words "in furtherance
of the common intention of all" after the word "persons" and before the word
"each", so as to make the object of Section 34 clear. This position was noted
in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.
G
The Section does not say "the common intention of all", nor does it say
"and intention common to all". Under the provisions of Section 34 the essence
of the liability is to be found in the existence ofa common intention animating
the accused leading to the doing of a criminal act in furtherance of such
intention. As a result of the application of principles enunciated in Section
34, when an accused is convicted under Section 302 read with Section 34, in H
456 SUPREME COURT REPORTS [2005) 2 S:C.R.

A law it means that the accused is liable for the act which caused death of the
deceased in the same manner as if it was done by him alone. The provision
is inte.nded to meet a case in which it may be difficult to distinguish between
acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them. As
was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, AIR
B (1993) SC 1899, Section 34 is applicable even if no injury has been caused
by the particular accused himself. For applying Section 34 it is not necessary
to show some overt act on the part of the accused.

The above position was highlighted recently Anil Sharma and Ors. v.
C State of Jharkhand, [2004] 5 SCC 679.
If the factual scenario as noted above is considered in the background
of legal principles set out above, the inevitable conclusion is that Sectioh 34
has been rightly applied.

D The residual question is whether any interference is called for on the
quantum of sentence. Looking into the background facts as not.ed above, we
are of the view that custodial sentence of 4 years in place of"7 ·years as
recorded by the Courts below for the offence relatable to Section 326 read
with Section 34 IPC would meet the .ends of justice. The other sentences
imposed ·remain unaltered. With the aforesaid modification, the appeal is
E disposed of.

K.K.T. Appeal disposed of.