Holding

The Court held that the relatives' testimony is reliable, a common intention existed, so Section 34 applies to Hardeep and Harjinder, while Jaswinder’s liability is limited to Section 304 Part II.

Summary

Four accused—Gurcharan Singh, Hardeep Singh, Harjinder Singh and Jaswinder Singh—attacked the deceased Amrik Singh with weapons, causing multiple injuries that led to his death. Gurcharan Singh exhorted the others; Hardeep and Harjinder delivered fatal blows to the head, while Jaswinder struck the arm. The trial court convicted Hardeep, Harjinder and Jaswinder under Section 302 read with Section 34 IPC and acquitted Gurcharan; the State and the convicted appealed, and the complainant filed a revision. The High Court dismissed all appeals. The Supreme Court examined whether the testimony of the deceased’s son and wife (relatives) could be trusted and whether Section 34 applied. It held that familial relationship does not per se discredit eyewitnesses, that common intention was proved, and that Section 34 applies to Hardeep and Harjinder. Jaswinder’s conviction was altered to Section 304 Part II with an eight‑year sentence. The appeal was partly allowed.

Issues considered

The credibility of eyewitnesses who are close relatives of the deceased.
Whether the facts establish a common intention sufficient to invoke Section 34 of the IPC.
Whether the conviction of Jaswinder Singh should be under Section 302 read with Section 34 or under Section 304 Part II.
The propriety of the acquittal of Gurcharan Singh (though not directly revisited).

Legislation cited

Indian Penal Code, 1860s. 302, s. 304, s. 34

Subjects

murderSection 34 IPCcommon intentioneyewitness credibilitypartisan witnessconviction alterationhomicidejoint liability

Judgment

[2008) 9 S.C.R. 1114

..
"(

A HARDEEP SINGH & ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 468 of 2007)

June 11, 2008
B
[DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.] "(
-
Penal Code, 1860 - s. 302 read with s. 34 - Murder -
Three accused persons armed with weapons causing fatal in-
c juries to deceased - Exhortation by the fourth accused.- lnju-
ries caused by first two accused on the head as also legs of
the deceased - However, third accused caused injuries only
on arm - Incident witnessed by deceased's son and his wife -
Conviction of first three accused uls. 302 r/w s. 34, however,
acquittal of the fourth one - Correctness of - Held: There was i
D
no discrepancy in the evidence of eye-witnesses - They suffi- i
ciently established the role played by first two accused - Evi-
dence cannot be discarded on the ground that the witnesses
being a close relative, thus a partisan witnesses - s. 34 is
applicable - Thus, conviction of first two accused u/s. 302 r/w
E s.34 justified- However, in view of the injuries inflicted by the
third accused, his conviction altered to one u/s. 304 (Part II) -
Custodial sentence of eight years awarded.
Penal Code, 1860 - s. 34 - Common intention - Appli- •
F cability of - Requirement for - Stated. '
According to the prosecution case, on the fateful day,
when the deceased was going for a visit along with his
son-PW 7 and his wife, all of a sudden accused GS, HS ,
HJ and JS armed with weapons reached there. GS ex-
G horted the other accused to kill the deceased. HJ and JS
inflicted gandasi blows on the legs of the deceased and
as a result he fell down. Thereafter, HJ and HS inflicted
blows ori the head of the deceased. HS and JS assaulted
the deceased on his arms. The complainant and his
H 1114
HARDEEP SINGH & ORS. v. STATE. OF 1115
HARYANA

-
y

mother shouted. The accused fled away with their weap- A
ons. The deceased succumbed to his injuries. FIR was
lodged. Investigation was carried out. The doctor con-
ducted the post mortem and found 14 injuries on the body
of the deceased. Appellants were convicted u/s 302 read
with s. 34 IPC. GS was acquitted. The State and the ap- B
.-. y pellants filed appeals. PW 7-complainant filed Revision
challenging the acquittal of GS and sought enhancement
of sentence of accused persons. The High Court dis-
missed both the appeals as also the Revision. It held that
the evidence of PWs 7 and 8 sufficiently established the c
accusations. Hence the present appeals.
Partly allowing the appeal, the Court
HELD: 1.1 Relationship is not a factor to affect credibil-
~ ity of a witness. It is more often than not that a relation would
D
not conceal actual culprit and make allegations against an
innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a
careful approach and analyse evidence to find out whether
it is cogent and credible. [Para 7) [1122-A & BJ
E
1.2 The ground that the witness being close relative
and consequently being a partisan witness, should not
be relied upon cannot be accepted. [Para 10) [1123-A]
,.. >
Dalip Singh and Ors. v. The State of Punjab AIR (1953)
SC 364; Gu/i Chand and Ors. v. State of Rajasthan 1974 (3) F
SCC 698; Vadivelu Thevar v. State of Madras AIR (1957) SC
614; Rameshwar v. State of Rajasthan AIR (1952) SC 54;
Masalti and Ors. v. State of UP AIR (1965) SC 202; State of
Punjab v. Jagir Singh AIR (1973) SC 2407; Lehna v. State of
Haryana 2002 (3) SCC 76; Gangadhar Behera and Ors. v. G
State of Orissa 2002 (8) SCC 381; Babula/ Bhagwan Khandare
~
and Anr. v. State of Maharashtra 2005 (10) SCC 404; Salim
Saheb v. State of MP 2007(1) SCC 699 - referred to.
2.1 Section 34 IPC has been enacted on the prin-
H
1116 SUPREME COURT REPORTS [2008) 9 S.C.R.

A ciple of joint liability in the doing of a criminal act. The
Section is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the Sec-
~

-
tion is the element of participation in action. The liability
of one person for an offence committed by another in the
B course of criminal act perpetrated by several persons
arises u/s. 34 if such criminal act is done in furtherance of
a common intention of the persons who join in commit-
'(
"""
ting the crime. Direct proof of common intention is sel-
dom available and, therefore, such intention can only be
c 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
D i
for which they are charged with the aid of Section 34, be ,,
it pre-arranged or on the spur of moment; but it must nee-
essarily be before the commission of the crime. The true
contents of the Section is that if two or more persons in-
tentionally do an act jointly, the position in law is just the
E same as if each of them has done it individually by him-
self. [Para 14] [1124-B,C,D,E & F]
Ashok Kumar v State of Punjab AIR 1977 SC 109 - re-
lied on. . ...
F 2.2 The existence of a common intention amongst
the participants in a crime 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
G acts may be different in character, but must have been
actuated by one and the same common intention in or-
der to attract the provision. [Para 14] [1124-F,G & H] y

2.3 The Section does not say "the common inten-
ti on of all", nor does it say "and intention common to all".
H
HARDEEP SINGH & ORS. v. STATE OF 1117
HARYANA
r-
'I> Under the provisions of Section 34 the essence of the A
liability is to be found in the existence of a common inten-
tion animating the accused leading to the doing of a crimi-
nal 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 B
_,
)'
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 by him alone. The provision is
intended to meet a case in which it may be difficult to dis-
tinguish between acts of individual members of a party c
who act in furtherance of the common intention of all or
to prove exactly what part was taken by each of them.
[Para 15] [1125-A,B & C]
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh;
AIR (1993) SC 1899 - referred to. D
3. The evidence of PWs 7 & 8 clearly establishes.the
roles played by the appellant HS and HJ. It is also clear
from the prosecution evidence that on hearing of the ex-
hortation of the acquitted GS, JS and HJ had given blows
on the legs of the deceased. After he fell down, HS gave E
blow on the head. Similarly HJ also gave blows on the
head. After the deceased fell down JS did not attack on
}
any vital part of the deceased's body. He assaulted on
the arm of the deceased. In the aforesaid circumstances,
while appeal filed by the accused appellants HS and HJ F
Singh is dismissed, the appropriate conviction of JS
would be under Section 304 Part II IPC. His conviction is
accordingly altered. Custodial sentence of eight years
would meet the ends of justice. [Para 16] [1125-D,E,F & G]
G
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
,. No. 468 of 2007
From the Judgment and Order dated 6.1.2006 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 198-DBA of 1997. H
1118 SUPREME COURT REPORTS [2008] 9 S.C.R.

A Kumud Lata Das for the Appellant.
TV George for the Respondent.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
B the judgment of a Division bench of the Punjab & Haryana High -r
Court dismissing the appeal filed by the appellants. By a com-
mon judgment two appeals and one criminal Revision were dis-
posed of. Four persons faced trial for alleged commission of
offence punishable under Section 302 read with Section 34 of
C the Indian Penal Code, 1860 (in short the 'IPC'). One of them
i.e. Gurcharan Singh was acquitted by the learned Sessions
Judge, Sirsa. State questioned his acquittal. Similarly the com-
plainant, PW? also filed the revision petition seeking enhance-
ment of the sentence of convicted accused persons to death
D sentence, apart from questioning of acquittal of Gurcharan
Singh. By the common judgment the High Court dismissed the
Criminal Appeal filed by the State and the Criminal Revision
filed by the complainant while dismissing the appeal filed by
the appellants also.
E 2. Background facts in a nutshell are as follows:
Sukhdev Singh (PW-7) lodged FIR at 5.30 PM on
3.11.1994 that on 3.11.1994 at about 4.30 PM, he was going
with his mother Pritam Kaur to visit the house of his father's
F sister on the eve of Diwali festival. At that time, his father Amrik
Singh (hereinafter referred to as 'deceased') was going about
10 paces ahead of them on the same foot way for his domestic
work. As soon as deceased reached in front of the house of
one Parlhand Singh son of Karnail Singh, then all of a sudden,
G acquitted accused Gurcharan Singh, armed with gandasi,
Hardeep Singh, armed with dattar, Harjinder Singh armed with
gandasi and Jaswinder Singh also armed with gandasi,
emerged from a street known as schoolwali gali. Acquitted ac-
cused Gurcharan Singh raised a lalkara (exhortation) that "Aaj
lsko Bach Kar Jane Mat Dena". Soon thereafter, his sons ap-
H
HARDEEP SINGH & ORS. v. STATE OF 1119
HARYANA [DR. ARIJIT PASAYAT, J.]

r pellants Harjinder Singh and Jaswinder Singh inflicted gandasi A
injuries on the deceased with an intention to commit his mur-
der. They gave gandasi blows, which landed on the legs of the
deceased. As a result, the deceased fell down on the road.
His turban also went off his head and fell on the ground. There-
after accused appellant Hardeep Singh gave dattar blow, hit- B
ting the deceased on his head. He was followed by accused
appellant Harjinder Singh, who also inflicted a gandasi blow on
' ...,
the head of the deceased. Thereafter, acquitted respondent
Gurcharan Singh and accused appellant Jaswinder Singh
caused further injuries with gandasi on the arms of the deceased. c
Complainant Sukhdev Singh and his mother Pritam Kaur raised
a hue and cry saying "Mar Dia Mar Dia". After that the deceased
was dragged by all the four accused inside the house of ac-
cused-appellant Harjinder Singh. Complainant Sukhdev Singh
and his mother Pritam Kaur followed them and raised hue and
D
cry. On hearing their noise all the aforesaid four accused,
~
namely, Gurcharan Singh, Hardeep Singh, Harjinder Singh and
Jaswinder Singh, ran away with their weapons towards the vii-
lage side. The complainant and his mother looked at the de-
ceased who had succumbed to the injuries. The complainant,
leaving behind his mother near the dead body at the spot, went E
to the police post to lodge a report. His statement was recorded
by Kartar Singh, lncharge, Police Post, Kariwala, on 3.11.<994
itself. On receipt of ruqa (Ex.PB), a formal FIR (Ex.PB/1) under
Sections 302/34 IPC was registered by ASI Baljit Singh (PW3)
>· at Police Station, Ding, at 6.50 PM. He sent a special report F
I'
through Constable Shoop Singh (PW-5) on the same day to
JMIC, Sirsa. A detailed inquest report (Ex. PD /4) was prepared
on 3.11.1994 itself by ASI Kartar Singh (PW 9). Dr. Narinder
Chaudhary (PW 4) conducted the post mortem (Ex.PD) of the
deceased on 4.11.1994 at about 10.15 AM. He found as many G
as 14 injuries on the dead body. They are as under:
"1. A 'V' shape incised wound each limb measuring 8
ems x 2cms x brain deep over the left parietal region
8 ems away from the pinna of the left ear. On
H
1120 SUPREME COURT REPORTS [2008] 9 S.C.R.

-i
A dissection, there was fracture of the left parietal bone. ;::

Infiltration was present underlying the injury.
2. An incised wound of 6 ems x 2· ems x scalp deep
over the top of the scalp. On dissection, infiltration
was present and there was no fracture.
B
3. An incised wound of 8 ems x 1.5 cm x muscle deep,
anterior and middle third to the right leg.
'( •
Corresponding cut was present in the kachha. On
dissection, underlying bone (tibia) was fractured and
c infiltration was present.
4. An incised wound of 4 tens x 1.5 ems x bone deep.
Lateral aspect of the right knee joint.
5. Two abrasions contusions measuring 3 x 2 ems, 2.5
ems x 2.5 ems over the anterior aspect of right knee
D ~
joint. On dissection of injuries no.4 and 5 right patelar
bone was fractured. Infiltration was present.
6. Incised wound 11 ems in length, anterior posteriorly
(through and through) from the root of the right little
E finger to the root of the right thumb. Underlying bone,
muscle tendons vessels and nerves were cut.
7. Incised wound of 6cms x 1.5 ems muscular deep
over the posterior and middle to the right fore-arm.
~
Underlying bones were fractured. Infiltration was ...,
F present.
8. Contusion of 3 ems x 2 ems over the top of the left
shoulder joint. Infiltration was present underlying the
tissue.
G 9. Two contusions varying in size. Posterior to the left
elbow.
..,,
10. Contusion of 4 ems x 2 ems, posterior and middle to
the left fore-arm. Underlying bone (ulna) was fractured
and infiltration was present.
H
HARDEEP SINGH & ORS. v. STATE OF 1121
HARYANA [DR. ARIJIT PASAYAT, J.]
,. t 11. Abrasion contusions, four in number, varying in size, A
dorsum of the left hand. On dissection infiltration was
present.

12. Contusion of 3 ems x 1 cm on the left knee joint.

13. Incised wound of 5.5 ems x 1.5 ems x bone deep, B
... ..., anterior and middle third to the- left leg. Underlying
bone was fractured. Infiltration was present.

14. Contusion of 2.5 ems x 2 ems over the lower third to
the sternum. Infiltration was present under the injury."
c
3. After completion of the investigation, charge sheet was
filed. Since the accused persons pleaded innocence, the trial
was held. As noted above, the appellants were convicted while
Gurcharan Singh was acquitted. Appeal was filed by the State
and the present appellants and the revision was filed by the
D
./
" complainant.
4. Before the High Court the basic stand taken by the ap-
pellants was that the evidence of PWs 7 & 8 do not inspire
confidence. The High Court did not find any substance in the
appeal filed by the appellants and held that the evidence of PWs E
7 & 8 sufficiently established the accusations.

5. In support of the appeal, learned counsel for the appel-
lant submitted that the evidence of PWs 7 & 8 does not inspire
»-
;. confidence, particularly when they are relatives of the deceased.
Additionally, even if the prosecution version is accepted in toto, F
the conviction for offence punishable under Section 302 read
with Section 34 IPC cannot be maintained. Plea that the FIR
was ante timed was also taken with reference to the time of
inquest. The basic plea is regarding the applicability of Sec-
tion 34 IPC. It is pointed out that the Doctor has opined that only G
injury no. 1 alone could have resulted in the death.
~
6. Though learned counsel for the appellants submitted
that the evidence of P'Ns 7 & 8 does not inspire confidence, no
discrepancy in their evidence could be focused to discard their
H
1122 SUPREME COURT REPORTS [2008] 9 S.C.R.

A evidence. ..
7. We shall also deal with the contention regarding "
interestedness of the witnesses for furthering prosecution ver-
sion. Relationship is not a factor to affect credibility of a wit- ~

ness. It is more often than not that a relation would not conceal
B actual culprit and make allegations against an innocent per-
son. Foundation has to be laid if plea of false implication is
y ...
made. In such cases, the court has to adopt a careful approach
and analyse evidence to find out whether it is cogent and cred-
ible.
c
8. In Dalip Singh and Ors. v. The State of Punjab (AIR
1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered independent unless
he or she springs from sources which are likely to be
D tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to 'I

implicate him falsely. Ordinarily a close relation would be
the last to screen the real culprit and falsely implicate an '
innocent person. It is true, when feelings run high and there
E is personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has
a grudge along with the guilty, but foundation must be laid
for such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of truth.
F However, we are not attempting any sweeping ..
generalization. Each case must be judged on its own facts. "'·
Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must
be limited to and be governed by its own facts."
G
9. The above decision has since been followed in Guli
Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in
which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) ...,
was also relied upon.
H
HARDEEP SINGH & ORS. v. STATE OF 1123
HARYANA [DR. ARIJIT PASAYAT, J.]
(
~
10. We may also observe that the ground that the witness A
"" being a close relative and consequently being a partisan wit-
ness, should not be relied upon, has no substance. This theory
was repelled by this Court as early as in Dalip Singh's case
(supra) in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that B
relatives were not independent witnesses. Speaking through
" "( Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the
High Court that the testimony of the two eyewitnesses
requires corroboration. If the foundation for such an c
observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their.
testimony, we know of no such rule. If it is grounded on the
reason th.at they are closely related to the deceased we
are unable to concur. This is a fallacy common to many D
criminal cases and one which another Bench of this Court
endeavoured to dispel in - ~Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however,
that it unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel." E
11. Again in Masalti and Ors. v. State of UP (AIR 1965
SC 202) this Court observed: (p. 209-210 para 14):
"But it would, we think, be unreasonable to contend that
~·
~
evidence given by witnesses should be discarded only on F
the ground that it is evidence of partisan or interested
witnesses ....... The mechanical rejection of such evidence
on the sole ground that it is partisan would invariably lead
to failure of justice. No hard and fast rule can be laid down
as to how much evidence should be appreciated. Judicial
G
approach has to be cautious in dealing with such evidence;
but the plea that such evidence should be rejected because
it is partisan cannot be accepted as correct."
12. To the same effect is the decision in State of Punjab v.
Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana H
1124 SUPREME COURT REPORTS [2008] 9 S.C.R.

A (2002 (3) SCC 76) and Gangadhar Behera and Ors v State • '~
of Orissa (2002 (8) SCC 381).

13. The above position was also highlighted in Babula/
Bhagwan Khandare and Anr v. State of Maharashtra [2005(10)
SCC 404] and in Salim Saheb v. State of MP (2007(1) SCC
B 699).

14. Section 34 has been enacted on the principle of joint
.,. ....

liability in the doing of a criminal act. The Section is only a rule
of evidence and does not create a substantive offence. The
c 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 intention of the persons who join in
committing the crime. Direct proof of common intention is sel-
D
dom 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
E plan or meeting of mind 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. The true
contents of the Section is that if two or more persons intention- ~
,,
F ally 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 is the essential element for application of this Section. It
G is not necessary that the acts of the several persons charged
with commission of an offence jointly must be the same or iden-
tically similar. The acts may be different in character, but must y-'
have been act!JP.)ed by one and the same common intention in
order to attract the provision.
H
j
~

HARDEEP SINGH & ORS. v. STATE OF 1125
HARYANA [DR. ARIJIT PASAYAT, J.]
__.._ t
15. The Section does not say "the common intention of A
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 intention animating the ac-
cused leading to the doing of a criminal act in furtherance of
such intention. As a result of the application of principles enun- B
ciated in Section 34, when an accused is convicted under Sec-
.... 'I'
tion 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 by him alone. The provision is intended
to meet a case in which it may be difficult to distinguish between c
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. Pu/la Reddy and Ors.
v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is
applicable even if no injury has been caused by the particular
D
accused himself. For applying Section 34 it is not necessary to
show some overt act on the part of the accused.
16. We find that the evidence of PWs 7 & 8 clearly estab-
lishes the roles played by the Hardeep Singh and Harjinder
Singh. It is also clear from the prosecution evidence that on E
hearing of the exhortation of the acquitted Gurcharan Singh,
-l Jaswinder Singh and Harjinder Singh had given blows on the
legs of the deceased. After he fell down, Hardeep Singh gave
> blow on the head. Similarly Harjinder Singh also gave blows
',; on the head. After the deceased fell down Jaswinder Singh did F
not attack on any vital part of the deceased's body. He assaulted
on the arm of the deceased. In the aforesaid circumstances,
while appeal filed by the accused appellants Hardeep and
Harjinder Singh is dismissed, the appropriate conviction of
Jaswinder Singh would be under Section 304 Part II IPC. His
G
conviction is accordingly altered. Custodial sentence of eight
, years would meet the ends of justice.
=<'
..,
17. The appeal is allowed to the aforesaid extent.
N.J. Appeal partly allowed.
H