ISRARversusSTATE OF U.P.

                                    ISRAR                                     A
                                      V.

                                STATE OF U.P.

                              DECEMBER 6, 2004
                                                                              B
                 [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

         Penal Code, 1860 :

          Section 304 read with section 34-Conviction under, on basis
     of testimony of witnesses-Order upheld by High Court-Justification ,C
     of-Held: Evidence of witnesses being a close relative and consequently
     being a partisan witnesses cannot be discarded-Falsity of particular
     material witness does not throw the prosecution case-Further, the evidence
..   describes that the accused had common intention to cause death of
     deceased-Also light facilitate identification of accused and the dying D
     declaration does not suffer from any infirmity-Hence, conviction justified-
     Evidence Act, 1872-Sections 3 and 34.

          Section 34-Application of-General principals-Discussed.

          Maxim :                                                             E
          "Falsus in uno falsus in omnibus"-App/icability of-Discussed.

           According to the prosecution, there was previous enmity between
     the parties. On the date of occurrence at night when Z was returning
     home along with PW-2, in front of the mosque, appellant-accused
                                                                              F
     caught hold of Z from back and his nephew inflicted blows on him. PWs
     - 3, 4, 5 rushed to the spot and saw the occurrence and also tried to
     intervene. Z was taken to the hospital. Case was registered, and his
     dying declaration was recorded. He died two days thereafter. Autopsy
     was conducted and cause of death was recorded as peritonitis and         G
     broncho pneumonia. Trial Court recorded evidence. Except
     PW-2 other witnesses narrated the incident as witnessed by them. Trial
     Court convicted and sentenced the appellant and his nephew under
     section 302 read with section 34 IPC. High Court upheld the order.
     Hence the present appeal.
                                                                              H
                                       695
    696                  SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A         Appellant-accused contended that the eye witnesses being partisan
    witnesses, their evidence should be discarded; that the principle of
    ''falsus in uno falsus in omnibus" is applicable; that it could not be
    established that the accused had any common intention to cause death
    of the deceased, thus section 34 has no application; that there was no
                                                                                   ..
    light for facilitating the identification of the accused; and that the cause
B   of death was due to peritonitis and broncho pneumonia and as such with
    proper medical treatment and care, life of the deceased could have been
    saved.

         Respondent-State contended that merely because the witnesses
C   were friends or relatives of the accused, their credible and cogent
    evidence cannot be discarded; and tltat the part played by the appellant
    has been vividly described, therefore, Section 34 IPC has been rightly
    applied.

D         Dismissing the appeal, the Court

          HELD : 1.1. Relationship is not a factor to affect the credibility of
    a witness. It is more often than not that a relation would not conceal
    actual culprit and make alleg~tions against an innocent person.
    Foundation has to be laid if plea of false implication is made. In such
E   cases, the court had to adopt a careful approach and analyse evidence
    to find out whether it is cogent and credible. Thus, it cannot be said that
    the witness being close relative and consequently a partisan witness, the
    evidence should not be relied upon. [701-F-G; 702-E]

F         Dalip Singh and Ors. v. State of Punjab, AIR (1953) SC 364; Guli
    Chand and Ors. v. State of Rajasthan, [1974) 3 SCC 698; Masalti and Ors.
    v. State of U.P., AIR (1965) SC 202; State of Punjah v. Jagir Singh, AIR
    (1973) SC 2407 and Lehna v. State of Haryana, [2002) 3 SCC 76, referred
    to.

G        2.1. It is the duty of Court to separate grain from chaff. Where
    chaff can be separated from grain, it would be open to the Court to
    convict an accused notwithstanding the fact that evidence has been
    found to be deficient to prove guilt of other accused persons. Falsity of
    particular material witness or material particular would not ruin it
H   from the beginning to end. [703-E-F]
                            ISRAR v. STATE                              697

      2.2. The maxim 'fa ls us in uno falsus in omnibus" (false in one thing,   A
false in everything) has no application in India. The maxim has not
received general acceptance nor it has come~ to occupy the status of rule
of law. It is merely a rule of caution. All that it amounts to, is that in
such cas~~ testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of weight of             B
evidence which a Court may apply in a given set of circumstances, but
it is not what may be called 'a mandatory rule of evidence'. Therefore,
 the plea that principle of 'falsus in uno falsus in omnibus" is applicable
cannot be accepted. (703-F-G-H]

     Nisar Ali v. State of Uttar' Pradesh, AIR (1957) SC 366, relied on.        C

     Sucha Singh v. State of Uttar Pradesh, (2003) 6 JT 348, referred to.

      3. Section 34 IPC 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      D
does not create a substantive offence. The liability of one person for an
offence committed by another in the course of criminal act perpetrated
by several person arises under Section 34 if s1Jch criminal act is done
in furtherance of a common intention of the persons who join in
committing the crime. Section does not say "the common intention of
all", nor does it say "and intention common to all". Direct proof of            E
common intention is seldom available and, therefore, such intention can
only be inferred from the circumstances appearing from the proved
facts and circumstances of the case that there was pre-plan or on the
spur of moment, meeting of mind of all the accused persons to commit
 the offence. The true contents of the Section are that it two or more
                                                                                F
 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. 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. Therefore, in the instant case, section 34 has       G
been rightly applied and the appellant has been rightly held guilty and
convicted. (704-F-G-H; 705-A-B; 705-F-G; 706-C-D)

    Ashok Kumar v. State of Punjab, AIR (1977) SC 109; Mahbub Shah
v. Emperor, AIR (1945) PC 118; Ch. Pu/la Reddy and Ors. v. State of             H
    698                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   Andhra Pradesh, AIR (1993) SC 1899; Anil Sharma and Others v. State
    of Jharkhand, (2004) 5 SC 679; Abrahim Sheikh and Ors. v. State of West
    Bengal, AIR (1964) SC 1263 and Barendra Kumar Ghosh v. Emperor, AIR
    (1925) PC 1, referred to.                                                     ._

B        4. Evidence of PWs 3 to 5 proved that identification was possible.
    PW-3 stated that the o~currence took place at the time of isha prayers.
    which are concluded at about 9.30 p.m. There was light of the moon as
    well as of the neighbouring houses and the electric poles in the lane. Date
    of occurrence was 11th day of Lunar month. Evidence of PW-3 has also          "
    been corroborated by the evidence of others. Further a known person
C   can be identified from a distance even without much light. [704-A-B-C]

         5. The dying declaration clearly established the roles played by the
    accused persons. It does not suffer from any infirmity. Before the trial
    Court the accused persons did not dispute that the death of the deceased
D   was as a result of injuries found by the doctor who conducted autopsy.
    The hypothetical plea that the deceased could have been saved with
    better treatment cannot be accepted in view of the Exe1anation 2
    appended to Section 299 IPC. Furthermore, the evidence of PW-3 to
    PW-5 is consistent that the accused appellant restrained the movement
    of the deceased and held him while the other co-accused inflicted the
E   knife blows. [704-D-E)

         CRIMINAL APPELLATE JURISDICTION                Criminal Appeal No.
    I 425 of 2004.

F       From the Judgment and Order dated I. I 0.2003 of the Allahabad High
    Court in Cr!. A. No. 184 of I981.

         Salman Khurshid, Imtiaz Ahmed, Mrs. Naghma Imtiaz, Sandeep Singh
    and Jitendra Mohan Sharma for the Appellant.
G
          Sahdev Singh and Jatinder Kumar Bhatia for the Respondent.

          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J.: Leave granted.
H
                           ISRAR v. STATE [PASAYAT, J.]                         699

            Appellant calls in question legality of the judgment rendered              A
       by a Division Bench of the Allahabad High Court upholding
       his conviction for offences punishable under Section 302 read with Section
 '..   34 of the Indian Penal Code, 1860 (in short 'IPC'). The appellant faced trial
       along with one Afzal@ Patel. Both of them were convicted in the aforesaid
       manner and each was sentenced to undergo imprisonment for life.                 B

            In a nutshell prosecution version which led to trial of the appellant
       along with his co-accused is as follows :

            Zamil Ahmad (hereinafter referred to as 'deceased') had his grocery
       shop in mohalla Gali Darjiyan, P.S. Kotwali, Muzaffarnagar City. Accused        C

..     Afzal had forcibly demanded money from Kalloo, younger brother of the
       deceased. Kalloo had told this fact to deceased and when he complained to
       accused Afzal he threatened to Kill him.

            On the night of 4.10.1979 at about 9 .30 p.m. Zam ii deceased after        D
       closing his shop was returning to his house in mohalla Khala Bazar along
       with Imran (PW-2). When he reached in front of Maszid Kunharan Near
       Mohalla Khalla Bazar accused Afzal alias Patel and his uncle accused-


-
       appellant lsrar met him and they started saying that he had got them
       arrested and no body would save them. Accused-appellant caught hold
       of the deceased from the back and accused Afzal inflicted knife blows           E
       on him. Deceased raised alram and hearing his alarm, Noor on him.
       Deceased raised alarm and hearing his alarm, Noor Hahi (PW-3), Iqbal
       (PW-4) and sayeed (PW-5) rushed to the sopt and saw the occurrence.
       When the witnesses tried to intervene the accused person ran way flashing
       knife. Imran (PW-2) took Zamil Ahmad to Disrict Hospital, Muzaffamagar          F
       where his injuries were examined by Dr. R.K. Tandon who found
       three incised wounds on his person and prepared injury report (Ext.
       Ka.17).

             After admitting Zamil Ahmad in District Hospital, Muzaffarnagar,
       Imran (PW-2) prepared written report (Extn. Ka.2) and came to the Police        G
       Station Kotwali where he lodged written report at about 11.15 p.m. On the
       basis of written report chik F.l.R. (Ext. Ka. 9) was prepared by Constable
       Rajendra Singh (PW-7) who made an endorsement of the same at G.D.
       report (Ext. Ka- I 0) and registered a case against both the accused under
       Section 324 IPC. Imran (PW-2) also deposited blood stained shirt of the         H
    700                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   deceased Zamil Ahmad which was taken into possession by Constable
    Rajendra Singh vide recovery memo (Ext. Ka-3).

          The investigation of the case was taken by Fateh Singh (PW-8), who
    arrested the accused persons. On receipt of injury report the case was altered
B   to one under Section 307 IPC on 6.10.1979.

          The dying declaration of deceased was reported on 7.10.1979 by Sri
    Jag Prasad, Executive Magistrate, Muzaffarnagar (CW-1). The condition of
    Zamil Ahmad was serious and, therefore, on the night of8/9.10.1979 he was
    shifted to All India Institute of Medical Sciences, New Delhi, where he died
C   on the night of 9.10.1979 at about l l.15 p.m. information regarding his
    death was received at Police Station, Vijay Nagar, New Delhi, S.I. Ram
    Niwas (PW-6) of P.S. Vijay Nagar, New Delhi, came to All India Institute
    of Medical Sciences, New Delhi, where he conducted inquest report (Ext.
    Ka-5) and other relevant papers. He sealed the dead body of the deceased
D   and sent the same for postmortem.

          Autopsy on the dead body of the deceased was conducted at Delhi on
    10.10.1979 by Dr. P.C. Dixit (PW-I) who found two stitched wounds and
    one incised wound as ante-mortem injuries and cause of death due to
    peritonitis and broncho pneumonia. He prepared postmortem report and the
E   case was altered to one under Section 302 IPC.

         After completion of investigation charge sheet was placed and the
    accused persons who were committed to the Court of Sessions faced trial.
    They pleaded innocence. Stand of the appellant was that Noor Hahi (PW-
F   3) and Yunus caused injuries on Afzal on 15.5.1979. Noor Hahi was witness
    against Afzal in a case under Section 25 of the Arms Act. Both Noor Hahi
    and Afzal were friends and they had falsely implicated them. To further the
    prosecution version 8 witnessess were examined. Jag Prasad, Executive
    Magistrate (CW-1) and Dr. T.N. Mathur (CW-2) were examined as court
    witnesses. Imran (PW-2), Noor Hahi (PW-3), Iqbal (PW-4) and Sayeed
G   (PW-5) were stated to be eye witnesses. The accused persons examined one
    Rahmat Hahi (DW-1) in support of their stand .. Considering the evidence
    on record, trial Court found them guilty. It is to be noted that PW-2 made
    a departure from the statement made during investigation. The other witnesses
    categorically stated that the accused-appellant caught hold of the deceased
H   thereby facilitating the knife blows by Afzal. Both the convicted accused
                    ISRAR v. STATE [PASAYAT, J.]                           701

persons filed appeal before the Allahabad High Court. By the impugned             A
judgment the appeal was dismissed and conviction and sentence were
affirmed.

      In support of the appeal Mr. Salmad Khurshid, learned senior counsel
submitted that the evidence of the so called eye witnesses does not inspire       B
confidence. There was no light which could have facilitated the identification.
The so-called eye witnesses were partisan witnesses, being friends and
relatives of the deceased. In any event, Section 34 has no application. There
is nothing on record to show that the accused had any common intention
to cause death of the deceased. Doctor's evidence was that the cause of death
of the deceased. Doctor's evidence was that the cause of death was due to         C
Peritonitis and Broncho Pneumonia. It was, therefore, submitted that even
if there was any injury sustained with proper medical treatment and care,
life of the deceased could have been saved. It was further submitted that one
of the witnesses stated that the accused appellant fired a gun shot which the
trial Court disbelieved. This shows exaggerations by the witnesses. It was,       D
therefore, submitted that the courts below were not justified in finding the
accused appellant guilty.

      In response, learned counsel for the State submitted that the evidence
of the eye witnesses is clear and cogent. Merely because the witnesses were
friends or relatives of the accused, that cannot be ground to discard their       E
credible and cogent evidence. The part played by the appellant has been
vividly described by the witnesses and, therefore, Section 34 IPC has been
right applied.

      We shall first deal with the contention regarding interestedness            F
of the witnesses for .furthering prosecution version. Relationship is
not a factor to affect credibility of a witness. It is more often than not that
a relation would not counsel 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.                           G

     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         H
    702                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A           she springs from sources which are likely to be tainted and that
            usually means unless the witness has cause, such as enmity against
            the accused, to wish to 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 is personal cause for enmity, that there is a tendency to drag
B
            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. However, we are not attempting any
            sweeping generalization. Each case must be judged on its own
c           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."

         The above decision has since be followed in Guli Chand and Ors. v.
D
    State of Rajasthan, [1974] 3 SCC 698 in which Vadivelu Thevar v. State
    of Madras, AIR (1957) SC 614 was also relied upon.

          We may also observe that the ground that the witness being a close
    relative and consequently being a partisan witness, should not be relied
E   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
    relatives were not independent witnesses. Speaking through Vivian Bose,
    J. it was observed :
F
            "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 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
G           reason that they are closely related to the deceased we are unable
            to concur. This is a fallacy common to many 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."
H
                      ISRARv. STATE[PASAYAT,J.]                              703

     Again in Masalti and Ors. v. State of U.P., AIR (1965) SC 202 this              A
 Court observed : (p. 209-210 para 14) :

          "But it would, we think, be unreasonable to contended that evidenc~
          given by witnesses should be discarded only on the ground that it
          is evidence of partisan or interested witnesses ........ The mechanical    B
          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 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            c
          correct."

         To the same effect is the decision in State of Punjab v. Jagir Singh,
   AIR (1973) SC 2407 andLehna v. StateofHaryana, [2002] 3 SCC 76. Stress
   was laid by the accused-appellants on the non-acceptance of evidence              D
   tendered by some witnesses to contend about desirability to throw out entire
   prosecution case. In essence prayer is to apply the principle of "falsus in
   uno fa/sus in omnibus" (false in one thing, false in everything). This plea
   is clearly untenable. Even if major portion of evidence is found to be
   deficient, in case residue is sufficient to prove g_uilt of an accused,
                                                                                     E
   notwithstanding acquittal of number of other co-accused persons, his
   conviction can be maintained. It is the duty of Court to separate grain from
   chaff. Where chaff can be separated from grain, it would be open to the
   Court to convict an accused notwithstanding the Fact that evidence has been
   persons. Falsity of particular to prove guilt of other accused persons. Falsity
   of particular material witness or material particular would not ruin it from      F
   the beginning to end. The maxim "falsus in uno falsus in omnibus" has no
   application in India and the witnesses cannot be branded as liar. The maxim
   ''falsus in uno falsus in omnibus" has not received general acceptance nor
   has this maxim come to occupy the status of rule of law. It is. merely a rule
   of caution. All that it amounts to, is that in such cases testimony may be        G
   disregarded, and not that it must be disregarded. The doctrine merely
   involves the question of weight of evidence which a Court may apply in a
·· given set of circumstances, but it is not what may be called 'a mandatory
   rule of evidence'. (See Nisa Ali v. The State of Uttar Pradesh, AIR ( 1957)
   SC 366).
                                                                                     H
    704                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A        The above position was elaborately discussed in Sucha Singh and Anr.
    v. State of Punjab, (2003) 6 JT SC 348.

          Coming to the plea relating to non-probability of identification, the
    evidence of PW-3 is very relevant. He has stated that the occurrence took
    place at the time of isha prayers which are conclud~d at about 9.30 p.m.
B
    There was light of the moon as well as of the neighbouring houses and the
    electric poles in the lane. The date of occurrence was 11th day of Lunar
    month and the place of occurrence is near the mosque as
    well as many houses close by. Therefore, identification was possible. Further
    a known person can be identified from a distance even without much light.
C   The evidence of PW-3 has also been corroborated by the evidence of others.
    Evidence of PWs 3 to 5 proves that identification was possible.

           In addition, the dying declaration which was recorded by CW-I clearly
     establishes the roles played by the accused persons. Nothing has been shown
D    as to how the same suffer from any infirmity. It is to be noted that before
     the trial Court the accused persons did not dispute that the death of the
     deceased was a result of injuries found by PW- I. Merely on the hypothetical
    ·plea that the deceased could have been saved with better treatment, the
     charge of murder does not get diluted. The plea is clearly untenable in view
     of the Explanation 2 appended to Section 299 IPC. The evidence of PW-
E    3 to PW-5 is consistent that the accused appellant restrained the movement
     of the decided and held him while the other co-accused inflicted the knife
     blows.

         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
F
    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 intention of the persons who join in committing the crime.
G   Direct proof 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
H   of mind of all the accused persons to commit the offence for which they
                     ISRAR v. STATE [PASAYAT, J.]                           705

are charged with the aid of Section 34, be it pre-arranged or on the spur of        A
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 ~o
an act jointly, the.position in law is just the same as if each of them has done
it individually by himsel£ As observed in Ashok Kumar v. State of Punjab,
AIR 1977 SC 109, the existence of a common intention amongst the
                                                                                    B
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 acts may
be different in character, but must have been actuated by one and the same
common intention in order to attract the provision.
                                                                                    c
     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 if the act was
         done by him alone."                                                        D
      In 1870, it was amended by the insertion of the words "in furterance
of the common intention of all" after the word "persons" and before foe 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.
                                                                                    E
      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       F
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 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        G
taken by each of them. As was observed in Ch. Pu/la Reddy and Ors. v.
State ofAndhra Pradesh, AIR ( 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.                                                                            H
    706                    SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A        The above position was highlighted recently in Anil Sharma and Ors.
    v. State of Jharkahand, [2004] 5 SCC 679.

          InAbrahim Sheikh & Ors. v. State of West Bengal, AIR(l 964) SC 1263
    this Court stated that no doubt a person is only responsible ordinarily for
B   what he does and Section 38 IPC ensures that. But Section 34 ·as well and
    Section 35 provided that if the criminal act is the result of the common
    intention, then every person who did the criminal act with such intention
    would be responsible for the total offence irrespective of the share which
    he had in its perpetration. The logic, highlighted illuminatingly by the
    Judicial Committee in the illustrious case of Barendra Kumar Ghosh v.
C   Emperor, AIR ( 1925) PC I, is that in crimes as in other things "they also
    serve who only stand and wait".

           Section 34 has, therefore, been rightly applied.

D        In view of the legal and factual position noted above, the irresistible
    conclusion is that the accused appellant ha bee.n rightly held guilty and
    convicted. There is no merit in this appeal which is accordingly dismissed.

    N.J.                                                      Appeal dismissed.