Raj Kumar Vs State

2025:HHC:18161

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal Nos. 6 and 8 of 2011 Reserved on: 03/04.04.2025 Date of Decision: 16.06.2025

1. Cr. Appeal No. 6 of 2011 Raj Kumar alias Bitu ...Appellant. Versus State of H.P. ...Respondent. 2. Cr. Appeal No. 8 of 2011 Ashok Kumar alias Thelo and others ...Appellants. Versus State of H.P. ...Respondent.

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes.

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: For the Appellant(s) Ms. Sheetal Vyas, Advocate, for the appellant in Cr. Appeal No. 6 of 2011 and Mr. N.S. Chandel, Senior Advocate, with Ms Shwetima Dogra, Advocate, for the appellants in Cr. Appeal No. 8 of 2011. For the Respondents/State : Mr. Jitender Sharma, Additional Advocate General, in both the appeals.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Rakesh Kainthla, Judge

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The present appeals are directed against the judgment dated 29.12.2010, passed by learned Sessions Judge, Hamirpur, H.P. (learned Trial Court), vide which the appellants (accused before learned Trial Court) were convicted of the commission of offences punishable under Sections 436, 323 and 504 read with Section 149 of the Indian Penal Code (IPC) and were sentenced as under:-

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Under Section 436 of IPC	To suffer rigorous imprisonment for five years each, pay a fine of ₹2,000/- (₹Five Two only) each, and in default of payment of fine, to undergo simple imprisonment for two months.
Under Section 323 of IPC	To suffer rigorous imprisonment for six months, pay a fine of ₹500/- (₹Five Hundred only) each, and in default of payment of fine, to undergo simple imprisonment for one month.
Under Section 504 of IPC	To suffer rigorous imprisonment for six months, pay a fine of ₹500/-(₹Five Hundred only)each,

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and in default of payment of fine, to undergo simple imprisonment for one month.

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The substantive sentences of imprisonment were directed to run concurrently.

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(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeals are that the police presented a challan against the accused for the commission of offences punishable under Sections 147, 149, 323, 436, and 504 of the Indian Penal Code (IPC). It was asserted that the informant Sunil Dutt (PW1) and Hari Ram (PW2) were operating Katha Bhatti on 21.4.2008, at about 4.05 PM. Ashok Kumar, Makhan alias Sanjeev Kumar, Ashok Kumar etc. and 4-5 boys were talking to each other at some distance from Bhatti. Out of them, two boys came to the informant and said that the contractor and labour were being called. The informant asked them about their identity; however, they abused the informant and said that they were residing at Majheli. The informant told them that he would accompany them. Other boys who were standing at some distance also

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reached the spot and started abusing the informant. They gave beatings to the informant with the sticks. Ashok Kumar son of Jagat Ram took out the match box and put the huts on fire. The informant touched his feet but he started kicking the informant. Makhan alias Sanjeev Kumar, Ashok Kumar and other boys also gave beatings to the informant and Hari Ram. Ashok Kumar and his accomplices set 15-18 huts on fire. Some tarpaulin, 300 quintal katha, beddings, electricity meter, currency notes worth ₹1,50,000/- and the documents were burnt in the fire. The mobile phone and the wristwatch of the informant fell during the incident. The informant and Hari Ram sustained injuries in the incident. The matter was reported to the police and FIR (Ex.PW1/A) was registered. ASI Ram Lok (PW16) conducted the investigation. He prepared the site plan (Ex.PW16/A). The photographs of the spot (Ex.PW6/A1 to Ex.PW6/A8) were taken. Burnt ‘surfer’ (Ex.P2), katha (P4), currency notes (P6) and kucha katha were seized vide seizure memo (Ex.PW1/B). These were put in separate cloth parcels and parcels were sealed with seal ‘M’. The seal impression (Ex.PW16/B) was taken on a separate piece of cloth. Dr. Kiran Kumar (PW5) examined injured Sunil Dutt and Hari Ram. He found that they had sustained

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simple injuries which could have been caused within eight hours of examination by a stick. He issued MLCs (Ex.PW5/B and Ex.PW5/C). ASI Ram Lok filed an application (Ex.PW7/A) before the DFO, Hamirpur to obtain the necessary documents. Rakesh Kumar (PW7) handed over the documents (Ex.PW7/B to Ex.PW7/H) with his letter (Ex.PW7/E). Sushil Kumar (PW8) handed over two copies of the ledger of society (Ex.PW8/A and Ex.PW8/B). The burnt articles were sent to SFSL, Junga and results (Ex.PW16/C and Ex.PW16/D) were issued in which it was mentioned that no traces of inflammable material could be detected in the parcels and the currency notes of ₹100/- each were found to be burnt. Statements of prosecution witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented in the Court of learned Judicial Magistrate First Class, Nadaun, who committed it to the learned Sessions Judge, Hamirpur for trial.

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The learned Trial Court charged the accused with the commission of offences punishable under Sections 436, 504, 323, 147, and 149 of IPC to which they pleaded not guilty and claimed to be tried.

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The prosecution examined 16 witnesses to prove its

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case. Sunil Dutt (PW1) is the informant/victim. Hari Ram (PW2) sustained injuries in the incident. Naresh Kumar (PW3) is an eyewitness. Rup Lal (PW4) is a witness to recovery. Dr. Kiran Kumar (PW5) conducted the medical examination of the victim. Braham Dutt (PW6) took the photographs of the spot. Rakesh Kumar (PW7), Sushil Kumar (PW8) and Balbir Singh (PW9) produced the record. HHC Mohinder Singh (PW10) carried the parcel to SFSL, Junga. Johli Ram (PW11) proved the rate of Katha in the market. HC Bir Bhagwan Dass (PW12) obtained the record. HC Gulshan Kumar (PW13) was working as MHC with whom the case property was deposited. ASI Som Dutt (PW14) obtained the record from HPSEB. ASI Onkar Singh (PW15) recorded the statement of witnesses. ASI Ram Lok (PW16) conducted the investigation.

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The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that the witnesses were related to the informant and some of them were working in the informant’s Katha Bhatti. They did not have cordial relations with the informant’s relatives and a false case was made against them by the

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informant. The statement of Jaswant Singh (DW1) was recorded in defence.

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The learned Trial Court held that the informant named the accused in the Court. The fact that Sanjeev Kumar alias Sanju and Raj Kumar alias Bittu were not mentioned in the FIR was not material because it was mentioned in the FIR that Ashok Kumar alias Thelo son of Kartar Singh and Ashok Kumar son of Jagat Ram along with 4-5 persons came and committed mischief. FIR is not an encyclopedia of the incident and nonmentioning of the names of Sanjay Kumar and Raj Kumar will not be material. The defence taken by the accused, that some labourer had murdered Munish Kumar whose dead body was recovered near the informant’s Katha Bhatti leading to resentment in the area and the villagers setting the huts on fire, was not believable. The testimonies of the witnesses could not be discarded because they were related to each other. The victim’s version was corroborated by the medical evidence. The testimony of Jaswant Singh (DW1) was not sufficient to cast doubt on the prosecution’s case. Therefore, the accused were convicted and sentenced as aforesaid.

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Being aggrieved from the judgment and order passed by the learned Trial Court, two separate appeals have been preferred. In the appeal preferred by Raj Kumar, it was asserted that the learned Trial Court erred in convicting and sentencing the accused. No Test Identification Parade was conducted and the identity of the accused was not established. The prosecution witnesses contradicted each other. The witnesses examined by the prosecution were highly interested. No reliance could have been placed upon their testimonies. The investigation was not fairly conducted. The FSL reports were inadmissible and learned Trial Court erred in relying upon the reports. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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In an appeal filed by Ashok Kumar etc. it was asserted that the learned Trial Court erred in convicting and sentencing the accused. The investigation was conducted with a preconceived motion. The truth was suppressed from the Court. A boy named Munish Kumar was murdered by the labourers and his dead body was recovered from the vicinity of the informant’s Bhatti on 21.4.2008. Sunil Dutt (informant) had talked to the murderers, who had demanded ₹20.00 lacs as ransom. One

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Hanuman was the labourer of the informant who ran away from the spot and never returned. The local people had a resentment against the labourers and about 1000-1500 people gathered on the spot. The police had also visited the spot to maintain peace. There was a lot of confusion and the people were running towards Katha Bhatti. Bhattis were set on fire in this commotion. The genesis of the incident was suppressed by the prosecution to implicate the accused. The accused were strangers who had no mens rea to commit the crime. Hari Ram (PW2) did not identify any person as the assailant. The witnesses were related to the informant and they falsely deposed at the informant’s instance. Dr Kiran Kumar (PW5) stated that the injuries sustained by the victim could be selfinflicted. His statement showed that the injuries were not recent. He proved that the victims had made a statement before him (the doctor) that many people came to the huts and gave them beatings. This admission falsifies the prosecution version and probabilized the defence version. There were material contradictions in the statements in the FIR and the statements on oath. Accused Jasbir Singh was not named in the FIR and his name was introduced during the trial. The dead body of Manish

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Kumar was recovered 10 yards from the place of the incident. This fact was suppressed by the prosecution. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Mr. N.S. Chandel learned Senior Counsel, assisted by Ms. Shwetima Dogra, learned counsel for the appellants in Cr. Appeal No. 8 of 2011, Ms Sheetal Vyas, learned counsel for the appellant in Cr. Appeal No. 6 of 2011 and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State, in both the appeals.

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Mr. N.S. Chandel learned Senior Counsel for the appellants/accused in Cr. Appeal No. 8 of 2011, submitted that the learned Trial Court erred in convicting and sentencing the accused. The defence version that there was resentment in the public of the local area who had set the Bhattis on fire was duly proved. The prosecution witnesses improved upon their version and the learned Trial Court erred in relying upon the testimonies of the prosecution witnesses. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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Ms. Sheetal Vyas, learned counsel for the appellant/accused Raj Kumar alias Bittu adopted the submissions made by Mr. N.S. Chandel learned Senior Counsel and further submitted that the name of Raj Kumar was not mentioned in the FIR even though his name was known to the informant. This casts doubt regarding the prosecution case. Therefore, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. She relied upon the judgments of Hon’ble Supreme Court in case titled Pramila Vs. State of U.P. Cr. Appeal No. 700 of 2021, decided on 28.7.2021, State of U.P. Vs. Raghuvir Singh, Cr. Appeal No. 1588 of 2015, decided on 23.1.2025 and Ram Kumar Pande Vs. State of Madhya Pradesh, AIR 1975 SC 1026 in support of her submission.

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Mr. Jitender Sharma, learned Additional Advocate General, for the respondent-State submitted that the learned Courts below had rightly relied upon the testimonies of the prosecution witnesses. There are no major contradictions in the testimonies of the prosecution witnesses. Minor contradictions are bound to come with time and are not sufficient to reject the prosecution case. The defence version that many people had

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gathered on the spot who put the huts and Katha Bhatti on fire has not been proved and learned Trial Court had rightly rejected this plea. Hence, he prayed that the present appeals be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was specifically mentioned in the FIR that Ashok Kumar son of Jagat Ram, Makhan alias Sanjeev Kumar and Ashok Kumar alias Thelo son of Kartar Singh along with 4-5 persons reached the spot. Therefore, it is apparent that the informant had not mentioned the names of Jasbir Singh, Sanjeev Kumar and Raj Kumar in the FIR. He stated in his crossexamination that he had named only three persons Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh and Makhan alias Sanjeev Kumar son of Asha Ram. He had not disclosed the names of Sanjeev Kumar and Raj Kumar, even though he had known them for 2-3 years. He was meeting them and seeing them in the area. Sanjeev Kumar is the resident of Village Sai and Raj Kumar is the resident of Village Saredi. The village of Sanjeev Kumar was at a distance of 17-18 kilometers

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from the spot and that of Raj Kumar was at a distance of 7-8 kilometers from the spot. Therefore, it is apparent that he had not named these two persons even though he knew them for 2-3 years before the incident. He had seen them before the incident and knew about their villages. He has not given any explanation for the omission to name these persons, and the omission of their names from the FIR casts doubt regarding the prosecution case. It was laid down by the Hon’ble Supreme Court in State of UP vs Raghuvir Singh Cr. Appeal no. 1588 of 2015 decided on 23.01.2025 that the omission to name the accused is a significant fact. It was observed:

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“29. It is pertinent to note that according to the three eyewitnesses, there were three accused. However, in the FIR only the name of the respondent-accused herein figures.

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The first informant claiming to be an eye-witness has not explained why he omitted to name the other two coaccused in the FIR.

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If he claims to be an eye-witness to the incident and is said to have witnessed three persons known to him assaulting his son i.e. the deceased then what was the good reason not to name the other two accused (juvenile Accused) in the FIR. This omission assumes significance and is a relevant fact under Section 11 of the Evidence Act. 32. In this regard, we may refer to a decision of this Court in the case of “ Ram Kumar Pandey vs. State of Madhya Pradesh” reported in AIR 1975 SC 1026 , wherein this Court observed in para 9 as under:-

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“9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on March 23, 1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.”

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The learned Trial Court held that the omission to mention the names of the accused was not material because the witnesses had named the accused in the Court. This reasoning cannot be sustained. Learned Trial Court failed to notice that if the informant knew all the accused and that they belonged to the same area, a reason was required for the omission of their names. It is true that the FIR is not an encyclopedia of the incident, however, keeping in view the fact that the informant had only named Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh and Makhan alias Sanjeev Kumar specifically, the omission to name the other persons will become significant.

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Naresh Kumar (PW3) stated that he and Ravi were going towards Khad when he noticed that accused Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh had set the huts on fire. He has not named any other person. Therefore, his testimony does not establish the presence of Jasbir Singh, Sanjeev and Raj Kumar on the spot.

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Ravi, who was stated to be accompanying Naresh Kumar (PW3), was not examined, hence there is insufficient evidence to show the presence of Jasbir Singh (A4), Sanjeev Kumar (A5), and Raj Kumar (A6) on the spot.

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Sunil Dutt (PW1) stated that he had Katha Bhatti at Village Jasai. He had engaged Hari Ram as his Munshi. He and Hari Ram were present at Katha Bhatti at about 4.15 PM. 07 Bhattis were working in 15-18 sheds made of reeds. Katha, ration, clothes, money etc. were kept in the sheds. Jasbir Singh and Raj Kumar alias Bittu alias Bipan came to the spot. They abused him (informant) and told him that contractors and labourers were being called. Ashok Kumar son of Jagat Ram and Ashok Kumar son of Kartar Chand, Makhan alias Sanjeev Kumar, Sanjeev Kumar alias Sanju son of Onkar Chand and Jasbir Singh

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son of Karam Chand also came to the spot. All the accused put the Katha huts on fire after assaulting him with fists, kicks and leg blows. Ashok Kumar son of Jagat Ram and Ashok Kumar son of Kartar Singh set the huts on fire with a matchbox. His 300 quintal Katha valued at ₹50.00 lacs was destroyed along with Katha Bhatti. He had kept ₹1.50 lacs in the trunk which was also burnt. He suffered a loss to the extent of ₹70.00 lacs. The incident was witnessed by Ravi Dutt and Naresh Kumar and some other persons. He had sustained injuries on his arm, back and leg. His Munshi had also sustained injuries on both arms. He reported the matter to the police. FIR (Ex.PW1/A) was registered. He stated in his cross-examination that the accused had set the huts on fire and thereafter gave beatings to him. When two accused came to him other accused were standing at a distance of 15 meters from the place of the incident. Ravi Dutt and Naresh Kumar were going to take water. All the Bhattis had a joint roof. The Superintendent of Police and many police officials were present on the spot. One police official accompanied him to the Police Station. The statement of Hari Ram was recorded in his presence. All the accused assaulted him together. He had told the police that the accused had first set the huts on fire and

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thereafter had assaulted him. Katha is processed before selling in the market. He used to sleep on the spot. He had produced the trunk before the police but he did not remember whether it was seized by the police or not. Katha was lying in different sheds. Hanuman fled away from the spot and never returned. Abadi was located at a distance of 1 kilometre from the spot. He had three Bhattis. The process of preparing Katha was completed. He admitted that Munish Kumar was missing w.e.f. 17.4.2008 and the police had visited Jasai several times to trace him. The dead body of Munish Kumar was recovered on 20.4.2008 in the evening. He admitted that all the accused were from the State of Uttar Pradesh and Bihar. Police had caught those labourers. He denied that the accused in the murder case used to talk to him on the telephone regarding the ransom. He had gone to the house of Munish where his grandmother asked him to contact the kidnapper. He talked to the kidnappers who had demanded a ransom of ₹20.00 lacs. The dead body of Munish was noticed about half a kilometre from his Bhatti. He denied that the local people had set the Bhattis on fire. The fire continued for one and a half hours. He had also fallen when he was beaten by the

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accused. Hari Ram is his cousin whose house is located at a distance of 15 kilometres from Katha Bhattis.

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Jaswant Singh (DW1) stated that Munish Kumar was murdered in a Khad at Jasai. His dead body was recovered on 21.4.2008. 400-500 people had gathered at the spot. The police had also reached the spot. There were some huts near the place of the incident from where the body of the deceased was recovered. There was resentment against Bihari labourers. The local persons gave beatings to Bihari labourers and this news item was published in the newspapers.

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The learned Trial Court had rightly held that the testimony of this witness does not disprove the prosecution case. The accused are the residents of District Hamirpur and therefore they will fall within the definition of local persons. He did not say that the accused were not present on the spot. Therefore, his testimony is insufficient to discredit the prosecution case.

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It was submitted that there are material improvements in the testimonies of the informant. He stated in the Court that Ashok Kumar son of Jagat Ram and Ashok Kumar

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son of Kartar Singh set the huts on fire, whereas he had stated in the FIR that Ashok Kumar son of Jagat Ram had set the huts on fire. This is a major contradiction which is sufficient to discard his testimony. This submission will not help the defence. The attention of the informant was not drawn to the previous statement recorded by the police. Section 145 of the Indian Evidence Act provides that the attention of the witness should be drawn to the previous statement with which, he is sought to be contradicted. The previous statement is also required to be proved as per the law. It was laid down by the Hon’ble Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1) SCC 283 , that if it is intended to contradict a witness, his attention must be drawn towards the previous statement. It was observed: -

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“11. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act and it must be borne in mind when reading S. 145 which consists of two limbs. It is provided in the first limb of S.145 that a witness may be crossexamined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a

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distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of S. 145.

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In Bhagwan Singh's case (AIR 1952 SC 214) , Vivian Bose, J. pointed out in paragraph 25 that during the crossexamination of the witnesses concerned the formalities prescribed by S. 145 are complied with. The crossexamination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the procedure adopted was in substantial compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.

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So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by DW-10 (Nawal Kishore Prasad) we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto.”

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22. A similar view was taken in Alauddin v. State of Assam,

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2024 SCC OnLine SC 760 wherein it was observed:

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“7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161(1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161(1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the crossexamination.

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8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:

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“145. Cross-examination as to previous statements in writing .—A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to

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those parts of it which are to be used for the purpose of contradicting him.”

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The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be crossexamined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the crossexamination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with

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his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.

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9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:

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“ 155. Impeaching credit of witness. — The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him—

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(1) ….……………………………………

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(2) ………………………………………

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(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”

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It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depending upon the facts of each case? Whether an omission is a contradiction also depends on the facts of each individual case.

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10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh v. State of U.P . 1959 Supp (2) SCR 875 Paragraph 13 of the said decision reads thus:

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“13. The learned counsel's first argument is based upon the words “in the manner provided by Section 145 of the Indian Evidence Act, 1872” found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention, reliance is placed upon the judgment of this Court in Shyam Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812 ]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:

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Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing , then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made.”

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It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of

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Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to a previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction: in other words, both parts deal with cross-examination; the first part with crossexamination other than by way of contradiction, and the second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such a statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness box that B stabbed C; before the police, he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit it, the practice generally followed is to admit it subject to proof by

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the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus: If the witness is asked “Did you say before the police officer that you saw a gas light?” and he answers “Yes”, then the statement which does not contain such recital is put to him as a contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of crossexamination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants, there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure.” (emphasis added)

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This decision is a locus classicus , which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' prior statements based on which they were sought to be contradicted in the cross-examination.”

¶128

It was held in Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757 that the Courts cannot suo motu take cognizance of the contradiction and the same has to be brought on record as per the law. It was observed:

¶129

“64. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words ‘ if duly proved ’ used in Section 162 Cr. P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.

¶130

65. Section 145 of the Evidence Act reads as under:

¶131

“145. Cross-examination as to previous statements in writing. — A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

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66. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of the witness is drawn to that part and this must be reflected in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need for further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process, the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who, again, by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out the part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.” [See: V.K. Mishra v. State of Uttarakhand : ((2015) 9 SCC 588 ]

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In the present case, the informant’s attention was not drawn to the omission and it is impermissible to reject his testimony because of the omission to name the other accused Ashok Kumar in the FIR.

¶138

It was submitted that he has admitted the defence version by admitting the presence of the Superintendent of Police, Hamirpur and the police officials. He also admitted that many people had gathered on the spot and the possibility of the villagers setting the huts on fire cannot be ruled out. This submission is only stated to be rejected. He has categorically stated that accused Ashok Kumar son of Jagat Ram, Ashok Kumar son of Kartar Singh and Makhan alias Sanjeev Kumar had given him beatings. Ashok Kumar son of Jagat Ram and Ashok Kumar son of Kartar Singh had set the huts on fire. The setting of the huts on fire was not shaken in his cross-examination and it cannot be said that villagers had put the huts on fire merely because many other people were present on the spot. It is a remote possibility and not a reasonable doubt. Prof. Glanville Williams explained the degree of reasonable doubt in The Hamlyn Lectures seventh series , The Proof of Guilt (Stevens & Sons

¶139

Ltd. 1955) on page 133 as under:-

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“It is then a question of degree, some risk of convicting an innocent person must be run. What this means in terms of the burden of proof is that a case need not be proved beyond all doubts. The evidence of crime against a person may be overwhelming and yet it may be possible to conjecture a series of extraordinary circumstances that would be consistent with his innocence by supposing that some stranger of whose existence there is no evidence, interposed at a crucial moment and committed the crime when all the evidence points to the fact that accused was alone on the spot, or by supposing in a charge of murder that the deceased died of heart failure the moment before the bullet entered his body. The fact these unlikely contingencies do sometimes occur so that by neglecting them there is on rare occasions a miscarriage of justice cannot be held against the administration of law which is compelled to run this risk.”

¶143

Hari Ram (PW2) stated that Jasbir and Raj Kumar

¶144

came to the spot and asked about the contractor. 6-7 persons came and started beating him and the informant with the sticks. Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh set the huts on fire. Makhan alias Sanjeev Kumar, Raj Kumar, Jasbir Singh alias Kuku son of Karam Chand and Sanjeev Kumar also came to the spot. He stated in his crossexamination that he was given beatings by 4-5 persons but he did not remember their names. The police had got the accused identified from him. He stated in his cross-examination that he

¶145

is an agriculturist. He had worked with Sunil Dutt for 15-18 years. Some huts were separate and some had common roofs.

¶146

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The gap between the huts was 2 ft. He was working with Sunil Dutt and Hanuman in the Katha Bhatti at that time. His statement was recorded by the police at Police Station, Nadaun. Police visited the spot on the date of the incident twice i.e. 21.4.2008 and 22.4.2008. The Bhattis were not functioning but Katha was being cut at the time of the incident. The accused tried to push him and the informant into the fire. Pradhan Roop Lal and Bisheshar Dutt were present on the spot. The police had called Roop Lal and Bisheshar Dutt. Ravi Dutt and Naresh were also present at the time of the incident. The labourers working in the Bhattis were from the State of Jammu & Kashmir who had left on 10.4.2008 before the incident. The police collected samples of burnt grass, katha and currency notes. The dead body was recovered at a distance of 500 meters from the huts. 10001500 people and police were present on the spot where the dead body was recovered on 20.4.2008. He did not know if the people were agitating. He was beaten by 4-5 persons but he did not remember their names. He had sustained injuries on his arms and back. His father and informant used to work in the partnership to extract Katha. He went to the Police Station with the informant twice on 21.4.2008 and 22.4.2008. His statement

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was recorded on 22.4.2008. He denied that the accused Raj Kumar was present in the school. He denied that he, Sunil Dutt and Hanuman were inside the huts when huts were set on fire by the mob.

¶152

His testimony corroborates the statements of the informant in material particulars. There is nothing in his crossexamination to show that he is making a false statement. It was submitted that he is related to the informant. However, the mere relationship is no reason to discard the statement of the witness. It was laid down by the Hon’ble Supreme Court in Laltu Ghosh v. State of W.B. , (2019) 15 SCC 344: (2020) 1 SCC (Cri) 275: 2019 SCC OnLine SC 2 that a related witness is not an interested witness and his testimony cannot be rejected on the ground of interestedness. It was observed:

¶153

“12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the

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accused (for instance, see State of Rajasthan v. Kalki [ State of Rajasthan v. Kalki , (1981) 2 SCC 752: 1981 SCC (Cri) 593]; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] ).

¶157

13. Recently, this difference was reiterated in Ganapathi v. State of T.N. [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793] , in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593] : (Ganapathi case [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793] , SCC p. 555, para 14)

¶158

“ 14 . “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.…”

¶159

14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465] , wherein this Court observed : (AIR p. 366, para 26)

¶160

“ 26 . A witness is normally to be considered independent unless he or she springs from

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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 relative would be the last to screen the real culprit and falsely implicate an innocent person.”

¶164

15. In the case of a related witness, the Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry) [Jayabalan v. State (UT of Pondicherry), (2010) 1 SCC 199: (2010) 2 SCC (Cri) 966] : (SCC p. 213, para 23)

¶165

“ 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 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 person who is closely related to the victim.”

¶166

It was laid down by the Hon’ble Supreme Court in Thoti Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the court cannot discard the testimony of a witness on the

¶167

: ground of a relationship. It was observed

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“31. In this context, we may refer with profit the decision of this Court in Dalip Singh v. State of Punjab AIR 1953 SC

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364 , wherein Vivian Bose, J., speaking for the Court, observed as follows: -

¶172

“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 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. The State of Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59) .”

¶173

In the said case, it was further observed that:

¶174

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true that when feelings run high and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

¶175

In Masalti v. State of U.P. AIR 1965 SC 202 , it has been ruled that normally close relatives of the deceased would not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased.

¶176

In Hari Obula Reddi and others v. The State of Andhra Pradesh AIR 1981 SC 82 , a three-judge Bench has held that

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evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.

¶180

In Kartik Malhar v. State of Bihar (1996) 1 SCC 614 , it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or some other reason.

¶181

In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh AIR 2006 SC 3010 , while dealing with the liability of interested witnesses who are relatives, a twojudge Bench observed that:

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“it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased if it is otherwise found to be trustworthy and credible.”

¶183

The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon.

¶184

“If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his

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testimony should have corroboration in regard to material particulars before it is accepted.”

¶188

This position was reiterated in Rajesh Yadav vs. State

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of Bihar 2022 Cr.L.J. 2986 (SC) as under:

¶190

“28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstands the rigour of crossexamination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose.

¶191

When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591 :

¶192

“32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of a related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465 , Vivian Bose, J. for the Bench observed the law as under (AIR p. 366, para 26)

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“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is a 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 the 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 generalisation. 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.”

¶196

In Masalti v. State of U.P., (1964) 8 SCR 133: AIR 1965 SC 202: (1965) 1 Cri LJ 226] , a five-judge Bench of this Court has categorically observed as under (AIR pp. 209-210, para 14)

¶197

“14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we

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think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to the failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. The 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 correct.”

¶201

In Darya Singh v. State of Punjab [(1964) 3 SCR 397: AIR 1965 SC 328: (1965) 1 Cri LJ 350] , this Court held that evidence of an eyewitness who is a near relative of the victim should be closely scrutinised but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195: 2005 SCC (Cri) 1213: 2005 Cri LJ 2199] , this Court observed that: (SCC p. 227, para 6)

¶202

“6. 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 the actual culprit and falsely implicate the accused.”

¶203

The last case we need to concern ourselves with is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein this Court after observing previous precedents has summarised the law in the following manner: : (SCC p. 164, para 38)

¶204

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“38. … it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, a conviction can be based on the “sole” testimony of such witness. A close relationship of the witness with the deceased or the victim is no grounds to reject his evidence. On the contrary, a close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”

¶207

From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having a strong interest in the result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule which remains the bulwark of this system, and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining

¶208

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its weight in the scale of truth under the facts and circumstances of each case.”

¶211

Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court.”

¶212

Similar is the judgment in M Nageswara Reddy vs.

¶213

State of Andhra Pradesh 2022 (5) SCC 791 wherein it was observed:

¶214

“10. Having gone through the deposition of the relevant witnesses -eye-witnesses/injured eye-witnesses, we are of the opinion that there are no major/material contradictions in the deposition of the eye-witnesses and injured eye-witnesses. All are consistent insofar as accused Nos. 1 to 3 are concerned. As observed hereinabove, PW6 has identified Accused Nos. 1 to 3. The High Court has observed that PW1, PW3 & PW5 were planted witnesses merely on the ground that they were all interested witnesses being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, in the facts and circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW1, PW3, PW5 & PW6 and even PW7.”

¶215

It was laid down by the Hon’ble Supreme Court in

¶216

Mohd. Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440 , that

¶217

merely because the witnesses are related to each other is no

¶218

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reason to discard their testimonies. The Court is required to see

¶221

their testimonies with due care and caution. It was observed:

¶222

55. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the wellsettled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of GangadharBehera v. State of Orissa, (2002) 8 SCC 381 , this Court held that the testimony of such related witnesses should be analysed with caution for its credibility.

¶223

56. In Raju alias Balachandran v. State of Tamil Nadu , (2012) 12 SCC 701 , this Court observed:

¶224

“29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated

¶225

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in Sarwan Singh [(1976) 4 SCC 369 ] in the following words: ( Sarwan Singh case [(1976) 4 SCC 369 , p. 376, para 10)

¶228

“10. … The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

¶229

57. Further delving into the same issue, it is noted that in the case of Ganapathi v. State of Tamil Nadu , (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial.

¶230

This position was reiterated in Baban Shankar Daphal

¶231

v. State of Maharashtra, 2025 SCC OnLine SC 137 wherein it was

¶232

observed:

¶233

“ 27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased and for prudence, the prosecution ought to have examined some other independent eyewitnesses as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had reached the place of the incident, the evidence of the relatives cannot be disbelieved. The law nowhere states

¶234

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that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinized with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone.

¶237

28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, being a relative does not automatically render a witness “interested” or biased. The term “interested” refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A “related” witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy.

¶238

29. The distinction between “interested” and “related” witnesses has been clarified in Dalip Singh v. State of Punjab ,³ where this Court emphasized that a close relative is usually the last person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related witness, the court should focus on the consistency and credibility of their testimony. This approach ensures that the evidence is not discarded merely due to familial ties, but is instead assessed based on its inherent reliability and consistency with other evidence in the case. This position has been reiterated by this Court in:

¶239

i. Md. Rojali Ali v. The State of Assam Ministry of Home Affairs through secretary (2019) 19 SCC 567 ;

¶240

ii. Ganapathi v. State of T.N. (2018) 5 SCC 549 ;

¶241

iii. Jayabalan v. Union Territory of Pondicherry (2010) 1 SCC 199 .

¶242

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30. Though the eyewitnesses who have been examined in the present case were closely related to the deceased, namely his wife, daughter and son, their testimonies are consistent with respect to the accused persons being the assailants who inflicted wounds on the deceased. As is revealed from the sequence of events that transpired, one of the family members was subjected to an assault. It was thus quite natural for the other family members to rush on the spot to intervene. The presence of the family members on the spot and thus being eyewitnesses has been well established. In such circumstances, merely because the eyewitnesses are family members, their testimonies cannot be discarded solely on that ground.

¶245

Thus, the learned Trial Court had rightly held that a mere relationship is no reason to doubt the witness’s testimony. Relationships may put the Court on caution but the same cannot result in the rejection of the testimony of the witness.

¶246

Naresh Kumar (PW3) deposed about the presence of Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh on the spot and the fact that the huts were set on fire. There is nothing in his cross-examination to show that he was making a false statement. He contradicted his previous statement, wherein it was not mentioned that Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh had set the huts on fire, however, this statement was never proved by the Investigating Officer and no advantage can be derived from the same. Proviso to section 162 of Cr.P.C. permits the use

¶247

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of the statement recorded by the police to contradict a witness.

¶250

It reads:

¶251

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination.

¶252

Thus, it is apparent that the defence can use the statement to contradict a witness if the statement is proved. It was laid down by the Hon’ble Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 that the previous statement has to be proved before it can be used. It was observed:

¶253

“The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police officer who recorded the statement is not available, other means of proving the

¶254

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statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular officer.”

¶257

It was laid down by the Hon’ble Supreme Court in Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385 that if the witness affirms the previous statement, no proof is necessary, but if the witness denies or says that he did not remember the previous statement, the Investigating Officer should be asked about the same. It was observed: -

¶258

“52. This is the most objectionable manner of using the police statement and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that from amongst those accused mentioned in examination-in-chief there were some whose names were not mentioned in the police statement and if the witness affirms this no further proof is necessary and if the witness denies or says that she does not remember, the investigation officer should have been questioned about it.”

¶259

The Gauhati High Court held in Md. Badaruddin Ahmed v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876 that if the witness denies having made the statement, the portion marked by the defence should be put to the Investigating Officer and his version should be elicited regarding the same. It was observed at page 1880: -

¶260

“ 13. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and

¶261

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submits that P.W. 4 never made his above statement before the police and that the same being his improved version cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for explanation are compulsory. If any authority is to be cited on this point, we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted: was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for explanation. Again, his previous statement was not marked and exhibited. Therefore, his previous statement before the police cannot be used, Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering, the gun from the chest is to be taken as his correct version.

¶264

14. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S. 145 of the Evidence Act to contradict the evidence given by the prosecution witness at the trial

¶265

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with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which he made before the police, and questioned him whether he did, in fact, make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions. In the case in hand, as was discussed above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version.”

¶268

Andhra Pradesh High Court held in Shaik Subhani v.

¶269

State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ

¶270

321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the

¶271

witness and the witness denying the same does not amount to

¶272

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putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement, and if he denies it, the statement is to be proved by the Investigating Officer. It was observed at page 290:

¶275

“ 24… As far as contradictions put by the defence are concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which it ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer.”

¶276

The Calcutta High Court took a similar view in Anjan

¶277

Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2 Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR

¶278

(Cri) 970: (2013) 3 DMC 760 and held at page 151: -

¶279

“21. It was held in State of Karnataka v. Bhaskar Kushali Kothakar, reported as (2004) 7 SCC 487 that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers

¶280

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from omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that for proving the previous statement Investigating Officer ought to be examined, and the statement of the witness recorded by him, can only be proved by him and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.

¶283

23. Proviso to Section 162(1), Cr.P.C. states in clear terms that the statement of the witness ought to be duly proved. The words if duly proved, cast a duty upon the accused who wants to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in the ordinary way. If the witness in the cross-examination admits contradictions, then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer. In case the prosecution fails to call the police officer in a given situation Court can call this witness or the accused can call the police officer to give evidence in defence. There is no doubt that unless the statement as per proviso to sub-section (1) of Section 162, Cr.P.C. is duly proved, the contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the Court.

¶284

24. To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act.

¶285

“ S. 145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those

¶286

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parts of it which are to be used for the purpose of contradicting him .”

¶289

25. Therefore, it is appropriate that before the previous statement or statement under Section, 161, Cr.P.C. is proved, the attention of the witness must be drawn to the portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.

¶290

26. Let us first understand what is proper procedure. A witness may have stated in the statement under Section 161, Cr.P.C. that ‘X murdered Y’. In Court witness state ‘Z murdered Y’. This is a contradiction. Defence Counsel or Court and even prosecution if the witness is declared hostile having resiled from previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr.P.C. where it was stated that ‘X murdered Y’. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of examination of the witness, previous statement or statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court in the event of contradiction has to record as under.

¶291

27. The attention of the witness has been drawn to portions A to A of statement marked as 1, and confronted with the portion where it is recorded that ‘X murdered Y’. In this manner by way of confrontation contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him at that stage statement will be exhibited by the Court. Then contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that ‘X murdered Y’ and he had correctly recorded this fact.

¶292

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28. Now a reference to the explanation to Section 162, Cr.P.C. which says that an omission to state a fact or circumstance may amount to contradiction. Say for instance if a witness omits to state in Court that ‘X murdered Y’, what he had stated in a statement under Section 161, Cr.P.C. will be material? Contradiction, for the Public Prosecutor, as the witness has resiled from the previous statement, or if he has been sent for trial for the charge of murder, omission to state ‘X murdered Y’ will be a material omission, and amount to contradiction so far defence of ‘W is concerned. At that stage also attention of the witness will also be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C. which the witness had omitted to state and note shall be given that attention of the witness was drawn to the portion A to A wherein it is recorded that ‘X murdered Y’. In this way, the omission is brought on record. The rest of the procedure stated earlier qua confrontation shall be followed to prove the statement of the witness and the fact stated by the witness.

¶295

29. Therefore, to prove the statement for the purpose of contradiction it is necessary that the contradiction or omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previous statement (in the present case statement under Section 161, Cr.P.C.)”

¶296

Dr. Kiran Kumar (PW5) conducted the medical examination and found injuries on the person of Sunil Dutt and Hari Ram which could have been caused within eight hours of the incident by a stick. He admitted in his cross-examination that injuries are possible by a fall. He also admitted that the injuries could have been self-inflicted. However, these are mere alternative possibilities and will not make his testimony

¶297

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doubtful² . It was laid down by the Hon’ble Supreme Court in Ramakant Rai v. Madan Rai , (2003) 12 SCC 395: 2003 SCC OnLine SC 1086 that when the testimonies of the witnesses are found credible, the medical evidence pointing to alternative possibilities is not sufficient to discard the prosecution’s case. It was observed at page 404:

¶300

22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

¶301

Therefore, the prosecution’s case cannot be rejected

¶302

due to alternative possibilities in the medical evidence.

¶303

Dr. Kiran Kumar (PW5) admitted that the names of

¶304

the assailants were not disclosed to him. It was submitted that

¶305

2 State of Punjab v. Jagir Singh, (1974) 3 SCC 277

¶306

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failure to disclose the names of the assailants is fatal to the prosecution’s case. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Pattipati Venkaiah v. State of A.P. , (1985) 4 SCC 80: 1985 SCC (Cri) 464: 1985 SCC OnLine SC 205 that the primary duty of the Medical Officer is to save the life and not to make inquiries about the assailants to become eyewitnesses. It was observed at page 84:

¶309

“17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”

¶310

The learned Trial Court had rightly held that the

¶311

testimony of the Medical Officer corroborates the testimony of

¶312

the informant and Hari Ram regarding the beatings given to

them.

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It was not disputed in the cross-examination that the

¶317

huts were set on fire. The only dispute was regarding the identity of the persons who had set the huts on fire. The testimonies of the informant, Hari Ram, and Naresh Kumar prove that the huts were set on fire by Ashok Kumar son of Jagat Ram, and Ashok Kumar alias Thelo son of Kartar Singh. Their testimonies also proved that the accused had given beatings to Hari Ram and the informant.

¶318

However, the presence of Jasbir Singh, Sanjeev Kumar and Raj Kumar on the spot is doubtful in view of the omission of their names in the FIR and they are entitled to the benefit of the doubt.

¶319

Learned Trial Court had convicted the accused for the commission of offences punishable under Sections 147 and 149 of IPC, however, the presence and participation of five persons are required to attract Section 149 of IPC. Since the number of accused has been reduced to three, therefore, they cannot be convicted with the aid of Section 149 of IPC.

¶320

The prosecution evidence shows that accused Ashok Kumar son of Jagat Ram, and Ashok Kumar alias Thelo son of

¶321

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Kartar Singh had set the huts on fire, therefore, they shared a common intention to put the huts on fire. It further shows that accused Ashok Kumar son of Jagat Ram, Ashok Kumar alias Thelo son of Kartar Singh and Makhan alias Sanjeev Kumar had given beatings to the informant and Hari Ram, therefore, they shared the common intention to cause beatings to him. It was laid down by the Hon’ble Supreme Court in Dhaneswar Mahakud v. State of Orissa , (2006) 9 SCC 307: (2006) 2 SCC (Cri) 505: 2006 SCC OnLine SC 399 , that when the accused were charged with the commission of offences punishable under Section 302 read with Section 149 of IPC, they can be convicted with the aid of Section 302 read with Section 34 of IPC. Even though no charge was framed for the commission of offences punishable under Section 302 read with Section 34 of IPC. It was observed at page 313:-

¶324

“8. Before we consider the eyewitnesses' version of the incident and the medical evidence, we would like to venture upon the argument advanced by the counsel for the appellants that whether in the absence of a charge under Section 34 IPC, the accused-appellants can be convicted with the aid thereof, when they were charged with an offence under Section 302 read with Section 149 IPC only. To convict the accused of an independent charge under Section 302 IPC, it is necessary that the court should reach the conclusion that the injuries inflicted by each individual taken in isolation, were sufficient in the ordinary course of nature to cause death of the deceased

¶325

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persons. If the court reaches the conclusion on the basis of the material placed before it that the injuries were sufficient in the ordinary course of nature to cause death and the nature of injuries was homicidal, the court can convict each and every accused under Section 302 IPC, but if the court cannot conclusively reach to the finding that each and every individual involved in commission of the offence has caused such injuries which are sufficient in the ordinary course of nature to cause death, the accused cannot be convicted under Section 302 IPC. If the injuries caused are sufficient in the ordinary course of nature and they have been caused in furtherance of the common intention, then each and every individual propagating the common intention can be convicted under Section 302 read with Section 34 IPC, although he has not been charged under Section 34 IPC and has been charged under Section 149 IPC along with Section 302 IPC.

¶328

9. In Malhu Yadav v. State of Bihar [(2002) 5 SCC 724: 2002 SCC (Cri) 1190] this Court has held as under: (SCC p. 736, para 14)

¶329

“ 14 . … The prosecution has established that the aforesaid four accused persons joined in the actual doing of the act which resulted in the death of Sotilal [the deceased] and the common intention though not initially in existence, was formed during the transaction on the spot. The existence of the common intention amongst the aforesaid accused persons has been established from the surrounding circumstances and from their conduct on the spot. The absence of the charge under Section 34 against the aforesaid accused persons would not make any difference because, on the proved facts and evidence available on record, their intention to commit an offence has been established. Failure to charge the accused under Section 34, who stood charged under Section 149 IPC would not result in any prejudice to them ( Dalip Singh v. State of Punjab [(1953) 2 SCC 36: 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465] ). The aforesaid

¶330

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accused persons can, therefore, be convicted for the major offence read with Section 34 of the Penal Code.”

¶333

10. Similarly in Chittarmal v. State of Rajasthan [(2003) 2 SCC 266: 2003 SCC (Cri) 514: AIR 2003 SC 796] this Court has held as under: (SCC p. 273, para 14)

¶334

“ 14 . It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses the commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar

¶335

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Ghosh v. King Emperor [(1924) 52 IA 40: AIR 1925 PC 1 : (1925) 26 Cri LJ 431], Mannam Venkatadari v. State of A.P. [(1971) 3 SCC 254: 1971 SCC (Cri) 479: AIR 1971 SC 1467], Nethala Pothuraju v. State of A.P. [(1992) 1 SCC 49: 1992 SCC (Cri) 20: AIR 1991 SC 2214] and Ram Tahal v. State of U.P. [(1972) 1 SCC 136: 1972 SCC (Cri) 80: AIR 1972 SC 254] )”

¶338

[ Lachman Singh v. State [(1952) 1 SCC 362: 1952 SCR 839: AIR 1952 SC 167: 1952 Cri LJ 863] (AIR para 13) and Karnail Singh v. State of Punjab [1954 SCR 904: AIR 1954 SC 204: 1954 Cri LJ 580] (AIR para 7) are two other cases on the same point.]

¶339

11. In Hamlet v. State of Kerala [(2003) 10 SCC 108] (SCC p. 116, para 17) this Court has held as follows:

¶340

“ 17 . This Court in Nethala Pothuraju v. State of A.P. [(1992) 1 SCC 49: 1992 SCC (Cri) 20: AIR 1991 SC 2214] has held that the non-applicability of Section 149 IPC is no bar in convicting the accused under Section 302 read with Section 34 IPC if the evidence discloses commission of an offence in furtherance of the common intention of such accused. This is because both Sections 149 and 34 IPC deal with a combination of persons who become liable to be punished as sharers in the commission of offences. Therefore, in cases where the prosecution is unable to prove the number of members of the unlawful assembly to be five or more, courts can convict the guilty persons with the aid of Section 34 IPC provided that there is evidence on record to show that such accused shared the common intention to commit the crime. While doing so the courts will have to bear in mind the requirement of Section 34. It is well known that to establish the common intention of several persons to attract Section 34 IPC, the following two fundamental facts have to be established: ( i ) common intention, and ( ii ) participation of the accused in the commission of the offences. If the above two ingredients are satisfied, even overt act on the part of some of the

¶341

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persons sharing the common intention is not necessary.”

¶344

12. Recently in Gurpreet Singh v. State of Punjab [(2005) 12 SCC 615 : (2006) 1 SCC (Cri) 191] this Court has relied upon Ramji Singh v. State of Bihar [(2001) 9 SCC 528: 2002 SCC (Cri) 760] for the proposition that charges framed under simpliciter Section 302 can be changed to Section 302 read with Section 34 IPC. The relevant portion of the judgment in Ramji Singh case [(2001) 9 SCC 528: 2002 SCC (Cri) 760] is extracted below: (SCC pp. 533-34, paras 1416)

¶345

“ 14 . The legal position as to whether in the absence of charge under Section 34 conviction could be maintained under Section 34 was cleared by the Constitution Bench in Willie (William) Slaney v. State of M.P. [(1955) 2 SCR 1140: AIR 1956 SC 116: 1956 Cri LJ 291] where this Court observed at para 86: (AIR p. 137)

¶346

‘ 86 . Sections 34, 114 and 149 of the Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; “and the charge is a rolled-up one involving the direct liability and the constructive liability” without specifying who are directly liable and who are sought to be made constructively liable.

¶347

In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.’

¶348

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This was reiterated by the Supreme Court a number of times. We may refer to Dhanna v. State of M.P. [(1996) 10 SCC 79: 1996 SCC (Cri) 1192] where this position is reiterated after referring to the other cases. It held: (SCC pp. 82-83, para 9)

¶351

‘ 9 . It is, therefore, open to the court to take recourse to Section 34 IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course, a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. ( Amar Singh v. State of Haryana [(1974) 3 SCC 81: 1973 SCC (Cri) 789], Bhoor Singh v. State of Punjab [(1974) 4 SCC 754: 1974 SCC (Cri) 664] .) The first submission of the learned counsel for the appellant has no merit.’

¶352

Accordingly, it is held that even in the absence of the charge under Section 34 the conviction could be maintained by the courts below.

¶353

15 . The counsel for the appellants could not show that any prejudice was caused to either of the accused persons because of the non-framing of the charge under Section 34.

¶354

16 . It is true that the two injuries which proved to be fatal were not specifically attributed to either of the accused. The common intention can be formed at the spot. At times it is difficult to get direct evidence of a preconcert of minds. The common intention can be gathered from the circumstances and the manner in which the assault is carried out. The manner in which the assault was carried out leaves no manner of doubt in our mind that the appellants had come with the intention to kill the deceased. Their intention was not to cause injuries alone.”

¶355

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13. It is apparent from the decisions rendered by this Court that there is no bar on conviction of the accusedappellants with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by the application of Section 34 IPC in place of Section 149.

¶358

Thus, the accused can be convicted with the aid of

¶359

Section 34 of IPC.

¶360

Section 34 of IPC was explained by the Hon’ble Supreme Court in Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545 : (2022) 1 SCC (Cri) 526: 2022 SCC OnLine SC 20 as under at

¶361

page 554:

¶362

We shall first go back into history to understand Section 34 IPC as it stood at its inception and as it exists now.

¶363

Old Section 34 of IPC	New Section 34 of IPC
"When a criminal act is	"When a Criminal act is
done by several persons, each of such persons is	done by several persons, in furtherance of
liable for that act in the	the common intention of
same manner as if the act	all, each of such persons is
was done by him alone"	liable for that act in the same manner as if it were by him alone"

¶364

18. On comparison, one could decipher that the phrase “in furtherance of the common intention” was added to the statute book subsequently. It was first coined by Barnes Peacock, C.J. presiding over a Bench of the Calcutta High

¶365

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Court, while delivering its decision in R. v. Gorachand Gope [R. v. Gorachand Gope, 1866 SCC OnLine Cal 16] which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view : (SCC OnLine Cal)

¶368

“It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in a company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not

¶369

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necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals.”

¶372

19. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Sections 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offence. A similar meaning is also given to the word “omission”, meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.

¶373

20. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. The onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him on a par with the one who actually committed the offence.

¶374

21. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.

¶375

22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct

¶376

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roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.

¶379

23. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence.

¶380

24. Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.

¶381

25. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

¶382

26. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.

¶383

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¶385

27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.

¶386

28. The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:

¶387

28.1. Suresh v. State of U.P. [Suresh v. State of U.P., (2001) 3 SCC 673: 2001 SCC (Cri) 601] : (SCC pp. 682-83 & 686-87, paras 24 & 40)

¶388

“ 24 . Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can

¶389

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amount to an act e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.

¶392

¶393

40 . Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act, the law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under the law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan

¶394

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Patar v. Emperor [Satrughan Patar v. Emperor, 1919 SCC OnLine Pat 4: AIR 1919 Pat 111] held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.”

¶397

28.2. Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268: 2003 SCC (Cri) 301] : (SCC p. 277, para 22)

¶398

“ 22 . The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused — though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.”

¶399

28.3. Chhota Ahirwar v. State of M.P. [Chhota Ahirwar v. State of M.P., (2020) 4 SCC 126] : (SCC p. 133, para 24)

¶400

“ 24 . Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is a simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed on the spot as held in Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268: 2003 SCC (Cri) 301] . There must be a common intention to commit the particular offence. To constitute

¶401

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¶403

common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.”

¶404

28.4. Barendra Kumar Ghosh v. Emperor [Barendra Kumar Ghosh v. Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40: AIR 1925 PC 1] : (SCC OnLine PC)

¶405

“… the words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things, “they also serve who only stand and wait”. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for “that act” and “the act” in the latter part of the section must include the whole action covered by “a criminal act” in the first part because they refer to it. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to cooperate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for different punishments for

¶406

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different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.”

¶409

28.5. Mahbub Shah v. Emperor [Mahbub Shah v. Emperor, 1945 SCC OnLine PC 5 : (1944-45) 72 IA 148: AIR 1945 PC 118] : (SCC OnLine PC)

¶410

“… Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intentions of all”, nor does it say “an intention common to all.” Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.”

¶411

28.6. Rambilas Singh v. State of Bihar [Rambilas Singh v. State of Bihar, (1989) 3 SCC 605 : 1989 SCC (Cri) 659] : (SCC pp. 609-10, para 7)

¶412

“ 7 . … It is true that in order to convict persons vicariously under Section 34 or Section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or the

¶413

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prosecution of the common object of the members of the unlawful assembly.”

¶416

28.7. Krishnan v. State of Kerala [Krishnan v. State of Kerala, (1996) 10 SCC 508: 1996 SCC (Cri) 1375] : (SCC p. 515, para 15)

¶417

“ 15 . Question is whether it is obligatory on the part of the prosecution to establish the commission of an overt act to press into service Section 34 of the Penal Code. It is no doubt true that the court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. The question is whether an overt act has always to be established? I am of the view that the establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this section gets attracted when “a criminal act is done by several persons in furtherance of the common intention of all”. What has to be, therefore, established by the prosecution is that all the persons concerned had shared a common intention. The Court's mind regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur .” (emphasis in original)

¶418

28.8. Surendra Chauhan v. State of M.P. [Surendra Chauhan v. State of M.P., (2000) 4 SCC 110 : 2000 SCC (Cri) 772] : (SCC p. 117, para 11)

¶419

“ 11 . Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.”

¶420

28.9. Gopi Nath v. State of U.P. [Gopi Nath v. State of U.P., (2001) 6 SCC 620] : (SCC p. 625, para 8)

¶421

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¶423

“ 8 . … As for the challenge made to the conviction under Section 302 read with Section 34 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by a plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action — be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.”

¶424

28.10. Ramesh Singh v. State of A.P. [Ramesh Singh v. State of A.P., (2004) 11 SCC 305: 2004 SCC (Cri) Supp 70] : (SCC p. 314, para 12)

¶425

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¶427

“ 12 . … As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.”

¶428

28.11. Nand Kishore v. State of M.P. [Nand Kishore v. State of M.P., (2011) 12 SCC 120 : (2012) 1 SCC (Cri) 378] : (SCC pp. 126-27, paras 20-23)

¶429

“ 20 . A bare reading of this section shows that the section could be dissected as follows:

¶430

( a ) Criminal act is done by several persons;

¶431

( b ) Such act is done in furtherance of the common intention of all; and

¶432

( c ) Each of such persons is liable for that act in the same manner as if it were done by him alone.

¶433

In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While the first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by a fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word “done”. It only flows from this that before a person

¶434

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can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.

¶437

21 . Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between “common intention” on the one hand and “mens rea” as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.

¶438

22 . Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab [Brathi v. State of Punjab, (1991) 1 SCC 519: 1991 SCC (Cri) 203] .)

¶439

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23 . Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case,…”

¶442

28.12. Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] : (SCC p. 682, para 87)

¶443

“ 87 . Upon analysis of the above judgments and in particular the judgment of this Court in Dharnidhar v. State of U.P. [Dharnidhar v. State of U.P., (2010) 7 SCC 759 : (2010) 3 SCC (Cri) 491] , it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he had the common intention to commit the act. The phrase “common intention” means a pre-oriented plan and acting in pursuance to the plan, thus, the common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of the moment between a number of persons with reference to the facts of a given case.”

¶444

29. The aforesaid principle has also been dealt with in extenso by the Supreme Court in Virendra Singh v. State of M.P. [Virendra Singh v. State of M.P., (2010) 8 SCC 407 : (2010) 3 SCC (Cri) 893] through the following paragraphs : (SCC pp. 413 & 420-21, paras 15-17 & 36-42)

¶445

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¶447

“ 15 . Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words “common intention” implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in the course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [Amrik Singh v. State of Punjab, (1972) 4 SCC (N) 42: 1972 Cri LJ 465 ].

¶448

16 . The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.

¶449

17 . Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts

¶450

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done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.

¶453

¶454

36 . Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under Section 302 with the aid of Section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories : ( 1 ) those who actually commit the crime i.e. principals in the first degree; and ( 2 ) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.

¶455

37 . Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others.

¶456

38 . The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.

¶457

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¶459

39 . The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding the development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.

¶460

40 . The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.

¶461

41 . The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime , 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of a felony is done in furtherance of the act.

¶462

42 . Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been

¶463

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done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be a long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.”

¶466

The learned Trial Court also convicted the accused of

¶467

the commission of an offence punishable under Section 504 of IPC, however, the informant Hari Ram did not state the exact words used by the accused. The ingredients of Section 504 of IPC were explained by the Hon’ble Supreme Court in Mohammad Wajid v. State of U.P. (Criminal Appeal No. 2340/2023 decided on August 8, 2023, as under: -

¶468

“25. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an

¶469

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¶471

intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace, and not the particular conduct or temperament of the complainant.

¶472

Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case, and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78 , a Division Bench of the Bombay High Court pointed out that: —

¶473

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¶475

“To constitute an offence under Section 504, I.P.C., it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.”

¶476

A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.

¶477

In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably be said to have been disclosed, but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to an intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.”

¶478

It was laid down by the Hon'ble Supreme Court in

¶479

Vikram Johar v. State of U.P. , (2019) 14 SCC 207: (2019) 4 SCC (Cri) 795: 2019 SCC OnLine SC 609 that mere abuse is not sufficient to attract Section 504 of IPC. It was observed at page 217: -

¶480

83

¶481

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¶482

21. Section 504 IPC came up for consideration before this Court in Fiona Shrikhande v. State of Maharashtra [ Fiona Shrikhande v. State of Maharashtra , (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715] . In the said case, this Court had the occasion to examine the ingredients of Section 504 IPC, which need to be present before proceeding to try a case. The Court held that in the said case, the order issuing process was challenged by filing a criminal revision. This Court held that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In para 11, the following principles have been laid down: (SCC pp. 48-49)

¶483

“ 11 . We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards the issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused, and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi [Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736: 1976 SCC (Cri) 507] , this Court held that once the Magistrate has exercised his

¶484

84

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¶486

discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have.”

¶487

22. In para 13 of the judgment, this Court has noticed the ingredients of Section 504 IPC, which are to the following effect: (Fiona Shrikhande case [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715] , SCC p. 49)

¶488

“ 13 . Section 504 IPC comprises of the following ingredients viz. ( a ) intentional insult, ( b ) the insult must be such as to give provocation to the person insulted, and ( c ) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that it should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult, and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.”

¶489

23. In another judgment, i.e. Manik Taneja v. State of Karnataka [Manik Taneja v. State of Karnataka, (2015) 7 SCC 423: (2015) 3 SCC (Cri) 132] , this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, a case was registered for the offence under Sections 353 and 506 IPC. After noticing Section

¶490

85

¶491

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¶492

503, which defines criminal intimidation, this Court laid down the following in paras 11 and 12 : (SCC pp. 427-28)

¶493

“ 11 .***

¶494

A reading of the definition of “criminal intimidation” would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

¶495

12 . In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of “criminal intimidation”. The threat must be with the intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in the discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public, and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.”

¶496

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¶497

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¶498

In the above case, the allegation was that the appellant had abused the complainant. The Court held that the mere fact that the allegation that the accused had abused the complainant does not satisfy the ingredients of Section 506 IPC.

¶499

24. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that the appellant, with two or three other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him, and when some neighbours arrived there, the appellant and the other persons accompanying him fled the spot. The above allegation, taking on its face value, does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that the appellant came and abused the complainant does not satisfy the ingredients as laid down in para 13 of the judgment of this Court in Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44: (2014) 1 SCC (Cri) 715] .

¶500

This position was reiterated in B.V. Ram Kumar v.

¶501

State of Telangana, 2025 SCC OnLine SC 275 wherein it was

¶502

observed:

¶503

“19. For appreciating the necessary ingredients required to substantiate a charge under Section 504, IPC, a reference in this regard may be made to the judgment of this Court in Fiona Shrikhande v. State of Maharashtra (2013) 14 SCC 44 , wherein the Court discussed the essential ingredients of Section 504, IPC. The Court held as follows: —

¶504

“13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must

¶505

87

¶506

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¶507

be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.”

¶508

We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC.” (emphasis supplied)

¶509

20. Thus, upon reading the complaint as a whole, if the Magistrate comes to a conclusion, prima facie , that there has been an intentional insult made by the accused to the complainant so as to provoke the latter to break the public

¶510

88

¶511

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¶512

peace or to commit any other offence, then only the act complained of would fall within the ambit of Section 504, IPC. The law does not mandate that the complainant should verbatim reproduce each word or words capable of provoking him/her to commit a breach of peace or any other offence. The background facts, circumstances, the occasion, the manner in which the offending words are used, the person to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504, IPC.

¶513

21. Further, this Court in the case of Mohammad Wajid v. State of U.P. 2023 SCC Online SC 951 , while discussing Section 504, IPC, propounded the test for considering the circumstances wherein, an abusive language takes the form and shape of an intentional insult and held thus: —

¶514

“28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section . But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender . In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in

¶515

89

¶516

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¶517

ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.

¶518

29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant.” (emphasis supplied)

¶519

22. Needless to say, mere abuse, discourtesy, rudeness or insolence does not amount to an intentional insult within the meaning of Section 504, IPC. Furthermore, it would be immaterial that the person who has been insulted and provoked did not actually break the peace or commit any offence.

¶520

23. Section 504, IPC consists of two parts. Firstly, the actus reus - being the intentional insult which gives rise to the provocation. Secondly, the mens rea , i.e. , the intention or knowledge on the part of the accused that such intentional provocation is likely to cause the person insulted to break public peace or commit any other offence. The animus nocendi in Section 504, IPC is that the accused should ‘intentionally insult’ the other person with the intention or knowledge that the provocation

¶521

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¶522

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¶523

caused by such insult is likely to result in the commission of a breach of public peace or any other offence by the person who has been so insulted. The offence is said to be complete once the accused person makes an ‘intentional insult’ with the aforesaid mens rea . Hence, intention or knowledge on the part of the accused person that his actions of making an ‘intentional insult’ have the potential to provoke the person insulted is sine qua non for the commission of the offence under Section 504, IPC.

¶524

24. The natural corollary of the above discussion is that if the accused does not intend to give provocation, the offence is not made out. An insult without an ‘intention to insult’ is not punishable under Section 504, IPC. Further, ‘intentional insult’ must be of such a degree that it has the potential to provoke a reasonable person to break the public peace or to commit any other offence.

¶525

25. It is trite that whether the person provoked further commits an illegal act or not is immaterial to draw the conclusion of culpability under Section 504, IPC. The ‘intentional insult’ and provocation must be so proximate and close that the accused has either the intention or the knowledge that the intentional insult made by him is likely to cause the provoked person to break public peace or commit some other offence. However, what would be the nature of ‘intentional insult’ causing provocation, to draw culpability under Section 504, IPC would depend upon the facts and circumstances of each case. The test to be applied to determine if the intentional insult made by the accused is sufficient to cause provocation is that of a reasonable person, i.e. , if the insult is sufficient to provoke any reasonable person to break the peace or commit any other offence, only then the accused will be liable for the offence under Section 504, IPC.”

¶526

Therefore, in the absence of the exact words, the accused could not have been convicted of the commission of an offence punishable under Section 504 of IPC.

¶527

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¶529

Accused Ashok Kumar son of Jagat Ram (A4) had expired and the proceedings have abated qua him.

¶530

In view of the above, the present appeal filed by appellant Raj Kumar alias Bitu is allowed and he is acquitted of the commission of charged offences.

¶531

The appeal filed by Ashok Kumar etc. is partly allowed. Jasbir Singh alias Kaku and Sanjeev Kumar alias Sanju are acquitted of the offences charged against them. Accused Ashok Kumar and Makhan alias Sanjeev Kumar are acquitted of the commission of an offence punishable under Section 504 and 149 of IPC.

¶532

Consequently, accused Ashok Kumar alias Thelo is convicted of the commission of offences punishable under Sections 436 and 323 read with Section 34 of IPC, whereas accused Makhan alias Sanjeev Kumar is convicted of the commission of an offence punishable under Section 323 read with Section 34 of IPC.

¶533

The learned Trial Court had sentenced each accused to undergo rigorous imprisonment for five years and to pay a fine of ₹2,000/- each and in default of payment of the fine to

¶534

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¶535

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¶536

undergo simple imprisonment for two months each for the commission of offence punishable under Section 436 of IPC. This cannot be said to be excessive considering the extent of damage caused on the spot and no interference is required with it. Learned Trial Court had also sentenced the accused to undergo rigorous imprisonment for six months, pay a fine of ₹500/- each and in default of payment of the fine to undergo simple imprisonment for one month each for the commission of an offence punishable under Section 323 of IPC. This is also not excessive, keeping in view the nature of injuries sustained by the informant and Hari Ram. Hence, no interference is required with the sentence imposed by the learned Trial Court.

¶537

Subject to these modifications, the rest of the judgment and order passed by the learned Trial Court is upheld. 60. Modified warrants be prepared accordingly and the record be returned to the learned Trial Court along with a copy of this judgment.

¶538

16^th June, 2025 (Chander)

¶539

( Rakesh Kainthla) Judge

Raj Kumar v. State

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