LexAKHLAQ versus STATE OF U.P.
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). AKHLAQ A v. STATE OF U.P. MARCH 19, 2007 [S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] B ..; .. Penal Code, 1860-Sections 34-Evidence Act, 1872-Section 8- Death by strangulation-Common intention-Proof by circumstantial evidence-During trial, prosecution witnesses stating that they saw all accused c following deceased to place of occurrence-Extra judicial confession of accused no. 4 (A-4) to a prosecution witness in presence of accused no. I (A-1) stated that he along with other accused saw A-1 having sexual intercourse with deceased; when she refused their demands, two of them forcibly had sexual intercourse with her; when she threatened to expose their D misdeeds, he [A-4] took her dhoti, tied it around her neck, .while others, including A-1, caught hold of her, and she died of strangulation-Trial Court found that A-I had sexual intercourse with consent of deceased and was not gutfty under Section 376 /PC, but as he had not objected when extra judicial confession implicating him in his presence was made by A-4, invoking Section 34 /PC and Section 8 of Act of 1872, he was held guilty, along with the other . E accused, under Section 302-High Court confirming conviction of A-1- Correctness of-Held-Evidence indicated presence of A-I at the place of occurrence-Each and every statement made in extra judicial confession of A-4 corroborated other prosecution witnesses-Moreover, A-1 had remained silent when confession was made by A-4 in his presence to a prosecution F witness-Conviction of A-1 by Courts below upheld. Evidence Act, 1872-Section 8-Explanation 2-Illustration (/) and (g)-Statement made in presence of accused, which he might have contracted, if untrue-Admissibility-Held-It is evidence against accused as ground work of his conduct . G . - Penal Code, 1860-Sections 34-Common intention-Proof of-Held- ~ It is not possible to have its direct evidence in every matter-It has to be inferred in appropriate cases from facts and circumstances of each case- Common intention proved but no overt act attributed to individual accused- H 71 ' /J._ 72 SUPREME COURT REPORTS (2007] 4 S.C.R. A Held-Section 34 will be attracted as it involves vicarious liabihty J...: Prosecution case is that a complaint was lodged by P.W.l stating that when he returned from his duty to his home in village and enquired about the whereabouts of his daughter, he was informed that she had gone to answer B nature's call. However, when she did not return for considerable time, he t- became suspicious and proceeded to search her. When he reached the maize ; field of K, he found her dead body with her dhoti tied around her neck and her clothes blood stained. He further found that her golden ear-rings wer1: missing from her body. On his complaint, F.I.R. was prepared and case re1gistered. According to doctor who conducted the post mortem, PW.14, the death was c caused by strangulation. He also found a whitish substance near vulva of the deceased, and had it examined by a pathologist. In his opinion, deceased was possibly raped and cause of death was asphyxia owing to strangulation. After completing the investigation, the Investigating Officer submitted D a charge-sheet against accused, including the appellant, (A-1). All of them denied the charges and pleaded not guilty. In the evidence before Trial Court, PW.4 stated that he was returning from Jiis field when he saw deceased going towards a pond, followed by appellant and the other accused. PW.11 also deposed similarly. PW.6 deposed that on the fateful day after the occurrence, accused no.4 (A-4), told him in presence of appellant, that about three month~ prior to E the incident deceased had abused him; deceased and appellant h:ad illicit relationship; on the fateful day, accused no. 2 (A-2) had gone to house of A-4 to borrow some money from him, wherein accused no. 3 (A-3) was also present; they saw deceased going towards the field of 'K' followed by appellant, and after following them, saw them having sexual intercourse; when they also F demanded sexual intercourse, deceased refused, whereafter, A-4 and A-2 forcibly had sexual intercourse with deceased; as she threatened to expose the misdeeds of A-4 and A-2, A-4 took her dhoti, tied it around her neck, :.. while appellant A-2 appellant A-3 caught hold of her; she was strangulated and she died; A-2 removed her ear-rings. This was the extra judicial G . confession of A-4 to PW.6 i
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