ANIL SHARMA AND ORS. versus STATE OF JHARKHAND

Citation: [2004] SUPP. 1 S.C.R. 907 · Decided: 30-04-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

ANIL SHARMA AND ORS. 
A 
v. 
ST A TE OF JHARKHAND 
APRIL 30, 2004 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
B 
Penal Code, 1860: 
Section 34-Common intention-In furtherance of-Joint liability -
Held: Section 34 is only a rule of evidence and does not create a substantive C 
offence-Existence of common intention is an essential element for application 
of S. 34-S. 34 is applicable even if no injury had been caused by a particular 
accused-For application ofS. 34 it is not necessary to show some overt act 
on the part of the accused. 
Criminal Trial: 
D 
Witness-Fresh examination of-Held: It is not in every case where the 
witness wanted to be freshly examined that the Court should readily accede . 
to such a request-The Court should determine whether the witness had a 
fair opportunity to speak the truth earlier and in an appropriate case allow E 
fresh examination of the witness- However, such a power should not be 
exercised in a routine or cavalier manner. 
Words and Phrases: 
"Common intention "-Meaning of-In the context of S. 34 of the Penal F 
Code, 1860. 
According to the prosecution, the appellants-accused assaulted the 
deceased with a belt and iron rod and inflicted a blow on PW-6. The trial court, 
relying primarily on the evidence of the eyewitnesses, convicted the appellants-
accused. The High Court affirmed the conviction. Hence the appeals. 
G 
On behalf of the appellants-accused, it was contended that the 
application of PW-6 for getting examined afresh was improperly rejected 
which had caused great prejudice to the accused; and that Section 34 IPC 
· was wrongly applied. 
907 
H 
908 
SUPREME COURT REPORTS [2004) SUPP. l S.C.R. 
A 
Dismissing the appeals, the Court· 
HELD: 1. It is not that in every case where the witness who had given 
evidence before the Court, wants to change his mind and is prepared to speak 
differently, that the Court concerned should readily accede to such a request 
by lending its assistance. If the witness who deposed one way earlier comes 
B before the appellate Court with a prayer that he is prepared to give evidence 
which is materially different from what he has given earlier at the trial with 
the reasons 'ror the earlier lapse, the Court can consider the genuineness of 
the prayer in the context as to whether the party concerned had a f~ir 
opportunity to speak the truth earlier and in an appropriate case accept it. It 
is not that the power is to be exercised in a routine or eavalier manner, but 
C 
being an exception to the ordinary rule of disposal of appeal on the basis of . 
records received, in exceptional cases or extraordinary situation the Court 
can neither feel powerless 'nor abdicate its duty to arrive at the truth 'and 
satisfy the ends of justice. The Court ultimately can certainly be guided by 
the metaphor, separate the grain from the chaff, and in a case which has telltale 
D imprint of reasonableness and genuineness in the prayer, the same has to be 
accepted, at least to consider the worth, credibility and the acceptability of 
the same on merits of the material sought to be brought in. [914-A-D) 
2.1. Section 34 of the Penal Code, 1860, has been enacted on the principle 
of joint liability in the doing of a criminal act. The Section is only a rule of 
E evidence and does not create a substantive offence. The distincdve feature of 
the Section is the element of participation in action. The liability of one person 
for an offence committed by another in the course of a criminal act perpetrated 
by several persons arises under Section 34 if such a criminal act is done in 
furtherance of a common intention of the persons who join in committing the 
crime. Direct proof of common intention is seldom available and, therefore, 
F 
such intention can only be inferred from the circumstances appearing from 
the proved facts of the case and the proved circumstances. In order to bring 
home the charge of common intention, the prosecution has to establish by 
evidence, whether direct or circumstantial, that there was a plan or meeting 
of minds of all the accused persons to commit the offence for which they are 
G charged with the aid of Section 34, be it pre-arranged or on the spur of the 
moment; but it must necessarily be before the commission of the crime. The 
true contents of the Section one that if two or more persons intentionally do 
an act jointly, the position in law is just the same as if each. of them has done 
it individually by himself. [915-E-H;

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