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TMI Blog2004 (12) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... nagar City. Accused Afzal had forcibly demanded money from Kalloo, younger brother of the deceased. Kalloo had told this fact to deceased and when he complained to accused Afzal he threatened to kill him. 4. On the night of 4.10.1979 at about 9.30 p.m. Zamil deceased after closing his shop was returning to his house in mohalla Khalla Bazar along with Imran (PW-2), When he reached in front of Maszid Kunharan near mohalla Khalla Bazar accused Afzal alias Patel and his uncle accused-appellant Israr met him and they started saying that he had got them arrested and no body would save them. Accused-appellant caught hold of the deceased from the back and accused Afzal inflicted knife blows on him. Deceased raised alarm and hearing his alarm, Noor Hahi (PW-3), Iqbal (PW-4) and Sayeed (PW-5) rushed to the spot and saw the occurrence. When the witnesses tried to intervene the accused persons ran away flashing knife. Imran (PW-2) took Zamil Ahmad to District Hospital, Muzaffarnagar where his injuries were examined by Dr. R.K. Tandon who found three incised wounds on his person and prepared injury report (Ext. Ka.17). 5. After admitting Zamil Ahmad in District Hospital, Muzaffarnagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -4) and Sayeed (PW-5) were stated to be eye witnesses. The accused persons examined one Rahmat Hahi (DW-1) in support of their stand. Considering the evidence on record, trial Court found them guilty. It is to be noted that PW-2 made a departure from the statement made during investigation. The other witnesses categorically stated that the accused-appellant caught hold of the deceased thereby facilitating the knife blows by Afzal. Both the convicted accused persons filed appeal before the Allahabad High Court. By the impugned judgment the appeal was dismissed and conviction and sentence were affirmed. 10. In support of the appeal Mr. Salmad Khurshid, learned senior counsel submitted that the evidence of the so called eye witnesses does not inspire confidence. There was no light which could have facilitated the identification. The so-called eye witnesses were partisan witnesses, being friends and relatives of the deceased. In any event, Section 34 has no application. There is nothing on record to show that the accused had any common intention to cause death of the deceased. Doctor's evidence was that the cause of death was due to Peritonitis and Broncho Pneumonia. It was, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Each case must be limited to and be governed by its own facts. 14. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan 1974 CriLJ 331, in which Vadivelu Thevar v. State of Madras 1957 CriLJ 1000, was also relied upon. 15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh 1957 CriLJ 550). 18. The above position was elaborately discussed in Sucha Singh and Anr. v. State of Punjab 2003 (6) JT SC 348 . 19. Coming to the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible. 20. In addition, the dying declaration which was recorded by CW-1 clearly establishes the roles played by the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to attract the provision. 22. As it originally stood the Section 34 was in the following terms: When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone. 23. In 1870, it was amended by the insertion of the words in furtherance of the common intention of all after the word persons and before the word each , so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor. 24. The Section does not say the common intention of all , nor does it say and intention common to all . Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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