Paragraph numbers below are the court’s original numbering, recovered from the source text.
3. Stand of the appellants before the High Court was that -j., ….. there was no legal evidence on record to substantiate the conviction and sentence. No common intention of the occupants to cause the death of Kr. Preeti was established by the prosecution. Seema Misra (PW-8) had stated that the driver B of the jeep wanted to get away as fast and, therefore, offence if any committed by the driver would not travel beyond Section 304 IPC. The act was nothing but a rash and negligent act without any intention to kill the deceased. The High Court did ) …. not accept the stand and upheld the conviction. c
4. In support of the appeals, learned counsel for the appellants re-iterated the stand taken before the High Court. It is to be noted that there were purportedly four eye witnesses. They are PWs 6, 7, 8 and 17. The occurrence took place around 10.45 a.m. on 3.12.1998 and the FIR was lodged immediately D by PWs 4 and 5 around 11.00 a.m. The deceased breathed .. – her last at about 12.10 p.m. The vehicle according to the prosecution version was being driven by Samar Vijay Singh and rest of the occupants were other co-accused persons. It is stated that identity of the accused persons has not been E established. There is no Test Identification Parade. Names were not mentioned in the inquest or in the FIR. The accused persons were not known earlier and Section 6 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') has no application. PWs 9 and 10 had not told the names. The role of F A-3 was not established. A 1, A2 and A4 were the students of the same college and one of the accused was 18 years on the date of occurrence. There was no enmity or motive or any intention to kill Ku. Preeti and in any event place of occurrence was not established and the occurrence took place, even if the G prosecution case is accepted, at the spur of moment. There is no evidence to show any meeting of mind.
5. It is pointed out that most of the so called eye witnesses resiled from their statements made during investigation. The Court has accepted the identification by PWs 8 and 17 and in JAVED ALAM v. STATE OF CHHATIISGARH AND ANR. [DR. ARIJIT PASAYAT, J.] .. * answer to the statement recorded under Section 313 of the Code there was really no definite answer.
6. The question of res-gestae has no application as the name given for the first time is proved in the Court. Res Gestae was not in the police statement. So far as Article D-7 is concerned paint is similar to that of jeep which is scratched.
7. It is also re-iterated that the evidence on record does ..;; not make out a case under Section 34 IPC.
8. It is a classic case of deficiency in the criminal justice c system to protect the witnesses from being threatened by accused. As appears from the record, the witne!sses are the classmates of the deceased who were there with her. As appeared from the evidence of witnesses they backed out from what was stated during investigation. The statE~ment made before the Police during investigation is no evidence. Unfortunately, in cases involving influential people the common experience is that witnesses do not come forward because of fear and pressure. In a brutal manner, the accused Samarvijay Singh who was driving the vehicle run over the gi1rl and she lost her life. The trial Court and the High Court have highlighted certain aspects which clearly bring out the gum of accused Samarvijay Singh. Significant is the evidence of PWs 7 and 8. PW-7 was the girl who accompanied the injured to the hospital and told about the incident to PW-3, the doctor which was recorded in report Ex.P-4 containing the name of Ku.
Vijaylaxmi PW-7 as the person told about the incident. The evidence of PW-6 Lalita Yadav shows that PW-7 was sitting with the deceased when the jeep entered the campus. As rightly noted by the High Court something transpired later on which led to the witnesses giving Ci complete go bye to her earlier version . More important is the evidence of PW-8 who blurted out during cross examination some traces of truth which was labeled as unfair and dishonest cross examination by learned counsel for the appellants. At the end of the ordeal of her evidence she cried and requested the Court not to call her again for evidence A since they were disturbed for the entire year. The plight of the girls who were under pressure depicts the tremendous need for witness protection in our country if criminal justice administration has to be a reality. Even close reading of the evidence shows that how she was under tremendous pressure B not to speak the truth.
In rep'y ~o question No.27 she said that she did not see the occupants. That is nothing, because in answer to the next question she said that there were four boys in the jeep. Question No.34 is very significant. It was specifically asked to the witness as to whether the occupants of the jeep c were asking Samarvijay Singh, the driver of the jeep to run the girl over if she did not give way. Answer was that the boys had said so but afterwards. In answer to question No.35 she said that Samar surged the jeep ahead, crushed the head of Preeti and went away. She had admitted that the boys were laughing 0 in the jeep. and had said to Samar that if the girl did not give way he should run the girl over. She had answered in the affirmative by stating 'yes' to a specific question No.35 claarly meaning that crushing Preeti's head Samar had surged the jeep forward.
9. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res-gastae is that the statement should be spontaneous and should form part of the same transaction ruling out, any possibility of concoction. In Gentele F Vijayavardhan Rao v. State of Andhra Pradesh (AIR 1996 SC 2791) it was held in para 15 as follows: "Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res- gestae. They ar~ in the nature of exception to 'hearsay" rule. Section-6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be JAVED ALAM v. STATE OF CHHATTISGARH AND ANR. [DR. ARIJIT PASAYAT, J.] –1 considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res-gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it."
10. The reason indicated by the High Court dismissing the c appeal before it qua accused Samarvijay Singh has no merit and is dismissed.
11. The other question is applicability of Section 34 IPC. r
12. Section 34 has been enacted on the principle of join{' liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by [2009) 8 S.C.R. A himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence B jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
13. The Section does not say "the common intention of all", c 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 commission 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 distinguish between acts of individual members E of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. F For applying Section 34 it is not necessary to show some overt act on the part of the accused.
14. The above position has been highlighted in Chimanbhai Jagabhai Patel v. State of Gujarat & Anr. (SLP G (Crl.) 352 of 2008 disposed of on 16th March, 2009).
15. There is no evidence, muchless credible, which has been salvaged from the onslaught on the witnesses which suggests that there was any meeting of minds, because everything appears to have happened suddenly. The evidence H of PW8 on which the prosecution has placed strong reliance .. ' JAVED ALAM v. STATE OF CHHATTISGARH AND ANR. [DR. ARIJIT PASAYAT, J.] for the purpose of attracting Section 34 IPC gave pre-varicating statements so far as others are concerned, though her statement is sufficient to fasten guilt on Samar Vijay Singh.
16. Considering the background facts it is clear that Section 34 has no application. That being so, while dismissing the appeal filed by Samarvijay Singh, the conviction recorded qua other accused persons has to be set aside which we direct. They shall be released from custody forthwith unless required to be in custody in connection with any other case . .,.L~ K.K.i. Appeal disposed of.