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Jivan Lal And Others v. State Of M.P .
Factual and Procedural Background
On 11 June 1984 Mohan Lal was fatally attacked while walking with his brother Swami (PW 8) toward a betel grove. Thirteen persons were named as assailants. In a judgment dated 1 June 1985 the trial court acquitted two accused but convicted the remaining eleven of, inter alia, offences under Sections 148 and 302/149 of the Indian Penal Code (IPC) and sentenced them to life imprisonment. All eleven convicts appealed. On 9 December 1989 the High Court allowed the appeals of eight and acquitted them, but maintained the conviction of the present three appellants for offences under Sections 302/149 IPC, holding that they had acted with “other unknown persons.” The Supreme Court granted special leave to appeal.
Legal Issues Presented
- Whether the conviction of the three remaining appellants for offences under Sections 148 and 302/149 IPC could stand after the acquittal of the other accused, leaving fewer than five persons to constitute an “unlawful assembly” under Section 141 IPC.
- Whether the testimony of Saraswati (PW 9), the sole eyewitness and mother of the deceased, could be relied upon for conviction despite her being an “interested witness” and despite her implication of all thirteen original accused.
- Whether, in the absence of a specific charge under Section 34 IPC, the court could nonetheless sustain a conviction for murder with the aid of that section when the charge had been framed under Section 149 IPC.
Arguments of the Parties
Appellants’ Arguments
- PW 9 is an interested, solitary eyewitness whose testimony had been partly disbelieved regarding the ten acquitted co-accused; therefore it was unsafe to rest conviction solely on her evidence.
- After the acquittal of ten co-accused, only three persons remained, which could not constitute an unlawful assembly; consequently convictions under Sections 148 and 302/149 IPC were legally impermissible.
Respondent’s Arguments
- The evidence of PW 9 is cogent and consistent, has prompt FIR support, and is corroborated by PW 8 and medical evidence (PW 10).
- Even if Section 149 cannot apply, the facts demonstrate a common intention among the three appellants to commit murder, justifying conviction with the aid of Section 34 IPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dhanna v. State of M.P. (1996) 10 SCC 79 | Court may invoke Section 34 IPC even when only Section 149 was charged, provided common intention is established and no prejudice is caused. | Relied upon to justify conversion of conviction from Sections 302/149 to 302/34 IPC. |
| Nanak Chand v. State of Punjab, AIR 1955 SC 274 | Earlier decision that had cast doubt on substituting Section 34 for Section 149 without charge. | Referential background; subsequent cases clarified the doubt. |
| Willie (William) Slaney v. State of M.P., AIR 1956 SC 116 | Constitution Bench ruling that absence of a specific charge under Section 34 IPC is not fatal if no prejudice is shown. | Cited to underscore that conviction can be sustained under Section 34 IPC despite lack of charge. |
| Amar Singh v. State of Haryana (1974) 3 SCC 81 | Follows Slaney; supports use of Section 34 when Section 149 was charged. | Used as further authority for altering the basis of constructive liability. |
| Bhoor Singh v. State of Punjab (1974) 4 SCC 754 | Similar endorsement of substituting Section 34 for Section 149. | Reinforces the legal permissibility adopted by the Court. |
Court's Reasoning and Analysis
1. Reliability of PW 9: The Court noted that PW 9’s testimony against the three appellants was “cogent and consistent,” promptly reflected in the FIR, and corroborated by PW 8 and the medical evidence of PW 10. Under settled law, a conviction can rest on a sole eyewitness if the testimony is trustworthy; prudence only requires corroboration because she is an interested witness, which was present here.
2. Effect of Acquittal of Co-accused: With only three accused remaining, the statutory minimum of five persons for an unlawful assembly under Section 141 IPC was absent. Therefore convictions under Sections 148 (rioting) and 302/149 IPC could not legally stand.
3. Substitution of Section 34 IPC: The Court held that the facts demonstrated a shared common intention among the three appellants—they were all present, armed, and individually inflicted fatal injuries. Drawing on the precedents listed above, the Court reasoned that the absence of a specific Section 34 charge was not fatal because no prejudice was shown; evidence throughout had focused on their joint participation.
4. Rejection of “falsus in uno” Argument: The Court reiterated that Indian law does not accept the maxim falsus in uno, falsus in omnibus; the acquittal of ten co-accused did not ipso facto taint PW 9’s testimony against the appellants.
Holding and Implications
Holding: The Supreme Court altered the conviction from Sections 302/149 IPC to Sections 302/34 IPC and set aside the conviction under Section 148 IPC, but maintained the sentence of life imprisonment. The appeal was otherwise dismissed, and the appellants’ bail was cancelled.
Implications: The decision reaffirms that (a) reliable testimony of a sole interested eyewitness, when corroborated, can sustain a conviction, and (b) a court may convert liability from Section 149 to Section 34 IPC without a specific charge if common intention is proved and no prejudice is caused. No new precedent is created, but the ruling strengthens existing jurisprudence on constructive liability and evidentiary assessment.
Order
1. The appellants along with 10 others were tried for various offences including offences under Sections 148 and 302/149 IPC in respect of an occurrence dated 11-6-1984 in which deceased Mohan Lal received fatal injuries. The trial court vide judgment of 1-6-1985, acquitted two co-accused but convicted 11 for various offences including offences under Sections 148 and 302/149 IPC. They were sentenced to undergo life imprisonment. All the 11 convicts filed appeal in the High Court against their conviction and sentence. On 9-12-1989, a Division Bench of the High Court allowed the appeal of 8 convicts and acquitted them by giving them the benefit of doubt. So far as the three appellants herein are concerned, their conviction was maintained for the offences under Sections 302/149 IPC. The High Court opined that these three appellants had formed an unlawful assembly with “other unknown persons” with the common object of committing murder of Mohan Lal as alleged by the prosecution. By special leave, the appellants have filed this appeal.
2. We have heard Mr Keshwani, learned counsel appearing for the appellants and Mr U.N Bachawat, learned Senior Counsel appearing for the respondent and examined the record.
3. The trial court as well as the High Court relied upon the testimony of Swami PW 8, brother of Mohan Lal and Saraswati, PW 9, the mother of the deceased. It was found by the courts below that on the fateful day of 11-6-1984 at about 8.00 a.m, the appellants armed with guns and a farsa attacked the deceased while he was proceeding with his brother Swami PW 8 towards the betel grove. The trial court as well as the High Court found that PW 8 and PW 9 had given a correct account relating to the assault and while PW 9 had specifically stated that appellants Jivan Lal and Halkoi fired upon the deceased, Dashrath hit him with a farsa. PW 8 Swami has corroborated PW 9 by deposing that he had seen these accused along with others variously armed by the side of his brother who was lying on the ground. The submission of Mr Keshwani that the courts below committed an error in relying upon the testimony of PW 9, the solitary eyewitness, as according to him, she was an interested witness and since she had implicated 10 other accused also, her testimony could not be relied upon, does not appeal to us. He referred to certain judgments of this Court to urge that conviction could not be based on the testimony of the sole eyewitness, who has been disbelieved in respect of a part of the occurrence or who has been found to be otherwise interested in the prosecution.
4. It is found from a perusal of the record that the evidence of Saraswati PW 9 insofar as the part attributed to the appellants is concerned, is cogent and consistent and is also corroborated by PW 8 as well as by the medical evidence. The names of 3 appellants were also clearly disclosed in the promptly lodged FIR, Ex. P-16. It is settled law that conviction can be based on the sole testimony of an eyewitness provided that testimony is found to be wholly reliable. Where the testimony of such a witness is partly reliable, prudence requires that corroboration of the testimony of that witness should be sought for from independent sources to base the conviction. Indeed, PW 9 is the mother of the deceased. She is, therefore, an interested witness. Prudence, as such, requires that we look for corroboration of her testimony. We find that such corroboration is amply provided for both by PW 8 and Dr Ramesh Kumar, PW 10, who had performed the autopsy on the dead body. Both the trial court and the High Court committed no error in relying upon her testimony which has been corroborated by other evidence on the record to convict the appellants. The appreciation of evidence by both the courts below is proper and we have not been persuaded to take a different view. Merely because, 10 other persons named by her as accused were acquitted, would not render her testimony as wholly suspect because falsus in uno falsus in omnibus is not rule of law accepted by the courts in this country. That apart, we find that the High Court has opined that since the testimony of PW 9 had not been supported by the medical evidence insofar as the injuries attributed to the other 10 accused is concerned, therefore, the benefit of doubt was required to be given to them and they were acquitted.
5. The learned counsel for the appellants then submitted that the conviction of the appellants by the courts below for offences under Sections 148 and 302/149 IPC, cannot be sustained. Indeed, according to the positive case of the prosecution, all the 13 arraigned accused were the miscreants. With the acquittal of 10 of them (two by the trial court and eight by the High Court), the conviction of the remaining three under Sections 148 and 302/149 IPC is not permissible as the assembly of three only would not be an unlawful assembly within the meaning of Section 141 IPC. The opinion of the High Court that these three appellants formed an unlawful assembly with some “other unknown persons”, is based on no evidence as it is not the prosecution case that besides the 13 named persons, there was any other “unknown” person also who had shared the common object with the appellants for committing the murder of Mohan Lal. The High Court was, therefore, not legally justified in convicting the appellants under Sections 148 and 302/149 IPC. However, we find that the manner in which the incident took place clearly indicates that the appellants had shared the common intention of committing the murder of Mohan Lal. They would therefore be liable for the said murder with the aid of Section 34 IPC. We may notice here that these three appellants are the ones who had been specifically named by PW 9 to have assaulted deceased Mohan Lal. All the three were together at the scene of the crime as deposed to by PW 8 also. The evidence of PW 9 that Jivan Lal and Halkoi had fired upon the deceased while Dashrath had caused an injury on him with a farsa, has been found established from the medical evidence of PW 10. Thus, there is no manner of doubt that the three appellants did share the common intention of committing murder of Mohan Lal. The appellants along with others as already noticed, had been charged for the said murder of sharing the common object with the aid of Section 149 IPC. No prejudice has been shown to have been caused to the appellants for not framing a distinct charge with aid of Section 34 IPC, as intention which is a question of fact, has to be gathered from the evidence and the evidence on the record clearly establishes that the appellants did share the common intention of committing the murder of Mohan Lal. In Dhanna v. State of M.P (1996) 10 SCC 79, JT (1996) 6 SC 652, Thomas, J. speaking for the Bench, while dealing with a similar aspect, after referring to a catena of authorities observed:( and 9)
“Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab (1955) 1 SCR 1201, AIR 1955 SC 274. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P AIR 1956 SC 116, (1955) 2 SCR 1140, where this Court observed at para 86, thus:
‘Sections 34, 114 and 149 of the Indian 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. 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.’
It is, therefore, open to the court to take recourse to Section 34 of 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, AIR 1973 SC 2221, Bhoor Singh v. State of Punjab (1974) 4 SCC 754, AIR 1974 SC 1256.) The first submission of the learned counsel for the appellant has no merit.”
6. The view expressed above lends support to the view taken by us. Under the circumstances, the conviction of the appellants is altered from under Sections 302/149 IPC to the one under Sections 302/34 IPC while maintaining the sentence of life imprisonment. The conviction and sentence of the appellants for the offence under Section 148 IPC is however set aside, but in all other respects, their conviction and sentence is maintained. As a result of the above discussion, except for the alteration made above, this appeal fails and is hereby dismissed.
7. The appellants are on bail. Their bail bonds shall stand cancelled. They shall be taken into custody to undergo the remaining part of the sentence.
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