Source: Supreme Court

Why in News?

Justice Abhay S. Oka and Pankaj Mithal have observed that withholding witnesses from the court doesn't always mean that an 'adverse inference' can be drawn against the prosecution.

• The Supreme Court gave this judgment in the case of Maheshwari Yadav v. The State of Bihar.

What is the Background of Maheshwari Yadav v. The State of Bihar Case?

• Three accused persons were convicted of killing the deceased and assaulting prosecution witnesses. The main accused, who shot the bullet at the deceased, was convicted under Section 302 of the Indian Penal Code,1860(IPC).
• The other two accused persons (appellants) were convicted for the same provision read with Section 34 of the IPC.
• The appellants preferred separate appeals and accused No. 3 before the Patna High Court. The same were dismissed. The matter travelled to the ‘Apex Court’. The appeal preferred by the accused no. 3 was already dismissed.
• The court noted that accused no. 3 was charged only under Section 302 of the IPC, and Section 34 was not applied and to convict accused no. 3, the application of Section 34 was unnecessary.
• However, Section 34 was required to punish the appellants as they shared common intention with accused no. 3.
• The court upheld their sentences and asked them to surrender before the Trial Court.
  • The court also mentioned that when the appellants qualify for consideration for a grant of permanent remission, their case can be considered by the State Government. The same shall be per the applicable remission policy.

What were the Court’s Observations?

• When independent witnesses are available who are not connected with the rival parties, and the prosecution omits to examine them by confining its case to examining related witnesses, an adverse inference can undoubtedly be drawn against the prosecution.
• When the evidence of the eyewitnesses is of sterling quality, an adverse inference need not be drawn. Quality is more important than quantity.
• To bring a case within Section 34, it is not necessary to prove prior conspiracy or pre­meditation. It is possible to form a common intention just before or during the occurrence.

What is the concept of ‘Common Intention’?

• Section 34 of IPC: Acts done by several persons in furtherance of common intention.
  • When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
  • Section 34 makes no mention of any specific offence. It establishes the rule of evidence that if two or more people commit a crime for the same purpose, they will be found jointly accountable.
• Case Law:
  • Barendra Kumar Ghosh v. King Emperor (1925):
    • In this case two people demanded money from a postman as he was counting the money, and when they shot from a handgun at the postmaster, he died on the spot.
    • All of the suspects fled without taking any money. In this instance, Barendra Kumar claimed that he did not shoot the gun and was only standing by, but the courts rejected his appeal and found him guilty of murder under Sections 302 and 34 of the IPC.
    • The Bombay High Court further held that it is not required that all participants participate equally. It is possible to accomplish more or less. However, this does not mean that the individual who did less should be exempt from blame. His legal responsibility is the same.
  • Pandurang v. State of Hyderabad (1955):
    • The SC held that a person cannot be held vicariously accountable for the actions of another if their purpose to commit the crime was not common.
    • It is not a common intention if their conduct is independent of the act of another. It will be known for the same purpose.
  • Mahboob Shah v. Emperor (1945):
    • The appellant Mahboob Shah was found guilty of the murder of Allah Dad by the Sessions Judge. He was found guilty and condemned to death by the Session tribunal.
    • The death penalty was also affirmed by the HC of Justice. The murder conviction and death sentence were reversed on appeal to the Lordship.
    • The Bombay HC held that when Allahdad and Hamidullah sought to flee, Wali Shah and Mahboob Shah came next to them and fired, and therefore there was proof on the spur of the moment that they formed a common intention.