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Presumption of innocence strengthens on acquittal
The accused were charged and tried for the murder of Sharada. The Trial Court acquitted the accused by giving them the benefit of doubt mainly on the ground that the possibility of the deceased having committed suicide could not be ruled out. The Trial Court did not rely upon the dying declarations. On the other hand, the High Court came to the conclusion that there was no reason to discredit the dying declarations and held that dying declarations were totally reliable in view of the testimonies of P.W. 2 and P.W. 5. The High Court held that the reasoning given by the Trial Court was perverse and thereafter, allowed the appeal. Hence, the present appeals.

In our view, though dying declarations stand proved, the issue is whether we can convict the accused only on the basis of these dying declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.

No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration.

In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case.

Hon’ble S.A. Bobde and Deepak Gupta, JJ., have held that in view of the aforesaid circumstances the Trial Court held that the prosecution had failed to prove its case beyond reasonable doubt. This finding of the Trial Court could not be said to perverse. It was based on a proper appreciation of evidence. The Trial Court, after discussing the entire evidence in detail, had come to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt. The High Court came to a different conclusion. On perusal of the entire evidence and the law on the subject we are of the view that the Trial Court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt.

The Hon’ble Justice has further held with regard to the powers of an Appellate Court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the Trial Court and the High Court should not lightly interfere with the decision of the Trial Court and the High Court should not lightly interfere with the decision of the Trail Court which has recorded the evidence and observed the demeanour of witnesses.
Sampat Babso Kale v. State of Maharashtra, 2019 (199) AIC 4 SC

SECTION 34, IPC APPLICABLE EVEN IF NO INJURY CAUSED
The present appeals arise out of the judgment dated 16th November, 2007 passed by the High Court of Kerala in Criminal Appeals convicting the accused appellants (accused No. 1 and accused No. 3) for offence under section 302 read with section 34, I.P.C. and also under section 324, I.P.C. and sentenced to undergo rigorous imprisonment for life.

After analysing the evidence, learned Trial Court convicted accused Nos. 1 and 3 alongwith other accused persons for offence under sections 143, 148, 323, 324 read with section 149, I.P.C. and for 302 read with section 149, I.P.C. and sentenced them to rigorous for life vide judgment dated 31st July, 2006. Accused Nos. 1, 2 and 3 preferred joint appeal against the impugned judgment of the learned Trial Court and the High Court of Kerala after due appraisal of the evidence on record, found all the three accused guilty and convicted them under section 302 read with section 34, I.P.C. and sentenced to undergo rigorous imprisonment for life vide impugned judgment dated 16th November, 2007.

Hon’ble A.M. Khanwilkar and Ajay Rastogi, JJ., have held that the true purport of section 34, I.P.C. is that if two or more persons intentionally do an act jointly, the position of law is just the same as if each of them have done it individually. The process of law is intended to meet a situation in which it may be difficult to distinguish between acts of individual members of a party who acts in furtherance of the common intention as held by this Court in Chinta Pulla Reddy and others v. State of Andhra Pradesh and Girija Shankar v. State of U.P.

The application of principles enunciated in section 34, I.P.C., when an accused is convicted under section 302 read with section 34, I.P.C., in law 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. As was observed by this Court in Chinta Pulla Reddy and others case (supra), section 34 is applicable even if no injury has been caused by the particular accused himself.

It goes without saying that it would depend on facts of each case as to whether section 34 or section 149 or both the provisions are attracted. The non-applicability of section 149, I.P.C. is no bar in convicting the accused persons under section 302, I.P.C. read with section 34, I.P.C. provided there is evidence which discloses commission of offence in furtherance of common intention.

“There cannot be any quarrel about the law laid down in the aforesaid judgments where subtle distinction is drawn between section 34 and section 149, I.P.C. which deal with “common intention” and common object” respectively. At the same time, it is also clarified that it would depend on the facts of each case as to whether section 34 or section 149, I.P.C. or both the provisions are attracted. It is also held that non-applicability of section 149, I.P.C. is no bar in convicting the accused persons under section 302, I.P.C. read with section 34, I.P.C., if the evidence discloses commission of offence in furtherance of common intention of them all. From the facts of the present case, we are satisfied that the Courts below have rightly concluded that there was a common intention in committing the offence of kidnapping for ransom, by all the convicted persons.”

In our considered opinion, both the appellants (accused No.1 and accused No.3) shared the common intention with accused No.2 by causing bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause death of Assainar and Abdul Rahiman. Section 34 is, therefore, clearly attracted to the case of accused No.1 and accused No.3 even though the injuries assigned to him (accused No.3) may not be on the vital part of the body of the deceased, the conviction of accused No.3 for the offence under section 302 read with section 34, I.P.C. is, therefore, well merited and the sentence of rigorous imprisonment for life imposed upon them is justified.
Palakom Abdul Rahman v. Station House Officer, 2019 (199) AIC 28 SC

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