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Maheshwari Yadav and Ors. Vs. The State of Bihar (Neutral Citation: 2023 INSC 1068) - (Supreme Court) (13 Dec 2023)

When the evidence of the eye-witnesses is of sterling quality, an adverse inference need not be drawn



Present is an appeal preferred by the Accused Nos. 1 and 2. The learned Trial Court convicted Accused No. 3, for the offence punishable under Section 302 of the Indian Penal Code, 1860 ('IPC'). The Appellants were convicted for the offences punishable Under Section 302 read with Section 34 of the Indian Penal Code and Section 325 read with Section 34 of the Indian Penal Code.

Section 34 essentially introduces vicarious liability. In a given case, where the offence is punishable under Section 302 of IPC, when the common intention is proved, but no overt act of assaulting the deceased is attributed to the Accused who have been implicated based on Section 34, vicarious liability under Section 34 will be attracted.

In present case, the bullet was fired by the Accused No. 3, as a result of which, the deceased lost his life. Even without the applicability of Section 34, the Accused No. 3 could have been convicted for the offence punishable under Section 302 of the Indian Penal Code. To punish him under Section 302, it was not necessary to apply Section 34 of the IPC. Section 34 was applied to the Appellants as they were sought to be roped in by alleging that they shared common intention with Accused No. 3. To bring a case within Section 34 of IPC, it is not necessary to prove prior conspiracy or pre-meditation. It is possible to form a common intention just before or during the occurrence.

It is not axiomatic that in every case where the eye-witnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances must be considered for concluding whether an adverse inference could be drawn.

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 eye-witnesses is of sterling quality, an adverse inference need not be drawn. Quality is more important than quantity.

The Appellants were together and were in the company of the Accused No. 3. Obviously, they acted in concert. The Appellants were carrying lathi, and the Accused No. 3, was moving with a musket. There was time available for the meeting of minds. Thus, the existence of common intention will have to be accepted. Hence, present Court find every justification for convicting the Appellants by both the Courts. Accordingly, there is no merit in the case, and the appeal is dismissed.


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