Maheshwari Yadav vs State of Bihar 2023 INSC 1068 – S 34 IPC – Eyewitnesses

Indian Penal Code, 1860; Section 34,302 -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 – 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. (Para 7)

Criminal Trial – It is not axiomatic that in every case where the eye­witnesses 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 eyewitnesses is of sterling quality, an adverse inference need not be drawn. Quality is more important than quantity – Merely because they made no attempt to save the deceased or resist the accused is no ground by itself to disbelieve their case.. (Para 8-11)

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