Pre-requisites for attracting the provisions of Section 34 PPC:-

Pak Case Laws May 09, 2024

(a) It must be proved that criminal act was done by various persons

(b) The completion of criminal act must be in furtherance of common intention as they all intended to do so.

(d) Existence of strong circumstances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention.

(e) The real and substantial distinction in between `common intention' and `similar intention' be kept in view.”

A proper procedure for recording of prosecution evidence, after framing of charge has been laid down in Section 265-F of Cr.P.C. Nowhere in the said section a prohibition has been contained that the Court is bound only to record the testimony of a person, whose statement U/S 161 Cr.P.C. was recorded by the police.

Witness sustained injury during the occurrence and even his name was reflecting in the calendar of witnesses. The Medical Officer who conducted his medico legal examination ruled out any possibility of fabrication qua the injury sustained by him, therefore, none else is more aware of the facts than the said witness and his testimony cannot be excluded merely for the reasons that the Investigating Officer due to negligence or with malafide intention did not record his statement U/S 161 Cr.P.C.

It is well settled by now that the prosecution is not bound to produce all the witnesses. If the appellant was sure that this witness was not ready to support the prosecution witnesses, he had ample opportunity rather at liberty to examine him in his defence or even submit application before the trial Court to summon him as Court Witness but merely on that basis other overwhelming and confidence inspiring prosecution evidence cannot be discarded.