REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1243 OF 2007
Abdul Sayeed ... Appellant
Vs.
State of Madhya Pradesh ...Respondent
WITH
CRIMINAL APPEAL NO. 1399 OF 2008
Rafique ... Appellant
Vs.
State of Madhya Pradesh ...Respondent
AND
CRIMINAL APPEAL NOS.1363-1365 OF 2010
Rais @ Toun & Ors. ...Appellants
Vs.
State of Madhya Pradesh ....Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. All the aforesaid appeals have been filed against the common
judgment and order dated 12.1.2006, of the High Court of Madhya Pradesh
at Jabalpur in Criminal Appeal Nos.1191 of 1998; 1210 of 1998; and 281 of
2001 by which the appellants have been convicted under Sections 302/34 of
the Indian Penal Code, 1860 (hereinafter called IPC) for committing the
murders of Chand Khan and Shabir Khan, while setting aside their
conviction under Sections 147 and 148 IPC awarded by the Trial Court.
2. Facts and circumstances giving rise to these appeals are that on
16.8.1994 at about 7.50 p.m., F.I.R. No.1/1994 under Sections 302, 147,
148, 149 and 307 IPC was lodged at Police Station Mandai Chowk
Sarangpur, Madhya Pradesh, according to which 17 accused including 5
appellants armed with deadly weapons came from the mosque way; stopped
Chand Khan and started beating him with weapons with an intention to kill
him. After hearing the hue and cry made by Chand Khan, his wife Zaira
Banu, sons Shabir (deceased), Anees (PW.1), and Ashfaq (PW.2), and
brother Usman Ali (PW.4) came running to the place of occurrence and
after seeing the incident, they were so scared that they could not muster the
courage to intervene immediately. After some time Zaira Banu, Shabir and
Ashfaq tried to rescue Chand Khan. Shabir was also assaulted, he was
seriously injured and died on the spot. Ashfaq (PW.2), and his mother Zaira
Banu also got injuries on their persons at the hands of the accused.
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3. The Investigating Officer sent the dead bodies for post-mortems
which were conducted by Dr. R.P. Sharma (PW.3). In his opinion, the cause
of death of both Chand Khan and Shabir was excessive hemorrhage resulting
in injuries to brain and lungs. Ashfaq (PW.2) was also examined medically.
After completing the investigation, out of the seventeen accused, fourteen
were put to trial for offences under Sections 148, 302 and 323, in the
alternative 302/149, 324/149 and 323/149 IPC. One Nanhe Khan @ Abdul
Wahid died before commencement of trial. One accused namely, Rais S/o
Mumtaz is still absconding. While Iqbal @ Bhura, appellant, had also
absconded, but afterwards he surrendered and was tried separately. The
appellants and the other accused denied the charges and pleaded that they
were falsely implicated and claimed trial. The prosecution examined 12
witnesses including Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4),
as eye-witnesses. The other relevant witnesses were Dr. R.P. Sharma
(PW.3) who conducted the post-mortems on the bodies of the deceased,
Ramesh Kumar Dubey (PW.7) and Rajmal Sharma (PW.8) who had
investigated the case. The appellants examined 4 witnesses in defence.
4. After conclusion of the trial, the Special Additional Sessions Judge,
Shajapur, convicted Abdul Sayeed (A.11), Mumtaz Khan (A.9), Rafiq (A.6)
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and Rais (A.5) under Section 148 IPC and awarded a sentence of 3 years’
imprisonment to each; Mumtaz (A.9) was sentenced to 2 years’
imprisonment under Section 147; Mumtaz (A.9) and Abdul Sayeed (A.11)
were sentenced to Rigorous Imprisonment for life and fine of Rs.2000/-
under Section 302 IPC for committing murder of Chand Khan; Rais @ Toun
(A.5) and Rafiq (A.6) were sentenced to Rigorous Imprisonment for life and
fine of Rs.1000/- under Section 302 IPC for committing murder of Shabir;
Sayeed (A.7) was convicted under Section 324 IPC and given 2 years
Rigorous Imprisonment for causing injuries to Ashfaq (PW.2); Hanif Khan
(A.1), was convicted under Sections 304 Part-II, 323 and 147 IPC for
causing injuries to Shabir. Iqbal alias Bhura, appellant also got convicted in
separate Sessions Trial No.190/94 vide judgment and order dated 11.1.2001,
under Sections 148 and 302 IPC and was awarded Rigorous Imprisonment
of 3 years and life imprisonment respectively along with certain fines.
5. All the said convicts filed Criminal Appeal Nos.1191/98; 1210/98;
1233/98; and 281/2001 before the High Court of Madhya Pradesh. The
State of Madhya Pradesh also filed Criminal Appeal No.1447/98 against the
acquittal of some of the accused for offences under Sections 302/149,
324/149 and 323/149 IPC. As all the appeals related to the same incident,
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the High Court disposed of all the appeals by the common judgment and
order dated 12.1.2006 wherein the appellants had been convicted as
mentioned hereinabove, i.e., under Sections 302/34 IPC setting aside their
conviction under Sections 147/148 IPC. The High Court allowed Criminal
Appeal No.1191/98 with regard to the other co-accused, Hanif Khan, Bashir
Khan, Sayeed and Aslam. The appeal filed by the State of Madhya Pradesh
was partly allowed. Hence, these appeals.
6. All these appeals have arisen from the same incident and have been
filed against the common judgment of the High Court and thus, are being
heard together.
7. Shri Fakhruddin, learned Senior counsel, Shri Ranbir Singh Yadav
and Ms. Rakhi Ray, learned counsel appearing for the appellants, have
submitted that in case the High Court had set aside the conviction of all the
appellants and other co-accused under Sections 147/148 IPC, question of
convicting them with the aid of Section 34 IPC did not arise, even otherwise
no charge under Section 34 IPC was framed by the Trial Court; nor any
evidence had been led to show that offences had been committed by the
appellants in furtherance of a common intention. Essential ingredients of
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Section 34 IPC, i.e., that a common intention was shared, has not been
established by the prosecution. More so, the weapons allegedly used for
committing the offences by the appellants do not tally with the ocular
evidence of the eye-witnesses. Therefore, injuries caused to the deceased
and other injured persons cannot be attributed to the appellants. Conviction
under Sections 302/34 IPC is unwarranted and thus, the appeals deserve to
be allowed.
8. On the other hand, Shri C.D. Singh, learned counsel appearing for the
State, has vehemently opposed the appeals contending that not framing the
charge under Section 34 IPC is not fatal to the prosecution and the High
Court has rightly convicted the appellants under Sections 302/34 IPC.
Seventeen persons came to the spot armed with deadly weapons with a
common intention to kill Chand Khan. They surrounded Chand Khan and
started causing injuries to him. In such a fact-situation the eye-witnesses
may not describe exactly what role had been played by an individual
assailant. If there are small omissions in the depositions of the eye-
witnesses, the same require to be ignored. The injured witnesses have to be
relied upon and even in case there is some conflict between the ocular
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evidence and medical evidence, the ocular evidence has to be preferred.
Therefore, the appeals lack merit and are liable to be dismissed.
9. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
10. As mentioned hereinabove, 17 persons had allegedly participated in
the crime. As per the prosecution, on the date of occurrence, i.e., 16.8.1994
at about 11 A.M., one Kamla Bai, daughter of Dev Karan, neighbour of
informant Anees (PW.1) was molested by Munim Khan and Mumtaz Khan
(accused/appellant) in the fields of Faqir. Smt. Gora Bai, mother of Kamla
Bai, complained to Chand Khan with regard to the said incident. Chand
Khan (since deceased), went to advise the uncle of Munim Khan and Pappu
alias Chote Khan in this regard and scolded them. He also gave one slap to
one of the accused. The appellants and other co-accused did not like the
conduct of Chand Khan and in the evening the appellants and the co-accused
committed the offence mentioned hereinabove. In fact, this had been the
motive for commission of the offence.
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11. Out of the seventeen accused, ten stood acquitted by the courts below.
One of them is still absconding. One had died prior to the commencement
of the trial. Only five accused/appellants have been convicted by the High
Court. Therefore, we are concerned only with the cases of these appellants.
Making reference to any of the other co-accused at this stage would not
serve any purpose.
12. As per the Autopsy Report (Ex.P/7-A), prepared by Dr. R.P. Sharma
(PW.3) in respect of Chand Khan, the following external injuries were
noticed:-
1. Incised wound on head at occipital region, 1.5 cm x 1 x bone
deep with fracture.
2. Incised wound on right parietal region 2.5 cm x = x bone
deep fracture of right parietal bone, clotted blood on cerebral
membrane.
3. Incised wound on left leg 10 cm x 2 cm upto bony region of
Tibia.
4. Stab wound on left side of chest between 3rd and 4th rib deep
upto lung 1.5 cm x = cm x deep upto left lung puncture.
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5. Incised wound on left arm of posterior surface 5 cm x 2 cm
x = cm.
6. Lacerated wound over the left eye 1 cm x = cm x < cm.
In the opinion of the doctor grievous injures to vital organs i.e. head
and lungs caused excessive haemorrhage which resulted in death.
13. Dr. R.P. Sharma (PW.3) also performed Autopsy on the body of
Shabir Khan and gave Post-Mortem Report Ex.P/8-A. In this report he duly
noted the external injuries as under:-
1. Incised wound on head at right frontal level to right ear
underneath frontal bone fracture.
2. Incised wound over the left parietal region 4, =” x bone deep .
3. One lacerated wound over the occipital region =” x <" x <".
4. Stab injury on the right side chest 1″ x <" x <".
5. Stab injury on the right side chest 1″ x =” x deep upto lung.
6. Incised wound on left shoulder 2, =” x =” x =”.
7. Incised wound on right arm =” x =” x =”.
8. Incised wound on right arm 1″ x <" x <".
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The Autopsy Surgeon opined that on account of grievous injury to
vital parts i.e. head and chest caused excessive haemorrhage which resulted
in coma and death. Cause of death was Syncope.
14. Dr. M.K. Vashistha (PW.5) the Medical Specialist at Biaora,
examined Ashfaq (PW.2) and prepared the report (Ex.P.10), according to
which, he had sustained four injuries as under:
1. Incised wound 1 x 1/6 x 1/6 cm right side of the neck.
2. One bruise red 3 x 1 cm on the left arm.
3. Patient had complained of pain in the left leg but there
was no external injury.
4. Abrasion on hip size = x = cm. The injuries were simple.
15. So far as Abdul Sayeed (A.11) is concerned, as per the prosecution he
had a knife of 8″ and assaulted Chand Khan. It is evident from the evidence
of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) that Chand Khan
received cut injuries and stab wounds as found by Dr. R.P. Sharma (PW.3).
As per the medical report, his left lung was found punctured due to a stab
wound. The knife used in the crime was recovered by the Investigating
Officer at the instance of the said appellant. He has also caused injury to
Ashfaq (PW.2), an eye-witness. In view of the above, the trial Court as well
10
as the High Court reached the conclusion that he was one of the accused
persons responsible for the death of Chand Khan.
16. So far as Rais alias Toun (A.5) is concerned, as per the evidence of
Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) when Shabir (since
deceased), came to save his father Chand Khan, Rais Khan (A.5) attacked
Shabir with sword. Dr. R.P. Sharma (PW.3) who examined Shabir deposed
that the injuries suffered by Shabir were the result of the use of the weapon
assigned to Rais alias Toun as well as other co-accused. Rais alias Toun had
the sword which resulted these wounds. The trial Court as well as the High
Court have found Rais responsible for killing Shabir.
17. So far as Rafiq (A.6) is concerned, as per the evidence of Anees
(PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), Rafiq used a Gupti for
committing the crime. Injuries caused with the Gupti were found by Dr.
R.P. Sharma (PW.3) on the body of Shabir. The Gupti used by Rafiq was
18″ in length and 1-1/2″ in thickness and it was sharp like a knife. The trial
Court as well as the High Court recorded the specific finding that the wound
found on the body of Shabir was by plying Gupti and this was done by
appellant Rafiq on Shabir (deceased).
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18. So far as Mumtaz Khan (A.9) is concerned, as per the evidence of all
the three eye-witnesses, he was holding a Farsi and had beaten Chand Khan.
There was a cut wound on the head of Chand Khan due to which the bone of
the occipital region cracked and Dr. R.P. Sharma (PW.3) deposed that he
had found the skull wound which resulted in cracking of the skull. The trial
Court as well as the High Court, after appreciating the entire evidence on
record came to the conclusion that Mumtaz Khan took an active part in
beating Chand Khan, due to which he died spontaneously.
19. So far as Iqbal alias Bhura is concerned, as per the evidence of Anees
(PW.1), Ashfaq (PW.2) and Usman Ali (PW.4), he had a sword and
assaulted Shabir and the injury caused by him has been duly supported by
the medical evidence. The trial Court convicted him vide judgment and
order dated 11.1.2001 in a separate trial. The trial Court and the High Court
found him guilty for committing murder of Shabir.
20. Ashfaq (PW.2) has stated that all the accused surrounded his father
and attacked him with their weapons from all sides. He has named Rais
alias Toun, Mumtaz Khan, Abdul Sayeed and Iqbal alias Bhura. It is also
12
evident from his deposition that while running away from the place of
occurrence they mocked him and said: “however many of you come, we
will see the end of you.” This shows that there was a common intention.
Ashfaq has also explained how he had been injured. Anees (PW.1) has also
deposed regarding the participation of all the five appellants and has
explained what weapons they were carrying and how they had caused
injuries to his father and brother. He has deposed that Chand Khan was
killed by Abdul Sayeed and Mumtaz Khan and Shabir by Iqbal alias Bhura,
Rais alias Toun and Rafiq. Usman Ali (PW.4), has named all the appellants
along with the other co-accused who have been acquitted by the Courts
below and has given full details of the incident. He also deposed that while
causing the injuries, the culprits were shouting “kill them kill them”. He
denied the suggestion that the appellants had not caused injury to Shabir and
also denied the suggestion that Iqbal was not present there at the time of
incident. He also denied the suggestion that Mumtaz Khan and Abdul
Sayeed did not cause any injury to Chand Khan with Farsi and knife
respectively.
21. It has strenuously been argued on behalf of the appellants that the
injuries found on the person of victims could not be caused with the
13
weapons alleged to have been with the appellants and the same cannot be in
consonance with the ocular evidence of Anees (PW.1), Ashfaq (PW.2) and
Usman Ali (PW.4). Thus, appellants are entitled for the benefit of doubt as
there is clear cut contradiction between the ocular and medical evidence.
Identification in a Crowd of Assailants:
22. In cases where there are a large number of assailants, it can be
difficult for a witness to identify each assailant and attribute a specific role
to him. In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, this Court
held as under:-
“Where a crowd of assailants who are members of an
unlawful assembly proceeds to commit an offence of
murder in pursuance of the common object of the
unlawful assembly, it is often not possible for witnesses
to describe accurately the part played by each one of
the assailants. Besides, if a large crowd of persons
armed with weapons assaults the intended victims, it may
not be necessary that all of them have to take part in the
actual assault. In the present case, for instance, several
weapons were carried by different members of the
unlawful assembly, but it appears that the guns were
used and that was enough to kill 5 persons. In such a
case, it would be unreasonable to contend that because
the other weapons carried by the members of the
unlawful assembly were not used, the story in regard to
the said weapons itself should be rejected. Appreciation
of evidence in such complex case is no doubt a difficult
task; but criminal courts have to do their best in dealing
with such cases and it is their duty to sift the evidence14
carefully and decide which part of it is true and which
is not.” [Emphasis added]
23. A similar view was taken by this Court in Kallu alias Masih & Ors.
v. State of Madhya Pradesh, (2006) 10 SCC 313; and Viji & Anr. v. State
of Karnataka, (2008) 15 SCC 786 observing that in such a case it is not
possible that all the witnesses may specifically refer to the acts of each
assailants.
24. In Bhag Singh & Ors. v. State of Punjab (1997) 7 SCC 712, while
dealing with a similar contention, this Court observed:
“It is a general handicap attached to all eyewitnesses, if
they fail to speak with precision their evidence would be
assailed as vague and evasive, on the contrary if they
speak to all the events very well and correctly their
evidence becomes vulnerable to be attacked as tutored.
Both approaches are dogmatic and fraught with lack of
pragmatism. The testimony of a witness should be viewed
from broad angles. It should not be weighed in golden
scales, but with cogent standards. In a particular case an
eyewitness may be able to narrate the incident with all
details without mistake if the occurrence had made an
imprint on the canvas of his mind in the sequence in
which it occurred. He may be a person whose capacity
for absorption and retention of events is stronger than
another person. It should be remembered that what he
witnessed was not something that happens usually but a
very exceptional one so far as he is concerned. If he
reproduces it in the same sequence as it registered in his
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mind the testimony cannot be dubbed as artificial on that
score alone.”
25. In the instant case, a very large number of assailants attacked Chand
Khan and Shabir (deceased), caused injuries with deadly weapons to them.
The incident stood concluded within few minutes. Thus, it is natural that the
exact version of the incident revealing every minute detail, i.e., meticulous
exactitude of individual acts cannot be given by the eye-witnesses.
Injured Witness
26. The question of the weight to be attached to the evidence of a witness
that was himself injured in the course of the occurrence has been extensively
discussed by this Court. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes with a built-in
guarantee of his presence at the scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely implicate someone. “Convincing
evidence is required to discredit an injured witness”. (Vide Ramlagan
Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh &
Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v.
State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat,
16
AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of
Maharashtra, (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar &
Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v.
State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of
Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v.
State of Andhra Pradesh, AIR 2009 SC 2261; Balraje alias Trimbak v.
State of Maharashtra, (2010) 6 SCC 673).
27. While deciding this issue, a similar view was taken in, Jarnail Singh
v. State of Punjab, (2009) 9 SCC 719, where this Court reiterated the
special evidentiary status accorded to the testimony of an injured accused
and relying on its earlier judgments held as under:-
“Darshan Singh (PW 4) was an injured witness. He had
been examined by the doctor. His testimony could not be
brushed aside lightly. He had given full details of the
incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC
235, this Court has held that the deposition of the injured
witness should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of
major contradictions and discrepancies, for the reason
that his presence on the scene stands established in case
it is proved that he suffered the injury during the said
incident.
In State of U.P. v. Kishan Chand, (2004) 7 SCC
629, a similar view has been reiterated observing that
17
the testimony of a stamped witness has its own relevance
and efficacy. The fact that the witness sustained injuries
at the time and place of occurrence, lends support to his
testimony that he was present during the occurrence. In
case the injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan v. State
of Haryana, (2006) 12 SCC 459). Thus, we are of the
considered opinion that evidence of Darshan Singh (PW
4) has rightly been relied upon by the courts below.”
28. The law on the point can be summarised to the effect that the
testimony of the injured witness is accorded a special status in law. This is
as a consequence of the fact that the injury to the witness is an in-built
guarantee of his presence at the scene of the crime and because the witness
will not want to let his actual assailant go unpunished merely to falsely
implicate a third party for the commission of the offence. Thus, the
deposition of the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein.
29. Ashfaq (PW.2) had given graphic description of the entire incident.
His presence on the spot cannot be doubted as he was injured in the incident.
His deposition must be given due weightage. His deposition also stood fully
corroborated by the evidence of Anees (PW.1) and Usmal Ali (PW.4). The
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depositions so made cannot be brushed aside merely because there have
been some trivial contradictions or omissions.
Medical Evidence versus Ocular Evidence
30. In Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727, this
Court held that where the evidence of the witnesses for the prosecution is
totally inconsistent with the medical evidence or the evidence of the
ballistics expert, it amounts to a fundamental defect in the prosecution’s case
and unless reasonably explained it is sufficient to discredit the entire case.
31. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was
held as follows:-
“The opinion given by a medical witness need not be
the last word on the subject. Such an opinion shall be
tested by the court. If the opinion is bereft of logic or
objectivity, the court is not obliged to go by that opinion.
After all opinion is what is formed in the mind of a
person regarding a fact situation. If one doctor forms
one opinion and another doctor forms a different opinion
on the same facts it is open to the Judge to adopt the
view which is more objective or probable. Similarly if
the opinion given by one doctor is not consistent with
probability the court has no liability to go by that
opinion merely because it is said by the doctor. Of
course, due weight must be given to opinions given by
persons who are experts in the particular subject.”
[Emphasis added]19
32. Drawing on Bhagirath’s case (supra.), this Court has held that where
the medical evidence is at variance with ocular evidence, it has to be noted
that it would be erroneous to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the eyewitnesses’ account which
had to be tested independently and not treated as the “variable” keeping the
medical evidence as the “constant”. Where the eyewitnesses’ account is
found credible and trustworthy, a medical opinion pointing to alternative
possibilities can not be accepted as conclusive. The eyewitnesses’ account
requires a careful independent assessment and evaluation for its credibility,
which should not be adversely prejudged on the basis of any other evidence,
including medical evidence, as the sole touchstone for the test of such
credibility. The evidence must be tested for its inherent consistency and the
inherent probability of the story; consistency with the account of other
witnesses held to be creditworthy; consistency with the undisputed facts, the
“credit” of the witnesses; their performance in the witness box; their power
of observation etc. Then the probative value of such evidence becomes
eligible to be put into the scales for a cumulative evaluation. (Vide Thaman
Kumar v. State of Union Territory of Chandigarh, (2003) 6 SCC 380;
and Krishnan v. State, (2003) 7 SCC 56).
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33. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC
484, this Court observed,
“Ordinarily, the value of medical evidence is only
corroborative. It proves that the injuries could have been
caused in the manner alleged and nothing more. The use
which the defence can make of the medical evidence is to
prove that the injuries could not possibly have been
caused in the manner alleged and thereby discredit the
eye-witnesses. Unless, however the medical evidence in
its turn goes so far that it completely rules out all
possibilities whatsoever of injuries taking place in the
manner alleged by eyewitnesses, the testimony of the
eye-witnesses cannot be thrown out on the ground of
alleged inconsistency between it and the medical
evidence.” [Emphasis added]
34. A similar view has been taken in Mani Ram & Ors. v. State of U.P.,
1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public
Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v.
Dinesh, (2009) 11 SCC 566.
35. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re-
iterated the aforementioned position of law and stated that,
“In any event unless the oral evidence is totally
irreconcilable with the medical evidence, it has
primacy.”
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36. Thus, the position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallised to the
effect that though the ocular testimony of a witness has greater evidentiary
value vis-`-vis medical evidence, when medical evidence makes the ocular
testimony improbable, that becomes a relevant factor in the process of the
evaluation of evidence. However, where the medical evidence goes so far
that it completely rules out all possibility of the ocular evidence being true,
the ocular evidence may be disbelieved.
37. In the instant case as referred to hereinabove, a very large number of
assailants attacked one person, thus the witnesses cannot be able to state as
how many injuries and in what manner the same had been caused by the
accused. In such a fact-situation, discrepancy in medical evidence and ocular
evidence is bound to occur. However, it cannot tilt the balance in favour of
the appellants.
38. It has been canvassed on behalf of the appellants that there was no
charge framed under Section 34 IPC by the trial Court and appellants and
other co-accused have been charged under Section 147/148 IPC. All of
them have been acquitted for the said charges. Thus, it was not permissible
22
for the High Court to convict the appellants with the aid of Section 34 IPC.
Non-framing of charge is fatal to the prosecution. Thus, the appellants are
entitled for acquittal on this ground alone.
Effect of Failure to frame proper charges
39. In State of Andhra Pradesh v. Thakkidiram Reddy & Ors., (1998)
6 SCC 554, this Court considered the issue of failure to frame the proper
charges. observing as under:
“10. Sub-section (1) of Section 464 of the Code of
Criminal Procedure 1973 (`the Code’, for short)
expressly provides that no finding, sentence or order by
a court of competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed or on
the ground of any error, omission or irregularity in the
charge including any misjoinder of charges, unless in the
opinion of the court of appeal, confirmation or revision,
a failure of justice has in fact been occasioned thereby.
Sub-section (2) of the said section lays down the
procedure that the court of appeal, confirmation or
revision has to follow in case it is of the opinion that a
failure of justice has in fact been occasioned. The other
section relevant for our purposes is Section 465 of the
Code; and it lays down that no finding, sentence or order
passed by a court of competent jurisdiction shall be
reversed or altered by a court of appeal, confirmation or
revision on account of any error, omission or
irregularity in the proceedings, unless in the opinion of
that court, a failure of justice has in fact been
occasioned. It further provides, inter alia, that in
determining whether any error, omission or irregularity
in any proceeding under this Code has occasioned a
failure of justice, the Court shall have regard to the fact
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whether the objection could and should have been raised
at an earlier stage in the proceedings.”
The Court further held that in judging a question of prejudice, as of guilt, the
court must look to the substance of the matter and not to technicalities, and
its main concern should be to see whether the accused had a fair trial,
whether he knew what he was being tried for, whether the main facts sought
to be established against him were explained to him fairly and clearly and
whether he was given a full and fair chance to defend himself. In the said
case this Court ultimately came to the conclusion that despite the defect in
the framing of charges, as no prejudice had been caused to the accused, no
interference was required.
40. A Constitution Bench of this Court in Willie (William) Slaney v.
State of Madhya Pradesh, AIR 1956 SC 116, considered the issue of
failure to frame charges properly and the conviction of an accused for the
offences for which he has not been charged and reached the conclusion as
under:-
“86. … In such a situation, the absence of a charge
under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by
itself, and before a conviction for the substantive offence,24
without a charge, can be set aside, prejudice will have to
be made out. ….
87. … If it is so grave that prejudice will necessarily be
implied or imported, it may be described as an illegality.
If the seriousness of the omission is of a lesser degree, it
will be an irregularity and prejudice by way of failure of
justice will have to be established.”
41. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC
615, referred to and relied upon its earlier judgments in Willie (William)
Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there
is a failure of justice and thereby the cause of the accused has been
prejudiced, no interference is required if the conviction can be upheld on the
evidence led against the accused. The Court should not interfere unless it is
established that the accused was in any way prejudiced due to the errors and
omissions in framing the charges against him.
A similar view has been re-iterated by this Court in Ramji Singh v.
State of Bihar, (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar,
(2009) 7 SCC 198.
42. There is no bar in law on conviction of the accused with the aid of
Section 34 IPC in place of Section 149 IPC if there is evidence on record to
show that such accused shared a common intention to commit the crime and
25
no apparent injustice or prejudice is shown to have been caused by
application of Section 34 IPC in place of Section 149 IPC. The absence of a
charge under one or the other or the various heads of criminal liability for
the offence cannot be said to be by itself prejudicial to the accused, and
before a conviction for the substantive offence without a charge can be set
aside, prejudice will have to be made out. Such a legal position is bound to
be held good in view of the provisions of Sections 215, 216, 218, 221 and
464 of Code of Criminal Procedure, 1973. (Vide: Dalip Singh & Ors. v.
State of Punjab, AIR 1953 SC 364; Malhu Yadav & Ors. v. State of
Bihar, (2002) 5 SCC 724; Dhaneswar Mahakud & Ors. v. State of
Orissa, (2009) 9 SCC 307; and Annareddy Sambasiva Reddy & Ors. v.
State of Andhra Pradesh, AIR 2009 SC 2661).
43. Thus, the law on the issue can be summarised to the effect that unless
the accused is able to establish that the defect(s) in framing the charge(s) has
caused real prejudice to him; that he was not informed as to what was the
real case against him; or that he could not defend himself properly, no
interference is required on mere technicalities.
26
44. If the instant case is examined in the light of the aforesaid settled legal
propositions we do not find any force in the submissions made on behalf of
the appellants.
Section 34 IPC
45. The aforesaid conclusion takes us to the issue raised by the appellants
as to whether appellants could be convicted with the aid of Section 34 IPC.
Section 34 IPC carves out an exception from general law that a person
is responsible for his own act, as it provides that a person can also be held
vicariously responsible for the act of others if he has the “common
intention” to commit the offence. The phrase “common intention” implies a
pre-arranged plan and acting in concert pursuant to the plan. Thus, the
common intention must be there prior to the commission of the offence in
point of time. The common intention to bring about a particular result may
also well develop on the spot as between a number of persons, with
reference to the facts of the case and circumstances existing thereto. The
common intention under Section 34 IPC is to be understood in a different
sense from the “same intention” or “similar intention” or “common object”.
The persons having similar intention which is not the result of the pre-
arranged plan cannot be held guilty of the criminal act with the aid of
27
Section 34 IPC. (See Mohan Singh & Anr. v. State of Punjab, AIR 1963
SC 174).
46. The establishment of an overt act is not a requirement of law to allow
Section 34 to operate inasmuch this Section gets attracted when a criminal
act is done by several persons in furtherance of the common intention of all.
What has, therefore, to be established by the prosecution is that all the
concerned persons had shared a common intention. (vide : Krishnan &
Anr. v. State of Kerala, (1996) 10 SCC 508; and Harbans Kaur & Anr. v.
State of Haryana, (2005) 9 SCC 195 ).
Undoubtedly, the ingredients of Section 34, i.e., that the accused had
acted in furtherance of their common intention is required to be proved
specifically or by inference, in the facts and circumstances of the case.
(Vide: Hamlet alias Sasi & Ors. v. State of Kerala, (2003) 10 SCC 108;
Pichai alias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10 SCC 505;
and Bishna alias Bhiswadeb Mahato & Ors. v. State of West Bengal,
(2005) 12 SCC 657).
47. In Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620, this
court observed as under:
28
“8…..Even the doing of separate, similar or diverse acts
by several persons, so long as they are done in
furtherance of a common intention, render each of such
persons liable for the result of them all, as if he had done
them himself, for the whole of the criminal action — be it
that it was not overt or was only a covert act or merely
an omission constituting an illegal omission. The section,
therefore, has been held to be attracted even where the
acts committed by the different confederates are different
when it is established in one way or the other that all of
them participated and engaged themselves in furtherance
of the common intention which might be of a pre-
concerted or pre-arranged plan or one manifested or
developed at the spur of the moment in the course of the
commission of the offence. The common intention or the
intention of the individual concerned in furtherance of
the common intention could be proved either from direct
evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. The
ultimate decision, at any rate, would invariably depend
upon the inferences deducible from the circumstances of
each case.”
48. In Krishnan and Anr. v. State represented by Inspector of Police,
(2003) 7 SCC 56, this court observed that applicability of Section 34 is
dependent on the facts and circumstances of each case. No hard and fast rule
can be made out regarding applicability or non-applicability of Section 34.
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49. In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it is observed
that Section 34 has been enacted to elucidate the principle of joint liability of
a criminal act:
“Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The section is only
a rule of evidence and does not create a substantive
offence. The distinctive feature of the section is the
element of participation in action. The liability of one
person for an offence committed by another in the course
of criminal act perpetrated by several persons arises
under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who
join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such
intention can only be inferred from the circumstances
appearing from the proved facts of the case and the
proved circumstances.” [Emphasis added](Emphasis added)
50. In Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC
319, this Court observed that:
“Section 34 IPC does not create any distinct offence, but
it lays down the principle of constructive liability.
Section 34 IPC stipulates that the act must have been
done in furtherance of the common intention. In order to
incur joint liability for an offence there must be a pre-
arranged and pre-meditated concert between the
accused persons for doing the act actually done, though
30
there might not be long interval between the act and the
pre-meditation and though the plan may be formed
suddenly. In order that section 34 IPC may apply, it is
not necessary that the prosecution must prove that the
act was done by a particular or a specified person. In
fact, the section is intended to cover a case where a
number of persons act together and on the facts of the
case it is not possible for the prosecution to prove as to
which of the persons who acted together actually
committed the crime. Little or no distinction exists
between a charge for an offence under a particular
section and a charge under that section read with
Section 34.”
51. Section 34 can be invoked even in those cases where some of the co-
accused may be acquitted provided, it can be proved either by direct
evidence or inference that the accused and the others have committed an
offence in pursuance of the common intention of the group. (vide: Prabhu
Babaji v. State of Bombay, AIR 1956 SC 51).
52. Section 34 intends to meet a case in which it is not possible to
distinguish between the criminal acts of the individual members of a party,
who act in furtherance of the common intention of all the members of the
party or it is not possible to prove exactly what part was played by each of
them. In the absence of common intention, the criminal liability of a
member of the group might differ according to the mode of the individual’s
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participation in the act. Common intention means that each member of the
group is aware of the act to be committed.
53. In view of the aforesaid discussion, we are of the considered opinion
that the High Court has rightly proceeded in the matter while setting aside
the conviction of the appellants under Sections 147/148 IPC and convicting
them with the aid of Section 34 IPC.
Sum up:
54. In view of the above, it is evident that an FIR had been lodged
promptly within 20 minutes from the time of commission of the offence as
the place of occurrence was in close proximity of Police Chowki and all the
appellants along with other co-accused had been named therein. There had
been an injured witness. The prosecution has explained the motive that the
appellants did not like intervention of Chand Khan taking side of Kamla Bai
who had been molested by persons of the accused party. Several hours after
the lodging of the complaint by Chand Khan in that incident, the appellants
attacked Chand Khan with motive in a pre-planned manner armed with
deadly weapons and caused injuries. Shabir Khan, son of Chand Khan when
came to rescue his father was also done away with. In the incident, Ashfaq
32
(PW.2) also got injured. The courts below after appreciating the evidence on
record rightly came to the conclusion that the five appellants had been
responsible for the said offences. The testimony of these witnesses had been
subjected to searching cross-examination, but nothing has been brought on
record to discredit the statement of either of the eye-witnesses.
55. In view of the above, we are of the view that the instant case does not
present special features warranting review of the impugned judgment. Thus,
there is no cogent reason to interfere with the impugned judgment and order
dated 12.1.2006 passed by the High Court of Madhya Pradesh. The appeals
lack merit and are accordingly dismissed.
……………………………..J.
(P. SATHASIVAM)
…………………………..J.
(Dr. B.S. CHAUHAN)
New Delhi,
September 14, 2010
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