Evidence of Injured Witness
 |
Abdul Sayeed Vs. State
of Madhya Pradesh
Criminal - Conviction -
Sections 302 and 34 of Indian Penal Code,1860 - High Court convicted Appellants
for committing murders with common intention while setting aside their
conviction under Sections 147 and 148 IPC awarded by Trial Court - Hence, this Appeal
- Whether, High Court was justified in setting aside conviction of Appellants
awarded by Trial Court - Held, it was evident that an FIR had been lodged
promptly within 20 minutes from time of commission of offence as place of
occurrence was in close proximity of Police Chowki - However, all Appellants
along with other co-accused had been named therein - Moreover, prosecution had
explained motive that Appellants did not like intervention of Chand Khan taking
side of Kamla Bai who had been molested by persons of Accused party - Several
hours after lodging of complaint by Chand Khan in that incident, Appellants
attacked Chand Khan with motive in a pre-planned manner armed with deadly
weapons and caused injuries - Thus, High Court was justified in setting aside
conviction of Appellants awarded by Trial Court - Appeal dismissed.
Ratio Decidendi:
"Commission of
offence with motive in a pre-planned manner shall always justify
conviction."
JUDGMENT
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.
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)\1, 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) 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, 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 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 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.
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 ½ 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 ½ cm X deep upto
left lung puncture.
5. Incised wound on
left arm of posterior surface 5 cm X 2 cm X ½ cm.
6. Lacerated wound over
the left eye 1 cm X ½ cm X ¼ 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 4,½" X bone deep .
3. One lacerated wound
over the occipital region½" X ¼" X ½".
4. Stab injury on the
right side chest 1" X ¼" X ¼".
5. Stab injury on the
right side chest 1" X ½" X deep upto lung.
6. Incised wound on
left shoulder 2,½" X ½"½x".
7. Incised wound on
right arm ½" X ½" X ½".
8. Incised wound on
right arm 1" X ½" X ¼".
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
½ X ½ 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 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).
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 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 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
evidence 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 and Ors. v. State of Madhya Pradesh
(2006) 10 SCC 313; and Viji and 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 and
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 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 and Ors. v. State of Bihar AIR
1972 SC 2593; Malkhan Singh and Anr. v. State of Uttar Pradesh AIR 1975 SC 12; Machhi Singh and Ors. v.
State of Punjab AIR 1983 SC 957;
Appabhai and Anr. v. State of Gujarat
AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane and Ors. v. State of
Maharashtra (1995) 6 SCC 447; Bhag Singh
and Ors. (supra); Mohar and Anr. v. State of Uttar Pradesh (2002) 7 SCC 606; Dinesh Kumar v. State of
Rajasthan (2008) 8 SCC 270; Vishnu and
Ors. v. State of Rajasthan (2009) 10 SCC 477; Annareddy Sambasiva Reddy and
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 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 summarized 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 depositions so made cannot
be brushed aside merely because there have been some trivial contradictions or
omissions.
Medical Evidence v.
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 and 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]
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).
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 and Ors. v. State of U.P. 1994 Supp (2) SCC 289; Khambam Raja Reddy and
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."
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-Ã -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 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 and 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 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, 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 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 and Ors. v. State of Punjab AIR
1953 SC 364; Malhu Yadav and Ors. v. State of Bihar (2002) 5 SCC 724; Dhaneswar Mahakud and Ors.
v. State of Orissa (2009) 9 SCC 307; and Annareddy Sambasiva Reddy and 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.
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 Section 34 IPC. (See Mohan Singh and
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 and Anr. v. State of Kerala : (1996) 10 SCC
508; and Harbans Kaur and 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 and Ors.
v. State of Kerala : (2003) 10 SCC 108; Pichai alias Pichandi and Ors. v. State
of Tamil Nadu (2005) 10 SCC 505; and Bishna alias Bhiswadeb Mahato and 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:
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.
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)
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 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 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 (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.
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