Abdul Sayeed Vs.
State of M.P.  INSC 739 (14 September 2010)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1243 OF 2007 Abdul
Sayeed ... Appellant State of Madhya Pradesh ...Respondent WITH CRIMINAL APPEAL
NO. 1399 OF 2008 Rafique ... Appellant State of Madhya Pradesh ...Respondent
AND CRIMINAL APPEAL NOS.1363-1365 OF 2010 Rais @ Toun & Ors. ...Appellants
State of Madhya Pradesh ....Respondent
Dr. B.S. CHAUHAN, J.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
appeals lack merit and are liable to be dismissed.
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
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.
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.
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.
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 <".
9. 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
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.
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
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
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).
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
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.
(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.
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:
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 14 carefully and decide which part of it
is true and which is not." [Emphasis added]
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.
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
15 mind the testimony cannot be dubbed as artificial on that score
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.
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, 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).
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
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."
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.
(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
versus Ocular Evidence
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.
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
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
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
cannot 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).
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."
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.
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
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
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.
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
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
(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 23 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.
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."
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.
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 & 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).
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.
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
Section 34 IPC
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 & Anr. v. State of Punjab, AIR 1963 SC 174).
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 ).
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).
Gopi Nath @ Jhallar v. State of U.P., (2001) 6 SCC 620, this court observed as
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
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.
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
"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)
Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC 319, this Court
"Section 34 IPC
does not create any distinct offence, but it lays down the principle of
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."
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).
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
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.
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
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