Supreme Court of India
ABDUL SAYEEDversusSTATE OF MADHYA PRADESH
- Citation
- 2010 INSC 608
- Decided
- 14 September 2010
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The conviction of the five appellants under Section 302 read with Section 34 IPC is upheld; the lack of a framed charge under Section 34 and the medical‑ocular evidence discrepancy do not invalidate the conviction.
Summary
The Supreme Court examined the murder of Chand Khan and his son Shabir Khan, for which five appellants were convicted under Section 302 read with Section 34 of the IPC. The appellants challenged the conviction on grounds that no charge under Section 34 was framed, that the injuries could not be linked to them due to contradictions between ocular and medical evidence, and that the High Court erred in replacing convictions under Sections 147/148 with Section 34. The Court held that the prompt FIR, the presence of an injured eyewitness, and the corroborative ocular testimony established a common intention among the assailants, making conviction under Section 34 valid. It further ruled that the absence of a specific charge under Section 34 is not fatal unless real prejudice is shown, and that discrepancies between medical and ocular evidence do not outweigh the credibility of eye‑witnesses in a crowd‑attack scenario. Consequently, the appeals were dismissed and the High Court's judgment affirmed.
Issues considered
- The validity of convicting the appellants under Section 34 IPC despite no charge being framed under that section.
- Whether the contradictions between ocular (eye‑witness) evidence and medical evidence create reasonable doubt as to the appellants' participation.
- The effect of failure to frame proper charges on the validity of the conviction.
- Whether Section 34 IPC can be invoked in place of Section 149 IPC where common intention is alleged.
- The evidentiary weight of an injured eyewitness in a mass‑assault case.
Legislation cited
- Code of Criminal Procedure, 1973s. 215, s. 216, s. 218, s. 221, s. 464, s. 465
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 304(II), s. 323, s. 324, s. 34
Subjects
common intentionSection 34 IPCcharge framinginjured eyewitnessocular evidencemedical evidencemurderjoint liabilityCriminal Procedure
Judgment
[2010] 13 (ADDL.) S.C.R. 311
ABDUL SAYEED A
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 1243 of 2007 etc.)
SEPTEMBER 14, 2010
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Penal Code, 1860:
ss. 302134 - Prosecution for murder of two persons and c
for injuries caused to others - Prompt lodging of FIR -
Accused named in FIR - Eye-witnesses to the incident -
Motive established - Trial court convicting the accused ulss.
302, 147 and 148 - On appeal High Court acquitting all the
accused ulss. 147 and 148 and convicting the appellants- D
accused u/s. 302 with the aid of s. 34 - Other co-accused
acquitted of all the charges - On appeal, held: In the facts of
the case, courts below rightly concluded that the appellants-
accused were responsible for the offence.
s. 34 - Common intention - Applicability of - Discussed. E
Criminal Trial - Failure to frame proper charge - Effect
of - Held: Absence of a charge by itself is not prejudicial,
unless the accused is able to establish that defect in framing
of the charge has caused real prejudice - There is no bar in F
law on conviction with the aid of s. 34 /PC in place of s. 149
/PG, if there is evidence to show that the accused shared
common intention and no apparent prejudice is shown to
have been caused thereby - On facts, it was permissible for
High Court to convict the accused u/s. 34 and non-framing G
the charge thereunder is not fatal to the prosecution - Code
of criminal Procedure, 1973 - ss. 215, 216, 218, 221 and 464
- Penal Code, 1860 - ss. 34 and 149.
311 H
312 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A Evidence - Ocular evidence vis-a-vis medical evidence
- Held: In case of contradiction between ocular and medical
evidence, ocular evidence has greater evidentiary value - But
if medical evidence completely rules out the ocular evidence,
ocular evidence may be disbelieved - On facts, the
B discrepancy between the ocular and medical evidence is
probable and such discrepancy cannot go in favour of the
accused.
Witness - Injured eye-witness - Evidentiary value - Held:
Deposition of such witness to be relied upon unless there are
C strong grounds for rejection thereof on the basis of major
contradictions and discrepancies - On facts, evidences of
eye-witnesses are reliable as they are corroborated by version
of other witnesses.
D The 5 appellants, alongwith the other co-accused
were prosecuted for having killed two persons and for
causing injuries to others. The prosecution case was that
on the date of occurrence, some of the accused molested
a girl. Her mother complained about the incident to 'C'.
E He went to the accused persons to advise them and also
scolded them. As a result, in the evening, the 17 accused
came armed with deadly weapons and attacked 'C'. When
his two sons ('S' and PW1) and PWs 2 and 4 came to his
rescue, 'S' and PW1 were also attacked by the accused.
F Both 'C' and 'S' died on the spot. One of the accused died
during the investigation and two of them had absconded.
14 accused were put to trial for offences punishable ul
ss. 148, 302 and 323 IPC and in the alternative ulss. 3021
149. 324/149 and 323/149 IPC. One of the absconded
G accused, (appellant-accused 'I'), later surrendered and he
was tried separately.
The trial court convicted accused A-11, A-9, A-6, and
A-5 u/s, 148 IPC; A-9 was convicted u/s. 147 IPC, A-9 and
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 313
A-11 were further convicted u/s. 302 IPC for committing A
murder of deceased 'C'. A-5 and A-6 were convicted u/s.
302 IPC for committing murder of deceased 'S'. A-7 was
convicted u/s. 324 IPC for causing injuries to PW1 and
A-1 was· convicted u/ss. 304 (Part II), 323 and 147 IPC for
causing injuries to the deceased 'S'. Accused 'I' was also B
convicted u/s. 148 and 302 IPC, in the separate trial.
In the appeals filed by the convicted accused, the
High Court convicted the 5 appellant-accused u/s. 302/
34 IPC, setting aside their conviction u/ss. 147/148 IPC.
The other co-accused were acquitted by the High Court. C
The High Court partly allowed the appeal filed by the State
against acquittal of some of the accused u/ss. 302/149
IPC.
On appeal to the Supreme Court, the appellants- D
accused contended inter-alia that the High Court could
not have convicted the accused with the aid of s. 34 IPC,
having set aside their conviction u/ss. 147/148 IPC and
also because no charge was framed u/s. 34 IPC nor any
evidence was led to show that the offences were E
committed in furtherance of common intention; that the
injuries caused to the deceased and the injured could not
be attributed to the appellants as there was no
consistency between the medical evidence and the ocular
evidence of the eye-witnesses with regard to the weapon
F
of offence.
Dismissing the appeals, the Court
HELD: 1. In the facts of the instant case, it is evident
that the FIR had been lodged promptly within 20 minutes G
from the time of commission of the offence as the place
of occurrence was in close proximity of the Police
Chowki and all the appellants along with other co-
accused had been named therein. There was an injured
H
314 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A witness. The prosecution has explained the motive that
the appellants did not like the intervention of deceased
'C' taking the side of the mother of the girl who had been
molested by persons of the accused party. It was several
hours after the persons involved in the incident of
B molestation were scolded by deceased 'C', that the
appellants armed with deadly weapons attacked him with
motive and in a pre-planned manner. Deceased 'S'; when
came to rescue his father (deceased 'C'), was also done
away with. In the incident, PW.2 also got injured. The
C 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
the eye-witnesses had been subjected to searching
cross-examination but nothing has been brought on
record to discredi,t the statements of any of the eye-
0
witnesses. [Paras S4] [343-E-H; 344-A-B]
2. 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
E 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
F strong grounds for rejection of his evidence on the basis
of major contradictions and discrepancies therein. In the
instant case, PW.2 (the injured eye-witness) had given
graphic description of the entire incident. His presence
on the spot cannot be doubted as he was injured in the
G incident. His deposition must be given due weightage. His
deposition also stood fully corroborated by the evidence
of PW.1 and PW.4 (the other eye-witnesses). The
depositions so made cannot be brushed aside merely
because there have been some trivial contradictions or
H omissions. [Paras 28 and 29) [333-F-H; 334-A-B]
ABDUL SAYEED v. STATE OF MADHYA PRADESH 315
Ramlagan Singh.and Ors. v. State of Bihar AIR 1972 SC A
2593; Ma/khan 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 vs. B
State of Punjab (1997) 7 SCC 712; 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 c
2661; Balraje alias Trimbak v. State of Maharashtra (2010)
6 SCC 673; Jarnail Singh v. State of Punjab (2009) 9 SCC
719 - relied on.
3. The position of law in cases where there is a
contradiction between medical evidence and ocular D
evidence can be crystallised to the effect that though the
ocular testimony of a witness has greater evidentiary
value vis-a-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of E
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. In the instant case, a very large number of
assailants attacked one person, thus the witnesses F
cannot be able to state as to 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. [Paras G
36 and 37] [336-C-F]
Ram Narain Singh v. State of Punjab AIR 1975 SC 1727;
State of Haryana v. Bhagirath and Ors. (1999) 5 SCC 96;
Thaman Kumar v. State of Union Territory of Chandigarh
H
316 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R..
A (2003) 6 SCC 380 Krishnan v. State (2003) 7 SCC 56;
Solanki Chimanbhai Ukabhai v. State of Gujarat AIR 1983
SC 484; 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; State of
B U.P. v. Dinesh (2009) 11 SCC 566; State of U.P. v. Hari
Chand (2009) 13 SCC 542 - referred to.
4.1 In cases where there are a large number of
assailants, it can be difficult for a witness to identify each
C assailant and attribute a specific role to him. In the instant -
case, a very large number of assailants attacked the two
deceased and caused injuries to them with deadly
weapons. The incident stood concluded within a few
minutes. Thus, it is natural that the exact version of the
incident revealing every minute detail, i.e., meticulous
D exactitude of individual acts cannot be given by the eye-
witnesses. (Paras 22 and 25] (330-E; 332-A-B]
Masalti v. State of Uttar Pradesh AIR 1965 SC 202; Kal/u
alias Masih and Ors. v. State of Madhya Pradesh (2006) 10
E SCC 313; Viji and Anr. v. State of Karnataka (2008) 15 SCC
786; Bhag Singh and Ors. v. State of Punjab (1997) 7 SCC .
712 - relied on.
4.2 However, in the instant case, A-11 as per the
prosecution was armed with a knife and assaulted the
F deceased 'C'. A-5, as per the evidence of PW-1, PW-2 and
PW-4, attacked the deceased with sword. A-6, as per the
evidence of PW-1, used a Gupti for causing injury to the
deceased 'S'. A-9 as per the evidence of all the three eye-
witnesses, attacked the deceased 'C' with a Farsi.
G Accused 'I' was armed with a sword and assaulted the
deceased 'S'. The trial Court as well as the High Court
found the above-mentioned accused persons
responsible for having caused injuries to the deceased
with the respective weapons mentioned above. [Paras 15,
H 16, 17, 18 and 19] (328-E-H; 329-A-E]
ABDUL SAYEED v. STATE OF MADHYA PRADESH 317
5. The High Court has rightly proceeded in the matter A
while setting aside the conviction of the appellants u/ss.
147/148 IPC and convicting them with the aid of Section
34 IPC. Non-framing of charge u/s.34 is not fatal to the
prosecution. There is no bar in law to convict the accused
with the aid of Section 34 IPC in place of Section 149 IPC, B
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 c
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 D
be held good in view of the provisions of Sections 215,
216, 218, 221 and 464 Cr.P.C. Thus, 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 E
interference is required on mere technicalities. [Paras 38,
43 and 53] [336-G-H; 339-E-F; 343-D]
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116 - followed. F
State of Andhra Pradesh v. Thakkidiram Reddy and Ors.
(1998) 6 SCC 554; Gurpreet Singh v. State of Punjab (2005)
12 SCC 615; Ramji Singh v. State of Bihar (2001) 9 SCC
528; Sanichar Sahni v. State of Bihar (2009) 7 SCC 198; G
Da/ip Singh and Ors. v. State of Punjab AIR 1953 SC 364;
Ma/hu Yadav and Ors. v. State of Bihar (2002) 5 SCC 724;
Dhaneswar Mahakud and Ors. v. State of Orissa (2009) 9 SCC
307; Anna reddy Sambasiva Reddy and. Ors. v. State of
Andhra Pradesh AIR 2009 SC 2661 - relied on.
H
318 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 6.1 Section 34 IPC carves out an exception from the
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
B 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
c 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 1ec 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
0
of the pre-arranged plan cannot be held guilty of the
criminal act with the aid of Section 34 IPC. [Para 45] [339-
G-H; 340-A-D]
Mohan Singh and Anr. v. State of Punjab AIR 1963 SC
E 174 - referred to.
6.2 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
F 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. Undoubtedly, the ingredients
of Section 34, i.e., that the accused had acted in
G furtherance of their common intention is required to be
proved specifically or by inference, in the facts and
circumstances of the case. [Para 46] [340-E-G]
Krishnan and Anr. v. State of Kera/a (1996) 10 SCC 508;
Harbans Kaur and Anr. v. State of Haryana (2005) 9 SCC
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 319
195; Hamlet alias Sasi and Ors. v. State of Kera/a (2003) 10 A
SCC 108; Pichai alias Pichandi and Ors. v. State of Tamil
Nadu (2005) 10 SCC 505; Bishna alias Bhiswadeb Mahato
and Ors. v. State of West Bengal (2005) 12 SCC 657; Gopi
Nath @ Jhallar v. State of U.P. (2001) 6 SCC 62; Krishnan
and Anr. v. State represented by Inspector of Police (2003) 7 B
SCC 56; Girija Shankar v. State of U.P. (2004) 3 SCC 793;
Virendra Singh v. State of Madhya Pradesh, JT 2010 (8) SC
319 - relied on.
6.3 Section 34 can be invoked even in those cases
where some of the co-accused may be acquitted C
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. [Para 51] [342-H; 343-A]
D
Prabhu Babaji Vi. State of Bombay AIR 1956 SC 51 -
relied on.
6.4 Section 34 intends to meet a case in which it is
not possible to distinguish between the criminal acts of E
the ind!vidual members of a party, who acted 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 F
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. [Para 52] [343-B-C]
Case Law Reference: G
AIR 1965 SC 202 Relied on Para 22
c2006) 10 sec 313 Relied on Para 23
(2008) 15 sec 786 Relied on Para 23
H
320 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A (1997) 1 sec 112 Relied on Paras 24 and 26
AIR 1972 SC 2593 Relied on Para 26
AIR 1975 SC 12 Relied on Para 26
B AIR 1983 SC 957 Relied on Para 26
AIR 1988 SC 696 Relied on Para 26
(1995) 6 sec 447 Relied on Para 26
(2002) 1 sec 606 Relied on Para 26
c
(2008) 8 sec 210 Relied on Para 26
(2009) 10 sec 477 Relied on Para 26
AIR 2009 SC 2661 Relied on Paras 26 and 42
D (2010) 6 sec 673 Relied on Para 26
(2009) 9 sec 119 Relied on Para 27
AIR 1975 SC 1727 Referred to Para 30
E (1999) 5 sec 96 Referred to Para 31
(2003) 6 sec 380 Referred to Para 32
(2003) 1 sec 56 Referred to Para 32
AIR 1983 SC 484 Referred to Para 33
F
1994 Supp (2) SCC 289 Referred to Para 34
(2006) 11 sec 239 Referred to Para 34
(2009) 11 sec 566 Referred to Para 34
G
(2009) 13 sec 542 Referred to Para 35
(1998) 6 sec 554 Referred to Para 39
AIR 1956 SC 116 Followed Para 40
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 321
(2005) 12 sec 615 Relied on Para 41 A
(2001 > 9 sec 528 Relied on Para 41
(2009) 1 sec 198 Relied on Para 41
AIR 1953 SC 364 Relied on Para 42
B
(2002) 5 sec 124 Relied on Para 42
(2009) 9 sec 307 Relied on Para 42
AIR 1963 SC 174 Referred to Para 45
c
(1996) 10 sec 508 Relied on Para 46
(2005) 9 sec 195 Relied on Para 46
(2003) 10 sec 108 Relied on Para 46
(2005) 1o sec 505 Relied on Para 46 D
(2005) 12 sec 657 Relied on Para 46
(2001) 6 sec 620 Relied on Para 47
(2003) 1 sec 56 Relied on Para 48 E
(2004) 3 sec 793 Relied on Para 49
JT 2010 (8) SC 319 Relied on Para 50
AIR 1956 SC 51 Relied on Para 51
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1243 of 2007.
From the Judgment and order dated 12.01.2006 of the
High Court of Madhya pradesh at Indore in CRLa No. 1191 of
G
1998.
WITH
Criminal Appeal No. 1363-1365 of 2010.
H
322 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A Criminal Appeal No. 1399 of 2008.
Fakhruddin, Abdul Karim Ansari, Munawar S. Alam, Raj
Kishore Choudhry, Bharat Bhusan, Yusuf, Samant Ahuja,
Gulfeeshan Javed, Neeru Sharma, Chitranjali Negi, G.G.
Padmakiar Tripathi, Meenu Sharma, Malini Poduval, Ranbir
B Singh Yadav, P. Kakra and Rakhi Ray for the Appellant.
G.D. Singh, Bhupendra Pratap Singh, Sunny Chaudhary,
Shanshank Shekhar Parihar and Sakshi Kakkar for the
Respondent.
c The Judgment of the Court was delivered by
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
0
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.
E
2. Facts and circumstances giving rise to these appeals
are that on 16.8.1994 at about 7.50 p.m., F.l.R. No.1/1994 under
Sections 302, 147, 148, 149 and 307 IPC was lodged at Police
Station Mandai Chowk Sarangpur, Madhya Pradesh, according
F 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 Ba nu, sons Shabir (deceased), Anees (PW.1 ), and
G 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),
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 323
[DR. B.S. CHAUHAN, J.]
and his mother Zaira Banu also got injuries on their persons at A
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
8
Shabir was excessive hemorrhage resulting in injuries to brain
and lungs. Ashfaq (PW.2) was also examined medica,lly. 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. C
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 D
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 E
(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 ), F
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 G
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
H
324 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
c 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/~49 and
323/149 IPC. As all the appeals related to the same incident,
the High Court disposed of all the appeals by the common
D 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,
E 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
F 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-
G 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
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 325
[DR. S.S. CHAUHAN, J.]
of a common intention. Essential ingredients of Section 34 IPC, A
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 8
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 C
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 D
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 E
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.
F
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 th.e prosecution, on the date
of occurrence, i.e., 16.8.1994 at about 11 A.M., one Kamla Bai, G
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.
H
326 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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-
8 · 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
C 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.
D 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. lnc;ised wound on head at occipital region, 1.5 cm
E x 1 x bone deep with fracture.
2, Incised wound on right parietal region 2.5 cm x Y:z x
bone deep fracture of right parietal bone, clotted
blood on cerebral membrane.
F 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 Y:z cm x deep upto
left lung puncture.
G
5. Incised wound on left arm of posterior surface 5 cm
x 2 cm x Y:z cm.
6. Lacerated wound over the left eye 1 cm x Y:z cm x
H %cm.
ABDUL SAYEED v. STATE OF MADHYA PRADESH 327
[DR. 8.S. CHAUHAN, J.]
In the opinion of the doctor grievous injures to vital A
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.Pl
8
8-A. In this report he duly noted the external injuries as under:-
1. Incised wound on head at right frontal level fu right
ear underneath frontal bone fracture.
2. Incised wound over the left parietal region 4, Yi" x c
bone deep.
3. One lacerated wound over the occipital region Yi"
x%"x%".
4. Stab injury on the right side chest 1" x %" x %". D
5. Stab injury on the right side chest 1" x Yi" x d_eep
upto lung.
6. Incised wound on left shoulder 2, Yi" x Yi'' x Yi".
E
7. Incised wound on right arm Yi" x Yi" x Yi".
8. Incised wound on right arm ·1" x %" x %".
The Autopsy Surgeon opined that on account of grievous
injury to vital parts i.e. head and chest caused excessive F
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 G
(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.
H
328 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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)
c 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
D 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
E 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
F 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.
G 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
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 329
[DR. B.S. CHAUHAN, J.]
well as the High Court recorded the specific finding that the A
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 B
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 C
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 D
(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. E
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 F
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 G
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 H
330 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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.
2"1. It has strenuously been argued on behalf of the
appellants that the injuries found on the person of victims could
c 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
D 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
E
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
F 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
G 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
H unreasonable to contend that because the other weapons
ABDUL SAYEED v. STATE OF MADHYA PRADESH 331
[DR. B.S. CHAUHAN, J.]
carried by the members of the unlawful assembly were A
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 B
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
c
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: D
"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
E
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
F
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 G
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." H
332 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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 stoQd concluded
within few minutes. Thus, it is natural that the exact version of
the incident revealing every minute detail, i.e., meticulous
B exactitude of individual acts cannot be given by the eye-
witnesses.
Injured Witness
26. The question of the weight to be attached to the
C 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
D 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 implicClte someone. "Convincing evidence is required
to discredit an injured witness". (Vide Ramlagan Singh & Ors.
v. State of Bihar, AIR 1972 SC 2593; Ma/khan Singh & Anr.
E 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
F Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of
Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of
Rajasthan, (2009) 10 SCC 4 77; Annareddy Sambasiva
Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261;
Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC
G 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
H judgments held as under:-
ABDUL SAYEED v. STATE OF MADHYA PRADESH 333
[DR. B.S. CHAUHAN, J.]
"Darshan Singh (PW 4) was an injured witness. He had A
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 B
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 c
suffered the injury during the said incident.
In State of UP. 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 D
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 E
of Haryana, (2006) 12 sec 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 F
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 G
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 H
334 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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
B 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
C 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.
D 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 no( 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,
E 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
F 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
G 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
H undue primacy to the hypothetical answers of medical witnesses
ABDUL SAYEED v. STATE OF MADHYA PRADESH 335
[DR. B.S. CHAUHAN, J.]
to exclude the eyewitnesses' account which had to be tested A
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 B
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; c
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 D
cumulative evaluation. (Vide Thaman Kumar v. State of Union
Territory of Chandigarh, (2003) 6 SCC 380; and Krishnan v.
state, (2003) 7 sec 56).
33. In Solanki Chimanbhai Ukabhai v. State of <:jujarat,
AIR 1983 SC 484, this Court observed, E
"Ordinarily, the value of medical evidence is only
corroborati11e. 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 F
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 G
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. H
336 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A State of UP., 1994 Supp (2) SCC 289; Khambam Raja Reddy
& Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC
239; and State of UP. v. Dinesh, (2009) 11 SCC 566.
35. In State of UP. v. Hari Chand, (2009) 13 SCC 542,
this Court re-iterated the aforementioned position of law and
8
stated that,
"In any event unless the oral evidence is totally
irreconcilable with the medical evidence, it has primacy."
c 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-a-vis medical
evidence, when medical evidence makes the ocular testimony
0 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.
E 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
F ocular evide:nce 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
G 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
H appellants are entitled for acquittal on this ground alone.
ABDUL SAYEED v. STATE OF MADHYA PRADESH 337
[DR. B.S. CHAUHAN, J.]
Effect of Failure to frame proper charges A
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 8
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 C
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 D
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 E
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, F
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."
G
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 H
338 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E
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 sec 615, referred to and relied upon its earlier judgments
F 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
G 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
H
ABDUL SAYEED v. STATE OF MADHYA PRADESH 339
[DR. B.S. CHAUHAN, J.]
Singh v. State of Bihar, (2001) 9 SCC 528; and Sanichar A
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
8
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 C
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 & D
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).
E
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 F
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.
G
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.
H
340 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
C 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
0
criminal act with the aid of 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
E 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 Kera/a, (1996) 10 SCC 508; and
F
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
G required to be proved specifically or by inference, in the facts
and circumstances of the case. (Vide: Hamlet alias Sasi &
Ors. v. State of Kera/a, (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
H Bengal, (2005) 12 SCC 657).
ABDUL SAYEED v. STATE OF MADHYA PRADESH 341
[DR. B.S. CHAUHAN, J.]
47. In Gopi Nath@ Jhallar v. State of UP., (2001) 6 SCC A
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
8
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 C
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 D
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, E
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 sec 56, this court observed that F
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 UP., (2004) 3 SCC 793,
it is observed that Section 34 has been enacted to elucidate G
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 H
342 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B furlherance 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 tacts of the case and the
c proved circumstances." [Emphasis added] (Emphasis
added)
50. In Virendra Singh v. State of Madhya Pradesh, JT
2010 (8) SC 319, this Court observed that:
D "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
E 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
F
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
G 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
H proved either by direct evidence or inference that the accused
ABDUL SAYEED v. STATE OF MADHYA PRADESH 343
[DR. S.S. CHAUHAN, J.]
and the others have committed an offence in pursuance of the A
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
8
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 C
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 D
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:
E
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 F
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 G
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 H
344 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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.
B
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
C lack merit and are accordingly dismissed.
K.K.T. Appeals dismissed.
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