Supreme Court of India
DARBARA SINGHversusSTATE OF PUNJAB
- Citation
- 2012 INSC 389
- Decided
- 12 September 2012
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
When eye‑witness testimony is credible and not irreconcilably contradicted by medical evidence, it prevails, and a defect in charge‑framing does not invalidate a conviction unless it results in real prejudice; thus the appellant's conviction under s.302 IPC stands.
Summary
The appellant Darbara Singh was convicted under Section 302 IPC for murdering Mukhtiar Singh, based on eye‑witness testimony that he struck the victim's head with a kirpan while the victim was attempting to run. The appellant challenged the conviction on several grounds, including alleged inconsistency between medical (post‑mortem) evidence and ocular evidence, lack of motive, failure to frame a charge under Section 302 read with Section 34 IPC, and alleged prejudice due to investigative irregularities. The Supreme Court held that eye‑witness testimony retains primacy over medical evidence unless the contradiction is so extreme that the medical evidence completely negates the ocular account. It further ruled that motive is irrelevant where direct evidence exists, and a defect in charge‑framing does not invalidate a conviction unless it causes real prejudice to the accused. The Court found that the appellant acted with common intention alongside co‑accused, and no substantial prejudice was shown. Consequently, the appellant's conviction was upheld and the appeal dismissed.
Issues considered
- Inconsistency between medical (post‑mortem) evidence and ocular (eye‑witness) evidence and which should prevail
- Relevance of motive when direct eye‑witness evidence is available
- Effect of not framing a charge under Section 302 read with Section 34 IPC on the validity of conviction
- Whether the appellant shared common intention with co‑accused under Section 34 IPC
- Whether alleged investigative irregularities caused prejudice sufficient to affect the conviction
Legislation cited
- Code of Criminal Procedure, 1973s. 173, s. 313, s. 464, s. 465
- Indian Penal Code, 1860s. 302, s. 34
Subjects
eye‑witness testimonymedical evidenceforensic evidencemotivecommon intentionSection 34 IPCcharge framingprejudiceconvictionhomicide
Judgment
(2012) 7 S.C.R. 541
DARBARA SINGH A
v.
STATE OF PUNJAB
(Criminal Appeal No. 404 of 2010)
SEPTEMBER 12, 2012
B
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Criminal trial - Evidence - Inconsistency between medical
evidence and ocular evidence - Effect of - Conviction of C
appellant u/s.302 /PC - Challenge to - Defence plea that the
manner in which appellant had been accused· of causing
injury to the deceased was not at all possible because the
medical evidence was not in consonance with the ocular
evidence - Held: Not tenable - In the event of contradictions D
between medical and ocular evidence, the ocular testimony
of a witness will have greater evidentiary value vis-a-vis
medical evidence and when medical evidence makes the oral
testimony improbable, the same becomes a relevant factor
in the process of evaluation of such evidence - It is only when E
the contradiction between the two is so extreme that the
medical evidence completely rules out all possibilities of the
ocular evidence being true at all, that the ocular evidence is
· liable to be disbelieved - In the instant case, the prosecution
case was that upon seeing the accused, the deceased started F
running and injuries were inflicted upon him by appellant and
another accused - If the entire evidence with respect to the
method and manner of causing injuries, is conjointly read, it
is clear that the ocular evidence was in conformity and in
consonance with the available medical evidence - The G
deceased attempted to run upon the apprehension that, he
would be attacked, and it was exactly at this time that the
appellant caused injury to his head using a Kirpan - This
explains the reason for the direction of such injury extending
541 H
542 SUPREME COURT REPORTS [2012] 7 S.C.R.
A from the upper to the lower part of the back of the deceased
- Had it been the case that the deceased was not running at
the said time, the direction of the injury would have in all
likelihood been straight - Penal Code, 1860 - s.302.
Criminal trial - Motive - Relevance of - Held: Motive has
8
great significance in a case involving circumstantial evidence,
but where direct evidence is available, which is worth relying
upon, motive loses its significance - In a case where direct
evidence of witnesses can be relied upon, the absence of
C motive cannot be a ground to reject the case.
Criminal trial - Defect in framing of charges - Effect -
Conviction of appellant u/s.302 /PC - Chaflenge to - Defence
plea that as appellant was never charged u/s.302 r/w 34 /PC,
unless it was established that the injury caused by the
D appellant on the head of the deceased, was sufficient to cause
death, he ought not to have been convicted u/s. 302 /PC
simp/icitor - Held: Not tenable - The defect in framing of the
charges must be so serious that it cannot be covered ul
ss.4641465 Cr.P.C., which provide that, an order of sentence
E or conviction shall not be deemed to be invalid only on the
ground that no charge was framed, or that there was some
irregularity or omission or misjoinder of charges, unless the
court comes to the conclusion that there was also, as a
consequence, a failure of justice - The plea of prejudice has
F to be in relation to investigation or trial, and not with respect
to matters falling outside their scope - Once the accused is
able to show that there has been serious prejudice caused to
him, with respect to either of these aspects, and that the same
has defeated the rights available to him under jurisprudence,
G then the accused can seek benefit under the orders of the
Court - In the instant case, the appellant was unable to show
what prejudice, if any, was caused to him, even if charge
under s.302 r/w 34 /PC was not framed against him - He was
always fully aware of all the facts and he had, in fact, gone
H alongwith two other accused with an intention to kill the
DARBARA SINGH v. STATE OF PUNJAB 543
deceased - Appellant caused grievous injury on the A
deceased's head (a vital part of the body) with a kirpan - He
clearly shared a common intention with the co-accused to kill
the deceased - Code of Criminal Procedure, 1973 - ss.464
and 465.
8
The prosecution case was that accused 'K' and 'H'
had gotten into a verbal feud with 'M' upon his refusal to
give them liquor on credit basis, and that 15-20 minutes
thereafter 'K' and 'H' returned alongwith the accused-
appellant and upon instigation by 'H', the appellant hit 'M' C
on the head with a Kirpan, while 'K' hit him on the chest
with a Kirpan, as a result of which, 'M' died instantly. The
trial court convicted appellant and 'K' under Section 302
IPC but acquitted 'H'. The appeal filed by appellant and
'K' before the High Court was dismissed.
D
In the instant appeal, the appellant challenged his
conviction on various grounds, viz. 1) that the manner in
which the appellant had been accused of causing injury
was not at all possible because the medical evidence was
not in consonance with the ocular evidence; 2) that the E
appellant did not have any proximity with the co-accused
'K'; in fact, on the contrary, his family had a rather
strained equation with the family of 'K' as one person
from the family of the appellant had in the past (20 years
ago), been prosecuted and convicted for the offence of F
committing rape upon a relative of 'K'; 3) that the
appellant had not been charged under Section 302 r/w 34
IPC, and that even if it is assumed that he had also
participated in causing injury to the deceased 'M', he
should not be held responsible for the offence punishable G
under Section 302 IPC, as the said injury was not proved
to be fatal and 4) that in fact, on refusal to give liquor on
credit, 'K', 'P' and 'B' had teased the deceased who
caused injuries to them and that the appellant had
intervened in the scuffle and that thereafter, when PW1,
H
the brother of the deceased, asked the appellant to be a
544 SUPREME COURT REPORTS [2012) 7 S.C.R.
A witness for them, the appellant had refused, on a result
of which, he was falsely enroped in the crime.
Dismissing the appeal, the Court
HELD: 1. The facts of the instant appeal do not
B warrant review of the findings recorded by the courts
below. [Para 19] [559-G]
Plea of inconsistency between medical evidence and
ocular evidence
c 2.1. The law is well settled that, unless the oral
evidence available is totally irreconcilable with the medical
evidence, the oral evidence would have prim~cy. In the
event of contradictions between medical and ocular
evidence, the ocular testimony of a witness will have
D greater evidentiary value vis-a-vis medical evidence and
when medical evidence makes the oral testimony
improbable, the same becomes a relevant factor in the
process of evaluation of such evidence. It is only when
the contradiction between the two is so extreme that the
E medical evidence completely rules out all possibilities of
the ocular evidence being true at all, that the ocular
evidence is liable to be disbelieved. [Para 5) [552-F-H; 553-
A]
F 2.2. In the instant appeal, the prosecution case was
that upon seeing the assailants, the deceased started
running and that 2 injuries were inflicted upon him by the
appellant and 'K'. The ocular evidence as regards the
injuries was given by PW1. The post-mortem report
G revealed two major incised wounds on the person of the
deceased. PW11, who conducted the post-mortem,
explained that injury no.1 would have been impossible to
inflict, if the deceased was running and the assailant was
chasing him. If the entire evidence with respect to the
H method and manner of causing injuries 1 and 2, is
DARBARA SINGH v. STATE OF PUNJAB 545
conjointly read, it becomes crystal clear that the ocular A
evidence is in conformity and in consonance with the
available medical evidence. In fact, 'M', the deceased,
attempted to run upon the apprehension that he would
be attacked, and it was exactly at this time that the
appellant caused injury to his head using a Kirpan. This B
explains the reason for the direction of injury No.1
extending from the upper to the lower part of the back of
the deceased. Had it been the case that the deceased 'M'
was not running at the said time, the direction of the
injury would have in all likelihood been straight. [Paras c
6, 7 and 8] [553-E-H; 554-A-C, E]
State of U.P. v. Harl (2009) 13 SCC 542: 2009 (7) SCR
149 and Bhajan Singh @ Harbhajan Singh & Ors. v. State
of Haryana (2011) 7 SCC 421: 2011 (7) SCR 1 - relied on.
D
Issue of motive
3.1. Motive has great significance in a case involving
circumstantial evidence, but where direct evidence is
available, which is worth relying upon, motive loses its
E
significance. In the instant case, firstly, there is nothing
on record to reveal the identity of the person who was
convicted for rape. There is also nothing to reveal the
status of his relationship with the appellant and further,
there is nothing on record to determine the identity of this
girl or her relationship with the co-accused 'K'. More so, F
the conviction took place 20 years prior to the incident.
No independent witness has been examined to prove the
factum that the appellant was not on talking terms with
'K'. In a case where there is direct evidence of witnesses
which can be relied upon, the absence of motive cannot G
be a ground to reject the case. Under no circumstances,
can motive take the place of the direct evidence available
as proof, and in a case like this, proof of motive is not
relevant at all. [Para 9] [554-G-H; 555-A-C]
H
546 SUPREME COURT REPORTS [2012] 7 S.C.R.
A 3.2. Motive in criminal cases based solely on the
positive, clear, cogent and reliable ocular testimony of
witnesses is not at all relevant. In such a fact-situation,
the mere absence of a strong motive to commit the crime,
cannot be of any assistance to the accused. The motive
8 behind a crime is a relevant fact regarding which evidence
may be led. The absence of motive is also a circumstance
which may be relevant for assessing evidence. [Para 10]
(555-C-E]
Gurcharan Singh & Anr. v. State of Punjab AIR 1956 SC
C 460; Rajinder Kumar & Anr. v. State of Punjab AIR 1966 SC
1322: 1963 SCR 281; Datar Singh v. State of Punjab AIR
1974 SC 1193: 1974 (2) SCR 808; Rajesh Govin'd Jagesha
v. State of Maharashtra AIR 2000 SC 160: 1999 (4) Suppl.
SCR 277 and Sheo Shankar Singh v. State of Jharkhand &
D Anr. AIR 2011 SC 1403: 2011 (4) SCR 312 - relied on.
Non-framing of charges under Section 302 r/w Section 34
IPC
4.1. The defect in framing of the charges must be so
E serious that it cannot be covered under Sections 464/465
Cr.P.C., which provide .that, an order of sentence or
conviction shall not be deemed to be invalid only on the
ground that no charge was framed, or that there was
some irregularity or omission or misjoinder of charges,
F unless the court comes to the conclusion that there was
also, as a consequence, a failure of justice. In determining
whether any error, omission or irregularity in framing the
relevant charges, has led to a failure of justice, the court
must have regard to whether an objection could have
G been raised at an earlier stage, during the proceedings
or not. While judging the question of prejudice or guilt,
the court must bear in mind that every accused has a
right to a fair trial, where he is aware of what he is being
tried for and where the facts sought to be established
H against him, are explained to him fairly and clearly, and
DARBARA SINGH v. STATE OF PUNJAB 54 7
further, where he is given a full and fair chance to defend A
himself against the said charge(s). [Para 14] [557-D-G]
4.2. The expression, 'failure of justice' is an extremely
pliable or facile expression, which can be made to fit into
any situation in any case. The court must endeavour to
determine find the truth. There would be a 'failure of B
j1;1stice'; not only by unjust conviction, but also by
acquittal of the guilty, as a result of unjust failure to
produce requisite evidence. Of course, the rights of the
accused have to be kept in mind and also safeguarded,
but they should not be over emphasised to the extent of C
forgetting that the victims also have rights. It has to be
shown that the accused has suffered some disability or
detriment in respect of the protections available to him
under Indian Criminal Jurisprudence. 'Prejudice', is
incapable of being interpreted in its generic sense and D
applied to criminal jurisprudence. The plea of prejudice
has to be in relation to investigation or trial, and not with
respect to matters falling outside their scope. Once the
accused is able to show that serious prejudice has been
caused to him, with respect to either of these aspects, E
and that the same has defeated the rights available to him
under jurisprudence, then the accused can seek benefit
under the orders of the Court. [Para 15] [557-H; 558-A-D]
4.3. The appellant has been unable to show what
prejudice, if any, has been caused to him, even if the said F
charge under Section 302 r/w Section 34 IPC was not
framed against him. He was always fully aware of all the
facts and he had, in fact, gone alongwith 'K' and 'H' with
an intention to kill the deceased. The appellant has
further been found guilty of causing grievous injury on G
the head of the deceased being a vital part of the body.
It cannot be said that there is nothing on record to show
that the appellant had a common intention alongwith one
co-accused to kill the deceased and therefore the
H
548 SUPREME COURT REPORTS [2012] 7 S.C.R.
A appellant could not have been convicted as such. The
manner in which injury no.1 has been caused clearly
suggests that the accused persons acted in furtherance
of a common intention. [Paras 12, 16, 17) [556-E-H; 557-
A; 558-F; 559-A]
B Sanichar Sahni v. State of Bihar AIR 2010 SC 3786:
2009 (10) SCR 112; Rafiq Ahmed@ Rafi v. State of UP. AIR
2011 SC 3114: 2011 (11) SCR 907; Rattiram & Ors. v. State
of M.P. through Inspector of Police AIR 2012 SC 1485: 2012
(4) SCC 516 and Bhimanna v. State of Kamataka) decided
C by Supreme Court on 4th September, 2012 - relied on.
Dhanna v. State of M.P. (1996) 10 SCC 79: 1996 (4)
Suppl. SCR 28 - referred to.
5. As regards the further submission of the appellant
0
that the investigation conducted by the police was
tainted, favouring the complainant, as the Investigating
Officer (PW.9) himself admitted in his cross-examination
that, he had recorded the statement of one 'B' to the effect
that, the appellant was the only witness and had seen 'B'
E and others being attacked and injured by the deceased
on being teased, it is clear from the facts and
circumstances that the case put forward by the defence
was clearly a false story, and there was absolutely no
material whatsoever on record to show that 'B'or any
F other accused had received any injury in the course of
the said incident. [Para 18) [559-B-C, F]
Case Law Reference:
2009 (7) SCR 149 relied on Para 5
G
2011 (7) SCR 1 relied on Para 5
AIR 1956 SC 460 relied on Para 10
1963 SCR 281 relied on Para 10
H
DARBARA SINGH v. STATE OF PUNJAB 549
1974 (2) SCR 808 relied on Para 10 A
1999 (4) Suppl. SCR 277 relied on Para 10
2011 (4) SCR 312 relied on Para 11
2009 (10) SCR 112 relied on Para 13 B
2011 (11) SCR 907 relied on Para 15
2012 (4) sec 516 relied on Para 15
1996 (4) Suppl. SCR 28 referred to Para 16
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 404 of 2010.
From the Judgment & Order dated 06.02.2008 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 248-SB of 1998. D
Rohit Sharma, Amarjeet Singh, Abhijat P. Medh for the
Appellant.
V. Madhukar, AAG, Kuldip Singh for the Respondent. E
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order dated 6.2.2008
passed by the Punjab and Haryana High Court at Chandigarh F
in Criminal Appeal No.248-DB of 1998, by which the High Court
affirmed the judgment and order dated 7.4.1998 passed by The
Additional Sessions Judge, Ferozepur in Sessions Case No.11
of 1996, by which the appellant stood convicted under Section
302 of the Indian Penal Code, 1860 (hereinafter called 'IPC') G
and was awarded the imprisonment for life and a fine of
Rs.5,000/- was imposed upon him. In default of payment of fine,
he was further ordered to undergo rigorous imprisonment for
2 years. Co-accused Kashmir Singh @ Malla Singh @ Malli
was_ also similarly convicted and sentenced. H
550 SUPREME COURT REPORTS [2012] 7 S.C.K.
A 2. Facts and circumstances giving rise to this appeal are
as follows:
A. On 28.10.1995, FIR No.150/95 was registered under
Section 302 IPC at Police Station Dharamkot, alleging that
Kashmir Singh and Hira Singh had gotten into a verbal feud
8
with Mukhtiar Singh over the sale of country liquor on credit.
Upon Mukhtiar Singh's refusal to give them liquor on credit
basis, they threatened to teach him a lesson. Kashmir Singh
and Hira Singh returned after 15-20 minutes alongwith Darbara
C Singh, the appellant herein. Upon instigation by Hira Singh, the
appellant hit Mukhtiar Singh on the head with a Kirpan, while
co-accused Kashmir Singh hit him on the chest with a Kirpan,
as a result of which, Mukhtiar Singh died instantly.
B. On the basis of the aforesaid FIR, investigation ensued
D and the dead body of Mukhtiar Singh was recovered and sent
for post-mortem, which was conducted by Dr. Charanjit Singh
(PW.11) on 29.10.1995. After the conclusion of the
investigation, the police submitted the final report under Section
173 of the Criminal Procedure Code, 1973 (hereinafter referred
E to as 'Cr.P.C.') against all 3 accused named in the FIR including
the appellant. The case was thereafter committed to the
Sessions Judge, Ferozepur for trial. The appellant as well as
the other co-accused pleaded innocence and claimed trial.
Thus, the appellant Darbara Singh and Kashmir Singh were
F charged under Section 302 IPC while the co-accused Hira
Singh was charged under Section 302 r/w Section 34 IPC.
During the course of the trial, the prosecution examined Amrik
Singh (PW.1) and Gurdial Singh (PW.2) as eye-witnesses.
They also examined other witnesses including Dr. Charanjit
G Singh (PW.11) and Investigating Officer Sukhwinder Singh, S.I.
(PW.9).
C. In their statements under Section 313 Cr.P.C., the
accused denied their involvement in the incident and also
examined 2 witnesses in their defence included Dr. Rachhpal
H Singh Rathor (DW.2) who had examined Bohar Singh, Kashmir
DARBARA SINGH v. STATE OF PUNJAB 551
[DR. B.S. CHAUHAN, J.]
Singh and Paramjit Singh in the hospital on the night of 28/ A
29.10.1995.
D. The learned Trial Court after appreciating the evidence
on record and considering the arguments raised on behalf of
the prosecution as well as the accused, convicted the appellant 8
and Kashmir Singh, for the said offence while Hira Singh was
acquitted vide judgment and order dated 7.4.1998.
E. Aggrieved, the appellant and Kashmir Singh preferred
Criminal Appeal No. 248-08/98 before the High Court C
which was dismissed vide impugned judgment and order dated
6.2.2008.
Hence, this appeal.
3. Shri Rohit Sharma, learned counsel appearing for the D
appellant has submitted that the appellant has• falsely been
enroped and that he did not have any proximity with Kashmir
Singh. In fact, on the contrary, his family had a rather strained
equation with the family of Kashmir Singh as one person from
the family of the appellant had in the past (20 years ago), been E
prosecuted and convicted for the offence of committing rape
upon Kashmir Kaur, a relative of Kashmir Singh. In fact, on
refusal to give liquor on credit, Kashmir Singh, Paramjit Singh
and Bohar Singh had teased Mukhtiar Singh, deceased.
Mukhtiar Singh caused injuries to them and the appellant F
intervened in the scuffle. Thereafter, when brother of the
deceased, namely Amrik Singh asked the appellant to be a
witness for them, the appellant refused, thus the appellant has
falsely been enroped in the crime. The manner in which the
appellant has been accused of causing injury is not in fact at G
all possible because the medical evidence is not in consonance
with the oc;:ular evidence. The appellant had not been charged
under Section 302 r/w Section 34 IPC, and even if it is
assumed that the appellant had also participated in causing
injury to the deceased Mukhtiar Singh, he should not be held H
552 SUPREME COURT REPORTS [2012) 7 S.C.R.
A responsible for the offence punishable under Section 302 IPC,
as the said injury could not be proved to be fatal. No
independent witness has been examined even though the
incident occurred at 5 p.m., at a liquor vending shop, where a
few persons can reasonably be expected to be present at that
8 time. The appellant has served more than 8 years. Thus, the
appeal deserves to be allowed.
4. On the contrary, Shri V. Madhukar, learned AAG,
Punjab has vehemently opposed the appeal contending that the
appellant had in fact, participated in the incident and as a result,
C caused grievous injury to the vital part of the body of the
deceased Mukhtiar Singh. He should not be allowed to take
the benefit of technicalities in the law. Thus, even if the charge
for offence under Section 302 r/w Section 34 IPC has not been
framed against the appellant, no prejudice would be caused to
D him. The co-accused Kashmir Singh, who was convicted by the
trial court as well as by the High Court alongwith the appellant
had filed a special leave petition against this very impugned
judgment, which has also been dismissed by this court. The
appeal is, hence, liable to be dismissed.
E
5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
So far as the question of inconsistency between medical
evidence and ocular evidence is concerned, the law is well
F settled that, unless the oral evidence available is totally
irreconcilable with the medical evidence, the oral evidence
would have primacy. In the event of contradictions between
medical and ocular evidence, the ocular testimony of a witness
will have greater evidentiary value vis-a-vis medical evidence
G and when medical evidence makes the oral testimony
improbable, the same becomes a relevant factor in the process
of evaluation of such evidence. It is only when the contradiction
between the two is so extreme that the medical evidence
completely rules out all possibilities of the ocular evidence
H being true at all, that the ocular evidence is liable to be
DARBARA SINGH v. STATE OF PUNJAB 553
[DR. B.S. CHAUHAN, J.]
disbelieved. (Vide: State of U.P. v. Hari, (2009) 13 SCC 542; A
and Bhajan Singh @ Harbhajan Singh & Ors. v. State of
Haryana, (2011) 7 SCC 421).
6. In the post-mortem report, the following injuries were
found on the person of the deceased: B
(i) An incised wound 3 cm x 1.5 cm on the left parietal
region of the head obliquely placed 12 cm above the left
ear pinna and 1.5 cm from mid line & 6 cm behind the
anterior hair line.
c
(ii) An incised penetrating elliptical shaped wound 6 cm x
1.5 cm on front aspect of left side of chest 4 cm below the
nipple & 5 cm from midline. Clotted blood is present.
Dr. Charanjit Singh (PW.11), who conducted the post- D
mortem further opined that the cause of death was
haemorrhage and shock as a result of injury to vital organs i.e.
lung & heart, which was sufficient to cause death in the ordinary
course of nature.
Dr. Charanjit Singh (PW.11 ), in his cross-examination E
explained that injury No.1 would have been impossible to inflict,
if the deceased was running and the assailant was chasing
him. Injury No.1 was caused by a sharp edged instrument like
a Kirpan from the upper to the lower part of the back of the
deceased. The ocular evidence so far as the injuries are F
concerned, has been by Amrik Singh (PW.1), who deposed
that after 15-20 minutes of the first part of the incident the
assailants turned up. Darbara Singh inflicted a blow, using a
Kirpan, to the head of Mukhtiar Singh and, thus, he attempted
to run towards Fatehgarh. Kashmir Singh then thrusted a G
Kirpan, which hit the left flank of Mukhtiar Singh. After receiving
these injuries Mukhtiar Singh fell down.
7. In fact, Mukhtiar Singh, deceased attempted to run upon
the apprehension that, he would be attacked, and it was exactly
H
554 SUPREME COURT REPORTS [2012] 7 S.C.R.
A at this time that the appellant, Darbara Singh caused injury to
his head using a Kirpan. This explains the reason for the
direction of injury No.1 extending from the upper to the lower
part of the back of the deceased. Had it been the case that
the deceased Mukhtiar Singh was not running at the said time,
s the direction of the injury would have in all likelihood been
straight. If the entire evidence with respect to the method and
manner of causing injuries 1 and 2, is conjointly read, it
becomes crystal clear that the ocular evidence is in conformity
and in consonance with the available medical evidence.
c In view of the above, we do not find any force in this
submission.
8. Learned counsel for the appellant would submit that as
Dr. Charanjit Singh (PW.11), undoubtedly deposed in the cross-
D examination that the shirt worn by the deceased was torn in
several places, it clearly suggests that there was in fact, a
scuffle between the deceased and the assailant, and, therefore,
in the light of the same, the case of the prosecution becomes
doubtful. The case of the prosecution has been that upon seeing
E the assailants, the deceased started running and 2 injuries were
inflicted upon him by the appellant and Kashmir Singh. None
of the prosecution witnesses has been asked in the cross-
examination to explain the condition of the shirt which was worn
by the deceased at the relevant time. More so, no suggestion
F was ever made by any of them regarding the aforementioned
scuffle. In absence thereof; such a statement made by Dr.
Charanjit Singh (PW.11) does not in any way point towards the
innocence of the appellant.
9. So far as the issue of motive is concerned, it is a settled
G legal proposition that motive has great significance in a case
involving circumstantial evidence, but where direct evidence is
available, which is worth relytng upon, motive loses its
significance. In the instant case, firstly, there is nothing on record
to reveal the identity of the person who was convicted for rape,
H there is also nothing to reveal the status of his relationship with
DARBARA SINGH v. STATE OF PUNJAB 555
[DR. B.S. CHAUHAN, J.]
the appellant and further, there is nothing on record to determine A
the identity of this girl or her relationship to the co-accused
Kashmir Singh. More so, the conviction took place 20 years
prior to the incident. No independent witness has been
examined to prove the factum that the appellant was not on
talking terms with Kashmir Singh. In a case where there is direct B
evidence of witnesses which can be relied upon, the absence
of motive cannot be a ground to reject the case. Under no
circumstances, can motive take the place of the direct evidence
available as proof, and in a case like this, proof of motive is
not relevant at all. c
10. Motive in criminal cases based solely on the positive,
clear, cogent and reliable ocular testimony of witnesses is not
at all relevant. In such a fact-situation, the mere absence of a
strong motive to commit the crime, cannot be of any assistance
to the accused. The motive behind a crime is a relevant fact D
regarding which evidence may be led. The absence of motive
is also a circumstance which may be relevant for assessing
evidence. (Vide: Gurcharan Singh & Anr. v. State of Punjab,
AIR 1956 SC 460; Rajinder Kumar & Anr. v. State of Punjab,
AIR 1966 SC 1322; Datar Singh v. State of Punjab, AIR 1974 E
SC 1193; and Rajesh Govind Jagesha v. State of
Maharashtra, AIR 2000 SC 160).
11. In Sheo Shankar Singh v. State of Jharkhand & Anr.,
AIR 2011 SC 1403, while dealing with the issue of motive, this F
Court held as under:
"Proof of motive, however, recedes into the background
in cases where the prosecution relies upon an eye-
witness account of the occurrence. That is because if the
court upon a proper appraisal of the deposition of the G
eye-witnesses comes to the conclusion that the version
given by them is credible, absence of evidence to prove
the motive is rendered inconsequential. Conversely even
if prosecution succeeds in establishing a strong motive
for the commission of the offence, but the evidence of the H
556 SUPREME COURT REPORTS (2012] 7 S.C.R.
A eye-witnesses is found unreliable or unworthy
of credit, existence of a motive does not by
itself provide a safe basis for convicting the
accused. That does not, however, mean that
proof of motive even in a case which rests on
B an eye-witness account does not lend
strength to the prosecution case or fortify the
court in its ultimate conclusion. Proof of
motive in such a situation certainly helps the
prosecution and supports the eye witnesses.
c (See: Shivaji Genu Mohite v. The State of
Maharashtra, AIR 1973 SC 55; Hari Shanker
v. State of U .P. (1996) 9 SCC; and State of
Uttar Pradesh v. Kishanpal and Ors., (2008)
16 sec 73)".
D In view of the above, the argument advanced
by the learned counsel for the appellant does not
merit consideration.
12. It has further been submitted on behalf of
E the appellant that, as the appellant was never
charged under Section 302 r/w Section 34 IPC,
unless it is established that the injury caused by the
appellant on the head of the deceased, was
sufficient to cause death, the appellant ought not
F to have been convicted under Section 302 IPC
simplicitor. The submission so advanced is not
worth consideration for the simple reason that the
learned counsel for the appellant has been unable
to show what prejudice, if any, has been caused
to the appellant, even if such charge has not been
G
framed against him. He was always fully aware of
all the facts and he had, in fact, gone alongwith
Kashmir Singh and Hira Singh with an intention to
kill the deceased. Both of them have undoubtedly
inflicted injuries on the deceased Mukhtiar Singh.
H
The appellant has further been found guilty of
DARBARA SINGH v. STATE OF PUNJAB 557
[DR. 8.S. CHAUHAN, J.]
causing grievous injury on the head of the deceased being a A
vital part of the body. Therefore, in the light of the facts and
circumstances of the said case, the submission so advanced
does not merit acceptance.
13. In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, B
this Court dealt with the aforementioned issue elaborately, and
upon consideration of a large number of earlier judgments, held
as under:
"Therefore, .................. unless the convict is able to
establish that defect in framing the charges has caused C
real prejudice to him and that he was not informed as to
what was the real case against him and that he could not
defend himself properly, no interference is required on
mere technicalities. Conviction order in fact is to be
tested on the touchstone of prejudice theory. " D
14. The defect in framing of the charges must be so
serious that it cannot be covered under Sections 464/465
Cr.P.C., which provide that, an order of sentence or conviction
shall not be deemed to be invalid only on the ground that no E
charge was framed, or that there was some irregularity or
omission or misjoinder of charges, unless the court comes to
the conclusion that there was also, as a consequence, a failure
of justice. In determining whether any error, omission or
irregularity in framing the relevant charges, has led to a failure
F
of justice, the court must have regard to whether an objection
could have been raised at an earlier stage, during the
proceedings or not. While judging the question of prejudice or
guilt, the court must bear in mind that every accused has a right
to a fair trial, where he is aware of what he is being tried for
and where the facts sought to be established against him, are G
explained to him fairly and clearly, and further, where he is given
a full and fair chance to defend himself against the said
charge(s).
15. The 'failure of justice' is an extremely pliable or facile H
558 SUPREME COURT REPORTS [2012] 7 S.C.R.
A expression, which can be made to fit into any situation in any
case. The court must endeavour to find the truth. There would
be 'failure of justice'; not only by unjust conviction, but also by
acquittal of the guilty, as a result of unjust failure to produce
requisite evidence. Of course, the rights of the accused have
B to be kept in mind and also safeguarded, but they should not
be over emphasised to the extent of forgetting that the victims
also have rights. It has to be shown that the accused has
suffered some disability or detriment in respect of the
protections available to him under Indian Criminal
c Jurisprudence. 'Prejudice', is incapable of being interpreted in
its generic sense and applied to criminal jurisprudence. The
plea of prejudice has to be in relation to investigation or trial,
and not with respect to matters falling outside their scope. Once
the accused is able to show that there has been serious
prejudice caused to him, with respect to either of these
0
aspects, and that the same has defeated the rights available
to him under jurisprudence, then the accused can seek benefit
under the orders of the Court. (Vide: Rafiq Ahmed @ Rafi v.
State of UP., AIR 2011 SC 3114; Rattiram & Ors. v. State of
E MP. through Inspector of Police, AIR 2012 SC 1485; and
Criminal Appeal No.46 of 2005 (Bhimanna v. State of
Karnataka) decided on 4th September, 2012).
16. Learned counsel for the appellant has submitted that
there is nothing on record to show that the appellant had a
F common intention with co-accused to kill the deceased and
therefore the appellant could not have been convicted as such.
In order to fortify his submission, he placed heavy reliance on
the judgment of this Court in Dhanna v. State of M.P., (1996)
10 SCC 79, wherein this Court held as under:
G
"It is, therefore, open to the Court to make recourse to
Section 34 /PC even if the said section was not
specifically mentioned the charge ....... Of course a
finding that the assailant concerned had a common
intention with the other accused is necessary for resorting
H
to such a course."
DARBARA SINGH v. STATE OF PUNJAB 559
[DR. B.S. CHAUHAN, J.]
17. Even this submission does not tilt the balance in favour A
of the appellant. The manner in which injury no.1 has been
caused clearly suggests that both the accused persons acted
in furtherance of a common intention. Thus, we do not find any
force in the aforesaid submission.
8
18. Learned counsel for the appellant further submitted that
investigation conducted by the police was tainted, favouring the
complainant, as the Investigating Officer (PW.9) himself
admitted in his cross-examination that, he had recorded the
statement of one Bohar Singh to the effect that, the appellant
was the only witness and had seen Bohar Singh and others C
being attacked and injured by the deceased on being teased.
8ohar Singh had also been medically examined and injuries
were found on his person. However, his statement regarding
such facts has not been produced before the court.
D
The trial court dealt with the said issue elaborately, and held
that the story that the reason that 8ohar Singh and the other
co-accused went to Civil Hospital, Zira, a far away place, and
got themselves medically examined there and not in a nearby
hospital, was in order to avoid conflict with the complainant E
party as the police would have taken the body of the deceased
there for post-mortem examination, for which the complainant
party would also be present, was a concocted story. In fact, the
dead body of Mukhtiar Singh was taken to Civil Hospital, Zira
itself for post-mortem and, therefore, the case put forward by
F
defence was clearly a false story, and there was absolutely no
material whatsoever on record to show that Bohar Singh or any
other accused had received any injury in the said incident.
19. In view of the above, we do not find any force in the
said appeal. Facts of the appeal do not warrant review of the G
findings recorded by the courts below. Appeal lacks merit and
is dismissed accordingly.
8.8.8. Appeal dismissed.
H
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