REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1243 OF 2007

Abdul Sayeed   … Appellant Vs.

State of Madhya Pradesh …Respondent

WITH  

CRIMINAL APPEAL NO. 1399 OF 2008

Rafique    … Appellant Vs.

State of Madhya Pradesh      …Respondent

AND

    CRIMINAL APPEAL NOS.1363-1365 OF 2010       Rais  @ Toun & Ors.     …Appellants

Vs.  

State of Madhya Pradesh ….Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. All  the  aforesaid  appeals  have  been  filed  against  the  common  

judgment and order dated 12.1.2006, of the High Court of Madhya Pradesh  

at Jabalpur in Criminal Appeal Nos.1191 of 1998;  1210 of 1998; and 281 of

2001 by which the appellants have been convicted under Sections 302/34 of  

the  Indian  Penal  Code,  1860 (hereinafter  called IPC)  for  committing  the  

murders  of  Chand  Khan  and  Shabir  Khan,  while  setting  aside  their  

conviction under Sections 147 and 148 IPC  awarded by the Trial Court.

2. Facts  and  circumstances  giving  rise  to  these  appeals  are  that  on  

16.8.1994 at  about 7.50 p.m.,  F.I.R.  No.1/1994 under Sections 302,  147,  

148,  149  and  307  IPC  was  lodged  at  Police  Station  Mandai  Chowk  

Sarangpur,  Madhya  Pradesh,  according  to  which  17  accused  including  5  

appellants armed with deadly weapons came from the mosque way;  stopped  

Chand Khan and started beating him with weapons with an intention to kill  

him.  After hearing the hue and cry made by Chand Khan, his wife Zaira  

Banu,  sons  Shabir  (deceased),  Anees  (PW.1),  and  Ashfaq  (PW.2),  and  

brother Usman Ali (PW.4)  came running to the place of occurrence and  

after seeing the incident, they were so scared that they could not muster the  

courage to intervene immediately. After some time Zaira Banu, Shabir and  

Ashfaq  tried  to  rescue  Chand Khan.   Shabir  was  also  assaulted,  he  was  

seriously injured and died on the spot.   Ashfaq (PW.2), and his mother Zaira  

Banu also got injuries on their persons at the hands of the accused.    

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3. The  Investigating  Officer  sent  the  dead  bodies  for  post-mortems  

which were conducted by Dr. R.P. Sharma (PW.3). In his opinion, the cause  

of death of both Chand Khan and Shabir was excessive hemorrhage resulting  

in injuries to brain and lungs.   Ashfaq (PW.2) was also examined medically.  

After completing the investigation, out of the  seventeen accused, fourteen  

were  put  to  trial  for  offences  under  Sections  148,  302  and  323,  in  the  

alternative 302/149, 324/149 and 323/149 IPC.  One Nanhe Khan @ Abdul  

Wahid died before commencement of trial. One accused namely, Rais S/o  

Mumtaz  is  still  absconding.  While  Iqbal  @  Bhura,  appellant,  had  also  

absconded,  but  afterwards  he  surrendered  and  was  tried  separately.  The  

appellants and the other accused denied the charges and pleaded that they  

were  falsely  implicated and claimed trial.   The prosecution examined 12  

witnesses including Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4),  

as  eye-witnesses.   The  other  relevant  witnesses  were  Dr.  R.P.  Sharma  

(PW.3)  who  conducted  the  post-mortems  on the  bodies  of  the  deceased,  

Ramesh  Kumar  Dubey  (PW.7)  and  Rajmal  Sharma  (PW.8)  who  had  

investigated the case.  The appellants examined 4 witnesses in defence.   

4. After conclusion of the trial, the Special Additional Sessions Judge,  

Shajapur,  convicted Abdul Sayeed (A.11), Mumtaz Khan (A.9), Rafiq (A.6)  

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and Rais (A.5) under Section 148 IPC and awarded a sentence of 3 years’  

imprisonment  to  each;  Mumtaz  (A.9)  was  sentenced  to  2  years’  

imprisonment under Section 147; Mumtaz (A.9) and Abdul Sayeed (A.11)  

were sentenced to  Rigorous Imprisonment for life and fine of Rs.2000/-  

under Section 302 IPC for committing murder of Chand Khan; Rais @ Toun  

(A.5) and Rafiq (A.6) were sentenced to Rigorous Imprisonment for life and  

fine of Rs.1000/- under Section 302 IPC for committing murder of Shabir;  

Sayeed  (A.7)  was  convicted  under  Section  324  IPC  and  given  2  years  

Rigorous Imprisonment for causing injuries to Ashfaq (PW.2); Hanif Khan  

(A.1),   was convicted under  Sections 304 Part-II,  323  and 147 IPC for  

causing injuries to Shabir.  Iqbal alias Bhura, appellant also got convicted  in  

separate Sessions Trial No.190/94 vide judgment and order dated 11.1.2001,  

under Sections 148 and 302 IPC and was awarded Rigorous Imprisonment  

of 3 years and life imprisonment respectively along with certain fines.   

5. All  the said convicts  filed Criminal  Appeal  Nos.1191/98;  1210/98;  

1233/98;  and 281/2001 before the High Court  of  Madhya Pradesh.   The  

State of Madhya Pradesh  also filed Criminal Appeal No.1447/98 against the  

acquittal  of  some  of  the  accused  for   offences  under  Sections  302/149,  

324/149 and 323/149 IPC.  As all the appeals related to the same incident,  

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the High Court disposed of all the appeals by the common judgment and  

order  dated  12.1.2006  wherein  the  appellants  had  been  convicted  as  

mentioned hereinabove, i.e., under Sections 302/34 IPC setting aside their  

conviction  under Sections 147/148 IPC. The High Court allowed Criminal  

Appeal No.1191/98 with regard to the other co-accused, Hanif Khan, Bashir  

Khan, Sayeed and Aslam.  The appeal filed by the State of Madhya Pradesh  

was partly allowed.  Hence, these appeals.

6. All these appeals have arisen from the same incident and have been  

filed against the common judgment of the High Court and thus, are  being  

heard together.

7. Shri  Fakhruddin,  learned Senior  counsel,  Shri  Ranbir  Singh Yadav  

and  Ms.  Rakhi  Ray,  learned  counsel  appearing  for  the  appellants,  have  

submitted that in case the High Court had set aside the conviction of all the  

appellants  and other co-accused under Sections 147/148 IPC, question of  

convicting them with the aid of Section 34 IPC did not arise, even otherwise  

no charge under Section 34 IPC was framed by the Trial  Court;  nor any  

evidence had been led to show that offences had been committed by the  

appellants in furtherance of a common intention.  Essential ingredients of  

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Section  34  IPC,  i.e.,  that  a  common  intention  was  shared,  has  not  been  

established  by the  prosecution.  More  so,  the  weapons allegedly  used for  

committing  the  offences  by  the  appellants  do  not  tally  with  the  ocular  

evidence of the eye-witnesses.  Therefore, injuries caused to the deceased  

and other injured persons cannot be attributed to the appellants.  Conviction  

under Sections 302/34 IPC is unwarranted and thus, the appeals deserve to  

be allowed.

8. On the other hand, Shri C.D. Singh, learned counsel appearing for the  

State, has vehemently opposed the appeals contending that not framing the  

charge under Section 34 IPC is not fatal to the prosecution and the High  

Court  has  rightly  convicted  the  appellants  under  Sections  302/34  IPC.  

Seventeen  persons  came to  the  spot  armed  with  deadly  weapons  with  a  

common intention to kill Chand Khan.   They surrounded Chand Khan and  

started causing injuries to him.  In such a fact-situation the eye-witnesses  

may  not  describe  exactly  what  role  had  been  played  by  an  individual  

assailant.   If  there  are  small  omissions  in  the  depositions  of  the  eye-

witnesses, the same require to be ignored. The injured witnesses have to be  

relied  upon  and  even  in  case  there  is  some  conflict  between  the  ocular  

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evidence  and medical  evidence,  the  ocular  evidence  has  to  be  preferred.  

Therefore, the appeals lack merit and are liable to be dismissed.

9. We  have  considered  the  rival  submissions  made  by  the  learned  

counsel for the parties and perused the record.       

10. As mentioned hereinabove, 17 persons had allegedly participated in  

the crime. As per the prosecution, on the date of occurrence, i.e., 16.8.1994  

at  about 11 A.M.,  one Kamla Bai,  daughter  of Dev Karan,  neighbour of  

informant Anees (PW.1) was molested  by Munim Khan and Mumtaz Khan  

(accused/appellant) in the fields of  Faqir.  Smt. Gora Bai, mother of Kamla  

Bai,  complained to Chand Khan with regard to the said incident.  Chand  

Khan (since deceased), went to advise the uncle of Munim Khan and Pappu  

alias Chote Khan in this regard and scolded them.  He also gave one slap to  

one of the accused. The appellants  and other co-accused did not like the  

conduct of Chand Khan and in the evening the appellants and the co-accused  

committed the offence mentioned hereinabove.  In fact, this had been the  

motive for commission of the offence.

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11. Out of the seventeen accused, ten stood acquitted by the courts below.  

One of them is still absconding.  One had died prior to the commencement  

of the trial. Only five accused/appellants have been convicted by the High  

Court.  Therefore, we are concerned only with the cases of these appellants.  

Making reference to any of the other  co-accused at  this  stage would not  

serve any  purpose.

12. As per the Autopsy Report (Ex.P/7-A), prepared by Dr. R.P. Sharma  

(PW.3)  in  respect  of  Chand  Khan,  the  following  external  injuries  were  

noticed:-

1. Incised wound on head at occipital region, 1.5 cm x 1 x bone  

deep with fracture.

2. Incised wound on right parietal region 2.5 cm x ½ x bone  

deep fracture of right parietal bone, clotted blood on cerebral  

membrane.

3. Incised wound on left leg 10 cm x 2 cm upto bony region of  

Tibia.

4. Stab wound on left side of chest between 3rd and 4th rib deep  

upto lung 1.5 cm x ½ cm x deep upto left lung puncture.

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5. Incised wound on left arm of posterior surface 5 cm x 2 cm  

x ½ cm.

6. Lacerated wound over the left eye 1 cm x ½ cm x ¼ cm.

In the opinion of the doctor grievous injures to vital organs i.e. head  

and lungs caused excessive haemorrhage which resulted in death.  

13. Dr.  R.P.  Sharma  (PW.3)  also  performed  Autopsy  on  the  body  of  

Shabir Khan and gave Post-Mortem Report Ex.P/8-A.  In this report he duly  

noted the external injuries as under:-

1. Incised  wound  on  head  at  right  frontal  level  to  right  ear  

underneath frontal bone fracture.

2. Incised wound over the left parietal region 4,  ½” x bone deep .

3. One lacerated wound over the occipital region ½” x ¼” x ¼”.

4. Stab injury on the right side chest 1” x ¼” x ¼”.

5. Stab injury on the right side chest 1” x ½” x deep upto lung.

6. Incised wound on left shoulder 2, ½” x ½” x ½”.

7. Incised wound on right arm ½” x ½” x ½”.

8. Incised wound on right arm 1” x ¼” x ¼”.

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The Autopsy Surgeon opined that on account of grievous injury to  

vital parts i.e. head and chest caused excessive haemorrhage which resulted  

in coma and death.  Cause of death was Syncope.  

14. Dr.  M.K.  Vashistha  (PW.5)  the  Medical  Specialist  at  Biaora,  

examined Ashfaq (PW.2) and prepared the report  (Ex.P.10),  according to  

which, he had sustained four injuries as under:

1. Incised wound 1 x 1/6 x 1/6  cm right side of the neck.

2. One bruise red 3 x 1 cm on the left arm.  

3. Patient had complained of pain in the left leg but there  

was no external injury.  

4. Abrasion on hip size ½ x ½ cm. The injuries were simple.  

15. So far as Abdul Sayeed (A.11) is concerned, as per the prosecution he  

had a knife of 8” and assaulted Chand Khan.  It is evident from the evidence  

of Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) that Chand Khan  

received cut injuries and stab wounds as found by Dr. R.P. Sharma (PW.3).  

As per the medical report, his left lung was found punctured due to a stab  

wound.  The knife used in the crime was recovered by the Investigating  

Officer at the instance of the said appellant. He has also caused injury to  

Ashfaq (PW.2), an eye-witness.  In view of the above, the trial Court as well  

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as the High Court reached the conclusion that he was one of the accused  

persons responsible for the death of Chand Khan.   

16. So far as Rais alias Toun (A.5) is concerned, as per the evidence of  

Anees (PW.1), Ashfaq (PW.2) and Usman Ali (PW.4) when Shabir (since  

deceased), came to save his father Chand Khan, Rais Khan (A.5) attacked  

Shabir with sword.  Dr. R.P. Sharma (PW.3) who examined Shabir deposed  

that the injuries suffered by Shabir were the result of the use of the weapon  

assigned to Rais alias Toun as well as other co-accused.  Rais alias Toun had  

the sword which resulted these wounds.  The trial Court as well as the High  

Court have found Rais responsible for  killing Shabir.   

17. So  far  as  Rafiq  (A.6)  is  concerned,  as  per  the  evidence  of  Anees  

(PW.1),  Ashfaq  (PW.2)  and  Usman Ali  (PW.4),  Rafiq  used  a  Gupti  for  

committing the  crime.  Injuries  caused with the Gupti  were found by Dr.  

R.P. Sharma (PW.3) on the body of Shabir.  The Gupti used by Rafiq was  

18” in length and 1-1/2” in thickness and it was sharp  like a knife.  The trial  

Court as well as the High Court recorded the specific finding that the wound  

found on the body of Shabir  was by plying Gupti  and this  was done by  

appellant Rafiq on Shabir (deceased).   

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18. So far as Mumtaz Khan (A.9) is concerned, as per the evidence of all  

the three eye-witnesses, he was holding a Farsi and had beaten Chand Khan.  

There was a cut wound on the head of Chand Khan due to which the bone of  

the occipital region cracked and Dr. R.P. Sharma (PW.3) deposed that he  

had found the skull wound which resulted in cracking of the skull.  The trial  

Court as well as the High Court, after appreciating the entire evidence on  

record  came to  the  conclusion  that  Mumtaz  Khan took an active  part  in  

beating Chand Khan, due to which he died spontaneously.   

19. So far as Iqbal alias Bhura is concerned, as per the evidence of Anees  

(PW.1),  Ashfaq  (PW.2)  and  Usman  Ali  (PW.4),  he  had  a  sword  and  

assaulted Shabir and the injury caused by him has been duly supported by  

the medical  evidence.   The trial  Court  convicted him vide judgment and  

order dated 11.1.2001 in a separate trial.  The trial Court and the High Court  

found him guilty for committing murder of Shabir.

20. Ashfaq (PW.2) has stated that all the accused surrounded his father  

and attacked him with their weapons from all sides.  He has named Rais  

alias Toun, Mumtaz Khan, Abdul Sayeed and Iqbal alias Bhura.  It is also  

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evident  from  his  deposition  that  while  running  away  from the  place  of  

occurrence they mocked him and said:  “however many of you come, we  

will see the end of you.”  This shows that there was a common intention.  

Ashfaq has also explained how he had been injured.  Anees (PW.1) has also  

deposed  regarding  the  participation  of  all  the  five  appellants   and  has  

explained   what  weapons  they  were  carrying  and  how they  had  caused  

injuries to his father and brother.   He has deposed that Chand Khan was  

killed by Abdul Sayeed and Mumtaz Khan and Shabir by Iqbal alias Bhura,  

Rais alias Toun and Rafiq.  Usman Ali (PW.4), has named all the appellants  

along with  the  other  co-accused who have  been acquitted  by  the  Courts  

below and has given full details of the incident. He also deposed that while  

causing the injuries, the culprits were shouting “kill them kill them”.  He  

denied the suggestion that the appellants had not caused injury to Shabir and  

also denied the suggestion that Iqbal was not present there at the time of  

incident.   He  also  denied  the  suggestion  that  Mumtaz  Khan  and  Abdul  

Sayeed  did  not  cause  any  injury  to  Chand  Khan  with  Farsi  and  knife  

respectively.        

21. It  has strenuously been argued on behalf  of  the appellants  that  the  

injuries  found  on  the  person  of  victims  could  not  be  caused  with  the  

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weapons alleged to have been with the appellants and the same cannot be in  

consonance with the ocular evidence of Anees (PW.1), Ashfaq (PW.2) and  

Usman Ali (PW.4). Thus, appellants are entitled for the benefit of doubt as  

there is clear cut contradiction between  the ocular and medical evidence.  

Identification in a Crowd of Assailants:

22. In  cases  where  there  are  a  large  number  of  assailants,  it  can  be  

difficult for a witness to identify each assailant and attribute a specific role  

to him. In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, this Court  

held as under:-  

“Where a crowd of assailants who are members of an   unlawful  assembly  proceeds  to  commit  an  offence  of   murder  in  pursuance  of  the  common  object  of  the   unlawful assembly, it is often not possible for witnesses  to describe accurately the part played by each one of   the  assailants. Besides,  if  a  large  crowd  of  persons  armed with weapons assaults the intended victims, it may   not be necessary that all of them have to take part in the   actual assault. In the present case, for instance, several   weapons  were  carried  by  different  members  of  the   unlawful  assembly,  but  it  appears  that  the  guns  were   used and that was enough to kill  5 persons. In such a   case, it would be unreasonable to contend that because  the  other  weapons  carried  by  the  members  of  the   unlawful assembly were not used, the story in regard to   the said weapons itself should be rejected. Appreciation   of evidence in such complex case is no doubt a difficult   task; but criminal courts have to do their best in dealing  with such cases and it is their duty  to sift the evidence  

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carefully and decide which part of it is true and which   is not.”        [Emphasis added]

23. A similar view was taken by this Court in Kallu alias Masih & Ors.  

v. State of Madhya Pradesh, (2006) 10 SCC 313; and Viji & Anr. v. State  

of Karnataka, (2008) 15 SCC 786 observing that in such a case it is not  

possible that   all  the witnesses may specifically refer to the acts of  each  

assailants.

24. In Bhag Singh & Ors. v. State of Punjab (1997) 7 SCC 712, while  

dealing with a similar contention, this Court observed:

“It is a general handicap attached to all eyewitnesses, if   they fail to speak with precision their evidence would be  assailed as vague and evasive,  on the contrary if  they   speak  to  all  the  events  very  well  and  correctly  their   evidence becomes vulnerable to be attacked as tutored.   Both approaches are dogmatic and fraught with lack of   pragmatism. The testimony of a witness should be viewed   from broad angles. It should not be weighed in golden  scales, but with cogent standards. In a particular case an  eyewitness may be able to narrate the incident with all   details  without mistake if  the occurrence had made an  imprint  on  the  canvas  of  his  mind in  the  sequence  in   which it occurred. He may be a person whose capacity   for absorption and retention of events is stronger than  another person. It  should be remembered that what he   witnessed was not something that happens usually but a  very  exceptional  one  so  far  as  he  is  concerned.  If  he  reproduces it in the same sequence as it registered in his   

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mind the testimony cannot be dubbed as artificial on that   score alone.”

25. In the instant case,  a very large number of assailants attacked Chand  

Khan and Shabir (deceased), caused injuries with deadly weapons to them.  

The incident stood concluded within few minutes.  Thus, it is natural that the  

exact version of the incident revealing every minute detail, i.e., meticulous  

exactitude of individual acts cannot be given by the eye-witnesses.  

Injured Witness

26. The question of the weight to be attached to the evidence of a witness  

that was himself injured in the course of the occurrence has been extensively  

discussed by this Court. Where a witness to the occurrence has himself been  

injured  in  the  incident,  the  testimony  of  such  a  witness  is  generally  

considered to be very reliable, as he is a witness that comes with a built-in  

guarantee of his presence at the scene of the crime and is unlikely to spare  

his actual assailant(s) in order to falsely implicate someone.  “Convincing  

evidence  is  required  to  discredit  an  injured  witness”.   (Vide  Ramlagan  

Singh & Ors. v.  State of Bihar, AIR 1972 SC 2593;  Malkhan Singh &  

Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v.  

State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat,  

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AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of  

Maharashtra, (1995) 6 SCC 447;  Bhag Singh & Ors.  (supra);  Mohar &  

Anr. v.  State  of  Uttar Pradesh,  (2002)  7  SCC 606;  Dinesh Kumar v.  

State  of  Rajasthan,  (2008)  8  SCC  270;  Vishnu  &  Ors. v.  State  of  

Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v.  

State of Andhra Pradesh, AIR 2009 SC 2261;  Balraje  alias Trimbak v.  

State of Maharashtra, (2010) 6 SCC 673).

27. While deciding this issue, a similar view was taken in, Jarnail Singh  

v.  State  of  Punjab,  (2009)  9  SCC 719,  where  this  Court  reiterated  the  

special evidentiary status accorded to the testimony of an injured accused  

and relying on its earlier judgments held as under:-

“Darshan Singh (PW 4) was an injured witness. He had  been examined by the doctor. His testimony could not be  brushed aside  lightly.  He had given full  details  of  the   incident  as  he  was  present  at  the  time  when  the  assailants  reached  the  tubewell.  In  Shivalingappa  Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC  235, this Court has held that the deposition of the injured   witness  should  be  relied  upon unless  there  are  strong  grounds  for  rejection  of  his  evidence  on  the  basis  of   major contradictions and discrepancies,  for the reason  that his presence on the scene stands established in case   it  is proved that he suffered the injury during the said   incident.

In  State of U.P. v.  Kishan Chand, (2004) 7 SCC  629, a similar view has been reiterated observing that   

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the testimony of a stamped witness has its own relevance  and efficacy. The fact that the witness sustained injuries   at the time and place of occurrence, lends support to his   testimony that he was present during the occurrence. In  case  the  injured  witness  is  subjected to  lengthy cross- examination and nothing can be elicited to discard his   testimony, it should be relied upon (vide Krishan v. State  of Haryana,  (2006) 12 SCC 459). Thus, we are of the   considered opinion that evidence of Darshan Singh (PW  4) has rightly been relied upon by the courts below.”

28. The  law  on  the  point  can  be  summarised  to  the  effect  that  the  

testimony of the injured witness is accorded a special status in law. This is  

as  a  consequence of  the  fact  that  the  injury to the  witness  is  an in-built  

guarantee of his presence at the scene of the crime and because the witness  

will  not  want  to  let  his  actual  assailant  go unpunished merely to  falsely  

implicate  a  third  party  for  the  commission  of  the  offence.  Thus,  the  

deposition  of  the  injured  witness  should  be  relied  upon  unless  there  are  

strong  grounds  for  rejection  of  his  evidence  on  the  basis  of  major  

contradictions and discrepancies therein.  

29. Ashfaq (PW.2) had given graphic description of the entire incident.  

His presence on the spot cannot be doubted as he was injured in the incident.  

His deposition must be given due weightage. His deposition also stood fully  

corroborated by the evidence of Anees (PW.1) and Usmal Ali (PW.4). The  

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depositions  so  made cannot  be  brushed aside  merely  because  there  have  

been some trivial contradictions or omissions.  

Medical Evidence versus Ocular Evidence

30. In  Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727, this  

Court held that where the evidence of the witnesses for the prosecution is  

totally inconsistent  with  the  medical  evidence  or  the  evidence  of  the  

ballistics expert, it amounts to a fundamental defect in the prosecution’s case  

and unless reasonably explained it is sufficient to discredit the entire case.

31. In State of Haryana v. Bhagirath & Ors., (1999) 5 SCC 96, it was  

held as follows:-

“The opinion given by a medical witness need not be  the last word on the subject. Such an opinion shall be  tested by the court.  If  the opinion is  bereft  of logic or  objectivity, the court is not obliged to go by that opinion.   After  all  opinion  is  what  is  formed  in  the  mind  of  a   person regarding a fact  situation.  If  one doctor forms  one opinion and another doctor forms a different opinion   on the same facts  it is open to the Judge to adopt the  view which is more objective or probable.  Similarly if   the opinion given by one doctor is  not  consistent  with   probability  the  court  has  no  liability  to  go  by  that   opinion  merely  because  it  is  said  by  the  doctor.  Of   course, due weight must be given to opinions given by   persons  who  are  experts  in  the  particular  subject.”  [Emphasis added]

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32. Drawing on Bhagirath’s case (supra.), this Court has held that where  

the medical evidence is at variance with ocular evidence, it has to be noted  

that  it  would  be  erroneous  to  accord  undue  primacy  to  the  hypothetical  

answers of medical witnesses to exclude the eyewitnesses’ account which  

had to be tested independently and not treated as the “variable” keeping the  

medical  evidence  as  the  “constant”.  Where  the  eyewitnesses’  account  is  

found credible  and trustworthy,  a  medical  opinion pointing to  alternative  

possibilities can not be accepted as conclusive. The eyewitnesses’ account  

requires a careful independent assessment and evaluation for its credibility,  

which should not be adversely prejudged on the basis of  any other evidence,  

including  medical  evidence,  as  the  sole  touchstone  for  the  test  of  such  

credibility. The evidence must be tested for its inherent consistency and the  

inherent  probability  of  the  story;  consistency  with  the  account  of  other  

witnesses held to be creditworthy; consistency with the undisputed facts, the  

“credit” of the witnesses; their performance in the witness box; their power  

of  observation  etc.  Then  the  probative  value  of  such  evidence  becomes  

eligible to be put into the scales for a cumulative evaluation. (Vide Thaman  

Kumar  v. State of Union Territory of Chandigarh, (2003) 6 SCC 380;  

and Krishnan v. State, (2003) 7 SCC 56).

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33. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC  

484, this Court observed,

“Ordinarily,  the  value  of  medical  evidence  is  only  corroborative. It proves that the injuries could have been   caused in the manner alleged and nothing more. The use  which the defence can make of the medical evidence is to   prove  that  the  injuries  could  not  possibly  have  been   caused in the manner alleged and thereby discredit the   eye-witnesses.  Unless, however the medical evidence in  its  turn  goes  so  far  that  it  completely  rules  out  all   possibilities whatsoever of injuries taking place in the   manner  alleged by eyewitnesses,  the  testimony of  the   eye-witnesses cannot be thrown out on the ground of   alleged  inconsistency  between  it  and  the  medical   evidence.” [Emphasis added]

34. A similar view has been taken in Mani Ram & Ors. v. State of U.P.,  

1994  Supp  (2)  SCC  289; Khambam  Raja  Reddy  &  Anr.  v. Public  

Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v.  

Dinesh, (2009) 11 SCC 566.

35. In State of U.P. v.  Hari Chand, (2009) 13 SCC 542, this Court re-

iterated the aforementioned position of law and stated that,

“In  any  event  unless  the  oral  evidence  is  totally   irreconcilable  with  the  medical  evidence,  it  has   primacy.”

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36. Thus,  the  position  of  law  in  cases  where  there  is  a  contradiction  

between medical  evidence and ocular  evidence can be crystallised to the  

effect that though the ocular testimony of a witness has greater evidentiary  

value vis-à-vis medical evidence, when medical evidence makes the ocular  

testimony improbable, that becomes a relevant factor in the process of the  

evaluation of evidence. However, where the medical evidence goes so far  

that it completely rules out all possibility of the ocular evidence being true,  

the ocular evidence may be disbelieved.

37. In the instant case as referred to hereinabove, a very large number of  

assailants attacked one person, thus the witnesses cannot be able to state as  

how many injuries and in what manner the same had been caused by the  

accused. In such a fact-situation, discrepancy in medical evidence and ocular  

evidence is bound to occur. However, it cannot tilt the balance in favour of  

the appellants.   

38. It has been canvassed on behalf of the appellants that there was no  

charge  framed under Section 34 IPC by the trial Court and appellants and  

other  co-accused have been charged  under  Section 147/148  IPC.  All  of  

them have been acquitted for the said charges. Thus, it was not permissible  

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for the High Court to convict the appellants with the aid of Section 34 IPC.  

Non-framing of charge is fatal to the prosecution. Thus, the appellants are  

entitled for acquittal on this ground alone.  

Effect of Failure to frame proper charges

39. In State of Andhra Pradesh v. Thakkidiram Reddy & Ors., (1998)  

6 SCC 554, this Court considered the issue of failure to frame the proper  

charges. observing as under:  

“10.  Sub-section  (1)  of  Section  464  of  the  Code  of   Criminal  Procedure  1973  (‘the  Code’,  for  short)   expressly provides that no finding, sentence or order by  a court of competent jurisdiction shall be deemed invalid   merely on the ground that no charge was framed or on  the ground of any error, omission or irregularity in the   charge including any misjoinder of charges, unless in the   opinion of the court of appeal, confirmation or revision,   a failure of justice has in fact been occasioned thereby.   Sub-section  (2)  of  the  said  section  lays  down  the  procedure  that  the  court  of  appeal,  confirmation  or   revision has to follow in case it is of the opinion that a   failure of justice has in fact been occasioned. The other   section relevant for our purposes is Section 465 of the  Code; and it lays down that no finding, sentence or order   passed  by  a  court  of  competent  jurisdiction  shall  be   reversed or altered by a court of appeal, confirmation or   revision  on  account  of  any  error,  omission  or  irregularity in the proceedings, unless in the opinion of   that  court,  a  failure  of  justice  has  in  fact  been  occasioned.  It  further  provides,  inter  alia,  that  in   determining whether any error, omission or irregularity   in  any  proceeding  under  this  Code  has  occasioned  a   failure of justice, the Court shall have regard to the fact   

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whether the objection could and should have been raised   at an earlier stage in the proceedings.”

The Court further held that in judging a question of prejudice, as of guilt, the  

court must look to the substance of the matter and not to technicalities, and  

its  main  concern  should  be  to  see  whether  the  accused  had  a  fair  trial,  

whether he knew what he was being tried for, whether the main facts sought  

to be established against him were explained to him fairly and clearly and  

whether he was given a full and fair chance to defend himself. In the said  

case this Court ultimately came to the conclusion that despite the defect in  

the framing of charges, as no prejudice had been caused to the accused, no  

interference was required.

40. A Constitution Bench of  this  Court  in  Willie  (William)  Slaney v.  

State  of  Madhya  Pradesh,  AIR  1956  SC  116,  considered  the  issue  of  

failure to frame charges properly and the conviction of an accused for the  

offences for which he has not been charged and reached the conclusion as  

under:-

“86. …  In  such  a  situation,  the  absence  of  a  charge   under  one  or  other  of  the  various  heads  of  criminal   liability  for  the  offence  cannot  be  said  to  be  fatal  by   itself, and before a conviction for the substantive offence,   

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without a charge, can be set aside, prejudice will have to   be made out. ....  

87. … If it is so grave that prejudice will necessarily be   implied or imported, it may be described as an illegality.   If the seriousness of the omission is of a lesser degree, it   will be an irregularity and prejudice by way of failure of   justice will have to be established.”

41.    This Court in  Gurpreet Singh v.  State of Punjab, (2005) 12 SCC  

615, referred to and relied upon its earlier judgments in  Willie (William)  

Slaney (supra) and  Thakkidiram Reddy (supra), and held that unless there  

is  a  failure  of  justice  and  thereby  the  cause  of  the  accused  has  been  

prejudiced, no interference is required if the conviction can be upheld on the  

evidence led against the accused. The Court should not interfere unless it is  

established that the accused was in any way prejudiced due to the errors and  

omissions in framing the charges against him.  

A similar view has been re-iterated  by this Court in Ramji Singh v.  

State of Bihar, (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar,  

(2009) 7 SCC 198.

42. There is no bar in law on conviction of the accused with the aid of  

Section 34 IPC in place of Section 149 IPC if there is evidence on record to  

show that such accused shared a common intention  to commit the crime and  

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no  apparent  injustice  or  prejudice  is  shown  to  have  been  caused  by  

application of Section 34 IPC in place of Section 149 IPC.  The absence of a  

charge under one or the other or the various heads of criminal liability for  

the offence cannot be said to be  by itself prejudicial to the accused, and  

before a conviction for the substantive offence without a charge can be set  

aside, prejudice will have to be made out.  Such a legal position is bound to  

be held good in view of the provisions of Sections 215, 216, 218, 221 and  

464  of Code of Criminal Procedure, 1973. (Vide:  Dalip Singh & Ors. v.  

State of  Punjab,  AIR 1953 SC 364;  Malhu Yadav & Ors. v.  State of  

Bihar,  (2002)  5  SCC  724;  Dhaneswar  Mahakud  &  Ors. v.  State  of  

Orissa, (2009) 9 SCC 307; and Annareddy Sambasiva Reddy & Ors. v.  

State of Andhra Pradesh, AIR 2009 SC 2661).     

43. Thus, the law on the issue can be summarised to the effect that unless  

the accused is able to establish that the defect(s) in framing the charge(s) has  

caused real prejudice to him; that he was not informed as to what was the  

real  case  against  him;  or  that  he  could  not  defend  himself  properly,  no  

interference is required on mere technicalities.  

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44. If the instant case is examined in the light of the aforesaid settled legal  

propositions we do not find any force in the submissions made on behalf of  

the appellants.  

Section 34 IPC

45. The aforesaid conclusion takes us to the issue raised by the appellants  

as to whether appellants could be convicted with the aid of Section 34 IPC.  

Section 34 IPC carves out an exception from general law that a person  

is responsible for his own act, as it provides that a person can also be held  

vicariously  responsible  for  the  act  of  others  if  he  has  the  “common  

intention” to commit the offence. The phrase  “common intention” implies a  

pre-arranged  plan and acting  in  concert  pursuant  to  the  plan.   Thus,  the  

common intention must be there prior to the commission of the offence in  

point of time.  The common intention to bring about a particular result may  

also  well  develop  on  the  spot  as  between  a  number  of  persons,  with  

reference to the facts of the case and circumstances existing thereto.  The  

common intention under Section 34 IPC is to be understood in a different  

sense from the “same intention” or “similar intention” or “common object”.  

The  persons  having  similar  intention  which  is  not  the  result  of  the  pre-

arranged  plan  cannot  be  held  guilty  of  the  criminal  act  with  the  aid  of  

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Section 34 IPC. (See Mohan Singh & Anr.  v. State of Punjab, AIR 1963  

SC 174).

46. The establishment of an overt act is not a requirement of  law to allow  

Section 34 to operate inasmuch this Section gets attracted  when a criminal  

act is done by several persons in furtherance of  the common intention of all.  

What  has,  therefore,  to  be  established  by  the  prosecution  is  that  all  the  

concerned  persons  had shared  a  common  intention.  (vide  :  Krishnan &  

Anr. v. State of Kerala, (1996) 10 SCC 508; and Harbans Kaur & Anr. v.  

State of Haryana, (2005) 9 SCC 195 ).

Undoubtedly, the ingredients of Section 34, i.e., that the accused had  

acted  in  furtherance  of  their  common  intention  is  required  to  be  proved  

specifically  or  by  inference,  in  the  facts  and  circumstances  of  the  case.  

(Vide:  Hamlet alias Sasi & Ors. v. State of Kerala, (2003) 10 SCC 108;  

Pichai alias Pichandi & Ors. v. State of Tamil Nadu, (2005) 10 SCC 505;  

and  Bishna alias  Bhiswadeb Mahato & Ors. v.  State of  West Bengal,  

(2005) 12 SCC 657).

47.  In Gopi Nath @ Jhallar v.  State of U.P., (2001) 6 SCC 620, this  

court observed as under:

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“8…..Even the doing of separate, similar or diverse acts   by  several  persons,  so  long  as  they  are  done  in   furtherance of a common intention, render each of such  persons liable for the result of them all, as if he had done  them himself, for the whole of the criminal action — be it   that it was not overt or was only a covert act or merely   an omission constituting an illegal omission. The section,   therefore, has been held to be attracted even where the   acts committed by the different confederates are different   when it is established in one way or the other that all of   them participated and engaged themselves in furtherance   of  the  common  intention  which  might  be  of  a  pre- concerted  or  pre-arranged  plan  or  one  manifested  or   developed at the spur of the moment in the course of the   commission of the offence. The common intention or the   intention of  the individual  concerned in furtherance of   the common intention could be proved either from direct   evidence  or  by  inference  from  the  acts  or  attending  circumstances of the case and conduct of the parties. The  ultimate decision, at any rate, would invariably depend  upon the inferences deducible from the circumstances of   each case.”

48.  In Krishnan and Anr. v. State represented by Inspector of Police,  

(2003)  7  SCC 56,  this  court  observed that  applicability  of  Section 34 is  

dependent on the facts and circumstances of each case. No hard and fast rule  

can be made out regarding applicability or non-applicability of Section 34.  

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49. In Girija Shankar v. State of U.P., (2004) 3 SCC 793, it is observed  

that Section 34 has been enacted to elucidate the principle of joint liability of  

a criminal act:

“Section 34 has been enacted on the principle of joint   liability in the doing of a criminal act. The section is only   a  rule  of  evidence  and  does  not  create  a  substantive   offence.  The  distinctive  feature  of  the  section  is  the  element  of  participation in  action.  The liability  of  one   person for an offence committed by another in the course  of  criminal  act  perpetrated  by  several  persons  arises   under  Section  34  if  such  criminal  act  is  done  in   furtherance of a common intention of the persons who  join in committing the crime.  Direct proof of common  intention  is  seldom  available  and,  therefore,  such  intention can only be inferred from the circumstances   appearing from the  proved facts  of  the  case  and the   proved  circumstances.”  [Emphasis  added]

(Emphasis added)

50. In  Virendra Singh v.  State of Madhya Pradesh,  JT 2010 (8) SC  

319, this Court observed that:

“Section 34 IPC does not create any distinct offence, but   it  lays  down  the  principle  of  constructive  liability.   Section 34 IPC stipulates  that  the act  must  have been  done in furtherance of the common intention. In order to  incur joint liability for an offence there must be a pre- arranged  and  pre-meditated  concert  between  the  accused persons for doing the act actually done, though  

30

there might not be long interval between the act and the   pre-meditation  and  though  the  plan  may  be  formed  suddenly.  In order that section 34 IPC may apply, it is   not necessary that the prosecution must prove that the   act was done by a particular or a specified person. In   fact,  the  section  is  intended  to  cover  a  case  where  a   number of persons act together and on the facts of the   case it is not possible for the prosecution to prove as to  which  of  the  persons  who  acted  together  actually   committed  the  crime.  Little  or  no  distinction  exists   between  a  charge  for  an  offence  under  a  particular   section  and  a  charge  under  that  section  read  with   Section 34.”

51. Section 34 can be invoked even in those cases where some of the co-

accused  may  be  acquitted  provided,  it  can  be  proved  either  by  direct  

evidence or inference that the accused and the others have committed an  

offence in pursuance of the common intention of the group.  (vide: Prabhu  

Babaji v. State of Bombay, AIR 1956 SC 51).  

52. Section  34  intends  to  meet  a  case  in  which  it  is  not  possible  to  

distinguish between the criminal acts of the  individual members of a party,  

who act in furtherance of  the  common intention of all the members of the  

party or it is not possible to prove exactly what part was played by each of  

them.   In  the  absence  of  common  intention,  the  criminal  liability  of  a  

member of the group might differ according to the mode of the individual’s  

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participation in the act.  Common intention means that each member of the  

group is aware of the act to be committed.  

53. In view of the  aforesaid discussion, we are of the considered opinion  

that the High Court has rightly proceeded in the matter  while setting aside  

the conviction of the appellants under Sections 147/148 IPC and convicting  

them with the aid of Section 34 IPC.   

Sum up:

54. In  view  of  the  above,  it  is  evident  that  an  FIR  had  been  lodged  

promptly within 20 minutes from the time of commission of the offence as  

the place of occurrence was in close proximity of Police Chowki and all the  

appellants along with other co-accused had been named therein. There had  

been an injured witness.  The prosecution has explained the motive that the  

appellants did not like intervention of Chand Khan taking side of Kamla Bai  

who had been molested by persons of the accused party.  Several hours after  

the lodging of the complaint by Chand Khan in that incident, the appellants  

attacked  Chand  Khan  with  motive  in  a  pre-planned  manner  armed  with  

deadly weapons and caused injuries. Shabir Khan, son of Chand Khan when  

came to rescue  his father was also done away with.  In the incident, Ashfaq  

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(PW.2) also got injured. The courts below after appreciating the evidence on  

record  rightly  came  to  the  conclusion  that  the  five  appellants  had  been  

responsible for the said offences.  The testimony of these witnesses had been  

subjected to searching cross-examination, but nothing has been brought on  

record to discredit the statement of either of the eye-witnesses.   

55. In view of the above, we are of the view that the instant case does not  

present special features warranting review of the impugned judgment. Thus,  

there is no cogent reason to interfere with the impugned judgment and order  

dated 12.1.2006 passed by the High Court of Madhya Pradesh.  The appeals  

lack merit and are accordingly dismissed.

……………………………..J. (P. SATHASIVAM)

…………………………..J. (Dr. B.S. CHAUHAN)

New Delhi, September 14, 2010  

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