Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 ABDUL SAYEED v. STATE OF MADHYA PRADESH 331 [DR. B.S. CHAUHAN, J.] carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not." [Emphasis added]
23. A similar view was taken by this Court in Kallu alias Masih & 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 mind the testimony cannot be dubbed as artificial on that score alone." c
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. 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 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 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 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 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 entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW.1) and Usmal Ali (PW.4). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions. Medical Evidence 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 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, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject." [Emphasis added)
32. Drawing on Bhagirath's case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses ABDUL SAYEED v. STATE OF MADHYA PRADESH 335 [DR. B.S. CHAUHAN, J.] 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; 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 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, "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 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. 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 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 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 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 Court and appellants and other co-accused have been charged under Section 147/148 IPC. All of them have been acquitted for the said charges. Thus, it was not permissible for the High Court to convict the appellants with the aid of Section 34 IPC. Non-framing of charge is fatal to the prosecution. Thus, the appellants are entitled for acquittal on this ground alone. ABDUL SAYEED v. STATE OF MADHYA PRADESH 337 [DR. B.S. CHAUHAN, J.] 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 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 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 reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to 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 conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. …. 87. .. . If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established."
41. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 sec 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 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 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).
43. Thus, the law on the issue can be summarised to the effect that unless the accused is able to establish that the defect(s) in framing the charge(s) has caused real prejudice to him; that he was not informed as to what was the real case against him; or that he could not defend himself properly, no interference is required on mere technicalities.
44. If the instant case is examined in the light of the aforesaid settled legal propositions we do not find any force in the submissions made on behalf of the appellants. Section 34 IPC
45. The aforesaid conclusion takes us to the issue raised by the appellants as to whether appellants could be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the "same intention" or "similar intention" or "common object". The persons having similar intention which is not the result of the pre-arranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh & 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 Kera/a, (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 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 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 620, this court observed as under: "8 ….. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action – be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different 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, 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 c 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 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 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 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 ABDUL SAYEED v. STATE OF MADHYA PRADESH 343 [DR. S.S. CHAUHAN, J.] 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 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:
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 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 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. K.K.T. Appeals dismissed.