ABDUL SAYEED v. STATE OF MADHYA PRADESH

Judgment

13 (ADDL.) S.C.R. 311 ABDUL SAYEED v. STATE OF MADHYA PRADESH (Criminal Appeal No. 1243 of 2007 etc.) SEPTEMBER 14, 2010 A B [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] Penal Code, 1860: ss. 302134 - Prosecution for murder of two persons and c for injuries caused to others - Prompt lodging of FIR - Accused named in FIR - Eye-witnesses to the incident - Motive established - Trial court convicting the accused ulss. 302, 147 and 148 - On appeal High Court acquitting all the accused ulss. 147 and 148 and convicting the appellants- D accused u/s. 302 with the aid of s. 34 - Other co-accused acquitted of all the charges - On appeal, held: In the facts of the case, courts below rightly concluded that the appellants accused were responsible for the offence. s. 34 - Common intention - Applicability of - Discussed. E Criminal Trial - Failure to frame proper charge - Effect of - Held: Absence of a charge by itself is not prejudicial, unless the accused is able to establish that defect in framing of the charge has caused real prejudice - There is no bar in F law on conviction with the aid of s. 34 /PC in place of s. 149 /PG, if there is evidence to show that the accused shared common intention and no apparent prejudice is shown to have been caused thereby - On facts, it was permissible for High Court to convict the accused u/s. 34 and non-framing G the charge thereunder is not fatal to the prosecution - Code of criminal Procedure, 1973 - ss. 215, 216, 218, 221 and 464 - Penal Code, 1860 - ss. 34 and 149. 311 H 312 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R. A Evidence - Ocular evidence vis-a-vis medical evidence - Held: In case of contradiction between ocular and medical evidence, ocular evidence has greater evidentiary value - But if medical evidence completely rules out the ocular evidence, ocular evidence may be disbelieved - On facts, the B discrepancy between the ocular and medical evidence is probable and such discrepancy cannot go in favour of the accused. Witness - Injured eye-witness - Evidentiary value - Held: Deposition of such witness to be relied upon unless there are C strong grounds for rejection thereof on the basis of major contradictions and discrepancies - On facts, evidences of eye-witnesses are reliable as they are corroborated by version of other witnesses. D The 5 appellants, alongwith the other co-accused were prosecuted for having killed two persons and for causing injuries to others. The prosecution case was that on the date of occurrence, some of the accused molested a girl. Her mother complained about the incident to 'C'. E He went to the accused persons to advise them and also scolded them. As a result, in the evening, the 17 accused came armed with deadly weapons and attacked 'C'. When his two sons ('S' and PW1) and PWs 2 and 4 came to his rescue, 'S' and PW1 were also attacked by the accused. F Both 'C' and 'S' died on the spot. One of the accused died during the investigation and two of them had absconded. 14 accused were put to trial for offences punishable ul ss. 148, 302 and 323 IPC and in the alternative ulss. 3021 149. 324/149 and 323/149 IPC. One of the absconded G accused, (appellant-accused 'I'), later surrendered and he was tried separately. The trial court convicted accused A-11, A-9, A-6, and A-5 u/s, 148 IPC; A-9 was convicted u/s. 147 IPC, A-9 and H ABDUL SAYEED v. STATE OF MADHYA PRADESH 313 A-11 were further convicted u/s. 302 IPC for committing A murder of deceased 'C'. A-5 and A-6 were convicted u/s. 302 IPC for committing murder of deceased 'S'. A-7 was convicted u/s. 324 IPC for causing injuries to PW1 and A-1 was· convicted u/ss. 304 (Part II), 323 and 147 IPC for causing injuries to the deceased 'S'. Accused 'I' was also B convicted u/s. 148 and 302 IPC, in the separate trial. In the appeals filed by the convicted accused, the High Court convicted the 5 appellant-accused u/s. 302/ 34 IPC, setting aside their conviction u/ss. 147/148 IPC. The other co-accused were acquitted by the High Court. C The High Court partly allowed the appeal filed by the State against acquittal of some of the accused u/ss. 302/149 IPC. On appeal to the Supreme Court, the appellants- D accused contended inter-alia that the High Court could not have convicted the accused with the aid of s. 34 IPC, having set aside their conviction u/ss. 147/148 IPC and also because no charge was framed u/s. 34 IPC nor any evidence was led to show that the offences were committed in furtherance of common intention; that the injuries caused to the deceased and the injured could not be attributed to the appellants as there was no consistency between the medical evidence and the ocular evidence of the eye-witnesses with regard to the weapon of offence. E F Dismissing the appeals, the Court HELD: 1. In the facts of the instant case, it is evident that the FIR had been lodged promptly within 20 minutes G from the time of commission of the offence as the place of occurrence was in close proximity of the Police Chowki and all the appellants along with other co accused had been named therein. There was an injured H 314 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R. A witness. The prosecution has explained the motive that the appellants did not like the intervention of deceased 'C' taking the side of the mother of the girl who had been molested by persons of the accused party. It was several hours after the persons involved in the incident of B molestation were scolded by deceased 'C', that the appellants armed with deadly weapons attacked him with motive and in a pre-planned manner. Deceased 'S'; when came to rescue his father (deceased 'C'), was also done away with. In the incident, PW.2 also got injured. The C courts below after appreciating the evidence on record rightly came to the conclusion that the five appellants had been responsible for the said offences. The testimony of the eye-witnesses had been subjected to searching cross-examination but nothing has been brought on record to discredi,t the statements of any of the eye witnesses. [Paras S4] [343-E-H; 344-A-B] 0

#2. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee E of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are F strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. In the instant case, PW.2 (the injured eye-witness) had given graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of PW.1 and PW.4 (the other eye-witnesses). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or G H omissions. [Paras 28 and 29) [333-F-H; 334-A-B] ABDUL SAYEED v. STATE OF MADHYA PRADESH 315 Ramlagan Singh.and Ors. v. State of Bihar AIR 1972 SC A 2593; Ma/khan Singh and Anr. v. State of Uttar Pradesh AIR 1975 SC 12; Machhi Singh and Ors. v. State of Punjab AIR 1983 SC 957; Appabhai and Anr. v. State of Gujarat AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane and Ors. v. State of Maharashtra (1995) 6 SCC 447; Bhag Singh vs. B State of Punjab (1997) 7 SCC 712; Mohar and Anr. v. State of Uttar Pradesh (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan (2008) 8 SCC 270; Vishnu and Ors. v. State of Rajasthan (2009) 10 SCC 477; Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC c 2661; Balraje alias Trimbak v. State of Maharashtra (2010) 6 SCC 673; Jarnail Singh v. State of Punjab (2009) 9 SCC 719 - relied on.

#3. The position of law in cases where there is a contradiction between medical evidence and ocular D evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of E evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the instant case, a very large number of assailants attacked one person, thus the witnesses F cannot be able to state as to how many injuries and in what manner the same had been caused by the accused. In such a fact-situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants. [Paras G 36 and 37] [336-C-F]