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2010 (6) Supreme 489
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Abdul Sayeed — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 1243 of 2007
Criminal Appeal No. 1399 of 2008
Criminal Appeal Nos.1363-1365 of 2010
Decided on : 14-9-2010
AIR 1965 SC 202; (2006) 10 SCC 313; (2008) 15 SCC 786; (1997) 7 SCC 712 – Relied upon
(b) Criminal trial – Injured witness – An injured witness comes with a built-in guarantee of his presence at the scene of the crime – He is unlikely to spare his actual assailant(s) in order to falsely implicate someone else – Testimony of such a witness is generally considered to be very reliable – Convincing evidence is required to discredit an injured witness. (Paras 26 and 28)
AIR 1972 SC 2593; AIR 1975 SC 12; AIR 1983 SC 957; AIR 1988 SC 696; (1995) 6 SCC 447; (1997) 7 SCC 712; (2002) 7 SCC 606; (2008) 8 SCC 270; (2009) 10 SCC 477; AIR 2009 SC 2261; (2010) 6 SCC 673; (2009) 9 SCC 719 – Relied upon
(c) Criminal trial – Eye witness and medical evidence – Consistent and reliable evidence of eye witness will prevail upon medical evidence even if at variance. (Paras 31 to 33 and 36)
AIR 1975 SC 1727; (1999) 5 SCC 96; (2003) 6 SCC 380; (2003) 7 SCC 56; AIR 1983 SC 484; 1994 Supp (2) SCC 289; (2006) 11 SCC 239; (2009) 11 SCC 566; (2009) 13 SCC 542 – Relied upon
(d) Criminal trial – Framing of charge – Non-framing of charge is not fatal if it did not cause prejudice to the accused. (Paras 39 and 43)
(1998) 6 SCC 554; AIR 1956 SC 116; (2005) 12 SCC 615; (2001) 9 SCC 528; (2009) 7 SCC 198; AIR 1953 SC 364; (2002) 5 SCC 724; (2009) 9 SCC 307; AIR 2009 SC 2661 – Relied upon
(e) Indian Penal Code, 1860 – Section 34 – Common intention prior to the commission of the offence in point of time is essential – Persons having similar intention which is not the result of the pre-arranged plan cannot be held guilty of the criminal act u/s 34 – Even if some of the co-accused have been acquitted, rest can be convicted invoking S. 34. (Paras 45, 51 and 52)
AIR 1963 SC 174; (1996) 10 SCC 508; (2005) 9 SCC 195; (2003) 10 SCC 108; (2005) 10 SCC 505; (2005) 12 SCC 657; (2001) 6 SCC 620; (2003) 7 SCC 56; (2004) 3 SCC 793; JT 2010 (8) SC 319; AIR 1956 SC 51 – Relied upon
Facts of the case:
1. Appellants were convicted and sentenced by the trial court u/ss 302/34, 147 and 148, IPC for committing the murders of Chand Khan and Shabir Khan.
2. The High Court maintained the conviction u/ss 302/34 IPC while setting aside their conviction under Sections 147 and 148 IPC.
Finding of the Court:
No interference warranted in the impugned judgment.
Result : Appeal dismissed.
JUDGMENT
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.
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) 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 Madh
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