IMPORTANT POINTS
(1) Whenever a plea of discrepancy between ocular evidence and medical evidence is taken oral evidence of eye witnesses shall get primacy if medical evidence is not totally consistent with oral evidence.
(2) A common intention which necessarily implies a pre-arranged concert needs to be distinguished from same or similar intention.

JUDGMENT (ORAL)

Chandrashekhar, J.—Rafique Ansari and Safique Ansari were put on trial on the charge under sections 323/34, 341/34 and 302/34 of the Indian Penal Code for committing murder of Makbool Mian, for wrongful confinement and causing hurt to Nizam Ansari, Aamina Bibi and Momin Ansari. They were held guilty in ST Case No. 80 of 2012 and accordingly convicted and sentenced to RI for life and a fine of Rs.5000/- each with a default stipulation to undergo RI for further six months under section 302/34 of the Indian Penal Code; RI for six months and a fine of Rs. 500/- with a default stipulation to undergo RI for 15 days each under section 323/34 of the Indian Penal Code, and; RI for one month and a fine of Rs. 500/- with a default stipulation to undergo RI for 7 days each under section 341/34 of the Indian Penal Code.

2. Nawadih PS Case No. 89 of 2011 was lodged on 28.10.2011 against Safique Ansari, Rafique Ansari and their father Sakul Mian. In his fardbeyan which was recorded by Subodh Ekka, SI of Nawadih police station on 28.10.2011 at 08:15 AM at Primary Health Centre, Nawadih, Nizam Ansari stated that in the morning at about 07:00 AM Safique Ansari and Rafique Ansari objected to dumping soil in the passage near his house and started abusing him. When he objected the accused became agitated and warned him not to dump soil inside his boundary and went home. But soon thereafter Safique Ansari and Rafique Ansari came back armed with iron rod and lathi and started marpit. On raising hulla, his father Makbool Mian and brother Momin Ansari rushed there and when they tried to intervene Safique Ansari assaulted his father on his head with iron rod and Rafique Ansari hit his brother Momin Ansari with iron rod. His father suffered head fracture and blood started oozing from his injury – Momin Ansari was also bleeding. In the meantime, his wife and other family members also arrived there and intervened whereafter the accused went back home. The informant has further stated that his father became unconscious and he was brought on a tempo at Primary Health Centre, Nawadih. The doctor advised to take him to another hospital for better treatment but on the way to Bokaro, near Nawadih market, his father succumbed to the injuries. After the investigation a charge sheet was laid against Rafique Ansari and Safique Ansari while investigation in respect of Sakul Mian was kept pending.

3. The accused faced the trial on the charge under sections 302/34, 323/34 and 341/34 of the Indian Penal Code and, as noticed above, convicted and sentenced for committing the aforesaid offences.

4. The informant, Nizam Ansari, was examined in the trial as PW5. He is an injured witness. He has deposed in the Court that his father was assaulted by Safique Ansari with an iron rod on his head and Rafique Ansari caused head injury to his brother Momin Ansari. PW4 Momin Ansari is another injured witness who has made specific allegations of assault on the head of his father Makbool Mian by Safique Ansari. He has further stated that when he tried to intervene Rafique Ansari assaulted him also. PW4 and PW5 are the injured eyewitnesses who are believed by the learned trial Judge. An injured witness is accorded a distinct place in the criminal trial because he lends assurance to the Court that he was present at the place of occurrence and has seen the occurrence with his own eyes.

5. In “State of Maharashtra v. Tulshiram Bhanudas Kamble” (2007) 14 SCC 627 the Hon’ble Supreme Court has observed as under:

“29. …. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained.”

6. The defence has tested credibility of PW4 and PW5 with reference to t