Penal Code, 1860 – ss. 341, 302 r/w. 34 – Arms Act – s. 25(1A) r/w. s.27 – Prosecution case was that PW-2, PW-13 and victim were going on a motorcycle, on the way, they were stopped by accused (No.1 to 4) – Accused No.2 and 3 caught hold of victim and accused No.1 fired on the face of the victim from a very close range – Victim died instantly – Incident was witnessed by PW-2, 3 & 13 – Trial Court convicted accused (No.1 to 4) u/s. 341, 302 r/w. 34 IPC and accused No.1 was also convicted u/s. 25(1A) r/w. s.27 of Arms Act – Conviction affirmed by the High Court – Accused (No.1 to 3) preferred appeal – Appellants-accused contended that there were material contradictions and inconsistencies in the testimony of eye witnesses PW-2, 3 & 13 – Held: So long as the evidence of eye witnesses is found credible and trustworthy, their evidence cannot be doubted on the ground of minor contradictions – In instant case, PW-2, 3 & 13 had given a consistent and clear account of the incident – The alleged contradictions in the testimony of the eye witnesses urged by the appellant are trivial and it does not affect the case of the prosecution – The contradictions pointed out in the evidence of PW-2, 3 & 13 were normal discrepancies which are due to normal errors of observations which, do not effect trustworthiness of the witnesses.
Evidence – Consistent versions of prosecution witnesses on the touchstone of medical evidence – Appellant contended that there were inconsistencies between the evidence of eye witnesses and medical evidence – Held: The evidence of eye-witnesses are the eyes and ears of justice – Merely because victim sustained injuries of different shapes, on the opinionative medical evidence, the consistent evidence of eye-witnesses cannot be doubted – In instant case, the inconsistencies pointed out in the evidence of eye-witness inter se and the alleged inconsistencies between the evidence of eye-witnesses and that of the medical evidence are minor contradictions and they do not shake the prosecution case – Thus, the consistent version of PW-2, 3 and 13 cannot be decided on the touchstone of medical evidence.
Penal Code, 1860 – s.34 – Common intention – Trial Court convicted accused (No.1 to 4) u/ss.341, 302/34 IPC – Conviction affirmed by the High Court – On appeal, held: If accused Nos. 2 and 3 had shared common intention, they would also had attacked the victim, but they were only alleged to have caught hold of the victim – Prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos. 2 and 3 were having knowledge that their brother-accused No.1 was armed with Katta – Thus, conviction of accused Nos. 2 & 3 u/s. 302 r/w s.34 set aside. Disposing of the appeals, the Court
HELD: 1. PWs 2, 3 and 13 had given a consistent and clear account of the incident. All the three eye witnesses have attributed specific overt act of beating the victim-deceased with lathi to accused ‘B’, specific overt act of chasing the victim and holding him by accused No.2 and accused No.3 and the specific overt act of firing at the victim to accused No.1. Upon consideration of the evidence of eye witnesses PWs 2, 3 and 13, the trial court found that the evidence of the eye witnesses is credible and trustworthy. [Para 13] [554-C-D]
2. Contention of the appellants is that the occurrence was a blind murder and testimony of the eye witnesses PWs 2, 3 and
13 are not reliable as the same suffers from material contradictions and inconsistencies. The alleged contradictions in the testimony of the eye witnesses that are being urged by the appellants are trivial i.e. with respect to the number of blows given to the victimdeceased with lathi by accused ‘B’, part of the body where the bullet was shot and the distance from where accused no.1 fired at victim etc. Such contradictions pointed out in the evidence of the three eye witnesses are minor which do not affect the core of the prosecution case. The discrepancies pointed out in the evidence of eye witnesses regarding the number of blows, the distance between appellant-accused no.1 and victim, and the part of the body of victim where the bullet hit are may be due to normal errors of observation narrating the occurrence, which they have witnessed. The power of observation differs from person to person witnessing an attack. While the prime event of attack and the weapon are observed by a person, other minute details of number of blows, the distance from which the fire was shot might go unnoticed. So long as the evidence of eye witnesses is found credible and trustworthy, their evidence cannot be doubted on the ground of minor contradictions. [Para 14] [554-E-H; 555-A]
3. In the present case, the contradictions pointed out in the evidence of PW-2, PW-3 and PW-13 are only normal discrepancies which are due to normal errors of observation which do not affect the trustworthiness of these witnesses. [Para 16] [555-F]
4. Apart from the gunshot injuries which caused the death, there were nine other injuries found on the body of victimdeceased. PW-9-Doctor opined that the injuries sustained by the victim on his back and arms were of different shapes and therefore, there is a possibility that they must have been caused by different weapons. In an attack on the person, the nature of injuries sustained depends upon the manner of attack and how the person was positioned and the resistance offered by him. Victim was indiscriminately attacked by accused ‘B’ with lathi and there is possibility of the victim sustaining injuries of different shapes. Merely because victim sustained injuries of different shapes, on the opinionative medical evidence, the consistent evidence of eye witnesses cannot be doubted. It is well settled that the oral evidence has to get primacy since medical evidence is basically opinionative. [Paras 25, 26] [558-F-H; 559-A-B]
5. The inconsistencies pointed out in the evidence of eyewitnesses inter se and the alleged inconsistencies between the evidence of eye-witnesses and that of the medical evidence are minor contradictions and they do not shake the prosecution case. The evidence of eye witnesses are the eyes and ears of justice. The consistent version of PWs 2, 3 and 13 cannot be decided on the touchstone of medical evidence. [Para 27] [559-E]
6. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of common intention, each person is liable for the offence as if he has committed the offence by himself. [Para 33] [561-C-E]
7. Though it is stated that accused Nos.2 and 3 were present along with accused No.1, the fact remains that they were not armed. After being hit by accused ‘B’ on the back when victim-deceased ran, accused Nos.2 and 3 are alleged to have followed him and accused no.2 allegedly caught the right arm of victim and accused no.3 held the left arm of victim. It is also brought in evidence that accused ‘B’ was giving lathi blows to victim even when he was running. If accused Nos.2 and 3 have shared the common intention, they would also have attacked the deceased; but they were only alleged to have caught hold of the deceased. The prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos.2 and 3 were having knowledge that their brother accused no.1 was armed with katta. The evidence adduced by the prosecution is not convincing to hold that accused Nos.2 and 3 also shared the common intention with the accused no.1 and other accused ‘B’ in committing the murder of victim. Conviction of accused Nos. 2 and 3 under Section 302 read with Section 34 IPC is, therefore, liable to be set aside. However, conviction of the appellant/accused No.1 under Sections 302 IPC, 341 IPC and Section 25(1A) read with Section 27 of the Arms Act and the sentence of life imprisonment imposed upon him is affirmed. [Paras 37 and 38] [563-B-F]
Appabhai and Another v. State of Gujarat (1988) Suppl. SCC 241; Annareddy Sambasiva Reddy and Others v. State of Andhra Pradesh (2009) 12 SCC
546 : [2009] 6 SCR 755 ; Rammi alias Rameshwar v. State of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1; Ramanand Yadav v. Prabhu Nath Jha and
Others (2003) 12 SCC 606 ; Ramesh Singh alias Phooti v. State of A.P. (2004) 11 SCC 305 – relied on.
State of Uttar Pradesh v. Ram Kumar and Others (2017) 14 SCC 614 ; State of U.P. v. Krishna Gopal and Another (1988) 4 SCC 302 ; [1988] 2 Suppl. SCR 391; Balu @ Bala Subaramaniam and Another v. State (UT of Pondicherry) (2016) 15 SCC 471 : [2015]
12 SCR 1096 ; Dhanna v. State of M.P. (1996) 10 SCC 79 : [1996] 4 Suppl. SCR 28 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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