Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 404 of 2010

Darbara Singh …Appellant

Versus

State of Punjab …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.This appeal has been preferred against the judgment and order dated

6.2.2008 passed by the Punjab and Haryana High Court at Chandigarh in

Criminal Appeal No.248-DB of 1998, by which the High Court affirmed the

judgment and order dated 7.4.1998 passed by The Additional Sessions

Judge, Ferozepur in Sessions Case No.11 of 1996, by which the appellant

stood convicted under Section 302 of the Indian Penal Code, 1860

(hereinafter called ‘IPC’) and was awarded the imprisonment for life and a

fine of Rs.5,000/- was imposed upon him. In default of payment of fine, he

was further ordered to undergo rigorous imprisonment for 2 years. Co-

Page 2 accused Kashmir Singh @ Malla Singh @ Malli was also similarly

convicted and sentenced.

2.Facts and circumstances giving rise to this appeal are as follows:

A.On 28.10.1995, FIR No.150/95 was registered under Section 302 IPC

at Police Station Dharamkot, alleging that Kashmir Singh and Hira Singh

had gotten into a verbal feud with Mukhtiar Singh over the sale of country

liquor on credit. Upon Mukhtiar Singh’s refusal to give them liquor on

credit basis, they threatened to teach him a lesson. Kashmir Singh and Hira

Singh returned after 15-20 minutes alongwith Darbara Singh, the appellant

herein. Upon instigation by Hira Singh, the appellant hit Mukhtiar Singh on

the head with a Kirpan, while co-accused Kashmir Singh hit him on the

chest with a Kirpan, as a result of which, Mukhtiar Singh died instantly.

B.On the basis of the aforesaid FIR, investigation ensued and the dead

body of Mukhtiar Singh was recovered and sent for post-mortem, which was

conducted by Dr. Charanjit Singh (PW.11) on 29.10.1995. After the

conclusion of the investigation, the police submitted the final report under

Section 173 of the Criminal Procedure Code, 1973 (hereinafter referred to as

‘Cr.P.C.’) against all 3 accused named in the FIR including the appellant.

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Page 3 The case was thereafter committed to the Sessions Judge, Ferozepur for trial.

The appellant as well as the other co-accused pleaded innocence and claimed

trial. Thus, the appellant Darbara Singh and Kashmir Singh were charged

under Section 302 IPC while the co-accused Hira Singh was charged under

Section 302 r/w Section 34 IPC. During the course of the trial, the

prosecution examined Amrik Singh (PW.1) and Gurdial Singh (PW.2) as

eye-witnesses. They also examined other witnesses including Dr. Charanjit

Singh (PW.11) and Investigating Officer Sukhwinder Singh, S.I. (PW.9).

C.In their statements under Section 313 Cr.P.C., the accused denied their

involvement in the incident and also examined 2 witnesses in their defence

included Dr. Rachhpal Singh Rathor (DW.2) who had examined Bohar

Singh, Kashmir Singh and Paramjit Singh in the hospital on the night of

28/29.10.1995.

D.The learned Trial Court after appreciating the evidence on record and

considering the arguments raised on behalf of the prosecution as well as the

accused, convicted the appellant and Kashmir Singh, for the said offence

while Hira Singh was acquitted vide judgment and order dated 7.4.1998.

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Page 4 E.Aggrieved, the appellant and Kashmir Singh preferred

Criminal Appeal No. 248-DB/98 before the High Court which was

dismissed vide impugned judgment and order dated 6.2.2008.

Hence, this appeal.

3.Shri Rohit Sharma, learned counsel appearing for the appellant has

submitted that the appellant has falsely been enroped and that he did not

have any proximity with Kashmir Singh. In fact, on the contrary, his family

had a rather strained equation with the family of Kashmir Singh as one

person from the family of the appellant had in the past (20 years ago), been

prosecuted and convicted for the offence of committing rape upon Kashmir

Kaur, a relative of Kashmir Singh. In fact, on refusal to give liquor on credit,

Kashmir Singh, Paramjit Singh and Bohar Singh had teased Mukhtiar Singh,

deceased. Mukhtiar Singh caused injuries to them and the appellant

intervened in the scuffle. Thereafter, when brother of the deceased, namely

Amrik Singh asked the appellant to be a witness for them, the appellant

refused, thus the appellant has falsely been enroped in the crime. The

manner in which the appellant has been accused of causing injury is not in

fact at all possible because the medical evidence is not in consonance with

the ocular evidence. The appellant had not been charged under Section 302

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Page 5 r/w Section 34 IPC, and even if it is assumed that the appellant had also

participated in causing injury to the deceased Mukhtiar Singh, he should not

be held responsible for the offence punishable under Section 302 IPC, as the

said injury could not be proved to be fatal. No independent witness has been

examined even though the incident occurred at 5 p.m., at a liquor vending

shop, where a few persons can reasonably be expected to be present at that

time. The appellant has served more than 8 years. Thus, the appeal deserves

to be allowed.

4.On the contrary, Shri V. Madhukar, learned AAG, Punjab has

vehemently opposed the appeal contending that the appellant had in fact,

participated in the incident and as a result, caused grievous injury to the vital

part of the body of the deceased Mukhtiar Singh. He should not be allowed

to take the benefit of technicalities in the law. Thus, even if the charge for

offence under Section 302 r/w Section 34 IPC has not been framed against

the appellant, no prejudice would be caused to him. The co-accused Kashmir

Singh, who was convicted by the trial court as well as by the High Court

alongwith the appellant had filed a special leave petition against this very

impugned judgment, which has also been dismissed by this court. The

appeal is, hence, liable to be dismissed.

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Page 6 5.We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

So far as the question of inconsistency between medical evidence and

ocular evidence is concerned, the law is well settled that, unless the oral

evidence available is totally irreconcilable with the medical evidence, the

oral evidence would have primacy. In the event of contradictions between

medical and ocular evidence, the ocular testimony of a witness will have

greater evidentiary value vis-à-vis medical evidence and when medical

evidence makes the oral testimony improbable, the same becomes a relevant

factor in the process of evaluation of such evidence. It is only when the

contradiction between the two is so extreme that the medical evidence

completely rules out all possibilities of the ocular evidence being true at all,

that the ocular evidence is liable to be disbelieved. (Vide: State of U.P. v.

Hari, (2009) 13 SCC 542; and Bhajan Singh @ Harbhajan Singh & Ors. v.

State of Haryana, (2011) 7 SCC 421).

6.In the post-mortem report, the following injuries were found on the

person of the deceased:

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Page 7 (i)An incised wound 3 cm x 1.5 cm on the left parietal region of

the head obliquely placed 12 cm above the left ear pinna and 1.5 cm

from mid line & 6 cm behind the anterior hair line.

(ii)An incised penetrating elliptical shaped wound 6 cm x 1.5 cm

on front aspect of left side of chest 4 cm below the nipple & 5 cm

from midline. Clotted blood is present.

Dr. Charanjit Singh (PW.11), who conducted the post-mortem further

opined that the cause of death was haemorrhage and shock as a result of

injury to vital organs i.e. lung & heart, which was sufficient to cause death

in the ordinary course of nature.

Dr. Charanjit Singh (PW.11), in his cross-examination explained that

injury No.1 would have been impossible to inflict, if the deceased was

running and the assailant was chasing him. Injury No.1 was caused by a

sharp edged instrument like a Kirpan from the upper to the lower part of

the back of the deceased. The ocular evidence so far as the injuries are

concerned, has been by Amrik Singh (PW.1), who deposed that after 15-20

minutes of the first part of the incident the assailants turned up. Darbara

Singh inflicted a blow, using a Kirpan, to the head of Mukhtiar Singh and,

thus, he attempted to run towards Fatehgarh. Kashmir Singh then thrusted a

Kirpan, which hit the left flank of Mukhtiar Singh. After receiving these

injuries Mukhtiar Singh fell down.

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Page 8 7. In fact, Mukhtiar Singh, deceased attempted to run upon the

apprehension that, he would be attacked, and it was exactly at this time that

the appellant, Darbara Singh caused injury to his head using a Kirpan. This

explains the reason for the direction of injury No.1 extending from the upper

to the lower part of the back of the deceased. Had it been the case that the

deceased Mukhtiar Singh was not running at the said time, the direction of

the injury would have in all likelihood been straight. If the entire evidence

with respect to the method and manner of causing injuries 1 and 2, is

conjointly read, it becomes crystal clear that the ocular evidence is in

conformity and in consonance with the available medical evidence.

In view of the above, we do not find any force in this submission.

8.Learned counsel for the appellant would submit that as Dr. Charanjit

Singh (PW.11), undoubtedly deposed in the cross-examination that the shirt

worn by the deceased was torn in several places, it clearly suggests that there

was in fact, a scuffle between the deceased and the assailant, and, therefore,

in the light of the same, the case of the prosecution becomes doubtful. The

case of the prosecution has been that upon seeing the assailants, the deceased

started running and 2 injuries were inflicted upon him by the appellant and

Kashmir Singh. None of the prosecution witnesses has been asked in the

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Page 9 cross-examination to explain the condition of the shirt which was worn by

the deceased at the relevant time. More so, no suggestion was ever made by

any of them regarding the aforementioned scuffle. In absence thereof, such

a statement made by Dr. Charanjit Singh (PW.11) does not in any way point

towards the innocence of the appellant.

9.So far as the issue of motive is concerned, it is a settled legal

proposition that motive has great significance in a case involving

circumstantial evidence, but where direct evidence is available, which is

worth relying upon, motive loses its significance. In the instant case, firstly,

there is nothing on record to reveal the identity of the person who was

convicted for rape, there is also nothing to reveal the status of his

relationship with the appellant and further, there is nothing on record to

determine the identity of this girl or her relationship to the co-accused

Kashmir Singh. More so, the conviction took place 20 years prior to the

incident. No independent witness has been examined to prove the factum

that the appellant was not on talking terms with Kashmir Singh. In a case

where there is direct evidence of witnesses which can be relied upon, the

absence of motive cannot be a ground to reject the case. Under no

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Page 10 circumstances, can motive take the place of the direct evidence available as

proof, and in a case like this, proof of motive is not relevant at all.

10.Motive in criminal cases based solely on the positive, clear, cogent

and reliable ocular testimony of witnesses is not at all relevant. In such a

fact-situation, the mere absence of a strong motive to commit the crime,

cannot be of any assistance to the accused. The motive behind a crime is a

relevant fact regarding which evidence may be led. The absence of motive

is also a circumstance which may be relevant for assessing evidence. (Vide:

Gurcharan Singh & Anr. v. State of Punjab, AIR 1956 SC 460; Rajinder

Kumar & Anr. v. State of Punjab, AIR 1966 SC 1322; Datar Singh v.

State of Punjab, AIR 1974 SC 1193; and Rajesh Govind Jagesha v. State

of Maharashtra, AIR 2000 SC 160).

11.In Sheo Shankar Singh v. State of Jharkhand & Anr., AIR 2011

SC 1403, while dealing with the issue of motive, this Court held as under:

“Proof of motive, however, recedes into the

background in cases where the prosecution relies

upon an eye-witness account of the occurrence.

That is because if the court upon a proper

appraisal of the deposition of the eye-witnesses

comes to the conclusion that the version given by

them is credible, absence of evidence to prove the

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Page 11 motive is rendered inconsequential. Conversely

even if prosecution succeeds in establishing a

strong motive for the commission of the offence,

but the evidence of the eye-witnesses is found

unreliable or unworthy of credit, existence of a

motive does not by itself provide a safe basis for

convicting the accused. That does not, however,

mean that proof of motive even in a case which

rests on an eye-witness account does not lend

strength to the prosecution case or fortify the court

in its ultimate conclusion. Proof of motive in such

a situation certainly helps the prosecution and

supports the eye witnesses. (See: Shivaji Genu

Mohite v. The State of Maharashtra, AIR 1973

SC 55; Hari Shanker v. State of U .P. (1996) 9

SCC; and State of Uttar Pradesh v. Kishanpal

and Ors., (2008) 16 SCC 73)”.

In view of the above, the argument advanced by the learned counsel

for the appellant does not merit consideration.

12.It has further been submitted on behalf of the appellant that, as the

appellant was never charged under Section 302 r/w Section 34 IPC, unless it

is established that the injury caused by the appellant on the head of the

deceased, was sufficient to cause death, the appellant ought not to have been

convicted under Section 302 IPC simplicitor. The submission so advanced

is not worth consideration for the simple reason that the learned counsel for

the appellant has been unable to show what prejudice, if any, has been

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Page 12 caused to the appellant, even if such charge has not been framed against him.

He was always fully aware of all the facts and he had, in fact, gone

alongwith Kashmir Singh and Hira Singh with an intention to kill the

deceased. Both of them have undoubtedly inflicted injuries on the deceased

Mukhtiar Singh. The appellant has further been found guilty of causing

grievous injury on the head of the deceased being a vital part of the body.

Therefore, in the light of the facts and circumstances of the said case, the

submission so advanced does not merit acceptance.

13.In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, this Court

dealt with the aforementioned issue elaborately, and upon consideration of a

large number of earlier judgments, held as under:

“Therefore,……………… unless the convict is able

to establish that defect in framing the charges has

caused real prejudice to him and that he was not

informed as to what was the real case against him

and that he could not defend himself properly, no

interference is required on mere technicalities.

Conviction order in fact is to be tested on the

touchstone of prejudice theory.”

14.The defect in framing of the charges must be so serious that it cannot

be covered under Sections 464/465 Cr.P.C., which provide that, an order of

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Page 13 sentence or conviction shall not be deemed to be invalid only on the ground

that no charge was framed, or that there was some irregularity or omission or

misjoinder of charges, unless the court comes to the conclusion that there

was also, as a consequence, a failure of justice. In determining whether any

error, omission or irregularity in framing the relevant charges, has led to a

failure of justice, the court must have regard to whether an objection could

have been raised at an earlier stage, during the proceedings or not. While

judging the question of prejudice or guilt, the court must bear in mind that

every accused has a right to a fair trial, where he is aware of what he is being

tried for and where the facts sought to be established against him, are

explained to him fairly and clearly, and further, where he is given a full and

fair chance to defend himself against the said charge(s).

15.The ‘failure of justice’ is an extremely pliable or facile expression,

which can be made to fit into any situation in any case. The court must

endeavour to find the truth. There would be ‘failure of justice’; not only by

unjust conviction, but also by acquittal of the guilty, as a result of unjust

failure to produce requisite evidence. Of course, the rights of the accused

have to be kept in mind and also safeguarded, but they should not be over

emphasised to the extent of forgetting that the victims also have rights. It has

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Page 14 to be shown that the accused has suffered some disability or detriment in

respect of the protections available to him under Indian Criminal

Jurisprudence. ‘Prejudice’, is incapable of being interpreted in its generic

sense and applied to criminal jurisprudence. The plea of prejudice has to be

in relation to investigation or trial, and not with respect to matters falling

outside their scope. Once the accused is able to show that there has been

serious prejudice caused to him, with respect to either of these aspects, and

that the same has defeated the rights available to him under jurisprudence,

then the accused can seek benefit under the orders of the Court. (Vide: Rafiq

Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v.

State of M.P. through Inspector of Police, AIR 2012 SC 1485; and Criminal

Appeal No.46 of 2005 (Bhimanna v. State of Karnataka) decided on 4

th

September, 2012).

16.Learned counsel for the appellant has submitted that there is nothing

on record to show that the appellant had a common intention with co-

accused to kill the deceased and therefore the appellant could not have been

convicted as such. In order to fortify his submission, he placed heavy

reliance on the judgment of this Court in Dhanna v. State of M.P., (1996)

10 SCC 79, wherein this Court held as under:

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Page 15 “It is, therefore, open to the Court to make

recourse to Section 34 IPC even if the said section

was not specifically mentioned the charge ……. Of

course a finding that the assailant concerned had

a common intention with the other accused is

necessary for resorting to such a course.”

17.Even this submission does not tilt the balance in favour of the

appellant. The manner in which injury no.1 has been caused clearly suggests

that both the accused persons acted in furtherance of a common intention.

Thus, we do not find any force in the aforesaid submission.

18.Learned counsel for the appellant further submitted that investigation

conducted by the police was tainted, favouring the complainant, as the

Investigating Officer (PW.9) himself admitted in his cross-examination that,

he had recorded the statement of one Bohar Singh to the effect that, the

appellant was the only witness and had seen Bohar Singh and others being

attacked and injured by the deceased on being teased. Bohar Singh had also

been medically examined and injuries were found on his person. However,

his statement regarding such facts has not been produced before the court.

The trial court dealt with the said issue elaborately, and held that the

story that the reason that Bohar Singh and the other co-accused went to Civil

Hospital, Zira, a far away place, and got themselves medically examined

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Page 16 there and not in a nearby hospital, was in order to avoid conflict with the

complainant party as the police would have taken the body of the deceased

there for post-mortem examination, for which the complainant party would

also be present, was a concocted story. In fact, the dead body of Mukhtiar

Singh was taken to Civil Hospital, Zira itself for post-mortem and, therefore,

the case put forward by defence was clearly a false story, and there was

absolutely no material whatsoever on record to show that Bohar Singh or

any other accused had received any injury in the said incident.

19.In view of the above, we do not find any force in the said appeal.

Facts of the appeal do not warrant review of the findings recorded by the

courts below. Appeal lacks merit and is dismissed accordingly.

…..………………………….J.

(Dr. B.S. CHAUHAN)

……..….…….….…….……………………………J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,

September 12, 2012

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