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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-

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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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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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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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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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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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(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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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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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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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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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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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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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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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 4th  

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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“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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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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