REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1115 OF 2010

BALVIR SINGH        …Appellant     VERSUS

STATE OF MADHYA PRADESH           …Respondent                 

WITH

CRIMINAL APPEAL NO.1116 OF 2010

BHAV SINGH      …Appellant     VERSUS

STATE OF MADHYA PRADESH           …Respondent

CRIMINAL APPEAL NO.1119 OF 2010

HARNAM SINGH      …Appellant     VERSUS

STATE OF MADHYA PRADESH           …Respondent

J U D G M E N T

R. BANUMATHI, J.

These  appeals  arise  out  of  the  judgment  dated

26.08.2008 passed by the High Court of Judicature at Madhya

Pradesh at Jabalpur in and by which the High Court affirmed

the  conviction  of  the  appellants  (Accused  No.1  to  4)  under

Sections 341, 302 and 302 read with 34 IPC and the sentence

of  imprisonment  for  life  imposed upon each of  the accused.

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The  High  Court  also  affirmed  the  conviction  of  the

appellant/accused  Harnam  Singh  under  Section  25(1A)  read

with  Section  27  of  the  Arms  Act  and  the  sentence  of  three

years rigorous imprisonment imposed upon him.  

2. Briefly  stated  case  of  the  prosecution  is  that  on

11.03.1998  at  about  05.30  PM,  Mohan  Mehtar  belonging  to

Scheduled Caste was going on motor cycle along with Santosh

Rai (PW-2) and Kamal @ Kamlesh (PW-13) to Railway Colony.

When  they  reached  near  Advocate  Mishra’s  lane,  accused

Harnam  Singh,  Balvir  Singh,  Bhav  Singh  and  Bharat  Thakur

stopped  the  motor  cycle  driven  by  Santosh  Rai  (PW-2).

Accused Harnam Singh asked Mohan Mehtar to come down as

they  wanted  to  talk  with  him.   When  Mohan  Mehtar  came

down  from  motorcycle,  accused  Bharat  Thakur  attacked

Mohan  with  lathi on  his  back.   When  Mohan  Mehtar  ran

towards  Advocate  Mishra’s  lane  to  save  himself,  he  was

caught hold by accused Balvir  Singh and Bhav Singh and at

that time, accused Harnam Singh fired with the country made

pistol on the face of Mohan from very close distance and the

bullet hit the brain and cornea of the left eye and Mohan died

instantaneously on the spot.  The incident was witnessed by

Santosh  Rai  (PW-2),  Devendra  Rai  (PW-3)  and  Kamal  @

Kamlesh (PW-13) and others.  

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3. Informant  Santosh  (PW-2)  lodged  the  complaint  before

the  Police  Station  Bina  on  the  basis  of  which  FIR  No.114/98

was lodged on 11.03.1998 at 06.00 PM against the appellants

for the offence punishable under Sections 341, 294, 323, 302,

506B,  34  IPC  and  under  Section  3(2)(V)  of  the  Scheduled

Castes  and  Scheduled  Tribes  (Prevention  of  Atrocities)  Act.

Dr.  P.K.  Jain  (PW-9)  conducted the  post-mortem of  deceased

Mohan Mehtar and opined that the death was due to gun-shot

injury.   The  bullet  hit  the  brain  and  cornea  of  left  eye  and

remaining portion was completely missing.  Gun powder was

also  found present  in  the  eyes.   Dr.  Jain  (PW-9)  opined that

death  was  caused  due  to  brain  centre  present  in  the  skull

damaged  due  to  the  injuries  sustained  from  the  above

cartridge which stopped the heart and respiration.   

4. The accused persons were arrested and on the basis of

their  disclosure statement  recorded under Section  27 of  the

Evidence Act,  country  made pistol  of  0.315 bore was seized

from the bottom shelf of the almirah in the house of accused

Harnam Singh.   The  blood-stained  clothes  of  Harnam  Singh

were also recovered.  The seized pistol  was sent to Forensic

Science Laboratory, Sagar.  Upon examination of the weapon,

the  pistol  was  found  to  be  in  operative  condition.   The

damaged  copper  cartridge  which  was  recovered  from  the

body of the deceased did not have barrel marks.  The ballistic

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expert  therefore  opined  that  the  barrel  marks  were  not

sufficient  for  decisive  matching.  Upon  completion  of

investigation, charge sheet was filed against the accused for

the  offences  punishable  under  Sections  147,  148,  149,  341,

294,  323,  506B,  302  IPC  and  under  Section  25  read  with

Section 27 of the Arms Act and under Section 3(2)(V) of the

Scheduled  Castes  and  Scheduled  Tribes  (Prevention  of

Atrocities) Act in the court of Special Judge, Sagar, M.P.   

5. To bring home the guilt of the accused, prosecution has

examined  fourteen  witnesses  and  marked  number  of

documents.  On the side of the accused, Babu Lal (DW-1) was

examined who had stated that the occurrence took place at

03:30  PM  on  11.03.1998  and  he  had  not  seen  any  of  the

accused  on  the  spot  at  the  relevant  point  of  time.  All  the

accused were questioned under Section 313 Cr.P.C. about the

incriminating  evidence  and  circumstances  and  the  accused

denied  all  of  them  stating  that  a  false  case  has  been  filed

against them.   

6. Upon  consideration  of  oral  and  documentary  evidence,

the trial court convicted the accused and sentenced them to

undergo imprisonment as under:-

Accused Conviction Sentence Harnam Singh (A1) Section 341 IPC

Section 302 IPC R.I. for one month Life  imprisonment  with fine of Rs.1,000/-

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Section  25(1A)/27 of Arms Act

R.I  for  three  years  with fine of Rs.1,000/-

Balvir (A2) Bhav Singh (A3) Bharat Singh (A5)

Section 341 IPC Section 302/34 IPC

One month R.I. Life  imprisonment  with fine of Rs.1,000/- each

The  accused  were  acquitted  of  the  charge  under  Sections

147,  148,  506B  IPC  and  Section  3(2)(V)  of  the  Scheduled

Castes  and  Scheduled  Tribes  (Prevention  of  Atrocities)  Act.

The trial  court acquitted accused Suraj  from all  the charges.

Being aggrieved, the appellants have preferred appeal before

the High Court which came to be dismissed by the impugned

judgment.  Being  aggrieved,  the  appellants  are  before  us.

Accused Bharat  Singh have not  preferred any appeal  before

us.

7. The  learned  counsel  for  the  appellants  inter  alia

submitted that it is a case of blind murder and that the FIR is

ante  dated as  it  contains  the  Inquest  No.10/98  and the  eye

witnesses  were  introduced  in  the  FIR  which  suffers  from

manipulations.  It was submitted that the medical evidence is

completely  contrary  to  the  evidence  adduced  by  eye

witnesses on two counts namely:- (i) number of weapons used

and  the  injuries;  and  (ii)  distance  from  which  the  shot  was

fired.  It was urged that as per the FSL Report, there was no

sufficient barrel marks in the cartridge for decisive matching

with the pistol allegedly recovered from the appellant Harnam

Singh and this raises serious doubts about the occurrence and

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the  involvement  of  appellant  Harnam Singh.   It  was  further

submitted that  as  per  the evidence of  Babu Lal  (DW-1),  the

incident took place at 03.30 PM and it was a blind murder and

the  High  Court  and  the  trial  court  failed  to  take  into

consideration the evidence of Babu Lal (DW-1).  The learned

counsel  appearing  for  the  appellants  Balvir  Singh  and  Bhav

Singh urged that the eye witnesses PWs 2, 3 and 13 are not

reliable  witnesses  and  the  courts  below  erred  in  invoking

Section 34 IPC for convicting appellants Balvir Singh and Bhav

Singh under Section 302 IPC read with Section 34 IPC.

8. Taking  us  through  the  impugned  judgment  and  other

materials  on  record,  the  learned  counsel  appearing  for  the

State submitted that the conviction of the appellants is based

upon  the  evidence  of  eye  witnesses  Santosh  Rai  (PW-2),

Devendra Rai (PW-3) and Kamal (PW-13) which is corroborated

by the medical evidence and FSL Report and the conviction of

the appellants-accused does not warrant any interference.   

9. We  have  carefully  considered  the  submissions  of  the

learned counsel for the appellants and the State and perused

the  impugned  judgment  and  the  evidence  and  materials  on

record.

10. Santosh Rai  (PW-2) and Kamal (PW-13) who were going

along with deceased Mohan on the motor cycle,  are the eye

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witnesses.  The prosecution has also examined Devendra Rai

(PW-3) as another eye witness.  In his evidence, PW-2 stated

that  on  11.03.1998  at  05.30  PM,  he  was  riding  the  motor

cycle and deceased Mohan and Kamal (PW-13) were with him

on the motor cycle. PW-2 had stated that on being stopped by

appellant  Harnam  Singh,  Mohan  got  down  from  the  motor

cycle  and  accused  Bharat  gave  him  a  blow  of  lathi on  his

back.  After the deceased was so attacked with blow of  lathi,

there  was  scuffle  and  the  deceased  ran  away  towards

Advocate Mishra’s lane to save himself.   PW-2 further stated

that  at  that  time appellant  Harnam Singh exhorted to catch

hold of  Mohan and accused Balvir  (A2)  and Bhav Singh (A3)

caught hold of Mohan.  Appellant Harnam Singh went close to

Mohan and shot him on his face with his country made pistol.

PW-13 who was sitting behind Mohan on the motor cycle has

also  clearly  spoken  about  the  occurrence  and  thus

corroborated the evidence of PW-2.

11. Devendra Rai (PW-3) had also corroborated the evidence

of  PW-2  that  he  saw  the  motor  cycle  being  stopped  by

appellant Harnam Singh and that he took Mohan towards the

street.  PW-3 stated that when Mohan got down, first blow of

lathi was hit at his waist by accused Bharat and when Mohan

ran towards the street, on being exhorted by Harnam Singh,

accused Balvir  Singh  and Bhav Singh caught  hold  of  Mohan

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and appellant Harnam Singh fired at the face of Mohan from

country made pistol. PW-3 had spoken about the presence of

PW-2  and  PW-13  at  the  scene  of  occurrence  along  with

deceased Mohan.   

12. Case of prosecution is assailed on the ground that it was

a blind  murder  and that  there were actually  no eye witness

and the eye witnesses were introduced in the FIR which was

prepared  subsequently.  There  is  no  merit  in  the  contention

that there were no eye witnesses for the occurrence and that

it was a blind murder. Santosh Rai (PW-2) and Kamal (PW-13)

have explained as to how they happened to be with deceased

Mohan by going along with him on the motor cycle.  Likewise,

PW-3 has also stated that at about 05.00 PM-06.00 PM, he had

gone  to  the  Jhansi  Gate  which  is  on  the  other  side  of  the

railway line and at that time, he saw PW-2, PW-13 and Mohan

coming  on  the  motor  cycle.  The  presence  of  all  the  three

witnesses as spoken by them is  natural  and both the courts

below  held  that  their  evidence  inspires  confidence.  It  is

pertinent  to  note  that  the  FIR  registered  at  06.00  PM  on

11.03.1998 also  contains  the names of  PW-2,  PW-3 and PW-

13.

13. PWs  2,  3  and  13  had  given  a  consistent  and  clear

account  of  the  incident.   All  the  three  eye  witnesses  have

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attributed  specific  overt  act  of  beating  the  deceased  with

lathi to  accused  Bharat  Singh,  specific  overt  act  of  chasing

the deceased and holding him by accused No.2-Balvir  Singh

and  accused  No.3-Bhav  Singh  and  the  specific  overt  act  of

firing  at  the  deceased to  accused No.1-Harnam Singh.  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.

14. 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  deceased  with  lathi by  accused  Bharat

Singh,  part  of  the  body  where  the  bullet  was  shot  and  the

distance from where Harnam Singh fired at Mohan 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  Harnam  Singh  and  deceased

Mohan and the part of the body of deceased where the bullet

hit are may be due to normal errors of observation narrating

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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.

15. It  is  fairly  well  settled that the minor discrepancies in the

evidence of the eye-witnesses do not shake their trustworthiness.

In  Appabhai  and  Another  v.  State  of  Gujarat 1988  Supp

SCC 241, the Supreme Court held as under:-

“13. ……….  The discrepancies which do not shake the basic version  of  the  prosecution  case  may  be  discarded.  The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding  the  exaggerated  version  given  by  any  witness. When a doubt arises in respect  of  certain facts  alleged by such witness,  the proper course is  to ignore that  fact  only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their  testimony  being  rejected  by  the  court.  The  courts, however,  should  not  disbelieve  the  evidence  of  such witnesses altogether if they are otherwise trustworthy……...”.

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16. The well-settled principle that minor discrepancies in the oral

testimony of the witnesses do not affect the trustworthiness of the

witnesses, has been reiterated in Annareddy Sambasiva Reddy

and Others v. State of Andhra Pradesh (2009) 12 SCC 546 and

Rammi alias Rameshwar v. State of M.P. (1999) 8 SCC 649.  In

the present case, the contradictions pointed out in the evidence of

Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal (PW-13) are

only  normal  discrepancies  which  are  due  to  normal  errors  of

observation which, in our view, do not affect the trustworthiness of

these witnesses.   

17. Credibility of Devendra Rai (PW-3) is assailed on the ground

that  he  is  involved  in  about  10-15  criminal  cases  including  a

murder case.  During his cross-examination, a suggestion was put

to him that accused No.2-Balvir Singh had given testimony against

PW-3 and he has enmity towards Balvir Singh and his family and

therefore, he is falsely deposing against the accused Nos.1 to 3

who are real  brothers.   It  was also suggested to PW-3 that his

father has registered a case against accused Harnam Singh and

Balvir Singh and that they were acquitted in the said case about

which PW-3 denied having any knowledge.  PW-3 has denied being

involved  in  any  criminal  case;  however,  he  has  admitted  that

proceedings under Section 110 Cr.P.C. were initiated against him.

Testimony of PW-3 cannot be doubted on the ground that he is

involved in  criminal  cases  or  that  he is  inimical  towards Balvir

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Singh and Harnam Singh.  It is pertinent to note that name of PW-

3 has  been mentioned even in  the  FIR that  he had gone with

deceased  Mohan  on  the  motor  cycle.  The  antecedents  of  the

prosecution  witnesses  cannot  be  the  ground for  doubting their

version.   This  is  all  the  more  so,  when the  courts  below have

recorded concurrent findings of fact holding that the testimony of

the witnesses is credible and acceptable.   

18. Re: Contention – Mention of Inquest Number in the FIR

The learned counsel  appearing for  appellant  Harnam Singh has

drawn our attention to the FIR - Column No.11, Inquest Report –

Case No.10/98 and contended that the FIR contains the Inquest

No.10/98 whereas the number of FIR has not been mentioned in

the Inquest Report.  It was urged that the very mention of Inquest

Number  in  the  FIR  and  non-mentioning  of  FIR  Number  in  the

Inquest  Report  raises  serious  doubt  about  the  time  and  the

manner of occurrence as alleged by the prosecution.  Refuting the

said  contention,  the  learned  counsel  appearing  for  the  State

submitted that the FIR which gives an option to mention inquest

number  as  against  that  column  in  the  printed  form,  inquest

number was handwritten and it cannot be said that the FIR was

registered subsequent to the inquest.   

19. FIR  is  a  printed  format  which  contains  Column  No.11  –

“Inquest Report”.  Column No.11 of the FIR, of course, contains the

Inquest  No.10/98.  Merely  because  the  FIR  contains  inquest

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number, it cannot be said that the FIR was registered subsequent

to the inquest.  In State of Uttar Pradesh v. Ram Kumar and

others (2017)  14  SCC 614,  the  Supreme Court  held  that  “the

mere  fact  that  on  the  inquest  report  FIR  No.  was  written  by

different ink cannot be the basis for observing that the FIR was

ante-timed or  ante-dated”.   On  being  questioned,  Investigating

Officer S.D. Khan (PW-14) has stated that he has registered the

Inquest Report 10/98 with regard to the death of deceased Mohan

under                     Section 174 Cr.P.C.  As seen from the evidence

of  PW-2,  after  the  occurrence,  dead  body  of  Mohan  was  lying

twenty yards away from the road and he went to the police station

to lodge the complaint via Lallu fourway and Sarvodya fourway.

The inquest being done at the spot and FIR being registered at the

Police Station under Sections 302, 506B, 341, 294, 323, 34 IPC and

Section  3(2)(V)  of  Scheduled  Castes  and  Scheduled  Tribes

(Prevention of Atrocities) Act, mention of inquest number in the FIR

does  not  affect  the  prosecution  case  nor  does  it  affect  the

credibility of the eye witnesses.

20. Delay  in  FIR –  For  the  occurrence  on  11.03.1998  at

05.30  PM,  FIR  No.114/98  was  registered  on  the  same  day  at

06.00  PM.   As  per  the  evidence  of  Constable  Radhey  Shyam

(PW-10), FIR was handed over before the Court of JMFC, Bina on

12.03.1998.  So far as the contention regarding delay in receipt of

the FIR in the court, the trial court held that not sending the FIR

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immediately  to  the  Court  after  its  registration,  cannot  be  put

against the prosecution case since after 05.30 PM, the court timing

gets over and in these circumstances, production of FIR before the

Court on the next day during the court timings does not indicate

that the FIR is ante dated. The case of prosecution, in our view,

cannot be doubted on the ground of delay in receipt of the FIR in

the court.

21. Re: Contention -  Inconsistency between the Medical

Evidence and Oral Evidence – In his evidence, PW-2 has stated

that Harnam Singh fired shot at Mohan’s face and PWs 3 and 13

stated  that  Harnam Singh  fired  at  the  left  eye  of  Mohan.   As

pointed out earlier, in his evidence, Dr. P.K. Jain (PW-9) stated that

the  cornea  and  remaining  part  of  the  left  eye  was  completely

missing and a bullet was found near the cerebellum.  Gun powder

was found present in the eyes of the deceased.  PW-9 opined that

the cause of death was due to damage of brain centre present in

the skull due to injuries caused by the cartridge which resulted in

stoppage of heart beat and respiration.  As per the opinion of Dr.

Jain (PW-9), death was caused mainly due to bullet hit in the brain.

On being questioned, PW-9 stated that the fire was from a close

distance as seen from the presence of gun powder in the left eye

of the deceased.  Dr. Jain has opined that since there were marks

of gunshot around the left eye, the shot must have been fired from

very close distance of about one foot.  

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22. Contention  of  the  appellant  is  that  PW-2  in  his  evidence

stated  that  Harnam  Singh  was  about  1-2  yards  away  from

deceased Mohan at the time when the bullet was fired.  It  was

therefore contended that the contradictions regarding the distance

from  which  the  accused  Harnam  Singh  fired  at  Mohan  raises

serious doubts about the prosecution case.   

23. Of course, PW-2 has stated that when Harnam Singh fired, he

was at a distance of 1-2 yards away from Mohan; but PWs 3 and

13 have clearly stated that the deceased was held by appellants

Balvir  Singh  and  Bhav  Singh  and  Harnam  Singh  fired  at  the

deceased from a close distance.  As pointed out earlier, accused

Balvir Singh and Bhav Singh were said to be holding the hands of

the deceased and it is possible that the gun shot hit at the eyes of

Mohan.   All  three  eye  witnesses  have  consistently  stated  that

Harnam  Singh  fired  the  gunshot  at  the  face  of  Mohan.   The

variation in the evidence of    PW-2 as to the distance from which

the  bullet  was  fired  cannot  be  said  to  be  fatal  affecting  the

prosecution case.   

24. It has been urged by the learned counsel for the appellant

Harnam Singh that  the doctor  who conducted the  post-mortem

had  not  marked  the  track  of  the  bullet  in  his  report.   It  was

submitted that when the deceased was shot, the position of his

face was upwards  and when the face  is  up,  it  is  doubtful  that

Harnam Singh could have fired at the eyes of the deceased.  As

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pointed out  by the trial  court,  during the course of  scuffle and

when the deceased was running away to save himself, the position

of the face of deceased cannot be ascertained as being upwards or

not so as to doubt the prosecution version that the gunshot hit at

the left  eye of  Mohan.  The above contention advanced on the

basis of the opinion of the doctor cannot affect the oral evidence

of the eye witnesses.   

25. Apart  from  the  gunshot  injuries  which  caused  the  death,

there  were  nine  other  injuries  found  on  the  body  of  deceased

Mohan.  Mohan sustained bruise on the left arm, left side of the

chest; contusion and lacerated wound in the middle of the head

and incised wound on the left  side of the chin.  Dr.  Jain (PW-9)

opined that the injuries sustained by the deceased 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.   Mohan  was  indiscriminately

attacked by accused Bharat Singh with lathi and there is possibility

of  the deceased sustaining injuries  of  different  shapes.   Merely

because deceased Mohan sustained injuries of different shapes, on

the opinionative medical evidence, the consistent evidence of eye

witnesses cannot be doubted.   

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26. It is well settled that the oral evidence has to get primacy

since medical evidence is basically opinionative.  In  Ramanand

Yadav v. Prabhu Nath Jha and others (2003) 12 SCC 606, the

Supreme Court held as under:-  

“17. So  far  as  the  alleged  variance  between  medical evidence and ocular evidence is concerned, it is trite law that oral  evidence has  to  get  primacy and medical  evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the court has to draw adverse inference.”

The same principle was reiterated in  State of U.P. v. Krishna

Gopal and another (1988) 4 SCC 302, where the Supreme Court

held  “that  eyewitnesses’  account  would  require  a  careful

independent assessment and evaluation for their credibility which

should not  be adversely prejudged making any other  evidence,

including medical evidence, as the sole touchstone for the test of

such credibility.”  

27. The  inconsistencies  pointed  out  in  the  evidence  of  eye-

witnesses  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.

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28. Recovery  of  pistol  and  FSL  report  -  Based  on  the

confessional  statement  of  appellant-Harman  Singh,  a  country

made pistol (Article ‘A’) was recovered from the bottom shelf of

the almirah in the house of appellant-Harman Singh. Recovery of

country made pistol from the house of appellant-Harman Singh is

proved by the evidence of IO S.D. Khan (PW-14).

29. Ext.-P30 is the FSL report as per which the pistol (Article ‘A’)

is  a  country  made  pistol  which  was  found  to  be  in  operative

condition  and  the  testing  was  successfully  done.  The  bullet

recovered from the body of deceased Mohan was marked as EB1.

In the FSL report, expert opined that the barrel marks found on the

cartridge were not sufficient for decisive matching. The FSL report

reads as under:-

“Exhibit A1 is one Country Made Pistol, which is made to fire 0.315” bore Cartridge.  It is in working condition. It’s Barrel is found to have remnants of firing. It is not possible to say with scientific certainty the last time this was fired. It can be fired to cause injury likely to cause death.

Exhibit EB1 is one 0.315” bore cartridge like bullet. It is copper jacketed/of soft point and is partially damaged. It does not have marks  of  regular  firing.  It  has  barrel  marks  which  are  not sufficient. Thus in absence of matching it is not possible to say whether this is fired from Exhibit A1 or any other similar pistol like Exhibit A1.”  [underlining added]

From the  FSL  report  (Ext.-P30),  it  is  made clear  that  the  pistol

recovered from accused Harnam Singh was in working condition

and that the fatal  injuries could be caused from using the said

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country made pistol (Article ‘A’) recovered from appellant-Harman

Singh.  

30. Learned counsel appearing for the appellant-Harnam Singh

submitted that as per the FSL report, the experts could not give a

definite opinion that whether the bullet has been fired from the

country  made  pistol  recovered  from appellant-Harman Singh  or

any  other  similar  pistol  like  the  said  pistol.  It  was  therefore,

submitted  that  the  prosecution  has  failed  to  prove  that  the

recovered bullet from the body of deceased has been fired from

the pistol          (Article ‘A’) and therefore, the overt-act of firing

cannot be attributed to appellant-Harnam Singh. In the FSL report,

it is stated that bullet was “a fired and partially damaged Copper

Cartridge/Soft Point Bullet with blood like substance on the same”.

The  FSL  report  further  states  that  the  cartridge  does  not  have

marks  of  regular  rifling  and  the  barrel  marks  found  are  not

sufficient for decisive matching. All that the FSL report states is

that the barrel marks are not sufficient to give decisive matching.

When the case of the prosecution is based on the eye-witnesses,

the indecisive opinion given by the experts would not affect the

prosecution case.

31. The next point falling for consideration is whether the trial

court  and  the  High  Court  were  right  in  convicting  the  accused

Nos.2 and 3 under Section 302 IPC read with Section 34 IPC that

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they have acted in furtherance of common intention in committing

the murder of Mohan.   

32. Common  intention  of  Accused  Nos.2  and  3:- As

discussed earlier, eye witnesses PWs 2, 3 and 13 have consistently

stated that on being attacked by accused Bharat with lathi on the

back, when deceased Mohan ran towards the street, accused No.2-

Balvir Singh and accused No.3-Bhav Singh ran after him and said

to have caught hold of Mohan and at that time, Harnam Singh fired

from the country made pistol on the face of Mohan.  Case of the

prosecution is that accused Nos.2 and 3 were present along with

Harnam Singh and accused Bharat who were armed with pistol and

lathi respectively.   The  appellants  Balvir  Singh  and  Bhav Singh

were  unarmed  and  when  Mohan  ran  towards  the  street,  on

exhortation  by  Harnam  Singh,  accused  Nos.2  and  3  ran  after

Mohan and caught hold of him.   

33. 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

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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.

34. Observing that the inference of common intention is to be

drawn from the conduct of the accused, in Ramesh Singh alias

Phooti v. State of A.P.  (2004) 11 SCC 305, the Supreme Court

held as under:-  

“12. ……. As a general principle in a case of criminal liability it  is  the  primary  responsibility  of  the  person  who  actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal  Code  the  legislature  laid  down  the  principle  of  joint liability in doing a criminal act. The essence of that liability is to  be  found  in  the  existence  of  a  common  intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of  a  common  intention  then  every  person  who  did  the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it  is  very difficult  to procure direct  evidence to prove such intention. Therefore, in most cases it has to be inferred from the  act  like,  the  conduct  of  the  accused  or  other  relevant circumstances  of  the  case.  The  inference can  be gathered

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from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of  injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in  arriving at  the conclusion whether  the accused had the common intention to commit an offence of which they could be convicted.  (See  Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696)”

The decision in  Ramesh Singh  was referred to  in  Balu @ Bala

Subaramaniam and another v.  State (UT of  Pondicherry)

(2016) 15 SCC 471.  

35. In the light of above principles, let us consider whether the

prosecution has proved that accused Nos.2 and 3 had the common

intention  and  acted  in  furtherance  of  the  common  intention.

Initially, there were five accused and the accused were charged

under Sections 147 and 149 IPC along with other charges.  Since

accused Suraj was acquitted of the charges, placing reliance upon

Dhanna  v.  State  of  M.P.  (1996)  10  SCC  79,  the  trial  court

invoked  Section  34  IPC  to  convict  accused  Nos.2  and  3  under

Section 302 IPC read with Section 34 IPC.

36. Whether the courts below were right in convicting accused

Nos.2 and 3 by invoking Section 34 IPC,  is the point  falling for

consideration?

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37. Deceased Mohan and accused Harnam Singh were working

in the railways and regarding the money transactions, there was

enmity between them.  It  is  brought  in  evidence through PW-2

that  2-3  days  prior  to  the  incident,  there  were  arguments  and

quarrel between accused Harnam Singh and deceased Mohan near

the house of PW-2.  Accused No.2-Balvir Singh and accused No.3-

Bhav Singh are the real brothers of accused No.1-Harnam Singh.

Though it is stated that accused Nos.2 and 3 were present along

with accused Harnam Singh, the fact remains that they were not

armed.   After  being  hit  by  accused  Bharat  on  the  back  when

Mohan ran, accused Nos.2 and 3 are alleged to have followed him

and accused Balvir Singh allegedly caught the right arm of Mohan

and accused Bhav Singh held the left arm of Mohan.  It  is also

brought in evidence that accused Bharat was giving lathi blows to

Mohan 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 Harnam Singh 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  Harnam  Singh  and  other

accused Bharat in committing the murder of Mohan.  Conviction of

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accused Nos. 2 and 3 under Section 302 read with Section 34 IPC

is, therefore, liable to be set aside.

38. Conviction  of  the  appellant/accused  No.1  Harnam  Singh

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  and  Criminal  Appeal  No.1119  of

2010 is dismissed.  Accused Harnam Singh shall surrender himself

within  four  weeks  from the  date  of  this  judgment  to  serve the

remaining sentence, failing which, he shall be taken into custody.    

39. Conviction of accused No.2-Balvir Singh and accused No.3-

Bhav Singh under Section 302 IPC read with Section 34 IPC and

Section 341 IPC is set aside and they are acquitted of the charges

under  Section  302  IPC  read  with  Section  34  IPC  and

Section  341  IPC  and  their  appeals  Criminal  Appeal  No.1115  of

2010  and  Criminal  Appeal  No.1116  of  2010  are  allowed.   Bail

bonds  of  the  accused  Balvir  Singh  and  Bhav Singh  shall  stand

discharged.

…...……………………….J.                [R. BANUMATHI]  

                            …...………………………..J. [R. SUBHASH REDDY]

New Delhi; February 19, 2019   

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