Manjit Singh Vs State of Punjab

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Reportabl e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2042 OF 2010

Manjit Singh & Anr. … Appellants versus

State of Punjab & Anr. … Respondents

WITH

CRIMINAL APPEAL NOS. 2276-2278 OF 2010

Amarjot Singh … Appellant

Versus

Manjit Singh and others etc.etc. … Respondents

J U D G M E N T

Dipak Misra, J.

The two appellants, namely, Manjit Singh and Paramjit

Singh, were tried along with three others in ST No. 54 of

2001 before the learned Additional Sessions Judge,

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Kapurthala for the offences punishable under Sections 302

and 307 read with Section 34 of the Indian Penal Code (IPC).

2. The facts which are essential to be stated are that

on 8.11.1998 about 12:00 noon Amarjot Singh, the

complainant, PW-1, along with his younger brother,

Jagmohan Singh, the deceased, was going on a tractor

towards Bholath for some domestic work. Jagmohan Singh

was driving the tractor, whereas Amarjot Singh was sitting

on the left mudguard of the tractor. After they reached

village Pandori Arayiyan, they were stopped by a Maruti car

bearing registration no. PB-10-X 7079, driven by Accused No.

1, Manjit Singh, who parked it on the road in front of the

tractor. On seeing the car, Jagmohan Singh, stopped the

tractor in the middle of the road. Manjit Singh, armed with

a .315 bore rifle, Paramjit Singh, father-in-law of Manjit

Singh, armed with .12 bore gun, Jaswinder kaur, sister of

Manjit Singh, and two unknown persons alighted from the

car. One of the unknown persons was also armed with a .12

bore gun. After alighting from the car, Jaswinder Kaur raised

“lalkara” to eliminate both the sons of Rajinderpal Singh,

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PW-2, father of the deceased, so that they would understand

the consequences of contesting the election of Sarpanch

against them. Jagmohan Singh tried to turn the tractor

towards the left side and at that juncture Manjit Singh fired a

gunshot which hit him on the right cheek as a result of which

he fell down from the tractor in the fields. Paramjit Singh

armed with a .12 bore gun had also fired at the two brothers.

Amarjot Singh jumped from the tractor and received an

injury on his right elbow. He saved himself by taking shelter

behind the back wheel of the tractor. In the meantime,

Rajinderpal Singh, PW-2, who was present at his tube-well

motor situate nearby and Didar Singh s/o Joginder Singh,

who was present in his field near the place of occurrence

reached the spot and witnessed the incident. All the accused

fled away from the scene of crime along with their

respective weapons. Jagmohan Singh and Amarjot Singh

were shifted to Civil Hospital, Bholath, in a car and in the

hospital Jagmohan Singh was declared dead.

3. As the prosecution story further unfurls, the

hospital authorities intimated about the death of Jagmohan

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Singh to the concerned police station whereafter the police

party headed by SI, Swaran Singh, PW-5, arrived at the

hospital and the SI recorded the Statement of Amarjot Singh

on the basis of which a formal FIR was registered. The

investigating agency got the post mortem done, prepared

the site plan, collected the blood stained earth, the blood

stained clothes of the deceased, three empty cartridges of .

315 bore rifle and two empty cartridges of .12 bore from the

spot and each item was put in separate sealed parcels on

the basis of separate memorandum prepared and attested

by the witnesses. After taking appropriate steps, accused

persons were apprehended and the Maruti car, used in the

commission of crime, was seized. A-1, Manjit Singh, while in

custody led to recovery of his licenced rifle .315 bore along

with the cartridges and the licence in the iron box in the

residential house of Jasbir Singh of Village Umarpura, one of

his relatives. Similarly Paramjit Singh, A-2, made a

disclosure that .12 bore licenced gun used by him had been

taken by Sukhpal Singh of Kaki Pind. As per his statement a

bag containing the remaining cartridges were kept

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concealed in the iron box under the clothes in his residential

house. On the basis of the said statement, recovery of the

iron box, the lock, the cartridges and the licence were

recovered. On the basis of disclosure statement of Sukhpal

Singh, A-3, who had taken .12 bore gun from Paramjit Singh,

A-2, led to the place of discovery of the weapon hidden

underneath the heap of chaff in the Haveli of Manjit Singh, A-

1. The seized articles were sent to the FSL at Chandigarh.

The investigating agency, after examining the witnesses and

completing the other formalities, placed the charge-sheet

before the learned Magistrate, who, in turn, committed the

matter to the Court of Session.

4. The accused persons pleaded innocence and false

implication due to animosity and on that basis claimed to be

tried.

5. Be it noted, during the trial an application was

moved under Section 319 of the Code of Criminal Procedure,

1973 (for short “the CrPC”) to summon Jaswinder Kaur as an

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accused which was allowed, and during trial she availed the

same plea and claimed to be tried.

6. The prosecution, in order to bring home the

charges against the accused persons, examined 13

witnesses and got marked number of documents. The

principal witnesses are Amarjot Singh, PW-1, the informant,

Rajinderpal Singh, PW-2, father of the deceased, who was

cited as an eye-witness, Dr. J.N. Dutta, PW-3, who had

conducted the post mortem, Swaran Singh, PW-5, the

Investigating Officer, and Dr. Narinderpal Singh, PW-7, who

had examined Amarjot Singh. The rest of the witnesses are

formal witnesses.

7. In their statements under Section 313 of the CrPC

the plea of the accused Manjit Singh and Paramjit Singh was

that they were arrested from their house on 9.11.1998 and

the rifle and gun were also taken into police possession. In

essence, they pleaded innocence and false implication. As

far as Sukhpal Singh, A-3, is concerned, his version was that

he had filed a writ petition against S.S.P. Dinkar Gupta, D.S.P

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Harmail Singh and S.I. Surjit Singh because he was illegally

detained by the police earlier and, therefore, the police had

conducted a raid in his house and falsely implicated him in

the case. He had also stated that Manjit Singh and other

were not known to him. The plea of Jaswinder Kaur was to

the effect that after the death of her husband in 1990, she

was residing at Jalandhar with her daughter and was

suffering from heart ailments and had also suffered a brain

haemorrhage. She also took the plea that on the date of

occurrence she was away at Harnamdasspur to attend the

cremation of a relative. Her further plea was that she had

been falsely implicated on account of dispute relating to

Panchayat election which was contested by her sister-in-law,

wife of Manjit Singh.

8. On the basis of the ocular and documentary

evidence brought on record the trial court found that the

prosecution had been able to prove its case beyond all

reasonable doubt against Manjit Singh, A-1, Paramjit Singh,

A-2, and Sukhpal Singh, A-3, for committing the murder of

Jagmohan Singh on 8.11.1998. He also found them guilty of

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firing at Amarjot Singh with the intention of committing

murder and, accordingly, recorded conviction under Section

302/307 read with Section 34 of the Indian Penal Code (IPC)

and sentenced each of them to undergo rigorous life

imprisonment and to pay a fine of Rs.5000/- with a default

clause under Section 302 IPC and for one year under Section

307 IPC and to pay a fine of Rs.2000/- with the default

clause. It may be noted that Sukhpal Singh was also

separately convicted under Section 307 IPC. The trial court

acquitted all the accused persons of the charges under

Section 148 IPC. As far as Kamal Kumar, A-4 and Jaswinder

Kaur, A-5, are concerned, he recorded an acquittal in respect

of all the charges on the ground that the prosecution had not

been able to bring home the charges against them.

9. Assailing the aforesaid judgment of conviction and

order of sentence Manjit Singh, Paramjit Singh and Sukhpal

Singh preferred Criminal Appeal No. 628-DB of 2001 and

Sukhpal Singh challenged his individual conviction under

Section 307 IPC in Criminal Appeal No. 621-DB of 2001. The

acquittal of the accused persons was challenged by the

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informant Amarjot Singh in Criminal Revision No. 680 of

2002.

10. The High Court, by a common judgment and order

dated 12.5.2009 which is impugned herein, affirmed the

conviction of Manjit Singh and Paramjit Singh. However, as

far as Sukhpal Singh is concerned, taking note of the

material brought on record, doubted his presence at the

scene of occurrence and, accordingly gave him the benefit of

doubt. As he was acquitted in the main appeal, the appeal

preferred by him assailing the conviction under Section 307

IPC was treated to have been rendered infructuous. In view

of the decisions rendered in the appeal the criminal revision,

preferred by Amarjot Singh, the brother of the deceased,

stood dismissed.

11. Questioning the legal propriety of the said

judgment and order Manjit Singh and Paramjit Singh have

preferred Criminal Appeal No. 2042 of 2010 by special leave

and the informant has preferred Criminal Appeal Nos. 2276-

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2278 of 2010 on obtaining permission to challenge the

judgment of acquittal.

12. We have heard Mr. U.U. Lalit, learned senior

counsel for the convicted appellants, Mr. Jayant K. Sud,

learned Additional Advocate General for the State of Punjab,

Mr. S.C. Paul, learned counsel for the informant in his

criminal appeals and Mr. J.P. Dhanda, learned counsel for the

respondent No. 5 in criminal appeal preferred by Amarjot

Singh.

13. Criticizing the appreciation of evidence and the

findings recorded by the learned trial Judge as well as by the

High Court Mr. Lalit, learned senior counsel, has contended

that two crucial witnesses, namely, Didar Singh, an

independent eye witness, who had not only witnessed the

incident but had brought the car in which the deceased was

shifted to the hospital and the site plan was prepared at his

instructions, and Malkiat Singh, who had brought the

deceased to the hospital, have not been examined and their

non-examination creates a grave doubt about the version set

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forth by the prosecution. His further submission is that three

others, namely, Kamal Kumar, Jaswinder Kaur and Sukhpal

Singh were falsely roped in and that supports the plea

advanced by the defence that there had been false

implication of the accused persons in the crime. It is

canvassed by him that the presence of PWs-1 and 2 at the

place of occurrence is extremely doubtful, for according to

the prosecution, seven gunshots were fired but none had hit

the PW-1. That apart, PWs-1 and 2 claimed to have taken

the deceased to the hospital in a condition when the seats of

the car and their clothes were stained with blood, but the

Investigating Officer, PW-5, has categorically deposed that

he did not notice the clothes of PWs-1 and 2 to say that

there were any blood stains on their clothes.

14. The learned senior counsel would submit that their

carrying of the deceased to the hospital is also surrounded

with immense suspicion inasmuch as the doctor who had

conducted the post mortem has clearly stated that it was

Malkiat Singh who had brought the deceased to the hospital

and no document has been brought on record that PWs-1

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and 2, who claimed to be eye-witnesses, had brought the

deceased to the hospital. It is argued that the Investigating

Officer did not find any pellets marks on the tractor and he

did not take into possession the clothes and blood samples

on the car seats for chemical examination, which go a long

way to create a dent in the prosecution story. He has further

emphatically put forth that when the tractor had turned

towards left, it is difficult to discern that the deceased

sustained injury in the right cheek and the person sitting on

the left mudguard did not get affected. It is next submitted

by him that there has been blackening of wounds which

would indicate that the injuries were caused from firing from

a close range but the oral testimonies of PWs-1 and 2

evinces that the accused Manjit Singh had fired from the

distance of one and half “karms”. The last plank of

argument of Mr. Lalit is that the appellant No. 2 could not

have been convicted in aid of Section 34 IPC since he had

not participated in the assault on the deceased, and further

there was no recovery of the alleged .12 bore rifle.

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15. Mr. Jayant K. Sud, learned Additional Advocate

General for the State of Punjab, supporting the judgment of

the High Court, has contended that the reappreciation of the

evidence by the High Court while exercising appellate

jurisdiction, cannot be faulted. The learned counsel would

further submit that the learned trial Judge as well as the High

Court has correctly placed reliance on the testimonies of

PWs-1 and 2 as they are unimpeachable. It is also urged by

him that the corroboration of injury by the medical evidence,

the factum of recovery of weapons and other circumstances

clearly establish the guilt of the accused and hence, the

analysis made by the High Court can really not be flawed.

16. Mr. J.P. Dhanda, learned counsel for the informant,

in support of the appeal preferred by him, contended that

the High Court has fallen into grave error by affirming the

acquittal recorded by the learned trial Judge in respect of

two accused and has further committed serious illegality by

acquitting Sukhpal Singh, A-3, despite the irreproachable

evidence against him. It is submitted by him that the

prosecution has clearly and specifically brought the motive

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into the forefront and despite definite roles being attributed

to each of the accused persons, the learned trial Judge

acquitted the accused persons, namely, Kamal Kumar, A-4,

and Jaswinder Kaur, A-5 and the High Court totally

erroneously gave the stamp of approval to the same.

17. The first submission of Mr. U.U. Lalit is that the

non-examination of two crucial witnesses, namely, Didar

Singh and Malkiat Singh creates a great doubt in the

prosecution version which makes it absolutely incredible. On

a perusal of the material on record it is clear that Didar

Singh had come to the spot along with Rajinderpal Singh,

PW-2, and had arranged a car to take the deceased and the

injured to the hospital and at his instance the site plan was

prepared. As far as Malkiat Singh is concerned, the assertion

is that he had carried the deceased and the injured to the

hospital but the evidence in this regard is extremely sketchy.

Be that as it may, thrust of the matter is whether non-

examination of these two witnesses materially affects the

trustworthiness of the prosecution version or put it

differently whether it really creates a dent in the testimony

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of the other eye witnesses and the surrounding

circumstances on which the prosecution has placed reliance

to bring home the guilt of the accused.

18. In this context, a passage from Masalti v. State

of U.P.1 may fruitfully be reproduced:-

“In the present case, however, we are satisfied that there is no substance in the contention which Mr Sawhney seeks to raise before us. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court. It is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised.”

19. In Namdeo v. State of Maharashtra2, it has

been laid down that neither the legislature (Section 134 of

the Evidence Act, 1872) nor the judiciary mandates that

1 AIR 1965 SC 202 2 (2007) 14 SCC 150

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there must be particular number of witnesses to record an

order of conviction against the accused. The legal system in

this country has always laid emphasis on value, weight and

quality of evidence rather than on quantity, multiplicity or

plurality of witnesses.

20. In Bipin Kumar Mondal v. State of W.B.3 the

Court reiterated the principle stating that it is not the

quantity, but the quality that is material. The time-honoured

principle is that evidence has to be weighed and not

counted. The test is whether the evidence has a ring of truth,

is cogent, credible, trustworthy and reliable.

21. In State of H.P. v. Gian Chand4 it has been

ruled that non-examination of a material witness is again not

a mathematical formula for discarding the weight of the

testimony available on record howsoever natural,

trustworthy and convincing it may be. The charge of

withholding a material witness from the court levelled

against the prosecution should be examined in the

3 (2010) 12 SCC 91 4 (2001) 6 SCC 71

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background of the facts and circumstances of each case so

as to find whether the witnesses are available for being

examined in the court and were yet withheld by the

prosecution.

22. In Takhaji Hiraji v. Thakore Kubersing

Chamansing5 the Court has opined that it is true that if a

material witness, who would unfold the genesis of the

incident or an essential part of the prosecution case, not

convincingly brought to fore otherwise, or where there is a

gap or infirmity in the prosecution case which could have

been supplied or made good by examining a witness who

though available is not examined, the prosecution case can

be termed as suffering from a deficiency and withholding of

such a material witness would oblige the court to draw an

adverse inference against the prosecution by holding that if

the witness would have been examined it would not have

supported the prosecution case. On the other hand if already

overwhelming evidence is available and examination of

other witnesses would only be a repetition or duplication of

5 (2001) 6 SCC 145

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the evidence already adduced, non-examination of such

other witnesses may not be material. In such a case the

court ought to scrutinise the worth of the evidence adduced.

The court of facts must ask itself—whether in the facts and

circumstances of the case, it was necessary to examine such

other witness, and if so, whether such witness was available

to be examined and yet was being withheld from the court?

If the answer be positive then only a question of drawing an

adverse inference may arise. If the witnesses already

examined are reliable and the testimony coming from their

mouth is unimpeachable the court can safely act upon it,

uninfluenced by the factum of non-examination of other

witnesses.

23. In Dahari v. State of U.P.6 while discussing

about the non-examination of material witness, the Court

has ruled that when the witness was not the only competent

witness who would have been fully capable of explaining the

factual situation correctly, and the prosecution case stood

fully corroborated by the medical evidence and the

6 (2012) 10 SCC 256

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testimony of other reliable witnesses, no adverse inference

could be drawn against the prosecution. Similar principle

has been reiterated in Harivadan Babubhai Patel v.

State of Gujrat7.

24. From the aforesaid exposition of law, it is quite

clear that it is not the number and quantity, but the quality

that is material. It is the duty of the Court to consider the

trustworthiness of evidence on record which inspires

confidence and the same has to be accepted and acted upon

and in such a situation no adverse inference should be

drawn from the fact of non-examination of other witnesses.

That apart, it is also to be seen whether such non-

examination of a witness would carry the matter further so

as to affect the evidence of other witnesses and if the

evidence of a witness is really not essential to the unfolding

of the prosecution case, it cannot be considered a material

witness (see: State of U.P. v. Iftikhar Khan and others8).

25. In the case at hand we find the plea taken is that it

was Malkiat Singh, who had taken the deceased and injured 7 (2013) 7 SCC 45 8 (1973) 1 SCC 512

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to the hospital and, therefore he is a material witness. The

question that is required to be put whether the evidence of

the said witness is essential to record a conviction or his

non-examination would affect the trustworthiness of PWs-1

and 2 and other witnesses. As we perceive, it can

reasonably be stated that Malkiat Singh is not a material

witness in that sense. As far as Didar Singh is concerned,

tested on the parameters of the authorities referred to

above, if the testimony of other witness inspires confidence,

his non-examination would not create a concavity in the

case of the prosecution. We may state here that the

acceptance of testimonies of PWs-1 and 2, in the case at

hand, would stand on their own and would not depend upon

the version that could have come from Didar Singh. It is so

as he is not the only competent witness who would have

been fully capable of explaining the factual situation

correctly. Quite apart from the above, it is worth noting here

that during the cross-examination of investigating officer,

none of the accused persons had voiced their concerns by

raising any apprehension regarding non-examination of the

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material witnesses. We may repeat that on a studied

scrutiny we find that, in fact, there is no cross-examination in

that regard. Thus, the aforesaid submission of the learned

counsel is not acceptable.

26. The next limb of submission of the learned senior

counsel for the appellant is that on apposite appreciation of

the evidence in entirety it is clearly demonstrable that the

falsehood rings in the statements of all the witnesses.

Bolstering the said aspect, it is urged by him that the

prosecution has falsely implicated three accused persons

including a lady and that shows the extent of falsehood that

has been taken recourse to by the informant, PW-1, and

other witnesses. In essence, it is his proponement that

testimonies of so-called eye-witnesses cannot be regarded

as cogent, reliable and trustworthy.

27. It is well settled in law that unless the entire case

of the prosecution suffers from infirmities, discrepancies and

material contradictions and the prosecution utterly fails to

establish its case, acquittal of some accused persons cannot

be a relevant facet to determine the guilt of other accused

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persons. In Dalbir Singh v. State of Haryana9, a two-

Judge Bench reproduced para 51 from Krishna Mochi and

Others v. State of Bihar10 wherein it has been stated that

the maxim falsus in uno, falsus in omnibus has no

application in India and the witnesses cannot be branded as

liars. The maxim falsus in uno, falsus in omnibus (false in

one thing, false in everything) has not received general

acceptance nor has this maxim come to occupy the status of

rule of law. It is merely a rule of caution. All that it amounts

to is, that in such cases testimony may be disregarded, and

not that it must be disregarded. Thereafter, the Bench

proceeded to state as follows:-

“Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab11.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be

9 (2008) 11 SCC 425 10 (2002) 6 SCC 81 11 AIR 1956 SC 460

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feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P.12 and Ugar Ahir v. State of Bihar13.)”

28. In Yanob Sheikh alias Gagu v. State of West

Bengal14, after referring to Dalbir Singh (supra) the Court

observed that the acquittal of a co-accused per se is not

sufficient to result in acquittal of the other accused. The

court has to screen the entire evidence and does not extend

the threat of falsity to universal acquittal. The court must

examine the entire prosecution evidence in its correct

perspective before it can conclude the effect of acquittal of

12 (1972) 3SCC 751 13 AIR 1965 SC 277 14 (2013) 6 SCC 428

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one accused on the other in the facts and circumstances of a

given case.

29. In Balraje alias Trimbak v. State of

Maharashtra15 a two-Judge Bench has observed that even

if acquittal is recorded in respect of the co-accused on the

ground that there were exaggerations and embellishments,

yet conviction can be recorded if the evidence is found

cogent, credible and truthful in respect of another accused.

30. Keeping the aforesaid principle in view we are

required to test the acceptability of the evidence on record.

The learned trial Judge has acquitted Jaswinder Kaur on the

ground that she had not contested any election; that she

was not even residing in the village in which the elections

were held; and that she was residing in her own house at

Jalandhar. The allegation in the FIR that she had given

lalkara had not really got support from other witnesses and,

hence, her presence at the spot was doubted. As far as

Kamal Kumar is concerned, in the opinion of the learned trial

Judge he had no concern with the accused persons or the

15 (2010) 6 SCC 673

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deceased as he belongs to Ram Mandi in Jalandhar

Cantonment. The learned trial Judge, in essence, has

extended benefit of doubt to him inasmuch as he had

neither participated in the occurrence nor had he shared the

common intention. The High Court has acquitted Sukhpal

Singh on the ground that he was not named in the FIR and

further he had not carried any weapon. The High Court

opined that he had been implicated because he had filed a

writ petition against the police officers. If the evidence is

scrutinized in proper perspective, it is clear that there has

been some embellishment by the informant and other

witnesses but giving such embroidery to a story would not

make the whole prosecution version untruthful one. It can

be treated to be an exaggeration by the prosecution but the

consequence cannot be regarded as fatal. Therefore, we are

not persuaded to accept the said submission canvassed on

behalf of the appellants.

31. The next contention is that the presence of two

eye-witnesses, namely, PWs-1 and 2, at the scene of

occurrence is gravely doubtful. It has been urged that the

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said two witnesses could not have been present at the spot

as their statement that they had taken the deceased to the

hospital has been belied by the testimony of autopsy

surgeon; their blood stained clothes had not been seized;

and PW-1, who was sitting on the left mudguard of the

tractor, had not received any serious injury despite the

tractor had turned towards the left. To appreciate the said

contention we have bestowed our anxious consideration and

scrutinized the evidence on record. The plea that Malkiat

Singh had alone brought the deceased and the injured to the

hospital cannot be accepted to be correct. PW-8, Dr.

Narender Singh, who had treated Amarjot Singh, had clearly

stated that the deceased was brought dead to the hospital

with the alleged history of gunshot injuries. At that time he

had treated Amarjot Singh. In the cross-examination, he has

clearly deposed that the dead body was brought to the

hospital at 12.40 p.m. and Amarjot Singh came to the

hospital at 12.40 p.m. That apart, it can be said with

certitude that whether Amarjot Singh accompanied or not

really does not affect the prosecution case. As far as non-

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seizure of the blood-stained clothes and blood stains from

the seat of the car are concerned, it does not create a dent

in the prosecution version. In this context, the authority in

State of Rajasthan v. Arjun Singh and others16 can

profitably be referred to. In the said decision the Court has

opined that absence of evidence regarding recovery of used

pellets, bloodstained clothes, etc. cannot be taken or

construed as no such occurrence had taken place. It has

been further observed that when there is ample

unimpeachable ocular evidence and the same has received

corroboration from the medical evidence, even the non-

recovery of weapon does not affect the prosecution case. In

the case at hand it is perceptible that PWs-1 and 2, brother

and father of the deceased, have deposed in a vivid manner

about the culpability of the accused persons in the crime.

The autopsy surgeon, PW-3, has clearly opined that the

deceased had died because of gunshot injuries. The FSL

report, Ext. P-AM/1, states with equal clarity that one

cartridge was fired from left barrel of DBBL gun No. 56088,

16 (2011) 9 SCC 115

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the other cartridge from its right barrel and three cartridges

were fired from the rifle No. AB 97/5473. It is also brought

out in the evidence the gun and the rifle were sent to the

Forensic Science Laboratory in sealed parcels. As per the

report the shots were fired from the weapons sent to the

laboratory. It has been established by cogent evidence that

the weapons belonged to the accused-appellants and

licenses were issued in their favour. Thus, the ocular

testimony of PWs-1 and 2 has received clear corroboration

from the medical evidence as well as from the report of the

FSL.

32. Learned counsel for the appellants has also

submitted that wounds would indicate that the shots were

fired from a close range but the oral testimony is contrary to

the same. That apart, he submits that the person sitting on

the left mudguard would have been affected as the tractor

turned towards the left and, more so, when the deceased

had sustained injury on the right cheek. In our considered

opinion, these kind of discrepancies are bound to occur

when an occurrence of the present nature takes place and

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one cannot expect the witnesses to state with precision.

Needless to emphasise, on these counts the prosecution

version cannot be held to be unbelievable and it cannot be

held that the prosecution has not been able to establish the

charges beyond reasonable doubt. It is because judicial

evaluation of the evidence has to be appropriate regard

being had to the totality of the facts and circumstances of

the case and not on scrutiny in isolation and further the

concept of proof beyond reasonable doubt cannot be made

to appear totally unrealistic. In this context, we may

profitably reproduce a passage from Inder Singh and

another v. The State (Delhi Administration)17: -

“Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal case, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to

17 (1978) 4 SCC 161

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escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. Judicial quest for perfect proof often accounts for police presentations of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic.”

33. Thus analysed, the submission in this regard

leaves us unimpressed and, accordingly, we repel the same.

34. The last plank of proponement of Mr. Lalit is that

the appellant No. 2 could not have been convicted in aid of

Section 34 IPC since he had not participated in the assault

on the deceased. Apart from participation, he has also

emphasised on non-recovery of alleged .12 bore rifle. On a

perusal of the evidence of PWs 1 and 2 it is perceptible that

Paramjit Singh was named in the FIR and he had

accompanied Manjit Singh, his son-in-law. There has been

seizure of .12 bore rifle which has been proven to have

belonged to Paramjit Singh and the cartridges that have

been recovered from the spot have been proven to have

been fired from the .12 bore rifle that belonged to Paramjit

Singh. There is a distinction in the case of Sukhpal Singh

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and Kamal Kumar on one hand and Paramjit Singh on the

other. Sukhpal Singh was not named in the FIR. There was

a litigation going on between him and the police officers.

Kamal Kumar was not known to any of the witnesses. There

is clear evidence that Paramjit Singh had fired from his .12

bore rifle but it had not hit anyone. From the material

brought on record it is vivid that he had gone along with

Manjit Singh being armed with the weapon. The submission

that is advanced is that he had not participated in the

occurrence and, therefore, it could not be said that he had

shared the common intention. In this context, we may refer

to a three-Judge Bench decision in Shreekantiah Ramayya

Munipalli and another v. State of Bombay18, wherein it

has been ruled thus: -

“.... it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the

18 AIR 1955 SC 287

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offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by S. 109, and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter.

It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

[Emphasis supplied]

35. In the case of Iftikhar Khan (supra) another

three-Judge Bench referred to Mahbub Shah v. King

Emperor19 and thereafter reiterated the principles stated in

Pandurang, Tukia and Bhillia v. State of Hyderabad20

wherein it has been stated that :-

“at bottom, it is a question of fact in every case and however similar the circumstances, facts in

19 AIR 1945 PC 118 20 (1955) 1 SCR 1083

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one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time- honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”.

36. In Tukaram Ganpat Pandare v. State

Maharashtra21 the Court opined thus: -

“Criminal sharing, overt or covert by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.”

37. In Krishnan and another v. State of Kerala22,

Hansaria, J., in his concurring opinion, stated thus: -

“15. Question is whether it is obligatory on the part of the prosecution to establish commission of an overt act to press into service Section 34 of the Penal Code. It is no doubt true that the court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. Question is whether an overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this section gets attracted when “a criminal act is done by several persons

21 AIR 1974 SC 514 22 (1996) 10 SCC 508

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in furtherance of the common intention of all”. What has to be, therefore, established by the prosecution is that all the persons concerned had shared the common intention. Court’s mind regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipso loquitur.”

Be it noted, in the said case one of the accused had not

caused any injury to the deceased.

38. In Surendra Chauhan v. State of M.P.23, the

Court opined that the existence of a common intention can

be inferred from the attending circumstances of the case

and the conduct of the parties. No direct evidence of

common intention is necessary. For the purpose of common

intention even the participation in the commission of the

offence need not be proved in all cases. Thereafter, the

learned Judges proceeded to state that to apply Section 34

IPC apart from the fact that there should be two or more

accused, two factors must be established: (i) common

intention, and (ii) participation of the accused in the

commission of an offence. If a common intention is proved 23 (2000) 4 SCC 110

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but no overt act is attributed to the individual accused,

Section 34 will be attracted as essentially it involves

vicarious liability but if participation of the accused in the

crime is proved and a common intention is absent, Section

34 cannot be invoked. In every case, it is not possible to

have direct evidence of a common intention. It has to be

inferred from the facts and circumstances of each case.

39. Regard being had to the aforesaid principles, we

shall proceed to analyse the fact-situation in the present

case. On a scrutiny of the evidence we find that the

appellant No. 2 had accompanied appellant No. 1 and was

present at the spot; that he had carried a weapon; that it has

been established by the prosecution that the cartridges had

been fired from his gun; and that both the appellants are

closely related. Thus, the cumulative facts would clearly

establish that the appellant No. 2 shared the common

intention with the appellant No. 1. We will be failing in our

duty if we do not notice the authority, namely, Ramashish

Yadav and others v. State of Bihar24, which has been

24 (1999) 8 SCC 555

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commended to us by Mr. Lalit. In the said case, the Court,

after dealing with the applicability of Section 34 IPC, noted

the fact that two accused-appellants caught hold of the

deceased and thereafter, other accused persons came and

assaulted him with ‘gandasa’ on account of which the

deceased died and hence, they could not be roped in with

the aid of Section 34 IPC. In our considered opinion the

discussion in the said judgment has to be confined to the

facts of the said case and cannot be applied as a rule.

40. In view of our aforesaid analysis, the criticism

advanced by Mr. Lalit that the appellant No. 2 could not have

been convicted in aid of Section 34 IPC, is not well founded.

41. Presently, we shall proceed to deal with the appeal

preferred by the informant. We have already noted that the

learned trial Judge has categorically opined that the accused

persons, namely, Kamal Kumar and Jaswinder Kaur, were not

present at the scene of occurrence. Jaswinder Kaur was

arrayed as an accused on the basis of an application

preferred under Section 319 of the Code of Criminal

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Procedure and host of material has been brought on record

to establish the plea of the defence that she had not

contested the election and she was not present at the scene

of occurrence. On a studied scrutiny of the evidence, the

learned trial Judge has given credence to the same. As far

as Kamal Kumar is concerned, he has nothing to do either

with the deceased or the accused persons as he belongs to a

different village and further he had not carried any weapon.

The High Court has acquitted Sukhpal Singh on the

foundation that there was animosity between the police

officers and Sukhpal Singh and he had not carried any

weapon. Thus, the view expressed by the learned trial Judge

in acquitting Jaswinder Kaur and Kumar Kumar and further

the acquittal recorded by the High Court acquitting Sukhpal

Singh is based on cogent reasoning and, in our considered

opinion, it is a plausible view. Needless to emphasise that

once a plausible view has been expressed and there has

been proper appreciation of the evidence on record, the

acquittal does not warrant any interference.

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42. In view of the above premised reasons, all the

appeals are dismissed.

……………….……….J. [Dipak Misra]

……………….……….J. [Vikramajit Sen]

New Delhi; September 13, 2013.

MANJIT SINGH Vs STATE OF PUNJAB

MANJIT SINGH Vs STATE OF PUNJAB