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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 758 OF 2004

Bastiram ....Appellant

Versus

State of Rajasthan       ....Respondent

WITH

CRIMINAL APPEAL NO. 403  OF 2014 (Arising out of Special Leave Petition (Crl.) No.5240 of 2004)

AND

CRIMINAL APPEAL NO. 759 OF 2004

J U D G M E N T

Madan B. Lokur, J.

Leave granted in S.L.P. (Crl.) No.5240 of 2004.

2. The  question  for  our  consideration  is  whether  there  is  any  

evidence  that  would  warrant  setting  aside  the  conviction  of  the  

appellants by the Trial Court and affirmed by the High Court. In our  

opinion, the answer is in the negative and we uphold the conviction of  

Crl. Appeal No. 758 of 2004 etc. Page 1 of 23

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the  appellants  for  an  offence  punishable  under  Section  302  of  the  

Indian Penal Code read with Section 34 thereof.  

The facts: 3. On 20th May, 1995 at about 7.15 p.m. Tara Chand, Station House  

Officer in Police Station Nokha, District Bikaner in Rajasthan received a  

cryptic  telephonic  message.   The  message  was  from  an  unknown  

person and was to the effect that in Ward No.2 in village Nokha, Ram  

Pratap and Sohan Lal (PW-4) who are real brothers were involved in a  

fight.  Several  others had joined in  and firearms,  lathis,  barchis  and  

other weapons were used in the fight.  It was also informed that two  

persons had died in the incident.

4. Tara Chand reduced the information in  writing in a  roznamcha  

and then reached the place of occurrence along with some other police  

officers.

5. At the place of occurrence,  Sohan Lal  gave a  parcha bayan to  

Tara  Chand  at  about  8.30  p.m.   Sohan  Lal  stated  that  his  brother  

Genaram (PW-1) had installed a  dharam kanta or  a weighbridge on  

Roda  Road  and  about  five  years  later  Ram Pratap  also  installed  a  

weighbridge on the same road.  As a result of the installation of the  

Crl. Appeal No. 758 of 2004 etc. Page 2 of 23

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second  weighbridge,  the  relationship  between  Genaram  and  Ram  

Pratap was not cordial.

6. Sohan Lal further stated that sometime between 6.30 p.m. and  

6.45 p.m., he and Om Prakash (PW-3 – son of Genaram) were sitting in  

a  temple near  his  (Sohan Lal’s)  house.   At  that  time his  two sons,  

namely, Ram Narain (hereafter referred to as deceased Ram Narain)  

and Mohanlal (hereafter referred to as deceased Mohanlal) came out of  

his house and went towards Ram Pratap’s house. When they were near  

his house, they were attacked by the four appellants, that is, Bastiram,  

Mohan  Lal,  Ramnarayan  and  Banwari.   These  four  appellants  were  

armed with  pistols.   Also  participating  in  the  attack  were  Mangilal,  

Ramjus, Hariram, Ram Pratap, Bhagwanaram and Maniram who were  

armed with either a barchi or a jayee or a sela.

7. Sohan Lal further stated that his two sons, deceased Ram Narain  

and deceased Mohanlal, were surrounded by the ten persons aforesaid  

who made a hue and cry that they should be killed.  Thereupon Om  

Prakash  and  Sohan  Lal’s  two  other  sons,  namely,  Rameshwarlal  

(hereafter referred to as deceased Rameshwarlal) and Rajaram (PW-

10) rushed towards the site.

8. It was further stated by Sohan Lal that appellant Banwari fired at  

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deceased  Mohanlal;  appellant  Bastiram  fired  at  deceased  

Rameshwarlal;  appellant  Ramnarayan  fired  at  injured  Rajaram  and  

appellant Mohan Lal fired at deceased Ram Narain.

9. Sohan Lal also stated that deceased Mohanlal died on the spot  

while injured Rajaram, Ram Narain and Rameshwarlal were taken to a  

hospital.  Ram  Narain  and  Rameshwarlal  later  succumbed  to  their  

injuries.

10. Before his death on 22nd May, 1995 deceased Rameshwarlal gave  

a  dying  declaration  on  21st May,  1995.  In  his  dying  declaration  

deceased Rameshwarlal  stated that  appellant  Bastiram had fired at  

deceased Ram Narain who died on the spot.  He stated that appellant  

Bastiram also fired at deceased Mohanlal and appellant Mohan Lal fired  

at him (deceased Rameshwarlal). Deceased Rameshwarlal also stated  

that  appellant  Banwari  fired  at  Maniram  and  that  his  brother  

Goverdhan also arrived at the scene and Maniram Patwari fired at him.  

The dying declaration is clearly at variance with the  parcha bayan of  

Sohan Lal.

11. That Maniram (from Ram Pratap’s group) died on the spot is not in  

dispute.  In  this regard,  we were given a copy of the judgment and  

order  dated  7th September,  2001  in  Sessions  Case  No.  21  of  2001  

Crl. Appeal No. 758 of 2004 etc. Page 4 of 23

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wherein the State had accused Sohan Lal and members of his group of  

having  murdered  Maniram  and  causing  injuries  to  others.   In  the  

decision, Sohan Lal and all the members of his group were acquitted by  

giving them the benefit of doubt. That decision seems to have attained  

finality.

Decision of the Trial Court: 12. On  these  broad  facts  the  four  appellants  and  the  other  five  

persons from Ram Pratap’s group were tried for various offences under  

the  Indian  Penal  Code.   The Additional  Sessions  Judge  (Fast  Track)  

Bikaner  delivered his  judgment  in  Sessions  Case No.24/2001  on  7th  

September, 2001 in which he held the appellants guilty,  inter alia, of  

an offence punishable under Section 302 read with Section 34 of the  

IPC and sentenced them to imprisonment for life and fine. They were  

also convicted of an offence punishable under Section 307 read with  

Section 34 of the IPC and sentenced to rigorous imprisonment for five  

years and fine. The remaining accused were acquitted.

13. The Trial Court found that there were four eye witnesses to the  

occurrence,  namely,  Om Prakash  (PW-3),  Sohan  Lal  (PW-4),  Jagdish  

(PW-9) and Rajaram (PW-10). This was not questioned before the High  

Court and was not disputed before us also.

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14. The Trial Judge held that appellant Banwari had caused a firearm  

injury  to  deceased  Mohanlal  resulting  in  his  death;  appellant  

Ramnarayan had caused a  firearm injury  to  Rajaram and appellant  

Bastiram  had  caused  a  firearm  injury  to  deceased  Rameshwarlal  

resulting  in  his  death.   It  was  found  that  amongst  other  injuries,  

deceased Ram Narain had received a gun fire injury on his thigh.  It  

was held that the gun fire injury was inflicted by appellant Mohan Lal.  

The Trial Judge noted that the post-mortem report of deceased Ram  

Narain revealed that there was no firearm injury on his body, but he  

preferred  to  rely  on  the  eye  witness  evidence  rather  than  on  the  

medical report.   

15. The Trial Judge did not place any reliance on the dying declaration  

given by deceased Rameshwarlal, since it did not bear a certificate of  

fitness given by the doctor at the time of its recording.  The Trial Judge  

noted that the contents of the dying declaration were at variance with  

the contents of the  parcha bayan given by Sohan Lal and that there  

were  some  discrepancies  in  the  dying  declaration  which  could,  

therefore,  not  be  depended  upon for  its  truthfulness.  However,  the  

Trial  Judge  noted  that  the  dying  declaration  was  evidence  for  the  

presence of the appellants at the place of occurrence.

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16. The  appellants  produced  their  defence  evidence.  Appellant  

Bastiram produced evidence to the effect that on the fateful day, he  

had gone to Bikaner in his capacity as Patwari in Nokha village at about  

11 a.m.  He reached Bikaner at about 1 p.m. and met several people  

not only in connection with his official work but also in connection with  

a State level conference of Patwar Sangh to be held on 8-9 June, 1995  

at Alwar.  He left Bikaner at about 7.30 p.m. and returned to Nokha at  

about 9.30 p.m.  As such, he was not present when the incident took  

place.  Some of the persons whom appellant Bastiram met at Bikaner  

were produced as defence witnesses including Phoola Ram (DW-1) who  

stated that after meeting him, appellant Bastiram left for the house of  

Gopal  Krishan  at  about  5.45  p.m;   Mangi  Lal  (DW-2)  stated  that  

appellant Bastiram  was with him and at about 5.30 p.m. he went away  

with Phoola Ram. Gopal Krishan (DW-3) stated that appellant Bastiram  

had come to his house at about 6 p.m. on 20th May, 1995 and left at  

about 6.30 p.m.  Inder Chand (DW-7) stated that between 5.30 and 6  

p.m.  appellant  Bastiram met  Hanuman  Singh,  Sub  Divisional  

Magistrate,  South  Bikaner.  Hanuman  Singh  (DW-9)  stated  that  

appellant Bastiram had come to his chamber with Inder Chand at about  

5.15  or  5.30  p.m.  in  regard  to  organizing  a  farewell  party  on  his  

(Hanuman  Singh’s)  transfer.  Jagdish  (DW-10)  is  the  son  of  Gopal  Crl. Appeal No. 758 of 2004 etc. Page 7 of 23

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Krishan and he stated that appellant Bastiram had come to his father’s  

house at about 6 p.m. on 20th May, 1995 and he stayed there for about  

half an hour.  Jagdish also stated that he had gone to see off appellant  

Bastiram at Ambedkar Circle.

17. Rajender Kumar Sharma appeared in the witness box as DW-11.  

He was working as Civil Judge (Junior Division) and Judicial Magistrate  

at Bikaner.  He stated that he had recorded the dying declaration of  

deceased Rameshwarlal on 21st May, 1995.  He also stated that before  

recording the dying declaration a Fitness Certificate was obtained from  

the  doctor  on  duty  which  is  mentioned  at  ‘E’  to  ‘F’  in  the  dying  

declaration. In his cross-examination this witness stated that deceased  

Rameshwarlal was fit to make a statement.

18. Umesh Joshi (DW-12) was working as Additional Superintendent of  

Police, CID (CB) in Jaipur.  He had conducted investigations in the case  

and had sent a Factual Report to the Superintendent of Police of CID  

(CB)  Rajasthan,  Jaipur  in  which  he  opined  that  the  involvement  of  

appellant Bastiram in the occurrence had not been established.   

19. Similarly, appellant Mohan Lal also produced defence witnesses to  

prove that he was not at the place of occurrence on the fateful day.  

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The evidence led by both these appellants was considered by the Trial  

Judge but rejected.

Decision of the High Court: 20. Feeling  aggrieved  by  their  conviction  and  sentence,  the  

appellants preferred Criminal Appeal No.798 of 2001 in the Rajasthan  

High  Court  while  the  State  of  Rajasthan  preferred  Criminal  Appeal  

No.528 of 2002 against the acquittal of the other five accused.

21. By a judgment and order dated 9th September, 2003 the High Court  

upheld the conviction of the four appellants and dismissed the appeal  

filed by the State of Rajasthan against the acquittal of the remaining  

five accused persons.1

22. The High Court confirmed the conclusions of the Trial  Judge. It  

was held that appellant Bastiram had caused a firearm injury leading  

to the death of Rameshwarlal;  appellant Banwari had also caused a  

firearm injury leading to the death of Mohanlal; appellant Mohan Lal  

had caused a firearm injury on the thigh of deceased Ram Narain and  

appellant Ramnarayan had caused a firearm injury on Rajaram.

23. The High Court  was of  the view that  even though the medical  

evidence  showed  that  deceased  Ram  Narain  had  not  received  a  

1 The decision of the High Court is reported as MANU/RH/0542/2003

Crl. Appeal No. 758 of 2004 etc. Page 9 of 23

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firearm injury, the ocular evidence to the contrary was to be preferred  

since that was reliable. Reliance was placed on Suraj Pal v. State of  

U.P.2 Alternatively, it was held that even if deceased Ram Narain had  

not received any gunshot injury, the fact is that appellant Mohan Lal  

was  armed  with  a  pistol  and  it  could  safely  be  concluded  that  he  

shared a common intention with the other  accused persons thereby  

attracting  Section  34  of  the  IPC  for  the  purposes  of  confirming  his  

conviction for an offence punishable under Section 302 of the IPC.

24. The four appellants filed three appeals in this Court being Criminal  

Appeal No.758 of 2004, Criminal Appeal No.759 of 2004 and Criminal  

Appeal arising out of S.L.P.  (Crl.) No. 5240 of 2004.

Presence of appellant Bastiram: 25. Insofar as the appeal filed by appellant Bastiram is concerned, the  

principal  submission  before  us  was  to  the  effect  that  there  is  a  

reasonable  doubt  whether  he  was  at  all  involved  in  the  incident.  

Several factors were brought to our notice in this regard.  

26. Firstly, it was submitted that the evidence given by the four eye  

witnesses  suggests  that  appellant  Bastiram  shot  deceased  

Rameshwarlal.  However,  in  his  dying  declaration  deceased  

2 1994 Supp (1) SCC 528

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Rameshwarlal does not say that he was shot by appellant Bastiram.  

According to the dying declaration, deceased Ram Narain was shot by  

appellant  Bastiram  and  he  (deceased  Rameshwarlal)  received  a  

gunshot injury from appellant Mohan Lal.  

27. The Trial Judge partially rejected deceased Rameshwarlal’s dying  

declaration because it was too much at variance with the eye witness  

account and it was doubtful whether he was fit to make a statement.  

The  dying  declaration  was  accepted  only  for  the  purpose  that  it  

confirmed the presence of the appellants including appellant Bastiram  

at  the  place  of  occurrence.   We  do  not  see  any  perversity  in  this  

conclusion of the Trial Judge, confirmed by the High Court.

28. Secondly, it was submitted that during the investigation, a fact  

finding  report  was  tendered  by  Umesh  Joshi  (DW-12)  to  the  

Superintendent  of  Police  of  CID  (CB)  Rajasthan,  Jaipur  and  it  was  

marked as Exhibit ‘D-51’.The report concludes that the involvement of  

appellant Bastiram in the incident was not proved.  It was submitted  

that this exhibit was not considered either by the Trial Court or by the  

High Court while convicting appellant Bastiram.   

29. The fact finding report is only another piece of evidence and it has  

to be read along with the statement of the defence witnesses which  

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clearly  brings  out,  and  this  has  not  been  doubted,  that  appellant  

Bastiram had in fact gone to Bikaner on that day for some official work.  

The  only  question  was  about  the  approximate  time  when  he  left  

Bikaner to return to Nokha.

30. On the basis of the statements made by the defence witnesses it  

is  not  possible  to  accurately  state  when  appellant  Bastiram  left  

Bikaner, but he was certainly there till about 5.00 or 5.15 p.m. if not a  

little later.  Information about the incident at Nokha was received by  

Tara  Chand  in  Police  Station  Nokha  at  about  7.15  p.m.  meaning  

thereby that the incident had taken place a short while before that.  As  

per  the  parcha  bayan given  by  Sohan  Lal  the  incident  took  place  

between 6.30 and 6.45 p.m.  There is therefore a window of about one  

hour  and thirty  or  forty-five minutes between the time of  appellant  

Bastiram’s  departure  from Bikaner  and  his  arrival  at  Nokha.   It  is,  

therefore,  quite  possible,  given  the  flexibility  of  time and a  lack  of  

exactitude that appellant Bastiram was present when the incident took  

place and as testified by the eye witnesses.

31. The Trial  Court rejected the evidence of the defence witnesses  

with regard to the absence of appellant Bastiram on three grounds:  

Firstly, there was no occasion for him to remain in Bikaner after office  

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hours, that is, after 5.00 p.m.  This may not be a good enough reason  

per  se for  rejecting  the  testimony of  the  defence witnesses.  But  a  

reasonable conclusion can be drawn on the basis of the material on  

record that appellant Bastiram was in Bikaner till about 5.00 or 5.15  

p.m.  but  this  is  of  no  consequence.   Secondly,  the Trial  Court  also  

noted some discrepancies in the evidence of the defence witnesses  

with  regard to the timings given by the various defence witnesses.  

These are minor discrepancies and, as rightly noted by the Trial Court,  

no person keeps an eye on the clock or notes the time of meeting. It is  

for  this  reason  that  some  flexibility  in  the  timings  must  be  given.  

Thirdly,  since  appellant  Bastiram  was  the  President  of  the  Patwar  

Sangh at  Nokha and the defence witnesses were either Patwaris or  

related  to  the  Revenue Department,  appellant  Bastiram could  have  

influenced them on account  of  being  a  leader.  This  may be a  real  

possibility  considering  the  fact  that  though  appellant  Bastiram was  

named in the  parcha bayan as one of those armed with a pistol and  

who  caused  the  death  of  deceased  Rameshwarlal,  he  was  in  fact  

arrested  about  two  and  a  half  years  later  on  21st January,  1998.  

Cumulatively  considered,  the  reasons  given  by  the  Trial  Judge  for  

rejecting the testimony of the defence witnesses are adequate.  

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32. In any event, what is perhaps more important is the cogent and  

consistent eye witness testimony relating to the presence of appellant  

Bastiram.  This  cannot  be simply  discarded on the basis  of  possible  

guesswork by the defence witnesses about the timings of the meetings  

that appellant Bastiram had in Bikaner. In this regard, the conduct of  

appellant  Bastiram  is  also  significant.  He  produced  a  copy  of  his  

travelling  allowance  bill  and  daily  diary  which  showed  that  he  left  

Bikaner  at  about  7.30 p.m.   The Trial  Judge noted that  both  these  

documents  were  prepared  after  the  incident  and  in  the  daily  diary  

(Exhibit  D-52)  it  is  recorded  that  appellant  Bastiram met  Hanuman  

Singh (DW-9) in connection with a party and left Bikaner at about 7.30  

p.m. and arrived at Nokha at 9.30 p.m.  None of the defence witnesses  

support the case of appellant Bastiram that he left Bikaner at 7.30 p.m.  

It  is  quite clear that appellant Bastiram manufactured this evidence  

with a view to cover his tracks when there was no need for him to do  

so, assuming his witnesses were speaking the truth.

33. Under the circumstances, on a consideration of the evidence on  

record there is no doubt that appellant Bastiram was present when the  

incident occurred and, as stated by the eye witnesses, participated in  

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it.  We see no reason to upset the concurrent finding of fact in this  

regard by the Trial Court and the High Court.

Other appellants: 34. There is also overwhelming evidence given by the eye witnesses  

about the use of firearms by appellant Ramnarayan, appellant Mohan  

Lal  and  appellant  Banwari.   The  evidence  of  the  eye  witnesses  in  

regard to these appellants is consistent and we see no reason to differ  

with the concurrent findings arrived at by the Trial Court as well as the  

High  Court.  Little  was  said  by  learned  counsel  disputing  their  

involvement.

35. It was submitted that Maniram, one of the persons belonging to  

Ram Pratap’s  group was also  killed in  the incident  and there is  no  

explanation for  the cause of  his  death.   It  was submitted that  it  is  

necessary for the prosecution to explain any injuries sustained by the  

accused party.  Nothing further  need be said  on this  in  view of  the  

benefit of doubt, as mentioned above, given to Sohan Lal’s group in  

Sessions Case No. 21 of 2001. Under the circumstances, we are of the  

opinion  that  the  appellants  cannot  take  advantage  of  the  death  of  

Maniram or  injuries caused to other  members of  their  group in  the  

clash.   

Crl. Appeal No. 758 of 2004 etc. Page 15 of 23

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Gunshot injury on deceased Ram Narain:

36. Finally, it was submitted that according to the post mortem report  

and the evidence given by the doctor no firearm injury was found on  

the body of deceased Ram Narain.  However, the ocular testimony is to  

the effect that deceased Ram Narain was shot at by appellant Mohan  

Lal injuring him and thereby causing his death. It was submitted that  

the Trial Judge and the High Court erroneously gave primacy to the  

ocular evidence disregarding the medical evidence.  

37. The  question  before  us,  therefore,  is  whether  the  “medical  

evidence”  should  be  believed or  whether  the  testimony of  the  eye  

witnesses should be preferred. There is no doubt that ocular evidence  

should  be accepted unless  it  is  completely negated by the medical  

evidence.3  This  principle  has  more  recently  been  accepted  in  

Gangabhavani v. Rajapati Venkat Reddy.4

38. The expression “medical evidence” compendiously refers to the  

facts  stated by the doctor either in  the injury report or  in the post  

mortem report or during his oral testimony plus the opinion expressed  

by the doctor on the basis of the facts stated. For example, an injury  3 Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 following State of Haryana v. Bhagirath, (1999)  5 SCC 96 and Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174 4 AIR 2013 SC 3681

Crl. Appeal No. 758 of 2004 etc. Page 16 of 23

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on the skull or the leg is a fact recorded by the doctor. Whether the  

injury caused the death of the person is the opinion of the doctor. As  

noted in  State of Haryana v. Bhagirath5 on the same set of facts,  

two doctors may have a different opinion. Therefore, the opinion of a  

particular doctor is not final or sacrosanct.

39. What about the facts recorded by a doctor – are they sacrosanct?  

In Kapildeo Mandal v. State of Bihar6 the facts found by the doctor  

were preferred over the eye witness testimony. The  ocular evidence  

was to the effect that the deceased suffered firearm injuries. However,  

the doctor conducting the post mortem examination stated that he did  

not  find  any  indication  of  any  firearm injury  on  the  person  of  the  

deceased. No pellets, bullets or any cartridge were found in any of the  

wounds. Accepting the “medical evidence” on facts,  it was observed  

that,

“[T]he medical evidence is to the effect that there were no  firearm injuries on the body of the deceased, whereas the  eyewitnesses’ version is that the appellant-accused were  carrying  firearms  and  the  injuries  were  caused  by  the  firearms. In such a situation and circumstance, the medical  evidence  will  assume importance  while  appreciating  the  evidence led by the prosecution by the court and will have  priority over the ocular version and can be used to repel  the testimony of the eyewitnesses as it goes to the root of  the  matter  having  an  effect  to  repel  conclusively  the  eyewitnesses’ version to be true.”

5 (1999) 5 SCC 96 6 (2008) 16 SCC 99

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40. Similarly, a fact stated by a doctor in a post mortem report could  

be rejected by a Court relying on eye witness testimony, though this  

would be quite infrequent. In Dayal Singh v. State of Uttaranchal7  

the  post  mortem report  and  the  oral  testimony  of  the  doctor  who  

conducted that examination was that no internal or external injuries  

were  found  on  the  body  of  the  deceased.  This  Court  rejected  the  

“medical evidence” and upheld the view of the Trial Court (and the  

High Court) that the testimony of the eye witnesses supported by other  

evidence would prevail over the post mortem report and testimony of  

the doctor. It was held,

[T]he trial court has rightly ignored the deliberate lapses of  the investigating officer as well as the post-mortem report  prepared by Dr C.N. Tewari.  The consistent statement of  the  eyewitnesses  which  were  fully  supported  and  corroborated by other witnesses, and the investigation of  the  crime,  including  recovery  of  lathis,  inquest  report,  recovery of the pagri of one of the accused from the place  of occurrence, immediate lodging of FIR and the deceased  succumbing  to  his  injuries  within  a  very  short  time,  establish the case of  the prosecution beyond reasonable  doubt. These lapses on the part of PW 3 [doctor] and PW 6  [investigating officer] are a deliberate attempt on their part  to  prepare  reports  and  documents  in  a  designedly  defective manner which would have prejudiced the case of  the  prosecution  and  resulted  in  the  acquittal  of  the  accused, but for the correct approach of the trial court to  do justice and ensure that the guilty did not go scot-free.  The  evidence  of  the  eyewitness  which  was  reliable  and  worthy of credence has justifiably been relied upon by the  court.”

7 (2012) 8 SCC 263

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41. An opinion given by a doctor, based on the facts recorded on an  

examination of a victim of a crime, could be rejected by relying on  

cogent and trustworthy eye witness testimony. In Mange v. State of  

Haryana8 an  eye  witness  to  a  rape  stated  that  the  offence  was  

committed on a particular day and at a particular time. However, the  

lady   doctor who   examined   the   victim  was of the  

opinion that the offence was committed two days earlier. This Court did  

not  accept  the  opinion  and  preferred  to  rely  on  the  eye  witness  

account holding, inter alia, that  

“It  is  difficult  for  any  medical  expert  to  give  the  exact  duration  of  time  when  the  rape  was  committed.  More  particularly  when  we  have  the  evidence  of  PW  4  [eye  witness]  as to the time and date of  the occurrence,  the  medical evidence can hardly be relied upon to falsify the  evidence of the eyewitness because the medical evidence  is  guided by various factors based on guess and certain  calculations.”

42. This  being the position,  insofar as the injury to  deceased Ram  

Narain  is  concerned,  Dr.  D.K.  Purohit  (PW-18)  stated  that  he  had  

conducted  the  post  mortem  examination  on  the  dead  body.   He  

described  the  injuries  on  the  body  and  in  his  cross-examination  

categorically stated as a matter of fact that “This is correct to suggest  

that there was no firearm injury on the body of Ram Narain”. In the  

face  of  this  categorical  factual  assertion,  and  absent  any  cogent  8 (1979) 4 SCC 349

Crl. Appeal No. 758 of 2004 etc. Page 19 of 23

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evidence to the contrary, we cannot accept the conclusion arrived at  

by  the  Trial  Court  and  the  High  Court  that  deceased  Ram  Narain  

suffered a gunshot injury. The ocular evidence undoubtedly shows that  

deceased Ram Narain was fired at by appellant Mohan Lal, but in view  

of the unchallenged testimony of the doctor it is quite clear that the  

gunshot did not hit deceased Ram Narain and the cause of his death  

was due to the cumulative effect of the various injuries suffered by  

him.

43. However, this has no impact on our final conclusion since we are  

in  the agreement  with  the  Trial  Court  and the  High Court  that  the  

appellants had the common intention of causing the death of deceased  

Rameshwarlal, deceased Ram Narain, deceased Mohanlal and injured  

Rajaram. That Rajaram survived the injuries is fortuitous.  We are also  

in agreement with both the Courts that the appellants were armed with  

pistols and that they had fired at their victims with the intention of  

killing them. We have not been shown anything that would suggest the  

contrary.  

Conclusion:

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44. We uphold the concurrent findings of the Trial Court and the High  

Court  and  confirm  the  conviction  and  sentence  on  the  appellants.  

There is no merit in these appeals and they are accordingly dismissed.

                                    ……………………………….J                               (Ranjana Prakash Desai)

                             .……………………………….J                                        (Madan B. Lokur)

New Delhi; February 13, 2014

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ITEM NO.1A               COURT NO.13             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A

                        RECORD OF PROCEEDINGS

                   CRIMINAL APPEAL NO(s). 758 OF 2004

BASTIRAM                                          Appellant (s)

                VERSUS

STATE OF RAJASTHAN                                Respondent(s)

WITH APPEAL (CRL) NO......./2014 @ SLP(Crl) NO. 5240 of 2004

APPEAL(CRL) NO. 759 of 2004

Date: 13/02/2014  These matters were called on for judgment today.

For Appellant(s)    Mr. Ambhoj Kumar Sinha,Adv.

                  Mr. V.J. Francis, Adv.

For Respondent(s) Mr. Saurabh Shyam Shamshery, AAG

Mr. Sandeep Singh, Adv.

Mr. Varun Punia, Adv.

Mr. Harshvardhan Singh Rathore, Adv.

                   Mr. Milind Kumar,Adv.

                   Ms. Sandhya Goswami, Adv.

Hon'ble Mr. Justice Madan B. Lokur pronounced the judgment of the  

Bench comprising of Hon'ble Mrs. Justice Ranjana Prakash Desai and His  

Lordship.

Leave granted in SLP (Crl.) No.5240 of 2004.

The appeals are dismissed, in terms of the signed judgment.

[Gulshan Kumar Arora]         [Usha Sharma]

   Court Master    Court Master

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(Signed reportable judgment is placed on the file)

Crl. Appeal No. 758 of 2004 etc. Page 23 of 23