Page 1

    REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL     APPEAL     Nos.     824     -825     of     2011   

Brijesh Mavi … Appellant  

Versus

State of NCT of Delhi … Respondent

J      U      D      G      M      E      N     T   

RANJAN     GOGOI,     J   

These appeals are directed against the common judgment and  

order dated 10.08.2009 passed by the High Court of Delhi whereby  

the conviction of the appellant under Sections 302 and 460 read with  

Section 34 of the IPC as well as under Section 25 of the Arms Act  

has been affirmed.  The appellant has been sentenced to undergo

Page 2

rigorous imprisonment for life for the offence under Section 302 read  

with Section 34 IPC whereas for the offence under Section 460 read  

with Section 34 IPC sentence of seven years rigorous imprisonment  

has been imposed.  Insofar as the offence under the Arms Act is  

concerned, the accused-appellant has been sentenced to undergo  

rigorous imprisonment for one year.  All the   sentences have been  

directed to run concurrently.

2. The short case of the prosecution is that on 06.06.2001, H.C.  

Brij Pal (PW 11), who was posted in the PCR, received an  

information at about  10.35 PM that firing is taking place at Savitri  

Nagar near a sweet shop.  Accordingly,  PW 11 alongwith other  

police personnel reached the said place and saw that a crowd had  

gathered near a STD booth where blood was splattered and some  

articles were lying scattered in broken condition.  The STD booth  

belonged to one Omiyo Das Of Malik Communications, who having  

been injured in the firing had already been removed to the hospital.

The said information was passed on to the local police station  

which was duly recorded in the Daily Diary of the Police Station and  

marked to SI –  Sudhir Sharma, PW 24, who along with Constable-  

Bajrang Bahadur reached the place of occurrence.  On reaching the  

2

Page 3

said place the police party could come to know that the injured Omiyo  

Das had already been declared brought dead to the hospital.

Further more, according to the prosecution, one Vicky Malik  

(PW 1)  was an eye witness to the occurrence.  Accordingly, his  

statement (Ex.PW-1/A) was recorded where he had stated that on  

06.06.2001 at about 10.20 P.M. when he was sitting outside his STD  

booth and sweet shop at J-196, Savitri Nagar, he had noticed a white  

Maruti Car stopping on the other side of the road.  In the  statement  

recorded by the police, PW 1  has stated that two men alighted from  

the vehicle and entered the STD booth whereafter they started firing  

at his maternal uncle, Omiyo Das.  According to PW 1 he tried to  

intervene and in fact had brought a palta from his nearby sweet shop  

but his uncle told him to run away from the place and save his life.  

PW 1 had further stated that blood was oozing out from the injuries  

suffered by his uncle and he ran towards his house No.86B shouting  

for help.  According to PW 1, thereafter, the assailants fled away and  

he had along with his younger brother –Raj Kumar Malik –PW 3 and  

another maternal uncle – Ravi Kumar Dass – PW 4 had removed the  

injured to the hospital.  In his statement, PW 1 had categorically  

stated that one Satish Kumar who had killed his father and who had  

3

Page 4

been acquitted about a month ago in the case arising from the said  

incident was one of the assailants whereas the other/second  

assailant was about 25-26 years of age and was a well built person.  

On the basis of the aforesaid statement made by PW 1 – Vicky Malik,  

the FIR –Ex.PW-6/A was lodged and FIR Case No. 438/2006, Police  

Station Malviya Nagar (hereinafter referred to as the present case)  

was registered.  Three live cartridges cage of 0.380 bore; one empty  

cartridge of 0.380 bore and four lead pieces of fired bullets were  

seized from the place of occurrence by PW 24 – Sudhir Sharma.  The  

blood stained baniyan of PW 3; blood stained earth  etc. were also  

seized from the place of occurrence by the Investigating Team.

3. The further case of the prosecution is that on the next day, i.e.  

on 07.06.2001, PW 9 –Dr. T.Milo had conducted the post mortem on  

the body of the deceased in the course of which nine ante-mortem  

bullet injuries were noted and four bullets had been extracted from  

the body which  along with one  cotton underwear;    one cotton  

baniyan, one long pant was handed over to the Investigating Officer,  

PW 24- SI- Sudhir Sharma.  The cause of death was stated to be  

coma due to head injuries caused by a firearm.

4

Page 5

4. According to the prosecution on 16.11.2001, the IO- PW 24-  SI  

–Sudhir Sharma arrested accused Satish Kumar who was already  

arrested by the Faridabad police in connection with FIR No.339/2004  

of Police Station GRP, Faridabad under Section 25 of the Arms Act.  

The prosecution has alleged that Satish Kumar made a disclosure  

statement (Ex.PW-24/D) in the instant case and had also disclosed  

about the involvement of two other persons in the offence, i.e. one  

Med Singh and the present appellant – Brijesh.  On the basis of the  

said disclosure statement made by accused Satish, a .30”  pistol  

along with 3(three) .30”  calibre live cartridges was recovered.  

Thereafter, on 09.01.2002, PW 25 –  SI –  Sanjeev Sharma arrested  

Med Singh who was already arrested on 05.01.2002 in a separate  

case under the Arms Act. Three sealed parcels containing the .30”  

calibre pistol with three 7.62mm/.30” live cartridges recovered at the  

instance of accused Satish, the three .380” live cartridges; one .380”  

cartridge cage, two bullets and two defused bullets recovered from  

the place of occurrence and the four bullets recovered from the dead  

body in the course of post-mortem examination were all sent to the  

Forensic Science Laboratory, Rohini, Delhi on 03.12.2001.  

Thereafter, the report of one  Shri KC Varshney, Senior Scientific  

5

Page 6

Officer, FSL, Rohini, Delhi (Ex.PW-21/A) was received which was to  

the effect that the bullets marked as EB-1, EB-3  to EB-8 (seven in  

number) had been discharged through a standard .380”  calibre  

firearm.  On these facts, the two apprehended accused Satish and  

Med Singh were sent for trial.  As the two accused persons denied  

the charges levelled against them the trial proceeded. The third  

accused was neither identified nor traced out at that stage.   

5. While the trial of the case was in progress the present  

appellant, Brijesh, was arrested on 12.8.2003 in connection with  

another case, i.e., FIR No.575/2003 Police Station, Malviya Nagar.  

According to the prosecution, on interrogation, the accused appellant  

disclosed/admitted his involvement in the present case  and made a  

statement on the basis of which a .380”  calibre revolver was  

recovered from the second floor of an Apartment bearing No.F-4/64,  

Sector 16, Rohini, Delhi alongwith 3 live .380” calibre cartridges.  In  

respect of the said incident a separate FIR No.456 of 2003 under  

Section 25 of the Arms Act of Prashant Vihar Police Station was  

registered.  It may be noticed, at this stage, that the aforesaid  

recovery of the weapon was in the presence of SI- Satish Kumar, ASI  

–  Ravinder and Head Constable –  Rajiv Mohan who had been  

6

Page 7

examined  as PWs. 1, 2 and 3 in the case arising out of FIR No.  

456/2003.  It may also be noticed  that Head Constable - Rajiv who  

was  examined as PW 3 in connection with FIR No.456/2003 was  

again examined in the present case as PW 19.  Both the cases, i.e.  

the present as well FIR No. 456/2003 were clubbed together by order  

of the learned Additional District and Sessions Judge dated  

10.03.2005 and charges under Sections 302 and 460 of the IPC read  

with Section 34 were framed against the accused-appellant in the  

present case.  A separate charge under Section 25 of the Arms Act  

was also framed against the appellant in FIR Case No. 456/2003.   

PW 1 – Vicky Malik who was already examined was recalled for  

further examination after charges were framed against the present  

appellant.   While the trial of the two cases was in progress, accused  

Satish died and the proceedings stood abated against him.  As many  

as 25 witnesses were examined by the prosecution in the present  

case and a large number of documents were also exhibited.  Two  

witnesses were examined by the defence.  DW-1 –Vijay Gupta  

claimed to be owner of the Apartment No.F-4/64, Sector 16, Rohini.  

This witness has stated that while he had occupied the ground floor  

of the apartment the first floor was vacant for repairs.  The second  

7

Page 8

floor was under the occupation of a tenant, one Rajiv Chauhan.  

According to DW-1, no recovery was made as claimed by the police  

on 12.08.2003.  DW-2- Rajiv Chauhan, the tenant, had fully  

corroborated the above version of DW 1.  Both the accused persons  

– Med Singh and appellant Brijesh were examined under Section 313  

Cr.P.C.  At the conclusion of the trial both Med Singh and the present  

appellant Brijesh were convicted for the offences for which they were  

charged.  Separate appeals were filed by both the accused before  

the High Court.  By the impugned judgment dated 10.08.2009 while  

the accused Med Singh was acquitted, the present appellant has  

been convicted of the charges framed in both the cases and  

sentenced as aforesaid giving rise to the present appeal.

6. Before proceeding to notice and examine the arguments  

advanced on behalf of the appellant, the bare facts proved and  

established by the evidence on record which would be required to be  

considered may be set out hereinbelow.

7. In the initial deposition tendered in court by PW 1 – Vicky Malik,  

the witness had categorically stated that the second assailant who  

was accompanying accused Satish was not known to him.  After the  

arrest of the present accused-appellant on 11.08.2003 PW 1 was  

8

Page 9

recalled and examined once again on 21.10.2005.  On this occasion  

PW 1 had clearly denied that in his statement to the police that he  

had named the accused-appellant-Brijesh or that he had identified the  

present accused-appellant before the police.  In fact, in his further  

examination PW 1 had categorically stated that “the accused-

appellant Brijesh Mavi present in court was not there on the date of  

incident” and further that “accused present in the court Brijesh Mavi is  

not the person who had killed my uncle. I have seen Brijesh Mavi first  

time”.  PW 1 was not declared hostile.

8. PW 24 – Sudhir Kumar, the IO of the case, in his deposition, as  

already noted,  had deposed about the recovery of three live  

cartridges, one empty cartridge and 4 bullets ( all of 0.380 calibre)  

from the place of occurrence.  He has also deposed about the receipt  

of four bullets which were extracted from the body of the deceased at  

the time of post-mortem.  According to PW 24 the cartridges and  

bullets recovered from the spot were sealed with the initial SK  

whereas the bullets recovered from the dead body  were sealed with  

the seal of  Forensic Medicine AIIMS Hospital.  PW 24 has also  

deposed with regard to the arrest of accused Satish; the disclosure  

statement made by him and the recovery of one pistol of .30” calibre  

9

Page 10

alongwith three live cartridges.  In his cross-examination,    he has  

stated that in the course of interrogation it was revealed that the .380  

calibre revolver was with the accused Satish and the .30”  calibre  

pistol was with accused Brijesh.  

9.  From the evidence of PW 21 – Shri KC Varshney, Sr. Scientific  

Officer and his report  Ex.PW-21/A it is evident that along with the .

30” calibre pistol and the three .30”  calibre live  cartridges, the .380  

cartridges(3 in No.), one .380 cartidge cage and the four bullets  

recovered from the spot along with the four bullets recovered from the  

body of the deceased were sent for the examination and the report  

thereof is that 7 bullets marked as EB-1, EB-3 to EB-8 had been fired  

from a .380 calibre fire arm.

10. From the evidence of PW 25, SI-Sanjiv Sharma, it also appears  

that after the recovery of the .380 calibre revolver from Apartment No.  

F-4/64, Sector 16, Rohini, Delhi, the said revolver and the empty and  

live .380 calibre cartridges and the four bullets recovered from the  

place of occurrence were sent to the CFSL, Chandigarh for  

examination and “matching”  report, namely, whether the cartridges  

and bullets bore any relation to the fire arm recovered .  The report of  

examination (Ex. PW -20/B) submitted by Dr. P. Siddambary Junior  

1

Page 11

Scientific Officer (Ballastics), CFSL, Chandigarh  (PW 20) is to the  

effect that the .380 revolver (bearing No. 25502) was in working  

condition and  the  crime fired bullets marked B/1, B/3 and B/4 had  

been fired through the said .38”  revolver  bearing No.25502 and  

further that the said bullets could not have been   fired through any  

other firearm.  Insofar as the live cartridges are concerned, the report  

of PW 20 is silent where as in regard to the cartridge cage marked as  

EC.1 by the Ballistic Expert the opinion was inconclusive.    From the  

above, it will be clear that the four bullets sent to the CFSL,  

Chanidgarh and examined by PW 20 were the bullets recovered from  

the place of occurrence.  The bullets recovered from the dead body  

though sent to the FSL, Rohini and were examined by PW 21 were  

however not sent by the prosecution to the CFSL, Chandigarh and  

are not a part of the report submitted by PW 20  in his report (Ex.  

PW-20/B)       

11. Another significant fact that has to be noticed is that in the  

report of CFSL, Chandigarh Ex. PW- 20/B  it is not mentioned that  

one of the bullets recovered from the place of occurrence and marked  

as B.2 by the Ballistic Expert  had been fired from the revolver  

1

Page 12

bearing No.25502 though according to both the reports, i.e. Ex.PW-

21/A and Ex.PW-20/B the said bullet is also a .380 calibre bullet.

12. Shri A. Sharan, learned senior counsel for the appellant, has  

argued that from the evidence of the sole eye witness, PW 1 Vicky  

Malik, it is clear and evident that he had not identified the accused-

appellant Brijesh to be the person accompanying the accused Satish  

to the STD booth where the firing took place.  In fact, according   to  

the learned counsel, PW 1 has categorically stated in Court that the  

accused-appellant  Brijesh was not present at the place of occurrence  

and that he had seen the accused appellant for the first time in court.  

Learned counsel therefore has contended that there is no direct  

evidence to link the accused-appellant with the offence for which he  

has been charged.  In the absence of identification of the accused-

appellant, the conviction, it is contended, is wholly without any basis.  

Shri Sharan has further contended that the recovery of the revolver  

from Apartment No.F-4/64, Sector 16, Rohini, Delhi,  as claimed by  

the prosecution, has not been proved in any manner inasmuch as no  

independent witness has been examined to prove the same.  

Furthermore, DW 1 and DW 2 had clearly deposed that no police  

party has come to the apartment on 12.08.2003 and no recovery had  

1

Page 13

taken place on the said date.  Shri Sharan has also contended that  

the scrutiny of the evidence tendered  by the defence witnesses  

would go to show that there is no basis for not accepting the same.   

Continuing, Shri Sharan has argued that the bullets extracted  

from the body of the deceased, admittedly, had not been sent for  

examination to the ballastic expert to prove that the same were fired  

from revolver No. 25502 allegedly recovered from Apartment No.F-

4/64, Sector 16,  Rohini, Delhi. Therefore, according to learned  

counsel, even if the recovery of the revolver is to be assumed there is  

no proof that the same was fired to cause the injuries resulting in the  

death of the deceased.  In sofar as the three bullets proved by Ex.PW  

-20/B to have been fired from the recovered weapon is concerned,  

Shri Sharan has argued that the same had not been sent for  

serological    examination to prove the presence of human blood so  

as to establish that the said bullets had entered and exited the body  

of the deceased.  It is also argued that the report of the CFSL  

Chandigarh (Ex.PW-20/B) read with the report of the FSL, Rohini  

(Ex.PW-21/A) would go to show that the bullet marked as Ex.B2 in  

the report of CFSL, Chandigarh (Ex.PW-20/B) was not fired from the  

recovered weapon.  Yet, according to the prosecution, the same was  

1

Page 14

a .380 calibre bullet recovered from the place of occurrence which  

facts open up the possibility of the use of another  .380 revolver in the  

incident.  No Evidence to the aforesaid effect is forthcoming. In these  

circumstances Shri Sharan has argued that the conviction of the  

accused –appellant cannot be approved. In support, reliance has  

been placed on the judgment of this court in Abdulwahab     Abdulmajid    

Baloch     vs.     State     of     Gujarat     1.  Placing the said judgment before the  

court Shri Sharan has contended that in the present case even if it is  

assumed that recovery of the offending weapon has been proved by  

the prosecution the said fact is only one adverse  circumstance  

against the appellant.  The same by itself, would not give rise to a  

complete chain of events and circumstances from which the only  

inference that can be drawn is one of culpability of the accused.  Shri  

Sharan has also sought to draw the attention of the court to a recent  

judgment in Musheer     Khan     Alias     Badshah     Khan     and     anr  . Versus  

State     of     Madhya     Pradesh  2                                   to contend that the  

recovery of the alleged weapon, even if assumed, cannot reasonably  

lead to a conclusion which would justify the conviction of the  

accused-appellant. 1     ( 2009)  11  SCC  625  2      (2010)  2  SCC 748

1

Page 15

13. In reply Shri J.S. Attri, learned senior counsel for the State has  

contended that the failure of PW 1 to identify the accused-appellant  

as being present at the place of occurrence would not be fatal to the  

prosecution case, inasmuch as in the present case the prosecution  

has succeeded in proving, beyond all reasonable doubt, that the  

weapon recovered at the instance of the accused-appellant from  

Apartment No. F-4/64, Sector 16, Rohini, Delhi was used to fire upon  

the deceased.  It is contended that the three bullets recovered from  

the spot have been fired from the said weapon (Ex. PW 20/B).  The  

said circumstance, according to the learned State counsel, clinches  

the issue beyond all reasonable doubt.  It is argued that a firm  

conclusion with regard to the culpability of the accused can be  

reasonably drawn from the aforesaid circumstance proved in the  

present case.

14. The brief conspectus of facts set out above demonstrates that  

there is no direct evidence to connect the accused-appellant with the  

firing incident involving the deceased.  The only eye-witness  

examined by the prosecution, namely, PW 1 has categorically  

deposed that the accused-appellant Brijesh was not present  at the  

place of the crime on the date of occurrence and, in fact, he had seen  

1

Page 16

the accused-appellant for the first time in court.  The second person  

accompanying the deceased accused Satish to the STD booth along  

with the firearm therefore remained unidentified.  The prosecution, in  

the absence of any direct evidence, has sought to build up its case on  

the basis of circumstantial evidence.

15. The principles of law governing proof of a criminal charge by  

circumstantial evidence need hardly any reiteration. From the several  

decisions of this court available on the issue the said principles can  

be summed up by stating that not only the prosecution must prove  

and establish the incriminating circumstance(s) against the accused  

beyond all reasonable doubt   but the said circumstance(s) must give  

rise to only one conclusion to the exclusion of all others, namely, that  

it is accused and nobody else who had  committed the crime. The  

above principle is deducible from the five propositions laid down by  

this Court in Sharad     Birdhichand     Sarda   vs. State     of     Maharashtra  3    

which principles have been consistenly followed in Tanviben  

Pankajkumar     Divetia   vs. State     of     Gujarat     4  ,  Vikram     Singh   vs. State     of    

3 (1984) 4  SCC  116 (para 153) 4 (1997) 7  SCC  156

1

Page 17

Punjab  5  ,    Aftab     Ahmad     Anasari    vs. State     of     Uttaranchal     6   , Sanatan  

Naskar     and     anr  . vs. State     of     West     Bengal     7    and Mohd.     Arif     alias    

ASshfaq     vs. State     (NCT     of     Delhi)     8  .      

16. The next question that has to  engage the attention of the court  

is what are the circumstances that the prosecution has succeeded in  

proving in the present case and if so proved what is the conclusion  

that can be reached on the proved circumstances in the light of the  

principles of law indicated above.

17. The prosecution has asserted that on 12.08.2003 the accused-

appellant, after being arrested in connection with another case  

admitted his involvement in the present case. On the basis of  

statement made by him before SI –  Satish Kumar (PW 1); ASI –  

Ravinder (PW 2) and Constable –  Rajiv (PW 3) a .380 Calibre  

revolver was recovered from the second floor of Apartment No. F-

4/64, Rohini,Delhi.  The evidence of PWs 1, 2 and 3 examined in  

connection with FIR Case No. 456/03 as well as the evidence of  

Head Constable Rajiv (PW 3 ) in FIR Case No.456 who was  5 (2010) 3  SCC  56 6 (2010)  2 SCC  583 7 (2010)   8   SCC  249 8 (2011) 13  SCC   621

1

Page 18

examined as PW 19 in the present case indicates without doubt or  

ambiguity  the detailed facts in which the recovery was effected.  The  

cross-examination of three witnesses has not revealed any fact which  

would go in favour of the accused.  The defence witnesses, DW 1  

and DW 2, examined, in our considered view, have not succeeded in  

demolishing the prosecution version inasmuch as DW 1 –  Vijay  

Gupta admittedly was being interrogated in the police station on the  

date when the recovery was made.  On the other hand, DW 2 –Rajiv  

Chauhan has failed to prove that he was a tenant under DW 1, in  

respect of the second floor of the Apartment in question at the  

relevant time.  In such  circumstances the court will have to proceed  

on the basis that the recovery, as claimed by the  prosecution, has  

been proved by the evidence on record.

18. Our above finding would render the conviction of the accused-

appellant under Section 25 of the Arms Act wholly justified.  However,  

insofar as the charges under Section 302 and Section 460 read with  

Section 34 of the IPC is concerned, there are certain other connected  

facts and circumstances proved by the evidence on record which will  

have to be weighed by us in order to determine the consequence(s)  

that can be attributed to the accused from the recovery of the weapon  

1

Page 19

in question.  The recovery was affected after more than two years.  

The incident had occurred on 06.06.2001 and the recovery was made  

on 12.08.2003.  The prosecution has not proved that during the  

intervening period the weapon had not changed hands and the same  

was consistently possessed by the accused appellant Brijesh. The  

live and fired cartridges alongwith the bullets recovered from the  

place of occurrence and also the bullets recovered from the dead  

body in the course of post mortem were sent to the FSL Rohini.  The  

report has been exhibited as  Ex.PW-21/A.  The said report is dated  

28.02.2002, i.e. before the recovery of the .380 calibre revolver.  After  

the recovery of the weapon said was made, the weapon itself along  

with the cartridges (live and empty) as well as the four bullets  

recovered from the place of occurrence was sent to the CFSL  

Chandigarh and is covered by the report of PW 20 dated 28.11.2003  

(Ex.PW-20/B).  However, surprisingly, the bullets recovered from the  

dead body at the time of post mortem were not sent to the CFSL,  

Chandigarh.  This is evident from  the evidence of PW 25 – SI- Sanjiv  

Sharma.  No explanation for what appears to us to be a serious lapse  

on the part of the prosecution is forthcoming.  That apart, in Ex.PW-

20/B it is recorded that three out of the four bullets (recovered from  

1

Page 20

the place of occurrence) were fired from the recovered weapon.  The  

said bullets were not sent for serological examination to establish that  

the three bullets fired from the recovered weapon had entered and  

exited from the body of the deceased.  In such a situation a lingering  

doubt remains as to whether the prosecution in the present case  has  

succeeded in proving the charge against the accused-appellant  

beyond all reasonable doubt.  Furthermore, from  Ex.PW-20/B it is  

evident that one bullet (marked as B.2 by the Expert) was not fired  

from the .380 calibre firearm recovered at the instance of the  

appellant.  The first report of the FSL, Rohini, Delhi –  EX.PW21/A  

also indicates that one bullet of .380 calibre did not have any  

striations of riffling marks.  The prosecution has remained silent on  

the aforesaid aspect of the matter, though, from the two reports, the  

possibility of use of another fire arm of .380 calibres cannot be ruled  

out.

19. In the above context the decision of this court in Abdulwahab  

Abdulmajid     Baloch   vs. State     of     Gujarat   (supra) would be a particular  

significance.  Though the observations contained in  Paragraphs 37  

and 38 of the judgment have to be understood to have been rendered  

in the context of the facts of the case we find that the said  

2

Page 21

observations would squarely apply to  the present case.  

Consequently the aforesaid two paragraphs may be usefully  

extracted hereinbelow :

“  37.  Be that as it may, we feel that only because the  recovery of a weapon was made and the expert opined that  the bullet found in the body of the deceased was fired from  one of the weapons seized, by itself cannot be the sole  premise on which a judgment of conviction under Section 302  could be recorded.  There was no direct evidence.  The  accused, as noticed hereinbefore, was charged not only under  Section 302 read with Section 34 of the Penal Code but also  under Section 302 read with  Section 120-B thereof.  The  murder of the deceased was said to have been committed by  all the accused persons upon hatching a conspiracy.  This  charge has not been proved.

38. The learned trial Judge himself opined that the recovery  having been made after nine months, the weapon might have  changed in many hands.  In absence of any other evidence,  connecting the accused with commission of crime of murder  of the deceased, in our opinion, it is not possible to hold that  the appellant on the basis of such slander evidence could  have been found guilty for commission of offence punishable  under Section 302 of the Penal Code.”

20. Though the above discussions would lead us to the conclusion  

that the prosecution, in the present case, has succeeded in proving a  

highly incriminating circumstance against the accused –appellant,  

yet, we do not consider  that it would be wholly safe to hold that the  

only conclusion that can  follow from the aforesaid proved  

circumstance is that the accused Brijesh is responsible for the death  

2

Page 22

of the deceased that had occurred on 06.06.2001.  We have also  

noticed that the High Court has convicted the accused-appellant  

under Section 302 as well as Section 460 IPC with the aid of Section  

34.  In a situation where co-accused Satish had died during the trial  

and the other co-accused  Med Singh had been acquitted by the High  

Court, the culpability  of the present accused-appellant with the aid of  

Section 34 will be open to serious doubt.  Such culpability will have to  

be determined on the basis of individual overt acts on the part of the  

accused appellant for which we do not find any cogent and reliable  

material on record.   

21. Consequently, we hold that while the conviction of accused-

appellant under Section 25 of the Arms Act and the sentence  

imposed is justified, the accused-appellant is entitled to the benefit of  

our doubts with regard to the offences under Section 302 and Section  

460 read with Section 34 of the IPC.  We, therefore, set aside the  

judgment of the High Court insofar as the offence under Section 302  

and Section 460 read with Section 34 of the IPC is concerned.  The  

conviction of the accused-appellant under Section 25 of the Arms Act  

and the sentence imposed is upheld.  If the appellant is presently in  

custody and he has undergone the sentence imposed under Section  

2

Page 23

25 of the Arms Act he be released forthwith unless wanted in any  

other case.  

The appeals are disposed of in the aforesaid terms.

……………………………..J.

[SWATANTER KUMAR]

……………………………..j.

[RANJAN GOGOI]

New Delhi,

July 3, 2012

2

Page 24

2