BALVIR SINGH versus STATE OF MADHYA PRADESH on 19 February 2019

BALVIR SINGH

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No.1115 of 2010)

FEBRUARY 19, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860 – ss. 341, 302 r/w. 34 – Arms Act – s. 25(1A)r/w. s.27 – Prosecution case was that PW-2, PW-13 and victim weregoing on a motorcycle, on the way, they were stopped by accused(No.1 to 4) – Accused No.2 and 3 caught hold of victim and accusedNo.1 fired on the face of the victim from a very close range – Victimdied instantly – Incident was witnessed by PW-2, 3 & 13 – TrialCourt convicted accused (No.1 to 4) u/s. 341, 302 r/w. 34 IPC andaccused No.1 was also convicted u/s. 25(1A) r/w. s.27 of Arms Act– Conviction affirmed by the High Court – Accused (No.1 to 3)preferred appeal – Appellants-accused contended that there werematerial contradictions and inconsistencies in the testimony of eyewitnesses PW-2, 3 & 13 – Held: So long as the evidence of eyewitnesses is found credible and trustworthy, their evidence cannotbe doubted on the ground of minor contradictions – In instant case,PW-2, 3 & 13 had given a consistent and clear account of theincident – The alleged contradictions in the testimony of the eyewitnesses urged by the appellant are trivial and it does not affectthe case of the prosecution – The contradictions pointed out in theevidence of PW-2, 3 & 13 were normal discrepancies which are dueto normal errors of observations which, do not effect trustworthinessof the witnesses.

Evidence – Consistent versions of prosecution witnesses onthe touchstone of medical evidence – Appellant contended that therewere inconsistencies between the evidence of eye witnesses andmedical evidence – Held: The evidence of eye-witnesses are theeyes and ears of justice – Merely because victim sustained injuriesof different shapes, on the opinionative medical evidence, theconsistent evidence of eye-witnesses cannot be doubted – In instantcase, the inconsistencies pointed out in the evidence of eye-witnessinter se and the alleged inconsistencies between the evidence of

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Aeye-witnesses and that of the medical evidence are minorcontradictions and they do not shake the prosecution case – Thus,the consistent version of PW-2, 3 and 13 cannot be decided on thetouchstone of medical evidence.

Penal Code, 1860 – s.34 – Common intention – Trial CourtBconvicted accused (No.1 to 4) u/ss.341, 302/34 IPC – Convictionaffirmed by the High Court – On appeal, held: If accused Nos. 2and 3 had shared common intention, they would also had attackedthe victim, but they were only alleged to have caught hold of thevictim – Prosecution did not bring in evidence that there was priormeeting of minds and that accused Nos. 2 and 3 were havingCknowledge that their brother-accused No.1 was armed with Katta –Thus, conviction of accused Nos. 2 & 3 u/s. 302 r/w s.34 set aside.

Disposing of the appeals, the Court

HELD: 1. PWs 2, 3 and 13 had given a consistent and clearDaccount of the incident. All the three eye witnesses have attributedspecific overt act of beating the victim-deceased with lathi toaccused ‘B’, specific overt act of chasing the victim and holdinghim by accused No.2 and accused No.3 and the specific overt actof firing at the victim to accused No.1. Upon consideration of theevidence of eye witnesses PWs 2, 3 and 13, the trial court foundEthat the evidence of the eye witnesses is credible and trustworthy.

[Para 13] [554-C-D]

[Para 13] [554-C-D]

2. Contention of the appellants is that the occurrence wasa blind murder and testimony of the eye witnesses PWs 2, 3 and13 are not reliable as the same suffers from material contradictionsFand inconsistencies. The alleged contradictions in the testimonyof the eye witnesses that are being urged by the appellants aretrivial i.e. with respect to the number of blows given to the victim-deceased with lathi by accused ‘B’, part of the body where thebullet was shot and the distance from where accused no.1 fired atGvictim etc. Such contradictions pointed out in the evidence ofthe three eye witnesses are minor which do not affect the core ofthe prosecution case. The discrepancies pointed out in theevidence of eye witnesses regarding the number of blows, thedistance between appellant-accused no.1 and victim, and the partof the body of victim where the bullet hit are may be due to normalH

errors of observation narrating the occurrence, which they havewitnessed. The power of observation differs from person toperson witnessing an attack. While the prime event of attackand the weapon are observed by a person, other minute detailsof number of blows, the distance from which the fire was shotmight go unnoticed. So long as the evidence of eye witnesses isfound credible and trustworthy, their evidence cannot be doubtedon the ground of minor contradictions. [Para 14] [554-E-H;555-A]

3. In the present case, the contradictions pointed out inthe evidence of PW-2, PW-3 and PW-13 are only normaldiscrepancies which are due to normal errors of observation whichdo not affect the trustworthiness of these witnesses. [Para 16][555-F]

4. Apart from the gunshot injuries which caused the death,there were nine other injuries found on the body of victim-deceased. PW-9-Doctor opined that the injuries sustained by thevictim on his back and arms were of different shapes andtherefore, there is a possibility that they must have been causedby different weapons. In an attack on the person, the nature ofinjuries sustained depends upon the manner of attack and howthe person was positioned and the resistance offered by him.Victim was indiscriminately attacked by accused ‘B’ with lathiand there is possibility of the victim sustaining injuries of differentshapes. Merely because victim sustained injuries of differentshapes, on the opinionative medical evidence, the consistentevidence of eye witnesses cannot be doubted. It is well settledthat the oral evidence has to get primacy since medical evidenceis basically opinionative. [Paras 25, 26] [558-F-H; 559-A-B]

5. The inconsistencies pointed out in the evidence of eye-witnesses inter se and the alleged inconsistencies between theevidence of eye-witnesses and that of the medical evidence areminor contradictions and they do not shake the prosecution case.The evidence of eye witnesses are the eyes and ears of justice.The consistent version of PWs 2, 3 and 13 cannot be decided onthe touchstone of medical evidence. [Para 27] [559-E]

6. To invoke Section 34 IPC, it must be established thatthe criminal act was done by more than one person in furtherance A

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Aof common intention of all. It must, therefore, be proved that: (i)there was common intention on the part of several persons tocommit a particular crime, and (ii) the crime was actuallycommitted by them in furtherance of that common intention. Theessence of liability under Section 34 IPC is simultaneousconscious mind of persons participating in the criminal action toBbring about a particular result. Minds regarding sharing ofcommon intention gets satisfied when an overt act is establishedqua each of the accused. Common intention implies pre-arrangedplan and acting in concert pursuant to the pre-arranged plan.Criminal act mentioned in Section 34 IPC is the result of theCconcerted action of more than one person and if the said resultwas reached in furtherance of common intention, each person isliable for the offence as if he has committed the offence by himself.[Para 33] [561-C-E]

7. Though it is stated that accused Nos.2 and 3 wereDpresent along with accused No.1, the fact remains that they werenot armed. After being hit by accused ‘B’ on the back whenvictim-deceased ran, accused Nos.2 and 3 are alleged to havefollowed him and accused no.2 allegedly caught the right arm ofvictim and accused no.3 held the left arm of victim. It is also brought in evidence that accused ‘B’ was giving lathi blows toEvictim even when he was running. If accused Nos.2 and 3 haveshared the common intention, they would also have attacked thedeceased; but they were only alleged to have caught hold of thedeceased. The prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos.2 and 3 wereFhaving knowledge that their brother accused no.1 was armed withkatta. The evidence adduced by the prosecution is not convincingto hold that accused Nos.2 and 3 also shared the commonintention with the accused no.1 and other accused ‘B’ incommitting the murder of victim. Conviction of accused Nos. 2and 3 under Section 302 read with Section 34 IPC is, therefore,Gliable to be set aside. However, conviction of the appellant/accused No.1 under Sections 302 IPC, 341 IPC and Section25(1A) read with Section 27 of the Arms Act and the sentence oflife imprisonment imposed upon him is affirmed.[Paras 37 and 38] [563-B-F]H

Appabhai and Another v. State of Gujarat(1988)Suppl. SCC 241;Annareddy Sambasiva Reddy andOthers v. State of Andhra Pradesh(2009) 12 SCC546 : [2009] 6 SCR 755 ;Rammi alias Rameshwar v.State of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl.SCR 1;Ramanand Yadav v. Prabhu Nath Jha andOthers (2003) 12 SCC 606 ;Ramesh Singh alias Phootiv. State of A.P. (2004) 11 SCC 305 – relied on.

State of Uttar Pradesh v. Ram Kumar and Others(2017) 14 SCC 614 ;State of U.P. v. Krishna Gopaland Another (1988) 4 SCC 302 ; [1988] 2 Suppl.SCR 391;Balu @ Bala Subaramaniam and Anotherv. State (UT of Pondicherry) (2016) 15 SCC 471 : [2015]12 SCR 1096 ;Dhanna v. State of M.P.(1996) 10SCC 79 : [1996] 4 Suppl. SCR 28 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1115 of 2010.

From the Judgment and Order dated 26.08.2008 of the High Courtof Judicature at Jabalpur, Madhya Pradesh in Criminal Appeal No. 1124of 1999

WITH

Criminal Appeal Nos. 1116 and 1119 of 2010.

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ARaj Kishor Choudhary, Abdul Karim Ansari, Shakeel Ahmed,Ms. Chitranjali Negi, Aftab Ali Khan, Sanjay Jain, Advs. forthe Appellant.

Mrs. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar,Ms. Indira Bhakar, Ms. Aparna Trivedi, Santanu Singh, Advs. for theBRespondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1.These appeals arise out of the judgmentdated 26.08.2008 passed by the High Court of Judicature at MadhyaPradesh at Jabalpur in and by which the High Court affirmed theCconviction of the appellants (Accused No.1 to 4) under Sections 341,302 and 302 read with 34 IPC and the sentence of imprisonment for lifeimposed upon each of the accused. The High Court also affirmed theconviction of the appellant/accused Harnam Singh under Section 25(1A)read with Section 27 of the Arms Act and the sentence of three yearsDrigorous imprisonment imposed upon him.

2. Briefly stated case of the prosecution is that on 11.03.1998 atabout 05.30 PM, Mohan Mehtar belonging to Scheduled Caste was goingon motor cycle along with Santosh Rai (PW-2) and Kamal @ Kamlesh(PW-13) to Railway Colony. When they reached near AdvocateEMishra’s lane, accused Harnam Singh, Balvir Singh, Bhav Singh andBharat Thakur stopped the motor cycle driven by Santosh Rai (PW-2).Accused Harnam Singh asked Mohan Mehtar to come down as theywanted to talk with him. When Mohan Mehtar came down frommotorcycle, accused Bharat Thakur attacked Mohan with lathi on hisback. When Mohan Mehtar ran towards Advocate Mishra’s lane toFsave himself, he was caught hold by accused Balvir Singh and BhavSingh and at that time, accused Harnam Singh fired with the countrymade pistol on the face of Mohan from very close distance and thebullet hit the brain and cornea of the left eye and Mohan diedinstantaneously on the spot. The incident was witnessed by Santosh RaiG(PW-2), Devendra Rai (PW-3) and Kamal @ Kamlesh (PW-13) andothers.

3. Informant Santosh (PW-2) lodged the complaint before thePolice Station Bina on the basis of which FIR No.114/98 was lodged on11.03.1998 at 06.00 PM against the appellants for the offence punishable H

under Sections 341, 294, 323, 302, 506B, 34 IPC and under Section3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act. Dr. P.K. Jain (PW-9) conducted the post-mortem ofdeceased Mohan Mehtar and opined that the death was due to gun-shotinjury. The bullet hit the brain and cornea of left eye and remainingportion was completely missing. Gun powder was also found present inthe eyes. Dr. Jain (PW-9) opined that death was caused due to braincentre present in the skull damaged due to the injuries sustained fromthe above cartridge which stopped the heart and respiration.

4. The accused persons were arrested and on the basis of theirdisclosure statement recorded under Section 27 of the Evidence Act,country made pistol of 0.315 bore was seized from the bottom shelf ofthe almirah in the house of accused Harnam Singh. The blood-stainedclothes of Harnam Singh were also recovered. The seized pistol wassent to Forensic Science Laboratory, Sagar. Upon examination of theweapon, the pistol was found to be in operative condition. The damagedcopper cartridge which was recovered from the body of the deceaseddid not have barrel marks. The ballistic expert therefore opined that thebarrel marks were not sufficient for decisive matching. Upon completionof investigation, charge sheet was filed against the accused for theoffences punishable under Sections 147, 148, 149, 341, 294, 323, 506B,302 IPC and under Section 25 read with Section 27 of the Arms Actand under Section 3(2)(V) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act in the court of Special Judge,Sagar, M.P.

5. To bring home the guilt of the accused, prosecution has examinedfourteen witnesses and marked number of documents. On the side ofthe accused, Babu Lal (DW-1) was examined who had stated that theoccurrence took place at 03:30 PM on 11.03.1998 and he had not seenany of the accused on the spot at the relevant point of time. All theaccused were questioned under Section 313 Cr.P.C. about theincriminating evidence and circumstances and the accused denied all ofthem stating that a false case has been filed against them.

6. Upon consideration of oral and documentary evidence, the trialcourt convicted the accused and sentenced them to undergo imprisonmentas under:- AB

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The accused were acquitted of the charge under Sections 147,148, 506B IPC and Section 3(2)(V) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act. The trial court acquittedaccused Suraj from all the charges. Being aggrieved, the appellants havepreferred appeal before the High Court which came to be dismissed byDthe impugned judgment. Being aggrieved, the appellants are before us.Accused Bharat Singh have not preferred any appeal before us.

7. The learned counsel for the appellants inter alia submittedthat it is a case of blind murder and that the FIR is ante dated as itcontains the Inquest No.10/98 and the eye witnesses were introduced inEthe FIR which suffers from manipulations. It was submitted that themedical evidence is completely contrary to the evidence adduced byeye witnesses on two counts namely:- (i) number of weapons used andthe injuries; and (ii) distance from which the shot was fired. It wasurged that as per the FSL Report, there was no sufficient barrel marksin the cartridge for decisive matching with the pistol allegedly recoveredFfrom the appellant Harnam Singh and this raises serious doubts aboutthe occurrence and the involvement of appellant Harnam Singh. It wasfurther submitted that as per the evidence of Babu Lal (DW-1), theincident took place at 03.30 PM and it was a blind murder and the HighCourt and the trial court failed to take into consideration the evidence ofGBabu Lal (DW-1). The learned counsel appearing for the appellantsBalvir Singh and Bhav Singh urged that the eye witnesses PWs 2, 3 and13 are not reliable witnesses and the courts below erred in invokingSection 34 IPC for convicting appellants Balvir Singh and Bhav Singhunder Section 302 IPC read with Section 34 IPC.

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8. Taking us through the impugned judgment and other materialson record, the learned counsel appearing for the State submitted that theconviction of the appellants is based upon the evidence of eye witnessesSantosh Rai (PW-2), Devendra Rai (PW-3) and Kamal (PW-13) whichis corroborated by the medical evidence and FSL Report and theconviction of the appellants-accused does not warrant any interference.

9. We have carefully considered the submissions of the learnedcounsel for the appellants and the State and perused the impugnedjudgment and the evidence and materials on record.

10. Santosh Rai (PW-2) and Kamal (PW-13) who were goingalong with deceased Mohan on the motor cycle, are the eye witnesses.The prosecution has also examined Devendra Rai (PW-3) as anothereye witness. In his evidence, PW-2 stated that on 11.03.1998 at 05.30PM, he was riding the motor cycle and deceased Mohan and Kamal(PW-13) were with him on the motor cycle. PW-2 had stated that onbeing stopped by appellant Harnam Singh, Mohan got down from themotor cycle and accused Bharat gave him a blow of lathi on his back.After the deceased was so attacked with blow of lathi, there was scuffleand the deceased ran away towards Advocate Mishra’s lane to savehimself. PW-2 further stated that at that time appellant Harnam Singhexhorted to catch hold of Mohan and accused Balvir (A2) and BhavSingh (A3) caught hold of Mohan. Appellant Harnam Singh went closeto Mohan and shot him on his face with his country made pistol. PW-13who was sitting behind Mohan on the motor cycle has also clearly spokenabout the occurrence and thus corroborated the evidence of PW-2.

11. Devendra Rai (PW-3) had also corroborated the evidence ofPW-2 that he saw the motor cycle being stopped by appellant HarnamSingh and that he took Mohan towards the street. PW-3 stated thatwhen Mohan got down, first blow of lathi was hit at his waist by accusedBharat and when Mohan ran towards the street, on being exhorted byHarnam Singh, accused Balvir Singh and Bhav Singh caught hold ofMohan and appellant Harnam Singh fired at the face of Mohan fromcountry made pistol. PW-3 had spoken about the presence of PW-2 andPW-13 at the scene of occurrence along with deceased Mohan.

12. Case of prosecution is assailed on the ground that it was ablind murder and that there were actually no eye witness and the eyewitnesses were introduced in the FIR which was prepared subsequently.

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AThere is no merit in the contention that there were no eye witnesses forthe occurrence and that it was a blind murder. Santosh Rai (PW-2) andKamal (PW-13) have explained as to how they happened to be withdeceased Mohan by going along with him on the motor cycle. Likewise,PW-3 has also stated that at about 05.00 PM-06.00 PM, he had gone tothe Jhansi Gate which is on the other side of the railway line and at thatBtime, he saw PW-2, PW-13 and Mohan coming on the motor cycle. Thepresence of all the three witnesses as spoken by them is natural andboth the courts below held that their evidence inspires confidence. It ispertinent to note that the FIR registered at 06.00 PM on 11.03.1998 alsocontains the names of PW-2, PW-3 and PW-13.

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13. PWs 2, 3 and 13 had given a consistent and clear account ofthe incident. All the three eye witnesses have attributed specific overtact of beating the deceased with lathi to accused Bharat Singh, specificovert act of chasing the deceased and holding him by accused No.2-Balvir Singh and accused No.3-Bhav Singh and the specific overt act of Dfiring at the deceased to accused No.1-Harnam Singh. Uponconsideration of the evidence of eye witnesses PWs 2, 3 and 13, the trialcourt found that the evidence of the eye witnesses is credible andtrustworthy.

14. Contention of the appellants is that the occurrence was aEblind murder and testimony of the eye witnesses PWs 2, 3 and 13 arenot reliable as the same suffers from material contradictions andinconsistencies. The alleged contradictions in the testimony of the eyewitnesses that are being urged by the appellants are trivial i.e. with respectto the number of blows given to the deceased with lathi by accusedBharat Singh, part of the body where the bullet was shot and the distanceFfrom where Harnam Singh fired at Mohan etc. Such contradictionspointed out in the evidence of the three eye witnesses are minor whichdo not affect the core of the prosecution case. The discrepancies pointedout in the evidence of eye witnesses regarding the number of blows, thedistance between appellant Harnam Singh and deceased Mohan andGthe part of the body of deceased where the bullet hit are may be due tonormal errors of observation narrating the occurrence, which they havewitnessed. The power of observation differs from person to personwitnessing an attack. While the prime event of attack and the weaponare observed by a person, other minute details of number of blows, thedistance from which the fire was shot might go unnoticed. So long asH

the evidence of eye witnesses is found credible and trustworthy, theirevidence cannot be doubted on the ground of minor contradictions.

15. It is fairly well settled that the minor discrepancies in theevidence of the eye-witnesses do not shake their trustworthiness. InAppabhai and Another v. State of Gujarat 1988 Supp SCC 241, theSupreme Court held as under:- “13. ………. The discrepancies which do not shake the basicversion of the prosecution case may be discarded. Thediscrepancies which are due to normal errors of perception orobservation should not be given importance. The errors due tolapse of memory may be given due allowance. The court by callinginto aid its vast experience of men and matters in different casesmust evaluate the entire material on record by excluding theexaggerated version given by any witness. When a doubt arisesin respect of certain facts alleged by such witness, the propercourse is to ignore that fact only unless it goes into the root of thematter so as to demolish the entire prosecution story. The witnessesnowadays go on adding embellishments to their version perhapsfor the fear of their testimony being rejected by the court. Thecourts, however, should not disbelieve the evidence of suchwitnesses altogether if they are otherwise trustworthy……...”.

16. The well-settled principle that minor discrepancies in the oraltestimony of the witnesses do not affect the trustworthiness of thewitnesses, has been reiterated in Annareddy Sambasiva Reddy andOthers v. State of Andhra Pradesh (2009) 12 SCC 546 and Rammialias Rameshwar v. State of M.P. (1999) 8 SCC 649. In the presentcase, the contradictions pointed out in the evidence of Santosh Rai(PW-2), Devendra Rai (PW-3) and Kamal (PW-13) are only normaldiscrepancies which are due to normal errors of observation which, inour view, do not affect the trustworthiness of these witnesses.

17. Credibility of Devendra Rai (PW-3) is assailed on the groundthat he is involved in about 10-15 criminal cases including a murdercase. During his cross-examination, a suggestion was put to him thataccused No.2-Balvir Singh had given testimony against PW-3 and hehas enmity towards Balvir Singh and his family and therefore, he isfalsely deposing against the accused Nos.1 to 3 who are real brothers.It was also suggested to PW-3 that his father has registered a case A

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Aagainst accused Harnam Singh and Balvir Singh and that they wereacquitted in the said case about which PW-3 denied having anyknowledge. PW-3 has denied being involved in any criminal case;however, he has admitted that proceedings under Section 110 Cr.P.C.were initiated against him. Testimony of PW-3 cannot be doubted onthe ground that he is involved in criminal cases or that he is inimicalBtowards Balvir Singh and Harnam Singh. It is pertinent to note thatname of PW-3 has been mentioned even in the FIR that he had gonewith deceased Mohan on the motor cycle. The antecedents of theprosecution witnesses cannot be the ground for doubting their version.This is all the more so, when the courts below have recorded concurrentCfindings of fact holding that the testimony of the witnesses is credibleand acceptable.

18. Re: Contention – Mention of Inquest Number in theFIR The learned counsel appearing for appellant Harnam Singh hasdrawn our attention to the FIR - Column No.11, Inquest Report – CaseDNo.10/98 and contended that the FIR contains the Inquest No.10/98whereas the number of FIR has not been mentioned in the Inquest Report.It was urged that the very mention of Inquest Number in the FIR andnon-mentioning of FIR Number in the Inquest Report raises serious doubtabout the time and the manner of occurrence as alleged by theprosecution. Refuting the said contention, the learned counsel appearingEfor the State submitted that the FIR which gives an option to mentioninquest number as against that column in the printed form, inquest numberwas handwritten and it cannot be said that the FIR was registeredsubsequent to the inquest.

19. FIR is a printed format which contains Column No.11 –F“Inquest Report”. Column No.11 of the FIR, of course, contains theInquest No.10/98. Merely because the FIR contains inquest number, itcannot be said that the FIR was registered subsequent to the inquest. InState of Uttar Pradesh v. Ram Kumar and others (2017) 14 SCC614, the Supreme Court held that “the mere fact that on the inquestGreport FIR No. was written by different ink cannot be the basis forobserving that the FIR was ante-timed or ante-dated”. On beingquestioned, Investigating Officer S.D. Khan (PW-14) has stated that hehas registered the Inquest Report 10/98 with regard to the death ofdeceased Mohan under Section 174 Cr.P.C. As seen from the evidenceof PW-2, after the occurrence, dead body of Mohan was lying twentyH

yards away from the road and he went to the police station to lodge thecomplaint via Lallu fourway and Sarvodya fourway. The inquest beingdone at the spot and FIR being registered at the Police Station underSections 302, 506B, 341, 294, 323, 34 IPC and Section 3(2)(V) ofScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,mention of inquest number in the FIR does not affect the prosecutioncase nor does it affect the credibility of the eye witnesses.

20. Delay in FIR – For the occurrence on 11.03.1998 at05.30 PM, FIR No.114/98 was registered on the same day at 06.00 PM.As per the evidence of Constable Radhey Shyam (PW-10), FIR washanded over before the Court of JMFC, Bina on 12.03.1998. So far asthe contention regarding delay in receipt of the FIR in the court, the trialcourt held that not sending the FIR immediately to the Court after itsregistration, cannot be put against the prosecution case since after05.30 PM, the court timing gets over and in these circumstances,production of FIR before the Court on the next day during the courttimings does not indicate that the FIR is ante dated. The case ofprosecution, in our view, cannot be doubted on the ground of delay inreceipt of the FIR in the court.

21. Re: Contention - Inconsistency between the MedicalEvidence and Oral Evidence – In his evidence, PW-2 has stated thatHarnam Singh fired shot at Mohan’s face and PWs 3 and 13 stated thatHarnam Singh fired at the left eye of Mohan. As pointed out earlier, inhis evidence, Dr. P.K. Jain (PW-9) stated that the cornea and remainingpart of the left eye was completely missing and a bullet was found nearthe cerebellum. Gun powder was found present in the eyes of thedeceased. PW-9 opined that the cause of death was due to damage ofbrain centre present in the skull due to injuries caused by the cartridgewhich resulted in stoppage of heart beat and respiration. As per theopinion of Dr. Jain (PW-9), death was caused mainly due to bullet hit inthe brain. On being questioned, PW-9 stated that the fire was from aclose distance as seen from the presence of gun powder in the left eyeof the deceased. Dr. Jain has opined that since there were marks ofgunshot around the left eye, the shot must have been fired from veryclose distance of about one foot.

22. Contention of the appellant is that PW-2 in his evidence statedthat Harnam Singh was about 1-2 yards away from deceased Mohan at AB

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Athe time when the bullet was fired. It was therefore contended that thecontradictions regarding the distance from which the accused HarnamSingh fired at Mohan raises serious doubts about the prosecution case.

23. Of course, PW-2 has stated that when Harnam Singh fired,he was at a distance of 1-2 yards away from Mohan; but PWs 3 and 13Bhave clearly stated that the deceased was held by appellants Balvir Singhand Bhav Singh and Harnam Singh fired at the deceased from a closedistance. As pointed out earlier, accused Balvir Singh and Bhav Singhwere said to be holding the hands of the deceased and it is possible thatthe gun shot hit at the eyes of Mohan. All three eye witnesses haveconsistently stated that Harnam Singh fired the gunshot at the face ofCMohan. The variation in the evidence of PW-2 as to the distance fromwhich the bullet was fired cannot be said to be fatal affecting theprosecution case.

24. It has been urged by the learned counsel for the appellantHarnam Singh that the doctor who conducted the post-mortem had notDmarked the track of the bullet in his report. It was submitted that whenthe deceased was shot, the position of his face was upwards and whenthe face is up, it is doubtful that Harnam Singh could have fired at theeyes of the deceased. As pointed out by the trial court, during the courseof scuffle and when the deceased was running away to save himself,Ethe position of the face of deceased cannot be ascertained as beingupwards or not so as to doubt the prosecution version that the gunshothit at the left eye of Mohan. The above contention advanced on thebasis of the opinion of the doctor cannot affect the oral evidence of theeye witnesses.F25. Apart from the gunshot injuries which caused the death, there F25. Apart from the gunshot injuries which caused the death, therewere nine other injuries found on the body of deceased Mohan. Mohansustained bruise on the left arm, left side of the chest; contusion andlacerated wound in the middle of the head and incised wound on the leftside of the chin. Dr. Jain (PW-9) opined that the injuries sustained bythe deceased on his back and arms were of different shapes and therefore,Gthere is a possibility that they must have been caused by differentweapons. In an attack on the person, the nature of injuries sustaineddepends upon the manner of attack and how the person was positionedand the resistance offered by him. Mohan was indiscriminately attackedby accused Bharat Singh with lathi and there is possibility of the deceased H

sustaining injuries of different shapes. Merely because deceased Mohansustained injuries of different shapes, on the opinionative medicalevidence, the consistent evidence of eye witnesses cannot be doubted.

26. It is well settled that the oral evidence has to get primacysince medical evidence is basically opinionative. In Ramanand Yadavv. Prabhu Nath Jha and others(2003) 12 SCC 606, the Supreme Courtheld as under:- “17. So far as the alleged variance between medical evidenceand ocular evidence is concerned, it is trite law that oral evidencehas to get primacy and medical evidence is basically opinionative.It is only when the medical evidence specifically rules out theinjury as is claimed to have been inflicted as per the oral testimony,then only in a given case the court has to draw adverse inference.”

The same principle was reiterated in State of U.P. v. KrishnaGopal and another (1988) 4 SCC 302, where the Supreme Court held“that eyewitnesses’ account would require a careful independentassessment and evaluation for their credibility which should not beadversely prejudged making any other evidence, including medicalevidence, as the sole touchstone for the test of such credibility.”

27. The inconsistencies pointed out in the evidence of eye-witnesses inter se and the alleged inconsistencies between the evidenceof eye-witnesses and that of the medical evidence are minorcontradictions and they do not shake the prosecution case. The evidenceof eye witnesses are the eyes and ears of justice. The consistent versionof PWs 2, 3 and 13 cannot be decided on the touchstone of medicalevidence.

28. Recovery of pistol and FSL report - Based on theconfessional statement of appellant-Harman Singh, a country made pistol(Article ‘A’) was recovered from the bottom shelf of the almirah in thehouse of appellant-Harman Singh. Recovery of country made pistol fromthe house of appellant-Harman Singh is proved by the evidence of IOS.D. Khan (PW-14).

29. Ext.-P30 is the FSL report as per which the pistol (Article‘A’) is a country made pistol which was found to be in operative conditionand the testing was successfully done. The bullet recovered from thebody of deceased Mohan was marked as EB1. In the FSL report, expert A

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Aopined that the barrel marks found on the cartridge were not sufficientfor decisive matching. The FSL report reads as under:-

“ExhibitA1 is one Country Made Pistol, which is made to fire0.315” bore Cartridge. It is in working condition. It’s Barrel isfound to have remnants of firing. It is not possible to say withBscientific certainty the last time this was fired. It can be fired tocause injury likely to cause death.

Exhibit EB1 is one 0.315" bore cartridge like bullet. It is copperjacketed/of soft point and is partially damaged. It does not havemarks of regular firing. It has barrel marks which are not sufficient.Thus in absence of matching it is not possible to say whether thisCis fired from Exhibit A1 or any other similar pistol like ExhibitA1.” [underlining added]

From the FSL report (Ext.-P30), it is made clear that the pistolrecovered from accused Harnam Singh was in working condition andthat the fatal injuries could be caused from using the said country madeDpistol (Article ‘A’) recovered from appellant-Harman Singh.

30. Learned counsel appearing for the appellant-Harnam Singhsubmitted that as per the FSL report, the experts could not give a definiteopinion that whether the bullet has been fired from the country madepistol recovered from appellant-Harman Singh or any other similar pistolElike the said pistol. It was therefore, submitted that the prosecution hasfailed to prove that the recovered bullet from the body of deceased hasbeen fired from the pistol (Article ‘A’) and therefore, the overt-act offiring cannot be attributed to appellant-Harnam Singh. In the FSL report,it is stated that bullet was “a fired and partially damaged CopperFCartridge/Soft Point Bullet with blood like substance on the same”.The FSL report further states that the cartridge does not have marks ofregular rifling and the barrel marks found are not sufficient for decisivematching. All that the FSL report states is that the barrel marks are notsufficient to give decisive matching. When the case of the prosecution isbased on the eye-witnesses, the indecisive opinion given by the expertsGwould not affect the prosecution case.

31. The next point falling for consideration is whether the trialcourt and the High Court were right in convicting the accused Nos.2and 3 under Section 302 IPC read with Section 34 IPC that they haveacted in furtherance of common intention in committing the murder ofHMohan.

32. Common intention of Accused Nos.2 and 3:- As discussedearlier, eye witnesses PWs 2, 3 and 13 have consistently stated that onbeing attacked by accused Bharat with lathi on the back, when deceasedMohan ran towards the street, accused No.2-Balvir Singh and accusedNo.3-Bhav Singh ran after him and said to have caught hold of Mohanand at that time, Harnam Singh fired from the country made pistol on theface of Mohan. Case of the prosecution is that accused Nos.2 and 3were present along with Harnam Singh and accused Bharat who werearmed with pistol and lathi respectively. The appellants Balvir Singhand Bhav Singh were unarmed and when Mohan ran towards the street,on exhortation by Harnam Singh, accused Nos.2 and 3 ran after Mohanand caught hold of him.

33. To invoke Section 34 IPC, it must be established that thecriminal act was done by more than one person in furtherance of commonintention of all. It must, therefore, be proved that: (i) there was commonintention on the part of several persons to commit a particular crime, and(ii) the crime was actually committed by them in furtherance of thatcommon intention. The essence of liability under Section 34 IPC issimultaneous conscious mind of persons participating in the criminal actionto bring about a particular result. Minds regarding sharing of commonintention gets satisfied when an overt act is established qua each of theaccused. Common intention implies pre-arranged plan and acting inconcert pursuant to the pre-arranged plan. Criminal act mentioned inSection 34 IPC is the result of the concerted action of more than oneperson and if the said result was reached in furtherance of commonintention, each person is liable for the offence as if he has committed theoffence by himself.

34. Observing that the inference of common intention is to bedrawn from the conduct of the accused, in Ramesh Singh alias Phootiv. State of A.P. (2004) 11 SCC 305, the Supreme Court held as under:- “12. ……. As a general principle in a case of criminal liability it isthe primary responsibility of the person who actually commits theoffence and only that person who has committed the crime canbe held guilty. By introducing Section 34 in the Penal Code thelegislature laid down the principle of joint liability in doing a criminalact. The essence of that liability is to be found in the existence ofa common intention connecting the accused leading to the doingof a criminal act in furtherance of such intention. Thus, if the act AB

C

D

E

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GH

Ais the result of a common intention then every person who did thecriminal act with that common intention would be responsible forthe offence committed irrespective of the share which he had inits perpetration. Section 34 IPC embodies the principle of jointliability in doing the criminal act based on a common intention.Common intention essentially being a state of mind it is very difficultBto procure direct evidence to prove such intention. Therefore, inmost cases it has to be inferred from the act like, the conduct ofthe accused or other relevant circumstances of the case. Theinference can be gathered from the manner in which the accusedarrived at the scene and mounted the attack, the determinationCand concert with which the attack was made, and from the natureof injury caused by one or some of them. The contributory acts ofthe persons who are not responsible for the injury can further beinferred from the subsequent conduct after the attack. In thisregard even an illegal omission on the part of such accused canindicate the sharing of common intention. In other words, the totalityDof circumstances must be taken into consideration in arriving atthe conclusion whether the accused had the common intention tocommit an offence of which they could be convicted. (See NoorMohammad Mohd. Yusuf Momin v. State of Maharashtra (1970)1 SCC 696)”EThe decision in Ramesh Singh was referred to in Balu @ BalaSubaramaniam and another v. State (UT of Pondicherry) (2016) 15SCC 471.

35. In the light of above principles, let us consider whether theprosecution has proved that accused Nos.2 and 3 had the commonFintention and acted in furtherance of the common intention. Initially,there were five accused and the accused were charged under Sections147 and 149 IPC along with other charges. Since accused Suraj wasacquitted of the charges, placing reliance upon Dhanna v. State of M.P.(1996) 10 SCC 79, the trial court invoked Section 34 IPC to convictGaccused Nos.2 and 3 under Section 302 IPC read with Section 34 IPC.

36. Whether the courts below were right in convicting accusedNos.2 and 3 by invoking Section 34 IPC, is the point falling forconsideration?

37. Deceased Mohan and accused Harnam Singh were workingHin the railways and regarding the money transactions, there was enmity

between them. It is brought in evidence through PW-2 that 2-3 daysprior to the incident, there were arguments and quarrel between accusedHarnam Singh and deceased Mohan near the house of PW-2. AccusedNo.2-Balvir Singh and accused No.3-Bhav Singh are the real brothersof accused No.1-Harnam Singh. Though it is stated that accused Nos.2and 3 were present along with accused Harnam Singh, the fact remainsthat they were not armed. After being hit by accused Bharat on theback when Mohan ran, accused Nos.2 and 3 are alleged to have followedhim and accused Balvir Singh allegedly caught the right arm of Mohanand accused Bhav Singh held the left arm of Mohan. It is also broughtin evidence that accused Bharat was giving lathi blows to Mohan evenwhen he was running. If accused Nos.2 and 3 have shared the commonintention, they would also have attacked the deceased; but they wereonly alleged to have caught hold of the deceased. The prosecution didnot bring in evidence that there was prior meeting of minds and thataccused Nos.2 and 3 were having knowledge that their brother accusedHarnam Singh was armed with katta. The evidence adduced by theprosecution is not convincing to hold that accused Nos.2 and 3 alsoshared the common intention with the accused Harnam Singh and otheraccused Bharat in committing the murder of Mohan. Conviction ofaccused Nos. 2 and 3 under Section 302 read with Section 34 IPC is,therefore, liable to be set aside.

38. Conviction of the appellant/accused No.1 Harnam Singh underSections 302 IPC, 341 IPC and Section 25(1A) read with Section 27 ofthe Arms Act and the sentence of life imprisonment imposed upon him isaffirmed and Criminal Appeal No.1119 of 2010 is dismissed. AccusedHarnam Singh shall surrender himself within four weeks from the dateof this judgment to serve the remaining sentence, failing which, he shallbe taken into custody.

39. Conviction of accused No.2-Balvir Singh and accused No.3-Bhav Singh under Section 302 IPC read with Section 34 IPC and Section341 IPC is set aside and they are acquitted of the charges under Section302 IPC read with Section 34 IPC and Section 341 IPC and their appealsCriminal Appeal No.1115 of 2010 and Criminal Appeal No.1116 of 2010are allowed. Bail bonds of the accused Balvir Singh and Bhav Singhshall stand discharged.

Ankit Gyan

Appeals disposed of.

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