prior meeting of minds – Section 34 IPC to convict accused = allegedly caught the right arm of Mohan and accused Bhav Singh held the left arm of Mohan. It is also brought in evidence that accused Bharat was giving lathi blows to Mohan even when he was running. If accused Nos.2 and 3 have shared the common intention, they would also have attacked the deceased; but they were only alleged to have caught hold of the deceased -The prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos.2 and 3 were having knowledge that their brother accused Harnam Singh was armed with katta. The evidence adduced by the prosecution is not convincing to hold that accused Nos.2 and 3 also shared the common intention with the accused Harnam Singh and other accused Bharat in committing the murder of Mohan. Conviction of 23 accused Nos. 2 and 3 under Section 302 read with Section 34 IPC is, therefore, liable to be set aside. Conviction of accused No.2-Balvir Singh and accused No.3- Bhav Singh under Section 302 IPC read with Section 34 IPC and Section 341 IPC is set aside and they are acquitted of the charges under Section 302 IPC read with Section 34 IPC and Section 341 IPC and their appeals Criminal Appeal No.1115 of 2010 and Criminal Appeal No.1116 of 2010 are allowed.


Hon’ble Mrs. Justice R. Banumathi 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1115 OF 2010
BALVIR SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent

WITH
CRIMINAL APPEAL NO.1116 OF 2010
BHAV SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent
CRIMINAL APPEAL NO.1119 OF 2010
HARNAM SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated
26.08.2008 passed by the High Court of Judicature at Madhya
Pradesh at Jabalpur in and by which the High Court affirmed
the conviction of the appellants (Accused No.1 to 4) under
Sections 341, 302 and 302 read with 34 IPC and the sentence
of imprisonment for life imposed upon each of the accused.
1
The High Court also affirmed the conviction of the
appellant/accused Harnam Singh under Section 25(1A) read
with Section 27 of the Arms Act and the sentence of three
years rigorous imprisonment imposed upon him.

  1. Briefly stated case of the prosecution is that on
    11.03.1998 at about 05.30 PM, Mohan Mehtar belonging to
    Scheduled Caste was going on motor cycle along with Santosh
    Rai (PW-2) and Kamal @ Kamlesh (PW-13) to Railway Colony.
    When they reached near Advocate Mishra’s lane, accused
    Harnam Singh, Balvir Singh, Bhav Singh and Bharat Thakur
    stopped the motor cycle driven by Santosh Rai (PW-2).
    Accused Harnam Singh asked Mohan Mehtar to come down as
    they wanted to talk with him. When Mohan Mehtar came
    down from motorcycle, accused Bharat Thakur attacked
    Mohan with lathi on his back. When Mohan Mehtar ran
    towards Advocate Mishra’s lane to save himself, he was
    caught hold by accused Balvir Singh and Bhav Singh and at
    that time, accused Harnam Singh fired with the country made
    pistol on the face of Mohan from very close distance and the
    bullet hit the brain and cornea of the left eye and Mohan died
    instantaneously on the spot. The incident was witnessed by
    Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal @
    Kamlesh (PW-13) and others.
    2
  2. Informant Santosh (PW-2) lodged the complaint before
    the Police Station Bina on the basis of which FIR No.114/98
    was lodged on 11.03.1998 at 06.00 PM against the appellants
    for the offence punishable under Sections 341, 294, 323, 302,
    506B, 34 IPC and under Section 3(2)(V) of the Scheduled
    Castes and Scheduled Tribes (Prevention of Atrocities) Act.
    Dr. P.K. Jain (PW-9) conducted the post-mortem of deceased
    Mohan Mehtar and opined that the death was due to gun-shot
    injury. The bullet hit the brain and cornea of left eye and
    remaining portion was completely missing. Gun powder was
    also found present in the eyes. Dr. Jain (PW-9) opined that
    death was caused due to brain centre present in the skull
    damaged due to the injuries sustained from the above
    cartridge which stopped the heart and respiration.
  3. The accused persons were arrested and on the basis of
    their disclosure statement recorded under Section 27 of the
    Evidence Act, country made pistol of 0.315 bore was seized
    from the bottom shelf of the almirah in the house of accused
    Harnam Singh. The blood-stained clothes of Harnam Singh
    were also recovered. The seized pistol was sent to Forensic
    Science Laboratory, Sagar. Upon examination of the weapon,
    the pistol was found to be in operative condition. The
    damaged copper cartridge which was recovered from the
    body of the deceased did not have barrel marks. The ballistic
    3
    expert therefore opined that the barrel marks were not
    sufficient for decisive matching. Upon completion of
    investigation, charge sheet was filed against the accused for
    the offences punishable under Sections 147, 148, 149, 341,
    294, 323, 506B, 302 IPC and under Section 25 read with
    Section 27 of the Arms Act and under Section 3(2)(V) of the
    Scheduled Castes and Scheduled Tribes (Prevention of
    Atrocities) Act in the court of Special Judge, Sagar, M.P.
  4. To bring home the guilt of the accused, prosecution has
    examined fourteen witnesses and marked number of
    documents. On the side of the accused, Babu Lal (DW-1) was
    examined who had stated that the occurrence took place at
    03:30 PM on 11.03.1998 and he had not seen any of the
    accused on the spot at the relevant point of time. All the
    accused were questioned under Section 313 Cr.P.C. about the
    incriminating evidence and circumstances and the accused
    denied all of them stating that a false case has been filed
    against them.
  5. Upon consideration of oral and documentary evidence,
    the trial court convicted the accused and sentenced them to
    undergo imprisonment as under:-
    Accused Conviction Sentence
    Harnam Singh (A1) Section 341 IPC
    Section 302 IPC
    R.I. for one month
    Life imprisonment with
    fine of Rs.1,000/-
    4
    Section 25(1A)/27
    of Arms Act
    R.I for three years with
    fine of Rs.1,000/-
    Balvir (A2)
    Bhav Singh (A3)
    Bharat Singh (A5)
    Section 341 IPC
    Section 302/34 IPC
    One month R.I.
    Life imprisonment with
    fine of Rs.1,000/- each
    The accused were acquitted of the charge under Sections
    147, 148, 506B IPC and Section 3(2)(V) of the Scheduled
    Castes and Scheduled Tribes (Prevention of Atrocities) Act.
    The trial court acquitted accused Suraj from all the charges.
    Being aggrieved, the appellants have preferred appeal before
    the High Court which came to be dismissed by the impugned
    judgment. Being aggrieved, the appellants are before us.
    Accused Bharat Singh have not preferred any appeal before
    us.
  6. The learned counsel for the appellants inter alia
    submitted that it is a case of blind murder and that the FIR is
    ante dated as it contains the Inquest No.10/98 and the eye
    witnesses were introduced in the FIR which suffers from
    manipulations. It was submitted that the medical evidence is
    completely contrary to the evidence adduced by eye
    witnesses on two counts namely:- (i) number of weapons used
    and the injuries; and (ii) distance from which the shot was
    fired. It was urged that as per the FSL Report, there was no
    sufficient barrel marks in the cartridge for decisive matching
    with the pistol allegedly recovered from the appellant Harnam
    Singh and this raises serious doubts about the occurrence and
    5
    the involvement of appellant Harnam Singh. It was further
    submitted that as per the evidence of Babu Lal (DW-1), the
    incident took place at 03.30 PM and it was a blind murder and
    the High Court and the trial court failed to take into
    consideration the evidence of Babu Lal (DW-1). The learned
    counsel appearing for the appellants Balvir Singh and Bhav
    Singh urged that the eye witnesses PWs 2, 3 and 13 are not
    reliable witnesses and the courts below erred in invoking
    Section 34 IPC for convicting appellants Balvir Singh and Bhav
    Singh under Section 302 IPC read with Section 34 IPC.
  7. Taking us through the impugned judgment and other
    materials on record, the learned counsel appearing for the
    State submitted that the conviction of the appellants is based
    upon the evidence of eye witnesses Santosh Rai (PW-2),
    Devendra Rai (PW-3) and Kamal (PW-13) which is corroborated
    by the medical evidence and FSL Report and the conviction of
    the appellants-accused does not warrant any interference.
  8. We have carefully considered the submissions of the
    learned counsel for the appellants and the State and perused
    the impugned judgment and the evidence and materials on
    record.
  9. Santosh Rai (PW-2) and Kamal (PW-13) who were going
    along with deceased Mohan on the motor cycle, are the eye
    6
    witnesses. The prosecution has also examined Devendra Rai
    (PW-3) as another eye witness. In his evidence, PW-2 stated
    that on 11.03.1998 at 05.30 PM, he was riding the motor
    cycle and deceased Mohan and Kamal (PW-13) were with him
    on the motor cycle. PW-2 had stated that on being stopped by
    appellant Harnam Singh, Mohan got down from the motor
    cycle and accused Bharat gave him a blow of lathi on his
    back. After the deceased was so attacked with blow of lathi,
    there was scuffle and the deceased ran away towards
    Advocate Mishra’s lane to save himself. PW-2 further stated
    that at that time appellant Harnam Singh exhorted to catch
    hold of Mohan and accused Balvir (A2) and Bhav Singh (A3)
    caught hold of Mohan. Appellant Harnam Singh went close to
    Mohan and shot him on his face with his country made pistol.
    PW-13 who was sitting behind Mohan on the motor cycle has
    also clearly spoken about the occurrence and thus
    corroborated the evidence of PW-2.
  10. Devendra Rai (PW-3) had also corroborated the evidence
    of PW-2 that he saw the motor cycle being stopped by
    appellant Harnam Singh and that he took Mohan towards the
    street. PW-3 stated that when Mohan got down, first blow of
    lathi was hit at his waist by accused Bharat and when Mohan
    ran towards the street, on being exhorted by Harnam Singh,
    accused Balvir Singh and Bhav Singh caught hold of Mohan
    7
    and appellant Harnam Singh fired at the face of Mohan from
    country made pistol. PW-3 had spoken about the presence of
    PW-2 and PW-13 at the scene of occurrence along with
    deceased Mohan.
  11. Case of prosecution is assailed on the ground that it was
    a blind murder and that there were actually no eye witness
    and the eye witnesses were introduced in the FIR which was
    prepared subsequently. There is no merit in the contention
    that there were no eye witnesses for the occurrence and that
    it was a blind murder. Santosh Rai (PW-2) and Kamal (PW-13)
    have explained as to how they happened to be with deceased
    Mohan by going along with him on the motor cycle. Likewise,
    PW-3 has also stated that at about 05.00 PM-06.00 PM, he had
    gone to the Jhansi Gate which is on the other side of the
    railway line and at that time, he saw PW-2, PW-13 and Mohan
    coming on the motor cycle. The presence of all the three
    witnesses as spoken by them is natural and both the courts
    below held that their evidence inspires confidence. It is
    pertinent to note that the FIR registered at 06.00 PM on
    11.03.1998 also contains the names of PW-2, PW-3 and PW13.
  12. PWs 2, 3 and 13 had given a consistent and clear
    account of the incident. All the three eye witnesses have
    8
    attributed specific overt act of beating the deceased with
    lathi to accused Bharat Singh, specific overt act of chasing
    the deceased and holding him by accused No.2-Balvir Singh
    and accused No.3-Bhav Singh and the specific overt act of
    firing at the deceased to accused No.1-Harnam Singh. Upon
    consideration of the evidence of eye witnesses PWs 2, 3 and
    13, the trial court found that the evidence of the eye
    witnesses is credible and trustworthy.
  13. Contention of the appellants is that the occurrence was
    a blind murder and testimony of the eye witnesses PWs 2, 3
    and 13 are not reliable as the same suffers from material
    contradictions and inconsistencies. The alleged contradictions
    in the testimony of the eye witnesses that are being urged by
    the appellants are trivial i.e. with respect to the number of
    blows given to the deceased with lathi by accused Bharat
    Singh, part of the body where the bullet was shot and the
    distance from where Harnam Singh fired at Mohan etc. Such
    contradictions pointed out in the evidence of the three eye
    witnesses are minor which do not affect the core of the
    prosecution case. The discrepancies pointed out in the
    evidence of eye witnesses regarding the number of blows, the
    distance between appellant Harnam Singh and deceased
    Mohan and the part of the body of deceased where the bullet
    hit are may be due to normal errors of observation narrating
    9
    the occurrence, which they have witnessed. The power of
    observation differs from person to person witnessing an
    attack. While the prime event of attack and the weapon are
    observed by a person, other minute details of number of
    blows, the distance from which the fire was shot might go
    unnoticed. So long as the evidence of eye witnesses is found
    credible and trustworthy, their evidence cannot be doubted
    on the ground of minor contradictions.
  14. It is fairly well settled that the minor discrepancies in the
    evidence of the eye-witnesses do not shake their trustworthiness.
    In Appabhai and Another v. State of Gujarat 1988 Supp
    SCC 241, the Supreme Court held as under:-
    “13. ………. The discrepancies which do not shake the basic
    version of the prosecution case may be discarded. The
    discrepancies which are due to normal errors of perception or
    observation should not be given importance. The errors due
    to lapse of memory may be given due allowance. The court
    by calling into aid its vast experience of men and matters in
    different cases must evaluate the entire material on record by
    excluding the exaggerated version given by any witness.
    When a doubt arises in respect of certain facts alleged by
    such witness, the proper course is to ignore that fact only
    unless it goes into the root of the matter so as to demolish
    the entire prosecution story. The witnesses nowadays go on
    adding embellishments to their version perhaps for the fear of
    their testimony being rejected by the court. The courts,
    however, should not disbelieve the evidence of such
    witnesses altogether if they are otherwise trustworthy………”.
    10
  15. The well-settled principle that minor discrepancies in the oral
    testimony of the witnesses do not affect the trustworthiness of the
    witnesses, has been reiterated in Annareddy Sambasiva Reddy
    and Others v. State of Andhra Pradesh (2009) 12 SCC 546 and
    Rammi alias Rameshwar v. State of M.P. (1999) 8 SCC 649. In
    the present case, the contradictions pointed out in the evidence of
    Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal (PW-13) are
    only normal discrepancies which are due to normal errors of
    observation which, in our view, do not affect the trustworthiness of
    these witnesses.
  16. Credibility of Devendra Rai (PW-3) is assailed on the ground
    that he is involved in about 10-15 criminal cases including a
    murder case. During his cross-examination, a suggestion was put
    to him that accused No.2-Balvir Singh had given testimony against
    PW-3 and he has enmity towards Balvir Singh and his family and
    therefore, he is falsely deposing against the accused Nos.1 to 3
    who are real brothers. It was also suggested to PW-3 that his
    father has registered a case against accused Harnam Singh and
    Balvir Singh and that they were acquitted in the said case about
    which PW-3 denied having any knowledge. PW-3 has denied being
    involved in any criminal case; however, he has admitted that
    proceedings under Section 110 Cr.P.C. were initiated against him.
    Testimony of PW-3 cannot be doubted on the ground that he is
    involved in criminal cases or that he is inimical towards Balvir
    11
    Singh and Harnam Singh. It is pertinent to note that name of PW3 has been mentioned even in the FIR that he had gone with
    deceased Mohan on the motor cycle. The antecedents of the
    prosecution witnesses cannot be the ground for doubting their
    version. This is all the more so, when the courts below have
    recorded concurrent findings of fact holding that the testimony of
    the witnesses is credible and acceptable.
  17. Re: Contention – Mention of Inquest Number in the FIR
    The learned counsel appearing for appellant Harnam Singh has
    drawn our attention to the FIR – Column No.11, Inquest Report –
    Case No.10/98 and contended that the FIR contains the Inquest
    No.10/98 whereas the number of FIR has not been mentioned in
    the Inquest Report. It was urged that the very mention of Inquest
    Number in the FIR and non-mentioning of FIR Number in the
    Inquest Report raises serious doubt about the time and the
    manner of occurrence as alleged by the prosecution. Refuting the
    said contention, the learned counsel appearing for the State
    submitted that the FIR which gives an option to mention inquest
    number as against that column in the printed form, inquest
    number was handwritten and it cannot be said that the FIR was
    registered subsequent to the inquest.
  18. FIR is a printed format which contains Column No.11 –
    “Inquest Report”. Column No.11 of the FIR, of course, contains the
    Inquest No.10/98. Merely because the FIR contains inquest
    12
    number, it cannot be said that the FIR was registered subsequent
    to the inquest. In State of Uttar Pradesh v. Ram Kumar and
    others (2017) 14 SCC 614, the Supreme Court held that “the
    mere fact that on the inquest report FIR No. was written by
    different ink cannot be the basis for observing that the FIR was
    ante-timed or ante-dated”. On being questioned, Investigating
    Officer S.D. Khan (PW-14) has stated that he has registered the
    Inquest Report 10/98 with regard to the death of deceased Mohan
    under Section 174 Cr.P.C. As seen from the evidence
    of PW-2, after the occurrence, dead body of Mohan was lying
    twenty yards away from the road and he went to the police station
    to lodge the complaint via Lallu fourway and Sarvodya fourway.
    The inquest being done at the spot and FIR being registered at the
    Police Station under Sections 302, 506B, 341, 294, 323, 34 IPC and
    Section 3(2)(V) of Scheduled Castes and Scheduled Tribes
    (Prevention of Atrocities) Act, mention of inquest number in the FIR
    does not affect the prosecution case nor does it affect the
    credibility of the eye witnesses.
  19. Delay in FIR – For the occurrence on 11.03.1998 at
    05.30 PM, FIR No.114/98 was registered on the same day at
    06.00 PM. As per the evidence of Constable Radhey Shyam
    (PW-10), FIR was handed over before the Court of JMFC, Bina on
    12.03.1998. So far as the contention regarding delay in receipt of
    the FIR in the court, the trial court held that not sending the FIR
    13
    immediately to the Court after its registration, cannot be put
    against the prosecution case since after 05.30 PM, the court timing
    gets over and in these circumstances, production of FIR before the
    Court on the next day during the court timings does not indicate
    that the FIR is ante dated. The case of prosecution, in our view,
    cannot be doubted on the ground of delay in receipt of the FIR in
    the court.
  20. Re: Contention – Inconsistency between the Medical
    Evidence and Oral Evidence – In his evidence, PW-2 has stated
    that Harnam Singh fired shot at Mohan’s face and PWs 3 and 13
    stated that Harnam Singh fired at the left eye of Mohan. As
    pointed out earlier, in his evidence, Dr. P.K. Jain (PW-9) stated that
    the cornea and remaining part of the left eye was completely
    missing and a bullet was found near the cerebellum. Gun powder
    was found present in the eyes of the deceased. PW-9 opined that
    the cause of death was due to damage of brain centre present in
    the skull due to injuries caused by the cartridge which resulted in
    stoppage of heart beat and respiration. As per the opinion of Dr.
    Jain (PW-9), death was caused mainly due to bullet hit in the brain.
    On being questioned, PW-9 stated that the fire was from a close
    distance as seen from the presence of gun powder in the left eye
    of the deceased. Dr. Jain has opined that since there were marks
    of gunshot around the left eye, the shot must have been fired from
    very close distance of about one foot.
    14
  21. Contention of the appellant is that PW-2 in his evidence
    stated that Harnam Singh was about 1-2 yards away from
    deceased Mohan at the time when the bullet was fired. It was
    therefore contended that the contradictions regarding the distance
    from which the accused Harnam Singh fired at Mohan raises
    serious doubts about the prosecution case.
  22. Of course, PW-2 has stated that when Harnam Singh fired, he
    was at a distance of 1-2 yards away from Mohan; but PWs 3 and
    13 have clearly stated that the deceased was held by appellants
    Balvir Singh and Bhav Singh and Harnam Singh fired at the
    deceased from a close distance. As pointed out earlier, accused
    Balvir Singh and Bhav Singh were said to be holding the hands of
    the deceased and it is possible that the gun shot hit at the eyes of
    Mohan. All three eye witnesses have consistently stated that
    Harnam Singh fired the gunshot at the face of Mohan. The
    variation in the evidence of PW-2 as to the distance from which
    the bullet was fired cannot be said to be fatal affecting the
    prosecution case.
  23. It has been urged by the learned counsel for the appellant
    Harnam Singh that the doctor who conducted the post-mortem
    had not marked the track of the bullet in his report. It was
    submitted that when the deceased was shot, the position of his
    face was upwards and when the face is up, it is doubtful that
    Harnam Singh could have fired at the eyes of the deceased. As
    15
    pointed out by the trial court, during the course of scuffle and
    when the deceased was running away to save himself, the position
    of the face of deceased cannot be ascertained as being upwards or
    not so as to doubt the prosecution version that the gunshot hit at
    the left eye of Mohan. The above contention advanced on the
    basis of the opinion of the doctor cannot affect the oral evidence
    of the eye witnesses.
  24. Apart from the gunshot injuries which caused the death,
    there were nine other injuries found on the body of deceased
    Mohan. Mohan sustained bruise on the left arm, left side of the
    chest; contusion and lacerated wound in the middle of the head
    and incised wound on the left side of the chin. Dr. Jain (PW-9)
    opined that the injuries sustained by the deceased on his back and
    arms were of different shapes and therefore, there is a possibility
    that they must have been caused by different weapons. In an
    attack on the person, the nature of injuries sustained depends
    upon the manner of attack and how the person was positioned and
    the resistance offered by him. Mohan was indiscriminately
    attacked by accused Bharat Singh with lathi and there is possibility
    of the deceased sustaining injuries of different shapes. Merely
    because deceased Mohan sustained injuries of different shapes, on
    the opinionative medical evidence, the consistent evidence of eye
    witnesses cannot be doubted.
    16
  25. It is well settled that the oral evidence has to get primacy
    since medical evidence is basically opinionative. In Ramanand
    Yadav v. Prabhu Nath Jha and others (2003) 12 SCC 606, the
    Supreme Court held as under:-
    “17. So far as the alleged variance between medical
    evidence and ocular evidence is concerned, it is trite law that
    oral evidence has to get primacy and medical evidence is
    basically opinionative. It is only when the medical evidence
    specifically rules out the injury as is claimed to have been
    inflicted as per the oral testimony, then only in a given case
    the court has to draw adverse inference.”
    The same principle was reiterated in State of U.P. v. Krishna
    Gopal and another (1988) 4 SCC 302, where the Supreme Court
    held “that eyewitnesses’ account would require a careful
    independent assessment and evaluation for their credibility which
    should not be adversely prejudged making any other evidence,
    including medical evidence, as the sole touchstone for the test of
    such credibility.”
  26. The inconsistencies pointed out in the evidence of eyewitnesses inter se and the alleged inconsistencies between the
    evidence of eye-witnesses and that of the medical evidence are
    minor contradictions and they do not shake the prosecution case.
    The evidence of eye witnesses are the eyes and ears of justice.
    The consistent version of PWs 2, 3 and 13 cannot be decided on
    the touchstone of medical evidence.
    17
  27. Recovery of pistol and FSL report – Based on the
    confessional statement of appellant-Harman Singh, a country
    made pistol (Article ‘A’) was recovered from the bottom shelf of
    the almirah in the house of appellant-Harman Singh. Recovery of
    country made pistol from the house of appellant-Harman Singh is
    proved by the evidence of IO S.D. Khan (PW-14).
  28. Ext.-P30 is the FSL report as per which the pistol (Article ‘A’)
    is a country made pistol which was found to be in operative
    condition and the testing was successfully done. The bullet
    recovered from the body of deceased Mohan was marked as EB1.
    In the FSL report, expert opined that the barrel marks found on the
    cartridge were not sufficient for decisive matching. The FSL report
    reads as under:-
    “Exhibit A1 is one Country Made Pistol, which is made to fire
    0.315” bore Cartridge. It is in working condition. It’s Barrel is
    found to have remnants of firing. It is not possible to say with
    scientific certainty the last time this was fired. It can be fired to
    cause injury likely to cause death.
    Exhibit EB1 is one 0.315” bore cartridge like bullet. It is copper
    jacketed/of soft point and is partially damaged. It does not have
    marks of regular firing. It has barrel marks which are not
    sufficient. Thus in absence of matching it is not possible to say
    whether this is fired from Exhibit A1 or any other similar pistol
    like Exhibit A1.” [underlining added]
    From the FSL report (Ext.-P30), it is made clear that the pistol
    recovered from accused Harnam Singh was in working condition
    and that the fatal injuries could be caused from using the said
    18
    country made pistol (Article ‘A’) recovered from appellant-Harman
    Singh.
  29. Learned counsel appearing for the appellant-Harnam Singh
    submitted that as per the FSL report, the experts could not give a
    definite opinion that whether the bullet has been fired from the
    country made pistol recovered from appellant-Harman Singh or
    any other similar pistol like the said pistol. It was therefore,
    submitted that the prosecution has failed to prove that the
    recovered bullet from the body of deceased has been fired from
    the pistol (Article ‘A’) and therefore, the overt-act of firing
    cannot be attributed to appellant-Harnam Singh. In the FSL report,
    it is stated that bullet was “a fired and partially damaged Copper
    Cartridge/Soft Point Bullet with blood like substance on the same”.
    The FSL report further states that the cartridge does not have
    marks of regular rifling and the barrel marks found are not
    sufficient for decisive matching. All that the FSL report states is
    that the barrel marks are not sufficient to give decisive matching.
    When the case of the prosecution is based on the eye-witnesses,
    the indecisive opinion given by the experts would not affect the
    prosecution case.
  30. The next point falling for consideration is whether the trial
    court and the High Court were right in convicting the accused
    Nos.2 and 3 under Section 302 IPC read with Section 34 IPC that
    19
    they have acted in furtherance of common intention in committing
    the murder of Mohan.
  31. Common intention of Accused Nos.2 and 3:- As
    discussed earlier, eye witnesses PWs 2, 3 and 13 have consistently
    stated that on being attacked by accused Bharat with lathi on the
    back, when deceased Mohan ran towards the street, accused No.2-
    Balvir Singh and accused No.3-Bhav Singh ran after him and said
    to have caught hold of Mohan and at that time, Harnam Singh fired
    from the country made pistol on the face of Mohan. Case of the
    prosecution is that accused Nos.2 and 3 were present along with
    Harnam Singh and accused Bharat who were armed with pistol and
    lathi respectively. The appellants Balvir Singh and Bhav Singh
    were unarmed and when Mohan ran towards the street, on
    exhortation by Harnam Singh, accused Nos.2 and 3 ran after
    Mohan and caught hold of him.
  32. To invoke Section 34 IPC, it must be established that the
    criminal act was done by more than one person in furtherance of
    common intention of all. It must, therefore, be proved that: (i)
    there was common intention on the part of several persons to
    commit a particular crime, and (ii) the crime was actually
    committed by them in furtherance of that common intention. The
    essence of liability under Section 34 IPC is simultaneous conscious
    mind of persons participating in the criminal action to bring about
    a particular result. Minds regarding sharing of common intention
    20
    gets satisfied when an overt act is established qua each of the
    accused. Common intention implies pre-arranged plan and acting
    in concert pursuant to the pre-arranged plan. Criminal act
    mentioned in Section 34 IPC is the result of the concerted action of
    more than one person and if the said result was reached in
    furtherance of common intention, each person is liable for the
    offence as if he has committed the offence by himself.
  33. Observing that the inference of common intention is to be
    drawn from the conduct of the accused, in Ramesh Singh alias
    Phooti v. State of A.P. (2004) 11 SCC 305, the Supreme Court
    held as under:-
    “12. ……. As a general principle in a case of criminal liability
    it is the primary responsibility of the person who actually
    commits the offence and only that person who has committed
    the crime can be held guilty. By introducing Section 34 in the
    Penal Code the legislature laid down the principle of joint
    liability in doing a criminal act. The essence of that liability is
    to be found in the existence of a common intention
    connecting the accused leading to the doing of a criminal act
    in furtherance of such intention. Thus, if the act is the result
    of a common intention then every person who did the
    criminal act with that common intention would be responsible
    for the offence committed irrespective of the share which he
    had in its perpetration. Section 34 IPC embodies the principle
    of joint liability in doing the criminal act based on a common
    intention. Common intention essentially being a state of mind
    it is very difficult to procure direct evidence to prove such
    intention. Therefore, in most cases it has to be inferred from
    the act like, the conduct of the accused or other relevant
    circumstances of the case. The inference can be gathered
    21
    from the manner in which the accused arrived at the scene
    and mounted the attack, the determination and concert with
    which the attack was made, and from the nature of injury
    caused by one or some of them. The contributory acts of the
    persons who are not responsible for the injury can further be
    inferred from the subsequent conduct after the attack. In this
    regard even an illegal omission on the part of such accused
    can indicate the sharing of common intention. In other words,
    the totality of circumstances must be taken into consideration
    in arriving at the conclusion whether the accused had the
    common intention to commit an offence of which they could
    be convicted. (See Noor Mohammad Mohd. Yusuf Momin v.
    State of Maharashtra (1970) 1 SCC 696)”
    The decision in Ramesh Singh was referred to in Balu @ Bala
    Subaramaniam and another v. State (UT of Pondicherry)
    (2016) 15 SCC 471.
  34. In the light of above principles, let us consider whether the
    prosecution has proved that accused Nos.2 and 3 had the common
    intention and acted in furtherance of the common intention.
    Initially, there were five accused and the accused were charged
    under Sections 147 and 149 IPC along with other charges. Since
    accused Suraj was acquitted of the charges, placing reliance upon
    Dhanna v. State of M.P. (1996) 10 SCC 79, the trial court
    invoked Section 34 IPC to convict accused Nos.2 and 3 under
    Section 302 IPC read with Section 34 IPC.
  35. Whether the courts below were right in convicting accused
    Nos.2 and 3 by invoking Section 34 IPC, is the point falling for
    consideration?
    22
  36. Deceased Mohan and accused Harnam Singh were working
    in the railways and regarding the money transactions, there was
    enmity between them. It is brought in evidence through PW-2
    that 2-3 days prior to the incident, there were arguments and
    quarrel between accused Harnam Singh and deceased Mohan near
    the house of PW-2. Accused No.2-Balvir Singh and accused No.3-
    Bhav Singh are the real brothers of accused No.1-Harnam Singh.
    Though it is stated that accused Nos.2 and 3 were present along
    with accused Harnam Singh, the fact remains that they were not
    armed. After being hit by accused Bharat on the back when
    Mohan ran, accused Nos.2 and 3 are alleged to have followed him
    and accused Balvir Singh allegedly caught the right arm of Mohan
    and accused Bhav Singh held the left arm of Mohan. It is also
    brought in evidence that accused Bharat was giving lathi blows to
    Mohan even when he was running. If accused Nos.2 and 3 have
    shared the common intention, they would also have attacked the
    deceased; but they were only alleged to have caught hold of the
    deceased. The prosecution did not bring in evidence that there
    was prior meeting of minds and that accused Nos.2 and 3 were
    having knowledge that their brother accused Harnam Singh was
    armed with katta. The evidence adduced by the prosecution is not
    convincing to hold that accused Nos.2 and 3 also shared the
    common intention with the accused Harnam Singh and other
    accused Bharat in committing the murder of Mohan. Conviction of
    23
    accused Nos. 2 and 3 under Section 302 read with Section 34 IPC
    is, therefore, liable to be set aside.
  37. Conviction of the appellant/accused No.1 Harnam Singh
    under Sections 302 IPC, 341 IPC and Section 25(1A) read with
    Section 27 of the Arms Act and the sentence of life imprisonment
    imposed upon him is affirmed and Criminal Appeal No.1119 of
    2010 is dismissed. Accused Harnam Singh shall surrender himself
    within four weeks from the date of this judgment to serve the
    remaining sentence, failing which, he shall be taken into custody.
  38. Conviction of accused No.2-Balvir Singh and accused No.3-
    Bhav Singh under Section 302 IPC read with Section 34 IPC and
    Section 341 IPC is set aside and they are acquitted of the charges
    under Section 302 IPC read with Section 34 IPC and
    Section 341 IPC and their appeals Criminal Appeal No.1115 of
    2010 and Criminal Appeal No.1116 of 2010 are allowed. Bail
    bonds of the accused Balvir Singh and Bhav Singh shall stand
    discharged.
    …………………………….J.
    [R. BANUMATHI]
    ……………………………..J.
    [R. SUBHASH REDDY]
    New Delhi;
    February 19, 2019
    24