Balvir Singh vs The State Of Madhya Pradesh

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 affi rmed

the conviction of the appellants (Accused No.1 to 4) under Signature Not Verified Digitally signed by MADHU BALA Sections 341, 302 and 302 read with 34 IPC and the sentence Date: 2019.02.19 16:47:30 IST Reason: of imprisonment for life imposed upon each of the accused.

1 The High Court also affi rmed 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.

2. 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

3. 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.

4. 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

suffi cient 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.

5. 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.

6. 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 R.I. for one month Section 302 IPC Life imprisonment with fine of Rs.1,000/-

4 Section 25(1A)/27 R.I for three years with of Arms Act fine of Rs.1,000/- Balvir (A2) Section 341 IPC One month R.I. Bhav Singh (A3) Section 302/34 IPC Life imprisonment with Bharat Singh (A5) 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.

7. 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

suffi cient 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.

8. 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.

9. 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.

10. 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 scuffl e 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.

11. 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.

12. 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 PW-

13.

13. 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.

14. 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.

15. 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 16. 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.

17. 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 PW-

3 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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.

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

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.

24. 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.

25. 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

26. 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.”

27. The inconsistencies pointed out in the evidence of eye-

witnesses 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

28. 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).

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

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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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

37. 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.

38. 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.

39. 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

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