Important points
1. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. It is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth.
2. Where it is proved beyond doubt that the evidence of the eye witnesses are trust worthy in a case where the accused person committed murder by gun shots, the inconsistency between the opinion of expert and the eye witnesses relating to the distance from which gun shots were fired carries no weight.
3. Where common intention of other accused to kill the deceased already got matured even before the accused in question allegedly exhorted and he had not been impugned with any other role it could not be said that he shared common intention especially the language used by his the weakest one.

Headnote:(i) Criminal Trial-Appreciation of evidence-Variance of prosecution story with medical evidence-Not ground to reject prosecution story-Solemn duty of courts, not to merely conclude and leave the case moment suspicions are created-Courts have to proceed further and make genuine efforts within judicial sphere to search truth.
       Held : The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminal are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye witnesses including the medical evidence, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. (Para 11)
       (ii) Indian Penal Code, 1860-Section 302 - Murder-Conviction for-Justification of-Accused and deceased close relatives-Property dispute-Accused allegedly entered house of deceased and set up family members of deceased-Deceased and father gone to house of accused to enquire-Deceased and his father standing outside house of deceased-Deceased standing in third floor of his house firing at deceased and thus causing death-Eye witnesses deposing incident-Medical evidence corroborating eye-witness version - Gun and empty cartridges recovered-Defence case that post mortem report says that skin around wound blackened which means firing was from close range which contradicts prosecution story - Not tenable-Doctor found injuries oval in shape, denoting shot was from slanting position downward right to left-Blackening of skin wound injury is not solely firing at close range-Doctor recorded firing was from higher pedestal which corroborates with prosecution story-Evidence of eye witnesses unimpeachable -Prosecution proved to the hilt story of firing by deceased-Conviction affirmed.
       Held : The doctor found the injuries oval in shape, denoting shot was from a slanting position downwards right to left. The prosecution case is that deceased was standing on Chabutra under a neem tree thus may shot, if it is from close range could either be from Chabutra, which would be on level with the deceased thus it could not make oval shape hole and if it was shot from below the Chabutra, the oval shape would not be downwards but upwards. We find from the post martem report and evidence of the doctor that injuries recorded was oval in shape, journey of pellets being downwards and right to left all indicating and corroborating the prosecution story of firing from the roof top which is on the right side of the place where the deceased was standing. (Para 14)
       There are two eye witnesses, Ram Singh, P.W. 1, and Kalua, P.W. 3. We find the evidence of these two eye witnesses are of unimpeachable character and in spite of their long cross-examination nothing worth could be said to have been eroded, even learned counsel for the appellants before us could not point out any incongruity, unreliability or contradiction or their testimony being at variance to distrust them. These two eye witnesses P.W. 1 and P.W. 3 has fully corroborated the prosecution story. Their credibility has been upheld by the trial Court and we also after going through their testimony fully approve this finding and uphold their testimony. Apart from these two eye witnesses there is also part corroboration by Jagannath Singh, P.W. 6, who is a neighbour. His house is adjacent to the house of Ram Singh. He stated, he woke up on hearing the noise of firing of gun. Actually he heard the noise of three fires. He then went to the door of the house and heard ‘Jee Saheb’, the witness clearly stated he always called Ajay Singh as ‘Jee Saheb’. He heard him saying that if any person of the village comes out he will be killed. On account of this he did not come out and he remained inside his house till 8 A.M. Scrutinising and examining the evidence we have no hesitation to conclude that the prosecution has proved to the hilt the story of firing by Mohan Singh from his roof top to the deceased Bhagat Singh. This unimpeachable evidence of these two eye witnesses fully corroborates with the other part of the medical evidence, viz., injuries oval in shape, direction downwards, pillets travelling right to left, i.e, that shot was fired from roof top of the third floor. In this light mere reference in the said report of blackening under the surface of the injuries by the Doctor could not be given credence for inferring that firing was from a close range. This by itself in no way dismantles the prosecution story. (Paras 15 and 17)
       Recording of blackening of skin below the injury by the doctor prima facie may lead to the conclusion that firing of gun shot may be from a close range but in a given case, depending on other factors, as in the present case and in the light what the Taylor says, as aforesaid- “The black margins of a wound are never due to the firing of the gun from a very close range but are due to something different” the observation by the doctor could even be in cases where shots are not from a close range. Even the doctor’s opinion is not clear as he admitted that he cannot give clear opinion about the distance from which the shot was fired. But he records that it was fired from higher pedestal which corroborates with the prosecution story. (Paras 19 and 20)
       (iii) Indian Penal Code, 1860-Section 34 read with Section 302-Accused in question allegedly exhorted along with another co-accused to kill deceased upon which principal accused fired at deceased-It was not a case of pre-determined, planned case of common intention-Emotion developed on spot-After some altercation principal accused uttered words to do away with deceased-His father another accused thereafter exhorted him to kill deceased-Accused in question thereafter allegedly exhorted with words ‘Mar Sale Ko’-It means both kill him or beat him-It is weakest language used out of three-Common intention matured and concluded much earlier to the time when the role of accused is introduced-Exhortion of accused was not with same common intention of other accused-Accused in question granted benefit of doubt-Conviction under Section 32/304 set aside.
       Held : It is admitted case that he has not used any fire arm nor any active role is assigned to him. The role assigned to him is merely exhortation. In order to test the prosecution evidence, it is necessary to record sequence of events preceding the alleged exhortation by him to test whether his case falls under Section 34 I.P.C. or not? Admittedly, it is not a case of pre-determined, planned case of common intention of the three accused to kill the deceased Bhagat Singh. Prosecution story reveals that emotion developed on the spot when complainant Ram Singh and Bhagat Singh came near the house of Ajay Singh accused where two other accused, namely, their sons Mohan Singh and Kailash Singh were also there. Thus it is to be seen whether any such common intention with a common design developed also in the mind of Kailash to kill the deceased? According to Ram Singh, the eye witness when he reached the neem tree which is in front of the house of Ajay Singh the accused Ajay Singh, Mohan Singh and Kailash Singh came out from Gokh and went in turn from second floor to the third floor. After the initial altercation with Bhagat Singh the accused Mohan Singh shouted with threatening and abusing words to Bhagat Singh deceased which were as following; “Abe Sale Kutte Ab Bol Tujhe Abhi Bhi Bata Dete Hai”, on which Bhagat Singh replied why are you abusing from above? It is on this the accused Ajay Singh, their father, then exhorted his son Mohan Singh with the following words “Mar Sale Ko Jo Kuch Hoga Nipat Lenge (Kill him whatever happen we will face it)”. It is only thereafter it is alleged that his other son Kailash also exhorted Mohan Singh with the words “Mar Sale Ko (Kill him)”. The consequence of events clearly shows, the very language expressed by Mohan Singh first, clearly indicates, the clear intention of the accused Mohan Singh to do away with Bhagat Singh. It is expressed with rage. If there was any infirmity in his resolve it fully matured when what followed, viz., the exhortation by Ajay Singh the father of Mohan Singh. The aforesaid words of the father could infuriate anyone including Mohan Singh to do the ultimate, namely, killing of Bhagat Singh. It is at this point of time when common intention between the two accused matured, if at all. So far as Kailash is concerned he had no role. He is introduced lastly when it is said that he also said “Mar Sale Ko” which may mean both kill him or beat him. Except for this no other role is assigned to this accused at the point of the incidence. Looking to the preceding strong abusing and threatening language used both by the other two accused which indicates common intention if at all matured then the exhortation words attributed to this accused, does not bring home beyond doubt of common intention with common design maturing to kill the deceased so far as the participation of this third accused. Firstly, it is the weakest language used out of the three and is attributed to have been expressed in the last. We find the common intention really matured and concluded much earlier to the time when the role of this accused is introduced. On the facts and circumstances of this case and in the absence of anything more this by itself does not lead to the conclusion so far as the accused Kailash is concerned that his exhortation was also with the same common intention to kill Bhagat Singh. In the cross-examination when P.W. 1 was confronted, whether such words were expressed by Kailash or not and whether he got it recorded with police or not this witness stated that I told this thing to the police but police might not have recorded it. This apart except for the similar repetition by the other eye witness Kalua, P.W. 3, even he could not refer to any other role played by Kailash except introduction of the said words. Thus we conclude that the prosecution has not proved beyond all reasonable doubt that the accused Kailash Singh also formed part of the common intention to kill Bhagat Singh. So we grant benefit of doubt to him. (Paras 23 and 24)
       (iv) Code of Criminal Procedure -F.I.R. - Non-recording of part played by each accused persons in Commission of Crime-Whether fatal to prosecution story.
       Held : Lastly, a feeble submission was made that the FIR does not record details about the part played by each accused persons in commission of the crime, hence prosecution story is an after thought to implicate the accused. We again do not find any substance in this submission, since it is not in dispute that the FIR was lodged by Chowkidar, P.W. 2, who admittedly was not an eye witness. Ram Singh told P.W. 2 who came to the scene later to get the FIR lodged as then on his son’s death he must be in remorseful mood. P.W. 2 did see the dead body of Bhagat Singh and then went to the Police Station and lodged the FIR. It is but natural the man recording the FIR if not an eye witness, no details could be expected to be incorporated in it. It is also natural Ram Singh after seeing his son dead could not have been in a mood to give details except to request the chowkidar to lodge a report. Thus we do not find any merit to this last submission. (Para 22)

Judgment

Misra, J.-The appellants have preferred the present appeal against the judgment dated 18th December, 1997 of the M.P. High Court (Gwalior Bench) convicting them under Section 302 read with Section 34 I.P.C. However, conviction and sentence of the accused Mohan Singh under Section 25/27 of the Arms Act by the trial Court was set aside. Earlier the trial Court convicted Mohan Singh (Appellant No. 2.) under Section 302 I.P.C. and under Section 25/27 of the Arms Act and sentenced him to the imprisonment for life and one year rigorous imprisonment, respectively and convicted and sentenced Ajay Singh, appeallant No. 1, and Kailash, appellant No. 2, under Section 302/34 I.P.C. to the imprisonment for life. However, since Ajay Singh died during the pendency of the appeal his appeal stood abated.

2. Admittedly both the complainant and the accused persons are close relatives, as the deceased Bhagat Singh was the son of the complainant, Ram Singh, (P.W. 1), who is the real brother of the aforesaid accused Ajay Singh. Both the present appellants, namely, Mohan Singh and Kailash are the sons of Ajay Singh.

3. In short, the prosecution case is that on 26th April, 1980 at about 9 A.M. accused Mohan Singh had beaten Moti Chamar to which Veer Singh son of Ram Singh objected and had enquired as to why he had beaten Moti Chamar. Thereafter Mohan Singh stood up to beat him also. On the same evening at about 4 P.M. accused Ajay Singh, Kailash Singh and one Daulat Singh went to Gajar on the motor cycle and beat the mother of Veer Singh, his brother Gajendra and his sister Meena. Ajay Singh and Daulat Singh were standing there and were exhorting to kill. Ajay Singh had a pistol. On seeing these they went out of the Dalan. Veer Singh’s mother and Gajendra Singh received injuries, Meena was slapped by Kailash. Veer Singh thereafter asked Kalua to sleep at the door and took his mother, brother and sister on tractor to Vidisha. He disclosed this fact to Bhagat Singh who thereafter went to call his father Ram Singh from bazaar. Subsequently, Bhagat Singh and Ram Singh took meal and went to Gajar on the motor cycle. They reached there at 10 P.M. On hearing the noise of the motor cycle the accused Mohan Singh, Ajay Singh and Kailash came out of their house and went to the first floor. Kaula was sleeping in Dalan who also came out. Bhagat Singh on seeing the accused persons asked them as to why they were harassing him and beaten their Hali and mother. Being aggravated all the three accused persons went to the second floor and from there to the roof of the third floor. It is alleged thereafter Mohan Singh fired from his gun on Bhagat Singh thrice as a result of which he died on the spot. Thereafter Ram Singh, who was present there, went to the chowkidar Bihari and told him the occurrence. Subsequently, Bihari went to the spot and saw the body. He proceeded thereafter to the Police Station and lodged a report in the morning of 27th April, 1980 at about 7 A.m. The report was prepared by Ajit Kumar Patil, P.W. 11, who was then the Station-in-Charge, Vidisha, who in turn proceeded to the place of occurrence in village Gajar. He prepared panchanama of the dead body and took into custody the pellets found near the deady body. Sample of blood stained earth from there was also taken by him. He also prepared the site plan Ex. P.2. All the three accused were arrested on the same day. During investigation Mohan Singh disclosed about the .12 bore gun which he had kept inside his Kotha, one empty cartridge near the gun and also two empty cartridges (Memo Ex. P-6). Mohan Singh took him to his house and got recovered this .12 bore double barrel gun made in Czechoslavia. Empty cartridge of .12 bore gun and two 12 bore empty cartridges were also got recovered from the drain. The recovered gun is article No. 2.

4. The accused persons denied the charges. They said that they have been falsely implicated on account of enmity as Ram Singh and Veer Singh wanted t

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1999 Supreme(SC) 90

Cases Referred (2)