Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 184

SUPREME COURT OF INDIA
R. BANUMATHI, R. SUBHASH REDDY, JJ.
BALVIR SINGH – Appellant
VERSUS
STATE OF MADHYA PRADESH – Respondent
CRIMINAL APPEAL NO.1115 OF 2010
WITH
BHAV SINGH – Appellant
VERSUS
STATE OF MADHYA PRADESH – Respondent
CRIMINAL APPEAL NO.1116 OF 2010
HARNAM SINGH – Appellant
VERSUS
STATE OF MADHYA PRADESH – Respondent
CRIMINAL APPEAL NO.1119 OF 2010
Decided on : 19-02-2019

Advocates Appeared:
For the Appellant : Mr. Aftab Ali Khan, AOR Mr. Syed Mohammed Aatif,Adv., Mr. Sanjay Jain, AOR
for the Respondent: Mrs. Swarupama Chaturvedi, AOR Mr. B.N. Dubey,Adv. Mr. Mukesh Kumar,Adv. Ms. Indira Bhakar,Adv. Ms. Aparna Trivedi,Adv. Mr. Santanu Singh,Adv.

IMPORTANT POINTS
Minor discrepancies in evidence of eye-witnesses do not make untrustworthy.
The antecedents of the prosecution witnesses cannot be the ground for doubting their version.
Merely because FIR contains inquest number, it cannot be said that the FIR was registered subsequent to the inquest.
Delay in filing FIR not fatal if explained.
Oral evidence prevails in case of inconsistency between oral and medical evidence, and oral and forensic evidence.
Common intention can be inferred from conduct of accused.

Headnote:(a) Criminal trial – Appreciation of evidence – Minor discrepancies in evidence of eye-witnesses do not make untrustworthy. (Para 15, 16)
       1988 Supp SCC 241; (2009) 12 SCC 546; (1999) 8 SCC 649 – Relied upon
       (b) Criminal trial – Appreciation of evidence – Testimony of a witness cannot be doubted on ground that he is involved in other criminal cases – More so when such testimony is concurrently held to be credible and acceptable. (Para 17)
       (c) Criminal trial – Appreciation of evidence – FIR and inquest – FIR containing inquest number – It cannot be said that the FIR was registered subsequent to the inquest – Section 174 and 154, Code of Criminal Procedure, 1973. (Para 19)
       (2017) 14 SCC 614 – Relied upon
       (d) Code of Criminal Procedure, 1973 – Section 154 – Delay in filing FIR – Not fatal if explained. (Para 20)
       (e) Criminal trial – Appreciation of evidence – Inconsistency between medical and oral evidence – Medical evidence basically opinionative – Held, oral evidence prevails in case of inconsistency between oral and medical evidence. (Para 26)
       (2003) 12 SCC 606 – Relied upon
       (f) Criminal trial – Appreciation of evidence – Inconsistency between forensic and oral evidence –Indecisive opinion given by FSL – Cannot prevail over consistent oral evidence. (Para 30)
       (g) Indian Penal Code, 1860 – Section 34 – Common intention – Simultaneous conscious mind of persons participating in the criminal action to bring about a particular result – Overt act qua each accused – Common intention can be inferred from conduct of accused – Instantly, common intention not established – Conviction on that ground not sustainable. (Para 33, 34, 36)
       (2004) 11 SCC 305; (2016) 15 SCC 471; (1996) 10 SCC 79 – Relied upon
       Facts of the case:
       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. 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.
       Finding of the Court:
       Conviction invoking section 34 IPC cannot be sustained.
       Result: Criminal Appeal No. 1115 of 2010 and 1116 of 2010 allowed.

JUDGMENT

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. 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.

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.

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 ballisticexpert 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.

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

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