Singh Vs. State of Punjab  INSC 409 (21 August 1995)
M.K. (J) Mukherjee M.K. (J) Nanavati G.T. (J) M.K. Mukherjee. J
1995 AIR 2468 1995 SCC Supl. (3) 451 JT 1995 (6) 140 1995 SCALE (4)837
Singh, Mukhtiar Singh and Gurdial Singh, the appellant herein, were tried by
the Judge, Special
Court, Ferozepore for
committing the murder of one Ram pal with fire-arms in furtherance of their
common intention. The learned Judge acquitted Darshan Singh and Mukhtiar Singh
but convicted the appellant under Section 302 I.P.C. and 25 Arms Act. and
sentenced him to suffer imprisonment for life for the first conviction and
rigorous imprisonment for 1.1/2 years for the other, with a direction that the
sentences would run concurrently. Hence this appeal.
to the prosecution case the deceased and his father Amrit Lal (P.W.3) used to
run a kirana shop in village Machhi Bugra. On June 2, 1984, at or about 6.30 P.M. when Ram pal had come out of the shop to down its shutters the three
accused came there on a scooter driven by Darshan Singh. The appellant and Mukhtiar
Singh then got down from the scooter and shot at Ram Pal with the fire-arms,
each of them was carrying, resulting in his instantaneous death.
all of them ran away on the scooter. Finding his son dead, Amrit lal rushed to
the police station to lodge a report.
Singh (P.W.4) recorded the F.I.R. and after making arrangements to send the
special report to the Ilaka Magistrate left for the spot accompanied by Amrit Lal.
there he held inquest upon the dead body of Ram Pal which was lying in the lane
in front of the shop and sent it for postmortem examination. He then inspected
the spot and collected some blood stained earth, six empties of two different
bores and made separate sealed parcels for the same. After completing the
investigation at the spot. p.w.4 went in search of the accused persons and
succeeded in apprehending the appellant on that very night. From his possession
he seized a 12 bore gun and 25 cartridges and sealed them. He sent all the
seized articles to the experts for their opinions and on receipt of their
reports and completion of investigation submitted charge-sheet.
accused persons pleaded not guilty to the charges levelled against them and
contended that they were falsely implicated. To prove its case the prosecution
relied upon the ocular version of the incident as given out by P.W.3 and other
evidence adduced in support thereof. No witness was however examined on behalf
of the accused persons.
recording the impugned order of conviction and sentence against the appellant
the learned Judge found that the evidence of P.W.3 stood amply corroborated by
the recovery of two empty cartridges from the spot and the report of the
Ballistic Expert which showed that those two cartridges had been fired from the
gun which was with the appellant at the time of his arrest and was seized. As
no such corroborative evidence was available in respect of the other two accused
the learned Judge did not feel inclined to rely solely upon the evidence of
P.W.3 to convict them.
he gave them the benefit of reasonable doubt.
carefully gone through the evidence of P.W.3 in the light of other evidence
appearing on record it appears to us that the finding of the learned Judge that
the appellant shot at the deceased with a gun causing injuries on his person is
unassailable. Considering the fact that the incident took place in front of the
shop of P.W.3 he was the most natural and likely witness. His evidence, which
was not in any way shaken in cross-examination, gets ample support from the
evidence of Dr. Jaspal Singh (P.W.1) who held postmortem examination on the
dead body and found, besides other injuries, two lacerted punctured wounds
corresponding with each other which according to him could be caused by gun. if
fired from a close range. The next piece of evidence which corroborates PW 3 is
the FIR which was lodged with promptitude, we next get, from the evidence of
P.W.4. that in that very night, at or about 2.30 A.M. the appellant was arrested and a 12 bore gun and 25
cartridges were recovered from him. The report of the Director of Forensic
Science Laboratory (Ex.P.17) proves that the empties recovered from the spot by
pw 4 had been fired from his gun. The other piece of circumstantial evidence,
which also to some extent corroborates the case of the prosecution, is
furnished by the fact that the earth that was seized by PW 4 from the spot was
found by the Chemical Examiner to contain human blood.
next question that falls for our determination is whether on the above findings
the trial Judge was justified in convicting the appellant under Section 302 IPC
simpliciter, after having acquitted the other two accused who along with the
appellant were being tried under Section 302 IPC with the aid of Section 34
IPC. This aspect of the matter assumes importance for PW 1 found four injuries
on the person of the deceased which according to him were caused by two types
of fire-arms and were collectively sufficient in the ordinary course of nature
to cause death.
however, did not state that the two injuries caused by the gun which are atributable
to the appellant's firing were sufficient to cause death in the ordinary course
other words, in view of the opinion of the doctor it can not be conclusively
inferred that the death of Ram Pal was caused by the injuries inflicted by the
appellant alone so as to make him liable under Section 302 IPC simpliciter.
above finding of ours, necessarily, begs also the question whether the
appellant can be convicted under Section 302 IPC with the aid of Section 34
IPC, notwithstanding the acquittal of the other two accused.
Singh vs. State of Rajasthan (1976) 2 SCC 827 a question arose as to whether an
accused who faced trial with four others on charges under Section 302 IPC read
with Section 149 IPC could be convicted under Section 302 IPC read with Section
34 IPC if the other four were acquitted.
deciding the question this Court considered earlier cases which dealt with
similar question and held:- "As has been stated, the charge in the present
case related to the commission of the offence of unlawful assembly by the
appellant along with the other named four coaccused, and with no other person.
The trial in fact went on that basis throughout. There was also no direct or
circumstantial evidence to show that the offence was committed by the appellant
along with any other unnamed person. So when the other four coaccused have been
given the benefit of doubt and have been acquitted, it would not be permissible
to take the view that there must have been some other person along with the
appellant Maina Singh in causing the injuries to the deceased. It was as such
not permissible to invoke Section 149 or Section 34 IPC. Maina Singh would
accordingly be responsible for the offence, if any, which could be shown to
have been committed by him without regard to the participation of others."
In Harshad Singh vs. State of Gujarat 1977 Criminal Law Journal 352, a three
Judge Bench of this Court observed, in negativing a submission of the appellant
therein that since three out of the four accused had secured acquittal the
invocation of Section 34 IPC was impermissible, as under:- "The flaw in
this submission is obvious.
Courts have given the benefit of doubt of identity but have not held that there
was only one assailant in the criminal attack. The proposition is plain that
even if some out of several accused are acquitted but the participation
presence of a plurality of assailants is proved, the conjoint culpability for
the crime is inescapable. Not that the story of more than one person having
attacked the victim is false, but that the identity of the absolved accused is
not firmly fixed as criminal participants.
it follows that such of them, even if the number dwindled to one, as are shown
by sure evidence to have knifed the deceased, deserve to be convicted for the
principal offence read with the constructive provision." (emphasis
supplied) When a similar question again came up consideration in Piara Singh
vs. State of Punjab (1980) 2 SCC 401 this Court, quoted with approval Maina
Singh's case (supra) and applying the principle laid down therein in the facts
of the case presented before it observed as under:- The position as it stands
on the face of the prosecution case as disclosed in the Court is that only five
named and known persons including Piara Singh participated in the murderous
assault on the deceased of which four have been acquitted which would lead to
the natural presumption that the other four accused persons were not there. In
these circumstances, therefore, the conclusion is inescapable that Piara Singh
alone cannot be convicted under Section 302 with the aid of Section 34. The
appellant, Piara Singh would only be liable for the individual act which he may
have committed in respect of the assault on the deceased." Judged in the
context of the principles of law laid down in the cases referred to above the
conclusion is inevitable that the appellant before us cannot be convicted under
Section 302 IPC, even with the aid of Section 34 IPC, as the prosecution laid
evidence to prove that only the three arraigned persons, were responsible for
the murder and the acquittal is not based on the ground of mistaken identity.
The appellant would therefore be liable for his individual act only. which
unmistakably makes out, in view of the weapon used by him and the nature of
injuries caused an offence under Section 326 IPC. Since the gun used by the
appellant was an unlicensed one his conviction under Section 25 of the Arms Act
has got to be upheld also.
the foregoing discussion we set aside the conviction of the appellant under
Section 302 IPC and convict him under Section 326 IPC. Considering the fact
that since the offence as committed more than 11 years have elapsed, we
sentence him to suffer rigorous imprisonment for seven years for the above
conviction. The conviction and sentence imposed upon him under Section 25 of
the Arms Act are maintained. Both the sentences will run concurrently, The
appellant, who is on bail will, now surrender to his bail bond to serve out the
sentence now imposed upon him.