Prem
Kumar & Anr Vs. State of Bihar [1995] INSC
161 (2 March 1995)
Paripoornan,
K.S.(J) Paripoornan, K.S.(J) Anand, A.S. (J) Paripoornan, J.:
CITATION:
1995 SCC (3) 228 JT 1995 (3) 123 1995 SCALE (2)50
ACT:
HEAD NOTE:
1. The
appellants in this appeal, Prem Kumar Singh (a), Prem Singh S/o Mundrika Singh
and Ramesh Singh S/o Chandrika Singh are Accused Nos. 1 and 2 in Sessions Trial
No. 219 of 1983, Additional Sessions Judge, Palamau. They have filed this
appeal against the affirmance of their conviction under section 302 of Indian
Penal Code, by the Patna High Court, Ranchi Bench, Ranchi, by judgment dated 8.9.1989. The
above two accused, along with one Mundrika Singh, Accused No. 6, father of
Accused No. 1 Prem Singh, and eight others were charge-sheeted to stand
Sessions Trial for the murder of one Tarkeshwar Prasad Singh on 13.1.1983 at 6.30 p.m. at a place known as Ketat. Accused Nos. 1 and 2 were
charged for of- 124 fence under section 302 read with section 34 IPC for
causing the murder of Tarkeshwar Prasad Singh. They were also charged for
offence under section 307/34 IPC for attempting to cause murder of Ghanshyam Languri
and Rajnath Tewari, two co-passengers, who boarded the bus along with Tarkeshwar
Prasad Singh. The remaining nine accused persons were charged for offences
under section 302/ 149 IPC. Accused No. 6 Mundrika Singh was charged for
offence, under section 147 IPC also, whereas the ten other accused persons were
further charged for offence under section 148 IPC read with section 27 of the
Arms Act. All the accused persons pleaded not guilty for each of the charges
framed against them. The defence plea was that the death of Tarkeshwar Prasad
Singh in the bus, belonging to Santosh Transport Company, might have been
caused at the hands of some unknown dacoits and the accused persons have been
falsely implicated by the informant because of long drawn enmity between the
parties.
The
plea of alibi was also put forward by Accused No. 6 Mundrika Singh, Accused No.
1 Prem Singh, Accused No. 10 Raja Dixit and Accused No. 7 Muni Dixit. On an
analysis of the entire evidence in the case, the Additional Sessions Judge, Palamau,
by judgment dated 9.6.1987, held that on instigation given by Accused No. 6 Mundrika
Singh to kill Tarkeshwar Prasad Singh, the deceased, Accused No. 1 Prem Singh
and Accused No. 2 Ramesh Singh intentionally caused the death of Tarkeshwar
Prasad Singh by firing at him with their rifles in consequence of which Tarkeshwar
Prasad Singh died instantaneously on the spot. It was also found that in the
same act, Accused Nos. 1 and 2 also caused rifle shot injury on PW 5 and 6
knowing fully well that in the circumstances, by their act of firing inside the
bus, it was likely to cause the death of other passengers also and such act was
an attempt to commit murder of PW 5 and 6. The Sessions Judge came to the
conclusion that there is absolutely no evidence of any other attack by the
remaining accused persons (other than Accused Nos. 1, 2 and 6). The offence
under section 27 of the Arms Act was also not proved against such persons. In
the result Accused No. 6 Mundrika Singh was found guilty under section 302 read
with section 34 IPC and convicted thereunder. Accused Nos. 1 and 2 were found
guilty for offence under section 302 IPC for causing the murder of Tarkeshwar
Prasad Singh and they were convicted thereunder. They were also found guilty
for offence under section 307 IPC for attempting to commit the murder of PW 5
and 6 and were accordingly convicted. Except accused Nos. 1 and 2 and 6, the other
accused were not found guilty for any of the charges framed against them and
they were acquitted and discharged from the liability of their respective bail
bonds. Accused Nos. 1 and 2 were sentenced to imprisonment for life under
section 302 IPC.
Accused
No. 6 was also sentenced to imprisonment for life under section 302 read with
section 34 IPC. Accused Nos. 1 and 2 were further sentenced to undergo rigorous
imprisonment for seven years for their conviction under sec- tion 307 IPC. It
was further held that both the sentences passed against the Accused Nos. 1 and
2 shall run concurrently. Accused Nos. 1, 2 and 6 filed Criminal Appeal No. 90
of 1987 before the High Court of Patna, Ranchi Bench, Ranchi. A Division Bench
of the High Court, after a very detailed discussion of the entire evidence, by
Judgment dated 8.9.1989, acquitted accused No. 6 Mundrika Singh and con- 125
firmed the conviction of Accused Nos. 1 and 2 under section 302 of the Indian
Penal Code. The conviction of Accused Nos. 1 and 2 under section 307 IPC was
set aside. The High Court observed that the case of Accused No. 6 Mundrika
Singh is not free from doubt and the case against him appears to be similar to
the other co-accused, who were acquitted by the Sessions Judges. In this view,
the conviction of Accused No. 6 Mundrika Singh, appellant No. 3 before the High
Court, was set aside and be was acquitted of the charge. But as regards Accused
Nos. 1 and 2 the High Court came to the conclusion that though their conviction
and sentence under section 307 of the Indian Penal Code are liable to be set
aside, their conviction and sentence under section 302 IPC were justified. It
is against the aforesaid Judgment of the High Court dated 8.9.1989 Accused Nos.
1 and 2 have filed the above Criminal Appeal before this court as per special
leave granted in SLP (Crl.) No. 2059/89 dated 22.7.1991.
2. We
heard Sri Rajender Singh, learned senior counsel for the appellants and Sri
H.L. Agrawal, learned senior counsel for the respondent. Accused No. 6 Mundrika
Singh and one Chandrika Singh are brothers. Accused No. 1 Prem Singh is the son
of Mundrika Singh. Accused No. 2 Ramesh Singh is the son of Chandrika Singh. It
is alleged that one Rajan, brother of Accused No. 1 Prem Singh, and Bishwanath,
brother of Accused No. 2 Ramesh Singh, were murdered by Tarkeshwar Prasad
Singh. and others on 2.10.1982. The case was still pending when the incident
relevant to the instant case happened on 13.1.1983 at about 6.30 p.m. at Ketat. It is fairly clear from the evidence in
the case, that enmity exists between the members of the appellants' family and
those of the deceased family. The prosecution alleged that on 13.1.1983 after
attending the hearing of the murder case of Rajan and Bishwanath at Daltonganj,
Tarkeshwar Prasad Singh accompanied by Bashishth Narain Singh, PW 8, as also Sheo
Pratap Singh and Ramadhar Pathak, boarded the bus bearing Registration No. BRO
3555 of Santosh Transport Company, for returning to Rehla at 5.30 p.m., and the bus stopped for a while at the stop of Ketat,
when car bearing Registration No. WMB 5989 came from behind and stopped in
front of the bus. The time was about 6.30 p.m. Then Accused Nos. 2 and 6 and their colleagues Satyender Singh, Munni Dixit
got down from the car. Accused No. 6 was empty handed but the remaining persons
were armed with rifles. In the meanwhile Jeep bearing Registration No. BRO
2770, which also arrived from the side of Daltonganj, stopped in front of the
bus. From that Jeep, Accused No. 1, armed with a rifle, and his colleagues Rajeshwar
Singh, Bishwanath Singh, Parsuram Dixit, Basistha Dixit, Fakira Dixit and Chandardhan
Singh and two other unknown persons, all armed with guns alike, alighted. The
accused and other co-culprits started proclaiming that as Tarkeshwar Prasad
Singh was inside the bus, he should be cut into pieces. On hearing this, the
passengers of the bus were struck with terror and started fleeing away.
Passengers were in the process of getting down from front and rear entrances.
At that time Accused Nos. 1 and 2 came inside the bus from the front entrance.
PW 8 Dudhnath
Singh, in order to hide his identity, had wrapped his face with the chadar and
rushed towards the back door of the bus, when he saw Accused Nos. 1 and 2
firing indiscriminately at Tarkeshwar 126 Prasad Singh. In that firing Ram Raj Pandey
- PW 5, a forest guard, and Ghanshyam Languri - PW 6, a police offi- cial, also
received injuries. PW 8 Dudhnath Singh had by that time managed to get down
from the bus like many other passengers and he concealed himself nearby in
thick bushes.
On
knowing that Tarkeshwar Prasad Singh had died, the accused and others raised
victory slogans and fled towards Daltonganj in their car and jeep. On hearing
the news, Sub Inspector Sachchidanand Deo, PW 14, entered the information as
Entry No. 195 (Ex. 4) at 7.00
p.m. in Rehla Police
Station and rushed to the place of occurrence, arriving there at 7.15 p.m. On seeing the police PW 8 Dudhnath Singh came out of
the hiding and made a statement (Ex. 5) which was sent to the Police Station, Bishrampur
and on this basis the case was registered vide FIR (Ex. 7) at 9.00 p.m. PW 5
and 6 were transported to Daltonganj hospital. Though the search was made for
the culprits they were not found. The Sub Inspector retained to the spot at
about 1.30 a.m. and prepared the inquest report
with respect to the dead body of Tarkeshwar Prasad Singh. He lifted three live
gun car- tridges vide seizure memo Ex. 9. PW 1 Bashishth Narain Singh and Bipin
Bihari Singh attested the documents prepared at the spot. The dead body of Tarkeshwar
Prasad Singh was subjected to postmortem examination by Dr. R.K.P. Pandey (PW
4). One Dr. K., Singh conducted medical examination of PW 5 and 6. Statements
of driver, conductor and other witnesses were recorded- The accused surrendered
in court and were arrested later and chargesheeted. One of the accused Chandardhan
Singh was subsequently murdered on 23.6.1983.
Accused
Nos. 1, 2 and 6 were sentenced and other accused were acquitted by Sessions
Judge.
3. The
postmortem examination of Tarkeshwar Prasad Singh was conducted by PW 4 on
14.1.1983 at 10.50 a.m. at Subdivisional Hospital, Daltonganj. The record relating
thereto discloses the following injuries : -
1. Six
oval lacerated wounds with inverted margins of the sizes varying from 1/4"
to 1/2 " in diameter on the middle and left side of the front of the
chest;
2. One
oval lacerated wound with inverted margins of the size 3/4" in diameter on
the upper part of the left side of abdomen with two metal pieces embodied in
the wound;
3.
Three circular lacerated wounds with inverted margins of the sizes varying from
1/4" to 1/2" in diameter on the right shoulder with blackening of the
skin around the wound.
Fractures
of the body of the external bones of third, fourth, fifth and sixth ribs and
cartilages on the right side, as well as the fourth, fifth and sixth ribs and
on the left side were noticed. The third and the fourth thorazix vertebra, the
right of devicles, right scapula, and the upper part of the numerous on the
right side were also found fractured.
Injury
Nos. 1 and 3 referred to above were wounds of entry, while injury No. 2 was the
wound of exit. All the above injuries were caused by fire arms. Death of Tarkeshwar
Singh had been caused by shock and hemorrhage as a result of above noted
injuries. The time elapsed since death was with 12 to 18 hours of the
postmortem examination. All the injuries individually were sufficient to cause
death in the ordinary course of nature.
127
Ext. 3 is the postmortem examination.
The
medical examination of PW 5 Ram Raj Pandey on 13.1.1983 conducted by Dr. K.
Singh disclosed the following:
Lacerated
wound on left side of neck 1" x 1/2" surrounded by charring of skin.
The X-ray plate dated 14.1.1983 showed a big oblique subset with small radio
opaque particle. It was a skin (deep) injury caused by afire arm, may be a
rifle. Age of the injury was within 24 hours. Ex. 2 is medico legal
certificate.
Dr. K.
Singh, who examined PW 6 found the following injury:- One lacerated wound on
left side of the shoulder 3 " x 1". The depth could not be probed.
This injury was surrounded by charring skin. The X-ray plate no. 41 dated
14.1.1983 showed three shots on the upper left side of back. It was simple in
nature caused by afire arm such as a rifle or gun. Age of the injury was within
12 hours. Ext.2/1 is the medico legal certificate.
4. As
stated earlier, the plea of the appellants was that the prosecution allegations
are untrue and that they were innocent. Accused Nos. 1 and 6 and two other
accused advanced the plea of alibi and examined DW 1 to 3 in support of the
same. The said evidence did not find favour with the trial court. The
appellants also examined DW 4 Kuldip Roy and DW 5 Priya Brat Singh to show that
Tarkeshwar Prasad Singh was a terror.
5.
Certain crucial aspects appearing in the case deserve to be highlighted. Tarkeshwar
Prasad Singh was shot dead inside the bus bearing Registration No. BRO 3555 at
the bus stop Ketat at about 6.30 p.m. on
13.1.1983.The deceased met with instantaneous death. PW 1, PW 2, PW 5 an PW 8
are the eye witnesses. PW 8 lodge FIR on the same day at 7.30 p.m.
PW 5,
forest guard, was a co-passenger and independent witness. He also speaks about
the incident and he was injured in the act of firing by Accused Nos. 1 and 2.
The postmortem report and the evidence of PW 4 proves that the injury resulted
due to shots of fire arms. There was, admittedly enmity between the family of
the informants and that of the accused. Deceased Tarkeshwar Prasad singh, along
with PW 1, 2, 8 and PW 5 & 6, and few others was returning in the bus
belonging to Santosh Transport Company, on 13.1,1983, after attending the
murder case of Rajan and Bishwanath. The prosecution states that Prem Singh and
Ramesh Singh (Accused Nos 1 and 2), who came from behind in the jeep and the
car along with few others, fired fatal shots at Tarkeshwar Prasad Singh with
their rifles in furtherance of common intention of the other accused per- sons,
which caused the instantaneous death of Tarkeshwar Prasad Singh. The courts
below have concurrently held that the motive suggested by the prosecution
against the accused persons is established. When there is sufficient direct
evidence regarding the commission of the offence, the question of motive will
not loom large in the mind of the court. It is true that this Court has held in
State of UP. v. Moti Ram & Ors. (1990 (4) SCC 389), that in a case where
the prosecution party and the accused party were in animosity on account of
series of incidents over a consid- erable length of time, the motive is a
double-edged weapon and the key question for consideration is whether the pros-
ecution had convincingly and satisfactorily established the guilt of all or any
of 128 the accused beyond reasonable doubt by letting in reliable and cogent
evidence. Very often, a motive is alleged to indicate the high degree of
probability, that the offence was committed by the person, who was prompted by
the motive.
In our
opinion, in a case when motive alleged against the accused is fully
established, it provides a foundational material to connect the chain of
circumstances. We hold that if motive is proved or established, it affords a
key or pointer, to scan the evidence in the case, in that perspective and as a
satisfactory circumstance of corroboration. It is a very relevant, and
important aspect, (a) to highlight the intention of the accused and (b) the
approach to be made in appreciating the totality of the circumstances,
including the evidence disclosed in the case.
The
relevance of motive and the importance or value to be given to it are tersely
stated by Shamsul Huda in delivering the Tagore Law Lectures (1902)- The
Principles of the Law of Crimes in British India, at page 176, as follows:-
"But proof of the existence of a motive is not necessary for a conviction
for any offence.
But
where the motive is proved it is evidence of the evil intent and is also
relevant to show that the person who had the motive to commit a crime actually
committed it, although such evidence alone would not ordinarily be sufficient.
Under Section 8 of the Evidence Act any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant
fact." In these circumstances, the only crucial factor falls for determinationistosee
whether satisfactory evidence was available on record for bringing home the
guilt of the appellants/accused persons. We shall discuss in brief the evidence
of the four cye-witnesses PW 1,2,5 and 8, to the extent it is necessary to show
how far the prosecution has established its case.
6. The
main arguments advanced before us onbehalf of the appellants-accused are
(a) PW
1 to 8 arc not really eye witnesses and they were not able to depose, who fired
the final shot and when;
(b) the
shot received by Tarkeshwar Prasad Singh is of the gun and not of the rifle as
spoken to the prosecution witness;
(c) there
is inconsistency in the prosecution evidence, and what is more the statement in
FIR is not fully substantiated.
7. We
were taken through the evidence of PW 1, and 4 (medical witness), PW 5
independent witness (Forest Guard) and PW 8 - first informant and PW 12, We
have also gone through the FIR appearing at pages 51-54 (paper book No. III
Annexure p-10) and also the statement given by the accused in their examination
under Section 313 of Criminal Procedure Code. We shall now advert to the
salient features disclosed by the said evidence appearing in the case.
8. PW
1, Bashishth Narain Singh is the father-in-law of Tarkeshwar Prasad Singh. He
deposed before the Court that himself, PW 2, PW 8 and the few others were in
the Santosh Bus when it stopped at Ketat village, a jeep and a car came from
behind and 10-15 persons armed with rifles and guns got down from both the
vehicles and shouted that Tarkeshwar Prasad Singh is in the bus and he should
be cut. He was trying to get down from the bus to run away when Prem Singh and Ramesh
Singh, Accused Nos. 1 and 2, came from the front gate with rifles along with Mundrika
Singh (A-6). There were amongst passengers, 129 one Forest Department Official
(PW 5) and another police official (PW 6). He knew Mundrika Singh, Ramesh Singh
and Prem Singh for a long time. No doubt he had developed weakness in the eyes
two months prior to the date of examination, but he had clear vision and his
eyes were alright at the time of the occurrence. He admitted that he had given
statement before the police that Ramesh Singh and Prem Singh started firing at Tarkeshwar
Prasad Singh after entering into the bus. He heard the noise of firing when he
was fleeing from the bus and also heard the shout of Tarkeshwar Prasad Singh to
save him. PW 2 Ran Vijay Pratap Deo, deposed that he boarded Santosh Bus in the
evening to come back to Rehla along with PW 1, PW 8 and Tarkeshwar Prasad Singh
and when the bus halted near Ketat village to drop some passengers, a fiat car
came from Daltonganj direction and stopped before the bus. Accused Ramesh Singh
and others with rifles in the hands, and Mundrika Singh got down. Mundrika
Singh's hands were empty. A jeep also came from behind and Prem Singh and
others got down from the jeep with the rifles. The jeep and the car surrounded
the bus and thereafter, he heard the noise of firing from the bus gate. Prem
Singh and Ramesh Singh were standing near the front gate of the bus with rifle.
The moment he came out of the bus, he heard the noise of firing andsimultaneously
the shout of Tarkeshwar Prasad Singh. He also speaks about the enmity between
the accused and Tarkeshwar Prasad Singh. Ac- cording to him, there was indiscriminate
firing in the bus.
PW 5,
a forest officer and independent witness, stated before the Court that he
boarded Santosh Bus at Daltonganj bus stand on 13.1.1983 and when the bus
stopped in front of Ketat village, 5-6 persons surrounded the bus and started
firing indiscriminately. He was injured due to firing Tarkeshwar Prasad Singh
died inside the bus, hit by the bul- let. Persons firing were outside the bus
next to the bus door and were firing inside. The bullet hit the witness after
breaking the glass of the bus window. He knew Tarkeshwar Prasad Singh before
since he was a forest contractor. PW -8 Dudhnath Singh, who gave the FIR
available at pages 51-54 of Volume III of the paper book, is the brother-in-law
of the deceased Tarkeshwar Prasad Singh.
In the
FIR he has stated that along with Tarkeshwar Prasad Singh, PW 1, 2 and others,
they boarded the bus at Daltonganj' and when the bus reached Ketat village at
about 6.45 in the evening to drop a passenger, a car, belonging to Chandrika
Singh, bearing No. WHB 5989, came overtaking the bus and stopped in front of
It. The passengers, sitting in it, got down and were armed with guns and
rifles. He recognised those persons Among them Ramesh Singh, Accused No. 2, and
others had rifles. immediately after this the jeep, bearing No. BRO 770, came
and Prem Singh, Accused 1, and others got down with rifles in hand. All the
persons in the car and the jeep surrounded the standing bus and said that 'sala'
Tarkeshwar Prasad Singh is in he should be taken out and cut into pieces. The
persons traveling inside the started begging for life and started fleeing. Prem
Singh and Ramesh Singh were identifying the, passengers and PW 8, by hiding his
face, got down from the rear gate. Tarkeshwar Prasad Singh was in the back. As
soon as the witness reached the rear gate, he saw Prem Singh and Ramesh Singh
entering the bus from the front gate with their rifles and started
indiscriminate firing on Tarkeshwar Prasad Singh.
The
130 witness ran outside to save his life, but while running he heard Tarkeshwar
Singh's shouts from inside the bus. He hid himself in nearby bushes. The reason
for this murder is that Prem Singh, Ramesh Singh and others had enmity towards Tarkeshwar
Prasad Singh and wanted to take revenge due to the pending murder case of Rajan
and Bishwanath in Daltonganj. As PW 8, the witness, substantially corroborated
what he stated in the FIR. He deposed that he was travelling along with Tarkeshwar
Prasad Singh, PW 1 and others in the bus belonging to Santosh Transport Company.
At
about 6.45 p.m. at Ketat village the bus stopped to drop a passenger when a
Fiat car bearing No. WHB 5989 stopped in front of the bus and Ramesh Singh and
others came out of the same with rifles and thereafter a jeep bearing No. BRO
2770 came and Prem Singh and others got down out of the jeep with rifles and
all of them abusing Tarkeshwar Prasad Singh stated that he should be cut into
pieces. Prem Singh and Ramesh Singh stood near the front door of the bus and
fired shots with rifles. PW 8 was successful in fleeing away by covering his
face with a chadar. He saw that Tarkeshwar Prasad Singh got injured by the
bullet inside the bus.
Tarkeshwar
Prasad Singh was behind him when firing had taken place. He did not see bullet
being fired on any other passenger other than Tarkeshwar Prasad Singh. Another
person. who was a forest guard, was injured, hit by a bullet. The FIR available
at pages 51-54 of volume III of the paper book and the deposition of the eye
witnesses, PW 1, PW 2, PW 5 and PW 8, of when PW 5 is an independent witness,
clearly bring out the fact that Accused Nos. 1 and 2 came in a jeep and a car
with rifles, with a few other persons, that they got into the bus from the
front and fired indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest
officer as an independent witness, who himself sustained in- juries, has also
stated that Tarkeshwar Prasad Singh died inside the bus due to hit by the
bullets. 'Mere is no contradiction with regard to the crucial aspects, namely,
that these witnesses travelled with Tarkeshwar Prasad Singh in the same bus,
that the bus stopped at Ketat village to drop a passenger, at that time Accused
Nos. 1 and 2 came in a jeep and a car with rifles, from behind, along with
others, surrounded the bus and after proclaiming that Tarkeshwar Prasad Singh
is inside the bus and he should be cut into pieces, they entered the bus and
fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death
of Tarkeshwar Prasad Singh instantaneously.
9. PW4
- Dr. R.K.Pandey, who conducted the postmortem examination of the deadbody,
proved the postmortem certificate issued by him and also stated that the
injuries referred to in the certificate were caused by fire arms.
Ext. 3
- certificate - is in his own handwriting and signed by him. Six metallic
pieces recovered from the dead-body were properly sealed and sent to the
police. All the injuries were caused by some fire arms. The postmortem re- port
- Annexure p-8, (Volume III of the paper book)-mentions about two metallic pieces
embodied in the wounds in the up- per left side of the abdomen and also refers
to a recovery of total six metallic pieces. The postmortem report along with
the evidence of the medical witness PW 4 substantiates that the injuries
sustained by Tarkeshwar Prasad Singh were as a result of shots received from
the fire arms and that they were fatal. Such injuries were, 131 sustained by Tarkeshwar
Prasad Singh only due to the shots received from the fire arms, employed by the
accused against Tarkeshwar Prasad Singh, while in the bus as spoken to by eye
witnesses PW 1, PW 2, PW 5 and PW8. The direct evidence in the case, amply
corroborated by the motive of the accused, positively points out the intention
of the accused to murder Tarkeshwar Prasad Singh.
10. Sachchidanand
Deo, Inspector of Police, PW 14, who recorded the FIR, stated that he had
seized two bullet on the front gate foot-steps of the bus and that he did not
find any rifle or gun at the place of occurrence or nearby and that he recorded
the FIR and other statements from the witnesses etc. It is also important to
notice that PW 8 has given the number of the Fiat car and the jeep and PW 12 Chandreshwar
Upadhyay, who came along with Prem Singh in jeep has categorically stated that
the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him
in that jeep.
11.
Appellants' counsel made a feeble attempt to contend that it is not clear in
this case whether the injuries to Tarkeshwar Prasad Singh caused by the rifle
or by the gun.
The
plea was that the cartridges recovered were not sent to the ballistic expert
nor was any ballistic expert examined.
Our
attention was invited to the decision of this Court in Mohinder Singh v. The
State (1950 SCR 82 1), and in particu- lar to the observations of the Court at
page 828. We are of the view that the said decision is distinguishable. It will
be found from page 825 of the Report that the accused in the said case produced
"a 12 bore gun" Ext. p-16, for which he held the licence. He denied
that he had fired with the said gun. His case was that Gurnam Singh, who
reached the spot at about the time of incident, had fired at the deceased Dalip
Singh. There were certain puzzling features of the injuries of Dalip Singh, It
is in that connection the court observed as follows:- "In a case where
death is due to injuries or wounds caused by a lethal weapon, it has always
been considered to be the duty of the prosecution to prove by expert evidence
that it was likely or at least possible for the injuries to have been caused
with the weapon with which and in the manner in which they are alleged to have
been caused." The above observations were made in a case where the weapon.
with which the victim sustained injuries was before the Court and there was
doubt whether the injuries could have been caused by using that weapon -
Extp-16, in the reported case. In this case, the rifles used by Accused Nos. 1
and 2 were never recovered. So, the prosecution could not, in the
circumstances, allege that a particular identifiable weapon was used in
committing the crime. There was nothing to be examined by the ballistic expert.
The observations in Mohinder Singh v. The Slate (supra) should be understood in
the above peculiar context. There is no merit in this plea.
12.On
a careful scrutiny of the evidence in the case,we are candidly of the view that
the finding of the courts below that Prem Singh and Ramesh Singh, Accused Nos.
I and 2, due to enmity, had committed the murder of Tarkeshwar Prasad Singh
intentionally by firing repeated shots at him from their respective rifles, is
justified and their convictions under Section 302 of the Indian Penal Code is
proper and unassailable. There is no merit in this appeal. It is dismissed.
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