BALVIR SINGHversusSTATE OF MADHYA PRADESH

                         [2019] 4 S.C.R. 545                            545


                          BALVIR SINGH                                  A
                                 v.
                 STATE OF MADHYA PRADESH
                 (Criminal Appeal No.1115 of 2010)
                        FEBRUARY 19, 2019                               B
     [R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
       Penal Code, 1860 – ss. 341, 302 r/w. 34 – Arms Act – s. 25(1A)
r/w. s.27 – Prosecution case was that PW-2, PW-13 and victim were
going on a motorcycle, on the way, they were stopped by accused
                                                                        C
(No.1 to 4) – Accused No.2 and 3 caught hold of victim and accused
No.1 fired on the face of the victim from a very close range – Victim
died instantly – Incident was witnessed by PW-2, 3 & 13 – Trial
Court convicted accused (No.1 to 4) u/s. 341, 302 r/w. 34 IPC and
accused No.1 was also convicted u/s. 25(1A) r/w. s.27 of Arms Act
– Conviction affirmed by the High Court – Accused (No.1 to 3)           D
preferred appeal – Appellants-accused contended that there were
material contradictions and inconsistencies in the testimony of eye
witnesses PW-2, 3 & 13 – Held: So long as the evidence of eye
witnesses is found credible and trustworthy, their evidence cannot
be doubted on the ground of minor contradictions – In instant case,
                                                                        E
PW-2, 3 & 13 had given a consistent and clear account of the
incident – The alleged contradictions in the testimony of the eye
witnesses urged by the appellant are trivial and it does not affect
the case of the prosecution – The contradictions pointed out in the
evidence of PW-2, 3 & 13 were normal discrepancies which are due
to normal errors of observations which, do not effect trustworthiness   F
of the witnesses.
      Evidence – Consistent versions of prosecution witnesses on
the touchstone of medical evidence – Appellant contended that there
were inconsistencies between the evidence of eye witnesses and
medical evidence – Held: The evidence of eye-witnesses are the          G
eyes and ears of justice – Merely because victim sustained injuries
of different shapes, on the opinionative medical evidence, the
consistent evidence of eye-witnesses cannot be doubted – In instant
case, the inconsistencies pointed out in the evidence of eye-witness
inter se and the alleged inconsistencies between the evidence of
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                                 545
546            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     eye-witnesses and that of the medical evidence are minor
      contradictions and they do not shake the prosecution case – Thus,
      the consistent version of PW-2, 3 and 13 cannot be decided on the
      touchstone of medical evidence.
            Penal Code, 1860 – s.34 – Common intention – Trial Court
B     convicted accused (No.1 to 4) u/ss.341, 302/34 IPC – Conviction
      affirmed by the High Court – On appeal, held: If accused Nos. 2
      and 3 had shared common intention, they would also had attacked
      the victim, but they were only alleged to have caught hold of the
      victim – Prosecution did not bring in evidence that there was prior
      meeting of minds and that accused Nos. 2 and 3 were having
C     knowledge that their brother-accused No.1 was armed with Katta –
      Thus, conviction of accused Nos. 2 & 3 u/s. 302 r/w s.34 set aside.
            Disposing of the appeals, the Court
             HELD: 1. PWs 2, 3 and 13 had given a consistent and clear
D     account of the incident. All the three eye witnesses have attributed
      specific overt act of beating the victim-deceased with lathi to
      accused ‘B’, specific overt act of chasing the victim and holding
      him by accused No.2 and accused No.3 and the specific overt act
      of firing at the victim to accused No.1. Upon consideration of the
      evidence of eye witnesses PWs 2, 3 and 13, the trial court found
E     that the evidence of the eye witnesses is credible and trustworthy.
      [Para 13] [554-C-D]
             2. 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
F     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 victim-
      deceased with lathi by accused ‘B’, part of the body where the
      bullet was shot and the distance from where accused no.1 fired at
G     victim 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-accused no.1 and victim, and the part
      of the body of victim where the bullet hit are may be due to normal
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       BALVIR SINGH v. STATE OF MADHYA PRADESH                            547


errors of observation narrating the occurrence, which they have           A
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
                                                                          B
found credible and trustworthy, their evidence cannot be doubted
on the ground of minor contradictions. [Para 14] [554-E-H;
555-A]
      3. In the present case, the contradictions pointed out in
the evidence of PW-2, PW-3 and PW-13 are only normal
discrepancies which are due to normal errors of observation which         C
do not affect the trustworthiness of these witnesses. [Para 16]
[555-F]
      4. Apart from the gunshot injuries which caused the death,
there were nine other injuries found on the body of victim-
deceased. PW-9-Doctor opined that the injuries sustained by the           D
victim 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.              E
Victim was indiscriminately attacked by accused ‘B’ with lathi
and there is possibility of the victim sustaining injuries of different
shapes. Merely because victim sustained injuries of different
shapes, on the opinionative medical evidence, the consistent
evidence of eye witnesses cannot be doubted. It is well settled
that the oral evidence has to get primacy since medical evidence          F
is basically opinionative. [Paras 25, 26] [558-F-H; 559-A-B]
      5. 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.          G
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. [Para 27] [559-E]
      6. To invoke Section 34 IPC, it must be established that
the criminal act was done by more than one person in furtherance          H
548            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     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
B
      bring about a particular result. Minds regarding sharing of
      common intention 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
C     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.
      [Para 33] [561-C-E]
            7. Though it is stated that accused Nos.2 and 3 were
D     present along with accused No.1, the fact remains that they were
      not armed. After being hit by accused ‘B’ on the back when
      victim-deceased ran, accused Nos.2 and 3 are alleged to have
      followed him and accused no.2 allegedly caught the right arm of
      victim and accused no.3 held the left arm of victim. It is also
      brought in evidence that accused ‘B’ was giving lathi blows to
E     victim 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
F     having knowledge that their brother accused no.1 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 no.1 and other accused ‘B’ in
      committing the murder of victim. Conviction of accused Nos. 2
      and 3 under Section 302 read with Section 34 IPC is, therefore,
G     liable to be set aside. However, conviction of the appellant/
      accused No.1 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.
      [Paras 37 and 38] [563-B-F]
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       BALVIR SINGH v. STATE OF MADHYA PRADESH                          549


      Appabhai and Another v. State of Gujarat (1988)                   A
      Suppl. SCC 241; Annareddy Sambasiva Reddy and
      Others v. State of Andhra Pradesh (2009) 12 SCC
      546 : [2009] 6 SCR 755 ; Rammi alias Rameshwar v.
      State of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl.
      SCR 1; Ramanand Yadav v. Prabhu Nath Jha and
                                                                        B
      Others (2003) 12 SCC 606 ; Ramesh Singh alias Phooti
      v. State of A.P. (2004) 11 SCC 305 – relied on.
      State of Uttar Pradesh v. Ram Kumar and Others
      (2017) 14 SCC 614 ; State of U.P. v. Krishna Gopal
      and Another (1988) 4 SCC 302 ; [1988] 2 Suppl.
      SCR 391; Balu @ Bala Subaramaniam and Another                     C
      v. State (UT of Pondicherry) (2016) 15 SCC 471 : [2015]
      12 SCR 1096 ; Dhanna v. State of M.P. (1996) 10
      SCC 79 : [1996] 4 Suppl. SCR 28 – referred to.
                       Case Law Reference
                                                                        D
      (1988) Suppl. SCC 241        relied on           Para 15
      [2009] 6 SCR 755             relied on           Para 16
      [1999] 3 Suppl. SCR 1        relied on           Para 16
      (2017) 14 SCC 614            referred to         Para 19
                                                                        E
      (2003) 12 SCC 606            relied on           Para 26
      [1988] 2 Suppl. SCR 391      referred to         Para 26
      (2004) 11 SCC 305            relied on           Para 34
      [2015] 12 SCR 1096           referred to         Para 35          F
      [1996] 4 Suppl. SCR 28       referred to         Para 35


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1115 of 2010.
                                                                        G
       From the Judgment and Order dated 26.08.2008 of the High Court
of Judicature at Jabalpur, Madhya Pradesh in Criminal Appeal No. 1124
of 1999
                              WITH
      Criminal Appeal Nos. 1116 and 1119 of 2010.                       H
550            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A           Raj Kishor Choudhary, Abdul Karim Ansari, Shakeel Ahmed,
      Ms. Chitranjali Negi, Aftab Ali Khan, Sanjay Jain, Advs. for
      the Appellant.
            Mrs. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar,
      Ms. Indira Bhakar, Ms. Aparna Trivedi, Santanu Singh, Advs. for the
B     Respondent.
            The Judgment of the Court was delivered by
            R. BANUMATHI, J. 1. 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
C     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
D     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
E     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
F     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
G     (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
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       BALVIR SINGH v. STATE OF MADHYA PRADESH                              551
                  [R. BANUMATHI, J.]

under Sections 341, 294, 323, 302, 506B, 34 IPC and under Section           A
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
                                                                            B
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,
                                                                            C
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          D
did not have barrel marks. The ballistic expert 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
                                                                            E
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
                                                                            F
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.                 G
       6. Upon consideration of oral and documentary evidence, the trial
court convicted the accused and sentenced them to undergo imprisonment
as under:-

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552            SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A
             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/-

B                             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

C
             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
D     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
E     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 sufficient barrel marks
      in the cartridge for decisive matching with the pistol allegedly recovered
F     from the appellant Harnam Singh and this raises serious doubts about
      the occurrence and 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
G     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.

H
       BALVIR SINGH v. STATE OF MADHYA PRADESH                              553
                  [R. BANUMATHI, J.]

      8. Taking us through the impugned judgment and other materials        A
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.
                                                                            B
     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 witnesses.        C
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.        D
After the deceased was so attacked with blow of lathi, there was scuffle
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          E
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          F
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 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         G
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.
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554             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     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
B
      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.
C            13. PWs 2, 3 and 13 had given a consistent and clear account of
      the incident. All the three eye witnesses have 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
D     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
E     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
F     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
G     the part of the body of deceased where the bullet hit are may be due to
      normal errors of observation narrating 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
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       BALVIR SINGH v. STATE OF MADHYA PRADESH                                 555
                  [R. BANUMATHI, J.]

the evidence of eye witnesses is found credible and trustworthy, their         A
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:-                                                  B
      “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         C
      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     D
      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……...”.
       16. The well-settled principle that minor discrepancies in the oral     E
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            F
(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           G
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
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556            SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     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
B
      towards Balvir 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
C     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
D     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
E     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 –
F     “Inquest Report”. Column No.11 of the FIR, of course, contains the
      Inquest No.10/98. Merely because the FIR contains inquest 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
G     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
H
        BALVIR SINGH v. STATE OF MADHYA PRADESH                                557
                   [R. BANUMATHI, J.]

yards away from the road and he went to the police station to lodge the        A
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
                                                                               B
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   C
court held that not sending the FIR 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              D
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           E
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      F
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            G
gunshot around the left eye, the shot must have been fired from very
close distance of about one foot.
      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
                                                                               H
558            SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A     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
B     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
C     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
D     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 pointed out by the trial court, during the course
      of scuffle and when the deceased was running away to save himself,
E     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.

F            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,
G     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
H
       BALVIR SINGH v. STATE OF MADHYA PRADESH                                 559
                  [R. BANUMATHI, J.]

sustaining injuries of different shapes. Merely because deceased Mohan         A
sustained injuries of different shapes, on the opinionative medical
evidence, the consistent evidence of eye witnesses cannot be doubted.
      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              B
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          C
      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                D
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        E
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.
                                                                               F
       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).                                                             G
        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
                                                                               H
560            SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     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
B           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
C
            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 country made
D     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
E     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
F     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
G     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 they have
      acted in furtherance of common intention in committing the murder of
H     Mohan.
        BALVIR SINGH v. STATE OF MADHYA PRADESH                                    561
                   [R. BANUMATHI, J.]

       32. Common intention of Accused Nos.2 and 3:- As discussed                  A
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
                                                                                   B
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.                                                            C
       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               D
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 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               E
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               F
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                 G
      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         H
562            SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A           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
B
            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 from the manner in which the accused
            arrived at the scene and mounted the attack, the determination
C           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
D
            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)”
E          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
F     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
G     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?
             37. Deceased Mohan and accused Harnam Singh were working
H     in the railways and regarding the money transactions, there was enmity
        BALVIR SINGH v. STATE OF MADHYA PRADESH                                563
                   [R. BANUMATHI, J.]

between them. It is brought in evidence through PW-2 that 2-3 days             A
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
                                                                               B
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             C
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
                                                                               D
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
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        E
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      F
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         G
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.


Ankit Gyan                                              Appeals disposed of.   H