STATE OF RAJASTHANversusARJUN SINGH & ORS. ETC

                    [2011) 10 S.C.R. 823


                  STATE OF RAJASTHAN                              A
                               v.
               ARJUN SINGH & ORS. ETC;
        (Criminal Appeal No. 552-554 of 2003 etc.)
                    SEPTEMBER 2, 2011
                                                                  B
       [P. SATHASIVAM AND H.L. GOKHALE, JJ.]

    PENAL CODE, 1860:

      ss.302134 and 307134 - Murders of two brothers and c
attempt to murder the third one - Nine accused convicted by
trial court ulss.3021149 and 3071149 - High Court acquitting
six and convicting three u/s.302134 and 307134 - Held: The
deposition of the injured, the medical evidence and other
materials produced by prosecution clearly prove the guilt of 0
the three convicted accused that they with their guns and with
their common intention fired gunshots resulting in death of two
brothers and serious injuries to the third - Their conviction
and sentence as recorded by courts below confirmed -
Evidence.
                                                                   E
      s.302 - Victim sustained 7 gunshot injuries and died 35
days thereafter due to septiceemia - HELD: The injuries were
sufficient to cause death - Case falls within the ambit of s. 302.

     CRIMINAL LAW:                                                F
     Motive - Held: Reliable evidence in the case indicates
that there was previous enmity between one of the accused
and the complainant because of a litigation - Even in the
absence of specific evidence as to motive, in view of the
evidence of the injured witness, the medical evidence and the     G
fact that two persons have been killed and the third one
sustained fired arm injuries, the prosecution case cannot be
thrown out on this ground.

                             823                                  H
    824     SUPREME COURT REPORTS              [2011) 10 S.C.R.


A         EVIDENCE:

       Evidence of related witness - Discrepancies in evidence
  - Effect of - Held: The evidence of the eye-witness who
  suffered gun shot injuries in the incident is supported by
  medical evidence and other documentary evidence - Merely
8
  bec;ause he is related to the deceased is not a ground for
  rejection of his testimony - Certain discrepancies as to
  number of gun shots are liable to be ignored - However, High
  Court rightly observed that presence of other three eye-
  witnesses at the place of occurrence on the stated date and
C time was highly doubtful - Non recovery of pistol or carlridge
  does not detract the prosecution case, whose clinching and
  direct evidence is acceptable - Investigation.

         The three appellants in Crl. A. No. 558 of 2003, along
D   with the six respondents in Crl. A. Nos. 552-554 of 2003
    filed by the State and Crl. A. Nos. 555-557 of. 2003 filed
    by the son of the complainant, were prosecuted for
    causing murder of two brothers of P.W.2 and attempting
    to murder him. The prosecution case, as stated by injured
E   'HS' who later succumbed to his injuries, was that on the
    day of incident when he was standing outside his house,
    accused 'AS' fired at him from the roof of the
    neighbouring house . On hearing his cries two of his
    brothers, namely, 'RR' and 'RS' (PW-2) came there and
F   took him inside the house and after leaving him there,
    when they were going to inform the police, accused
    'BhS', 'GS' (both absconding), 'BS', 'KS' and 'SS' fired
    gunshots at them. Thereafter accused 'BRS' with a
    'gandasa' came there and accused 'LR' also jumped into
    their house. Accused Smt. 'SB', Smt 'GK' and Smt. 'BK'
G   were also present on the roof of the said neighbouring
    house and they tried to kill other family members of the
    deceased. The injured were taken to the hospital where
    the Munsif and Judicial Magistrate recorded the
    statements of 'HS' and 'RS' (PW-2). Since 'RR' was not
H
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.            825
                   ETC.

medically fit, his statement could not be recorded and he    A
died the same day. 'HS' died subsequently. The trial court
convicted and sentenced all the nine accused, inter alia,
u/ss 302/149 and 307/1491PC. However, on appeal, the
High Court acquitted the six respondents and convicted
the three appellants u/ss 302/34 and 307/34 IPC.             B
    Dismissing the appeals, the Court
     !-!ELD: 1.1. The doctor (PW-1) who examined the
injured, explained to the Court that all the ·injuries .
mentioned in Exts. P-1, P-2 and P-4, were caused by gun C
shots; that PW-2 had also sustained injuries which were
serious in nature; and that the injuries of 'HR' and 'RR'
were sufficient to cause death in the ordinary course of
nature. [para 9) [887-C]
                                                             D
     1.2. PW-2, in his evidence, has stated that accused
'AS' was standing on the roof of the n~ighbouring house
and fired from muzzle loaded gun at 'HR'. Though there
is little discrepancy as to the distance from the upper
portion of the house and the actual scene of occurrence, E
it cannot be concluded that the injuries on 'RR', 'HR' and
PW-2 were not caused by fire arms. In this regard, it is
relevant to point out the description of injuries as noted ·
by PW-1 in Exts. P1-P4. In addition to the same, it is seen
from the evidence of PW-1 that the blackening marks
found around the wounds and the dead body confirmed F
that the deceased were within a distance of 6 feet from
the assailants when they received the injuries. [para 9]
[837-F-H; 838-A]

     1.3. Mere non-recovery of pistol or cartridge does not G
detract the case of the prosecution where clinching and
direct evidence Is acceptable. Likewise, absence of
evidence regarding recovery of used pellets, blood
stained clothes etc. cannot be taken or construed as no
such occurrence having taken place. As a matter of fact, H
    826      SUPREME COURT REPORTS              [2011] 10 S.C.R.


A the gun shot injuries tallied with medical evidence. It is
  also seen that the two victims, who died, had received. 8
  and 7 gun shot wounds respectively while PW-2 also
  received 8 gun shots scattered in front of left thigh. All
  these injuries have been noted by the Doctor (PW-1) in
s his reports Exts. P1-P4. The evidence of the doctor (PW-
  1), his reports, Exts. P1-P4 and the evidence of PW-2
  leads to the conclusion that gun shot injuries tallied with
  the medical evidence and both the deceased persons
  died due to the same reason. Similar conclusion arrived
c at by the· High Court cannot be doubted. [para 10-11)
  [838-B-G]

       2.1. Coming to the motive, it is not in dispute that 'RR'
  and 'HR' died due to gun shot injuries. The reliable eye-
  witnesses have stated that there was previous enmity
D between them and litigation was going on between
  accused-'KS' and the complainant. Even in the absence
  of motive, in view .of the assertion of eye-witnesses,
  particularly, PW-2, coupled with the medical evidence as
  seen from Exts. P1-P4, and as depos~d by the Doctor
E (PW-1 ), the case of the prosecution cannot be thrown
  out. (para 12) [839-A-C)

         2.2. In a catena of decisions, this Court has held that
    motive for doing a criminal act is generally a difficult area
  F for the prosecution to prove since one cannot normally
    be seen into the mind of another. Motive is the emotion
    whi.ch impels a man to do a particular act. Even in the
    absence of specific evidence as to motive, in view of the
    fact that in the case on hand, two persons have been
  G killed and one sustained injuries due to fire arms, the
    case of the prosecution cannot be thrown out on this
\
    ground.   (para 12) (839-B-DJ
      3.1. As regards the oral evidence led in by the
  prosecution. PW-2, PW-3 and PW-4 are brothers, PW-6 is
H their father and PW-5 and PW-9 were working as
 STATE OF RAJASTHAN v. ARJUN SINGH & ORS.               827
                  ETC.

labourers in the house of PW-6 at the time of occurrence.      A
It is true that the names of PWs 3, 4 and 6 were not
mentioned either in parchabayan (Ex. P32) or in the
statements, Exts. P22·23, recorded by the Judicial
Magistrate, (PW-18) on the day of the occurrence. This
Court, in a series of decisions, has held that the testimony   B
of eye-witnesses should not be rejected merely because
witnesses are related to the deceased. Their testimonies
have to be carefully analysed because of their
relationship and if the same are cogent and if there is no
discrepancy, the same are acceptable.[paras 13 and 14]         c
[839-f·H; 840-A·B]
   Abdul Rashid Abdul Rahiman Patel & Ors. vs. State of
Maharashtra (2007) 9 SCC 1 - relied on.

     3.2. Likewise, minor discrepancies in the evidence of     D
eye-witnesses are also immaterial. However, as rightly
pointed out, if PW-3 had sus_tained some injuries, his
name could have been mentioned in Exs. P2.2, P23 and
P32 which were earliest versions. In those documents, the
names of 'RR', who died on the same day and 'HR', who          E
died later and PW-2, who received gun shot injuries alone
were mentioned and none else. Another aspect, is that
when the injured persons were examined by the Doctor
on the same day, admittedly, PW-3 was examined only on
the fourth day of the incident and it was seen that he did     F
not receive any gun shot injury. Considering all these
aspects including the fact that there is no proof of
receiving gun shot injury to PW-3 and also taking note
of the fact that he was 13 years of age at the time of
occurrence, as rightly pointed out by the High Court, his      G
presence itself is doubtful. [para 14] [840-B-E]

    3.3. The names of PWs 4 and 6 did not occur in
parchabayan (Ex. P 32) as well as in the statements (Exts.
P22 and P23) recorded by the Judicial Magistrate (PW-18),          r
on the day of occurrence. The statement in Ex. P32 was         H
   828     SUPREME COURT REPORTS             [2011) 10 S.C.R.


A recorded at 11 :40 a.m. and the incident took place at
    about 09:30 a.m. Though it was recorded within two
    hours, while mentioning the details of the occurrence,
    names of the assailants, eye-witnesses, the presence of
    PW-3, PW-4 and PW-6 was not mentioned. Even in Exts.
B P22-23, the names of PWs 3, 4 and 6 were not noted and
    no explanation has been offered for their absence. The
    verification of those ddt:uments clearly show that only
    the names of 'RR' and 'HR' (both died due to gun shot
    injuries) and PW-2 who also received gun shot injuries
c were noted and except these names, none else was
    noted. Another important factor is that 'HR', 'RR' and PW-
    2 alone were medically examined on the same day
    whereas PW-3 was examined after 4 days of the incident
    and that too by the very same Doctor (PW-1 ). There is no
  . explanation at all for non-examination of PW-3 by the
0
    Doctor along with other injured witnesses. In these
    circumstances, the High Court has rightly observed that
    the presence of eye-witnesses, namely, PWs 3, .4 and 6
    at the place of occurrence on the date and time as
    pleaded by the prosecution is highly doubtful. [para 15]
E (840-F-H; 841-A-D]

       3.4. The only witness available to suppqrt the case
  of the prosecution is PW 2. Merely because the witness
  is related to eye-witnesses or the family of the deceased,
F is not a ground for rejection of his testimony. Further,
  merely because the prosecution has not examined the
  neighbours, it cannot be claimed that it is fatal to their
  case, when the evidence of eye-witnesses examined on
  their side is found to be acceptable and reliable. PW-2,
G in his evidence, In categorical terms has asserted that he
  saw five to seven persons standing on the roof of the
  house of 'KS'. He had specifically mentioned the names
  of those persons. Inasmuch as In the parchabayan (Ext.
  P32), only the name of accused 'AS' and as per Ext. P22
H the names of accused 'AS' and 'BS' are mentioned, who
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.               829
                   ETC.

were present on the roof at the relevant time, the claim        A
of PW~2 that all the accused persons were standing on
the roof is not believable, however, his assertion that two
persons 'AS' and 'BS' were on the roof cannot be denied.
Even certain portion is eschewed from the evidence of
PW-2, his assertion and the statement regarding the             B
involvement of 'AS', 'SS' and 'BS' cannot be disputed. In
categorical terms, he explained the role played by these
persons. It is clear from his evidence that he received gun
shot injuries which is also supported by medical
evidence. In view of the same, his presence at the time         c
of occurrence cannot be disputed and is found to be
proved. This is also strengthened from his statement in
parchabayan (Ext. P32) and Ext. P22 statement given to
Judicial Magistrate (PW-18). A perusal of Ext. P32 makes
it clear that it was 'AS' who first fired a gun shot at 'HR'    0
and subsequently 'BhS', 'GS' (both absconding), 'BS' and
'SS' also fired at 'RR' and 'RS' causing inJury to them. Ext.
P32 also clearly shows that there are specific allegations
of causing gun shot injuries against accused 'SS'; 'AS'
and 'BS'. In the same manner, verification of Ext. P22          E
shows that 'AS' and 'BS' fired at deceased 'HR' and,
thereafter, 'BhS' and 'SS' fired at the brothers of 'HR'
when they were going to inform the police. [para 16] [841-
E-H; 842-A-H]

     Ku/dip Yadav vs. State of Bihar (2011) 5 SCC 324 -         F
relied on

     3.5. Though certain discrepancies as to the number
of gun shots have been pointed out, in view of the
number of injuries, as seen from Exts. P1-P4, supported G
by the evidence of PW-1, the said objection is liable to be
rejected and participation of the three accused, namely,
'AS', 'BS' and 'SS' Is clearly proved through various
circumstances Including the evidence of PW-2. (para 16]
[842-H; 843-A]
                                                            H
    830      SUPREME COURT REPORTS                 [2011] 10 S.C.R

A      4. Though 'HR' died after 35 days due to septicemia,
  considering the medical evidence that 'HR' sustained 7
  gun shot injuries which were sufficient to cause death in
  the ordinary course, this Court is satisfied that the death
  of 'HR' undoubtedly falls within the ambit of s. 302 IPC.
B [para 17) [843-B-C]

      5. The materials placed by the prosecution clearly
  prove the guilt against the three convicted accused-
  appellants, namely, 'SS', 'AS' and 'BS', who were armed
C with guns; and with their common intention they fired
  gun shots resulting in death of 'RR' and 'HR' as well as
  causing injuries to PW-2. In such circumstances, their
  conviction and sentence recorded by both the courts
  below are confirmed. [para 18) [843-D-E]

D                          Case Law Reference:
          (2001) 9 sec 1              relied on            para 13
          (2011 > 5 sec 324           relied on            para 16
E       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    Nos. 552-554 of 2003.

        From the Judgment & Order dated 26.4.2002 of the High
    Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B.
    Criminal Appeal No. 504, 533 and 673 of 1995.
F
                                 WITH

    Crl.A.Nos. 555-557 & 558 of 2003.

       S.R. Bajwa, Manish Singhvi, AAG, Puneet Jain, Pratibha
G Jain, Trishna Mohan, Vijay Kumar, Milind Kumar, Aishwarya
  Bhati, Sangram Singh, Gp. Capt. Karan Singh Bhati,
  Karmendra Singh, Sushi! Kumar Jain, Aruneshwar Gupta for
  the appearing parties.

H         The Judgment of the Court was delivered by
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                  831
                   ETC.

    P.SATHASIVAM,J. 1. These appeals are filed against the         A
common final judgment and order dated 26.04.2002 passed
by the High Court of Judicature for Rajasthan, Jaipur Bench,
Jaipur in D.B. Criminal Appeal Nos. 504, 533 and 673of1995
whereby the High Court disposed of the appeals acquitting
Karan Singh, Laxman Raigar, Bahadur Singh, Smt. Swaroop B
Bai, Smt. Gyan Kanwar and Smt. Bhagwan Kanwar of all the
charges and altered the conviction and sentence of Shivraj
Singh, Banney Singh and Arjun Singh from Sections 302/149
IPC and 307/149 IPC to.Section 302/34 and 307/34 IPC
passed by the trial Court.                                   .c

    2. Brief facts:

    (a) On 24.12.1991, at about 09:30 a.m., an information was
    received by the In-charge, Police Out-post Anwa that cross
    firing had taken place between the Rajputs of that village.    D
    After recording the said information in Rojnamcha (Ex.
    P31), immediately the police proceeded towards the spot
    and recorded Parchabayan of injured Himmat Raj Singh
    (Ex. P32) at about 11.40 a.m. It was stated by Himmat Raj
    Singh (since deceased) that at 9.30 a.m., when he was          E
    standing outside his house, Arjun Singh fired at him from
    a muzzle loaded gun from the roof of Karan s:ngh thereby
    2-3 bullets hit him on the left hand and another 2-3 hit his
    abdomen and left thigh. On hearing his cries, two of his
    brothers, namely, Raghuraj Singh (since deceased) and          F
    Raj Singh (PW-2) came there and took him inside the
    house and after leaving him there, when they were going
    to inform the police at Police out-post, Anwa, Bheem Singh
    and Gajender Singh (who are now absconding), Banney
    Singh, Karan Singh and Shivraj Singh fired gunshots at         G
    them, as a result of which, both of them received injuries.
    Thereafter, accused Bahadur Singh came with a
    gandassa. The other accused, Laxman Raigar also
    jumped into their house. It was also stated that Smt.
    Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan
                                                                   H
    832      SUPREME COURT REPORTS                 [2011) 10 S.C.R.

A         Kanwar were also present on the roof of Karan Singh and
          they tried to kill the other family members of the deceased
          with. deadly weapons.
          (b) The moment Raghuraj Singh and Raj Singh (PW-2)
          received injuries, Roop Singh, their father immediately
B
          rushed to the Police Out-post to inform the Police about
          the incident. The police officials reached at the spot and
          on the basis of the statement of Himmat Raj Singh, a First
          Information Report (in short 'the FIR') being No. 228/1991
          was registered against the accused persons for the
c         offences punishable under Sections 307, 147, 148 and
          149 IPC. The injured persons, Raghuraj Singh, Himmat Raj
          Singh, Dhiraj Raj Singh and Raj Singh were taken to the
          M.B.S. Hospital at Kota for treatment.

D         (c) Shri Ajay Kumar Gupta, (PW-18), Munsif and Judicial
          Magistrate (North), Kota recorded the statements of
          Himmat Raj Singh and Raj Singh (PW-2). Since Raghuraj
          Singh was not medically fit to make a statement, his
          statement was not recorded. On the same day, Raghuraj
E         Singh died in the Hospital, therefore, offen~e punishable
          under Section 302 IPC was added. On 29.01.1992,
          Himmat Raj Singh also died in the Hospital. After due
          investigation, the police submitted four charge sheets at
          different stages against Arjun Singh, Banney Singh, Shivraj
F
          Singh, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan
          Kanwar, Smt. Bhagwan Kanwar, Karan Singh and Laxman
          Raigar.
          (d) On 07.09.1995, the Additional Sessions Judge, Kota,
          after examining 30 prosecution witnesses and 8 defence
G         witnesses convicted Karan Singh under Sections 148,
          302/149, 307/149 IPC and Section 3/27 of the Arms Act,
          1959, Shlvraj Singh, Banney Singh and Arjun Singh under
          Sections 148, 302/149, 307/149 IPC and Smt. Swaroop
          Bal, Smt. Gyan Kanwar, Smt. Bhagwan Kanwar, Laxman
H         Raigar and Bahadur Singh under Sections 148, 302/149,
 STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                833
           ETC. [P. SATHASIVAM, J.]

    307/149 and 452 IPC and sentenced all of them to            A
    undergo rigorous imprisonment.

    (e) Aggrieved by the judgment of the trial Court, Arjun
    Singh, Banney Singh, Shivraj Singh, Bahadur Singh, Smt.
    Swaroop Bai, Smt. Gyan Kanwar and Smt. Bhagwan              B
    Kanwar filed D.B. Criminal Appeal No. 504 of 1995,
    Laxman Raigar filed D.B. Criminal Appeal No. 673 of
    1995, Karan Singh filed D.B. Criminal Appeal No. 533 of
    1995 and Roop Singh-the complainant, filed D.B. Criminal
    Revision Petition No. 250 of 1996 before the High Court     C
    of Judicature for Rajasthan, Jaipur Bench at Jaipur.

    (f) On 26.04.2002, the High Court, by a common impugned
    judgment, set aside the order of conviction and sentence
    passed by the trial Judge against Karan Singh, Laxm.an
    Raigar, Bahadur Singh, Smt. Swaroop Bai, Smt. Gyan          D
     Kanwar and Smt. Bhagwan Kanwar and acquitted them
    of all the charges. As regards Arjun Singh, Banney Singh
    and Shivraj Singh, their conviction and sentences under
    Sections 302/149 and 307/149 IPC were altered to
    Sections 302/34 and 307/34 IPC.                             E

    (g) Against the acquitted persons, the State of Rajasthan
    filed Criminal Appeal Nos. 552-554 of 2003, Raj Singh,
    son of the Complainant-Roop Singh, who died during the
    pendency of the case, filed Criminal Appeal Nos. 555-557    F
    of 2003. Against the order of conviction and sentence,
    accused Arjun Singh, Banney Singh and Shivraj Singh filed
    Criminal Appeal No. 558 of 2003 before this Court by way
    of special leave petitions.

   · 3. Heard Mr. S.R. Bajwa, learned senior counsel for the    G
convicted appellants, Dr. Manish Singhvi, learned Additional
Advocate General for the State of Rajasthan and Ms. Aishwarya
Bhatti, learned counsel for the son of the complainant.

                                                                H
     834      SUPREME COURT REPORTS                (2011) 10 S.C.R


 A Issues for consideration:
        4. The question for consideration in these appeals is
    whether the High Court was justified in acquitting Bahadur
    Singh, Laxman Raigar, Karan Singh, Smt Swaroop Bai, Smt
  B Gyan Kanwar and Smt Bhagwan Kanwar and also altering the
    conviction from 302/149 and 307/149 IPC to Sections 302/34
    and 307/34 insofar as Arjun Singh, Banney Singh and Shivraj
    Singh.

          5. Since the issues, allegations and overt acts are inter-
- C connected, let us consider all the available materials and
    ascertain whether the prosecution had established its case as
    initiated at the first instance.

     Discussion:
 D
        6. As mentioned earlier, on 24.12.1991, at about 09:30
   a.m., all the accused gathered on the roof of Karan Singh.
   Accused- Arjun Singh fired at Himmat Raj Singh (since
   deceased) from the roof of Karan Singh from a capped gun
   thereby few bullets hit the deceased on the left hand and another
 E 2-3 hit his abdomen and left thigh. On hearing his cries, brothers
   of the deceased, Raghuraj Singh and Raj Singh (PW-2) came
   there and took injured Himmat Raj Singh inside their house and
   after l~aving him there, when both of them were going to police
   out-post to lodge a complaint, at that time, Bheem Singh,
 F Gajendra Singh, Banney Singh, Karan Singh and Shivraj Singh
   fired on.them resulting in the death of Raghuraj Singh. Other
   accused Bahadur Singh, Laxman Raigar, Smt Swaroop Bai,
   Smt. Gyan Kanwar and Smt Bhagwan Kanwar were also
   present on the roof of Karan Singh and they tried to kill other
 G family members with deadly weapons. It is also the claim of the
   prosecution that the accused persons attempted on the life of
   Dhiraj Raj Singh - the brother of the deceased. The injured
   persons, namely, Raghuraj Singh, Himmat Raj Singh, Raj Singh
   and Dhiraj Raj Singh were taken to Kota Hospital. Raghuraj
 H Singh died on the same day and Himmat Raj Singh died on
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                    835
           ETC. [P. SATHASIVAM, J.]
29.01.1992 in the hospital, however, Raj Singh survived.             A
According to the High Court, there is complete consistency and
credible evidence as far as three accused persons, namely,
Arjun Singh, Banney Singh and Shivraj Singh are concerned,
however, in respect of other six, there is no direct evidence and
the case pleaded by the prosecution is unacceptable and              B
acquitted them of all the charges.

     7. The prosecution examined as many as 30 witnesses in
support of its case. In the statements recorded under Section
313 of the Code of Criminal Procedure, 1973 (hereinafter called      C
as "the Code"), all the accused denied the prosecution
evidence and informed the Court that they were falsely
implicated. In addition to their statements, 8 witnesses were
examined in their defence.

     8. Before considering the evidence of eye-witnesses, let us     D
analyse the evidence of the Dr. Manmohan Sharma (PW-1),
Medical Jurist in M.B.S. Hospital, Kota, who examined
Raghuraj Singh, Himmat Raj Singh and Raj Singh on
24.12.1991 and Dhiraj Raj Singh on 28.12.1991. The injuries
noted by Dr. Manmohan Sharma (PW-1) in Exs. P1-P4 are                E
relevant, they are as follows:-

     "Raghuraj Singh (Ex. P1)

     1. Gunshot wound 1/2" x 3/4" oval with inverted margins
     blackening and tattooing on left shoulder outside.              F

     2. Gunshot wound 3/4" x 1/2" oval with blackening on outer
     side It. iliac crust posteriolateral aspect upper quadrant of
     It. buttock.

     3. Gunshot wound 1/2" x 1/2" on It. lip 4" medial to No. 1.     G

    4. Gunshot wound 1/4" x 3/4" upper quadrant of It. buttock
    5" below No. 1.

                                                                     H
     836      SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A          5. Gun shot wound 1/2" x 3/4", 2" medial to No. 1 on It.
           buttock.

           6. Gunshot wound 1/3" x 1/3" on sacral gorder of It. buttock
           3" away from middle.
B          7. Gun shot wound 1/3" x 1/3~' 1" below No. 6, 3 & 1/2"
           away from middle.

           8. Gun shot wound 1/3" x 1/3" 1/2" below No. 6, 3 & 2"
           away from middle.
c.
           Himmat Raj Singh (Ex. P2)

           1. Gun shot wound 1/2" x 1/2 circular with inverted margin
           with blackish.

D          2. Gun shot wound 1/2" x 3/4" oval with blackening on the
           side of the abdomen.

           3. Gun shot wound 3/4" x 3/4" oval iliac with blackening.

           4. Gun shot wound 1/2" x 1/2" circular on left arm upper
E          outer side with bleeding.

           5. Gun shot wound 1/2" x 3/4" oval 2" below slight medial
           to forearm.

           6. Gun shot wound 1/2" x 3/4" oval with inverted margin
F          on left forearm innerside.

           7. Gun shot wound 1/2" x 1/2" on the left hand.

           Raj Singh (Ex. P4)
G          1. Eight gun shot wounds about 1/2" x 1/2" size to 1" x 31
           4" scattered in front of left thigh blackening tattooing
           margin inverted.

           Dhiraj Raj (Ex. P3)
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                   837
           ETC. [P. SATHASIVAM, J.]
                                                                   A
    1. Contusion 2" x 1" abrasion on left arm.
    2. Contusion 3" x 1 and 1/2" with abrasion on left forearm.
    3. Lacerated wound 1" x 1/3" x 1/3" abdomen right side
    outside in auxiliary 3" below knee joint."                      B
      9. With reference to the specific question .about the
injuries, Dr. Manmohan Sharma (PW~1) has explained to the
Court that all the injuries referred to above were caused by gun
shots. It was further revealed that Raj Singh had also sustained
injuries. It is seen from the X-ray Report (Ex.P5) that Raj Singh C
had fracture of femur bone and according to Dr. Manmohan
Sharma (PW-1), the injuries were serious in nature. He also
opined that the injuries of Himmat Raj Singh and Raghuraj
Singh were sufficient to cause death in the ordinary course of
nature. In his evidence, he also explained that the death of D
Himmat Raj Singh was caused due to septicemia shock as a
result of multiple ante-mortem injuries to abdomen. With
reference to a suggestion, PW"1 had denied that blackening
and tattooing marks can be possible only when gun shots were
fired from a distance. of 3 or 4 feet. In respect of the same, Dr. E
Sharma; (PW-1), explained in detail in his cross-examination
that the same marks are possible even in the case of gun shots
which are fired from a distance of more than 3 or 4 feet and. it
depends upon the nature of gun, gun powder; cartridges etc.
Raj Singh, (PW-2), in his evidence, has stated that the accused F
Arjun Singh was standing on the roof of the house of Karan
Singh and fired from muzzle loaded gun at Himmat Raj Singh.
Though there is little discrepancy as to the distance from the
 upper portion of the house and the actual scene of occurrence,
 it cannot be concluded that the injuries on Raghuraj Singh, G
Himmat Raj Singh and Raj Singh were not caused by fire arms.
In this regard, it is relevant to point out the description ofjnjuries
as noted by Dr. Sharma (PW-1) in Exs. P1-P4 whi.ch/we have
extracted earlier. In addition to the same, it is seen from the
evidence of PW-1 that the blackening marks found around the H
    838      SUPREME COURT REPORTS                   [2011) 10 S.C.R.


A wol)nds and the dead body confirmed that the deceased were
  witn'iri a distance of 6 feet from the assailants when they
  received the injuries.

         10. Learned senior counsel for the accused persons
8   contended that in the absence of recovery of pellets from the
    scene of occurrence or from the body of the injured persons, it
    is highly doubtful as to the scene of occurrence and whether
    such incident did take place in the manner suggested by the
    prosecution. Learned counsel appearing for the complainant
C   pointed out that though there was an entry in Malkhana Register
    (Ex. P31A) wherein it was stated that a sealed packet
    containing pellets was deposited but prosecution failed to lead
    any evidence on this point. It was also pointed out that though
    a report was received from the Forensic Science Laboratory,
    no evidence regarding recovery of the pellets was produced.
D   As rightly pointed out by the learned Additional Advocate
    General appearing for the State that mere non-recovery of
    pistol or cartridge does not detract the case of the prosecution
    where clinching and direct evidence is acceptable. Likewise,
    absence of evidence regarding recovery of used pellets, blood
E   stained clothes etc. cannot be taken or construed as no such
    occurrence had taken place. As a matter of fact, we have
    already pointed out that the gun shot injuries tallied with medical
    evidence. It is also seen that Raghuraj Singh and Himmat Raj
    Singh, who had died, received 8 and 7 gun shot wounds
F   respectively while Raj Singh (PW-2) also received 8 gun shots
    scattered in front of left thigh. All these injuries have been noted
    by the Doctor (PW-1) in his reports Exs. P1-P4.

       11. If we analyze the evidence of Dr. Manmohan Sharma
G (PW-1), his reports, Exs.P1-P4 and the evidence of Raj Singh
  (PW-2), it leads to a conclusion that gun shot injuries tallied with
  the medical evidence and both the deceased persons died due
  to the same reason. Similar conclusion arrived at by the High
  Court cannot be doubted.

H
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                   839
            ETC. [P. SATHASIVAM, J.]

      12. Coming to the contention relating to the motive, it is    A
not in dispute that Raghuraj Singh and Himmat Raj Singh died
due to gun shot injuries. The reliable eye-witnesses have stated
that there was previous enmity between them and litigation was
going on between the accused-Karan Singh and the
complainant. Even in the absence of motive, in view of the          B
assertion of eye-witnesses, particularly, Raj Singh, (PW-2),
coupled with the medical evidence as seen from Exs. P1-P4,
by the Doctor (PW-1), the case of the prosecution cannot be
thrown out. In a catena of decisions, this Court has held that
motive for doing a criminal act is generally a difficult area for   c
the prosecution to prove since one cannot normally be seen into
the mind of another. Motive is the emotion which impels a man
to do a particular act. Even in the absence of specific evidence
as to motive, in view of the fact that in the case on hand, two
persons have been killed and one sustained injuries due to fire
                                                                    0
arms, the case of the prosecution cannot be thrown out on this
ground.

     13. Now, let us consider the oral evidence led in by the
prosecution. We have already pointed out that though the
prosecution has examined as many as 30 witnesses, they              E ·
heavily relied only on 6 witnesses and out of these, Raj Singh
(PW-2), Dhiraj Raj Singh (PW-3) and Brij Raj Singh (PW-4) are
brothers, Roop Singh (PW-6) is their father and Durga Shankar
(PW-5) and Satya Narain (PW-9) were working as labourers
in the house of Roop Singh at the time of occurrence. It is true    F
that the names of PWs 3, 4 and 6 were not mentioned either
in parchabayan (Ex. P32) or in the statements, Exs. P22-23,
recorded by the Judicial Magistrate, (PW-18) on the day of the
occurrence.
                                                                    G
     14. It was also pointed out that all the eye-witnesses,.
particularly, PWs 3, 4 and 6 being brothers and father of the
deceased, they are interested in their version and no reliance
need to be placed on their statements. We are unable to
accept the said contention. This Court, in a series of decisions,
                                                                    H
    840     SUPREME COURT REPORTS                [2J11] 10 $.C.R.


A has held that the testimony of such eye-witnesses should not
  be rejected merely because witnesses are related to the
  deceased. This Court has held that their testimonies have to
  be carefully analysed because of their relationship and if the
  same are cogent and if there is no discrepancy, the same are
8 acceptable vide Abdul Rashid Abdul Rahiman Patel & Ors.
  vs. State of Maharashtra (2007) 9 SCC 1. Likewise, minor
  discrepancies in the evidence of eye-witnesses are also
  immaterial. However, as rightly pointed out, if Dhiraj Raj Singh
  (PW-3)-hactsustamed some injuries, his name could have been
C mentioned in Exs. P22, P23 and P32 which were earliest
  versions. In those documents, the names of Raghuraj Singh,
  who died on the same day and Himmat Raj Singh, who died
  later and Raj Singh, who received gun shot injuries alone were
  mentioned and none else. Another aspect, as rightly pointed
  out is that when the injured persons were examined by the
0
  Doctor on the same day, admittedly, PW-3 was examined only
  on the fourth day of the incident and it was seen that he did not
  receive any gun shot injury. Considering all these aspects
  including the fact that there is no proof of receiving gun shot
  injury to PW-3 and also taking note of the fact that he was 13
E years of age at the time of occurrence, as rightly pointed out
  by the High Court, his presence itself is doubtful.

       15. The remaining eye-witnesses, as per the prosecution
  version, are PWs 2, 4 and 6. It was demonstrated before us
F by the learned senior counsel for the accused that the names
  of PWs 4 and 6 did not occur in parchabayan (Ex. P 32) as
  well as in the statements (Exs. P22 and P23) recorded by Shri
  Ajay Kumar Gupta, (PW-18), Judicial Magistrate, on the day
  of occurence. The statement in Ex. P32 was recorded at 11 :40
G a.m. and the incident took place at about 09:30 a.m. Though it
  was recorded within two hours, as rightly pointed out, while
  mentioning the details of the occurrence, names of the
  assailants, eye-witnesses, the presence of Dhiraj Raj Singh
  (PW-3), Brij Raj Singh (PW-4) and Roop Singh (PW-6) was not
H mentioned. We have already noted that even in Exs. P22-23,
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                  841
            ETC. [P. SATHASIVAM, J.]

the names of PWs 3, 4 and 6 were not noted and no                   A
explanation has been offered for their absence. The verification
of those documents clearly show .that only the names of
Raghuraj Singh and Himmat Raj Singh (both died due to gun
shot injuries) and Raj Singh (PW-2) who also received gun shot
injuries were noted and except these names, none else was           B
noted. Another important factor is that Himmat Raj Singh,
Raghuraj Singh and Raj Singh (PW-2) alone were medically
examined on the same day whereas Dhiraj Raj Singh (PW-3)
was examined after 4 days of the incident and that too by the
very same Doctor (PW-1). There is no explanation at all for non-    c
examination of PW-3 by the Doctor along with other injured
witnesses. In these circumstances, as rightly observed by the
High Court, the presence of eye-witnesses, namely, PWs 3, 4
and 6 at the place of occurrence on the date and time as
pleaded by the prosecution is highly doubtful. We agree with        D
the said conclusion.

     16. In the light of the above conclusion, the only witness
available to support the case of the prosecution is Raj Singh
(PW-2). Let us consider his evidentiary value and how far he
supported the case of the prosecution. Mr. Bajwa, learned           E
senior counsel for the accused, by pointing out certain
contradictions, submitted that it is not safe to convict the
accused based on his evidence. It is also pointed out that Raj
Singh (PW-2) is highly interested witness and closely related
to eye-witnesses. It was further pointed out that in the absence    F
of any neighbour, conviction based on the testimony of PW-2
alone is not sustainable. In the light of the above submissions,
we have carefully scrutinized the evidence of PW-2. First of all,
merely because the witness is related to eye-witnesses or the
family of the deceased is not a ground for rejection vide Ku/dip    G
Yadav vs. State of Bihar (2011) 5 sec 324. It was also held
that merely because the prosecution has not examined
neighbours, it cannot be claimed that it is fatal to their case,
when the evidence of eye-witnesses examined on their side is
found to be acceptable and reliable. Raj Singh, (PW-2), in his      H
    842      SUPREME COURT REPORTS               [2011] 10 S.C.R.


A   evidence, in categorical terms has asserted that he saw five
    to seven persons standing on the roof of the house of Karan
    Singh. He had specifically mentioned the names of those
    persons as Bahadur Singh, Shivraj Singh, Banney Singh, Smt
    Swaroop Bai; Smt Gyan Kanwar, Smt Bhagwan Kanwar,
B   Gajendra Singh and Karan Singh. Inasmuch as in the
    parchabayan (Ex. P32), only the name of Arjun Singh and as
    per Ex. P22 the names of Arjun Singh and Banney Singh was
    mentioned, who were present on the roof at the relevant time,
    as rightly observed by the High Court, the claim of Raj Singh
c   (PW-2) that all the accused persons were standing on the roof
    is not believable, however, his assertion that two persons Arjun
    Singh and Banney Singh were on the roof cannot be deni~d\
    Even if we eschew certain portion from the evidence of PW-2,
    his assertion and the statement regarding the involvement of
    Arjun Singh, Shivraj Singh and Banney Singh cannot be
0
    disputed. In categorical terms, he explained the role played by
    these persons. It is clear from his evidence that he received
    gun shot injuries which is also supported by medical evidence.
    In view of the same, his presence at the time of occurrence
    cannot be disputed and is found to be proved. This is also
E   strengthened from his statement in parchabayan (Ex. P32) and
    Ex. P22 statement given to Judicial Magistrate (PW-18). A
    perusal of Ex. P32 makes it clear that it was Arjun Singh who
    first fired a gun shot at Himmat Raj Singh and subsequently
    Bheem Singh, Gajendra Singh (both absconding) Banney
F   Singh and Shivraj Singh also fired at Raghuraj Singh and Raj
    Singh causing injury to them. Ex. P32 also clearly shows that
    there are specific allegations of causing gun shot injuries
    against Shivraj Singh, Arjun Singh and Banney Singh. In the
    same manner, verification of Ex. P22 shows that Arjun Singh
G   and Banney Singh fired at the deceased Himmat Raj Singh
    and, thereafter, Bheem Singh and Shivraj Singh fired at the
    brothers of Himmat Raj Singh when they were going to inform
    the police. Though Mr. Bajwa pointed out certain discrepancies
    as to the number of gun shots, in view of the number of injuries,
H   as seen from Exs. P1-P4, supported by the evidence of Dr. _
  STATE OF RAJASTHAN v. ARJUN SINGH & ORS.                    843
            ETC. [P. SATHASIVAM, J.]

 Manmohan Sharma (PW-1), the said objection is liable to be          A
 rejected and participation of these three accused, namely, Arjun
 Singh, Banney Singh and Shivraj Singh is clearly proved through
 various circumstances including the evidence of PW-2.

       17. Finally, learned senior counsel for the accused pointed   8
. out that inasmuch as Himmat Raj Singh died after 35 days due
  to septicemia, the Courts below are not justified in convicting
  the accused persons for an offence under Section 302 IPC for
  his death. Considering the medical evidence that Himmat Raj
  Singh sustained 7 gun shot injuries which were sufficient to       C
  cause death in the ordinary course, we are satisfied that the
  death of Himmat Raj Singh undoubtedly falls within the ambit
  of 302 IPC.

      18. The materials placed by the prosecution clearly prove
 the guilt against the three convicted accused, namely, Shivraj      D
 Singh, Arjun Singh and Banney Singh who were armed with
 guns and with their common intention they fired gun shots
 resulting in death of Raghuraj Singh and Himmat Raj Singh as
 well as causing injuries to Raj Singh (PW-2), in such
 circumstances, their conviction and sentence by both the courts     E
 have to be confirmed.

      19. Dr. Manish Singhvi vehemently argued as to the role
 of the acquitted accused. As discussed in the earlier paras and
 on going through the evidence relating to their role and the
 detailed analysis by the High Court, we agree with the said         F
 conclusion and reject his arguments. For the same reasoning,
 the appeals filed by the son of the complainant are also liable
 to be dismissed.

     20.ln view of the above discussion and conclusion, we           G
 agree with the decision of the High Court, consequently, all the
 appeals are dismissed.

 R.P.                                       Appeals dismissed.
                                                                     H