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PETITIONER: MOHAN SINGH & ANR.

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       28/01/1999

BENCH: G.B.Pattanaik, A.P.Misra

JUDGMENT:

     Misra, J.

     The  appellants  have  preferred  the  present  appeal against  the judgment dated 18th December, 1997 of the  M.P. High Court (Gwalior Bench) convicting them under Section 302 read  with  Section  34   I.P.C.   However,  conviction  and sentence  of the accused Mohan Singh under Section 25/27  of the  Arms Act by the trial court was set aside.  Earlier the Trial  Court  convicted Mohan Singh (Appellant No.2.)  under Section  302 I.P.C.  and under Section 25/27 of the Arms Act and  sentenced him to the imprisonment for life and one year rigorous   imprisonment,  respectively   and  convicted  and sentenced  Ajay  Singh,  appellant   No.   1,  and  Kailash, appellant  No.   2,  under  Section 302/34  I.P.C.   to  the imprisonment  for  life.   However, since  Ajay  Singh  died during the pendency of the appeal his appeal stood abated.

     Admittedly  both  the  complainant   and  the  accused persons  are  close relatives, as the deceased Bhagat  Singh was the son of the complainant, Ram Singh, (PW1), who is the real  brother of the aforesaid accused Ajay Singh.  Both the present  appellants, namely, Mohan Singh and Kailash are the sons of Ajay Singh.

     In  short, the prosecution case is that on 26th April, 1980  at  about 9 A.M.  accused Mohan Singh had beaten  Moti Chamar to which Veer Singh son of Ram Singh objected and had enquired  as  to why he had beaten Moti Chamar.   Thereafter Mohan  Singh stood up to beat him also.  On the same evening at  about 4 P.M.  accused Ajay Singh, Kailash Singh and  one Daulat  Singh went to Gajar on the motor cycle and beat  the mother  of  Veer Singh, his brother Gajendra and his  sister Meena.   Ajay Singh and Daulat Singh were standing there and were exhorting to kill.  Ajay Singh had a pistol.  On seeing these  they went out of the Dalan.  Veer Singhs mother  and Gajendra  Singh  received  injuries, Meena  was  slapped  by Kailash.   Veer Singh thereafter asked Kalua to sleep at the door  and took his mother, brother and sister on tractor  to Vidisha.   He  disclosed  this  fact  to  Bhagat  Singh  who thereafter  went  to call his father Ram Singh from  bazaar. Subsequently,  Bhagat Singh and Ram Singh took meal and went to  Gajar on the motor cycle.  They reached there at 10 P.M. On  hearing  the noise of the motor cycle the accused  Mohan Singh,  Ajay  Singh and Kailash came out of their house  and went  to  the first floor.  Kalua was sleeping in Dalan  who

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also  came out.  Bhagat Singh on seeing the accused  persons asked  them  as  to why they were harassing him  and  beaten their  Hali  and  mother.  Being aggravated  all  the  three accused  persons went to the second floor and from there  to the roof of the third floor.  It is alleged thereafter Mohan Singh  fired from his gun on Bhagat Singh thrice as a result of which he died on the spot.  Thereafter Ram Singh, who was present there, went to the chowkidar Bihari and told him the occurrence.   Subsequently, Bihari went to the spot and  saw the body.  He proceeded thereafter to the Police Station and lodged  a report in the morning of 27th April, 1980 at about 7  A.M.  The report was prepared by Ajit Kumar Patil, PW 11, who  was  then the Station-in-Charge, Vidisha, who  in  turn proceeded  to the place of occurrence in village Gajar.   He prepared  panchanama of the dead body and took into  custody the  pellets  found  near the dead body.   Sample  of  blood stained  earth  from there was also taken by him.   He  also prepared  the site plan Ex.P.2.  All the three accused  were arrested  on the same day.  During investigation Mohan Singh disclosed  about  the .12 bore gun which he had kept  inside his  Kotha,  one empty cartridge near the gun and  also  two empty  cartridges (Memo Ex.  P-6) .  Mohan Singh took him to his  house and got recovered this .12 bore double barrel gun made  in  Czechoslavia.  Empty cartridge of 12 bore gun  and two  12  bore empty cartridges were also got recovered  from the drain.  The recovered gun is article No.2.

     The  accused  persons denied the charges.   They  said that  they have been falsely implicated on account of enmity as Ram Singh and Veer Singh wanted to take their property.

     It is also not in dispute that accused persons as well as  the complainant lived in the same house, but separately. Further,  a  year  before  the   incidence  there  had  been partition   between  the  brothers   including   Ram   Singh complainant  and  accused  Ajay  Singh,  relating  to  their ancestral  land.   The following pedigree would  reveal  the relationship   inter   se  between   the  accused  and   the complainant family which in turn will also reveal the motive of  commission of the crime.  Ram Lal | Ajay Singh Ram Singh Pratap Singh Shambhoo Bhawani Kalyan (Accused) Complainant | (dead)   |  (died  issue  less)  |  Sons  (Adopted  |  |   | |------------------------|  | Veer Singh) Sarju Bai Widow  | (Adopted Gopal Singh)

     Mohan  Kailash  |  |  |  Singh  (Accused)  |  (Adopted Prahlad)  | (Accused) | | | |----------------------| | Gopal Singh                     Jaswant                      Singh ---------------------------------|---------------------------------------------------------- - |  | | | Bhagat Singh (Deceased in occurrence) Prahalad Veer Singh Gajendra

     The  prosecution  case is that the aforesaid  Shambhoo Singh  had died leaving his widow Sarju Bai, who had adopted Prahlad  Singh  S/o Ram Singh, the complainant.   Similarly, Veer  Singh, PW 10, another son of the complainant was  also adopted  by another brother Pratap Singh.  The aforesaid six brothers  inter  se had about 1400-1450 bighas of  land  for which  the aforesaid partition took place.  The  complainant alleged  that the accused Ajay Singh had given 250 bighas of land to him and kept with him the rest of the land though he was  only  entitled for 700 bighas of land as Sarju Bai  had

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adopted  his  son and she was living with him.  In order  to prove  the motive of commission of the crime the prosecution relied  on  the statement of Veer Singh, PW 10,  who  stated that  he was taken in adoption by Pratap Singh.  On the  day of  the  incidence  at 9 A.M.  his servant Moti  Chamar  was beaten  by Mohan Singh accused and was turned out.  When  he went  to Mohan Singh and enquired from him as to why he  had beaten  Moti  Chamar,  he  stood up even to  beat  him.   He further  deposed that he heard the cries of his mother, Kala Bai,  his  brother Gajendra and sister Meena.  On  the  same evening  at  about 4 P.M.  when accused Ajay Singh,  Kailash and  Daulat  Singh came on the motor cycle, he actually  saw the  accused-Kailash, who was beating his mother, when  Ajay Singh  and  Daulat Singh at that time were exhorting him  to beat.   Thereafter  they went out.  This background  clearly expresses  the  grouse subsisting because of  the  partition inter  se  between the complainant and the accused,  leaving them in tension in words and action.  The days incidence at 9  A.M.   and 4 P.M.  clearly expresses the outrage  of  the accused  party.  The prosecution case is when Ram Singh, (PW 1), and deceased Bhagat Singh reached below the house of the accused  and complained about their behaviour, as aforesaid, further  aggravated  the tenseness, this background  led  to commission  of  the  crime on the same  day  resulting  into firing  by  Mohan Singh accused resulting into the death  of Bhagat Singh.

     In this case there are two eye witnesses Ram Singh, PW 1, the father of the deceased and Kalua, PW 3.

     Learned  senior counsel for the appellants, Shri  U.R. Lalit,  challenged  the findings of the High Court  and  the trial  court, firstly, on the ground that since post  mortem report of Dr.  G.P.  Tamarkar, PW 4, shows blackening of the skin   on  each  of  the   injuries  recorded,  belies   the prosecution  case  that  the accused fired on  the  deceased Bhagat  Singh from the roof of the third floor.   Blackening means  fired  from a close range, not from the roof  of  the third floor.  Second, by recovery of two guns one 12 bore on the  pointing  of Mohan Singh which is article No.2  Another .12  bore gun which turned out to be licensed in the name of Ram  Singh  recovered on the information of the  complainant though  from  the Dalan of the accused Ajay Singh, which  is article  No.1.   Next point pressed was that there  was  not sufficient  light  when the incidence is said to have  taken place,  viz., at 11 P.M.  to recognise and confirm as to who among  the aforesaid three accused fired which resulted into the  death  of Bhagat Singh.  Lastly, but  feebly  submitted that the F.I.R.  does not disclose the details of commission of the offence including the part played by each of the said three  accused  persons.   This  led  into  improvement  and concoction of the prosecution story.

     Learned counsel for the accused, Mr.  Lalit, submitted with  vehemence  with reference to the first point that  the alleged  firing on the deceased Bhagat Singh by Mohan  Singh from  the  roof of the third floor is in conflict  with  the post  mortem injuries recorded by Dr.  D.P.  Tamarkar,  PW4. For  ready  reference  one of such recorded injury  No.1  is reproduced below:  Fire arm wound placed over right side of chest  (P.   Torn)  above (Rt) nipple, oval  wound  inverted edges  size  1.25  cm  x 1 cm,  surrounding  skin  blackened clotted  blood was present around the wound.  On explosation the wound was going from right to left side obliquly.  There was  ruptured of intercostal muscle (Rt) side, plura,  Right

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lung ruptured.  The charra was stucked in thorasic wall left side  under  the  skin of the level of 6th rib  in  anterior axiliring line producing an area of acheymas over skin where it was lodged.

     {  Emphasis supplied } The emphasis was, blackening of skin clearly indicates that the firing was from a very close range which contradicts the prosecution case that the firing by  the  accused-Mohan Singh was from the roof of the  third floor  which  could not be a firing from a close range.   He also  referred to the deposition of the Doctor, PW4, that by blackening of skin he meant deposition of the smoke.  On the other  hand  learned Senior counsel, Mr.  K.N.  Shukla,  for the  prosecution referred to the recording of the injury  by the  same  Doctor in the same report through a diagram  that the  shape  of  injury  was oval which  indicates  that  the injuries  must have been caused from a higher pedestal.   He submits  this  corroborates  with the prosecution  story  as accused  is  said to have fired from the roof of  the  third floor,  i.e.,  from the higher plane to the deceased  Bhagat Singh  who was standing down below on a Chabutra on a  lower plane,  along  with him was his father Ram Singh, PW1.   The question  is  how  to test the veracity of  the  prosecution story  especially  when  it is with some variance  with  the medical  evidence.   Mere variance of the prosecution  story with  the medical evidence, in all cases, should not lead to the  conclusion, inevitably to reject the prosecution story. Efforts  should be made to find the truth, this is the  very object  for which courts are created.  To search it out, the courts  have been removing chaff from the grain.  It has  to disperse the suspicious cloud and dust out the smear of dust as  all  these things clog the very truth.  So  long  chaff, cloud  and dust remains, the criminals are clothed with this protective  layer to receive the benefit of doubt.  So it is a  solemn  duty  of the courts, not to merely  conclude  and leave  the  case the moment suspicions are created.   It  is onerous  duty of the court, within permissible limit to find out the truth.  It means, on one hand no innocent man should be  punished  but  on  the  other  hand  to  see  no  person committing  an offence should get scot free.  If in spite of such  effort suspicion is not dissolved, it remains writ  at large,  benefit of doubt has to be credited to the  accused. For  this,  one has to comprehend the totality of the  facts and  the circumstances as spelled out through the  evidence, depending  on  the  facts  of   each  case  by  testing  the credibility of eye witnesses including the medical evidence, of  course after excluding that parts of the evidence  which are  vague and uncertain.  There is no mathematical  formula through which the truthfulness of a prosecution or a defence case  could be concretised.  It would depend on the evidence of  each  case  including the manner of deposition  and  his demeans,  clarity,  corroboration of witnesses and  overall, the  conscience of a judge evoked by the evidence on record. So  courts have to proceed further and make genuine  efforts within  judicial sphere to search out the truth and not stop at  the threshold of creation of doubt to confer benefit  of doubt.   Under  this  sphere  we proceed  now  to  test  the submission  of  the  learned counsel for  the  accused  with reference  to  the blackening found by the doctor under  the injuries  in  the post mortem report.  We find as  aforesaid there  is another part of the deposition of the same  Doctor with reference to the same injuries when he records that the shape  of the wounds was oval indicating the injuries  being caused  from  a higher pedestal.  In Taylors Principle  and Practice of Medical Jurisprudence, 12th Ed., at page 297, it

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says :  The position of the wound of entrance usually marks a  part  of  the body which was at the moment  of  discharge facing the muzzle of the weapon, and in a straight line with the  barrel;  it therefore indicates with precision  whether the victim was facing the muzzle or with his back or side to it.

     Where  the  weapon is set at a slant to the  body  the bullet  may  strike the skin and enter through a  distinctly oval  hole, the approach side of which is a graze widening out into the actual entry, or it may tear across the surface of the skin leaving only a groove or split.

     In  Modis  text  book of  Medical  Jurisprudence  and Toxicology  21  Ed.  at Page 264, it says :  The  wound  of entrance  in  distant  shot  is  usually  smaller  than  the projectile due to the elasticity of the skin, and round when the  projectile  strikes the body at a right angle and  oval when  it strikes the body obliquely.  The edges of the wound are inverted and the striking bullet covered with grease and smoke  causes  also a collar of abrasion  contrusion,  which looks  like  a  dark ring, showing two zones, the  inner  of grease and the outer of abrasion.

     When  there  is a close shot that is in the  range  of powder  blast  and flame is within 1 to 3 inches  for  small arms there is a collar of soot and grease (if present on the bullet)  around  the circular wound of entry.  Singed  hairs may be seen if the body is not covered with clothing.

     When  it is fired beyond a distance of 12 inches there are  no  powder  marks of soot or heat  effects  around  the wound.

     In the present case the doctor found the injuries oval in  shape,  denoting  shot  was  from  a  slanting  position downwards  right  to  left.  The prosecution  case  is  that deceased was standing on Chabutra under a neem tree thus any shot,  if  it  is  from close range  could  either  be  from Chabutra,  which would be on level with the deceased thus it could not make oval shape hole and if it was shot from below the  Chabutra,  the  oval shape would not be  downwards  but upwards.   We find from the post martem report and  evidence of  the  doctor  that injuries recorded was oval  in  shape, journey  of  pellets being downwards and right to  left  all indicating and corroborating the prosecution story of firing from  the  roof top which is on the right side of the  place where the deceased was standing.

     Now,  we  proceed  to  examine the  testimony  of  eye witnesses,  their  credibility and trustworthiness.  In  the present  case there are two eye witnesses, Ram Singh, PW  1, and  Kalua,  PW  3.  We find the evidence of these  two  eye witnesses  are  of unimpeachable character and in  spite  of their  long cross-examination nothing worth could be said to have  been  eroded, even learned counsel for the  appellants before us could not point out any incongruity, unreliability or  contradiction  or their testimony being at  variance  to distrust them.  According to the prosecution case Ram Singh, PW 1, came along with the deceased Bhagat Singh on the motor cycle  near  the  accused  house and Kalua, PW  3,  who  was sleeping  in the Dalan also came out after hearing the noise of the motor cycle.  Ram Singh, PW 1, stated that on the day

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of  occurrence  he received information from his son  Bhagat Singh  in  Bazaar Vidisha, where he had gone  that  Kailash, Daulat Singh and Ajay Singh entered his house and had beaten his wife, his son Gajendra and his daughter Meena.  Then his wife,  son and the daughter also reached Vidisha when he saw the  hand of his wife bandaged where she also disclosed that the  accused  had  beaten them after entering  their  house. This  fact  was  also corroborated by  Gajendra  Singh.   On hearing  this  he  returned  back   and  after  taking  meal proceeded  to Village Gajar with Bhagat Singh on motor cycle driven  by Bhagat Singh.  After reaching there Bhagat  Singh parked his motor cycle near neem tree.  On hearing the noise of  the  motor  cycle Kalua, P.W.3, has also come.   He  was sleeping  in  the  Dalan of the house of my  portion.   This witness  further  deposed that at the time when we  saw  the accused,  they  were standing on the second floor  and  then they reached the roof of the third floor of their portion of the  house.   Gun  was  in the hand of  Mohan  Singh  alone. First,  Mohan  Singh in reply to the query of  the  deceased used  abusive and threatening language at which the deceased retorted  why  you are abusing, then Ajay Singh exhorted  to kill him in abusive language, followed by Kailash.  This led to  the  firing of one shot by Mohan Singh followed  by  two more  shots  by  him.   Bhagat Singh  fell  down  and  died. Thereafter,  Ajay  Singh shouted, whoever come in front,  we will kill him.  Out of that fear nobody came out.

     PW  3, deposed that between 10 and 11 P.M.  he woke up with  the  noise of the motor cycle of Ram Singh and  Bhagat Singh  who  reached there, it was parked near the Neem  tree and Mohan Singh, Ajay Singh and kailash were standing in the Gokh of Ajay Singh.  It was the moon-lit night and a lantern was  also  burning in the Gokh.  The incidence started  when Bhagat  Singh  asked as to why they had beaten his hali  and mother,  i.e.,  referring  to the incidence  which  happened earlier on the same day.  Thereafter all the accused persons went  inside  the  house and went on the roof of  the  third floor.   According  to  this witness Mohan Singh had  a  gun while  Ajay Singh and Kailash had no weapon in their  hands. The  role attributed to these two accused were  exhortation. On  Bhagat Singh questioning Mohan Singh about his  indecent conduct  earlier,  he  abused  him  to  which  Bhagat  Singh retarded  not to abuse.  On this accused Ajay Singh exhorted Mohan  Singh to kill him and not to worry as we will see the consequences.   It  is  only thereafter Mohan  Singh  spread barrel  of his gun and fired at Bhagat Singh as a result  of which  he died.  Thereafter Ram Singh went to the Chowkidar, PW2,  and told him to report the matter to the police.  PW 2 thereafter  lodged  the F.I.R.  Admittedly he is not an  eye witness  but  reports on asking by Ram Singh and  of  course after  seeing  the dead body, he goes and lodges the  F.I.R. early  next  morning.  Further we find in the  present  case prosecution  has  established  the place  of  occurrence  as Station-in-charge,  PW 11, proves it through the recovery of the  pellets and the blood found there, further  prosecution has  proved the recovery of both the guns from the house  of the accused.

     Returning  to the eye witnesses we find both these two eye  witnesses  PW1  and  PW3  has  fully  corroborated  the prosecution story.  Their credibility has been upheld by the trial  court and we also after going through their testimony fully  approve  this  finding and  uphold  their  testimony. Apart  from  these  two  eye witnesses there  is  also  part corroboration  by Jagannath Singh, PW 6, who is a neighbour.

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His house is adjacent to the house of Ram Singh.  He stated, he  woke up on hearing the noise of firing of gun.  Actually he heard the noise of three fires.  He then went to the door of  the  house  and heard Jee Saheb, the  witness  clearly stated he always called Ajay Singh as Jee Saheb.  He heard him  saying  that if any person of the village comes out  he will  be killed.  On account of this he did not come out and he  remained inside his house till 8 A.M.  Scrutinising  and examining  the  evidence we have no hesitation  to  conclude that  the  prosecution has proved to the hilt the  story  of firing  by  Mohan  Singh from his roof top to  the  deceased Bhagat  Singh.  This unimpeachable evidence of these two eye witnesses  fully  corroborates  with the other part  of  the medical  evidence,  viz., injuries oval in shape,  direction downwards, pillets travelling right to left, i.e., that shot was  fired from roof top of the third floor.  In this  light mere  reference  in the said report of blackening under  the surface  of  the injuries by the Doctor could not  be  given credence  for inferring that firing was from a close  range. This  by itself in no way dismantles the prosecution  story. Learned  senior  counsel, Mr.  M.N.  Krishnamani,  appearing for  the  impleaded  party submitted that  blackening  found could  also be because of clotted blood found as recorded in the  same report;  Skin blackened clotted blood was present around the wound. We find in this regard as aforesaid, Modi records:   The  wound of entrance in distance shot    The edges  of  the  wound are inverted and the  striking  bullet covered  with grease and smoke causes also a collar abrasion contrusion,  which  looks  like  a dark  ring.  {  Emphasis supplied }

     In  the case of Shiv Shankar & Others Vs.  State,  AIR 1953  All.  652, with reference to the Medical Jurisprudence by  Taylor  it was held that sometimes blackness present  in the  area of the injury of ingress creates doubt.  The  path created  by ingress of gun shot the internal skin comes  out and  therefore  the core keeps on changing the colour.   The skin  of  nearby  area can be burnt or injury might  not  be burnt  in  accordance with the distance of opening  the  gun shot  and  there  might  be  blackness  or  redness  of  the particles.   In this decision also doctor found black margin below  the  gun shot wound.  Relevant portions of  the  said decision incorporating Taylors opinion is quoted hereunder:

     The  nature of the wounds said to have been inflicted on  account  of the gun being placed on the chest and  fired does  not  fit in with the allegation.  It is true that  the doctor was not questioned about it.  In fact the doctor made the  statement  that these wounds were due to the gun  being fired by being placed on the chest or from within a range of one yard.  We are of the opinion that in this the doctor was wrong  and  probably got misguided on account of  the  black margins  of  the wounds.  The black margins of a  wound  are never  due  to the firing o f the gun from very close  range ut are due to something different.  Taylor says at page 430 of  his  Principles and Practice of Medical  Jurfisprudence, Volume I, 10th Edition:-

     The edges of the wound commonly show a narrow ring of discoloration due to the removal of a layer of epithelium by the  passage  of  the bullet.  The surrounding skin  may  be scorched  or  not, and there may be a zone of blackening  or peppering  with  grains of powder according to the  distance from which the weapon was fired.

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     And again at page 431:-

     All  entrance  wounds, if examined, will be found  to have  a  zone of denuded epithelium immediately  surrounding the  orifice.  This is caused by the spin of the bullet  and the investigation of the skin by the bullet and tends to dry and  become discoloured shortly after death.  It should  not be  confused  with the marks due to powder for it  gives  no indication of range.

     And again at 441:-

     The  bruised  and  dark appearance which a  gun  shot wound sometimes presents, even when the weapon is discharged at  a distance from the body has led to the supposition that this  effect was due to a burn and that the bullet burnt the parts  which it touched, but this idea is not correct.   The projectile  never becomes sufficiently heated to acquire the power of burning.

     Again Taylor says at page 430:-

     We  must  distinguish  between near  wounds  and  far wounds.  Usually when a weapon is discharged in contact with or within an inch or so of the body the gases which pass out with  the  bullet  enter the tissues and  thereafter  expand causing  tearing  of the skin or clothes very often  in  the form  of  a cross or a split.  Most of the powder  is  found inside  the tissues, butt there may be traces of blackening, burning  and  tattooing around the entrance hole .   If the  weapon  is discharged at a shot distance from the  skin the effect of the gases is lost and the entrance wound looks like  a hole which might be caused by pressing a lead pencil into  the  tissues;  it is rounded with inverted  edges  and surrounded  by a zone of singeing, blackening from the smoke and  tattooing  from  the impaction of  small  particles  of powder in the skin.

     For  all  these reasons we have no hesitation to  hold that recording of blackening of skin below the injury by the doctor prima facie may lead to the conclusion that firing of gun  shot  may  be from a close range but in a  given  case, depending  on  other factors, as in the present case and  in the  light  what the Taylor says, as aforesaid - The  black margins  of  a wound are never due to the firing of the  gun from  a very close range but are due to something different the  observation by the doctor could even be in cases  where shots are not from a close range.

     In  Karnail Singh and Others Vs.  State of Punjab, AIR 1971 SC 2119, this Court held that where it is proved beyond doubt  that  the  evidence of the eye  witnesses  are  trust worthy  in a case where the accused person committed  murder by  gun  shots,  the inconsistency between  the  opinion  of expert  and the eye witnesses relating to the distance  from which  gun  shots were fired carries no weight.  If the  eye witnesses  stand the test of their credibility they have  to be  believed.   Looking to the present case we see even  the doctors  opinion is not clear as he admitted that he cannot give  clear  opinion about the distance from which the  shot

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was  fired.   But he records that it was fired  from  higher pedestal  which  corroborates  with the  prosecution  story. This,  coupled  with  the fact that the eye  witnesses  also corroborate  to the same effect, the submission on behalf of the  accused  for all the aforesaid reasons with respect  to the first point cannot be sustained.

     Next submission relates to the recovery of two guns of .12 bore which is said to cast doubt on the prosecution case as licence of one of them is in the name of Ram Singh, PW 1. The recovery of two fire arms are, one which is recovered on the  pointing  of Mohan Singh from his house on 27th  April, 1980  and  the  other  which was licensed  in  the  name  of complainant Ram Singh, PW 1, is recovered on the information given  by this very witness, PW 1, recovered from the  Dalan of  the accused Ajay Singh on 28th April, 1980.  This  point was  pressed  to create a doubt as to which one was used  to commit  the offence.  The High Court has rightly referred to the judgment of the trial court with approval on this point. The  trial  court has given good and cogent reason  for  not accepting  this  part  of the submission on  behalf  of  the accused.   Learned counsel for the accused submitted that it is  not  recorded in the seizure memo that the gun,  Article No.1, was seized from the door in the Dalan of Ajay Singh to show  it to be in possession of Ajay Singh.  In this  regard the trial court referred to the statement of Mohan Singh who admitted  that  he was keeping a 12 bore gun with one  empty cartridge  and  two  empty cartridges in the  drain  of  his house.   In  this regard a seizure memo, Ex.  P6,  was  also prepared.   The  gun,  Article  No.2,  and  dry  cartridges, Article  10, wet cartridges, Articles 11 and 12, were seized on  the indication of Mohan Singh and the seizure memo,  Ex. P-7,  was  prepared.  Parsu Ram, DW 4, clearly  stated  that those  articles  were got seized voluntarily by Mohan  Singh and  he  has  given this statement voluntarily.   The  trial court  rightly  concluded  that  Articles   10,  11  and  12 (cartridges)  were seized inside the house of Mohan Singh on his  indication.   The case of Ram Singh is if there is  any gun  licensed in his name then it must be with accused  Ajay Singh  as  on  partition he never gave such a  gun  to  him, however, the said Ram Singh did say, when he was washing his face  at  the hand pump in the morning on 28th April,  1980, then  he saw the gun and a belt of the cartridges hanging at a  peg  outside  the  house  of Ajay  Singh  in  his  dalan. Thereafter  when investigation officer came then he told the officer  about  the  said  gun on  which  the  investigation officer  did  collect the said gun after going  there  along with  Kalua,  PW 3, and one Jagannath and brought  the  said gun.   The  trial  court  rightly  concluded  based  on  the evidence  and  the  report  of ballistic  expert,  that  the introduction  of the second gun would have no bearing on the trustworthiness of the proof of the use of the specified gun in the said incidence.

     Next it was submitted as there was paucity of light it was  not  possible for the eye witnesses to see the  accused and to identify as to who out of the aforesaid three accused used  the fire arm and who exhorted Mohan Singh to fire.  We find the prosecution witnesses have stated it was a moon-lit night  and  even a lantern was burning in the Dalan of  Ajay Singh,  coupled with the fact that the accused were not only known  but were closely related belonging to the same family hence  their appearances, voice being known, there would  be no  difficulty for the witnesses in recognising the  accused persons   in  a  moon  lit   night  with  lantern   burning.

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Eyewitnesses  clearly stated that the firing was done by the accused  Mohan  Singh  to  which we have  no  hesitation  to accept.   Lastly,  a feeble submision was made that the  FIR does  not  record  details  about the part  played  by  each accused   persons   in  commission  of  the   crime,   hence prosecution  story  is  an after thought  to  implicate  the accused.   We  again  do  not find  any  substance  in  this submission,  since  it  is not in dispute that the  FIR  was lodged  by  Chowkidar, PW 2, who admittedly was not  an  eye witness.  Ram Singh told PW 2 who came to the scene later to get  the FIR lodged as then on his sons death he must be in remorseful  mood.  PW2 did see the dead body of Bhagat Singh and  then went to the Police Station and lodged the FIR.  It is  but  natural  the man recording the FIR if  not  an  eye witness,  no details could be expected to be incorporated in it.   It is also natural Ram Singh after seeing his son dead could  not  have  been in a mood to give details  except  to request  the  chowkidar to lodge a report.  Thus we  do  not find  any  merit  to this last submission.  In view  of  the aforesaid  findings, we clearly come to the conclusion  that the  prosecution has proved to the hilt the crime  committed by  the  accused Mohan Singh by killing Bhagat Singh  by  12 bore gun beyond all reasonable doubt.

     Next  question  is whether prosecution has proved  its case  against  the accused Kailash Singh under  Section  302 read  with  Section 34 or not?  It is admitted case that  he has not used any fire arm nor any active role is assigned to him.   The  role assigned to him is merely exhortation.   In order  to test the prosecution evidence, it is necessary  to record  sequence of events preceding the alleged exhortation by  him to test whether his case falls under Sec.  34 I.P.C. or  not?   Admittedly, it is not a case  of  pre-determined, planned  case  of common intention of the three  accused  to kill  the deceased Bhagat Singh.  Prosecution story  reveals that  emotion  developed  on the spot when  complainant  Ram Singh  and  Bhagat Singh came near the house of  Ajay  Singh accused  where  two other accused, namely, their sons  Mohan Singh  and Kailash Singh were also there.  Thus it is to  be seen  whether any such common intention with a common design developed  also in the mind of Kailash to kill the deceased? According  to Ram Singh, the eye witness when he reached the neem  tree which is in front of the house of Ajay Singh  the accused  Ajay Singh, Mohan singh and Kailash Singh came  out from  Gokh  and went in turn from second floor to the  third floor.   After the initial altercation with Bhagat Singh the accused  Mohan  Singh shouted with threatening  and  abusing words  to  Bhagat  Singh deceased which were  as  following; Abe  Sale  Kutte Ab Bol Tujhe Abhi Bhi Bata Dete  Hai,  on which  Bhagat Singh replied why are you abusing from  above? It  is  on this the accused Ajay Singh, their  father,  then exhorted  his son Mohan Singh with the following words  Mar Sale  Ko Jo Kuch Hoga Nipat Lenge (Kill him whatever  happen we will face it).  It is only thereafter it is alleged that his  other  son Kailash also exhorted Mohan Singh  with  the words  Mar Sale Ko (Kill him) .  The consequence of events clearly  shows,  the very language expressed by Mohan  Singh first, clearly indicates, the clear intention of the accused Mohan  Singh to do away with Bhagat Singh.  It is  expressed with  rage.   If there was any infirmity in his  resolve  it fully  matured when what followed, viz., the exhortation  by Ajay  Singh the father of Mohan Singh.  The aforesaid  words of  the father could infuriate anyone including Mohan  Singh to  do the ultimate, namely, killing of Bhagat Singh.  It is at  this point of time when common intention between the two

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accused  matured, if at all.  So far as Kailash is concerned he  had  no role.  He is introduced lastly when it  is  said that he also said Mar Sale Ko which may mean both kill him or  beat him.  Except for this no other role is assigned  to this  accused at the point of the incidence.  Looking to the preceding  strong abusing and threatening language used both by the other two accused which indicates common intention if at all matured then the exhortation words attributed to this accused,  does  not  bring  home   beyond  doubt  of  common intention  with common design maturing to kill the  deceased so far as the participation of this third accused.  Firstly, it  is  the  weakest language used out of the three  and  is attributed  to have been expressed in the last.  We find the common  intention really matured and concluded much  earlier to the time when the role of this accused is introduced.  On the  facts and circumstances of this case and in the absence of  anything  more  this  by itself does  not  lead  to  the conclusion  so far as the accused Kailash is concerned  that his  exhortation was also with the same common intention  to kill Bhagat Singh.

     In  the  cross-examination when P.W.1 was  confronted, whether  such  words  were expressed by Kailash or  not  and whether  he got it recorded with police or not this  witness stated that I told this thing to the police but police might not  have  recorded it.  This apart except for  the  similar repetition  by  the other eye witness Kalua, PW 3,  even  he could  not refer to any other role played by Kailash  except introduction  of the said words.  Thus we conclude that  the prosecution  has not proved beyond all reasonable doubt that the  accused  Kailash Singh also formed part of  the  common intention  to  kill  Bhagat Singh.  So we grant  benefit  of doubt to him.

     In  view of the aforesaid finding, we conclude that so far  as  the appeal of accused Mohan Singh is concerned  the conviction  and sentence is maintained and his appeal  fails but  the appeal of accused Kailash Singh is allowed and  his conviction  and sentence under Section 302 read with Section 34  I.P.C.   is set aside.  It is directed that the  accused Kailash Singh be set at liberty forthwith unless required in connection with any other offence.  Accordingly, this appeal is partly allowed.