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PETITIONER: PREM KUMAR AND ANOTHER

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT02/03/1995

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) ANAND, A.S. (J)

CITATION:  1995 SCC  (3) 228        JT 1995 (3)   123  1995 SCALE  (2)50

ACT:

HEADNOTE:

JUDGMENT: PARIPOORNAN, J.: 1.   The  appellants in this appeal, Prem Kumar  Singh  (a), Prem Singh S/o Mundrika Singh and Ramesh Singh S/o Chandrika Singh are Accused Nos. 1 and 2 in Sessions Trial No. 219  of 1983,  Additional Sessions Judge, Palamau.  They have  filed this appeal against the affirmance of their conviction under section  302 of Indian Penal Code, by the Patna High  Court, Ranchi Bench, Ranchi, by judgment dated 8.9.1989. The  above two  accused, along with one Mundrika Singh, Accused No.  6, father  of Accused No. 1 Prem Singh, and eight  others  were charge-sheeted to stand Sessions Trial for the murder of one Tarkeshwar Prasad Singh on 13.1.1983 at 6.30 p.m. at a place known as Ketat.  Accused Nos.  1 and 2 were charged for of- 124 fence under section 302 read with section 34 IPC for causing the  murder  of  Tarkeshwar Prasad Singh.   They  were  also charged for offence under section 307/34 IPC for  attempting to cause murder of Ghanshyam Languri and Rajnath Tewari, two co-passengers,  who  boarded the bus along  with  Tarkeshwar Prasad  Singh.   The  remaining nine  accused  persons  were charged  for offences under section 302/ 149  IPC.   Accused No. 6 Mundrika Singh was charged for offence, under  section 147  IPC  also, whereas the ten other accused  persons  were further charged for offence under section 148 IPC read  with section 27 of the Arms Act.  All the accused persons pleaded not guilty for each of the charges framed against them.  The defence  plea was that the death of Tarkeshwar Prasad  Singh in  the bus, belonging to Santosh Transport  Company,  might have  been caused at the hands of some unknown  dacoits  and the  accused  persons have been falsely  implicated  by  the informant because of long drawn enmity between the  parties. The  plea  of alibi was also put forward by  Accused  No.  6 Mundrika  Singh,  Accused No. 1 Prem Singh, Accused  No.  10 Raja Dixit and Accused No. 7 Muni Dixit.  On an analysis  of the  entire  evidence in the case, the  Additional  Sessions

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Judge,  Palamau,  by judgment dated 9.6.1987, held  that  on instigation  given by Accused No. 6 Mundrika Singh  to  kill Tarkeshwar  Prasad Singh, the deceased, Accused No.  1  Prem Singh  and Accused No. 2 Ramesh Singh  intentionally  caused the  death of Tarkeshwar Prasad Singh by firing at him  with their rifles in consequence of which Tarkeshwar Prasad Singh died instantaneously on the spot.  It was also found that in the  same act, Accused Nos.  1 and 2 also caused rifle  shot injury  on  PW  5  and 6 knowing  fully  well  that  in  the circumstances, by their act of firing inside the bus, it was likely to cause the death of other passengers also and  such act  was  an  attempt to commit murder of PW 5  and  6.  The Sessions  Judge  came  to  the  conclusion  that  there   is absolutely no evidence of any other attack by the  remaining accused  persons (other than Accused Nos. 1, 2 and 6).   The offence under section 27 of the Arms Act was also not proved against such persons.  In the result Accused No. 6  Mundrika Singh  was found guilty under section 302 read with  section 34 IPC and convicted thereunder.  Accused Nos.  1 and 2 were found  guilty for offence under section 302 IPC for  causing the  murder  of  Tarkeshwar  Prasad  Singh  and  they   were convicted  thereunder.   They  were also  found  guilty  for offence  under section 307 IPC for attempting to commit  the murder of PW 5 and 6 and were accordingly convicted.  Except accused  Nos.   1 and 2 and 6, the other  accused  were  not found guilty for any of the charges framed against them  and they  were  acquitted and discharged from the  liability  of their  respective  bail bonds.  Accused Nos.  1 and  2  were sentenced  to imprisonment for life under section  302  IPC. Accused  No. 6 was also sentenced to imprisonment  for  life under section 302 read with section 34 IPC.  Accused Nos.  1 and   2   were  further  sentenced   to   undergo   rigorous imprisonment for seven years for their conviction under sec- tion  307 IPC.  It was further held that both the  sentences passed  against  the  Accused  Nos.   1  and  2  shall   run concurrently.  Accused Nos. 1, 2 and 6 filed Criminal Appeal No. 90 of 1987 before the High Court of Patna, Ranchi Bench, Ranchi.   A Division Bench of the High Court, after  a  very detailed  discussion  of the entire  evidence,  by  Judgment dated  8.9.1989, acquitted accused No. 6 Mundrika Singh  and con- 125 firmed the conviction of Accused Nos.  1 and 2 under section 302  of  the Indian Penal Code.  The conviction  of  Accused Nos.  1 and 2 under section 307 IPC was set aside.  The High Court observed that the case of Accused No. 6 Mundrika Singh is  not free from doubt and the case against him appears  to be  similar to the other co-accused, who were  acquitted  by the  Sessions  Judges.   In this  view,  the  conviction  of Accused  No.  6 Mundrika Singh, appellant No. 3  before  the High  Court,  was  set aside and be  was  acquitted  of  the charge.  But as regards Accused Nos.  1 and 2 the High Court came  to  the conclusion that though  their  conviction  and sentence  under  section 307 of the Indian  Penal  Code  are liable to be set aside, their conviction and sentence  under section 302 IPC were justified.  It is against the aforesaid Judgment  of the High Court dated 8.9.1989 Accused  Nos.   1 and 2 have filed the above Criminal Appeal before this court as per special leave granted in SLP (Crl.) No. 2059/89 dated 22.7.1991. 2.   We heard Sri Rajender Singh, learned senior counsel for the appellants and Sri H.L. Agrawal, learned senior  counsel for  the respondent.  Accused No. 6 Mundrika Singh  and  one Chandrika  Singh are brothers.  Accused No. 1 Prem Singh  is the  son of Mundrika Singh.  Accused No. 2 Ramesh  Singh  is

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the  son of Chandrika Singh.  It is alleged that one  Rajan, brother of Accused No. 1 Prem Singh, and Bishwanath, brother of  Accused No. 2 Ramesh Singh, were murdered by  Tarkeshwar Prasad  Singh. and others on 2.10.1982. The case  was  still pending  when  the  incident relevant to  the  instant  case happened  on 13.1.1983 at about 6.30 p.m. at Ketat.   It  is fairly  clear  from the evidence in the  case,  that  enmity exists  between  the members of the appellants’  family  and those of the deceased family.  The prosecution alleged  that on 13.1.1983 after attending the hearing of the murder  case of  Rajan  and Bishwanath at Daltonganj,  Tarkeshwar  Prasad Singh  accompanied by Bashishth Narain Singh, PW 8, as  also Sheo  Pratap  Singh  and Ramadhar Pathak,  boarded  the  bus bearing  Registration  No.  BRO 3555  of  Santosh  Transport Company,  for returning to Rehla at 5.30 p.m., and  the  bus stopped  for a while at the stop of Ketat, when car  bearing Registration  No. WMB 5989 came from behind and  stopped  in front of the bus.  The time was about 6.30 p.m. Then Accused Nos.  2  and 6 and their colleagues Satyender  Singh,  Munni Dixit got down from the car.  Accused No. 6 was empty handed but  the remaining persons were armed with rifles.   In  the meanwhile Jeep bearing Registration No. BRO 2770, which also arrived from the side of Daltonganj, stopped in front of the bus.  From that Jeep, Accused No. 1, armed with a rifle, and his  colleagues Rajeshwar Singh, Bishwanath Singh,  Parsuram Dixit,  Basistha Dixit, Fakira Dixit and  Chandardhan  Singh and  two other unknown persons, all armed with  guns  alike, alighted.    The  accused  and  other  co-culprits   started proclaiming  that as Tarkeshwar Prasad Singh was inside  the bus,  he  should be cut into pieces.  On hearing  this,  the passengers  of the bus were struck with terror  and  started fleeing  away.   Passengers were in the process  of  getting down  from front and rear entrances.  At that  time  Accused Nos.   1 and 2 came inside the bus from the front  entrance. PW  8  Dudhnath Singh, in order to hide  his  identity,  had wrapped his face with the chadar and rushed towards the back door  of the bus, when he saw Accused Nos.  1 and  2  firing indiscriminately at Tarkeshwar 126 Prasad  Singh.   In  that firing Ram Raj Pandey -  PW  5,  a forest  guard, and Ghanshyam Languri - PW 6, a police  offi- cial,  also received injuries.  PW 8 Dudhnath Singh  had  by that  time managed to get down from the bus like many  other passengers and he concealed himself nearby in thick  bushes. On  knowing  that  Tarkeshwar Prasad  Singh  had  died,  the accused  and others raised victory slogans and fled  towards Daltonganj in their car and jeep.  On hearing the news,  Sub Inspector Sachchidanand Deo, PW 14, entered the  information as  Entry  No.  195 (Ex. 4) at 7.00  p.m.  in  Rehla  Police Station  and  rushed to the place  of  occurrence,  arriving there at 7.15 p.m. On seeing the police PW 8 Dudhnath  Singh came  out of the hiding and made a statement (Ex.  5)  which was sent to the Police Station, Bishrampur and on this basis the  case was registered vide FIR (Ex. 7) at 9.00 p.m. PW  5 and  6 were transported to Daltonganj hospital.  Though  the search  was made for the culprits they were not found.   The Sub  Inspector retained to the spot at about 1.30  a.m.  and prepared the inquest report with respect to the dead body of Tarkeshwar  Prasad  Singh.  He lifted three  live  gun  car- tridges vide seizure memo Ex. 9. PW 1 Bashishth Narain Singh and  Bipin Bihari Singh attested the documents  prepared  at the  spot.   The dead body of Tarkeshwar  Prasad  Singh  was subjected to postmortem examination by Dr. R.K.P. Pandey (PW 4). One Dr. K., Singh conducted medical examination of PW  5 and  6. Statements of driver, conductor and other  witnesses

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were  recorded-  The accused surrendered in court  and  were arrested  later  and  chargesheeted.   One  of  the  accused Chandardhan  Singh was subsequently murdered  on  23.6.1983. Accused  Nos.  1, 2 and 6 were sentenced and  other  accused were acquitted by Sessions Judge. 3.   The  postmortem examination of Tarkeshwar Prasad  Singh was  conducted  by  PW  4 on  14.1.1983  at  10.50  a.m.  at Subdivisional  Hospital,  Daltonganj.  The  record  relating thereto discloses the following injuries : -               1.    Six oval lacerated wounds with  inverted                             margins of the sizes varying from 1/4" to  1/2 "               in diameter on the middle and left side of the               front of the chest;               2.    One  oval lacerated wound with  inverted               margins  of the size 3/4" in diameter  on  the               upper  part of the left side of  abdomen  with               two metal pieces embodied in the wound;               3.    Three  circular  lacerated  wounds  with               inverted  margins  of the sizes  varying  from               1/4" to 1/2" in diameter on the right shoulder               with blackening of the skin around the wound.               Fractures of the body of the external bones of               third,  fourth,  fifth  and  sixth  ribs   and               cartilages  on the right side, as well as  the               fourth,  fifth and sixth ribs and on the  left               side  were noticed.  The third and the  fourth               thorazix  vertebra,  the  right  of  devicles,               right  scapula,  and  the upper  part  of  the               numerous  on  the right side were  also  found               fractured.               Injury  Nos.  1 and 3 referred to  above  were               wounds  of entry, while injury No. 2  was  the               wound  of exit.  All the above  injuries  were               caused  by  fire arms.   Death  of  Tarkeshwar               Singh had been caused by shock and  hemorrhage               as a result of above noted injuries.  The time               elapsed since death was with 12 to 18 hours of               the postmortem examination.  All the  injuries               individually were sufficient to cause death in               the ordinary course of nature.               127               Ext. 3 is the postmortem examination. The medical examination of PW 5 Ram Raj Pandey on  13.1.1983 conducted by Dr. K. Singh disclosed the following:               Lacerated wound on left side of neck 1" x 1/2"               surrounded  by  charring of skin.   The  X-ray               plate  dated  14.1.1983 showed a  big  oblique               subset  with small radio opaque particle.   It               was a skin (deep) injury caused by afire  arm,               may be a rifle.  Age of the injury was  within               24 hours.  Ex. 2 is medico legal certificate. Dr. K. Singh, who examined PW 6 found the following injury:-               One  lacerated  wound  on  left  side  of  the               shoulder  3  " x 1".  The depth could  not  be               probed.    This  injury  was   surrounded   by               charring  skin.  The X-ray plate no. 41  dated               14.1.1983 showed three shots on the upper left               side of back.  It was simple in nature  caused               by  afire arm such as a rifle or gun.  Age  of               the  injury was within 12 hours.   Ext.2/1  is               the medico legal certificate. 4.   As stated earlier, the plea of the appellants was  that the  prosecution allegations are untrue and that  they  were innocent.   Accused  Nos.   1 and 6 and  two  other  accused

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advanced the plea of alibi and examined DW 1 to 3 in support of the same.  The said evidence did not find favour with the trial  court.  The appellants also examined DW 4 Kuldip  Roy and  DW  5 Priya Brat Singh to show that  Tarkeshwar  Prasad Singh was a terror. 5.   Certain  crucial aspects appearing in the case  deserve to  be highlighted.  Tarkeshwar Prasad Singh was  shot  dead inside the bus bearing Registration No. BRO 3555 at the  bus stop Ketat at about 6.30 p.m. on 13.1.1983.The deceased  met with instantaneous death.  PW 1, PW 2, PW 5 an PW 8 are  the eye witnesses.  PW 8 lodge FIR on the same day at 7.30  p.m. PW  5,  forest  guard, was a  co-passenger  and  independent witness.   He  also  speaks about the incident  and  he  was injured  in the act of firing by Accused Nos.  1 and 2.  The postmortem  report and the evidence of PW 4 proves that  the injury  resulted  due  to shots of fire  arms.   There  was, admittedly  enmity between the family of the informants  and that  of  the accused.  Deceased  Tarkeshwar  Prasad  singh, along  with  PW  1, 2, 8 and PW 5 & 6, and  few  others  was returning in the bus belonging to Santosh Transport Company, on  13.1,1983, after attending the murder case of Rajan  and Bishwanath.   The  prosecution states that  Prem  Singh  and Ramesh Singh (Accused Nos 1 and 2), who came from behind  in the  jeep  and the car along with few  others,  fired  fatal shots  at  Tarkeshwar  Prasad Singh  with  their  rifles  in furtherance  of common intention of the other  accused  per- sons,  which  caused the instantaneous death  of  Tarkeshwar Prasad Singh.  The courts below have concurrently held  that the motive suggested by the prosecution against the  accused persons  is  established.  When there is  sufficient  direct evidence  regarding  the  commission  of  the  offence,  the question  of motive will not loom large in the mind  of  the court.  It is true that this Court has held in State of  UP. v. Moti Ram & Ors. (1990 (4) SCC 389), that in a case  where the  prosecution  party  and  the  accused  party  were   in animosity  on account of series of incidents over a  consid- erable  length of time, the motive is a double-edged  weapon and the key question for consideration is whether the  pros- ecution had convincingly and satisfactorily established  the guilt of all or any of 128 the  accused beyond reasonable doubt by letting in  reliable and  cogent  evidence.  Very often, a motive is  alleged  to indicate  the high degree of probability, that  the  offence was committed by the person, who was prompted by the motive. In  our opinion, in a case when motive alleged  against  the accused  is  fully established, it provides  a  foundational material  to  connect the chain of circumstances.   We  hold that if motive is proved or established, it affords a key or pointer,  to  scan  the  evidence  in  the  case,  in   that perspective   and   as  a   satisfactory   circumstance   of corroboration.  It is a very relevant, and important aspect, (a)  to highlight the intention of the accused and  (b)  the approach  to  be made in appreciating the  totality  of  the circumstances, including the evidence disclosed in the case. The  relevance of motive and the importance or value  to  be given to it are tersely stated by Shamsul Huda in delivering the Tagore Law Lectures (1902)- The Principles of the Law of Crimes in British India, at page 176, as follows:-               "But proof of the existence of a motive is not               necessary  for a conviction for  any  offence.               But where the motive is proved it is  evidence               of  the  evil intent and is also  relevant  to               show  that  the person who had the  motive  to               commit a crime actually committed it, although

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             such  evidence alone would not  ordinarily  be               sufficient.   Under Section 8 of the  Evidence               Act  any  fact  is  relevant  which  shows  or               constitutes  a motive or preparation  for  any               fact in issue or relevant fact." In  these circumstances, the only crucial factor  falls  for determinationistosee   whether  satisfactory  evidence   was available  on  record  for bringing home the  guilt  of  the appellants/accused  persons.  We shall discuss in brief  the evidence  of the four cye-witnesses PW 1,2,5 and 8,  to  the extent  it is necessary to show how far the prosecution  has established its case. 6.   The main arguments advanced before us   onbehalf of the appellants-accused are (a)    PW  1 to 8 arc not really  eye witnesses  and they were not able to depose, who  fired  the final  shot  and when; (b) the shot received  by  Tarkeshwar Prasad Singh is of the gun and not of the rifle as spoken to the  prosecution witness; (c) there is inconsistency in  the prosecution evidence, and what is more the statement in  FIR is not fully substantiated. 7.   We  were  taken  through the evidence of PW  1,  and  4 (medical  witness), PW 5 independent witness (Forest  Guard) and  PW  8 - first informant and PW 12, We  have  also  gone through the FIR appearing at pages 51-54 (paper book No. III Annexure  p-10) and also the statement given by the  accused in their examination under Section 313 of Criminal Procedure Code.  We shall now advert to the salient features disclosed by the said evidence appearing in the case. 8.   PW  1, Bashishth Narain Singh is the  father-in-law  of Tarkeshwar  Prasad Singh.  He deposed before the Court  that himself,  PW 2, PW 8 and the few others were in the  Santosh Bus when it stopped at Ketat village, a jeep and a car  came from behind and 10-15 persons armed with rifles and guns got down  from  both the vehicles and  shouted  that  Tarkeshwar Prasad  Singh  is in the bus and he should be cut.   He  was trying to get down from the bus to run away when Prem  Singh and Ramesh Singh, Accused Nos.  1 and 2, came from the front gate  with  rifles along with Mundrika Singh  (A-6).   There were amongst passengers, 129 one  Forest  Department Official (PW 5) and  another  police official  (PW 6).  He knew Mundrika Singh, Ramesh Singh  and Prem  Singh  for  a long time.  No doubt  he  had  developed weakness  in  the  eyes  two months prior  to  the  date  of examination,  but  he  had clear vision and  his  eyes  were alright at the time of the occurrence.  He admitted that  he had given statement before the police that Ramesh Singh  and Prem  Singh started firing at Tarkeshwar Prasad Singh  after entering into the bus.  He heard the noise of firing when he was  fleeing  from  the  bus and also  heard  the  shout  of Tarkeshwar Prasad Singh to save him.  PW 2 Ran Vijay  Pratap Deo,  deposed that he boarded Santosh Bus in the evening  to come  back  to Rehla along with PW 1, PW  8  and  Tarkeshwar Prasad  Singh and when the bus halted near Ketat village  to drop  some  passengers,  a fiat  car  came  from  Daltonganj direction and stopped before the bus.  Accused Ramesh  Singh and others with rifles in the hands, and Mundrika Singh  got down.  Mundrika Singh’s hands were empty.  A jeep also  came from behind and Prem Singh and others got down from the jeep with  the rifles.  The jeep and the car surrounded  the  bus and  thereafter, he heard the noise of firing from  the  bus gate.   Prem Singh and Ramesh Singh were standing  near  the front gate of the bus with rifle.  The moment he came out of the bus, he heard the noise of firing andsimultaneously  the shout of Tarkeshwar Prasad Singh.  He also speaks about  the

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enmity between the accused and Tarkeshwar Prasad Singh.  Ac- cording to him, there was indiscriminate firing in the  bus. PW  5,  a  forest officer and  independent  witness,  stated before  the Court that he boarded Santosh Bus at  Daltonganj bus stand on 13.1.1983 and when the bus stopped in front  of Ketat  village, 5-6 persons surrounded the bus  and  started firing  indiscriminately.   He  was injured  due  to  firing Tarkeshwar Prasad Singh died inside the bus, hit by the bul- let.   Persons firing were outside the bus next to  the  bus door  and  were firing inside.  The bullet hit  the  witness after  breaking  the  glass  of the  bus  window.   He  knew Tarkeshwar  Prasad  Singh  before  since  he  was  a  forest contractor.   PW  -8  Dudhnath  Singh,  who  gave  the   FIR available at pages 51-54 of Volume III of the paper book, is the brother-in-law of the deceased Tarkeshwar Prasad  Singh. In  the FIR he has stated that along with Tarkeshwar  Prasad Singh,  PW  1,  2  and  others,  they  boarded  the  bus  at Daltonganj’ and when the bus reached Ketat village at  about 6.45 in the evening to drop a passenger, a car, belonging to Chandrika  Singh, bearing No. WHB 5989, came overtaking  the bus and stopped in front of It.  The passengers, sitting  in it,  got  down  and were armed with  guns  and  rifles.   He recognised  those persons Among them Ramesh  Singh,  Accused No.  2,  and others had rifles. immediately after  this  the jeep,  bearing No. BRO 770, came and Prem Singh, Accused  1, and others got down with rifles in hand.  All the persons in the  car and the jeep surrounded the standing bus  and  said that ’sala’ Tarkeshwar Prasad Singh is in he should be taken out  and cut into pieces.  The persons traveling inside  the started  begging for life and started fleeing.   Prem  Singh and Ramesh Singh were identifying the, passengers and PW  8, by hiding his face, got down from the rear gate.  Tarkeshwar Prasad  Singh  was  in the back.  As  soon  as  the  witness reached  the rear gate, he saw Prem Singh and  Ramesh  Singh entering  the bus from the front gate with their rifles  and started  indiscriminate firing on Tarkeshwar  Prasad  Singh. The 130 witness  ran outside to save his life, but while running  he heard Tarkeshwar Singh’s shouts from inside the bus.  He hid himself  in  nearby bushes.  The reason for this  murder  is that Prem Singh, Ramesh Singh and others had enmity  towards Tarkeshwar  Prasad Singh and wanted to take revenge  due  to the   pending  murder  case  of  Rajan  and  Bishwanath   in Daltonganj.    As   PW   8,   the   witness,   substantially corroborated what he stated in the FIR.  He deposed that  he was travelling along with Tarkeshwar Prasad Singh, PW 1  and others  in the bus belonging to Santosh  Transport  Company. At about 6.45 p.m. at Ketat village the bus stopped to  drop a passenger when a Fiat car bearing No. WHB 5989 stopped  in front of the bus and Ramesh Singh and others came out of the same with rifles and thereafter a jeep bearing No. BRO  2770 came and Prem Singh and others got down out of the jeep with rifles  and  all  of them abusing  Tarkeshwar  Prasad  Singh stated  that he should be cut into pieces.  Prem  Singh  and Ramesh Singh stood near the front door of the bus and  fired shots  with rifles.  PW 8 was successful in fleeing away  by covering  his  face with a chadar.  He saw  that  Tarkeshwar Prasad  Singh  got  injured by the bullet  inside  the  bus. Tarkeshwar Prasad Singh was behind him when firing had taken place.   He  did  not see bullet being fired  on  any  other passenger  other  than  Tarkeshwar  Prasad  Singh.   Another person.  who  was  a forest guard, was  injured,  hit  by  a bullet.   The FIR available at pages 51-54 of volume III  of the  paper book and the deposition of the eye witnesses,  PW

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1,  PW  2,  PW 5 and PW 8, of when PW 5  is  an  independent witness, clearly bring out the fact that Accused Nos.  1 and 2  came  in a jeep and a car with rifles, with a  few  other persons, that they got into the bus from the front and fired indiscriminately at Tarkeshwar Prasad Singh.  PW 5, a forest officer as an independent witness, who himself sustained in- juries,  has also stated that Tarkeshwar Prasad  Singh  died inside  the  bus  due to hit by the bullets.   ’Mere  is  no contradiction  with regard to the crucial  aspects,  namely, that these witnesses travelled with Tarkeshwar Prasad  Singh in  the same bus, that the bus stopped at Ketat  village  to drop a passenger, at that time Accused Nos.  1 and 2 came in a  jeep  and  a car with rifles,  from  behind,  along  with others,  surrounded  the  bus  and  after  proclaiming  that Tarkeshwar  Prasad Singh is inside the bus and he should  be cut   into   pieces,  they  entered  the   bus   and   fired indiscriminately, at Tarkeshwar Prasad Singh, which resulted in the death of Tarkeshwar Prasad Singh instantaneously. 9.   PW4  -  Dr. R.K.Pandey, who  conducted  the  postmortem examination   of   the  deadbody,  proved   the   postmortem certificate issued by him and also stated that the  injuries referred  to  in the certificate were caused by  fire  arms. Ext. 3 - certificate - is in his own handwriting and  signed by  him.  Six metallic pieces recovered from  the  dead-body were  properly  sealed  and sent to  the  police.   All  the injuries were caused by some fire arms.  The postmortem  re- port - Annexure p-8, (Volume III of the paper book)-mentions about two metallic pieces embodied in the wounds in the  up- per  left side of the abdomen and also refers to a  recovery of  total six metallic pieces.  The postmortem report  along with the evidence of the medical witness PW 4  substantiates that the injuries sustained by Tarkeshwar Prasad Singh  were as  a result of shots received from the fire arms  and  that they were fatal.  Such injuries were, 131 sustained  by Tarkeshwar Prasad Singh only due to the  shots received from the fire arms, employed by the accused against Tarkeshwar  Prasad Singh, while in the bus as spoken  to  by eye witnesses PW 1, PW 2, PW 5 and PW8.  The direct evidence in  the  case,  amply  corroborated by  the  motive  of  the accused, positively points out the intention of the  accused to murder Tarkeshwar Prasad Singh. 10.  Sachchidanand  Deo,  Inspector of Police,  PW  14,  who recorded  the FIR, stated that he had seized two  bullet  on the  front  gate foot-steps of the bus and that he  did  not find  any rifle or gun at the place of occurrence or  nearby and  that he recorded the FIR and other statements from  the witnesses etc.  It is also important to notice that PW 8 has given  the  number of the Fiat car and the jeep  and  PW  12 Chandreshwar  Upadhyay,  who came along with Prem  Singh  in jeep has categorically stated that the number of the jeep is BRO 2770 and Prem Singh regularly used to bring him in  that jeep. 11.  Appellants’  counsel made a feeble attempt  to  contend that  it is not clear in this case whether the  injuries  to Tarkeshwar  Prasad Singh caused by the rifle or by the  gun. The plea was that the cartridges recovered were not sent  to the ballistic expert nor was any ballistic expert  examined. Our  attention was invited to the decision of this Court  in Mohinder Singh v. The State (1950 SCR 82 1), and in particu- lar to the observations of the Court at page 828.  We are of the view that the said decision is distinguishable.  It will be found from page 825 of the Report that the accused in the said  case produced "a 12 bore gun" Ext. p-16, for which  he held the licence.  He denied that he had fired

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with  the  said gun.  His case was that  Gurnam  Singh,  who reached the spot at about the time of incident, had fired at the  deceased  Dalip  Singh.  There  were  certain  puzzling features  of  the  injuries of Dalip Singh, It  is  in  that connection the court observed as follows:-               "In  a case where death is due to injuries  or               wounds  caused  by  a lethal  weapon,  it  has               always  been considered to be the duty of  the               prosecution  to prove by expert evidence  that               it  was  likely or at least possible  for  the               injuries  to have been caused with the  weapon               with which and in the manner in which they are               alleged to have been caused." The above observations were made in a case where the weapon. with  which  the victim sustained injuries  was  before  the Court  and there was doubt whether the injuries  could  have been caused by using that weapon - Extp-16, in the  reported case.  In this case, the rifles used by Accused Nos.  1  and 2  were never recovered.  So, the prosecution could not,  in the  circumstances,  allege that a  particular  identifiable weapon was used in committing the crime.  There was  nothing to be examined by the ballistic expert.  The observations in Mohinder Singh v. The Slate (supra) should be understood  in the above peculiar context.  There is no merit in this plea. 12.On a careful scrutiny of the evidence in the case,we  are candidly  of the view that the finding of the  courts  below that Prem Singh and Ramesh Singh, Accused Nos.  I and 2, due to  enmity,  had committed the murder of  Tarkeshwar  Prasad Singh  intentionally  by firing repeated shots at  him  from their respective rifles, is justified and their  convictions under  Section  302 of the Indian Penal Code is  proper  and unassailable.  There  is  no merit in  this  appeal.  It  is dismissed. 133