Balvir Singh vs The State Of Madhya Pradesh

These appeals arise out of the judgment dated 26.08.2008 passed by the High Court of Judicature at Madhya Pradesh at Jabalpur in and by which the High Court affi rmed the conviction of the appellants (Accused No.1 to 4) under Digitally signed by MADHU BALA Sections 341, 302 and 302 read with 34 IPC and the sentence Date: 2019.02.19 16:47:30 IST Reason: of imprisonment for life imposed upon each of the accused. 1 The High Court also affi rmed the conviction of the appellant/accused Harnam Singh under Section 25(1A) read with Section 27 of the Arms Act and the sentence of three years rigorous imprisonment imposed upon him.

2. Briefly stated case of the prosecution is that on 11.03.1998 at about 05.30 PM, Mohan Mehtar belonging to Scheduled Caste was going on motor cycle along with Santosh Rai (PW-2) and Kamal @ Kamlesh (PW-13) to Railway Colony. When they reached near Advocate Mishra’s lane, accused Harnam Singh, Balvir Singh, Bhav Singh and Bharat Thakur stopped the motor cycle driven by Santosh Rai (PW-2). Accused Harnam Singh asked Mohan Mehtar to come down as they wanted to talk with him. When Mohan Mehtar came down from motorcycle, accused Bharat Thakur attacked Mohan with lathi on his back. When Mohan Mehtar ran towards Advocate Mishra’s lane to save himself, he was caught hold by accused Balvir Singh and Bhav Singh and at that time, accused Harnam Singh fired with the country made pistol on the face of Mohan from very close distance and the bullet hit the brain and cornea of the left eye and Mohan died instantaneously on the spot. The incident was witnessed by Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal @ Kamlesh (PW-13) and others.

3. Informant Santosh (PW-2) lodged the complaint before the Police Station Bina on the basis of which FIR No.114/98 was lodged on 11.03.1998 at 06.00 PM against the appellants for the offence punishable under Sections 341, 294, 323, 302, 506B, 34 IPC and under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Dr. P.K. Jain (PW-9) conducted the post-mortem of deceased Mohan Mehtar and opined that the death was due to gun-shot injury. The bullet hit the brain and cornea of left eye and remaining portion was completely missing. Gun powder was also found present in the eyes. Dr. Jain (PW-9) opined that death was caused due to brain centre present in the skull damaged due to the injuries sustained from the above cartridge which stopped the heart and respiration.

4. The accused persons were arrested and on the basis of their disclosure statement recorded under Section 27 of the Evidence Act, country made pistol of 0.315 bore was seized from the bottom shelf of the almirah in the house of accused Harnam Singh. The blood-stained clothes of Harnam Singh were also recovered. The seized pistol was sent to Forensic Science Laboratory, Sagar. Upon examination of the weapon, the pistol was found to be in operative condition. The damaged copper cartridge which was recovered from the body of the deceased did not have barrel marks. The ballistic 3 expert therefore opined that the barrel marks were not suffi cient for decisive matching. Upon completion of investigation, charge sheet was filed against the accused for the offences punishable under Sections 147, 148, 149, 341, 294, 323, 506B, 302 IPC and under Section 25 read with Section 27 of the Arms Act and under Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in the court of Special Judge, Sagar, M.P.

The accused were acquitted of the charge under Sections 147, 148, 506B IPC and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The trial court acquitted accused Suraj from all the charges. Being aggrieved, the appellants have preferred appeal before the High Court which came to be dismissed by the impugned judgment. Being aggrieved, the appellants are before us. Accused Bharat Singh have not preferred any appeal before us.

14. Contention of the appellants is that the occurrence was a blind murder and testimony of the eye witnesses PWs 2, 3 and 13 are not reliable as the same suffers from material contradictions and inconsistencies. The alleged contradictions in the testimony of the eye witnesses that are being urged by the appellants are trivial i.e. with respect to the number of blows given to the deceased with lathi by accused Bharat Singh, part of the body where the bullet was shot and the distance from where Harnam Singh fired at Mohan etc. Such contradictions pointed out in the evidence of the three eye witnesses are minor which do not affect the core of the prosecution case. The discrepancies pointed out in the evidence of eye witnesses regarding the number of blows, the distance between appellant Harnam Singh and deceased Mohan and the part of the body of deceased where the bullet hit are may be due to normal errors of observation narrating 9 the occurrence, which they have witnessed. The power of observation differs from person to person witnessing an attack. While the prime event of attack and the weapon are observed by a person, other minute details of number of blows, the distance from which the fire was shot might go unnoticed. So long as the evidence of eye witnesses is found credible and trustworthy, their evidence cannot be doubted on the ground of minor contradictions.

19. FIR is a printed format which contains Column No.11 – “Inquest Report”. Column No.11 of the FIR, of course, contains the Inquest No.10/98. Merely because the FIR contains inquest 12 number, it cannot be said that the FIR was registered subsequent to the inquest. In State of Uttar Pradesh v. Ram Kumar and others (2017) 14 SCC 614, the Supreme Court held that “ the mere fact that on the inquest report FIR No. was written by different ink cannot be the basis for observing that the FIR was ante-timed or ante-dated”. On being questioned, Investigating Officer S.D. Khan (PW-14) has stated that he has registered the Inquest Report 10/98 with regard to the death of deceased Mohan under Section 174 Cr.P.C. As seen from the evidence of PW-2, after the occurrence, dead body of Mohan was lying twenty yards away from the road and he went to the police station to lodge the complaint via Lallu fourway and Sarvodya fourway. The inquest being done at the spot and FIR being registered at the Police Station under Sections 302, 506B, 341, 294, 323, 34 IPC and Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, mention of inquest number in the FIR does not affect the prosecution case nor does it affect the credibility of the eye witnesses.

37. Deceased Mohan and accused Harnam Singh were working in the railways and regarding the money transactions, there was enmity between them. It is brought in evidence through PW-2 that 2-3 days prior to the incident, there were arguments and quarrel between accused Harnam Singh and deceased Mohan near the house of PW-2. Accused No.2-Balvir Singh and accused No.3- Bhav Singh are the real brothers of accused No.1-Harnam Singh. Though it is stated that accused Nos.2 and 3 were present along with accused Harnam Singh, the fact remains that they were not armed. After being hit by accused Bharat on the back when Mohan ran, accused Nos.2 and 3 are alleged to have followed him and accused Balvir Singh allegedly caught the right arm of Mohan and accused Bhav Singh held the left arm of Mohan. It is also brought in evidence that accused Bharat was giving lathi blows to Mohan even when he was running. If accused Nos.2 and 3 have shared the common intention, they would also have attacked the deceased; but they were only alleged to have caught hold of the deceased. The prosecution did not bring in evidence that there was prior meeting of minds and that accused Nos.2 and 3 were having knowledge that their brother accused Harnam Singh was armed with katta. The evidence adduced by the prosecution is not convincing to hold that accused Nos.2 and 3 also shared the common intention with the accused Harnam Singh and other accused Bharat in committing the murder of Mohan. Conviction of 23 accused Nos. 2 and 3 under Section 302 read with Section 34 IPC is, therefore, liable to be set aside.

28. Recovery of pistol and FSL report - Based on the confessional statement of appellant-Harman Singh, a country made pistol (Article ‘A’) was recovered from the bottom shelf of the almirah in the house of appellant-Harman Singh. Recovery of country made pistol from the house of appellant-Harman Singh is proved by the evidence of IO S.D. Khan (PW-14).

32. Common intention of Accused Nos.2 and 3:- As discussed earlier, eye witnesses PWs 2, 3 and 13 have consistently stated that on being attacked by accused Bharat with lathi on the back, when deceased Mohan ran towards the street, accused No.2- Balvir Singh and accused No.3-Bhav Singh ran after him and said to have caught hold of Mohan and at that time, Harnam Singh fired from the country made pistol on the face of Mohan. Case of the prosecution is that accused Nos.2 and 3 were present along with Harnam Singh and accused Bharat who were armed with pistol and lathi respectively. The appellants Balvir Singh and Bhav Singh were unarmed and when Mohan ran towards the street, on exhortation by Harnam Singh, accused Nos.2 and 3 ran after Mohan and caught hold of him.

35. In the light of above principles, let us consider whether the prosecution has proved that accused Nos.2 and 3 had the common intention and acted in furtherance of the common intention. Initially, there were five accused and the accused were charged under Sections 147 and 149 IPC along with other charges. Since accused Suraj was acquitted of the charges, placing reliance upon Dhanna v. State of M.P. (1996) 10 SCC 79, the trial court invoked Section 34 IPC to convict accused Nos.2 and 3 under Section 302 IPC read with Section 34 IPC.

36. Whether the courts below were right in convicting accused Nos.2 and 3 by invoking Section 34 IPC, is the point falling for consideration?

38. Conviction of the appellant/accused No.1 Harnam Singh under Sections 302 IPC, 341 IPC and Section 25(1A) read with Section 27 of the Arms Act and the sentence of life imprisonment imposed upon him is affirmed and Criminal Appeal No.1119 of 2010 is dismissed. Accused Harnam Singh shall surrender himself within four weeks from the date of this judgment to serve the remaining sentence, failing which, he shall be taken into custody.

39. Conviction of accused No.2-Balvir Singh and accused No.3- Bhav Singh under Section 302 IPC read with Section 34 IPC and Section 341 IPC is set aside and they are acquitted of the charges under Section 302 IPC read with Section 34 IPC and Section 341 IPC and their appeals Criminal Appeal No.1115 of 2010 and Criminal Appeal No.1116 of 2010 are allowed. Bail bonds of the accused Balvir Singh and Bhav Singh shall stand discharged.

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