S. 307 I.P.C= If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a “vital part” of the body, merely causing ‘hurt’ is sufficient to attract S. 307 I.P.C. = In so far as the case against Accused /Respondent No. 2 – Ramji Lal is concerned; the prosecution has not been able to prove beyond reasonable doubt the charge under Section 307 r. w. Section 34 I.P.C. The High Court has rightly held that there is lack of consistency in the deposition of the Prosecution witnesses with respect to the role of the Accused /Respondent No. 2 – Ramji Lal. We affirm the judgment of the High Court qua Accused No. 2, and confirm the Order of acquittal passed in his favour on 03.01.2006.

Hon'ble Ms. Justice Indu Malhotra


REPORTABLE
  IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1190 OF 2009
State of Madhya Pradesh           …Appellant
Versus
Harjeet Singh & Anr.                               …Respondents
J U D G M E N T
INDU MALHOTRA, J.
1. The present Criminal Appeal has been filed by the State
of Madhya Pradesh against the judgment and order dated
03.01.2006 passed by the Gwalior Bench of the Madhya
Pradesh High Court, in Criminal Appeal No. 657/1998.
The   Criminal   Appeal   was   filed   by   the   Respondents
against their conviction under Section 307 of the Indian
Penal Code (hereinafter referred to as “Section 307”). The
1
High Court reduced the conviction of the Respondents
from Section 307 to Section 324 of the Indian Penal Code
(hereinafter referred to as “Section 324”).
2. The facts of the case, briefly stated, are as under:
2.1 The   case   of   the   Complainant   –   Sukhdev,   as
recorded in the F.I.R., is that on 12.11.1997 the
Complainant­Sukhdev along with his brothers –
Balveer Yadav and Deshraj Yadav, had gone to
the   District   Court,   Ashok   Nagar   to   attend   the
hearing   of   their   case   against   Accused
/Respondent   No.   1   –  Harjeet   Singh.   After   the
hearing,   at   around   noon,   the   Complainant   –
Sukhdev and his brothers crossed the road, and
were standing in front of the Jail, when Ramji Lal
–   Accused   /Respondent   No.   2   alongwith   an
unidentified assailant called Sardar caught hold
of Balveer Yadav and Deshraj Yadav. The Accused
/Respondent No. 1 – Harjeet Singh grabbed the
Complainant – Sukhdev, and stabbed him several
times with a knife, inflicting blows on the chest,
scapula, back, and hips.
2
Accused /Respondent Nos. 1 and 2, alongwith
Sardar ran away from the spot. The Complainant
– Sukhdev further stated that he would be able to
identify   Harjeet   Singh,   and   the   two   assailants
once he sees them.
2.2 Immediately after the assault on 12.11.1997, the
Complainant – Sukhdev was admitted to the Civil
Hospital, Ashok Nagar for treatment.
2.3 The medical examination of the Complainant –
Sukhdev   was   conducted   by   Dr.   M.   Bhagat   –
P.W.6 at the Civil Hospital, Ashok Nagar, which
recorded the following injuries :
(i) Stab Wound – 3.5 x 1 cm – deep in the chest
cavity, over the left side of the chest.
(ii) Spindle shaped incised wound – 3 x 2 cm –
muscle deep, present on the upper region of
the right buttocks.
(iii) Stab Wound – 2 x 1 cm – over sub­scapula
region, left side. Bleeding was present.
(iv) Stab Wound – 1 x 1 cm – over illeal region of
hip, left side. Bleeding was present.
3
The medical report further stated that the
injuries were caused by a sharp­edged, pointed
object. 
2.4 The Complainant – Sukhdev was referred to the
District   Hospital,   Guna   wherein   X­Ray   of   his
chest   region   was   conducted   by   P.W.   8   –   Dr.
Raghuvanshi. The Report states that there was
“haziness in lungs, left side of chest, present due
to trauma of chest”.
Dr.   Raghuvanshi   –   P.W.   8   stated   in   his
deposition that the lungs of the Complainant –
Sukhdev suffered injury, which resulted in blood
seeping in the lungs, leading to haziness in the XRay image.
2.5 On 24.11.1997, the Accused /Respondent Nos. 1
and 2 were arrested by the Police. The weapon of
offence  i.e.  the knife allegedly used by Accused
/Respondent   No.   1   was   recovered   from   the
bushes next to the bridge, on the statement given
by Accused /Respondent No. 1.
4
2.6 The Spot Map of the crime scene was prepared,
samples of blood­stained soil, and ordinary soil,
were recovered from the scene of the crime.
2.7 The   Accused   /Respondent   No.   1   was   charged
under Section 307, while Accused /Respondent
No.  2 was charged under Section 307 read with
Section 34 of the I.P.C.
2.8 The case was registered as Case No. 10/98 before
the   First   Addl.   Sessions   Judge,   Ashok   Nagar,
Guna District, Madhya Pradesh (Sessions Court).
2.9 The   Sessions   Court  vide  Judgment   dated
30.11.1998, found Accused /Respondent Nos. 1
and 2 guilty of the offence of ‘attempt to murder’.
The   findings   of   the   Sessions   Court   were   as
follows:
i. The Complainant – Sukhdev, and his brothers
– Deshraj Yadav and Balveer Yadav who were
eye­witnesses of the crime, and were present at
the scene of occurrence, and were examined by
the Court as P.W.s 2, 4, and 5 respectively.
Their evidence was held to be reliable, and was
corroborated by the examination of P.W. 3 – an
independent   witness   who   was   an   Advocate.
5
P.W. 3 appeared before the Court, and deposed
that   on   12.11.1997   he   heard   a   commotion
outside the Court. On reaching the spot, he
found   the   Complainant   –   Sukhdev   (P.W.   2)
lying in a pool of blood. On further inquiry, he
was told that the Accused /Respondent No. 1 –
Harjeet Singh had stabbed the Complainant –
Sukhdev (P.W. 2) multiple times.
ii. The medical evidence was held to be sufficient
to   prove   that   the   injuries   inflicted   by
Accused   /Respondent   No.   1   upon   the
Complainant – Sukhdev (P.W. 2) could be fatal.
iii. With respect to Accused /Respondent No. 2 –
Ramji   Lal,   the   F.I.R.   stated   that   the
Accused   /Respondent   No.    2   along  with   an
unidentified Sardar held the brothers of the
Complainant   (P.W.s   4   and   5),   while   the
Accused   /Respondent   No.   1   stabbed   the
Complainant   –   Sukhdev   (P.W.   2)   multiple
times.
iv. During the trial, the Complainant – Sukhdev
(P.W.   2)   deposed   that   Accused   /Respondent
No.   2   –   Ramji   Lal   grabbed   him   when
6
Accused /Respondent No. 1 – Harjeet Singh
stabbed him multiple times.
v. The Sessions Court held the prosecution had
proved the case beyond reasonable doubt.
It was held that the Accused /Respondent
No. 2 would be equally guilty. The common
intention of Accused /Respondent No. 2 was
proved by the assistance provided by him to
Accused /Respondent No. 1, in committing the
offence.
vi. The   Sessions   Court   convicted   the   Accused
/Respondent   No.   1   under   Section   307,
sentencing him to 5 years R.I. along with a
Fine of Rs. 1000/­.
Accused /Respondent No. 2 was convicted
under Section 307 read with Section 34 I.P.C.
and sentenced to 5 years R.I. along with a fine
of Rs. 1000/­.
2.10 Both   the   Accused   /Respondents   filed   a   common
appeal to challenge their conviction by the judgment
dated   30.11.1998   before   the   Madhya   Pradesh   High
Court being Criminal Appeal No. 657/1998.
2.11 The   Madhya   Pradesh   High   Court  vide  Impugned
Judgment dated 03.01.2006 partly allowed the Appeal
7
filed by the Accused /Respondents. It was held that
the   Complainant   –   Sukhdev   (P.W.   2)   had   nowhere
stated in his deposition/evidence that the intention of
the Accused /Respondents was to commit murder.
The   High   Court   held   that   the   Complainant   –
Sukhdev (P.W. 2) suffered four injuries. One of the
injuries was on the left side of the chest. The depth of
this injury was upto the cavity over the left side of the
chest, but the lung was not affected. The other three
injuries sustained by the Complainant – Sukhdev, are
on the back, and the hips. The Accused /Respondents
having an intention to commit murder would never
cause injuries over such “unimportant” parts of the
body.
It was also noted that the knife by which the
injuries   were   allegedly   inflicted   had   a   blade   of   five
fingers which could not be more than four inches.
With   regard   to   the   liability   of   the   Accused
/Respondent No. 2 – Ramji Lal, the High Court held
that there appears to be lack of consistency in the
statements of the Complainant – Sukhdev and his two
brothers who were eye­witnesses :
8
a. The first version of the Complainant – Sukhdev
(P.W. 2) which has been written in the  Dehati
Nalsi, is that the Accused /Respondent No. 2 –
Ramji   Lal,   and   one   unknown   Sardar   both
caught   hold   of   his   two   brothers.   It   is   not
mentioned   in   this   document   that   Accused
/Respondent No. 2 – Ramji Lal or the other
unknown  Sardar, caught   hold  of  him  at  the
time of the incident. Conversely, in paragraph 2
of his statement, the Complainant – Sukhdev
has   stated   that   he   was   held   by   Accused
/Respondent No. 2 – Ramji Lal at the time of
the incident, and in paragraph 5 he has stated
that after sustaining the injuries of the knife,
Accused /Respondent No. 2 caught hold of his
brother Deshraj (P.W. 4).
b. On the other hand, Deshraj Yadav (P.W. 4) –
the first brother of the Complainant – Sukhdev,
has   stated   that   he   was   being   held   by   one
unknown   Sardar   and   not   by   Accused
/Respondent No. 2.
9
c. Balveer Yadav (P.W. 5) – the second brother of
the Complainant – Sukhdev, has stated that he
was being held by Accused /Respondent No. 2 –
Ramji   Lal   and   his   brother   was   held   by   one
unknown Sardar.
The   High   Court   found   that   there   was   no
consistency in the deposition of P.Ws 2, 4, and 5
read   with   the   F.I.R.   Considering   these
circumstances, it was held that there could be no
presumption that Accused /Respondent No. 2 –
Ramji   Lal   had   committed   any   act   having   a
common intention with the Accused /Respondent
No. 1 – Harjeet Singh, in causing the injuries to
the Complainant – Sukhdev (P.W. 2).
The   mere   fact   that   Accused   /Respondent
No. 2 had accompanied Accused /Respondent No.
1   cannot   raise   the   presumption   of   having
common intention.
It was further held that it was not justifiable
to conclude that the Accused /Respondents had
any intention to commit murder, or cause such
injury   which   could   have   been   deemed   as
10
sufficient to cause death in the ordinary course of
nature. At most, the act of causing the injuries
could   be   held   punishable   under   Section   324,
I.P.C.   as   punishment   for   voluntarily   causing
simple hurt.
The High Court converted the conviction of
Accused /Respondent No. 1 from Section 307 to
Section 324 I.P.C. and reduced the sentence to
one year R.I. and a Fine of Rs. 1,000. The period
already   undergone   would   be   adjusted   in   the
sentence awarded to him.
Accused /Respondent No. 2 was acquitted and
his conviction from the charge of Section 307 was
set­aside.
3. The State filed the present Special Leave Petition, against
the Judgment and Order of the Madhya Pradesh High
Court   dated   03.01.2006.   Special   leave   to   appeal   was
granted vide Order dated 08.07.2009. 
4. We   have   heard   learned   Counsel   for   both   the   parties,
considered the submissions, and perused the evidence
record.
5.     FINDINGS AND ANALYSIS
5.1 In the present case, a perusal of the facts and the
record clearly indicate that the prosecution has
11
proved   beyond   reasonable   doubt   that   Accused
/Respondent No. 1 – Harjeet Singh had inflicted
four   injuries,   on   the   Complainant   by   using   a
knife.
The oral testimonies of Deshraj Yadav (P.W.
4) and Balveer Yadav (P.W. 5) – the brothers of
the   Complainant   –   Sukhdev   who   were   eye
witnesses,   stood   corroborated   by   the   medical
evidence.
5.2 The prosecution also examined an independent
witness – Advocate (P.W. 3), who had come to the
Court, and after hearing the commotion, reached
the   site   of   occurrence,   where   he   found   the
Complainant – Sukhdev lying in a pool of blood
along with his brothers – P.W.s 4 and 5. The
independent witness – Advocate (P.W. 3) deposed
that on enquiring further about the matter, he
was informed by P.W.s 4 and 5 – the brothers of
the   complainant   –   Sukhdev,   that   Accused
/Respondent No. 1 – Harjeet Singh had attacked
and stabbed the Complainant.
12
5.3 Dr. Raghuvanshi – the Radiologist (P.W. 8) has
stated in his deposition that the injury caused to
the   Complainant   ­   Sukhdev   in   the   chest   had
resulted   in   blood   seeping   into   the   lungs.   The
Medical Report records that the first stab wound
was inflicted on the chest of the Complainant,
which   injured   his   lung,   and   caused   bleeding.
Hence, the finding of the High Court that the stab
wound on the chest remained upto the depth of
the cavity over left side of the chest and the lungs
were   not   affected,   is   factually   incorrect,   and
contrary to the medical record.
5.4 The Accused /Respondent No. 1 inflicted other
stab wounds on the scapula, which were bleeding
even   at   the   time   when   the   Complainant   –
Sukhdev (P.W. 2) was examined at the Hospital.
There   was   also   a   stab   wound   present   on   the
upper region of the right buttock, and another
one over the illeal region of the left hip which was
bleeding at the time of the medical examination.
13
The injuries inflicted on the Complainant –
Sukhdev (P.W. 2) have been corroborated by the
medical   evidence   on   the   basis   of   the   medical
reports and the depositions of Dr. Bhagat (P.W. 6)
and Dr. Raghuvanshi (P.W. 8).
Dr. Raghuvanshi (P.W. 8) has stated that
the   blood   seeping   in   the   left   lung   of   the
Complainant – Sukhdev (P.W. 2), was due to the
injury sustained on  the chest. Such an  injury
could not be considered to be an injury on an
“unimportant part” of the body.
The   findings   of   the   High   Court   that   the
injuries inflicted were on “unimportant parts” of
the Complainant’s body, is erroneous.
5.5 The act of stabbing a person with a sharp knife,
which   is   a   dangerous   weapon,   near   his   vital
organs, would ordinarily lead to the death of the
victim.
The weapon of offence was a 4­inch long
knife   which   is   a   dangerous   weapon.   The
Accused /Respondent No. 1 had assaulted the
Complainant   with   the   said   knife,   and   inflicted
14
multiple injuries on his chest, scapula, back, and
buttocks.   The   multiple   blows   inflicted   by   the
Accused   /Respondent   No.   1   would   prove   the
intention of causing bodily injury likely to cause
the death of the victim. Stabbing a person with a
knife,   near   his   vital   organs   would   in   most
circumstances lead to the death of the victim,
thereby   falling   squarely   within   the   meaning   of
Section 307.
5.6 Section 307 uses the term “hurt” which has been
explained   in   Section   319,   I.P.C.;   and   not
“grievous hurt” within the meaning of Section 320
I.P.C.
If a person causes hurt with the intention or
knowledge   that   he   may   cause   death,   it   would
attract Section 307.
This   Court   in  R.   Prakash  v.  State   of
Karnataka,
1
 held that :
“…The first blow was on a vital part,
that is on the temporal region.  Even
though other blows were on non­vital
parts,   that   does   not   take   away   the
    rigor   of     Section   307 IPC…….   It   is
sufficient   to   justify   a   conviction
under Section   307 if   there   is   present
1 (2004) 9 SCC 27
15
an intent coupled with some overt act
in execution thereof. It is not essential
that bodily injury capable of causing
death   should   have   been   inflicted.
Although the nature of injury actually
caused   may   often   give   considerable
assistance in coming to a finding as to
the   intention   of   the   accused,  such
intention may also be  deduced from
other circumstances, and may even, in
some   cases,   be   ascertained   without
any reference at all to actual wounds.
The   Sections   makes   a   distinction
between the act of the accused and its
result, if  any. The  Court  has  to  see
whether   the   act,   irrespective   of   its
result, was done with the intention or
knowledge   and   under   circumstances
mentioned in the Section.”
(emphasis supplied)
If the assailant acts with the intention or
knowledge that such action might cause death,
and hurt is caused, then the provisions of Section
307   I.P.C.   would   be   applicable.   There   is   no
requirement for the injury to be on a “vital part”
of the body, merely causing ‘hurt’ is sufficient to
attract S. 307 I.P.C.2
 
This Court in Jage Ram v. State of Haryana3
held that:
“12.   For   the   purpose   of   conviction
under Section   307 IPC,   prosecution
2 State of Madhya Pradesh v. Mohan & Ors, (2013) 14 SCC 116
3 (2015) 11 SCC 366
16
has   to   establish   (i)   the   intention   to
commit murder and (ii) the act done by
the   accused.   The   burden   is   on   the
prosecution   that   accused   had
attempted to commit the murder of the
prosecution   witness.   Whether   the
accused   person   intended   to   commit
murder   of   another   person   would
depend   upon   the   facts   and
circumstances of each case. To justify
    a conviction under     Section 307 IPC, it
is   not   essential   that   fatal   injury
capable of causing death should have
been caused.  Although the nature of
injury   actually   caused   may   be   of
assistance in coming to a finding as to
the   intention   of   the   accused,   such
intention may also be adduced from
other circumstances. The intention of
the accused is to be gathered from the
circumstances   like   the   nature   of   the
weapon   used,   words   used   by   the
accused   at   the   time   of   the   incident,
motive   of   the   accused,   parts   of   the
body   where   the   injury   was   caused
and the nature of injury and severity
of the blows given etc.”
(emphasis supplied)
This Court in the recent decision of State of
M.P. v. Kanha @ Omprakash4
 held that:
“The   above   judgements   of   this   Court
lead us to the conclusion  that proof of
grievous or life­threatening hurt is not a
sine   qua   non   for   the   offence   under
Section   307   of   the   Penal   Code.   The
intention   of   the   accused   can   be
ascertained   from   the   actual   injury,   if
any,   as   well   as   from   surrounding
circumstances. Among other things, the
nature   of   the   weapon   used   and   the
4 Criminal Appeal No. 1589/2018, decided on 04.02.2019.
17
severity of the blows inflicted can be
considered to infer intent.”
(emphasis supplied)
5.7 In   view   of   the   above­mentioned   findings,   it   is
evident that the ingredients of Section 307 have
been   made   out,   as   the   intention   of   the
Accused /Respondent No. 1 can be ascertained
clearly from his conduct, and the circumstances
surrounding the offence.
5.8 In   the   Impugned   Judgment,   the   High   Court
incorrectly held that  the Prosecution  has  been
unable to prove that the Accused /Respondent
No. 1 had the intention to commit murder of the
Complainant.  The   motive   of   assault   by   the
Accused /Respondent No. 1 on the Complainant
–Sukhdev (P.W. 2) was clearly established by the
Prosecution, since there was an existing dispute
which was the subject matter of a court case.
5.9 It is evident from the evidence adduced before the
Court,  and  the  circumstances  surrounding  the
case, that the prosecution has been able to prove
the   case   against   Accused   /Respondent   No.   1
beyond   reasonable   doubt.   We   find   that   the
18
prosecution   has   successfully   proved   that   the
Accused /Respondent No. 1 – Harjeet Singh had
attempted to murder the Complainant – Sukhdeo
and the requirements of Section 307 are made
out   from   the   ocular   evidence   which   are
corroborated by the medical evidence.
5.10 In view of the above­mentioned discussion, the
High Court was in error in reducing the sentence
of Accused /Respondent No. 1 – Harjeet Singh
from Section 307 I.P.C. to Section 324 I.P.C., and
sentencing him to 1 year R.I. along with Fine of
Rs. 1,000.
6. The present Criminal Appeal is partially allowed. The
judgment of the High Court qua  Accused /Respondent
No. 1, is set­aside, and the sentence awarded to him by
the Sessions Judge vide Judgment dated 30.11.1998 is
restored. The Accused /Respondent No. 1 is directed to
undergo the remainder of the 5 year Sentence awarded
by   the   Sessions   Court,   and   surrender   before   the
Sessions   Court,   Ashok   Nagar,   Guna,   M.P.   within   2
weeks from the date of this Judgment.
19
7. In so far as the case against Accused /Respondent No. 2
– Ramji Lal is concerned; the prosecution has not been
able to prove beyond reasonable doubt the charge under
Section 307 r. w. Section 34 I.P.C. The High Court has
rightly   held   that   there   is   lack   of   consistency   in   the
deposition of the Prosecution witnesses with respect to
the role of the Accused /Respondent No. 2 – Ramji Lal. 
We  affirm  the  judgment  of  the  High  Court  qua
Accused   No.   2,   and   confirm   the   Order   of   acquittal
passed in his favour on 03.01.2006.
The   Criminal   Appeal   along   with   all   pending
Applications,   if   any,   are   disposed   of   in   the   above
terms.
Ordered accordingly.
…….........................J.
(L. NAGESWARA RAO)
…….........................J.
 (INDU MALHOTRA)
New Delhi,
February 19, 2019
20

prior meeting of minds - Section 34 IPC to convict accused = 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. 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.

Hon'ble Mrs. Justice R. Banumathi 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1115 OF 2010
BALVIR SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent

WITH
CRIMINAL APPEAL NO.1116 OF 2010
BHAV SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent
CRIMINAL APPEAL NO.1119 OF 2010
HARNAM SINGH …Appellant
VERSUS
STATE OF MADHYA PRADESH …Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated
26.08.2008 passed by the High Court of Judicature at Madhya
Pradesh at Jabalpur in and by which the High Court affirmed
the conviction of the appellants (Accused No.1 to 4) under
Sections 341, 302 and 302 read with 34 IPC and the sentence
of imprisonment for life imposed upon each of the accused.
1
The High Court also affirmed the conviction of the
appellant/accused Harnam Singh under Section 25(1A) read
with Section 27 of the Arms Act and the sentence of three
years 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.
2
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
sufficient for decisive matching. Upon completion of
investigation, charge sheet was filed against the accused for
the offences punishable under Sections 147, 148, 149, 341,
294, 323, 506B, 302 IPC and under Section 25 read with
Section 27 of the Arms Act and under Section 3(2)(V) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act in the court of Special Judge, Sagar, M.P.
5. To bring home the guilt of the accused, prosecution has
examined fourteen witnesses and marked number of
documents. On the side of the accused, Babu Lal (DW-1) was
examined who had stated that the occurrence took place at
03:30 PM on 11.03.1998 and he had not seen any of the
accused on the spot at the relevant point of time. All the
accused were questioned under Section 313 Cr.P.C. about the
incriminating evidence and circumstances and the accused
denied all of them stating that a false case has been filed
against them.
6. Upon consideration of oral and documentary evidence,
the trial court convicted the accused and sentenced them to
undergo imprisonment as under:-
Accused Conviction Sentence
Harnam Singh (A1) Section 341 IPC
Section 302 IPC
R.I. for one month
Life imprisonment with
fine of Rs.1,000/-
4
Section 25(1A)/27
of Arms Act
R.I for three years with
fine of Rs.1,000/-
Balvir (A2)
Bhav Singh (A3)
Bharat Singh (A5)
Section 341 IPC
Section 302/34 IPC
One month R.I.
Life imprisonment with
fine of Rs.1,000/- each
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.
7. The learned counsel for the appellants inter alia
submitted that it is a case of blind murder and that the FIR is
ante dated as it contains the Inquest No.10/98 and the eye
witnesses were introduced in the FIR which suffers from
manipulations. It was submitted that the medical evidence is
completely contrary to the evidence adduced by eye
witnesses on two counts namely:- (i) number of weapons used
and the injuries; and (ii) distance from which the shot was
fired. It was urged that as per the FSL Report, there was no
sufficient barrel marks in the cartridge for decisive matching
with the pistol allegedly recovered from the appellant Harnam
Singh and this raises serious doubts about the occurrence and
5
the involvement of appellant Harnam Singh. It was further
submitted that as per the evidence of Babu Lal (DW-1), the
incident took place at 03.30 PM and it was a blind murder and
the High Court and the trial court failed to take into
consideration the evidence of Babu Lal (DW-1). The learned
counsel appearing for the appellants Balvir Singh and Bhav
Singh urged that the eye witnesses PWs 2, 3 and 13 are not
reliable witnesses and the courts below erred in invoking
Section 34 IPC for convicting appellants Balvir Singh and Bhav
Singh under Section 302 IPC read with Section 34 IPC.
8. Taking us through the impugned judgment and other
materials on record, the learned counsel appearing for the
State submitted that the conviction of the appellants is based
upon the evidence of eye witnesses Santosh Rai (PW-2),
Devendra Rai (PW-3) and Kamal (PW-13) which is corroborated
by the medical evidence and FSL Report and the conviction of
the appellants-accused does not warrant any interference.
9. We have carefully considered the submissions of the
learned counsel for the appellants and the State and perused
the impugned judgment and the evidence and materials on
record.
10. Santosh Rai (PW-2) and Kamal (PW-13) who were going
along with deceased Mohan on the motor cycle, are the eye
6
witnesses. The prosecution has also examined Devendra Rai
(PW-3) as another eye witness. In his evidence, PW-2 stated
that on 11.03.1998 at 05.30 PM, he was riding the motor
cycle and deceased Mohan and Kamal (PW-13) were with him
on the motor cycle. PW-2 had stated that on being stopped by
appellant Harnam Singh, Mohan got down from the motor
cycle and accused Bharat gave him a blow of lathi on his
back. After the deceased was so attacked with blow of lathi,
there was scuffle and the deceased ran away towards
Advocate Mishra’s lane to save himself. PW-2 further stated
that at that time appellant Harnam Singh exhorted to catch
hold of Mohan and accused Balvir (A2) and Bhav Singh (A3)
caught hold of Mohan. Appellant Harnam Singh went close to
Mohan and shot him on his face with his country made pistol.
PW-13 who was sitting behind Mohan on the motor cycle has
also clearly spoken about the occurrence and thus
corroborated the evidence of PW-2.
11. Devendra Rai (PW-3) had also corroborated the evidence
of PW-2 that he saw the motor cycle being stopped by
appellant Harnam Singh and that he took Mohan towards the
street. PW-3 stated that when Mohan got down, first blow of
lathi was hit at his waist by accused Bharat and when Mohan
ran towards the street, on being exhorted by Harnam Singh,
accused Balvir Singh and Bhav Singh caught hold of Mohan
7
and appellant Harnam Singh fired at the face of Mohan from
country made pistol. PW-3 had spoken about the presence of
PW-2 and PW-13 at the scene of occurrence along with
deceased Mohan.
12. Case of prosecution is assailed on the ground that it was
a blind murder and that there were actually no eye witness
and the eye witnesses were introduced in the FIR which was
prepared subsequently. There is no merit in the contention
that there were no eye witnesses for the occurrence and that
it was a blind murder. Santosh Rai (PW-2) and Kamal (PW-13)
have explained as to how they happened to be with deceased
Mohan by going along with him on the motor cycle. Likewise,
PW-3 has also stated that at about 05.00 PM-06.00 PM, he had
gone to the Jhansi Gate which is on the other side of the
railway line and at that time, he saw PW-2, PW-13 and Mohan
coming on the motor cycle. The presence of all the three
witnesses as spoken by them is natural and both the courts
below held that their evidence inspires confidence. It is
pertinent to note that the FIR registered at 06.00 PM on
11.03.1998 also contains the names of PW-2, PW-3 and PW13.
13. PWs 2, 3 and 13 had given a consistent and clear
account of the incident. All the three eye witnesses have
8
attributed specific overt act of beating the deceased with
lathi to accused Bharat Singh, specific overt act of chasing
the deceased and holding him by accused No.2-Balvir Singh
and accused No.3-Bhav Singh and the specific overt act of
firing at the deceased to accused No.1-Harnam Singh. Upon
consideration of the evidence of eye witnesses PWs 2, 3 and
13, the trial court found that the evidence of the eye
witnesses is credible and trustworthy.
14. Contention of the appellants is that the occurrence was
a 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.
15. It is fairly well settled that the minor discrepancies in the
evidence of the eye-witnesses do not shake their trustworthiness.
In Appabhai and Another v. State of Gujarat 1988 Supp
SCC 241, the Supreme Court held as under:-
“13. ………. The discrepancies which do not shake the basic
version of the prosecution case may be discarded. The
discrepancies which are due to normal errors of perception or
observation should not be given importance. The errors due
to lapse of memory may be given due allowance. The court
by calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record by
excluding the exaggerated version given by any witness.
When a doubt arises in respect of certain facts alleged by
such witness, the proper course is to ignore that fact only
unless it goes into the root of the matter so as to demolish
the entire prosecution story. The witnesses nowadays go on
adding embellishments to their version perhaps for the fear of
their testimony being rejected by the court. The courts,
however, should not disbelieve the evidence of such
witnesses altogether if they are otherwise trustworthy……...”.
10
16. The well-settled principle that minor discrepancies in the oral
testimony of the witnesses do not affect the trustworthiness of the
witnesses, has been reiterated in Annareddy Sambasiva Reddy
and Others v. State of Andhra Pradesh (2009) 12 SCC 546 and
Rammi alias Rameshwar v. State of M.P. (1999) 8 SCC 649. In
the present case, the contradictions pointed out in the evidence of
Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal (PW-13) are
only normal discrepancies which are due to normal errors of
observation which, in our view, do not affect the trustworthiness of
these witnesses.
17. Credibility of Devendra Rai (PW-3) is assailed on the ground
that he is involved in about 10-15 criminal cases including a
murder case. During his cross-examination, a suggestion was put
to him that accused No.2-Balvir Singh had given testimony against
PW-3 and he has enmity towards Balvir Singh and his family and
therefore, he is falsely deposing against the accused Nos.1 to 3
who are real brothers. It was also suggested to PW-3 that his
father has registered a case against accused Harnam Singh and
Balvir Singh and that they were acquitted in the said case about
which PW-3 denied having any knowledge. PW-3 has denied being
involved in any criminal case; however, he has admitted that
proceedings under Section 110 Cr.P.C. were initiated against him.
Testimony of PW-3 cannot be doubted on the ground that he is
involved in criminal cases or that he is inimical towards Balvir
11
Singh and Harnam Singh. It is pertinent to note that name of PW3 has been mentioned even in the FIR that he had gone with
deceased Mohan on the motor cycle. The antecedents of the
prosecution witnesses cannot be the ground for doubting their
version. This is all the more so, when the courts below have
recorded concurrent findings of fact holding that the testimony of
the witnesses is credible and acceptable.
18. Re: Contention – Mention of Inquest Number in the FIR
The learned counsel appearing for appellant Harnam Singh has
drawn our attention to the FIR - Column No.11, Inquest Report –
Case No.10/98 and contended that the FIR contains the Inquest
No.10/98 whereas the number of FIR has not been mentioned in
the Inquest Report. It was urged that the very mention of Inquest
Number in the FIR and non-mentioning of FIR Number in the
Inquest Report raises serious doubt about the time and the
manner of occurrence as alleged by the prosecution. Refuting the
said contention, the learned counsel appearing for the State
submitted that the FIR which gives an option to mention inquest
number as against that column in the printed form, inquest
number was handwritten and it cannot be said that the FIR was
registered subsequent to the inquest.
19. FIR is a printed format which contains Column No.11 –
“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.
20. Delay in FIR – For the occurrence on 11.03.1998 at
05.30 PM, FIR No.114/98 was registered on the same day at
06.00 PM. As per the evidence of Constable Radhey Shyam
(PW-10), FIR was handed over before the Court of JMFC, Bina on
12.03.1998. So far as the contention regarding delay in receipt of
the FIR in the court, the trial court held that not sending the FIR
13
immediately to the Court after its registration, cannot be put
against the prosecution case since after 05.30 PM, the court timing
gets over and in these circumstances, production of FIR before the
Court on the next day during the court timings does not indicate
that the FIR is ante dated. The case of prosecution, in our view,
cannot be doubted on the ground of delay in receipt of the FIR in
the court.
21. Re: Contention - Inconsistency between the Medical
Evidence and Oral Evidence – In his evidence, PW-2 has stated
that Harnam Singh fired shot at Mohan’s face and PWs 3 and 13
stated that Harnam Singh fired at the left eye of Mohan. As
pointed out earlier, in his evidence, Dr. P.K. Jain (PW-9) stated that
the cornea and remaining part of the left eye was completely
missing and a bullet was found near the cerebellum. Gun powder
was found present in the eyes of the deceased. PW-9 opined that
the cause of death was due to damage of brain centre present in
the skull due to injuries caused by the cartridge which resulted in
stoppage of heart beat and respiration. As per the opinion of Dr.
Jain (PW-9), death was caused mainly due to bullet hit in the brain.
On being questioned, PW-9 stated that the fire was from a close
distance as seen from the presence of gun powder in the left eye
of the deceased. Dr. Jain has opined that since there were marks
of gunshot around the left eye, the shot must have been fired from
very close distance of about one foot.
14
22. Contention of the appellant is that PW-2 in his evidence
stated that Harnam Singh was about 1-2 yards away from
deceased Mohan at the time when the bullet was fired. It was
therefore contended that the contradictions regarding the distance
from which the accused Harnam Singh fired at Mohan raises
serious doubts about the prosecution case.
23. Of course, PW-2 has stated that when Harnam Singh fired, he
was at a distance of 1-2 yards away from Mohan; but PWs 3 and
13 have clearly stated that the deceased was held by appellants
Balvir Singh and Bhav Singh and Harnam Singh fired at the
deceased from a close distance. As pointed out earlier, accused
Balvir Singh and Bhav Singh were said to be holding the hands of
the deceased and it is possible that the gun shot hit at the eyes of
Mohan. All three eye witnesses have consistently stated that
Harnam Singh fired the gunshot at the face of Mohan. The
variation in the evidence of PW-2 as to the distance from which
the bullet was fired cannot be said to be fatal affecting the
prosecution case.
24. It has been urged by the learned counsel for the appellant
Harnam Singh that the doctor who conducted the post-mortem
had not marked the track of the bullet in his report. It was
submitted that when the deceased was shot, the position of his
face was upwards and when the face is up, it is doubtful that
Harnam Singh could have fired at the eyes of the deceased. As
15
pointed out by the trial court, during the course of scuffle and
when the deceased was running away to save himself, the position
of the face of deceased cannot be ascertained as being upwards or
not so as to doubt the prosecution version that the gunshot hit at
the left eye of Mohan. The above contention advanced on the
basis of the opinion of the doctor cannot affect the oral evidence
of the eye witnesses.
25. Apart from the gunshot injuries which caused the death,
there were nine other injuries found on the body of deceased
Mohan. Mohan sustained bruise on the left arm, left side of the
chest; contusion and lacerated wound in the middle of the head
and incised wound on the left side of the chin. Dr. Jain (PW-9)
opined that the injuries sustained by the deceased on his back and
arms were of different shapes and therefore, there is a possibility
that they must have been caused by different weapons. In an
attack on the person, the nature of injuries sustained depends
upon the manner of attack and how the person was positioned and
the resistance offered by him. Mohan was indiscriminately
attacked by accused Bharat Singh with lathi and there is possibility
of the deceased sustaining injuries of different shapes. Merely
because deceased Mohan sustained injuries of different shapes, on
the opinionative medical evidence, the consistent evidence of eye
witnesses cannot be doubted.
16
26. It is well settled that the oral evidence has to get primacy
since medical evidence is basically opinionative. In Ramanand
Yadav v. Prabhu Nath Jha and others (2003) 12 SCC 606, the
Supreme Court held as under:-
“17. So far as the alleged variance between medical
evidence and ocular evidence is concerned, it is trite law that
oral evidence has to get primacy and medical evidence is
basically opinionative. It is only when the medical evidence
specifically rules out the injury as is claimed to have been
inflicted as per the oral testimony, then only in a given case
the court has to draw adverse inference.”
The same principle was reiterated in State of U.P. v. Krishna
Gopal and another (1988) 4 SCC 302, where the Supreme Court
held “that eyewitnesses’ account would require a careful
independent assessment and evaluation for their credibility which
should not be adversely prejudged making any other evidence,
including medical evidence, as the sole touchstone for the test of
such credibility.”
27. The inconsistencies pointed out in the evidence of eyewitnesses inter se and the alleged inconsistencies between the
evidence of eye-witnesses and that of the medical evidence are
minor contradictions and they do not shake the prosecution case.
The evidence of eye witnesses are the eyes and ears of justice.
The consistent version of PWs 2, 3 and 13 cannot be decided on
the touchstone of medical evidence.
17
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).
29. Ext.-P30 is the FSL report as per which the pistol (Article ‘A’)
is a country made pistol which was found to be in operative
condition and the testing was successfully done. The bullet
recovered from the body of deceased Mohan was marked as EB1.
In the FSL report, expert opined that the barrel marks found on the
cartridge were not sufficient for decisive matching. The FSL report
reads as under:-
“Exhibit A1 is one Country Made Pistol, which is made to fire
0.315” bore Cartridge. It is in working condition. It’s Barrel is
found to have remnants of firing. It is not possible to say with
scientific certainty the last time this was fired. It can be fired to
cause injury likely to cause death.
Exhibit EB1 is one 0.315” bore cartridge like bullet. It is copper
jacketed/of soft point and is partially damaged. It does not have
marks of regular firing. It has barrel marks which are not
sufficient. Thus in absence of matching it is not possible to say
whether this is fired from Exhibit A1 or any other similar pistol
like Exhibit A1.” [underlining added]
From the FSL report (Ext.-P30), it is made clear that the pistol
recovered from accused Harnam Singh was in working condition
and that the fatal injuries could be caused from using the said
18
country made pistol (Article ‘A’) recovered from appellant-Harman
Singh.
30. Learned counsel appearing for the appellant-Harnam Singh
submitted that as per the FSL report, the experts could not give a
definite opinion that whether the bullet has been fired from the
country made pistol recovered from appellant-Harman Singh or
any other similar pistol like the said pistol. It was therefore,
submitted that the prosecution has failed to prove that the
recovered bullet from the body of deceased has been fired from
the pistol (Article ‘A’) and therefore, the overt-act of firing
cannot be attributed to appellant-Harnam Singh. In the FSL report,
it is stated that bullet was “a fired and partially damaged Copper
Cartridge/Soft Point Bullet with blood like substance on the same”.
The FSL report further states that the cartridge does not have
marks of regular rifling and the barrel marks found are not
sufficient for decisive matching. All that the FSL report states is
that the barrel marks are not sufficient to give decisive matching.
When the case of the prosecution is based on the eye-witnesses,
the indecisive opinion given by the experts would not affect the
prosecution case.
31. The next point falling for consideration is whether the trial
court and the High Court were right in convicting the accused
Nos.2 and 3 under Section 302 IPC read with Section 34 IPC that
19
they have acted in furtherance of common intention in committing
the murder of Mohan.
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.
33. To invoke Section 34 IPC, it must be established that the
criminal act was done by more than one person in furtherance of
common intention of all. It must, therefore, be proved that: (i)
there was common intention on the part of several persons to
commit a particular crime, and (ii) the crime was actually
committed by them in furtherance of that common intention. The
essence of liability under Section 34 IPC is simultaneous conscious
mind of persons participating in the criminal action to bring about
a particular result. Minds regarding sharing of common intention
20
gets satisfied when an overt act is established qua each of the
accused. Common intention implies pre-arranged plan and acting
in concert pursuant to the pre-arranged plan. Criminal act
mentioned in Section 34 IPC is the result of the concerted action of
more than one person and if the said result was reached in
furtherance of common intention, each person is liable for the
offence as if he has committed the offence by himself.
34. Observing that the inference of common intention is to be
drawn from the conduct of the accused, in Ramesh Singh alias
Phooti v. State of A.P. (2004) 11 SCC 305, the Supreme Court
held as under:-
“12. ……. As a general principle in a case of criminal liability
it is the primary responsibility of the person who actually
commits the offence and only that person who has committed
the crime can be held guilty. By introducing Section 34 in the
Penal Code the legislature laid down the principle of joint
liability in doing a criminal act. The essence of that liability is
to be found in the existence of a common intention
connecting the accused leading to the doing of a criminal act
in furtherance of such intention. Thus, if the act is the result
of a common intention then every person who did the
criminal act with that common intention would be responsible
for the offence committed irrespective of the share which he
had in its perpetration. Section 34 IPC embodies the principle
of joint liability in doing the criminal act based on a common
intention. Common intention essentially being a state of mind
it is very difficult to procure direct evidence to prove such
intention. Therefore, in most cases it has to be inferred from
the act like, the conduct of the accused or other relevant
circumstances of the case. The inference can be gathered
21
from the manner in which the accused arrived at the scene
and mounted the attack, the determination and concert with
which the attack was made, and from the nature of injury
caused by one or some of them. The contributory acts of the
persons who are not responsible for the injury can further be
inferred from the subsequent conduct after the attack. In this
regard even an illegal omission on the part of such accused
can indicate the sharing of common intention. In other words,
the totality of circumstances must be taken into consideration
in arriving at the conclusion whether the accused had the
common intention to commit an offence of which they could
be convicted. (See Noor Mohammad Mohd. Yusuf Momin v.
State of Maharashtra (1970) 1 SCC 696)”
The decision in Ramesh Singh was referred to in Balu @ Bala
Subaramaniam and another v. State (UT of Pondicherry)
(2016) 15 SCC 471.
35. In the light of above principles, let us consider whether the
prosecution has proved that accused Nos.2 and 3 had the common
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?
22
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.
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.
…...……………………….J.
 [R. BANUMATHI]
 …...………………………..J.
[R. SUBHASH REDDY]
New Delhi;
February 19, 2019
24

where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 13. In the instant matter, as already discussed above, we find the testimony of the eye­witnesses to be consistent and reliable, and therefore reject the contention of the appellants that the testimony of the eye­witnesses must be disbelieved because they are close relatives of the deceased and hence interested witnesses.

Hon'ble Mr. Justice Mohan M. Shantanagoudar 
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1839 OF 2010
Md. Rojali Ali & Ors. .....Appellants
Versus
The State of Assam ,        .....Respondent
Ministry of Home Affairs through
the Secretary
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
In this most unfortunate and beastly incident, four persons
fast asleep in their home in the early hours of the morning,
oblivious to their imminent fate, were mercilessly murdered in a
barbaric manner by the armed accused, without any instigation
or provocation.
1
2. Against   the   concurrent   judgments   of   conviction   and
sentence dated 29.04.2006 passed by the Additional Sessions
Judge, Barpeta in Sessions Case No. 68/2001 and the judgment
dated   5.3.2010   passed   in   Criminal   Appeal   No.   121   of   2006
passed by the Gauhati High Court, this appeal is presented by
the convicted accused.
3. The   case   of  the   prosecution   in   brief  is  that  26  persons
including the appellants herein, armed with deadly weapons like
spears, arrows, lathis etc. surrounded the house of Md. Aziz Ali,
Md. Kutub Ali, Md. Mamud Ali and Samir Ali at about 6.00 a.m.
on 9.11.1995 and  trespassed into their  house,  dragged them
outside and then assaulted them. As a result of this, Md. Aziz Ali,
Md. Kutub Ali, Md. Mamud Ali and Samir Ali (not mentioned as
deceased in FIR) succumbed to the injuries sustained by them
and   one   Md.   Atar   Ali   was   injured.   Though   26   persons   were
arrayed as accused in the first information, the chargesheet came
to be filed against 15 persons. During the course of the trial, one
of the accused died, and two others absconded. Thus, the trial
was   held   against   12   accused,   8  of   whom   are   the   appellants
herein. The Trial Court after following due procedure convicted
the appellants under Sections 148, 323 and 302 read with 149 of
2
the Indian Penal Code (for short, “the IPC”), and acquitted the
other   accused.   The   judgment   of   the   Trial   Court   came   to   be
confirmed by the High Court.  Hence, the convicted accused are
in appeal before us.
4. Shri Raj Kishore Chaudhary, appearing on behalf of the
appellants,   took   us   through the   material   on   record,   and
contended that though there are six eye­witnesses to the incident
in question, all these eye­witnesses are closely related to the
family of the deceased. It was also contended that the motive for
commission of the offence is very weak, only being to the effect
that on the day before the incident, a minor quarrel took place
between the parties because the bicycles of PW1, Md. Hanif Ali
and accused Md. Saifuddin (absconding) collided with each other.
Thus, according to the appellants, there was no intention on their
part to commit the murder of the four deceased, and moreover
that   no   weapons   were   recovered   from   them.   It   was   further
contended that the prosecution witnesses have suppressed the
death of one Turen Ali, who was part of the group of the accused,
and   whose   death   occurred   during   the   course   of   the   same
incident.  In the same incident, six persons from the group of the
accused   were   also   injured.   Thus   according   to   the   learned
3
Counsel for the appellants, the prosecution witnesses have not
come   before   the   Court   with   clean   hands,   inasmuch   as   they
suppressed the origin and genesis of the incident.
Per contra, the advocate for the State argued in support of
the judgment of the courts below.
5. It is not in dispute that in the case at hand, four persons
have died viz., Md. Aziz Ali, Md. Kutub Ali, Md. Mamud Ali and
Samir   Ali,   and   that   PW7   Atar   Ali   was   injured   in   the   same
incident. The incident took place at about 6.00 a.m. on 9.11.1995
and the first information came to be registered at 8.30 a.m. on
the   same   day.   A   counter   first   information   was   filed   by   one
Promila  Begum,  wife  of   Turen   Ali   (deceased  belonging  to   the
group of the accused) on 11.11.1995 i.e. two days after the date
of the incident in question. In the said counter case, the trial
went on separately in respect of the death of Turen Ali and the
injuries   sustained   by   the   other   six   persons   (accused   herein).
Thus, there were cases and counter cases related to the incident
in question. Since the case at hand has to be dealt with on the
basis of the material on record on its own merit, we do not
propose to make any comment in respect of the counter case.
4
6. As mentioned supra, there are several eye­witnesses, viz.,
PWs 1, 2, 3, 7, 8 and 9, and among them PW7 is the injured eyewitness. It is also not in dispute that they are inter se closely
related   to   the   deceased.   PW5   and   PW6   are   the   doctors   who
conducted the post­mortem examinations.
7. In view of the ample ocular evidence on record, the motive
for commission of the offence may not be so significant in this
matter.
8. PW7, the injured eye­witness testified that after hearing a
hue and cry at about 5.00 a.m., he went to his courtyard and
saw all the accused assaulting Md. Aziz Ali, Md. Kutub Ali, Md.
Mamud Ali and Samir Ali. He specified the overt acts of each of
the accused by deposing that Accused No.5 stabbed Aziz Ali with
a spear; Accused No.12 assaulted Samir Ali with a lathi; Accused
No.8 stabbed Samir Ali with a spear; Accused Saif (absconding)
assaulted Kutub Ali using a heavy bamboo stick; Accused No.2
stabbed Kutub Ali with a spear; Accused No.1 and Accused No.9
assaulted Mamud Ali on the chest, etc. He also deposed that he
himself was assaulted by Accused No.3. Though the prosecution
cross­examined PW7 at length, his evidence remained unshaken.
5
Even in the cross­examination, PW7 has reiterated the incident
in question without any blemishes.
9. The evidence of PW7 is fully supported by the evidence of
the other eye­witnesses, i.e., PWs 1, 2, 3, 8 and 9. To satisfy our
conscience, we have gone through the evidence of these witnesses
as well.  On examining the same, we find that the Trial Court and
the High Court are justified in observing that these witnesses are
trustworthy   and   reliable.     We   do   not   wish   to   burden   this
judgment   by   quoting   the   evidence   of   all   these   eye­witnesses,
inasmuch as their evidence has been dealt with in detail by the
Trial  Court  and  the  High  Court, and   the  appreciation  of  the
evidence by the Courts cannot be faulted by us in any manner.
Having considered the evidence of all the eye­witnesses in detail,
suffice it to say that the evidence of all of these eye­witnesses is
consistent with the case of the prosecution with respect to all
material   particulars,   and   is   credible   and   trustworthy.     Their
presence on the spot can also not be doubted as they are family
members of the deceased, who could reasonably be expected to
be in their respective houses at the relevant point of time, i.e., the
early hours of the day, when they (as well as the deceased) could
6
be expected to have been asleep, and to be about to wake up and
start their daily routine.
10.  As regards the contention that all the eye­witnesses are
close relatives of the deceased, it is by now well­settled that a
related   witness   cannot   be   said   to   be   an   ‘interested’   witness
merely by virtue of being a relative of the victim. This Court has
elucidated   the   difference   between   ‘interested’   and   ‘related’
witnesses in a plethora of cases, stating that a witness may be
called interested only when he or she derives some benefit from
the result of a litigation, which in the context of a criminal case
would mean that the witness has a direct or indirect interest in
seeing   the   accused   punished   due   to   prior   enmity   or   other
reasons, and thus has a motive to falsely implicate the accused
(for instance, see  State  of  Rajasthan  v.  Kalki, (1981) 2 SCC
752;  Amit  v.  State of  Uttar  Pradesh, (2012) 4 SCC 107; and
Gangabhavani   v.   Rayapati   Venkat   Reddy,   (2013)   15   SCC
298). Recently, this difference was reiterated in  Ganapathi   v.
State of Tamil Nadu, (2018) 5 SCC 549, in the following terms,
by   referring   to   the   three­Judge   bench   decision   in  State   of
Rajasthan v. Kalki (supra):
7
“14.   “Related”   is   not   equivalent   to   “interested”.   A
witness may be called “interested” only when he or she
derives some benefit from the result of a litigation; in
the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and
is the only possible eye witness in the circumstances of
a case cannot be said to be “interested”...”
11. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence on the
scene of the offence would be natural. The evidence of such a
witness   cannot   automatically   be   discarded   by   labelling   the
witness as interested. Indeed, one of the earliest statements with
respect to interested witnesses in criminal cases was made by
this Court in Dalip Singh v. State of Punjab, 1954 SCR 145,
wherein this Court observed:
“26.   A   witness   is   normally   to   be   considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the   accused,   to   wish   to   implicate   him   falsely.
Ordinarily, a close relative would be the last to screen
the   real   culprit   and   falsely   implicate   an   innocent
person…”
12.  In case of a related witness, the Court may not treat his or
her testimony as inherently tainted, and needs to ensure only
that   the  evidence  is  inherently   reliable,  probable,  cogent  and
consistent. We may refer to the observations of this Court in
8
Jayabalan  v.  Union  Territory  of  Pondicherry, (2010) 1 SCC
199:
“23. We are of the considered view that in cases where
the Court is called upon to deal with the evidence of
the interested witnesses, the approach of the Court
while   appreciating   the   evidence   of   such   witnesses
must not be pedantic. The Court must be cautious in
appreciating and accepting the evidence given by the
interested   witnesses   but   the   Court   must   not   be
suspicious of such evidence. The primary endeavour of
the   Court   must   be   to   look   for   consistency.   The
evidence of a witness cannot be ignored or thrown out
solely because it comes from the mouth of a person
who is closely related to the victim.”
13.  In the instant matter, as already discussed above, we find
the testimony of the eye­witnesses to be consistent and reliable,
and therefore  reject the contention of the appellants that the
testimony of the eye­witnesses must be disbelieved because they
are   close   relatives   of   the   deceased   and   hence   interested
witnesses.
14.  Furthermore, though the counsel for the appellants tried to
convince the Court with regard to minor discrepancies in the
evidence of the six eye­witnesses with respect to the manner in
which the assault took place, such attempt remains futile and
cannot   be   accepted,   inasmuch   as   minor   variations   in   the
evidence of the witnesses are bound to occur in a case like the
9
one on hand, wherein a number of accused came in a group and
assaulted a few persons suddenly and mercilessly, out of which a
few died and others sustained injuries. We do not find any major
contradiction in the evidence of the eye­witnesses. Their evidence
is fully supported by the version of the doctors who conducted
the post­mortem examinations.
15.  It is relevant to note that PW8 and PW9 have clearly deposed
about the death of Turen Ali, for which the counter case was
lodged. Of course, the other eye­witnesses did not depose about
the same. Since the evidence of the two prosecution witnesses
named above reveals that the accused party had also sustained
injuries and one of them had expired, we do not find any ground
to conclude that the prosecution tried to suppress the origin and
genesis of the incident.
16.     The   evidence   clearly   reveals   that   the   accused   are   the
aggressors   who   came   in   a   group   to   the   house   of   deceased,
trespassed   into   their   houses,   dragged   the   deceased   out   and
mercilessly assaulted the deceased with sharp spears, arrows
and lathis. The incident had taken place at about 6.00 a.m.,
which suggests that all the accused came with the clear intention
to commit the murder of the four persons in the early hours of
10
the day. The accused were armed with deadly weapons and they
came with prior preparation and premeditation. There was no
provocation by the deceased or by the injured. In view of the
same, it cannot be said that there was no intention on the part of
the accused to commit murder.
17.  Having regard to the totality of the facts and circumstances
of the case, we find no ground to interfere with the impugned
judgment. Hence, the appeal is hereby dismissed.
..........................................J.
(L. Nageswara Rao)
............................................J.
(Mohan M. Shantanagoudar)
New Delhi;
February 19, 2019.
11

It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence= It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction 12 unless it is corroborated by other evidence. A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. The doctor PW­18, who recorded the statement of the deceased which was ultimately treated as his dying declaration, has fully supported the case of the prosecution by deposing about recording the dying declaration. He also deposed that the victim was in a fit state of mind while making the said declaration. We also do not find any material to show that the victim was tutored or prompted by anybody so as to create suspicion in the mind of the Court. Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the dying declaration in all material particulars. The High Court, on reappreciation of the entire evidence before it, has come to an independent and just conclusion by setting 13 aside the judgment of acquittal passed by the Trial Court.The High Court has found that there are substantial and compelling reasons to differ from the finding of acquittal recorded by the Trial Court. The High Court having found that the view taken by the Trial Court was not plausible in view of the facts and circumstances of the case, has on independent evaluation and by assigning reasons set aside the judgment of acquittal passed by the Trial Court. We concur with the judgment of the High Court, for the reasons mentioned supra.

Hon'ble Mr. Justice Mohan M. Shantanagoudar 
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 312 OF 2010
LALTU GHOSH ...APPELLANT
VERSUS
STATE OF WEST BENGAL ...RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 15.05.2009 passed by the High
Court of Calcutta in Government Appeal No. 30 of 1987 is
called   into   question   in   this   appeal   by   the   convicted
accused.
2. The case of the prosecution in brief is that there was
a dispute between Ananta Ghosh (accused, since deceased)
and   the   victim   Keshab,   his   neighbour,   concerning   the
boundary of the landed property in which they had their
1
respective houses; about 9.30 am on 30.04.1982, accused
Ananta Ghosh called the deceased Keshab by standing in
front   of   the   house   of   the   deceased;   the   deceased
accordingly   came   out   of   his   house   and   his   son   PW­1
followed him; at that point of time, Ananta Ghosh picked a
quarrel with the deceased and thereafter instigated his sons
Laltu Ghosh and Paltu Ghosh as well as his friend Sakti @
Sero   Karmakar   to   assault   the   deceased;   Laltu   Ghosh
punched the deceased on the face and thereafter stabbed
the accused in the abdomen;   though the deceased fell
down, he got up immediately and thereafter started to run
away; but Paltu Ghosh stabbed the deceased on his back,
who fell down near the tea stall of one Tabal; he was taken
to the Primary Health Centre, Kaliaganj in the rickshaw of
one Madan where he was treated by Dr. Roychowdhury,
PW­18, who gave him first aid and recorded the statement
of the deceased; later, the victim was sent to Krishnanagar
Hospital for better treatment.
3. The   statement   of   the   victim   was   recorded   by   Dr.
Roychowdhury   (PW­18)   and   the   same   was   treated   as   a
dying   declaration,   since   soon   after   such   treatment   the
2
victim succumbed to his injuries on the way to the hospital.
His son PW­1 lodged the First Information Report (FIR) at
10.45 a.m. on the very same day, i.e. 30.04.1982.
4.  The   police   filed   the   charge­sheet   against   four
accused, viz. Laltu Ghosh, Paltu Ghosh, Ananta Ghosh and
Sakti @ Sero Karmakar.  The Trial Court upon appreciation
of the material on record acquitted all the accused. The
State filed an appeal before the High Court, which came to
be allowed in part by the impugned judgment. The High
Court convicted Laltu Ghosh, who is the appellant herein.
The   High   Court   also   declared   that   Paltu   Ghosh   was   a
juvenile on the date of the incident. The accused Ananta
Ghosh and Sakti Karmakar expired during the pendency of
the appeal before the High Court. Hence, this appeal by the
convicted accused Laltu Ghosh.
5.  There   are   four   eye­witnesses   to   the   incident   in
question, viz. PW­1, PW­2, PW­3 and PW­4.   Out of them,
PW­2 and  PW­3 have  turned hostile to  the  case of  the
prosecution. PW­1 is the son of the deceased and PW­4 is
the wife of the deceased. The prosecution, apart from the
3
versions   of   the   eye­witnesses,   relied   upon   the   dying
declaration, Ext. 4.
6. Learned counsel for the appellant, having taken us
through the material on record submits that the High Court
was not justified in allowing the appeal of the State and
convicting the appellant herein, since the evidence of PW­1
and   PW­4   cannot   be   believed   in   view   of   the   material
contradictions found in their evidence; PW­1 and PW­4 are
none other than the son and the wife of the deceased and
therefore   the   Trial   Court   on   meticulous   and   careful
consideration of the evidence of these witnesses concluded
that   their   evidence   cannot   be   believed;   the   dying
declaration was also found to be shaky by the Trial Court;
the Trial Court had accorded reasons for rejecting the dying
declaration; and that the High Court has failed to analyse
the entire evidence and material on record and has failed to
meet the reasons given by the Trial Court upon taking the
evidence and material into consideration.
7. Per   contra,   it   is   argued   by   the   learned   counsel
appearing on behalf of the State that the High Court has
rightly rejected the findings of the Trial Court that the post
4
mortem report was not of the deceased; there is absolutely
no doubt about the persons who caused injuries to the
deceased;   the   High   Court   was   justified   in   applying   the
principle of common intention; and that the High Court has
assigned   valid   reasons   as   to   why   the   dying   declaration
should not have been discarded by the Trial Court.  On the
basis   of   these,   among   other   grounds,   he   prays   for
confirming the judgment of the High Court. 
8.  To satisfy our conscience, we have gone through the
evidence of PW­1 and PW­4. PW­1 had deposed that about
9­9.30 a.m. on 30.04.1982, he and his father were at home,
sitting on a platform; the accused Ananta Ghosh called the
deceased from his house but the deceased initially refused
to come and told the accused Ananta Ghosh to come to the
road in front of his house; after saying so, the deceased
went out of his house and PW­1 followed him; thereafter, a
verbal   quarrel   took   place   between   the   accused   and   the
deceased, and the accused Ananta Ghosh at that point of
time instigated his sons Laltu Ghosh and Paltu Ghosh as
well as his friend Sakti @ Sero Karmakar to assault the
deceased; Laltu Ghosh dealt a blow to the deceased and
5
thereafter stabbed him on his abdomen; the deceased made
an attempt to escape and had proceeded about 10 cubits
when Paltu Ghosh assaulted the deceased with a bhojali on
his back; despite  the same, the deceased made an attempt
to escape by running but Laltu Ghosh and Paltu Ghosh
chased him and ultimately, he fell near the tea stall of one
Tabal   from   where   he   was   shifted   to   the   hospital   at
Kaliaganj.   The evidence of PW­1 is consistent with the
version   of   the   prosecution.     His   evidence   could   not   be
shaken   in   the   cross­examination   in   respect   of   the
occurrence of the incident in question.  Even in the crossexamination,   PW­1   has   stated   that   the   appellant   had
concealed a sharp­cutting weapon, i.e. kirich, in a napkin
and had come fully prepared for committing the murder.
9. The   evidence   of   PW­1   is   fully   supported   by   the
evidence of PW­4. She has also deposed about the exchange
of words between the deceased and the accused Ananta
Ghosh;   about   Ananta   Ghosh   instigating   his   sons   Laltu
Ghosh   and   Paltu   Ghosh,   and   his   friend   Sakti   @   Sero
Karmakar to assault the deceased; about the assault by
Laltu Ghosh in the first instance and thereafter by Paltu
6
Ghosh at the back of the deceased; about the deceased
trying to escape and running towards the tea stall, etc. She
has also deposed about the first aid given to the deceased
at   the   Primary   Health   Centre,   Kaliaganj   and   thereafter
about   shifting   him   to   Krishnanagar   Hospital.   She   has
further   deposed   about   the   victim’s   statement   being
recorded at the Primary Health Centre, Kaliaganj, which
was   ultimately   treated   as   his   dying   declaration.   She
withstood the lengthy cross­examination.
10. We   find   that   the   evidence   of   PW­1   and   PW­4   is
consistent, cogent, reliable and trustworthy. Their presence
at the scene of the incident is natural inasmuch as the
incident took place in front of their house, and that too in
the morning, at a time when PW­1 and PW­4 could be
expected to be at home. Though the incident started with a
verbal   quarrel   between   the   deceased   and   the   accused
Ananta Ghosh, the appellant along with his brother entered
the   scene   after   being   instigated   by   their   father   Ananta
Ghosh; both the brothers, namely, Laltu Ghosh and Paltu
Ghosh came to the spot fully armed with a  kirich  and a
bhojali; the victim was not spared by the accused though he
7
tried to escape from the scene of the occurrence;  he was
chased by the appellant and Paltu Ghosh and ultimately,
the victim fell in front of a tea stall; the victim was able to
give his statement before the doctor PW­18 who treated him
at   the   first   instance   at   the   Primary   Health   Centre,
Kaliaganj.
11. We   do   not   find   any   major   contradiction   in   the
evidence of these witnesses. Minor variations, if any, will
not tilt the balance in favour of the defence in the facts and
circumstances of the present case. The defence could not
elicit any contradiction in the cross­examination of PW­1
and PW­4.  In our considered opinion, the High Court has
rightly believed the evidence of these witnesses, particularly
since minor discrepancies on trivial matters do not in and
of   themselves   affect   the   core   of   the   prosecution   case.
Hence, it is not open for the Court to reject the evidence
only in light of some minor variations and discrepancies.
12.   As regards the contention that the eye­witnesses are
close relatives of the deceased, it is by now well­settled that
a   related   witness   cannot   be   said   to   be   an   ‘interested’
witness merely by virtue of being a relative of the victim.
8
This   Court   has   elucidated   the   difference   between
‘interested’ and ‘related’ witnesses in a plethora of cases,
stating that a witness may be called interested only when
he   or   she   derives   some   benefit   from   the   result   of   a
litigation, which in the context of a criminal case would
mean that the witness has a direct or indirect interest in
seeing the accused punished due to prior enmity or other
reasons, and thus has a motive to falsely implicate the
accused (for instance, see  State  of  Rajasthan   v.  Kalki,
(1981)   2   SCC     752;  Amit   v.   State   of   Uttar   Pradesh,
(2012)   4   SCC   107;   and  Gangabhavani   v.   Rayapati
Venkat   Reddy,   (2013)   15   SCC   298).     Recently,   this
difference was reiterated in Ganapathi v. State of Tamil
Nadu,   (2018)   5   SCC   549,   in   the   following   terms,   by
referring to the three­Judge bench decision in  State   of
Rajasthan v.  Kalki (supra):
“14. “Related” is not equivalent to “interested”. A
witness may be called “interested” only when he or
she   derives   some   benefit   from   the   result   of   a
litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a
natural one and is the only possible eye witness in
9
the circumstances of a case cannot be said to be
“interested”...”
13.  In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence
on the scene of the offence would be natural. The evidence
of such a witness cannot automatically be discarded by
labelling   the   witness   as   interested.   Indeed,   one   of   the
earliest statements with respect to interested witnesses in
criminal cases was made by this Court in Dalip Singh v.
State   of   Punjab,   1954   SCR   145,   wherein   this   Court
observed:
“26.   A   witness   is   normally   to   be   considered
independent unless he or she springs from sources
which   are   likely   to   be   tainted   and   that   usually
means   unless   the   witness   has   cause,   such   as
enmity against the accused, to wish to implicate
him falsely. Ordinarily, a close relative would be the
last to screen the real culprit and falsely implicate
an innocent person…”
14.  In case of a related witness, the Court may not treat
his or her testimony as inherently tainted, and needs to
ensure   only   that   the   evidence   is   inherently   reliable,
probable,   cogent   and   consistent.   We   may   refer   to   the
observations   of   this   Court   in  Jayabalan   v.   Union
Territory of Pondicherry, (2010) 1 SCC 199:
10
“23. We are of the considered view that in cases
where the Court is called upon to deal with the
evidence of the interested witnesses, the approach
of the Court while appreciating the evidence of such
witnesses must not be pedantic. The Court must be
cautious in appreciating and accepting the evidence
given   by   the   interested   witnesses   but   the   Court
must   not   be   suspicious   of   such   evidence.   The
primary endeavour of the Court must be to look for
consistency. The evidence of a witness cannot be
ignored or thrown out solely because it comes from
the mouth of a person who is closely related to the
victim.”
15.  In the instant matter, as already discussed above, we
find the testimony of the eye­witnesses to be consistent and
reliable,   and   therefore  reject   the   contention   of   the
appellants that the testimony of the eye­witnesses must be
disbelieved because they are close relatives of the deceased
and hence interested witnesses.
16. The FIR discloses that the doctor PW­18 examined
the victim at the first instance and recorded his statement,
in which the victim narrated the occurrence including the
names   of   the   assailants.   The   dying   declaration   Ext.   4
recorded by the doctor PW­18 shows that the victim was
first assailed by the accused Ananta Ghosh, and thereafter
by Paltu Ghosh, who stabbed the victim’s back, and by
Laltu Ghosh, who served a blow on the victim’s abdomen
11
with a kirich.  The Trial Court has given more weightage to
the   minor   variations   found   in   the   evidence   of   the
prosecution   witnesses   as   compared   to   the   information
found in the dying declaration.
17.  The courts cannot expect a victim like the deceased
herein to state in exact words as to what happened during
the course of the crime, inasmuch  as it  would be very
difficult   for   such   a   victim,   who   has   suffered   multiple
grievous injuries, to state all the details of the incident
meticulously and that too in a parrot­like manner.   The
Trial   Court   assumed   that   the   Investigation   Officer   in
collusion   with   the   doctor   wilfully   fabricated   the   dying
declaration. It is needless to state that the Investigation
Officer and the doctor are independent public servants and
are not related either to the accused or the deceased.  It is
not open for the Trial Court to cast aspersions on the said
public officers in relation to the dying declaration, more
particularly when there is no supporting evidence to show
such fabrication. 
18.  It cannot be laid down as an absolute rule of law that
a dying declaration cannot form the sole basis of conviction
12
unless   it   is   corroborated   by   other   evidence.   A   dying
declaration, if found reliable, and if it is not an attempt by
the deceased to cover the truth or to falsely implicate the
accused, can be safely relied upon by the courts and can
form the basis of conviction.   More so, where the version
given by the deceased as the dying declaration is supported
and corroborated by other prosecution evidence, there is no
reason for the courts to doubt the truthfulness of such
dying   declaration.   The   doctor   PW­18,   who   recorded   the
statement of the deceased which was ultimately treated as
his dying declaration, has fully supported the case of the
prosecution   by   deposing   about   recording   the   dying
declaration. He also deposed that the victim was in a fit
state of mind while making the said declaration. We also do
not find any material to show that the victim was tutored or
prompted by anybody so as to create suspicion in the mind
of the Court.  Moreover, in this case the evidence of the eyewitnesses, which is fully reliable, is corroborated by the
dying   declaration   in   all   material   particulars.   The   High
Court, on reappreciation of the entire evidence before it,
has come to an independent and just conclusion by setting
13
aside the judgment of acquittal passed by the Trial Court.
The High Court has found that there are substantial and
compelling reasons to differ from the finding of acquittal
recorded by the Trial Court. The High Court having found
that the view taken by the Trial Court was not plausible in
view of the facts and circumstances of the case, has on
independent evaluation and by assigning reasons set aside
the judgment of acquittal passed by the Trial Court.   We
concur   with   the   judgment   of   the   High   Court,   for   the
reasons mentioned supra.
19. Thus, we do not find any valid ground to interfere
with the impugned judgment of conviction passed by the
High   Court.  Accordingly,   the  appeal   fails   and  is   hereby
dismissed.
                   
        …………………………..……....J.
                                          [Mohan M. Shantanagoudar]
                                   ...……………………..…..…J.
            [Dinesh Maheshwari] 
New Delhi;
February 19, 2019.
14

licence could not be granted unless the distiller has participated in the tender process.= no one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. The Appellant’s request for grant of a CS-1 license requires to be considered strictly in accordance with law.The Respondents are directed to consider the application of the Appellant for issuance of CS-1 licence in accordance with the Act and the Rules made thereunder. It is needless to mention that the Respondents should not insist on the condition that the Appellant should have participated in a tender and should have been allotted an area of operation.

Hon'ble Mr. Justice L. Nageswara Rao 
 Non -Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1701 of 2019
[ Arising out of S.L.P. (Civil) No. 30428 of 2018 ]
GWALIOR DISTILLERIES PVT. LTD.
 .... Appellant

Versus
THE STATE OF MADHYA PRADESH & ORS.
 ….Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The Appellant is a manufacturer of spirits and holds a
licence in the form of D-1 granted in the year 2017. A
tender notice was issued for supply of country spirit in
sealed bottles, in the State of Madhya Pradesh for the year
2018-2019. The condition imposed for participating in the
tender was that the tenderer must have a licence for
manufacturing, bottling and wholesale supply of country
spirit in the State of Madhya Pradesh, issued in the form of
1
CS-1 licence. Clause 2(i) of the tender notice dated
03.02.2018 was challenged by the Appellant on the ground
that the stipulation pertaining to possession of
CS-1 licence was contrary to Rule 3 of the Madhya Pradesh
Country Spirit Rules, 1995 (hereinafter referred to as ‘the
Rules’) since such licence could not be granted unless the
distiller has participated in the tender process. That
according to Rule 3, a successful tenderer is granted an
area for supply of country spirit which would enable him to
claim a CS-1 licence and CS-1-1B licence. The Writ Petition
filed by the Appellant was dismissed. However, the High
Court observed that the contention of the Appellant that
he could not be granted a licence under the Rules unless
an area was allotted to him was not borne out from Section
18 of the Excise Act, 1915 (hereinafter referred to as ‘the
Act’) or the Rules.
2. Thereafter, the Appellant submitted an application for
grant of CS-1 licence on 09.04.2018. By an order dated
26.07.2018, the application filed by the Appellant for grant
of CS-1 licence was rejected. Aggrieved by the said
rejection, the Appellant filed a Writ Petition which was
dismissed by the High Court. Hence, this appeal.
2
3. The order by which the request for issuance of CS-1
licence was rejected by the Respondent No.2 was
challenged by the Appellant as being in violation of Articles
14 and 19 (1) (g) of the Constitution of India. The
Appellant alleged discrimination since eight other distillers
in the State of Madhya Pradesh who were similarly situated
to the Appellant, not possessing CS-1 and CS-1-1B licence
were allowed to participate in the tender process. The
Appellant relied upon the observations of the High Court in
its judgment dated 21.03.2018, in Writ Petition No.6525 of
2018 filed by the Appellant, that neither the Act nor the
Rules made thereunder required allotment of an area for
grant of CS-1 licence.
4. The High Court dismissed the Writ Petition by
observing that allotment of an area was an imperative precondition for grant of CS-1 licence. The High Court further
held that there was no fundamental right to trade in liquor
and opined that the Appellant was not entitled to any
relief. Clause 2 (i) of the tender notice dated 03.02.2018
issued by the Respondents provides that a distiller having
a proper licence for manufacturing, bottling and wholesale
supply of country spirit shall be eligible to participate in
3
the tender process. The validity of the said condition was
challenged by the Appellant in Writ Petition No.6525 of
2018 in the High Court of Madhya Pradesh. The Appellant
contended in said Writ Petition that according to the
scheme of the Rules, a CS-1 licence will not be granted
unless the area is allotted. A Division Bench of the High
Court dismissed the Writ Petition finding no substance in
the challenge to Clause 2 (i) of the tender notice. While
dismissing the Writ Petition, the High Court observed that
the allotment of an area was not a pre-requisite for grant
of CS-1 licence. Subsequently, the Appellant submitted an
application to the Excise Commissioner, Gwalior on
09.04.2018, requesting issuance of a CS-1 licence. The
application for granting CS-1 licence was rejected on
26.07.2018 on the ground that the Appellant did not
participate in the tender process, published on 20.02.2018
for the year 2018-19. There is no doubt that the Appellant
has a D-1 licence. A perusal of Rule 3 would show that
manufacturing, bottling and wholesale supply of country
spirit can be only undertaken by persons who possess a
CS-1 licence. CS-1 licence is granted by the Excise
Commissioner after the approval of the State Government.
4
A CS-1 licensee shall operate in such area or areas as may
be determined by the Excise Commissioner from time to
time. The apprehension of the Appellant that a CS-1
licence would not be granted unless an area was allotted
pursuant to a tender process was addressed by the High
Court in the earlier round of litigation. The High Court held
that the Act and the Rules do not provide for allotment of
an area as a condition for issuance of CS-1 licence. The
application filed by the Appellant for issuance of CS-1
licence was rejected by the Respondents on the ground
that the Appellant did not participate in the tender
process.

5. Section 18 of the Act which confers power on the
State Government to grant lease of right to manufacture,
etc. and Rule 3 of the Rules read as follows:
“18. Power to grant lease of right to
manufacture, etc. — (1) The State Government may
lease to any person, on such conditions and for such
period as it may think fit, the right—
(a) of manufacturing, or of supplying by wholesale or of
both; or
(b) of selling by wholesale or by retail; or
(c) of manufacturing or of supplying by wholesale, or of
both, and selling by retail; and liquor or intoxicating
within any specified area.”
*** *** *** ***
5
“3. Grant of Licence. - (1) (a) A licence in Form C.S.1
for manufacture, bottling and wholesale supply of
country spirit may be granted by the Excise
Commissioner after approval of the State Government.
It shall commence on such date as may be specified
therein and be in force for such period as the State
Government may decide and shall be for such area or
areas as may be determined by the Excise
Commissioner from time to time.
(b) [Licence in Form C.S. 1 shall be granted by the
Excise Commissioner as aforesaid on payment of fee in
advance at the rate of one lakh rupees for a period of
one year’s licence or such proportional amount of fees
for the period of licence to be granted.]
The licensee shall be required to deposit additional
amount of Rs.5 lacs as security in cash or in any other
form as may be directed by the Excise Commissioner for
the due observance of conditions of licence, provisions
of the Act and the rules made thereunder and orders
issued by State Government or Excise Commissioner.
The Excise Commissioner may ask for additional sum as
security amount not exceeding Rs.10 lacs as and when
he deems it necessary in circumstances of repeated
breaches of conditions of increase in area of supply and
the licencee shall comply with such order within 15 days
of its communication to him.”
6. There is no condition either in Section 18 or Rule 3
that CS-1 licence will be granted only to a person who
participated in the tender process. The order passed by
the Respondent No.2 is arbitrary and contrary to Section
18 of the Act and Rule 3 of the Rules. By the impugned
judgment the High Court held that allotment of an area is a
6
pre-condition for issuance of the CS-1 licence without
examining the judgment in Writ Petition No.6525 of 2018.
Reference made to Writ Petition No. 6525 of 2018 was
restricted to recording a finding that the said Writ Petition
was dismissed and the contentions raised by the Appellant
in the said Writ Petition were negatived. To our
understanding, Rule 3 (1) provides for allotment of an area
to a person who is given a CS-1 licence. Participation in
the process of tender as a condition for applying for a CS-1
licence is not found in the Rules. The High Court dismissed
the Writ Petition by holding that there is no fundamental
right to trade of liquor. However, the other contention
raised by the Appellant that there is hostile discrimination
against the Appellant as other similarly situated distillers
were permitted to participate in the tender, has not been
dealt with by the High Court. This Court in State of M.P.
& others v. Nandlal Jaiswal & others
1
 has held that no
one can claim as against the State the right to carry on
trade or business in liquor and the State cannot be
compelled to part with its exclusive right or privilege of
manufacturing and selling liquor. But when the State
decides to grant such right or privilege to others the State
1 (1986) 4 SCC 566
7
cannot escape the rigour of Article 14. It cannot act
arbitrarily or at its sweet will. It must comply with the
equality clause while granting the exclusive right or
privilege of manufacturing or selling liquor. The Appellant’s
request for grant of a CS-1 license requires to be
considered strictly in accordance with law.
7. The Respondents are directed to consider the
application of the Appellant for issuance of CS-1 licence in
accordance with the Act and the Rules made thereunder.
It is needless to mention that the Respondents should not
insist on the condition that the Appellant should have
participated in a tender and should have been allotted an
area of operation.
8. For the aforementioned reasons, the judgment of the
High Court is set aside and the appeal is allowed.

 .................................J.
 [L.
NAGESWARA RAO]
 ……..........................J.
 [M.R. SHAH]
New Delhi,
February 15, 2019.
8