In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests: i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [See Sanwant Khan (supra)]; ii. The nature of the stolen article; 36 iii. The manner of its acquisition by the owner; iv. The nature of evidence about its identification; v. The manner in which it was dealt with by the accused; vi. The place and the circumstances of its recovery; vii. The length of the intervening period; viii. Ability or otherwise of the accused to explain its possession

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.57 OF 2013
SONU @ SUNIL ... APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appellant was tried with 4 others and was
convicted under Sections 394, 460 and 302 read with
Section 34 of the Indian Penal Code, 1860 (hereinafter
referred to as, ‘the IPC’, for short). He was also
found guilty of offences under Sections 11 and 13 of
the Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,
1981 (hereinafter referred to as, ‘Madhya Pradesh
Adhiniyam’). The appellant was, in fact, sentenced to
death for the offence under Section 302 read with
Section 34 of the IPC along with two other accused
apart from a fine of Rs. 5000/-. He was sentenced to
2
10 years Rigorous Imprisonment in regard to the offence
under Section 460 of the IPC. He was also handed down
a sentence of 10 years for the offence under Section
394 read with Section 34 of the IPC. Still further, he
was also sentenced to 7 years for the offence under
Sections 11 and 13 of the Madhya Pradesh Adhiniyam. By
the impugned judgment, the High Court answered the
death reference by holding that in the circumstances,
the death penalty was not warranted. In place of death
penalty, the High Court sentenced the appellant and two
other accused to life imprisonment and enhanced the
fine to Rs. 25,000/-. The appeal filed by the appellant
was dismissed otherwise. The prosecution case, in
brief, appears to be as follows:
On 08.09.2008, in the night, Bharosilal
(hereinafter referred to as, ‘the deceased’,
for short) was at his village Bilaua. He was
residing alone. One Abhay Sharma-PW9, who is
the son of the deceased, was informed by one
Neeraj Bhargav that his father has not opened
the door on that day. On receiving such
information, PW9, who also turned out to be
3
the complainant, finally went to his father’s
residence and it was found that his father was
dead and the First Information Report (FIR)
was lodged on 10.09.2008. On the basis of the
investigation conducted, Kalli, Hariom, Veeru,
Virendra and the appellant came to be charged
with the offences as noticed. In fact, the
appellant was charged under Section 397 of the
IPC also.
2. PW1 to PW15 were examined as prosecution witnesses.
Material objects were also produced. The following are
the questions, which were framed by the Trial Court:
“(i) Whether accused Kalli @ Gopal Sharma,
Sonu @ Sunil and Hariom on the date of
incident after sunset and before
sunrise after committing house tress
pass in the residential house of
deceased Bharosilal, committed the
murder of Bharosilal?
(ii) Whether accused Kalli @ Gopal Sharma,
Sonu @ Sunil and Hariom formed common
intention to commit murder of
Bharosilal?
(iii) Whether accused Kalli @ Gopal Sharma,
Hariom and Sonu @ Sunil in fulfilment
of their common intention committed
murder of Bharosilal by strangulation
and cutting by a chhuri (knife)?
4
(iv) Whether accused Kalli @ Gopal Sharma,
Hariom and Sonu @ Sunil by using
deadly weapon in committing robbery,
committed the murder of Bharosilal and
looted gold and silver jewellery and
two mobile phones of Nokia made from
the possession of Bharosilal?
(v) Whether accused Veeru and Virendera
along with accused Kalli @ Gopal
Sharma, Hariom and Sonu @ Sunil, at
the house of accused Virendra Singh,
Kushmah hatched conspiracy of
committing robbery in the house of
Bharosilal?
(vi) Whether the accused persons committed
the offence defined and specified
under Section 2(b) of MPDVPK Act and
committed the offence u/s 11/13 of the
above said Act?”
3. The Trial Court found that it was a case entirely
based on circumstantial evidence. It noticed that the
deceased had suffered the following injuries:
“Injury No.1 Incised of 6x1.5x1 c.m. on
the right side of the chin.
Injury No. 2 Incised wound of 4 x 1 ½ cm
below 1 cm from the injury
no. 1.
Injury No. 3 Incised wound of 6 x 3 x 2cm
left fore arm anteriority
middle.
Injury No. 4 Incised wound of 6 x 1 x 1cm,
just 2cm below injury no. 3.
Injury No. 5 Incised wound of 6 x 1 x 1cm,
just 2cm below injury no. 4.
5
Injury No. 6 Incised wound on abdomen 3”
below measuring 3 x 2 x deep
upto peritoneum, part of
intestine coming out from
the wound.”
4. The cause of death was found to be shock and
hemorrhage due to excessive bleeding caused by
multiple wounds. The death was caused within 36 hours
of the postmortem report. The postmortem was conducted
on 10.09.2008. It cannot be disputed that the death
was homicidal and it was caused with the intent to
commit murder. The Trial Court further proceeded to
find that the certain articles were found missing from
the almirah in the house where the deceased stayed.
PW8 is wife of the deceased. PW9, as already noticed,
is one of the sons of the deceased. PW13 held
identification of the gold and silver jewellery and
the mobile phones, which according to them, belonged
to the deceased. The identified articles were
belonging to the deceased. One hasli (necklace) made
of silver, one pair of earrings and two mobile phones
were identified. The contention of the accused that
PW13, who held the identification proceedings, deposed
that at that time a Police Officer was present, was
6
rejected by finding that from the Identification MemoExhibit P21, it was clear that no Police Officer was
present at the time of the identification of the
proceedings. The Court also relied upon the evidence
of PW8 and PW9, who were found to have not stated about
the presence of Police Officers at the time of the
identification proceedings. The evidence of PW9 and
the evidence of PW8, were also referred to, to find
that the Police came to open the door. It was opened
and it was seen that the almirah was opened and
goods/gold articles were scattered, and out of the
said goods, one hasli (necklace) made of silver, one
pair of gold earrings and two mobile phones, were
missing. The evidence of PW3-another son, was relied
upon to find that PW5 had overheard the conversation
between all the accused which was to the effect that
the deceased was living alone and they were making a
plan for committing a loot in his house. No doubt, the
Court also noticed that PW1, who was cited by the
prosecution, to prove the said conversation, turned
hostile. PW3 had also deposed that he was told by PW5
about having overheard the conversation between the
7
accused. The evidence of PW3 was relied upon to find
that both Virendra and Veeru used to come to massage
the body of his father and his father used to say that
they would be got employed. PW3 deposed about his
familiarity with accused Virendra, Veeru and Kalli
present in the Court. PW6- another son of the deceased,
has deposed that Kalli used to come to his village to
sell ghee and used to sit and talk with the deceased
and used to massage the body of his father. The Trial
court finds that Veeru, Virendra and Kalli used to
come and they were also acquainted with the deceased
and his family members. Thereafter, the Trial Court
also referred to the recoveries of the articles. From
Hariom, one mobile phone was recovered. From Kalli,
the Chhuri(knife), used for committing the offence,
was recovered. From the appellant, another mobile
phone of Nokia Company, Model 5110, of black colour,
upon which the Number 97321820 was written in red ink,
was also seized. The evidence of PW9 was relied upon
wherein he has deposed, that a Nokia Mobile on which
B.L. in English was written with red marker, and on
the battery of the same, Number 97321820 in red ink,
8
had been written, was stolen. From accused Virendra,
the recovery of hasli(necklace) was effected. From
Veeru, one pair of gold earrings was seized. On the
basis of the same, it was found that the stolen
property and weapon have been seized on the statement
of the accused, and that these circumstances,
completed the chain of circumstantial evidence.
Reliance was placed on the deposition by PW5, who had
overheard the conversation between the accused about
the criminal conspiracy. PW7, a witness to the recovery
statement of the appellant-Exhibit P13 and also
evidence of PW12- the Police Inspector, who arrested
the appellant, has been relied upon to prove the
statement leading to the recovery of the mobile from
the appellant. The following findings may be noted:
 “In the above said analysis it is
proved that there is criminal conspiracy
amongst the accused persons to commit
theft or loot in the house of deceased,
on the basis of memorandum statement of
accused Hariom, the looted mobile is
recovered/ seized from the possession of
accused Hariom on the basis of memorandum
of accused Kalli @ Gopal Sharma and on
producing by him one blood stained sharp
edged chhuri (knife) used in the offence
has been seized from the possession of
accused Kalli @ Gopal Sharma. On the basis
9
of memorandum statement of accused Sonu @
Sunil and on producing by him the looted
mobile Nokia is seized from accused Sonu
@ Sunil. In the same manner on the basis
of Accused Virendra one old and used hasli
(necklace) made of silver is seized from
the possession of accused Virendra. On
the basis of accused Veeru and on
producing by him the looted property i.e.
one pair of earrings are seized by the
police from the possession of accused
Veeru. All the four looted properties
i.e. two mobile phones, one hasli
(necklace) and one pair of gold earrings
have been identified by Rukmani (PW-8)
and Abhay Kumar Sharma (PW-9) in
identification proceedings and they
admitted that the same belong to them.
All these circumstances complete the
chain of circumstances against the
accused persons. The accused persons have
not produced any evidence in rebuttal of
the same. The defence did not explain the
fact that the looted property and weapon
of offence have been recovered from their
possession in this situation it is clear
that. The accused persons hatched
criminal conspiracy of committing loot in
the house of the deceased, accused Kalli
@ Gopal Sharma, Hariom and Sonu @ Sunil
has committed murder of deceased before
sun rises and after sun set by entering
in the house of the deceased.
 From the criminal conspiracy and in
fulfillment of the same and from the
seizure of weapon of offence and looted
property from the accused Kalli @ Gopal
Sharma, Hariom, Sonu @ Sunil and no
explanation of the same on behalf of
defence it would be presumed that accused
Kalli @ Gopal, Sonu @ Sunil and Hariom by
entering in the house of deceased before
sun rise and after sun set has committed
10
loot and in committing of the said loot
has committed the murder of deceased
Bharosilal Sharma by inflicting injuries
with knife. Because at the time of
committing loot all the three accused
persons Kalli @ Gopal, Hariom and Sonu @
Sunil were present at the place of
occurrence, all the three have also
committed loot and in committing of the
said loot the murder of deceased
Bharosilal has been committed, from this
it is clearly concluded that there were
common intention amongst the accused
persons Kalli @ Gopal, Hariom and Sonu @
Sunil to commit the murder of deceased
Bharosilal. Therefore, the offence
u/s460/302/34 against accused Kalli @
Gopal, Hariom and Sonu @ Sunil are proved
beyond reasonable doubt.
 So far as the question of offence u/s
397/34 IPC against accused Kalli @ Gopal,
Hariom and Sonu @ Sunil is concerned the
weapon used in the offence knife is only
seized from accused Kalli @ Gopal Sharma,
it is clear from the same that at the time
of incident a chhuri, used in the incident
which is deadly and sharp edged was in
possession of accused Kalli @ Gopal
Sharma.”
(Emphasis supplied)
5. The appellant was found along with Hariom, guilty
of the offence under Section 394 read with Section 34
of the IPC, whereas, Section 397 of the IPC was found
proved against Kalli. The Trial Court found Kalli
guilty under Section 397 read with Section 34 of the
IPC. Appellant was also convicted under Section 302
11
read with Section 34 of the IPC. Thereafter, it was
also found that the appellant and others were guilty
of the offences under Sections 11 and 13 of the Madhya
Pradesh Adhiniyam, based on the offences proved
otherwise.
6. The High Court, in appeal, proceeded to find that
eleven circumstances emerged before the Trial Court:
i. The incident in connection with the loot took
place on 08.09.2008 after locking the doors from
inside in the house of the deceased who was
residing alone.
ii. That the postmortem confirms the prosecution
case. It is found that it is natural that on
09.09.2008 when the deceased did not appear to
be seen and was not responding on knocking the
door, Neeraj Bhargava informed PW9 that he was
not responding. PW9 and PW8 departed to the
place to know about the welfare of the deceased.
iii. Upon request of PW9, his neighborPhoolchand climbed through the stairs and he
found the deceased with blood on his hand and
12
was lying dead. He went to the Police Station
Bilaua for lodging the report which was recorded
at about 11:30 P.M in night. The dead body was
referred for postmortem on the same day and the
FIR was lodged in the evening of 10.09.2008.
iv. On 10.09.2008, Ashok Kumar(PW3), in his Case
Diary Statement, disclosed that the Cell Phone
Number 9406586386, generally used by his father,
was also found missing. Another Cell Phone
Number 9928120429, which was made available by
son of deceased, was also found missing.
v. Investigation was conducted by PW15 and
initially names of the assailants were not
dictated by that time.
vi. The successor of PW15-(PW14) conducted
subsequent investigation. Statements of
witnesses were recorded, call details of stolen
mobile sets from Cyber Cell was received. On
18.10.2008, he came to know the names of
assailants from Cyber Cell. Within two days,
arrests were made of the accused, viz., Kalli,
13
Hariom, Parihar, Virendra Kachhi and Veeru. The
Churri(knife) was seized from accused Kalli, one
necklace from Virendra, one pair of gold
earrings from Veeru.
vii. The accused cannot get benefit for the
inaction/ latches of the investigation.
viii. On 02.11.2008, D.P. Sharma-PW12, arrested
appellant and recovered from him one mobile
phone bearing SIM No. 97321820.
ix. As per medical evidence, it is clear that the
deceased was put to death by the accused or any
one of them. Looking to the nature of the
incised wounds seen on the body of the deceased,
the death appears to be homicidal.
x. Identification of properties, which were
seized/ recovered in between 18.10.2008 to
02.11.2008, was conducted on 10.12.2008, which
cannot be said delayed because the persons who
have identified the articles, were the residents
of Gwalior.
14
xi. The motive of the incident is apparently
clear. It was committed for committing
loot/theft, and during the incident of theft,
the deceased was killed by the accused.
7. We have heard learned Senior Counsel for the
appellant and also learned counsel for the state.
Learned Senior Counsel would complain that there is no
evidence against the appellant for convicting him for
the offences, he has been found guilty of. He
complained that the Court’s below have erred in placing
reliance upon PW-5 who allegedly overheard the
conversation between the five accused persons by
standing outside the house of one of them. He points
out that the witness could not be believed. It is
pointed out that PW-1 who was cited by the prosecution
to prove the said conversation has not adhered to the
version which was sought to be attributed to him. It
is highly improbable that PW-5 could have overheard
any such conversation. He pointed out that a clear
discrepancy in regard to the recovery of the mobile
phone from the appellant. In the memorandum relating
15
the alleged recovery of the mobile phone, what is
stated is that the appellant took one mobile phone
make of Nokia of the deceased and he has hidden the
same on the roof of his house. The seizure memo reveals
the following as what was recovered:
“
S.No. Property Signatures
obtained on
packets or
property
1. One mobile phone of Nokia
company of black colour old
and used, model No. 5110
made in Finland CE 0188X no.
490541/30/26305416 is
written. Code No. 0502182 is
written. B.L. is written on
the mobile in red ink and on
its battery a no. 97321820
is written with red ink.
(some portion not
illegible).
“
8. He would then point out that the High Court, in
the recital of circumstances, has found that a Cell
Phone Number 9928120429 was found missing, and then he
points out the eighth circumstance, which is noted by
the Court, is that one mobile phone, bearing SIM Number
97321820, was recovered from the appellant. Therefore,
the phone that was seized from the appellant was not
16
the phone number which was mentioned by the son of the
deceased, PW-3, as was being used by his father. He
further pointed out about the mysterious maxi found at
the premises. In this regard, we may notice the
following findings by the Trial Court:
 “It is argued on behalf of defence
that one blood stained and sleeveless
maxi of white colour having lines of brown
colour, the lower portion of the same is
blood stained and the same is used is
seized by the police wide Ex P-6 from the
place of occurrence, while there was no
woman present at the place of occurrence.
In such a situation, on account of seizure
of maxi from the place of occurrence, the
presence of any woman at the time of the
incident is proved, but who was that
woman, the prosecution did not produce
any evidence in this regard hence, the
prosecution case is doubtful. Only
recovery/ seizure of blood stained maxi
from the place of occurrence does not make
doubtful to the prosecution case. Human
blood was detected on the shirt of
deceased and on the said maxi, there is
no evidence that there was blood of any
other person on the maxi. Because the wife
of the deceased Rukmani Sharma is alive
and Rukmani Sharma (Pw-8) has admitted in
her cross examination that she used to go
occasionally to the house/ place of
occurrence at Bilaua. In this sitation
where there are visits of the wife of
deceased in the house then this
probability could not be denied that the
said maxi would be of the wife of the
deceased. In this situation from the
17
seizure of maxi from place occurrence the
incident could not be doubtful.”
9. He would point out that the Investigating Officer
admitted that he did not carry out any investigation
regarding the maxi. He would further contend that there
is no evidence, as far as the appellant is concerned,
to convict him of the offences. The evidence, even
according to the prosecution witnesses, show that the
other accused, viz., Veeru, Virendra and Kalli, were
known to the prosecution witnesses as persons who would
frequent the house of the deceased. As far as the
appellant is concerned, there is no such evidence. In
short, the contention is that the case is one where
the appellant is convicted without any evidence and
the injustice may be set right.
10. Per contra, learned Counsel for the State
supported the judgment.
11. As already noticed the appellant stands convicted
under Section 460, 302 read with Section 34 of the IPC
and Section 394 read with Section 34 of the IPC. This
is besides convicting the appellant under Sections 13
18
and 14 of the Madhya Pradesh Adhiniyam. The case hinges
entirely on circumstantial evidence. Though eleven
circumstances have been enlisted by the High Court,
the circumstances Nos. 2 and 3 relate to the
prosecution version as to the discovery of the death
of the deceased by his son and his wife. They relate
to going to the place of his residence, finding out
the dead body and the lodging of the FIR. Circumstance
No. 5 also does not amount to a circumstance. Equally,
we are not convinced that the circumstance No. 7, viz.,
that the accused cannot get benefit for the
inaction/latches of the investigation, can amount to
a piece of circumstantial evidence for the prosecution
to discharge its burden to prove the case against the
accused.
12. The circumstances, which can be culled out, can
be put as follows:
 The deceased died in his house where
he was living alone, as a result of
shock and hemorrhage from 6 incised
wounds as noticed and proved by medical
evidence. The death is homicidal too.
There were valuable articles, namely, a
silver necklace, gold earring and two
mobile phones which were found missing
too. These articles have been recovered
19
from the accused as already mentioned.
A knife stood recovered from Kalli, one
of the accused. The other valuable
articles identified by the closed
relative, namely, his wife and his son
stood recovered. From the articles so
recovered, one mobile phone was
recovered from the appellant.
13. There is evidence of prosecution witnesses that
out of the five accused, viz., Kalli, Veeru and
Virendra used to frequent the house of the deceased.
The over hearing of the conversation by PW-5 amongst
the accused prior to the death of the deceased about
their plans to commit loot/theft from the house of the
deceased is another circumstance relied upon.
WHETHER A MOBILE PHONE WAS RECOVERED BASED ON STATEMENT
BY APPELLANT
14. PW12 has deposed that on 01.11.2008, after
arresting the appellant and on enquiry in custody, he
(appellant) made Statement-P13 to the effect that the
looted mobile seized was hidden on the loft of his
room and he would recover the same. He further deposed
that appellant took the looted mobile from the loft
and he prepared the Seizure Memo. In the
cross-examination, he states that the seized mobile
20
was of the deceased. He further stated that no
documents were produced. He denied that he had planted
the mobile from anywhere and false proceedings have
been done. PW7 has been examined to prove, inter alia,
that he was called to the Police Station, and after 15
to 20 days of the proceedings relating to the recovery
of the knife from Kalli, enquiry was made from the
person, who he has told was Sonu-appellant. On making
enquiry, he gave an information in respect of the
mobile. He deposed that he has signed on the
Statement-P13 [the Statement purportedly to be under
Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as, ‘the Evidence Act’, for
short)]. He also admits that he had signed on the
Seizure Memo prepared based on the
Statement-P14. Thus, PW7 and PW12 prove that a
statement was given by the appellant while in custody.
Based on the statement, a mobile phone was recovered
from the appellant. The recovery was from his house.
It was not from an open space.
21
WHETHER RECOVERED PHONE PROVED AS BELONGING TO THE
DECEASED. EVIDENCE RELATED TO THE MOBILE PHONE,
RECOVERED FROM THE APPELLANT
15. PW3-son of the deceased has this to say:
On 10.09.2008, his brother told him that some
persons had committed murder of his father causing
injuries with sharp-edged weapon and took away
goods/articles from the almirah. Along with this,
they also took away two mobile phones of his
father. The mobile phone of his father is
940655863866 which is of BSNL. The sim of the same
has been issued either from Dabra or Bilaua (We
are not concerned with this phone as this phone
has been recovered from another accused).
What is stated next is as follows:
The other phone bearing number 9920121429 make
of M-Nokia was fitted with square LKD Red LED which
had a light while charging the mobile. The mobile
was bought by him at Bombay prior to three months
ago when his father came to Bombay so that
information about him could be communicated.
22
He, however, also says in his cross-examination
that he had stated in his statement to the Police
that when his father came to Bombay, then, he had
given him another phone of make Nokia which had
LED and showing light while charging the mobile.
The mobile number of the other phone was mentioned
in Exhibit D1. He is unable to explain as to why
if such statement is not found in the statement
given by him to the Police. He said that again he
is unable to give the reason as to why it is not
mentioned in the statement to the Police that he
had stated that the father had two sims out of
which one was of Vodafone which was purchased from
Bombay. Lastly, he states in further cross as
follows:-
“Cross-examination by Sh. A.K. Shrotiya,
Advocate for Sunu@Sunil.
I could not tell the date on which I had
given mobile phone to my father the above
said mobile I had purchased from Mahesh
Gahera, Mahesh Gahera is residing Bombay
he lived at Bandra the same was given in
gift the EMI of the same. I could not tell
today I can not produce a receipt of the
same as I was given the above said mobile
as gift to me by Mahesh Gahera, he deals
in mobile phone he as several sets of the
23
same. My father had another mobile phone
made of Nokia EMI no of the same I would
not tell I neither have receipt of the
same nor I could produce the same.”
16. PW9 is another son of the deceased, who has
identified the mobile phones. This is what he has to
say in regard to the mobile phones:
The mobiles were of black colour and having
old antenna. On the battery of one mobile A9406586386 is written in red ink and on the other
mobile on the back side it is written capital ‘BL’,
in English and number 97321820 was written with
red marker. He says that after 8 to 10 days, when
they checked the goods, they came to know that
some articles had been stolen. He further states
that they had informed the Police by that day about
the theft of the mobiles. He and his mother went
to identify the goods. His mother was called first
and he went later.
It is to be remembered that PW3 says he had given
the mobile in question prior to 3 months ago when
deceased came to Bombay. The deceased was staying
24
alone. It is PW9 now who has identified by the number
written in the battery.
17.PW8 is the mother. She says first, on the next
day, Police Officer came and they opened the room and
they saw that almirah was opened and articles were
scattered. Out of the articles, one hensli (necklace
made of silver), gold earrings and two mobile phones
of Nokia Company, were stolen. Except this, no article
was stolen. She says that identification of the
articles was got done by her. In cross-examination on
behalf of Kali alias Gopal, she says that on 11th or
12th, she came to know about the articles which were
stolen. She says that in her statement to the Police,
she has stated that on the next day of incident, the
almirah was opened and the articles were scattered
and, then, she came to know that her goods had been
stolen. She had not made any complaint anywhere in
respect of her stolen goods. She denies allegation
that they have concocted a false story of goods being
stolen after 8 to 10 days of the incident for creating
25
evidence. In this regard, it may be noticed that in
the evidence of PW9-son, he has stated that after going
to the lower room on the next day, he saw the almirah
on that day. Articles were lying outside. Therefore,
they guessed that something had been stolen. At that
time, it could not be known what had been stolen. After
8 to 10 days, when they checked the goods, they came
to know that some articles had been stolen.
18.In the Recovery Memo of the phone from the
appellant, it is stated as follows:
One mobile phone of Nokia company of black
colour mode no. 5110, made in Finland, followed
by a certain number, code number is shown as
0502182 was written, BL is written on the mobile
in red ink and, on its battery, the number 97321820
is written with red ink.
19. According to the deposition of PW3, the recovery
of phone which is attributed from the appellant, was
bearing number 9920121429. The High Court has, in the
impugned judgment, found that another Cell Phone
Number 9928120429, which was made available by his
26
son-PW3, was found missing. Thereafter, the finding by
the High Court is that D.P. Sharma, ASI arrested the
accused and on 02.11.2008 recovered from him one mobile
phone bearing sim number 97321820. It is clear that
the finding by the High Court that recovery was made
from the appellant of one mobile phone sim number
97321820, is clearly contrary to the version of PW3
who purchased or was gifted the phone which he
allegedly gave to his father. Even, according to the
Recovery Memo, the Number 97321820 is shown as the
number on the battery of the mobile phone. The number,
which is allegedly provided by PW3, is the Number
9920121429.
20. In Ashish Jain v. Makrand Singh and others1, it is
held as follows:
 “28. We find substance in the argument
of the learned Amicus Curiae that this
identification was not done in accordance
with due procedure. It is evidence from
the testimony of several of the examined
pledgors, such as PWs 15, 16 and 28, that
the identification procedure was
conducted without mixing the recovered
jewellery with similar or identical
ornaments….”
1 (2019) 3 SCC 770
27
21. In this case also in regard to the mobile phone
only the two mobiles were kept for identification and
it was purportedly identified as noticed by PW9 besides
PW8. In the identification conducted by PW13, it is
come out that two mobile phones were not mixed with any
other mobile phones
22. What is the effect of recovery of the mobile
proceeding on the basis that it belonged to the
deceased? Section 114 of the Evidence Act with
illustration (a) reads as follows:
 “114. Court may presume existence of
certain facts. —The Court may presume the
existence of any fact which it thinks
likely to have happened, regard being had
to the common course of natural events,
human conduct and public and private
business, in their relation to the facts
of the particular case.
Illustrations
The Court may presume—
(a) That a man who is in possession of
stolen goods soon after the theft is
either the thief or has received the goods
knowing them to be stolen, unless he can
account for his possession;”
28
23. The scope of this provision has been considered
by this Court on various occasions. In Sunder Lal alias
Sundera v. State of Madhya Pradesh2, both the accused
and deceased were seen together. After the alleged
murder, the accused went with the article belonging to
the deceased for pledging/selling it. In the
circumstances, the Court took the view that the
ornaments were established to be the ornaments worn by
the deceased. No explanation was forthcoming how the
accused came to be in possession on the very same day
on which the alleged murder was committed. On this,
the Court took the view that the conviction under
Section 302 of the IPC, based on the circumstances,
was correct.
24. On the other hand, in Sanwant Khan and another v.
State of Rajasthan3, one Mahant Ganesh Das, who was a
wealthy person, used to live in a temple of Shri
Gopalji along with another person. Both of them were
found dead. The house had been ransacked and boxes and
almirah opened. It was not known at the time who
2 AIR 1954 SC 28
3 AIR 1956 SC 54
29
committed the offence. Investigation resulted in
arrest of the appellant, and on the same day, he
produced a gold khanti from his bara, where it was
found buried in the ground. Another accused produced
a silver plate. The Court found that there was no
direct evidence. There were certain circumstances
which were rejected by the Sessions Judge and the
solitary circumstance was the recovery of the two
articles. In these circumstances, the Court held,
inter alia, as follows:
“Be that as it may, in the absence of
any direct or circumstantial evidence
whatsoever, from the solitary
circumstance of the unexplained recovery
of the two articles from the houses of
the two appellants the only inference
that can be raised in view of illustration
A to S. 114 of the Evidence Act is that
they are either receivers of stolen
property or were the persons who
committed the theft, but it does not
necessarily indicate that the theft and
the murders took place at one and the same
time.
xxx xxx xxx
Here, there is no evidence, direct or
circumstantial, that the robbery and
murder formed parts of one transaction.
It is not even known at what time of the
night these events took place. It was only
30
late next morning that it was discovered
that the Mahant and Ganpatia had been
murdered and looted. In our Judgment,
Beaumonth, C.J., and Sen J. in – Bhikha
Gobar v. Emperor, AIR 1943 Bom 458 (B)
rightly held that the mere fact that an
accused produced shortly after the murder
ornaments which were on the murdered
person is not enough to justify the
inference that the accused must have
committed the murder.
xxx xxx xxx
In our judgment no hard and fast rule can
be laid down as to what inference should
be drawn from a certain circumstance.
Where, however, the only evidence against
an accused person is the recovery of
stolen property and although the
circumstances may indicate that the theft
and the murder must have been committed
at the same time, it is not safe to draw
the inference that the person in
possession of the stolen property was the
murdered. Suspicion cannot take the
place of proof.
(Emphasis supplied)
25. In Baiju v. State of Madhya Pradesh4, the Court
held:
“14. The question whether a presumption
should be drawn under illustration (a) of
S. 114 of the Evidence Act is a matter
which depends on the evidence and the
circumstances of each case. Thus the
nature of the stolen article, the manner
of its acquisition by the owner, the
nature of the evidence about its
4 AIR 1978 SC 522
31
identification, the manner in which it
was dealt with by the appellant, the place
and the circumstances of its recovery,
the length of the intervening period, the
ability or otherwise of the appellant to
explain his possession, are factors which
have to be taken into consideration in
arriving at a decision.”
That was a case where the Court found that
prosecution had proved the case.
26. This Court, in Shri Bhagwan v. State of Rajasthan5,
held:
 “11. The possession of the fruits of
the crime, recently after it has been
committed, affords a strong and reasonable
ground for the presumption that the party
in whose possession they are found is the
real offender, unless he can account for
such possession in some way consistent
with his innocence. It is founded on the
obvious principle that if such possession
had been lawfully acquired, that party
would be able to give an account of the
manner in which it was obtained. His
unwillingness or inability to afford any
reasonable explanation is regarded as
amounting to strong, self-inculpatory
evidence. If the party gives a reasonable
explanation as to how he obtained it, the
courts will be justified in not drawing
the presumption of guilt. The force of
this rule of presumption depends upon the
recency of the possession as related to
the crime and that if the interval of time
be considerable, the presumption is
weakened and more especially if the goods
5 AIR 2001 SC 2342
32
are of such kind as in the ordinary course
of such things frequently change hands.
It is not possible to fix any precise
period. This Court has drawn similar
presumption of murder and robbery in a
series of decisions especially when the
accused was found in possession of these
incriminating articles and was not in a
position to give any reasonable
explanation. Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC
(Cri) 447] was a case where the deceased
Bachamma was throttled to death and the
appellant was taken into custody and gold
ornaments and other articles were
recovered at his instance. This Court
observed: (Para 13)
 “This is a case where murder and
robbery are proved to have been integral
parts of one and the same transaction and
therefore the presumption arising under
Illustration (a) to Section 114 of the
Evidence Act is that not only the
appellant committed the murder of the
deceased but also committed robbery of
her gold ornaments which form part of the
same transaction.”
PW5, WHO OVERHEARD THE CONSPIRATORIAL CONVERSATION
27. In this case both the courts have apparently drawn
strength from the testimony of PW5. PW5 is a person
whose evidence is virtually the sole testimony relied
on to prove the conspiracy to commit theft/robbery.
It is worthwhile to consider what he has deposed in
Court. He and Mohan Sharma, (who is PW1 and has turned
33
hostile) at the house of Virendra Kushwah (Virendra is
one of the accused in this case) found Virendra, Veeru
Dheemar and three other persons sitting and talking.
When they (PW1, PW5) passed in front of the gate, he
saw that they stopped talking. Then they went little
forward. He told that these goondas/miscreants
(Badmaash) seem to be outsiders. Let us listen to their
conversation. They heard, Virendra Kushwah and Veeru
were saying to the three persons that Bharosilal is an
old man and he has a lot of money and is living alone.
He and Veeru would remain here. Kalli-the appellant
and Hariom would go to the house of the deceased to
commit the theft. Then they left from there. Next day
it was known that someone had killed Bharosilal. In
the evening of the next day he refrained from telling
anyone because they were goondas. Later on, he told
the son of Bharosilal, whose name is Abhay, that these
five accused have committed murder. He identified
them. In cross, he says his house is far from where
the goondas were making conversation. On the 16th day,
when the Police came for inquiry, he told all the above
things to the Police. He himself did not tell by going
34
to the Police Station. He says that he has seen all
the three persons (which apparently includes the
appellant) at the Police Station. On 16.10.2008, when
he was called at the Police Station, at that time, all
the three persons were sitting. [The arrest of the
appellant, it may be noted, is made by PW-12 only on
01.11.2008]. He deposed that he did not also see the
accused persons at the Police Station. The Police made
inquiry in the office and these three accused persons
were detained in the Police Station. The police
officials also not shown him the three accused persons
at there. He further says that when the accused persons
were sent to jail, then S.I. had shown to him the
accused persons in the vehicle. The names of all the
three were told and all the three were got identified.
He further says that he had got knowledge of the names
of all the three persons when Police recorded his
statement, i.e., after 8 to 10 days from 16.10.2008.
Then, he came to the name of the remaining three
persons. In earlier cross-examination on behalf of
another accused, he has stated in his statement that
till the Police recorded his statement. He did not
35
know about the residence of the three persons whose
names he has told except Virendra and Veeru but they
seemed to be outsiders. He further says that he has no
knowledge of the fact that the persons who were sitting
in the house of Virendra, if they were uttering by
taking wrong names of each other. He, no doubt, says
that there was light in the house of Virendra. The
light of the same was scattered.
28. In the case of recovery of an article from an
accused person when he stands accused of committing
offences other than theft also, (in this instance
murder), what are the tests:
i. The first thing to be established is that the
theft and murder forms part of one transaction.
The circumstances may indicate that the theft
and murder must have been committed at the same
time. But it is not safe to draw the inference
that the person in possession of the stolen
property was the murderer [See Sanwant Khan
(supra)];
ii. The nature of the stolen article;
36
iii. The manner of its acquisition by the owner;
iv. The nature of evidence about its identification;
v. The manner in which it was dealt with by the
accused;
vi. The place and the circumstances of its recovery;
vii. The length of the intervening period;
viii. Ability or otherwise of the accused to
explain its possession [See Baiju (supra)].
29. In this case, applying the tests as above, we find
as follows:
I. The appellant has not given any explanation as
to how he came by possession of the mobile. He
has no explanation in his questioning under
Section 313 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘the CrPC’, for
short);
II. As far as length of the intervening period is
concerned, recovery was effected on 02.11.2008
whereas the date of the incident is 08.09.2008.
37
That means, a gap of less than two months. The
arrest of the appellant was effected on
01.11.2008, i.e., a day before the recovery;
III. As far as nature of the article is concerned,
it was a mobile phone which was capable of being
transferred by mere delivery. No doubt, it would
contain a sim which may connect the phone with
the previous owner or person in possession. It
is also common knowledge, however, that it may
be open to the person, who possesses the mobile,
to equip it with a new sim;
IV. As far as identification is concerned, we have
already seen the nature of the evidence;
V. It is not in dispute that the two mobile phones
were kept and they were not mixed with any other
similar looking mobile phones.
30. The appellant, along with the others, were charged
under the offences with the aid of Section 34 of the
IPC. The finding by the Trial Court in this case is
that there was a criminal conspiracy hatched to commit
38
robbery. As far as Section 34 is concerned, it
proclaims the principle of vicarious criminal
liability. The soul of the Section, and the principle
which underlies criminal liability for the acts of
another therein, is the shared intention or the common
intention to commit an offence. The common intention
must be for the very offence which the accused is
charged with. In this case, it is to be noted that
though there is a charge of causing death by
strangulation, the finding is that the death was caused
as a result of the injuries inflicted with the knife.
The knife was, apparently, carried and wielded by the
co-accused-Kalli. From him, in fact, the recovery of
the knife was also effected which becomes all the more
reason for us to conclude that it will be totally
unsafe to convict the appellant of the charges of which
he is found guilty including Section 302 of the IPC
based only on the recovery of the mobile phone where
the recovery itself suffers from suspicion and doubt.
We may, in this regard, notice the view expressed by
39
this Court in Hardev Singh and others v. State of
Punjab6: -
 “9. The view of the High Court that
even the person not committing the
particular crime could be held guilty of
that crime with the aid of Section 34 of
the Penal Code if the commission of the
act was such as could be shown to be in
furtherance of the common intention not
necessarily intended by every one of the
participants, is not correct. The common
intention must be to commit the
particular crime, although the actual
crime may be committed by any one sharing
the common intention. Then only others
can be held to be guilty………..”
(Emphasis supplied)
31. In Arun v. State by Inspector of Police, Tamil
Nadu7, this Court, dealing with the case where Section
34 of the IPC was sought to be invoked against the
appellant in the matter of committing the offence of
murder. No doubt, it was a case where there was no
charge or evidence that he committed the murder. This
Court referred to the tests laid down in the decision
in Dharam Pal v. State of Haryana8 and we would refer
6 AIR 1975 SC 179
7 2008 (15) SCC 501
8 1978 (4) SCC 440
40
to paragraphs 14 and 15 of the said judgment. The same
reads as under:
 “14. It may be that when some persons
start with a pre-arranged plan to commit
a minor offence, they may in the course
of their committing the minor offence
come to an understanding to commit the
major offence as well. Such an
understanding may appear from the conduct
of the persons sought to be made
vicariously liable for the act of the
principal culprit or from some other
incriminatory evidence but the conduct or
other evidence must be such as not to
leave any room for doubt in that behalf.
15. A criminal court fastening
vicarious liability must satisfy itself
as to the prior meeting of the minds of
the principal culprit and his companions
who are sought to be constructively made
liable in respect of every act committed
by the former. There is no law to our
knowledge which lays down that a person
accompanying the principal culprit shares
his intention in respect of every act
which the latter might eventually commit.
The existence or otherwise of the common
intention depends upon the facts and
circumstances of each case. The intention
of the principal offender and his
companions to deal with any person who
might intervene to stop the quarrel must
be apparent from the conduct of the
persons accompanying the principal
culprit or some other clear and cogent
incriminating piece of evidence. In the
absence of such material, the companion
or companions cannot justifiably be held
guilty for every offence committed by the
principal offender.” (Emphasis Supplied)
41
32. As far as the presumption being drawn of common
intention, we notice the judgment of this Court in
Brijlal Pd. Sinha v. State of Bihar9:
 “11……..The liability of one person
for an offence committed by another in
the course of a criminal act perpetrated
by several persons will arise under
Section 34 of the Penal Code, 1860 only
where such criminal act is done in
furtherance of a common intention of the
persons who join in committing the crime.
Direct proof of common intention will, of
course, be difficult to get and such
intention can only be inferred from the
circumstances. But the existence of a
common intention must be a necessary
inference from the circumstances
established in a given case. A common
intention can only be inferred from the
acts of the parties. Unless a common
intention is established as a matter of
necessary inference from the proved
circumstances the accused persons will be
liable for their individual act and not
for the act done by any other person. For
an inference of common intention to be
drawn for the purposes of Section 34, the
evidence and the circumstances of the
case should establish, without any room
for doubt, that a meeting of minds and a
fusion of ideas had taken place amongst
the different accused and in prosecution
of it, the overt acts of the accused
persons flowed out as if in obedience to
the command of a single mind. If on the
evidence, there is doubt as to the
9 1998 (5) SCC 699
42
involvement of a particular accused in
the common intention, the benefit of
doubt should be given to the said accused
person. ….”
33. In Girija Shankar v. State of U.P.10, this Court
made the following observations:
“9. …… In order to bring home the
charge of common intention, the
prosecution has to establish by
evidence, whether direct or
circumstantial, that there was plan or
meeting of minds of all the accused
persons to commit the offence for which
they are charged with the aid of Section
34, be it pre-arranged or on the spur
of the moment; but it must necessarily
be before the commission of the
crime.….”
(Emphasis supplied)
34. Thus, in this case, as far as the appellant is
concerned, the evidence against him essentially
consists of the recovery of the mobile phone and there
is discrepancy about the number which we have noted.
PW5 has not taken the name of the appellant.
Essentially evidence of PW5 and the recovery is relied
on to hold that the chain of circumstances is complete.
We have noticed the testimony of PW5. The appellant is
10 2004 (3)SCC 793
43
not mentioned as one of the persons who used to visit
the deceased’s father though three of the other accused
were named, viz., Veeru, Kalli and Virendra. There is
complaint from the appellant that no Test
Identification Parade was conducted for the accused.
We have referred to what PW5 has deposed.
35. In the facts of this case, we are inclined to think
that it would not be safe to uphold the conviction of
the appellant. He would be entitled to the benefit of
doubt. We allow the appeal. The impugned judgment in
so far as it relates to the appellant will stand set
aside and he will stand acquitted. The appellant’s
bail bond shall stand discharged. He will be set at
liberty if his custody is not required in connection
with any other case.
…………………………………………………J.
[SANJAY KISHAN KAUL]
…………………………………………………J.
 [K.M. JOSEPH]
NEW DELHI;
MAY 29, 2020.

“single counselling” for filling up seats in the Post Graduate Medical Courses leading to Degrees and Diplomas and the seats in DNB (Diplomate of National Board) Courses.= hope that the authorities will be able to have common counselling for DNB PG seats along with all Post Graduate seats leading to Degrees and Diplomas as set out in paragraph 19 of the response of the National Board of Examination so also in paragraph 22 of the response of Ministry of Health and Family Welfare for coming years starting with NEETPG 2021 Examination.

Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 1
 NON-REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. OF 2020
(D.No.11011 of 2020)
Alapati Jyotsna & Others …Petitioners
VERSUS
Union of India & Others …Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. This Petition under Article 32 of the Constitution of India seeks
appropriate orders directing the Respondents to conduct “single counselling”
for filling up seats in the Post Graduate Medical Courses leading to Degrees
and Diplomas and the seats in DNB (Diplomate of National Board) Courses.
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 2
2. On 01.11.2019, a Notification was issued and Information Bulletin was
published for holding NEET-PG1 2020 examination. The relevant portions of
the Information Bulletin are as under:-
“…
SCOPE OF NEET-PG 2020
NEET-PG 20202 shall be the single qualifying cum
ranking examination for admission to Post Graduate
MD/MS/Diploma Courses for the academic session
2020 which will include the following:
i. All India 50% quota seats (all States & UT’s)
ii. State quota seats. (including the UT’s)
iii. All Private Medical Colleges, Institutions &
Universities/ Deemed Universities all across the
country
iv. Armed Forces Medical Services Institutions
v. DNB (Post MBBS) Courses.
…
…
3. GENERAL INSTRUCTIONS, TERMS AND
CONDITIONS
3.1 NEET-PG 2020 is a qualifying-cum-ranking
examination for admission to MD/MS/Post Graduate
Diploma Courses of 2020 admission session. NEETPG 2020 will be conducted by National Board of
Examinations. Candidates may note that NBE has no
role regarding counselling and allotment of seats
except for DNB courses. NBE will not entertain any
queries regarding availability of seats, counselling and
allotment of seats other than for DNB Courses.
…..
…..
15. COUNSELLING FOR PG SEATS
1 National Eligibility cum Entrance Test (Post Graduate)
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 3
The Merit Based Counselling for allotment of PG seats
shall be in accordance with gazette notification dated
31.07.2017. As per the Gazette notification:
“The Designated Authority for counselling for the 50%
All India Quota seats of the contributing States, as per
the existing scheme for Diploma and M.D./M.S.
courses shall be the Directorate General of Health
Services, Ministry of Health and Family Welfare,
Government of India. Further, the Directorate General
of Health Services, Ministry of Health and Family
Welfare, Government of India shall conduct
counselling for all post graduate courses (Diploma,
M.D./M.S.,D.M/M.Ch) in Medical Education
Institutions of the Central Government, Universities
established by an Act of Parliament and the Deemed
Universities.
The counselling for admission to Diploma and
M.D./M.S. in all Medical Educational Institutions in a
State/Union Territory, including, Medical Education
Institutions established by the State Government
University established by an Act of State/Union
Territory Legislature, Municipal Bodies Trust, Society,
Company or Minority institution shall be conducted by
the State/Union Territory Government.
The counselling authorities for allotment of various
types of seats to eligible and successful candidates is as
follows:
S. No. Types of
seats
Counselling
Authority
1. All India 50% quota
AFMS and ESI
Institutions Medical
Educational Institutions
of Central Govt.
Universities established
by an Act of Parliament
Deemed Universities.
Directorate
General of
Health Services,
Ministry of
Health & Family
Welfare, Govt.
of India
Website:
www.mcc.nic.in
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 4
2. State quota seats in All
Medical Institutions in a
State and seats in
institutions established
by State Govt.,
Universities established
by Act of State/Union
Territory Legislature,
Municipal Bodies Trust,
Society, Company or
Minority Institutions.
State
Government or
authority
designated by
the State
Government.
Candidates are advised to regularly visit the website of
MCC, NBE & State Counselling Authorities for latest
updates. … …
17. NEET PG FOR DNB COURSES
The merit list of NEET-PG 2020 shall be utilized by
National Board of Examinations for admission to
various Post MBBS DNB courses. No separate DNB
CET shall be conducted.
…
17.3 ALLOTMENT OF SEATS
The allotment of seats will be done by NBE based on
NEET-PG 2020 marks and merit position.
NBE will publish a separate information bulletin for
admission to Post MBBS DNB courses.”
3. The petitioners 1 to 4 appeared in the examination and secured ranks
35057, 35071, 45906 and 39667 respectively. In the counselling undertaken
by the Medical Counselling Committee, going by their ranks, the petitioners
could not get Degree courses or courses of their choice. Their grievance is that
it is only after the regular seats of Post Graduate Courses leading to Degree and
Diploma are exhausted that the counselling for DNB courses is undertaken; and
those who have secured any seat in courses leading to Degrees and Diplomas
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 5
are disentitled to lay any claim for DNB courses. Their grievance as culled out
in one of the grounds taken in the Writ Petition is as under:-
“V. Because the candidates like the petitioners are
being deprived of their choice of allotment as the
counselling for DNB seats is not being conducted by
the Medical Counselling Committee. The All India
quota consists of various kinds of seats including
payment seats and free seats. Suppose the petitioners
select a payment seat or a discipline about which they
are not keen, they cannot opt out and wait for
counselling by the National Board of Examinations for
DNB seats. They may or may not be allotted seat in
DNB courses. If the counselling is conducted through
a single stream for the DNB courses also, the
candidates will be free to opt for either a payment seat
of a seat in DNB courses. Now as they are not sure of
getting a seat in DNB, they cannot forfeit their seat in
the MD and MS courses through the same are not of
their choices.”
4. This Writ Petition came up on 29.04.2020 when the following order was
passed by this Court:-
“Mr. Anumolu submitted that NEET Examination
is the qualifying examination for admissions to Post
Graduate courses leading to Degrees of MS and MD as
well as various Diplomas, whereafter the rankings in
the NEET Examination are taken into account to fill up
the seats available for Diplomate of National Board
(DNB) Courses. However, the candidates who are
selected either for said Post Graduate Degree or
Diploma Courses are not entitled to put in their
candidature for DNB Courses.
Mr. Anumolu further submitted that DNB Courses
have been made equivalent to Post Graduate Degrees
of MS and MD. Resultantly the candidates who may
get selected for Diploma Courses would thereafter lose
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 6
the chance to be considered for courses like DNB
which are equivalent to Degree courses and would thus
be put to great prejudice.
Issue notice, returnable on 08.05.2020.”
5. Thereafter concerned respondents put in their appearances and
considering the urgency in the matter, all the learned counsel were finally heard
on 08.05.2020 at the notice stage. At the request of the learned counsel
appearing for the respondents they were granted some time to place on record
their responses along with relevant documents and material.
6. The submissions in the affidavit in reply of the National Board of
Examination which is the designated authority to conduct NEET-PG 2020
Examination are as under:-
“10. It is respectfully submitted that the rank obtained
by a candidate in the NEET-PG is utilized for various
counsellings including All India Quota, State Quota
and DNB seats.
11. It is respectfully submitted that the counselling of
All India Quota seats of post graduate medical courses
is being conducted by the Medical Counselling
Committee, DGHS, Central Government (hereinafter
referred to as “MCC”) First round of which
commenced on 12.03.2020 and was ultimately
complete by 24.4.2020 with various candidates joining
the allotted institutes, the details whereof are set out in
the affidavit of the Union of India. In terms of letter
U-12021/44/2019-MEC dated 06.05.2020 issued by
the MCC, time to resign from the allotted institute
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 7
through First round of counselling, has been extended
to 12.5.2020 in view of the COVID 19 Pandemic.
12. It is respectfully submitted that in the meanwhile,
the answering respondent vide notice dated 1.5.2020
had initiated their counselling process for the DNB
seats and the 1
st Round of Counselling for DNB seats
has commenced on 8.5.2020.”
… … …
14. It is therefore respectfully submitted that since
the counselling process for the DNB seats has already
been initiated vide public notice dated 1.5.2020 and the
DNB seat matrix is already out, candidates can
reasonably assess their options on the basis of their
merit in the NEET-PB Examination, 2020.
15. It is respectfully submitted that in terms of the
extant counselling process, a candidate who has
participated in the first round AIQ can also participate
in the first round DNB, the results whereof will be
declared by 22.05.2020. If the candidate prefers the
allotment made to him in the 1st Round DNB to the
allotment made to him in the 1st Round AIQ, he can opt
for the same. If on the other hand he is not satisfied
with either, he can move out and seek to participate in
the further rounds of AIQ Counselling and DNB
Counselling, in accordance with the terms and
conditions are set out in the respective brochures for
the same. It is therefore submitted that the grievance
of petitioner that they are not given sufficient
opportunity and choice is even otherwise
misconceived.
… … …
17. It is respectfully submitted that as on 12.05.2020,
13527 candidates have registered for the counselling
for the DNB seats and the answering Respondent has
floated 3069 DNB (Post MBBS) seats for the First
round of counselling. It is relevant to mention herein
that few DNB (Post MBBS) seats are likely to be added
in the Second round of counselling.
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 8
… … …
COMMON COUNSELLING FOR THE NEXT
ADMISSION SESSION OF 2021:
19. It is submitted that after some deliberations
between Ministry of Health & Family Welfare, Govt.
of India and the answering Respondent, the answering
Respondent agreed “in principle” for consideration for
conducting common counselling for DNB PG seats
alongwith MD/MS seats from the next year and
accordingly a letter dated 27/02/2020 was sent to the
Ministry of Health & Family Welfare, Govt. of India.”
7. The Medical Council of India in its response submitted:-
“7. It is submitted that at the post-graduate level in the
field of Medicine the specialty/subjectare divided
under two categories-Clinical and Non-clinical. It is
relevant to submit that the preference of every student
is to first get a seat in Clinical subjects, and then aim
for securing a seat in their preferred Clinical subject in
which the student is desirous of taking admission and
pursue further studies. Seats in Non-Clinical subjects
at the post-graduate level are not the preferred choice
of students and there are very few students who opt for
these seats.
8. It is humbly submitted that at the post graduate
level the entire counselling process from the
perspective of the students revolves around the
specialty/subject in which the student is able to secure
the seat based on their rank in the NEET examination.
It is further submitted that generally students prefer to
opt for Diploma or DNB course in Clinical subject over
Post Graduate Degree Course in Non-Clinical subject.
9. It is further submitted that the objective behind
conducting online common counselling is to provide a
level playing field to all the candidates. It ensures that
the meritorious students as per their NEET rank are
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 9
given the first preference to opt for the
subject/specialty in which they intend to take
admission, subject to the availability of seats in
Clinical and Non-Clinical subjects. Further, online
common counselling conducted by DGHS is a single
window system to allot seats in PG Medical Courses
(MD/MS/and Diploma seats). It would benefit the
students to include DNB courses in the said online
common counselling, thereby, giving the students
equal opportunity to compete for all the available seats
in the above-mentioned courses.
10. In the respectful submission of the answering
respondent, it would be in the larger interest of the
students that they are given the option of choosing
between MD/MS and Diploma seats as well as DNB
courses in the online common counselling conducted
by DGHS. In other words, the allotment of seats in
DNB courses may be done by the DGHS at the time of
online common counselling for All India Quota seats
in MD/MS and Diploma seats. This will ensure that
the students have the option of choosing seats of their
choice in MD/MS and Diploma seats as well as DNB
seats.
11. It is further submitted that as far as the admission
for the academic year 2020-21 is concerned the 1st
round of counselling for 50% All India Quota seats in
MD/MS/Diploma and MDS courses is already
concluded and seats have been allotted to the students.
In the respectful submission of the answering
respondent, at this juncture, to turn the clock back and
redo the whole exercise will lead to a complete and
avoidable chaos. It is most humbly and respectfully
submitted that direction, if any, be passed by this
Hon’ble Court may be made applicable from the next
academic session 2021-22.”
8. The stand taken by the Union of India, Ministry of Health and Family
Welfare is to the following effect:-
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 10
“11. The petitioners herein were well aware in the
month of November, 2019 that there are two systems
of P.G. Medical counselling, for MD/MS Courses the
counselling for 50% AIQ/Central Universities/Deemed
Universities/Central Institutes is conducted by Medical
Counselling Committee (MCC) and for the remaining
50% State Quota seat is done by respective DMEs.
Further, it was also categorically mentioned that
counselling for DNB seats is to be done by National
Board of Examination at their level as per NBE Rules
and Regulations for admission to various Post
Graduate DNB Courses on the basis common merit
which students get through NEET-PG Examination.
Despite being well aware that there would not be
common counselling and it may result in a scenario
where they have to choose between the two, the
petitioners choose not to challenge it at the relevant
time.
… … …
15. As per the schedule for first round of counselling
total 41,903 candidates had participated in the NEET
PG, 2020 Counselling (Medical and Dental) and
14,381 Candidates had been allotted a seat through the
NEET PG Counselling, 2020 (Medical & Dental) and
9,071 Candidates have joined the allotted college either
by online or physical reporting to the
concerned/allotted college (Medical & Dental) till
24.04.2020 upto 05:00 p.m.
… … …
22. The answering Respondent is ready and willing to
conduct a common Counselling for MD/MS and DNB
Courses from the next academic session i.e. 2021-22.”
9. As stressed in the responses of the National Board of Examination as
well as of the Ministry of Health and Family Welfare the counselling and
consequential process of admission is now at an advanced stage. The
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 11
submission made by the petitioners, if accepted at this stage, would result in
complete disturbance of the process of admission for the present year. At the
same time the submission raised by the petitioners has found acceptance in the
response of the Medical Council of India particularly in paragraphs 8 and 10.
Insofar as the present year is concerned, in view of the amendments to the
Schedule as a result of Covid 19 Pandemic, a window of opportunity was still
available to the concerned candidates as stated in paragraph 15 of the response
filed by the National Board of Examination.
10. Since the petitioners have approached the Court at a stage where the
entire process has been undertaken and many candidates have been allocated
various courses in the Counselling, we do not deem it appropriate to pass any
direction for the present year. However, going by the assertions made in the
response filed by the Medical Council of India, we may observe that a common
counselling or single online counselling in the coming years would definitely
take care of any similar grievance. Even paragraph 19 of the response filed by
the National Board of Examination, the designated authority to conduct NEETPG, 2020 Examination accepts that said authority is agreeable “in principle” to
conduct common counselling from the next year.
Writ Petition (Civil) No._____ of 2020 (Diary No.11011 of 2020)
Alapati Jyotsna & Others vs. Union of India & Others
 12
11. Consequently, while refusing to pass any directions in so far as the
present year is concerned, we hope that the authorities will be able to have
common counselling for DNB PG seats along with all Post Graduate seats
leading to Degrees and Diplomas as set out in paragraph 19 of the response of
the National Board of Examination so also in paragraph 22 of the response of
Ministry of Health and Family Welfare for coming years starting with NEETPG 2021 Examination.
12. This Writ Petition stands disposed of accordingly.
.………..…..……..……J.
 (Uday Umesh Lalit)
 ..………….……………J.
(Dinesh Maheshwari)
New Delhi;
May 26, 2020.

the acquittal of Pramod Singh by the Trial Court was for the reason that he was supposed to have used tamancha (a local firearm), but the police had not recovered the empty cartridges or the pellets from the spot. Pertinently, the Post Mortem Report also does not refer to any pellet injuries. Thus, Pramod Singh was given a benefit of doubt.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2011
OMBIR SINGH ..... APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH AND
ANOTHER ..... RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
The appellant Ombir Singh has challenged the judgment
dated 27.10.2009, by the Allahabad High Court, confirming his
conviction under section 302 read with Section 34 of the Indian
Penal Code, 1860 (‘IPC’, for short) and section 27 of the Arms Act,
1959, for the murder of Abhaiveer Singh Bhadoria @ Munna on
15.07.1999 at about 9 am. The appellant has also challenged the
sentence of life imprisonment and fine of Rs. 11,000/- imposed by
the Trial Court and confirmed by the High Court.
2. Homicidal death of Abhaiveer Singh Bhadoria @ Munna on
15.07.1999 at about 9 am near the house of one Shivraj Singh
Criminal Appeal No. 982 of 2011 Page 1 of 12
Sengar is not challenged and disputed before us. The said factum
has been proved, without any doubt, by documentary and ocular
evidence which we would notice below and also by the post
mortem report Ex.A/2 proved by Dr. Balbeer Singh (PW-3), who
was then working as a surgeon in the District Hospital Itawa. He
has deposed that Abhaiveer Singh Bhadoria @ Munna had died as
a result of as many as 5 firearm injuries that he had identified by
referring to five entry and five exit wounds. We shall subsequently
refer to Dr. Balbeer Singh’s (PW-3) testimony as to the time when
he had received the dead body of Abhaiveer Singh Bhadoria
@Munna and the details and documents made available to him by
the Investigation Officer.
3. The prime arguments on behalf of the appellant are that the
alleged eye-witnesses Dinesh Singh, the original complainant and
brother of the deceased Abhaiveer Singh Bhadoria @ Munna, who
has deposed as PW-1, and Mukesh Singh (PW-2) are unreliable,
and they had been set-up and planted by the prosecution. In
support, reliance is placed upon Dinesh Singh’s (PW-1) and
Mukesh Singh’s (PW-2) version that they had not seen anyone
from the field unit, though 14 photographs (Ex-13/C-1 to Ex-13/C13) were taken by the field unit, as proved and deposed to by
Criminal Appeal No. 982 of 2011 Page 2 of 12
Rakesh Babu and Omkar Singh who had testified as Court
Witnesses, CW-2 and CW-3. It was highlighted that the First
Information Report (‘FIR’, for short), purportedly recorded on the
details and information furnished by Dinesh Singh (PW-1), contrary
to the mandate of Section 157 of the Code of Criminal Procedure
(‘Code’, for short) was belatedly sent and received by the ilaka
magistrate (Chief Judicial Magistrate in this case) after 11 days,
and that the FIR was not sent to Dr. Balbeer Singh (PW-3) along
with the inquest papers. Thus, it was submitted that the FIR was
ante-timed and in the background of personal and political rivalry
between the parties, the appellant had been framed by the two
purported eye witnesses Dinesh Singh (PW-1) and Mukesh Singh
(PW-2), who were not present at the spot and therefore, were not
injured. The Trial Court had not accepted their testimonies against
Pramod Singh, who as per said witnesses was present with the
appellant and an equal participant in the occurrence, and was
acquitted. These contentions have been contested by the counsel
for the State, who has relied on the findings of the Trial Court
which were affirmed by the High Court.
4. There was undoubtedly a delay in compliance of section 157 of the
Code, as the FIR was received in the office of the Chief Judicial
Criminal Appeal No. 982 of 2011 Page 3 of 12
Magistrate with a delay of 11 days. Effect of delay in compliance of
Section 157 of the Code and its legal impact on the trial has been
examined by this court in Jafel Biswas v. State of West Bengal1
after referring to the earlier case laws, to elucidate as follows:
“18. In State of Rajasthan [State of Rajasthan v. Daud
Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in
paras 27 and 28, this Court has laid down as follows:
(SCC pp. 620-21)
“27. The delay in sending the special report was also
the subject of discussion in a recent decision
being Sheo Shankar Singh v. State of U.P. [Sheo
Shankar Singh v. State of U.P., (2013) 12 SCC 539 :
(2014) 4 SCC (Cri) 390] wherein it was held that before
such a contention is countenanced, the accused must
show prejudice having been caused by the delayed
dispatch of the FIR to the Magistrate. It was held,
relying upon several earlier decisions as follows: (SCC
pp. 549-50, paras 30-31)
‘30. One other submission made on behalf of the
appellants was that in the absence of any proof of
forwarding the FIR copy to the jurisdiction Magistrate,
violation of Section 157 CrPC has crept in and thereby,
the very registration of the FIR becomes doubtful. The
said submission will have to be rejected, inasmuch as
the FIR placed before the Court discloses that the same
was reported at 4.00 p.m. on 13-6-1979 and was
forwarded on the very next day viz. 14-6-1979. Further,
a perusal of the impugned judgments of the High Court
[Sarvajit Singh v. State of U.P., 2003 SCC OnLine All
1214 : (2004) 48 ACC 732] as well as of the trial court
discloses that no case of any prejudice was shown nor
even raised on behalf of the appellants based on
alleged violation of Section 157 CrPC. Time and again,
this Court has held that unless serious prejudice was
demonstrated to have been suffered as against the
accused, mere delay in sending the FIR to the
Magistrate by itself will not have any deteriorating (sic)
1 (2019) 12 SCC 560
Criminal Appeal No. 982 of 2011 Page 4 of 12
effect on the case of the prosecution. Therefore, the
said submission made on behalf of the appellants
cannot be sustained.
31. In this context, we would like to refer to a recent
decision of this Court in Sandeep v. State of
U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 :
(2012) 3 SCC (Cri) 18] wherein the said position has
been explained as under in paras 62-63: (SCC p. 132)
“62. It was also feebly contended on behalf of the
appellants that the express report was not forwarded to
the Magistrate as stipulated under Section 157 CrPC
instantaneously. According to the learned counsel FIR
which was initially registered on 17-11-2004 was given
a number on 19-11-2004 as FIR No. 116 of 2004 and it
was altered on 20-11-2004 and was forwarded only on
25-11-2004 to the Magistrate. As far as the said
contention is concerned, we only wish to refer to the
reported decision of this Court in Pala Singh v. State of
Punjab [Pala Singh v. State of Punjab, (1972) 2 SCC
640 : 1973 SCC (Cri) 55] wherein this Court has clearly
held that (SCC p. 645, para 8) where the FIR was
actually recorded without delay and the investigation
started on the basis of that FIR and there is no other
infirmity brought to the notice of the court then, however
improper or objectionable the delay in receipt of the
report by the Magistrate concerned be, in the absence
of any prejudice to the accused it cannot by itself justify
the conclusion that the investigation was tainted and the
prosecution insupportable.
63. Applying the above ratio in Pala Singh [Pala
Singh v. State of Punjab, (1972) 2 SCC 640 : 1973 SCC
(Cri) 55] to the case on hand, while pointing out the
delay in the forwarding of the FIR to the Magistrate, no
prejudice was said to have been caused to the
appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, our
earlier detailed discussion discloses that there was no
dearth in that aspect. In such circumstances we do not
find any infirmity in the case of the prosecution on that
score. In fact the above decision was subsequently
followed in Sarwan Singh v. State of Punjab [Sarwan
Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC
(Cri) 646] , Anil Rai v. State of Bihar [Anil Rai v. State of
Criminal Appeal No. 982 of 2011 Page 5 of 12
Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009]
and Aqeel Ahmad v. State of U.P. [Aqeel Ahmad v. State
of U.P., (2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] ”’
28. It is no doubt true that one of the external checks
against antedating or ante-timing an FIR is the time of
its dispatch to the Magistrate or its receipt by the
Magistrate. The dispatch of a copy of the FIR “forthwith”
ensures that there is no manipulation or interpolation in
the FIR. [Sudarshan v. State of Maharashtra, (2014) 12
SCC 312 : (2014) 5 SCC (Cri) 94] If the prosecution is
asked to give an explanation for the delay in the
dispatch of a copy of the FIR, it ought to do so.
[Meharaj Singh v. State of U.P., (1994) 5 SCC 188 :
1994 SCC (Cri) 1391] However, if the court is convinced
of the prosecution version's truthfulness and
trustworthiness of the witnesses, the absence of an
explanation may not be regarded as detrimental to the
prosecution case. It would depend on the facts and
circumstances of the case. [Rattiram v. State of M.P.,
(2013) 12 SCC 316 : (2014) 1 SCC (Cri) 635] ”
19. The obligation is on the IO to communicate the
report to the Magistrate. The obligation cast on the IO is
an obligation of a public duty. But it has been held by
this Court that in the event the report is submitted with
delay or due to any lapse, the trial shall not be affected.
The delay in submitting the report is always taken as a
ground to challenge the veracity of the FIR and the day
and time of the lodging of the FIR.
20. In cases where the date and time of the lodging of
the FIR is questioned, the report becomes more
relevant. But mere delay in sending the report itself
cannot lead to a conclusion that the trial is vitiated or
the accused is entitled to be acquitted on this ground.
21. This Court in Anjan Dasgupta v. State of
W.B. [Anjan Dasgupta v. State of W.B., (2017) 11 SCC
222 : (2017) 4 SCC (Cri) 280] (of which one of us was a
member, Hon'ble Ashok Bhushan, J.) had considered
Section 157 CrPC. In the above case also, the FIR was
dispatched with delay. Referring to an earlier judgment
[Rabindra Mahto v. State of Jharkhand, (2006) 10 SCC
432 : (2006) 3 SCC (Cri) 592] of this Court, it was held
that in every case from the mere delay in sending the
Criminal Appeal No. 982 of 2011 Page 6 of 12
FIR to the Magistrate, the Court would not conclude that
the FIR has been registered much later in time than
shown.
Therefore, delay in compliance of Section 157 of the Code
cannot, in itself, be a good ground to acquit the appellant. Albeit,
this fact has to be considered when we examine the credibility of
the version of the eye-witnesses; in this case, the testimonies of
Dinesh Singh (PW-1) and Mukesh Singh (PW-2). We must also
keep in mind that there were questions raised by the complainant
and the family members of the deceased as to the manner in
which the investigation was carried by the first Investigation Officer
and his team, and therefore the investigation was subsequently
transferred to the Crime Branch- Crime Investigation Department
(‘C.B.C.I.D’, for short) on 01.08.1999.
5. While examining this contention, it may be pertinent to note that
Dr. Balbeer Singh (PW-3) in his testimony had referred to the Post
Mortem Report (Ex-A/2) and had stated that the post mortem was
conducted on 15.07.1999, at about 03:00 p.m. Dr. Balbeer Singh
(PW-3) had also referred to several papers that were sent to him
including the panchayatnama. The covering letter/document
exhibited as Ex-A/5, refers to as many as nine documents
attached with it. However, Dr. Balbeer Singh (PW-3) had deposed
Criminal Appeal No. 982 of 2011 Page 7 of 12
that the documents at serial number 6 and 7 were missing. In his
cross-examination, Dr. Balbeer Singh (PW-3) had categorically
stated that the seven documents including the panchayatnama
were received and signed by him. The panchayatnama was the
reproduction of the first statement of Dinesh Singh (PW-1) that was
recorded by S.I. Nanhu Mal who had deposed as PW-7.
Interestingly, this PW-7 was not questioned as to delay in the
service of FIR. The FIR Ex-A/1 is a detailed one and refers to the
presence of Dinesh Singh (PW-1), Mukesh Singh (PW-2) and
Virendra Kumar Chaudhary at the time of the incident. It
eloquently describes the manner in which the murder was
committed. Dinesh Singh (PW-1) and Mukesh Singh (PW-2) were
subjected to intensive cross-examination. Dinesh Singh (PW-1)
and Mukesh Singh (PW-2) have identically testified that on
15.07.1999 at around 9 a.m., they along with the deceased
Abhaiveer Singh Bhadauriya@ Munna and Veerendra Kumar
Chaudhary came from Shastri crossing to station and halted their
TATA Sumo there. They walked towards the house of one Shivraj
Singh Sengar. Since it was the deceased who wanted to meet
Shivraj Singh Sengar, he took the lead and was 18 steps (kadam)
ahead of them. The deceased was stopped, near the government
tap (Nal) which was installed near the house of Shivraj Singh
Criminal Appeal No. 982 of 2011 Page 8 of 12
Sengar, by the appellant Ombir Singh, his brother Shiv Veer Singh,
and Roopesh Singh @ Rocky who had rifles in their hands, and
Pramod Singh (acquitted by the trial court) who had a countrymade revolver (tamancha) with him. Shiv veer Singh, the brother
of the appellant shouted--“saala bohot mukadmebaaz banta hai,
roz-roz stay le aata hai, ye jail nhi jayega. Is saale ko jaan se maar
do”, then all of them opened fire, with their arms, upon the
deceased Abhaiveer Singh Bhadauriya@ Munna who fell down
after receiving the shots. The accused party had threatened
Dinesh Kumar (PW-1), Mukesh Singh (PW-2) and Veerendra
Singh who then fled through the western street viz. to the direction
from where they came from. We have examined their testimonies
and find that they had correctly identified the appellant, and also
narrated the motive, which would be a corroborative factor. The
clothes worn by Dinesh Singh (PW-1) and Mukesh Singh (PW-2)
were seized and as per the Chemical Examination Report
presence of human blood was ascertained. In our opinion, the
Trial Court and the High Court have correctly relied upon their
ocular evidences. The testimony of Head Constable Maujan Singh
(PW-6), who was posted as a shadow to guard the appellant
Ombir Singh, clearly mentions that on 15.07.1999 i.e. on the date
of incidence, he had visited the residence of the appellant at 06:45
Criminal Appeal No. 982 of 2011 Page 9 of 12
a.m. and the appellant was not present. He was informed that the
appellant had gone out. It may be noted that the occurrence had
taken place at 9:00 a.m. on 15.07.1999 and the appellant had
absconded after the incidence and was arrested on 22.07.1999.
Thus, we are not convinced and would reject the argument that the
appellant should be acquitted for non-compliance of section 157 of
the Code.
6. As to the field unit, their presence cannot be doubted as is clear
from the statement of Rakesh Babu (CW-2) and Omkar Singh
(CW-3). They had taken photographs exhibited 13/C-1 to 13/C-13.
Ambiguity as to the presence of the field unit and to the
photographs primarily arises from the testimonies of Dinesh Singh
(PW-1) and Mukesh Singh (PW-2) who had not confirmed their
presence and the photographs, but this can easily be explained as
the said witnesses had recently witnessed the murder of Abhaiveer
Singh Bhadoria @ Munna, brother of Dinesh Singh (PW-1), by
atleast 5 bullet shots that had hit the deceased and pierced his
body. Moreover, a witness would not be aware about the difference
between an officer of field unit and officers attached to the Police
Station. Similarly, the fact that the field unit had not recorded the
name of the deceased in the proceedings, in our opinion, is
inconsequential for these details are duly mentioned in the
Criminal Appeal No. 982 of 2011 Page 10 of 12
panchayatnama and other documents which were prepared on the
same day i.e. 15.07.1999 and were sent to Dr. Balbeer (PW-3)
who had conducted the post mortem. The lapse on the part of the
field unit in non-mentioning the name of the deceased would not
justify an order of acquittal. Notably, the field unit stayed at the spot
from 10:50 a.m. till 02:00 p.m., which would indicate that nonmentioning of the name of the deceased was an error and does
not imply that the name of the deceased was unknown, given the
fact that the post-mortem was conducted on the same day. The
murder had taken place in a residential locality and the deceased
was a well-known person and a local politician. There is deposition
of a police officer, namely Hardeo Bahadur Singh (PW-5), as to the
presence of huge crowd assembled at the spot. We would,
therefore, reject the contention that the field unit had not recorded
the name of the deceased as it was unknown and therefore the
presence of Dinesh Singh (PW-1) and Mukesh Singh (PW-2) was
doubtful.
7. Further, the acquittal of Pramod Singh by the Trial Court was for
the reason that he was supposed to have used tamancha (a local
firearm), but the police had not recovered the empty cartridges or
the pellets from the spot. Pertinently, the Post Mortem Report also
does not refer to any pellet injuries. Thus, Pramod Singh was given
Criminal Appeal No. 982 of 2011 Page 11 of 12
a benefit of doubt. However, the Trial Court, on the basis of the
evidence on record, had convicted the appellant both under
section 302 read with Section 34 IPC and section 27 of the Arms
Act, for the murder of Abhaiveer Singh Bhadoria @ Munna. The
appellant is not entitled to the same benefit.
8. In view of the above, we do not find any merits in the present
appeal and the same is dismissed confirming the conviction and
sentence of the appellant under Section 302 read with Section 34
of the Indian Penal Code with Section 27 of the Arms Act.
......................................J.
(N.V. RAMANA)
......................................J.
(MOHAN M. SHANTANAGOUDAR)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
MAY 26, 2020.
Criminal Appeal No. 982 of 2011 Page 12 of 12

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