Holding

The appellant cannot be convicted under Section 302 IPC, even with Section 34, and is liable only for his individual act under Section 326 IPC, while the conviction under Section 25 of the Arms Act stands.

Summary

Gurdial Singh, along with two others, was charged with murder under Section 302 IPC read with Section 34 and under Section 25 of the Arms Act. The prosecution alleged that the three accused fired at the victim, Ram Pal, causing his instantaneous death, and forensic evidence linked the appellant's unlicensed 12‑bore gun to the crime scene. The trial court convicted the appellant for murder and the Arms Act offence, while acquitting the other two accused. On appeal, the Supreme Court held that, because the other accused were acquitted and the medical evidence did not conclusively show that the appellant's injuries alone caused death, he could not be convicted under Section 302 IPC, even with Section 34. Consequently, the conviction under Section 302 was set aside and the appellant was instead convicted under Section 326 IPC for voluntarily causing grievous hurt, with the Arms Act conviction upheld. He was sentenced to seven years rigorous imprisonment for the Section 326 offence and the Arms Act sentence, to run concurrently.

Issues considered

Whether the appellant can be convicted under Section 302 IPC read with Section 34 when the co‑accused have been acquitted.
Whether the medical evidence establishes that the appellant's injuries alone were sufficient to cause death, justifying conviction under Section 302 IPC.
Whether the conviction under Section 25 of the Arms Act should be maintained.

Legislation cited

Arms Act, 1959s. 25
Indian Penal Code, 1860s. 302, s. 326, s. 34

Subjects

murdercommon intentionSection 34 IPCindividual act liabilityArms Actunlicensed firearmforensic evidencebenefit of doubt

Judgment

A GURDIAL SINGH
v.
STATE OF PUNJAB

AUGUST 21, 1995
B
[M.K. MUKHERJEE AND G.T. NANAVATI, JJ.]

Indian Penal Code. 1860/Amts Act, 1959 :

Ss. 302 read with s.34, s.326/s. 25-Three accused firing at vic-
C tim-Death caused-Autopsy-Report indicating gunshot injuries caused by
different types of fire anns collectively sufficient to cause death-Trial Court
convicting one accused under s. 302 l.P.C. ands. 25 Amis Act-Other two
accused acquitted-Held, appellant is liable for his individual act only-In
view of medical report it cannot be conclusively infe1Ted that death was
D caused by injuries inflicted by appellant only-He can neither be convicted
under s.302 simpliciter not under s.302 read with s.34 as acquittal of other
accused is not based on mistaken identity-Conviction u/s. 302 set asid~Ap
pellant convicted under s.326 !PC conviction under s.25. Anns Act main- '\ .
tained.

E The appellant, alongwith two others, was charged for offences
punishable under s.302 read with s.34 IPC and s.25 Arms Act. The prosecu-
tion case was that on the date. of the incident, PW. 3 and his son were in
their shop. At 6.30 p.m., when the son of PW. 3 came out of the shop, the
three accused reached there on a scooter, shot him with their respective
F fire arms and ran away. The victim died instantaneously, PW. 3 lodged an
F.I.R. with the police. The deceased was taken to the hospital. The doctor,
PW. 1, conducting the autopsy, found four injuries on the person of the ·
deceased which according to him were caused by two types of fire arms
and were collectively sufficient in the ordinary course of nature to cause
death. The investigation led to the arrest of the appellant and the recovery .
G of an unlicensed 12 bore gun with 25 cartridges from his possession. The
case was committed to the Special Court, which convicted the appellant
under s.302 IPC and s.25, Arms Act and sentenced him to life imprison- ,..
ment and rigorous imprisonment for one and half years under the two
counts respectively. The other two accused were acquitted. Aggrieved, the
H appellant filed the appeal •.
862
Gl:JRDIALSINGH v. STATE 863

Disposing of the appeal, this Court A
HELD : 1. The finding of the trial court that the appellant shot at
the deceased with a gun causing injuries on his person is unassailable in
view of the evidence of PW.3 supported by other evidence on record,
namely, the evidence of the doctor (P.W.1) who held post-mortem examina-
tion and found, besides other injuries, two lacerated punctured wounds - B
corresponding with each other - which according to him could be caused
by a gun, if fired from a close range; the F.I.R. lodged with promptituted;
the evidence of PW.4 showing the arrest of the appellant the same night
and recovery of a 12 bore gun with 25 cartridges, from his possession; the
report of the Director of Forensic Science Laboratory proving that the c
empties recovered from the spot had been fired from the gun recovered
from the appellant, and the earth seized from the spot found by the
Chemical Examiner to contain human blood. [865-E-H]

1.2. However, the appellant cannot be convicted under Section 302
IPC, even with the aid of Section 34 IPC, as the prosecution laid evidence D
to prove that only the three arraigned person were responsible for the
murder and the acquittal is not based on the ground of mistaken identity.
In view of the opinion of the doctor it cannot be conclusively inferred that
the death was caused by the injuries inflicted by the appellant alone so as
to make him liable under s.302 I.P.C. simpliciter. He did not state that the E
two gun shot injuries attributable to appellant's firing were sufficient to
cause death in the ordinary course of nature. The appellant would, there-
fore, be liable for his individual act only, which unmistakably makes out,
in view of the weapon used by him and the nature of injuries caused, an
offence under s.326 I.P.C. [868-A-B]
f
F
Maina Singh v. State of Rajasthan, (1976) SCC 827; Harshad Singh v.
State of Gujarat, (1977) Crl. Law Journal 352 and Piara Singh v. State of
Punjab, (1980) 2 SCC 401; referred to.

1.3. The conviction of appellant under Section 302 IPC is set aside. He
is convicted under Section 326 IPC. More than 11 years having elapsed G
since the offence was committed, the appellant is sentenced to rigorous
imprisonment for seven years. Since the gun used by the appellant was an
unlicensed one, the conviction and sentence imposed under Section 25,
Arms Act, are maintained. Both the sentences would run concurrently.
[868-C-D] H
864 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
i
A. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
537of1985.

From the Judgment and Order dated 11.6.85 of the Special Court,
Ferozepore in Trial No. 108 of 1985.

B R.S. Sodhi for the Appellant .

. R.S. Suri for the Respondent.

The Judgment of the Court was delivered by

C M.K. MUKHERJEE, J. Darshan Singh, Mukhtiar Singh and Gurdial
Singh, the appellant herein, were tried by the Judge, Special Court,
Ferozepore for committing the murder of one Ram Pal with fire-arms in
furtherance of their common intention. The learned Judge acquitted Dar-
shan Singh and Mukhtiar Singh but convicted the appellant under Section
302 I.P.C. and 25 Arms Act, and sentenced him to suffer imprisonment for
D life for the first conviction and rigorous imprisonment for 1.1/2 years for
the other, with a direction that the sentences would run concurrently.
Hence this appeal.

According to the prosecution case the deceased and his father Amrit
Lal (P.W.3) used to run a Kirana shop in village Machhi Bugra. On June
E
2, 1984, at or about 6.30 P .M. When Ram Pal had come out of the shop
to down its shutters the three accused came there on a scooter driven by
Darshan Singh. The appellant and Mukhtiar Singh then got down from the
scooter and shot at Ram Pal with the fire-arms, each of them was carrying.
resulting in his instantaneous death. Thereafter all of them ran away on the
F scooter. Finding his son dead, Amrit Lal rushed to the police station to
lodge a report.

S.I. Joginder Singh (P.W. 4) recorded the F.I.R. and after making
arrangements to send the special report to the I/aka Magistrate left for the
G spot accompanied by Amrit Lal. Reaching there he held inquest upon the
dead body of Ram Pal which was lying in the lane in front of the shop and
sent it for post-mortem exarnination. He: then inspected the spot and
collected some blood stained earth, six empties of tw.o different bores and
made separate sealed parcels for the same. After completing the investiga-
tion at the spot. P.W. 4 went in search· of the accused persons and
H succeeded in apprehending the appellant on that very night. From his
GURDIALSINGH v. STATE [M.K.MUKHERJEE,J.] 865
y

possession he seized a 12 bore gun and 25 cartridges and sealed them. He A
sent all the seized articles to the experts for their opinions and on receipt
of their reports and completion of investigation submitted charge-sheet.

The accused persons pleaded not guilty to the charges levelled
against them and contended that they were falsely implicated. To prove its
case the prosecution relied upon the ocular version of the incident as given
B
out by P.W. 3 and other evidence adduced in support thereof. No witness
was however examined on behalf of the accused persons.

In recording the impugned order of conviction and sentence against
the appellant the learned Judge found that the evidence of P.W. 3 stood C
amply corroborated by the recovery of two empty cartridges from the spot
and the report of the Ballistic Expert which showed that those two
cartridges had been fired from the gun which was with the appellant at the
time of his arrest and was seized. As no such corroborative evidence was
available in respect of the other two accused the learned Judge did not feel D
inclined to rely solely upon the evidence of P.W.3 to convict them. Accord-
ingly he gave them the benefit of reasonable doubt.

Having carefully gone through the evidence of P.W.3 in the light of
other evidence appearing on record it appears to us that the finding of the E
learned Judge that the appellant shot at the deceased with a gun causing
injuries on his person is unassailable. Considering the fact that the incident
took place in front of the shop of P.W.3 he was the most natural and likely
witness. His evidence, which was not in any way shaken in cross-examina-
tion, gets ample support from the evidence of Dr. Jaspal Singh (P.W.1)
who held post-mortem examination on the dead body and found, besides F
other injuries, two lacerted punctured wounds - corresponding with each
other - which according to him could be caused by gun, if fired from a
close range. The next piece of evidence which corroborates PW 3 is the
FIR which was lodged with promptitude. We next get, from the evidence
of P.W. 4 that in that very night, at or about 2.30 AM. the appellant was G
arrested and a 12 bore gun and 25 cartridges were recovered from him.
The report of the Director of Forensic Science Laboratory (Ex.P.17)
proves that the empties recovered from the spot by PW 4 had been fired
from his gun. The other piece of circumstantial evidence, which also to
some extent corroborates the case of the prosecution, is furnished by the
fact that the earth that was seized by PW 4 from the spot was found by the H
866 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A Chemical Examiner to contain human blood.

The next question that fails for our determination is whether on the
above findings the trial Judge was justified in convicting the appellant
under Section 302 IPC simpliciter, after having acquitted the other two
accused who along with the appellant were being tried under Section 302
B IPC with the aid of Section 34 IPC. This aspect of the matter assumes
importance for PW 1 found four injuries on that person of the deceased
whic~ according to him were caused by two types of fire-arms and were y

collectively sufficient in the ordinary course of nature to cause death. He,
however, did not state that the two injuries caused by the gun - which are
c attributable to the appellant's firing - were sufficient to cause death in the
ordinary course of nature. In other words, in view of the opinion of the
doctor it can not be conclusively inferred that the death of Ram Pal was
caused by the injuries inflicted by the appellant alone so as to make him
liable under Section 302 IPC simpliciter.

D The above finding of ours, necessarily, begs also the question whether
the appellant can be convicted under Section 302 IPC with the aid of
Section 34 IPC. notwithstanding the acquittal of the other two accused.

In Maina Singh v. State of Rajasthan, [1976) 2 SCC 827 a question
arose as to whether an accused who faced trial with four others on charges
E under Section 302 IPC read with Section 149 IPC could be convicted
under Section 302 IPC read with Section 34 IPC if the other four were
acquitted. In deciding the question this Court considered earlier cases
which dealt with similar question and held :

F "As has been stated, the charge in the present case related to the
commission of the offence of unlawful assembly by the appellant
along with the other named four coaccused, and with no other
person. The trial in fact went on that basis throughout. There was
also no direct or circumstantial evidence to show that the offence
was committed by the appellant along with any other unnamed
G person. So when the other four coaccused have been given the
benefit of doubt and have been acquitted, it would not be permis-
sible to take the view that there must have been some other person
along with the appellant Maina Singh in causing the injuries to the
deceased. It was as ~uch not permissible to invoke Section 149 or
H Section 34 IPC. Maina Singh would accordingly be responsible for
GURDIALSINGH v. STATE [M.K. MU:KHERJEE,J.) 867

the offence, if any, which could be shown to have been committed A
by him without regard to the participation of others."

In Harshad Singh v. State of Gujarat, (1977) Criminal Law Journal
352, a three Judge Bench of this Court observed, in negativing a submis-
sion of the appellant therein that since three out of the four accused had
secured acquittal the invocation of Section 34 IPC was impermissible, as B
under:

"The flaw in this submission is obvious. The Courts have given the
benefit of doubt of identity but have not held that there was only
one assailant in the criminal attack. The proposition is plain that C
even if some put of several accused are acquitted but the participating
presence of a plurality of assailants is proved, the conjoint culpability
for the crime is inescapable. Not that the story of more than one
person having attacked the victim is false, but that the identity of
the absolved accused is not firmly fixed as criminal participants. D
Therefore, it follows that such of them, even if the number
dwindled to one, as are shown by sure evidence to have knifed the
deceased, deserve to be convicted for the principal offence read
with the constructive provision."

(emphasis supplied) E
When a similar question again came up for consideration in Piara
Singh v. State of Punjab, (1980} 2 SCC 401 this Court. quoted with approval
Maina Singlt's case (supra) and applying the principle laid down therein in
r the facts of the case presented before it observed as under: F

"The position as it stands on the face of the prosecution case
as disclosed in the Court is that only five named and known p_ersons
including Piara Singh participated in the murderous assault on the
deceased of which four have been acquitted which would lead to
the nature presumption that the other four accused persons were G
not there. In these circumstances, therefore, the conclusion is
inescapable that Piara Singh alone cannot be convicted under
Section 302 with the aid of Section 34. The appellant, Piara Singh
would only be liable for the individual act which he may have
committed in respect of the assault on the deceased." H
868 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A Judged in the context of the principles of law laid down in the cases
referred to above the conclusion is inevitable that the appellant before us
cannot be convicted under Section 302 IPC, even with the aid of section
34 IPC, as the prosecution laid evidence to prove that only the three
arraigned persons, were responsible for the murder and the acquittal is not
based on the ground of mistaken identity. The appellant would therefore
B be liable for his individual act only, which unmistakably makes out, in view
of the weapon used by him and the nature of injuries caused an offence
under Section 326 IPC. Since the gun used by the appellant was an
unlicensed one his conviction under Section 25 of the Arms Act has got to
be upheld also.
c
For the foregoing discussion we set aside the conviction of the
appellant under section 302 IPC and convict him under Section 326 IPC.
Considering the fact that since the offence was committed more than 11
years have elapsed, we sentence him to suffer rigorous imprisonment for
seven years for the above conviction. The conviction and sentence imposed
D upon him under Section 25 of the Arms Act are maintained. Both the
sentences will run concurrently. The appellant, who is on bail will, now ~
surrender to his bail bond to serve out the sentence now imposed upon
him.

R.P. Appeal disposed of.