MANJIT SINGH & ANR.versusSTATE OF PUNJAB & ANR.

                    [2013] 11 S.C.R. 107


                   MANJIT SINGH & ANR.                            A
                              V.
                STATE OF PUNJAB & ANR.
            (Criminal Appeal No. 2042 of 2010)
                   SEPTEMBER 13, 2013
                                                                  B
       [DIPAK MISRA AND VIKRAMAJIT SEN, JJ.]

     Penal Code, 1860 - s. 3021307 rlw s. 34 - Firing of
gunshots - Causing injuries to PW1 and death of his brother
- Five accused- Conviction of A-1 and A-2 i.e. the appellants     C
- Justification - Held: PWs-1 and 2, brother and father of the
deceased, deposed in a vivid manner about the culpability
of the accused persons in the crime - Non-examination of two
witnesses did not affect the trustworthiness of PltVs-1 and 2 -
Though there was some embellishment by Pl/1-1, the                D
informant, and the other witnesses but that did not make the
whole prosecution version untruthful - Non-seizure of blood-
stained clothes and blood stains did not create dent in the
prosecution version - The autopsy surgeon, PllV-3, clearly
opined that deceased had died because of gunshot injuries         E
- The FSL report was clear - As per the FSL report. shots
were fired from the wec:pons sent to the laboratory - Cogent
evidence that the weapons belonged to accused-appellants
and licenses were issued in their favour - Thus, ocular
testimony of PWs-1 and 2 received clear corroboration from
                                                                  F
the medical evidence as well as from the report of the FSL -
Conviction of the appellants accordingly affirmed.

     Penal Code, 1860 - s. 34 - Common intention -
Existence of - When may be inferred - Death of PW1 's
brother and injuries caused to PW1 due to gun shots fired by      G
the accused persons - Conviction of the two accused-
appellants (A-1 and A-2) uls.3021307 rlw s.34 - Plea that A-2
could not have been convicted with the aid of s.34 IPC- Held:

                             107
                                                                  H
    108      SUPREME COURT REPORTS              [2013] 11 S.C.R.


A Not tenable - Scrutiny of the evidence made it clear that A-2
    had accompanied A-1 and was present at the spot; that he
    had carried a weapon; that it was established by the
    prosecution that cartridges had been fired from his gun; and
    that both the appellants were closely.related - Thus, the
8   cumulative facts clearly establish that A-2 shared the common
    intention with A-1.

        Appeal - Appeal against acquittal - Case pertaining to
  murder and attempt to murder - Five accused - A-4 and A-
  5 acquitted by trial court - A-3 acquitted by High Court - Plea
C that High Court e"ed in affirming the acquittal recorded by
  the trial Judge in respect of A-4 and A-5 and further erred in
  acquitting A-3 - Held: Not tenable - Jn the facts and
  circumstances of the case, the view expressed by the trial
  Judge in acquitting A-4 and A-5 and further the acquittal
D recorded by High Court acquitting A-3 was based on cogent
  reasoning and was a plausible view - Once a plausible view
  has been expressed and there has been proper appreciation
  of the evidence on record, the acquittal does not warrant any
  interference - Penal Code, 1860 - s.3021307 rlw s.34.
E
       Evidence - Witness ·- Non-examination of - Effect -
  Held: It is not the number and quantity of witnesses, but the
  quality that is material - Duty of the Court to consider the
  trustworthiness of evidence on record which inspires
  confidence and the same has to be accepted and acted upon
F - In such a situation no adverse inference should be drawn
  from the fact of non-examination of other witnesses - It is also
  to be seen whether such non-examination of a witness would
  carry the matter further so as to affect the evidence of other
  witnesses and if the evidence of a witness is really not
G essential to the unfolding of the prosecution case, it cannot
  be considered a material witness - Evidence Act, 1872 -
  s.134.

          Evidence - Appreciation and evaluation of - Concept of
H
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 109 ,


proof beyond reasonable doubt - Held: Cannot be made to              A
appear totally unrealistic.

     Maxims - Maxim falsus in uno, falsus in omnibus - Held:
Is not applicable in India - It is merely a rule of caution - All
that it amounts to is, that in such cases testimony may be           8
disregarded, and not that it must be disregarded - Unless the
entire case of the prosecution suffers from infirmities,
discrepancies and material contradictions and the
prosecution utterly fails to establish its case, acquittal of some
accused persons cannot be a relevant facet to determine the          C
guilt of other accused persons - Evidence - Discrepancies
in - Appreciation of.

    The prosecution case was that while PW1 was sitting
on the left mudguard of the tractor driven by his brother,
they were stopped by a Maruti car driven by A-1, who                 D
parked it on the road in front of the tractor; and that
thereafter the five accused persons alighted from the car,
armed with rifles and guns, and fired gunshots which
resulted in the death of PW1 's brother and injuries to
PW1. The incident allegedly occurred due to enmity'of the            E
accused persons against the victims as their father, PW2,
had contested the village Sarpanch elections against the
accused persons.

     The trial court convicted A-1, A-2, and A-3 under
                                                          F
Section 302/307 read with Section 34 IPC and sentenced
them to undergo rigorous life imprisonment. A-3 was 'also
separately convicted under Section 307 IPC. A-4 and A-5
were however acquitted by the trial court. The High Court
affirmed the conviction of A-1 and A-2, but acquitted A-3
and therefore the present cross appeals by A-1 and A-2 G
on the one hand and the informant on the other.
    A-1 and A-2 i.e. the appellants raisedthe following set
of contentions before this Court:
                                                                     H
     110         SUPREME COURT REPORTS           [2013] 11 S.C.R.

.A         (1)     That non-examination of two crucial
                  ·witnesses, namely, 'O' (who had come to the
                   spot along with PW-2, and had arranged a car
                   to take the deceased and the injured to the
                   hospital and at his instance the site plan was
 B                 prepared) and 'M' (who had carried the
                   deceased and the injured to the hospital)
                   materially affected the trustworthiness of the
                   prosecution version.

           (2)    That three persons, namely, A-3, A-4 and A-5
 c                were falsely roped in by the prosecution which
                  showed the extent of falsehood that was taken
                  recourse to by the informant, PW-1, and other
                  witnesses and thus the testimonies of the so-
                  called eye-witnesses could not be regarded as
 D                cogent, reliable and trustworthy.

           (3)    That the presence of two eye-witnesses,
                  namely, PWs-1 and 2, at the scene of
                  occurrence was gravely doubtful; the said two
 E                witnesse$ could not have been present at the
                  spot as their statement that they had taken the
                  deceased to the hospital was belied by the
                  testimony of autopsy surgeon; their blood
                  stained clothes had not been seized; and PW-
 F                1, who was sitting on the left mudguard of the
                  tractor, had not received any serious injury
                  despite the tractor had turned towards the left.

           (4)    That the wounds indicated that the shots were
                  fired from a close range but the oral testimony
G                 was contrary to the same, and;

           (5)    That A-2 could not have been convicted with
                  the aid of Section 34 IPC since he had not
                  participated in the assault on the deceased.
H
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 111               •·

     On the other hand, PW1, the informant, in support      A
of the appeal preferred by him, contended that the High
Court fell into grave error by affirming the acquittal
recorded by the trial Judge in respect of A-4 and A-5 and
further committed serious illegality by acquitting A-3,
despite the irreproachable evidence against him.            B

    Dismissing all the appeals, the Court

     HELD: 1.1. It is not the number and quantity of
witnesses, but the quality that is material. It is the duty
of the Court to consider the trustworthiness of evidence C
on record which inspires confidence and the same has
to be accepted and acted upon and in such a situation
no adverse inference should be drawn from the fact of
non-examination of other witnesses. That apart, it is also
to be seen whether such non-examination of a witness o
would carry the matter further so as to affect the
evidence of other witnesses and if the evidence of a
witness is really not essential to the unfolding of the
prosecution case, it cannot be considered. a material
witness. [Para 24] [128-A-C]                                E

     1.2. In the case at hand, the plea taken is that it was
'M', who had taken the deceased and injured to the
hospital and, therefore he is a material witness. The
question that is required to be put whether the evidence
of the said witness is essential to record a conviction or F
his non-examination would affect the trustworthiness of
PWs-1 and 2 and other witnesses. As perceived, it can
reasonably be stated that 'M' is not a material witness in
that sense. As far as 'D' is concerned, if the testimony
of other witness inspires confidence, his non- G
examination would not create a concavity in the case of
the prosecution. The acceptance of testimonies of PWs-
1 and 2, in the case at hand, would stand on their own
and would not depend upon the version that could have
come from 'D'. It is so as he is not the only competent H
    112     SUPREME COURT REPORTS              [2013] 11 S.C.R. ·


A   witness who would have been fully capable of explaining
    the factual situation correctly. Quite apart from the above,
    during the cross-examination of investigating officer,
    none of the accused persons had voiced their concerns
    by raising any apprehension regarding non-examination
B   of the material witnesses. On a studied scrutiny it is found
    that, in fact, there is no cross-examination in that regard.
    [Para 25] [128-D-H; 129-A]

      Masalti v. State of U.P. AIR 1965 SC 202: 1964 SCR
C 133; Namdeo v. State of Maharashtra (2007) 14 SCC 150:
  2007 (3) SCR 939; Bipin Kumar Monda/ v. State of W.B.
  (2010) 12 SCC 91: 2010 (8) SCR 1036; State of H.P. v. Gian
  Chand (2001) 6 SCC 71: 2001 (3) SCR 247; Takhaji Hiraji
  v. Thakore Kubersing Chamansing (2001) 6 SCC 145;
  Dahari v. State of U.P. (2012) 10 SCC 256: 2012 (8) SCR
D 1219; Harivadan Babubhai Patel v. State of Gujarat (2013)
  7 sec 45 and State of U.P. V. lftikhar Khan and others (1973)
  1 sec 512: 1973 (3) SCR 328 - relied on.              ·

       2.1. It is well settled in law that unless the entire case
E of the prosecution suffers from infirmities, discrepancies
  and material contradictions and the prosecution utterly
  fails to establish its case, acquittal of some accused
  persons cannot be a relevant facet to determine the guilt
  of other accused persons. The maxim fa/sus in uno,
F fa/sus in omnibus (false in one thing, false in everything)
  has no application in India and has not .received general
  acceptance nor has this maxim come to occupy the
  status of rule of law. It is merely a rule of caution. All that
  it amounts to is, that in such cases testimony may be
G disregarded, and not that it must be disregarded. [Para
  27] [129-D-G]
         2.2. In the instant case, the trial Judge acquitted A-5
    on the ground that she had not contested any election;
    that she was not even residing in the village in whic~ the
H
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR.113


elections were held. The allegation in the FIR that she had     A
given lalkara had not really got support from other
witnesses and, hence, her presence at the spot was
doubted. As far as A-4 is concerned, in the opinion of the
trial Judge he had no concern with the accused persons
or the deceased. The trial Judge, in essence, extended          B
benefit of doubt to him inasmuch as he had neither
participated in the occurrence nor had he shared the
common intention. The High Court acquitted A-3 on the
ground that he was not named in the FIR and further he
had not carried any weapon. The High Court opined that          c
he had been implicated because he had filed a writ
petition against the police officers. If the evidence is
scrutinized in proper perspective, it is clear that there has
been some embellishment by the informant and other
witnesses but giving such embroidery to a story would           0
not make the whole prosecution version untruthful· one.
It can be treated to be an exaggeration by the
prosecution but the consequence cannot be regarded as
fatal. [Para 30) [131-C-H]

    Da/bir Singh v. State of Haryana (2008) 11 SCC 425:         E
2008 (8) SCR 1026; Krishna Mochi and Others v. State of
Bihar (2002) 6 SCC 81: 2002 (3) SCR 1; Yanob Sheikh alias
Gagu v. State of West Bengal (2013) 6 SCC 428: 2012 (13)
SCR 1150; Balraje alias Trimbak v. State of Maharashtra
(2010) 6 sec 673: 2010 (6) SCR 764 - rel!ed on.                 F

     3. The plea that 'M' had alone brought the deceased
and the injured to the hospital cannot be accepted to be
correct. PW-8, who had treated PW1, had clearly stated
that the deceased was brought dead to the hospital with         G
the alleged history of gunshot injuries. In the cross-
examination, he has clearly deposed that the dead body
was brought to the hospital at 12.40 p.m. and PW1 came
to the hospital at 12.40 p.m. That apart, it can be said with
certitude that whether PW1 accompanied or not really            H
    114     SUPREME COURT REPORTS            [2013) 11 S.C.R.


A   does not affect the prosecution case. As far as non-
    seizure of the blood-stained clothes and blood stains
    from the seat of the car are concerned, it does not create
    a dent in the prosecution version. In the case at hand it
    is perceptible that PWs-1 and 2, brother and father of the
s   deceased, have deposed in a vivid manner about the
    culpability of the accused persons in the crime. The
    autopsy surgeon, PW-3, has clearly opined that the
    deceased had died because of gunshot injuries. The FSL
    report, Ext. P-AM/1, states with equal clarity that one
c   cartridge was fired from left barrel of DBBL gun No.
    56088, the other cartridge from its right barrel and three
    cartridges were fired from the rifle No. AB 97/5473. It is
    also brought out in the evidence the gun and the rifle
    were sent to the Forensic Science Laboratory in sealed
    parcels. As per the report the shots were fired from the
0
    weapons sent to the laboratory. It has been established
    by cogent evidence that the weapons belonged to the
    accused-appellants and licenses were issued in their
    favour. Thus, the ocular testimony of PWs-1 and 2 has
    received clear corroboration from the medical evidence
E   as well as from the report of the FSL. [Para 31) [132-C-F,
    G-H; 133-A-C]                                            .
       State of Rajasthan v. Arjun Singh and others (2011) 9
    sec 115: 2011 (1 O) SCR 823 - relied on.
F      4. The appellants also submitted that wounds would
  indicate that the shots were fired from a close range but
  the oral testimony is contrary to the same; and further that
  the person sitting on the left mudguard would have been
  affected as the tractor turned towards the left and, more
G so, when the deceased had sustained injury on the right
  cheek. However, these kind of discrepancies are bound
  to occur when an occurrence of the present nature takes
  place and one cannot expect the witnesses to state with
  precision. On these counts the prosecution version
H cannot be held to be unbelievable and it cannot be held
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 115


that the prosecution has not been able to establish the         A
charges beyond reasonable doubt. It is because judicial
evaluation of the evidence has to be appropriate regard
being had to the totality of the facts and circumstances
of the case and not on scrutiny in isolation and further
the concept of proof beyond reasonable doubt cannot be          B
made to appear totally unrealistic. [Para 32] [133-D-G]

     Jnder Singh and another v. The State (Delhi
Administration) (1978) 4SCC 161: 1978 (3) SCR 393 -
relied on.
                                                                c
     5.1. On a perusal of the evidence of PWs 1 and 2 it is
perceptible that A-2 was named in the FIR and he had
accompanied A-1, his son-in-law. There has been seizure
of .12 bore rifle which has been proven to have belonged
to A-2 and the cartridges that have been recovered from         D
the spot have been proven to have been fired from the
.12 bore rifle that belonged to A-2. There is clear evidence
that A-2 had fired from his .12 bore rifle but it had not hit
anyone. From the material brought on record it is vivid
that he had gone along with A-1 being armed with the            E
weapon. [Para 34] [134-F-G; 135-A-B]

     5.2. The existence of a common intention can be
inferred from the attending circumstances of the case and
the C0!1duct of the parties. No direct evidence of common
intention is necessary. For the purpose of common F
intention even the participation in the commission of the
offence need not be proved in all cases. To apply Section
34 IPC apart from the fact that there should be two or
more accused, two factors must be established: (i)
common intention, and (ii) participation of the accused in · G
the commission of an offence. If a common intention is
proved but no overt act is attributed to the individual
accused, Section 34 will be attracted as essentially it
involves vicarious liability but if participation of the
accused in the crime is proved and a common intention H
     116      SUPREME COURT REPORTS              [2013) 11 S.C.R.

A is absent, Section 34 cannot be invoked. In every case,
  it is not possible to have direct evidence of a common
  intention. It has to be inferred from the facts and
  circumstances of each case. [Para 38] [137-F-H; 138-A]
 ·         5.3. On a scrutiny of the evidence it is found that A-2
8 had accompanied A-1 and was present at the spot; that
  he had carried a weapon; that it has been established by
  the prosecution that the cartridges had been fired from
  his gun; and that both the appellants are closely related.
  Thus, the cumulative facts would clearly establish that A-
C 2 shared the common intention with A-1. The criticism
  advanced that A- 2 could not have been convicted in aid
  of Section 34 IPC, is not well founded. [Para 39 and 40]
  [138-B-C, F]
D       Ramashish Yadav and others v. State of Bihar (1999) 8
     SCC 555: 1999 (2) Suppl. SCR 285 - distinguished. ·

        Shreekantiah Ramayya Munipalli and another v. State
  of Bombay AIR 1955 SC 287: 1955 SCR 1177; State of U.P.
  v. lftikhar Khan and others (1973) 1 SCC 512: 1973 (3) SCR
E 328; Pandurang, Tukia and Bhillia v. State of Hyderabad
  (1955) 1 SCR 1083; Tukaram Ganpat Pandare v. State
  Maharashtra AIR 1974 SC 514; Krishnan and another v. State
  of Kera/a (1996) 10 SCC 508: 1996 (5) Suppl. SCR 405;
  Surendra Chauhan v. State of M.P. (2000) 4 SCC 110: 2000
F (2) SCR 515 - relied on.

          Mahbub Shah v. King Emperor AIR 1945 PC 118 -
     referred to.
G     6. In the facts and circumstances of the case, the
  view expressed by the trial Judge in acquitting A-4 and
  A-5 and further the acquittal recorded by the High Court
  acquitting A-3 is based on cogent reasoning and it is a
  plausible view. Once a plausible view has been
H expressed and there has been proper appreciation of the
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 117


evidence on record, the acquittal does not warrant any   A
interference. [Para 41) [139-C-D]
                     Case Law Reference:
    1964 SCR 133              relied on      Para 18
                                                         B
    2007 (3) SCR 939          relied on      Para 19
    2010 (8) SCR 1036         relied on      Para 20
    2001 (3) SCR 247          relied on      Para 21
    2001) 6 sec 145           relied on      Para 22     c
    2012 (8) SCR 1219         relied on      Para 23
    c2013) 1 sec 45           relied on      Para.23
    1973 (3) SCR 328          relied on      Para 24     D
    2008 (8) SCR 1026         relied on      Para 27
    2002 (3) SCR 1            relied on      Para 27
    2012 (13) SCR 1150        relied on      Para 28
                                                         E
    2010 (6) SCR 764          relied on      Para 29
    2011 (10) SCR 823        relied on       Para 31
    1978 (3) SCR 393         relied on       Para 32
                                                         F
    1955 SCR 1177            relied on       Para 34
    AIR 1945 PC 118          referred to     Para 35
                                                  '
    (1955) 1 SCR 1083        relied on       Para 35
   AIR 1974 SC 514           relied on      Para 35      G
    1996 (5) Suppl. SCR 405 relied on        Para 36
   2000 (2) SCR 515          relied on       Para 37
     ' t·
   1999 (2) Suppl. SCR 285 distinguished    Para 38      H
    118       SUPREME COURT REPORTS             [2013] 11 S.C.R.


A       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2042 of 2010.

      From the Judgment & Order dated 12.05.2009 of the High
  Court of Punjab & Haryana at Chandigarh in CRLA No. 628 of
B 2001.

                                WITH

    Crl.A.Nos. 2276-2278 of 2010.

C       U.U. Lalit, Jayant K. Sud, AAG, S. Wasim A. Qadri, Jasbir
    Singh Malik, Varun Punia, Zaid Ali (for S.K. Sabharwal), S.C.
    Paul, Roopa Paul, Ranjeeta Raj, Satyendra Kumar, Chirag
    Khurana, Vishal Dabas, V. Kumar (for Kuldip Singh) J.P.
    Dhanda, N.A. Uamani, Resham Singh, Ashok Kumar Yadav,
    Satyendra Kumar for the appearing parties.
0
          The Judgment of the Court was delivered by

        DIPAK MISRA, J. 1. The two appellants, namely, Manjit
   Singh and Paramjit Singh, were tried along with three others
E in ST No. 54 of 2001 before the learned Additional Sessions
   Judge, Kapurthala for the offences punishable under Sections
   302 and 307 read with Section 34 of the Indian Penal Code
 · (IPC).

       2. The facts which are essential to be stated are that on
F 8.11.1998 about 12:00 noon Amarjot Singh, the complainant,
  PW-1, along with his younger brother, Jagmohan Singh, the
  deceased, was going on a tractor towards Bholath for some
  domestic work.. Jagmohan Singh was driving the tractor,
  whereas Amarjot Singh was sitting on the left mudguard of the
G tractor. After they reached village Pandori Arayiyan, they were
  stopped by a Maruti car bearing registration no. PB-10-X 7079,
  driven by Accused No. 1, Manjit Singh, who parked it on the
  road in front of the tractor. On seeing the car, Jagmohan Singh,
  stopped the tractor in the middle of the road. Manjit .Singh,
H armed with a .315 bore rifle, Paramjit Singh, father-in-law of
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 119
               [DIPAK MISRA, J.]
Manjit Singh, armed with .12 bore gun, Jaswinder kaur, sister        A
of Manjit Singh, and two unknown persons alighted from the car.
One of the unknown persons was also armed with a .12 bore
gun. After alighting from the car, Jaswinder Kaur raised "lalkara"
to eliminate both the sons of Rajinderpal Singh, PW-2, father
of the deceased, so that they would understand the                   B
consequences of contesting the election· of Sarpanch against
them. Jagmohan Singh tried to turn the tractor towards. the left
side and at that juncture Manjit Singh fired a gunshot which hit
him on the right cheek as a result of which he fell down from
the tractor in the fields. Paramjit Singh armed with a .12 bore      c
gun had also fired at the two brothers. Amarjot Singh jumped
from the tractor and received an injury on his right elbow. He
saved himself by taking shelter behind the back wheel of the
tractor. In the meantime, Rajinderpal Singh, PW-2, who was
present at his tube-well motor situate nearby and Didar Singh        0
s/o Joginder Singh, who was present in his field near the place
of occurrence reached the spot and witnessed the incident. All
the accused fled away from the scene of crime along with their
respective weapons. Jagmohan Singh and Amarjot Singh were
shifted to Civil Hospital, Bholath, in a car and in the hospital
                                                                     E
Jagmohan Singh was declared dead.

     3. As the prosecution story further unfurls, the hospital
authorities intimated about the death of Jagmohan Singh to the
concerned police station whereafter the police party headed by
SI, Swaran Singh, PW-5, arrived at the hospital and the SI           F
recorded the Statement of Amarjot Singh on the basis of which
a formal FIR was registered. The investigating agency got the
post mortem done, prepared the site plan, collected the blood
stained earth, the blood stained clothes of the deceased, three
empty cartridges of .315 bore rifle and two empty cartridges         G
of .12 bore from the spot and each item was put in separate
sealed parcels on the basis of separate memorandum
prepared and attested by the witnesses. After taking
appropr~ate steps, accused persons were apprehended and
the Maruti car, used in the commission of crime, was seized.         H
    120      SUPREME COURT REPORTS                [2013] 11 S.C.R.


A A-1, Manjit Singh, while in custody led to recovery of his
  licenced rifle .315 bore along with the cartridges and the licence
  in the iron box in the residential house of Jasbir Singh of Village
  Umarpura, one of his relatives. Similarly Paramjit Singh, A-2,
  made a disclosure
                r
                       that .12 bore licenced gun used by him had
B been taken by Sukhpal Singh of Kaki Pind. As per his
  statement a bag containing the remaining cartridges were kept
  concealed in the iron box under the clothes in his residential
  house. On the basis of the said statement, recovery of the iron
  box, the lock, the cartridges and the licence were recovered.
c On the basis of disclosure statement of Sukhpal Singh, A-3,
  who had taken .12 bore gun from Paramjit Singh, A-2, led to
  the place of discovery of the weapon hidden underneath the
  heap of chaff in the Haveli of Manjit Singh, A-1. The seized
  articles were sent to the FSL at Chandigarh. The investigating
D agency, after examining the witnesses and completing the other
  formalities, placed the charge-sheet before the learned
  Magistrate, who, in turn, committed the matter to the Court of
  Session.

        4. The accused persons pleaded innocence and false
E implication due to animosity and on that basis claimed to be
  tried.

         5. Be it noted, during the trial an application was moved
    under Section 319 of the Code of Criminal Procedure, 1973
F   (for short "the CrPC") to summon Jaswinder Kaur as an
    accused which was allowed, and during trial she availed the
    same plea and claimed to be tried.

       6. The prosecution, in order to bring home the charges
  against the accused persons, examined 13 witnesses and got
G marked number of documents. The principal witnesses are
  Amarjot Singh, PW-1, the informant, Rajinderpal Singh, PW-2,
  father of the deceased, who was cited as an eye-witness, Dr.
  J.N. Dutta, PW-3, who had conducted the post mortem, Swaran
  Singh, PW-5, the Investigating Officer, and Dr. Narinderpal
H
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 121
               [DIPAK MISRA, J.]
Singh, PW-7, who had examined Amarjot Singh. The rest of           A
the witnesses are formal witnesses.

      7. In their statements under Section 313 of the CrPC the
plea of the accused Manjit Singh and Paramjit Singh was that
they were arrested from their house on 9.11.1998 and the rifle     8
and gun were also taken into police possession. In essence,
they pleaded innocence and false implication. As far as
Sukhpal Singh, A-3, is concerned, his version was that he had
filed a writ petition against S.S.P. Dinkar Gupta, D.S.P Harmail
Singh and S.I. Surjit Singh because he was illegally detained      C
by the police earlier and, therefore, the police had conducted
a raid in his house and falsely implicated him in the case. He
had also stated that Manjit Singh and other were not known to
him. The plea of Jaswinder Kaur was to the effect that after the
death of her husband in 1990, she was residing at Jalandhar
with her daughter and was suffering from heart ailments and        D
had also suffered a brain haemorrhage. She also took the plea
that on the date of occurrence she was away at Harnamdasspur
to attend the cremation of a relative. Her further plea was that
she had been falsely implicated on account of dispute relating
to Panchayat election which was contested by her sister-in-law,    E
wife of Manjit Singh.

     8. On the basis of the ocular and documentary evidence
brought on record the trial court found that the prosecution had
been able to prove its case beyond all reasonable doubt            F
against Manjit Singh, A-1, Paramjit Singh, A-2, and Sukhpal
Singh, A-3, for committing the murder of Jagmohan Singh on
8.11.1998. He also found them guilty of firing at Amarjot Singh
with the intention of committing murder and, accordingly,
recorded conviction under Section 302/307 read with Section        G
34 of the Indian Penal Code (IPC) and senteneed each of them
to undergo rigorous life imprisonment and to pay a fine of
Rs.5000/- with a default clause under Section 302 IPC and for
one year under Section 307 IPC and to pay a fine of Rs.2000/
- with the default clause. It may be noted that Sukhpal Singh
                                                                   H
    1122    SUPREME COURT REPORTS               [2013] 11 S.C.R.


A was also separately convicted under Section 307 IPC. The trial
  court acquitted all the accused persons of the charges under
  Section 148 IPC. As far as Kamal Kumar, A-4 and Jaswinder
  Kaur, A-5, are concerned, he recorded an acquittal in respect
  of all the charges on the ground that the prosecution had not
B been able to bring home the charges against them.

       9. Assailing the aforesaid judgment of conviction and order
  of sentence Manjit Singh, Paramjit Singh and Sukhpal Singh
  preferred Criminal Appeal No. 628-DB of 2001 and Sukhpal
C Singh challenged his individual conviction under Section 307
  llPC in Criminal Appeal No. 621-DB of 2001. The acquittal of
  the accused persons was challenged by the informant Amarjot
  Singh in Criminal Revision No. 680 of 2002.

       10. The High Court, by a common judgment and order
D dated 12.5.2009 which is impugned herein, affirmed the
  conviction of Manjit Singh and Paramjit Singh. However, as far
  as Sukhpal Singh is concerned, taking note of the material
  brought on record, doubted his presence at the scene of
  occurrence and, accordingly gave him the benefit of doubt. As
E he was acquitted in the main appeal, the appeal preferred by
  him assailing the conviction under Section 307 IPC was treated
  to have been rendered infructuous. In view of the decisions
  rendered in the appeal the criminal revision, preferred by
  Amarjot Singh, the brother of the deceased, stood dismissed.
F      11. Questioning the legal propriety of the said judgment
  and order Manjit Singh and Paramjit Singh have preferred
  Criminal Appeal No. 2042 of 2010 by special leave and the
  informant has preferred Criminal Appeal Nos. 2276-2278 of
  2010 on obtaining permission to challenge the judgment of
G acquittal.

       12. We have heard Mr. U.U. Lalit, learned senior counsel
  for the convicted appellants, Mr. Jayant K. Sud, learned
  Additional Advocate General for the State of Punjab, Mr. _s.c.
H Paul, learned counsel for the informant in his criminal appeals
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 123
               [DIPAK MISRA, J.]
and Mr. J.P. Dhanda, learned counsel for the respondent No.          A
5 in criminal appeal preferred by Amarjot Singh.

     13. Criticizing the appreciation of evidence and the findings
recorded by the learned trial Judge as well as by the High Court
Mr. Lalit, learned senior counsel, has contended that two crucial    8
witnesses, namely, Didar Singh, an independent eye witness,
who had not only witnessed the incident but had brought the
car in which the deceased was shifted to the hospital and the
site plan was prepared at his instructions, and Malkiat Singh,
who had brought the deceased to the hospital, have not been          C
examined and their non-examination creates a grave doubt
about the version set forth by the prosecution. His further
submission is that three others, namely, Kamal Kumar,
Jaswinder Kaur and Sukhpal Singh were falsely roped in and
that supports the plea advanced by the defence that there had
been false implication of the accused persons in the crime. It       D
is canvassed by him thatlhe presence of PWs-1 and 2 at the
place of occurrence is extremely doubtful, for according to the
prosecution, seven gunshots were fired but none had hit the
PW-1. That apart, PWs-1 and 2 claimed to have taken the
deceased to the hospital in a condition when the seats of the        E
car and their clothes were stained with blood, but the
Investigating Officer, PW-5, has categorically deposed that he
did not notice the clothes of PWs-1 and 2 to say that there were
any blood stains on their clothes.
                                                                     F
     14. The learned senior counsel would submit that their
carrying of the deceased to the hospital is also surrounded with
immense suspicion inasmuch as the doctor who had conducted
the post mortem has clearly stated that it was Malkiat Singh
who had brought the deceased to the hospital and no document         G
has been brought on record that PWs-1 and 2, who claimed to
be eye-witnesses, had brought the deceased to the hospital. It
is argued that the Investigating Officer did not find any pellets
marks on the tractor and he did not take into possession the
clothes and blood samples on the car seats for chemical
                                                                     H
    124      SUPREME COURT REPORTS                  [2013) 11 S.C.R.

A   examination, which go a long way to create a dent in the
    prosecution story. He has further emphatically put forth that when
  · the tractor had turned towards left, it is difficult to discern that
    the deceased sustained injury in the right cheek and the person
    sitting on the left mudguard did not get affected. It is next
s submitted by him that there has been blackening of wounds
    which would indicate that the injuries were caused from firing
    from a close range but the oral testimonies of PWs-1 and 2
    evinces that the accused Manjit Singh had fired from the
    distance of one and half "karms". The last plank of argument
c of Mr. Lalit is that the appellant No. 2 could not have been
    convicted in aid of Section 34 IPC since he had not
    participated in the assault on the deceased, and further there
    was no recovery of the alleged .12 bore rifle. ' ..

        15. Mr. Jayant K. Sud, learned Additional Advocate
D General for the State of Punjab, supporting the judgment of the
  High Court, has contended that the reappreciation of the
  evidence by the High Court while exercising appellate
  jurisdiction, cannot be faulted. The learned counsel would further
  submit that the learned trial Judge as well as the Hign Court
E has correctly placed reliance on the testimonies of PWs-1 and
  2 as they are unimpeachable. It is also urged by him that the
  corroboration of injury by the medical evidence, the factum of
  recovery of weapons and other circumstances clearly establish
  the guilt of the accused and hence, the analysis made by the
F High Court can really not be flawed.

       16. Mr. J.P. Dhanda, learned counsel for the informant, in
  support of the appeal preferred by him, contended that the High
  Court has fallen into grave error by affirming the acquittal
  recorded by the learned trial Judge in respect of two accused
G and has further committed serious illegality by acquitting
  Sukhpal Singh, A-3, despite the irreproachable evidence
  against him. It is submitted by him that the prosecution has
  clearly and specifically brought the motive into the forefront and
  despite definite roles being attributed to each of the accused
H
 MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 125
                [DIPAK MISRA, J.]

persons, the learned trial Judge acquitted the accused persons,       A
namely, Kamal Kumar, A-4, and Jaswinder Kaur, A-5 and the
High Court totally erroneously gave the stamp of approval to
the same.

       17. The first submission of Mr. U.U. Lalit is that the non-    B
 examination of two crucial witnesses, namely, Didar Singh and
 Malkiat Singh creates a great doubt in the prosecution version
 which makes it absolutely incredible. On a perusal of the
 material on record it is clear that Didar Singh had come to the
 spot along with Rajinderpal Singh, PW-2, and had arranged a          C
 car to take the deceased and the injured to the hospital and at
 his instance the site plan was prepared. As far as Malkiat Singh
 is concerned, the assertion is that he had carried the deceased
 and the injured to the hospital but the evidence in this regard
 is extremely sketchy. Be that as it may, thrust of the matter is
 whether non-examination of these two witnesses materially            D
 affects the trustworthiness of the prosecution version or put it
 differently whether it really creates a dent in the testimony of
 the other eye witnesses and the surrounding circumstances on
/Which the prosecution has placed reliance to bring home the
 guilt of the accused.                                                E

    18. In this context, a passage from Masalti v. State rF !J.P. 1
may fruitfully be reproduced:-

      "In the present case, however, we are satisfied that there
      is no substance in the contention which Mr Sawhney seeks
                                                                      F
      to raise before us. It is not unknown that where serious
      offences like the present are committed and a large
      number of accused persons are tried, attempts are made
      either to terrorise or win over prosecution witnesses, and
      if the prosecutor honestly and bona fide believes that some     G
      of his witnesses have been won over, it would be
      unreasonable to insist that he must tender such witnesses
      before the court. It is undoubtedly the duty of the

1.   AIR 1965 SC 202.                                                 H
     126       SUPREME COURT REPORTS                  (2013] 11 S.C.R.


A          prosecution to lay before the court all material evidence
           available to it which is necessary for unfolding its case; but
           it would be unsound to lay down as a general rule that
           every witness must be examined even though his evidence
           may not be very material or even if it is known that he has
B          been won over or terrorised."

           19. In Namdeo v. State of Maharashtra, 2 it has been laid
  down that neither the legislature (Section 134 of the Evidence
  Act, 1872) nor the judiciary mandates that there must be
C particular number of witnesses to record an order of conviction
  against the accused. The legal system in this country has
  always laid emphasis on value, weight and quality of evidence
  rather than on quantity, multiplicity or plurality of witnesses.

       20. In Bipin Kumar Monda/ v. State of W.B. 3 the Court
D reiterated the principle stating that it is not the quantity; but the
  quality that is material. The time-honoured principle is that
  evidence has to be weighed and not counted. The test is
  whether the evidence has a ring of truth, is cogent, credible,
  trustworthy and reliable.
E
       21. In State of H.P. v. Gian Chand4 it has been ruled that
  non-examination of a material witness is again not a
  mathematical formula for discarding the weight of the testimony
  available on record howsoever natural, trustworthy and
F convincing it may be. The charge of withholding a material
  witness from the court levelled against the prosecution should
  be examined in the background of the facts and circumstances
  of each case so as to find whether the witnesses are available
  for being examined in the court and were yet withheld by the
  prosecution.
G
       22. In Takhaji Hiraji v. Thakore Kubersing Chamansing5
    2.   c2001) 14 sec 150.
    3.   c2010) 12 sec 91.
    4.   c2001) s sec 11.
H 5.     c2001i s sec 145.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 127
               [DIPAK MISRA, J.]
the Court has opined that it is true that if a material witness,     A
who would unfold the genesis of the incident or an essential part
of the prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the prosecution
case which could have been supplied or made good by
examining awitness who though available is not examined, the         B
prosecution case can be termed as suffering from a deficiency
and withholding of such a material witness would oblige the
court to draw an adverse inference against the prosecution by
holding that if the witness would have been examined it would
not have supported the prosecution case. On the other hand if        c
already overwhelming evidence is available and examination
of other witnesses would only be a repetition or duplication of
the evidence already adduced, non-examination of such other
witnesses may not be material. In such a case the court ought
to scrutinise the worth of the evidence adduced. The court of        0
facts must ask itself-whether in the facts and circumstances
of the case, it was necessary to examine such other witness,
and if so, whether such witness was available to be examined
and yet was being withheld from the court? If the answer be
positive then only a question of drawing an adverse inference
may arise. If the witnesses already examined are reliable and
                                                                     E
the testimony coming from their mouth is unimpeachable the
court can safely act upon it, uninfluenced by the factum of non-
examination of other witnesses.

     23. In Dahari v. State of U.P. 6 while discussing about the     F
non-examination of material witness, the Court has ruled that
when the witness was not the only competent witness who would
have been fully capable of explaining the factual situation
correctly, and the prosecution case stood fully corroborated by
the medical evidence and the testimony of other reliable             G
witnesses, no adverse inference could be drawn against the
prosecution. Similar principle has been reiterated in Harivadan
Babubhai Patel v. State of Gujrat. 7
6.   c2012) 10 sec 256.
1.   (2013) 1 sec 45.                                                H
    128      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A        24. From the aforesaid exposition of law, it is quite clear
  that it is not the number and quantity, but the quality that is
  material. It· is the duty of the Court to consider the
  trustworthiness of evidence on record which inspires
  confidence and the same has to be accepted and acted upon
B and in such a situation no adverse inference should be drawn
  from the fact of non-examination of other witnesses. That apart,
  it is also to be seen whether such non-examination of a witness
  would carry the matter further. so as to affect the evidence of
  other witnesses and if the evidence of a witness is really not
c 1essential to the unfolding of the prosecution case, it cannot be
  considered a material witness {see: State of U.P. v. lftikhar
  Khan and others8).

         25. In the case at hand we find the plea taken is that it was
    Ma_lkiat Singh, who had taken the deceased and injured to the
D   hospital and, therefore he is a material witness. The question
    that is required to be put whether the evidence of the said
    witness is essential to record a conviction or his non-
    examination would affect the trustworthiness of PWs-1 and 2
    and other witnesses. As we perceive, it can reasonably be
E   stated that Malkiat Singh is not a material witness in that sense.
    As far as Didar Singh is concerned, tested on the parameters
    of the authorities referred to above, if the testimony of other
    witness inspires confidence, his non-examination would not
    create a concavity in the case of the prosecution. We may state
F   here that the acceptance of testimonies of PWs-1 and 2, in the
    case at hand, would stand on their own and would not depend
    upon the version that could have come from Didar Singh. It is
    so as he is not the only competent witness who would have
    been fully capable of explaining the factual situation correctly.
G   Quite apart from the above, it is worth noting here that during
    the cross-examination of investigating officer, none of the
    accused persons had voiced their concerns by raising any
    apprehension regarding non-examination of the material
    witnesses. We may repeat that on a studied scrutiny we find
H s. (1973) 1 sec s12.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 129
               [DIPAK MISRA, J.]
that, in fact, there is no cross-examination in that regard. Thus,   A
the aforesaid submission of the learned counsel is not
acceptable.

     26. The next limb of submission of the learned senior
counsel for the appellant is that on apposite appreciation of the    B
evidence in entirety it is clearly demonstrable that the falsehood
rings in the statements of all the witnesses. Bolstering the said
aspect, it is urged by him that the prosecution has falsely
implicated three accused persons including a lady and that
shows the extent of falsehood that has been taken recourse to        C
by the informant, PW-1, and other witnesses. In essence, it is
his proponement that testimonies of so-called eye-witnesses
cannot be regarded as cogent, reliable and trustworthy.

     27. It is well settled in law that unless the entire case of
the prosecution suffers from infirmities, discrepancies and          D
material contradictions and the prosecution utterly fails to
establish its case, acquittal of some accused persons cannot
be a relevant facet to determine the guilt of other accused
persons. In Dalbir Singh v. State of Haryana, 9 a two-Judge
Bench reproduced para 51 from Krishna Mochi and Others v.            E
State of Bihar10 wherein it has been stated that the maxim
falsus in uno, fa/sus in omnibus has no application in India and
the witnesses cannot be branded as liars. The maxim falsus
in uno, falsus in omnibus (false in one thing, false in
everything) has not received general acceptance nor has this         F
maxim come to occupy the status of rule of law. It is merely a
rule of caution. All that it amounts to is, that in such cases
testimony may be disregarded, and not that it must be
disregarded. Thereafter, the Bench proceeded to state as
follows:-
                                                                     G
      "Merely because some of the accused persons have been
      acquitted, though evidence against all of them, so far as

9.   c2ooa) 11 sec 245.
10. c2002} s sec s1.                                                 H
    130       SUPREME COURT REPORTS               (2013] 11 S.C.R.


A         direct testimony went, was the same does not lead as a
          necessary corollary that those who have been convicted
          must also be acquitted. It is always open to a court to
          differentiate the accused who had been acquitted from
          those who were convicted. (See Gurcharan Singh v. State
B         of Punjab 11 .) The doctrine is a dangerous one, specially
          in India, for if a whole body of the testimony were to be
          rejected, because the witness was evidently speaking an
          untruth in some aspect, it is to be feared that
          administration of criminal justice would come to a dead
c         stop. Witnesses just cannot help in giving embroidery to
          a story, however true in the main. Therefore, it has to be
          appraised in each case as to what extent the evidence is
          worthy of acceptance, and merely because in some
          respects the court considers the same to be insufficient
D         for placing reliance on the testimony of a witness, it does
          not necessarily follow as a matter of law that it must be
          disregarded in all respects as well. The evidence has to
          be sifted with care. The aforesaid dictum is not a sound
          rule for the reason that one hardly comes across a witness
          whose evidence does not contain a grain of untruth or at
E
          any rate exaggeration, embroideries or embellishment.
          (See Sohrab v. State of M.P. 12 and Ugar Ahir v. State of
          Bihar. 13)"

       28. In Yanob Sheikh alias Gagu v. State of West
F Bengal, 14 after referring to Dalbir Singh (supra) the Court
  observed that the acquittal of a co-accused per se is not
  sufficient to result in acquittal of the other accused. The court
  has to screen the entire evidence and does not extend the
  threat of falsity to universal acquittal. The court must examine
G the entire prosecution evidence in its correct perspective before

    11. AIR 1956 SC 460.
    12. (1972} 3 sec 751.
    13. AIR 1965 SC 277.
H 14. (2013} 6 sec 428.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 131
               [DIPAK MISRA, J.]
it can conclude the effect of acquittal of one accused on the        A
other in the facts and circumstances of a given case.

     29. In Ba/raje alias Trimbak v. State of Maharashtra 15 a
two-Judge Bench has observed that even if acquittal is recorded
in respect of the co-accused on the ground that there were
                                                                     B
exaggerations and embellishments, yet conviction can be
recorded if the evidence is found cogent, credible and truthful
in respect of another accused.

     30. Keeping the aforesaid principle in view we are
required to test the acceptability of the evidence on record. The    C
learned trial Judge has acquitted Jaswinder Kaur on the ground
that she had not contested any election; that she was not even
residing in the village in which the elections were held; and that
she was residing in her own house at Jalandhar. The allegation
in the FIR that she had given lalkara had not really got support     D
from other witnesses and, hence, her presence at the spot was
doubted. As far as Kamal Kumar is concerned, in the opinion
of the learned trial Judge he had no concern with the accused
persons or the deceased as he belongs to Ram Mandi in
Jalandhar Cantonment. The learned trial Judge, in essence, has       E
extended benefit of doubt to him inasmuch as he had neither
participated in the occurrence nor had he shared the common
intention. The High Court has acquitted Sukhpal Singh on the
ground that he was not named in the FIR and further he had
not carried any weapon. The High Court opined that he had            F
been implicated because he had filed a writ petition against
the police officers. If the evidence is scrutinized in proper
perspective, it is clear that there has been some embellishment
by the informant and other witnesses but giving such
embroidery to a story would not make the whole prosecution
version untruthful one. It can be treated to be an exaggeration      G
by the prosecution but the consequence cannot be regarded
as fatal. Therefore, we are not persuaded to accept the said
submission .canvassed on behalf of the appellants.
1s. (2010) s sec 673.                                                H
    132      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A        31. The next contention is that the presence of two eye-
    witnesses, namely, PWs-1 and 2, at the scene of occurrence
    is gravely doubtful. It has been urged that the said two
    witnesses could not have been present at the spot as their
    statement that they had taken the deceased to the hospital has
B   been belied by the testimony of autopsy surgeon; their blood
    stained clothes had not been seized; and PW-1, who was sitting
    on the left mudguard of the tractor, had not received any serious
    injury despite the tractor had turned towards the left. To
    appreciate the said contention we have bestowed our anxious
c   consideration and scrutinized the evidence on record. The plea
    that Malkiat Singh had alone brought the deceased and the
    injured to the hospital cannot be accepted to be correct. PW-
    8, Dr. Narender Singh, who had treated Amarjot Singh, had
    clearly stated that the deceased was brought dead to the
    hospital with the alleged history of gunshot injuries. At that time
0
    he had treated Ama~ot Singh. In the cross-examination, he has
    clearly deposed that the dead body was brought to the hospital
    at 12.40 p.m. and Amarjot Singh came to the hospital at 12.40
    p.m. That apart, it can be said with. certitude that whether
    Amarjot Singh accompanied or not really does not affect the
E   prosecution case. As ·far as non-seizure of the blood-stained
    clothes and blood stains from the seat of the car are concerned,
    it does not create a dent in the prosecution version. In this
    context, the authority in State of Rajasthan v. Arjun Singh,and
    others16 can profitably be referred to. In the said decision the
F   Court has opined that absence of evidence'regarding recovery
    of used pellets, bloodstained clothes, etc. cannot be taken or
    construed as no such occurrence had taken place. It has been
    further observed that when there is ample unimpeachable
    ocular evidence and the same has received corroboration from
G   the medical evidence, even the non-recovery of weapon does
    not affect the prosecution case. In the case at hand it is
    perceptible that PWs-1 and 2, brother and father of the
    deceased, have deposed in a vivid manner about the culpability

H   1s. c2011) g sec 115.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 133 '
               [DIPAK MISRA. J.]

of the accused persons in the crime. The autopsy surgeon, PW-       A
3, has clearly opined that the deceased had died because of
gunshot injuries. The FSL report, Ext. P-AM/1, states with equal
clarity that one cartridge was fired from left barrel of DBBL gun
No. 56088, the other cartridge from its right barrel and three
cartridges were fired from the rifle No. AB 97/5473. It is also     B
brought out in the evidence the gun and the rifle were sent to
the Forensic Science Laboratory in sealed parcels. As per the
report the shots were fired from the weapons sent to the
laboratory. It has been established by cogent evidence that the
weapons belonged to the accused-appellants and licenses             c
were issued in their favour. Thus, the ocular testimony of PWs-
1 and 2 has received clear corroboration from the medical
evidence as well as from the report of the FSL.

      32. Learned counsel for the appellants has also submitted
that wounds would indicate that the shots were fired from a         D
close range but the oral testimony is contrary to the same. That
apart, he submits that the person sitting on the left mudguard
would have been affected as the tractor turned towards the left
and, more so, when the deceased had sustained injury on the
right cheek. In our considered opinion, these kind of               E
discrepancies are bound to occur when an occurrence of the
present nature takes place and one cannot expect ,the
witnesses to state with precision. Needless to emphasise, on.
these counts the prosecution version cannot be held to be
unbelievable and it cannot be held that the prosecution has not     F
been able to establish the charges beyond reasonable doubt.
It is because judicial evaluation of the evidence has to be
appropriate regard being had to the totality of the facts and
circumstances of the case and not on scrutiny in isolation and
further the concept of proof beyond reasonable doubt cannot         G
be made to appear totally unrealistic. In this context, we may
profitably reproduce a passage from lnder Singh and another
v. The State (Delhi Administration} 17 : -

11. (1978) 4 sec 1a1.                                               H
    134        SUPREME COURT REPORTS                    [2013] 11 S.C.R.


A         "Credibility of testimony, oral and circumstantial, depends
          considerably on a judicial evaluation of the totality, not
          isolated scrutiny. While it is necessary that proof beyond
          reasonable doubt should be adduced in all criminal case,
          it is not necessary that it should be perfect. If a case is
B         proved too perfectly, it is argued that it is artificial; if a case
          has some flaws, inevitable because human beings are
          prone to err, it is argued that it is too imperfect. One
          wonders whether in the meticulous hypersensitivity to
          eliminate a rare innocent from being punished, many guilty
c         men must be callously allowed to escape. Proof beyond
          reasonable doubt is a guideline, not a fetish and guilty man
          cannot get away with it because truth suffers some infirmity
          when projected through human process. Judicial quest for
          perfect proof often accounts for police presentations of
          fool-proof concoction. Why fake up? Because the court
D
          asks for manufacture to make truth look true? No, we must
          be realistic."

        33. Thus analysed, the submission in this regard leaves
    us unimpressed and, accordingly, we repel the same.
E
         34. The last plank of proponement of Mr. Lalit is that the
  appellant No. 2 could not have been convicted in aid of Section
  34 IPC since he had not participated in the assault on the
  deceased. Apart from participation, he has also emphasised
F on non-recovery of alleged .12 bore rifle. On a perusal of the
  evidence of PWs 1 and 2 it is perceptible that Paramjit Singh
  was named in the FIR and he had accompanied Manjit Singh,
  his son-in-law. There has been seizure of .12 bore rifle which
  has been proven to have belonged to Paramjit Singh and the
G cartridges that have been recovered from the spot have been
  proven to have been fired from the .12 bore rifle that belonged
  to Paramjit Singh. There is a distinction in the case of Sukhpal
  Singh and Kamal Kumar on one hand and Paramjit Singh on
  the other. Sukhpal Singh was not named in the FIR. There was
  a litigation going on between him and the police officers. Kamal
H
M_ANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 135
                [DIPAK MISRA, J.)

Kumar was not known to any of the witnesses. There is clear         A
evidence thaf Paramjit Singh had fired from his .12 bore rifle
but it had not hit anyone. From the material brought on record
it is vivid that he had gone along with Manjit Singh being armed
with the weapon. The submission that is advanced is that he
had not participated in the occurrence and, therefore, it could     B
not be said that he had shared the common intention. In this
context, we may refer to a three-Judge Bench decision in
Shreekantiah Ramayya Munipalli and another v. State of
Bombay18, wherein it has been ruled thus: -

     ".... it is the essence of the section that the person must
                                                                    c
     be physically present at the actual commission of the crime.
     He need not be present in the actual room; he can, for
     instance, stand guard by a gate outside ready to warn his
     companions about any approach of danger or wait in a car
     on a nearby road ready to facilitate their escape, but he      D
     must be physically present at the scene of the occurrence
     and must actually participate in the commission of the
     offence in some way or other at the time the crime is
     actually being committed. The antithesis is between the
     preliminary stages, the agreement, the preparation, the        E
     planning, which is covered by S. 109, and the stage of
     commission when the plans are put into effect and carried
     out. Section 34 is concerned with the latter.

           It is true there must be some sort of preliminary        F
     planning which may or may not be at the scene of the crime
     and which may have taken place long beforehand, but there
     must be added to it the element of physical presence at
     the scene of occurrence coupled with actual participation
     which. of course. can be of a passive character such as        G
     standing by a door. provided that is done with the intention
     of assisting in furtherance of the common intention of them
     all and there is a readiness to play his part in the pre-


18. AIR 1955 SC 287.                                                H
    136       SUPREME COURT REPORTS                (2013) 11 S.C.R.


A         arranged plan when the time comes for him to act."

                                                [Emphasis supplied]

       35. In the case of lftikhar Khan (supra) another three-Judge
  Bench referred to Mahbub Shah v. King Emperor19 and
B thereafter reiterated the principles stated in Pandurang, Tukia
  and Bhillia v. State of Hyderabad2° wherein it has been stated
  that:-

          "at bottom, it is a question of fact in every case and
c         however similar the circumstances, facts in one case
          cannot be used as a precedent to determine the
          conclusion on the facts in another. All that is necessary is
          either to have direct proof of prior concert, or proof of
          circumstances which necessarily lead to that inference, or,
D         as we prefer to put it in the time-honoured way, the
          incriminating facts must be incompatible with the
          innocen~ of the accused and incapable of explanation on
          any other reasonable hypothesis".

       36. In Tukaram Ganpat Pandare v. State Maharashtra2 1
E the Court opined thus: -

          "Criminal sharing, overt qr covert by active presence or by
          distant direction, making out a certain measure of jointness
          in the commission of the act is the essence of Section 34."
F
          37. In Krishnan and another v. State of Kera/a, 22 Hansaria,
    J., in his concurring opinion, stated thus: -

          "15. Question is whether it is obligatory on the part of the
          prosecution to establish commission of an overt act to
G
    19. AIR 1945 PC 118.
    20. (1955) 1 SCR 1083.
    21. AIR 1974 SC 514.
H   22. (1996) 10 sec 508.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR.137
               [DIPAK MISRA, J.]

    press into service Section 34 of the Penal Code. It is no          A
    doubt true that the court likes to know about an overt act
    to decide whether the person concerned had shared the
    common intention in question. Question is whether an overt
    act has a/ways to be established? I am of t~e view that
    establishment of an overt act is not a requirement of law          B
    to allow Section 34 to operate inasmuch as this section
    gets attracted when "a criminal act is done by several
    persons in furtherance of the common intention of all''.
    What has to be, therefore, established by the prosecution
    is that all the persons concerned had shared the common            c
    intention. Court's mind regarding the sharing of common
    intention gets satisfied when an overt act is established
    qua each of the accused. But then, there may be a case
    where the proved facts would themselves speak of sharing
    of common intention: res ipso loquitur."                           D

    Be it noted, in the said case one of the accused had not
caused any injury to the deceased.

      38. In Surendra Chauhan v. State of M.P., 23 the Court
opined that the existence of a common intention can be inferred        E
from the attending circumstances of the case and the conduct
of the parties. No direct evidence of common intention is
necessary. For the purpose of common intention e¥en the
participation in the commission of the offence ne~d not be
proved in all cases. Thereafter, the learned Judges proceeded          F
to state that to apply Section 34 IPC apart from the fact that
there should be two or more accused, two factors must be
established: (i) common intention, and (ii) participation of the
accused in the commission of an offence. If a common intention
is proved but no overt act is attributed to the individual accused,    G
Section 34 will be attracted as essentially it involves vicarious
liability but if participation of the accused in the crime is proved
and a common intention is absent, Section 34 cannot be
invoked. In every case, it is not possible to have direct evidence
23. (2000) 4 sec 110.                                                  H
    138       SUPREME COURT REPORTS                [2013] 11 S.C.R.


A   of a common intention. It has to be inferred from the facts and
    circumstances of each case.

       39. Regard being had to the aforesaid principles, we shall
  proceed to analyse the fact-situation in the present case. On a
  scrutiny of the evidence we find that the appellant No. 2 had
8
  accompanied appellant No. 1 and was present at the spot; that
  he had carried a weapon; that it has been established by the
  prosecution that the cartridges had been fired from his gun; and
  that both the appellants are closely related. Thus, the cumulative
  facts would clearly establish that the appellant No. 2 shared the
C common intention with the appellant No. 1. We will be failing in
  our duty if we do not notice the authority, namely, Ramashish
   Yadav and others v. State of Bihar, 24 which has been
  commended to us by Mr. Lalit. In the said case, the Court, after
  dealing with the applicability of Section 34 IPC, noted the fact
D that two accused-appellants caught hold of the deceased and
  thereafter, other accused persons came and assaulted him with
  'gandasa' on account of which the deceased died and hence,
  they could not be roped in with the aid of Section 34 IPC. In
  our considered opinion the discussion in the said judgment has
E to be confined to the facts of the said case and cannot be
  applied as a rule.

        40. In view of our aforesaid analysis, the criticism advanced
    by Mr. Lalit that the appellant No. 2 could not have been
F   convicted in aid of Section 34 IPC, is not well founded.

       41. Presently, we shall proceed to deal with the appeal
  preferred by the informant. We have already noted that the
  learned trial Judge has categorically opined that the accused
  persons, namely, Kamal Kumar and Jaswinder Kaur, were not
G present at the scene of occurrence. Jaswinder Kaur was
  arrayed as an accused on the basis of an application preferred
  under Section 319 of the Code of Criminal Procedure and host
  of material has been brought on record to establish the plea of

H   24. (1999) s sec 555.
MANJIT SINGH & ANR. v. STATE OF PUNJAB & ANR. 139
               [DIPAK MISRA, J.]
the defence that she had not contested the election and she       A
was not present at the scene of occurrence. On a studied
scrutiny of the evidence, the learned trial Judge has given
credence to the same. As far as Kamal Kumar is concerned,
he has nothing to do either with the deceased or the accused
persons as he belongs to a different village and further he had   B
not carried any weapon. The High Court has acquitted Sukhpal
Singh on the foundation that there was animosity between the
police officers and Sukhpal Singh and he had not carried any
weapon. Thus, the view expressed by the learned trial Judge
in acquitting Jaswinder Kaur and Kumar Kumar and further the      c
acquittal recorded by the High Court acquitting Sukhpal Singh
is based on cogent reasoning and; in our considered opinion,
it is a plausible view. Needless to emphasise that once a
plausible view has been expressed and there has been proper
appreciation of the evidence on record, the acquittal does not
                                                                  0
warrant any interference.

    42. In view of the above premised reasons, all the appeals
are dismissed.

B.B.B.                                    Appeals dismissed.