Holding

The Court upheld Mohan Singh’s murder conviction but acquitted Kailash Singh, holding that the prosecution failed to prove his participation in the common intention to kill.

Summary

Mohan Singh and Kailash Singh were convicted of murder under Section 302 read with Section 34 of the IPC, with Mohan Singh also convicted under the Arms Act. They appealed, challenging the post‑mortem finding of blackening under the wound, the reliability of eyewitness identification in low light, the lack of detail in the FIR, and whether Kailash Singh shared the common intention to kill. The Supreme Court held that the blackening did not prove a close‑range shot and that the medical evidence corroborated the prosecution’s version of firing from the roof. Eyewitness testimony was deemed reliable despite limited illumination. The Court found that while Mohan Singh’s murder conviction was supported by the evidence, the prosecution failed to prove beyond reasonable doubt that Kailash Singh participated in the common intention to kill, entitling him to the benefit of doubt. Consequently, Mohan Singh’s conviction was upheld and Kailash Singh’s conviction was set aside.

Issues considered

The post‑mortem finding of blackening under the wound indicates a close‑range shot or not.
Whether variance between medical evidence and prosecution story warrants acquittal.
Reliability of eyewitness identification under moon‑lit conditions with a lantern.
Effect of the FIR’s lack of detail on each accused’s role on the conviction.
Whether Kailash Singh participated in the common intention to kill under Sec. 34 IPC.
Whether the conviction under the Arms Act should be upheld.

Legislation cited

Subjects

murdercommon intentionSection 34 IPCmedical evidencepost‑mortemeyewitness identificationFIRbenefit of doubtArms Act

Judgment

A MOHAN SINGH AND ANR.
v.
STATE OF M.P.

JANUARY 28, i999

B [G.B. PATTANAIK AND A.P. MISRA, JJ.)

Indian Penal Code, 1860-Sections 302 & 34-Murder Common inten-
tiort-f'roof of-No fire arm used by accused K and no active role assigned
to him-Role assigned to him is merely exhortiort-Murder not pre-detennined
C or planned-Emotion developed on the spot-Exhortion words used by ac-
cused was of weakest nature and the last on~as subsequent to strong
abusing and threatening language used by other two accused because of which
common intention had already mature~Words used by accused can mean
both kill or beat-Exhortion attributed to accused cannot lead to conclusion
D that it was with same intention to kill deceased-Held, accused 'K' is entitled
to benefit of doubt.

Evidence Act, 1872:-Section 45-Fire Arm injury-Blackening of skin
below the injury does not necessarily lead to the inference that firing was from
a close range-Ova/shaped injury-Direction of pellets being downwards and
E travelling right to left corroborating prosecution evidence of firing from roof
top which was on the right side of place of occurrence-Medical Evidence
fully corroborated by unimpeachable evidence of eye witnesses-Held, mere
reference in medical report of blackening under surface of injuries cannot lead
to an inference that firing was from close range.

F Medical Evidence at variance with Direct Evidence-Mere variance of
prosecution story with medical evidence not to lead to outright dismissal of •
prosecution case-Duty of court to remove chaff from grain.

Criminal TriaHdentification of accused--lnsufficieny of light-Moon-
lit nigh4 lantern burning and accused persons and eye witnesses closely
G related-Held, their appearance and voice being known, the identification
cannot be doubted for paucity of light.

Criminal Procedure Code, 1973-Section 154-First Information
Report-Lack of details about the part played by each accused persons in the
H commission of crime-FIR lodged by chowkidar at instance of deceased's
276
MOHAN SINGH v. STATE 277

-~
father who happened to be eye-witnes~Deceased's father being in remorseful A
mood could not give details except to request the chowkidar to lodge a
report-Held, absence of details in the FIR was of no consequence.

The appellants were convicted under Section 302 read with Section
34 I.P .C. The enmity subsisting between the parties, led to commission of
crime resulting into firing by the main accused resulting in the death of B
,. one 'B', the deceased. The three accused namely the main accused, accused
K and accused A were arrested. During investigation, the weapon used by
main accused was recovered and charges were framed. The Trial Court
convicted the main accused under Section 302 IPC and under Section 25/27
of the Arms Act and sentenced him to life imprisonment and one year c
rigorous imprisonment respectively. The accused K and A were convicted
and sentenced under Sectio_n 302/34 IPC to life imprisonment. The High
Court affirmed the conviction and sentence of three accused but set-aside
_____J the conviction and sentence of the main accused under Section 25/27 of the
Arms Act.
D
In this appeal, challenging the order, the appellants contented that
<I(
the post-mortem report of blackening under surface of iejuries indicated
:!!!!!!!!!!( that the firing was from a very close range which contradicted the prosecu-
tion case that firing by the main accused was from the roof of the third
floor which could not be a firing from close range. The identification of the E
accused was doubtful for the insufficiency of light. Moreover, the FIR did
not disclose the details of commission of the offence and the part played
by each of the accused persons and this led to improvement and concoction
of the prosecution story. During the pendency of this appeal, accused 'A'
died. Hence his appeal stood abated.
F
..., Partly allowing the appeal, this Court

HELD : 1. The appeal of main accused fails and his conviction and
sentence is maintained whereas the appeal of accused 'K' is allowed and
his conviction and sentence under Section-302 read with Section 34 IPC is
set-aside. [294-B-C] G

4 2. The common intention had already matured by the strong abusing
"
and threatening language used by the other two accused. The exhortation
words 'Mar Sale Ko' used by the accused 'K' meant both kill or beat and
it is the weakest language used out of the three accused and was attributed H
278 SUPREME COURT REPORTS [1999] 1 S.C.R.

A to have been expressed in the last. Thereby the exhortation attributed to
accused cannot lead to conclusion that it was with same intention to kill
+-
[
accused. So the accused is entitled to benefit of doubt because the prosecu-
tion has not proved beyond all reasonable doubt that the deceased 'K' also
formed part of the common intention to kill the deceased. [293-E-F]

B 3. Mere reference in the post-mortem report of blackening under
surface of injuries does not lead to the inference that firing was from a
close range. The evidence of the eye witnesses fully corroborates with the
post-mortem report and the evidence of the doctor that the injuries
recorded was oval in shape, direction downwards, pellets travelling right
c to left all inducting and corroborating that the shot was fired from roof
top of the third Door. [288-A-C]

The recording of blackening of skin below the injury by the doctor
prima-facie may lead to the conclusion that firing of gun shot may be from \_
a close range; but in a given case depending on other factors as in the
D present case, the black margins of a wound are never due to the firing of
the gun from a very close range but are due to something different, the
)<
observation by the doctor could even be in cases where shots are not from
a close range. [290-CD]
\:
Shiv Shankar & Ors. v. State, AIR (1953) All 652, approved.
E
Kamai/ Singh and Others v. State of Punjab, AIR (1971) SC 2119,
relied on.

Medical Jurisprndence by Taylor and Modi, referred to.

F 4.1. Mere variance of the prosecution story with the medical
evidence, in all cases, should not lead to the conclusion, inevitably to reject
the prosecution story. Efforts should be made to find the truth; this is the
very object for which courts are created. To search it out, the courts have
been removing chaff from the grain. So long as chaff, cloud and dust
remain, the criminals are clothed with this protective layer to receive the
G
benefit of doubt. [284-B-C]

4.2. It is a solemn duty of the courts, not to merely conclude and ~

leave the case the moment suspicions are created. It is the onerous duty
"
of the court, within permissible limit to find out the truth. It means, on
H the one hand no innocent man should be punished but on the other hand

r
MOHANSINGHv. STATE 279

-.\. to see that no person committing an offence should go scot free. If in spite A
of such effort suspicion is not dissolved, it remains writ at large, benefit
or doubt has to be credited to the accused. [284-C-E]

4.3. The totality of the facts and the circumstances as spelled out
through the evidence, depending on the facts of each case by testing the
credibility of eye witnesses including the medical evidence after excluding B
that part of the evidence which are vague and uncertain has to be com-
prehended. There is no mathematical formula through which the truthful-
ness of a prosecution or a defence case could be concretised. It would
depend on the evidence of each case including the manner of deposition
and his demeans, clarity, corroboration of witnesses and overall, the c
conscience or a judge evoked by the evidence on record. [284-E-G]

4.4. The courts have to proceed further and make genuine efforts
within judicial sphere to search out the truth and not stop at the threshold
or creation of doubt to confer benefit or doubt. [284-F-G]
D
S. The absence or details in the FIR about the part played by each
of the accused persons in the commission of crime was of no consequence.
The FIR was lodged by the chowkidar who was not an eye witness. It was
the deceased's father who was an eye witness to the incident; being in
remorseful mood could not give details except to request the chowkidar to E
lodge a report. [292-B-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
551of1998.

From the Judgment and Order dated 18.12.97 of the Madhya F
Pradesh High Court in Crl. A. No. 149 of 1981.

U.R. Lalit, S.K. Gambhir and D.P. Chaturvedi for the Appellants.

K.N. Shukla, Ms. Kamakshi S. Mehlwal, Naveen Kr. Singh, Uma G
Nath Singh for the Respondent.

M.N. Krishnamani, Pramod Swarup, Sibo Sankar Mishra, Vikrant
Y adav for the impleading party. ·

The Judgment of the Court was delivered by H

..
280 SUPREME COURT REPORTS [1999] 1 S.C.R.

A MISRA, J. The appellants have preferred the present appeal against
the judgment dated 18th December 1997 of the M.P. High Court (Gwalior
+ 1
Bench) convicting them under Section 302 read with Section 34 I.P.C.
However, conviction and sentence of the accused Mohan Singh under
Section 25/27 of the Arms Act by the Trial Court was set aside. Earlier the
Tr.ial Court convicted Mohan Singh (Appellant No. 2.) under Section 302
B I.P.C. and under Section 25/27 of the Arms Act and s.entenced him to the
imprisonment for life and one year rigorous imprisonment, respectively and
convicted and sentenced Ajay Singh, appellant No. 1, and Kailash, appel-
lant No. 2, under Section 302/34 I.P.C. to the imprisonment for life.
However, since Ajay Singh died during the pendency of the appeal his
C appeal stood abated.

Admittedly both the complainant and the accused persons are close
relatives, 'as the deceased Bhagat Singh was the son of the complainant,
Ram Singh, (PWl), who is the real brother of the aforesaid accused Ajay
D Singh. Both the present appellants, namely, Mohan Singh and Kailash are
. the sons of Ajay Singh.

In ~hort the prosecution case is that on 26th April, 1980 at about 9
AM accu~ed Mohan Singh had beaten Moti Chamar to which Veer Singh
son of Ram Singh objected and had enquired as to why he had beaten Moti
E Chamar. Thereafter Mohan Singh stood up to beat him also. On the same
evening at about 4 P.M. accused Ajay Singh, Kailash Singh and one Daulat
Singh went to Gajar on the motor cycle and beat the mother of Veer Singh,
his brother Gajendra and his sister Meena. Ajay Singh and Daulat Singh
were standing there and were exhorting to kill. Ajay Singh had a pistol. On
p seeing these they went out of the Dalan. Veer Singh's mother and Gajendra
Singh received injuries, Meena was slapped by Kailash. Veer Singh there-
after asked Kalua to sleep at the door and took his mother, brother and
sister on tractor to Vidisha. He disclosed this fact to Bhagat Singh who
thereafter went to call his father Ram Singh from bazaar. Subsequently,
Bhagat Singh and Ram Singh took meal and went to Gajar on the motor
G cycle. They reached there at 10 P.M. On hearing the noise of the motor
cycle the accused Mohan Singh, Ajay Singh and Kailash came out of their
house and went to the first floor. Kalua was sleeping in Dalan who also·
came out. Bhagat Singh on seeing the accused persons asked them as to
why they were harassing him and beaten their Hali and mother. Being
H aggravated all the three accused persons went to the second floor and from
MOHANSINGHv. STATE[MISRA,J.) 281
there to the roof of the third floor. It is alleged thereafter Mohan Singh A
fired from his gun on Bhagat Singh thrice as a result of which he died on
the spot. Thereafter Ram Singh, who was present there, went to the
chowkidar Bihari and told him the occurrence. Subsequently, Bihari went
to the spot and saw the body. He proceeded thereafter to the Police Station
and lodged a report in the morning of 27th April, 1980 at about 7 A.M.
The report was prepared by Ajit Kumar Patil, P.W. 11, who was then the
B
Station-in-Charge, Vidisha, who in turn proceeded to the place of occur-
rence in village Gajar. He prepared panchanama of the dead body and
took into custody the pellets found near the dead body. Sample of blood
stained earth from there was also taken by him. He also prepared the site
plan Ex. P.2. All the three accused were arrested on the same day. During c
investigation Mohan Singh disclosed about the .12 bore gun which he had
kept inside his Kotha, one empty cartridge near the gun and also two empty
cartridges (Memo Ex. P-6) Mohan Singh took him to his house and got
recovered this .12 bore double barrel gun made in Czechoslavia. Empty
cartridge of 12 bore gun and two 12 bore empty cartridges were also got D
recovered from the drain. The recovered gun is article No. 2.

The accused persons denied the charges. They said that they have
been falsely implicated on account of enmity as Ram Singh and Veer Singh
wanted to .take their property.

It is also not in dispute that accused persons as well as the com-
E
plainant lived in the same house, but separately. Further, a year before the
incidence there had been partition between the brothers including Ram
Singh complainant and accused Ajay Singh, relating to their ancestral land.
The following pedigree would reveal the relationship inter se between the
accused and the complainant family which in turn will also reveal the F
motive of commission of the crime.

Ram Lal
Ajay Singh
1
Ram Singh Pratap Singh Shambhoo Bhawani Kalyan
(Accused) Complainant I (dead) (died issue less)
Sons (Adopted Veer I I
Singh) Sarju Bai Widow Adopted Gopal Singh G
Mohan Kailash I
Singh (Accused) (Adopted Prahlad)
~--'--'----~
(accused)
Gopal Singh Jaswant Singh

Bhagat Singh (Deceased in occurrence) Prahalad Veer Singh Gajendra
H
282 SUPREME COURT REPORTS [1999] 1 S.C.R.
A The prosecution case is that the aforesaid Shambhoo Singh had died
leaving his widow Sarju Bai, who had adopted Prahlad Singh S/o Ram
Singh, the complaintant. Similarly, Veer Singh, PW 10, another son of the
complainant was also adopted by another brother Pratap Singh. The
aforesaid six brothers interse had about 1400-1450 bighas of land for which
B the aforesaid partition took place. The complainant alleged that the ac-
cused Ajay Singh had given 250 bighas of land to him and kept with him
the rest of the land though he was only entitled for 700 bighas of land as
Sarju Bai had adopted his son and she was living with him. In order to
prove the motive of commission of the crime the prosecution relied on the
statement of Veer Singh, PW 10, who stated that he was taken in adoption
C by Pratap Singh. On the day of the incidence at 9 A.M. his servant Moti
Chamar was beaten by Mohan Singh accused and was turned out. When
he went to Mohan Singh and enquired from him as to why he had beaten
Moti Chamar, he stood up even to beat him. He further deposed that he
heard the cries of his mother, Kala Bai, his brother Gajendra and sister
D Meena. On the same evening at about 4 P.M. when accused Ajay Singh,
Kailash and Daulat Singh came on the motor cycle, he actually saw the
accused-Kailash, who was beating his mother, when Ajay Singh and Daulat
Singh at that time were exhorting him to beat. Thereafter they went out.
This background clearly expresses th~ grouse subsisting because of the
partition inter se between the complainant and the accused, leaving them
E in tension in words and action. The day's incidence at 9 A.M. and 4 P.M.
clearly expresses the outrage of the accused party. The prosecution case is
when Ram Singh, (PW 1), and deceased Bhagat Singh reached below the
house of the accused and complained about their behaviour, as aforesaid,
further aggravated the tenseness, this background led to commission of the
F crime on the same day resulting into firing by Mohan Singh accused
resulting into the death of Bhagat Singh.

In this case there are two eye witnesses Ram Singh, PW 1, the father
of the deceased and Kalua, PW 3.

G Learned senior counsel for the appellants, Shri U .R. Lalit, chal-
lenged the findings of the High Court and the Trial Court, firstly, on the
ground that since post mortem report of Dr. G.P. Tamarkar, PW 4, shows
blackening of the skin on each of the injuries recorded, belies the prosecu-
tion case that the accused fired on the deceased Bhagat Singh from the
H roof of the third floor. Blackening means fired from a close range, not from
MOHAN SINGH v. STAIB [MISRA, J.) 283

the roof of the third floor. Second, by recovery of two guns one 12 bore on A
the pointing of Mohan Singh which is article No. 2. Another .12 bore gun
which turned out to be licensed in the name of Ram Singh recovered on
the information of the complainant though from the Dalan of the accused
Ajay Singh, which is article No. 1. Next point pressed was that there was
not sufficient light when the incidence is said to have taken place, viz., at
11 P.M. to recognise and confirm as to who among the aforesaid three
B
accused fired which resulted into the death of Bhagat Singh. Lastly, but
feebly submitted that the F.I.R. does not disclose the details of commission
of the offence including the part played by each of the said three accused
persons. This led into improvement and concoction of the prosecution
story. C::
Learned counsel for the accused, Mr. Lalit, submitted with
vehemence with reference to the first point that the alleged firing on the
deceased Bhagat Singh by Mohan Singh from the roof of the third floor is
in tonflict with the post mortem injuries recorded by Dr. D.P. Tamarkar,
PW 4. For ready reference one of such recorded injury No. 1 is reproduced D
below:

"Fire arm wound placed over right side of chest (P. Torn) above
(Rt) nipple, oval wound inverted edges size 1.25 cm x l cm.
surrounding skin blackened clotted blood was present around the
E
wound. On explosation the wound was going from right to left side
obliquly. There was ruptured of intercostal muscle (Rt) side, plura,
Right lung ruptured. The charra was stucked in thorasic wall left
side under the skin of the level of 6th rib in anterior axiliring line
producing an area of acheymas over skin where it was lodged."
F
(Emphasis supplied)

The emphasis was blackening of skin clearly indicates that the firing
was from a very close range which contradicts the prosecution case that
the firing by the accused-Mohan Singh was from the roof of the third floor
which could not be a firing from a close range. He also referred to the G
deposition of the Doctor, PW4, that by blackening of skin he meant
deposition of the smoke. On the other hand learned Senior counsel, Mr.
K.N. Shukla, for the prosecution referred to the recording of the injury by
the same Doctor in the same report through a diagram that the shape of
injury was oval which indicates that the injuries must h~ve been caused H
284 SUPREME COURT REPORTS [1999] 1 S.C.R.
A from a higher pedestal. He submits this corroborates with the prosecutio~
+-
story as accused is said to have fired from the roof of the third floor, i.e.,
from the higher plane to the deceased Bhagat Singh who was standing
down below on a Chabutra on a lower plane, along with him was his father
Ram Singh, PW 1.

B The question is how to test the veracity of the prosecution story
especially when it is with some variance with the medical evidence. Mere >'

variance of the prosecution story with the medical evidence, in all cases,
should not lead to the conclusion, inevitably to reject the prosecution story.
Efforts should be made to find the truth, this is the very object for which
c courts are created. To search it out, the courts have been removing chaff
from the grain. It has to disperse the suspicious cloud and dust out the
smear of dust as all these things clog the very truth. So long chaff, cloud
and dust remains, the criminals are clothed with this protective layer to
receive the benefit of doubt. So it is a solemn duty of the courts, not to
merely conclude and leave the case the moment suspicions are created. It
D is onerous duty of the court, within permissible limit to find out the truth.
It means, on one hand no innocent man should be punished but on the
other hand to see no person committing an offence should get scot free. If
in spite of such effort suspicion is not dissolved, it remains writ at large,
benefit of doubt has to be credited to the accused. For this, one has to
E comprehend the totality of the facts and the circumstances as spelled out
through the evidence, depending on the facts of each case by testing the
credibility of eye witnesses including the medical evidence, of course after
excluding that parts of the evidence which are vague and uncertain. There
is no mathematical formula through which the truthfulness of a prosecution
or a defence case could be concretised. It would depend on the evidence
F
of each case including the manner of deposition and his demeans, clarity,
corroboration of witnesses and overall, the conscience of a judge evoked
by the evidence on record. So courts have to proceed further and make
genuine efforts within judicial sphere to search out the truth and not stop
at the threshold of creation of doubt to confer benefit of doubt. Under this
G sphere we proceed now to test the submission of the learned counsel for
the accused with reference to the blackening found by the doctor under
"
the injuries in the post mortem report. ....

We find as aforesaid there is another part of the deposition of the
H same Doctor with reference to the same injuries when he records that the
MOHAN SINGH v. STATE (MISRA, J.] 285

-.\. shape of the wounds was oval indicating the injuries being caused from a A
higher pedestal. In Taylor's Principle and Practice of Medical Jurisprudence,
12th Ed., at page 297, it says :

"The position of the wound of entrance usually marks a part of the
body which was at the moment of discharge facing the muzzle of
the weapon, and in a straight line with the barrel; it therefore B
indicates with precision whether the victim was facing the muzzle
or with his back or side to it.

Where the weapon is set at a slant to the body the bullet may
strike the skin and enter through a distinctly oval hole, the
'approach' side of which is a graze widening out into the actual
c
entry, or it may tear across the surface of the skin leaving only a
.,,,
---';,
groove or split."

In Modi's text book of Medical Jurisprudence and Toxicology 21 Ed.
at Page 264, it says : D
"The wound of entrance in distant shot is usually smaller than
the projectile due to the elasticity of the skin, and round when the
projectile strikes the body at a right angle and oval when it strikes
the body obliquely. The edges of the wound are inverted and the
striking bullet covered with grease and smoke causes also a collar E
or abrasion contrusion, which looks like a dark ring, showing two
zones, the inner of grease and the outer of abrasion.

When there is a close shot that in the range of powder blast
and flame is within 1 to 3 inches for small arms there is a collar
of soot and grease (if present on the bullet) around the circular F
wound of entry. Singed hairs may be seen if the body is not covered
with clothing.

When it is fired beyond a distance of 12 inches there are no
powder marks of soot or heat effects around the wound."
G
In the present case the doctor found the injuries oval in shape,
-4
denoting shot was from a slanting position downwards right to left. The
prosecution case is that deceased was standing on Chabutra under a neem
tree thus any shot, if it is from close range could either be from Chabutra,
which would be on level with the deceased thus it could not make oval H
286 SUPREME COURT REPORTS (1999] 1 S.C.R.
A shape hole and if it was shot from below the Chabutra, the oval shape
would not be downwards but upwards. We find from the post mortem
report and evidence of the doctor that injuries recorded was oval in shape,
journey of pellets being downwards and right to left all indicating and
corroborating the prosecution story of firing from the roof top which is on
B the right side. of the place where the deceased was standing.

Now, we proceed to examine the testimony of eye witnesses, their
credibility and trustworthiness. In the present case there are two eye
witnesses, Ram Singh, PW 1, and Kalua, PW 3. We find the evidence of
these two eye witnesses are of unimpeachable character and in spite of
C their long cross-examination nothing worth could be said to have been
eroded, even learned counsel for the appellants before us could not point
out any incongruity, unreliability or contradiction or their testimony being
at variance to distrust them. According to the prosecution case Ram Singh,
PW 1, came along with the deceased Bhagat Singh on the motor cycle near
D the accused house and Kalua, PW 3, who was sleeping in the Dalan also
came out after hearing the noise of the motor cycle.

Ram Singh, PW 1, stated that on the day of occurrence he received
information from his son Bhagat Singh in Bazaar Vidisha, where he had
gone that Kailash, Daulat Singh and Ajay Singh entered his house and had
E beaten his wife, his son Gajendra and his daughter Meena. Then his wife,
son and the daughter also reached Vidisha when he saw the hand of his
wife bandaged where she also disclosed that the accused had beaten them
after entering their house. This fact was also corroborated by Gajendra
Singh. On hearing this he returned back and after taking meal proceeded
p to Village Gajar with Bhagat Singh on motor cycle driven by Bhagat Singh.
After reaching there Bhagat Singh parked his motor cycle near neem tree.
On hearing the noise of the motor cycle Kalua, P.W. 3, has also come. He
was sleeping in the Dalan of the house of my portion. This witness further
deposed that at the time when we saw the accused, they were standing on
the second floor and then they reached the roof of the third floor of their
G portion of the house. Gun was in the hand of Mohan Singh alone. 'First,
Mohan Singh in reply to the query of the deceased used abusive and
threatening language at which the deceased retorted why you are abusing,
then Ajay Singh exhorted to kill him in abusive language, followed by
Kailash. This led to the firing of one shot by Mohan Singh followed by two
H more shots by him. Bhagat Singh fell down and died. Thereafter, Ajay
MOHAN SINGHv. STATE[MISRA,J.] 287
Singh shouted, whoever come in front, we will kill him. Out of that fear A
nobody came out.

PW 3, deposed that between 10 and 11 P.M. he woke up with the
noise of the motor cycle of Ram Singh and Bhagat Singh who reached
there, it was parked near the Neem tree and Mohan Singh, Ajay Singh and
Kailash were standing in the Gokh of Ajay Singh. It was the moon-lit night
B
and a lantern was also burning in the Gokh. The incidence started when
Bhagat Singh asked as to why they had beaten his hali and mother, i.e.,
referring to the incidence which happened earlier on the same day. There-
after all the accused persons went inside the house and went on the roof
of the third floor. According to this witness Mohan Singh had a gun while c
Ajay Singh and Kailash had no weapon in their hands. The role attributed
to these two accused were exhortation. On Bhagat Singh questioning
Mohan Singh about his indecent conduct earlier, he abused him to which
Bhagat Singh retarded not to abuse. On this accused Ajay Singh exhorted
Mohan Singh to kill him and not to worry as we will see the consequences. D
It is only thereafter Mohan Singh spread barrel of his gun and fired at
Bhagat Singh as a result of which he died. Thereafter Ram Singh went to
the Chowkidar, PW 2, and told him to report the matter to the police. PW
2 thereafter lodged the F.1.R. Admittedly he is not an eye witness but
reports on asking by Ram Singh and of course after seeing the dead body,
E
he goes and lodges the F.l.R. early next morning. Further we find in the
present case prosecution has established the place of occurrence as Sta-
tion-in-charge, PW 11, proves it through the recovery of the pellets and the
blood found there, further prosecution has proved the recovery of both the
guns from the house of the accused.
F
Returning to the eye witnesses we find both these two eye Witnesses
PWl and PW3 has fully corroborated the prosecution story. There
credibility has been upheld by the Trial Court and we also after going
through their testimony fully approve this finding and uphold their tes-
timony. Apart from these two eye witnesses there is also part corroboration G
by Jagannath Singh, PW 6, who is a neighbour. His house is adjacent to
the house of Ram Singh. He stated, he woke up on hearing the noise of
firing of gun. Actually he heard the noise of three fires. He then went to
the door of the house and heard 'Jee Saheb', the witness clearly stated he
always called Ajay Singh as 'Jee Saheb'. He heard him saying that if any H
288 SUPREME COURT REPORTS (1999] 1 S.C.R.
A person of the village comes out he will be killed. On account of this he did
not come out and he remained inside his house till 8 A.M. Scrutinising and
examining the evidence we have no hesitation to conclude that the prosecu-
tion has proved to the hilt the story of firing by Mohan Singh from his roof
top to the deceased Bhagat Singh. This unimpeachable evidence of these
B two eye witnesses fully corroborates with the other part of the medical
evidence, viz., injuries oval in shape, direction downwards, pellets travelling
right to left, i.e. that shot was fired from roof top of the third floor. In this
light mere reference in the said report of blackening under the surface of
the injuries by the Doctor could not be given credence for inferring that
firing was from a close range. This by itself in no way dismantles the
C prosecution story. Learned senior counsel, Mr. M.N. Krishnamani, appear-
ing for the impleaded party submitted that blackening found could also be
because of clotted blood found as recorded in the same report; "Skin
blackened clotted blood was present around the wound." We find in this
regard as aforesaid, Modi records :
D
"The wound of entrance in distance shot ..... The edges of the
wound are inverted and the striking bullet covered with grease and
smoke cause also a collar abrasion contrusion, which looks like a
dark ring."

E
(Emphasis supplied)

In the case of Shiv Shankar & Others v. State, AIR (1953) All. 652,
with reference to the Medical Jurisprudence by Taylor it was held that
sometimes blackness present in the area of the injury of ingress creates
F doubt. The path created by ingress of gun shot the internal skin comes out
and therefore the core keeps on changing the colour. The skin of nearby
area can be burnt or injury might not be burnt in accordance with the
distance of opening the gun shot and there might be blackness or redness
of the particles. In this decision also doctor found black margin below the
G gun shot wound. Relevant portions of the said decision incorporating
Taylor's opinion is quoted hereunder :

"The nature of the wounds said to have been inflicted on
account of the gun being placed on t11e chest and fired does not
H fit in with the allegation. It is true that the doctor was not ques-
J MOHAN SINGH v. STATE (MISRA, J.] 289

tioned about it. In fact the doctor made the statement that these A
wounds were due to the gun being fired by being placed on the
chest or from within a range of one yard. We are of the opinion
that in this the doctor was wrong and probably got misguided on
account of the black margins of the wounds. The black margins of
a wound are never due to the firing of the gun from very close B
range but are due to something different. Taylor says at page 430
of his Principles and Practice of Medical Jurisprndence, Volume I,
10th Edition :-

"The edges of the wound commonly show a narrow ring of
discoloration due to the removal of a layer of epithelium by the C
passage of the bullet. The surrounding skin may be scorched or
not, and there may be a zone of blackening or peppering with
grains of powder according to the distance from which the weapon
was fired."
D
And again at page 431 :

"All entrance wounds, if examined, will be found to have a zone
of denuded epithelium immediately surrounding the orifice. This
is caused by the spin of the bullet and the investigation of the skin
by the bullet and tends to dry and become discloured shortly after E
death. It should not be confused with the marks due to powder
for it gives no indication of range."

And again at 441 :-
F
"The bruised and dark appearance which a gun shot wound
sometimes presents, even when the weapon is discharged at a
distance from the body has led to the supposition that this effect
was. due to a burn and that the bullet burnt the parts which it
touched, but this idea is not correct. The projectile never becomes G
sufficiently heated to acquire the power of burning."

Again Taylor says at page 430 :-

"We must distinguish between near wounds and far wounds.
Usually when a weapon is discharged in contact with or within an H
290 SUPREME COURT REPORTS [1999] 1 S.C.R.

A inch or so of the body the gases which pass out with the bullet ~~

enter the tissues and thereafter expand causing tearing of the skin
or clothes very often in .the form of a cross or a split. Most of the
powder is found inside the tissues, but there may be traces of
blackening, burning and tattooing around the entrance hole .........
If the weapon is discharged at a short distance from the skin the
B
effect of the gases is lost and the entrance wound looks like a hole y
which might be caused by pressing a lead pencil into the tissues;
it is rounded with inverted edges and surrounded by a zone of
singeing, blackening from the smoke and tottooing from the im-
paction of small particles of powder in the skin."
c
For all these reasons we have no hesitation to hold that recording of y-
blackening of skin below the injury by the doctor prim a f acie may lead to
the conclusion that firing of gun shot may be from a close range but in a
given case, depending on other factors, as in the present case and in the
D light what the Taylor says, as aforesaid - "The black margins of a wound
are never due to the firing of the gun from a very close range but are due
~
to something different" the observation by the doctor could even be in cases
where shots are not from a close range.

In Kamai/ Singh and Others v. State of Punjab, AIR (1971) SC 2119,
E
this Court held that where it is proved beyond doubt that the evidence of
the eye witnesses are trust worthy in a case where the accused person
committed murder by gun shots, the inconsistency between the opinion of
expert and the eye witnesses relating to the distance from which gun shots
were fired carries no weight. If the eye witnesses stand the test of their
F credibility they have to be believed. Looking to the present case we see
r
even the doctor's opinion is not clear as he admitted that he cannot give
clear opinion about the distance from which the shot was fired. But he
records that it was fired from higher pedestal which corroborates with the
prosecution story. This, coupled with the fact that the eye witnesses also
G corroborate to the same effect, the submission on behalf of the accused for
•
all the aforesaid reasons with respect to the first point cannot be sustained.
~-

Next submission relates to the recovery of two guns of .12 bore which
is said to cast doubt on the prosecution case as licence of one of them is
H in the name of Ram Singh, PW 1. The recovery of two fire arms are, one
(

MOHAN SINGH v. STATE [MISRA, J.] 291
-4 which is recovered on the pointing of Mohan Singh from his house on 27th A
April, 1980 and the other which was licensed in the name of complainant
Ram Singh, PW 1, is recovered on the information given by this very
witness, PW 1, recovered from the Dalan of the accused Ajay Singh on
28th April, 1980. This point was pressed to create a doubt as to which one
was used to commit the offence. The High Court has rightly referred to
the judgment of the Trial Court with approval on this point. The Trial
B
. Court has given good and cogent reason for not accepting this part of the
\
... submission on behalf of the accused. Learned counsel for the accused
submitted that it is not recorded in the seizure memo that the gun, Article
No.1, was seized from the door in the Dalan of Ajay Singh to show it to
be in possession of Ajay Singh. In this regard the Trial Court referred to c
the statement of Mohan Singh who admitted that he was keeping a 12 bore
---. gun with one empty cartridge and two empty cartridges in the drain of his
house. In this regard a seizure memo, Ex. P6, was also prepared. The gun,
Article No. 2, and dry cartridge, Article 10, wet cartridges, Articles 11 and
12, were seized on the indication of Mohan Singh and the seizure memo,
Ex. P-7, was prepared. Parsu Ram, DW 4, clearly stated that those articles
b
..,.
were got seized voluntarily by Mohan Singh and he has given this statement
voluntarily. The Trial Court rightly concluded that Articles 10, 11 and 12
(cartridges) were seized inside the house of Mohan Singh on his indication.
The case of Ram Singh is if there is any gun licensed in his name then it
~
must be with accused Ajay Singh as on partition he never gave such a gun E
-< to him, however, the said Ram Singh did say, when he was washing his face
at the hand pump in the morning on 28th April, 1980, then he saw the gun
and a belt of the cartridges hanging at a peg outside the house of Ajay
Singh in his dalan. Thereafter when investigation officer came then he told
the officer about the said gun on which the investigation officer did collect
F
the said gun after going there along with Kalua, PW 3, and one Jagannath
and brought the said gun. The Trial Court rightly concluded based on the
evidence and the report of ballistic expert, that the introduction of the
second gun would have no bearing on the trustworthiness of the proof of
1 the use of the specified gun in the said incidence.
G
.- ' .,. Next it was submitted as there was paucity of light it was not possible
for the eye witnesses to see the accused and to identify as to who out of •
the aforesaid three accused used the fire arm and who exhorted Mohan
Singh to fire. We find the prosecution witnesses have stated it was a
moon-lit night and even a lantern was burning in the Dalan of Ajay Singh, H
292 SUPREME COURT REPORTS (1999] 1 S.C.R.
A coupled with the fact that the accused were ·not only known but were
closely related belonging to the same family hence their appearances, voice ;-
being known, there would be no difficulty for the witnesses.in recognising
the accused persons in a moon lit night with lantern burning. Eyewitnesses
clearly stated that the firing was done by the accused Mohan Singh to which
B we have no hesitation to accept. Lastly a feeble submission was made that
the F1R doe.s not record details about the part played by each accused
persons in commission of the crime, hence prosecution story is an after
thought to implicate the accused. We again do not find any substance in
this submission, since it is not in dispute that the FIR was lodged by
Chowkidar, PW 2, who adilittedly was not an eye witness. Ram Singh told
C PW 2 who came to the scene later to get the FIR lodged as then on his
son's death he must be in remorseful mood. PW 2 did see the dead body
of Bhagat Singh and then went to the Police Station and lodged the FIR.
It is but natural the man recording the FIR if not an eye witness, no details
could be expected to be incorporated in it. It is also natural Ram Singh
after seeing his son dead could not have been in a mood \o give details
D except to request the chowkidar to lodge a report. Thus we do not find any
merit to this last submission. In view of the aforesaid findings, we clearly
come to the conclusion that the prosecution has proved to the hilt the crime
committed by the accused Mohan Singh by killing Bhagat Singh by 12 bore
gun beyond all reasonable doubt.
E
Next question is whether prosecution has proved its case against the
accused Kailash Singh under Section 302 read with Section 34 or not? It
is admittei! case that he has not used any fire arm nor any active role is
assigned. to him. The role assigned to him is merely exhortation. In order
F to test the prosecution evidence, it is necessary to reeord sequence of
events preceding the alleged exhortation by him to test whether his case
falls under Sec. 34 I.P.C. or not? Admittedly, it is not a case of pre-deter·
miilcd, planned case of common intention of the three accused to kill th.e
· deceased Bhagat Singh. Prosecution story reveals "that emotion developed
G on the spot when complainant Ram Singh and Bhagat Singh came neai the
house of Ajay Singh accused where two other accused, namely, their sons
Mohan smgJi and Kailash Singh were also there. ·Thus it is to be seen
whether any sti.ch common intention with a common design developed also ·t
in the mind of Kailash to kill the deceased? According to Ram Singh, the
eye witness when he reached the neem tree which is in front of the house.•
H of Ajay Singh the accused Ajay Singh, Mohan Singh aod Kailash Singh
MOHAN SINGH v. STATE [MISRA, J.] 293

---- came out from Gokh and went in turn from second floor to third floor. A
After the initial altercation with Bhagat Singh the accused Mohan Singh
shouted with threatening and abusing words to Bhagat Singh deceased
which were as following; "Abe Sale Kutte Ab Bo! Tujhe Abhi Bhi Bata
Dete Hai", on which Bhagat Singh replied why are you abusing from above?
It is on this the accused Ajay Singh, their father, then exhorted his son
Mohan Singh with the following words "Mar Sale Ko Jo Kuch Hoga Nipat
B
Lenge (Kill him whatever happen we will face it)". It is only thereafter it
is alleged that his other son Kailash also exhorted Mohan Singh with the
words "Mar Sale Ko (Kill him)". The consequence of events clearly shows,
the very language expressed by Mohan Singh first, clearly indicates, the
clear intention of the accused Mohan Singh to do away with Bhagat Singh. c
It is expressed with rage. If there was any infirmity in his resolve it fully
matured when what followed, viz., the exhortation by Ajay Singh the father
of Mohan Singh. The aforesaid words of the father could infuriate anyone
including Mohan Singh to do the ultimate, namely, killing of Bhagat Singh.
It is at this point of time when common intention between the two accused
D
matured, if at all. So far as Kailash is concerned he had no role. He is
introduced lastly when it is said that he also said "Mar Sale Ko" which may
mean both kill or beat him. Except for this no other role is assigned to this
accused at the point .of the incidence. Looking to the preceding strong
abusing and threatening language used both by the other two accused
which indicates common intention if at all matured then the exhortation E
words attributed to this accused, does not bring home beyond doubt of
common intention with common design maturing to kill the deceased so
far as the participation of this third accused. Firstly, it is the weakest
language used out of the three and is attributed to have been expressed in
the last. We find the common intention really matured and concluded
F
"l much earlier to the time when the role of this accused is introduced. On
the facts and cir-cumstances of this case and in the absence of anything
more this by itself does. not lead to the conclusion so far as the accused
Kailash is concerned that his exhortation was also with the same common
intention to kill Bhagat Singh.
G
.... In the cross-examination when P.W. 1 was confronted, whether such
words were expressed by Kailash or not and whether he got it recorded
with police or not this witness stated that I told this thing to the police but
police might not have recorded it. This apart except for the similar repeti-
tion by the other eye witness Kalua, PW 3, even he could not refer to any H
294 SUPREME COURT REPORTS [1999) 1 S.C.R.
.A other role played by Kailash except introduction of the said words. Thus we
conclude that the prosecution has not proved beyond all reasonable doubt
thatthe accused Kailash Singh also formed part of the common intention
to kill Bhagat Singh. So we grant benefit of doubt to him.

In view of the aforesaid finding, we conclude that so far as the appeal
B of aci;;used Mohan Singh is concerned the conviction and sentence is
maintained and his appeal fails but the appeal of accused Kailash Singh is
allowed and his conviction and sentence under Section 302 read with
Section 34 I.P.C. is set aside. It is directed that the accused Kailash Singh
be set at liberty forthwith unless required in connection with any other
C offence. Accordingly, this appeal is partly allowed.

N.J. Appeal partly allowed.