Holding

The conviction under Sections 302, 34 and 201 IPC stands as the prosecution proved the murder through strong circumstantial evidence and common intention, rendering the appeal untenable.

Summary

The appellants, a group of villagers, forcibly took the deceased Baijnath Singh and his brother onto a boat, assaulted Singh, resulting in his death; the body was recovered after five days and identified by several eye‑witnesses. The trial court convicted the accused under Sections 302, 34 and 201 IPC, a decision affirmed by the High Court, and the appellants challenged the conviction on grounds that the corpse was not positively identified, key independent witnesses were not examined, and the medical opinion on the time of death was uncertain. The Supreme Court held that corpus delicti need not be proved when strong circumstantial evidence establishes death and the accused’s participation, and that the quality of evidence, not the quantity of witnesses, governs the prosecution case. It further ruled that Section 34 IPC is attracted where a common object is shared and individual overt acts cannot be precisely pinpointed. Consequently, the Court dismissed the appeal, upholding the convictions.

Issues considered

Whether the absence of a positively identified corpse defeats a murder conviction.
Whether failure to examine certain independent witnesses warrants reversal of conviction.
Whether the medical evidence on the exact time of death is essential for establishing murder.
Whether Section 34 IPC applies when individual overt acts of each accused cannot be specifically identified.

Legislation cited

Indian Penal Code, 1860s. 201, s. 302, s. 34

Subjects

murderSection 34 IPCcommon intentioncorpus delicticircumstantial evidenceidentification of dead bodymedical evidencetime of deathnon‑examination of witnesses

Judgment

A RAMJEE RAI AND ORS.
11

STATE OF BIHAR

AUGUST 24, 2006

B [S.B. SINHA AND DALVEER BHANDARI, JJ.)

Penal Code, 1860:

Section 34-Common intention-Jn furtherance of-individual overt
C acts-Exact pinpointing of-Murder--Deceased and his brother forcibly taken
on a boat by a group of persons, variously armed, and letting the boat to
move freely-Deceased was assaulted by accused persons and the dead body
carried away in the boat-Dead body recovered after five days-Trial court
convicted the accused persons under Ss. 302134 and 201-High Court affirmed
D the conviction-Correctness of-lfeld: In a case of this nature, it is not
possible to pinpoint the exact overt acts committed by each of the accused
persons-Hence, invoking of S. 34 against all accused persons justified.

Criminal Trial:

E Murder-Corpus delicti-Dead body-Discovery of-Requirement-
Held: Discovery of dead body is a rule of caution and not of law-If there
exists strong circumstantial evidence, conviction can be recorded even in the
absence of the dead body.

Murder-Time of death-Non-ascutainment of-Whether fatal to
F prosecution case-Held: Medicai science has not achieved such perfection
so as to pinpoint the exact time of death-Hence, not fatal to prosecution
case.

Witnesses-Independent witnesses-Non-examination of-Effect of-
Held: Ordinarily the prosecution should examine all witnesses whose names
G have been disclosed in the charge-sheet-But, this is not a rule of universal
application-It is the quality of the evidence but not the quantity which
matters.

According to the prosecution, the appellants-accused, variously armed,

H 240
RAM JEE RA! v. STATE OF BI HAR 241

took the deceased and his brother (PW-3) forcibly on a boat letting the boat A
to move freely. After the boat had proceeded some distance, the accused persons
started assaulting the deceased. PW-3 jumped from the boat and started
swimming, shouting and crying for help. The deceased died as a result of the
assault and his dead body was carried away in the boat. The dead body was
1
recovered after five days by the 'Chowkidar' (PW-4) ofthe village who knew
the deceased from childhood. According to the doctor who conducted the B
postmortem, the soft parts were eaten away by the fish. The doctor further
opined that it was difficult to assess the period past since death. But, according
to him, it might have been approximately to days.

The trial court convicted all the accused persons under Section 302/34 C
read with Section 201 of the Penal Code, 1860. The High Court affirmed the
conviction. Hence the appeal.

On behalfof the accused persons, it was contended that keeping in view
the postmortem report which clearly showed that only bones were visible, the
dead body could not have been identified; that some of the independent witnesses D
were not examined whereof the accused persons suffered grave prejudice; that
the autopsy surgeon had opined that death must have taken place approximately
to c!ays prior to the postmortem examination and, therefore, the prosecution
case should be disbelieved; and that the individual overt acts of the accused
persons had not been p()inted out.
E
Dismissing the appeal, the Court

HELD: 1. It is now a trite law that corpus delicti need not be proved.
Discovery of the dead body is a rule of caution and not of law. In the event1
there exists strong circumstantial evidence, a judgment of conviction can be
recorded even in the absence of the dead body. [248-E, Fl F
Rama Nand v. State of Himachal Pradesh, [1981) I SCC 511 and Ram
Gu/am Chaudhaiy v. State of Bihar, [2001] 8 SCC 311, relied on.

2. What was, therefore, necessary for the courts below to arrive at a
finding of guilt as against the appellants is in regard to their involvement in G
the crime. It is not a case where the dead body could not be identified. There
had been sufficient materials placed by the prosecution to bring home the
said fact. [249-AJ

3.1. It is true that ordinarily the prosecution should examine all H
242 SUPREME COURT REPORTS [2006J SUPP. 5 S.C.R.

A witnesses whose names have hem disclosed in the charge-sheet; but, then
the same cannot be said to be a rule having universal application. Each case
has to be considered on its own facts. (249-Cf

3.2. It is now well-settled that what is necessary for proving the
prosecution case is not the quantity but quality of the evidence. The Court
B cannot overlook the changes in the value system in the society. When an
offence is committed in a village owing to land dispute, the independent
witnesses may not come forward. (249-DJ

Sheelam Ramesh v. State of .4.P., (1999( 8 SCC 369, Pohlu v. State of
Haryana, [2005( IO SCC 196, Bairam Singh v. State of Punjab, (2003( ll
C SCC 286 and State of U.P. v. Anil Singh, (1988) Supp. SCC 686, relied on.

Lakshmi v. State of U.P., (2002( 7 SCC 198, referred to.

Sahaj Ram v. State of U.P., (197311SCC490 an.J.! Habeeb Mohammad
D v. State ofHyderabad, (1954( SCR 475,. held inapplicable.

3.3. In the instant case, however, some of the witnesses examined by the
prosecution are independent. The evidence of all the witnesses is more or
less consistent. Nothing has been pointed out to discredit their testimonies.
The Sessions .Judge as also the High Court, therefore, cannot be said to have
E committed any mistake in relying upon the testimonies of the said witnesses.
(252-C, DI

4. Medical evidence has not achieved such perfection so as to enable a
medical practitioner to categorically state in regard to the exact time of death.
In a case of this nature, it was difficult to pinpoint the exact time of death.
F The autopsy surgeon told about the approximate time lag between the date of
postmortem examination and the likely date of death. He did not explain the
basis for arriving at his opinion. (252-FJ

Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh, (2006)
SCALE 452, relied on.
G
Modi's Medical Jurisprudence, 22nd Edn., referred to.

5.1. The appellants came in a group. Some of them started assaulting
the deceased with weapons in their hands. In a case of this nature, it was well
nigh impossible for the first informant to pinpoint the exact overt acts
H committed by each of the accused persons individually. 1253-E, FJ
RAMJEE RA! v. STATE OF BIHAR [S.B. SINHA,J.] 243

5.2. Section 34 of the Penal Code, 1860, therefore, is clearly attracted A
in a case of this nature. (253-GI

Bishna Alias Bhiswadeb Mahato v. State of W.B., (2005112 SCC 657,
relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1621 of B
2005.

From the Judgment/Order dated 24.6.2005 of the High Court of Judicature
at Patna in Criminal Appeal No. 347 of 1987.

P.S. Mishra, Dhruv Kumar Jha, Tathagat Harsh Vardhan, Upendra Mishra, C
Ravi Chandra Prakash and Manu Shanker Mishra for the Appellant.

Kirti Sinha (for Gopal Singh) for the Respondent.

The Judgment of the Court was delivered by
D
S.B. SINHA, J. The Appellants herein with Bharat Rai and Ganeshi Rai
(since deceased) were prosecuted for commission of the offence of causing
intentional death to oqe Baijnath Singh and disappearance of his dead body.

A First Information Report was lodged by Rajnath Singh (PW-3), brother
of Baijnath Singh (deceased) alleging that on 21.8.1980 at about 4 in the E
afternoon he along with him was at their plot of land situated by the side of
a Dhab in the north of village Dudhiyan where they had gone for cutting
Masuria Crops. The Appellants together with Bharat Rai and Ganeshi Rai,
variously armed, took them forcibly on a boat to the Dhab letting the boat
moving freely. After the boat had proceeded some distance, they started
assaulting the deceased. He, however, finding an opportunity in this behalf F
jumped from the boat and started swimming towards the higher ground,
shouting and crying for help. Baijnath Singh died as a result of the assault
and his dead body was carried away in their boat. It was stated that the
occurrence had been seen by Satyanand Singh (PW-I), Kameshwar Singh
(PW-2) and Pancham Singh (PW-5). It was alleged that in view of the flood G
conditions as also due to night fall, the report could not be lodged in the
night. As regards motive for commission of the said offence, the informant
alleged that the deceased had a piece of land near the house of the accused
and they repeatedly used to pluck the maize and cut away the Masuria crop
grown on that land as a result whereof the parties had been quarreling with
H
244 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A each other. Allegedly, Baijnath Singh had also apprehenrled the accused
cutting away his Masuria crop wherefor he had abused them in retaliation.
The accused persons are said to be belonging to one family and they had
been indulging in commission of theft and dacoity. The murder of Baijnath
Singh was said to have committed in retaliation of the said incident. In the
B First Information Report, two accused were said to be carrying country made
pistols while the rest were armed with gandasas, lathies and spears. The dead
body was recovered after five days, i.e., 26.8.1980. The dead body was first
seen by the Chowkidar (PW-4) of the village. He reported to the informant
thereabout. He came and also identified the dead body. All the accused
persons were convicted for commission of an offence under Section 302/34
C read with Section 20 I of the Indian Penal Code and sentenced to undergo
imprisonment for life under Section 302/34 and five years rigorous imprisonment
under Section 20 I of the Indian Penal Code by a judgment and order dated
31.7.1987. An appeal preferred thereagainst by the accused has been dismissed
by the High Court by the impugned judgment.

D Mr. P.S. Mishra, learned senior counsel appearing on behalf of the
Appellants, submitted that the learned Sessions Judge as also the High Court
committed a serious error in holding that the dead body had been identified
to be that of the deceased. According to the learned counsel, keeping in view
the post mortem report which clearly showed that only bones were visible,
E it could not have been identified and in that view of the matter the prosecution
case cannot be said to have been proved.

It was further submitted that some of the independent witnesses who
could throw light on the prosecution case had deliberately been withheld by
the prosecution as a result whereof the Appellants suffered grave prejudice.
F Non-examination of independent and uninterested witnesses by the prosecution,
having regard to the fact of the case, Mr. Mishra would submit, was imperative.
Reliance in this behalf has been placed on Saha) Ram and Ors. v. The State
of UP., [1973] l SCC 490 and Habeeb Mohammadv. The State of Hyderabad,
[1954] SCR475.

G The High Court, it was urged, committed a serious error in passing the
impugned judgment insofar as it failed to take into consideration the fact that
the deceased was having criminal background and, thus, could have been
done to death by others. The Appellants, it was contended, have been
implicated because of the enmity. Inconsistency in depositions of PWs, it was
H submitted, had also not been taken into consideration by the courts below.
RAMJEE RAI v. ST ATE OF BI HAR [S.B. SINHA. J.] 245

It also argued that the Trial Court as also the High Court ought to have A
considered individual overt acts on the part of each of the Appellants.

Ms. Kirti Sinha, learned counsel appearing on behalf of the State, on
the other hand, submitted that the learned Sessions Judge and the High Court
rightly convicted the Appellants herein in view of the evidence of the eye
witnesses to the occurrence, viz., PWs. 1, 2, 3 and 5. B
The learned Trial Judge in his judgment inter a/ia held:

(i) The injuries inflicted on the body of the deceased were homicidal
in nature.
(ii) The prosecution has been able to show that the dead body of C
Baijnath Singh had been identified.
(iii) Although PW-3 was inimically disposed of towards the accused,
it cannot be said that he had falsely implicated the Appellants.
(iv) The prosecution has assigned sufficient reasons for non- D
examination of the witnesses named in the chargesheet.
(v) Evidences adduced on behalf of the prosecution witnesses being
consistent, the prosecution case has oeen proved.

The High Court in its judgment opined:
E
(i) The prosecution has brought on records sufficient evidences to
prove that the assailants had arrived on a boat, assaulted the
deceased and carried away his dead body.
(ii) The prosecution witnesses being closely associated with the
deceased, it was not difficult for them to identify the corpse. F
(iii) Ocular evidences being consistent in nature, the prosecution has
been able to prove the charges as against the Appellants.

PW-3 is the informant. The First Information Report was lodged at the
earliest possible opportunity. The informant categorically stated that he not G
only saw the deceased being assaulted, he at the first opportunity jumped
from the boat, swam across the Dhab and somehow escaped from the clutches
of the Appellants. He categorically stated that he had gone to Akilpur, which
was an out-post but the Officer-Incharge was not present there thence. He
thereafter returned to his house and in the next morning came to the Danapur
Police Station on a boat. H
246 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A It is not in dispute that the dead body of Baijnath Singh was first seen
by Ganga Paswan, who was a chowkidar. He was also resident of same village.
He knew the deceased from his childhood. He categorically stated that the
deceased, on his right hand side of the forehead had patch of grey hair. A
one paisa coin was also tied against his waist. He had thick mustache and
B same resembled with that of Baijnath Singh. He identified the dead body
seeing his face and other features. The dead body was found in a field of
maize situate in Mauza Banwarichak. It was at a distance of about 1.5 kms.
from the place of occurrence. According to him, river Ganges flows at a
distance of 3 kms. South from that field and about 20 kms. from the West of
the said field. From the place where the dead body was found, river Ganges
C flows at a distance of 1.5 miles East. The place has been completely surrounded
by the said river. According to him, crops had also been sown in the field.

The dead body was also noticed by Ram Swarup Singh. The informant
(PW-3) was informed thereabout. He also went to the spot and identified the
dead body as that of his brother. The police authorities were also informed
D in regard thereto.
Another witness who was examined by the prosecution was Satyanand
Singh (PW-I). He was also an eye-witness. He was sitting on a Machan. He
not only named the accused persons having assaulted Baijnath Singh, but
also stated that he had seen the informant escaping from the clutches of the
E accused.

PW-2 another eye-witness is Kameshwar Singh. He was also in his
maize field at the time of occurrence. He corroborated the statements of PWs
I and 3. He is again an eye-witness. He also identified the dead body. In his
F deposition, he stated:
"I told the police that I was in my field on the date of incident. I saw
Baijnath Singh, Rajnath Si!1gh in their field before the coming of the
accused. There was sickle in their hand at that time. At the time when
Rajnath Singh jumped from the boat there was nothing in his hand.
G The field of Rajnath Singh in Dhudhiya village is at a distance of 2-
4-10 Laggi from the Basti."

He also stated that despite cries nobody from the village came in view
of the water. They have gone to their respective fields by wading through
risen water.
H
RAMJEE RAI v. STATE OF BIHAR [S.B. SINHA. J.] 24 7
One Pancham Singh was examined as PW-5. He also was an eye- A
witness. He testified having seen Baijnath Singh was being assaulted.
According to him, as the deceased stopped shouting, he realized that he was
no more.

The learned Sessions Judge had placed implicit reliance on the
testimonies of these witnesses opining: B
"Therefore, in view of the discussions made above, I find that all the
eye-witnesses are quite competent and reliable and their evidence
coupled with the evidence of Doctor (PW.6) and 1.0. (PW.7) fully
establishes that on the alleged date all the accused persons armed
with lathi, Shala, Gandasa, pistol came on boat, in the field of the C
informant and forcibly picked up the informant and Baijnath Singh on
boat, and then went towards Dhab and assaulted Baijnath Singh with
their respective weapons, causing his death."

The High Court also in its impugned judgment discussed the evidence D
of the eye-witnesses and held:

"We are unable to accept the submission and on a careful examination
of the written report and the depositions of all the witnesses, including
the informant, P.W.3, we find no inconsistency in those statements.
In the written report, it is stated that while the informant and his E
brother Baijnath Singh were cutting Masuriya crop on their plot of
land, the accused arrived with variously armed and threatening them
with their arms, they forcibly took him and his brother to the Dhab
on a boat. We are unable to read to statement in the written report
to mean that the accused had come to the land, where the informant
was there with his brother, on foot and they took them along on foot F
upto Dhab where they boarded the boat that was waiting there. The
statement in the written report on a careful reading plainly means that
the accused arrived there on a boat and forcibly picked up the informant
and his brother on it and took them in the direction of the Dhab. We,
thus, find no inconsistency, much less, any contradiction in the G
prosecution story as stated in the written report and as d.:posed
before the court by the witnesses."

In regard to the identification of the dead body, the learned Sessions
Judge held that the dead body was that of Baijnath Singh which had duly
been proved by PWs 3 and 4. H
248 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A We may at this juncture notice the medical evidence.

Dr. Sheonandan Barunwal, who examined himself as PW-6, proved the
post mortem report. The dead body before him had been identified as that of
Baijnath Singh by the constable, Rajnath Singh and the Chowkidar. The age
of the deceased was said to be 35 years. The clothes were having a ganji,
B dhoti and a small chadar. The body was in a decomposed condition. Rigor
mortis was absent. The body had three cut wounds. It was categorically
stated that the hairs of scalp were intact. The post mortem report does not
suggest that there was no mark on face or identification marks were totally
absent. In his opinion, the death might have been due to amputation of
C hands. He categorically stated that the dead body was thrown in water and
the soft parts were eaten away by the fish. According to him, it was difficult
to assess the period past since death. But, according to him, it may be
approximately 10 days.

The Appellants did not even suggest that the deceased did not have
D the special features whereabout PW-4 made categorical statement. His age at
the time of death had also not been disputed. The Investigating Officer Ram
Naresh Shukla (PW- 7) also stated in categorical terms that the entire flesh
below the stomach had been eaten away by the animals and the dead body
had been identified by Chowkidar Ram Swarup Singh and Raghunandan
Paswan, Ganga Paswan and Kameshwar Singh of Banwarichak stating that
E the same was that of Baijnath Singh. Even the age of the deceased was not
disputed.

It is now a trite law that corpus delicti need not be proved. Discovery
of the dead body is a rule of caution and not of law. In the event, there exists
F strong circumstantial evidence, a judgment of conviction can be recorded
even in absence of the dead body. [See Rama Nand and Ors. v. State of
Himachal Pradesh, [I 981 J 1 SCC 511.

In Ram Gu/am Chaudhary and Ors. v. State of Bihar, [2001] 8 SCC 311,
this Court noticed the decision in Rama Nand (supra) and opined:
G "There can be no dispute with the proposition of law set out above.
As is set out in the various authorities (referred to above), it is not
at all necessary for a conviction for murder that the corpus delicti be
found. Undoubtedly, in the absence of the corpus delicti there must
be direct or circumstantial evidence leading to the inescapable
H conclusion that the person has died and that the accused are the
RAM JEE RAI v. STATE OF BIHAR [S. B. SINHA. J.] 249
persons who had committed the murder. .. " A
What was, therefore, necessary for the courts below to arrive at a
finding of guilt as against the Appellants in regard to their involvement in the
crime. It is not a case where the dead body could not be identified. There had
been sufficient materials placed by the prosecution to bring home the said
~ B
So far as submission of Mr. Mishra that some independent witnesses
have not been examined is concerned, from the records it may be noticed that
it would appear that the public prosecutor categorically stated before the
learned Sessions Judge that some of the witnesses were inimically disposed
of towards the informant. The Appellants have not brought on record any C
material to show that the aforementioned stand taken by the prosecution was
not correct. It is true that ordinarily the prosecution should examine all
witnesses whose names have been disclosed in the chargesheet; but, then
the same cannot be said to be a rule having universal application. Each case
has to be considered on its own facts. D
It is now well-settled that what is necessary for proving the prosecution
case is not the quantity but quality of the evidence. The court cannot
overlook the changes in the value system in the society. When an offence
is committed in a village owing to land dispute, the independent witnesses
may not come forward. E
In Sheelam Ramesh and Anr. v. State of A.P., [1999] 8 SCC 369, this
Court opined:

" ...Courts are concerned with quality and not with quantity of evidence
and in a criminal trial, conviction can be based on the sole 'evidence F
of a witness if it inspires confidence."

Yet again in Pohlu v. State of Haryana, [2005] 10 SCC 196, this Court
opined:

" ... .It is true that it is not necessary for the prosecution to multiply G
witnesses, if it prefers to rely upon the evidence of the eyewitnesses
examined by it, which it considers sufficient to prove the case of the
prosecution. However, the intrinsic worth of the testimony of the
witnesses examined by the prosecution has to be assessed by the
court. If their evidence appears to be truthful, reliable and acceptable,
the mere fact that some other witnesses have not been examined, wi11 H
250 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A not adversely affect the case of the prosecution ... "

In Bairam Singh v. State of Punjab, [2003] 11 SCC 286, this Court
opined:

"The appellants' contention that the prosecution has relied only
B on interested evidence of PWs I and 2 and has not examined the other
independent witnesses who were present or for that matter the non-
examination of another son of the deceased by the name of Jasbir
Singh should give rise to an adverse inference, cannot also be accepted
because so far as Jasbir Singh is concerned, though there is some
material on record to show that he was examined by a doctor on the
c night of the incident, there is no material to show that he was actually
involved in this fight. His name is not mentioned in the FIR also,
therefore if the prosecution has thought it not necessary to examine
this witness, we do not think an adverse inference could be drawn on
the basis of this non-examination of the said Jasbir Singh. This view
D of ours also holds good in regard to the so-called other independent
witnesses who were present at the time of the incident since in a
family feud like this it is rare that an independent witness would come
forward to give evidence."

Yet again in State of UP. V. Anil Singh, [1988] Supp sec 686, it was
E observed:

"Of late this Court has been receiving a large number of appeals
against acquittals and in the great majority of cases, the prosecution
version is rejected either for want of corroboration by independent
witnesses, or for some falsehood stated or embroidery added by
F witnesses. In some cases, the entire prosecution case is doubted for
not examining all witnesses to the occurrence. We have recently
pointed out the indifferent attitude of the public in the investigation
of crimes. The public are generally reluctant to come forward to
depose before the court. It is, therefore, not correct to reject the
prosecution version only on the ground that all witnesses· to the
G occurrence have not been examined. Nor it is proper to reject the case
for want of corroboration by independent witnesses if the case made
out is otherwise true and acceptable."

In Habeeb Mohammad (supra), whereupon Mr. Mishra has placed strong
H reliance, this Court stated that prosecution was not bound to call all available
RAMJEE RA! v. ST ATE OF BI HAR [S.B. SINHA. J.] 251

witnesses irrespective of consideration of number of reliability, witnesses A
essential to the unfolding of the narrative on which the prosecution was
based must be called by the prosecution, whether in the result the effect of
their testimony is against the case of the prosecution.

Hpwever, in that case the Appellant there was a Subedar. The allegation
against him was that he ordered the police to fire. The Deputy Commissioner B
of Police who had accompanied the Appellant and had witnessed the
occurrence had not been examined by the prosecution. It was in that fact
situation held that the prosecution should have examined the said witness.
It was held that the Appellant was considerably prejudiced by the omission
on the part of the prosecution to examine the said officer and other officers C
in the circumstances of the said case and the conviction of the Appellant
merely based on the testimony of the police jamedar cannot be said to have
been arrived at after a fair trial, particularly, when no satisfactory explanation
has been given or even attemp:ed for this omission.

In Sahaj Ram (supra) again, relied by Mr. Mishra, there was a group D
rivalry. In that case, the Court found serious mistakes committed by the
Sessions Judge as also the High Court in appreciating evidence. Keeping in
view the peculiar nature of the case and having regard to the fact that there
had been group rivalry, it was opined:

" .... As pointed out by this Court in Habeeb Mohammed v. State of E
Hyderabad though the prosecution is not bound to call all available
witnesses irrespective of considerations of number or reliability,
witnesses essential to the unfolding of the narrative on which the
prosecution is based must be called by the prosecution, whether in
the result the effect of their testimony is for or against the case of the
prosecution. This Court approved the decision of the Judicial
F
Committee in Stephen Seneviratne v. King laying down a similar
proposition. In this case the first information report.clearly states that
Shitabi, CW 1, was an employee of the deceased and he was with his
master at the time of the incident. He has also given information about
the incident to PW 1 and others. Whatever justification there may G
have been for not examining Ram Prasad, the prosecution, in our
opinion, was not justified in keeping back Shitabi.."

In Lakshmi and Ors. v. State of UP., [2002] 7 SCC 198, this Court
'.
, opined:
H
252 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A "Undoubtedly, the identification of the· body, cause of death and
recovery of weapon with which the injury may have been inflicted on
the deceased are some of the important factors to be established by
the prosecution in an ordinary given case to bring home the charge
of offence under Section 302 !PC. This, however, is not (In inflexible
rule. It cannot be held as a general and broad proposition of law that
B where these aspects are not established, it would be fatal to the case
of the prosecution and in all cases and eventualities, it ought to result
in the acquittal of those who may be charged with the offence of
murder. It would depend on the facts and circumstances of each case.
A charge of murder may stand established against an accused even
c in the absence of identification of the body and cause of the death."

In the instant case, however, some of the witnesses examined by the
prosecution are independent. The evidence of all the witnesses are more or
less consistent. Nothing has been pointed out to discredit their testimonies.
The learned Sessions Judge as also the High Court, therefore, cannot be said
D to have committed any mistake in relying upon the testimonies of the said
witnesses.

A contention was raised that autop~y surgeon opined that the death
must have taken place I0 days prior to the post mortem examination and in
that view of the matter the prosecution c:ase should be disbelieved. The
E murder allegedly took place on a boat. The dead body was thrown in the
water. It remained under water for more than five days. Rigor mortis was
absent and the body was fully decomposed. The soft tissues of some of the
parts of the body had been eaten away by fish.

F Medical science has not achieved such perfection so as to enable a
medical practitioner to categorically state in regard to the exact time of death.
In a case of this nature, it was difficult to pinpoint the exact time of death.
The autopsy surgeon told about the approximate time lag between the date
of post mortem examination and the likely date of death. He did not explain
the basis for arriving at his opinion.
G
This Court on a number of occasions noticed that it may not be possible
for a doctor to pinpoint the exact time of death.

In Ramreddy Rajeshkhanna Reddy and Anr. v: State ofAndhra Pradesh,
(2006) 3 SCALE 452, this Court observed:
H
RAMJEE RAI v. STA TE OF BIHAR [S.B. SINHA, J.] 253
"In this case, the time of actual offence having regard to the different A
statements made by different witnesses may assume some importance
as one of the grounds whereupon the High Court has based its
judgment of conviction is the time of death of the deceased on the
basis of the opinion rendered by Dr. P. Venkateshvarlu (P. W.13).

In Modi's Medical Jurisprudence, 22nd edition, as regard B
duration of rigor mortis, it is stated:

"Average Minimum Maximum

Hours Minutes Hours Minutes Hours Minutes
Duration 19 12 3 0 40 O"
c
of rigor
mortis

It was, therefore, extremely difficult to purport the exact time of
death of the deceased, more so when no sufficient reason was assigned D
in the post-mortem report."

Submission of Mr. Mishra is also to the effect that the learned Sessions
Judge had not discussed about the individual overt acts of the Appellants.
The prosecution witnesses categorically stated about the whole incident. The E
occurrence took place on a boat. Out of two persons forcibly taken on the
boat, PW-3 could escape. There were fourteen accused persons. They had
inflicted injuries upon him. Post mortem suggests that sharp cutting weapons
had been used. Two accused persons, as noticed hereinbefore, were held to
be possessed of some cutting weapons. The Appellants came in a group.
Some of them started assaulting the deceased with weapons in their hands. F
In a case of this nature, it was well nigh impossible for the first informant to
pinpoint the exact overt acts committed by each of the accused persons
individually.

Section 34 of the Indian Penal Code, therefore, is clearly attracted in a
case of this nature. G
In a recent judgment in Bishna Alias Bhiswadeb Mahato and Ors. v.
State of W.B., (2005] 12 SCC 657, the law has been stated in the following
terms:

"For the purpose of attracting Section 149 and/or 34 IPC, a specific H
254 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A overt act on the part of the accused is not necessary. He may wait
and watch and the inaction on the part of an accused may some time
go a long way to hold that he shared a common object with others."

For the reasons aforementioned, we are of the opinion that no case has
been made out for interference with the impugned judgment. The appeal is
B dismissed.

V.S.S. Appeal dismissed.